June 15, 2016, Washington, D.C. It was a remarkable moment when the Abrams Court sat to hear the case of Pear v. United States. The two issues before the eight-member Court were:
1.) Does the All Writs Act empower a court to compel a third-party to design new software to provide the “reasonable technical assistance” contemplated by the Supreme Court in United States v. New York Telephone Company, 434 U.S. 159 (1977)?
2.) Does a court order requiring a technology company to develop software to overcome security measures and to authenticate the software to obtain access to private information violate the First Amendment?
Before oral arguments in the novel case began, however, Chief Justice Floyd Abrams (suited in his specially-designed robe) made the following announcement:
At the outset, I have an announcement. As may be evident, this proceeding of this Court will be televised. This Court has long barred cameras from our courtroom for publicly unstated and perhaps difficult to defend reasons.
At that point the Chief Justice paused and smiled, and then continued:
Whatever the wisdom of that decision in the past, we see no reason to do so today and a powerful basis to allow cameras today. This is an important case, one in which there is great and deserved public interest. Allowing the public to see this branch of government in this public phase of its work is undoubtedly in the public interest and we serve that interest by opening this Court to far greater public scrutiny.
The Chief Justice next turned to counsel and admonished them:
I am confident that counsel will comport themselves appropriately and have no doubt that members of this Court will do so.
With that the video-recorded moot court event hosted by the Newseum Institute began. Noted First Amendment lawyers Robert Corn-Revere and Ronald G. London represented Pear, and argued that the United States was asking the fictional company to create an entirely new function in providing access to an iPhone, thus creating new literary work — which would be protected by the First Amendment. (See Petitioners’ brief here)
Former assistant U.S. Attorney Joseph DeMarco, and co-counsel Jeffrey Barnum, a legal scholar and lawyer specializing in criminal and First Amendment law, argued the government does have the authority to compel companies to assist in a criminal investigation, and that there was no First Amendment protection for the kind of work the government was seeking — providing access only to a phone, not to the data it contained — for this single phone only. (See Respondent’s’ brief here)
R.I. Governor Veteos “Revenge Porn” Bill
First Amendment lawyers and advocates have expressed concerns that htis particular bill is overbroad and vague, and, if enacted, will turn Rhode Island into an outlier on the protection of free speech. — Gov. Gina Raimondo
According to WPRI-12 News, “Gov. Gina Raimondo has issued the first veto of her tenure, rejecting a proposed ban on so-called ‘revenge porn’ as unconstitutional due to First Amendment concerns, her office announced Tuesday.”
“The bill, which cleared the General Assembly last week, was backed by Attorney General Peter Kilmartin. Supporters said it was designed to punish individuals who distribute sexually explicit material without the consent of everyone involved.”
“But watchdog groups including the American Civil Liberties Union and the New England First Amendment Coalition had urged Raimondo to veto the bill, describing it as unconstitutional, and in the end the governor agreed.”
We do not have to choose between protecting privacy rights and respecting the principles of free speech. The right course of action is . . . [to] craft a more carefully worded law that specifically addresses the problem of revenge porn, without implicating other types of constitutionally protected speech. — Gov. Gina Raimondo
→ Full Text of Governor Raymond’s veto message here.
8th Circuit Orders New Trial in Jesse Ventura Defamation Case
Here are the key facts as described in Chief Judge William Riely’s majority opinion in Ventura v. Kyle (8th Cir., June 13, 2016):
“Before his death, Chris Kyle was a sniper for a United States Navy Sea, Air and Land (SEAL) team. He authored the book American Sniper: The Autobiography of the Most Lethal Sniper in U.S. Military History (American Sniper). In the book, Kyle described punching a ‘celebrity’ referred to as ‘Scruff Face’ who was making offensive remarks about the SEALs at a gathering following the funeral of a SEAL killed in combat. In interviews about the book, Kyle revealed ‘Scruff Face’ was James Janos, better known as Jesse Ventura. Ventura, who was at the bar but denied a fight occurred, sued Kyle in this diversity action under Minnesota law for defamation, misappropriation, and unjust enrichment, alleging Kyle fabricated the incident. The jury found in favor of Ventura on the defamation claim, awarding $500,000 in damages, and found in Kyle’s favor on the misappropriation claim. Serving in its advisory role as to the equitable unjust-enrichment claim, the jury recommended an award of approximately $1.35 million, which the district court adopted. Kyle appeals the district court’s denial of his motion for judgment as a matter of law or a new trial.”
The majority opinion (joined by Judge Bobby Shepherd) reversed the unjust-enrichment judgment and vacated and remanded the defamation judgment for a new trial.
→ Judge Lavenski Smith concurred in part and dissented in part: “I concur in the majority’s reversal of the unjust-enrichment judgment. However, I disagree with majority’s decision to vacate and remand the defamation judgment for a new trial because of references to insurance in trial testimony and closing argument.”
→ Floyd Abrams joined by Susan Buckley and Merriam Mikhail filed an amicus brief on behalf of 33 media companies and organizations contesting the award. In it, the trio of lawyers advanced two main arguments:
- The Common Law Does Not Recognize and the Constitution Does Not Permit an Award of a Book’s Profits as a Remedy for Defamation, and
- The Award of Profits from American Sniper is Tantamount to an Award of Punitive Damages, Damages that Are Not Permitted Against the Estate
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