Justia U.S. 7th Circuit Court of Appeals Opinion SummariesArticles Posted in Communications Law
GEFT Outdoors, LLC v. City of Westfield
Westfield amended its ordinance governing signs within city limits. Out of a stated concern for public safety and aesthetics, the ordinance requires those wishing to install a sign or billboard to apply for a permit. The ordinance exempts directional signs, scoreboards, particular flags, and notices on gas pumps and vending machines. It prohibits signs on poles and those advertising ideas, products, or services not offered on the same premises (off-premises signs). Those seeking to install a non-compliant sign may appeal the denial of a permit or, if necessary, request a variance. GEFT applied for a permit to build a large digital billboard on private property along U.S. Highway 31 in Westfield. Because of the proposed sign’s off-premises location and use of a pole, Westfield denied GEFT’s application and subsequent variance request.GEFT sued, 42 U.S.C. 1983. The Seventh Circuit previously upheld a restraining order compelling GEFT to cease all actions to install its proposed billboard pending the outcome of the litigation. The district court later granted GEFT summary judgment and permanently enjoined Westfield from enforcing many aspects of its ordinance. The Seventh Circuit remanded for consideration in light of the Supreme Court’s recent decision in “City of Austin v. Reagan National;” the fact that the city must read a sign to evaluate its conformity with regulations is not alone determinative of whether the regulation is content-based. View "GEFT Outdoors, LLC v. City of Westfield" on Justia Law
N.J. v. Sonnabend
N.J., in seventh grade, went to school wearing a T-shirt displaying a Smith & Wesson logo, with an image of a revolver. A.L., a high school student, went to school wearing a T-shirt bearing the logo of a gun-rights group, incorporating an image of a handgun. Administrators at both schools barred the boys from wearing the shirts. Neither school’s dress code expressly bans clothing with images of firearms; the dress codes prohibit “inappropriate” attire, which the administrators interpreted to bar any clothing with an image of a firearm. The students brought separate lawsuits alleging violations of their free-speech rights under 42 U.S.C. 1983.The district court consolidated the cases and granted the school administrators summary judgment, declining to apply the Supreme Court’s “Tinker” precedent, which established the legal standard for student-speech cases. The court applied the standard for speech restrictions in a nonpublic forum—the most lenient test— and upheld the administrators’ actions as viewpoint neutral and reasonable.The Seventh Circuit remanded. This is not a speech-forum case. Tinker provides the legal standard: restrictions on student speech are constitutionally permissible if school officials reasonably forecast that the speech “would materially and substantially disrupt the work and discipline of the school” or invade the rights of others. Although this test is deferential to school officials and is “applied in light of the special characteristics of the school environment,” it is stricter than the test for speech restrictions in a nonpublic forum. View "N.J. v. Sonnabend" on Justia Law
Gorss Motels, Inc. v. Brigadoon Fitness Inc.
Gorss operated a Super 8 Motel as a franchisee of Wyndham. Gorss agreed to furnish the facility in accordance with Wyndham’s standards and to purchase supplies and equipment from approved vendors. Brigadoon sells fitness equipment and is an approved vendor for Wyndham franchisees. Wyndham periodically provided contact information for its franchisees, including fax numbers, to Brigadoon. Gorss also attended trade shows and personally provided contact information to Wyndham-approved suppliers. Gorss received a fax from Brigadoon advertising its fitness equipment. The fax was sent to more than 10,000 recipients. Brigadoon formulated the list of recipients from a variety of sources.Gorss filed a purported class action under the Telephone Consumer Protection Act, 47 U.S.C. 227(b)(1)(c), seeking statutory penalties. The district court declined to certify a class, finding that common issues did not predominate. The Seventh Circuit affirmed, rejecting Gorss’s argument that the court should have required Brigadoon to show with specific evidence that a significant percentage of the class is subject to the “prior permission” defense. Gorss offered no generalized class-wide manner to resolve the permission question. Brigadoon’s claim of permission was not speculative, vague, or unsupported; it was based on a multitude of contracts, relationships, memberships, and personal contacts. View "Gorss Motels, Inc. v. Brigadoon Fitness Inc." on Justia Law
Law Offices of David Freyd v. Chamara
In 2017, Freydin, a Chicago lawyer, posed a question on Facebook: “Did Trump put Ukraine on the travel ban list?! We just cannot find a cleaning lady!” After receiving online criticism for the comment, Freydin doubled down. People angered by Freydin’s comments went to his law firm’s Facebook, Yelp, and Google pages and left reviews that expressed their negative views of Freydin. Various defendants made comments including: An “embarrassment and a disgrace to the US judicial system,” “unethical and derogatory,” “hypocrite,” “chauvinist,” “racist,” “no right to practice law,” “not professional,” “discriminates [against] other nationalities,” do not “waste your money.,” “Freydin is biased and unprofessional attorney,” “terrible experience,” “awful customer service,” “disrespect,” and “unprofessional[ism].” None of the defendants had previously used Freydin’s legal services.The Seventh Circuit affirmed the dismissal of Freydin’s suit, which alleged libel per se, “false light,” tortious interference with contractual relationships, tortious interference with prospective business relationships, and civil conspiracy. None of the reviews contained statements that are actionable as libel per se under Illinois law; each was an expression of opinion that could not support a libel claim. Freyding did not link the civil conspiracy claims to an independently viable tort claim. View "Law Offices of David Freyd v. Chamara" on Justia Law
White v. United States Department of Justice
White, a white supremacist, is now in federal prison. His Freedom of Information Act, 5 U.S.C. 552, requests concern a conspiracy theory: that the racist movement he joined is really an elaborate government sting operation. Dissatisfied with the pace at which the FBI and Marshals Service released responsive records and their alleged failure to reveal other records, White filed suit.The court granted the agencies summary judgment and denied White’s subsequent motion seeking costs because the Marshals Service alone was delinquent in responding; the 1,500 pages held by that agency were an insubstantial piece of the litigation compared to 100,000 pages of FBI documents. The court stated that “the transparent purpose of White’s FOIA requests and lawsuit was to harass the government, not to obtain information useful to the public.” White then filed an unsuccessful motion to reconsider, arguing that the court should not render a final decision until the FBI had redacted, copied, and sent all the responsive records, which will take more than a decade. White next moved to hold the Marshals Service in contempt for telling the court in 2018 that it would soon start sending him records; by 2020 White had received nothing. The court admonished the agency but determined that no judicial order had been violated. The Seventh Circuit affirmed. The district judge “carefully parsed White’s numerous and wide-ranging arguments and explained the result." View "White v. United States Department of Justice" on Justia Law
Bilek v. Federal Insurance Co.
Bilek received unauthorized robocalls concerning health insurance that allegedly violated the Telephone Consumer Protection Act and the Illinois Automatic Telephone Dialing Act (47 U.S.C. 227; 815 ILCS 305/30(a)(b)). Bilek sued on a vicarious liability theory, claiming that Federal contracted with Innovations to sell its insurance; Innovations hired lead generators to effectuate telemarketing; and the lead generators made the unauthorized robocalls that form the basis of Bilek’s claims. Bilek cited three agency theories: actual authority, apparent authority, and ratification.The Seventh Circuit reversed the dismissal of Bilek’s complaint. Expressing no view on whether Bilek will ultimately succeed in proving an agency relationship between the lead generators and either Federal or Innovations, the court concluded that Bilek alleged enough at the pleading stage for his complaint to move forward. Bilek alleges more than a barebones contractual relationship, and did enough to plead that the lead generators acted with Federal’s actual authority. Bilek alleged that Federal authorized the lead generators, through Innovations, to use its approved scripts, tradename, and proprietary information to solicit and advertise its insurance; Bilek received a robocall, and after pressing 1, he spoke to a lead generator who used this proprietary information to quote Federal’s insurance. View "Bilek v. Federal Insurance Co." on Justia Law
Mesa Laboratories, Inc. v. Federal Insurance Co.
Mesa sent faxes promoting its services. Some recipients had not consented to receive such faxes, and the faxed materials did not include an opt‐out notice as required by the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227(b)(1)(C). Orrington filed a class‐action lawsuit under the TCPA and the Illinois Consumer Fraud and Deceptive Business Practices Act and alleged that Mesa’s conduct constituted common‐law conversion, nuisance, and trespass to chattels for Mesa’s appropriation of the recipients’ fax equipment, paper, ink, and toner. Mesa notified its insurer, Federal, of the Orrington action. Federal declined to provide a defense. After Mesa and Orrington reached a settlement, Mesa sued Federal, alleging breach of contract, bad faith, and improper delay and denial of claims under Colorado statutes.The Seventh Circuit affirmed summary judgment in favor of Federal. The policy’s “Information Laws Exclusion” provides that the policy “does not apply to any damages, loss, cost or expense arising out of any actual or alleged or threatened violation of “ TCPA “or any similar regulatory or statutory law in any other jurisdiction.” The exclusion barred all of the claims because the common-law claims arose out of the same conduct underlying the statutory claims. View "Mesa Laboratories, Inc. v. Federal Insurance Co." on Justia Law
John K. MacIver Institute for Public Policy, Inc. v. Evers
MacIver, a “think tank that promotes free markets, individual freedom, personal responsibility, and limited government,” sponsors a “separately branded” MacIver News Service. Some of Wisconsin Governor Evers's press events are open to the public, and others are limited to subsets of the media of varying size. The Governor’s Office maintains a media advisory list to notify members of the media of events. The original list was based on newspaper circulation, radio listenership, and TV viewership.MacIver reporters learned of an invitation-only press and, although not invited, sent an RSVP. They were not admitted. Hundreds of other media personnel were also not invited to the small event. MacIver requested the criteria used to determine which journalists would be allowed access. The Governor’s Office distributed guidance for determining how media would be granted access to limited-access events, noting that the “most important consideration is that access is based on neutral criteria.” The factors were adapted from standards used by the Wisconsin Capital Correspondents Board and the U.S. Congress. According to the Governor, MacIver is not included on the list because MacIver Institute “is not principally a news organization” and “their practices run afoul of the neutral factors.”MacIver sued, citing the First and Fourteenth Amendments. The Seventh Circuit affirmed summary judgment in favor of Governor Evers. The press conferences were non-public fora and the criteria that the Governor used to accept or exclude media were reasonable. There is no evidence of viewpoint discrimination under any First Amendment test. View "John K. MacIver Institute for Public Policy, Inc. v. Evers" on Justia Law
Next Technologies, Inc. v. Beyond the Office Door LLC
Next makes office equipment and refers potential customers to reviews that rate its products highly. Next's competitor, Beyond, published reviews critiquing Next’s standing desks. Instead of pursuing a claim under the Lanham Act, 15 U.S.C. 1125, Next sued in federal court under diversity jurisdiction, relying on Wisconsin’s common law of defamation. The district judge treated product reviews and political commentary as equivalent and cited the Constitution, holding that because Next is a “limited-purpose public figure”—made so by its own efforts to sell its wares—all criticism by a competitor is constitutionally protected unless the statements are knowingly false or made with reckless indifference to their truth. The court concluded that the standard was not met. The Seventh Circuit affirmed on other grounds, stating that it was “skeptical” about the trial court’s use of the Constitution. On the district court’s approach, few claims under the Lanham Act ever could succeed, and commercial advertising would be treated just like political campaigning. Next failed to state a claim under Wisconsin law. “Whatever one can say about whether both gray paint and polished metal should be called ‘silver,’ or whether two circuit boards are as good as one, these are not ‘false assertions of specific unfavorable facts.’” View "Next Technologies, Inc. v. Beyond the Office Door LLC" on Justia Law
Gonzales v. Madigan
Madigan was elected to the Illinois House of Representatives in 1970 and re-elected to 25 additional two-year terms. He became Speaker of the House in 1983 and the state’s Democratic Party Chairman in 1998. In 2021 he withdrew from the race to be reelected as Speaker and resigned his seat in the House and his role as Chairman. Four candidates were on the ballot for the 2016 Democratic primary. Madigan won with 65% of the votes; Gonzales received 27%, Rodriguez 6%, and Barboza 2%. Gonzales sued, 42 U.S.C. 1983, alleging that Rodriguez and Barboza were stooges put on the ballot by Madigan’s allies to divide the Hispanic vote, violating the Equal Protection Clause.The district judge noted that Gonzales had made his suspicions public early in the race and that an editorial in the Chicago Sun-Times agreed with Gonzales. Concluding that the voters were not deceived, the court granted summary judgment against Gonzales. The Seventh Circuit affirmed. The district judge did not penalize Gonzales’s campaign speech. Speech, including in depositions and interrogatories, often affects litigation's outcome; a judge who takes account of speech that proves or refutes a claim does not violate the First Amendment. Gonzales told the voters that he thought Madigan had played a dirty trick. The electorate sided with Madigan. The Constitution does not authorize the judiciary to upset that outcome or to penalize a politician for employing a shady strategy that voters tolerate. View "Gonzales v. Madigan" on Justia Law