Justia U.S. 7th Circuit Court of Appeals Opinion Summaries

Flava, which specializes in production and distribution of videos of black men engaged in homosexual acts, obtained a preliminary injunction against myVidster, an online social bookmarking service by which people refer sites to those with similar tastes, based on a finding that myVidster is a contributory infringer. The Seventh Circuit vacated the injunction. A Flava customer is authorized only to download the video for his personal use. If instead he uploaded it to the Internet and so by doing so created a copy (because the downloaded video remains in his computer), he was infringing. The court remanded for determination of whether myVidster was a contributory infringer if a visitor to its website bookmarks the video and later someone clicks on the bookmark and views the video. View "Flava Works, Inc v. Marques Rondale Gunter, et al" on Justia Law

A Wisconsin inmate checked out two books from the prison library, and purchased, with the prison’s permission, a copy of To Die for the People: The Writings of Huey P. Newton (the founder of the Black Panthers). Plaintiff copied on a sheet of paper the Panthers’ “Ten-Point Program,” which appears in all three books. He put the sheet in the footlocker in his cell. A guard discovered the sheet in a random search of the cell. Plaintiff was found guilty, in a prison disciplinary proceeding, of possession of “gang literature” in violation of Wis. Admin. Code DOC 303.20(3). He was given 90 days of confinement in segregation. The prison also destroyed the sheet of paper on which he’d copied the Ten-Point Program. The district court rejected his free speech and due process claims under 42 U.S.C. 1983. The Seventh Circuit affirmed with respect to the free speech claim, but vacated with respect to due process. “Freedom of speech is not absolute, and the curtailment challenged in this case is slight and the justification adequate, though not ample.” The court made no findings that would enable an inference that plaintiff’s 90-day sentence to segregation was, or was not, a deprivation of liberty. View "Toston v. Thurmer" on Justia Law

The Chicago Tribune published articles revealing that the University of Illinois had a special process for reviewing applications from students with well-placed supporters. The President of the University system, the Chancellor of one campus, and seven of the nine members of the Board of Trustees eventually resigned. The Tribune sought additional information through the Freedom of Information Act, 5 ILCS 140/1: the names and addresses of the applicants' parents and the identity of everyone involved in the applications. The University invoked Exemption 1(a), which provides that agencies will withhold information specifically prohibited from disclosure by federal or State law, pointing to 20 U.S.C. 1232g(b)(1), Family Education Rights and Privacy Act of 1974, as prohibiting disclosure. It precludes federal funding for any educational institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein) of students without the written consent of their parents. The Tribune asked a federal district court for a declaratory judgment, which was granted on grounds that the 1974 Act does not prohibit disclosure, just funding. The Seventh Circuit vacated and ordered dismissal for lack of subject matter jurisdiction.

The Telephone Consumer Protection Act, 47 U.S.C. 227, curtails use of automated dialers and prerecorded messages to cell phones, whose subscribers often are billed for the call. AT&T hired a bill collector to call cell phone numbers at which customers had agreed to receive calls. The collection agency used a predictive dialer that works autonomously until a human voice answers. Predictive dialers continue to call numbers that no longer belong to the customers and have been reassigned to individuals who had not contracted with AT&T. The district court certified a class of individuals receiving automated calls after the numbers were reassigned and held that only consent of the subscriber assigned the number at the time of the call justifies an automated or recorded call. The Seventh Circuit affirmed.

An Illinois statute makes it a felony to audio record any part of any conversation unless all parties consent and applies regardless of whether the conversation was intended to be private. The offense is elevated to a class 1 felony, with a possible prison term of 4 to 15 years, if a recorded individual is performing duties as a law-enforcement officer. 720 ILCS 5/14-2(a)(1). Illinois does not prohibit taking silent video of officers performing duties in public. The ACLU has not implemented its planned Chicago police accountability program for fear of prosecution. The district court held that the First Amendment does not protect a right to audio record. The Seventh Circuit reversed and remanded with instructions to enter a preliminary injunction blocking enforcement as applied to recording of the kind at issue. The statute restricts a medium commonly used for communication of information and ideas, triggering First Amendment scrutiny. Any governmental interest in protecting conversational privacy is not implicated when officers are performing duties in public places. Even under the more lenient intermediate standard of scrutiny applicable to content- neutral burdens on speech, this application of the statute "very likely flunks." The law restricts more speech than necessary to protect legitimate privacy interests.

Hanners, then a Master Sergeant with the Illinois State Police, used his work computer to send an email to 16 fellow employees, including pictures and descriptions of "fictitious Barbie Dolls," depicting stereotypical area residents. After investigation, an EEO officer concluded that, although the email related to race, sexual orientation, parental status, pregnancy, family responsibilities, and the characteristics of gender, no person receiving it reported being offended. The EEO officer recommended discipline for Hanners and three employees who had forwarded the email. The disciplinary review board recommended, and the director imposed a 30-day suspension. Hanners's promotion rating was reduced. The district court granted summary judgment for defendants in his suit under 42 U.S.C. 1981, 1983. The Seventh Circuit affirmed. Hanner did not establish that individuals outside the protected class (Caucasians) received systematically better disciplinary treatment or identify any instance where defendants engaged in behavior or made comments suggesting discriminatory attitude against Caucasians generally or against him because he is Caucasian.

Petitioner, serving a life sentence in Illinois, suffers a chronic medical condition and other ailments that require him to take several prescription drugs daily. After he became ill because someone accidentally gave him another inmate's medication, petitioner decided to educate himself. He ordered six books from a prison-approved bookstore, including: Carpe Diem: Put A Little Latin in Your Life; Diversity and Direction in Psychoanalytic Technique; and Neurodevelopmental Mechanisms in Psychopathology. After screening, a prison review officer decided that he could not have Physicians' Desk Reference and the Complete Guide to Prescription & Nonprescription Drugs 2009. The prison rejected a grievance and sent the books to petitioner's family. Petitioner's pro se 42 U.S.C. 1983 complaint was dismissed. The Seventh Circuit affirmed, noting the rational connection to legitimate prison interests and petitioner's lack of a property interest.

The company operates stores. The union was concerned about use of nonunion contractors who did not pay prevailing wages for construction and remodeling of stores. Unsatisfied with the company's response, the union urged a consumer boycott. Union representatives distributed handbills that were "extremely unflattering" outside the stores. Some pictured a rat to represent the company. The company ejected the representatives from the property. The NLRB issued a complaint alleging violation of the NLRA, 29 U.S.C. 158(a)(1), for discriminatory practice in prohibiting the union from handbilling while permitting nonunion solicitations and distributions. An ALJ found that as a nonexclusive easement holder at 23 of the stores, the company did not have a state property right to exclude handbillers, and had violated the Act. The Board affirmed. The Seventh Circuit affirmed and granted the Board's petition for enforcement.

Redbox rents DVDs, Blu-ray discs, and video games from automated retail kiosks and was sued under the Video Privacy Protection Act, 18 U.S.C. 2710. The district court held that Act provisions requiring destruction of records containing personally identifiable information can be enforced by suit for damages. After deciding to accept the interlocutory appeal because it will materially advance the ultimate termination of the class action, the Seventh Circuit reversed. The court noted the placement of the damages remedy in the statute, after description of a prohibitions on knowing disclosure of personally identifiable information, but before prohibition on use of such information before tribunals or the record-destruction mandate. The court also noted the "unsuitability" of those provisions to damage awards.

Plaintiff entered into a two-year wireless service agreement with First Cellular in 2005. The company was acquired by defendant, which began dismantling and reorganizing. Plaintiff initially agreed to defendant's terms, but later filed a class action, claiming breach of contract for rendering his phone and equipment useless and refusing to honor the features and prices of the First Cellular Agreement. He also claimed deceptive rade practices under Illinois law and civil conspiracy. The district court denied defendant's motion to compel arbitration. The Seventh Circuit reversed, finding that defendant's arbitration clause applies because part of the claims are based on services and products received under defendant's contract. Defendant's contract unambiguously covers any dispute "arising out of" or "relating to the services and equipment." If a contract provides for arbitration of some issues, any doubt concerning the scope of the arbitration clause is resolved in favor of arbitration as a matter of federal law, 9 U.S.C. 2.