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

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.

In 2002 the city amended its ordinance to allow police to impound vehicles and impose a $500 fine on persons driving without a valid license or proof of insurance. The ordinance generated protests that it applied more harshly against minorities. The city had an outdoor assembly ordinance, requiring written application for a permit 20 days in advance, and providing discretion to require the event organizer to pay a cash deposit as a condition of permit issuance. In addition to enforcing the permit ordinance, city officials barred one protestor from speaking at a city council meeting concerning the towing ordinance. Plaintiffs sued the city, its mayor, and its police chief under 42 U.S.C. 1983, alleging violations of their First Amendment rights of free speech, of assembly, and to petition government for redress of grievances. The district court denied the mayor and police chief's claims of qualified immunity as to the First Amendment claims. The Seventh Circuit affirmed in part and reversed in part. The mayor barred anything and everything one of the protestors proposed to say at a public meeting, in retaliation for the protestor's prior statements. Other claims of immunity require resolution of factual issues.

Defendant, an "infomercialist," violated a court-approved settlement with the FTC by misrepresenting the content of his book, The Weight Loss Cure They Don't Want You to Know About. The district court held him in contempt, ordered him to pay $37.6 million to the FTC, and banned him from making infomercials for three years. The Seventh Circuit vacated the sanctions. On remand, the district court reinstated the $37.6 million remedial fine, explaining that it reached that figure by multiplying the price of the book by the 800-number orders, plus the cost of shipping, less returns, and instructing the FTC to distribute the funds to those who bought the book using the 800-number. Any remainder was to be returned to defendant. The district court also imposed a coercive sanction, a $2 million performance bond, effective for at least five years. The Seventh Circuit affirmed. The district court order, the performance bond in particular, does not violate the First Amendment.