JOLT Digest

Third Circuit Affirms Prior Decision to Strike Down FCC Fine for CBS Broadcast of Janet Jackson’s Breast During Super Bowl Halftime Show
By Abby Lauer – Edited by Albert Wang

CBS Corp. v. FCC, No. 06-3575 (3d Cir. Nov. 2, 2011)
Slip Opinion

The Third Circuit Court of Appeals affirmed its earlier decision throwing out a $550,000 fine that the Federal Communications Commission imposed on broadcasting corporation CBS for airing a split-second image of Janet Jackson’s exposed breast during the 2004 Super Bowl Halftime Show.

Reaching the same conclusion as it had in a 2008 ruling, the Third Circuit held that CBS’s broadcast was legal under the FCC’s policy at the time, which permitted networks to air instances of “fleeting” indecency without being sanctioned. The Court of Appeals ruled that it was arbitrary and capricious for the FCC to change its policy retroactively and impose a steep fine on CBS without notifying the network of the policy change. In reaffirming its 2008 ruling, the Third Circuit declined to change its position in light of the Supreme Court’s recent decision in FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009), which upheld the FCC’s decision to abandon its safe harbor for broadcasted expletives that are not repeated. The Third Circuit stated that “Fox confirms our previous ruling in this case and that we should readopt our earlier analysis and holding that the [FCC] acted arbitrarily . . . .” Slip op. at 5.

SCOTUSblog provides an overview of the case. Ars Technica also describes the decision and discusses possible implications for future prime time broadcasts.

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Third Circuit holds that vulgar MySpace profile created off school grounds did not cause “substantial disruption” at the school to justify student’s ten-day suspension
By Michael Adelman – Edited by Abby Lauer

J.S. v. Blue Mountain School District, No. 08-4138 (3d Cir. June 13, 2011)
Slip Opinion

The Third Circuit, sitting en banc, reversed and remanded the Middle District of Pennsylvania’s ruling that suspension was an appropriate punishment for a student who created a fake MySpace account that made fun of her middle school principal. The court also affirmed the District Court’s ruling that the school district’s policies were not overbroad or void-for-vagueness.

The Third Circuit held that the fake MySpace profile, while vulgar and offensive, did not cause the type of “substantial disruption” which would have justified the ten-day suspension of the student. The profile was not accessible on any school computers (due to a filter), and while the school district asserted that the profile caused “general rumblings,” it could not point to any major disruption of classroom activities caused by the profile. The court applied the framework from Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), to analyze whether the student’s posting materially interfered with school activities, but it declined to directly address whether Tinker is limited to speech that occurs on campus.

Education Tech News provides an overview of this case, and the companion case Layshock v. Hermitage School District, No. 07-4465 (3d Cir. June 13, 2011) (involving another student who created a fake MySpace profile making fun of his principal). The Digest previously covered these cases when they were heard by Third Circuit panels and resulted in seemingly contradictory decisions. Wired provides a thorough analysis of the decision, noting that the Supreme Court “has not squarely addressed the student-speech issue as it applies to the digital world” and speculating that these “decisions might give the justices fodder to do so.” (more…)

By Sonia McNeil

Myriad Genetics Appeals Ruling on Patentability of Isolated Genes

Myriad Genetics has appealed the Southern District of New York’s ruling in Association for Molecular Pathology v. USPTO. The district court invalidated seven Myriad Genetics patents relating to the human Breast Cancer Susceptibility Genes 1 and 2 (collectively, “BRCA1/2”), finding that the claimed isolated DNA is not markedly different from native DNA as it exists in nature and therefore constituted unpatentable subject matter under 35 U.S.C. § 101.  On appeal, Myriad Genetics argues (1) that the district court lacked declaratory judgment jurisdiction, and (2) that its composition and method claims cover patent-eligible subject matter.  PatentlyO predicts that the Court of Appeals for the Federal Circuit will reverse the lower court; other commentators expect appeal to the U.S. Supreme Court to follow.

Third Circuit to Consider Constitutionality of Routine DNA Collection from Arrestees

The Third Circuit has scheduled en banc reargument of the Justice Department’s appeal in United States v. Mitchell.  Mitchell considered the constitutionality of requiring a defendant to submit a DNA sample for analysis and inclusion in a law enforcement database.  Finding “no compelling reason to unduly burden a legitimate expectation of privacy and extend these warrantless, suspicionless searches to those members of society who have not been convicted, but have been arrested and are awaiting proper trial,” the district court held the regulation invalid under the Fourth Amendment. Describing the April oral argument of the appeal, Law.com notes that the Justice Department highlighted statutory safeguards preventing use of the DNA beyond identification, while Mitchell’s attorney argued that the law’s real goal is to expand the DNA database in order to investigate other crimes and to link suspects to evidence in unsolved cases.

Rotterdam Promotes DNA Mist as Aid to Crime Deterrence and Detection

The New York Times reports that the city of Rotterdam, the Netherlands, is promoting the use of a new DNA mist in an effort to deter robberies.  When triggered, the system alerts law enforcement and sprays a fine liquid mist of synthetic DNA carrying markers unique to the location and visible under ultraviolet light.  Although Rotterdam has not yet made an arrest based on DNA mist evidence, law enforcement and shop owners credit the presence of signs warning, “You Steal, You’re Marked” with anecdotally declining crime rates.

By Kassity Liu

Third Circuit Dismisses “Sexting” Charges Against Minor

On March 18, the WSJ Law Blog reported that the Court of Appeals for the Third Circuit dismissed charges against a teenage girl for distributing sexually explicit images of herself. The court had originally stated that they would address whether the First Amendment protects minors from sending these types of images of themselves through their cells phones, but the court refused to consider this issue in the case. Instead, the three-judge panel concluded that the prosecutor could not charge her for appearing in a sexually explicit photo without evidence that she had helped to distribute it. The court’s ruling appears to protect minors from liability for “sexting,” the act of “sending or posting sexually suggestive text messages and images . . . via cellular telephones or over the internet,” so long as there is “no evidence as to whether that person possessed or transmitted the photo.” The case name is Miller v. Mitchell, No. 09-2144 (3d. Cir. Mar. 17, 2010).

California Appeals Court Holds Threatening Online Speech is not Protected

On March 18, Wired reported that a California appeals court held that hateful and threatening online speech was not protected by the First Amendment. The father of the student who was targeted by the online postings had sued six students and their parents after hearing from the police that the threatening comments posted to his son’s website were protected forms of speech and could not be criminally prosecuted. One of the defendant students claimed that he had made the comments jokingly and did not seriously intend them to be harmful. However, the appellate court refused to accept this defense and instead upheld a lower court’s finding that the defendant had failed to “demonstrate that the posted message is free speech.” The majority judges felt that the defendant’s posting was “a serious expression of intent to inflict bodily harm” both because the posting contained a clear threat and the defendant student spent ample time writing it. The case name is D.C. v. R.R., No. BC332406 (Cal. Sup. Ct. Mar. 15, 2010).

Science Journalist fights libel suit in effort to campaign for British libel law reform

On March 15, the Citizen Media Law Project reported that science journalist Simon Singh has given up his Guardian column to fight a libel lawsuit that the British Chiropractic Association (“BCA”) brought against him for writing an article that denounced some of the BCA’s medical claims. Singh plans on using his case to campaign for British libel law reform, which currently places the entire burden of proving the truth of an allegedly libelous statement on the defendant. The lawsuit, which has been ongoing for two years, has garnered a significant amount of public attention and generated some talks of reform within the British Parliament. Last May, an English court had ruled that Singh would have to prove that the BCA was being “consciously dishonest” when it made the medical claims that Singh had called “bogus” in his article. Singh has appealed this ruling and foresees that his case could “easily continue for another two years.”

Third Circuit Panels Rule Differently on MySpace Parody Cases
By Abby Lauer – Edited by Alissa Del Riego

Layshock v. Hermitage School District, No. 07-4465 (3d Cir. Feb. 4, 2010)
Slip Opinion

Snyder v. Blue Mountain School District, No. 08-4138 (3d Cir. Feb. 4, 2010)
Slip Opinion

Two different Third Circuit panels handed down seemingly contradictory decisions last week after considering whether offensive parody profiles of school principals created by students using MySpace outside of school were protected by the First Amendment.

In Layshock v. Hermitage School District, a unanimous, three-judge panel upheld the district court’s decision in favor of the student, holding that the offensive MySpace profile he created in the principal’s name was protected free speech under the First Amendment. The court based its decision on the fact that the student had created the profile off school grounds and had not substantially disrupted the school with his behavior.

By a vote of 2-1, a different three-judge panel upheld a district court’s decision against the plaintiff student in Snyder v. Blue Mountain School District. The court in Snyder held that the student’s vulgar parody profile of the principal was not protected free speech under the Constitution, and therefore the School District had a right to suspend the student. The court emphasized that the suspension was appropriate because the school had well-founded reason to believe that the student’s parody profile would cause substantial disruption.

Law.com provides a summary and analysis of the two cases. Litigation & Trial discusses why the panels came to opposite conclusions. (more…)