Can Twitter delete a person's account?

Here's a case from December 2020 in the United States Court of Appeals for the Eleventh circuit.  Here's a map of the circuits.

This case is called ILLOOMINATE MEDIA, INC. and LAURA LOOMER v CAIR FLORIDA, INC. and TWITTER, INC, and is an appeal from the United States District Court for the Southern District of Florida.

Twitter banned Laura Loomer, a political activist and journalist, from its platform, because it claimed one of her tweets violated its Terms of Service.  Loomer claimed that CAIR, a Muslim civil rights group, "conspired with Twitter to ban her for her political beliefs." She alleged that CAIR interfered with her business relationship with Twitter.

To show that CAIR’s alleged instruction to ban Loomer constituted tortious interference with a business relationship, Loomer was required to show that she had “existing or prospective legal or contractual rights” in the use of her Twitter account.  Twitter’s Terms of Service, which Loomer did not dispute, allow Twitter to ban Loomer from its platform for any reason at all.  So even if CAIR instructed Twitter to ban her account, it did not tortiously interfere with a business relationship because Loomer did not have legal or contractual rights in the continued use of her account.

The court determined that the failure to meet the above requirement meant it did not need to consider whether Twitter’s decision to ban Loomer was protected under Section 230 of the Communications Decency Act.

This decision did not directly state that Twitter can ban an account, but it gives an idea of how the court would have probably ruled if that issue was directly decided.

Do you agree with the court's conclusion?  Why or why not?

What is the legal effect of a backslash?

Here's a case from December 2020 in the United States Court of Appeals for the Federal circuit.  Here's a map of the circuits.

This case is called BRACCO DIAGNOSTICS INC. v MAIA PHARMACEUTICALS, INC and is an appeal from the United States District Court for the District of New Jersey.

This is a patent infringement case that involves chemistry and is way too technical for me.  Blog readers who have a science or chemistry background will undoubtedly understand these arguments much more than I do.  But what I find interesting is that the court interpreted the meaning of a backslash /  [I always thought / was a forward slash and \ was a backslash, but that distinction doesn't appear relevant to the court's opinion.]
 

Maia stated the / meant "and."  Bracco stated it meant "and" or "or."  The court analyzed the use of the / in the patent application and various tables and charts within that application.  The court then concluded - We agree with Bracco that the district court correctly construed the backslash in surfactant/solubilizer to mean “and” or “or.”

In another case, a court analyzed the effect of the lack of an Oxford comma and determined that no Oxford comma meant one party owed $5 million!

Now we have the interpretation of / as a determining factor in a court's ruling.

Grammar, spelling, and punctuation matter!

Religious discrimination not allowed, even in a pandemic

Here's a case from December 2020 in the United States Court of Appeals for the Ninth circuit.  Here's a map of the circuits.

This case is called Calvary Chapel Dayton Valley v Steve Sisolak, Governor of Nevada and is an appeal of a case from the District Court for the District of Nevada.

To slow the spread of COVID-19, the State of Nevada issued an emergency order limiting social gatherings.  Several businesses and other entities were limited to "50% of fire code capacity", others were limited to "the lesser of 50% of fire code capacity or 50 persons".  Indoor, in-person services in houses of worship were limited to 50 persons.  The church argued that this limitation was specifically directed at, and discriminated against, houses of worship and did not meet the requirements which would allow the State to do that.

The First Amendment states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."  This applies to state governments by the Fourteenth Amendment.

In determining whether a law prohibits the free exercise of religion, courts ask whether the law “is neutral and of general applicability.”  If it is, the law must only be rationally related to the government interest.  If not, the law must satisfy the stricter requirement of "narrowly tailored to meet a compelling government interest".

Calvary Chapel argued that §11 of the Directive was not neutral and generally applicable, because it expressly treats at least six categories of secular assemblies [casinos, restaurants and bars, amusement and theme parks, gyms and fitness centers, movie theaters, and mass protests] better than it treats religious services.  And because religious services are subject to First Amendment protection, the State must have a compelling interest in the regulation, and the regulation must be narrowly tailored to meet that compelling interest.  The church argued that the State had no valid reason to treat the church differently than those six commercial enterprises.
 

Casinos, bowling alleys, retail businesses, restaurants, arcades, and other similar secular entities are limited to 50% of fire-code capacity, yet houses of worship are limited to fifty people regardless of their fire-code capacities. Therefore, it is not neutral and of general applicability.  To survive strict scrutiny review, the Directive must be narrowly tailored to serve a compelling state interest.

Instead of a fifty-person cap, the Directive could have imposed a limitation of 50% of fire-code capacity on houses of worship, just like retail stores, restaurants, and casinos. Therefore, though slowing the spread of COVID-19 is a compelling interest, the Directive is not narrowly tailored to serve that interest.

The court ruled that Calvary Chapel was likely to win the case on the Free Exercise claim. The court also decided that enforcing the occupancy limitations would cause irreparable harm.  Therefore, the court issued an injunction, stopping the limitation of 50 persons on houses of worship.

Do you agree with the court's conclusion?  Why or why not?

"Fair Use" of a copyrighted work?

Here's a case from December 2020 in the United States Court of Appeals for the Ninth circuit.  Here's a map of the circuits.

This case is called Dr. Seuss Enterprises v ComicMix LLC and is an appeal of a case from the District Court for the Southern District of California.

Several entities filed Amicus Curiae ["friend of the court"] briefs, including Motion Picture Association Of America, Inc., The Copyright Alliance, and Sesame Workshop.

Defendants wrote a book called Oh, the Places You'll Boldly Go! ("Boldly")  They claimed it was a "fair use" of the Dr. Seuss book Oh, the Places You'll Go! ("Go")

The opinion includes this awesome line - The creators thought their Star Trek primer would be “pretty well protected by parody,” but acknowledged that “people in black robes” may disagree. Indeed, we do.

Fair Use requires analysis of the following four concepts under §107 of the Copyright Act of 1976:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The court analyzed each factor above:

(1) Whether and to what extent the new work is transformative. A transformative work adds something new, altering the first with new expression, meaning, or message.  This includes criticism, comment, news reporting, teaching, scholarship, and research.

The benchmarks of transformative use -
(1) the creation of new information, new aesthetic, new insights and understanding;
(2) new expression, meaning, or message,  the addition of value to the original; and
(3) the use of quoted matter as “raw material,” instead of merely repackaging it

Because Boldly left the inherent character of the book unchanged, it was not a transformative use of Go.

(2) The nature of the copyrighted work.  Factual versus creative.  There is less protection for factual [non-fiction] works.  But Boldly copied a creative and expressive work.  Therefore, Go is entitled to more protection.

(3) The amount [percentage] and substantiality [core features] of the portion used in relation to the copyrighted work as a whole.

Percentage: ComicMix’s copying was considerable, including 14 of Go’s 24 pages, close to 60% of the book. ComicMix’s verbatim copying of the original drawings also weighs against fair use.

Core features: The qualitative analysis often asks if the copyist took the “heart,” the most valuable and pertinent portion of the work.  The court found that ComicMix copied the substance or heart of Dr. Seuss's style of writing and artwork.

(4) The extent of market harm caused by the copying, whether the copying would result in a substantially adverse impact on the potential market for the original and derivative works.

ComicMix intentionally targeted and aimed to capitalize on the same graduation market as Go. The planned release date for the first publication of Boldly was scheduled to launch in time for school graduations.

Seuss has already vetted and authorized multiple derivatives of Go.  Therefore, targeting the same market without permission from Seuss harmed the market for the original and authorized derivative works.

The court ruled that the ComicMix infringed on Seuss's copyrighted work.

Do you agree with the court's conclusion?  Why or why not?

Airline passengers behaving badly

Here's a case from December 2020 in the United States Court of Appeals for the Ninth circuit.  Here's a map of the circuits.

This case is called United States of America v Monique Lozoya and is an appeal of a case from the District Court for the Central District of California.

On a commercial flight from Minneapolis MN to Los Angeles CA, Lozoya wanted to sleep, but the passenger behind her kept jabbing at his touchscreen monitor attached to the back of her seat.  Each jab startled her awake. In the middle of the flight, Lozoya asked him to stop banging on her seat. This escalated into an argument, and Lozoya slapped the man in the face.

I would NOT have wanted to be on that flight.

After trial, Lozoya was convicted and sentenced to pay a fine of $750.

Defendant argued that this case should not be in the court in CA, because the assault happened in mid-air over a different state entirely.  Article III of the US Constitution states that a criminal trial shall be held in the state where the crime was committed.

"Lozoya’s crime would have been alien to the Framers [of the Constitution]. It happened on an airplane flying almost 600 miles an hour, five miles above the earth. And it occurred over one of several states or districts, depending on the time of the slap."

The court ruled that the trial was proper in CA, the state where the plane landed.

Do you agree with the court's conclusion?  Why or why not?

No arbitrary cutting of trees

Here's a case from December 2020 in the United States Court of Appeals for the Fourth circuit.  Here's a map of the circuits.

This case is called Columbia Gas Transmission v Janet & Melvin Haas and is an appeal of a case from the District Court for the District of Maryland.

Columbia Gas Transmission sued Haas for breach of contract, to enforce a pipeline right-of-way agreement over the Haases’ residential property. Columbia claimed that a 40-year-old Japanese red maple tree on the property interfered with its contract rights and the safe operations of its natural gas pipeline.

The recorded easement provided that a pipeline could “be constructed and maintained below cultivation, so that the property owner may fully use and enjoy the premises, subject to the rights of the pipeline operator to maintain and operate said line.”  Under the recorded easement, “the planting of trees is limited only to the extent that it actually interferes with the maintenance and operation of the pipeline.”

In March 1975, the Haases purchased the property subject to the easement. In July 1976, the Haases planted the Japanese red maple within the easement.  This tree is the centerpiece of their front yard. 

More than 40 years later, Columbia put a flyer on the Haases’ front door informing them that vegetation clearing in the easement would begin.  Columbia sent a contractor to remove the tree.  Haas called the police, and officers directed the Columbia personnel to leave the premises.

At trial, Columbia's expert testified that trees located in rights-of-way are hazards to pipelines. He explained that pipeline companies assume that the roots of trees are threats to pipelines because it is “proven” in the industry that tree “roots go to the pipeline and compromise the coating and allow the pipe to corrode.”  Additionally, he testified that the canopy of the tree will block aerial observation of the pipeline.  Therefore, industry standard is to remove all trees from pipeline easements.  The Japanese red maple had been a potential threat since it was first planted in 1976.

Haases' expert explained that Japanese red maples have “very shallow root systems” and are used often in landscaping because their roots do not damage nearby sidewalks and structures. He advised that the average root depth of such trees is 20 to 24 inches and that the roots of the Haases’ tree would not be deeper than 27 inches.  He also testified that the root tips of a Japanese red maple are “really fine, almost like hair” that very easily break off because they are “tiny and fragile.”

Columbia’s expert agreed that Japanese red maple trees are generally known as having a shallow and non-invasive root system.

The court found that the pipeline passed approximately two feet from the trunk of the tree, and that the pipeline was between four and five feet (48-60 inches) below the ground.  Because (1) the tree’s roots were substantially shallower than the pipeline, (2) an inspection of the pipeline only has to take place once a year and could be conducted in winter, and (3) the tree had coexisted with the pipeline for more than 40 years without complaints or issues, Columbia had an obligation to present stronger evidence of interference before it could remove the tree.

The Haases kept their tree.

Do you agree with the court's conclusion?  Why or why not?

 

No cell phones in the courtroom

Here's another case from November 2020 in the United States Court of Appeals for the Fourth circuit.  Here's a map of the circuits.

This case is called United States of America v Rebecca Moriello and is an appeal of a case from the District Court for the Western District of North Carolina.

Defendant [Appellant] is an attorney who practices in the area of immigration law.

After completing a hearing on behalf of her client, Moriello requested permission to observe an asylum hearing [which was "closed" and confidential].  This permission was granted. A sign outside the courtroom stated: “Persons in EOIR space must turn off their electronic devices (e.g., smartphone, laptop). For clear and immediate business purposes only, attorneys and other representatives are exempt from this rule . . . .”

[I typically type on my phone, check emails, etc, while in court, so this is not unusual.  But it definitely depends on the courtroom.  Some judges allow it, others absolutely do NOT allow it.]

During the hearing, the bailiff observed Moriello typing on her phone. Because Moriello was not representing anyone in that hearing, the bailiff concluded that it wasn't for a "clear and immediate business purpose" and requested that she leave the courtroom or alternatively stop using her phone.  Moriello refused to do either.

[Note: if I was using my phone in the courtroom, I would have definitely stopped after being requested by the bailiff.  Or I would have left the courtroom.  I spent too much time/energy/money on obtaining my license to practice law, to jeopardize it by arguing with court personnel.  Plus, I value my reputation with the judges.]

The judge noted "Ms. Moriello had specifically asked for permission to come into a private confidential asylum hearing which is very rarely allowed. And I assumed it was so that she could learn something from it. The entire time that Ms. Moriello was sitting in my courtroom I did not see her paying attention to what was going on with the attorney or with the witness. She was pretty much non-stop glued to her cell phone and she was texting away, and I found it to be very distracting. I also found it to be very disrespectful given that she had asked for permission to sit in on this very sensitive matter, and she was not paying attention."  He asked her to stop using her phone because it was distracting to the current hearing.  She again refused.

The hearing continued and now TWO bailiffs were attempting to persuade Moriello to stop using her phone or conversely leave the courtroom.  She continued to refuse.  Eventually the police were called and the judge recessed the hearing.  While the hearing was in recess, Moriello continued to type on her phone.  The police escorted her out of the courtroom and out of the courthouse.  

A complaint was filed against her, with a maximum penalty of 30 days in jail and a $5000 fine.  The government offered to settle the case without an admission of guilt, for a fine of $300.  Moriello rejected the offer and demanded a trial.  She filed several motions to dismiss the charges, all of which failed.  After trial, she was found guilty and fined $2500.

This is my favorite paragraph of the case:

"[O]ur review is limited to whether Moriello had fair notice that the regulations proscribed her conduct. Moriello argues that neither regulation defines which individuals at the court facility an ordinary citizen must obey and under what circumstances. Yet any person of ordinary intelligence would understand that the regulations prohibit the repeated refusal to cease distracting conduct in a courtroom during ongoing immigration proceedings as directed by both the presiding immigration judge and the uniformed bailiff assigned to that courtroom. Indeed, Moriello’s behavior was so disruptive as to prompt Judge Pettinato to call a recess and PSO Bridges to seek assistance from one additional PSO and two additional CMPD officers to remove Moriello from the courtroom."

The opinion ends with:
"It should come as no surprise that immigration judges and courtroom bailiffs have the authority to reasonably control the conduct of persons within their courtrooms. For the foregoing reasons, the district court’s judgment is Affirmed."

Do you agree with the court's conclusion?  Why or why not?