Pokèmon, Go Get a Permit: Free-Speech Suit Ropes in Reactionary County Ordinance

pokemongo2It’s October 2016, and Milwaukee County, Wisconsin residents are massing on sidewalks, around town landmarks, and in public parks, eyes glued to their smartphones as they chase virtual Pokèmon Go characters.

Meanwhile, in the halls of county government, elected officials mull over the implications of this craze.

Some delight at the game’s ability to bring people together and inspire normally sedentary younger residents to get outside. Others, however, wring their hands over complaints of traffic disruptions and unruly teenagers and scheme over how to quell game-creature hunting, or at least how to make money off of it for the county.

One supervisor, deciding that something needs to be done, devises an ordinance. Rather than target the bad behavior of individuals playing the games, the measure imposes a permitting process and fees on augmented-reality-app developers. After several months of debate, the Board of Supervisors passes Resolution 16-637 by a 13-4 vote on February 2, 2017. Continue reading “Pokèmon, Go Get a Permit: Free-Speech Suit Ropes in Reactionary County Ordinance”

WLF Caps off Legal-Studies Series on Commercial Speech with Prof. Martin Redish Interview

CW Summer 2017On July 28, 2017, Washington Legal Foundation published an interview in which Northwestern University Pritzker School of Law Professor Martin H. Redish answered questions on the evolution of commercial-speech protection. This Conversations Withpaper provides a fitting culmination to the series of WLF publications on commercial speech produced in the last six months.

Over the past 46 years, beginning with a 1971 law review article drafted as a Harvard Law School student, Professor Redish’s scholarship has deeply influenced the US Supreme Court’s development of the so-called commercial-speech doctrine. In the Conversations With paper, he discusses the impetus for that article, as well as the High Court’s growing respect for commercial speech.

The WLF publications were meant to provide policy makers at the state and federal levels with a basic understanding of commercial speech and the First Amendment scrutiny courts apply when reviewing restrictions on such speech. The publications, with links to each, are listed below:

 

Philadelphia’s Wage-History Ordinance Faces First Amendment Challenge

 Guest Commentary

By Stephanie J. Peet, a Partner in the Philadelphia, PA office of Jackson Lewis P.C., and Timothy M. McCarthy, an Associate with the firm. Ms. Peet writes for the firm’s Pay Equity Advisory Blog.

The number of jurisdictions considering and enacting legislation that bars employer inquiries about and reliance on job applicants’ salary or wage history has been growing. A legal challenge to the Philadelphia’s ban promises to be instructive and is worth watching.

The Philadelphia Ordinance

 On December 8, 2016, the Philadelphia City Council passed a bill prohibiting employers from inquiring about the wage history of prospective employees (the “Ordinance”). The Ordinance, intended to alleviate “gender-based pay discrimination,” was scheduled to take effect on May 23, 2017. In April, however, the Chamber of Commerce for Greater Philadelphia filed a complaint and motion for a preliminary injunction against the City of Philadelphia and the Philadelphia Commission on Human Relations, ultimately seeking to have the law struck down. The City voluntarily halted enforcement of the Ordinance while the lawsuit is pending. Continue reading “Philadelphia’s Wage-History Ordinance Faces First Amendment Challenge”

Tuned in to the First Amendment: Court Upholds Satellite Radio’s Right to Choose Advertisers

sirius XMBusiness entities have endured increasingly strident criticism of their free speech rights in recent years. Thankfully, the US Supreme Court and most lower federal courts have declined to embrace critics’ ideologically-driven perspective that the First Amendment does not protect corporate speech. Such judicial respect for a business’s speech rights was recently on display in an unusual setting: a contract dispute between Sirius XM Radio and an advertiser. The court decision arising from that dispute, InfoStream Group v. Sirius XM Radio Inc., both demonstrates how the First Amendment can provide an effective defense and underscores the principle that not all speech by commercial enterprises is “commercial speech.” Continue reading “Tuned in to the First Amendment: Court Upholds Satellite Radio’s Right to Choose Advertisers”

Corrosive Legal Uncertainty Remains after DC Circuit’s Rehearing Denial in “Net Neutrality” Case

RothGuest Commentary

By Arielle Roth, The Hudson Institute*

It came as no surprise last week when the US Court of Appeals for the DC Circuit denied the request for en banc rehearing in US Telecom v. FCC, better known as the “net neutrality” case.  As a technical matter, the panel decision upheld the Federal Communication Commission’s 2015 Title II order, which reclassified broadband Internet as a “telecommunications service” and in turn subjected broadband providers to common carriage regulation. Such a grant would have been rare in any event. Further, in the view of Judge Sri Srinivasan’s opinion concurring in the denial of rehearing, the issues were unfit for judicial review in light of the announcement by current FCC Chairman Ajit Pai of a rulemaking to reverse the previous FCC’s order.

On the contrary, it is precisely because the current FCC seeks to undo the rules in question that the DC Circuit ought to have granted en banc rehearing. Continue reading “Corrosive Legal Uncertainty Remains after DC Circuit’s Rehearing Denial in “Net Neutrality” Case”

Department of Labor’s Fiduciary Rule Is Vulnerable on First Amendment Grounds

DOLPromulgated in April 2016, the Department of Labor’s (DOL) highly controversial Fiduciary Rule drastically expands the universe of retirement investment advisors and employees who are deemed to be “fiduciaries” under federal law. Abandoning 40 years of settled statutory interpretation of the Employee Retirement Income Security Act of 1974 (ERISA) and parallel provisions of the Internal Revenue Code (IRC), DOL now maintains that a fiduciary is anyone who provides “recommendations” that are individualized or directed to a specific recipient for consideration in making investment or management decisions with respect to securities or other property of an ERISA plan or an IRA. Continue reading “Department of Labor’s Fiduciary Rule Is Vulnerable on First Amendment Grounds”

Change Coming for SEC’s Controversial Conflict Minerals Rule

Featured Expert Contributor — Corporate Governance/Securities Law

bainbridgeStephen M. Bainbridge, William D. Warren Distinguished Professor of Law, UCLA School of Law.

Section 1502 of the 2010 Dodd-Frank Act required the Securities and Exchange Commission (SEC) to develop disclosure rules requiring public companies to disclose whether their products contained “conflict minerals.” The minerals in question included cassiterite, columbite-tantalite, gold, wolframite, or their derivatives, all of which are used in a variety of common products, including computers, smart phones, and other everyday technology. In order to be deemed conflict minerals, they had to be sourced from the Democratic Republic of the Congo (DRC) or its adjoining countries. Continue reading “Change Coming for SEC’s Controversial Conflict Minerals Rule”