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FCC's Net Neutrality Rules Struck Down by D.C. Circuit

A federal appeals court on Tuesday struck down the FCC’s open Internet rules, in a ruling that could give broadband providers more room to charge content companies for faster speeds.

The U.S. Court of Appeals for the District of Columbia Circuit ruled (see full opinion below) that the FCC lacked the authority to impose anti-discrimination rules because it had failed to classify broadband Internet as a common-carrier service.

The ruling is a blow to the concept of net neutrality, and opens the door for Verizon (and other Internet service providers) to offer managed services or other arrangements where content providers could pay to increase the speed to their content. The Wall Street Journal reports that Verizon (the plaintiff in this case) has indicated it would pursue such an arrangement if it was permitted to do so.

The FCC rules were designed to ensure Internet service providers treat similar content on broadband pipes equally. By enforcing net neutrality, the court found, the agency was imposing rules that didn’t apply to carriers.

"Birther" publisher and founder of conservative website WorldNetDaily, Joseph Farah had his defamation suit against Esquire Magazine dismissed, with the Court upholding the publication's right to political satire.

The suit began in June 2011, when Farah and author Jerome Corsi sued Esquire for running a parody article regarding the release of Corsi's newest book entitled "Where's the Birth Certificate? The Case that Barack Obama is not Eligible to Be President."

Esquire's offending article, penned by journalist Mark Warren, lambasted Corsi and Farsi -- the book's publisher -- with a fake news story about Farsi pulling the book from shelves, denying its existence, and offering refunds.

The D.C. Circuit Court of Appeals confirmed on Tuesday (see below) that Farah and Corsi had no case for defamation, based on the fact that the article was clearly satire and "satirical speech enjoys First Amendment protection."

Considering the article in context, the Court denied that a reasonable reader could have mistaken the article for "real news." In addition, commenting on Farah and Corsi's beliefs that President Obama is ineligible for the presidency (the "Birther" mindset) is also protected political speech.

Airline Lawsuit Over Sex-Toy Prank Survives at 5th Cir.

A lawsuit against an airline for allegedly taping a sex toy to the top of a checked bag should survive a motion to dismiss, the Fifth Circuit has ruled.

The complaint for intentional infliction of emotional distress, invasion of privacy, and negligence can proceed, the 5th U.S. Circuit Court of Appeals ruled in an unpublished opinion (attached below).

The lawsuit claims the sex toy had been removed from their luggage, covered in a greasy foul-smelling substance and taped to the top of one of their bags.

The bag was circulating on the luggage carousel at the Norfolk Airport when the travelers discovered it, the ABA Journal reports. The plaintiffs argue that airline employees targeted them because they are gay men.

The defendants -- United Continental Holdings, Inc. and Continental Airlines -- argued the plaintiffs' suit was preempted by Article 17 of the Montreal Convention, which governs airline liability, including liability for damage to baggage. But the 5th Circuit disagreed.

"The alleged misconduct in this case simply does not relate to any damage to plaintiffs' duffel bag ... rather, plaintiffs seek a remedy for the way in which their bag was utilized to inflict personal injury," the court ruled.

The case was remanded to the U.S. District Court in the Southern District of Texas.

A California law that bans the sale of foie gras made from force-feeding birds has been upheld by the 9th Circuit Court of Appeals.

The 2012 California foie gras law prohibits the sale of products made from the force-feeding of birds to enlarge their livers. Foie gras is a delicacy featuring the fatty liver of a force-fed goose or duck.

A three-judge panel held that the lawsuit filed by foie gras producers was unlikely to succeed on constitutional grounds. Legally speaking, the lawsuit is being consistently shot down by federal courts in California.

The plaintiffs appear undeterred and vow to continue the legal fight.

"This isn't like fireworks, nobody is being harmed by foie gras," Marcus Henley, operations manager of a New York farm, told The Associated Press. He also noted some California consumers continue to legally order foie gras online.

The video game industry is sure to take notice after a federal appeals court ruled that Electronic Arts can be sued by a former college quarterback who alleges EA stole his likeness for its popular “NCAA Football” game.

Ryan Hart, who played for Rutgers from 2002 to 2005, may pursue his lawsuit against EA on allegations that the video game giant misappropriated his likeness for the popular video game.

The 2-1 decision (attached below) was delivered Tuesday by a panel of the U.S. Circuit Court of Appeals for the Third Circuit. It reversed a district court decision which held that the depiction of college players in the video game was protected by the First Amendment right to free speech.

Hart sued EA in 2009, alleging it violated his right of publicity by using his likeness in the 2004, 2005 and 2006 installments of the “NCAA Football” game. The game’s quarterback shared Mr. Hart’s number, height, weight, helmet visor and the left wrist band he regularly wore in real life.

To earn a First Amendment shield, Electronic Arts had to show that it had transformed Mr. Hart’s identity to a significant degree. The majority of the appeals court panel held that EA had not done so.

“The digital Ryan Hart does what the actual Ryan Hart did while at Rutgers: he plays college football, in digital recreations of college football stadiums, filled with all the trappings of a college football game,” Circuit Judge Joseph Greenaway wrote for the majority. “This is not transformative.”

Meanwhile, the Ninth Circuit is considering a similar lawsuit filed by former Arizona State quarterback Sam Keller and other former players.

Varsity Athlete Can't Sue University for Being Cut from Team

Being cut from a team and losing your athletic scholarship is not grounds for a lawsuit.

That is how the U.S. Court of Appeals for the Sixth Circuit has ruled after a college basketball player sued her university and coach after losing her athletic scholarship.

The plaintiff, Brooke Elizabeth Heike, was awarded a scholarship by Central Michigan University. When she lost her scholarship she decided to seek legal relief.

DC Circuit Rejects Challenge to DC Gun Laws

The DC Circuit has upheld the gun laws passed by the District of Columbia after the Supreme Court struck down prior DC firearm regulations. The laws at issue in the suit imposed registration requirements and prohibited assault weapons and high-capacity magazines. The court found that the laws did not violate the Second Amendment.

Winklevoss Petition for Rehearing en Banc

Cameron and Tyler Winklevoss and Divya Narendra have filed a petition for a rehearing by the entire Ninth Circuit Court of Appeals after a three-judge panel of the court ruled that the settlement agreement between the parties and Facebook was valid and enforceable. The Winklevosses and Narendra had challenged the agreement, claiming that Facebook had committed fraud during the negotiations. The original lawsuit stemmed from the Winklevosses' and Narendra's assertions that the founder of Facebook, Mark Zuckerberg, stole the idea for the social network from them while a student at Harvard University.

Ninth Circuit Tosses CIA Rendition Claims Citing State Secrets

Yesterday, the Ninth Circuit Court of Appeals affirmed the dismissal of all claims by five plaintiffs who claimed to have been victims of the CIA's Extraordinary Redition Program. Specifically, the men sued Jeppesen Dataplan, Inc., a subsidiary of Boeing Company which the plaintiffs allege provided flight planning and logistical support services to the aircraft and crew used to transport the plaintiffs to detention facilities in Afghanistan and Morocco. At these facilities and others, plaintiffs allege they were interrogated, tortured and detained for multiple years. According to the en banc decision, state secrets privilege requires the court to dismiss the case "because there is no feasible way to litigate Jeppesen's alleged liability without creating an unjustifiable risk of divulging state secrets."

The government argued that four categories of information are state secrets which must be protected from this lawsuit:

  • "information that would tend to confirm or deny whether Jeppesen or any other private entity assisted the CIA with clandestine intelligence activities;"
  • "information about whether any foreign government cooperated with the CIA in clandestine intelligence activities;"
  • "information about the scope or operation of the CIA terrorist detention and interrogation program;" and
  • "any other information concerning CIA clandestine intelligence operations that would tend to reveal intelligence activities, sources, or methods."

The Ninth Circuit stated that secrets within one or more of these categories would be threatened should the lawsuit proceed. It would not say which, for fear of disclosing state secrets.

Ninth Circuit Grants Stay in Prop 8 Litigation

The Ninth Circuit Court of Appeals granted a stay in the Prop 8 same sex marriage litigation. The order prevents enforcement of the District Court's order striking down Prop 8, until the Ninth Circuit hears appeals in the case. The Ninth Circuit set a briefing schedule for October and early December, and specifically requested that Prop 8 sponsors address the question of whether they have standing in the case. (See Professor Vikram Amar's commentary in FindLaw's Writ for more on the issue of standing in the Prop 8 litigation.)