Judge Koeltl: Swedish Foreign Ministry Immune from Chauffeur’s Discrimination Claims

In an opinion yesterday, Judge Koeltl dismissed discrimination and retaliation claims from a chauffeur for the Swedish foreign ministry, finding that the case did not fall within the “commercial” exception to sovereign immunity:

In his capacity as a chauffeur, the plaintiff was responsible for transporting the Swedish Ambassador and the Ambassador’s family, Swedish diplomats and their families, and even members of the Royal Family of Sweden. The defendants’ employment of the plaintiff as a full-time chauffeur for the Mission entrusted the plaintiff with the safe transport of Swedish dignitaries, an activity integral to effecting the governmental function of the Mission. A sovereign’s decisions on how best to address the safety concerns of government officials are peculiarly sovereign because the failure to protect or safeguard a sovereign representative, such as an ambassador or a titular head of state, can have extremely adverse consequences for the sovereign nation. The plaintiff’s employment relationship was non-commercial because it was sufficiently intertwined with the defendants’ governmental function.

Challenge to “We Shall Overcome” Copyright Survives Motion to Dismiss

In an opinion yesterday, Judge Cote granted in part and denied in part a motion to dismiss a case challenging the copyright to “We Shall Overcome,” the unofficial anthem of the U.S. civil rights movement.  (See our prior post on the case here.)

The defendant copyright owners argued that the copyrighted song was sufficiently different from songs in the public domain to merit copyright protection as a matter of law, but Judge Cote found that the question was not so clear that it could be resolved on a motion to dismiss.  She also found that there fact questions as to whether the original copyright was obtained by fraud: Continue Reading

Judge Oetken: Lawyer Cannot Sue Internet Search Engines That Index Negative Articles

In an opinion yesterday, Judge Oetken ruled that internet search engines are immune from liability under the Communications Decency Act (CDA) for indexing websites with negative articles about the plaintiff, a lawyer:

Courts have interpreted the CDA to give search engines broad immunity from defamation and other related causes of action resulting from their aggregation and republication of third-party content.

. . .

Because Defendants were acting only as publishers of sites whose content caused [the plaintiff’s] alleged injury, the CDA immunizes Defendants from liability. And the CDA’s broad protection for internet publishers also protects Defendants from any obligation to remove or de-index any links.

The Court is sensitive to the deep personal harms that can result from hurtful information posted on the internet. But the CDA prevents individuals from “su[ing] the messenger.”

Judge Rakoff Bemoans “Insidious Trend” of Ordinary Citizens’ Decreasing Access to Courts

Judge Rakoff has published in The New York Review of Books a piece entitled Why You Won’t Get Your Day in Court, in which he describes several factors that have caused ordinary citizens to have less and less access to courts.  He argues, for example, that the Supreme Court’s decision in AT&T v. Concepcion, which upheld mandatory arbitration clauses with class action waivers, treated the Seventh Amendment’s right to a jury trial like an “outmoded procedure that could be forfeited in the interest of saving time.” Continue Reading

Judge Castel Denies Injunction Against Enforcement of “Ballot Selfie” Ban

Today, Judge Castel denied an attempt to enjoin the enforcement of New York’s Election Law § 17-130, or the so-called “ballot selfie” ban.  Judge Castel found that the state’s interest in protecting against voter fraud and intimidation by preventing voters from revealing the content of their ballots (even if through Instagram) was a reasonable First Amendment restriction: Continue Reading

Judge Swain: Bare Allegation that Courthouse Contractor Was Underpaid Does Not Satisfy Rule 8

In an opinion yesterday, Judge Swain dismissed a case brought by a subcontractor who worked on the SDNY courthouse and claims to have been underpaid by $20 million.  She found the complaint lacked even the most basic details required under Rule 8:

[The plaintiff]  alleges generally that it believes it is owed more than $20,000,000 for . . . additional work, but the Complaint contains no specific factual allegations relating to the nature of the additional work and expenses, or the calculation of this additional sum  . . . .

A broad, unsupported, and conclusory statement that a defendant owes more money than was paid under a contract is precisely the type of ‘naked assertion’ of a claim that does not suffice . . . .

Sixth Circuit Echoes Judge Castel’s Timing Concern in Refusing to Immediatly Enjoin “Ballot Selfie” Ban

In an opinion this afternoon, the Sixth Circuit refused to block Michigan’s “ballot selfie” ban, and, in doing so, echoed the very same concern from Judge Castel on Wednesday (covered in this post, immediately below), about delay in bringing suit:

One hundred and twenty-five years ago, Michigan enacted a law designed to protect the secret ballot by forbidding voters from exposing their marked ballots to others. Nine years ago, Apple introduced a cell phone capable of taking photographs and uploading them to the Internet. Thirty-two days ago, Joel Crookston sought a preliminary injunction to prevent the State from enforcing the Michigan law in the upcoming election so that he could take a “ballot selfie” with his cell phone and post it on social media. Four days ago, the district court granted his motion, which state officials immediately asked us to stay. Timing is everything. Crookston’s motion and complaint raise interesting First Amendment issues, and he will have an opportunity to litigate them in full—after this election.

Judge Castel Expresses Skepticism of Delay in Application to Enjoin “Ballot Selfie” Ban

On Wednesday, a new complaint sought a TRO and preliminary injunction against a law banning so-called “ballot selfies” on the ground that the law violates the First Amendment.  According to the complaint, “Taking a photograph of a filled out ballot is a powerful political statement that demonstrates the importance of voting. Without the photograph, the message loses its power.”

Judge Castel denied the TRO and scheduled a preliminary injunction hearing for Tuesday.  His order expressed concern with the timing of the application:  “The statute in question was last amended in 1991.  Cell phone cameras have been prevalent since at least 2010.  Plaintiffs should submit an affidavit why plaintiffs waited 13 days before the election to bring this application.”

FOIA Suit Seeks Disclosure of Law Enforcement Surveillance of Black Lives Matter Movement

A complaint filed yesterday seeks to enforce a FOIA request for data on the federal government’s surveillance of the activities of the Black Lives Matter movement.  The complaint argues that the monitoring may “chill valuable public debate about police violence, including the use of deadly force, criminal justice, and racial inequities” in violation of the First Amendment, and that the government’s “[d]esire for secrecy should not shield potential constitutional violations.”

A judge has not yet been assigned.