Judge Castel Upholds New York’s “Ballot Selfie Ban” After Bench Trial

Today, Judge Castel formally upheld New York State’s “ballot selfie ban” at the conclusion of a bench trial.  The ruling comes after Judge Castel denied a preliminary injunction shortly before the November 2016 election (see our previous coverage here).

Considering whether the law violated the First Amendment, Judge Castel found that the law survived strict scrutiny because it promoted the state’s interest in preventing vote buying, voter intimidation, and other forms of voter coercion:

After New York’s adoption of the Australian ballot reforms vote buying and voter intimidation virtually disappeared.  Yet they did not disappear completely—a handful of vote buying schemes have been uncovered in the last several years.  A federal prosecution in this district against the perpetrators of a vote buying scheme is still ongoing.  The lack of evidence of widespread vote buying and voter intimidation in contemporary New York elections does not mean that the state no longer has a compelling interest in preventing these evils.  As the Supreme Court has observed, “it is difficult to isolate the exact effect of these laws on voter intimidation and election fraud. Voter intimidation and election fraud are successful precisely because they are difficult to detect.”

Judge Castel also noted that, in the alternative, the law was a permissible content-based restriction because a voting booth is a non-public forum:

Because polling sites are opened by the government only for the specific purpose of enabling voters to cast ballots and are not historically open for public debate or speech generally, and the necessary limits on speech within polling sites to ensure orderly and efficient elections, the Court concludes that they are non-public fora . . . . It is true that voters could take a photograph of themselves with their marked ballots at the polling site and then upload that photograph to social media once outside the polling site, say, in Times Square, a quintessential traditional public forum, or in the privacy of their own home. But the posting of a photograph of a marked ballot to social media requires two steps: the taking of the photograph and the electronic transmission of that photograph. Because the first step must take place in a non-public forum and the second step may take place in a non-public forum, it is appropriate to assess the impact of the statute as a restriction of speech taking place in a non-public forum.

Judge Failla: Law Schools Steered Students Away From Bar Exam Prep Company On Merits, Not Because Schools Colluded With Barbri

In an opinion today, Judge Failla dismissed entirely a case brought by a bar exam company referred to as “LBE” that specializes in students with LL.M. degrees.  LBE accused the industry leader, Barbi, of colluding with law schools nationwide to harm its business, but LBE’s own complaint — 78 pages long and with 63 exhibits — actually showed that LBE’s problems were of its own making:

The animating force behind this lawsuit is LBE’s belief that Defendants have conspired to make Barbri the country’s leading — and only — bar review company. But shorn of its internal contradictions and conclusory assertions, the First Amended Complaint does not plausibly support that belief.

Instead, the First Amended Complaint depicts a commercial dispute between two bar review providers: Barbri and LBE. And the First Amended Complaint explains why LBE has lost ground in that dispute. Between 2010 and 2016, foreign LL.M. students from coast to coast complained about the quality of LBE’s courses and the company’s business practices. When those complaints reached the administrations of the New York Law Schools and the Non-New York Law Schools, academic administrators intervened. LBE, in turn, saw its tabling privileges vanish — not because of any collusion between Barbri and the ten law schools named as defendants in this case, but because of the independent (and, it appears, justified) actions of the New York Law Schools and the Non-New York Law Schools.

In short, LBE has not alleged a single cognizable federal cause of action: Its antitrust, civil RICO, and copyright claims all fail.

Second Circuit Revives “Small Group Defamation” Claim By Fraternity Against Rolling Stone

In an opinion this week by Judge Forrest (sitting by designation), the Second Circuit reversed in part Judge Castel’s dismissal (covered here) of claims brought by a University of Virginia fraternity against Rolling Stone magazine over a widely discredit article telling the story of a source named “Jackie” being gang raped at a fraternity party.

The Second Circuit found that the complaint made out a plausible claim of “small group defamation” : Continue Reading

Playwright Prevails in Challenge to Parody of “How the Grinch Stole Christmas!”

Last week, Judge Hellerstein ruled that a parody of “How the Grinch Stole Christmas!” constituted fair use and did not infringe on the defendant’s copyright or related trademarks.  The plaintiff, New York playwright Matthew Lombardo, brought the suit against Dr. Seuss Enterprises over his “one actress 75-minute comedic play featuring a rather down-and-out 45 year-old version of Cindy-Lou Who.”  The plaintiff argued that the play was parody and thus fair use, and Judge Hellerstein agreed:

The key question I must therefore resolve, is whether the Play comments on Grinch by imitating and ridiculing its characteristic style for comic effect, or, as defendant contends, merely exploits the characters, style and themes of Grinch in order “to avoid the drudgery in working up something fresh.” Defendant argues that the Play “does not poke fun of the Seussian rhyming style,” but instead usurps that style in order to sell a commercial work. Nor, according to defendant, does the Play comment on or ridicule the characters and themes of Grinch; it merely “uses Grinch, Cindy-Lou, the Grinch character, and the dog Max as building blocks for a sequential work, featuring those same characters in the Seuss-created settings of Mount Crumpit and Who-Ville.”

Defendant’s assessment misses the mark. The Play recontextualizes Grinch’s easily-recognizable plot and rhyming style by placing Cindy-Lou Who – a symbol of childhood innocence and naivete – in outlandish, profanity-laden, adult-themed scenarios involving topics such as poverty, teen-age pregnancy, drug and alcohol abuse, prison culture, and murder. In so doing, the Play subverts the expectations of the Seussian genre, and lampoons the Grinch by making Cindy-Lou’s naivete, Who-Ville’s endlessly-smiling, problem-free citizens, and Dr. Seuss’ rhyming innocence, all appear ridiculous.

Judge Rakoff: “KinderGuides” to Literature Infringe Copyrights of Original Works

In an opinion last week, Judge Rakoff ruled that children’s illustrated versions of classic novels called “KinderGuides” infringed the copyrights associated with the original works.  He rejected the defendants’ arguments that the removal of adults themes and addition of commentary rendered the publishing of the Guides “fair use”: Continue Reading

Judge Cote: First Verse of “We Shall Overcome” Not an Original Work Subject to Copyright

Last week, Judge Cote granted a motion for summary judgment challenging the copyright for the civil rights anthem “We Shall Overcome.”  Plaintiffs, the We Shall Overcome Foundation, argued that the similarities between the copyrighted song and a 1948 version in the public domain meant that the first verse of the famous song was not sufficiently original to survive a copyright challenge.

Judge Cote agreed, noting the overwhelming evidence of the connection between the copyrighted version of “We Shall Overcome” and older, historical versions: Continue Reading

Judge Sweet: Lynyrd Skynyrd Movie Cannot Proceed

In an opinion this week, Judge Sweet granted a permanent injunction against a film depicting the band Lynyrd Skynyrd, finding that it violated a 1988 consent order limiting the use of the band’s name and songs.  The agreement, originally overseen by Judge Sweet, was entered into by surviving family and band members from a 1977 plane crash that killed the band’s lead singer, Ronnie Van Zant, and other band members.  The film was a collaboration between Cleopatra Records and former Lynyrd Skynyrd drummer Artimus Pyle.

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Judge Rakoff: Sarah Palin’s Allegations Against NY Times Do Not Amount to Necessary Showing of Maliciousness

In an opinion today, Judge Rakoff dismissed Sarah Palin’s defamation suit against the New York Times (see our prior coverage here) because the allegations (even taking into account additional facts from an evidentiary hearing) amounted to a showing of negligence, at best.  The opinion begins:

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Judge Pauley Approves Class Rep Whose Brother-in-Law is Class Counsel

In an opinion Wednesday, Judge Pauley ruled that a securities class action plaintiff, Benjamin Gross, could serve in that role notwithstanding that co-lead counsel for the class, Jack Zwick, is his brother-in-law, and notwithstanding that neither promptly disclosed the relationship: Continue Reading

Judge Failla Warns Against “Creative” Efforts to Evade Page Limits

At the end of an opinion today, Judge Failla issued the following warning:

Before concluding, the Court pauses to express its dissatisfaction with the blatant circumvention of its briefing-length restrictions . . .   The parties . . . are hereby warned that future attempts to evade the Court’s page limits, by relegating entire arguments to the footnotes, or by using other “creative” formatting devices, will not be taken kindly.  Going forward, the parties would do well to seek the Court’s leave to enlarge page limits, rather than attempting to hide their unauthorized enlargements in plain sight.

Similar conduct was the subject of a sanctions order from Judge Marrero in April (see our coverage here).

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