In an opinion yesterday, Judge Gardephe dismissed a complaint (see our prior coverage here) brought by Liberty Tax Service against the makers of the TV show “Better Call Saul” for depicting an allegedly similar business, “Sweet Liberty Tax Services,” as a criminal enterprise. In the show, the business is run by Craig Kettleman, who had been convicted of embezzlement in an earlier season but then opened “Sweet Liberty Tax Services” with his wife after being released from prison.

Under Second Circuit law, using a mark in this way is protected so long as it is artistically relevant and not explicitly misleading. Judge Gardephe agreed with the Defendants that the “Sweet Liberty” name was artistically relevant insofar as it was intended to be “richly ironic”:Continue Reading Judge Gardephe: Better Call Saul’s Fictional “Sweet Liberty” Tax Firm Does Not Infringe Rights of Similarly-Named, Real Business

In an opinion Tuesday, Judge Carter issued an injunction against New York’s newly-enacted online hate speech law (see our prior coverage here).

The law would require social media platforms to develop policies for addressing, and responding to user complaints about, “hateful conduct.”  Judge Carter found that, in doing so, the law impermissibly compelled the challengers — Rumble and other “pro-free speech” online platforms — to engage in speech with which they disagreed:Continue Reading Judge Carter Enjoins New York’s New Online Hate Speech Law on First Amendment Grounds

A jury returned a verdict yesterday of approximately $130,000 against Mason Rothschild, the creator of a series of non-fungible tokens, or NFTs, associated with digital images of Hermés’s “Birkin” handbags covered in fake fur (see our prior coverage here).

Rothschild argued that the NFTs were protected artistic expression under the First Amendment.  Judge Rakoff denied both sides summary judgment as to that and other issues, and ultimately instructed the jury that the First Amendment question turned on whether Rothchild was intentionally trying to confuse customers and thereby capitalize on Hermés famous brand, or instead created the project for artistic reasons:Continue Reading Jury: “MetaBirkins” NFTs Violate Trademark Rights of Handbag Maker Hermés

Judge Carter will hold a preliminary injunction hearing next week in a case challenging, on First Amendment grounds, a new New York law (N.Y. Gen. Bus. L. § 394-ccc) that requires social media platforms to develop policies for addressing, and for responding to user complaints about, “hateful conduct.”

The challengers are operators of online platforms who argue that they should not be forced to police what the state vaguely defines as “hateful” conduct. Merely having to separately define what is “hateful” conduct, and provide special treatment to users who complain about conduct meeting that definition, amounts to an endorsement of the State’s views, according to the challengers:Continue Reading Judge Carter to Hold Hearing Next Week on Whether to Enjoin New York’s New Online Hate Speech Law

In an opinion Monday, Judge Marrero ruled that the First Amendment protected the right of a group of law professors to publish online their attorney grievance complaints against prosecutors in Queens who had been involved in alleged prosecutorial misconduct. The professors received a letter from New York City’s Corporation Counsel claiming that the disclosure of their complaints violated a statute protecting the confidentiality of grievance proceedings.

Judge Marrero, quoting an earlier Second Circuit case, found that the effort to deter the law professors was unlawful: “Penalizing an individual for publicly disclosing complaints about the conduct of a government official strikes at the heart of the First Amendment.” 
Continue Reading Judge Marrero: First Amendment Allows Attorney Grievance Complainants to Publish Their Own Complaints, Notwithstanding Confidentiality Statute

In an opinion Tuesday, Judge Crotty preliminarily enjoined New York State from enforcing unauthorized practice of law (“UPL”) regulations against a non-profit that counsels New Yorkers facing debt-collection actions (see our prior coverage here).

Judge Crotty found that UPL regulations were commonly upheld as regulating conduct, but, as applied to the that the program at issue, the UPL regulations governed speech:
Continue Reading Judge Crotty: Non-Profit’s Advice on Dealing With Debt Collection Actions Is Protected by First Amendment Against “Unauthorized Practice of Law” Regulations

In a complaint filed Tuesday, a non-profit organization and a pastor from the South Bronx sued N.Y. AG Letitia James, alleging that New York’s rules governing the unauthorized practice of law (“UPL”) prevent them from advising low income clients facing debt collection lawsuits, in violation of their First and Fourteenth Amendment Rights.  The non-profit organization plans to train non-lawyers to provide “reliable, free, straightforward, and narrowly circumscribed” advice to low income New Yorkers facing debt collection lawsuits “on a strictly non-commercial basis to ensure that defendants can understand their rights and respond to the debt collection lawsuits against them.”  However, New York’s UPL rules make it a crime and civilly sanctionable to engage in, solicit, or aid in the provision of legal advice by non-lawyers.
Continue Reading Complaint: New York’s Rules on Unauthorized Practice of Law Violate Non-Profit’s First and Fourteenth Amendment Rights

On Friday, Judge Rakoff denied cross-motions for summary judgment in Sarah Palin’s defamation lawsuit against the New York Times. (See our earlier coverage here.) Palin argued that the “actual malice” standard for defamatory statements against public figures was no longer good law or did not apply to this case, while the Times argued that no reasonable jury could find that the allegedly defamatory statements were published with actual malice. The case will proceed to trial next Februrary.
Continue Reading Judge Rakoff Clears Sarah Palin’s Defamation Lawsuit Against NY Times for February Trial

Last week, Judge Cote ruled that a New York’s Penal Law Section 215.50 – a misdemeanor criminal contempt statute that prohibits shouting and display of signage within two hundred feet of a courthouse where that speech concerns a trial ongoing in that courthouse – violated the First Amendment.  The case arose when the defendant distributed pamphlets with information about jury nullification outside the Bronx County Hall of Justice and was arrested after refusing to move outside of the 200-foot perimeter.

Judge Cote found that the act was not sufficiently tailored to meet the state’s purported interest in protecting trial integrity:
Continue Reading Judge Cote Strikes Down New York State Prohibition Against Trial Signage Outside Courthouses, Citing First Amendment