News-Gatherer not Nightcrawler: District Court Denies NYPD’s Motion to Dismiss Photojournalist’s First Amendment Complaint

The U.S.  District Court in Manhattan recently allowed a photojournalist’s complaint against the New York Police Department (NYPD) and City of New York to go forward.  In Jason B. Nicholas v. The City of New York, 15-CV-9592, the photojournalist-plaintiff alleged that the NYPD’s and City’s revocation of his press credentials violated his First Amendment and Fourteenth Amendment rights.

Nicholas recounted a series of encounters with the NYPD that led to the revocation, including an altercation with a retired NYPD detective while on assignment for the New York Daily News.  On multiple occasions, Nicholas refused to stay in an NYPD-imposed “press pen,” resulting in his press credentials being seized.  In the most recent incident, while photographing a rescued worker being loaded into an ambulance on-scene at a building collapse in Manhattan, Nicholas’s credentials were seized and revoked by the NYPD for allegedly not being in the press pen near the scene, although he alleges that other photographers were outside of the press pen and operating unimpeded.  The credentials were not returned until nearly eight months later.

Refusing to dismiss Nicholas’s complaint, the Court held that he had stated a viable claim for violation of his First Amendment rights.  The Court reiterated that “under the First Amendment, press organizations have a . . . right of access to newsworthy events in their capacity as representatives of the public and on their own behalf as members of the press.” The Court observed that “[e]qual press access is critical” to news-gatherers, citing case law extending protections against content-based or arbitrary exclusions.

The Court also allowed Nicholas’s due process claim, finding he had sufficiently alleged facts to show he had a protected interest in his press credentials; he was deprived process for revocation of his protected interest by the NYPD’s establishment of a “frozen zone” post-exigency; he was injured as a result of an official policy, custom, or practice of the municipality; and he was in danger of future harm, as evidenced by the pattern of multiple revocations of his press credentials by the NYPD.

Commentators and scholars have pointed to this recent decision, as well as decisions dating back decades upholding First Amendment claims by journalists excluded from covering public officials, including a case from the District of Columbia Circuit that found it impermissible to exclude White House press passes in a content-based or arbitrary fashion.

For more information, please contact Kathleen Barnett Einhorn, Esq., Chair of the Firm’s Complex Commercial Litigation Group, at keinhorn@genovaburns.com or Jennifer Borek, Esq., Partner in the Complex Commercial Litigation Group, at jborek@genovaburns.com.

Procedural Issues May Determine Immediate Fate of President’s Executive Order Before Diverse Panel of Ninth Circuit Judges

The near-term fate of President Trump’s Executive Order barring entry from seven Muslim-majority countries was before the Ninth Circuit Court of Appeals on February 7, 2017.  The Court must decide whether to stay a Temporary Restraining Order, or “TRO,” entered by U.S. District Judge James L. Robart, stopping enforcement of the Executive Order in response to a challenge by the States of Washington and Minnesota.  The three judges on the panel exemplify judicial diversity: Hon. William C. Canby, Jr., is an 85-year old Carter appointee based out of Phoenix; Hon. Richard Clifton is a 66-year old George W. Bush appointee from Hawaii; and Hon. Michelle Friedland is a 44-year old Obama appointee from San Francisco.

Although many controversial and politically charged issues are ultimately at play, the oral argument stands as a reminder to all that sometimes procedural issues are outcome determinative.  Washington’s Solicitor General Noah G. Purcell, representing the two plaintiff states, explained that a TRO is not normally appealable to the Circuit Court unless it is functionally a full preliminary injunction.  Thus, he urged the Court to consider the Government’s application as one seeking a writ of mandamus, under which the Court may only overturn a district court decision in the most extraordinary of circumstances.   And although the states had a heavy burden to obtain the TRO in the first place, the panel was quick to point out that it was the Government that was seeking a stay of the District Court’s TRO and the Government, therefore, bore the burden of persuading the Court that a stay was necessary.

On the merits, both sides faced tough questions. All three judges questioned Department of Justice Attorney, August E. Flentje, on whether there was any evidence supporting the Government’s assertion that there would be “irreparable harm” if the Executive Order were not allowed to go into effect. The Government, the judges observed, was hard pressed to point to a single example in the recent past of an entrant from one of the seven banned countries that had been arrested for terrorism related activities.  For his part, Mr. Purcell was peppered with questions about whether the Executive Order is different from other immigration orders, like President Reagan’s ban on entry by most Cuban immigrants.

The Ninth Circuit panel took the case under advisement, noting its understanding of the time sensitive nature of the issue and the need for a prompt decision.

For more information, please contact Kathleen Barnett Einhorn, Esq., Chair of the Firm’s Complex Commercial Litigation Group, at keinhorn@genovaburns.com or Jennifer Borek, Esq., Partner in the Complex Commercial Litigation Group, at jborek@genovaburns.com.

Supreme Court to Review Whether “Offensive” Names Can Be Trademarked

The U.S. Supreme Court agreed today to review the Federal Circuit’s decision to strike down the Lanham Act’s ban on “disparaging” trademarks.  The case, Lee v. Tam, No. 15-1293, involved an Asian American dance-rock band’s attempt to trademark their name THE SLANTS. The U.S Patent and Trademark Office (USPTO) refused, citing the Lanham Act’s prohibition on “disparaging” trademarks. The Federal Circuit held that this prohibition violated trademark applicants’ First Amendment Rights. (See Litigation Law Blog’s previous post about the Federal Circuit’s decision from December 23, 2015.)

The Supreme Court’s decision could impact the more famous battle over an attempt to cancel the trademark registration for the NFL’s Washington Redskins as disparaging to Native Americans.

In the Washington Redskins case, a federal district court had ruled that the football team’s trademark disparaged Native Americans.  The team had appealed the case to the Fourth Circuit Court of Appeals, which was scheduled to hold oral argument in December.  On October 18, 2016, the Fourth Circuit agreed to stay consideration of the appeal until the Supreme Court decides Lee v. Tam.

For more information on the Lanham Act or the Supreme Court’s grant of certiorari in Lee v. Tam, please contact Kathleen Barnett Einhorn, Esq., Chair of the Firm’s Complex Commercial Litigation Group, at keinhorn@genovaburns.com or Jennifer Borek, Esq., Partner in the Complex Commercial Litigation Group, at jborek@genovaburns.com.