Here are a few recent First Circuit decisions of interest:
1. Glik v. Cunniffe [http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=10-1764P.01A]. Here, the First Circuit holds that a citizen using his phone to film (with audio) an arrest has a clearly established First Amendment right to do so, defeating the police's qualified immunity claim.
The Court notes its previous decision in Iacubucci v. Boulter, 193 F.3d 14 [http://ftp.resource.org/courts.gov/c/F3/193/193.F3d.14.97-1586.97-1585.97-1485.html], among other precedent, as sufficient to give the police a heads up on the unconstitutionality of its conduct in arresting the citizen for the exercise of this right, although that Iacubucci had a different context and emphasis – there, basically the question was a factual one whether the plaintiff's filming of a commission hearing – which the Massachusetts Open Meeting law expressly allows – was disruptive so as to overcome a jury verdict against the police (who apparently didn't appeal any ruling rejecting a qualified immunity claim interlocutorily). The arrests in Iacubucci were for disorderly conduct and disturbing a public assembly. The arrest in Glik was for disorderly conduct and a violation of the Massachusetts wiretap statute which, while broad, still requires an "interception," meaning that you must be furtive about your taping. Since Glik's phone was in plain sight, the wiretap law clearly didn't apply.
There is apparently an unpublished 4th Circuit decision that says the right to tape was not clearly established for immunity purposes, while the Third Circuit said the same in the context of a traffic stop. The First Circuit distinguished the Third Circuit case (a traffic stop is different from Boston Commons, where the arrest occurred); cited Ninth and 11th Circuit decisions as well as district court precedent it said supported the contrary view; and noted that whatever was or was not clearly established in other circuits, this arrest was clearly established as a no go in this Circuit.
2. Sterling v. Nestle [?http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=10-1925P.01A]. In this decision, CJ Lynch sets out a nice primer on antitrust law, and what you need to overcome a summary judgment motion based on lack of standing. The plaintiff couldn't do it here; summary judgment for lack of an antitrust injury was affirmed. This decision reinforces the point in antitrust law that you can't sue just because you are harmed by e.g., the merger of your competitor(s) – you have to show how that harm is an antitrust injury. Just because you may sell fewer widgets doesn't make it an antitrust claim – the plaintiff must show that widget competition itself will be reduced.
3. Sony v. Tennenbaum [http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=10-1883P.01A]. This is one of those copyright infringement suits against youths downloading songs. The jury awarded $22,500 in statutory damages for each wilful infringement, for a total of $675,000. The district court, without ruling on a motion for remittitur or new trial, held that this amount violated the due process clause and reduced the damages for each count 90% to $2,250. The First Circuit said not so fast, you've got to entertain the remittitur first before leaping into the constitutional fray, and so sent it back. In doing so, the Court of Appeals noted that there's a thorny question about whether there's a right to a new jury trial if it's a due process violation when the damages are statutory under the Copyright Act. I'm sure this one will be back –there are a gazillion lawyers on each side. For Sony there is Paul Clement, six other lawyers and the United States and its lawyers. A Stanford legal assistance group and others are on the other side. It looks like every possible challenge was raised and addressed, which CJ Lynch goes through one by one, knocking the ones out that haven't been left for another day after the remand. Stay tuned.
