Category Archive: Atlanta Law

Social Media Litigation: Free Speech or Censorship?

In 2017 now-retired Supreme Court Justice Anthony Kennedy noted in an opinion on a First Amendment case before the Court that the impact of social media in the cyber age was revolutionary. Indeed, Justice Kennedy went further to note it was one of the most important places to exchange ideas and likened it to a public square or park. The case was Packingham v. North Carolina and it reflected Justice Kennedy’s position that the public forum doctrine should evolve with the times, and not leave new forums of debate to remain unprotected.

 

The Legal Battleground

 

The question now is where does this leave the future of free speech in the context of social media. As communication evolves so do standards of private platforms, attempts at censorship by government actors, and the rise of extremist speech – all happening in the world of digital media.

 

Government blocking users: Government officials removing, or even blocking, critical comments online has become more and more prevalent. Another example of this is the blocking of speakers using critical language on Twitter feeds or comment pages on government websites. These actions violate the principles found in the landmark 1964 First Amendment case, New York Times Co. v. Sullivan.

 

Private censorship of speech: Much of social media’s censorship, however, is not initiated by the government but rather by private entities – specifically, the social media companies themselves. These platforms monitor content that violates their own terms-of-service agreements which, in turn, are reacted to by outcries of censorship. Recent examples include a controversial radio show host being banned from Facebook, Apple, and Youtube for engaging in hate speech.

 

Policing extremist content: Private entities, unlike the government, are not subject to First Amendment constraints. Accordingly, their obligation to regulate private expression that calls for violence or advocates hate is unknown. The First Amendment to the U.S. Constitution protects hate speech, unless it crosses into narrow unprotected categories of speech. These include incitement to imminent lawlessness, true threats, or fighting words.

 

As can be seen, the age of digital media continues to evolve. Not just by the platforms that are available, but by the public’s use of this platform, which is becoming more global and more polarized as issues are easily debated by millions online. The question is how quickly the law will catch up to the digital age and how, exactly, it should approach these important concerns.

 

For more information on free speech, visit the U.S. Court’s website or The Freedom Forum Institute.

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Things to Consider When Deposing an International Witness

flights Things to Consider When Deposing an International Witness

Deposing a witness is a headache. There is coordination, fees, preparation, and numerous other things to consider. Deposing an international witness can be even worse. In addition to the standard procedures you have to undertake, there are other things to consider as well. What are the internal laws of the witness’s home country? Do you need an interpreter? Must you first submit a request through the Hague Evidence Convention?

While difficult, international depositions are by no means impossible. Proper preparation, like every other stage of litigation, is the key.

In addition, here are some helpful things to consider:

  • What local laws are there where the witness is?
  • Do you need a visa for you and the court reporter to perform the work in the foreign country?
  • What oath requirements are there?
  • Do you have to make travel arrangements for a diplomatic officer from a consulate?
  • Can you compel testimony if the witness is unwilling?
  • How can you reserve a location? Can this be done by video-conference?

Some countries strictly forbid pre-trial discovery, while others allow it in limited circumstances. Further, if the country is a member of the Hague Convention, that adds another layer of difficulty.

Certain processes can be used to get evidence without a deposition. Things such as letters rogatory and letters of request can be used. Thankfully, if you only need documentation, this is a much easier procedure. But, they can be time consuming and expensive.

However, you can tailor requests to your needs. It is important to talk to an expert in this area to determine what is right for your situation. Preemptively, the client should be warned that a substantial expense is forthcoming. Finally, be careful to not go on a fishing expedition.

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Damages for Insurer’s Breach of Duty to Defend Not Capped, Nevada Supreme Court Rules

Last year, the Nevada Supreme Court issued a decision on whether or not under state law an insurer’s failure to defend – but not acting in bad faith – makes it liable for all losses resulting from the breach or just up to the policy limits plus costs. The court found an insurer’s liability is not capped at the policy limits.

The Case

After suffering brain injuries as a result of being struck by a truck, the accident victim and his guardian filed a personal injury lawsuit. The defendant, who used the truck for both personal and business purposes, was insured under a Progressive car insurance policy with a $100,000 personal auto liability policy limit. His company was insured under a commercial liability policy with Century Surety that had a $1 million limit.

Century determined the accident was not covered because it did not occur while the defendant was driving in the course and scope of his employment. The victim and guardian sued the defendant and his company claiming the accident was work-related. Century refused to defend the company. Both the owner and the company defaulted in the action. Then, the defendant and his company entered into a settlement agreement with the victim and guardian. Part of the agreement was that they would not enforce a judgment against the defendant and his company if the company assigned its rights against Century to them. The Court entered a default judgment concluding that the accident happened in the course and scope of the defendant’s employment with the company. The victim and guardian then filed suit against Century in state court, which was removed to federal court.

The Decision

The court found that Century did not act in bad faith by failing and refusing to defend the owner’s company but did breach its duty to do so. Accordingly, the company was entitled to recover damages in excess of the Century policy limit for the breach and that the default was a foreseeable result of the breach. The federal court specifically noted that bad faith was not required to impose liability above the policy limits.

The Nevada Supreme Court answered a certified question by the federal court, agreeing with its decision although noting this is the minority view. The court reasoned that, because the duty to defend is contractual, a breach of this duty gives rise to liability for consequential damages above and beyond the policy limits.AutoAccident-300x200 Damages for Insurer’s Breach of Duty to Defend Not Capped,  Nevada Supreme Court Rules

The case is Century Surety Company v. Andrew, Case No. 73756 (Nev. Dec. 13, 2018).

AutoAccident-300x200 Damages for Insurer’s Breach of Duty to Defend Not Capped,  Nevada Supreme Court Rules0

Justice John Paul Stevens Dies at 99

140421-supreme-court-stevens-jms-1854_2d189ceecba217b96a3d2474248ea8a9.fit-760w-300x231 Justice John Paul Stevens Dies at 99

Former Supreme Court Justice John Paul Stevens has passed away at the age of 99.

Justice Stevens, born on April 20th, 1920, served on the Supreme Court for 35 years until retiring in 2010.  He was replaced by Justice Kagan.

Originally appointed by President Gerald Ford, Justice Stevens was a registered Republican but gradually became one of the more liberal Justices on the Court. His notable opinions include Massachusetts v. EPA, Hamdan v. Rumsfield, and he wrote dissents in Texas v. Johnson and D.C. v. Heller.

 

140421-supreme-court-stevens-jms-1854_2d189ceecba217b96a3d2474248ea8a9.fit-760w-300x231 Justice John Paul Stevens Dies at 990