Atlanta Lawyers

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.

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.

Statute of Limitation versus Statute of Repose

Both statutes of limitations and statutes of repose are state laws that govern the time limits allowable under the law for a plaintiff to file a civil lawsuit. There are, however, a few key differences that every attorney should know.

Statute of Limitations

A statute of limitations is the time limit that a state places on a plaintiff’s right to seek a legal remedy by filing a lawsuit after suffering some type of harm. These time frames are generally expressed in years and the deadlines set often depend upon the type of case that is being filed in court. Of note, once the statute of limitations deadline has passed, the case is forever barred. There are two different types of statutes of limitations — those that apply to criminal cases and those that apply to civil cases. Most statutes of limitations apply to civil cases because most crimes, except for petty crimes or misdemeanors, do not have statutes of limitations.

Not only do statutes of limitations have two types, but claims are subject to two different statutes of limitations depending on the court where the case is filed. There are federal statutes of limitations for federal law-governed cases, as well as state statutes of limitations for state law-governed cases. Generally speaking, most state-imposed statutes of limitations range from one to six years. Common statutes of limitations in civil cases include breach of contract, debts, personal injury, libel or slander, property damage, as well as fraud and misrepresentation, to name a few.

Statutes of Repose

 Like a statute of limitations, which sets the time limit a plaintiff can file a lawsuit from the date of the incident, a statute of repose terminates certain legal rights if they are not acted on by a specific deadline. The deadline could be based on the passage of time or the occurrence of a specific event that itself does not cause someone harm or does not give rise to a lawsuit. Generally, statutes of repose apply to specific types of cases that are injury-related. Common cases in which statutes of repose apply include medical malpractice, construction defects, and product liability.

Know Your Deadlines

 If you are handling a lawsuit for a client, be sure to make yourself aware of statutes of limitations and statutes that apply to the case. Each state has its own statutes, so legal research is key.

The American Bar Association (ABA) Journal reports a Florida-based dentist can pursue intellectual property rights of the before-and-after photos of his cosmetic dentistry patients after a federal appeals court reversed a trial court’s decision. The Atlanta-based 11th United States Circuit Court of Appeals reversed a lower court’s decision tossing out a Florida dentist’s claim to establish his before-and-after smile photos of his dental patients had enough originality to get copyright protection. The unpublished May 1st per curiam decision gives the Boca Raton dentist, Dr. Mitchell Pohl, the ability to seek intellectual property rights on those photos of his cosmetic dentistry work, which are displayed on his website.

The Case

Dr. Pohl originally sued after a company named Officite used the dentist’s 2005 photo of a patient’s before-and-after images. Officite used the photos on websites that promoted other dentists’ practices. Last summer, United States District Judge Mark Walker held the photos in question did not have enough “creative spark to merit copyright protection.

The 11th Circuit Court of Appeals disagreed, holding Judge Walker failed to acknowledge some evidence or originality that favored Dr. Pohl’s position. The 11th Circuit reasoned that Dr. Pohl took the before photos when the patient was in the dental chair while the after photos included a photography screen, close-up photos, and under direction to look at the camera and smile. The 11th Circuit highlighted that the United States Supreme Court has set a low bar when it comes to originality; it only requires some slight – or minimal – degree of creativity. When the court looked at the evidence in the light most favorable to Dr. Pohl, it found there was enough for him to proceed with the case. This was because the court found Dr. Pohl had a specific intention on how he wanted the photo to look. Dr. Pohl’s attorney, according to the ABA Bar Journal report, stated he will ask the lower court to rule on the issue of copyright infringement.

The Bigger Picture

The lower court’s decision to toss Dr. Pohl’s copyright infringement claim out last year could have had the potential to disrupt long-standing copyright protection as it has historically been applied to photographs. The 11th Circuit Court of Appeals’ reversal clearly shows the court is not veering from precedent that sets a low bar when it comes to determining originality in this area of the law. To be sure, the input of the author must be factored in when determining originality in intellectual property law. Notwithstanding, the 11th Circuit’s decision also makes it clear that the use of a photograph is not enough to determine whether or not the image is sufficiently original to merit copyright protection.