In a decision with potentially large ramifications, New York Federal Judge LaShann DeArcy Hall won't dismiss a libel suit against "Shitty Media Men" creator Moira Donegan.
Explaining, the judge says it is possible that Donegan created the entry herself. The judge believes that Elliott should be able to explore whether the entry was fabricated. Accordingly, discovery proceeds, which will now put pressure on Google to respond to broad subpoena demands. The next motion stage could feature a high-stakes one about the reaches of CDA 230.
Sorry, Tea Leaf Readers
Back on the first Monday in October, I noted that the United States Supreme Court would be addressing the case of Elane Photography, LLC v. Willock, in which the New Mexico Supreme Court found a violation of that state’s Human Rights Act (which is to say, actionable discrimination) when a privately-held photography company declined to render its services for a same-sex commitment ceremony (note that same-sex marriages have subsequently been recognized in New Mexico).
Today, the United States Supreme Court did in fact take action on the case — by declining to review it. That effectively ends the matter completely. A thought passed my mind that there might be some indication how the Court might address of the Sibelius v. Hobby Lobby case in this denial of certiorari. After all, there is some similarity in that in both cases, a privately-held general business entity invokes their respective owners’ religious beliefs seeking to avoid application of a law.
But after a few moments’ thought, I’m cautious about calling this a hint about that contentious case under deliberation by SCOTUS right now. The Elane Photography case, after all, turns on a question of state rather than federal law. The Religious Freedom Restoration Act invoked by the plaintiffs in the Sibelius v. Hobby Lobby case cannot constitutionally be applied to a state law, City of Boerne v. Flores (1997) 521 U.S. 507, 511, 519. The pre-RFRA case of Employment Division v. Smith 11990) 494 U.S. 872 ) still applies to invocations of the federal free exercise right as against a state law, Christian Legal Society v. Martinez (2010) 561 U.S. ___, ___, 130 S.Ct. 2971, 2993 & n.24, 2995 n.27.
So this doesn’t really tell us much at all about what the Court is thinking about the Hobby Lobby case, only that the Court isn’t going to revisit City of Boerne nor step on the toes of the New Mexico Supreme Court as to an issue of interpretation of state law.
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.