Law Punishing Political Speech Likely Unconstitutional

• Pages: 26-27
• Date: 01 July 2024
• Author: Alenah Luthens
• Subject Matter: Civil Law

with the Eleventh Circuit,” counters

George H. Freeman, New York, NY,

former cochair of the Section’s First

Amendment Media Subcommittee of

the Civil Rights Committee. “Social

media platforms are similar to newspa-

pers with the editorial decision on what

to publish or post,” he adds.

Companies Face

New Penalties for

Improper Data

Collection

By Tiega-Noel Varlack, Litigatio n

News Contributing Editor

A state supreme court has expanded

its state’s Biometric Information

Privacy Act (BIPA) by ruling that each

violation of the BIPA constitutes a

separate injury each carrying a penalty

of $1,000.00 or $5,000.00 per viola-

tion. In so doing, the court adopted a

presumption of harm for consumers,

rather than requiring proof of actual

harm, and permitted multiple dam-

ages claims for successive violations.

This expansion of BIPA protections

increases the risks for companies that

do not carefully safeguard private bio-

metric information or repeatedly vio-

late the BIPA.

In Cothron v. White Castle, an

employee of White Castle f‌iled a pro-

posed class action on behalf of herself

and other similarly situated employees

for violation of the BIPA. The BIPA is an

Illinois statute that regulates the col-

lection, use, and handling of biometric

identif‌iers and information.

In Cothron, the thrust of the plain-

ti’s argument was that White Castle

violated the BIPA by collecting

employee f‌ingerprints and disclosing

them to a third party without consent.

She also advanced the novel argument

that the repeated collection of her bio-

metric data resulted in repeated viola-

tions of the BIPA.

White Castle moved for judgment

on the pleadings on the grounds that

the plainti’s claims were untimely

because they were 10 years old. The

plainti countered that a new claim

accrued each time she scanned her f‌in-

gerprints, and the statute of limitations

had not yet run as to such claims. The

district court agreed with the plainti

and denied the motion.

However, due to substantial dis-

agreement on controlling law, the

district court certif‌ied the order for

immediate interlocutory appeal. The

U.S. Court of Appeals for the Seventh

Circuit accepted the certif‌ication and

considered each sides’ statute of limi-

tation arguments. The Seventh Circuit

court found that the plainti had

Article III standing but certif‌ied the

question of claims accrual to the Illinois

Supreme Court.

The Illinois Supreme Court held that

a separate claim accrues each time a

private entity scans or transmits an

individual’s biometric information in

violation of BIPA sections 15(b) and

15(d). The court, interpreting the BIPA’s

language, held that the penalties exist

to encourage compliance. Although the

court understood that its ruling could

result in a $17 billion judgment against

White Castle, it nevertheless reasoned

that the legislature should review the

policy concerns raised by the ruling

and clear up its intent regarding the

amount of penalties.

The court’s holding that each scan

of an employee’s f‌ingerprint constitutes

a separate violation of the BIPA greatly

increases the potential liability for

companies that use biometric data. A

plainti need not show much to collect

$1,000 or $5,000 per violation because

the injury is presumed. This low thresh-

old for presumed injury could greatly

increase the number of suits f‌iled by

consumers.

“Cothron raises the question of

whether a state legislature is able

to create a presumption of harm in

order to confer Article III standing,”

observes Mark A. Romance, Miami, FL,

cochair of the ABA Litigation Section’s

Commercial & Business Litigation

Committee. “Courts around the coun-

try have recently been evaluating

what harm is enough to satisfy Article

III standing in consumer class action

cases,” he adds.

With careful planning, businesses

may be able to reduce the risk of liabil-

ity by implementing a data collection

security program. “An ounce of pre-

vention is worth $17 billion pounds of

cure,” counsels Ian H. Fisher, Chicago,

IL, cochair of the Litigation Section’s

Class Actions & Derivative Suits

Committee. “Getting a business into

compliance is relatively easy if you con-

sult a lawyer, get releases, make disclo-

sures, and follow safeguards,” Fisher

details.

Companies also need to develop

written policies for the retention and

destruction of biometric data, as well

as to obtain written consent before

disclosing biometric data to third par-

ties. Otherwise, claimants might take

advantage of the BIPA’s structure. “The

[Cothron] majority failed to recognize

the goal of the statute. This creates a

‘perverse incentive’ for plaintis to sit

quietly on violations of BIPA,” Fisher

warns.

Law Punishing

Political

Speech Likely

Unconstitutional

By Alenah Luthens, Litigation News

Contributing Editor

Libel statutes aimed at criminalizing

“derogatory” speech about politi-

cal candidates likely violate the First

Amendment, according to a federal

appellate court, because such laws

undermine the protection the First

Amendment aords political speech.

ABA Litigation Section leaders agree

with the appellate court’s determi-

nation that the word “derogatory”

improperly encompasses true state-

ments, and zeroing in on speech about

political candidates constitutes imper-

missible content discrimination.

In Grimmett v. Freeman, the plain-

tis—a political candidate and his

campaign team—ran a political ad

stating that an opponent “left 1,500

rape kits on a shelf leaving rapists on

the streets.” Roughly two years later,

a prosecutor informed the plaintis

that the district attorney planned to

pursue charges against them for violat-

ing a 90-year-old criminal libel statute.

The statute criminalizes“derogatory

reports” regarding “any candidate in

any primary or election, knowing such

report to be false or in reckless disre-

gard of its truth or falsity, when such

report is calculated or intended to

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