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Court Week(s): June’s Oral Arguments and one Supreme Court affirmance

If you’ve got the money, I’ve got the time (for an infringement action) — Willie Nelson made an appearance at the Sixth Circuit last month—but alas, only in the briefs. The court heard argument in Philpot v. L.M. Communications, involving a radio station website’s unauthorized use of a photo of the Red-Headed Stranger. The district court held that the infringement was not willful because no evidence showed that the station knew—actually or constructively—that Philpot had a copyright for the photo. So Philpot received $3,500, not the $150,000 plus attorney’s fees he could have received under 11 U.S.C. § 504(c)(2) if the infringement were willful. The panel (Batchelder, Griffin, Donald) is now poised to answer this question of first impression in the Sixth Circuit: whether actual knowledge is required for a finding of willful infringement. (The Second and Seventh Circuits have held it is not.)

The Times and the Buckeyes — The court also heard argument in a defamation case involving the New York Times and Dr. Carlo Croce—a “prolific” cancer researcher and professor at the Ohio State University. It all started when Croce agreed to an interview with Times writer James Glanz to discuss “the fascinating topic of microRNA.” It surely surprised Croce to later learn that his interview would become the basis for a front-page article that spanned fourteen pages and accused him and OSU of scientific misconduct and financially driven data falsification.

Croce sued the Times for defamation. The district court granted the paper’s summary judgment motion, however, concluding that the article was an “accurate and balanced report about Dr. Croce’s research.” Croce appealed, but a coalition of 41 media organizations filed an amicus brief supporting the Times.

At argument, Judge Nalbandian pressed the Times’ attorney about Ohio’s “innocent construction” rule and how the Times’ social media posts should be analyzed under it. Judge Deborah Cook asked Croce’s counsel to specifically identify the defamatory parts of the article. And Judge Karen Moore revealed very little. The case gives Judge Nalbandian his second chance just this year to address Ohio’s innocent-construction rule. His partial concurrence in Boulger v. Woods critiqued whether Ohio’s totality-of-the-circumstances test effectively distinguishes fact from opinion when a question is at issue (which, according to Nalbandian, is “like asking how tall an elephant weighs”).

SCOTUS affirms CA6: Tennessee liquor law unconstitutional — During the final week of the 2018–19 Term, the U.S. Supreme Court struck down a law that had prevented out-of-state retailers from setting up shop in Tennessee—affirming a Sixth Circuit decision from last February. Major retailer Total Wine and a mom-and-pop store challenged Tennessee’s two-year residency requirement, which they said amounted to protectionism. Judge Moore’s opinion held that this violated the “dormant” Commerce Clause. Justice Alito’s majority, for seven justices, agreed: Tennessee’s two-year residency requirement for retail license applicants was unconstitutional because it “blatantly favors the state’s residents and has little relationship to public health and safety.”

In line with the approach of Judge Sutton’s concurrence below, Justices Thomas and Gorsuch, in dissent, would have allowed Tennessee more room to regulate alcohol sales under the 21st Amendment. In addition to ending Prohibition and spawning punny bar names, the Amendment’s less celebrated second section prohibits(again?!) the “transportation or importation into any state … of intoxicating liquors, in violation of the laws thereof.” As Judge Sutton wrote, this provision “empowers States to regulate sales of alcohol within their borders.” In his view, and Justice Thomas’, this should have permitted some (though not all) of the Tennessee regulations at issue.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume IX, Number 190


About this Author

Benjamin Beaton Litigation Attorney Squire Patton Boggs Cincinnati, OH

Benjamin Beaton is co-chair of the Appellate & Supreme Court Practice. He handles complex appeals, regulatory disputes and law-intensive trial proceedings. Ben has authored more than a dozen briefs at the US Supreme Court, where he previously served as a law clerk. He has drafted dozens more in the federal courts of appeal and state supreme courts, and regularly confers with trial and in-house counsel regarding appellate and motions strategy. Chambers has noted the firm’s “well-resourced appellate team, with notable experience in disputes heard before the Sixth Circuit.” The...

Lauren S. Kuley, Squire Patton Boggs, Labor Lawyer,

Prior to joining Squire Patton Boggs, Lauren was a law clerk to The Honorable Judge Karen Nelson Moore of the US Court of Appeals for the Sixth Circuit.

After clerking, Lauren served as the Simon Karas Fellow in the Ohio Attorney General’s Office. In that position, she assisted the Ohio Solicitor General in representing the state on appeal, writing appellate briefs and evaluating possible appeals. She also argued before the Ohio Supreme Court and the US Court of Appeals for the Sixth Circuit, winning unanimous decisions for the state in both cases. 

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