- Communications Appellate & Litigation
- Class Actions and Complex Multi-Jurisdiction Litigation
- Enforcement of Arbitration Clauses
- Federal Preemption
- First Amendment/Commercial Speech
- Judicial Review of Agency Action
- National Security Issues
- Rights-of-Way Litigation and Counseling
- Tower Siting and Wireless Facilities Access
- Video Programming and Cable Franchising
- Communications Enforcement & Compliance
- Communications Mergers & Acquisitions
- International & Internet
- Internet of Things
- Telephony & Information Technology
- Unmanned Aircraft Systems (UAS)
First Amendment/Commercial Speech
Wiley Rein’s Appellate & Litigation Team has extensive experience vindicating the speech rights of our clients both in defensive litigation and in proactive constitutional challenges.
Wiley Rein’s expertise spans the spectrum of First Amendment litigation, from strict scrutiny to commercial speech to rational basis review. The firm has argued these issues in procedural settings ranging from preliminary relief and fee disputes to emergency appeals and Supreme Court practice.
We expect this area of litigation to be of growing importance. In an era of mounting pressure to reduce public expenditures, state and local governments have increasingly turned to speech regulation as a low-cost means of achieving their regulatory objectives, and we see no signs of this trend reversing.
First Amendment Rights of Businesses and Industry
Wiley Rein has successfully litigated core First Amendment cases, ranging from restrictions on broadcasters and limitations on the use of business data to compelled disclosures and warnings in retail settings. Government action in a variety of settings can impact First Amendment rights, and Wiley Rein understands how to deploy the First Amendment to ensure that burdens on speech are both properly justified and narrowly tailored.
Recently, Wiley Rein’s Team led the wireless industry’s successful challenge to San Francisco’s so-called “Cell Phone Right to Know” Ordinance. This Ordinance attempted to mandate the posting and dissemination of alarmist and misleading government messages about cell phone safety. The wireless industry challenged this law—the first of its kind in the nation—to prevent the unlawful compulsion of inaccurate and misleading speech. The case, CTIA-The Wireless Association v. City and County of San Francisco (9th Cir.), involved questions about the scope of government power to enlist private parties in the spread of government messages.
Wiley Rein has also vindicated television broadcaster rights in mandatory cable television carriage disputes in New York, raising important First and Fifth Amendment concerns. After Wiley Rein attorneys secured cable carriage for the local broadcaster before the Federal Communications Commission (FCC), the Communications Litigation Group was called upon to handle the appeal in the Second Circuit, which unanimously affirmed the FCC’s decision. Cablevision v. FCC (2d Cir.).
Wiley Rein has protected wireless carriers’ First Amendment rights from improper encroachment by regulators, serving as counsel to the wireless industry in cases challenging regulation of line item billing as unlawfully restricting carriers’ rights to communicate information about charges and their relation to government policies. Peck v. Cingular Wireless LLC (9th Cir.) and BellSouth Telecommunications Inc. v. Farris (6th Cir.).
Wiley Rein’s First Amendment expertise includes challenging FCC decisions restricting retention marketing activities of telecommunications carriers competing in the market for bundled telecommunications services, as well as a First Amendment challenge to the FCC’s rules regarding the sharing of customer proprietary network information (CPNI) for use in targeted marketing. Verizon Northwest, Inc. v. Showalter (W.D.Wash.).
Wiley Rein also litigates business free speech issues outside the communications context. For example, relying in part on the First Amendment, Wiley Rein’s litigators successfully obtained the dismissal of multiple class actions brought against Molson Coors and other major American beer and spirits manufacturers by parents and guardians alleging that the alcoholic beverage industry advertising is to blame for underage drinking. Alston v. Advanced Brands & Importing Co. (6th Cir.).
Commercial Data and CPNI
Restrictions on use of commercial data and customer information can have important First Amendment implications, and Wiley Rein has been at the fore of litigation aimed at vindicating free speech principles in this area.
The Supreme Court recently concluded that “[s]peech in aid of” commercial marketing “is a form of expression protected by the Free Speech Clause of the First Amendment” and restrictions on the use of information needed for such marketing are properly “subjected to heightened judicial scrutiny.” Sorell v. IMS Health, 131 S.Ct. 2653 (2011). Wiley Rein attorneys participated in the Sorell case, which unequivocally reaffirmed the notion that the First Amendment is, at its core, a restraint on government. As the Court explained, “[t]he capacity of technology to find and publish personal information, including records required by the government, presents serious and unresolved issues with respect to personal privacy and the dignity it seeks to secure. In considering how to protect those interests, however, the State cannot engage in content-based discrimination to advance its own side of a debate.”
Wiley Rein has litigated this concept for years, including in cases involving CPNI. For example, Wiley Rein secured a preliminary and a permanent injunction against state regulations restricting the use of customer proprietary network information for use in targeted marketing. Verizon Northwest, Inc. v. Showalter (W.D.Wash.). In addition, Wiley Rein represented intervenors challenging the FCC’s regulations implementing Section 222, presenting First Amendment and Administrative Procedure Act arguments against the Commission’s adoption of an opt-in requirement for the sharing of customer information with joint venture partners and independent contractors. National Cable & Telecommunications Ass’n v. FCC (D.C. Cir.).
Wiley Rein attorneys also provide counseling and compliance advice related to carriers’ duties and rights with respect to CPNI, as set forth in Section 222 of the Communications Act and the FCC’s implementing regulations.
Wiley Rein has extensive experience litigating critical disputes over media ownership restrictions. The firm is currently representing major national radio and television broadcasters, the association of newspaper publishers, and owners of newspapers and broadcast stations in multidistrict federal appellate challenges to the FCC’s rules limiting local radio ownership and local television ownership and cross-ownership of newspapers and broadcast stations. Prometheus Radio Project v. FCC (3d Cir.). Wiley Rein handled the earlier litigation over media ownership restrictions in the Third Circuit and before the Supreme Court of the United States.
In addition, Wiley Rein successfully represented a major cable company in its federal appellate challenge to the FCC’s 30% horizontal cable ownership cap. In Comcast Corporation v. FCC, the U.S. Court of Appeals for the District of Columbia Circuit reversed and vacated the FCC’s ownership cap for cable operators, which limited cable operators to serving only 30% of the nation’s multi-channel video subscribers. In doing so, the court agreed with the Comcast position that the subscriber limit was arbitrary and capricious and restricted Comcast’s ability to make economically efficient acquisitions.
News & Insights
News & Insights
- August 5, 2016 | Press ReleaseWiley Rein’s Amicus Brief on Behalf of U.S. Chamber Supports First Amendment Challenge to San Francisco’s Sweetened Beverages Warning Ordinance
- April 11, 2016 | Press Release
- July 31, 2015 | Media MentionLaw360
- May 5, 2015 | Press Release
- February 9, 2015 | Press Release
- December 19, 2014 | Press Release
- December 12, 2014 | ArticleD.C. Circuit Challenge to FCC’s Authority Over Fax Advertisements Has Important First Amendment ImplicationsBloomberg BNA's Telecommunications Law Resource Center
- November 19, 2014 | Press Release
- May 1, 2014 | Press Release
- April 23, 2014 | Media MentionCommunications Daily, Washington Internet Daily
- April 14, 2014 | Press Release
- April 4, 2014 | Alert
- May 17, 2013 | Press Release
- April 4, 2013 | Press Release
- February 28, 2013 | Press Release
- November 1, 2012 | Press Release
- September 11, 2012 | Press Release
- May 31, 2012 | Media MentionReuters
- May 3, 2012 | Press Release
- January 19, 2012 | Press Release
- December 28, 2011 | Press Release
- January 2012 | ArticleThe Metropolitan Corporate Counsel Vol. 20, No. 1
- November 28, 2011 | Press Release
- November 1, 2011 | Press Release
- October 28, 2011 | Press Release
- October 20, 2011 | Press Release
- October 14, 2011 | ArticleGovernment Regulation of Commercial Speech After Sorrell v. IMS Health, Inc.BNA Pharmaceutical Law & Industry Report
- August 8, 2011 | Press Release
- July 25, 2011 | Press ReleaseWiley Rein's Richard Bodorff Inducted into the Minority Media and Telecommunications Council 2011 Hall of Fame
- January 21, 2011 | Press Release
- December 29, 2010 | Press Release
- November 8, 2010 | Press Release
- October 26, 2010 | Press Release
- September 15, 2010 | Press ReleaseU.S. News & World Report and "Best Lawyers" Rate Seven Wiley Rein Practices among the Nation's and Region's Best
- July 1, 2010 | Press ReleaseWiley Rein Attorneys Obtain Second Circuit Affirmance of Major Victory for Wireless Carriers Preempting Local Government Preference for Particular Technologies
- April 2, 2010 | Press ReleaseThe National Law Journal Recognizes Richard E. Wiley As One of "The Decade's Most Influential Lawyers"
- December 30, 2009 | Press Release
- September 14, 2009 | Press Release
- July 13, 2009 | Press Release
- June 22, 2009 | Press Release
- May 28, 2009 | Press ReleaseWiley Rein Attorneys Assist in Attaining Important Ruling Affirming Ban on Exclusive Cable Contracts
- December 31, 2008 | Press Release
- November 20, 2008 | Press Release
- October 1, 2008 | Press Release
- May 15, 2008 | Press Release
- March 13, 2008 | Press Release
- January 25, 2008 | Press ReleaseRichard E. Wiley to Receive First Amendment Award from the Radio and Television News Directors Foundation
- November 5, 2007 | Press Release
- October 25, 2007 | Press Release
- August 27, 2007 | Press ReleaseWiley Rein Secures Major Victory for Wireless Carriers and Equipment Manufacturers in Cases Alleging Cell Phone Emissions Cause Injury
- July 18, 2007 | Press Release
- June 19, 2007 | Press Release
- March 26, 2007 | Press Release
- March 5, 2007 | Press Release
- December 29, 2006 | Press Release
- November 8, 2006 | Press Release
- October 17, 2006 | Press Release
- August 30, 2006 | Press Release
- June 9, 2006 | Press Release
- June 8, 2006 | Press ReleaseWRF's Communications Practice and Richard Wiley Receive Top Honors; Lawrence Secrest, Andrew McBride Named Leading Lawyers
- June 2, 2006 | Press Release
- April 13, 2006 | Press Release
- December 27, 2005 | Press Release
- December 12, 2005 | Press Release
- November 28, 2005 | Press ReleaseWRF Successfully Defends Grant of Summary Judgment in $300 Million Class Action; Litigation Establishes Important Filed-Rate Doctrine Precedent in Hawaii Supreme Court
- August 10, 2005 | Press ReleaseWRF Selected as Lead Counsel in Country's Most Important Wireless Telecom Case Before the U.S. Supreme Court
- June 28, 2005 | Press ReleaseSupreme Court's Grokster Ruling Reaffirms Key Aspects of Sony Defense Consistent With WRF Amicus Filings But Creates New Theory of Liability for Intentional, Active Inducement
- June 27, 2005 | Press ReleaseSummary of the Supreme Court's Decision in National Cable & Telecommunications Association v. Brand X Internet Services and FCC v. Brand X Internet Services
- May 25, 2005 | Press Release
- April 15, 2005 | Press Release
- March 1, 2005 | Press ReleaseWRF Files Supreme Court Brief in Grokster Copyright Case on Behalf of Consumer Electronics Association, Computer & Communications Industry Association and Home Recording Rights Coalition
- January 28, 2005 | Press Release
- January 3, 2005 | Press Release
- October 14, 2004 | Press Release
- August 4, 2004 | Press Release
- July 12, 2004 | Press Release
- June 28, 2004 | Press Release
- June 17, 2004 | Press Release
- May 12, 2004 | Press Release
- May 20, 2002 | Press Release
- March 7, 2002 | Press Release
- March 4, 2002 | Press Release
- March 15, 2001 | Press Release
- April 18, 2000 | Press ReleaseRichard E. Wiley Receives Digital Television Pioneer Award at the National Association of Broadcasters Convention