Legal Geek No. 129: Do Age Limits on Gun Sales Create Age Discrimination?

Welcome back to Legal Geek. This week, we cover a listener question from Russell, who asks whether the recent trend of several retailers prohibiting gun sales to those under age 21 is age discrimination that could be challenged in court.

https://archive.org/details/LegalGeekEp129

The recent string of high-profile school shootings in Florida and other states have ramped up pressure for stronger gun control in America.  While the government has not yet weighed in as of the time of this recording, several retailers like Wal-Mart have decided to take action themselves and ban sales of firearms to persons under the age of 21.  While this may be seen by some as a positive P.R. move for these companies, does it open them to an age discrimination lawsuit?

The topic of age discrimination is most often associated with workplace harassment and discrimination, and the only federal law on point is the Age Discrimination in Employment Act, which prohibits discrimination against those age 40 or older.  To this end, there is not a specific law protecting younger workers from discrimination, at least on the federal level, but regardless, this type of law does not apply in this gun sales context.

That leaves several more amorphous Constitutional grounds to make a discrimination claim, including under the Second Amendment, under due process, or under the Equal Protection clause.  The Second Amendment is likely not infringed because these retailers are not government entities, and there remain other sources of firearms if a young person wants to own one and exercise their rights under this Constitutional Amendment.

Due process and equal protection both stem from the 14th Amendment to the Constitution.  For due process, states are generally free to restrict your rights under their broad police powers unless the law infringes upon a fundamental right, which have typically been interpreted to include all those rights enumerated in the Constitution and the Bill of Rights.  Thus, the right to keep and bear arms would likely be a fundamental right that would require states to comply with the strict scrutiny standard to enact limits upon that right, which means the state law must be narrowly tailored to serve a compelling interest of the state.

However, again we run into the problem that these retailers are not states or government entities.  Even if we ignore that problem with the potential challenge and posit that a state writes a law prohibiting sales of guns to those under age 21, there is a possibility that such a law could still be deemed to meet the strict scrutiny standard.  Public safety, particularly of young adults and children, is almost certainly a compelling state interest, and as long as it could be proven that the law would be narrowly tailored to fit those interests, it would stand as constitutional.  A challenge could certainly be made in court, but it's a close call on whether it would be successful, and that's only if we have actual government action or laws on this point beyond the retailer context.

Equal protection stops laws from discriminating against so-called suspect classes, which is basically people that have been getting a raw deal for years like minorities and religions.  Age ranges are not a suspect class, which is also why prohibitions against sales of alcohol to the same age group have not been successfully challenged.  Indeed, the alcohol age limit is perhaps the best analogue to this question about gun sales, with the only notable difference being that gun ownership may be a fundamental right under the Constitution, while drinking alcohol is not.  While that difference could change the legal standard applied in court, it may not change the outcome.

The Bottom Line is, although I am no Constitutional civil rights expert, it appears that challenges to retailers not selling guns to those under age 21 would face an uphill battle in court for a number of reasons.  Age discrimination is not really recognized for younger people in several contexts, including the sale of alcohol, and that would make it exceedingly difficult to stop these practices and decisions of private party retailers.  That being said, this would be a great intersection of gun control and Constitutional rights to watch in court if a challenge is ever made, but that seems more likely if states or the federal government writes a law like this.  We will have to wait and see if that develops.

Thanks Russell for the great topic suggestion.

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Legal Geek No. 128: Google Sued for AdWords Practices

Welcome back to Legal Geek. This week, we review a recent federal lawsuit filed against Google in federal court claiming trademark infringement and dilution based on practices Google has established in its AdWords program.

https://archive.org/details/LegalGeekEp128 

Edible International is the owner and operator of the Edible Arrangements brand, well known for sending bouquets of candy and fruit as a competitor for flowers.  If you conduct a Google search for Edible Arrangements, the company's primary competitors including Shari's Berries and 1-800-Flowers come up as links as well as Edible Arrangements itself.  This is because those competitors have purchased the rights to appear in search results when the keyword term Edible Arrangements is searched by a user. 

This is common practice for companies under the Google Adwords program, as it can be helpful to appear both when users search for you as well as your competition.  However, Edible International argues that allowing competitors to buy such search rights based on its trademarked name has caused over $200 million dollars in damages thanks to customer confusion and damage or dilution to their trademark.

Thus, Google once again finds itself on the cutting edge of IP litigation that will help define the boundaries of such rights moving forward.  Google has successfully pushed against copyright claims in the various Google Books cases, and this will be one of what may become a number of case studies on trademark law and how it interacts with online search engine practices. 

The gray area comes in that Google is profiting off selling advertisements using the actual trademarks and slogans of companies not related to Google.  That appears to be contrary to the goals of trademark law, as it can potentially lead to consumer confusion when competitors buy up the right to advertise using competition names and slogans as keywords.  However, there is also a countervailing public interest to allow helpful information to be presented to users of software like search engines.

The case from Edible International makes out a number of different theories for liability, and as such, Google will have its work cut out to overcome and contest all of these theories.  Of course, some of the claims may be removed by the court or simplified as the case continues through the early stages, but as currently written, this will be a landmark decision on the cutting edge or potential limits of brand protection. 

The Bottom Line is, one of the aspects that makes Google a success as a company is the innovation and boundary-pushing it does, but such practices often lead to litigation as well.  In the case of AdWords, Google appears to be profiting more than acting purely in the public interest, so if this case comes down to a close call of the equities, Google may lose this time.  We will keep a pulse on this case and update it as decisions occur, as this is likely a case that could shoot up through appeal courts and possibly to the Supreme Court.

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Legal Geek No. 127: How an Embedded Tweet may lead to Supreme Court Litigation

Welcome back to Legal Geek. This week, we cover a recent case from New York about embedding tweets into news articles that may lead to a circuit split of opinion and Supreme Court litigation on what constitutes copyright infringement.  Who knew embedding a tweet could have such dire consequences?

https://archive.org/details/LegalGeekEp127 

The case is entitled Goldman v. Breitbart News Network, and it was decided in late February at a New York federal district court.  Justin Goldman is a photographer who captured an image of Tom Brady speaking with Boston Celtics GM Danny Ainge in July 2016, and then posted it on Snapchat.  This phot went viral and was shared by many others on other platforms like Twitter.  That also led to a slew of news articles with speculation of how Brady and Ainge might be working together.

These news articles came from sources such as Yahoo, Time, Gannett, and the Boston Globe, with many of the articles embedding tweets of other Twitter users containing Goldman's photo.  Goldman filed suit and claimed such a practice was copyright infringement of his photograph.

Embedding tweets works by displaying the content of another server or site, in this case Twitter, in the middle of a news article when published online.  Thus, the news publishers never stored a copy of the picture on their servers, and this was argued by the news companies as decisive proof of no copyright infringement.

This theory is based on a 9th Circuit Court of Appeals case called Perfect 10 v. Amazon, which occurred in California.  In that case, Google was being sued for copyright infringement for showing nude or suggestive images originally from the Perfect 10 magazine when google image searches led to sites having this content.  That case drew an interesting distinction between the showing of thumbnails in the initial search, and the full size images shown when a user would click on a corresponding thumbnail image.  The full size images were shown by in-site linking to the other sources, while the thumbnails were stored on Google's server, and this storage was deemed to make the thumbnails copyright infringement.  In other words, linking or embedding an image from another source is not a prohibited display of a copyrighted work because it was never stored on the server of the infringer.

The New York court explicitly questioned whether the Perfect 10 decision was correct in concluding the opposite in this case, that copyright infringement exists when embedding tweets with images even though there is no local storage of the image by the news sites.  Thus, the photographer wins at this level, although you can likely expect this to be appealed by the big publishers to the Second Circuit Court of Appeals, and then to the Supreme Court if they don't win at the intermediate level.  If this occurs, this is precisely the type of split in law or interpretation between circuit courts that usually leads to the Supreme Court taking a case and rendering a decision.  So embedding a tweet could lead all the way to the Supreme Court.

Most social network terms of service force you to sign away such IP rights claims against them, but this waiver interestingly does not stretch to those who repeat content from those social networks, at least in the judgment of this court.  Just another fascinating quirk of this case.

The Bottom Line is, the lines of what constitutes copyright infringement can be ever-changing in the field of online publishing, and that's even when there's no fair use claim, as in this case.  Sometimes the most seemingly innocuous action can lead to the highest courts, and we will keep our eyes on this possibility in this case.  

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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy