First Amendment - Anti-SLAPP - California Constitution - grpub.net

First Amendment

The justices of the Supreme Court never focused on the First Amendment’s words when hearing arguments in Murthy v. Missouri last week. The case challenges the federal government’s orchestration of social media censorship, so one might have expected the justices to pay some attention to the First Amendment itself. Instead, the court relied on its own weak doctrines that invited the censorship in the first place. The First Amendment makes a crucial distinction between abridging and prohibiting. But there’s a danger the court, in this case, will ignore this and instead reinforce its erroneous coercion standard. If that’s what the court does, it will give the executive branch the green light to persist in the most far-reaching censorship in the nation’s history. via www.washingtonexaminer.com Phillip Hamburger.
New York Supreme Court Justice Juan Merchan this week became the latest court to impose a gag order on former president Donald Trump with a stinging order that found a history of Trump attacks that threatened the administration of justice. The order will bar public criticism of figures who are at the center of the public debate over this trial and the allegation of the weaponization of the legal system for political purposes, including former Trump counsel Michael Cohen, former stripper Stormy Daniels, and lead prosecutor Matthew Colangelo. Trump is still able to criticize Manhattan District Attorney Alvin Bragg and Merchan himself.  What is most striking is the protection of Cohen who continues to goad Trump in public attacks. While many of us have criticized past attacks by the former president of judges and staff associated with cases, theses gag orders raise very serious free speech questions in my view. Prosecutors like Special Counsel Jack Smith and Bragg have…
By Rodney F. Tonkovic, J.D.In its response to Elon Musk's petition for certiorari, the SEC argues that Musk's argument fails on its own merits. Musk's argument is based on the unconstitutional-conditions doctrine, but the SEC points out that he forfeited that claim by not making that argument before the district court. Even so, the Court has consistently held that to resolve litigation, parties can choose to waive even fundamental rights. In this case, the SEC says, the settlement was reasonably designed to minimize the likelihood that Musk would violate the securities laws, and further review is not warranted (Musk v. SEC, March 22, 2024).Tempest in a tweet-up. In October 2018, Elon Musk and Tesla entered into consent judgments with the SEC. Earlier, Musk had tweeted that he had secured sufficient funding to take Tesla private. This tweet, and some similar ones made on the same day, caused Tesla's stock price to jump even though, as the SEC alleged, any…
Editor’s Note: This article explores the transformative impact of generative artificial intelligence (AI) on the legal profession, juxtaposed against the backdrop of copyright and ethical quandaries. As AI reshapes legal processes, from automating mundane tasks to enhancing legal research, the sector is thrust into a critical examination of how these innovations align with traditional legal ethics and copyright laws. This scrutiny is vital for cybersecurity, information governance, and eDiscovery professionals, as it underscores the ongoing evolution of legal practices amidst digital advancements. By dissecting instances such as the rejection of AI-generated artworks for copyright and the proactive steps legal firms are taking to integrate AI ethically, the article illuminates the intricate dance between leveraging AI for progress and adhering to the core principles of legal practice. It also serves as a call to action for legal professionals and policymakers to navigate…
[If Alliance for Hippocratic Medicine lacks standing, so should progressive groups.] On Tuesday, the Supreme Court heard oral argument in FDA v. Alliance Hippocratic Medicine, the mifepristone case. Much of the argument focused on whether AHM had standing to challenge the FDA's actions. From my vantage point, it looks like the plaintiffs will lose. Indeed, the writing has been on the wall since the Court granted a stay of the Fifth Circuit's decision back in April 2023. The question isn't whether AHM will lose; the question is how. I would humbly submit that the Court could take this opportunity to clean up several aberrations in standing law. First, the Court should claw back so called "diversion of resource" standing based on Haven's Realty. As this theory has been interpreted by some lower courts, an organization can claim Article III standing simply by claiming that a government policy forces the organization to divert resource. In…
Despite facing challenges both from Congress and in court, the Consumer Financial Protection Bureau’s (CFPB’s) “Small Business Lending Under the Equal Credit Opportunity Act (Regulation B)” (Small Business Rule) is likely here to stay. In December 2023, President Biden vetoed the congressional challenge to the rule. And as long as the Supreme Court rules in CFPB v. Community Financial Services Association of America that the CFPB’s funding structure does not violate the Appropriations Clause of the Constitution, we also expect the rule to survive the legal challenges currently pending in Texas and Kentucky. Assuming it survives, large lenders must begin complying with the rule’s extensive and detailed provisions by October 2024, with smaller lenders to follow in 2025 and 2026. 12 CFR §1002.114(b). Those dates of compliance are currently stayed pending the ongoing litigation, but financial institutions may need to prepare for…

Anti-SLAPP

US federal judge dismisses lawsuit by X against nonprofit anti-hate speech organization - March 26, 2024 - Caitlin Williams | U. Pittsburgh School of Law, US
A federal judge in California dismissed Monday a lawsuit brought by X (formerly known as Twitter) against the Center for Countering Digital Hate (CCDH), a nonprofit organization that researches digital hate speech and campaigns for social media reform. X, owned by Elon Musk, filed its suit in July 2023, alleging that by reporting instances of hate speech and misinformation on X, the CCDH “scraped data” from X in violation of its terms of service. According to the suit, the CCDH “embarked on a scare campaign to drive away advertisers from the X platform.” X sought damages for losses caused by the CCDH’s reports and enjoinment of the nonprofit from accessing and using the data it obtained from X. In its motion to dismiss, the CCDH relied on Federal Rule of Civil Procedure 12(b)(6) in arguing that X’s suit failed to state a claim upon which relief can be granted. It also reasoned that California’s anti-SLAPP law, which serves to protect…
Self-proclaimed free-speech absolutist Elon Musk is notoriously thin-skinned when it comes to criticism directed at him. (As the phrase goes, “he can dish it out, but he can’t take it“). This well-publicized lawsuit is an example of Musk waging lawfare over a critic’s speech. Judge Breyer of the Northern District of California had none of it. He calls out Twitter for its bad choice: This case is about punishing the Defendants for their speech…X Corp. has brought this case in order to punish CCDH for CCDH publications that criticized X Corp.—and perhaps in order to dissuade others who might wish to engage in such criticism. As a result, the court finds that much of the lawsuit is a SLAPP. If the case stands on appeal, Twitter will write a check to CCDH to compensate it for the litigation harms Twitter has imposed on it. The check to CCDH may not dent Musk’s finances, but it has painful symbolism. It’s a reminder of why Twitter…
In most cases, it won’t be actionable to call for the resignation of a public official or to question that person’s ethics or professionalism. The First Amendment is intended to protect robust debate over the performance of government officials, and statements like these are generally considered to be non-actionable expressions of opinion. But in situations where criticisms are laden with factual content, such as when they imply the existence of false factual assertions, they may be deemed defamatory and actionable. The Virginia Court of Appeals recently reinstated a previously dismissed defamation claim against a Portsmouth pastor deemed to have crossed this line in his public statements about a local police chief. The case of Greene v. Portsmouth arises out of the protests surrounding a Confederate statue in Portsmouth, Virginia, in the summer of 2020. A group of protestors had gathered to deface the monument. L. Louise Lucas, a state senator, approached the…
Today's advance release landlord/tenant law opinions: Black Rock Gardens, LLC v. Berry (Summary process; motion to dismiss pursuant to Anti-SLAPP (52-196a); 111 Clearview Drive, LLC v. Patrick (Summary process; whether trial court improperly relied on doctrine of collateral estoppel in granting plaintiff's motion in limine to exclude from trial evidence related to prior foreclosure action)
To non-lawyers, a "person" is usually understood to refer to a human being.  At law, entities such as corporations and limited liability persons are often endowed with personhood.  See, e.g., Cal. Corp. Code § 18 ("'Person' includes a corporation as well as a natural person.").  Is the government that creates these bloodless persons itself a person? A recent Nevada Supreme Court decision answers "no", citing NRS 0.039 which provides: Except as otherwise expressly provided in a particular statute or required by the context, “person” means a natural person, any form of business or social organization and any other nongovernmental legal entity including, but not limited to, a corporation, partnership, association, trust or unincorporated organization. The term does not include a government, governmental agency or political subdivision of a government. Clark Co. v. 6635 W Oquendo LLC, 140…
There's a new SLAPP law in town - March 14, 2024 - Second Circuit Civil Rights Blog
New York has long had a law on the books that makes it illegal to sue someone over their public advocacy. These were called anti-SLAPP suits. SLAPP stands for Strategic Lawsuits Against Public Participation. But the old anti-SLAPP law only applied in the context of advocacy for public permits, usually  land-use disputes. But the SLAPP law changed a few years ago to prohibits retaliatory lawsuits involving other forms of public advocacy. The case law is still developing in this area.The case is Whittaker v. Markle, issued by Ulster County Supreme Court on March 13. Christopher Watkins and I represent defendant Donnie Markle, a private businessman who testified before the County Legislature that an employee at the Ulster County Resource Recovery Agency (which runs the landfill and takes on other recycling duties), Willie Whittaker, was hoarding the compost that members of the community are able to purchase on their own. Following Markle's testimony, Willie's…

California Constitution

States May Be Warming to Green Amendments - March 12, 2024 - Evan George
Last week, New Jersey lawmakers and a variety of stakeholders crammed into a statehouse committee room for a relatively rare legislative hearing. This 2-hour hearing centered on New Jersey’s proposed green amendment, which committee chair Senator Bob Smith described as “a very controversial topic” as he gaveled in the meeting. This green amendment would add a constitutional guarantee to a healthy, clean environment. Advocates have been pushing for such a hearing for years. Dozens of supporters spoke up for the legislation while a handful of corporate lobbyists and executives read statements against the bill. In 2024, these kinds of hearings may take place more and more in statehouses around the country as legislatures warm to the idea of so-called green amendments. At least 10 states so far this year have proposed legislation that would let voters decide in November whether they want the right to a clean, safe environment spelled out in their state…
01 March 2024 See how JMBM’s Global Hospitality Group® can help you.Click here for the latest articles on Hospitality Dispute Resolution. Why Judicial Reference is better than Arbitration for resolving Hotel Management Agreements & Hotel Franchise Agreements. Advanced analysis of Judicial Reference features. Hotel Management Agreements & Franchise Agreements by Mark S. Adams, Hotel Dispute LawyerPartner & Senior Member JMBM’s Global Hospitality Group®   In prior articles, we have looked at the options available to parties in resolving hotel industry disputes. See, Critical considerations for hospitality litigation, arbitration & alternate dispute resolution clauses in hotel contracts. See also, Is Judicial Reference better than Arbitration to resolve Hotel Contract disputes? The basics of Judicial Reference.  The authority for Judicial Reference in California comes from two sources. The first is the California Constitution which…
In Discovery Builders, Inc. v. City of Oakland (2023) 92 Cal.App.5th 799, the First District Court of Appeal held an agreement between a developer and the City of Oakland was unenforceable to the extent it prevented the city from imposing new impact fees in the future. The court reasoned such a provision constituted an impermissible contracting away of the city’s police power. Between 2004 and 2005, the city approved a vesting tentative map and final tract maps for a 400-unit housing project. The city’s approval required that the developer satisfy various terms and mitigate various environmental impacts. In 2005, the city and developer entered into a separate agreement (“2005 Agreement”), which set the terms by which the developer would compensate the city for employee services and outside consultants required to satisfy the agreed-upon terms and mitigation requirements. Development of the project began soon thereafter. In 2016, as development was…
Construction accidents in CA refer to mishaps on construction sites leading to harm. Construction site accidents occur during construction operations involving poor safety precautions, equipment malfunction, human mistakes, or carelessness. Identifying and addressing these issues can prevent Construction Site Injuries. Also, the state legislation has developed a few stunning workers’ rights that protect them from several losses involving both bodily and financial. Reach out to a construction accident law firm Gaylord & Nantais promptly when faced with a Construction Site Injury in CA. A skilled construction accident injury lawyer can assess your case, ensuring timely action and optimal legal guidance. An overview of the construction site safety features described in the California constitution. The California constitution emphasizes construction site safety through stringent regulations and provisions. It mandates a safe work environment, requiring…
Last year, I commented on the likely unconstitutionality of two California laws compelling forced speech: The California legislature has of late adopted the tactic of driving behavior by compelling speech.  SB 253 (Wiener), for example, compels disclosure of greenhouse gas emissions and SB 261 (Stern) requires disclosure of climate-related financial risks.  Both of these requirements clearly compel speech arguably in contravention of the First Amendment to the U.S. Constitution.  Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 61 (2006) ("Some of this Court's leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say."). I had previously noted that SB 253 was very similar to an earlier bill that did not make it into law. Yesterday, the Chamber of Commerce of the United States of America and several…
Article IV, Section 9 of the California Constitution provides "A statute shall embrace but one subject, which shall be expressed in its title".  This rather simple notion, absent from the United States Constitution, dates back over two millenia to the Roman Republic.  In 98 B.C.E., two consuls, Quintus Caecilius Metellus Nepos and Titus Didius fathered the enactment of the eponymous Lex Caecilia Didia.  Like its modern counterpart, the Lex Caecilia Didia prohibits a lex satura, or stuffed law.   The second century Roman grammarian Sextus Pompeius Festus described a "stuffed law" as a "lex multis aliis conferta legibus" or a law crowded with many others.  The great Roman lawyer Marcus Tullius Cicero described the Lex Caecilia Didia as follows in his Oratio de Domo Sua: Quae est, queso, alia vis, qua sententia Caecilia Legis et Didiae nisi hae, ne populo necesse sit in coniunctis rebus…