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

First Amendment

Announcing that you’ve quit Facebook is almost like a badge of honor for folks these days. Many try to recruit others to follow them. I get people leaving Facebook out of “philosophical” concerns, though I think they’ll miss out on a lot by doing so. I don’t understand people quitting Facebook because they found their Facebook News Feed so awful. Afterall, your News Feed is created by your Facebook friends and your engagement with those friends. You choose your friends on Facebook, you share what you want to share and you comment and like at your own pleasure. It’s your friends and your engagement – sharing, likes and comments that drive Facebook algorithms – the algorithms that dictate what you see in your News Feed.  My friend (not on Facebook as he quit) and the founder of Rocket Matter, Larry Port, asked people to join him in quitting Facebook. He quit, in part, because of his News Feed. I found the…
Erwin Chemerinsky quoted in The Washington Post, May 24, 2018 “The First Amendment doesn’t apply to private institutions,” Erwin Chemerinsky, the dean of Berkeley Law and a constitutional law expert told The Washington Post. “Private employers can fire employees for their speech without having to worry about the First Amendment.”
John Reed Stark On November 29, 2018, the SEC announced that it had settled charges with boxer Floyd Mayweather Jr. and music producer DJ Khaled for failing to disclose payments they received for promoting investments in Initial Coin Offerings (ICOs). In the following guest post, John Reed Stark, the President of John Reed Stark Consulting and former Chief of the SEC’s Office of Internet Enforcement, takes a look at the SEC’s actions against Mayweather and Khaled and identifies some important takeaways from the SEC’s orders. I would like to thank John for his willingness to allow me to publish his article on this site. I welcome guest post submissions from responsible authors on topics of interest to this site’s readers. Please contact me directly if you would like to submit a guest post. Here is John’s article. *********************************** Never in the history of securities regulation has there been more distortion, spin and…
Erwin Chemerinsky quoted in [your]NEWS, December 17, 2018 But no matter how well intentioned, any attempt to control speech raises Constitutional issues. And the First Amendment is clear on the matter, says Erwin Chemerinsky, the dean of Berkeley Law. “First, the First Amendment applies only to the government, not to private entities,” Chemerinsky stated in an email to California. “Second, there is no legal definition of hate speech. Hate speech is protected by the First Amendment.”
Vaping Wars Move to State Court - December 17, 2018 - Scott Nelson
The vaping industry's First Amendment challenge to FDA e-cigarette marketing rules remains pending in the DC Circuit, where it awaits decision following oral arguments this past September. But federal officials aren't the only ones trying to regulate the industry's practices: States also regulate vape shops operating within their jurisdictions. And last week, state regulations also came in for a "free-speech" challenge in court. Specifically, Oregon, which bans vape shops from packaging vaping products in a manner likely to be appealing to minors, now faces a state-court lawsuit challenging that law and its implementing regulations, filed by attorneys from the Goldwater Institute on behalf of an individual shop owner and his company. Interesting, the lawsuit is based solely on the Oregon Constitution's free-speech clause, which has been held in at least some settings to provide stronger protections than the First Amendment of the U.S. Constitution.
Ask the author: Meet Justice Edward Sanford - December 17, 2018 - Andrew Hamm
The following is a series of questions prompted by Stephanie Slater’s “Edward Terry Sanford: A Tennessean on the U.S. Supreme Court” (University of Tennessee Press, 2018). This is the first biography of a justice whose contributions to the Supreme Court in the 1920s were overshadowed in life by those of his more famous colleagues, including Justices Oliver Wendell Holmes and Louis Brandeis, and even in death, because he passed away on the same day as retired Chief Justice William Howard Taft. This work shines a new light on Sanford’s place in history and on the Taft Court. * * * Welcome, Stephanie, and thank you for taking the time to participate in this question-and-answer exchange for our readers. QUESTION: In the opening paragraph of your final chapter, you quote a senator during the unsuccessful 1970 confirmation hearing for Judge G. Harrold Carswell: “I realize that men of limited capacity have served on the Court in the past. … For…

Anti-SLAPP

“CNN Legal Setback Points to Tougher Times Ahead for Media Companies; In a defamation case, the Eleventh Circuit rejects how CNN and other media companies demanded the special-dismissal provision of Georgia’s anti-SLAPP statute”: Eriq Gardner has this post at the “THR, Esq.” blog of The Hollywood Reporter. My earlier coverage of last Thursday’s Eleventh Circuit ruling can be accessed here.
While we wait for the next big Section 230 ruling (so many cases are on appeal!), today I’m recapping two recent pro se cases. Scott v. Carlson. The complaint alleges that: Carlson created online content to attack Scott; Moon published Carlson-submitted false information about Scott to a message board Moon operates called Kiwi Farms (self-described as being “about eccentric individuals and communities on the Internet. These people are commonly referred to as Lolcows and are each distinct thanks to their erratic public behavior”); and DiGrippo published Carlson-submitted false information about Scott to the Encyclopedia Dramatica wiki operated by DiGrippo. In a footnote, the court observes that “This is Scott’s eighth pro se case filed in this court within the last two years. All of them have been dismissed.” The lawsuit also fails. In particular, the defamation claims against Moon and DiGrippo fail due to Section 230. The court…
Perhaps creating a circuit split, Eleventh Circuit holds that the dismissal provision of Georgia’s anti-SLAPP statute cannot apply in diversity suits because it conflicts with Fed. R. Civ. P. 8, 12, and 56: You can access Thursday’s ruling of the U.S. Court of Appeals for the Eleventh Circuit in Carbone v. Cable News Network, Inc. at this link. Circuit Judge William H. Pryor Jr. wrote the opinion of the court.
Deepening split on SLAPP laws in federal court - December 15, 2018 - Howard Wasserman
Earlier this month, SCOTUS denied cert in a case out of the Tenth Circuit holding that a state anti-SLAPP law does not apply in federal court under an Erie/Hanna analysis. This week, the Eleventh Circuit weighed in, agreeing that Georgia's law does not apply in an action action CNN. If you are scoring at home, that is three circuits (1st, 5th, 9th) holding that SLAPP laws apply in federal court and three circuits (DC, 10th, 11th) holding they do not. The Ninth Circuit position is why Stormy Daniels owes Donald Trump $ 300,000 in attorney's fees. But the most recent...
A misleading film, a misleading statistic, and misleading crackers.Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice. This week, IJ filed a merits brief in the U.S. Supreme Court, which will soon consider whether a Tennessee law that requires people to live in the state for two years before they can receive a liquor license—and to live in the state for 10 years before they can renew it—unconstitutionally discriminates against new residents. Learn more here. Israeli-Belgian national is advised by Canadian border patrol not to board flight to U.S.; she's on a watch list. She seeks an explanation; the TSA issues order neither confirming nor denying her no-fly status. She sues. D.C. Circuit: Petition denied. She sued 62 days after the TSA issued the order, and the deadline is 60 days. Twelve-year-old deaf student quarrels with teacher over takeout food, hits teacher with stick, throws rocks. West Hartford, Conn.…
Actions of note at the Supreme Court’s Wednesday conference yesterday included: The court granted review in Barefoot v. Jennings, where the Fifth District Court of Appeal, in a published opinion, held a child had no standing to raise a challenge — for trustor incompetency — to a trust amendment that disinherited her, because she was not a beneficiary of that amendment, but was a beneficiary only of prior, superseded amendments.The court also granted review in Villanueva v. Fidelity National Title Co., an Unfair Competition Law class action matter.  In this case, the court limited the issues, to these:  “(1) Insurance Code section 12414.26 provides:  ‘No act done, action taken, or agreement made pursuant to the authority conferred by Article 5.5 (commencing with Section 12401) or Article 5.7 (commencing with Section 12402) of this chapter shall constitute a violation of or grounds for prosecution or civil proceedings under…

California Constitution

David Carrillo quoted in Wew news, December 12, 2018 David A. Carrillo, executive director of the California Constitution Center at Berkeley Law, said he was not surprised at the chief justice’s comments and her emphasis on consensus. In a study due to be published this month, Dr. Carrillo analyzed 302 opinions by the state Supreme Court over the past three years and found only one in which the justices appointed by Mr. Brown voted as a distinct bloc against the other justices. “People ask this question all the time, ‘Why is California not polarized?’ We are divided as a nation but not so much as a state,” Dr. Carrillo said. “I think it’s particularly telling that we have a state high court that reflects that consensus.”
California Arrestees’ DNA Profiles Become Part of Federal Database, Accessible to Law Enforcement Across the Country, Even for Those Not Convicted of Any Crime San Francisco - Two social justice organizations—the Center for Genetics and Society and the Equal Justice Society—and an individual plaintiff, Pete Shanks, have filed suit against the state of California for its collection and retention of genetic profiles from people arrested but never convicted of any crime. The Electronic Frontier Foundation (EFF) and the Law Office of Michael T. Risher represent the plaintiffs. The suit argues that retention of DNA from innocent people violates the California Constitution’s privacy protections, which are meant to block overbroad collection and unlawful searches of personal data. “One-third of people arrested for felonies in California are never convicted. The government has no legitimate interest in retaining DNA samples and profiles from people who…
California Litigating Whether PERS Promises Guaranteed - December 10, 2018 - Philip Thomas
There is an interesting case before the California on the issue of whether that state’s pension benefits are guaranteed. The Sacramento Bee reports here. The State’s argument: “Neither the U.S. Constitution nor the California Constitution requires the state to mismanage its affairs and continue a broken system for decades, even after the state has concluded the program is severely (if not fatally) flawed and cannot be implemented as originally intended.” Participants disagree. The case is a prelude to harder questions down the road for California and other states: “When the next recession comes around, the governor will have the option of considering pension cutbacks for the first time in a long time,” …. Pensions costs are climbing because CalPERS is billing cities more money to pay down its debts. The pension fund in 2016 acknowledged it expected to earn less money over time from its investment portfolio and made a corresponding hike…
After Thursday’s post about this week’s Supreme Court conference, the court updated its online docket to make clear that it had indeed rejected two of Governor Jerry Brown’s requests for clemency recommendations.  Because the prisoners involved — Richard Barnfield and John Johnson — are twice-convicted felons, the California Constitution bars the Governor from commuting their sentences without the court’s recommendations. The docket entries are bland.  They relate without explanation that the court sent the Governor a message as to each request stating simply, “the court, with at least 4 judges concurring, hereby declines to make the recommendation required by Article V, section 8 of the California Constitution for the Governor to grant a commutation of sentence.” However, the court’s innocuous language might mask a harsh rebuke by one governmental branch of another.  Some context is necessary to see why.…
Voters in San Francisco adopted Proposition C earlier this month, adding another gross receipts tax to the city’s businesses. It is a particularly pernicious form of taxation enjoying a resurgence at the state and local levels, leaving San Francisco about to face a legal quagmire that threatens to halt the tax’s enactment. Proposition C introduces a new gross receipts tax on businesses with more than $50 million in gross receipts within the city, with rates varying by industry from 0.175 percent to 0.69 percent. Proposed to fund services for the homeless, the tax adds to San Francisco’s broader gross receipts tax, which applies rates ranging from 0.16 percent to 0.65 percent for firms with more than $1 million in gross receipts. The proposal, passing with only 60.5 percent of the vote, faces legal hurdles as a result of California’s constitutional requirement that many of the state’s taxes must be approved by a two-thirds vote of the people. In…
This post was authored by Edward Sullivan, Esq. San Francisco SRO Hotel Coalition v. City and County of San Francisco, No. A151847 (Cal. App., 5th Dist., October 15, 2018) involved a takings claim under the California Constitution arising out of a 2017 amendment to the City’s Administrative Code that required that there be a minimum term of 32 days for hotel stays. That number would bring into play the City’s rent control laws. The appellate court noted that an SRO is a small hotel room that typically lacks a private kitchen or bathroom, similar to a college dormitory room. Many low-income, elderly and disabled persons reside in SROs throughout the City. The City sought to preserve these hotels to prevent more “rough sleeping” in City streets and public places and had adopted a moratorium on conversion of SROs to tourist hotel housing in 1979 and adopted further permanent legislation in 1981 to make it economically difficult to make such…