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

First Amendment

“The Roberts Court, First Amendment Fanaticism, and the Myth of Originalism”: Eric Segall has this blog post at “Dorf on Law.”
 By Eric SegallI’m probably the most aggressive defender of the First Amendment. Most people might think that doesn’t quite fit with my jurisprudence in other areas.… People need to know that we’re not doing politics. We’re doing something different. We’re applying the law.                                                                                            Chief Justice John RobertsJohn Roberts became the Chief  Justice of the United States Supreme Court on September 29, 2005. This term will make the 15th anniversary of the Roberts Court. During that time some important constitutional…
Recent Articles of Interest - April 12, 2021 - Howard Friedman
 From SSRN:Adam McDuffie, 'Law and Order,' Canopy Forum, (January 11, 2021).Jennifer Piatt, James G. Hodge & Leila Barraza, When Can You Be Required to Get a COVID-19 Vaccine?, (Slate - Future Tense, Forthcoming).James Stern, First Amendment Lochnerism & the Origins of the Incorporation Doctrine, (University of Illinois Law Review, Vol. 2020, No. 5, 1501).Zalman Rothschild, Free Exercise Partisanship, (Cornell Law Review, Vol. 107, No. 4, 2022).From SmartCILP:John Witte Jr. & Andrea Pin, Faith in Strasbourg and Luxembourg? The Fresh Rise of Religious Freedom Litigation in the Pan-European Courts, 70 Emory Law Journal 587-662 (2021).Dallan F. Flake, Restoring Reasonableness to Workplace Religious Accommodations, 95 Washington Law Review 1673-1724 (2020).
Columbia Global Freedom of Expression seeks to contribute to the development of an integrated and progressive jurisprudence and understanding on freedom of expression and information around the world.  It maintains an extensive database of international case law. This is its newsletter dealing with recent developments  in the field. ● UNESCO and the Bonavero Institute of Human Rights of the University of Oxford will soon be launching a global Massive Open Online Course (MOOC) for judicial actors, to promote international and regional standards on freedom of expression and the safety of journalists. This free, five-week online course will run from the weeks of May 10 until June 7, 2021, with the possibility of completing the course until June 30, 2021. The course will be led by experts in the field of human rights and freedom of expression, and will include high-level guest speakers such as UN Special Rapporteurs, judges from…
Thoughts on Caron Nazario lawsuit - April 11, 2021 - Howard Wasserman
Here is the complaint. A few thoughts. • The complaint is uniquely specific and precise about the facts because the plaintiff obtained the officers' body-camera footage and footage from his cellphone. He could review (and cite to) evidence in the pleading. No need to rely on boilerplate, to plead on "information and belief," or to plead in general terms. No Twiqbal problems here. • The First Amendment claim is interesting. He alleges that the officers threatened to retaliate against him by pursuing charges if he exercised his First Amendment petition rights and complained, then filed false reports in furtherance of...
Late Friday night, in another case on its so-called "shadow docket", the U.S. Supreme Court in Tandon v. Newsom,  (Sup. Ct., April 9, 2021), granted an injunction preventing enforcement during the appeal process of California's COVID-19 order limiting religious gatherings in homes to three households. In a 5-4 decision, the majority in a 4-page per curiam opinion outlined important principles to be applied in deciding free exercise claims, saying in part:First, government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise....Second, whether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue....California treats some comparable secular activities more favorably than at-home…

Anti-SLAPP

["Defendant has established that the images are a matter of public concern, as they speak to Plaintiff's character and qualifications for her position as a Congresswoman, allegedly depicting an extramarital sexual relationship with a paid campaign staff member, the use of illegal drugs by a sitting Congresswoman, and a tattoo similar to the symbols formerly used by white supremacists."] Last Fall, former Rep. Katie Hill sued the Daily Mail (UK), Redstate.com, her ex-husband, and a some others over the publication of nude photos of her. The lawsuit was brought chiefly under the California nonconsensual pornography statute; but, as I mentioned then, that statute has an exception for when "[t]he distributed material constitutes a matter of public concern." Today, Judge Yolanda Orozco granted the Daily Mail's anti-SLAPP motion (Hill v. Heslep); unless Hill appeals and wins on appeal, she will have to pay the Daily Mail's legal fees.…
Throughout the month of February, the Law Library received alerts for full-time TTU Law Faculty publications and news. Below is a compilation of those daily alerts for February 1st to February 28th, 2021. Articles, Essays, and Reviews 1. 12, 12A, & 12B, Gerry W. Beyer, West’s Texas Forms – Administration of Decedents’ Estates and Guardianships (4th ed. 2020-21 Supp.). 2. Gerry W. Beyer, Potpourri, 59-1 Real Est., Prob., & Tr. L. Rep., at 4 (2021). 3. Gerry W. Beyer, Intestacy, Wills, Estate Administration, and Trusts Update, 59-1 Real Est., Prob., & Tr. L. Rep., at 5 (2021). 4. Gerry W. Beyer, An Estate Planner’s Guide to Specific Testamentary Gifts, 59-1 Real Est., Prob., & Tr. L. Rep, at 41 (2021). 5. Arnold H. Loewy, The Strange Case of Timothy Hennis: How Should It Be Resolved, 53 Tex. Tech L. Rev. 1 (2020). Op-Eds 1. Prof Loewy, It’s Debatable: Have Social Media Giants Violated Trump’s Free Speech…
[Remember: Lawyers’ true superpower is the power to turn all questions into questions about procedure.] As I've suggested in my earlier posts (on the disclosure of private facts claim and the libel and false light claims), the lawsuit by Marc Rotenberg—former head of the Electronic Privacy Information Center—against Politico and Protocol is likely to be an uphill battle. This of course raises the question: Will Politico and Protocol be able to take advantage of D.C.'s anti-SLAPP statute? That statute, like others in various states, allows early dismissal of lawsuits based on speech "in connection with an issue of public interest," if the court concludes that plaintiff's claim is legally unfounded; generally suspends discovery until the motion is resolved; requires expedited hearings and rulings in such cases; provides for immediate appellate review; and presumptively requires a losing plaintiff to pay the prevailing defendant's…
[A privacy controversy in a lawsuit by privacy advocate Marc Rotenberg (formerly of EPIC, the Electronic Privacy Information Center).] Marc Rotenberg is a prominent privacy advocate and founder and former long-time president of the Electronic Privacy Information Center. (He is now the Executive Director of the Center for AI and Digital Policy at the Michael Dukakis Institute.) His work on privacy, for instance, has often been mentioned in Reason, as well as in many other publications. Last March, when Rotenberg was still heading EPIC, he apparently tested positive, but apparently didn't immediately inform his EPIC colleagues. (See the end of this post for why I interpret the Complaint as taking the view that those allegations are factually accurate.) The Protocol, which is a tech news site backed by the publisher of Politico, and Politico wrote about this, and yesterday Rotenberg sued them for tortious disclosure of private facts: [332.] The Protocol chose to make public…
[The lawsuit was brought by casino developer Steve Wynn, over a press release put out by Bloom related to a sexual harassment claim that Bloom's firm brought on behalf of a dancer.] An interesting decision from last week, Wynn v. Bloom, decided by a Ninth Circuit panel (Richard Clifton, Jacqueline Nguyen, and Mark Bennett): Defendants-Appellants Lisa Bloom and the Bloom Firm … appeal from the district court's denial of their [anti-SLAPP] Special Motion to Dismiss …. Wynn has demonstrated a genuine dispute of material fact as to whether Bloom Defendants acted with actual malice [i.e., knowledge or reckless disregard as to falsehood] in publishing the Press Release…. To constitute reckless disregard, the defendant must have published a false statement with a "high degree of awareness of [its] probable falsity," or "entertained serious doubts as to the truth of [the] publication.". The Press Release suggests that Wynn…
Boxing, Soccer, & Sports Piracy (Copyright Infringement) Laws May Not Apply to Internet Apps Like DAZN Used to Show Paid Sporting Events in Businesses There May be No Merit to Lawsuits Filed by Thomas P. Riley on Behalf of G & G Closed Circuit Events, LLC, Innovative Sports Management, Inc. DBA Integrated Sports Media, and J & J Sports Productions, Inc. Attorneys like Thomas P. Riley have made a career out of suing small business owners by alleging that they (accidentally) showed a pay-per-view style boxing or soccer match at their establishment (restaurant, barber shop, or other retail outlet) without paying the licensing fee to the boxing promoter. However, the new generation of cases often arises from showing the fights as they appear on streaming apps like DAZN. Some courts have rejected the main legal theories advanced by these attorneys based on the use of the Internet, rather than old fashioned cable or satellite signals. 47 USC Section 605 and 47 USC Section…

California Constitution

[at the West Contra Costa County Unified School District (Northern California).] From the Memorandum of Understanding, which I'm told was just approved Friday: Our tenets for spring reopening are grounded in strong pedagogy aligned with the Multi Tiers of Student Supports (MTSS) model: … 2. Targeted, high needs students first. Wholesale return to in person instruction for the full day for all students is not possible within the county public health mandates at this time and the social distancing constraints …. 6. Identified High Needs Students are the first focus a. Definitions i. For the purposes of identification for this program, "high need students" are defined by the district, based upon the roster of students on March 15th, 2021 as Preschool through 12th grade students who fall into one or more of the following categories: 1. Homeless 2. Foster Youth 3. English language learners 4. African American students 5. Students unable to access online…
A recent Northern District of California ruling has stymied Google’s initial effort to kill a lawsuit alleging that it collected private data on users browsing in “Incognito” mode—a setting meant to keep search activity private. Judge Lucy Koh dismissed Google’s motion, effectively greenlighting the class action, Brown et al v. Google LLC et al, to proceed. Brown’s Claims The plaintiffs in Brown et al allege that even when users elect to browse in Incognito mode, Google continues to track and collect user browser history and other online activity data. Specifically, lead plaintiffs Chason Brown, Maria Nguyen, and William Byatt complain that after they turned off the collection of their data in Chrome, Google tools continued to pluck their personal data. This happens, according to the complaint, despite Google promising consumers that they can elect to “browse the web privately” and stay in “control of what information…
Vimeo is a video hosting service. Domen is a “former homosexual.” He posted videos to Vimeo that allegedly violated Vimeo’s policy against “the promotion of sexual orientation change efforts” (SOCE). Vimeo notified Domen of the violation and gave him 24 hours to remove the videos or Vimeo would take action. Domen didn’t remove the videos, so Vimeo subsequently deleted Domen’s account. Domen sued Vimeo for violations of California’s Unruh Act, New York’s Sexual Orientation Non-Discrimination Act, and the California Constitution. The lower court dismissed all of the claims. The Court’s Ruling The Second Circuit affirms the dismissal, relying solely on Section 230(c)(2)(A) (Domen didn’t pursue the CA Constitutional claim on appeal). This is unexpected, because many courts have recently used Section 230(c)(1) to protect content removal/account termination decisions. In comparison, Section 230(c)(2)(A) has languished…
In Valley Baptist Church v. City of San Rafael, (CA App., Feb. 26, 2021), a California state appellate court held that the "property taxation" exemption for property used exclusively for religious worship (California Constitution Art. XII, §3(f)) applies only to ad valorem taxes. Therefore plaintiff church was not exempt from the San Rafael's Paramedic Tax which is assessed on the basis of property square footage, not property value.
An Explanation of California’s Prop 57 - February 24, 2021 - Barhoma Law
For decades, criminal law was seen as a “one-way ratchet” in that, whenever changes were made to the criminal law, they almost always made the laws stricter. Typically, this is a function of high crime rates, and the political pressure lawmakers face from their constituents. Generally, lawmakers do not want to be seen as being “soft” on crime, so they continually propose increasingly strict laws to prove they mean business. However, California constitutional law provides citizens the ability to propose ballot initiatives. If someone can get enough signatures to support a ballot initiative, the entire state will vote on the initiative and, if it passes, it will become law. This is what happened with California’s Proposition 57. Proposition 57, or Prop 57, as it is more commonly known, is a ballot initiative passed in 2016. Prop 57 implements broad criminal justice reform as it pertains to parole consideration and juvenile offenders. Proponents of…
Court Dismisses CCPA Claim Against Google - February 9, 2021 - Rafael Reyneri
Last week, a federal district court in San Francisco dismissed a claim under the California Consumer Privacy Act (“CCPA”).  The plaintiff alleged that Google had collected personal information without complying with the CCPA’s notice and consent requirements.  The court held that the CCPA’s private right of action does not extend to these provisions of the law.  It appears that this is the first time a court expressly reached this conclusion.  The case is McCoy v. Alphabet, No. 20‑cv‑05427 (N.D. Cal. Feb. 2, 2021). For context, the plaintiff alleged that Google used an internal program called “Android Lockbox” on its Android operating system to monitor and collect data from Android users as they used non-Google apps on their phones.  The alleged data collection included when and how often these third-party apps were used and the amount of time users spent on the third-party apps.  Based on…