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

First Amendment

Two years ago, we wrote about a possible First Amendment challenge involving Donald Trump’s practice of blocking certain Twitter users from his @realDonaldTrump account. While it was unclear at the time of our post whether the Knight First Amendment Institute at Columbia University—an organization that uses strategic litigation to preserve the freedoms of speech and the press—would pursue further action, the Knight Institute filed a complaint a few days later in the U.S. District Court for the Southern District of New York against Trump, then-White House Press Secretary Sean Spicer and Daniel Scavino, the White House Director of Social Media and Assistant to the President. On July 9, 2019, the U.S. Court of Appeals for the Second Circuit issued a decision regarding this First Amendment issue. Continue reading →
The plaintiff FAN allegedly is part of a Russian government agency, Internet Research Agency, that undermined the integrity of our 2016 presidential elections. In other words, FAN apparently was a Russian troll operation. As part of its post-2016 election cleanup, Facebook removed FAN’s account. I think most folks would cheer that removal–except they are angry that Facebook didn’t do it before the election. FAN was less pleased by the removal. It sued Facebook for removing the account, asserting 5 claims: “(1) a Bivens claim for violation of the First Amendment; (2) “damages under Title II of the U.S. Civil Rights Act of 1964 and 42 U.S.C. Section 1983”; (3) “damages under the California Unruh Civil Rights Act”; (4) breach of contract; and (5) breach of implied covenant of good faith and fair dealing.” Facebook defended the Bivens claim on lack of state action and the other claims on Section 230. Judge Koh rules for Facebook…
Plaintiffs owned and operated a Facebook page that Facebook shut down in 2018 because of concerns the page was associated with Russian interference with the 2016 U.S. presidential election. After getting shut down, plaintiffs sued Facebook alleging a number of claims, including: damages under 42 U.S.C. §1983 for deprivation of a constitutional right by one acting under color of state law;civil rights violations under California law;breach of contract; and breach of implied covenant of good faith and fair dealing. Facebook moved to dismiss these claims under the Communications Decency Act at 47 U.S.C. §230. The court granted the motion to dismiss. Section 230 immunizes defendants from liability if: defendant is a provider or user of an interactive computer service;the information for which plaintiff seeks to hold defendant liable is information provided by another information content provider; and plaintiff’s claim seeks to hold defendant liable as the…
An Arkansas law censoring plant-based products isn't just absurd and unnecessary, it's unconstitutional. The state of Arkansas thinks you’re confused about whether a veggie burger comes from a cow. In fact, it thinks you’re so confused that it passed a law making it illegal for companies to use words like “meat,” “roast,” and “sausage” to describe products that are not made from animals. Under the law, it doesn’t matter if those words are modified by “vegan,” “veggie,” or “plant-based.” Rather than focusing on genuine consumer concerns — such as rising healthcare and education costs — Arkansas politicians have decided to take on an imaginary crisis: confusing a veggie burger for a hamburger, or almond milk for cow’s milk. Why? To “protect the agricultural producers in the state,” one of the law’s proponents admitted. Not only is Arkansas’…
Last Monday, the Department of Justice held a Summit on Combating Antisemitism.  Deputy Attorney General Jeffrey A. Rosen delivered Introductory Remarks (full text) and Attorney General William Barr delivered the keynote speech opening the Summit (full text). He said in part:The first panel will focus on combatting anti-Semitism while respecting the First Amendment. Hate-crime and civil-rights prosecutions are important tools but they cannot solve the problem on their own. Hearts and minds must be changed, but that is not always a task to which the government is particularly well-suited. We have a legal obligation to respect the free speech rights of even despicable speakers and our harshest critics. But lines can be drawn by our society, sometimes easily and sometimes not so easily, between that commitment and repudiation of anti-Semitism.Another panel will focus on the problem of anti-Semitism on campus. On college campuses today, Jewish students who support Israel…
Don't Look, Don't Tell - July 22, 2019
I know I'm going to get screamed at for this but... You remember the story about the Emperor's New Clothes?  Seems a king was tired of his wardrobe and wanted something "new."  So he searched around and found a couple of "new" fashion designers who told him they had come up with a "new" design - something that would just blow him away.The day of the unveiling arrived and out walks the king in his new suit of clothes.  Problem was, he wasn't wearing anything.  Everyone is snickering behind his back but, of course, he being king, the commoners couldn't (or wouldn't) just up and tell the king that the king was naked - until one young boy blurted out, "THE KING IS NAKED!"What brought this to mind was that the other day I was listening to the radio and heard about the latest women's fashion trend to hit the market just in time for summer - the under boob suit.  That's…

Anti-SLAPP

In Wilson v. Cable News Network, Inc., the Supreme Court today holds that media defendants can properly file motions to strike under the state’s anti-SLAPP statute when they are sued for a limited number of employment actions they have taken.  [Disclosure:  Horvitz & Levy filed an amicus brief in the case.] The court’s unanimous opinion by Justice Leondra Kruger concludes that the journalist plaintiff in the case could not avoid justifying his claims in response to an anti-SLAPP motion just because he alleged that CNN, his news organization employer, engaged in racial discrimination and unlawful retaliation for complaining about discrimination.  The opinion refuses to “effectively immunize claims of discrimination or retaliation from anti-SLAPP scrutiny.” On the other hand, CNN’s employment actions are not automatically protected by the anti-SLAPP statute just because it is a media entity.  To qualify for anti-SLAPP review,…
The plaintiff FAN allegedly is part of a Russian government agency, Internet Research Agency, that undermined the integrity of our 2016 presidential elections. In other words, FAN apparently was a Russian troll operation. As part of its post-2016 election cleanup, Facebook removed FAN’s account. I think most folks would cheer that removal–except they are angry that Facebook didn’t do it before the election. FAN was less pleased by the removal. It sued Facebook for removing the account, asserting 5 claims: “(1) a Bivens claim for violation of the First Amendment; (2) “damages under Title II of the U.S. Civil Rights Act of 1964 and 42 U.S.C. Section 1983”; (3) “damages under the California Unruh Civil Rights Act”; (4) breach of contract; and (5) breach of implied covenant of good faith and fair dealing.” Facebook defended the Bivens claim on lack of state action and the other claims on Section 230. Judge Koh rules for Facebook…
Anti-SLAPP, choice of laws opinions filing Monday - July 20, 2019 - David Ettinger
On Monday morning, the Supreme Court will file its opinions in Wilson v. Cable News Network, Inc. and Chen v. L.A. Truck Centers, LLC, both argued on the early-May calendar.  (Briefs here; oral argument videos here.) Wilson raises the issue, in deciding whether an employee’s claims for discrimination, retaliation, wrongful termination, and defamation arise from protected activity for purposes of a special motion to strike (Code of Civ. Proc., § 425.16), what is the relevance of an allegation that the employer acted with a discriminatory or retaliatory motive?  It was a grant-and-hold case, until the court un-held it in July 2017.  [Disclosure:  Horvitz & Levy filed an amicus brief in the case.] In Chen, the court will decide whether a trial court must reconsider its ruling on a motion to establish the applicable law governing questions of liability in a tort action when the party whose presence justified that choice of law settles and is…
[Banal law, but fun facts.] Yesterday's California Court of Appeal Sarno v. Bailes decision strikes me as a pretty routine libel, invasion of privacy, and anti-SLAPP case—except for the background: Disneyland enthusiasts created unincorporated associations to socialize with each other in the park.  The social clubs were named for a Disney character or theme, and in the park, members wear clothing, etc., identifying their club.  The social clubs maintain Web pages on social media platforms.  Two of the social clubs are "The Main St. Fire 55 Social Club" (MSF) and the "White Rabbits Social Club" (WR). Also relevant, "the social club 'The Mermaids,'" and a 12-year-old daughter of a Mermaids member who is charmingly referred to as Little Doe (Bambi's sister, maybe?). Unfortunately, things turn far less happiest-place-on-Earth from there; the opinion offers all the grim details.
4/3 drops some sanctions on appellant's counsel in this anti-SLAPP appeal here:After oral argument this court advised counsel and the Fites it was considering imposing sanctions on the grounds this appeal is frivolous, included numerous misrepresentation to this court, and was taken and maintained solely for the purpose of causing delay. After this court provided notice of the possibility of sanctions, it held a hearing.At oral argument, this court indicated that based on a review of the facts and the applicable law it was inclined to conclude this appeal was frivolous. It then asked counsel to explain why he believed this appeal had merit. The responses were less than availing.Any reasonable attorney would agree the appeal is totally and completely without merit. Accordingly, we find the appeal to be frivolous and thus for purposes of delay. Therefore, we impose sanctions in the amount of $500 payable to the court for the inconvenience to the court in hearing a…
[Dr. Calvin Day had claimed that describing his suspension as based on "unprofessional conduct" was libelous. (He had also earlier sought to get dismissed criminal charges expunged, and tried to bind local news outlets to the expungement order.) He lost, and was ordered to pay over $80,000 in attorney's fees.] From Day v. Fed. of State Med. Bds. of the United States, Inc. (Tex. Ct. App. June 26, 2019): Calvin Day Jr., M.D. … sued the Federation of State Medical Boards of the United States, Inc. … for defamation and tortious interference with prospective business relations. In response, the Federation moved to dismiss Day's lawsuit pursuant to the Texas Citizens Participation Act …. The trial court granted the Federation's motion to dismiss and awarded it $83,292.50 in attorney's fees. Day filed this appeal…. The Texas State Medical Board … is a state agency that regulates the practice of medicine in Texas.. In…

California Constitution

The Nonsense Factory by Bruce Cannon Gibney - July 19, 2019 - Donna Bader
An appellate colleague, who has been practicing for over 40 years, told me of her upcoming oral argument, a right guaranteed to litigants under the California Constitution. She seemed resigned to the process, “Oral argument is a joke. The Court rarely changes its mind, much less listens to what I have to say. It’s simply done to make the public believe they are really listening.” After spending so many years in litigation, I have to admit that I am often frustrated and pessimistic about getting justice for my clients. Sometimes the end is the best place to start.  In the final chapater of his book, The Nonsense Factory, (published in 2019 by Hachette Books), author Bruce Cannon Gibney notes, “Law cannot survive when people cease to believe in it. Unfortunately, few legal institutions seem moved to address the decay of civic faith.” That loss of faith can be traced back to systems that make or break laws and law schools that accept too many…
Dear Readers,   I wanted to share this interesting perspective from Mitchel Winick.        California Supreme Court Fails Bar Examinees   It is July, and that means another bar exam is looming large for recent law school graduates. In California, it also brings our attention back to the ongoing effort to have the California Supreme Court adjust the bar exam minimum passing score from the arbitrary and unvalidated 1440 cut score that is currently in place to the national mean score of 1350. As Dean of Monterey College of Law, a California accredited law school, I understand that there are those who shrug off this issue as mere whining of California law school deans about low pass rates. However, I would like to offer some facts that better frame the importance of this issue to the profession.   First let me say that recently released bar data provides the best response for the second most common question that I get . . . "why am…
Interesting cases - July 9, 2019
Here's an interesting opinion from 2/8: We hold that the Victims’ Bill of Rights in the California Constitution (art. I, § 28), as amended in 2008 by Proposition 9 (Marsy’s Law or section 28) does not authorize a victim to appeal from a judgment or order in a criminal case. We know, of course, that criminal restitution is an entirely independent constitutional right, but it is available only for losses resulting from crimes of which the defendant has been convicted. Victims may seek writ review, as petitioners did here, when they believe a trial court has failed to follow that constitutionally mandated principle.Also from 2/8, an interesting case here, with a lesson for counsel: Don't assume the court knows what you know.The first problem is that the record contains Montchak’s Twitter tweets, retweets, and pinned tweets. But what are tweets, retweets, and pinned tweets, exactly? The record does not say. (Compare People v. Stamps (2016)…
The Riverside County Superior Court just granted a motion filed by Compassion & Choices on behalf of two terminally ill Californians seeking to intervene in the Ahn v. Hestrin lawsuit. The Court’s order will allow the intervenors to defend against the lawsuit, which seeks to overturn the state’s End of Life Option Act. The law allows mentally capable, terminally ill adults with six months or less to live to have the option to get a doctor’s prescription for medication they can decide to take if their suffering becomes unbearable, so they can die peacefully in their sleep.  In late May of 2018, a Riverside court temporarily suspended the End of Life Option Act, agreeing with the plaintiffs’ claim that the state legislature violated the state constitution by passing the law during a special session limited to health care. On June 1, 2018, Compassion & Choices filed an appeal and obtained a stay that reinstated the law while it was under…
Invasion of Privacy in the Workplace - July 3, 2019 - Daniel A. Thompson
In 1973, the NCAA enacted a rule prohibiting student athlete drug use. Unfortunately, there was no standardized drug test to enforce the rule. At the 1983 Pan American Games in Caracas, Venezuela, several college student athletes tested positive for prohibited drugs, causing great embarrassment for the NCAA and raising questions about competitive fairness. How was the alleged “drug ban” being enforced? The NCAA needed a solution, which, unfortunately, would invade the privacy of student athletes. In 1986, the NCAA adopted a mandatory drug testing program. Among other things, the drug testing policy required student athletes (1) to disclose medications they may be using and other information about their physical and medical conditions; (2) to urinate in the presence of a monitor; and (3) to provide a urine sample that reveals chemical and other substances in their bodies. In 1990, a linebacker on the Stanford football team and the co-captain of the Stanford…
In City and County of San Francisco v. Regents of the University of California, the Supreme Court today holds the California Constitution allows San Francisco, as a charter city, to require state universities in the city to collect from drivers a 25 percent city tax at the schools’ paid parking lots.  The court’s unanimous opinion by Justice Leondra Kruger concludes that state agencies are not exempt from the tax, because it is imposed on drivers who park in all paid lots in the city, and that requiring a state agency to collect and remit the tax does not offend the state constitution. The court states, “Private parties transacting on state property may not appropriate to themselves the state’s immunity from local taxation, and state agencies may not nullify local taxes on account of unfavorable secondary economic effects.”  It also finds that conscripting a state university to be the city’s parking tax collector imposes “no…