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

First Amendment

Former Department of Public Safety Forensic Scientist ("DUI Expert") Greg Ohlson has filed a civil lawsuit in the United States District Court against the Arizona Department of Public Safety ("DPS") for violating his First Amendment Rights by retaliating against him for testifying negatively about DPS testing and disclosure policies and procedures in DUI cases. Mr. Ohlson worked in the Toxicology Department in the Scientific Analysis Bureau at DPS from 2004 until 2016 and testified in hundreds of DUI trials and evidentiary hearings on behalf of the prosecution as their "DUI expert" witness. According to recent news reports, in 2015, Ohlson was in charge of blood tests for DPS DUI cases and would test dozens of blood samples that would make up a single batch. The lawsuit alleges that it was DPS' policy not to allow defense attorneys to access the entire batch results through the discovery process, reasoning it would take too much time. Over the…
Revenge porn has made headlines in recent years. It’s the practice of posting nude or semi-nude pictures of a former partner on the internet without his or her permission. Texas has criminalized the practice. However, a court has struck down the Texas revenge porn law for being too broad and in violation of the First Amendment. The law was enacted in 2015 after its author, Sen. Sylvia Garcia, D-Houston warned the “very disturbing internet trend” of posting revealing pictures of ex-partners was occurring in Texas, reported the Texas Tribune. Under the law, it is a misdemeanor offense to post a previous partner’s nude or semi-nude photographs. The offense carries a sentence of up to a year in jail and a $4,000 fine. However, the 12th Court of Appeals sitting in Tyler ruled the Texas law is unconstitutional and its content restrictions are overly broad and infringe on free speech. Chief Justice James Worthen wrote that the First Amendment usually prohibits…
Revenge porn has made headlines in recent years. It’s the practice of posting nude or semi-nude pictures of a former partner on the internet without his or her permission. Texas has criminalized the practice. However, a court has struck down the Texas revenge porn law for being too broad and in violation of the First Amendment. The law was enacted in 2015 after its author, Sen. Sylvia Garcia, D-Houston warned the “very disturbing internet trend” of posting revealing pictures of ex-partners was occurring in Texas, reported the Texas Tribune. Under the law, it is a misdemeanor offense to post a previous partner’s nude or semi-nude photographs. The offense carries a sentence of up to a year in jail and a $4,000 fine. However, the 12th Court of Appeals sitting in Tyler ruled the Texas law is unconstitutional and its content restrictions are overly broad and infringe on free speech. Chief Justice James Worthen wrote that the First Amendment usually prohibits…
Multiple employment laws in New York City prohibit employers from discriminating on the basis of sex, which includes sexual harassment. Employers, however, may use contractual provisions to limit employees’ ability to file suit. An arbitration clause in an employment agreement, for example, may require the submission of any disputes to a private arbitrator, which can have various advantages for employers. Another contractual provision that has received attention recently is the nondisparagement clause, which states that one or both parties may not make public comments disparaging the other party. Some nondisparagement clauses expressly prohibit making reports to government regulators, leading to concern about chilling effects on employees who might otherwise come forward with allegations of sexual harassment. Critics further allege that nondisparagement clauses provide protection for individuals who engage in sexual harassment by keeping the allegations against them…
One of the main points at issue in the travel ban case that will be argued before the Supreme Court on Wednesday is whether courts can use President Donald Trump's campaign statements as proof that the true motive for the policy is discrimination against Muslims. The administration and other defenders of the travel ban argue that judges are not allowed to consider such evidence. If this theory prevails, it would set a dangerous precedent for other discriminatory policies. The Supreme Court has long held that seemingly neutral policies can be invalidated if the motive behind them is discrimination on the basis of race ethnicity, sex, religion, or some other classification forbidden by the Constitution. Under that standard framework, the travel ban should be toast. During the 2016 campaign, Trump repeatedly called for a "Muslim ban" that would bar Muslims from entering the United States. When he eventually switched to a a policy of targeting citizens of…
Bryan L. Adamson, Seattle University School of Law, is publishing The 'Blurred Lines' of Marvin Gaye's 'Here, My Dear': Music as a Tortious Act, Divorce Narrative and First Amendment Totem in volume 36 of the Cardozo Arts & Entertainment Law Journal (2018). Here is the abstract. In 1977, singer Marvin Gaye did an audacious thing: Anna Gordy-Gaye was divorcing him, and asking for $1 million dollars. Despite having a wildly successful career up to that point, Marvin was near financial ruin. His attorney, Curtis Shaw, hit upon an idea: Motown, Marvin’s record label, had given him $305,000 as an advance for his upcoming-but-undeveloped album. Marvin would give Anna the $305,000, and pledge the first $295,000 of the royalties yielded from that recording. Instead of $1 million, Anna agreed to the $600,000, as did Motown’s CEO Berry Gordy, Anna’s brother. The judge wrote up an Order to that effect. Composed, written (with a few…

Anti-SLAPP

Paul Alan Levy, an attorney at Public Citizen, blogger, and general free speech badass is familiar to Popehat's readers for his legal exploits. We're happy to have a guest post from him today. The generally accepted popular narrative about the sudden settlement of Karen McDougal’s lawsuit against the National Enquirer (through its parent company, American Media, Inc.) for its “catch and kill” treatment of her account of her affair with Donald Trump is that the FBI’s April 9 execution of a search warrant at Michael Cohen’s office was what made the difference, coupled with the possibility that had the case continued, McDougal’s very able counsel, my friend Peter Stris would be able to start taking discovery that might prove very embarrassing to all concerned. I believe that narrative to be mistaken. Certainly the prospect for discovery might have been a concern for some in the long run, but the narrative misses two points. First, on…
Today, in a mood for some history, I walked half a mile to the new federal courthouse to watch United States District Court Judge James Otero hear argument on Michael Cohen's motion to stay — that is, freeze — Stephanie Clifford's aka Stormy Daniels' lawsuit. That suit seeks a ruling that her bizarre $130,000 hush-money agreement not to tell tales about the President of the United States is void and not enforceable because, among other reasons, President Trump never signed it. I've previously described what the case is about and the nature and significance of Cohen's request for a stay. Although Judge Otero took the matter under submission — promising to rule in writing — the hearing did not disappoint. I gathered with a scrum of press and interested citizens and surrendered my electronics at the door — an unusual move calculated to prevent livetweeting and other shennanigans. For the benefit of my readers who are…
Oh my God. Oh my God. Ohmigod ohmigod OMG. Now what? This Michael Cohen thing. You're going to have to be way more specific. He's trying to take the Fifth! He wants the Stormy Daniels lawsuit stopped so he can take the Fifth! Well. Sort of. Isn't that huge? Yes and no. That's not helpful. You're not being helpful. Imagine my guilt. What is it that you want to know about? What part of the Stormy Daniels lawsuit don't you understand? Just a tiny bit of it. Just a bit. Some. Part of it. Just part . . . all of it. I don't understand any of it. I don't know what's going on, I just nod when people talk about it. Okay. Let's start from the beginning. So. Stormy Daniels, whose real name is Stephanie Clifford, claims she had a relationship with Donald Trump in 2006 and 2007. She claims that when the infamous "grab them by the pussy" Access Hollywood tape became public, she wanted to tell her story to the media. …
“Lust on Trial” is the story of the most extraordinary efforts in American history to make us a moral Christian nation . . . . [It is the story of a man] who truly believed that lust would lead mankind to the eternal fires of hell. [Thus, it] was his mission throughout his life to destroy any materials that would arouse lust . . . . And he pursued that mission relentlessly throughout his career. — Amy Werbel  Anthony Comstock Anthony Comstock (1844-1915): By any and all measures, he was the greatest enemy of free speech in America; and his legacy of suppression endured long after he died. Intoxicated with his own sense of moral righteousness and obsessed with what he deemed to be immoral expression, Comstock (a devoted evangelical) went after his targets with ruthless passion. No book, dime novel, newspaper, magazine, pamphlet, manual, photograph, printing plate or even postcard was safe from his censorial clutches. This founder of the New…
It's worth the occasional reminder to mention that the volume of the unpublished work by the Court of Appeal massively swamps the published component.  For example, today, at least as of 2:20 p.m., there's absolutely nothing at all published by the California Supreme Court, the Court of Appeal, or the Ninth Circuit.  Nothing.  Yet there are no less than twenty unpublished dispositions from the Court of Appeal.Not bad for a single workday.So, if only for entertainment (or shock) value, I thought I'd mention one of those cases -- one that involves an anti-SLAPP motion and a raucous public meeting.  At which there's indisputably a "kerfuffle" that ends when one of the participants allegedly tells another "You fucking faggot. Get the fuck out of my store! . . . . Get the fuck out of the store, you faggot, or I am going to call the Sheriff.” Which is not something you typically hear at your usual Town Council…
If you're putting a whole sentence in parentheses, the custom follows logic -- put the period inside the parentheses, not outside it. Thus, for an example from a court case (in a state, California, where citation sentences are often put in parentheses), A two-step analysis is required when the superior court is requested to rule on a special motion to strike under the anti-SLAPP statutory framework. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) The same thing with a more traditional English sentence would read, A two-step analysis is required when the superior court is requested to rule on a special motion to strike under the anti-SLAPP statutory framework. (The California Supreme Court has taken this view since at least 2002.) The following is not customary (focus on the last two characters): A two-step analysis is required when the superior court is requested to rule on a special motion to strike under the anti-SLAPP statutory framework.…

California Constitution

It is time for an update on a proposal—about which I wrote two columns (the second of which is here) last summer—that seeks to carve California up into three separate states. Last week, Silicon Valley venture capitalist Tim Draper, the driving force behind the proposal, announced that his organization had gathered more than 600,000 signatures from registered voters throughout the state’s 58 counties. That volume of signatures, if verified by the California Secretary of State, would easily exceed the number of signatures required by state law to put the measure on the statewide ballot this November. If California voters were to adopt the measure, it would then move on to be considered by the federal government; the US Constitution requires federal as well as state approval before new states are added to the union.Given that the measure may be before California voters in a matter of months, I offer below a brief summary of the proposal, and then three key…
It's a slow news day in the appellate courts.  Nothing at all from the California Supreme Court or Court of Appeal.  And only an amendment to an opinion from the Ninth Circuit.  Zzzzzzz.Though it does give me a chance to go back a tiny bit.See what you think about this opinion from last month.  The question is whether the defendant is such a threat to public safety that he should be denied bail entirely.  (The California Constitution says that you can only deny bail in this setting if  "the court finds based on clear and convincing evidence that there is a substantial likelihood the person's release would result in great bodily harm to others.")You could see strong feelings being raised on both sides.  Do you think there's "clear and convincing" evidence that there's a "substantial likelihood" that this guy will reoffend while on bail?"Fifteen-year-old J.D. lived with her family near the…
The American Civil Liberties Union (ACLU) [advocacy website] filed a lawsuit [complaint] in the Superior Court of California - Orange County Wednesday seeking declaratory and injunctive relief against the Orange County District Attorney (OCDA) and Orange County Sheriff (OCSD) [official websites] for operating secret jailhouse informant programs allegedly in violation of the US Constitution, California Constitution and California state laws. The ACLU alleges that the "OCDA does not disclose anything about the Informant Program to the criminal defendants or their...
We’re holding Orange County prosecutors and sheriffs accountable for breaking the law. When Bethany Webb’s sister, Laura, was killed in a mass shooting in 2011, she couldn’t imagine things getting worse. But then District Attorney Tony Rackauckas of Orange County, California, took the case. In his zeal to impose the death penalty — over Webb’s objection — Rackauckas employed jailhouse informants to elicit damning statements from the defendant, Scott Dekraai, while Dekraai was in jail. These informant-defendant interactions violated the Constitution’s right to counsel — no one is allowed to interrogate defendants without their attorneys present. Rackauckas knew that what he was doing was illegal, but he did it anyway. And it wasn’t the first time Rackauckas had broken the law in pursuit of a conviction. In fact, Rackauckas and Orange County Sheriff Sandra Hutchens had overseen a systematic, methodical program of using…
The Court issued two decisions yesterday. In the first, In re Butler, S237014, the defendant was serving an indeterminate prison sentence (e.g., a minimum number of years to life) for second-degree murder. The Board of Parole Hearings entered into settlement agreement regarding calculation of base terms governing the earliest possible release date for use at initial parole hearing.  The Board later moved to modify settlement agreement. The Court of Appeal denied motion. Board petitioned for review.  In a unanimous decision written by Justice Cuellar, the Court held post-settlement changes in the law, such that “base terms” no longer govern the release dates of inmates serving indeterminate sentences, were sufficiently material so as to require modification of the settlement agreement.  The court also held the Constitution’s “cruel or unusual punishment” clause did not require the Board to continue setting base terms for inmates. In…
It's sometimes helpful when a dissent begins by quoting at some length -- and then responds to -- the majority opinion.  Because that's a pretty concise summary of the justices' respective opinions.For example, Justice Liu's dissent in this case begins by saying:"According to today’s opinion, “[t]he sole question before us is whether it was reasonable, under either the Fourth Amendment or article I, section 13 of the California Constitution, to require the defendant in this case to swab his cheek as part of a routine jail booking procedure following a valid arrest for felony arson.” (Maj. opn., ante, at p. 41, italics added.) This statement of the issue is misleading.The . . . (DNA Act) requires collection of DNA from all adult felony arrestees “immediately following arrest” and requires samples to be “forwarded immediately” to the laboratory for analysis. Buza was arrested on January 21, 2009. At booking a…