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

First Amendment


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The Times considers the First Amendment implications of abortion being legal in some places and illegal in others. And individual news reports about how Dobbs is being received and applied with respect to other rights and issues suggest this will not be limited to abortion.
Two books are currently on trial in Virginia for obscenity. In 2022, that sentence should be shocking. Nearly 50 years ago, the Supreme Court set the high constitutional bar that defines obscenity — a narrow, well-defined category of unprotected speech that excludes any work with serious literary, artistic, political, or scientific value. Since then, few if any books have been deemed obscene. And the standards for restraining a bookseller or library’s ability to distribute a book are even more stringent. Yet, last month, a Virginia resident initiated obscenity proceedings against two acclaimed books: Gender Queer, a Memoir, by Maia Kobabe, an autobiographical graphic novel that depicts the author’s experience as a non-binary and asexual person; and A Court of Mist and Fury, by Sarah J. Maas, a fantasy novel. The obscenity proceedings come amid a nationwide rise in efforts to restrict people’s access to books, and our ability to read, learn, and think for…
Following my online analysis of the Supreme Court’s opinion overruling Roe v. Wade, Dobbs v. Jackson Women’s Health, I heard from folks who were unperturbed by the fact that Dobbs is based on a religious belief—life begins at conception—rather than a legal foundation. One man politely chastised me for my views and suggested that I need to be saved by Christ. When I responded that I am in fact a Christian who disagrees with his beliefs, he told me that, “There is no such thing as TWO true Christianities.” Another conversant urged me to take “the spiritual approach,” which would lead me to truly understand Dobbs and the bans on abortion.Here was my response: “With all the due respect required by the tolerance necessary to our democracy, I do not share your beliefs. Indeed, my faith rejects them. The Constitution is not supposed to be interpreted through one religious viewpoint. Here is irrefutable original intent: the Framers…
On June 15, 2022, Governor John Bel Edwards signed into law Act No. 425, S.B. 426, named the “Allen Toussaint Legacy Act.”[1] The Act is named after the late Allen Toussaint, a famous New Orleans musician, songwriter, and producer. Toussaint was known for hits such as “Java,” “Fortune Teller,” “Southern Nights,” “Working in the Coal Mine” and “Mother-in-Law.” After seeing drink koozies featuring Toussaint’s image sold by vendors outside of the Jazz Fest months after the artist died, Tim Kappel, an entertainment law professor at the Loyola University New Orleans, began pushing for a bill protecting the right to publicity in Louisiana.[2] Before the Act, despite the clear commercial benefit from products featuring Toussaint and other New Orleans legends like Fats Domino and Professor Longhair, the deceased musicians’ estates received no benefit from the sales nor had any power to stop the…
byBickerton Law On Monday, YouTuber Christopher Gunn was charged on allegations that he threatened to “storm” the offices of the federal prosecutors who tried the federal case against the artist known as R. Kelly. Image of R. Kelly | Andrew Steinmetz Wiki Creative Commons license Kelly, a famous R&B singer known for songs like “Bump and Grind” and “I Believe I Can Fly” was charged and convicted of federal racketeering and unlawful transportation charges under the Mann Act in September 2021.  Christopher Gunn, known by his YouTube persona “DeBoSki” is alleged to have told his viewers to “storm” the federal prosecutors’ office if Kelly was convicted. Gunn’s YouTube channel description includes a statement that he is “fighting for the due process rights of all people” and appears to refer to himself as “Mr. Due Process Himself.” In his videos, Dunn…
Charter Fishing Trip“To Have and Have Not” (Warner Bros. 1944) The National Marine Fisheries Service (“NMFS”) published a rule requiring owner and operators of for-hire vessel operating in the Gulf of Mexico to (1) install GPS devices that constantly archived the vessel’s locations, and (2) allow federal fisheries enforcement personnel access to the information.  A group of charter boat captains and owners challenged the regulation, Mexican Gulf Fishing v. Department of Commerce, Dkt. No. 20-2312, 2022 WL 594911 (E.D. La. Feb. 28, 2022), appeal filed, Dkt. No. 22-30105 (5th Cir. March 4, 2020).  The District Court held that the requirement did not violate the Fourth Amendment. The Court also concluded that even though NMFS itself had not explicitly discussed the applicable Fourth Amendment standard, it had adequately addressed commenters “Fourth Amendment” objection to the regulation. Having summarized the District…

Anti-SLAPP


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1-800 Contacts first appeared on this blog on February 9, 2005, my second day of blogging. 17 years later, I’m still blogging their ignoble trademark lawsuits. Some “highlights” of 1-800 Contacts’ trademark jurisprudence over the years: 1-800 Contacts v. WhenU (2d Cir. 2005). A major plaintiff loss against an adware vendor, and who likes adware??? 1-800 Contacts v. Lens.com (10th Cir. 2013). This ruling single-handedly killed the initial interest confusion doctrine in 1-800 Contacts’ home court. FTC v. 1-800 Contacts (FTC 2018). 1-800 Contacts overturned the antitrust piece on appeal to the Second Circuit, but the FTC opinion is still blistering. It showed how (1) 1-800 Contacts overcharges its customers, (2) 1-800 Contacts engaged in lawfare to protect its overpricing, and (3) 1-800 Contacts (intentionally?) misinterpreted the law of competitive keyword ads for many, many years. This week, another court added to 1-800 Contacts’…
Plaintiffs often incorrectly point to their attorney’s fees and costs to set the standard for what is reasonable. Plaintiffs will urge a court to use their attorney’s claimed expenditure of time as the yardstick for an award of fees. However, courts “should defer to the winning lawyer’s professional judgment as to how much time he was required to spend on the case.” Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). This makes sense for a couple of reasons. First, defendants often have to do more work in the average anti-SLAPP case, since they are the moving party. Whereas a plaintiff will only need to file an opposition in the typical case, a defendant will file the moving and reply papers, which involves more work. Second, when a defendant successful obtains dismissal of the entire case, plaintiff’s argument that defendant spent an excessive amount of time on the case rings hollow. A defendant’s success indicates that…
In his post of 25 May 2022 Iain Wilson asked whether Strategic Lawsuits Against Public Participation (SLAPPs) are “a real problem or a defendant’s wildcard”. As co-chairs of the UK Working Group on SLAPPs we are regularly confronted with the all-too real effects of SLAPPs on public watchdogs – those, such as journalists and activists, whose role it is to hold the powerful to account. The problem with responding to Iain Wilson’s claims of exaggeration, however, is that we ultimately have to address a counterfactual: what information would have been published had it not been subject to a  SLAPP? On the one hand, each year seems to bring more  cases that we can confidently refer to as “SLAPPs”. Our central concern, however, is not so much with the immediate impact of SLAPPs on those targeted (brutal as it can be) but on society at large: the articles never written, the reports never published, the abuses of power never exposed.…
Law and Media Round Up – 27 June 2022 - June 26, 2022 - INFORRM
Arron Banks has been granted permission to appeal against Steyn J’s decision in his unsuccessful libel action against journalist Carole Cadwalladr. On 24 June 2022, one of five grounds for permission to appeal was successful, related to the serious harm test post-publication of the Electoral Commission report that found no evidence of law breaking by Banks.   Steyn J said the public interest defence fell away after the Commission’s statement, but that – by that stage – the continuing publication of the Ted talk was not continuing to cause serious harm to the claimant’s reputation.  He was granted permission to appeal on the question as to whether Steyn J was correct to say that the serious harm requirement needed to be satisfied  at the time of the Commission’s statement. The Guardian reports. The Transparency Project has an article on domestic abuse and defamation, following a UK trial in which the claimant accuses the…
In most cases a court is not permitted to consider settlement offers under Evidence Code section 1152, which makes “inadmissible” evidence that is offered to “prove [the offeror’s] liability for the loss.” The main purpose of this rule is to encourage settlement. However, that section does not prohibit a judge from considering a plaintiff’s rejection of a settlement offer when the court is considering a fee motion. In Meister v. Regents of the Univ. of Cal. (1998) 67 Cal.App.4th 445-456, the court found that it was trial court’s discretion to consider a party’s rejection of a settlement proposal, as a court should “consider all the facts and the entire procedural history of the case in setting the amount of a reasonable attorney’s fees award.”). Consequently, plaintiffs should carefully consider a walk away offer from defense counsel, especially if it is made at the beginning of a case, prior to the filing of…
In Nunes v. Meredith, decided today by Judge Jennifer Thurston (E.D. Cal.), Congressman Devin Nunes sued Ben Paul Meredith for common law misappropriation and stalking, based on "Meredith's purported pattern of public, negative commentary about Nunes and his political career." The facts: Nunes has received criticism from many individuals for his political positions and actions taken pursuant to his role in national politics. He has also filed a myriad of lawsuits across the country in attempts to stop this criticism. His lawsuit against Meredith seeks similar relief and makes broad allegations that Meredith used multiple Twitter accounts to harass and stalk Nunes. Nunes did not submit copies of these posts, nor did he identify the accounts, which he contends Meredith manages as part of his alleged scheme to stalk and harass Nunes. According to Nunes, Meredith is a sophisticated artificial intelligence data scientist who co-founded a technology company, which…

California Constitution


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[Note: this is the first of what may become a 3 or 4 part series about anti-Internet bills moving through the California legislature.] This post analyzes California AB 587, self-described as “Content Moderation Requirements for Internet Terms of Service.” I believe the bill will get a legislative hearing later this month. A note about the draft I’m analyzing, posted here. It’s dated June 6, and it’s different from the version publicly posted on the legislature’s website (dated April 28). I’m not sure what the June 6 draft’s redlines compare to–maybe the bill as introduced? I’m also not sure if the June 6 draft will be the basis of the hearing, or if there will be more iterations between now and then. It’s exceptionally difficult for me to analyze bills that are changing rapidly in secret. When bill drafters secretly solicit feedback, every other constituency cannot follow along or share timely or helpful…
Earlier this month the Chief Justice launched a workgroup to examine appellate delay:The official announcement is here: Chief Justice Announces New Workgroup to Enhance Timely Judgments in Appellate CourtsThe workgroup will consider, among other things, measures designed to:Prevent decisional delay in the appellate courts that may cause prejudice or harm to litigants before those courts by identifying practices and guidelines concerning case processing techniques, calendar management, and the administrative duties required to reduce delays; and Provide transparency by requiring appellate courts to report age of case metrics. ... “I would like a final report no later than early next year,” said the Chief Justice, “but I have asked Justice Humes to report back as soon as practical and to make interim recommendations as necessary.”The Recorder had: 'I Don't Know What Happened in the Third:' Chief Justice Launches Workgroup to…
Posted by Sarah Fortt, Betty Huber, and Maj Vaseghi, Latham & Watkins LLP, on Sunday, June 12, 2022 Editor's Note: Sarah Fortt, Maj Vaseghi, and Betty Huber are partners at Latham & Watkins LLP. This post is based on their Latham memorandum. Related research from the Program on Corporate Governance includes Politics and Gender in the Executive Suite by Alma Cohen, Moshe Hazan, and David Weiss (discussed on the Forum here); Will Nasdaq’s Diversity Rules Harm Investors? by Jesse M. Fried (discussed on the Forum here); and Duty and Diversity by Chris Brummer and Leo E. Strine, Jr. (discussed on the Forum here). The law suffers the same fate as the California board diversity law requiring directors from “underrepresented communities.” On May 13, 2022, Los Angeles Superior Court Judge Maureen Duffy-Lewis issued a ruling in Crest v. Padilla I finding that California Corporations Code Section 301.3 (SB 826), which requires publicly listed…
Posted by Sarah Fortt, Betty Huber, and Maj Vaseghi, Latham & Watkins LLP, on Sunday, June 12, 2022 Editor's Note: Sarah Fortt, Maj Vaseghi, and Betty Huber are partners at Latham & Watkins LLP. This post is based on their Latham memorandum. Related research from the Program on Corporate Governance includes Politics and Gender in the Executive Suite by Alma Cohen, Moshe Hazan, and David Weiss (discussed on the Forum here); Will Nasdaq’s Diversity Rules Harm Investors? by Jesse M. Fried (discussed on the Forum here); and Duty and Diversity by Chris Brummer and Leo E. Strine, Jr. (discussed on the Forum here). The law suffers the same fate as the California board diversity law requiring directors from “underrepresented communities.” On May 13, 2022, Los Angeles Superior Court Judge Maureen Duffy-Lewis issued a ruling in Crest v. Padilla I finding that California Corporations Code Section 301.3 (SB 826), which requires publicly listed…
A Look at Drug Testing, Privacy Rights, Last Chance Agreements - June 9, 2022 - Matthew J. Roberts, Esq.
My employee provided a doctor’s note for recent time off that included information that he was out due to “cocaine poisoning.” With this information, can we require the employee to sign a last chance agreement and submit to weekly drug testing? Putting aside the medical information that the employee disclosed voluntarily, the employer here is presented with a few issues related to drug testing and potentially drug rehabilitation leave. Due to the right to privacy enshrined in the California Constitution, drug testing in California workplaces can be a tricky issue to navigate to avoid violating the privacy rights that employees still maintain in the workplace. Drug Testing and Last Chance Agreements In most circumstances, employers are limited to testing their employees only once the employer has a reasonable suspicion that the employee is violating a drug- and alcohol-free workplace policy. That is, the employee is under influence while at work. …
As featured in #WorkforceWednesday:  This week, we look at a range of recent anti-harassment and gender equity updates from across the country. Return-to-Work Behavior Policies and Training As employees across the United States have returned to the office, employers have seen an increased number of complaints about inappropriate behavior in the workplace. Not only are employers responding, but many municipalities and state governments are passing a slate of aggressive new workplace regulations. Read more about new required training and policy updates in Chicago. U.S. Soccer’s Landmark Equal Pay Agreement Last month, the U.S. Soccer Federation and the Women’s National Team reached a historic collective bargaining agreement, resolving a long-running, high-profile gender equity dispute between the women’s team and the league. Board Diversity in California California’s statute requiring businesses in the state to include a minimum number of women…