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

First Amendment


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Today on Lawfare - September 27, 2022 - Hyemin Han
Subscribe to receive this newsletter directly to your inbox.   Articles Social Media Transparency Rules, Zauderer Standard Head to Supreme Court Corbin Barthold analyzed the aftermath of the Eleventh Circuit’s decision in NetChoice v. Moody, arguing that the Supreme Court will have to clarify the law surrounding compelled commercial speech and potentially revisit precedents set in Zauderer v. Office of Disciplinary Counsel. The court upheld (most) of the transparency rules because it determined that those rules are subject not to strict or even intermediate scrutiny—as speech regulations typically are—but to the relaxed “undue burden” standard found in Zauderer. An Ohio attorney was disciplined for failing to divulge, in advertisements offering contingent-fee legal representation, that a client would have to pay some costs even if her suit failed. The issue, Zauderer noted, was whether the state could require that “commercial…
This episode features a much deeper, and more diverse, examination of the Fifth Circuit decision upholding Texas’s social media law. We devote the last half of the episode to a structured dialogue about the opinion between Adam Candeub and Alan Rozenshtein. Both have written about it already, Alan critically and Adam supportively. I lead off, arguing that, contrary to legal Twitter’s dismissive reaction, the opinion is a brilliant and effective piece of Supreme Court advocacy. Alan thinks that is exactly the problem; he objects to the opinion’s grating self-certainty and refusal to acknowledge the less convenient parts of past case law. Adam is closer to my view. We all seem to agree that the opinion succeeds as an audition for Judge Andrew Oldham to become Justice Oldham in the DeSantis Administration.   We walk through the opinion and what its critics don’t like, touching on the competing free expression interests of social media users and of…
Last year Florida passed SB 7072, a pathbreaking (in a bad way) social media speech law. This May, the U.S. Court of Appeals for the Eleventh Circuit issued a significant opinion, NetChoice v. Moody, on that law’s constitutionality. One side (Florida) has sought Supreme Court review, and the other (trade groups representing the major social media platforms) is expected to do so as well. If the Court takes the case—as it probably will, especially given that the Fifth Circuit recently rejected Moody while reviewing HB 20, a Texas law similar to SB 7072—it will likely issue a landmark ruling on whether and how states can regulate social media content moderation. Largely unnoticed, so far, is the possibility that the Court will also revisit a notoriously mysterious precedent, Zauderer v. Office of Disciplinary Counsel (1985), and reshape the law of compelled commercial speech. “Put simply, with minor exceptions, the government can’t tell a private…
Today, we return to a topic that I've blogged about before, but with a new twist. Back in June, I posted here about Arkansas Times, LP v. Waldrip, which was a First Amendment challenge to Arkansas Act 710 (Act 710)....
[Episode 423 of the Cyberlaw Podcast] This episode features a much deeper, and more diverse, examination of the Fifth Circuit decision upholding Texas's social media law than we did last week. We devote the last half of this episode to a structured dialogue  between Adam Candeub and Alan Rozenshtein about the decision. Both have written about it, Alan critically and Adam supportively. I lead off, arguing that, contrary to legal Twitter's dismissive reaction, the opinion is a brilliant and effective piece of Supreme Court advocacy. Alan thinks that's exactly the problem; he objects to the opinion's grating self-certainty and refusal to acknowledge the less convenient parts of past case law. Adam is closer to my view. We all seem to agree that the opinion succeeds as an audition for Judge Oldham to become Justice Oldham in the DeSantis Administration. We walk through the opinion and what its critics don't like, touching on the competing free…
[Guidance given to faculty about effects of state abortion law raise troubling academic freedom questions] According to various reports, the general counsel at the University of Idaho has issued guidance to university employees regarding the state's new abortion law. Of particular interest is the guidance to university faculty about their teaching. Classroom Discussions. Classroom discussion of the topic should be approached carefully. While academic freedom supports classroom discussions of topics related to abortion, these should be limited to discussions and topics relevant to the class subject. The laws discussed above, specifically including those addressing promoting abortion, counseling in favor of abortion and referring for abortion, will remain applicable. Academic freedom is not a defense to violation of law, and faculty or others in charge of classroom topics and discussion must themselves remain neutral on the topic and cannot conduct or engage in…

Anti-SLAPP


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An individual formed a nonprofit public benefit corporation, Xi'an Jiaotung University Alumni Association of Norther California by filing articles of incorporation with the California Secretary of State.  Thereafter, he filed statement of information identifying himself and another individual as officers of the corporation.  He also filed applications for tax-exempt status with the Internal Revenue Service.  The application listed another individual as a director, but he was not informed of this fact and he did not consent to being named in the form.  After the IRS approved tax-exempt status for the corporation, the incorporator filed a Submission of Exemption Request to the Franchise Tax Board.   The unwitting director, however, was not happy and let it be known Wechat.  This led to the filing of a complaint for defamation and libel which led to a cross-complaint.  The plaintiffs (the incorporator and the other officer) filed a…
Our country’s fair and independent courts exist to resolve serious disputes. Unfortunately, some parties abuse the civil litigation process to silence others’ speech, rather than resolve legitimate claims. These types of censorious lawsuits have been dubbed Strategic Lawsuits Against Public Participation, or SLAPPs, and they have been on the rise over the past few decades.  Plaintiffs who bring SLAPPs intend to use the high cost of litigation to harass, intimidate, and silence critics who are speaking out against them. A deep-pocketed plaintiff who files a SLAPP doesn’t need to win the case on the merits—by putting financial pressure on a defendant, along with the stress and time it takes to defend a case, they can take away a person’s free speech rights.  Fortunately, a bill introduced in Congress today, the SLAPP Protection Act of 2022, aims to deter vexatious plaintiffs from filing these types of lawsuits in federal court. TAKE…
Troia was a LoanStreet employee. He was allegedly fired for cause. Troia posted disparaging comments about LoanStreet at Glassdoor.com, Reddit.com, and Teamblind.com. He then worked to boost the posts’ visibility, including: the posts asked users to “follow [his] link and mark it as helpful so that the message is amplified and as many people are warned as possible.” he “tagged the personal LinkedIn profiles of LoanStreet employees on the posts, which spurred a flurry of hate messages sent directly to the employees.” he purchased keyword ads triggered by “LoanStreet” that displayed excerpts of his posts and linked to them. Much of the opinion addresses whether Troia’s posts were defamatory. The court largely sides with LoanStreet. For example, the court says: “Defendant deliberately and strategically utilized the Internet to spread statements capable of defamatory meaning. Defendant cannot now hide under the cloak of…
June 2022 Law Faculty Publications & News - September 8, 2022 - bndmorris
Throughout the month of May, the Law Library received alerts for full-time TTU Law Faculty publications and news. Below is a compilation of those daily alerts for June 1st to June 30th, 2022. Quotes Citations Prof. Bryan T. Camp’s article The Play’s The Thing: A Theory of Taxing Virtual Worlds, was cited in the following article: Seldon A. Evans, Pandora’s Box, 90 Geo. Wash. L. Rev. 376 (2022). Prof. Gerry W. Beyer’s article Leona Helmsley’s Will-A Detailed Analysis, was cited in the following article: William A. Drennan, Restricting Funeral Expense Deductions, 126 Dick. L. Rev. 429 (2022). Prof. Jarod S. Gonzalez’s review The New Batson: Opening the Door of the Jury Deliberation Room after Pena-Rodriguez v. Colorado was cited in the following article: Daniel S. Harawa, The False Promise of Pena-Rodriguez, 109 Calif. L. Rev. 2121 (2021). Prof. Richard W. Murphy’s review Due Process and Judicial Review of Government…
[Mean teachers, bad warrants, and merest coincidences.] Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice. New cert petition: The IRS wants to impose a $2.17 mil civil penalty on an octogenarian from Massachusetts, and she wants to argue that it's a violation of the Excessive Fines Clause. But earlier this year, the First Circuit said there's no need to consider whether the penalty (for failing to timely file a bank-account form) might be a tad excessive because—said the court—the penalty "is not a 'fine'" under the Eighth Amendment. Boom. Case closed. This week, IJ asked the Supreme Court to tell the First Circuit and the IRS (and a bevy of trial courts) to start taking the Excessive Fines Clause seriously. Click here to learn more about the case. Big Sky friends, Short Circuit Live! is heading to the University of Montana on September 15th for a live…
From Fells v. SEIU, decided yesterday by the D.C. Court of Appeals in an opinion by Judge Joshua Deahl, joined by Judges Corinne Beckwith and John Fisher; not as colorful as the inimitable Memphis Pub. Co. v. Nichols (Tenn. 1978), but still an interesting modern example of the libel-by-implication doctrine: Kendall Fells was a high-level employee within the Service Employees International Union (SEIU). After his seemingly forced resignation, SEIU issued a press statement tying his departure to an "ongoing investigation" that was triggered by another executive's sexual misconduct, namely, sleeping with subordinates. In announcing Fells' departure, the statement explained that Fells' own "abusive behavior towards … predominantly female staff" was brought to light by that investigation. Fells sued SEIU for defamation and related claims. He contends that SEIU's statement falsely implied that he was forced out due to sexual misconduct,…

California Constitution


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Last week, Governor Gavin Newsom vetoed  AB 2269 (Grayson) which would have created a "Digital Financial Assets Law" to be administered by the Department of Financial Protection & Innovation.  The Governor in his veto message asserted that it would be "premature to lock a licensing structure in statute".  He also claimed that establishing a "new regulatory program is a costly undertaking, and this bill would require a loan from the general fund in the tens of millions of dollars for the first several years".  AB 2269 could still become law in two ways.  First, the California Constitution specifies that the Governor may veto a bill "by returning it with any objections to the house of origin".  Cal. Const. Art. IV, § 10(a).  A bill that is (i) passed before September 1 (AB 2069 was enrolled on August 26, 2022) before the second calendar year of the legislative biennium (this is the second year…
California Appeals Board Gender Diversity Loss - September 25, 2022 - Stuart Kaplow
Last month, the California Secretary of State appealed the decision by a California Superior Court striking down as unconstitutional California’s board diversity law, which required all publicly traded companies headquartered in the State to include a minimum number of female directors. In 2018, Women on Boards (Senate Bill 826) was signed into law to advance equitable gender representation on California corporate boards, codified as Corporations Code section 301.3. California was the first state in the nation to require all publicly held domestic or foreign corporations whose principal executive offices are located in California to have at least one female director on their boards by December 31, 2019, either by filling an open seat or by adding a seat. By December 31, 2021, those companies were required to have minimum numbers of female directors based on the total size of the corporation’s board of directors (e.g., 3 women directors if the corporation had 6 or…
The public power utility and police racially profiled Asian communities in the illegal data-sharing scheme.SACRAMENTO—The Sacramento Municipal Utility District (SMUD) searches entire zip codes’ worth of people’s private data and discloses it to police without a warrant or any suspicion of wrongdoing, according to a privacy lawsuit filed Wednesday in Sacramento County Superior Court. SMUD’s bulk disclosure of customer utility data turns its entire customer base into potential leads for police to chase and has particularly targeted Asian homeowners, says the lawsuit filed by the Electronic Frontier Foundation (EFF) and law firm Vallejo, Antolin, Agarwal, and Kanter LLP on behalf of plaintiffs the Asian American Liberation Network, a Sacramento-based nonprofit, and Khurshid Khoja, an Asian American Sacramento resident, SMUD customer, cannabis industry attorney, and cannabis rights advocate.  “SMUD’s policies claim that ‘privacy is…
In ZF Micro Solutions, Inc. v. TAT Capital Partners, Ltd., 2022 WL 4090879 (Cal. App. Aug. 8, 2022), the Fourth Appellate District of the California Court of Appeal decided, as a matter of first impression, that a non-derivative breach of fiduciary duty cause of action seeking compensatory damages was legal rather than equitable, and therefore required a jury trial as a matter of law. The Court arrived at its conclusion by evaluating the right and relief requested. In so doing, the Court concluded that because the claim at hand exhibited all the characteristics of a cause of action at law, it was legal, rather than equitable, and should have been tried to a jury. The appeal was limited to the issue of whether ZF Micro Solutions’ (“ZF”) cross-complaint against TAT Capital Partners, Ltd. (“TAT”) should have been tried to a jury. ZF alleged that TAT “murdered its predecessor by inserting a board member who poisoned it.”…
DFPI's Plethora Of Spoils - September 15, 2022
In January, 1832, William Learned Marcy rose in the United States Senate to defend Secretary of State Martin Van Buren from criticism by Henry Clay.  Clay's attack on Van Buren is not remembered, but the words of Senator Marcy's defense are still quoted: "The politicians of New York . . . see nothing wrong in the rule, that to the victor belong the spoils of the enemy."   In 1913, California Governor Hiram Johnson signed into law a state civil service law to address in response to the "spoils" system of government in which politicians rewarded their supporters with government jobs.  Civil service reforms were later embedded in the California Constitution.  Today, Article VII, Section 1 provides: (a) The civil service includes every officer and employee of the State except as otherwise provided in this Constitution. (b) In the civil service permanent appointment and promotion shall be made under a general system…
"Murder most foul, as in the best it is.But this most foul, strange and unnatural."* The California Constitution declares that trial by jury is an "inviolate right" that "shall be secured to all".  Cal. Const. Art. I, §16.  Despite this expansive language, this right in the civil context is generally limited to cases in which the "gist" of the action is legal.  If the "gist" is equitable, there is generally no right to a jury.  Thus, a party's right to a trial by jury depends upon the court's view of the "gist" of the action. "Business is business, and it's a murder most foul"** Drawing the line between legal and equitable actions becomes a bit more complicated when fiduciaries are involved.  In ZF Micro Solutions, Inc. v. TAT Capital Partners, Ltd., 2022 WL 4090879, the cross-complainant alleged that "TAT Capital Partners, Ltd., murdered its…