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

First Amendment

Following an FBI raid of his home last year, the freelance journalist Tim Burke has been arrested and indicted in connection with an investigation into leaks of unaired footage from Fox News. The raid raised questions about whether Burke was being investigated for First Amendment-protected journalistic activities, and EFF joined a letter calling on the Justice Department to explain whether and how it believed Burke had actually engaged in wrongdoing. Although the government has now charged Burke, these questions remain, including whether the prosecution is consistent with the DOJ’s much-vaunted policy for charging criminal violations of the Computer Fraud and Abuse Act (CFAA). The indictment centers on actions by Burke and an alleged co-conspirator to access two servers belonging to a sports network and a television livestreaming service respectively. In both cases, Burke is alleged to have used login credentials that he was not authorized to use, making the access…
Back in February 2022, the Federal Trade Commission (FTC) announced an advance notice of proposed rulemaking (ANPRM) on “deceptive or unfair earnings claims.” According to the FTC: [The Deceptive or Unfair ANPRM was aimed at] challenging bogus money-making claims used to lure consumers, workers, and prospective entrepreneurs into risky business ventures that often turn into dead-end debt traps. If finalized, a rule in this area would allow the Commission to recover redress for defrauded consumers, and seek steep penalties against the multilevel marketers, for-profit colleges, “gig economy” platforms, and other bad actors who prey on people’s hopes for economic advancement. The FTC has not yet proposed a final rule in this matter. A just released Mercatus Center policy brief by my colleague Tracy Miller concludes that the FTC should not issue a new Magnuson-Moss rule (pursuant to 15 U.S.C. § 57a) directed at deceptive or unfair marketing…
Posted by Anna Restuccia (Harvard Law School), on Thursday, February 22, 2024 Editor's Note: This post provides the text of the complaint filed on January 30, 2024 by the U.S. Chamber of Commerce against California over the state’s new corporate climate disclosure laws. IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, CALIFORNIA CHAMBER OF COMMERCE, AMERICAN FARM BUREAU FEDERATION, LOS ANGELES COUNTY BUSINESS FEDERATION, CENTRAL VALLEY BUSINESS FEDERATION, and WESTERN GROWERS ASSOCIATION, Plaintiffs, v. CALIFORNIA AIR RESOURCES BOARD, LIANE M. RANDOLPH, in her official capacity as Chair of the California Air Resources Board, and STEVEN S. CLIFF, in his official capacity as the Executive Officer of the California Air Resources Board. Defendants. INTRODUCTION 1. This lawsuit challenges two novel California laws that unlawfully attempt to regulate speech related to…
Posted by Anna Restuccia (Harvard Law School), on Thursday, February 22, 2024 Editor's Note: This post provides the text of the complaint filed on January 30, 2024 by the U.S. Chamber of Commerce against California over the state’s new corporate climate disclosure laws. IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, CALIFORNIA CHAMBER OF COMMERCE, AMERICAN FARM BUREAU FEDERATION, LOS ANGELES COUNTY BUSINESS FEDERATION, CENTRAL VALLEY BUSINESS FEDERATION, and WESTERN GROWERS ASSOCIATION, Plaintiffs, v. CALIFORNIA AIR RESOURCES BOARD, LIANE M. RANDOLPH, in her official capacity as Chair of the California Air Resources Board, and STEVEN S. CLIFF, in his official capacity as the Executive Officer of the California Air Resources Board. Defendants. INTRODUCTION 1. This lawsuit challenges two novel California laws that unlawfully attempt to regulate speech related to…
  This is the second in a hopefully finite series of blog posts about the legal issues in the NetChoice cases, in which platforms raise First Amendment challenges to social media laws in Texas and Florida. The first post, which includes some more basic questions, is here. Since publishing it, I've put out another Lawfare post exploring in more depth the idea that the states' laws might somehow make platforms carry important speech without also making them carry what the Fifth Circuit called "vile" speech.   This FAQ was written hastily, and has more risk of typos and errors than usual. If I find those, I will correct them. (With the likely exception of the changing font size. Sorry. Fixing that requires manually altering the HTML.)    Here are the questions for this round:   Who will win? What will platforms do if they lose? Does the Court "get" the legal issues in these cases? Don’t these…
Federal prosecutors who opted not to pursue charges against “Antifa” members cannot prosecute a Huntington Beach man accused of helping establish a Southern California-based militant, white supremacist group whose members attacked rivals at Southern California political rallies, a judge ruled Wednesday. Criminal charges against Robert Paul Rundo for allegedly recruiting and training others to commit violence at rallies in Huntington Beach, San Bernardino and Berkeley were dismissed by U.S. District Judge Cormac J. Carney, who accused the U.S. Attorney’s Office of selective prosecution for pursuing suspected “far-right, white supremacist nationalists” but not “Antifa and other extremist, far-left groups.” Previous efforts by the same judge to throw out the same charges for different reasons have been overruled by appellate judges. Judge Carney also came under scrutiny several years ago over a “racially insensitive” comment…

Anti-SLAPP

SLAPPed Down - February 15, 2024 - Legal Profession Prof
The voluntary dismissal of a defamation suit two days after a motions hearing does not create a bar to an award of attorneys fees under an anti-SLAPP provision, according to a decision of the District of Columbia Court of Appeals....
Virginia Code § 8.01-223.2, informally known as the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, provides immunity in tort for statements on matters of public concern (subject to certain exceptions not relevant here). I recently had an issue arise in a case that prompted the question of what “that would be protected under the First Amendment” really means in the context of how that phrase is used in the statute, which states in pertinent part as follows: A person shall be immune from tort liability if the tort claim is based solely on statements (i) regarding matters of public concern that would be protected under the First Amendment to the Constitution of the United States made by that person that are communicated to a third party…. In the course of litigating an anti-SLAPP statute issue recently, my opponent argued that the language, “that would be protected under the First Amendment,” means that the statement at…
[Eugene Volokh] Alleged Neo-Nazi Loses Libel Lawsuit - February 12, 2024 - Eugene Volokh
From Weaver v. Millsaps, decided Wednesday by the Georgia Court of Appeals, in an opinion by Judge C. Andrew Fuller, joined by Judges Anne Elizabeth Barnes and Benjamin Land: After Michael Weaver and others acting at his behest posted negative Google reviews of Valerie Millsaps's frame shop business, she published a response, calling Weaver a Neo-Nazi and known felon who was targeting her business and had "threatened to kill other shop members."  … Millsaps and her husband own a framing shop in Cartersville. One day in June 2022 while Millsaps was driving her company van, she saw Weaver standing on the street holding a sign that appeared to be antisemitic. Millsaps "displayed [her] middle finger" at Weaver. Weaver, having seen the business logo on the van, published a post on his personal blog asking his followers to leave negative Google reviews of the business. Within 12 hours, multiple negative reviews appeared on the business's…
By Madeleine Petersen Weiner, Research Fellow and Doctoral Candidate at Heidelberg University Introduction On 8 February 2024, Advocate General (AG) Szpunar delivered his Opinion on C-633/22 (AG Opinion), submitting that disproportionate damages for reputational harm may go against the freedom of expression as enshrined in Art. 11 Charter of Fundamental Rights of the European Union (CFR). The enforcement of these damages therefore may (and at times will) constitute a violation of public policy in the enforcing state within the meaning of Art. 34 Nr. 1 Brussels I Regulation. The AG places particular emphasis on the severe deterring effect these sums of damages may have – not only on the defendant newspaper and journalist in the case at hand but other media outlets in general (AG Opinion, paras. 161-171). The decision of the Court of Justice of the European Union (CJEU) will be of particular topical interest not least in…
From today's Oregon Court of Appeals decision in Cider Riot, LLC v. Patriot Prayer USA, LLC, in an opinion by Chief Judge Erin Lagesen, joined by Judge Jacqueline Kamins and Megan Jacquot: Plaintiff Cider Riot, LLC, is a brewery and bar in Northeast Portland. Plaintiff Goldman-Armstrong is its owner and operator. This tort case arises, for the most part, out of a 2019 clash between patrons of Cider Riot, who are associated with Antifa, and, among others, defendants Gibson, Kramer, Ponte, Willis, and Lewis, all of whom are associated with a group or movement known as Patriot Prayer. Defendant Patriot Prayer USA, LLC, is a limited liability company owned entirely by Gibson. It has no members other than him. Those who identify with Patriot Prayer hold starkly divergent views from those who identify with Antifa. Those divergent views have generated immense hostility, which has led to confrontations, which has resulted in violence between those holding opposing views. The clash…
[Criminalizing journalism, spooking gun buyers, and fashioning the destiny of the community.] Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice. New case! Last year, at the request of large dairy producers, Oregon agriculture officials decided to force small dairies to comply with the same regulations that apply to big dairies. Which means, for instance, installing ruinously expensive equipment to manage health concerns that simply don't exist when you have three cows in a pasture versus hundreds in confined spaces. Click here to learn more. Federal gov't alleges that illegal materials are destroying lives after being smuggled across the border between Mexico and the United States and demands that those who profit from their sale be held accountable. But in a Serlingesque twist it's the federal gov't of Mexico, the illegal materials are guns being smuggled south, and those who…

California Constitution

In Discovery Builders, Inc. v. City of Oakland (2023) 92 Cal.App.5th 799, the First District Court of Appeal held an agreement between a developer and the City of Oakland was unenforceable to the extent it prevented the city from imposing new impact fees in the future. The court reasoned such a provision constituted an impermissible contracting away of the city’s police power. Between 2004 and 2005, the city approved a vesting tentative map and final tract maps for a 400-unit housing project. The city’s approval required that the developer satisfy various terms and mitigate various environmental impacts. In 2005, the city and developer entered into a separate agreement (“2005 Agreement”), which set the terms by which the developer would compensate the city for employee services and outside consultants required to satisfy the agreed-upon terms and mitigation requirements. Development of the project began soon thereafter. In 2016, as development was…
Construction accidents in CA refer to mishaps on construction sites leading to harm. Construction site accidents occur during construction operations involving poor safety precautions, equipment malfunction, human mistakes, or carelessness. Identifying and addressing these issues can prevent Construction Site Injuries. Also, the state legislation has developed a few stunning workers’ rights that protect them from several losses involving both bodily and financial. Reach out to a construction accident law firm Gaylord & Nantais promptly when faced with a Construction Site Injury in CA. A skilled construction accident injury lawyer can assess your case, ensuring timely action and optimal legal guidance. An overview of the construction site safety features described in the California constitution. The California constitution emphasizes construction site safety through stringent regulations and provisions. It mandates a safe work environment, requiring…
Last year, I commented on the likely unconstitutionality of two California laws compelling forced speech: The California legislature has of late adopted the tactic of driving behavior by compelling speech.  SB 253 (Wiener), for example, compels disclosure of greenhouse gas emissions and SB 261 (Stern) requires disclosure of climate-related financial risks.  Both of these requirements clearly compel speech arguably in contravention of the First Amendment to the U.S. Constitution.  Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 61 (2006) ("Some of this Court's leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say."). I had previously noted that SB 253 was very similar to an earlier bill that did not make it into law. Yesterday, the Chamber of Commerce of the United States of America and several…
Article IV, Section 9 of the California Constitution provides "A statute shall embrace but one subject, which shall be expressed in its title".  This rather simple notion, absent from the United States Constitution, dates back over two millenia to the Roman Republic.  In 98 B.C.E., two consuls, Quintus Caecilius Metellus Nepos and Titus Didius fathered the enactment of the eponymous Lex Caecilia Didia.  Like its modern counterpart, the Lex Caecilia Didia prohibits a lex satura, or stuffed law.   The second century Roman grammarian Sextus Pompeius Festus described a "stuffed law" as a "lex multis aliis conferta legibus" or a law crowded with many others.  The great Roman lawyer Marcus Tullius Cicero described the Lex Caecilia Didia as follows in his Oratio de Domo Sua: Quae est, queso, alia vis, qua sententia Caecilia Legis et Didiae nisi hae, ne populo necesse sit in coniunctis rebus…
In 2022, the California legislature enacted statutory changes ostensibly to limit the spread of misinformation and disinformation about COVID-19 by licensed physicians.  2022 Cal. Stats. ch. 938 (AB 2098), See California Legislates Covid-19 Orthodoxy and Could California Bill Result In Discipline Of C.D.C. Doctors?  This law was successfully challenged in federal court.  See Federal Judge Enjoins Physician Gag Law.  Last September, the legislature enacted SB 815 (Roth) which, among other things repealed the statute designating the dissemination of misinformation or disinformation related to COVID-19 as unprofessional conduct.  That repeal became effective on January 1, 2024 pursuant to Art. IV, Sec. 8(c)) of the California Constitution.   
On a recent episode of the Stanford Law School podcast, Stanford Legal, co-host Pam Karlan discussed the national abortion rights landscape after Dobbs v. Jackson Women’s Health Organization, the 2022 case that overturned Roe v. Wade. Karlan is the Kenneth and Harle Montgomery professor of public interest law, co-director of the Supreme Court Litigation Clinic, and an expert on constitutional law, including reproductive rights. Women, doctors, advocates, and others are now navigating a deeply divided country with a patchwork of reproductive rights laws–and some surprising post-Dobbs consequences, Karlan explains in the recent interview with her podcast co-host, Richard Thompson Ford, the George E. Osborne Professor of Law. The following is an edited excerpt of the full interview, which can be found here. We should begin by going back to when the Supreme Court changed the legal landscape with respect to abortion. Could you tell us a bit about what happened in the…