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

First Amendment

Some supporters of Judge Brett Kavanaugh’s nomination to the Supreme Court praise him as a warrior for religious liberty. They cite, e.g., his written opinions on contraception and public prayer, as well as his earlier private lawyer amicus briefs for school prayer and religion.Kavanaugh does match the Court’s current pro-religion stance, as a majority of the justices have voted for government prayer, government funding of religion, and approved religious opposition to contraception and same-sex marriage.Those rulings are pro-religion. Kavanaugh’s opponents warn that the judge is not a separationist, and therefore not for religious freedom. Separationist arguments have been losing on the Court for some time now, and we can expect Kavanaugh to contribute to that anti-separationist trend.In the long run, it is important for Americans to remember that pro-religion votes like Kavanaugh’s are not always good for religious freedom.The Supreme Court’s…
This summer, California’s unique-in-the-nation law governing human exposure to toxic chemicals, Proposition 65, has been consistently making Page 1 — but in ways that belie the adage that “all publicity is good publicity.” Most heavily reported, and acutely politically perilous to the law’s supporters, has been a state trial court ruling that coffee must bear a warning to potential consumers that it contains a cancer-causing chemical (acrylamide). The specific implications of this ruling and its broader regulatory context have been widely misunderstood (as I’ve explained in the Sacramento Bee and LA Times), but that does not prevent even legally sophisticated commentators from seizing the opportunity to ridicule California’s law wholesale (see, for example Cass Sunstein mocking coffee warnings here). The coffee plot took yet another turn when the state’s expert agency charged with Prop 65 rulemaking, the Office of Environmental…
Once again, Donald Trump has heedlessly jeopardized important institutional interests of the presidency in the service of his own personal pique.  For years, courts have declined to review the merits of security clearance determinations, relying on Department of Navy v. Egan, in which the Supreme Court held that the kind of “[p]redictive judgment” embodied in the grant or denial of a clearance “must be made by those with the necessary expertise in protecting classified information,” rather than judges.  Even when Congress established protections for intelligence whistleblowers, it provided only for administrative, rather than judicial, review.  The Department of Justice and the intelligence community have vigorously, and successfully, defended this executive branch prerogative. In revoking former CIA Director John Brennan’s security clearance, President Trump has undercut this position.  As Judge Gregory Katsas recently noted in…
Harmon on Policing, Protesting, and Hostile Audiences - August 16, 2018 - CrimProf BlogEditor
Rachel Harmon (University of Virginia School of Law) has posted Policing, Protesting, and the Insignificance of Hostile Audiences (Knight First Amend. Inst. (Nov 2, 2017)) on SSRN. Here is the abstract: Cities like Charlottesville struggle to balance free speech and...
Daily Read: United States Senate Supports Free Press - August 16, 2018 - Ruthann Robson
Senate Resolution 607 , introduced by Senators Brian Schatz and Chuck Schumer, and affirmed unanimously, provides: Whereas the First Amendment to the Constitution of the United States protects the press from government control and suppression; Whereas the freedom of the...
THE PROPER RESPONSE TO THESE COORDINATED EDITORIALS IS TO LAUGH AT THEM: Thoughts on First Amendment theater: The media misdirect attention to the First Amendment rather than hold themselves accountable for reporting often wrong, misleading, or incomplete. They choose loaded words, add phrases, insert catty remarks, and bury ledes. We know. We edit such copy every day. The president doesn’t “slap” on tariffs; he imposes them. He doesn’t “slash” budgets; he reduces them. We edit out Improvised Editorial Devices (IEDs) that have no place in journalism, like the clause “Ever the showman” designed to shape the mental battlefield. We rearrange copy to focus on what is significant, not salacious. We ignore petty subjects they favor and request coverage of significant ones they overlook. A journalist is only as good as the last story written, and journalists should approach subjects with a full set of skills and little baggage.…

Anti-SLAPP

DealDash and Wish are e-commerce vendors. For a while, Wish offered a service called “Deal Dash” for time-limited bargains. Immediately after DealDash sued, Wish renamed its service “Bargain Blitz” and pulled the “DealDash” term from all advertising. DealDash still pressed for a preliminary injunction that restricted, among other things, using “DealDash” as keyword ad triggers in search engines and app stores. Wish submitted an affidavit that it had blocked “DealDash” or “Deal Dash” as negative keywords in AdWords. The court responds: defendant has offered unchallenged evidence showing not only that it has included “Deal Dash” and “DealDash” as “negative keywords,” but that its past use of the “Deal Dash” term “would have occurred only if Google’s own algorithm had included [it]…or if Google had suggested” the term to defendant; the…
Petitions of the week - August 9, 2018 - Aurora Barnes
This week we highlight cert petitions pending before the Supreme Court that address retroactive “public nuisance” liability and the due process clause, the application of a state anti-SLAPP provision in federal court, and the powers granted to states by the 21st Amendment. The petitions of the week are: ConAgra Grocery Products Co. v. California 18-84 Issues: (1) Whether imposing massive and retroactive “public nuisance” liability without requiring proof that the defendant’s nearly century-old conduct caused any individual plaintiff any injury violates the due process clause; and (2) whether retroactively imposing massive liability based on a defendant’s nearly century-old promotion of its then-lawful products without requiring proof of reliance thereon or injury therefrom violates the First Amendment. The Sherwin-Williams Co. v. California 18-86 Issues: (1) Whether, in conflict with decisions of the Supreme Court and the…
In the late 2000s, keyword advertising was one of Internet Law’s hottest topics. Now, not so much. Relatively few lawsuits are filed; they rarely last long in court; and most trademark owners have moved on. But in the Florida Bar, the keyword advertising debate rages on like it’s 2009. If all this sounds familiar, you have a good memory. In 2013, the Florida Bar considered a proposal to ban competitive keyword advertising by lawyers. In a surprising upset, the Board of Governors narrowly rejected its standing committee’s recommended ban. Instead, the BOG said it “is of the opinion that the purchase of ad words is permissible as long as the resulting sponsored links clearly are advertising.” As I wrote at the time: A sensible assessment of a meritless proposal. Let’s hear it for small victories that preserve the status quo! You might think this would have definitively resolved the issue. Certainly, intervening developments have reinforced the…
Judge Kavanaugh and freedom of expression - August 7, 2018 - Timothy Zick
Timothy Zick is the Mills E. Godwin, Jr., Professor of Law at William & Mary Law School. As Jonathan Adler recently observed, Justice Anthony Kennedy’s “expansive conception of the First Amendment’s protection of freedom of speech is among his most important judicial legacies, marking his jurisprudence from his first days on the Court to his last.” Although it is not clear whether Judge Brett Kavanaugh would compile a similar record on the Supreme Court, we can make a few tentative predictions based on his record in the U.S. Court of Appeals for the District of Columbia Circuit. (Of course, all of the usual caveats associated with predicting the behavior of lower court judges once elevated to the Supreme Court apply.) This post reviews cases in which Kavanaugh either joined or authored opinions concerning freedom of speech and, to a lesser extent, other First Amendment rights (specifically, press and petition). It excludes decisions and opinions in…
I'm sorry.  Did I originally file a concurrence that said that we should take this case en banc to make sure that denials of anti-SLAPP motions are no longer subject to immediate appeal?  (Yes.)What I meant is that we should take some future case en banc.  Not this one.That's Judge Gould's change of heart this morning.
Today's DJ has appellate specialist Gary Watt dig into some SLAPP stats (with the help of summer associate Kristine Craig) in California Civil Litigators are SLAPP-Happy: A survey examining the May 2017 to July 2018 timeframe revealed 220 appellate opinions (published and unpublished), with 152 full affirmances and 38 full reversals. That's almost four SLAPP motion opinions per week statewide.Trial court rulings were upheld 69 percent of the time, while full reversals occurred at a rate of 17 percent. That's a full reversal every 11 or 12 days.Regarding published opinions, there were 31, with 17 full affirmances, seven full reversals, and seven other decisions featuring partial reversals. Thus, full reversals made up 22.5 percent of the published decisions -- and the rate of error doubles when partial reversals are considered.An examination of the seven published full reversals in the survey period reveals that five featured reversal of denied…

California Constitution

The post was authored by David Urban. Controversies over free speech, disruptive protests, sharp debates among faculty, withdrawal of invitations to controversial speakers, and interference with rights of expression happen just as much at private as at public colleges and universities. The difference, however, is that the First Amendment to the U.S. Constitution binds only public actors.  At a public college or university, students and employees can assert First Amendment claims against the institution if it tries to discipline or censor them for speech activities.  Students and employees at a private institution, however, do not have that option, because the institution is not bound by the First Amendment. This post addresses three ways in which, even without any First Amendment protections, those at private colleges and universities do have expression rights that are safeguarded by law. Private educators have to take these rights into consideration when making…
Schools and childhood roundup - August 10, 2018 - Walter Olson
Judge greenlights lawsuit claiming right to literacy under California constitution [Stephen Sawchuk, Education Week] Whatever its surface appeal, legal right to literacy (or access to same) not in fact a good idea [Scott Greenfield on Michigan suit] “Teachers’ unions plan to become ‘more political, not less political'” [Frederick Hess and Grant Addison] “The Long-Run Effects of Teacher Strikes: Evidence from Argentina” [David Jaume and Alexander Willén, Cato Research Brief] Worsening human capital outcomes: “The Long-run Effects of Teacher Collective Bargaining” [Michael Lovenheim and Alexander Willén, NBER via Tyler Cowen] D.C.’s credentialism will hurt families: “Childcare Regulation and Quality” [Ryan Bourne, Cato, earlier here, here, here, and here] “The Department of Education’s Obama-Era Initiative on Racial Disparities in School Discipline: Wrong for Students and…
Attorneys Rahul Ravipudi and Jesse Creed of Panish Shea & Boyle LLP and Marci Lerner Miller of Miller Advocacy Group have filed a nationwide, class action lawsuit against college test company ACT for violating the civil rights of students with disabilities under federal and California law. Plaintiffs allege and seek to end the illegal practice by the college admissions gatekeeper of acquiring the disability status of students taking the ACT Test, and then disclosing their confidential disability information on score reports to colleges and other programs as well as selling the information to them for recruitment and enrollment purposes — a direct violation of the American with Disabilities Act (ADA), Unruh Act, California Constitution, and California’s Unfair Competition Law. “This takes us back 50 to 100 years with respect to stereotyping and prejudices,” Mr. Ravipudi told the Daily Journal of ACT’s illegal practice. “This…
5th DCA pro tem update - July 23, 2018
Judge Wayne R. Ellison (Retired) of the Superior Court of Fresno County, having been assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution will be sitting pro tempore through August 31, 2018.
The Supreme Court’s Wednesday conference agenda this week was a little lighter than usual, but the court made big news on one case in particular, striking a qualified initiative from the November 2018 ballot. Other actions of note include: The court granted review in People v. Perez, limiting the issue to this:  “Did defendant’s failure to object at trial, before People v. Sanchez (2016) 63 Cal.4th 665 [see here] was decided, forfeit his claim that a gang expert’s testimony related case-specific hearsay in violation of his Sixth Amendment right of confrontation?”  A Sanchez issue was raised in a death penalty case in March.  The case might be renamed People v. Chavez, because the court actually denied Perez’s petition for review and granted the petition of a co-defendant, Edgar Ivan Chavez Navarro.  The Fourth District, Division Two, Court of Appeal affirmed the defendants’ convictions, but reversed special…
Vik Amar for Justia: Among the legal stumbling blocks currently being talked about is the California Constitution’s vexing distinction that I analyzed in detail (in the two postings linked above) between so-called “amendments” to and “revisions” of the document. I continue to … Continue reading →