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

First Amendment


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Dozens of individuals in Harris County, Fort Bend County and Montgomery County have had their conviction for online solicitation of a minor vacated thanks to a Texas Court of Criminal Appeals ruling which held that a Texas law on online solicitation was unconstitutional on First Amendment grounds. As our law firm has conveyed on this site’s Texas Citizen’s Guide to Internet Child Sex Crimes, the Court of Criminal Appeals held that the state law was overly broad and failed to identify “sexually explicit communications.” The Appeals court also found that the law’s admonitions against fantasy sex talk conflicted with Americans’ First Amendment right of free speech. The law in question is Texas Penal Code § 33.021, enacted in 2005, which has since been amended to be constitutional (as far as Appeals courts are concerned thus far in evaluating it). Requesting or sharing nude or sexually explicit videos and photos— also known as explicit…
Dozens of individuals in Harris County, Fort Bend County and Montgomery County have had their conviction for online solicitation of a minor vacated thanks to a Texas Court of Criminal Appeals ruling which held that a Texas law on online solicitation was unconstitutional on First Amendment grounds. As our law firm has conveyed on this site’s Texas Citizen’s Guide to Internet Child Sex Crimes, the Court of Criminal Appeals held that the state law was overly broad and failed to identify “sexually explicit communications.” The Appeals court also found that the law’s admonitions against fantasy sex talk conflicted with Americans’ First Amendment right of free speech. The law in question is Texas Penal Code § 33.021, enacted in 2005, which has since been amended to be constitutional (as far as Appeals courts are concerned thus far in evaluating it). Requesting or sharing nude or sexually explicit videos and photos— also known as explicit…
Rebecca Panico (NJ.com) reports: Roselle Park voluntarily dismissed its case in Superior Court on Tuesday against a borough homeowner who hung anti-President Biden flags with the f-word on her fence. The American Civil Liberties Union of New Jersey was representing the homeowner, Patricia Dilascio, and her daughter, Andrea Dick, in their appeal to Superior Court in Union County. A municipal court judge earlier this month ruled the homeowner had violated a local obscenity ordinance and ordered them to remove the signs with the f-word—or else pay a $250-a-day fine. Glad to hear it; I copy below what I wrote about the case two weeks ago. [* * *] NJ.com (Rebecca Panico) reports (and includes the photo above): Roselle Park Municipal Court Judge Gary Bundy ordered the Willow Avenue homeowner to remove the signs with profanity within a week or face a $250-a-day fine…. "This is not a case about politics. It is a case, pure and simple, about…
[I did another interview with Mathew Ingram at Galley by CJR] Ingram: Eric, thanks very much for doing this. I know we’ve discussed Section 230 before on Galley, so I don’t want to go over old ground, but is there anything about the current situation that is different or has changed your view on Section 230 and its benefits or disadvantages? Does the proposed Klobuchar bill have any merit do you think? Goldman: Thanks for having me again. The Section 230 landscape remains about the same as 2020. Most of the Section 230 reform bills are messaging bills designed to play to the crowd and maybe goose campaign donations. As for their policy “merits,” most of the proposed bills would predictably lead to terrible outcomes that would undermine or eliminate the things that people love most about the Internet. Unfortunately, the bill from Sens. Klobuchar and Lujan is another example of that. Health misinformation may not create any legal liability because it may…
The attempted insurrection on January 6 is back in the headlines. This week, the House select committee investigating the Capitol riot began its work with its very first hearing. So for our Arbiters of Truth series on our online information environment, Evelyn Douek interviewed Quinta Jurecic about social media’s role in warning of the riot. Specifically, they talked about an essay Quinta wrote in Lawfare on the FBI’s failure to examine social media posts announcing plans to storm the Capitol—and how FBI Director Christopher Wray’s explanations don’t hold water. So why does Quinta think Wray has been misleading in his answers to Congress on why the FBI didn’t review those posts from soon-to-be-rioters? What about the First Amendment issues raised by the U.S. government refreshing your Twitter feed? What role is social media playing in the Jan. 6 prosecutions—and what does that say about how tech companies should preserve online evidence…
Scabby the Rat, Coming to a Business Near You? It’s Possible. - July 28, 2021 - Rebekah K. Herman and Ronald Meisburg
Scabby the Rat is a familiar sight in disputes between unions and employers. Scabby, a giant inflatable rat with red eyes, fangs, and claws, is often placed outside the places of business of employers with whom a union has a labor dispute (the “primary” employer).  Recently, the NLRB again addressed the issue of whether such union protests can be directed against a “secondary” neutral employer who does business with the primary employer but who is not party to the underlying labor dispute. Background Generally speaking, federal labor policy seeks to protect the right of unions to exert pressure on a primary employer, but shields secondary employers from such pressure. For that reason, Section 8(b)(4) of the NLRA makes it illegal for a union to “threaten, coerce or restrain” a secondary employer as a means of putting pressure on the primary employer by, e.g., interfering with the business relationship between the two employers. In…

Anti-SLAPP


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Great first lines - July 29, 2021
Opinion readers have been blessed with some great first lines this week (and arguably blessed & cursed with a flood of anti-SLAPP opinions). Here are a couple standoutssamples:The parties in this case have not just been forum shopping; they have been on a veritable shopping spree. (B308417.)It has been said that some contracts are not worth the paper they are written on. (B303096.)
The plaintiff Buckley runs “Top Gun Options,” a site that purportedly teaches users how to trade options. The defendant Moore runs a blog called “TradingSchools.org,” which purportedly does independent reviews of investment products. Moore shot down Top Gun Options in a review entitled “Top Gun Options: A Paper Tiger?” I found this passage especially evocative: if Donald Trump were to squat upon his golden plated commode and squeeze…then a wet, moist, and highly agitated creature would appear. This creature is my best description of Mr. Buckley A fine example of modern-day poetry. The post generated 38 user comments, some of which Buckley also objects to. Buckley sued Moore for defamation, tortious interference, and violations of Florida’s unfair competition law. The court grants the motion to dismiss for the defamation and tortious interference claims, but not the unfair competition claim. Defamation. Florida law requires…
On July 15, 2021, the California Supreme court issued the landmark decision of Jessica Ferra v. Loews Hollywood Hotel LLC, (California Supreme Court Case S259172, decided July 15, 2021) holding that meal, rest and recovery periods must be paid not at an employee’s base hourly rate, but at their “regular rate of pay.” In California, the Labor Code requires non-exempt employees are required to receive 30-minute meal breaks and 10-minute rest breaks, and sometimes additional breaks depending on the number of hours worked. When a break is not provided, the employee is entitled to a penalty equal to one hour of pay. Until the decision in Ferra most employers paid the penalty wages of 1 hour of pay at the base rate. It was easy for payroll to process and easy to explain to employees assuming the paystub identified the type of break pay (meal v rest) and number of hours of each. The Court observed that “Under California law, employers must provide employees…
Can an Attorney Be Sued for Representing a Client in Litigaiton? It may sound ridiculous, but attorneys (or their law firms) are sometimes tacked on as defendants in a complaint. Is this legal? Can another attorney do this? Talkov Law’s attorneys explain how anti-SLAPP law prevents this and the devastating legal repercussions of including a law firm to a list of defendants. Two Prongs of a California Anti-SLAPP Motion Anti-SLAPP statutes are meant to encourage public participation and prevent the justice system from being used as a weapon to prevent free speech. California’s anti-SLAPP statute states, in part, that: “it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process.” Cal. Civ. Proc. Code § 425.16. Furthermore, an anti-SLAPP motion must meet two distinct requirements: in the first step or prong, the…
Aliign “is an event, lifestyle, and apparel company” allegedly with a first trademark use in 2011. Since 2014, they have sold a total of 7 units of apparel (5 of which were bought by the CEO’s friends). lululemon is the well-known yoga gear company. In 2008, it launched its successful “Align” yoga mat line. In 2015, it extended the “Align” mark to yoga apparel, which has generated $1B in sales. Aliign sued lululemon for trademark infringement. lululemon sought summary judgment. I’ll concentrate on the initial interest confusion claim. The court says: “to survive summary judgment on an initial interest confusion claim, AAW must raise a question of material fact as to whether consumers searching for AAW’s product are confused and lured to lululemon’s products.” This sounds a lot like bait-and-switch, but the court still calls it initial interest confusion. Aliign premised its IIC claim on Google search…
California’s Anti-SLAPP History Like 28 other US states, California has enacted an anti-SLAPP statute in its Code of Civil Procedure. The statute states that “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” Cal. Code Civ. Proc. § 425.16. The California Legislature enacted the anti-SLAPP statute in 1992 in response to “a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage…

California Constitution


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Applying the Takings Clause to Regulatory Access - July 27, 2021 - Michael C. Harper
In Cedar Point Nursery v. Hassid, the U.S. Supreme Court enlarged the potential scope of the Takings Clause by applying it against a California regulation that granted union organizers of farmworkers limited access to the property of growers who employed the workers. The decision was the Court’s first application of the U.S. Constitution’s Takings Clause to require compensation from the government for regulatory access to commercially used private property, rather than for the effective prohibition of some commercial use or for the seizure of a property right for governmental or public use. Nevertheless, beyond effectively basing on the constitution some of the Court’s earlier interpretation of federal labor law, the decision may have limited impact on federal and state regulatory law. Agricultural laborers are not covered as employees by the National Labor Relations Act (NLRA) and thus their labor relations may be governed by state law. As a result,…
Top Headlines of the Week Press Releases Judicial Watch Files Civil Rights Lawsuit for High School Teacher Fired for Facebook Posts Criticizing Chicago Riots, Looting, and Violence in the Aftermath of George Floyd Killing Judicial Watch announced recently that it has filed a federal civil rights lawsuit on behalf of Palatine, Illinois tenured high school teacher Jeanne Hedgepeth, who was fired by the suburban-Chicago school district where she had worked for 20 years after posting comments on Facebook criticizing the riots, violence, and shootings in Chicago in the aftermath of the May 25, 2020, killing of George Floyd. HHS Redacts Fauci Email on Funding Recommendation and Hides WHO Information in Judicial Watch/Daily Caller Lawsuit For COVID-19/China/WHO Communications “The American people have every right to know key information on our government’s role in COVID,” said Neil Patel, Daily Caller News Foundation publisher. “This sort of hiding, dodging and…
Last year, Apple’s iOS14 incorporated a new feature notifying users when an app copied from the iPhone’s clipboard.  The feature resulted in media scrutiny for a number of well-known apps, some of which faced putative class action lawsuits as a result.  A court in the Eastern District of California recently dismissed one such suit, Mastel v. Miniclip SA, No. 2:21-cv-00124 (E.D. Cal.).  In that decision, the court rejected a broad interpretation of telephone “instrument” under the California Invasion of Privacy Act (“CIPA”), concluding that non-telephonic smartphone functionality does not constitute a telephone instrument. The plaintiff in that case sued Miniclip, a videogame developer, under CIPA’s wiretapping provision, Cal. Penal Code § 631(a), based on allegations that Miniclip’s app accessed the iPhone clipboard without plaintiff’s consent each time he opened the app.  According to plaintiff,…
California’s Anti-SLAPP History Like 28 other US states, California has enacted an anti-SLAPP statute in its Code of Civil Procedure. The statute states that “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” Cal. Code Civ. Proc. § 425.16. The California Legislature enacted the anti-SLAPP statute in 1992 in response to “a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage…
What is Fauci Hiding? - July 23, 2021 - fvanloon
Biden Administration Redacts Fauci and WHO Emails on COVID-19 Judicial Watch Defends Teacher Fired for Facebook Posts Criticizing Violence after Criticizing BLM Riots
Judicial Watch to Court: Gender Quota for Corporate Boards Violates California’s Constitution Biden Administration Redacts Fauci and WHO Emails on COVID-19 Why does the federal government not want the public to know what Dr. Anthony Fauci or the World Health Organization were communicating about COVID-19? In May 2020 we sued the Department of Health and Human Services on behalf of the Daily Caller News Foundation (DCNF) for emails about COVID-19, China, and WHO. The last response of 311 pages of records includes heavily redacted communications from Dr. Fauci and WHO regarding COVID-19. Certain Fauci emails were redacted, including his personal edits to a COVID-related federal appropriations measure. Emails sent from the WHO were also redacted under a trade secrets exemption. In a letter with the…
Top Headlines of the Week Press Releases Judicial Watch Sues Defense Department for Records of Critical Race Theory Training at West Point Judicial Watch announced that it filed a Freedom of Information Act (FOIA) lawsuit against the Department of Defense for all records related to diversity, inclusion, and equity training for first-year cadets entering West Point. In April, Congressman Mike Waltz (R-Fl), a West Point graduate, made public “examples of Corps of Cadets being mandated to attend seminars and presentations on critical race theory that included inflammatory lessons and presentations that are detrimental to the mission and morale of the U.S. Army.” Judicial Watch to Court: Gender Quota Requirement for Corporate Boards is Gender Discrimination Judicial Watch filed the lawsuit in Los Angeles County Superior Court on August 6, 2019, on behalf of three California taxpayers. The 2018 law, known as Senate Bill 826, requires every publicly held corporation…