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

First Amendment

Last month the Supreme Court held in Janus v. AFSCME that it is unconstitutional for the states to require public employees to pay labor unions if they choose not to become members (these payments were called "agency fees"). There has been plenty written about what this means for the future of public sector unions and what might happen next. But it turns out that there is another important question: what about the agency fees that unions had been collecting before Janus? Are unions liable for collecting them? Can they be forced to pay them back? A series of lawsuits have been recently brought in seven states arguing that unions are liable, and now subject to quite significant liability. Noam Scheiber has a story in the New York Times about the suits, (and the lawyer bringing the suits, a former law professor and former Texas solicitor general, Jonathan Mitchell): Even before the Supreme Court struck down mandatory union fees for government workers last month, the…
Lozman v. City of Riviera Beach In Lozman v. City of Riviera Beach, 138 S. Ct. — (2018), the Supreme Court once again avoided ruling generally on the question whether a section 1983 plaintiff who alleges a retaliatory arrest in violation of the First Amendment must allege and prove the absence of probable cause in […]
Facebook's Mark Zuckerberg has been getting flak the last couple of days because of his arguments against removing Holocaust-denying speech from Facebook. He was asked in the interview why Facebook wouldn't take down conspiracy theory sites, such as those that say the Sandy Hook shooting didn't happen, and he brought up Holocaust denial as an analogy: Okay. "Sandy Hook didn't happen" is not a debate. It is false. You can't just take that down? I agree that it is false. I also think that going to someone who is a victim of Sandy Hook and telling them, "Hey, no, you're a liar" — that is harassment, and we actually will take that down. But overall, let's take this whole closer to home... I'm Jewish, and there's a set of people who deny that the Holocaust happened. I find that deeply offensive. But at the end of the day, I don't believe that our platform should take that down because I think there are…
Purdy on a Democratic First Amendment - July 19, 2018 - Lawrence Solum
Jedediah S. Purdy (Duke University School of Law) has posted Beyond the Bosses’ Constitution: Toward a Democratic First Amendment (Columbia Law Review, Forthcoming) on SSRN.  Here is the abstract: The Supreme Court’s “weaponized” First Amendment (as Justice Kagan recently called it in her Janus v. AFSCME dissent) has been its strongest anti-regulatory weapon in recent decades, slashing campaign-finance regulation, public-sector union financing, and pharmaceutical regulation, and threatening a broader remit. Along with others, I have previously criticized these developments as a “new Lochnerism.” In this essay, part of a forthcoming Columbia Law Review symposium, I press beyond these criticisms to diagnose the ideological outlook of these opinions and to propose an alternative. The leading decisions of the anti-regulatory First Amendment often associate free speech with a vision of market efficiency; but, I argue, closer to…
The Senate must pose probing questions to Kavanaugh — and to require him to provide meaningful answers, not artful dodges. This piece originally appeared at The New York Review of Books. As a matter of policy, the ACLU, of which David Cole is the National Legal Director, neither endorses nor opposes Supreme Court nominees. With his selection of Judge Brett Kavanaugh to fill Justice Anthony Kennedy’s seat on the United States Supreme Court, President Donald Trump has the opportunity to alter the makeup of the Court for generations — and to place it far to the right of the American public. Justice Kennedy, himself a conservative appointed by President Ronald Reagan, proved to have an open mind in his more than 30 years on the bench and, as a result, kept the court within the mainstream of American society. Kennedy often voted with his conservative colleagues, including in gutting the Voting Rights Act, restricting workers’ access to courts to…
The National Anthem: Let Them Stand or Make Them Stand? - July 19, 2018 - Ryan Frazier, Attorney, Kirton McConkie
It has been a long-standing tradition for championship sports teams to visit the White House and meet the president. Consistent with that tradition, the Philadelphia Eagles were invited to visit the White House on May 6, 2018, after they won this year’s Super Bowl. As it turns out, the visit never took place. Source: OSTILL / iStock / Getty The seeds that led to the revocation of the Eagles’ invitation were sown a couple of years ago. Players started kneeling during the “The Star Spangled Banner” to protest—as Colin Kaepernick (reportedly the first player who kneeled in protest) put it—discrimination and police brutality based on race. That caused a tremendous amount of controversy over whether players could and should be permitted to kneel during the national anthem. The public had strong opinions, both in favor of and against the players’ actions. In fact, the “kneeling” issue itself in some ways began to overshadow the…

Anti-SLAPP

Here is the unpublished opinion in California Miwok Tribe v. Everone: d072141
Q2 2018 Quick Links, Part 5 (Potpourri) - July 14, 2018 - Eric Goldman
My email inbox has gotten out of control, and I had to declare partial email bankruptcy. In this post, I’m largely quoting highlights from 18 cases I had flagged for closer review or possible posting over the past 18 months that instead festered in my inbox for too long. FWIW. Gibson v. Swingle, 2017 WL 728284 (Cal. App. Ct. Feb. 24, 2017). The latest opinion in an apparent decade-long online trolling campaign. Swingle believed the matters he published were true because anonymous individuals on the Internet said they were, and he believed those individuals were Gibson acting incognito. When Gibson asked, “What is it going to take to get you to stop publishing attacks on me on the internet?” Swingle responded, “You can’t.”… Swingle argues his deposition testimony pertained only to his Internet posts about a “Gibson,” which did not necessarily mean plaintiff. The argument is without merit. During deposition, Gibson…
I'm all in favor of using abbreviations to shield the identity of litigants in appropriate cases.  So even in a civil case (as here), if there are allegations of domestic abuse, personal sexual conduct, etc., and there's a minor child involved, it generally makes sense to omit the actual names of the parties.Yet this is one of those rare cases in which doing so makes little sense.The nanny is L.G., the (ex-) wife is M.B., and the (ex-) husband is S.B.  It's a celebrity couple and their nanny, with Wife saying that Husband had sex with Nanny, got her pregnant, etc.  Nanny then sues Wife for defamation and other torts, Wife files but loses an anti-SLAPP motion, and Wife then appeals.All lurid stuff, with more in the actual opinion, so you can well understand why the Court of Appeal employs initials.Though it merits mention that this stuff is all over the press anyway.  Like, everywhere.Unless it just so happens that this is merely one of several…
Digging through Kavanaugh's rulings.
Ken White (Popehat) summarizes them, and, with his permission, I'm including the body of his analysis below: Kavanaugh has been an appellate judge for 12 years and has written many opinions on free speech issues. They trend very protective of free speech, both in substance and in rhetoric. His opinions are consistent with the Supreme Court's strong protection of free speech rights this century. People who buy into the "conservatives are weaponizing the First Amendment" narrative will see him as a strong advocate of that movement, in that he has applied the First Amendment to campaign finance laws, telecommunications regulation, and other aspects of the regulatory state. But he's also demonstrated fidelity to free speech principles in classic speech scenarios. Even when he concurs in a First Amendment decision, he frequently writes a separate opinion to clarify his analytical approach to the problem. He's quoted First Amendment guru Eugene Volokh…
The Texas Court of Appeals, Third District, issued an opinion in Tejas Vending, LP, et al. v. Tejas Promotions, LLC further delineating the applicability of Texas’s anti-SLAPP statute, the Texas Citizens Participation Act (“TCPA”). The Court emphasized that the TCPA was applicable to a conspiracy to misappropriate trade secrets claim, but found that it did not apply to requests for declaratory relief. This holding serves as a reminder that anti-SLAPP statutes can be a powerful shield in misappropriation of trade secret cases, particularly when such cases involve claims for an alleged conspiracy. Fundamentally, the case before the Court was a breach of contract and misappropriations of trade secrets case. Appellee Tejas Promotions LLC (“Promotions”) is in the business of providing “sweepstakes promotion software” for electronic games that are placed within retail establishments, such as bars and pool halls. Appellant Bruce Craig…

California Constitution

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 →
Now that Silicon Valley venture capitalist Tim Draper has submitted a sufficient number of signatures for his bid to split California into three separate states—Cal3, as it is called—to qualify for the November general election ballot, commentators are beginning to discuss the political and legal obstacles the measure faces—hurdles I flagged and analyzed in a number of Verdict columns, including here and here.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 believe that Cal3 represents a revision that requires the legislature in Sacramento to approve before the voters can weigh in.But the more I reflect on the legal challenges that might be made to Cal3, the more I believe that a federal constitutional problem may create…
When do falls among elderly nursing home residents in Escondido and throughout Southern California constitute nursing home negligence? Seniors are more likely to suffer a serious fall-related injury if they already suffer from a cognitive impairment, according to a recent article in Neurology Advisor. That information comes from a new review published in the journal of the American Geriatrics Society, and it makes clear that nursing homes and assisted-living facilities need to consider the cognitive impairment of each resident when determining the amount of care and monitoring that is required. In other words, if a senior falls when a facility knows that individual has a cognitive impairment, the facility may be responsible for nursing home neglect. Falls are More Likely When Cognition Suffers Continue reading
"... and regained the presidency in 2012. Mexico’s other establishment party, the conservative National Action Party (PAN), has also had a hard time shaking off criticism for not handling the country’s widespread violence and official corruption. PRI's José Antonio Meade and candidate Ricardo Anaya, a former president of the PAN party who represented a coalition of left- and right-wing parties, both conceded the election to López Obrador on Sunday night."Love that name, Meade.That's from the Politico article on the Mexican election. The winner, Andrés Manuel López Obrador, founded a new political party only 4 years ago.López Obrador’s victory leaves the two traditional parties reeling, as candidates from his Morena party were also poised to gain a stronger foothold in local, state and congressional elections....“It conceptually makes sense — Mexican voters say, ‘We’ve tried the PRI,…
By Marc J. Randazza The NFL says that players must stand (or remain in the locker room) during the National Anthem. No more "taking a knee." In the same week, Trump lost a case that says that the "interactive space" in his tweets is a "public forum" and thus he can't block people who criticize him. And, perhaps I did too much LSD in the 80s and 90s, but I see the two as intertwined. The real problem we have is that freedom of expression is the crown jewel in the American enlightenment, but that jewel is tarnished by the fact that our public square is increasingly privately owned. Privatization of the "public square" threatens to render the First Amendment meaningless. We gotta fix that – or the First Amendment will only really exist in a few tiny spaces — "free speech zones" surrounded (literally or figuratively) by fences to keep the nasty stuff inside. The NFL The whole "take a knee" thing…