This week, the House Energy and Commerce Committee held a hearing titled “Preserving Free Speech and Reining in Big Tech Censorship.” Lawmakers at the hearing trotted out the usual misunderstandings of these concepts, and placed the blame on Section 230, the law that actually promotes free speech online. However, buried in these misunderstandings from Congress, and most of the witnesses called to testify, was a genuinely serious problem: Government officials keep asking online services to remove or edit users’ speech, raising the specter of unconstitutional interference with private platforms’ moderation decisions. And worse, the public lacks any transparency into how often this occurs. Regardless of your ideological preference, we should always worry about government coercion that results in censoring users’ speech online, which violates the First Amendment and threatens human rights globally. The government is free to try to persuade online…

From Judge Pedro Delgado-Hernández's opinion today in Rodriguez-Cotto v. Perluisi-Urrutia (D.P.R.): Article 5.14(a) criminalizes, after the Governor of Puerto Rico has decreed by executive order an emergency or disaster, to knowingly, purposely or recklessly: (1) give a warning or false alarm, knowing that the information is false, in relation to the imminent occurrence of a catastrophe in Puerto Rico; or (2) disseminate, publish, transmit, transfers or circulate through any means of communication, including the media, social networks, or any other means of dissemination, publication or distribution of information, a notice or a false alarm, knowing that the information is false, when as a result of that conduct it puts the life, health, bodily integrity or safety of one or more persons at imminent risk, or endangers public or private property. Properly read, Article 5.14(a) does not survive strict or intermediate scrutiny…. The court reasoned that the proper…

Outrageous! But it could never happen in this country, could it? Posted by Ed Folsom, March 31, 2023. A Russian father, Alexei Moskalyov, was convicted and sentenced to 2 years in prison on Tuesday for his social media postings criticizing Russia’s war against Ukraine (story here). Moskalyov’s 13-year-old daughter was previously removed from his custody and placed in an orphanage after she drew attention to the family unit with an antiwar drawing she made at her school. Moskalyov’s criminal conviction and his daughter’s removal from his custody are outrageous. Neither of those things could ever happen to anyone in this Country over disagreement with official government policy, right? During World War I, Woodrow Wilson’s Justice Department convicted more than 1,000 people under the Sedition Act (a 1918 amendment to the 1917 Espionage Act), which criminalized speech including expressions of disloyalty to the U.S. Government and interference in its…

On Feb. 28, I blogged about Doe v. U.N.C. Sys. (W.D.N.C.), a case challenging the expulsion of plaintiff Jacob Doe for alleged sexual assault; in the case, the court issued a quite remarkable TRO that, among other things, required defendants "to direct all individuals, including but not limited to employees and students, over whom they exercise control to refrain from publishing or disclosing any information concerning the Plaintiff, the disciplinary proceedings, or the outcomes of such proceedings" (emphasis added). This struck me as likely unconstitutional, because of its substantive scope, because it was entered as an ex parte TRO with no opportunity for the defendants to be heard, and because it purports to restrict the free speech rights of third parties who also had no opportunity to be heard. But when I tried to figure out why the court entered such a broad restriction, I couldn't, because the motion for the TRO and the supporting memorandum were sealed.…

Quinta Jurecic and Benjamin Wittes provided context for former President Donald Trump’s indictment by a New York state grand jury. Katherine Pompilio shared an order, signed by New York Supreme Court Judge Juan Merchan, authorizing Manhattan District Attorney (DA) Alvin Bragg to publicly disclose the indictment of Trump.  Pompilio shared a letter signed by the Republican chairmen of three House committees imploring DA Bragg to procure documents and testimony pertinent to Trump’s indictment.  Pompilio also shared Bragg’s response to the congressmen’s letter, which asserts that Congress lacks authority to intervene in the indictment. Wittes considered how first amendment privileges could be applied to protect textual and artistic content generated by large language artificial intelligence (AI) models like Bard and ChatGPT. For Lawfare’s Digital Social Contract paper series, Ashley Deeks outlined problems facing international regulation of…

The FDA Releases Draft Guidance re: Plant-Based Milk Alternatives. The FDA is catching up with the increase in demand for plant-based milks that has occurred throughout the last ten years.  There is no established standard for the compositional requirements of plant-based milk alternatives like there is for dairy milk, so the FDA has issued a draft guidance and is seeking public comment for the final guidance (which will be considered until April 24, 2023) on labeling and nutrient statements. Per the FDA, the guidance on label and nutrition information will help consumers differentiate between the dietary benefits of dairy milk and plant-based milk alternatives.  The FDA learned from public comment on a 2018 FDA notice (83 Fed. Reg. 49103) and additional research (via focus groups, etc.) that most consumers understand the difference between dairy milk and plant-based milk alternatives, but they do not understand the nutritional difference between the…

Bankruptcy actions generally offer people relief from significant financial burdens, as most debts are discharged in bankruptcy. There are exceptions to the general discharge rule, however. For example, claims arising out of willful misconduct, such as fraud or intentional injury, will often be deemed non-dischargeable. Recently, a California court analyzed a debtor’s counterclaims to a creditor’s action to deem debts nondischargeable, in a case in which it was disputed whether California’s Anti-SLAPP law applied in bankruptcy matters. If you need help dealing with overwhelming debts, it is smart to confer with a California bankruptcy lawyer about your options. Procedural History of the Case It is alleged that the debtor filed a petition for Chapter 13 bankruptcy in February 2021; it was later converted into Chapter 7 petition. The creditor subsequently filed a complaint against the debtor in June 2021, asking the court to determine the creditor’s…

The MetNews has Bress Questions Why Ninth Circuit Permits Appeals From Anti-SLAPP Motion Denials about Judge Bress's concurring opinion in the unpub'd decision in Salveson v. Kessler.This case is the latest example of why we should question whether we have jurisdiction under the collateral order doctrine over an interlocutory appeal of the denial of an anti-SLAPP motion.This piecemeal appeal, which our precedents unjustifiably allow, has resulted in a totally meritless anti-SLAPP motion delaying this litigation by nearly a year. That is neither sound as a matter of law nor sensible as a matter of litigation management.On April 29 from 2 to 5 p.m. CLA's Litigation Section & Criminal Law Section present a free 2 hour mcle event at CLA's HQ office in Sacramento featuring retired 3d DCA Justice William Murray on AB 3070 and its Impact on the use of Peremptory Challenges. Details here.

[No, said the Florida Court of Appeal, interpreting the Florida statute; the California Supreme Court, interpreting the California statute, had held otherwise.] Say Paul sues Don, claiming that Don libeled Paul. Don might be in the right, and he might eventually win—but it may take a lot of time and a lot of money. As a result, the Dons of the world will often settle, and agree to take down or retract their statements; the threat even of legally unfounded litigation might silence them. Because of that, many states have enacted anti-SLAPP statutes, which (generally speaking) make it easier for defendants to quickly dispose of cases brought based on speech on matter of public concern. (The statutes are often raised in response to libel claims, but they also apply to other speech-based claims.) The statutes often have some mix of the following features: A right to move to get the case promptly dismissed. A stay of factual discovery stayed while the motion is being…

Every person has the right to feel comfortable, respected, and safe in the workplace. When these conditions are not present, individuals may feel devalued in their work, or fearful for their safety. In Ontario, various safeguards are in place for workers facing harassment at work. Under the provincial Occupational Health and Safety Act, employers must investigate allegations of workplace harassment. If the inquiry substantiates the claims of harassment, the employer or harasser may be disciplined and ordered to put a stop to the behaviour. But what happens if the outcome is reversed and the investigation paints the worker negatively?    Medical resident brings claims of workplace sexual harassment The Ontario Court of Appeal recently offered commentary on what can happen when an investigation leads to a finding unfavourable to the employee claiming harassment in the workplace.  In Safavi-Naini v Rubin Thomlinson LLP, the appellant, Dr. Safavi-Naini, was a medical…

Every person has the right to feel comfortable, respected, and safe in the workplace. When these conditions are not present, individuals may feel devalued in their work, or fearful for their safety. In Ontario, various safeguards are in place for workers facing harassment at work. Under the provincial Occupational Health and Safety Act, employers must investigate allegations of workplace harassment. If the inquiry substantiates the claims of harassment, the employer or harasser may be disciplined and ordered to put a stop to the behaviour. But what happens if the outcome is reversed and the investigation paints the worker negatively?    Medical resident brings claims of workplace sexual harassment The Ontario Court of Appeal recently offered commentary on what can happen when an investigation leads to a finding unfavourable to the employee claiming harassment in the workplace.  In Safavi-Naini v Rubin Thomlinson LLP, the appellant, Dr. Safavi-Naini, was a medical…

Amuze is an online clothing retailer. Consumers left negative reviews of Amuze at the Better Business Bureau of Greater Maryland (BBB-GM) website. (This page?) Amuze sued BBB and BBB-GM for defamation and IIED. The BBB entities successfully invoked NY’s anti-SLAPP law. Issues of Public Interest in Public Forum. “the reviews and complaints posted to BBB and BBB-GM profiles concern issues of public interest because such posts are intended to provide otherwise unavailable information about specific businesses to the public and future potential consumers.” Section 230. The court’s 230 analysis is a little garbled, but 230 applies to third-party reviews. Amuze argued that the BBB is different from traditional consumer review websites because it claims to investigate complaints and offers an ADR. The court says that conduct sounds like “traditional editorial functions,” and defendants have not “altered or in any way included its own views…

The California Reparations Task Force Wednesday convened for a two-day public comment period to decide how reparations to Black Californians should be paid. The meetings will be live streamed on the California Office of the Attorney General website. California Assembly Bill 3121 (AB 3121), which was signed into law September 2020, establishes the task force “to Study and Develop Reparation Proposals for African Americans.” The task force is charged with documenting evidence of slavery within the United States, compiling that evidence into a report and recommending appropriate remedies. The task force must submit a final report by July 1, 2023, when AB 3121 sunsets. The task force completed its nearly 500 page interim-report in June 2022. San Francisco’s African American Reparations Advisory Committee also proposed a reparations program which would pay $5-million to qualifying residents. Stanford University’s Hoover Institution reported that San…

On February 27, 2023, the Second District Court of Appeal (Division One) filed its published decision in Los Angeles Waterkeeper v. State Water Resources Control Board (2023) ___ Cal.App.5th ___, a case mainly focused on water law but which also has some significant CEQA implications.  Briefly put, the petitioner in Los Angeles Waterkeeper attempted to bypass a statutory limitation on CEQA review through an action that would, if successful, have resulted in the imposition of additional substantive and procedural environmental review requirements on certain projects for which no EIR is required. As explained below, the Second District rejected this invitation to expand CEQA’s reach. Factual and Procedural Background The case involved the Los Angeles Regional Water Quality Control Board’s (“RWQCB”) renewal of wastewater discharge permits for four publicly owned treatment works (“POTWs”) that discharge millions of gallons of…

For years, some California counties have been imposing disproportionately higher property tax rates on centrally assessed property despite the state constitutional mandate that this property be assessed like locally assessed property. In a challenge brought by centrally assessed utilities, the California Court of Appeal conceded that the higher property tax rates disproportionally burden utility company property but concluded that this disparity does not violate the California Constitution. Click here to read the full article. The post Property Tax Rate Dispute Merits California Supreme Court Review appeared first on SeeSALT Blog.

Worker classification laws continue to evolve in California — the latest is a California Court of Appeal decision upholding most of Proposition 22’s provisions while severing the provisions it found unconstitutional. Back in 2020, California voters approved Proposition 22, which was a narrow measure that specifically classified certain app-based rideshare and delivery drivers as independent contractors and mandated that those companies provide certain benefits, including guaranteeing at least 120 percent minimum wage during engaged time, payment per mile, health care coverage for those who work a certain number of hours and the development of anti-harassment policies. Proposition 22 also contained amendment provisions describing the circumstances in which the California Legislature can amend this proposition without voter approval. The law was challenged in Alameda County Superior Court on grounds that it violated the California Constitution. As…

 Motion to Strike the Complaint Anti-SLAPP Motion SLAPP Back Action Against a Law Firm Ethics Civil Procedure California Law    APPEAL from a judgment of the Superior Court of Sacramento County, David I. Brown, Judge. Affirmed.  This is an appeal from the grant of a special motion to strike a complaint for malicious prosecution. In the underlying action, defendants Churchwell White LLP, a law firm, and two of its attorneys, Barbara A. Brenner and Robin R. Baral (collectively Churchwell) represented a corporation in an action to quiet title to water rights. In the underlying quiet title action, Churchwell sued the City of Weed (City) and the plaintiffs here, Water for Citizens of Weed California, its members, and other citizens of the City (collectively Citizens). The trial court in that action granted Citizens’s special motion to strike the complaint, commonly called an anti-SLAPP motion (strategic lawsuit…

Does California's usury limitations constitute a "strong public policy"?  Seemingly, that question was decided over a half-century ago by the First District Court of Appeal in Ury v. Jewelers Acceptance Corp., 227 Cal. App. 2d 11, 20, 38 Cal. Rptr. 376, 382 (Ct. App. 1964): That California does not have such a strong public policy against any and all contracts which would be usurious if they were made and to be performed here, appears from the fact that the constitutional prohibition of usury, section 22, article XX of the California Constitution, enacted by initiative, exempts from its provisions banks, building and loan associations, industrial loan companies, credit unions, licensed pawnbrokers and personal property brokers, and several other kinds of lenders, and gives the Legislature the right to prescribe maximum limits for the exempted lenders.  A strong public policy, based on a settled concept of justice or morality would not be meshed…