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

First Amendment

Detroit News story. Complaint. (My coverage of the first lawsuit.) … Continue reading →
Popehat on free speech - August 22, 2019 - Howard Wasserman
Ken White (a/k/a Popehat), a criminal-defense and First Amendment lawyer, has a piece in The Atlantic exposing free-speech cliches. He is spot-on, as always.
Job Opportunity – Legal Director - August 22, 2019 - Indian Legal Program
American Civil Liberties Union (ACLU) FoundationPhoenix, AZClosing Date: Open until filledPosition Overview: Reporting to the Executive Director, the Legal Director will lead and expand the ACLU of Arizona’s legal program, including developing and litigating high-impact cases and managing the legal department. The Legal Director will be responsible for setting the overall legal strategy to advance the ACLU of Arizona’s mission, as well as handling the day-to-day management of legal staff, volunteers, and cooperating attorneys. As a critical member of the organization’s senior management team, the Legal Director will provide strategic leadership on both litigation and non-litigation legal advocacy in priority areas of criminal justice, immigrants’ rights, education, and LGBTQ equality, as well as other areas including First Amendment rights. In addition, the Legal Director works in close coordination with our policy, organizing, and communications teams,…
Celebrity Entertainer Sues Over Video Game Avatar - August 22, 2019 - Robert Hough
As real-world celebrities continue to expand the reach of their persona into the digital realm, the potential benefit for advertisers, game developers and esports event promoters is exceedingly high. But with increased opportunity comes increased risk. A New York Supreme Court recently addressed this risk when it construed the State’s right of publicity statute[1] in a dispute over an NBA 2K18 video game avatar. In Champion v. Take Two Interactive Software, Inc., celebrity basketball entertainer Phillip “Hot Sauce” Champion sued the video game developer, alleging violation of his right to privacy for Take-Two’s use of his name and likeness. The Court ultimately dismissed the lawsuit, but not before it provided a helpful discussion of New York’s publicity statute and its modern application to the esports industry. A Primer on New York’s Publicity Statute New York publicity law allows both criminal charges and civil liability for use of a…
Free Speech Tropes In The Atlantic - August 22, 2019 - Ken White
The Atlantic asked me to update my 2015 post on bogus and misleading First Amendment tropes offered in the media. Here it is: link. Copyright 2017 by the named Popehat author.
Statements of pure opinion are protected by the First Amendment and are not actionable as defamation. Whether an alleged defamatory statement is one of fact or opinion is a question of law to be decided by the court, not the jury. It is also for the trial judge (and not the jury) to determine whether a particular statement may support a defamation action. At the same time, however, statements alleged to be defamatory must be evaluated in context, along with all accompanying statements, and cannot be considered in isolation. (See Hyland v. Raytheon Tech. Servs. Co., 277 Va. 40, 48 (2009)). This is all black-letter defamation law, but courts have struggled with the question of how exactly to instruct a jury considering a defamation claim based on a statement that includes both statements of fact and expressions of opinion. Today we have a new opinion offering some guidance. (Full disclosure: my firm was involved in the case). Handberg v. Goldberg involved a dispute between a…

Anti-SLAPP

In 2016, the Texas Bar issued an opinion decisively blessing competitive keyword advertising by lawyers. (Note: I define competitive keyword advertising as buying a rival’s name/brand as the trigger for ads without displaying the name/brand in the ad copy). At the time, I predicted that other state bars would fall in line behind the opinion, so eventually the Texas rule would prevail across the nation. That hasn’t turned out exactly as I’d hoped. For example, the Florida Bar had blessed competitive keyword advertising before Texas did, but last year it went through some drama about rolling back the rule–only to regulate, but not ban, competitive keyword advertising. In better news, New Jersey now has apparently joined Texas and fully endorsed competitive keyword advertising (it also endorses the Habush v. Cannon opinion from Wisconsin). In a brief opinion dated June 25, 2019 (ACPE #735), the NJ Advisory Committee on Professional Ethics explains why…
Alfasigma USA, Inc. v. First Databank, Inc., 2019 WL 3532844, No. 18-cv-06924-HSG (N.D. Cal. Aug. 2, 2019)Alfasigma sued First Databank for state and federal false advertising after it re-classified Alfasigma medical food products from Class F (prescription) to Class O (over-the-counter) in its widely-used MedKnowledge database. First Databank moved to strike under California’s anti-SLAPP statute and to dismiss; it failed in the first but was partially successful in the second. Federal law defines a medical food as “a food which is formulated to be consumed or administered enterally under the supervision of a physician and which is intended for the specific dietary management of a disease or condition for which distinctive nutritional requirements, based on recognized scientific principles, are established by medical evaluation.” Alfasigma markets its medical foods “directly to physicians.” MedKnowledge is the largest and most widely used drug…
Dr. Stephen Greenberg is a plastic surgeon on Long Island. Perfect Body Image provides “non-surgical and non-invasive aesthetic services, including, among other things, laser treatments.” Perfect Body doesn’t have any doctors on staff. In addition to Stephen, at least two other Dr. Greenbergs in the region provide laser services. Popular name for doctors, apparently. Seeking to boost business, Perfect Body bid on the keywords “Dr. Greenberg,” “Doctor Greenberg,” and variations at Google. Perfect Body used the keyword insertion feature so that the search query appeared in the ad headline. Here’s a screenshot from the opinion (sorry for the poor image quality) showing Perfect Body’s ad at the top: Over the course of 14 months, the ads generated 36,654 impressions, 1,161 clicks, and ten conversions. Stephen sued Perfect Body for trademark and related claims. The magistrate judge grants summary judgment to Perfect Body. Lanham…
The California Supreme Court has ruled that a former employee’s retaliation or discrimination claim can be dismissed at the initial stages of litigation via California’s anti-SLAPP statute. In Wilson v. CNN, decided July 22, 2019, the court overturned decisions of several courts of appeal that held otherwise and returned a strong tool to employers in defending against suits challenging an employee’s termination. Anti-SLAPP background California’s anti-SLAPP statute (SLAPP stands for “Strategic Lawsuit Against Public Policy”), Code of Civil Procedure 425.16, allows a defendant to have a plaintiff’s claim dismissed at the very beginning of litigation if (1) the employer can establish that the plaintiff’s claim implicates activity protected by the statute and (2) the plaintiff is unable to show that his or her claim has minimal merit. California’s Legislature enacted the statute to allow the quick dismissal of claims that…
This ruling is from March but it just showed up in my Westlaw alerts. Oy, it makes my head hurt. The plaintiff, Complex, runs a YouTube channel with 2.4M subscribers. The defendant, X17, publishes celebrity-related videos and photos. X17 believed that Complex’s videos infringed its copyrights. As a result, it sent at least 6 DMCA takedown notices to YouTube. YouTube removed those videos, froze Complex’s ability to upload new videos or edit its page, and threatened to terminate Complex from its service. Complex sued X17 for sending wrongful takedown notices (512(f)) and contract interference. Complex’s lawsuit went poorly. It lost both claims and was ordered to pay X17’s attorneys’ fees. Ugh. The court says that X17’s DMCA takedown notices to YouTube are protected by California’s anti-SLAPP law. The court says “filing of a takedown notices [sic] is constitutionally protected speech.” This copyright dispute was a matter of…
by Paul Alan Levy What sort of showing must a criticized business make when it wants to identify an anonymous online critic on the theory that the critic was never an actual customer and that, consequently, any criticisms are necessarily false? Attorney Robert Kelly of Santa Rosa California That issue has been presented in a couple of recent subpoena cases that we have handled. Probably the more significant of these two — because it is now pending in the California Court of Appeal — is Kelly v. Doe, where Thomas P. Kelly III, a lawyer in Santa Rosa, California, sued an anonymous critic who had complained on Yelp about alleged inadequacies in the legal service that the lawyer had provided to her. The review was fairly barebones: Kelly promptly wrote to the anonymous reviewer, insisting that the reviewer was not in fact a former client, falsely claiming to have obtained the reviewer’s identifying information from Yelp, and warning that he (Kelly) would be in…

California Constitution

The Supreme Court today agreed to hear on an expedited schedule Patterson v. Padilla, the writ petition challenging Senate Bill 27.  SB 27 is the new law barring presidential candidates from the state’s primary ballot if they do not make public their tax returns from the last 5 years. Unlike other legal attacks, which are pending in federal courts and make federal constitutional arguments, the Patterson petition claims SB 27 violates article II, section 5(c), of the state constitution. The court’s order includes this about the issues: In addition to addressing issues relating to what relief, if any, this court should order, the parties are directed to address (1) the legislative history of Proposition 4 (Ballot Pamp., Primary Elec. (June 6, 1972), analysis of Prop. 4 by Legis. Counsel, pp. 9-10; id., arguments in favor of, and opposing, pp. 10-11; Sen. Const. Amend. No. 3, Stats. 1971 (1971 1st Ex. Sess.) res. ch. 274, p. 4868), as well as related legislation…
Sacramentans for Fair Planning v. City of Sacramento (2019) 2019 Cal.App. LEXIS  646 The City of Sacramento, a charter city, approved a fifteen-story mixed use project in its Midtown area, significantly in excess of its adopted height and FAR standards. This approval was based upon a general plan policy which stated, “The City may allow new development to exceed the maximum allowed FAR or density if it is determined that the project provides a significant community benefit.” When evaluating the project, staff identified many benefits associated with the project which “outweighs strict adherence to the General Plan’s FAR.” These benefits included a high level of design, implementation of the City’s targets for increasing households in its core, location in an infill location reducing reliance on personal vehicles, and lowered carbon emissions. The City conducted CEQA review based upon the sustainable communities environmental…
New Ohr Docs Document Anti-Trump Coup - August 16, 2019 - Tatiana Venn
Judicial Watch Investigating Epstein DeathDocuments Detail Effort to Smear Trump with “Dossier” through Bruce OhrNellie Ohr Provided Russian Information to DOJ Top Official Lisa HoltynCourt Orders Obstructionist Maryland to Turn Over Voter List DataJudicial Watch Sues California over Its Gender Quota for Corporate Boards Judicial Watch Investigating Epstein Death We have repeatedly challenged the Department of Justice and the FBI over their fraudulent handling of “investigations” into Hillary Clinton’s illegal activities when she was secretary of state. Now the very same Justice Department is sitting on another scandal in its role as manager of federal prisons. The conspiracy theories about how Jeffrey Epstein died are well founded, and Justice has a lot to answer for. We’ve already sent out Freedom of Information Act (FOIA) requests, as I note in this interview. At this point the Justice Department can’t be trusted to fully investigate…
(Pix credit here)The issue of gender equity on corporate boards has been the object of much attention in recent years (e.g., here; here and here). It has also been the subject of some legal reform efforts. Much of this has occurred in Europe (e.g., here (Norway)).But California has led legislative efforts in the United States. Its SB 826 Gender Quota Law requires certain corporations with a specified connection to California to have at least one female director on their boards of directors by 31 December and then increases that minimum number for certain corporations after 31 December 2021.  Now that effort at legislative reform has been challenged.  On 6 August a lawsuit was commenced in Los Angeles County Superior Court challenging SB 826 ( Robin Crest, et al. v. Alex Padilla (LASC Case No. 19STCV27561)). It was brought by Judicial Watch on behalf of three taxpayers.  An e-Bulletin was prepared by William Ross of counsel to Hirschfeld Kraemer LLP and…
The Supreme Court will hold hearings in eight cases next month after its typical argument-less July and August.  Of the eight, all but one on the September calendar — announced today — are criminal cases, and five of them are direct appeals in capital cases. The abundance of death penalty appeals is a sign the court is trying to accede to what it recognized as Proposition 66’s “exhortation to the parties and the courts to handle [death] cases as expeditiously as is consistent with the fair and principled administration of justice.” On September 3 and 4, in San Francisco, the court will hear the following cases (with the issue presented as summarized by court staff or stated by the court itself): People v. Lopez:  Does Arizona v. Gant (2009) 556 U.S. 332 permit a peace officer to search the interior of a suspect’s vehicle for identification if the suspect fails to provide it upon request?  (See In re Arturo D. (2002) 27 Cal.4th…
(Washington, DC) – Judicial Watch announced today that it filed a lawsuit in Los Angeles County Superior Court on behalf of three California taxpayers to prevent the State from implementing Senate Bill 826.  The 2018 law requires publicly-held corporations headquartered in California to have at least one director “who self-identifies her gender as a woman” on their boards by December 31, 2019 (Robin Crest et al. v. Alex Padilla (No.19ST-CV-27561)).Up to three such persons are required by December 31, 2021, depending on the size of the board. The lawsuit alleges that the mandate is an unconstitutional gender-based quota. There are currently 761 publicly-traded corporations headquartered in California, the vast majority of which are subject to the legislation’s provisions. In a July 1, 2019, report, the secretary of state identified 537 corporations that fall short of the mandate. Before the bill passed, a California Assembly floor analysis identified…