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

First Amendment

My post on Why There's No First Amendment Problem With Compulsory Union Agency Fees drew many interesting comments, and I hope to respond to some of them. Let me turn first to this one: Professor, whatever you may say about thus surprising position, it is decidedly not libertarian.... The government, as government, has the right to compel many things that no other entity possesses. Therefore, your analogy between government and union is grossly misplaced and frankly beneath your level of expertise. A union is no more than a PAC or the local Right to Life organization. Do you support a government mandate that workers must support Right to Life organization or be fired? Please reconsider this authoritarian analysis and bring back your Libertarian thoughtfulness. Now I'm not persuaded by the substantive argument here: True, the government has the right to compel many things that other entities, such as unions, can't. But when a government employee is require to…
According to press accounts, a University of Alabama student was expelled for posting an Instagram video in which she said, among other things, "I fucking hate niggers," and then some. The University president issued a statement condemning the video and saying the student "is no longer enrolled here"; that doesn't outright say that she was expelled, but I have no reason to doubt the press accounts. Now no-one can confuse the video with a thoughtful argument. If empty hostility like this vanished from American life (perhaps through some magical transfusion of decency and good judgment), the nation would be a better place. But there's a practical reason that the First Amendment forbids expelling university students for saying such things -- or for that matter saying that they hate fucking Americans or Israelis, or love Hitler or Stalin or Mao or Che or whoever else. The last several years have made clear what the preceding decades should have shown…
HIGHER EDUCATION BUBBLE UPDATE: Court denies college’s request to dismiss free speech case. On Wednesday, California District Court rejected a motion to dismiss a lawsuit against Los Angeles Pierce College and the Los Angeles Community College District on the grounds of First Amendment violations. Pierce College is a part of the largest community college district in the United States, the Los Angeles Community College District, yet it provides only .003 percent of its 426-acre campus to exercise free expression. In November 2016, Pierce College student and Young Americans for Liberty member Kevin Shaw was handing out copies of the U.S. Constitution when he was approached by a campus administrator and told he could not distribute literature outside of the free speech zone, a space of approximately 616 square feet. Shaw filed a lawsuit against Los Angeles Community College District with the help of the Foundation for Individual Rights in Education and co-counsel Arthur…
Weekend Roundup - January 19, 2018 - Dan Ernst
"On Sunday, Jan. 21 at 4:30 p.m., Greenwich Library partners with the Yale Alumni Association of Greenwich to bring Yale Professor Rohit De to Greenwich Library. De will discuss India’s Living Constitution. The event will be held in the Library’s Cole Auditorium.”  H/t: Greenwich Sentinel.  The Washington Post's "Made by History" section recently featured several commentaries on immigration policy, including a piece by Hidetaka Hirota (CUNY) on how "keeping the Irish poor out of America helped shape our restrictive immigration policies."The Historical Society of the DC Circuit has announced the opening, twenty years after his death, of its oral history of Charles R. Richey (1923-1997), a Nixon appointee, in 1971, to the US District Court for the District of Columbia.  The Association of Trial Lawyers of America named him Outstanding Federal Trial Judge in 1979.  According to the Historical Society…
Beginning with the author’s experience of being arrested as a legal observer during a Ferguson protest, this Essay explores the First Amendment freedom of assembly’s fragile protection for those who fight for racial justice, arguing that civil rights movements have always been and continue to be disproportionately chilled by authorities.
Revenge porn is not speech. Revenge porn criminalization is not a content-based restriction. “Essentially intolerable invasions of privacy” are a recognized category of historically unprotected speech. Revenge porn falls into some hitherto unrecognized category of historically unprotected speech. Revenge porn criminalization is directed at secondary effects of revenge porn. Revenge porn should be treated like commercial speech, subject to intermediate scrutiny. Revenge porn is very harmful low-value speech, not worthy of full First Amendment protection. (These are all bad arguments. Explaining why will give me seven easy blog posts. What arguments am I missing?)

Anti-SLAPP

At its January 17 conference, the Supreme Court issued a grant-and-hold order in one civil case.  In criminal/habeas corpus matters, the court granted review in one case, issued three grant-and-hold orders, two grant-and-transfer orders, a habeas corpus order to show cause in a death penalty case, and it abated a death penalty appeal because of the defendant’s death.  It also — apparently for the first time — exercised its Prop. 66 authority to transfer a death penalty habeas corpus petition to the superior court for decision (actually, a decision on just those claims that the Supreme Court didn’t deny).  Additionally of note, three criminal petition for review denials drew recorded votes to grant — by Justices Mariano-Florentino Cuéllar and Leondra Kruger in one case, Justice Kruger alone in another, and Justice Carol Corrigan in the third. The grant in the criminal case — Facebook v. Superior Court — is an…
by Paul Alan Levy   Muhammad Ali's estate has sued Fox for running a promotion for its Superbowl broadcast that contrasted Ali''s greatness with the greatness of various football players.   Originally filed in the Northern District of Illinois, the complaint alleged claims under both the Lanham Act and the Illinois right of publicity.  It is hard to see the right of publicity claim surviving a motion to dismiss considering First Amendment and statutory limits on the right of publicity, but, in addition to seeking dismissal on those grounds, after the case was transferred with mutual consent to the Northern District of California, Fox moved to dismiss but also sought to strike under California's anti-SLAPP statute.  The brief contains an interesting approach to the choice of law question,in light of the fact that Ali's estate is a California operation and the defendant is located there as well.  
3 Count: Climate Controlled - January 17, 2018 - Jonathan Bailey
Have any suggestions for the 3 Count? Let me know via Twitter @plagiarismtoday. 1: Kim Dotcom Loses Megaupload Domain Names, Gets “Destroyed” Gaming Chair Back First off today, Ernesto at Torrentfreak writes that, in the ongoing case against Kim Dotcom, the former Megaupload head has lost one asset forfeiture case and received his belongings back in another, though the latter felt less like a victory after his stuff was returned. Dotcom was arrested in January 2012 over allegations his site, Megaupload, was a haven for piracy and copyright infringement. He is currently battling extradition from his home in New Zealand to the United States. In the meantime, the U.S. government has been seeking to take control over assets of his that were seized during the raid against him. In the U.S., the government won a case allowing them to take control over several bank accounts and the domain names used to operate Megaupload. The argument there was that, since Dotcom is…
Despite its name, a statute designed to deter strategic lawsuits against public participation (SLAPP) has been applied to a variety of private disputes, including probate proceedings, as a recent decision illustrates. Under the so-called anti-SLAPP statute (CC §425.16(b)(1)), a cause of action “arising from any act in furtherance of a person’s right to petition in connection with a public issue” is subject to a special motion to strike. In Urick v Urick (2017) 15 CA5th 1182, the trustee filed a petition to reform the trust to eliminate distributions to a beneficiary. The trustee claimed that the trust document didn’t reflect the settlor’s intent. The beneficiary in turn petitioned for instructions that the trustee’s petition for reformation violated the trust’s no contest clause. The trial court granted the trustee’s motion to strike the beneficiary’s petition under the anti-SLAPP statute. But the appellate court…
Despite its name, a statute designed to deter strategic lawsuits against public participation (SLAPP) has been applied to a variety of private disputes, including probate proceedings, as a recent decision illustrates. Under the so-called anti-SLAPP statute (CC §425.16(b)(1)), a cause of action “arising from any act in furtherance of a person’s right to petition in connection with a public issue” is subject to a special motion to strike. In Urick v Urick (2017) 15 CA5th 1182, the trustee filed a petition to reform the trust to eliminate distributions to a beneficiary. The trustee claimed that the trust document didn’t reflect the settlor’s intent. The beneficiary in turn petitioned for instructions that the trustee’s petition for reformation violated the trust’s no contest clause. The trial court granted the trustee’s motion to strike the beneficiary’s petition under the anti-SLAPP statute. But the appellate court…
December 2017 Law Faculty Publications & News - January 8, 2018 - Matthew Scott Johnson
Throughout December, the Law Library received alerts for full-time TTU Law Faculty publications and news. Below is a compilation of those daily alerts for December 1 to December 31, 2017. Books: 1. Gerry W. Beyer, PROBATE AND DECEDENT’S ESTATES (17 & 18 Tex. Prac. 2017-2018 Supp.). 2. Gerry W. Beyer, MARITAL PROPERTY AND HOMESTEADS (38 & 39 Tex. Prac. 2017-2018 Supp.). Op-Ed: 1. Arnold Loewy & Charles Moster, It’s Debatable: Are college football coaches overpaid?, LUBBOCK AVALANCHE-J. (Dec. 1, 2017 08:15 pm), http://lubbockonline.com/opinion/opinion-columnists/2017-12-01/it-s-debatable-should-mueller-be-fired-special-counsel. 2. Arnold Loewy & Charles Moster, It’s Debatable: Should death penalty be used more often?, LUBBOCK AVALANCHE-J. (Dec. 15, 2017 09:12 pm), http://lubbockonline.com/opinion/opinion-columnists/2017-12-15/it-s-debatable-should-death-penalty-be-used-more-often. 3. Arnold Loewy & Charles Moster, It’s Debatable: Should…

California Constitution

The Ninth Circuit today asks the Supreme Court to answer questions regarding California usury law and insurance companies.  In Wishnev v. Northwestern Mutual Life Insurance Company, the federal appeals court wants help with these state law issues:  1. Are the lenders identified in Article XV of the California Constitution, see Cal. Const. art. XV, § 1, as being exempt from the restrictions otherwise imposed by that article, nevertheless subject to the requirement in section 1916-2 of the California Civil Code that a lender may not compound interest “unless an agreement to that effect is clearly expressed in writing and signed by the party to be charged therewith”?, and 2. Does an agreement meet the requirement of section 1916-2 if it is comprised of:  (1) an application for insurance signed by the borrower, and (2) a policy of insurance containing an agreement for compound interest that is subsequently attached to the application, thus…
On my recent trip to Oakland, CA—where the temperatures were much more pleasant than in freezing Washington, D.C.—I took a walk around the beautiful Lake Merritt. Protected under the California Wildlife Act of 1870, Lake Merritt is the oldest designated wildlife refuge in the United States. Across the water, you can see the Alameda County Courthouse, which is one of the fifty-eight superior courts (trial courts) in California. Alameda County Courthouse as seen from across Lake Merritt. Photo by Jenny Gesley Prior to June 1998, California’s trial courts consisted of superior courts and municipal courts as provided for in the California Constitution. Municipal courts handled misdemeanors and infractions and most civil lawsuits involving disputes of $25,000 or less, whereas superior courts were in charge of all other matters. In June 1998, California voters approved Proposition 220, which amended the California Constitution to…
First District, Division TwoJudge Alison Tucher, of the Superior Court of California, County of  Alameda, will be sitting Pro Tem in Division Two through March 30, 2018.Also, fyi, the Supremes are seeking a Court of Appeal Justice to serve on the CJP:The Supreme Court is requesting nominations for appointment of a Court of Appeal justice to the Commission on Judicial Performance for a four-year term commencing April 1, 2018. Pursuant to California Constitution, article VI, section 8, the Supreme Court of California appoints the three judicial members of the Commission on Judicial Performance for four-year terms. Members can be reappointed but cannot serve more than ten years.The 2d District has changed the hours for its Clinic:Change of Hours for the Free Self-Help Clinic for Indigent Civil LitigantsWednesday, January 24, 1:00 – 4:30 p.m.Wednesday, January 31, Closed.Thursday, February 1, 9:00 a.m. – 12:00 noon and 1:30 – 4:30…
Medical Privacy Under Attack: 2017 in Review - December 24, 2017 - Jamie Williams
If you care about maintaining privacy over medical records and prescriptions, this was not a good year. Both the California Supreme Court and the U.S. Ninth Circuit Court of Appeals issued disappointing decisions that declined to recognize a significant privacy interest in prescription records. In California, the state’s high court ruled that the Medical Board of California can rifle through records of prescriptions for controlled substances—used to treat anxiety, depression, pain, and insomnia—without notifying patients, obtaining a court order, or showing any suspicion of wrongdoing. The Ninth Circuit reversed on procedural grounds a good ruling out of Oregon, which found that the Drug Enforcement Administration (DEA) couldn’t access sensitive prescription records without a warrant. Both courts punted to another day the question of whether the Fourth Amendment’s warrant requirement protects prescription records. This precedent is concerning,…
V.A., a high school senior who plays football and basketball on the San Pasqual Valley High School teams, decided to kneel during the National Anthem at two recent high school games. The School District responded a policy stating, Students and coaches shall stand and remove hats/helmets and remain standing during the playing or singing of the national anthem. Kneeling, sitting or similar forms of political protest are not permitted during athletic events at any home or away games. Violations may result in removal from the team and subsequent teams during the school year. V.A. sought a temporary restraining order to bar the policy from being enforced at two basketball games, Tuesday night and today; and on Tuesday the court granted the order, which will last until the preliminary injunction hearing next Tuesday. The school defendants declined to file papers or appear at the oral argument opposing the TRO (though they will presumably respond as to the longer-term preliminary…
Yesterday, the 274th day since Justice Kathryn Werdegar announced her retirement, the Supreme Court released its January calendar.  There will be eight more pro tem justices, necessitated by Governor Jerry Brown not having appointed Werdegar’s replacement yet.  (Using a mostly alphabetical selection system, only half of the January pro tem justices have been assigned at this point.) It will be the fifth month in a row that the court has had to call on Court of Appeal justices to fill in.  By comparison, there were seven calendars with pro tems before Governor Brown named Justice Leondra Kruger in 2014 to fill retiring Justice Joyce Kennard’s seat, although Justice Kennard gave shorter notice of her retirement than did Justice Werdegar. On January 3 and 4, in San Francisco, the court will hear the following cases (with the issue presented as stated on the court’s website): Regents of the University of California v. Superior Court:  Do…