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

First Amendment

The US Court of Appeals for the Tenth Circuit on Friday upheld a district’s court decision to block the city of Fort Collins, Colorado, from enforcing a ban on public topless nudity for women. Fort Collins city council passed an ordinance in 2015 stating: No female who is ten (10) years of age or older shall knowingly appear in any public place with her breast exposed below the top of the areola and nipple while located: (1) In a public right-of-way, in a natural area, recreation area or trail, or recreation center, in a public building, in a public square, or while located in any other public place. Plaintiffs from the “Free the Nipple” organization challenged the city’s ban on grounds of free speech and Equal Protection clause violations. The district court found that the “topless protests” under the guise of free speech did not constitute protected speech under the First Amendment, but still ruled on the Equal…
My second and final post debunking various misconceptions and bad legal arguments about anti-BDS lawsPART I can be found here. State laws regulating contractors' dealings with foreign entities and associated companies are not novel. Many opponents suggest that states have no interest in foreign policy or what foreign governments to, so anti-BDS laws are an unprecedented gambit for state governments explicable only by the nefarious power of the Israel lobby. False. During the 1980s, many states passed laws banning state contractors from dealings with South Africa. No one at the time suggested that contractors had a First Amendment right to deal with South Africa, even if they wanted to do so for ideological reasons (either to show support for South Africa, or because they thought that a boycott would hurt the average South African black, or because they thought that commercial relations would help undermine South Arica, or whatever). While those laws had the opposite…
Correcting various misperceptions about the scope and constitutionality of laws barring state contractors from boycotting Israel-related people and companies.I've perhaps never seen as much misinformation and bad legal analysis regarding a given issue than about state laws that require state contractors to certify that they do not boycott Israel or those who do business with Israel, otherwise known as "anti-BDS laws." This has been a product of two factors: first, a thoroughly dishonest campaign against the laws by the American Civil Liberties Union, exaggerated further by anti-Israel bloggers such as Glenn Greenwald, and second, the near-absence of those who support the laws from the debate. I have not been involved in promoting anti-BDS laws, I am not sure they are a good idea as currently written, and I think the Supreme Court's key relevant decision, Rumsfeld v. FAIR, should have come out the other way, philosophically-speaking if not based on precedent.…
Here are the new materials in State of Connecticut v. Dept. of Interior (D.D.C.): 60-1 Mashantucket Motion to File Amended Complaint 60-2 First Amended Complaint 62 Interior Opposition 63 MGM Opposition 65 Reply 66 Mashantucket Notice of Supplemental Authority 67 MGM Notice of Supplemental Authority 68 Interior Response to Notice 69 Plaintiffs Response to MGM Notice 70 Mashantucket Reply 72 DCT Order Prior post here.
IT’S AS IF HIGHER ED FOLKS THINK THE LAW DOESN’T APPLY TO THEM: Community College Bans Pro-Second-Amendment Banner with Picture of Rifles: A clear violation of the First Amendment — and not even justified under the College’s own stated reasons. The administrators need to be made more afraid.
Law and Media Round Up – 18 February 2019 - February 17, 2019 - INFORRM
On 12 February 2019 the report of the Cairncross Review on “A sustainable future for journalism” [pdf] was published.  This was largely welcomed by commentators. We had posts by Brian Cathcart and Steve Barnett.  There was a comment by Jonathan Heawood in the Press Gazette. On 13 February 2019 the EU Commission announced that negotiators had reached a breakthrough on the proposed Copyright Directive. This includes a new press publishers’ right which will apply to online uses of press publications by information society services providers, such as news aggregators or media monitoring services.  This will not apply to “snippets”.  There is a piece about this in the Press Gazette. On 12 February 2019 Mann J handed down judgment in the case of Fearn & Ors v The Board of Trustees of the Tate Gallery [2019] EWHC 246 (Ch) which was an Article 8 and nuisance claim arising out of the fact that the claimants’ flats are…

Anti-SLAPP

We wrote last year about several copyright infringement suits filed against Epic Games, the marker of the Fortnite game, by individuals who became associated with a particular dance move, whether it be their sole claim to fame or not (see hereand here). One of these plaintiffs is rapper Terence Ferguson, aka 2 Milly, who is at the origin of the Milly Rock dance. Dare we say he created it and that the dance is protected by copyright? More on this later. In any case, you can find a tutorial here. 2 Milly claims that the “Swipe It “dance, an “emote” which in 2018 appeared in season 5 of the game, infringes his copyright. Such emotes, as explained by Defendant, “are movements that an avatar performs to express emotions in the game.”Epic Games attorneys have now movedto dismiss the case (HT Eriq Gardner for posting the memo online). They claim, in support of the motion that Plaintiff failed to state a claim. They also moved to strike the case…
2019 Employment Law: Cases Pending in the California Supreme Court - February 14, 2019 - <a href='http://www.seyfarth.com/ColleenRegan'>Colleen Regan</a>
Seyfarth Synopsis: Employment-related cases pending before the California Supreme Court concern various questions that sometimes seem technical, but the answers they elicit will have big consequences. Questions raised by the current crop of cases include standing to sue, the availability of certain claims and remedies, federal preemption of California laws, what counts as compensable time, and—that perennial favorite—how to interpret the infernal PAGA statute. We expect the California Supreme Court in 2019 to issue decisions addressing many important issues in private employment. Some topics easily warrant their own article or blog post, and will receive that treatment as the Supreme Court’s decisions emerge. But it’s not too soon to highlight some coming attractions. Anti-SLAPP and Alleged Employer Motive Is an employer’s anti-SLAPP motion to strike an employee’s suit affected by the employer’s alleged discriminatory motive? In Wilson…
Epic invokes California’s anti-SLAPP statute to argue that its theft of 2 Milly’s dance was 'free speech.'
*Unpublished Opinion The recent unpublished opinion of Chemers v. Quail Hill Community Association et al. (2018) shines some light on the oft-misunderstood California Anti-SLAPP statute and its effectiveness as a defense for actions by a homeowners association’s board of directors.  The Fourth District California Court of Appeal held that certain actions by the board in a dispute with a director were not in furtherance of the right of free speech or petition as to be protected by the anti-SLAPP statute. Plaintiff Evan Chemers (“Chemers”) was a member of the board of directors for defendant Quail Hill Community Association (“Quail Hill”), a planned unit development located in Irvine, California.  A series of disagreements and escalating tension between Chemers and other members of the board resulted in the board taking affirmative steps to remove Chemers from the board permanently.  In June 2016, the board proposed a resolution to…
3 Count: King Cake Baby - February 13, 2019 - Jonathan Bailey
Have any suggestions for the 3 Count? Let me know via Twitter @plagiarismtoday. 1: ‘Fortnite’ Publisher Urges Dismissal of Rapper’s Suit: “No One Can Own a Dance Step” First off today, Eriq Gardner at The Hollywood Reporter Esquire reports that Epic Games, the makers of the popular video game Fortnite, have hit back at a lawsuit filed by 2 Milly over dance moves featured in the game. Milly sued Epic alleging that one of those moves violated his rights by including his “Swipe It” move in the game. However, Epic is hitting back saying that simple moves such that can not be protected by copyright and, even if they can, there’s too much difference between them to claim infringement. Epic is using California’s anti-SLAPP statute, which aims to protect free speech by giving quick dismissal of lawsuits that threaten it, to both challenge the lawsuit and shift the burden of proof. 2 Milly is far from the only…
GOLO, LLC v. Higher Health Network, LLC, No. 18-cv-2434-GPC-MSB, 2019 WL 446251 (S.D. Cal. Feb. 5, 2019)GOLO sells a weight loss program and a proprietary supplement to help promote weight loss. HHN defendants published a review of this supplement, allegedly with inaccuracies, misleading statements, and blatant falsehoods, which led to this lawsuit. HHN moved to dismiss and moved to strike the state law trade libel claim under California’s anti-SLAPP law. The court granted the motion to dismiss but denied the special motion to strike because HHN make a prima facie showing that GOLO’s claim arose from an act in furtherance of HHN’s right of petition or free speech in connection with a public issue.HHN (and its founder Shanks) allegedly compete with GOLO in the diet and weight-loss industry. Shanks specializes in SEO, and he and HHN allegedly bought and created dozens of information websites that generate revenue exclusively through advertising sales. One such…

California Constitution

You can find the 71-page statement of decision at this link. Given the findings of both CVRA liability as well as intentional racial discrimination in using an at-large voting system in violation of the California Constitution, a path forward on … Continue reading →
California Governor Gavin Newsom, in his first State of the State Address, called for a “Data Dividend” (what some are calling a “digital dividend”) from big tech. It’s not yet clear what form this dividend will take. We agree with Governor Newsom that consumers deserve more from companies that profit from their data, and we suggest that any “dividend” should take the form of stronger data privacy laws to protect the people of California from abuse by the corporations that harvest and monetize our personal information. In his February 12 address, Governor Newsom said: California is proud to be home to technology companies determined to change the world. But companies that make billions of dollars collecting, curating and monetizing our personal data have a duty to protect it. Consumers have a right to know and control how their data is being used. I applaud this legislature for passing the first-in-the-nation digital privacy law…
*Unpublished Opinion The recent unpublished opinion of Chemers v. Quail Hill Community Association et al. (2018) shines some light on the oft-misunderstood California Anti-SLAPP statute and its effectiveness as a defense for actions by a homeowners association’s board of directors.  The Fourth District California Court of Appeal held that certain actions by the board in a dispute with a director were not in furtherance of the right of free speech or petition as to be protected by the anti-SLAPP statute. Plaintiff Evan Chemers (“Chemers”) was a member of the board of directors for defendant Quail Hill Community Association (“Quail Hill”), a planned unit development located in Irvine, California.  A series of disagreements and escalating tension between Chemers and other members of the board resulted in the board taking affirmative steps to remove Chemers from the board permanently.  In June 2016, the board proposed a resolution to…
GOLO, LLC v. Higher Health Network, LLC, No. 18-cv-2434-GPC-MSB, 2019 WL 446251 (S.D. Cal. Feb. 5, 2019)GOLO sells a weight loss program and a proprietary supplement to help promote weight loss. HHN defendants published a review of this supplement, allegedly with inaccuracies, misleading statements, and blatant falsehoods, which led to this lawsuit. HHN moved to dismiss and moved to strike the state law trade libel claim under California’s anti-SLAPP law. The court granted the motion to dismiss but denied the special motion to strike because HHN make a prima facie showing that GOLO’s claim arose from an act in furtherance of HHN’s right of petition or free speech in connection with a public issue.HHN (and its founder Shanks) allegedly compete with GOLO in the diet and weight-loss industry. Shanks specializes in SEO, and he and HHN allegedly bought and created dozens of information websites that generate revenue exclusively through advertising sales. One such…
The Supreme Court today announced its March calendar.  Among the seven cases to be argued is one of the pending bail cases and one concerning the scope of recoverable damages in lawsuits stemming from the massive Aliso Canyon natural gas leak in 2015 and 2016. On March 5 and 6, 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): Plantier v. Ramona Municipal Water District: Were ratepayers seeking to challenge the water district’s method of calculating wastewater service fees required to exhaust administrative remedies by participating in the public hearing required by California Constitution, Article XIII D, section 6? The court granted review in September 2017. People v. Valenzuela: Does a conviction for active gang participation in violation of Penal Code section 186.22, subdivision (a), which requires that the defendant willfully promote, further, or assist in…
Most real estate developers would likely agree that, even when correctly applied and complied with, CEQA can be an onerous law which can significantly complicate, delay, increase the cost of, and in some cases (particularly where CEQA litigation is involved) even preclude projects.  But what recourse does a project applicant have under the law when CEQA is misapplied – and blatantly so – by a local agency which denies approval of a project that is clearly exempt from CEQA on the meritless basis that extensive (and expensive) CEQA review is required?  When the developer’s only recourse is time-consuming and expensive litigation to obtain a writ of mandate setting aside the agency’s illegal action subjecting the project to CEQA, can the developer who succeeds in obtaining the writ recover from the public agency compensation and damages resulting from the temporary “taking” of all reasonable economic use of its property? The…