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

First Amendment

Illegal Pete's is a Colorado-based Mexican restaurant chain; starting several years ago, the name has drawn controversy because some view it as an insulting reference to illegal aliens. (The restaurant owners disagree, and say the name was chosen "to convey the unique, countercultural atmosphere [the founder] wanted to foster" and was an homage to the founder's father, who was "a bit of a good-natured hell-raiser.") The owners of Illegal Pete's wanted to make it a Delaware limited liability company, but the Delaware Secretary of State's office rejected the application, allegedly on the grounds that the name "has a negative connotation," and that Title 8 [of the Delaware Code] permits this office to reject a filing if the use of a corporate name by a corporation "might cause harm to the interests of the public or the State as determined by the Division of Corporations in the Department of State". As it stands, the…
A coalition of Animal rights groups on Monday filed a federal lawsuit challenging the constitutionality of Iowa’s new “Ag-Gag” Law that makes it a trespass crime to conduct undercover investigations at livestock farms. The lawsuit was filed in US District Court in Des Moines and claims that the new law violates constitutional free speech and due process rights and is unconstitutionally vague and broad. The law creates a new crime making it illegal for a person to gain access to an agricultural production facility through deception if the person intends to cause an “injury” to the business interest of the facility. The law applies to to factory farms, slaughterhouses, and puppy mills. Animal Legal Defense Fund Executive Director Stephen Wells says that factory farms want to hide their abuses but federal courts have consistently ruled that Ag-Gag laws violate our constitutional rights. Ag-Gag laws are a threat to food safety, animal protection, the…
I’m pleased to share a new article, “Why Section 230 Is Better Than the First Amendment.” It’s still in draft, so I’d be grateful for your comments. As you know, the future of Section 230 looks bleak. This paper addresses the potentially non-hypothetical question of what happens when Section 230 gets carved back–or up. In theory, the First Amendment–the global bellwether protection for free speech–should partially or substantially backfill any reductions in Section 230’s coverage. In practice, the First Amendment does no such thing. The paper catalogs the important substantive and procedural benefits provided by Section 230 that the First Amendment does not provide, meaning that all of these benefits are in jeopardy due to the toxic and dysfunctional conversations taking place inside the beltway. Every policy-maker who takes a jab at Section 230 should be required to read this paper so that they better understand the…
[I'm continuing to serialize my forthcoming Penn Law Review article on Anti-Libel Injunctions.] I've argued that criminal contempt prosecutions for violating anti-libel injunctions are similar to criminal libel prosecutions. But they are missing one important feature of most prosecutions—the normal prosecutor. In criminal libel prosecutions, a prosecutor exercises discretion about whether to prosecute. In criminal contempt proceedings, a judge would normally refer the case to the prosecutor's office, but if that office declines to act, the judge may appoint a special prosecutor. And in some states, the litigants could initiate the criminal contempt prosecution them­selves, or move for contempt and ask for the court to appoint their lawyers as the prosecutors. [In the federal system, the judge may not appoint the plaintiff's lawyer as prosecutor, Young v. United States ex rel. Vuitton et Fils SA, 481 U.S. 787 (1987), which may make it hard to find a…
Jessica M. Silbey, Northeastern University School of Law, has published Control over Contemporary Photography: A Tangle of Copyright, Right of Publicity, and the First Amendment at 42 Columbia Journal of Law & the Arts 351 (2019). Here is the abstract....
One of the reasons many sexual assault survivors don’t come forward is because doing so involves telling a traumatic story over and over again, so most of them figure they have a better chance of being able to move on with their lives if they just don’t say anything about it. However, sometimes the men are in fact falsely accused and this also has a traumatic and life-altering impact on them. These two factors are now causing more libel suits to be filed by male students who allege that they have falsely accused as a way to restore their reputations and good name. The filing of such suits does have an impact on women coming forward to report sexual harassment and rape. Women who do come forward often have to endure threats, harassment, and people showing more compassion for their assailant than for them, since his life has allegedly been ruined by her accusations. Now men and women are finding that they have to face another layer in campus sexual assault claims…

Anti-SLAPP

The morning of May 7, the Cal Supremes will hear arguments in two anti-SLAPP cases:Wilson v. Cable News Network, S239686(B264944; 6 Cal.App.5th 822)  Petition for review after the Court of Appeal reversed an order granting a special motion to strike in a civil action. This case presents the following issue:  In deciding whether an employee’s claims for discrimination, retaliation, wrongful termination, and defamation arise from protected activity for purposes of a special motion to strike (Code of Civ. Proc., § 425.16), what is the relevance of an allegation that the employer acted with a discriminatory or retaliatory motive?    Monster Energy Co. v. Schechter, S251392(E066267; 26 Cal.App.5th 54)  Petition for review after the Court of Appeal affirmed in part and reversed in part an order granting in part and denying in part a special motion to strike. The court limited review to the following issues:  (1) When a settlement…
News You Can Use Digest – April 19, 2019 - April 18, 2019 - Jim Sedor
      Federal: Analysis: The many reasons to run for president when you probably don’t stand a chanceMSN – Matt Flegenheimer (New York Times) | Published: 4/14/2019 Presidential primaries tend to produce one nominee but many winners. Beyond the long-shot candidates effectively auditioning for cabinet positions or building a profile (and donor base) for future races, there are prospective books to sell and television contracts to sign, corporate boards to join, and paid speeches to make. Any setback is temporary. “There’s just absolutely no downside and only upside,” Republican strategist Antonia Ferrier said of quixotic presidential runs. “It is an industry of self-promotion. What better way to self-promote than run for president?” Mueller Whacks Trump with Evidence of ObstructionPolitico – Josh Gerstein and Darren Samuelsohn | Published: 4/18/2019 Special counsel Robert Mueller’s…
When California congressman Devin Nunes, a public figure, decided to file a pair of defamation lawsuits against Twitter (based in California), The McClatchy Company (based in California), and others, why do you suppose he selected Virginia as his forum of choice? One popular theory is that Virginia’s anti-SLAPP laws are much weaker than those in California and many other states. In fact, some Virginia courts aren’t so sure Virginia’s law can even be characterized accurately an an “anti-SLAPP statute,” given that the phrase is not found anywhere in the statute itself and the law does not expressly authorize any special motion designed to suspend discovery and cut the litigation short absent an evidentiary showing by the plaintiff. Like traditional anti-SLAPP statutes, Virginia’s immunity statute applies to defamation claims based solely on statements regarding matters of public concern that would be protected under the First Amendment to the…
How Defamation Law Can Affect Sexual Harassment Claims in New York - April 16, 2019 - Phillips & Associates
Some defendants in New York City have responded to sexual harassment lawsuits not only by denying the plaintiff’s allegations, but also by counterclaiming for defamation. This is a common-law claim alleging that a false statement has caused a person financial harm. New York City sexual harassment attorneys are familiar with many ways people have tried to prevent victims of sexual harassment from telling their stories. In some situations, the purpose of a defamation lawsuit is to prevent a person from speaking out by confronting them with significant litigation costs. This is known as a “strategic lawsuit against public participation” (SLAPP). Many states have enacted “anti-SLAPP statutes” allow motions for early dismissal of frivolous suits. Some anti-SLAPP laws provide privilege against defamation claims for statements made in connection with legal claims. New York has an anti-SLAPP statute, but it is very limited in scope. Sexual harassment is…
At a very busy Wednesday conference, the Supreme Court’s actions of note included: Most review grants garner affirmative votes from all seven justices.  The court’s decision to hear In re Scoggins is an exception, Justice Ming Chin not joining his colleagues in granting the petition for review.  Scoggins is a habeas corpus proceeding that was initiated in the Supreme Court, which two years ago issued an order to show cause, returnable in the Third District Court of Appeal.  That court, in a divided unpublished opinion, upheld the prisoner’s life-without-parole sentence for a fatal shooting.  The prisoner was not the shooter, nor did he intend the shooting, but he did plan to have the shooter beat and rob the victim. Two weeks after the filing of the opening brief on the merits, the court dismissed review as improvidently granted in Bottini v. City of San Diego.  Review was granted in December.  The issue, as summarized by court…
Today 1/5 certifies this anti-SLAPP opinion for partial publication. What seems odd is that the court excludes from publication "parts II and III," which are the prong 1 and prong 2 analysis sections of the opinion! So what gets published is a brief intro, the background facts, a brief intro to the SLAPP statute (consisting of quotes from other cases), and a short disposition. Hmmm. It's unclear how this alone could be useful precedent in future cases.

California Constitution

Last September, the Supreme Court granted review in Nationwide Biweekly Administration v. Superior Court, no. S250047, which presents the following issue (according to the docket): Is there a right to a jury trial in a civil action brought by the People, acting through representative governmental agencies, pursuant to the Unfair Competition Law (Bus. & Prof. Code, § 17200, et seq.), the False Advertising Law (Bus. & Prof. Code, § 17500, et seq.) or the Check Sellers, Bill Payers, and Proraters Law (Fin. Code, § 12200, et seq.), when the People seek statutory civil penalties among other forms of relief? The Court of Appeal (First Appellate District, Division One) held that there is a jury trial right in such a public prosecutor action on the question of liability.  The amount of civil penalties, and the propriety of other equitable remedies (such as injunctive relief), is for the court to determine. Nationwide Biweekly Administration, Inc. v.…
At a very busy Wednesday conference, the Supreme Court’s actions of note included: Most review grants garner affirmative votes from all seven justices.  The court’s decision to hear In re Scoggins is an exception, Justice Ming Chin not joining his colleagues in granting the petition for review.  Scoggins is a habeas corpus proceeding that was initiated in the Supreme Court, which two years ago issued an order to show cause, returnable in the Third District Court of Appeal.  That court, in a divided unpublished opinion, upheld the prisoner’s life-without-parole sentence for a fatal shooting.  The prisoner was not the shooter, nor did he intend the shooting, but he did plan to have the shooter beat and rob the victim. Two weeks after the filing of the opening brief on the merits, the court dismissed review as improvidently granted in Bottini v. City of San Diego.  Review was granted in December.  The issue, as summarized by court…
California’s lawmakers took a much-needed step last year by passing the California Consumer Privacy Act as a foundation for consumer privacy rights. Now they need to step up to make sure it can work as intended. One of the major issues identified by the California Attorney General (AG) Xavier Becerra is that the limited resources the legislature has provided the AG to protect consumer privacy means the CCPA’s goals — and the privacy rights Californians want and deserve — will be undercut before the law goes into effect next year. In response, California’s Senate Judiciary Committee this week passed Sen. Hannah-Beth Jackson’s bill, S.B. 516, which would give the AG’s office much-needed support to enforce the law, including by allowing every Californian to act as their own privacy enforcer with the right to challenge companies that violate their privacy in court. 94 percent of Californians want the right to take a company to court if they…
Justice Liu on independent state constitutions - April 8, 2019 - David Ettinger
The Supreme Court has twice in the last two weeks interpreted the California constitution as providing broader rights to criminal defendants than does the federal constitution.  The opinions in People v. Aranda and Gardner v. Appellate Division of the Superior Court involved the protection against double jeopardy and the right to appointed appellate counsel. Justice Goodwin Liu concurred in both cases, but he didn’t author an opinion — for the court or separately for himself — in either.  That absence contrasts with Justice Liu’s non-judicial writings on the subject of independent state constitutions. Recently, the Yale Law Journal published a long book review by Liu, State Courts and Constitutional Structure (2019) 128 Yale L.J. 1304.  In that piece, Liu not only examines 51 Imperfect Solutions:  States and the Making of American Constitutional Law, federal Court of Appeals Judge Jeffrey Sutton’s 2018 book, but also provides…
In People v. Aranda, the Supreme Court today holds that the California constitution’s double-jeopardy clause requires trial courts to accept a jury’s acquittal verdict on a charge even though the jury has hung on uncharged lesser included offenses.  Accepting the partial verdict protects the defendant from being retried on the acquitted charge.  In 2012, a 6-3 U.S. Supreme Court interpreted the federal constitution as having no such requirement. The California court’s 6-1 opinion by Justice Carol Corrigan reiterates that the “’California Constitution is a document of independent force and effect that may be interpreted in a manner more protective of defendants’ rights than that extended by the federal Constitution, as construed by the United States Supreme Court.’” Justice Ming Chin is a lone dissenter in the case.  He says the case “presents a close question,” but he would not interpret the federal and…
Last week, the Ninth Circuit finally ruled that a former Anheuser-Busch employee cannot avoid claims filed by the brewer alleging misappropriation of trade secrets and breach of a nondisclosure agreement, the latest in a long running saga that started when Anheuser-Busch filed suit 6 years ago. Former Anheuser-Busch employee James Clark (“Clark”) had filed a motion to strike the company’s trade secrets claims accusing him of stealing proprietary information under the California Anti-SLAPP statute (“strategic lawsuits against public participation”).  California is one of 28 states that have enacted anti-SLAPP statutes, having done so after observing a “disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” California’s statute contains a two prong test. First, the defendant must establish that suit was filed in…