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

First Amendment

U.S. Court of Appeals Upholds IL Contribution Limits - September 19, 2018 - Carlo Aguja
The U.S. Seventh Circuit Court of Appeals upheld the Illinois Disclosure and Regulation of Campaign Contributions and Expenditures Act. In 2012, Liberty PAC filed a lawsuit claiming the Illinois campaign finance law violates the First Amendment by restricting contributions from individual donors, allowing political parties to make unlimited donations during a general election, creating a waiver provision that lifts spending limits, and allowing unlimited contributions from legislative caucus committees. The U.S. District Court dismissed the first three claims at the pleadings stage due to precedent and conducted a bench trial on the fourth issue and ruled for the state. The U.S. Circuit Court panel affirmed the lower court’s decision in its entirety and the plaintiffs intend to appeal the decision to the U.S. Supreme Court.
An interesting and thought-provoking new article from Professor Donald Kochan that is definitely worth your time: The [Takings] Keepings Clause: An Analysis of Framing Effects from Labeling Constitutional Rights, 45 Fla. State U. L. Rev. ___ (forthcoming 2018).  As the title suggests, Professor Kochan doesn't quite care for the phrase the "Takings Clause" when it comes to that part of the Fifth Amendment we like so much. Instead, he prefers "Keepings Clause" because it embodies the right protected, and does not focus on the governmental power.  Best tidbit: the phrase "takings clause" isn't of ancient origin. Indeed, it is pretty modern. (Count us among those who didn't know that.) From the article's Introduction: It will probably surprise most people that the label “takings clause” is a moniker of modern invention. In fact, the provisions in the U.S. Constitution’s Fifth Amendment that identify…
From the abstract for From Town Square to Twittersphere: The Public Forum Doctrine Goes Digital, 25 B.U. J. Sci. & Tech. L. (2019), Forthcoming, by Dawn Carla Nunziato: This Article examines whether and to what extent government officials’ use of social media sites to interact with their constituents constitutes a public forum and what this forum analysis means for the ability of government officials to block or censor constituents on their social media sites. Such issues have recently arisen in the context of President Donald Trump’s blocking of constituents with whom he disagrees on his @realDonaldTrump/Twitter account. Similar issues have arisen in the context of Maryland Governor Larry Hogan’s and Virginia County Commissioner Phyllis Randall’s blocking of constituents on their Facebook pages, in response to being asked challenging questions. The recent Supreme Court case of Packingham v. North Carolina sheds some light on the application of the…
An alarming number of schools improperly discipline students for their speech — especially students of color. School is back in session, and that means school administrators may be back to surveilling students on social media and unjustly disciplining them for what they say on it. We’ve seen both of these troubling trends before. And in today’s era of inspiring student activism, they may become all the more prevalent. Moreover, experience shows that discipline for student expression is not always applied evenhandedly, and can be invoked to silence youth of color and other marginalized students. Fortunately, the First Amendment protects student speech. While public schools can regulate student speech that substantially disrupts the functioning of the school, as the Supreme Court held in the landmark 1969 case Tinker v. Des Moines, students do not lose their First Amendment rights simply by virtue of walking into school. Nor do they give up their right to speak…
Applying a broad definition, 13 of the 38 cases in which the Supreme Court has granted review for the upcoming October 2018 term raise criminal law and related issues. (A few more will be granted in the “long conference” order list to be released September 27.) This is about average: Between a quarter to a third of cases decided by the court every year are criminal-law-related. But this term the docket feels a bit special: As I explained to the American Bar Association in my “Annual Review of the Supreme Court’s Term, Criminal Cases” last month, October Term 2018 might be described as a criminal law professor’s dream. First-year criminal law: What are the “elements” of burglary and robbery? This question may take lots of lawyers back to fond, or painful, memories of their 1L law school year. In every criminal case, the prosecution is constitutionally required to prove the “elements” of the crime – that is, the…
EFF has submitted an amicus brief [PDF] to the New Hampshire Supreme Court asking it to affirm a lower court ruling that found criticism of a patent owner was not defamatory. The trial judge hearing the case ruled that “patent troll” and other rhetorical characterizations are not the type of factual statements that can be the basis of a defamation claim. Our brief explains that both the First Amendment and the common law of defamation support this ruling. This case began when patent assertion entity Automated Transactions, LLC (“ATL”) and inventor David Barcelou filed a defamation complaint [PDF] in New Hampshire Superior Court. Barcelou claims to have come up with the idea of connecting automated teller machines to the Internet. As the complaint explains, he tried to commercialize this idea but failed. Later, ATL acquired an interest in Barcelou’s patents and began suing banks and credit unions. ATL’s patent litigation did not go well. In…

Anti-SLAPP

Cave Diver Vernon Unsworth Sues Elon Musk - September 17, 2018 - Ken White
If aliens grabbed some rando popped-collar douchebro off of a frathouse roof, Uplifted his brain, and handed him a billion dollars, they'd wind up with Elon Musk, a furiously rich, frighteningly smart visionary and ambulatory Ed Hardy shirt. The wisdom-dump-statted Musk has been terrifying Tesla shareholders by careening from one bizarre antic after another. It might be said of him that we are all constantly called upon to hold his beer. This week finds him hailed to court. Musk made news recently for his antic crescendo of insults and accusations against a cave diver named Vernon Unsworth, who had the temerity to suggest that Musk's efforts to helped cave-trapped Thai children were poseur nonsense. Erratic billionaires don't take criticism well as a rule, and Musk suggested, then denied, then doubled down again and insisted that Unsworth is a pedophile. This is the point at which prudent people seek a court-ordered conservator over the antic person, except…
Aboard the Arctic Sunrise, a working icebreaker that has sailed to the Arctic Circle, the Congo, and the Amazon Rivers under Greenpeace’s stead, EFF joined several civil liberties and environmental rights groups to send a message: no longer will we be bullied by malicious lawsuits that threaten our freedom of speech. “We have the Constitution, we have our rights, and now, we have each other,” said Greenpeace executive director Annie Leonard. On September 5, EFF helped launch Protect the Protest, a coalition of nearly 20 organizations committed to fighting back against Strategic Lawsuits Against Public Participation, also known as SLAPPs. The coalition includes EFF, ACLU, Greenpeace, Freedom of the Press Foundation, Amnesty International, and Human Rights Watch. (Left to right) Mother Jones CEO Monika Bauerlein, Greenpeace executive director Annie Leonard, Rainforest Action Network director of communications Christopher Herrera, Wikimedia legal counsel Jacob…
The Frank G. Wells Environmental Law Clinic at UCLA School of Law filed an amici curiae brief with the California Court of Appeal yesterday in a procedurally complex case involving oil drilling in the City of Los Angeles. David Kaye (UCLA Law ‘18) and Sunjana Supekar (UCLA Law ‘19) contributed to the research and drafting of this brief while enrolled in UCLA’s environmental law clinical course.  An oil well pumps in a newly constructed neighborhood near Shell Oil Company Alamitos No. 1 discovery well on Signal Hill in Long Beach on May 30, 2003. (David McNew/Getty Images) In 2015, a coalition of nonprofit groups (Youth for Environmental Justice, South Central Youth Leadership Coalition, and the Center for Biological Diversity) sued the City of Los Angeles, alleging the City was “rubber-stamping” applications for oil drilling within city limits in violation of CEQA. Eventually, the City voluntarily amended its administrative policy for…
Serova v. Sony Music Entertainment, --- Cal.Rptr.3d ---- , 2018 WL 4090622, No. B280526 (Ct. App. Aug. 28, 2018)[This case says a bunch of stuff that’s way too broad for the facts; people who are concerned about things like attribution rights, and the right of publicity, should probably be paying attention.]Serova sued defendants for marketing a posthumous Michael Jackson album, Michael. The album cover and a promotional video allegedly misrepresented that Jackson was the lead singer on each of the 10 vocal tracks on the album, when in fact he was not the lead singer on three of those tracks.  Serova brought a fraud claim against some defendants, alleging knowing misrepresentation.  The trial court concluded that the album cover, including statements about the contents of the album, and a promotional video for the album were commercial speech that was subject to regulation under the UCL and the CLRA.  The court of appeals reversed because the claims about…
Should an Association Respond to Unofficial Publications? - August 28, 2018 - Steven J. Tinnelly, Esq.
*Unpublished Opinion With increasing frequency, homeowners associations are confronted with members publishing content related to their association and its operations, whether on Facebook, blog posts, or other various online forums. Sometimes these publications are critical of the association board of directors, misrepresent important information and facts, or fraudulently purport to be official association publications. The various potential issues associated with member publications are seemingly endless, but California courts periodically provide clarity regarding issues that can arise in the context of member/association publications. The recent unpublished opinion of Kulick v. Leisure Village Association (2018) arose out of the publication of such member content and provides insight into how courts view and address some of these issues. The Kulick case involved two separate lawsuits between a homeowner (“Kulick”) and his homeowner’s association…
Laura Lee Prather The Freedom of Information Foundation of Texas will award its prestigious James Madison Award to First Amendment attorney Laura Lee Prather. Prather is a board member and past-president of the FOI Foundation of Texas. She is a partner in the litigation section of Haynes and Boone LLP in Austin. The James Madison Award has been given out since 1987 to journalists, politicians, academics, attorneys and vigilant citizens to celebrate outstanding achievements or distinction in the areas of open government, freedom of information and other related First Amendment issues. “Laura is fearless and tireless in championing open government. No one in Texas has done more for the cause than her during the past decade,” Chris Cobler, editor and publisher of the Victoria Advocate and president of the FOI Foundation of Texas, said in a news release. According to the release, Prather led the drafting and negotiations for the Texas reporters’ privilege law, the…

California Constitution

Center for Community Action & Environmental Justice v. City of Moreno Valley (Aug. 23, 2018, case no. D073451) ___ Cal.App.5th ___. The right of initiative and referendum is embedded in the California Constitution as a result of the nationwide progressive political reform movement that began at the end of the 19th century. In fact, Hiram Johnson rode this political reform issue into the winner’s circle when running for governor in 1910. As a result of its constitutional foundation, the rights of initiative and referendum are closely guarded by the courts. Over time, California courts have generally concluded that citizen voters are co-equal with locally adopted legislative bodies when acting upon legislative matters, including the field of legislative actions involving land use matters. As the most recent case demonstrates, there are state legislative limits on selected land use enactments. In the City of Moreno Valley, a significant development project was engulfed…
Free interesting appellate MCLE - September 10, 2018
Free Program of the Month from the CLA!Thirty Years After a Hundred-Year Flood:Judicial Elections and the Administration of JusticeThis program covers the California Constitution’s system for electing justices and judges, and how the elections can influence the administration of justice. Topics include an examination of the 1986 election at which three California Supreme Court justices were removed from the bench. The program will also involve discussion of campaign and campaign finance limitations on judicial candidates. Featured speakers include UC Irvine School of Law Dean Erwin Chemerinsky and former California Supreme Court Justices Joseph Grodin and Cruz Reynoso. [1.5 hours MCLE] Click Here
An Ill-Conceived Felony Murder Bill - September 7, 2018 - Kent Scheidegger
Presently on California Governor Jerry Brown's desk is a bill to revamp California's felony murder rule. There are just two problems. First, the bill is poorly written, retroactive, and would put murderers on the street. Second, the bill is unconstitutional because it effectively amends a statute enacted by initiative, which can only be done by putting it back on the ballot and letting the people vote on it.Let's take the second point first. That is not merely my opinion or the prosecutors' opinion. The Legislative Counsel told the legislators that, and they passed it without a ballot-ratification provision anyway. The letter is here.On the substance, some pruning of the felony murder rule may very well be in order. In recent years, though, both the Legislature and the proponents of initiatives in California have gone at the criminal law with chain saws instead of pruning shears. This bill is no exception. The most obnoxious of the provisions is the…
California Amends Landmark Privacy Law Delaying Enforcement and Making Revisions - September 5, 2018 - Alan L. Friel and Niloufar Massachi
With only hours left to the 2018 legislative session, the California Legislature has amended the California Consumer Privacy Act of 2018 (CCPA) by passing SB-1121. The legislature was expected to amend the CCPA, which passed in just about one week after it was proposed, in a rush to avoid a different version of the act being finalized as a ballot initiative that would have been on the November ballot. We wrote about that process here and here. A summary of the CCPA as originally passed is here, and recommendations on how to start to prepare are here. Assuming it is signed by Gov. Brown by Sept. 30, 2018, SB-1121 will make both modest and material changes to the CCPA but, as we recently reported, does not fix many of the problems with the CCPA. It does, however, do the following: Material changes to the CCPA: Removes the one-year requirement for the attorney general to establish certain rules and procedures (e.g., opt-out), puts a deadline of July 1, 2020, on the attorney…
On August 31, 2018, the California State Legislature passed Senate Bill 1121, amending the California Consumer Privacy Act of 2018 (“CCPA”).  The CCPA, which contains the broadest consumer data privacy protections in the country, was hastily passed in June to forestall an advocacy group from putting a more restrictive bill before voters in a November referendum.  Since then, the CCPA has been widely criticized, including by California’s own attorney general.  Now, it appears, California lawmakers are busy trying to clean up the CCPA before it goes into effect in January 2020. While leaving the most significant provisions of the CCPA intact, such as the right of consumers to request that a business delete their personal information, SB 1121 makes many substantive changes, including, among others, the following: Clarifies that personal information includes, but is not limited to, multiple types of information so long as such information…
CCPA Amended: Enforcement Delayed, Few Substantive Changes Made - September 1, 2018 - Hunton Andrews Kurth LLP
On August 31, 2018, the California State Legislature passed SB-1121, a bill that delays enforcement of the California Consumer Privacy Act of 2018 (“CCPA”) and makes other modest amendments to the law. The bill now goes to the Governor for signing. The provisions of the CCPA will become operative on January 1, 2020. As we have previously reported, the CCPA introduces key privacy requirements for businesses. The Act was passed quickly by California lawmakers in an effort to remove a ballot initiative of the same name from the November 6, 2018, statewide ballot. The CCPA’s hasty passage resulted in a number of drafting errors and inconsistencies in the law, which SB-1121 seeks to remedy. The amendments to the CCPA are primarily technical, with few substantive changes. Key amendments to the CCPA include: Enforcement: The bill extends by six months the deadline for the California Attorney General (“AG”) to draft and adopt the law’s implementing…