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

First Amendment

This morning the Supreme Court issued orders from the justices’ December 6 conference. The justices did not add any new cases to their merits docket for the term. The justices declined to take up the case of Louie Schexnayder, a Louisiana inmate who was sentenced to life in prison for the stabbing death of Eugene Price. After Schexnayder’s direct appeals were finished, he unsuccessfully sought state and then federal post-conviction relief. In 2008, after those efforts had concluded, a suicide note from an official in the state court where Schexnayder had filed his post-conviction applications revealed that the court had a practice of denying all pro se prisoner applications (like Schexnayder’s) without any review by a judge. A state court reviewed Schexnayder’s application again, and again denied it. A federal district court then denied Schenxnayder’s plea for federal post-conviction relief, following the rule of the U.S. Court of Appeals for the…
The US Supreme Court on Monday declined to review a Kentucky law that requires a pregnant individual to receive an ultrasound before having an abortion. This means that the law, which was upheld by the US Court of Appeals for the Sixth Circuit, will stand. The American Civil Liberties Union filed the appeal on behalf of physicians at the only remaining abortion clinic in Kentucky, arguing that the law was a compelled-speech mandate, “wholly unrelated to traditional informed consent and therefore presumptively unconstitutional.” The Sixth Circuit held that the law does not violate a doctor’s right to free speech under the First Amendment. The Sixth Circuit cited Planned Parenthood v. Casey, writing that “even though an abortion-informed-consent law compels a doctor’s disclosure of certain information, it should be upheld so long as the disclosure is truthful, non-misleading, and relevant to an abortion.” No justices commented or issued a…
The Maryland General Assembly has violated the First Amendment in its zeal to prevent foreign interference in state and local elections, a federal appeals court ruled Friday. The 4th U.S. Circuit Court of Appeals struck down as violating the freedoms of speech and press a 2018 law that would have required news outlets accepting political ...
Christopher Hook did not deny having used the language quoted in the document below, but said it he was only using it “‘for effect,’ similar to bluster or ‘puffery,'” and that he did not intend for opposing counsel to actually consider the comments to be personal insults. He did recognize, he said, that “perhaps some of the language ‘crossed the line’ of civility,”  and that he “may have used some inappropriate language” in a moment of frustration and anger. Was the language inappropriate? Perhaps. Decide for yourself, if you wish, though you have been warned that some of the following comments may, just possibly, have “crossed the line” in terms of “civility”:   Yikes! Sorry, maybe I should have clarified that I was being sarcastic just now. In his opposition (see also his declaration), Hook argued that Allstate’s motion was “a desperate and improper…
IOW, LLC v. Breus, 2019 WL 6603948, No. CV18-1649-PHX-DGC (D. Ariz. Dec. 2, 2019)The court quite properly grants a motion for reconsideration of part of its earlier opinion, correctly applying Rogers v. Grimaldi/Empire to protect the title of a nonfiction work.  Breus is a clinical psychologist, board certified in clinical psychology and sleep disorders, who studies how his patients’ chronobiologies effect their treatment, and has written extensively about chronobiology and circadian rhythms. IOW claims rights in various “WHEN”-related marks; the issue here is Dr. Breus’s third book, The Power of When; IOW claimed rights in that phrase.Under Rogers, courts “apply the [Lanham] Act to an expressive work only if the defendant’s use of the mark (1) is not artistically relevant to the work or (2) explicitly misleads consumers as to the source or the content of the work.”  IOW argued that The Power of When “is a non-fiction,…
“Supreme Court Lets Kentucky Abortion Ultrasound Law Take Effect; The law requires doctors to show and describe ultrasounds to women seeking abortions; Challengers said it violated the First Amendment”: Adam Liptak of The New York Times has this report. Robert Barnes of The Washington Post reports that “Supreme Court won’t review abortion law challenged by doctors who say it violates their right to free speech.” Alex Swoyer of The Washington Times reports that “Supreme Court rejects challenge to Kentucky’s abortion ultrasound law.” Chris Kenning of The Louisville Courier Journal reports that “Supreme Court leaves Kentucky abortion ultrasound law in place.” Mark Sherman of The Associated Press reports that “Supreme Court leaves Kentucky’s ultrasound law in place.” Lawrence Hurley of Reuters reports that “U.S. Supreme Court leaves in place Kentucky abortion restriction.” Ariane de Vogue of…

Anti-SLAPP

Welcome to INFORRM’s US Monthly Round Up which we have decided to revive for the benefit of our readers. Posts will consider monthly developments in media law across the United States. We hope readers find this useful. The defamation case brought by Vern Unsworth – the Thai cave rescue diver – against Elon Musk is proceeding in Los Angeles. The claim follows a tweet by Mr Musk in which he described Mr Unsworth as a “pedo guy”. The BBC reports as does CNBC, the New York Times and Law360. It is noted that the case developed following an interview of Mr Unworth on CNN. The defence sought to define Mr Unsworth as a public figure but failed – meaning proving actual malice motivating the statements is not required. The original complaint, in the United States District Court of Central California, can be found here. Republican Congressman Devin Nunes is suing CNN for $435m following the publication of a “demonstrably false hit piece” on…
Morning Docket: 12.05.19 - December 5, 2019 - Jordan Rothman
* George Zimmerman is suing the family of Trayvon Martin and their lawyer for $100 Million over statements made in a new book. Good luck recovering that. [USA Today] * A Massachusetts lawyer has been criminally charged and suspended from practice for defrauding clients and lenders of millions of dollars. [Mass Live] * Melania Trump said that the law professor who invoked Barron Trump's name at an impeachment hearing "should be ashamed" of her words. [Fox News] * Sidley Austin and a number of other law firms are being sued for allegedly aiding a Ponzi schemer. [Courthouse News Service] * A Philadelphia lawyer has been disbarred for laundering money for an organized crime family. This attorney took being a consigliere way too far. [Philadelphia Inquirer] * Rep. Devin Nunes is suing CNN for $435 Million over allegedly defamatory statements. Wonder if the suit was filed in a state with an anti-SLAPP law... [USA Today]
This morning the Supreme Court issued more orders from last week’s private conference. The justices did not add any new cases to their merits docket for this term, and they denied review in several closely watched cases. Perhaps most notably, they turned down a request to reconsider one of last term’s significant decisions – even as Justice Brett Kavanaugh signaled that he might provide the key vote for the court to reach the opposite result in a future case.  In June, a deeply divided eight-member Supreme Court declined to resurrect the “nondelegation doctrine,” which would bar Congress from giving its power to legislate to another branch of government. The issue arose in Gundy v. United States, a challenge to a provision of the Sex Offender Registration and Notification Act that gives the attorney general the authority to decide whether the law’s registration requirements should apply to sex offenders who were convicted…
Law and Media Round Up – 25 November 2019 - November 24, 2019 - INFORRM
The main political parties have now released their election manifestos. The Labour, Green and Lib Dem manifestos include commitments to implementation of the Leveson proposals and the holding of Leveson Part 2. The Conservative manifesto [pdf] repeats previous promises to repeal section 40 of the Crime and Courts Act 2014 and to scrap Leveson Part 2. It goes on to say that a Conservative government will legislate “to make the UK the safest place in the world to be online – protecting children from online abuse and harms”, whilst “recognising and defending the invaluable role of a free press” – suggesting that the regulation will not extend to harmful content on newspaper websites. The Liberal Democrats and the SNP’s legal action against ITV for excluding them from election debates concluded this week. The parties unsuccessfully argued that the move breached impartiality rules.  The judges, Davis LJ and Warby J, released a short…
2/4 publishes this opinion here today, noting "We publish to draw attention to draw attention our concluding note on civility, sexism, and persuasive brief." See pp. 9-11. "we conclude the brief’s opening paragraph reflects gender bias and disrespect for the judicial system." "Objectifying or demeaning a member of the profession, especially when based on gender, race, sexual preference, gender identity, or other such characteristics, is uncivil and unacceptable. Moreover, the comments in the brief demean the serious business of this court."We conclude by extending our thanks to the many talented lawyers whose excellent briefs and scrupulous professionalism make our work product better and our task more enjoyable. Good brief-writing requires hard work, rigorous analysis, and careful attention to detail. Moreover, we recognize “every brief presents opportunities for creativity— for imaginative approaches that will convey the point…
Supreme Court actions of note at its Wednesday conference included: As reported yesterday, the court agreed to answer the Ninth Circuit’s question in Vazquez v. Jan-Pro Franchising International, Inc. about whether Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 is retroactive. The court granted review in Doe v. Olson, yet another anti-SLAPP case.  The issue is whether a plaintiff can make legal claims for sexual assault, harassment, and stalking after promising — in a mediation agreement that ended an earlier restraining order action — “not to disparage” her alleged attacker.  The unpublished opinion of the Second District, Division Eight, Court of Appeal concluded that the litigation privilege protected the plaintiff’s filing of an administrative complaint with federal and state housing agencies, but not her filing of a lawsuit.  The opinion did not address the impact, if any, of Code of Civil Procedure…

California Constitution

Just last month, the Supreme Court found the state constitution was violated by part of a new state law that required presidential candidates to release their tax returns.  Today, in People v. Guzman, the court nixes on state constitutional grounds part of yet another statute, Penal Code section 632, which generally bars the unconsented-to recording of “a confidential communication.”  In doing so, the court finds nothing wrong with a child molestation conviction that followed the jury hearing a recording a victim’s mother made of a conversation she had with the defendant’s niece. The section 632 subdivision in issue is an exclusionary rule, prohibiting the use in evidence of confidential communication recordings.  That would clearly bar admission of the mother’s recording.  The court’s unanimous opinion by Chief Justice Tani Cantil-Sakauye concludes, however, the prohibition could no longer apply in criminal cases after…
Tomorrow morning, the Supreme Court will file its opinion in People v. Guzman.  (Briefs here; oral argument video here.)  It will be the first opinion in an October calendar case. After tomorrow, there will be five undecided October cases, and December 30 will be the last of seven regular filing days left within the 90-day period for issuing opinions in those matters. Guzman concerns whether the “Right to Truth-in-Evidence” provision of the California Constitution (art. I, § 28, subd. (f)(2)) abrogates Penal Code section 632, subdivision (d), which otherwise mandates the exclusion of recorded confidential communications from evidence in criminal proceedings.  The court granted review in July 2017, but briefing was not completed until a year later. The opinion can be viewed tomorrow starting at 10:00 a.m.
The Supreme Court of California ruled Thursday against a California law that required presidential primary candidates to register tax returns with the state for primary candidacy. In its ruling, the court determined that the law, the Presidential Tax Transparency and Accountability Act, was invalid under the California Constitution. The court found that the law could prevent leading national primary election contenders from entering the California primary. The court based its decision on the unconstitutionality of this specific restriction: Allowing the income tax return disclosure requirement before us to stand could effectively revoke [constiution] article II, section 5(c)’s guarantee to voters of a choice among all “recognized” candidates for president who do not file affidavits of noncandidacy. The statutory prerequisite, if not complied with, would exclude from the ballot even someone who is actively seeking the presidential nomination of a…
[Today's decision was based on the California Constitution.] Article II, section 5(c) of the California Constitution provides (emphasis added), The Legislature shall provide for partisan elections for presidential candidates, and political party and party central committees, including an open presidential primary whereby the candidates on the ballot are those found by the Secretary of State to be recognized candidates throughout the nation or throughout California for the office of President of the United States, and those whose names are placed on the ballot by petition, but excluding any candidate who has withdrawn by filing an affidavit of noncandidacy. As the court's unanimous decision (in Peterson v. Padilla) put it, Elections Code sections 6883 and 6884 purport to make the appearance of a "recognized" candidate for president on a primary ballot contingent on whether the candidate has made the disclosures specified by the Act. This additional…
I don't think it's very surprising that the California Supreme Court struck down today the challenged provisions of the Presidential Tax Transparency and Accountability Act (Elec. Code, § 6880 et seq.), which prohibit the Secretary of State from printing on a primary election ballot the name of a candidate for President of the United States who has not filed with the Secretary of State the candidate’s federal income tax returns for the five most recent taxable years.  The language of the California Constitution in that regard (article II, section 5(c)) are nontrivially to the contrary.  So you've got a unanimous decision today that largely reads as one would expect.  Nor is it surprising that the opinion's author is Chief Justice Cantil-Sakauye.  That too is as it should be.But it is interesting to see Judge Cuellar's concurrence.  He's the only person who writes separately.  And he does so to highlight why,…
In Patterson v. Padilla, the Supreme Court today finds that Senate Bill 27, which seeks to force presidential candidates to disclose their tax returns, violates the California constitution, at least as to well-known candidates.  Because of the urgency of resolving the issue, the court makes its opinion final immediately, which is permitted but unusual. The state constitution requires the Legislature to provide for partisan presidential elections, including primary ballots with the names of “those found by the Secretary of State to be recognized [presidential] candidates throughout the nation or throughout California” and also of “those whose names are placed on the ballot by petition.”  SB 27 bars from the ballot those candidates who don’t disclose their last five years of income tax returns.  A legislative report says the bill was “prompted by [the current president’s] break with the customary practice” of…