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

First Amendment

Foreign Companies Can Use 28 U.S.C. § 1782 to Unmask Anonymous Internet Posters - December 10, 2019 - J. Alexander Lawrence and Geary Choe
A random Twitter account tags a Japanese company and badmouths it in a series of tweets. Because the tweets are tagged, a search of the company’s name on Twitter will display the tweets with the negative comments among the search results. Upset over the tweets, the Japanese company wants to sue the tweeter in Japan. But how can it? The tweeter has not used his real name. This is where discovery under 28 U.S.C. § 1782 can help. Section 1782 provides a vehicle for companies or individuals seeking U.S. discovery in aid of foreign litigation—even if the litigation is merely contemplated and not yet commenced. Specifically, Section 1782 provides that a federal district court may grant an applicant the authority to issue subpoenas in the United States to obtain documents or testimony, including documents or testimony seeking to unmask an anonymous Internet poster to pursue defamation claims abroad. To pursue Section 1782 discovery, an applicant needs to establish:…
Constitutional Reckoning - December 10, 2019 - Guest Blogger
For the Symposium on Mary Anne Franks, The Cult of the Constitution (Stanford University Press, 2019).Mary Anne FranksOn July 25, 1974, Representative Barbara Jordan of Texas opened her argument for impeaching the President the of the United States by reflecting on the preamble to the Constitution. Jordan, the first African-American Congresswoman elected from the South, noted that when those words were written, she was not included in the Constitution's protections.  But “through the process of amendment, interpretation and court decision I have finally been included in 'We, the people.’” Congresswoman Jordan continued, "My faith in the Constitution is whole, it is complete, it is total. I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution.”It was an extraordinary moment: a black woman calling the most powerful white man in…
[But any such cancellation would violate the First Amendment, because it would involve viewpoint discrimination in a place opened by the government to private speech.] The Seattle Times (Crystal Paul) reports: Community members including transgender locals and trans allies have inundated the Seattle Public Library with calls and emails, asking the library system to cancel an upcoming event hosted by the Women's Liberation Front—a self-described "radical feminist organization" that has publicly espoused what critics call anti-trans views. The group's event, titled "Fighting the New Misogyny: A Feminist Critique of Gender Identity," is publicized as "a critical analysis of gender identity" that will "make powerful arguments for sex-based women's rights," according to the event page. The event, scheduled to be held Feb. 1 in the Microsoft Auditorium at the Seattle Public Library – Central Branch, has placed…
by Paul Alan Levy In pursuit of his frivolous libel suit against Devin Nunes’ Cow and other defendants in Henrico County, Virginia, Congressman Devin Nunes has served subpoenas on Twitter, on a local political consultant, and on a Richmond law firm, demanding information that would provide the identity of the owner of the Devin Nunes’ Cow account. Nunes is not, so far as we can tell, pursuing his subpoena to Twitter, because the Virginia Supreme Court held in the Hadeed case a few years ago that Virginia plaintiffs cannot assert subpoena jurisdiction over out of state companies to obtain identifying information; and the consultant, so far as we know, does not have any identifying information (although his motion to quash the subpoena is highly entertaining).  But the Richmond law firm may well have that information, so this morning Public Citizen, along with the ACLU and the ACLU of Virginia, is filing a brief as amicus curiae  in support of the law…
Several new titles have been added to Pitt Law's LexisNexis digital library:Free Speech on Campus The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind The Race Beat After Charlie Hebdo: Terror, Racism and Free Speech Top Secret When Our Government Keeps Us in the Dark? The Soul of the First Amendment: Why Freedom of Speech MattersThese ebooks can be borrowed by clicking on the "Borrow" link. Users will be required to log in through the Pitt Passport page.
I argued previously that Section 230 of the Communications Decency Act, in combination with congressional pressure, has turned internet mega-platforms like YouTube and Facebook into state actors when they censor “objectionable” content. Alan Rozenshtein has replied, thoughtfully and critically. This is my response. There is a simple reason why Section 230—which grants broad immunity to websites that block “objectionable” but “constitutionally protected” speech, as the statute itself puts it—is constitutionally concerning. Through a grant of immunity, the statute deliberately seeks to induce private parties to take action that would violate constitutional rights if governmental actors did it directly. That’s a powerful formula for evading the Constitution. Imagine a statute immunizing private parties who barricade abortion clinics, hack into people’s email or confiscate people’s guns. Such immunity statutes have…

Anti-SLAPP

This is the first instalment in a regular new series from Inforrm highlighting press and case reports of new media and information cases from around the world.  It is intended to complement our United States: Monthly Round Up posts.  Please let us know if there are other cases and jurisdictions which we should be covering. In the Papers Australia Christian Porter has meet the state and territory attorney general to discuss the amendment of defamation laws, the Guardian reports. Information on the agreements can be found here and are highly significant for the system. The Conversation considers the push to make social media companies liable for defamation. Canada Mondaq news alerts comments on small claims procedural changes. Flare comments on libel laws impact on silencing victims of gender-based violence. China Radio Free Asia reports on how the Chinese government’s authoritarian tackling of free speech issues is impacting other jurisdictions such…
No extra pages for you! - December 10, 2019
In this published anti-SLAPP opinion from 2/4's Justice Manella, there's a final section that has particular zing:The District contends this matter should be remanded to the trial court with instructions to rehear the anti-SLAPP motion after the District files a longer opposition brief, arguing the court abused its discretion in denying the District leave to include an additional nine pages. The District concedes it could not find any published authority reviewing the denial of such leave. The District falls far short of showing error, and farther short of showing prejudice. The District’s briefs on this appeal -- in which we review the trial court’s decision de novo -- span 100 pages. Nothing in them suggests that an extra nine pages below would have made a difference.
by Paul Alan Levy In pursuit of his frivolous libel suit against Devin Nunes’ Cow and other defendants in Henrico County, Virginia, Congressman Devin Nunes has served subpoenas on Twitter, on a local political consultant, and on a Richmond law firm, demanding information that would provide the identity of the owner of the Devin Nunes’ Cow account. Nunes is not, so far as we can tell, pursuing his subpoena to Twitter, because the Virginia Supreme Court held in the Hadeed case a few years ago that Virginia plaintiffs cannot assert subpoena jurisdiction over out of state companies to obtain identifying information; and the consultant, so far as we know, does not have any identifying information (although his motion to quash the subpoena is highly entertaining).  But the Richmond law firm may well have that information, so this morning Public Citizen, along with the ACLU and the ACLU of Virginia, is filing a brief as amicus curiae  in support of the law…
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…

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…