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

First Amendment

WHERE HAVE YOU GONE, NAT HENTOFF? Journalists Against Free Speech. The First Amendment is no longer sacred among  journalists steeped in progressive orthodoxy about “hate speech” and “repressive tolerance.” My piece in City Journal discusses the new censors at HuffPost, Vox, the New Republic, Slate, the Washington Post, the Columbia Journalism Review and other media outlets. These mostly younger progressive journalists lead campaigns to get conservative journalists fired, banned from Twitter, and “demonetized” on YouTube. They don’t burn books, but they’ve successfully pressured Amazon to stop selling titles that they deem offensive. They encourage advertising boycotts designed to put ideological rivals out of business. They’re loath to report forthrightly on left-wing censorship and violence, even when fellow journalists get attacked. They equate conservatives’ speech with violence and rationalize…
Today's Headlines and Commentary - November 13, 2019 - Gordon Ahl
The first open hearing in the impeachment inquiry into President Trump began at 10:00 a.m. on Wednesday with testimony from William B. Taylor Jr., the acting ambassador to Ukraine, and George Kent, deputy assistant secretary of state for European and Eurasian affairs, reports the Washington Post. Lawfare is livestreaming the hearing here. On Tuesday, the House Intelligence Committee announced a new set of public hearings with eight witnesses for next Tuesday, Wednesday and Thursday, according to Politico. The New York Times reports that President Trump has considered firing the intelligence community’s inspector general Michael Atkinson due to his conclusion that the whistleblower complaint was credible. Turkish President Recep Tayyip Erdogan is scheduled to visit the White House on Wednesday, reports the Post. Prior to the visit, President Trump offered Erdogan a package of inducements to improve U.S.-Turkey relations. The Palestinian death toll increased to 23 over a…
[And does a Vermont statute mandating such sealing apply in cases that are being litigated in federal court?] A Vermont statute (12 Vt. Stats. Ann. § 522) provides that key documents and hearings in lawsuits over "childhood sexual abuse"—alleged abuse that happened when the plaintiff was under 18—would be either temporarily or permanently sealed: If a complaint is filed alleging an act of childhood sexual abuse, the complaint shall immediately be sealed by the clerk of the court. The complaint shall remain sealed until the answer is served or, if the defendant files a motion to dismiss …, until the court rules on that motion. If the complaint is dismissed, the complaint and any related papers or pleadings shall remain sealed. Any hearing held in connection with the motion to dismiss shall be in camera. (Note that the statute will often be applied when the plaintiff is no longer a child; indeed, Vermont just repealed the statute of limitations…
The Bullets of Attrition - November 13, 2019 - SHG
Without explanation, as is usually the case although it would not have been surprising had there been a dissent offering some explanation, the Supreme Court denied cert in Remington Arms v. Soto. This means the Connecticut Supreme Court’s reversal of the trial court’s dismissal on the pleadings will stand, and the case will move forward to discovery. The Protection of Lawful Commerce in Firearms Act generally prohibits such suit. But it contains an exception for cases where the manufacturer or dealer “violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm….” It then lists examples, involving failures in record-keeping or sale to a prohibited person. The Second and Ninth Circuit had interpreted the exception in light of the examples listed, as limited to knowing violation of laws specifically directed at gun commerce. Plaintiffs argued, and the CT Supremes agreed,…
UNITED STATED STATES DISTRICT COURT DISTRICT OF CONNECTICUT CAMERON L. ATKINSON,  Plaintiff, :  v. FACEBOOK, INC., : MARK ZUCKERBERG, : Defendants. : November 12, 2019 COMPLAINT 1. This is an action for money damages and injunctive relief against Facebook, a social media company and personal data harvester, and its founder and current chief executive officer, Mark Zuckerberg. The defendants seek to, and do, have quasi-monopolistic control of a quintessential public communications forum, offering users access to their service free of charge while surreptitiously selling data gathered from the users to third parties for a profit. The defendants enter into adhesion contracts with users, arrogating unto the defendants an opaque right to ban any user for violating the defendants’ so-called “community standards.” The Plaintiff has been denied the ability to speak publicly on a matter of grave public importance based on the perceived content of the…
Your Skin Is A Canvas: Tattoo Parlors and the First Amendment - November 12, 2019 - Patrick W. Krechowski, Esq.
Earlier this year, I wrote about a unique land use issue and some very specific First Amendment free speech implications related to the regulation of charitable donation bins (The Right to Blight – Charitable Donation Bins, Freedom of Speech, and the First Amendment).  Very few local governments, property owners and non-profits realize the implications of soliciting charitable donations and the First Amendment. A few months later I expanded on the “free speech” discussion by trying to explain the many intricacies and variables of free speech and signage (What Does The Sign Say? – Part I: Sign Regulations, Legal Issues and the First Amendment & Part II: Practical Solutions for Local Governments).  Any business owner understands the valuable contribution that signage can make to its bottom line number, while local governments often struggle with their own ability to regulate signage in the name of aesthetics, safety and “character…

Anti-SLAPP

The Joys and Dangers of Tweeting: A CDA Immunity Update - November 12, 2019 - J. Alexander Lawrence
A recent decision from a federal court in New York highlights the limits social media users enjoy under Section 230 of the Communications Decency Act (CDA). The case involves Joy Reid, the popular host of MSNBC’s AM Joy who has more than two million Twitter and Instagram followers, and the interaction between a young Hispanic boy and a “Make America Great Again” (MAGA)–hat wearing woman named Roslyn La Liberte at a Simi Valley, California, City Council meeting. The case centers on a single re-tweet by Reid and two of her Instagram posts. Here is Reid’s re-tweet. It says: “You are going to be the first deported” “dirty Mexican” Were some of the things they yelled at this 14 year old boy. He was defending immigrants at a rally and was shouted down.    Spread this far and wide this woman needs to be put on blast.     Here is Reid’s first Instagram post from the same day.   It says: joyannreid He…
Prager University publishes videos on YouTube. YouTube demonetized some of its videos and placed some in “restricted mode,” meaning that users of YouTube’s restricted mode functionality won’t see them. Prager claimed that YouTube took these steps due to anti-conservative bias, a claim that has zero credibility. Prager sued Google in federal court. In March 2018, Judge Koh dismissed the federal claims and declined to exercise supplemental jurisdiction over the state law claims. Prager appealed the federal claims to the Ninth Circuit, which heard the appeal in August. Separately, Prager refiled the state law claims in California state court. The superior court issued a tentative ruling that compellingly rejects every aspect of Prager University’s case. State Constitution Protection for Free Speech Censorship enthusiasts love citing the California Supreme Court Pruneyard v. Robins ruling as an example of how courts can require private property owners…
On October 17, 2019, the California Court of Appeals for the Second District (which covers Los Angeles), issued an opinion in Starview Property, LLC v. Lee regarding special motions to strike, also known as “anti-SLAPP” motions, which are motions to strike and dispose of baseless lawsuits which are in fact Strategic Lawsuits Against Public Participation. California created its anti-SLAPP statute (Code of Civil Procedure, section 425.16) in order to quickly and efficiently (relatively) dispose of lawsuits that are brought to threaten and chill free speech on matters of public interest. Where this is the case, the defendant can bring a special motion to strike a cause of action where two conditions are met: (1) the cause of action is one “arising from any act . . . in furtherance of the . . . right of petition or free speech . . . in connection with a public issue”, and (2) the plaintiff has not established that there is a “probability that the…
As I’ve mentioned many times, blogging about lawsuits has its own legal peril. By definition, I’m commenting on people who’ve shown a willingness to litigate, so there’s a higher-than-average chance they will want to litigate against me. Though I’m quite careful with my blog posts, I still get legal threats a couple of times a year, and my blog winds up on University Counsel’s desks about once a year. Not even AmLaw 100 firms can avoid this trap. Many big firms have launched topical blogs to showcase their expertise, and today’s lawsuit involves one of them. Dorsey & Whitney runs a blog called “Consumer Financial Services Legal Update.” In 2018, firm attorney Artin Betpera (who has since switched to the Womble firm) made a post, “TCPA Class Certification Denial Exposes Major Spousal Scheme.” (The post was taken down in October 2018, but here’s the Wayback Machine version). The post covers a TCPA case…
[Open fields, tight handcuffs, and mass shootings.] Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice. Next month, the U.S. Supreme Court will consider whether parents of an unarmed, unthreatening Mexican teen who was shot dead from across the border can sue the federal agent who killed their son. The Fifth Circuit ruled that they cannot. Click here to read an IJ amicus brief urging the Supreme Court to reverse. "Had Sergio Hernandez been killed by a federal agent in the 19th century, his parents could have brought a damages claim for the deprivation of their son's constitutional rights," says Anya Bidwell, who co-authored the brief. "The Supreme Court's current jurisprudence that essentially eliminates the ability of individuals to sue federal agents for constitutional rights is simply inconsistent with this proud history." Though facing charges in federal court for false statements and witness…
Best of luck to those taking the Appellate Law Certification Exam tomorrow!Today's DJ has Moskovitz on Appeals in Laying Traps about thinking ahead and holding back points rather than putting everything in an opening brief.And today's DJ's Appellate Zealots is Sharon Baumgold's Appellate writs may be best route to clarifying AB 5 ambiguities early on.In other appellate news, see: Court of Appeal Invites Fresno Students to Oral Argument SessionStudents will watch the Oct. 22 arguments at Fresno's Bullard High School.Back to the DJ, see Judges not believin' in anti-SLAPP challenge of Journey, to see how Judge Hurwitz feels about anti-SLAPP appeals: "I hate the appeals of anti-SLAPP motions; they're a complete distraction. You would have been able to try the issues in front of a judge, the judge would have made findings," Hurwitz told [counsel at oral argument]. "It's not your fault, because our court has foolishly…

California Constitution

Tomorrow morning, the Supreme Court will file its opinion in Wishnev v. Northwestern Mutual Life Insurance Company, which was argued on the September calendar.  (Briefs here; oral argument video here.) It’s been two months since the court last issued an opinion.  That gap is normal for this time of year. Wishnev comes from the Ninth Circuit, which asked the Supreme Court to decide:  1. Are the lenders identified in Article XV of the California Constitution, see Cal. Const. art. XV, § 1, as being exempt from the restrictions otherwise imposed by that article, nevertheless subject to the requirement in section 1916-2 of the California Civil Code that a lender may not compound interest “unless an agreement to that effect is clearly expressed in writing and signed by the party to be charged therewith”?, and 2. Does an agreement meet the requirement of section 1916-2 if it is comprised of: (1) an application for insurance signed by the borrower,…
California Utility: To Hold Us Liable For A Taking Would Be A Taking - November 12, 2019 - Robert Thomas (inversecondemnation.com)
Check out this story by JD Morris ("PG&E renews push to avoid strict liability for 2017, 2018 fires") in the San Francisco Chronicle, about the recent (and ongoing) California wildfires, and the issue of what has been called the "unusual," "unique," and "so-called" doctrine of inverse condemnation in that state's courts. Recall that the theory is that when private property is damaged by a wildfire and a utility's equipment is a substantial cause (or in the words of a recent California Supreme Court opinion, there's a "robust nexus" between the damage and some public purpose improvement), that is a taking or damaging under the California Constitution. Like all takings and damagings resulting in the obligation to provide just compensation, traditional tort notions of fault and negligence don't play a role. As the U.S. Supreme Court noted in Armstrong v. United States, 364 U.S. 40 (1960), the point of…
A longtime critic of California's $3 billion stem cell agency this week chalked up pluses and minuses of the research effort, which it said is "essentially broke," and sounded a skeptical note about a plan to refinance it with $5.5 billion more. The Center for Genetics and Society (CGS) "essentially" agreed with what it described as a "scorching" critique of the proposed ballot initiative to provide the agency with additional billions. In addition to the cash, the initiative would make major changes in the California Institute for Regenerative Medicine (CIRM), as the agency is formally known. In a post on the CGS blog, Pete Shanks, a consultant with the Berkeley organization, briefly recounted the history of CIRM and some of the past criticism of it. But he focused primarily on the critique last week by longtime CIRM board member Jeff Sheehy. Shanks said, "Sheehy’s range of concerns is wide. He convincingly criticizes proposed…
Editor's Note: The following critique of the proposed $5.5 billion ballot initiative to re-fund the state stem cell agency was offered to the California Stem Cell Report by Jeff Sheehy, a longtime member of the governing board of the stem cell agency. Sheehy is also an HIV advocate and former member of the San Francisco County board of supervisors. His piece is verbatim, including the headline below. This web site more than welcomes additional comment on this important subject, both pro and con. You may comment at the end of this item. Or send your commentary to [email protected] It will be carried verbatim.)"Prop 71 Redux, Thoughts on the 'California Stem Cell Research, Treatments and Cures Initiative of 2020'”By Jeff Sheehy"I have been a member of the Independent Citizen’s Oversight Committee (ICOC), the governing board of the California Institute for Regenerative Medicine (CIRM), since its inception in 2004. The…
Dickerson v. Superior Court of Alameda Cty., 40 Cal. App. 5th Supp. 1, 252 Cal. Rptr. 3d 871, 874–82 (Cal. App. Dep’t Super. Ct. 2019) Petitioners contend that delays in charging each of them resulted in a deprivation of due process rights under the California Constitution. In both cases, the trial court found that Petitioners suffered prejudice due to the prosecution’s delays in charging them. The trial court then erred in failing to require competent evidence justifying the delay by the prosecution. People v. Buggs-Ten Month delay in filing of complaint Continue reading
A fast-tracked writ proceeding challenging a new law that could have on impact on next year’s presidential election joins six other cases on the Supreme Court’s November calendar, announced today. But there’s still no hearing in sight for Robinson v. Lewis, a case in which the court agreed to resolve a habeas corpus procedural question for the Ninth Circuit.  The federal court has been waiting a really long time for an answer. On November 5 and 6, in Sacramento, the court will hear the following cases (with the issue presented as summarized by court staff or stated by the court itself): People v. Hoyt:  This is an automatic direct appeal from a February 2003 judgment of death.  The court’s website does not list issues for such cases.  Counsel was appointed in December 2007 and briefing was completed in September 2013. People v. Leon:  This is an automatic direct appeal from a May 2006 judgment of death.  The court’s…