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

First Amendment

In recent weeks, Facebook has been criticized for adopting a policy of not censoring advertising and other content posted on its platforms by political candidates.  While Facebook apparently will review content whose veracity is challenged when posted by anyone else, it made an exception for posts by political candidates – and has received much heat from many of those candidates, including some who are currently in Congress.  In some cases, these criticisms have suggested that broadcasters have taken a different position and made content-based decisions on candidate ads.  In fact, Congress itself long ago imposed in Section 315(a) of the Communications Act a “no censorship” requirement on broadcasters for ads by federal, state, and local candidates.  Once a candidate is legally qualified and once a station decides to accept advertising for a political race, it cannot reject candidate ads based on their content.  And for Federal…
Petitions of the week - October 17, 2019 - Andrew Hamm
This week we highlight petitions pending before the Supreme Court that address, among other things, whether the First Amendment invalidates a longstanding state constitutional provision limiting judges affiliated with any one political party to no more than a “bare majority” on the state’s highest courts and whether the Virgin Islands Supreme Court is bound by the Supreme Court’s equal-protection decisions when Congress explicitly applied the equal protection clause to the territory via a federal statute. The petitions of the week are below the jump: Capital Associated Industries Inc. v. Stein 19-281Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on a cert-stage amicus brief in support of petitioner in this case. This listing occurs without regard to the likelihood that certiorari will be granted.Issues: (1) Whether North Carolina statutes prohibiting Capital Associated…
Ellen P. Goodman (Rutgers Law School) & Ryan Whittington (German Marshall Fund of the United States (GMF)) have posted Section 230 of the Communications Decency Act and the Future of Online Speech on SSRN.  Here is the abstract: Section 230 of the Communications Decency Act protects online intermediaries like social media platforms from being sued for transmitting problematic third-party content. It also lets them remove, label, or hide those messages without being sued for their choices. The law is thus simultaneously a shield from liability — encouraging platforms to transmit problematic content — and a sword — allowing platforms to manage that content as they like. Section 230 has been credited with creating a boisterous and wide-open Internet ecosystem. It has also been blamed for allowing platforms to profit from toxic speech. Everyone can agree that the Internet is very different from what was imagined in 1996 when Section 230 was…
Last Friday was a banner day for religious favoritism in the Trump administration. In Nashville, Secretary of State Mike Pompeo delivered a “speech” that was — for all intents and purposes — a Christian sermon. Addressing an association of Christian counselors, Secretary Pompeo discussed how to be a good Christian leader, quoting scripture and urging audience members to conduct themselves in accordance with his interpretation of biblical tenets. He also commandeered State Department resources to advertise his sermon in advance, broadcast it live, and disseminate a video of it afterward using the State Department’s official social media channels and website. As we explained in a letter sent today to the State Department’s Inspector General, this is not an appropriate or constitutional use of government resources. The Establishment Clause of the First Amendment prohibits government officials from using their office to proselytize or…
In United States v. Kelly, (SD GA, Oct. 11, 2019), a Georgia federal magistrate judge ruled that seven Catholics who are members of an activist group opposed to nuclear weapons cannot raise RFRA or First Amendment defenses in their trial for trespass and destruction of government property.  Defendants broke into a highly secured Naval Submarine Base and in protest of nuclear weapons poured blood on the ground, hung banners and painted messages. (See prior posting.)  The court said in part:Here, the Court has already fully considered Defendants’ RFRA arguments in the course of ruling on Defendants’ motions to dismiss. In its ruling, the Court determined that the Government has shown a compelling interest and that it is utilizing the least restrictive means...., Because this determination has been made as a matter of law, and Defendants may not present a RFRA defense to the jury at trial....
Diving into the Unsolicited Sexual Content Law - October 16, 2019 - Law Office of Brett A Podolsky
One of the many new laws to hit the books on September 1, 2019, was HB 2789, informally known as the “unsolicited sexual content law.” It is an amendment to Texas Penal Code Chapter 21, Sexual Offenses. The added section to the code is formally entitled “Unlawful Transmission of Sexually Explicit Visual Material.” In simpler terms, the new law prohibits anyone from sending nude pictures via text, email, or social media if the person receiving them has not given express permission for them to be sent. So, unless the person to whom you are “sexting” has asked for them or told you it’s OK, do not send text messages with photos of private body parts. What the Law Says The law, itself, is relatively short and refers to other parts of the Texas Penal Code for explicit detail. The rest of it outlines the specifics of this particular amendment. A person commits an offense if the person knowingly transmits by electronic means visual material…

Anti-SLAPP

[... even if the statute of limitations has run?] I've recently been looking into how the courts have been dealing with libel claims in which plaintiff alleges that defendant had made false accusations of sexual assault, sexual harassment, and the like. One question that sometimes arises is whether accusations of sexual impropriety are treated as speech on a matter of "public concern" or merely on a matter of "private concern." In particular, In some states, a defendant in a public-concern libel case gets extra procedural protections under the state's "anti-SLAPP" statutes: For instance, the defendant may be able to (A) move to dismiss the case very early in the process, and prevail unless the plaintiff can show some real potential merit to the case, and (B) get attorney fees paid if the motion to dismiss is granted. A defendant in a public-concern case can't be held liable for presumed or punitive damages unless the plaintiff can…
This post was authored by Matthew Loeser, Esq. Plaintiff Keith L. Miller, an attorney, was the trustee of the MRFS Living Trust, which owned real property located in Gloucester, Massachusetts that was the intended location for a proposed cell tower site. In this case, Miller alleged that Defendants SBA Towers V, LLC and New Cingular Wireless PCS, LLC and the City of Gloucester intentionally deprived him of statutorily required notice of the Zoning Board of Appeals proceedings concerning a variance needed to build the cell tower. Miller first alleged that the failure to receive notice was a violation of his right to procedural due process under the Constitution and 42 U.S.C. § 1983. The court found that even if Miller were legally entitled to statutory notice as a “party in interest,” he failed to allege a cognizable due process violation as he only claimed he failed to receive notice without also alleging a deprivation of property. Moreover, Miller’s due…
If not for the anti-SLAPP statute, Proposition 47, and death penalty appeals, would the Supreme Court have anything to do?  That’s definitely hyperbole, but, then again, the court’s Wednesday conference didn’t dispel the perception, at least as to anti-SLAPP cases, and despite hopes the Chief Justice voiced almost three years ago.  The court also involved itself in two whistleblower matters; no, definitely not that one.  Conference actions of note included: The court agreed to decide yet another anti-SLAPP case, Bonni v. St. Joseph Health System.  Bonni was originally a grant-and-hold for Wilson v. Cable News Network, Inc., but, now that Wilson has been decided, and the court disapproved Bonni on one point (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 892), the court opted not simply to transfer the case back to the Court of Appeal for a reappraisal, but instead to unhold the case and order briefing.  (Possibly…
The litigants compete in the whale watching industry in LA/Orange Counties. The plaintiffs operate out of Long Beach/San Pedro, the defendants out of Newport Beach. If you’re not familiar with the geography, Long Beach and Newport Beach are about 20 miles apart, but in LA traffic that could take days to drive. The plaintiffs complained about two aspects of the defendants’ search ads. First, the ad copy claimed the whale watching tour cost only $10 (which indeed would be quite a bargain!), but that didn’t include a mandatory $2.50 “fuel surcharge” and 2% “wharfage fee.” (Boo for undisclosed mandatory fees). Second, “if a consumer searched on the internet for ‘Long Beach whale watching,’ the consumer would be directed to a page on Defendants’ website, which made repeated use of the phrase ‘Long Beach residents and visitors,’ suggesting that Defendants’ cruises depart from Long Beach, not Newport…
Probate, Trust, Conservatorships-Staying Current - September 24, 2019 - Ginzburg & Bronshteyn, APC
Yasha Bronshteyn of Ginzburg & Bronshteyn, APC is looking forward to the September 26, 2019, Palo Alto Bar Presentation concerning Litigation issues in Estate Planning. The Palo Alto Bar Association is known for informative and detailed programming. Interested to see what developments are identified at the presentation as litigation in the estate planning and trust formation area concerns all Californians whether middle class professionals or what may be considered the one percent ultra wealthy.   Mr. Bronshteyn knows from professional experience that a cross section of people are affected by estate litigation.  Mr. Bronshteyn litigates matters in Trust and Conversatorship matters Southern and Northern California. His clients include individuals, families, the elderly, and private fiduciaries.  He has worked on numerous high-stakes complex trust litigation matters and Represented defended owner of National Basketball Association sports team with respect…
Prof. Mark Lemley (Stanford Law) and I filed an amicus brief in 1-800 Contacts v. FTC with the Second Circuit on behalf of 29 professors of intellectual property, Internet law, and antitrust. The abstract: The case involves 1-800 Contacts’ settlement agreements with its online competitors in which they agreed not to bid on each other’s trademarks as keywords for search engine advertising. The FTC held that 1-800 Contacts’ conduct violated antitrust law. The brief makes two main points. First, the brief shows how game theory explains 1-800 Contacts’ use of settlement agreements for anticompetitive purposes. Second, the brief explains how trademark law provided only pretextual justification for 1-800 Contacts’ settlement campaign. I particularly think the game theory piece adds an interesting analytical tool to the conversation. I don’t recall seeing a similar analysis before. Personal note: this is my first time co-authoring with Mark, one of…

California Constitution

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…
Family Law Issues in Conservatorship Proceedings - October 13, 2019 - Ginzburg & Bronshteyn, APC
On October 5, 2019, Judge Reva Goetz (Ret.) and Attorney Yasha Bronshteyn of Ginzburg & Bronshteyn, APC presented at the Los Angeles County Bar Association, Trust and Estate Section – Aviva K. Bobb Advanced Training for Court Appointed Counsel. The topic concerned Family Law Issues in Conservatorship Proceedings. The United States and California constitutions protect marriage as a fundamental right. Obergefell v. Hodges (2015) 135 U.S. 2584, 2591 Probate Code §1900 – The appointment of a conservator of the person or estate or both does not affect the capacity of the conservatee to marry or to enter into a registered domestic partnership. Continue reading
[Beto O'Rourke channels the past.] In 1952, voters amended the California Constitution to deny tax exemptions to people who "advocate[] the overthrow of the Government of the United States or the State by force or violence or other unlawful means or who advocates the support of a foreign government against the United States in the event of hostilities." But, said the Supreme Court, in an opinion (Speiser v. Randall) by Justice Brennan: [A] discriminatory denial of a tax exemption for engaging in speech is a limitation on free speech…. To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech. Its deterrent effect is the same as if the State were to fine them for this speech. The [government is] plainly mistaken in [its] argument that, because a tax exemption is a "privilege" or "bounty," its denial may not infringe speech…. [T]he denial of a tax exemption for engaging in…
Appointments of note - October 10, 2019
Governor Newsom Announces AppointmentsGavin Newsom today announced the following appointments:Gonzalo C. Martinez, 43, of Piedmont, has been appointed deputy judicial appointments secretary in the Office of the Governor. Martinez was a partner in the Appellate and Supreme Court practice group at Squire Patton Boggs in 2019. He served as a deputy solicitor general in the California Attorney General’s Office from 2017 to 2019. Martinez served as a law clerk at the U.S. District Court, Northern District of California in 2010 and at the U.S. District Court, Eastern District of California in 2007. Martinez was an associate at Coblentz Patch Duffy and Bass from 2005 to 2007 and at Morrison & Foerster LLP from 2003 to 2005. He is a member of the Bar Association of San Francisco and the Hispanic National Bar Association, and is a lawyer representative to the Ninth Circuit Judicial Council. Martinez earned a Juris Doctor degree from Harvard Law School and a Master of Arts…
California Governor Gavin Newsom signed a bill on Tuesday that prohibits law enforcement officers from using facial recognition and other biometric surveillance technologies in police-worn cameras. The bill outlines concerns related to the guaranteed right to privacy under the California Constitution. The bill equates facial recognition technologies as functionally equivalent to “requiring every person to show a personal photo identification card at all times,” which would allow “people to be tracked without consent.” The bill also cites related concerns, including the potential chilling of “free speech in public places” due to potential tracking of legal activities. There are also significant threats to civil rights and liberties. The technology remains prone to misidentification for “women, young people and people of color.” Additionally, the implementation of biometric surveillance would also corrupt the purpose of officer-worn…
WHY THESE OBJECTIONS ARE GARBAGE - October 8, 2019 - Katherine Gallo
 In the previous blog, Start Preparing Your Motion Because with These Responses You’re Going to Court, I used the following example as a type of response I see as a Discovery Referee: Responding party hereby incorporates its general objections as if fully stated herein.  Responding party objects to this request to the extent it seeks information protected from disclosure by the attorney-client privilege and/or work product doctrine, or any other applicable privilege. Responding party objects as it invades their and third parties’ right of privacy. Responding party objects that the request fails to specifically describe each individual item sought or reasonably particularize each category of item sought. Responding party objects that it is unduly burdensome and overbroad.  Responding party objects to this request as it does not seek relevant documents or documents reasonably calculated to the discovery of admissible evidence.  Responding party…