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

First Amendment

In this episode, Markham Erickson highlights the Mugshots.com prosecution. The site had a loathsome business model, publishing mugshots for free and charging hundreds of bucks to people who wanted the record of their arrests taken down. Now the owners are being prosecuted in a case that combines the worst of European crazy ("surely criminals have a right to be forgotten") and California crazy ("profits are being earned here – surely that calls for a criminal investigation"). Markham explains why this may be a hard case for California to win – and then joins me in expressing schadenfreude for the owners, whose mugshots are even now spread all across the internet. Meanwhile, the ZTE mess gets messier as Congress moves to block President Trump's proposed sanctions relief. Democrats are joining national security Republicans to move legislation on the topic. Who says President Trump is the divider-in-chief? Michael Vatis digs into the FBI's…
MEMO RE: EVENTS OF JULY 4, 1776: Is everyone else being buried in emails and notices about Europe’s new data protection regulations (GDPR)? I am sure there are many fine provisions, but “the right to be forgotten” has serious First Amendment problems. I hereby notify readers that FIRE will not be subjecting the information we host to the judgments of EU bureaucrats. Because America.
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice. New on the podcast: eminent domain for private gain, phone searches at the border, and illegal structuring. Click here for iTunes. Or click here to listen to a Kojo Nnamdi Show discussion of counterproductive, and frankly cruel, new rules for D.C. day care providers that are the subject of an IJ lawsuit. Family of man shot and killed by gov't agents sends wrongful death claim to FBI. Yikes! Actually, ICE agents killed him. The family sends claim to ICE on July 24; it arrives on July 28 at 7:22 p.m., the last day of two-year deadline to file, but agents do not come into actual possession of the mailing until August 1. District court: Which is too late; the family can't sue. First Circuit: Maybe it can. Allegation: NYC cop forces drunk driving suspect into cell, slams his head into brick wall, metal bars, leaving him bloody and unconscious. Officer: Didn't do that;…
By Anne Sherry, J.D.In a multi-district litigation over antitrust violations in the market for interest-rate swaps, the Southern District of New York denied plaintiffs’ efforts to revive claims based on pre-2013 conduct. For one thing, the proposed amended complaint would not remedy the “gauntlet of deficiencies” that led to the claims’ dismissal in 2017. Independent of that futility, amendment would delay litigation and unduly prejudice the defendants given that discovery was well underway based on the 2013+ claims only. The court admonished plaintiffs’ counsel for “gamesmanship” in not disclosing their intent to seek revival of the pre-2013 claims (In re Interest Rate Swaps Antitrust Litigation, May 23, 2018, Engelmayer, P.).The plaintiffs allege that the defendants—11 investment banks, an IRS broker, and a provider of IRS trading services—colluded to prevent the establishment of an electronic platform that would allow…
Friday round-up - May 25, 2018 - Edith Roberts
At The Economist’s Democracy in America blog, Steven Mazie observes that Monday’s decision in Epic Systems v. Lewis, in which the court held that arbitration clauses in employment contracts that require employees to forgo class and collective actions are enforceable, “gives employers a powerful tool to shield themselves from time-consuming, costly litigation,” noting that “[n]ow that America’s highest court has blessed this practice, which already affects some 54% of non-unionised workers, companies are likely to include it in more employee contracts.” At ACSblog, Ruben Garcia argues that in “Epic Systems … and … Encino Motor Cars v. Navarro … last month … seem to signal the beginning of radical retrenchment of protective labor laws in ways that Congress never intended, using canons of construction that can be chosen at will to suit any particular outcomes.” Additional commentary…
Wasserman on Police Misconduct & Video Recording - May 25, 2018 - Lawrence Solum
Howard Wasserman (Florida International University (FIU) - College of Law) has posted Police Misconduct, Video Recording, and Procedural Barriers to Rights Enforcement (96 N.C. L. Rev. 1313 (2018)) on SSRN.  Here is the abstract: The story of police reform has become the story of video and video evidence, and “record everything to know the truth” has become the singular mantra. Video, both police-created and citizen-created, has become the singular tool for ensuring police accountability, reforming law enforcement, and enforcing the rights of victims of police misconduct. This Article explores procedural problems surrounding the use of video recording and video evidence to counter police misconduct, hold individual officers and governments accountable, and reform departmental policies, regulations, and practices. It considers four issues: (1) the mistaken belief that video can “speak for itself” and the procedural and evidentiary problems…

Anti-SLAPP

From TS Media, Inc. v. PBS, 2018 WL 2323233 (D.C. Super. Ct.), apparently decided May 15, 2018, but just posted on Westlaw (and to my knowledge not noted in any media accounts): On February 20, 2018, Plaintiffs [TS Media, Inc. ("TSM"), The Smiley Group, Inc., and Tavis Smiley Presents, Inc.] filed their four-count complaint alleging (1) breach of PBS's November 2016 agreement with TSM, (2) breach of PBS's November 2017 agreement with TSM, (3) intentional interference with contract, and (4) tortious interference with business expectancy. In the contract counts, Plaintiffs claim that the breach of contract was that PBS indefinitely suspended distribution of the Tavis Smiley show to PBS member stations after former co-workers accused Mr. Smiley of sexual harassment. The tort counts arise out of PBS's statements to the media in December 2017 that "'multiple credible' allegations of sexual misconduct" by Mr. Smiley caused it to stop…
At its Wednesday conference, the Supreme Court granted the petition for review in Gonzalez v. Mathis.  The justices will be taking a look at the published opinion in that case by the Second District, Division Seven, which reversed a summary judgment against a window washer who fell off the roof of the defendant homeowner’s house while cleaning a skylight.  As stated by Supreme Court staff, the issue is, “Can a homeowner who hires an independent contractor be held liable in tort for injury sustained by the contractor’s employee when the homeowner does not retain control over the worksite and the hazard causing the injury was known to the contractor?” Other conference actions of note include: The court issued a grant-and-hold order in an anti-SLAPP case, Duchan v. Los Angeles Unified School District.  The Second District, Division Two, in an unpublished opinion, affirmed the granting of an anti-SLAPP motion.  The case is on hold for…
That's the top story in today's DJ about this opinion here, affirming a district court's denial of an anti-SLAPP motion against a case by Planned Parenthood. It's an interesting case. But where it really gets interesting is the special concurring opinion by Judge Gould (joined by Judge Murguia) urging the 9th Circuit to review en banc whether anti-SLAPP rulings should be reviewable by interlocutory appeal. The DJ points out that "Gould himself sat on a 2003 panel that first adopted the interlocutory appeal rule for anti-SLAPP motions, joining a majority opinion written by Judge Marsha S. Berzon that permitted the procedure. Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003)." In the past, several 9th Circuit judges have expressed the view that immediate appeals should not be allowed (e.g., Kozinski, Paez, Watford, Bea)."I have since receded from that opinion because I now believe the interlocutory appeal of this issue incorrect, potentially…
How the mighty have fallen.He ultimately wins today's appeal, which concerns an anti-SLAPP motion filed against him that should never have been attempted.  He even gets awarded his costs on appeal.But General Charles E. "Chuck" Yeager nonetheless doesn't enhance his reputation with the present lawsuit.  Here's in part what the Court of Appeal says in footnote 3:"It may be, as Holt claims, that the Yeagers have filed baseless litigation, but an anti-SLAPP motion is not the right vehicle to litigate this case. The trial court pointed out at the hearing that claim or issue preclusion might bar this suit or Holt might have a claim for malicious prosecution. We express no view on these points, but note with disapproval the ad hominem attacks against Yeager made by Holt in the trial court and on appeal. “Trying to win an argument by calling your opponent names . . . only shows the paucity of your own reasoning.” (Huntington Beach…
It is often a worthy strategy for the lessee to be aggressive with counterclaims against the lessor. Lessees should think twice about that strategy if it means complaining about the lessor’s public statements. In Lona Hills Ranch v. Creative Oil & Gas Operating LLC et al, that strategy ran afoul of the Texas Citizens Participation Act, Texas’s “anti-SLAPP” statute (“Strategic Lawsuits Against Public Participation”). The TCPA authorizes dismissal of a legal action based on, relating to, or in response to a party’s exercise of the right of free speech, right to petition, or right of association. The lessor’s actions Lona Hills Ranch, lessor of a Lee County lease, sued operator Creative Operating for trespass and trespass to try title, alleging that the lease had terminated. In connection with the dispute the Ranch took three actions: Before suing, filed a complaint at the Railroad Commission challenging…
A recent California Court of Appeal decision held that the receipt, retention and dissemination of confidential information by a whistleblower’s attorney is protected by the state’s anti-SLAPP statute. MMM Holdings, Inc. v. Reich, 21 Cal. App. 5th 167 (2018). Factual Background In 2010, Jose “Josh” Valdez was promoted to president of MSO of Puerto Rico, Inc. (“MSO”), a wholly-owned subsidiary of MMM Holdings, Inc. (“MMM”). MMM offers Medicare advantage health insurance plans in Puerto Rico and contracted with the U.S. Centers for Medicare and Medicaid Services, part of the U.S. Department of Health and Human Services. MSO and MMM (“Plaintiffs”) terminated Valdez’s employment six months after he became president. Valdez contended he was terminated in retaliation for his vocal opposition to Plaintiffs’ alleged fraudulent overbilling practices. Plaintiffs contended Valdez was terminated for incompetence and…

California Constitution

The Supreme Court today announced it will examine the parameters of California’s cash bail system under the state’s constitution, granting review on its own motion in the closely watched case of In re Humphrey.  The California Attorney General did not petition the court for review of the First District, Division Two, Court of Appeal’s opinion that held that, as to the habeas corpus petitioner in the case, “the court’s order, by setting bail in an amount it was impossible for petitioner to pay, effectively constituted a sub rosa detention order lacking the due process protections constitutionally required to attend such an order.”  However, the local district attorney asked the court to exercise its independent authority to review the case (which the court did today) and there were several depublication requests (which the court today denied, leaving the appellate opinion citable for its persuasive effect, but not as binding…
Tomorrow morning, the Supreme Court will file opinions in Facebook Inc. v. Superior Court, Delano Farms Company v. California Table Grape Commission, and In re Lewis, all of which were argued on the large March calendar.  (Briefs here; oral argument videos here, here, and here.) Facebook raises these questions:  (1) Did the Court of Appeal properly conclude that defendants in a murder case are not entitled to pretrial access to records of the victim and a witness in the possession of Facebook, Instagram, and Twitter under the federal Stored Communications Act (18 U.S.C. § 2701, et seq.) and People v. Hammon (1997) 15 Cal.4th 117?  (2) Does an order barring pretrial access to the requested records violate defendants’ right to compulsory process and confrontation under the Sixth Amendment or their due process right to a fair trial?  (3) Should the court limit or overrule People v. Hammon (1997) 15 Cal.4th 117?  (Second District, Division Two,…
Here is a summary of this week's Riverside County Superior Court order that strikes the California End of Life Options Act as unconstitutional. I discussed this case with NPR here and built a page of resources here. First, the order has nothing to do with the content of the EOLOA act. It pertains only to the manner in which it was enacted. The EOLOA was enacted during a "special" session of the California Legislature. The California Constitution requires that special session legislation relate to the subject of Governor's Proclamation that called the special session. Here, the Governor's Proclamation mentioned both healthcare finance and healthcare generally. Therefore, pursuant to state supreme court precedent that interprets the special session clause of the constitution, the legislature had the power to enact "any" healthcare related legislation during the special session. It strains credulity to suggest that the EOLOA, which focuses on…
TAKING A DUI CHARGE TO TRIAL IN CALIFORNIA - May 15, 2018 - William Weinberg
While most DUI charges conclude with a plea bargain, some DUI defendants chose to put their case before a jury.  A trial before a jury of his or her peers is the DUI defendant’s right under the U.S. and California Constitutions. Whether the DUI is charged as a felony or a misdemeanor, the defendant has this right to a jury trial. When would a jury trial be a better choice? There are situations where a defendant might choose to go to trial on a DUI charge. Some examples include: When the prosecution refuses to negotiate on a charge even though the prosecution’s evidence is less than certain, when the charges are serious felony charges (such as DUI enhancements), when the BAC evidence is right on the threshold, or when a commercial driver’s license in on the line. Continue reading →
Ten years ago next Tuesday, in one of its most momentous decisions, a divided Supreme Court used a strict scrutiny standard of review to hold that, “in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.”  (In re Marriage Cases (2008) 43 Cal.4th 757, 782.)  Although soon overturned by a state constitutional amendment adopted by initiative, the opinion presaged the U.S. Supreme Court’s decision seven years later under the federal constitution that superseded the initiative. On Tuesday, Morrison & Foerster LLP and the National Center for Lesbian Rights are sponsoring a program in San Francisco to discuss the state court decision.  Justice Goodwin Liu, who joined the court three years…
A water district, with regulatory approvals and permits from the California Department of Health Services, added chemicals -- "secondary disinfectants" -- to the tap water system to make the water safe to drink. The water complied with all federal and California drinking standards.  Sounds good. No one wants undrinkable drinking water. Problem was these additives caused copper pipes in private homes to corrode. The owners brought class actions under both nuisance (tort) and inverse condemnation theories. The Superior Court concluded the claims were preempted by both federal and state law.  In Williams v. Moulton Niguel Water District, No. G053002 (May 3, 2018), the California Court of Appeal affirmed, although for different reasons.  The nuisance claim was out because the District is immune from nuisance liability. Under California Civil Code section 3482, "[n]othing which is done or maintained under the express authority of a statue can be…