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

First Amendment

Timothy Zick, William & Mary Law School, has published The First Amendment in the Trump Era. Here is the abstract. This is a draft of the Introduction to my book, The First Amendment in the Trump Era (Oxford University Press,...
["The record shows nothing more than odious expressions of frustration."] From today's decision in State v. D.R.C. (by Chief Judge Rebecca Pennell, joined by Judges Laurel Siddoway and George Fearing): The State is prohibited from penalizing constitutionally protected speech. But not all speech is protected. When it comes to the crime of harassment, speech is not protected if it constitutes a true threat, as opposed to mere bluster or hyperbole. The test for a true threat is objective, though not abstract. The State must show a reasonable person in the defendant's position would have foreseen the speech would be perceived as a true threat by the individuals in the defendant's intended audience. Here, D.R.C. sent a series of text messages to her friends, indicating she wanted to kill her mother. The texts were sent in the midst of a mother-daughter fight. They were vaguely worded and peppered with smiling emojis and the initialism "LOL." There…
Note — This post arrives (along with many more) thanks to Zach Young, a Cincinnati native and rising 2L at Stanford Law School, where he studies as a Knight-Hennessy Scholar. He will be contributing to the Sixth Circuit Appellate Blog regularly this summer. Election and pandemic—2020’s strange bedfellows—continue to keep judicial chambers busy. Another virus-adjacent development occurred on July 2 when the Sixth Circuit declined to stay a court-ordered injunction. That injunction, issued by Judge Matthew Leitman (EDMI), had suspended Michigan’s signature requirement for ballot initiatives. Without a stay from the Sixth Circuit, the ball is now in Governor Whitmer’s court to formulate a less burdensome pathway onto the November ballot. The case was brought by a group of activists, led by 25-year-old Amani Sawari’s eponymous Sawari Media, who support a criminal-justice ballot initiative. They failed to meet Michigan’s May 26…
Steven J. Heyman, Chicago-Kent College of Law, has posted Reason and Conviction: Natural Rights, Natural Religion, and the Origins of the Free Exercise Clause, which is forthcoming in the University of Pennsylvania Journal of Constitutional Law:One of the most intense debates in contemporary America involves conflicts between religious liberty and other key values like civil rights. To shed light on such problems, courts and scholars often look to the historical background of the Free Exercise Clause of the First Amendment. But this inquiry turns out to be no less controversial. In recent years, a growing number of scholars has challenged the traditional account that focuses on the roles of Thomas Jefferson and James Madison in the movement to protect religious liberty in late eighteenth-century America. These scholars emphasize that most of the political energy behind the movement came from Evangelical Christians. On this revisionist account, we should not understand the Free…
Well, you definitely got me with that title, Ross Douthat. Not only do you have the variation on the old Raymond Carver title — "What We Talk About When We Talk About [Blank]" (Carver's topic was "love," Murakami's was "running," etc.), you have the variation on "[Number] Theses" (Martin Luther's number was 95, and his theses were a "Disputation on the Power and Efficacy of Indulgences"). Douthat notes a current disputation about the meaning of "cancel culture" and whether it exists at all and announces he'll make "10 sweeping claims" about it:1. Cancellation, properly understood, refers to an attack on someone’s employment and reputation by a determined collective of critics, based on an opinion or an action that is alleged to be disgraceful and disqualifying....The idea here is to narrow what counts as "cancellation." You need a "collective of…
by Paul Alan Levy The New York state trial judge who initially granted a temporary restraining order against both Mary Trump and Simon & Schuster declined late today to extend that order into a preliminary injunction. Faced with a welter of arguments put forward by both the defendants in the case as well as by the Reporters Committee for Freedom of the Press and by Public Citizen as amici curiae, Justice Greenwald appears to have accepted almost all of the reasons argued on the defense side of the case in denying the injunction.  At several points in the opinion, he rules that the non-disclosure clause in the agreement settling the family will contest is far narrower than plaintiff Robert Trump had argued; while at other points he appears to say that, if the clause is as broad as Robert Trump had contended, it would be too broad to be enforced consistent with sound public policy. We filed our amicus brief because NDA’s have been getting more and more out of…

Anti-SLAPP

Law and Media Round Up – 13 July 2020 - July 12, 2020 - INFORRM
The most high profile media law case of the year, Depp v News Group Newspapers, began before Nicol J on Tuesday 7 July 2020.  We had a post dealing with some of the evidence given in the first week. We drew attention to journalist Nick Wallis’ live-tweeting of the trial (supported by crowd-funding).  He has obtained an uploaded the Court documents to Scrib’d.  The Metro is live blogging the trial. There was also coverage in the Press Gazette Sun defence in Johnny Depp libel trial relies on 14 allegations of domestic violence denied by actor Johnny Depp describes marriage as ‘complicated’ in libel trial over Sun ‘wife-beater’ claim Johnny Depp says Amber Heard used news media to turn him from ‘Cinderella to Quasimodo’ As usual, updates on the Coronavirus guidance can be found on the Courts and Tribunal Judiciary. On 10 July 2020, the Court of Appeal in Northern Ireland handed down judgment in the…
  The importance of professional writing skills in law practice cannot be overstated. Trends in the legal world have increased the importance of written advocacy in an unprecedented way, especially with things going virtual. Todd Smith and Jody Sanders expound on this topic with their guest, Justice Elizabeth Kerr, from the Second Court of Appeals in Fort Worth, Texas. As a former civil litigator herself, Justice Kerr gained a fresh new perspective on written advocacy when she took the appellate bench. She sees written advocacy as something lawyers should take very seriously, and she believes that their written work should steer away from jargon-filled language toward more impactful messaging. — Listen to the podcast here: How to Make Your Written Advocacy Effective | Justice Elizabeth Kerr Our guest is Justice Elizabeth (Leza) Kerr from the Second Court Of Appeals in Fort Worth. Justice Kerr, thank you for joining us. I’m delighted to be here. Thanks…
Union Misconduct Can Fall Within Public Interest - July 5, 2020 - Omar Ha-Redeye
Defamation cases, and the anti-SLAPP provisions under the Libel and Slander Act, continue to be interpreted in new and novel contexts. In Nanda v. McEwan, the Divisional Court heard an appeal of a Small Claims Court motion in a defamation action, involving statements made during the election campaign for President of the Toronto Local of the Canadian Union of Postal Workers (“CUPW”). The statements were made in print, and in two invitation-only WhatsApp groups, and included the following statements about the plaintiff: he was a racist, a bigot, a sexist, a bully and a thief; he was corrupt; he had “rigged” a union election; he had stolen from membership and had abused his position of trust; he had used union funds to buy votes; and he had engaged in a criminal conspiracy. The motion by the defendants sought to dismiss the claim under Rule 12.02 on the following bases: a) The parties were required to arbitrate the dispute under the CUPW…
A Journalist Shield Law for the Provinces - July 3, 2020 - Cameron Hutchison
This piece is based on my Parkland Institute report entitled, “Alberta’s Inadequate Legal Protection of Whistleblowers, Journalist Sources and Others Who Speak Out in the Public Interest.” The report is expected to be published online later this year. A person who wants to blow the whistle on wrongdoing in our society has a lot to worry about. On the legal front, they may lose their job or be sued. Whistleblower protections in Canada, which extend only the public sector employment, are poor. Moreover, only three provinces have anti-SLAPP legislation. Most choose to feed a tip, leaked document, or their first hand information to a journalist on a confidential basis, i.e. the journalist will not disclose the identity of her source. In some North American jurisdictions, this confidential relationship is protected through a journalist shield law. The general purpose of these laws is to encourage whistleblowers to come forward on the assurance that a court will not…
[Note: I did this interview with Mathew Ingram in late February–before the recent flood of new anti-Section 230 activity in DC that I still need to blog. I had always planned to share it here, but the issue got backburnered as the pandemic killed 120k+ Americans and shut down our country. I’m sharing it now because so many people in DC are now prioritizing the destruction of Section 230 over addressing the many other devastating problems in our country.] Ingram: …Eric, could you start by giving us a brief overview of your thoughts on Section 230, and whether or not you think it needs to be amended — and if so how, or if not, why not? Goldman: The main arguments in favor of Section 230 haven’t changed since 1996: First, Congress enacted Section 230 because it could not imagine what the Internet was capable of becoming. That remains true today. Though we now have Internet incumbents and a well-developed Internet architecture, we still can’t…
Don't say "SLAPP"! - June 26, 2020
This 3d District decision today here is what most of us would instinctively call a SLAPP case (i.e., an appeal from an anti-SLAPP motion ruling). But footnote 2 explains why using "SLAPP" is 'wrong' and we should instead say 'special motion to strike':We eschew use of an acronym often used to label this motion. (E.g., Yeager v. Holt(2018) 23 Cal.App.5th 450, 452.) The acronym grew out of the statute’s initial focus. However, with the blessing of the Legislature and the courts, this statute has been applied in contexts across the litigation spectrum, and the acronym is no longer accurate. The proceeding should simply be called what it is--a special motion to strike.Then footnote 8 expresses displeasure at the failure to cite cases without "pinpoint" (or "jump cite") citations to particular pages:Defendant also cites two decisions of the high court—without point cites, a nettlesome practice that foists upon this…

California Constitution

Time to Amend the Presidential Pardon Power - July 14, 2020 - Keith E. Whittington
President Trump’s commutation of the sentence of former campaign adviser Roger Stone has been widely denounced and again highlights how Trump is willing to use the powers of the presidency to advance his own personal interests at the expense of the public interest. Such a pardon of an associate who had actively lied to federal investigators in order to protect the president would be outrageous in any presidency, but unfortunately it had been long expected in this one. It is all too in keeping with how Trump has conducted himself while he has held the nation’s highest office. There are many lessons to be learned from the Trump presidency, but one that should not be overlooked is the need to adopt a constitutional amendment to reform the presidential power to grant pardons and reprieves. Trump has personally abused the pardon power. He has repeatedly and publicly floated the idea of pardoning the men, including Stone, who have been caught up in the investigation of…
From Tom Fitton’s Breitbart article: Good news! A California court authorized our taxpayer lawsuit to move forward against a California law that mandates gender quotas for corporate boards. The court held that our clients have standing to sue under state law, and our attorneys will now proceed to discovery, including depositions of various officials. This action comes in the case (Robin Crest et al. v. Alex Padilla (No.19ST-CV-27561). We filed the lawsuit on August 6, 2019, on behalf of three California taxpayers to prevent the State from implementing Senate Bill 826. The 2018 law requires publicly held corporations headquartered in California to have at least one director “who self-identifies her gender as a woman” on their boards by December 31, 2019. Up to three such persons are required by December 31, 2021, depending on the size of the board Our lawsuit alleges that the mandate is an unconstitutional . In our complaint we argue:…
By Michelle Ball, California Education Attorney for Students since 1995 Have you been on edge not knowing if your kids will actually get an in-person education this fall due to the Coronavirus fears?  The not knowing is difficult.  Parents need to get back to work, but how can they work if their kids are at home?  And, are kids REALLY being educated if they are getting a couple hours of classes a week online?  What are they doing the rest of the day?  What can we do and what must we do if we want schools to reopen?  It's time to communicate. Although there are some charter home schools already set up for great distance learning which anyone can sign up for, most parents want their kids in a physical school, even now.  Yet the education of our kids has largely been thrown to the side of the road and crushed by Coronavirus.  Now kids are not getting enough education or interaction, and are isolated and alone.The…
Judicial Watch Court Victory - July 10, 2020 - fvanloon
Victory: Court Rules Corporate Gender Quota Lawsuit May Go ForwardJudicial Watch and Daily Caller News Foundation Sue for Joe Biden’s Senate Records at University of DelawareThe New Judicial Watch Book: ‘A Republic Under Assault,’ is Available for Pre-Order Victory: Court Rules Corporate Gender Quota Lawsuit May Go Forward Good news! A California court authorized our taxpayer lawsuit to move forward against a California law that mandates gender quotas for corporate boards. The court heldthat our clients have standing to sue under state law, and our attorneys will now proceed to discovery, including depositions of various officials. This action comes in the case (Robin Crest et al. v. Alex Padilla (No.19ST-CV-27561). We filed the lawsuiton August 6, 2019, on behalf of three California taxpayers to prevent the State from implementing Senate Bill 826. The 2018 law requires publicly held corporations headquartered in California to have at least one director…
Back in February 2019, as noted on this blog, a California trial court held that the City of Santa Monica violated both the California Voting Rights Act and the California Constitution by continuing to use at large elections for its … Continue reading →
(Washington, DC) – Judicial Watch announced today that a California court authorized a taxpayer lawsuit to move forward against a California law that mandates gender quotas for corporate boards. The court held that Judicial Watch’s clients have standing to sue under state law. Judicial Watch attorneys will now proceed to discovery, including depositions of various officials. This action comes in the case (Robin Crest et al. v. Alex Padilla (No.19ST-CV-27561). Judicial Watch filed the lawsuit on August 6, 2019, on behalf of three California taxpayers to prevent the State from implementing Senate Bill 826. The 2018 law requires publicly held corporations headquartered in California to have at least one director “who self-identifies her gender as a woman” on their boards by December 31, 2019. Up to three such persons are required by December 31, 2021, depending on the size of the board. The lawsuit alleges that the mandate is an unconstitutional…