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

First Amendment

The news this week was dominated by the senseless terrorist murders in Manchester on Monday. The blanket media coverage gave rise to a number of issues, some of which are discussed in a post by Des Freedman. A woman has published anonymously on Twitter warning of the long term impact that intrusive journalism after terrorist attacks can have on victims. ‘DrEm_79‘ was caught up in a terrorist attack overseas five years ago and has warned journalists against intrusive questioning of Manchester bomb survivors. Some Twitter and Facebook users have maliciously shared fake images of supposedly missing friends after the Manchester attack. Some people are apparently sharing the images specifically as a way of gaining retweets and shares, so that they can increase their reach. Also in the wake of the Manchester attack, Nick Hopkins in the Guardian has examined the question of whether ‘tech firms are doing enough’ to counter terrorism. One result of the Manchester…
Introduction One of the most basic ideas in legal theory is the distinction between "communicative content" and "legal content."  That sounds fancy, but this fundamental idea is very simple.  Legal texts of all kind communicate; they say things.  Roughly, what they say is their linguistic meaning--the meaning of the words and phrases in context.  Some legal texts, those that are valid, create legal norms.  Other legal texts, those that are invalid or no longer in effect, do not create any legal content at all or, if they once created legal content, no longer do so.  The Confederate Constitute has communicative content.  We can read it and discern its meaning, but that document no longer generates legal content.  There are no currently valid propositions of law that are derived from the Confederate Constitution.  The legal content of documents like the Confederate Constitution is not the same as their…
This is the second part of a four-part series on the Fourth Circuit’s recent en banc decision in IRAP v. Trump. Part I analyzed the majority’s assessment of Trump and associates’ pre- and post-inauguration statements. This part will analyze how the court marshals the Supreme Court’s precedents concerning standing, the reviewability of immigration decisions, and the Establishment Clause. In Part III, I will focus on the far more modest concurring opinions of Judges Keenan and Thacker, which were aimed right at the Supreme Court and the far less modest concurring opinion of Judge Wynn. Part IV will analyze the three dissents from Judges Niemeyer, Shedd, and Agee, which aimed at highlighting for the Supreme Court how their colleagues selectively cited the record and deviated from precedent.   Standing In my writings on the travel ban cases, I have spent little time addressing justiciability. While the revised executive order drastically shrank the…
Petitions of the day - May 26, 2017 - Aurora Barnes
The petitions of the day are: National Institute of Family and Life Advocates v. Becerra 16-1140 Issue: Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising. A Woman’s Friend Pregnancy Resource Clinic v. Becerra 16-1146 Issues: (1) Whether a determination that a law is content-based leaves room for a court to apply something less than strict scrutiny, specifically (a) whether the court’s decision in Reed v. Town of Gilbertestablishes a bright-line rule for content-based speech, (b) whether content-based, compelled speech is subject to lower scrutiny if it is deemed to be an abortion-related disclosure, and (c) whether the First Amendment permits lower…
So the U.S. Court of Appeals for the 9th Circuit held Thursday, in Taub v. City & County of S.F.: Plaintiffs Oxane “Gypsy” Taub and George Davis …, self-described body freedom advocates, appeal the dismissal of their claims … against the City and County of San Francisco and the San Francisco Police Department … Plaintiffs allege that Defendants violated their First Amendment rights by enforcing San Francisco’s public nudity ordinance. 1. Public nudity is not inherently expressive, but it may in some circumstances constitute expressive conduct protected under the First Amendment. Even if Plaintiffs’ public nudity at political rallies was entitled to First Amendment protection, however, we hold that the challenged ordinance is a valid, content-neutral regulation as applied to Plaintiffs’ expressive conduct under United States v. O’Brien (1968). O’Brien is the applicable test here because the ordinance is aimed at…
Excerpted, by permission of Yale University Press, from “The Soul of the First Amendment” by Floyd Abrams, 2017. Citizens United held that the fact that a speaker was a corporation could not deprive it of the right to endorse candidates by making independent expenditures that individuals had long since been held to have. In holding that the corporate status of an entity could not negate this right, Justice Kennedy’s majority opinion cited twenty-five cases of the Court in which corporations had received full First Amendment protection. Many of them involved powerful newspapers owned by large corporations; others involved non-press entities such as a bank, a real estate company, and a public utility company. One might have thought that the press, dependent as it is on expansive First Amendment protection, would support Citizens United, a First Amendment protective ruling with respect to speech about elections. The press had celebrated one case, Mills v.…

Anti-SLAPP

Taos, N. Mex., school board member Arsenio Cordova sued several citizens who were trying to get him recalled. The citizens botched the recall process, so no election took place; Cordova claimed that their actions constituted “malicious abuse of process,” partly because they were “politically motivated[,] and intended to curry favor with the School Administrators” and were “done to publicize rumor, innuendo and gossip, with the intent of harassing, embarrassing and humiliating” him. No dice, the New Mexico Supreme Court said yesterday in Cordova v. Cline; Cordova has no case, and the people he was suing “are statutorily entitled to an award of attorney fees.” Here’s a key paragraph: [P]ersons who choose to serve on school boards assume public roles with the understanding that citizens have a state constitutional right to petition the government to recall them from office. The facts alleged in Cordova’s complaint…
The Massachusetts Supreme Judicial Court issued two anti-SLAPP decisions today and significantly changed ("augmented") the two-pronged anti-SLAPP analysis it adopted in 1998 inDuracraft Corp. v. Holmes Prods. Corp. Before today, it was fairly wide accepted that:(1) anti-SLAPP analysis was conducted on a claim by claim basis, i.e., the initial question was whether any single claim was based solely on petitioning activity and, if so, if the petitioning activity was devoid of a reasonable factual or arguable legal basis; and(2) if a claim was based solely on petitioning activity, the only way (and virtually impossible way) to overcome an anti-SLAPP motion was to prove, by a preponderance of the evidence (without discovery and on paper only) that the petitioning activity was devoid of a reasonable factual or arguable legal basis.Then cameThe decision has a little something for everyone. The background of the case is discussedhereandhere.The two most pivotal…
Prof. Eugene Volokh reports today on Levitt v. Digital First Media, decided this week by the Michigan Court of Appeals. Now I’m also reporting on that, and on Prof. Volokh’s report, reasonably secure in the knowledge that Levitt can’t sue either one of us for these reports, because that’s what the court just held. I guess he could sue us, but he wouldn’t win. According to the opinion, Todd Levitt is an attorney and was an adjunct professor at Central Michigan University. In 2014, Levitt sued a CMU student who had created a Twitter account making fun of him. It wasn’t active for long, but Levitt sued the student for libel, business defamation, and tortious interference, among other things. But the account was an obvious parody, the courts later held, and therefore protected by the First Amendment. While that case (Levitt v. Felton) was still pending in the trial court, The Morning Sun newspaper…
President Trump has made no secret of his war on the media–repeatedly criticizing what he calls “fake news.”  His opinions on reporting are well documented. So perhaps it’s no surprise that his administration has come out against laws which protect both free speech and free reporting. The Trump Chief of Staff recently mentioned in an interview that the Trump administration has sought to change how defamation laws–and especially libel laws function. As of now, there have been no concrete steps taken to do this beyond the statement that the administration has been considering how it could change these laws. This position is something many have seen coming. Trump has said, even before he was elected that he desired to “open up our libel laws so when [media] write purposely negative and horrible and false articles, we can sue them and win lots of money.” This would certainly help Trump himself, as he is a frequent flier when it comes…
The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on May 10, 2017. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal. Review Granted Mathews v. Harris, S240156 – Review Granted – May 10, 2017 In a published decision, Mathews v. Harris (2017) 7 Cal.App.5th 334, the Court of Appeal, Second District, Division Two, affirmed the trial court’s judgment that a provision of the Child Abuse and Neglect Reporting Act (CANRA), requiring therapists to report patient disclosures that they have accessed child pornography, did not violate patients’ constitutional rights to privacy.  The court determined no fundamental right existed in this case, and CANRA satisfied the rational basis test because the…
DJ articles - May 11, 2017
Today's DJ features Jimmy Azadian and Cory Webster in High Court Ruling Clarifies Anti-SLAPP in Discrimination Suits about the Cal Supremes' Park v. Cal State opinion.WAY off base!Also in the DJ, Jonathan Goldstein fires off A Waste of Limited Judicial Resources, attacking "Court of Appeal justices who are either too inexperienced for their position or who have overstayed their time on the bench. For these justices, there should be but one outcome: removal or involuntary retirement." Whoa!! He then cites People v. Paz as a "recent example of a case handled by inexperienced appellate justices or justices who have overstayed their usefulness on the bench" and "a clear example of wasting judicial and state resources in ruling on an appeal" that he contends raised such "straightforward appellate issues" that it apparently could've been decided without briefing and oral argument. He chastises the Court of Appeal because…

California Constitution

San Francisco’s public transportation agency and the creator of the agency’s suspicious activity reporting smart phone application have been accused of illegally collecting, tracking, and storing users’ personal information and location data without their consent, in violation of California statutory and constitutional protections. A putative class action complaint, which was filed this week in a California federal court, has alleged that the San Francisco Bay Area Rapid Transit District (“BART”) and Elerts Corp, a private software developer, created and made available to the public a free smart phone application that secretly collected users’ unique mobile identification numbers and allowed BART and Elerts to track a user’s location, amassing data that effectively removed any user anonymity. This conduct allegedly has violated California’s Cellular Communications Interception Act, Consumers Legal Remedies Act, and privacy rights…
San Francisco’s public transportation agency and the creator of the agency’s suspicious activity reporting smart phone application have been accused of illegally collecting, tracking, and storing users’ personal information and location data without their consent, in violation of California statutory and constitutional protections. A putative class action complaint, which was filed this week in a California federal court, has alleged that the San Francisco Bay Area Rapid Transit District (“BART”) and Elerts Corp, a private software developer, created and made available to the public a free smart phone application that secretly collected users’ unique mobile identification numbers and allowed BART and Elerts to track a user’s location, amassing data that effectively removed any user anonymity. This conduct allegedly has violated California’s Cellular Communications Interception Act, Consumers Legal Remedies Act, and privacy rights…
The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on May 10, 2017. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal. Review Granted Mathews v. Harris, S240156 – Review Granted – May 10, 2017 In a published decision, Mathews v. Harris (2017) 7 Cal.App.5th 334, the Court of Appeal, Second District, Division Two, affirmed the trial court’s judgment that a provision of the Child Abuse and Neglect Reporting Act (CANRA), requiring therapists to report patient disclosures that they have accessed child pornography, did not violate patients’ constitutional rights to privacy.  The court determined no fundamental right existed in this case, and CANRA satisfied the rational basis test because the…
Relatively small late-May calendar announced - May 10, 2017 - David Ettinger
The Supreme Court today announced its late-May calendar.  Five cases will be argued, which is not out of the ordinary for most calendars, but is on the light side for late May.  The calendar was announced with the minimum 20 days’ notice. Not on the calendar is Briggs v. Brown, the writ proceeding challenging Prop. 66.  It could still be argued on the June calendar, the week after the late-May calendar. On May 30, in San Francisco, the court will hear the following cases (with the issue presented as stated on the court’s website): California Cannabis Coalition v. City of Upland:  Is a proposed initiative measure that would impose a tax subject to the requirement of California Constitution, article XIII C, section 2 that taxes “imposed by local government” be placed on the ballot at a general election? Rubenstein v. Doe No. 1:  For the purpose of the distinction between felony and misdemeanor forgery, is the value of an uncashed…
The Electronic Frontier Foundation and the ACLU of California joined forces with California State Sen. Joel Anderson (R-Alpine) on Tuesday to testify in favor of S.B. 712 (text), a bill that would have allowed drivers to cover their license plates when parked in order to protect their travel patterns from private companies operating automated license plate readers (ALPRs). The Senate Transportation and Housing Committee heard testimony on how private ALPR companies are collecting massive amounts of data on innocent people's driving patterns and selling it for profit. Despite learning how this data may be misused to target vulnerable communities by the federal government, a Democratic majority voted to kill the bill 5-6. The bill would have adjusted current law, which allows drivers to cover their entire vehicles (for example with a tarp), so that a driver can cover just a portion: the plate. Police would still have the ability to lift the cover to inspect the plate, and…
And of course let’s not forget the California attorney general’s enthusiastic, selective prosecution of pro-life investigative journalists David Daleiden and Sandra Merritt for taping conversations with Planned Parenthood employees. This is the same state that mobilizes its resources to investigate duck and chicken abuse exposed by undercover journalists, but when undercover journalists expose the grotesque treatment of human babies? Well then, it’s time to prosecute the journalists. via www.nationalreview.com