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

First Amendment

Petitions to watch | Conference of June 21 - June 21, 2018 - Aurora Barnes
In its conference of June 21, 2018, the court is considering petitions involving issues such as whether the Yakama Treaty of 1855 creates a right for tribal members to avoid state taxes on off-reservation commercial activities that make use of public highways; whether the Federal Arbitration Act permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is “wholly groundless”; and whether, under the Leahy-Smith America Invents Act, an inventor’s sale of an invention to a third party that is obligated to keep the invention confidential qualifies as prior art for purposes of determining the patentability of the invention. Arlene’s Flowers Inc. v. Washington 17-108 Issues: (1) Whether the creation and sale of custom floral arrangements to celebrate a wedding ceremony is artistic expression, and, if so, whether compelling their creation violates the free…
Eli Lilly & Co. v. Arla Foods, Inc., No. 17-2252, 2018 WL 2998510, -- F.3d – (7th Cir. Jun. 15, 2018)Arla launched a $30 million advertising campaign aimed at expanding its cheese sales in the US, using the theme “Live Unprocessed.”  The ads promise that Arla cheese contains no “weird stuff” or “ingredients that you can’t pronounce”—in particular, no milk from cows treated with recombinant bovine somato-tropin (rbST), an artificial growth hormone. “The flagship ad in the campaign features a vivid rhetorical flourish implying that milk from rbST-treated cows is unwholesome.” The ad opens with a caption: “Arla Cheese Asked Kids: What is r[b]ST?” A cartoon of a six-eyed monster and a fisherman appears and a seven-year-old girl named Leah narrates: “RbST has razor sharp horns. It’s so tall that it could eat clouds. You may want to pet it but the fur is electric.” The commercial…
Video Evidence in a California DUI Case - June 21, 2018 - Jon Ibanez
No longer are the days where it was the cop’s word against the driver’s word about what exactly happened when the cop pulled the driver over on suspicion of driving under the influence. Fortunately, video evidence is becoming increasingly available in California DUI cases to confirm or refute the facts of the case. Mobile video and audio recording systems (“MVARS”), often referred to as “dash cams,” were first used by law enforcement in the late 1980’s in Texas to keep law enforcement safe in remote rural areas. Back then, the camera was mounted on a tripod and the footage was recorded on a VHS cassette. Remember those? This necessarily meant that they were big, bulky and expensive. As a result, law enforcement agencies did not begin using dash cams regularly until the technological efficiency of dash cams increased, and price decreased in the late 2000’s. This is not to say that all agencies use them, because some still do not.…
The justices are expected to take the bench again on Friday, June 22, to issue opinions in argued cases. After this morning’s four opinions, there are 10 cases left for them to decide; this post briefly summarizes those cases (in the order in which they were argued). Carpenter v. United States (argued November 29, 2017): Timothy Carpenter was charged with being the mastermind behind a series of armed robberies in the Midwest. Police used Carpenter’s cellphone records to place him in the vicinity of the crimes when they occurred, but Carpenter argued that the records should be suppressed because police had not obtained a warrant for them. The trial court rejected that argument and sentenced Carpenter to almost 116 years in prison. On appeal, the U.S. Court of Appeals for the 6th Circuit upheld Carpenter’s conviction and sentence, ruling that police did not have to get a warrant because Carpenter could not have expected the records, which were maintained by his…
Meet Lil’ Miquela. She has 1.2 million Instagram followers: She’s modeled such famous brands as Diesel, Versace, Fendi and Chanel.  In March, she appeared in a fashion spread in V Magazine as “The Face of New Age Logomania.”  Last month she talked her audience through the latest GIF sets from Prada in Milan. Also meet Shudu. She has 125k Instagram followers.  Last week she finished a fashion editorial for Women’s Wear Daily.  She came to attention when Fenty (Rihanna’s beauty line) reposted an image of her wearing its lipstick, which received an astounding 222,000 likes on Instagram. But don’t try to meet these models in person.  They’re avatars.  Computer generated images (CGI).  Designed by artists and built by computers.  But they can strike a pose and sell products almost as well as any flesh and blood supermodel. CGI influencers present the common situation where the law cannot keep up…
Professor Seidman offers too many assertions that only those who already share his views could possibly accept. . . . He dismisses recent First Amendment victories in the Supreme Court as a ‘radical right turn in free speech law’ as if they had been written by Steven Miller from his White House desk rather than by not-so-radical jurists such as John Roberts or Anthony Kennedy.  –– Floyd Abrams  Floyd Abrams The online dialogue continues over at First Amendment Watch with today’s posting of Floyd Abrams‘ response to Michael Seidman’s “Can Free Speech be Progressive?” Additional posts will appear tomorrow and then into next week: Friday, June 22:                         John Schnapper-Casteras Monday, June 25:                      Jane Bambauer Tuesday, June 26:         …

Anti-SLAPP

By Marc J. Randazza The NFL says that players must stand (or remain in the locker room) during the National Anthem. No more "taking a knee." In the same week, Trump lost a case that says that the "interactive space" in his tweets is a "public forum" and thus he can't block people who criticize him. And, perhaps I did too much LSD in the 80s and 90s, but I see the two as intertwined. The real problem we have is that freedom of expression is the crown jewel in the American enlightenment, but that jewel is tarnished by the fact that our public square is increasingly privately owned. Privatization of the "public square" threatens to render the First Amendment meaningless. We gotta fix that – or the First Amendment will only really exist in a few tiny spaces — "free speech zones" surrounded (literally or figuratively) by fences to keep the nasty stuff inside. The NFL The whole "take a knee" thing…
Multitudinous lawsuits–mostly by political “conservatives”–seek to deprive social media services of their property rights to exclude unwanted customers. Or, more precisely, these lawsuits seek to censoriously restrict the social media services’ First Amendment-protected right to free speech/press by forcing them to publish content they, in their editorial discretion, would choose not to publish. Fortunately, these lawsuits are likely to fail (as happened with PragerU v. YouTube), though they will remain an embarrassing and permanent stain on the reputation of the folks who advanced them–plus an expensive lesson in the law for those plaintiffs who lose anti-SLAPP motions. This case involves Chuck Johnson, who Twitter’s CEO called a “troll.” (We know this because Buzzfeed published some Twitter executives’ emails saying that). Twitter perma-banned him for his allegedly trollish behavior, including a tweet that…
Journalist Kurt Eichenwald suffered a seizure after seeing a tweet with a strobe GIF. The sender tweeted the GIF allegedly knowing Eichenwald suffered from epilepsy. The sender was charged criminally, and Eichenwald also filed a civil suit. Defendant moved to dismiss plaintiff’s battery claim. The court rejects defendant’s arguments. The defendant argued that there must be some physical contact which was lacking here. Again, the court is not sold. The court starts out by characterizing the allegations as follows: Defendant sent Plaintiff an image with the intent to cause Plaintiff to have a seizure. Whatever exact name a legal scholar may put to it, that is a tort; it is conduct outside the bounds of a civil society, conduct that should be punished so as to deter its repetition, and conduct that causes a compensable harm. . . . [A]lthough the exact contours of the tort lack perfect clarity, ultimately it qualifies as a battery. It is alleged that Defendant purposely…
Right of publicity: Legislative initiatives - June 4, 2018 - Rebecca Tushnet
Legislative Initiatives:  What matters             Moderator:   Daniel Kummer, NBCUniversal Media, LLCPanelists:     Vans Stevenson, Motion Picture Association of American, Inc.Uniform Law Comm’n has a project this year to create a uniform draft law for all 50 states. We, among others, have opposed that program. We don’t want to have to lobby in all 50 states at once.  NY: pending bill; Louisiana also, w/bill sponsored by IP lawyer who’s looking at NY for what happens. Trying to solve an issue for a locally famous French Quarter musician.  Last 20 years, 14 states have worked on ROP litigation MPAA engaged w/directly. Cal. 1999: Fred Astaire’s widow went crazy on a ruling on an instructional video clip of Astaire protected by 1A. Could have dealt w/digital avatars back then but then didn’t.Kummer: postmortem extension is the biggest issue—why…
Yeager v. Holt, 232 Cal. Rptr. 3d 693 (Ct. App. 2018)Peter Holt and his law firm briefly represented Charles E. and Victoria Yeager and successfully sued Victoria Yeager to obtain his fees in an action known as Holt v. Yeager. Yeager then sued Holt, alleging professional negligence, misappropriation of name, and other claims. The court of appeals affirmed the rejection of Holt’s anti-SLAPP special motion to strike.Yeager’s complaint alleged, among other things, that Holt failed to communicate about the costs and risks of further litigation, concealed facts and acted negligently in discharging professional obligations, such as by refusing to sign a declaration supporting a motion for attorney fees in Yeager v. AT&T Mobility, although Holt claimed in Holt v. Yeager that he was owed those same fees.  Yeager also alleged that Holt represented that the firm would work on a pro bono basis, but did not do so. The misappropriation claim alleged that Holt used Chuck…
CCP section 650 allows trial courts to rule on new trial motions within 60 days of notice of entry of judgment, or else the motion is automatically denied. This time frame is mandatory and jurisdictional. Can a trial court avoid the consequences of not ruling within 60 days by issuing a late order but deeming it timely nunc pro tunc? Cute, right? But 2/7 makes clear here today, "The answer is no."Yesterday's DJ featured Gary Watt's article California Anti-SLAPP in the 9th Circuit: Can it Survive? about the recent opinion here. he concludes:At what point, if the whittling and chopping continues, will the conflict-avoiding, "harmonized" version of California's anti-SLAPP statute become only a shadow of itself? And given the disparate treatment, depending on state versus federal forum, will the twin goals of the Erie doctrine, "discouragement of forum shopping and avoidance of inequitable administration of the laws"…

California Constitution

By Marc J. Randazza The NFL says that players must stand (or remain in the locker room) during the National Anthem. No more "taking a knee." In the same week, Trump lost a case that says that the "interactive space" in his tweets is a "public forum" and thus he can't block people who criticize him. And, perhaps I did too much LSD in the 80s and 90s, but I see the two as intertwined. The real problem we have is that freedom of expression is the crown jewel in the American enlightenment, but that jewel is tarnished by the fact that our public square is increasingly privately owned. Privatization of the "public square" threatens to render the First Amendment meaningless. We gotta fix that – or the First Amendment will only really exist in a few tiny spaces — "free speech zones" surrounded (literally or figuratively) by fences to keep the nasty stuff inside. The NFL The whole "take a knee" thing…
A California appeals court today granted emergency motions by the two terminally ill adults and a physician represented by Compassion & Choices for an “automatic stay” to immediately suspend a lower court’s judgment invalidating the End of Life Option Act. The appeals court also granted a motion by Attorney General Xavier Becerra for a “discretionary stay” of the lower court ruling. The rulings reinstate the law, effective immediately. Similar to laws in Washington, D.C. and six states, the California law gives mentally capable, terminally ill adults with six months or less to live the option to request prescription medication they can decide to take to end unbearable suffering and die peacefully in their sleep. On May 15, Riverside County Superior Court Judge Ottolia granted the plaintiffs’ motion in the lawsuit to invalidate the End of Life Option Act by Life Legal Defense Foundation,…
5th DCA pro tem update - June 15, 2018
Judge Wayne R. Ellison (Retired) of the Superior Court of Fresno County, having been assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution will be sitting pro tempore through July 31, 2018.
The U.S. and California Constitutions protect citizens from unreasonable searches. That protection can be especially important if you have been accused of driving while under the influence of alcohol. If the police have obtained your blood without first getting your informed consent or a valid search warrant, the blood-alcohol content test results from that blood may be inadmissible as a result of an improper warrantless search. In your DUI case, the difference between a conviction and an acquittal may be the blood evidence you do or don’t get suppressed. To make sure that your rights are protected and that you have a strong defense on your behalf, make sure you retain skilled San Francisco DUI defense counsel to fight for your rights. An example of how readily such a situation can occur was the case of Matthew from Contra Costa County. Matthew, after allegedly finishing a beer and a golf game, traveled to visit his girlfriend. After a half-hour at the woman’s home,…
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,…