The Foundation for Global Political Exchange (Exchange Foundation) reached a settlement last month in a case raising important questions at the intersection of national security and free speech. The settlement is a significant victory because it resulted in the government’s abandonment of a legal theory that would have profoundly undermined Americans’ ability to exchange ideas with people from around the world. Brought by the Knight First Amendment Institute (where one of us works) and the Exchange Foundation (with which the other of us works), the lawsuit argued that the Treasury Department’s Office of Foreign Assets Control (OFAC) overstepped its authority and violated the First Amendment when it barred the Exchange Foundation from organizing political discussions with people whom the U.S. government had sanctioned. The settlement implicitly recognizes the right of Americans to engage with speakers and ideas from across the full spectrum of viewpoints, even…

Planned Parenthood Great Nw. v. Labrador, decided today by Judge William Fletcher, joined by Judges Kim McLane Wardlaw, blocks Idaho—which generally bans abortions—from punishing doctors who "'refer[]' a patient 'across state lines to an abortion provider'" (presumably for an abortion that is legal in the other state): Despite ample opportunity to do so, the [Idaho] Attorney General has not contested in our court the merits of the preliminary injunction. On appeal, he has relied only on [certain] jurisdictional challenges [see the full opinion for more on those challenges -EV] …. We take the failure to object on the merits to the district court's preliminary injunction as a concession by the Attorney General that the district court was correct in granting the injunction. But we will not permit the Attorney General, through the tactic of failing to argue the merits of his appeal of the preliminary injunction, to avoid our…

A Louisiana state law mandating Ten Commandments posters in public schools is the latest in a long line of controversies related to religious symbolism in public locations. On Nov. 20, 2024, the Fifth Circuit Court of Appeals ordered arguments to be heard on Jan. 23, 2025, in Roake v. Brumley. Parties in five Louisiana school districts are opposing HB 71 or Act 676, a new state law that requires the Ten Commandments to be placed in all public school classrooms in the form of a small poster. The act also calls for schools to accept private funds and donations or donated displays to offset costs for putting up the posters. The state law requires the display of “certain historical documents” including the Mayflower Compact, the Declaration of Independence, the Northwest Ordinance, and the Ten Commandments “to provide for historical context” at public facilities. The law cites several Supreme Court decisions, such as Van Orden v. Perry (2005) and American…

Media have become more important and invasive in our lives than ever.  Whether online, TV, video, wireless, or wearable devices, Americans can’t seem to survive more than a few minutes without them. It thus stands to reason that a newly established Federal Communications Commission led by incoming Chairman Brendan Carr will expand the agency’s reach into areas where more and more Americans are engaged.  As such, it could become as important and involved in our lives as the very media it regulates.  Under Carr, there will be a few overarching principles that will guide the agency’s direction – less regulation, unfettered consolidation, and America First.  But there also will be some new practices that will shape its profile.  We can expect Chairman Carr to reconfigure the vast amount of power that FCC bureaus now have and to centralize that decision-making in the office of the chairman.  Currently, bureaus…

 In a 2-1 decision in Matsumoto v. Labrador, (9th Cir., Dec. 2, 2024) the U.S. 9th Circuit Court of Appeals significantly narrowed an Idaho federal district court's preliminary injunction against enforcement of the state's ban on assisting a minor in various ways to obtain an abortion without her parent's consent. The majority concluded that plaintiffs were likely to succeed only in their challenge to one part of the law. Idaho Code §18-623 provides:An adult who, with the intent to conceal an abortion from the parents or guardian of a pregnant, unemancipated minor, either procures an abortion ... or obtains an abortion-inducing drug for the pregnant minor to use for an abortion by recruiting, harboring, or transporting the pregnant minor within this state commits the crime of abortion trafficking.The majority held that the statute is not void for vagueness, nor does it burden the right of expressive association. It concluded, however,…

"... including by asking third parties, like phone and email companies, to turn over their data, or to force them to testify about their sources. But that limit is in a rule issued by Attorney General Merrick B. Garland. Should Mr. Trump’s attorney general rescind that regulation, the F.B.I. would be freed to go after reporters’ information. Internal guidelines also flatly ban investigating someone on the basis of activities protected by the First Amendment. And there are strict limits around opening investigations into members of Congress or reporters. But an F.B.I. director, especially if there is a like-minded attorney general, could interpret those limits so narrowly as to make them meaningless, or even throw them out. Mr. Patel has also called for using the Justice Department more aggressively to uncover who in the government is providing information to news reporters, and said that leakers should be prosecuted. He wrote in his book that all federal…

In Concerned Jewish Parents and Teachers of Los Angeles v. Liberated Ethnic Studies Model Curriculum Consortium, (CD CA, Nov. 30, 2024), a California federal district court dismissed both for jurisdictional reasons and on the merits a suit by plaintiffs who were Jewish Zionists against a group that developed a set of teaching materials that the group hoped Los Angeles Public Schools would adopt. The court said in part:According to plaintiffs, the challenged curriculum "denounces capitalism, the nuclear family, and the territorial integrity of the lower 48 states of the United States[,]"... and is designed "to expunge the idea of Zionism, and the legitimacy of the existence of the State of Israel, from the public square[.]"... Plaintiffs allege there is "rank discrimination embedded in the LESMC," ... because the challenged curriculum, among other things, "includes statements that the existence of the State of Israel is based on…

From Ruth v. Carter, decided Tuesday by the Nevada Supreme Court: Appellant Shannon Ruth sued respondent Nickolas Carter for sexual battery, intentional infliction of emotional distress, and negligent infliction of emotional distress, alleging that Carter sexually assaulted Ruth following a Backstreet Boys concert in 2001, and that Carter had also sexually assaulted several other women. Carter asserted counterclaims for defamation [and related torts] …. Carter's counterclaims were based on statements by Ruth that generally alleged that Carter sexually assaulted Ruth and that Carter is a "serial" rapist and abuser of "multiple people." Ruth moved to dismiss Carter's counterclaims under Nevada's anti-SLAPP statutes, which require a two-prong analysis: First, the district court must determine whether the defendant has established, by a preponderance of the evidence, that the plaintiff's "claim is based upon a good faith…

From yesterday's opinion by Judge Paul Oetken (S.D.N.Y.) in Bobulinski v. Tarlov: The following facts are drawn from the allegations in Plaintiffs' complaint, which are presumed true for the purpose of resolving Tarlov's motion to dismiss. Anthony Bobulinski is a "successful businessman" and former "business partner" of Hunter Biden. Stefan Passantino is an attorney and founder of Elections LLC who represented Bobulinski in front of the United States House of Representatives Committee on Oversight and Accountability ("House Oversight Committee"). Jessica Tarlov is a commentator on Fox News and co-host of its popular television program, The Five. Bobulinski worked with Hunter Biden in 2017, when Bobulinski served as the CEO of SinoHawk Holding, "a [Chinese] company designed to find investments in the United States." During the course of this business partnership, Bobulinski became "concerned" that Hunter Biden was…

Today's advance release tort law opinions: Robinson v. V. D.(Defamation; statutory and common-law vexatious litigation; special motion to dismiss pursuant to anti-SLAPP statute (§ 52-196a); absolute immunity under litigation privilege; federal and state right to jury trial; separation of powers doctrine); Vu v. N.L.(Breach of fiduciary duty; theft; motion to dismiss; motion to open judgment).

This week on Serious Trouble, Josh and I painstakingly recorded a thorough discussion of the prospects of Matt Gaetz as Attorney General, only to have him withdraw from consideration twenty minutes after we stopped recording. So we re-recorded. Sara was the grumpiest about it. Other topics this week: Hegseth’s past investigation and what it means, Rudy Giuliani’s ongoing collections antics and the problem of how to use fines to coerce someone with a negative $150M net worth, Donald Trump files an anti-SLAPP motion in the Central Park Five case against him, and assorted miscreants.Powered by beehiiv

Columbia Global Freedom of Expression seeks to contribute to the development of an integrated and progressive jurisprudence and understanding on freedom of expression and information around the world.  It maintains an extensive database of international case law. This is its newsletter dealing with recent developments  in the field. This week, we are turning our attention to Europe. Is X complicit in the spread of disinformation? The question goes to the French courts: Reporters Without Borders (RSF) is suing the company. In August, on X, a video falsely marked as a BBC broadcast claimed RSF had published a report on Nazi beliefs in the Ukrainian army. Two weeks later, RSF released an investigation exposing the disinformation operation and how the Kremlin’s channels picked it up. By then, the video received more than 400,000 views. RSF filed ten reports of illegal content via X’s reporting system established under the Digital…

On September 29, 2024, the Governor of California signed into law a new bill that would create a uniform resentencing procedure. In the past decade, the California legislature has passed numerous bills that have provided incarcerated individuals with the opportunity to ask courts to have their sentences recalled and reduced. Some of these ameliorative statutes include AB 2942 – Recall of Sentence and Resentencing, which grants district attorneys the ability to make resentencing referrals; the RISE Act (SB 483); and SB 775/SB 1437, which effectively eliminated the role of the natural and probable consequences doctrine in murder cases and dramatically limited who can be charged under the felony murder doctrine. Those and other legislation have provided an opportunity for countless people to petition the courts to have their sentences reduced. The new laws have given defendants hope that the tough-on-crime policies of the past would not result in them serving unjust…

Whenever an employer investigates employee misconduct, there’s a chance it will find—and may have to disclose—negative facts. This is true when a hospital investigates the medical conduct of a doctor, or an employer investigates an employee for potential harassment. In both instances, and in the absence of malice, those investigations are protected by the litigation and the common interest privileges. Mounting Problems Dignity Health hired orthopedic surgeon Troy I. Mounts to work in a spine surgery practice at the San Luis Obispo French Hospital Center. Concerns regarding his clinical competence arose almost immediately. At the same time, he complained he wasn’t getting staff support or adequate time in the operating room to perform complex surgeries. Dignity put Mount’s complex surgeries “on hold” and required him to complete a previously scheduled surgery with a second surgeon he hadn’t worked with before.…

Yesterday's edition of the Los Angeles Daily Journal included an above the fold headline proclaiming "growing chorus for state constitutions should be taught in law schools".   I don't recall such a course being offered when I was in law school more than four decades ago.  However, according to the article, Stanford (not my alma mater) currently offers a course in state constitutional law, which it describes as a "neglected body of law". My first real exposure to the California Constitution came when I began working as Deputy Secretary and General Counsel for the California Business, Transportation & Housing Agency.  Since then, I have observed that many lawyers in private practice have scant knowledge about California's foundational document. "Quien sabe dos lenguas, vale por dos." California adopted its first constitution during the Gold Rush.  It was handwritten on parchment in both Spanish and…

In Grafton Partners L.P. v. Superior Court, 36 Cal.4th 944 (2005), the California Supreme Court found that pre-dispute contractual jury trial waivers were unconstitutional under Article 1, Section 16 of the California Constitution.  In  2019, I penned a post discussing a case in which the Court of Appeal invalidated a forum selection clause that included a jury trial waiver.  Last week, the interplay between a pre-dispute jury waiver and forum selection was again at issue.   In Comedy Store v. Moss Adams LLP, 2024 WL 4783868 (Cal. Ct. App. Nov. 14, 2024), the parties agreed to litigate in federal court in Los Angeles.  When the U.S. District Court dismissed the action for lack of jurisdiction, the plaintiff filed a complaint in the California Superior Court.  The defendant responded by bring a motion to dismiss or stay the action based on improper venue, citing the parties' written agreement to resolving disputes in the state or…

Following this past Tuesday's presidential election, California Governor Gavin Newsom proclaimed an special session of the California legislature.   The Governor's proclamation specified two reasons for the special session: Provide additional funding to the California Department of Justice and other agencies, departments, boards, and offices within the Executive Branch to support the ability to immediately file affirmative litigation challenging actions taken  by the incoming Trump Administration, defend against litigation or enforcement actions brought by  the incoming Trump Administration, and take administrative action authorized under state law to  mitigate the impacts of actions by the incoming Trump Administration. Make conforming changes to existing law consistent with the preceding paragraph. A special session is required because under Rule 51(b)(3) of the legislature's joint rules, the legislature went into recess on…

The California Supreme Court has declined to review a case involving revived sexual assault claims against public entities, with Justice Joshua Groban casting the lone dissenting vote. The case in question is West Contra Costa Unified School District v. Superior Court, which stems from allegations of sexual assault by a high school counselor between 1979 and 1983. AB 218 provided a three-year window for plaintiffs to bring childhood sexual assault claims against public entities, even if these claims would otherwise be barred by statutes of limitations or claim presentation requirements. The First District Court of Appeal, Division Five, rejected constitutional challenges to this 2019 legislation. The West Contra Costa Unified School District argued that AB 218 violated the California Constitution’s provision prohibiting the Legislature from making “any gift” to an individual. Continue reading → The post California Supreme Court Denies Review in AB 218…