[Teams of two HS students will write a brief and present oral arguments on Moody v. NetChoice.] The Harlan Institute and Ashbrook are pleased to announce the Twelfth Annual Virtual Supreme Court Competition. This competition offers teams of two high school students the opportunity to research cutting-edge constitutional law, write persuasive appellate briefs, argue against other students through video chats, and try to persuade a panel of esteemed attorneys during oral argument that their side is correct. This year the competition focuses on Moody v. NetChoice. The competition is endorsed by the Center for Civic Education's We The People Competition: The Virtual Supreme Court Competition helps students gain the skills they need to understand, synthesize, and advocate for reasoned legal positions on timely and relevant constitutional issues, and in doing so deepens their commitment to the rule of law. The program directly supports the…

Today is the first day of the Michaelmas Legal Term and the beginning of the legal year.  The Michaelmas Term will finish on 21 December 2023.  This is our first round  up of the new legal year and, from today, we will resume regular daily posting. The new legal term begins with the swearing in of the new head of the judiciary, the Lady Chief Justice, Lady Carr.  She is the first woman to hold this office since its creation in the 13th century.  Her appointment was described by the Master of the Rolls as “a landmark in our national life”. Parliament has passed the Online Safety Bill, which will become law as soon as it receives Royal Assent. The legislation will introduce a new regulatory regime for online platforms and search engines which target the UK, imposing wide-ranging obligations on in-scope services with serious consequences for non-compliance. The Home Office has released guidelines on the interplay between end-to-end encryption…

“Justice Alito’s First Amendment; He’s unusually willing to accept limits on outré speech — but on core political speech, he’s stronger than the ACLU”: James Taranto and David B. Rivkin Jr. will have this op-ed in Monday’s edition of The Wall Street Journal. The post “Justice Alito’s First Amendment; He’s unusually willing to accept limits on outré speech — but on core political speech, he’s stronger than the ACLU” appeared first on How Appealing.

[The case will consider whether the government is exempt from takings liability for imposing exactions as a condition of development rights in situations where the exaction is imposed by legislation. Unlike many Supreme Court cases, this one can be resolved very easily by applying a basic principle of constitutional law.] (NA)In addition to Devillier v. United States (which I discussed here), the Supreme Court yesterday decided to hear another Takings Clause case: Sheetz v. County of El Dorado. Here's the question presented in the case: Whether a building-permit exaction is exempt from the unconstitutional-conditions doctrine as applied in Nollan v. California Coastal Commission and Dolan v. City of Tigard, Oregon simply because it is authorized by legislation. In Nollan, Dolan, and some later cases, the Supreme Court has ruled that state and local governments sometimes violate the Takings Clause of the Fifth Amendment (which requires payment of "just…

“Supreme Court to Hear Challenges to State Laws on Social Media; The tech industry argues that laws in Florida and Texas, prompted by conservative complaints about censorship by tech platforms, violate the First Amendment”: Adam Liptak of The New York Times has this report. Ann E. Marimow and Cat Zakrzewski of The Washington Post report that “Landmark Texas, Florida social media cases added to Supreme Court term; The justices announced Friday which cases they will add to their calendar for the term that begins Monday.” David G. Savage of The Los Angeles Times reports that “Supreme Court will decide if Texas and Florida can regulate social media to protect ‘conservative speech.’” Jess Bravin of The Wall Street Journal reports that “Supreme Court Takes Case on Social-Media Content Moderation; Justices to consider whether Texas and Florida laws restricting platforms from blocking some speech are constitutional.” John…

A man was shot Thursday in Espanola, New Mexico during a protest over the reinstallation of a statute of the conquistador Juan de Onate, who massacred and enslaved the Acoma Indigenous people in 1599. Juan de Onate was eventually charged with using “excessive force” against the Acoma people. According to the New Mexico State Police and local authorities, there was an altercation, leading to the shooting of the victim, though they did not specify the nature of the altercation. The authorities went on to state that the status of the victim of the shooting is not currently known, but he has been taken to a hospital where he is receiving medical care. JURIST watched an eyewitness video taken during the incident which shows a man in a “Make America Great Again” hat, with a group holding him and taking the hat, at which point he pulls out a gun and fires. Out of respect to the family of the victim, the video has not been included in this story. The man in the…

[Wedding officiants, teaser profiles, and administrative animals.] Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice. Happy Friday! IJ is going back to the big show! Read all about it. Or listen to a past episode of the Short Circuit podcast about the case. And speaking of the Supreme Court: For the latest edition of the Short Circuit podcast, we head over to Stanford Law School to visit with some friends at the Supreme Court Litigation Clinic there. Puerto Rican drug trafficker is arrested, and the ensuing search turns up a 9mm pistol. Whoa! It's been modified to fire fully automatic—it's a machine gun! The trafficker is charged with possession of a machine gun in furtherance of a drug crime, which carries a 30-year sentence. He objects that he had no idea the pistol was modified—he was holding it temporarily for his boss—and asks for a jury instruction requiring the…

A recent Ontario Superior Court decision confirms that an employer must carefully consider how it responds to critical comments made by an employee (or in this case, former employee). Williams v. Vac Developments Limited[1] is a decision arising out a layoff that an employee believed was a reprisal for raising allegations of racial discrimination. The employee went public with his allegations and, in response, the employer filed a counterclaim for $1.5 million alleging defamation. Background Facts The employee began his employment with the employer, a sheet metal and machining products company, in January 2018. In June 2021, the employer laid off the employee, citing the pandemic and a resulting slowdown in business. Importantly, in the weeks leading up to the layoff, the employee had met with management on several occasions to express his concern regarding racially motivated comments and threats in the workplace, including violent, anti-Black graffiti on his locker and in…

[The Minnesota Supreme Court says "sometimes," and splits 4-3 in favor of a particular allegation being on matters of public concern.] The First Amendment generally protects all sorts of speech, whether about politics, science, morality, or the details of daily life. But in certain situations, First Amendment law draws a line between speech on matters of "public concern" and speech on matters of "private concern"; for instance, In libel cases brought by private figures based on public-concern speech, the plaintiff must show "actual malice" (knowing or reckless falsehood) to recover presumed or punitive damages. In libel cases brought based on private-concern speech, the plaintiff need only show negligence (to oversimplify slightly). See Dun & Bradstreet v. Greenmoss Builders. Speech on matters of public concern is generally fully protected against intentional infliction of emotional distress claims (as in Snyder v. Phelps). Speech…

Regarding today's published 9th Cir. opinion in Martinez v. Zoominfo, The Recorder has 9th Circuit Judges Criticize Court's Early Open Door to Anti-SLAPP Appeals -- Ninth Circuit Judge M. Margaret McKeown said the court has “turned a blind eye to the incongruity” of reviewing on interlocutory appeal denials of anti-SLAPP motions to strike “for too long."Two judges on the U.S. Court of Appeals for the Ninth Circuit wrote separately on Thursday critiquing the court’s practice of taking up appeals of failed anti-SLAPP motions. The ruling considers a motion to strike under California’s anti-SLAPP statute—a law blocking litigation that seeks to silence free speech. In concurrences, Judge M. Margaret McKeown and Roopali H. Desai of the U.S. Court of Appeals for the Ninth Circuit underlined that the court’s precedent allowing for review of denials of motions to strike under anti-SLAPP laws falls within the…

On September 7 the District of Columbia Court of Appeals reached an important issue about the D.C. Anti-SLAPP Act that it had reserved a few months earlier.1 In Banks v. Hoffman,2 the Court held “the discovery-limiting aspects of the D.C. Anti-SLAPP Act’s special-motion-to-dismiss procedure conflict with FRCP 56” and were therefore invalid as an effort to alter the requirement of D.C. Code § 11-946, that the Superior Court “conduct its business according to the Federal Rules of Civil Procedure … unless it prescribes or adopts rules which modify those Rules.”3 The Home Rule Act provides that “[t]he Council shall have no authority to . . . [e]nact any act, resolution, or rule with respect to any provision of Title 11 (relating to organization and jurisdiction of the District of Columbia Courts).” Because the Superior Court had not adopted a rule with the approval of the Court of Appeals that modifies Fed. R. Civ. P. 56,…

This case involves Jim Adler, a/k/a the “Texas Hammer,” a Texas lawyer who has spent $100M+ on advertising to build his brand. The defendants run a call-center service that attracts prospective legal clients and then makes compensated referrals of the prospective clients to lawyers. The defendants bought competitive keyword ads on Adler’s trademarks, which Adler objected to. The district court initially dismissed Adler’s trademark claims, but the Fifth Circuit unfortunately revived the claims citing initial interest confusion (UGH). In this ruling, the magistrate recommends against granting summary judgment to Adler on the trademark claims, likely sending the case to trial. The parties most vigorously contest the “actual confusion” evidence. In particular, Adler highlights that “from 2018-2021, there were 1,595 instances of callers mentioning ‘Jim Adler’ or ‘The Texas Hammer’ in the defendants’ call…

A California trial court denied summary judgment in the American Catalog Mailers Association’s (ACMA) action that seeks to invalidate Franchise Tax Board (FTB) guidance that says certain online activities exceed the protections of Public Law 86-272 for state income tax purposes.  However, the court signaled it may invalidate the FTB’s guidance on the basis it constitutes underground regulations and violates California’s Administrative Procedure Act. ACMA’s lawsuit seeks to overturn FTB Technical Advice Memorandum (TAM) 2022-01 and amendments to FTB Publication 1050 on the basis the administrative guidance contradicts PL 86-272 and the United States Constitution.  For additional background and discussion regarding TAM 2022-01, Publication 1050, and PL 86-272, please see our previous post about this case. ACMA’s motion for summary judgment specifically challenged two scenarios presented in TAM 2022-01 that the FTB concluded would disqualify…

Article I, Section 10 of the United States Constitution prohibits a state from passing any law impairing the obligation of contracts.  A similar prohibition is found in Article 1, Section 9 of the California Constitution.  This prohibition extends to contracts of employment.  Cal Fire Loc. 2881 v. California Pub. Employees' Ret. Sys., 6 Cal. 5th 965, 977, 435 P.3d 433, 441 (2019).  The courts have held, however, that not every law that affects a contract constitutes an unconstitutional impairment.  The law must operate "as a substantial impairment of a contractual relationship."  Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 244 (1978).  California's recently enacted SB 699 appears to cross this line as there can be no greater impairment of a contractual obligation than to declare a contract unenforceable.  Certainly, the inability to enforce a contract interferes with a party's reasonable…

On August 8, 2023, in Lacy v. City and County of San Francisco (Aug. 8, 2023, A165899) Cal.App.5th, the California Court of Appeal for the First District upheld San Francisco’s Charter provision permitting noncitizen parents or guardians of children to vote in San Francisco school board elections. San Francisco voters approved the charter amendment in 2016. San Francisco conducted several elections under this noncitizen voting program before it was challenged in March 2022. Charter Cities’ Authority to Expand Voter Eligibility in Local Elections There were two main issues before the court. First, the plaintiffs argued that Article II, Section 2(a) of the California Constitution only allows citizens to participate in elections. That provision states: “A United States citizen 18 years of age and resident in this State may vote.” After analyzing the plain text and legislative history of this provision, the court found that the constitution’s…

In 2022, the California legislature enacted amendments to the California General Corporation Law allowing corporations formed under that law to ratify or validate otherwise lawful corporate actions.   2022 Cal. Stats.  Ch. 217.  See Cal. Corp. Code § 117.   The legislature, however, did not enact corresponding changes to California's nonprofit and cooperative corporation laws.   Accordingly, the Business Law Section of the California Lawyers Association sponsored legislation, SB 446 (Wilk), to make ratification and validation procedures also available to California nonprofit and cooperative corporations.  2023 Cal. Stats. Ch. 151.   Last week, Governor Newsom signed the bill into law and it will take effect on January 1, 2024 pursuant to Article IV, Section 8 of the California Constitution.  The bill generally mirrors, mutatis mutandis, the 2022 amendment of the General Corporation Law. The verb that…

Chevron U.S.A. Inc. v. County of Monterey California’s oil and gas operations are governed by Division 3 of the Public Resources Code (§ 3000 et seq.) and its implementing regulations (Cal. Code Regs., tit. 14, § 1712 et seq.).  Division 3 addresses various aspects of oil and gas exploration and extraction, including notices of intent to drill and abandon (§§ 3203, 3229), blowout prevention (§ 3219), repairs (§3225), protection of water supplies (§§ 3222, 3228), and well spacing (§§ 3200-3609).  The implementing regulations, in turn, address the process for oil producers and well operators to obtain state approval of “drilling, reworking, injection, plugging, or plugging and abandonment operations” (Cal. Code regs., tit.14, § 1714) and provide instructions and timelines for filing well and safety records with CalGEM. (Id. at § 1724.1.)  The regulations are “statewide in…

[It's hard to argue that providing a pipe constitutes a speech act.] (This post is part of a five-part series on regulating online content moderation.) Before we dream up policy recommendations for how the state might intervene when private content moderation runs amok, we should probably figure out whether the state can intervene at all. The First Amendment limits the power of governments to regulate online speech, either directly or indirectly by regulating intermediaries that host others' speech. Since most online content constitutes speech, does the First Amendment completely bar the state from regulating in this space? That indeed is the view most academics seem to take. In support of that view—let's call it the "strong editorial rights" position—adherents often point to two cases. First, in Miami Herald v. Tornillo, the Court unanimously struck down a Florida law that required newspapers to print responses from political candidates…