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

First Amendment

Great event coming up, but you’ve got to sign up by Wed. to watch.  Details. I’ll be presenting my paper, Cheap Speech and What It Has Done (to American Democracy). … Continue reading →
When I heard that my UCLA colleague John Villasenor conducted a survey on college student attitudes toward freedom of expression, I asked him if he could pass along some thoughts on the subject, and he very graciously did. Here’s John’s take: The last month or so has seen the release of results from no fewer than four surveys relevant to the question of what today’s college students think about freedom of expression. Collectively, these surveys portray a picture of freedom of expression on campus that, while disappointing, is not particularly surprising to anyone who has been following the drumbeat of news about on-campus disinvitations and speaker shoutdowns. Here, in chronological order by publication date, are the four recently released surveys along with a discussion of some notable results: 1. On September 18, through the Brookings Institution, I published some results from a survey of 1,500 U.S. citizen undergraduates at 4-year colleges and universities…
"When Can Private Entities Censor Speech? Trump's pressure on the NFL to censor its players is a First Amendment issue." Law professor Garrett Epps has this essay online at The Atlantic.
Legal Theory Lexicon: Corpus Linguistics - October 22, 2017 - Lawrence Solum
Introduction Law students quickly learn that the interpretation of legal texts is an important component of legal practice.  Legal disputes frequently turn on the meaning of a contract, will, rule, regulation, statute, or constitutional provision.  How do we determine the meaning of legal texts?  One possibility is that judges could consult their linguistic intuitions.  Another possibility is the use of dictionaries.  Recently, however, lawyers, judges, and legal scholars have discovered a data-driven approach to ascertaining the semantic meaning of disputed language.  This technique, called "corpus linguistics," has already been used by courts and plays an increasingly prominent role in legal scholarship.  This entry in the Legal Theory Lexicon provides a basic introduction to corpus linguistics.  As always, the Lexicon is aimed at law students with an interest in legal theory. Situating Corpus Linguistics Why has…
Travel Ban 3.0: Maryland District Court Orders Preliminary Injunction - October 22, 2017 - Lisa Daniels, David Kimball-Stanley, Ed Stein
On Oct. 17, 2017, Judge Theodore D. Chuang of the U.S. District Court for the District of Maryland issued an opinion and an order enjoining the implementation of President Trump’s latest travel ban. This round of litigation concerns Presidential Proclamation 9645, issued on Sept. 24, 2017, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.” The proclamation is the third iteration of an executive order that President Trump first issued in January 2017, more commonly known as the travel ban. In the instant case, Int’l Refugee Assistance Project v. Trump (“IRAP”) plaintiffs seek injunctive and declaratory relief; plaintiffs moved for a preliminary injunction on Oct. 6, 2017. IRAP, previously before the Supreme Court, was vacated and remanded for dismissal after the temporary entry ban in the second immigration executive order expired and was…
Sterner Days for Texas Free-Speech Law - October 21, 2017 - Mark Bennett
Situation excellent: On Wednesday the Texas Court of Criminal Appeals affirmed the Beaumont Court of Appeals in Leax v. State. When the Court of Criminal Appeals granted discretionary review on Leax, I thought it would be the culmination of almost four years of fighting that began with this post after I realized that section 33.021 of the Texas Penal Code, in which the Texas Legislature created a constitutionally valid offense in subsection (c) and then eliminated one of the elements that made it constitutional in subsection (d), was not constitutional. The first litigation was in a case called Wheeler. I filed a habeas petition in the trial court in June 2014. The trial court denied relief, we appealed, and the First Court of Appeals allowed oral argument in April 2015. Oral argument went well, I thought—I wrote then that the opinion would “at least apply the correct standard of review,” that is, strict scrutiny. Here’s the argument: …

Anti-SLAPP

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on October 11, 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 Hussein v. Driver, S240506 – Review Granted and Held – April 12, 2017 In an unpublished opinion, Hussein v. Driver (Jan. 27, 2017, A144786) 2017 WL 383387, the Court of Appeal, First District, Division Four, reversed an order awarding attorney fees in a civil action on the basis that a trespass claim had been settled, resulting in the voluntary dismissal of that cause of action with each party to bear its own fees. Review was originally granted on April 12, 2017, but was not previously reported due to an oversight. The court ordered briefing deferred pending decision in…
Generally, most laws are designed to advance some sort of public policy objective. Each law, at its core, intends to protect or advance the public good in some way. So what happens when two laws, each with strong public policy bases, come into conflict with each other? A recent case that came before the California Supreme Court regarding the Fair Employment and Housing Act and the state’s anti-SLAPP statute demonstrated such a conflict. The case shows that any case can take twists and turns and encounter unforeseen complexities, which is why your FEHA case needs the careful attention of an experienced California employment attorney. The recent Supreme Court opinion involved a Korean professor at one of the California State University campuses. In 2013, the university decided not to grant tenure to the professor. The professor sued, alleging that the university decided not to award him tenure due to national origin discrimination. This is where the case became complicated.…
McALLEN – Earlier this month, a district judge in Hidalgo County ordered a disbarred attorney to pay more than $120,000 in legal fees to a newspaper he sued for defamation. Read more..
The first season of FX’s drama Feud told the story of the rivalry between Bette Davis and Joan Crawford. Set in Hollywood during the early sixties, the drama portrays numerous real-life figures from the era. Catherine Zeta-Jones appeared as Olivia de Havilland. Unfortunately, de Havilland did not enjoy the show. She sued FX asserting a number of torts including defamation, false light, and the right of publicity. The right of publicity is a cause of action for commercial use of a person’s identity. It makes good sense when applied to prevent companies from, say, falsely claiming that a celebrity endorsed their product. But when it is asserted against creative expression, such as a TV show, it can burden First Amendment rights. Celebrities have brought right of publicity cases against a wide range of creative work ranging from movies, rap lyrics, and magazine features, to computer games.  EFF has been very critical of recent right of…
Celebrating the 2017 Pioneer Awards - October 5, 2017 - cristina
Pioneer Award honorees and presenters EFF's annual Pioneer Awards ceremony gives the digital civil liberties community a chance to honor the work of those who fight for online freedom through remarkable innovation, activism, journalism, or leadership. This year, EFF recognized the accomplishments of free expression advocate Annie Game, journalist Mike Masnick, and whistleblower Chelsea Manning at the 26th annual Pioneer Awards ceremony in San Francisco on September 14. 2017 Pioneer Award winners Mike Masnick, Annie Game, and Chelsea Manning The program began with a video segment and keynote address by Ashley Nicole Black, an Emmy-winning comedy writer and correspondent on Full Frontal with Samantha Bee. "I'm here because Samantha Bee said no," she quipped. Black's speech—touching on everything from mass surveillance ("I wrote these jokes on Google Docs, so I hope the NSA likes them") to net neutrality ("The Internet was not meant to…
In spring 2016, Michael Podolsky of Consumer Opinion — which runs PissedConsumer.com — wrote a blog post claiming that several libel lawsuits brought over PissedConsumer posts looked suspicious; he thought that the ostensible defendants in those cases, who stipulated that their posts were libelous, weren’t really the authors of those posts. In fall 2016, noted Internet lawyer Marc Randazza sued on Consumer Opinion’s behalf in federal court, making similar allegations, but that lawsuit had to be pulled out of federal court because it was focused on state law claims, and at least of the defendants turned out to be a citizen of the same state as the plaintiff. Earlier this month, Randazza refiled the lawsuit and included Solvera Group as one of its defendants. Solvera Group, as you may recall, was recently accused by the Texas attorney general’s office of masterminding fake-defendant lawsuits in Texas; Randazza’s claim is that Solvera, as…

California Constitution

The Voters Speak: Sometimes That Is - October 4, 2017 - William W. Abbott
San Bruno Committee for Economic Justice v. City of San Bruno 2017 Cal.App. LEXIS 807 California land use nerds know well the origin of the right of initiative and referendum. A function of the national reform movement at the beginning of the twentieth century, California voters took matters into their own hands and inserted the right of initiative and referendum into the California Constitution.   It has been used for good and bad depending upon one’s perspective. When the Legislature proved inept at addressing Coastal zone planning, the voters stepped in and adopted coastal regulations.  When the Legislature failed to deal with property tax reform, Howard Jarvis and Paul Gann upended property tax law.  Sacramento utility voters closed the local nuclear reactor. Development project approvals have been set aside by the voters or on rare occasion, streamlined. The courts have stayed on the sideline, accepting the responsibility to protect the exercise…
The Voters Speak: Sometimes That Is - October 4, 2017 - William W. Abbott
San Bruno Committee for Economic Justice v. City of San Bruno 2017 Cal.App. LEXIS 807 California land use nerds know well the origin of the right of initiative and referendum. A function of the national reform movement at the beginning of the twentieth century, California voters took matters into their own hands and inserted the right of initiative and referendum into the California Constitution.   It has been used for good and bad depending upon one’s perspective. When the Legislature proved inept at addressing Coastal zone planning, the voters stepped in and adopted coastal regulations.  When the Legislature failed to deal with property tax reform, Howard Jarvis and Paul Gann upended property tax law.  Sacramento utility voters closed the local nuclear reactor. Development project approvals have been set aside by the voters or on rare occasion, streamlined. The courts have stayed on the sideline, accepting the responsibility to protect the exercise…
The right to a jury trial in criminal cases is guaranteed by the Sixth Amendment to the U.S. Constitution and by Article I, Section 16 of the California Constitution.  Implicit in the requirement of a jury is the idea that the jurors will exercise unbiased and intelligent judgments.  Empaneling such a jury is a challenge. Last week, Governor Jerry Brown signed into law legislation, AB 1541 (Kalra) which rewrites Section 223 of the California Code of Civil Procedure regarding the selection of jurors in criminal trials.  AB 1451 prohibits the court from imposing specific unreasonable or arbitrary time limits or establishing an inflexible time limit policy for voir dire.  The bill also requires the court in a criminal trial to permit liberal and probing examination during jury selection for the purpose of discovering bias or prejudice with regard to the circumstances of the particular case or the parties before the court.  What would Calvin…
The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on September 13, 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 Plantier v. Ramona Municipal Water District, S243360–Review Granted–September 13, 2017 In a published opinion, Plantier v. Raona Municipal Water District (2017) 12 Cal.App.5th 856, the Court of Appeal, Fourth District, Division One, held that the plaintiffs’ class action challenging the water district’s method of calculating wastewater service fees is not barred by their failure to exhaust the administrative remedies set forth under article XIII D of the California Constitution. This case presents the following issue: Were ratepayers seeking to challenge the…
AB 890 (Medina – D), recently sent to Governor Brown for action by October 15, seeks to amend Government Code § 65867.5 and to add §§ 65363 and 65850.10 to prevent development agreements and certain types of land use planning and zoning legislation from being enacted by local voter-sponsored land use initiatives.  The bill would substantially abridge the local electorate’s constitutionally guaranteed and reserved initiative power by purporting to exclusively “delegate” specified exercises of legislative authority to local governing bodies – city councils and county boards of supervisors – and thus concomitantly eliminating local voters’ long-held and until now unassailable rights to directly legislate in such areas pursuant to California Constitution, Article II, Section 11, and the procedures of the Elections Code. The bill’s stated purpose is to ensure the enumerated types of local development proposals are…
AB 890 (Medina – D), recently sent to Governor Brown for action by October 15, seeks to amend Government Code § 65867.5 and to add §§ 65363 and 65850.10 to prevent development agreements and certain types of land use planning and zoning legislation from being enacted by local voter-sponsored land use initiatives.  The bill would substantially abridge the local electorate’s constitutionally guaranteed and reserved initiative power by purporting to exclusively “delegate” specified exercises of legislative authority to local governing bodies – city councils and county boards of supervisors – and thus concomitantly eliminating local voters’ long-held and until now unassailable rights to directly legislate in such areas pursuant to California Constitution, Article II, Section 11, and the procedures of the Elections Code. The bill’s stated purpose is to ensure the enumerated types of local development proposals are…