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

First Amendment

Trump administration reopens religious discrimination case - November 13, 2018 - Strong Advocates
The new head of the U.S. Department of Education, Kenneth L. Marcus, has reopened a religious discrimination case against Rutgers University and is reexamining what is considered anti-Semitism. The case centers on a 2011 event held at Rutgers University that was put on by an outside organization that was accused of requiring Jewish attendees to pay for tickets while letting others enter for free. President Barack Obama’s administration closed the first investigation into the incident in 2014. The Zionist Group of America appealed the decision. In reopening the case, the Department of Education claims that President Obama’s administration ignored evidence of an anti-Semitic environment at the school. The Zionist Group of America said President Donald Trump’s administration is looking into the case after its appeal. According to the Anti-Defamation League, the number of anti-Semitic incidents at American universities almost doubled in 2017 to 204, compared to…
CNN filed a lawsuit Tuesday against US President Donald Trump and others in his administration, requesting that chief White House correspondent Jim Acosta’s access be restored. The lawsuit makes claims under the First and Fifth Amendments along with the Administrative Procedure Act (APA). In the First Amendment claim, CNN points out that the president’s dislike for Acosta is not sufficient to restrict his First Amendment rights to question the president at press events. “The sole justification for Defendants’ conduct is their dislike for Plaintiffs’ coverage of the administration and critique of the President. But that is insufficient to justify such a substantial restriction on Plaintiffs’ First Amendment rights.” CNN also claims the Trump administration revoked Acosta’s credentials without the due process guaranteed under the Fifth Amendment. Under the APA, CNN alleges that the Trump administration’s revocation of…
Court Challenge Puts City of Boston Short Term Rental Ordinance In Legal Limbo Referring to new City of Boston short term rental rules as “Orwellian,” Airbnb has sued the City of Boston in federal court, challenging the legality and constitutionality of recently enacted short term rental rules passed by the City Council. The rules, set to take effect on January 1, are among the most stringent efforts in the nation to regulate the burgeoning industry. The rules would bar investors and tenants from renting their homes by the night through popular websites such as Airbnb, while allowing homeowners and owner-occupants of two- and three-family houses to continue to do so. Airbnb is not challenging the law on those grounds. Instead, it argues that requiring online hosts to enforce the rules violates the federal Communications Decency Act, which protects online platforms from being sued over third-party content, and also infringes on the company’s First…
A federal judge has ruled the National Rifle Association can proceed with its First Amendment suit against New York Gov. Andrew Cuomo over his pressure on regulated banks, insurers to cut ties with gun rights advocacy groups like the NRA. “U.S. District Judge Thomas McAvoy questioned Cuomo’s claim that his messages about the wisdom and propriety of providing financial services to the NRA amount to nothing but legitimate regulatory oversight and protected government speech.” [Jacob Sullum and background, Eugene Volokh] “It is well-established under binding federal appeals court decisions that government officials like Cuomo are not allowed to pressure organizations or businesses to cut off services to someone because of their political stances or expression — even when the government official uses informal pressure as opposed to explicit threats. (See, e.g., Rattner v. Netburn, 930 F.2d 204 (2d Cir. 1991)).” [Hans Bader] Earlier here, here and…
On Friday, November 9, 2018, EFF submitted a letter in response to the U.S. Department of Commerce's request for comment on "Developing the Administration's Approach to Consumer Privacy," urging the agency to consider any future policy proposals in a users' rights framework. We emphasized five concrete recommendations for any Administration policy proposal or proposed legislation regarding the data privacy rights of users online: Requiring opt-in consent to online data gathering Giving users a “right to know” about data gathering and sharing Giving users a right to data portability Imposing requirements on companies for when customer data is breached Requiring businesses that collect personal data directly from consumers to serve as “information fiduciaries,” similar to the duty of care required of certified personal accountants. But, to be clear, any new federal data privacy regulation or statute must not preempt stronger state…
Happy Veterans Day — See Also - November 12, 2018 - Elie Mystal
LAW PROFESSOR WHO USED THE N-WORD IN CLASS ALLEGEDLY USED IN OFFICE HOURS: Does this guy have to lynch a brother to get fired? OPEN LETTER TO JUSTICE GINSBURG'S CLERKS: Y'all have one job and you're slipping. WIDOW BLAMES HUSBAND'S SUICIDE ON BIGLAW CULTURE: This story is just hard to read. CNN MIGHT SUE TRUMP: Weird to see a media organization actually standing up for the First Amendment. MICHELLE OBAMA IS EVERYTHING: I'ma buy her book.

Anti-SLAPP

Here's something that's good to know.  The Court of Appeal holds that you can't bring an anti-SLAPP motion to strike in a limited civil case.  That's at least the interpretation of the existing statutes.  (I'm not certain that's what the Legislature intended, so maybe they'll be a fix, but at least for now, after today's decision, that'll be the rule going forward.)So if you've got a case that's worth less than six figures, and are worried about the defendant filing an anti-SLAPP motion (and potentially recovering fees and/or delaying the case with an appeal), maybe limit your recovery to $25,000 and file a limited civil action.  That'll get you faster relief and avoid an anti-SLAPP motion.Worth thinking about.
No, says this published opinion here:No dice...We conclude the restrictive language of section 92(d), which limits the type of motions to strike that may be brought in a limited civil case, precludes the filing of a special motion to strike in such a case.
California COA Reinstates Lawsuit against Tribal Lawyers - October 29, 2018 - Matthew L.M. Fletcher
Here is the unpublished opinion in Fernandez v. Marston: Fernandez v Martson An excerpt: Two unwitting pawns in a bitter, protracted leadership dispute between rival factions of an Indian tribe, appellants Shawn Fernandez and Brian Auchenbach, took part in a paramilitary raid of the tribe’s casino offices in order to oust a competing tribal faction of possession. The two men believed they had been lawfully deputized as police officers for the tribe, had full legal authority to engage in the operation, and would not face any adverse legal consequences or criminal charges as a result. They believed this, because attorneys for the tribal faction that hired them as police officers assured them it was true. It wasn’t. Contrary to counsel’s assurances, Fernandez and Auchenbach were arrested by the Madera County Sheriff’s Department, along with the others who participated in the raid, and were charged with 29 felony counts. The two men then brought this…
Is an attorney’s work in underlying lawsuits on behalf of clients protected speech under the United States or similar state constitutional standards? No, held a California Appellate Court recently. The California anti-SLAPP provisions state that “[a] cause of action against...
This post was authored by David Urban. Many times, parties to a lawsuit receive trial court rulings in the midst of the litigation that are unfavorable, oppressive, and seem to them to be demonstrably wrong.  The parties want to appeal immediately, but their counsel will say that cannot happen, citing the “Final Judgment Rule.”  The rule certainly sounds dark and fateful.  Perhaps courts intend it to be, because the rule serves to deter disgruntled litigants from appealing while the trial court case is ongoing, and typically requires those litigants to wait months, or even years, to appeal.  So what is this rule?  And perhaps more importantly, what are ways to gain access to an appellate court early without offending it? The Final Judgment Rule (sometimes called the “One Final Judgment Rule”) is the legal principle that appellate courts will only hear appeals from the “final” judgment in a case.  A plaintiff or…
Extralegal Affairs - October 23, 2018 - SHG
When Bari Weiss wrote of Stephen Elliot’s attempt to do something about the anonymous accusations of sexual misconduct against him that appeared on Moira Donegan’s “Shitty Media Men” list, it fell a bit shy of bringing a tear to my eye. From Elliot’s own self-description, he was a pretty shitty guy. That doesn’t mean what happened to him was right, or that the anonymous, unproven accusations were right, or that Donegan’s list was right, but Elliot’s ruined reputation, and the destruction of his career and life that followed, wasn’t a hill worth dying on. Bad things happen to good people, but bad things also happen to bad people. Surely there would be a better puss to put on the poster of men wronged by anonymous unproven accusations. But then Cathy Gellis at Techdirt took aim at Elliot for suing Donegan, as well as the anonymous people whose accusations appeared on her list, using a rather provocative title:  Shitty…

California Constitution

Consumer privacy rights in California are well established. The California Constitution expressly grants California citizens a right to privacy. And existing California law provides for the confidentiality of personal information in various contexts, including under the Online Privacy Protection Act, the Privacy Rights for California Minors in the Digital World Act, and Shine the Light. California law also requires businesses that suffer a breach of security to disclose the breach to consumers, and in some instances law enforcement, if sensitive information is compromised. On June 28, 2018, California governor Jerry Brown further expanded California consumer privacy rights by signing into law the California Consumer Privacy Act of 2018 (“CCPA”) (California Civil Code §§ 1798.100 to 1798.198) – a sweeping new privacy law that imposes significant changes to how businesses collect, store, sell, and process consumer “personal information,”…
LegalForce RAPC Worldwide P.C. v. Trademark Engine LLC, 2018 WL 5734621, No. 17-cv-07303-MMC (N.D. Cal. Oct. 31, 2018)RAPC, a law firm, alleged that its competitor TME “operates website TrademarkEngine.com to advertise, promote and provide trademark related services” and used false or misleading statements in Google ads and on its website, as well as engaging in the unauthorized practice of law, in violation of the Lanham Act and Cal. Bus. & Prof. Code § 17200 et seq.Two TME ads allegedly contained the word “professional,” which allegedly was a misrepresentation that TME’s services were “lawful”; TME allegedly violated customers’ privacy rights, submitted fraudulent specimens to the PTO, and engaged in the unauthorized practice of law.  One ad, displayed in response to a search for “trademark filing,” said “Let the Professionals File Your Trademark Today!” while the website touted…
Origins and Applications of the Home Rule Doctrine - November 6, 2018 - Lisa S. Charbonneau
This post was authored by Lisa S. Charbonneau. Under Article XI, Sections 4 and 5 of the California Constitution, charter cities and counties have exclusive authority to regulate and determine their own municipal affairs, free from intrusion by the state.  These provisions of the Constitution are collectively referred to as the municipal affairs clause and have given rise to what is known as the “home rule” or “municipal affairs” doctrine.  At its essence, the home rule doctrine embodies the principle that a municipality knows its wants and needs better than the state at large. The origins of the home rule doctrine lie in the creation of the state of California itself.  That is, when the original California Constitution was ratified in 1849, many municipalities within the state had operated autonomously for decades using their own laws, government structures, and tax systems.  In the face of the new power emanating from Sacramento,…
CALIFORNIA’S PROPOSITION 209 PASSED ON THIS DAY IN 1996, THUS AMENDING THE CALIFORNIA CONSTITUTION: Its operative clause states: “The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting.” The hope of many Proposition 209 supporters was that the measure would reduce the effects of mismatch. And during the years it was adhered to, it appears to have done exactly that: Minority graduation rates rose rapidly, and minority on-time (four-year) graduation rates rose even faster. At the same time, minority science and engineering rose by about 50%, while the number of minority students majoring in ethnic studies or communications fell by 20%. And minority GPAs increased. You can read about it in A “Dubious Expediency”: How Race-Preferential Admissions Policies on Campus…
Politicians don’t like to focus on infrastructure maintenance.  It’s not sexy, doesn’t command media headlines, and captures little public attention.  But maintaining a functioning, safe public infrastructure system is vital to ensuring a strong economy, protecting public safety and promoting long-term environmental goals. That’s why Proposition 6, a measure on California’s November 6th general election ballot, is so important.  And why it’s nevertheless failed to attract the degree of public and media attention it deserves. To understand the issue and accompanying policy debate, some background is required. In the 1950’s and `60’s, California’s transportation system of roads, highways, bridges and tunnels was among the best in the United States and, indeed, the world.  A half century later, California’s transportation infrastructure has been allowed to deteriorate steadily, to the point where it is…
The California Coastal Act establishes another layer of regulation governing “development” in the Coastal Zone. Development under the Coastal Act is defined to encompass essentially everything and anything.  For example, under the Coastal Act development includes such things as a lot line adjustment, releasing fireworks on the 4th of July, or putting up a “No Trespassing” sign.  While there are certain limited exemptions, in most cases individuals undertaking any development in the Coastal Zone must obtain a Coastal Development Permit.  In certain instances, the local agency’s decision to approve or deny a Coastal Development Permit is reviewed by the California Coastal Commission.  On this review, the Coastal Commission may consider whether the decision to approve, deny, or impose mitigation measures would potentially run into takings issues.  This practice by the Coastal Commission was challenged by a Marin County…