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

First Amendment

The CAFC tackles "filing under seal" in Uniloc v Apple - July 10, 2020 - Lawrence B. Ebert
The issue of sealing records from public view:In its sealing motions, Uniloc asked the district courtto seal most of the materials in the parties’ underlyingbriefs, including citations to case law and quotations frompublished opinions. J.A. 414–15; see J.A. 279–87. It alsorequested that the court seal twenty-three exhibits in theirentireties. J.A. 414–15; see J.A. 299–412, 422, 503. Theseexhibits included matters of public record, such as a list ofUniloc’s active patent cases. See J.A. 388.In support of its sealing requests, Uniloc filed threeshort declarations. See J.A. 413–16, 420–22, 502–04.These declarations listed the exhibits Uniloc sought to sealand stated that these exhibits “contain[ed] sensitive, confidential and proprietary information related to financialdata, licensing terms and business plans with respect tovarious Uniloc entities” and that “disclosure of this extremely sensitive information…
A former attorney for the American Civil Liberties Union (ACLU) of Southern California has accused the nonprofit organization of racial discrimination and wrongful termination in a new lawsuit filed in Los Angeles in June. The black woman was fired from her position as a staff attorney at the ACLU in February 2020 after she spoke out about the racial discrimination and unfair treatment she experienced while working for the nonprofit organization. Attorney Sarah O. Clifton claims that after she was hired by the ACLU in September 2018 her supervisor appeared to exhibit an irrational fear of her because she is black. As a result, Clifton attempted to seem “less black” at work to appease the supervisor. After she complained about the racially motivated discrimination she was experiencing, she says she was labelled as a stereotypical “angry black woman,” chastised by ACLU officials and continually disrespected. After Clifton was terminated, she says the…
[Wild horses, ankle stomps, and covert tweets.] Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice. Usually, occupational licensing is a one-way ratchet: States impose licensing but almost never repeal it absent a court order. A study published in 2015 by the Bureau of Labor Statistics, for instance, found just a sparse handful of examples of occupations being de-licensed in the prior 40 years. Which is why last week's announcement that Florida is repealing or relaxing licensing restrictions on 30 occupations, including hair braiders, interior designers, and makeup artists, is truly historic and completely awesome. Click here to read more. For years, the D.C. Circuit has allowed FERC to avoid judicial reviews of its certificates by granting "tolling orders" that allow pipeline projects to move forward while avoiding a final decision that triggers judicial review. But now the D.C.…
Days after missing the opportunity in Barr v. American Association of Political Consultants to limit the improper impact of the Telephone Consumer Protection Act on legitimate businesses, the U.S. Supreme Court has agreed to tackle the most debated issue in TCPA litigation history.  The U.S. Supreme Court has agreed to decide what qualifies as an automatic telephone dialing system (ATDS). The TCPA defines an ATDS as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”  The Ninth Circuit, first in Marks v. Crunch San Diego then in Duguid v. Facebook, Inc., interpreted this definition broadly to include equipment that can automatically dial phone numbers stored in a list.  It held the equipment did not need to randomly or sequentially generates those numbers.  That decision is at odds with holdings from the Third, Seventh, and…
Answering the Call: Supreme Court to Determine the Definition of an ATDS Under the TCPA - July 10, 2020 - Daniel S. Blynn, Mary M. Gardner and Michael A. Munoz
Today the Supreme Court granted certiorari in Facebook, Inc. v. Duguid where it will resolve a circuit split and decide the issue of whether an “automated telephone dialing system” (“ATDS” or “autodialer”) under the Telephone Consumer Protection Act (“TCPA”) encompasses any device that can “store” and “automatically dial” telephone numbers, even if the device does not “us[e] a random or sequential number generator.” In other words, the Court will determine whether a caller uses an autodialer to place a call or send a text message if the platform being used merely dials without human involvement from a stored list of telephone numbers (the minority view), or whether the platform itself must randomly or sequentially generate the telephone numbers that it dials (the majority view). The decision below reaffirmed the Ninth Circuit’s and, more recently, Second Circuit’s expansive readings…
[The professor, the chair of the Central Michigan University journalism department, was teaching a media law class, and quoted a case that discussed the use of the word "nigger" at public universities.] Dambrot v. Central Michigan University (6th Cir. 1995) is one of the leading cases on the First Amendment and campus speech codes. It struck down a Central Michigan University speech code that banned any intentional, unintentional, physical, verbal, or nonverbal behavior that subjects an individual to an intimidating, hostile or offensive educational, employment or living environment by … (c) demeaning or slurring individuals through … written literature because of their racial or ethnic affiliation; or (d) using symbols, [epithets] or slogans that infer negative connotations about the individual's racial or ethnic affiliation. But it also upheld the firing of a basketball coach who had used the word "nigger" in a motivational speech:…

Anti-SLAPP

  The importance of professional writing skills in law practice cannot be overstated. Trends in the legal world have increased the importance of written advocacy in an unprecedented way, especially with things going virtual. Todd Smith and Jody Sanders expound on this topic with their guest, Justice Elizabeth Kerr, from the Second Court of Appeals in Fort Worth, Texas. As a former civil litigator herself, Justice Kerr gained a fresh new perspective on written advocacy when she took the appellate bench. She sees written advocacy as something lawyers should take very seriously, and she believes that their written work should steer away from jargon-filled language toward more impactful messaging. — Listen to the podcast here: How to Make Your Written Advocacy Effective | Justice Elizabeth Kerr Our guest is Justice Elizabeth (Leza) Kerr from the Second Court Of Appeals in Fort Worth. Justice Kerr, thank you for joining us. I’m delighted to be here. Thanks…
Union Misconduct Can Fall Within Public Interest - July 5, 2020 - Omar Ha-Redeye
Defamation cases, and the anti-SLAPP provisions under the Libel and Slander Act, continue to be interpreted in new and novel contexts. In Nanda v. McEwan, the Divisional Court heard an appeal of a Small Claims Court motion in a defamation action, involving statements made during the election campaign for President of the Toronto Local of the Canadian Union of Postal Workers (“CUPW”). The statements were made in print, and in two invitation-only WhatsApp groups, and included the following statements about the plaintiff: he was a racist, a bigot, a sexist, a bully and a thief; he was corrupt; he had “rigged” a union election; he had stolen from membership and had abused his position of trust; he had used union funds to buy votes; and he had engaged in a criminal conspiracy. The motion by the defendants sought to dismiss the claim under Rule 12.02 on the following bases: a) The parties were required to arbitrate the dispute under the CUPW…
A Journalist Shield Law for the Provinces - July 3, 2020 - Cameron Hutchison
This piece is based on my Parkland Institute report entitled, “Alberta’s Inadequate Legal Protection of Whistleblowers, Journalist Sources and Others Who Speak Out in the Public Interest.” The report is expected to be published online later this year. A person who wants to blow the whistle on wrongdoing in our society has a lot to worry about. On the legal front, they may lose their job or be sued. Whistleblower protections in Canada, which extend only the public sector employment, are poor. Moreover, only three provinces have anti-SLAPP legislation. Most choose to feed a tip, leaked document, or their first hand information to a journalist on a confidential basis, i.e. the journalist will not disclose the identity of her source. In some North American jurisdictions, this confidential relationship is protected through a journalist shield law. The general purpose of these laws is to encourage whistleblowers to come forward on the assurance that a court will not…
[Note: I did this interview with Mathew Ingram in late February–before the recent flood of new anti-Section 230 activity in DC that I still need to blog. I had always planned to share it here, but the issue got backburnered as the pandemic killed 120k+ Americans and shut down our country. I’m sharing it now because so many people in DC are now prioritizing the destruction of Section 230 over addressing the many other devastating problems in our country.] Ingram: …Eric, could you start by giving us a brief overview of your thoughts on Section 230, and whether or not you think it needs to be amended — and if so how, or if not, why not? Goldman: The main arguments in favor of Section 230 haven’t changed since 1996: First, Congress enacted Section 230 because it could not imagine what the Internet was capable of becoming. That remains true today. Though we now have Internet incumbents and a well-developed Internet architecture, we still can’t…
Don't say "SLAPP"! - June 26, 2020
This 3d District decision today here is what most of us would instinctively call a SLAPP case (i.e., an appeal from an anti-SLAPP motion ruling). But footnote 2 explains why using "SLAPP" is 'wrong' and we should instead say 'special motion to strike':We eschew use of an acronym often used to label this motion. (E.g., Yeager v. Holt(2018) 23 Cal.App.5th 450, 452.) The acronym grew out of the statute’s initial focus. However, with the blessing of the Legislature and the courts, this statute has been applied in contexts across the litigation spectrum, and the acronym is no longer accurate. The proceeding should simply be called what it is--a special motion to strike.Then footnote 8 expresses displeasure at the failure to cite cases without "pinpoint" (or "jump cite") citations to particular pages:Defendant also cites two decisions of the high court—without point cites, a nettlesome practice that foists upon this…
In this well-publicized case, Rep. Devin Nunes sued Liz Mair (@LizMair) and the accounts @devincow (“Devin Nunes’ Cow”), and @DevinNunesMom for various tweets. That lawsuit is dubious. Even less wisely, Nunes also sued Twitter for these third-party tweets. The judge gave Nunes a first-hand tutorial in Section 230 and dismissed Twitter. The case wasn’t close. The court rejects Nunes’ key arguments: Courts can grant the Section 230 defense on a motion to dismiss because it is an immunity from suit. This issue has vexed courts from time to time (remember the tortured Barnes v. Yahoo ruling?). At this point, most courts will grant Section 230 on a motion to dismiss when the defense is apparent on the complaint’s face. (Like when a plaintiff tries to hold Twitter liable for third-party tweets). Nunes tried the common “conservative” talking point that Twitter lost its eligibility for Section 230 because it made editorial decisions about…

California Constitution

Back in February 2019, as noted on this blog, a California trial court held that the City of Santa Monica violated both the California Voting Rights Act and the California Constitution by continuing to use at large elections for its … Continue reading →
(Washington, DC) – Judicial Watch announced today that a California court authorized a taxpayer lawsuit to move forward against a California law that mandates gender quotas for corporate boards. The court held that Judicial Watch’s clients have standing to sue under state law. Judicial Watch attorneys will now proceed to discovery, including depositions of various officials. This action comes in the case (Robin Crest et al. v. Alex Padilla (No.19ST-CV-27561). Judicial Watch filed the lawsuit on August 6, 2019, on behalf of three California taxpayers to prevent the State from implementing Senate Bill 826. The 2018 law requires publicly held corporations headquartered in California to have at least one director “who self-identifies her gender as a woman” on their boards by December 31, 2019. Up to three such persons are required by December 31, 2021, depending on the size of the board. The lawsuit alleges that the mandate is an unconstitutional…
Last week, the California legislature approved Assembly Constitutional Amendment No. 5 (“ACA 5”) and sent it to the California Secretary of State, who in turn will submit the matter to the people of the state to vote on this November. If the measure finds favor with a majority of voters, then the California Constitution would be amended so as to repeal Proposition 209 (“Prop 209”), and California once again would be permitted to consider race and gender in affirmative action programs undertaken by the state. Prop 209, itself enacted by voter initiative in 1996, has prohibited (for nearly two-and-a-half decades) the state or any political subdivision within it from “discriminating against” or granting “preferential treatment” on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. The provision banning “preferential treatment” has…
Here is a statement from Jeff Sheehy, a director of the California Institute for Regenerative Medicine (CIRM) concerning his "no" vote on the $5.5 billion bond measure to refinance the agency. Sheehy has served as a patient advocate member of the board since its inception in 2004. He is a former member of the San Francisco County board of supervisors and a longtime patient advocate for HIV/AIDs. Sheehy's statment follows.I do not support the new ballot measure authorizing $7.8 billion in new funding for CIRM for the following reasons. In referencing the new measure, I note the true cost of the bonds including interest, as opposed to the headline figure of $5.5 billion. I hope that Governor Gavin Newsom, whom I served as HIV/AIDS Adviser when he was Mayor of San Francisco, other State policymakers and voters will consider these points when deciding whether they will support this measure.First, I'm concerned about the cost to the State at a time of fiscal…
by RPLG Senior Associate Ryan McGinley-Stempel and 2020 RPLG Public Law Fellow Michael Cohen. Local public agencies responding to the COVID-19 pandemic and grappling with its wide-ranging effects have yet another consideration to worry about: its impact on local redistricting deadlines.  The Census Bureau paused its decennial data collection operations across the country because of the virus, sacrificing critical time to gather the data that could affect hundreds of billions in federal funding and shift voting and trustee districts that shape the character of political representation and community services nationwide.  The delay will have a profound ripple effect on leadership at all levels of California government; officials must remain attentive to shifting deadlines and pending legislation that will dictate their responsibilities throughout the year. Despite the potentially significant impact of the delay, many jurisdictions in the state remain unaware of how the…
New Lawsuit Challenges California's Indefinite Eviction Moratorium - June 17, 2020 - Robert Thomas (inversecondemnation.com)
Here's the latest lawsuit challenging a government's response to the coronavirus pandemic. This one challenges the California Judicial Council's Emergency Rule 1, which indefinitely closed the courthouse doors to eviction proceedings (what California calls "unlawful detainer"). This one does not employ a takings rationale, but takes a separation-of-powers approach. It's concisely drafted, so we recommend you read the entire document.  Here's the Introduction: On April 6, 2020, the California Judicial Council responded to the coronavirus pandemic by issuing 11 emergency rules of court. Among these was Emergency Rule 1 (“ER 1”), which violates the fundamental rights of property owners by indefinitely suspending their right to initiate unlawful detainer actions. The rule creates the perverse incentive for all tenants, whether they face financial hardship or not, to refuse to pay their rent during the crisis. And it…