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

First Amendment

From The New York Times, reporting on a pending cert petition regarding a law struck down on First Amendment grounds by the Louisiana Supreme Court: A Louisiana law required people convicted of sex crimes to use driver’s licenses on which...
This post summarizes published criminal law decisions released by the Fourth Circuit Court of Appeals in May 2021 that may be of interest to state practitioners. Gant limitations on search incident to arrest exception apply outside of the vehicle context; searches of backpack and vehicle after defendant was secured were improper U.S. v. Davis, 997 F.3d 191 (May 7, 2021). Officer Derek Richardson with the Holly Springs Police Department stopped a car driven by Howard Davis for a window tinting violation. While Davis was on the side of the road, two other officers arrived in a separate patrol car, with the lights activated. While the three officers conferred behind his car, Davis put his hand outside of his window and made a pointing gesture indicating he was leaving.  He drove off, leaving his driver’s license and insurance card with Richardson. The officers chased Davis’s car through a residential neighborhood. Davis drove into someone’s backyard, got out…
A federal appeals court Tuesday rejected on procedural grounds a psychotherapist’s free speech challenge to Maryland’s ban on treating youngsters with conversion therapy, a controversial practice of trying to change a client’s homosexual orientation. The 4th U.S. Circuit Court of Appeals ruled that Christopher Doyle presented an “interesting” First Amendment issue that it cannot address ...
[The Fourth Circuit holds that Maryland's ban must be subject to strict scrutiny, a test that the prohibition is highly unlikely to satisfy.] Maryland court rules "broadly require the electronic recording of proceedings, including criminal proceedings, in the state trial courts"; and, as court records, such recordings can be obtained by members of the public. But Maryland law forbids people from broadcasting those recordings, whether via radio, television, podcasts, or anything else. This isn't just a ban on the media broadcasting court proceedings on its own (which remains the general rule in federal courts); it's a ban even on using the recordings that the courts themselves create and release to the public. In today's Soderberg v. Carrion (written by Judge King, joined by Judges Harris and Rushing), the Fourth Circuit held that this prohibition is subject to strict scrutiny, a test that is notoriously hard to satisfy when it comes to speech…
Companies Have History of Unfair Crackdowns on First-Amendment Protected ActivitiesSan Francisco – Nearly two dozen rights groups, including the Electronic Frontier Foundation (EFF), have joined together to tell PayPal and its subsidiary Venmo to shape up its policies on account freezes and closures, as its opaque practices are interfering with payment systems connected to many First-Amendment protected activities. “Companies like PayPal and Venmo have hundreds of millions of users. Access to their services can directly impact an individual, company, or nonprofit’s ability to survive and thrive in our digital world,” said EFF International Director of Freedom of Expression Jillian York. “But while companies like Facebook and YouTube have faced substantial scrutiny for their history of account closures, financial companies like PayPal have often flown under the radar. Now, the human rights community is sending a clear message that it’s time to…
In January, many online platforms decided they no longer wanted to host President Trump’s speech. Google, Twitter, Facebook, Pinterest, and other social media services announced they would no longer distribute Trump’s hateful, demeaning, outrageous speech or anything else he might have to say. Many people were pleased. Others, including the ACLU, expressed concern that a few of these companies — namely Facebook, Google, and Twitter — wield such enormous power over online speech that, if they used it against people with fewer outlets than the president of the United States, the companies could effectively silence them. The issues are complicated. But some policymakers, inspired by factually unsupported rhetoric claiming social media platforms disproportionately silence conservative voices all the way up to the former president, have taken steps that are clearly wrong. For example, Florida enacted a new law that, among other things, prohibits online…

Anti-SLAPP

Starting in the mid-2000s, 1-800 Contacts sought to control how its competitors bought search engine advertising triggered by its (so-called) trademarks, a process I call competitive keyword advertising. To do this, 1-800 Contacts typically sued its competitors and then quickly entered into a no-money settlement agreement that required each party to stop bidding on each others’ trademarks. To property maximalists, 1-800 Contacts’ efforts may sound like run-of-the-mill trademark enforcement. However, the scheme was actually extremely unusual (few, if any, other trademark owners did anything similar), and it had several pernicious effects. The settlements deprived consumers of additional helpful information from competitive advertising. The settlements distorted the keyword ad auctions that the search engines were trying to conduct. Most importantly, the settlements helped 1-800 Contacts avoid competing on price, which has allowed 1-800 Contacts to systematically…
When suit was brought, the two divergent views were as clear as possible. On the one side were lawyers and academics who both cared and knew about First Amendment law. On the other was the “revenge porn” crowd who pushed defrocked congresswoman Katie Hill to go after the Daily Mail for publishing naked pics of her with a staffer. She did, with Carrie Goldberg as her lawyer and the unduly passionate as her bankroll. It did not go well. It has now gone worse. A Los Angeles County Superior Court judge on Wednesday ordered former congresswoman Katie Hill to pay The Daily Mail $104,747.75 in attorney fees for defending themselves in court after they published her nude photos in 2019. “A judge just ordered me to PAY the Daily Mail more than $100k for the privilege of them publishing nude photos of me obtained from an abuser,” Hill tweeted Wednesday. “The justice system is broken for victims.” She included a link to a donation page for her…
by Paul Alan Levy When Keep Pushing, a St. Louis community organization devoted to protecting the unhoused, went door-to-door to speak to tenants facing eviction orders and hand out a flyer about their rights under the CDC eviction moratorium, one of the landlords whose tenants were visited, Norwood 2020, was desperate to suppress this potential threat to its bottom line. Its tactic, however – a nine-count count complaint  seeking damages an injunctive relief, followed by a demand for expedited discovery – is a textbook SLAPP suit. As lawyers for Legal Services of Eastern Missouri explain in a motion to dismiss filed yesterday, not a single one of the state law claims can succeed on its own merit, indeed some of them are borderline frivolous, even apart from the fact that imposing damages or injunctive relief would be violate the First Amendment. Moreover, most of the claims rest on the theory that, in talking to a tenant who had presumably moved into an…
In an opinion filed April 23, and later certified for publication on May 13, 2021, the Fourth District Court of Appeal affirmed in part an order denying an anti-SLAPP (Strategic Lawsuit Against Public Participation) motion, and held that a malicious prosecution action could proceed against losing CEQA plaintiffs who had unsuccessfully challenged a Mitigated Negative Declaration (MND), but not against their attorneys.  Jan Dunning, et al. v. Kevin K. Johnson, APLC, et al. (4th Dist. 2021) ___ Cal. App. 5th ___. While the merits of the malicious prosecution action have yet to be determined, the Court of Appeal’s ruling that the action could even proceed is itself significant given the daunting hurdle posed by the anti-SLAPP statute, and should give pause to project opponents who think that meritless CEQA litigation lacking probable cause and brought with malice can be pursued without potential consequence. Setting the Stage: Malicious Prosecution, The…
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. ● Just released is a new collection of essays edited by Columbia University President Lee C. Bollinger and University of Chicago law professor Geoffrey R. Stone titled  National Security, Leaks & Freedom of the Press: The Pentagon Papers Fifty Years On. The collection features chapters by leading national security officials, journalists, and scholars, including John Brennan, Eric Holder, Cass R. Sunstein, and Michael Morell. Contributors “reflect on the balance between the government’s legitimate need to conduct operations—particularly those related to national security—in secret and…
"I'm like the heavy.I've gone out pretty heavyagainst lawyers fordoing the wrong thing." In The Heavy, today's DJ reports 1st District Court of Appeal Justice James Richman doesn't hold back when he feels litigants or their attorneys have crossed a line. [The DJ's last profile of 1/2's Richman was in October 2007, titled From Pen-and-Paper Man to Internet Guru.]"Richman is especially known for opinions criticizing what he views as excessive use of the automatic stay triggered by appeals of anti-SLAPP motion denials .... [He] views the automatic stay as a mechanism for delay and has -- unsuccessfully -- called on the Legislature to address the issue." 'I use my opinions to teach people how to do it and how not to do it,'The justice will turn 80 this summer, but he has no plans to leave the court. "I still enjoy it," "It's important and intellectually stimulating and fun."Also in…

California Constitution

Fixing Appellate Delay is the title of today's DJ column by ... Jon Eisenberg, of course. Three months ago he "filed a complaint with the Commission on Judicial Performance about egregious decisional delay by three justices of the 3rd District Court of Appeal in Sacramento, listing 150 appeals adjudicated in 2018-2020 which had languished for at least two years and as much as seven years from the completion of briefing to submission for decision." He then "asked the California Supreme Court to transfer an additional 57 still-unadjudicated, long-delayed appeals out of the 3rd District for speedy decision elsewhere -- which the Supreme Court denied." Since then he has found 94 more such 3rd District appeals, "for a total of 151 as of Feb. 16, 2021, on top of the previous 150 listed in [his] CJP complaint."Has this done any good? Well, for one, "[o]pinions have now been filed in about half of those additional 151 moldering appeals -- a…
[at the West Contra Costa County Unified School District (Northern California).] From the Memorandum of Understanding, which I'm told was just approved Friday: Our tenets for spring reopening are grounded in strong pedagogy aligned with the Multi Tiers of Student Supports (MTSS) model: … 2. Targeted, high needs students first. Wholesale return to in person instruction for the full day for all students is not possible within the county public health mandates at this time and the social distancing constraints …. 6. Identified High Needs Students are the first focus a. Definitions i. For the purposes of identification for this program, "high need students" are defined by the district, based upon the roster of students on March 15th, 2021 as Preschool through 12th grade students who fall into one or more of the following categories: 1. Homeless 2. Foster Youth 3. English language learners 4. African American students 5. Students unable to access online…
A recent Northern District of California ruling has stymied Google’s initial effort to kill a lawsuit alleging that it collected private data on users browsing in “Incognito” mode—a setting meant to keep search activity private. Judge Lucy Koh dismissed Google’s motion, effectively greenlighting the class action, Brown et al v. Google LLC et al, to proceed. Brown’s Claims The plaintiffs in Brown et al allege that even when users elect to browse in Incognito mode, Google continues to track and collect user browser history and other online activity data. Specifically, lead plaintiffs Chason Brown, Maria Nguyen, and William Byatt complain that after they turned off the collection of their data in Chrome, Google tools continued to pluck their personal data. This happens, according to the complaint, despite Google promising consumers that they can elect to “browse the web privately” and stay in “control of what information…
Vimeo is a video hosting service. Domen is a “former homosexual.” He posted videos to Vimeo that allegedly violated Vimeo’s policy against “the promotion of sexual orientation change efforts” (SOCE). Vimeo notified Domen of the violation and gave him 24 hours to remove the videos or Vimeo would take action. Domen didn’t remove the videos, so Vimeo subsequently deleted Domen’s account. Domen sued Vimeo for violations of California’s Unruh Act, New York’s Sexual Orientation Non-Discrimination Act, and the California Constitution. The lower court dismissed all of the claims. The Court’s Ruling The Second Circuit affirms the dismissal, relying solely on Section 230(c)(2)(A) (Domen didn’t pursue the CA Constitutional claim on appeal). This is unexpected, because many courts have recently used Section 230(c)(1) to protect content removal/account termination decisions. In comparison, Section 230(c)(2)(A) has languished…
In Valley Baptist Church v. City of San Rafael, (CA App., Feb. 26, 2021), a California state appellate court held that the "property taxation" exemption for property used exclusively for religious worship (California Constitution Art. XII, §3(f)) applies only to ad valorem taxes. Therefore plaintiff church was not exempt from the San Rafael's Paramedic Tax which is assessed on the basis of property square footage, not property value.
An Explanation of California’s Prop 57 - February 24, 2021 - Barhoma Law
For decades, criminal law was seen as a “one-way ratchet” in that, whenever changes were made to the criminal law, they almost always made the laws stricter. Typically, this is a function of high crime rates, and the political pressure lawmakers face from their constituents. Generally, lawmakers do not want to be seen as being “soft” on crime, so they continually propose increasingly strict laws to prove they mean business. However, California constitutional law provides citizens the ability to propose ballot initiatives. If someone can get enough signatures to support a ballot initiative, the entire state will vote on the initiative and, if it passes, it will become law. This is what happened with California’s Proposition 57. Proposition 57, or Prop 57, as it is more commonly known, is a ballot initiative passed in 2016. Prop 57 implements broad criminal justice reform as it pertains to parole consideration and juvenile offenders. Proponents of…