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

First Amendment

“A Persistent Gadfly Wins Again in the Supreme Court”: Adam Liptak of The New York Times has this report. Robert Barnes of The Washington Post reports that “Supreme Court allows retaliatory arrest lawsuit to move forward.” Richard Wolf of USA Today reports that “First Amendment victory is Florida man’s second at Supreme Court.” Alex Daugherty of The Miami Herald reports that “South Florida activist is 2-0 at the Supreme Court after First Amendment victory.” Jane Musgrave of The Palm Beach Post reports that “U.S. Supreme Court hands Fane Lozman second win against Riviera Beach.” Jessica Gresko of The Associated Press reports that “Supreme Court sides with Florida man in free speech case.” And Greg Stohr of Bloomberg News reports that “Supreme Court Backs Florida Man Arrested at City Council Meeting.”
Symposium: No closer to consensus - June 18, 2018 - Derek Muller
Derek T. Muller is an associate professor of law at Pepperdine University School of Law. Gill v. Whitford began as a blockbuster election-law case and ended (this time) as a federal-courts decision with a hint of trial strategy and evidence. It also left open the possibility of a transformational view of the First Amendment for future partisan-gerrymandering cases. In 2016, a three-judge federal court found that Wisconsin’s state legislative map drawn in 2011 was an unconstitutional partisan gerrymander. Many hoped that the Supreme Court could provide a majority opinion articulating a standard for lower courts to handle such claims — past attempts at securing a majority had been elusive. But it wasn’t meant to be. At the outset of oral argument, Justice Anthony Kennedy remarked to the state of Wisconsin, “[T]here is no case that directly helps Respondents very strongly on this standing issue,” and, “You have a strong argument there.”…
[Note: This post was originally published at 1:40 p.m.] Last summer, Justice Ruth Bader Ginsburg called Gill v. Whitford, a partisan-gerrymandering challenge to the state legislative maps drawn by Wisconsin’s Republican-controlled legislature, one of the most important cases of the term. The court heard oral argument in the case in October; two months later, it agreed to take on Benisek v. Lamone, a partisan-gerrymandering challenge to a single federal congressional district drawn by Democratic officials in Maryland. With those two cases on their docket, there were high hopes that the justices would finally weigh in definitively on challenges to the practice of purposely drawing maps to favor one party at the expense of another – either by holding that courts should steer clear of such claims or by laying out standards for courts to use in evaluating them. But the justices did neither. Instead, they sent the Wisconsin case back to the lower court for a new look at…
Extreme heat has descended on Washington, and outside the Supreme Court building there is a long line of tourists and others seeking seats to the courtroom, or perhaps just entry into the building and its hearty air conditioning. Earlier this morning, a friend spotted Justice Neil Gorsuch arriving for work and being let out of an SUV in the company of a small dog. The justice and the dog got out in front of the Library of Congress’ Jefferson Building on First Street Northeast, evidently to allow for a short “constitutional” walk to the court building. Chief Justice Roberts announces opinions in two partisan-gerrymandering cases (Art Lien) Today is the last time this term there will be courtroom admissions to the Supreme Court Bar, and groups of lawyers to be admitted are again overflowing into the public gallery. The groups come from the U.S. Department of Justice, Georgetown University Law Center, and the Worcester Polytechnic Institute in Worcester, Mass.…
By making this technology cheaply available, Amazon is empowering police to track vulnerable groups with staggering ease. On Monday afternoon, civil rights, religious, and community organizations are taking their demand that Amazon stop providing face surveillance technology to governments, including police departments, to the company’s headquarters in Seattle. The groups will deliver over 150,000 petition signatures, a coalition letter signed by nearly 70 organizations representing communities nationwide, and a letter from Amazon shareholders. Monday's action is a part of a nationwide campaign to stop the spread of face surveillance technology in government before it is unleashed in towns, cities, and states across the country. By making this dangerous technology cheaply and easily available, Amazon is uniquely positioned to spread face surveillance throughout government agencies, and it has been working behind the scenes to do so for years.…
Should courts review the decision-making process when the U.S. government determines to target an American citizen as part of the armed conflict authorized by the 2001 Authorization for Use of Military Force? Courts have refused to allow such cases in the past. On June 13, however, Judge Rosemary Collyer of the U.S. District Court for the District of Columbia gave an emphatic yes to the question, in a ruling that deserves much more attention than it has received thus far. Here's what you need to know: Who are the plaintiffs? There are two plaintiffs. First: Ahmad Muaffaq Zaidan. Zaidan is a dual citizen of Syria and Pakistan and a journalist with al-Jazeera.  Second: Bilal Abdul Kareem. Kareem is an American citizen from New York. He’s an independent journalist who has become prominent and controversial for his reporting from Syria, where he now lives. As the New York Times explains, the controversy stems from his support for the idea that the struggle…

Anti-SLAPP

Multitudinous lawsuits–mostly by political “conservatives”–seek to deprive social media services of their property rights to exclude unwanted customers. Or, more precisely, these lawsuits seek to censoriously restrict the social media services’ First Amendment-protected right to free speech/press by forcing them to publish content they, in their editorial discretion, would choose not to publish. Fortunately, these lawsuits are likely to fail (as happened with PragerU v. YouTube), though they will remain an embarrassing and permanent stain on the reputation of the folks who advanced them–plus an expensive lesson in the law for those plaintiffs who lose anti-SLAPP motions. This case involves Chuck Johnson, who Twitter’s CEO called a “troll.” (We know this because Buzzfeed published some Twitter executives’ emails saying that). Twitter perma-banned him for his allegedly trollish behavior, including a tweet that…
Journalist Kurt Eichenwald suffered a seizure after seeing a tweet with a strobe GIF. The sender tweeted the GIF allegedly knowing Eichenwald suffered from epilepsy. The sender was charged criminally, and Eichenwald also filed a civil suit. Defendant moved to dismiss plaintiff’s battery claim. The court rejects defendant’s arguments. The defendant argued that there must be some physical contact which was lacking here. Again, the court is not sold. The court starts out by characterizing the allegations as follows: Defendant sent Plaintiff an image with the intent to cause Plaintiff to have a seizure. Whatever exact name a legal scholar may put to it, that is a tort; it is conduct outside the bounds of a civil society, conduct that should be punished so as to deter its repetition, and conduct that causes a compensable harm. . . . [A]lthough the exact contours of the tort lack perfect clarity, ultimately it qualifies as a battery. It is alleged that Defendant purposely…
Right of publicity: Legislative initiatives - June 4, 2018 - Rebecca Tushnet
Legislative Initiatives:  What matters             Moderator:   Daniel Kummer, NBCUniversal Media, LLCPanelists:     Vans Stevenson, Motion Picture Association of American, Inc.Uniform Law Comm’n has a project this year to create a uniform draft law for all 50 states. We, among others, have opposed that program. We don’t want to have to lobby in all 50 states at once.  NY: pending bill; Louisiana also, w/bill sponsored by IP lawyer who’s looking at NY for what happens. Trying to solve an issue for a locally famous French Quarter musician.  Last 20 years, 14 states have worked on ROP litigation MPAA engaged w/directly. Cal. 1999: Fred Astaire’s widow went crazy on a ruling on an instructional video clip of Astaire protected by 1A. Could have dealt w/digital avatars back then but then didn’t.Kummer: postmortem extension is the biggest issue—why…
Yeager v. Holt, 232 Cal. Rptr. 3d 693 (Ct. App. 2018)Peter Holt and his law firm briefly represented Charles E. and Victoria Yeager and successfully sued Victoria Yeager to obtain his fees in an action known as Holt v. Yeager. Yeager then sued Holt, alleging professional negligence, misappropriation of name, and other claims. The court of appeals affirmed the rejection of Holt’s anti-SLAPP special motion to strike.Yeager’s complaint alleged, among other things, that Holt failed to communicate about the costs and risks of further litigation, concealed facts and acted negligently in discharging professional obligations, such as by refusing to sign a declaration supporting a motion for attorney fees in Yeager v. AT&T Mobility, although Holt claimed in Holt v. Yeager that he was owed those same fees.  Yeager also alleged that Holt represented that the firm would work on a pro bono basis, but did not do so. The misappropriation claim alleged that Holt used Chuck…
CCP section 650 allows trial courts to rule on new trial motions within 60 days of notice of entry of judgment, or else the motion is automatically denied. This time frame is mandatory and jurisdictional. Can a trial court avoid the consequences of not ruling within 60 days by issuing a late order but deeming it timely nunc pro tunc? Cute, right? But 2/7 makes clear here today, "The answer is no."Yesterday's DJ featured Gary Watt's article California Anti-SLAPP in the 9th Circuit: Can it Survive? about the recent opinion here. he concludes:At what point, if the whittling and chopping continues, will the conflict-avoiding, "harmonized" version of California's anti-SLAPP statute become only a shadow of itself? And given the disparate treatment, depending on state versus federal forum, will the twin goals of the Erie doctrine, "discouragement of forum shopping and avoidance of inequitable administration of the laws"…
From TS Media, Inc. v. PBS, 2018 WL 2323233 (D.C. Super. Ct.), apparently decided May 15, 2018, but just posted on Westlaw (and to my knowledge not noted in any media accounts): On February 20, 2018, Plaintiffs [TS Media, Inc. ("TSM"), The Smiley Group, Inc., and Tavis Smiley Presents, Inc.] filed their four-count complaint alleging (1) breach of PBS's November 2016 agreement with TSM, (2) breach of PBS's November 2017 agreement with TSM, (3) intentional interference with contract, and (4) tortious interference with business expectancy. In the contract counts, Plaintiffs claim that the breach of contract was that PBS indefinitely suspended distribution of the Tavis Smiley show to PBS member stations after former co-workers accused Mr. Smiley of sexual harassment. The tort counts arise out of PBS's statements to the media in December 2017 that "'multiple credible' allegations of sexual misconduct" by Mr. Smiley caused it to stop…

California Constitution

A California appeals court today granted emergency motions by the two terminally ill adults and a physician represented by Compassion & Choices for an “automatic stay” to immediately suspend a lower court’s judgment invalidating the End of Life Option Act. The appeals court also granted a motion by Attorney General Xavier Becerra for a “discretionary stay” of the lower court ruling. The rulings reinstate the law, effective immediately. Similar to laws in Washington, D.C. and six states, the California law gives mentally capable, terminally ill adults with six months or less to live the option to request prescription medication they can decide to take to end unbearable suffering and die peacefully in their sleep. On May 15, Riverside County Superior Court Judge Ottolia granted the plaintiffs’ motion in the lawsuit to invalidate the End of Life Option Act by Life Legal Defense Foundation,…
5th DCA pro tem update - June 15, 2018
Judge Wayne R. Ellison (Retired) of the Superior Court of Fresno County, having been assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution will be sitting pro tempore through July 31, 2018.
The U.S. and California Constitutions protect citizens from unreasonable searches. That protection can be especially important if you have been accused of driving while under the influence of alcohol. If the police have obtained your blood without first getting your informed consent or a valid search warrant, the blood-alcohol content test results from that blood may be inadmissible as a result of an improper warrantless search. In your DUI case, the difference between a conviction and an acquittal may be the blood evidence you do or don’t get suppressed. To make sure that your rights are protected and that you have a strong defense on your behalf, make sure you retain skilled San Francisco DUI defense counsel to fight for your rights. An example of how readily such a situation can occur was the case of Matthew from Contra Costa County. Matthew, after allegedly finishing a beer and a golf game, traveled to visit his girlfriend. After a half-hour at the woman’s home,…
The Supreme Court today announced it will examine the parameters of California’s cash bail system under the state’s constitution, granting review on its own motion in the closely watched case of In re Humphrey.  The California Attorney General did not petition the court for review of the First District, Division Two, Court of Appeal’s opinion that held that, as to the habeas corpus petitioner in the case, “the court’s order, by setting bail in an amount it was impossible for petitioner to pay, effectively constituted a sub rosa detention order lacking the due process protections constitutionally required to attend such an order.”  However, the local district attorney asked the court to exercise its independent authority to review the case (which the court did today) and there were several depublication requests (which the court today denied, leaving the appellate opinion citable for its persuasive effect, but not as binding…
Tomorrow morning, the Supreme Court will file opinions in Facebook Inc. v. Superior Court, Delano Farms Company v. California Table Grape Commission, and In re Lewis, all of which were argued on the large March calendar.  (Briefs here; oral argument videos here, here, and here.) Facebook raises these questions:  (1) Did the Court of Appeal properly conclude that defendants in a murder case are not entitled to pretrial access to records of the victim and a witness in the possession of Facebook, Instagram, and Twitter under the federal Stored Communications Act (18 U.S.C. § 2701, et seq.) and People v. Hammon (1997) 15 Cal.4th 117?  (2) Does an order barring pretrial access to the requested records violate defendants’ right to compulsory process and confrontation under the Sixth Amendment or their due process right to a fair trial?  (3) Should the court limit or overrule People v. Hammon (1997) 15 Cal.4th 117?  (Second District, Division Two,…
Here is a summary of this week's Riverside County Superior Court order that strikes the California End of Life Options Act as unconstitutional. I discussed this case with NPR here and built a page of resources here. First, the order has nothing to do with the content of the EOLOA act. It pertains only to the manner in which it was enacted. The EOLOA was enacted during a "special" session of the California Legislature. The California Constitution requires that special session legislation relate to the subject of Governor's Proclamation that called the special session. Here, the Governor's Proclamation mentioned both healthcare finance and healthcare generally. Therefore, pursuant to state supreme court precedent that interprets the special session clause of the constitution, the legislature had the power to enact "any" healthcare related legislation during the special session. It strains credulity to suggest that the EOLOA, which focuses on…