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

First Amendment


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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. ● The Facebook Oversight Board’s recent decision (2021-09), affirming the restoration of a shared Al Jazeera news story about a potential threat of violence from a designated dangerous organization, reflects two recommendations made by U.N. Special Rapporteur Irene Khan. Khan’s public comment called for greater transparency in how Facebook responds to all government requests, including extralegal requests and an independent public investigation into Facebook’s content moderation practices in Arabic and Hebrew to determine and correct possible biases. This aligns with the Special…
An interesting commentary by Clayton Kozinski (Lehotsky Keller LLP) on the lawsuit in which the Duke First Amendment Clinic, Jane Bambauer, and I filed an amicus brief (which unfortunately didn't persuade the judge); here's the opening: The conversation about facial recognition technology typically centers around privacy. But an ongoing lawsuit in Illinois shows that it has just as much to do with free expression. Clearview AI is the defendant in ACLU v. Clearview AI. It produces powerful facial recognition technology used by law enforcement across the country. Like all facial recognition software, Clearview's is powered by faceprints. The Illinois Superior Court recently rejected Clearview's motion to dismiss argument that the Illinois Biometric Information Privacy Act (BIPA) impermissibly infringes its First Amendment rights. BIPA prohibits companies from collecting "faceprints" — geometric measurements of…
New Florida Law Punishes Businesses from Requiring Vaccine Passports - September 16, 2021 - Law Offices of Ralph Behr
Florida Governor Ron DeSantis passed an executive order in July of 2021, banning vaccine passports. A vaccine passport occurs when a business or other entity requires their patrons and customers to present proof of vaccination. Since the bill was passed in July, enforcement has been sparse, and businesses caught requiring vaccine passports faced little tangible consequence. Recently, the Republican-controlled Florida legislature has approved and passed the law signed by Governor DeSantis earlier this year. This allows the Florida Department of Health to begin harsher enforcement of the vaccine passport ban. According to the Department of Health, any Florida business found requiring proof of vaccination from patrons, customers, or any other member of the public will face a $5,000 fine. Once the fine is issued, businesses will have a brief thirty-day period to appeal before payment is due. Critics to this bill make three main arguments. First, they argue the law violates the…
On Sept. 15, a divided panel of the U.S. Court of Appeals for the Fourth Circuit upheld the dismissal of a lawsuit brought by the Wikimedia Foundation that challenged parts of the National Security Agency’s (NSA’s) warrantless surveillance program of Americans’ international internet communications. The panel ruled in Wikimedia v. NSA that the lawsuit must be dismissed after the government invoked the state secrets privilege to claim that further litigation could threaten national security. The panel rejected Wikimedia’s argument that a procedure in the Foreign Intelligence Surveillance Act displaces the state secrets privilege and allows the case to move forward.   The Wikimedia Foundation, which runs Wikipedia, claimed that the NSA’s “Upstream” surveillance program captures its international communications and is a violation of its First Amendment free-speech rights and its Fourth Amendment rights against unreasonable search…
Neo4j, Inc. v. PureThink, LLC, 2021 WL 2483778, No. 5:18-cv-07182-EJD (N.D. Cal. May 18, 2021) Neo4j specializes in graph database management systems. “Neo4j USA’s platform helps organizations make sense of their data by revealing how people, processes and digital systems are interrelated.” [I still don’t know what that means, but ok.] It has more than 400 commercial customers, including global enterprises such as Walmart, Comcast, Cisco, and eBay, and also does substantial business with government agencies, including US agencies. It has trademark registrations for the word mark “NEO4J.” Neo4j originally offered a free and open source version of the Neo4j platform known as the Neo4j Community Edition, with limited features and no technical or administrative support. Neo4j Enterprise Edition was originally offered under both a paid-for commercial license and the free GNU Affero General Public License, version 3, but Neo4j then replaced that…
The Ohio Supreme Court today permanently enjoined the city of Cincinnati from enforcing an excise tax on billboard advertising imposed in 2018 to help close a $2.5 million city budget deficit, holding that it violated the billboard operators’ First Amendment rights.

Anti-SLAPP


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Can You Sue Over Comments Made on Social Media? - September 14, 2021 - Matthew Eanet
The California Court of Appeals recently held that a customer’s comments on social media about a birthday cake didn’t involve the public interest as defined by California’s anti-SLAPP statute, Code Civ. Proc., § 425.16. The disgruntled customer was complaining about a cake order… he didn’t like the cake or the baker’s service, and according to the court, those are not issues of public interest. The Cake the Customer Received Looked Too Much Like Real Drugs Self-proclaimed celebrity jeweler Ben “the Baller” Yang was having a birthday party for his seven-year-old son. The theme was “Modern Mad Science.” His wife Nicolette ordered a themed cake from Big Sugar Bakeshop, and she sent a picture showing what she wanted. Her picture showed a knocked-over beaker atop a cake. Spilling from the beaker are little balls or pill-like objects. On the cake’s side is a joke periodic table element labeled…
Check your calendar. Yes, it’s 2021. But trademark plaintiffs and judges are still partying like it’s 1999. The plaintiff is Seeking Arrangements, one of my favorite websites to base my Internet Law exams on. The defendant is a competitor, Luxy. The court summarizes the alleged trademark problems: Defendant used the phrase “Online Arrangement” and Plaintiffs’ trademark “Seeking Millionaire” as metatags on its website to direct consumers who searched for “Seeking,” “Seeking Millionaire,” and “Seeking Arrangement” to its own website and mobile application. Defendant has also used Plaintiffs’ trademarks “Seeking Millionaire,” “Seeking Arrangement,” “Whats Your Price,” “Carrot Dating,” and “Seeking” as search terms in the Apple Appstore and Google Play Store to yield LuxyApp as a search result. (There’s also a copyright claim for Luxy…
Because I am decidedly un-hip and un-young, I did not know anything about celebrity jeweler Ben "The Baller" Yang before this opinion, which involves a lawsuit concerning a birthday party cake that Mr. Yang ordered but decidedly did not appreciate.I do not think that Mr. Yang comes off looking very good here.  A reader may well get the impression -- as I did -- that Mr. Yang acted like a bully, using his celebrity as a bludgeon against a small bakery who made a cake that he didn't enjoy.  ("According to Big Sugar’s employees, Yang called and said they had put drugs on a cake for a seven year old and that he had a TV show, a podcast, and over a million followers who would destroy Big Sugar. Then he hung up. [To be clear: the bakery did not, in fact, put drugs on the cake, but some of the decorations on the "mad science" cake Yang ordered may indeed look like pills.] He called back and told a second employee to…
The court opinion starts: “This case is about a birthday cake.” Ben “Baller” Yang, blinger to some stars, and his wife threw a birthday party for their 7 year old child, London (is this London’s Instagram page?). The wife ordered a cake from “Big Sugar,” an LA bakery. The parties dispute whether the bakery was told that London was turning 7. The wife sent this reference photo to the bakery: Note that the cake displays some colorful commercially available candies (maybe Mike & Ike’s?) as metaphorical pills. The bakery prepared this cake (the court included this photo in its opinion–yay!): The custom cake upset Baller because he felt that, unlike the reference photo, the pills at the cake’s bottom were realistic, and this suggested to kids that pharmaceutical drugs are like candy. Baller communicated his displeasure to the cake shop. The parties disagree about what happened in those conversations, but Baller came…
This lawsuit involves a NY Post article about Hunter Biden’s connections with Ukranian businessmen. The “smoking gun” evidence purportedly came from Hunter Biden’s laptop that he allegedly abandoned at a Delaware computer repair shop run by the plaintiff. The plaintiff, John Paul Mac Isaac, gave a copy of the hard drive’s contents to Rudy Giuliani’s attorney, who handed it off to the NY Post. The NY Post article didn’t identify the plaintiff, but it incorporated details that allowed the plaintiff’s identity to be deduced. Twitter determined that the article violated its “hacked material” policy. It locked off the NY Post Twitter account and blocked links to the article with this notice: Twitter also posted this thread: The plaintiff believed that Twitter’s statements mischaracterized him as a hacker. He sued Twitter for defamation per se. This is an easy case. Twitter never named the plaintiff in its…
Thomson Reuters (TR) offers a database called “CLEAR” that assembles personal information into individual dossiers. The plaintiffs are Black civil rights activists leading a class action lawsuit for publicity rights and related claims. The court denies TR’s motion to dismiss–in a ruling with potentially vast implications. Publicity Rights. TR claimed its dossiers didn’t “use” the plaintiffs’ identity, citing Perfect 10 v. Google (2010) and Cross v. Facebook. The court distinguishes those cases, saying “Google and Facebook—unlike Thomson Reuters—were not posting or sharing the plaintiffs’ identities; they were simply providing the websites or platforms where others posted that information.” Instead, citing Perkins v. LinkedIn and Fraley v. Facebook, the court says “it is Thomson Reuters that posted the dossiers with Plaintiffs’ name, likeness, and personal information on its CLEAR platform.…

California Constitution


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California dispatches: Newsom retains office, but the time is ripe to repeal the recall - September 16, 2021 - Ram Eachambadi | JURIST Staff
JURIST is launching a new series of dispatches from major US states written by JURIST correspondents “on the ground” in those jurisdictions. JURIST Operations Director Ram Eachambadi files this report from Los Angeles. An almost teary-eyed “humbled and grateful” California Governor Gavin Newsom addressed his supporters and the media at approximately 8:50 PM on Tuesday thanking voters for the overwhelming “No” vote on the recall and saying yes to science, vaccines, right to vote, ending the pandemic and “women’s fundamental, constitutional right to decide for herself what she does with her body and her fate and future.” As noted in my previous California dispatch, there was some concern among Democrat voters about a possible GOP voter surge on Tuesday due to the fact that Republicans are more likely to vote in person rather than use the mail-in ballot. However, Newsom did not just survive the recall—he essentially…
Alameda Superior Court Judge Rules Proposition 22 Unconstitutional - September 8, 2021 - Shane A. Le Master and Robert T. Dumbacher
Last month, a judge out of the Alameda County Superior Court ruled California’s Proposition 22 unconstitutional, constituting a significant legal obstacle to this young statute. Proposition 22 (formally the Protect App-Based Drivers and Services Act, Bus. & Prof. Code, §§ 7448, et seq.) was a ballot initiative passed by a majority of California voters in the November 2020 election, which primarily aimed to classify application-based transportation and delivery companies’ drivers as independent contractors rather than employees. Proposition 22 arose in response to Assembly Bill 5, 2019 legislation codifying the California Supreme Court’s decision in Dynamex Operations West, Inc. v. Superior Court, which created a new “ABC” test for determining whether workers are properly classified as independent contractors. (More information on AB 5 can be found in this previous Hunton Employment & Labor Perspectives post.) In the case at issue,…
The court summarizes the allegations: Plaintiffs John Doe #1 and John Doe #2 allege that when they were thirteen years old they were solicited and recruited for sex trafficking and manipulated into providing to a third-party sex trafficker pornographic videos (“the Videos”) of themselves through the social media platform Snapchat. A few years later, when Plaintiffs were still in high school, links to the Videos were posted on Twitter. Plaintiffs allege that when they learned of the posts, they informed law enforcement and urgently requested that Twitter remove them but Twitter initially refused to do so, allowing the posts to remain on Twitter, where they accrued more than 167,000 views and 2,223 retweets. According to Plaintiffs, it wasn’t until the mother of one of the boys contacted an agent of the Department of Homeland Security, who initiated contact with Twitter and requested the removal of the material, that Twitter finally took down the posts, nine…
This essay extends our virtual conversation with Berkeley Law’s Dean Erwin Chemerinsky and Professor Aaron Edlin about the constitutionality of California’s procedures governing the upcoming recall election for Governor Gavin Newsom. Chemerinsky and Edlin initially argued in the New York Times that California’s electoral process violates “a central principle of democracy—the one-person, one-vote principle.”After we expressed our disagreement in a column on this site because we believe Chemerinsky and Edlin ask the wrong question, they responded, first implicitly in the Los Angeles Times and then again explicitly here on Verdict. We appreciate their engagement with us, but we remain unmoved by their arguments and counterarguments. In our view, California’s recall process permissibly excludes a recalled incumbent from immediately trying to replace herself, and this works no equal protection or other constitutional violation.The…
A recent decision from the Northern District of California on a motion to dismiss examined consent and other key privacy issues.  The putative class action claimed that payment processing company Stripe Inc. collected and used personal information from visitors to merchant partners’ websites in violation of various privacy laws, including the California Invasion of Privacy Act, Florida Security of Communications Act, and Washington’s wiretap law. Stripe moved to dismiss based on plaintiffs’ consent to the challenged collection and uses, among other grounds.  On July 28, 2021, Judge Yvonne Gonzalez Rogers partially granted and partially denied Stripe’s motion. The court first found that the privacy policy at issue constituted an enforceable “sign-in wrap” agreement because the merchant’s page displayed a “conspicuous and obvious” hyperlink and required users to agree to the policy when placing orders.  That…
Applying the Takings Clause to Regulatory Access - July 27, 2021 - Michael C. Harper
In Cedar Point Nursery v. Hassid, the U.S. Supreme Court enlarged the potential scope of the Takings Clause by applying it against a California regulation that granted union organizers of farmworkers limited access to the property of growers who employed the workers. The decision was the Court’s first application of the U.S. Constitution’s Takings Clause to require compensation from the government for regulatory access to commercially used private property, rather than for the effective prohibition of some commercial use or for the seizure of a property right for governmental or public use. Nevertheless, beyond effectively basing on the constitution some of the Court’s earlier interpretation of federal labor law, the decision may have limited impact on federal and state regulatory law. Agricultural laborers are not covered as employees by the National Labor Relations Act (NLRA) and thus their labor relations may be governed by state law. As a result,…