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

First Amendment

[What happens now?] This post is the sixth installment in my series on Roman Catholic Diocese of Brooklyn v. Cuomo. Part I focused on the end of the South Bay "superprecedent." Part II focused on Jacobson v. Massachusetts. Part III focused on the Free Exercise Clause. Part IV focused on mootness. Part V focused on the distinction between "essential" and "non-essential" services. What happens now? This case arose in a very unique context. The Diocese and Agudath Israel sought an injunction pending the Second Circuit's disposition of the appeal. Here is how the Court described its remedy in the Diocese case: Respondent is enjoined from enforcing Executive Order 202.68's 10- and 25-person occupancy limits on applicant pending disposition of the appeal in the United States Court of Appeals for the Second Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of…
[The Court doesn't crack down on the arbitrary distinction between "essential" and "non-essential" businesses--yet.] This post is the fifth installment in my series on Roman Catholic Diocese of Brooklyn v. Cuomo. Part I focused on the end of the South Bay "superprecedent." Part II focused on Jacobson v. Massachusetts. Part III focused on the Free Exercise Clause. Part IV focused on mootness. Since the outset of the pandemic, Governors have separated between "essential" and "non-essential" services. Indeed, I titled my article, What rights are essential? These distinctions can be truly arbitrary. I think many of these orders flunk even the most deferential rational basis review. For example, in Michigan, hardware stores couldn't sell paint. These distinctions can only be upheld if the Court says "not interested." In Diocese, the Court did not crack down on these arbitrary distinctions–yet. But the…
Supreme Court stays Cuomo's order restricting religious gatherings in New York - November 26, 2020 - Second Circuit Civil Rights Blog
The other day, I wrote about a Second Circuit ruling that upheld Governor Cuomo's Covid-19 executive order limiting the size of religious gatherings, rejecting a constitutional challenge that the order violated religious freedoms. That Second Circuit ruling has now been stayed by the Supreme Court, which holds that the order likely violates the Free Exercise Clause of the First Amendment.The case is Roman Catholic Diocese v. Cuomo, issued on November 25. While you were preparing Thanksgiving dinner, the Justices were working on this case. The Court summarizes the issue as follows:[Plaintiffs] seek relief from an Executive Order issued by the Governor of New York that imposes very severe restrictions on attendance at religious services in areas classified as “red” or “orange” zones. In red zones, no more than 10 persons may attend each religious service, and in orange zones, attendance is capped at 25. The two applica- tions, one filed by the Roman…
The U.S. Supreme Court late last night, in a 5-4 decision, enjoined-- while appeals are pending-- New York's 10 and 25 person occupancy limits on houses of worship in red and orange zones of high COVID infections. In Roman Catholic Diocese of Brooklyn, New York v. Cuomo, (Sup. Ct., Nov. 25, 2020), in a decision that also applies to Agudath Israel of America v. Cuomo, the Court's per curiam opinion said in part: [S]tatements made in connection with the challenged rules can be viewed as targeting the “ ‘ultra-Orthodox [Jewish] community.’ ”... But even if we put those comments aside, the regulations cannot be viewed as neutral because they single out houses of worship for especially harsh treatment.In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as “essential” may admit as many people as they wish. And the list of “essential” businesses includes things…
Try not to make people stupider about law. It’s been a guiding principle here, whether it serves to promote outcomes I support or prefer or not. This doesn’t mean that I won’t argue against extant law that I think is wrong, but that I won’t claim that the law says something it does not, omit salient facts which impact an outcome or introduce facts that I don’t believe to be accurate. I may fall short on occasion, for which I apologize, but I will not do so intentionally. Others do not share my concerns. Some play fast and loose with facts, law and the heartstrings of non-lawyers for the sake of collecting “likes,” followers or validating the feelings of the ignorant. It’s often done for their cause, and justified by the sincere belief that the outcome matters enough, so much, that there is no means so dishonest, disreputable, disgraceful, that they would not use it. “By any means necessary” matters more than honesty.…
[But the per curiam opinion stops short of adopting Justice Kavanaugh's "most favored right" framework.] This post is the third installment in my series on Roman Catholic Diocese of Brooklyn v. Cuomo. Part I focused on the end of the South Bay "superprecedent." Part II focused on Jacobson v. Massachusetts. Diocese majority The Chief Justices's South Bay concurrence established a predictable, and easy to apply test with respect to the Free Exercise Clause. Justice Sotomayor described that test in her dissent: South Bay and Calvary Chapel provided a clear and workable rule to state officials seeking to control the spread of COVID–19: They may restrict attendance at houses of worship so long as comparable secular institutions face restrictions that are at least equally as strict. The Diocese majority rejects the comparator approach. Indeed, the Court tweaks what "neutrality" means. I think this analysis may augur the future of…

Anti-SLAPP

[An interesting, though unsurprising, decision in a case brought by prominent Russian businessmen over the Fusion GPS Steele Dossier.] From Khan v. Orbis Business Intelligence Ltd., decided in 2018 but just posted on Westlaw (Judge Anthony C. Epstein, D.C. Super. Ct.) (affirmed as to other matters in a 2020 D.C. Ct. App. decision): This case involves what has become known as the "Steele Dossier." The relatively small portion of the Steele Dossier at issue in this case discusses the relationship between plaintiffs German Khan, Mikhal Fridman, and Petr Aven and the Russian government, but it does not discuss specific information linking them to any Russian interference in the 2016 U.S. presidential election or to any specific American candidate…. The Court concludes … that the Anti-SLAPP Act requires dismissal of this case because Defendants have made a prima facie case that the Act applies to their provision of this portion of the Steele Dossier to the…
Following the Court’s decisions in Pointes/Platnick, anti-SLAPP motions continue to be brought in defamation actions. These decisions will continue to build and refine test created by the Court, and how it can be applied. One particular aspect is determining what exactly is in the public interest for the purpose of s. 137.1(4)(b), which is the main focus of analysis after the Court’s decision. A recent Ontario Court of Appeal decision in Sokoloff v. Tru-Path Occupational Therapy Services Ltd. helps expound on this issue. The action emerged from a dispute between a well-known lawyer in Toronto, and a the President of a rehab facility who received referrals from the lawyer, and would agree to provide services where an insurance company denied coverage, with the agreement that the lawyer would be ultimately responsible for paying. The President stood outside the lawyer’s office, holding a sign that said: SOKOLOFF LAWYERS USED OUR COMPANY’S REHAB SERVICES…
This is the elventh instalment in a regular series from Inforrm highlighting press and case reports of new media and information cases from around the world.  It is intended to complement our United States: Monthly Round Up posts.  Please let us know if there are other cases and jurisdictions which we should be covering. In the Media Australia The trial of Australian journalists and media considering the dismissal of charges for breaching a suppression order concerning the reporting of ex-Vatican treasurer George Pell’s 2018 child sex abuse conviction, was adjourned on 17 November 2020. Reuters reports. The Guardian has analysed Australia’s media ownership, concluding that it is among the most concentrated in the world. The report comes after Australia’s parliament announced it was to conduct a probe into Rupert Murdoch’s media dominance. The move comes from the efforts of Kevin Rudd and Sara Hanson-Young to establish a review of media…
New York adopts strong anti-SLAPP statute - November 17, 2020 - Paul Levy
by Paul Alan Levy With a signature last week from Governor Cuomo, New York has become the latest state to enact a strong anti-SLAPP law.   Addressing flaws that came to the fore in our recent defense of Richard Robbins, the new statute considerably broadens the scope of speech covered by anti-SLAPP protections, and, requires a stay of discovery upon the filing of an anti-SLAPP motion, provides for the consideration of affidavits as well as pleadings in assessing whether there is “a substantial basis in law” for actions directed at protected speech, and requires, rather than simply permitting, awards of attorney fees when an anti-SLAPP motion is granted. Unlike the anti-SLAPP laws in most states with such broad coverage, the New York statute does not contain exceptions for lawsuits aimed at commercial speech, suits filed in the public interest, or suits filed on behalf of state or local governments. It remains to be seen whether such amendments prove to be…
[Past perfect, libel-proof plaintiffs, substantial truth, “actual malice,” statutes of limitations, and more.] Michael Avenatti sued Fox News and various Fox News personalities Thursday for libel, stemming from Fox's coverage of Avenatti's Nov. 2018 arrest for domestic violence. Much of the Complaint consists of general condemnations of Fox News, but on p. 23 the Complaint finally comes to the particular allegations about how Fox had supposedly defamed Avenatti in particular. (Ken White [Popehat] has more.) Here are some quick thoughts on why the lawsuit is likely going nowhere. [1.] Substantial truth: The problem Avenatti is facing is that he was indeed (according to the LAPD) arrested, so Fox News is entitled to report on this arrest, booked, and released on bail. A week later the woman involved (Mareli Miniutti) got a restraining order against Avenatti, based in part on allegations of violence, so that suggests that there was at least reason to believe…
Tweet On Tuesday, New York Gov. Andrew Cuomo finally signed anti-SLAPP legislation that had passed the Legislature over the summer; a bill I’ve been advocating for several years. Being hit with two frivolous defamation suits over my blog posts can have that effect. The legislation commands an award of costs and legal fees (“shall”) for frivolous defamation suits that are brought in order to stifle the free speech rights of others. I’ll get to Trump in a minute — yeah, I know you saw him in the subject heading — but first I want to tip my hat to Assemblywoman Helene Weinstein who has championed this legislation for a decade. While she’d been able to get it passed in the Democratically controlled Assembly, the Republican-held Senate refused to act. For reasons completely unclear to me, Republicans didn’t see fit back then to stop frivolous suits that impaired free speech rights. And yet, the First Amendment right to…

California Constitution

Takings and Time - November 16, 2020 - Michael C. Dorf
 by Michael C. DorfOn Friday the Supreme Court granted certiorari in Cedar Point Nursery v. Hasid, a case that pits labor rights against property rights. Given the Court's current personnel, the odds seem pretty clearly stacked in favor of the latter. Here, I'll briefly describe the case but mostly set aside the ideological stakes. Instead, I'll focus on a mathematical issue that the case presents and that arises in other contexts as well.A longstanding regulation in California grants union organizers access to workers at agricultural workers on private property. The rule allows such access for up to three hours per day for up to thirty days at a time for up to four thirty-day periods per year. Union organizers used the rule to gain access to privately owned strawberry fields and orchards growing grapes and citrus fruit. The owners of these properties complained that the access was disruptive and, more importantly for present purposes, unconstitutional. They…
Today, Friday, November 13, 2020, is the day that the Supreme Court is scheduled to decide whether to decide a case we've been following for a long time (and one in which we filed an amicus brief urging the Court to take up the case). In Cedar Point Nursery v. Shiroma, 923 F.3d 524 (May 8, 2019), a 2-1 panel of the Ninth Circuit affirmed the dismissal of a complaint for failure to plausibly state a takings claim under Twombly/Iqbal. At issue was a regulation adopted by California's Agricultural Labor Relations Board which requires agricultural employees to open their land to labor union organizers. The regulation is framed as protecting the rights of ag employees to "access by union organizers to the premises of an agricultural employer for the purpose of meeting and talking with employees and soliciting their support." The Ninth Circuit panel majority viewed the complaint as alleging a Loretto physical invasion taking, but held the plaintiffs did not…
California Voters Reject Ballot Measures Related to Rent Control and Property Tax - November 11, 2020 - Whitney Hodges and Talya Gulezyan
While the results are yet to be certified, it is clear, a week after Election Day, that Californians have rejected both Proposition 15 – The California Schools and Local Communities Act of 2020 (“Prop. 15”)[1] and Proposition 21 – Rental Affordability Act (“Prop. 21”).[2]  Despite this most recent response from the electorate, it is likely that real property tax “reform” and rent control will continue to be a topic of conversation during the next legislative cycle and appear on future ballots. Please see below for a discussion of each proposition and voter response. Prop. 15 Prop. 15 was intended to rollback California’s current real property tax regulatory scheme articulated in Proposition 13 (“Prop. 13”) for commercial properties only.[3]  Prop. 13 allows state property taxes on residential and commercial properties to be based on their purchase price rather than their market value and…
California voters reject ballot measure to restore affirmative action - November 4, 2020 - Kirsten Williams | Vermont Law School, US
Unofficial totals following Tuesday’s election indicate that California voters have rejected a statewide ballot measure that would have amended the California Constitution to allow the state to reinstate affirmative action programs. Proposition 16, titled “Allow Diversity as a Factor in Public Employment, Education, and Contracting Decisions,” would have permitted government decision-making policies to consider race, sex, color, ethnicity, or national origin to address diversity. If passed, the ballot measure would have repealed Proposition 209, which passed in 1996, from the California Constitution. Proposition 209, the “Affirmative Action Initiative,” made affirmative action illegal in California when it was added to the California Consitution’s Declaration of Rights. It barred discrimination or preferential treatment involving race-based or sex-based preferences in California. Proposition 209 passed with 55% of the vote. By eliminating the…
California appeals court orders San Quentin prison population cut by half to combat COVID spread - October 23, 2020 - Zoe Gujral | U. Pittsburgh School of Law, US
The California Court of Appeal First Appellate District has ordered San Quentin State Prison (SQ) to reduce its population by half. The move is intended to reduce the spread of COVID-19. The Tuesday order follows a writ of habeas corpus filed by Ivan Von Staich, an inmate in the prison. Staich, 64, suffers from respiratory problems. When he filed the petition, Staich and a 65-year-old cellmate had tested positive for COVID-19. In fact, 75 percent of SQ’s inmate population and dozens of prison staff had tested positive. In the petition’s declaration, Staich stated that conditions in the prison made social distancing impossible. Staich alleged that his continued incarceration in SQ, as opposed to a residential facility supervised by the California Department of Corrections and Rehabilitation (CDCR) that already accepted him, violates the US and California Constitutions’ prohibition on cruel and unusual punishment. Additionally, he argued that the CDCR acted…
As I have noted in prior posts, one of the follow-on effects of the recent racial justice movement has been increased scrutiny of racial diversity within corporate management, and in particular on corporate boards. The boards of several publicly traded companies have been hit with shareholder derivative lawsuits alleging that the directors breached their fiduciary duties by failing to include African-American individuals on the boards, while at the same time the companies were touting their diversity and inclusion efforts.   In addition to the recent litigation, efforts to advance board racial diversity have included legislation. Earlier this year, the California legislature passed a bill mandating the inclusion on boards of California headquartered companies of representatives of “underrepresented communities.” On September 30, 2020, California Governor Gavin Newsome signed the bill into law. As discussed below, even though the law has only been in place for a…