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

First Amendment

Defamation is hard to prove in the United States — and that’s a good thing for political debate. On Monday, a federal judge dismissed a lawsuit brought by Stephanie Clifford, aka Stormy Daniels, against Donald Trump alleging that he defamed her on Twitter. While Trump’s bullying and name-calling, particularly targeting women, are abhorrent and vulgar, it’s not surprising that Clifford’s suit was unsuccessful. Defamation is relatively hard to prove in the United States — and that’s a good thing. The case was about Clifford’s assertion that in 2011, as she was considering going public with information about an affair she had with Trump, she was confronted by a stranger in a parking lot who told her to “leave Trump alone.” In April 2018, Clifford released a sketch of the person who she says confronted her. Trump responded by tweeting that the alleged encounter didn’t happen and the whole story was a “con…
Trump sued over freedom of press violations - October 17, 2018 - Erik Slobe
PEN America filed a lawsuit against US President Donald Trump on Tuesday in the US District Court for the Southern District of New York alleging several violations of the First Amendment’s protection of freedom of the press. The plaintiffs allege retaliatory actions for unfavorable news reporting, including, “initiating a government review to raise postal rates; directing Department of Justice enforcement actions; threatening to revoke broadcast licenses; and interfering with White House press access.” The review of postal rates was allegedly in retaliation for Washington Post news coverage. The Washington Post is owned by Jeff Bezos, who also owns Amazon. Trump has often criticized the Washington Post, tweeting that it was “nothing more than an expensive (the paper loses a fortune) lobbyist for Amazon.” Trump signed a executive order for the Postal Service to review its package pricing. On October 11, 2018, the Postal Service increased the price…
Petitions of the week - October 17, 2018 - Aurora Barnes
This week we highlight petitions pending before the Supreme Court that address, among other things, the classification under the Armed Career Criminal Act of a criminal offense that requires a defendant to have acted recklessly; the constitutionality of a categorical exclusion of houses of worship from qualifying for a government historic preservation grant; and the extent to which an accommodation must eliminate a conflict between work and religious practice to be “reasonable.” The petitions of the week are: Patterson v. Walgreen Co. 18-349 Issues: (1) Whether an accommodation that merely lessens or has the potential to eliminate the conflict between work and religious practice is “reasonable” per se, as the U.S. Courts of Appeals for the 1st, 4th and 11th Circuits hold; does it instead create a jury question, as the U.S. Courts of Appeals for the 8th and 10th Circuits hold; or must an accommodation fully eliminate the conflict in order…
SLAPP dismissal of Stormy Daniels' defamation suit - October 17, 2018 - Howard Wasserman
Judge Otero of the Central District of California dismissed Stormy Daniel's defamation action against President Trump under the Texas anti-SLAPP statute, holding that the President's tweets were rhetorical hyperbole and imposing attorney's fees under the statute. Three quick thoughts. The basic point about rhetorical hyperbole is correct as a matter of the First Amendment. I think the basic premise of this defamation suit is problematic--"A accuses X of doing something, X denies it, so A sues X for defamation for calling her a liar." Anti-SLAPP suits are swallowing the First Amendment as a defense to defamation, in a way I...
Here is the abstract for Jack Balkin’s The First Amendment in the Second Gilded Age (Buffalo Law Review, 2019 Forthcoming): How do we pay for the digital public sphere? In the Second Gilded Age, the answer is primarily through digital surveillance and through finding ever new ways to make money out of personal data. Digital capitalism in the Second Gilded Age features an implicit bargain: a seemingly unlimited freedom to speak in exchange for the right to surveil and manipulate end users. To protect freedom of speech in the Second Gilded Age we must distinguish the values of free speech from the judicially created doctrines of the First Amendment. That is because the practical freedom to speak online depends on a privately owned and operated infrastructure of digital communication to which the First Amendment does not apply. As a result, the protection of digital free expression has increasingly begun to detach from the judicial doctrines of the First Amendment. This…
BLACK FIRE CHIEF WINS DAMAGES AFTER BEING REPRESENTED BY WHAT SPLC CALLED A HATE GROUP: Atlanta To Pay Out $1.2 Million To Christian Fire Chief After Violating His First Amendment Rights.

Anti-SLAPP

SLAPP dismissal of Stormy Daniels' defamation suit - October 17, 2018 - Howard Wasserman
Judge Otero of the Central District of California dismissed Stormy Daniel's defamation action against President Trump under the Texas anti-SLAPP statute, holding that the President's tweets were rhetorical hyperbole and imposing attorney's fees under the statute. Three quick thoughts. The basic point about rhetorical hyperbole is correct as a matter of the First Amendment. I think the basic premise of this defamation suit is problematic--"A accuses X of doing something, X denies it, so A sues X for defamation for calling her a liar." Anti-SLAPP suits are swallowing the First Amendment as a defense to defamation, in a way I...
In re Elysium Health-Chromadex Litig., 2018 WL 4907590, No. 17 Civ. 7394 (CM) (S.D.N.Y. Sept. 27, 2018)   Elysium, which makes dietary supplements, sued Chromadex, a former supplier, for false advertising under the Lanham Act, trade libel, deceptive business practices under New York General Business Law § 349, and tortious interference with prospective economic relations.  Chromadex argued that entertaining Elysium’s lawsuit would violate the Noerr-Pennington doctrine, which protects a party’s right to petition the government for redress, and filed a mirror image complaint.Elysium’s Basis is sold as an anti-aging product, and has two main ingredients: nicotinamide riboside (NR) and pterostilbene (PT). Chromadex sold these as Niagen and pTeroPure, respectively. In 2017, after the parties’ relationship soured, Chromadex filed a citizen petition with the FDA. A citizen petition is “a means afforded by the FDA for raising concerns…
It was a busy Wednesday conference for the Supreme Court yesterday.  Notable actions include: The court granted review in B.B. v. County of Los Angeles.  In a published opinion, the Second District, Division Three, Court of Appeal mostly rejected challenges to an $8 million judgment for the family of a man who died during an arrest by Los Angeles County Sheriff’s deputies.  There are many issues, including one where the appellate court disagrees with another about the applicability of the Tom Bane Civil Rights Act to an intentional unlawful arrest.  Other issues include plaintiffs’ counsel’s misconduct by — during jury deliberations — attending one juror’s musical performance at “a relatively intimate banquet hall,” evidence of one officer’s membership in a long-publicized “deputy gang,” and the apportionment of noneconomic damages in an intentional tort case.  It’s possible the…
Brian MacFarland runs a blog, lazymanandmoney.com. For his own home, he held an in-home demonstration of a RainSoft water softener system by Oster, a salesperson at a local distributor, Basement Technologies. (I’m not sure about that brand!). MacFarland was skeptical about the sales pitch, but he also wrote a $100 deposit check (later refunded). He wrote a series of four skeptical and critical posts about the sales pitch and his dealings with the distributor. RainSoft sued him for defamation and Lanham Act false advertising. The court grants summary judgment to MacFarland. Defamation. The court divides MacFarland’s statements into two buckets and finds that neither bucket qualifies for defamation. First, it says: MacFarland’s use of the words ‘scam,’ ‘magic show,’ ‘bad logic,’ and the like similarly fall into the First Amendment’s safe harbor for imaginative expression and rhetorical hyperbole. Any reader of his…
Back in 2007, IPBiz discussed California's anti-SLAPP law in the context of the Cha/Flamm plagiarism matter.See Judge to hear anti-SLAPP arguments in Cha/Flamm matter on Nov. 20 .Anti-Slapp issues arose in the context of actress Olivia de Havilland's fight against her false depiction in a docudrama.In March 2018, the New York Times discussed an anti-SLAPP issue in the de Havilland/FX matter:FX tried to have the lawsuit tossed last summer, on the grounds of California’s anti-Slapp (Strategic Lawsuit Against Public Participation) statute, designed to quickly set aside lawsuits that may be designed to chill free speech. But a trial judge surprised legal observers by ruling that Ms. de Havilland had sufficient grounds to proceed with her lawsuit.Although de Havilland won on the anti-SLAPP issue, she lost at the California appellate level.As to the core of the unsuccessful argument by de Havilland, the California appellate court noted:“Books, films, plays…
A Ninth Circuit panel consisting of Judges A. Wallace Tashima, Johnnie B. Rawlinson, and Paul J. Watford recently heard oral argument in Anheuser-Busch Companies v. Clark, 17-15591, concerning the denial of a former employer’s anti-SLAPP motion in a trade secret misappropriation and breach of contract case. This is the second time the case has made its way up to the Ninth Circuit. We previously reported on this case in March 2017. The panel has not yet issued its decision but the Ninth Circuit’s decision could have far reaching implications for trade secret and data theft cases involving purported whistleblowing activities. Background On March 1, 2013, the company sued its former employee James Alan Clark (“Clark”) for trade secret misappropriation and breach of nondisclosure agreements in the Eastern District of California. Specifically, the company alleged that Clark stole a trade secret document containing beer specifications, known as “Page…

California Constitution

The California Coastal Act establishes another layer of regulation governing “development” in the Coastal Zone. Development under the Coastal Act is defined to encompass essentially everything and anything.  For example, under the Coastal Act development includes such things as a lot line adjustment, releasing fireworks on the 4th of July, or putting up a “No Trespassing” sign.  While there are certain limited exemptions, in most cases individuals undertaking any development in the Coastal Zone must obtain a Coastal Development Permit.  In certain instances, the local agency’s decision to approve or deny a Coastal Development Permit is reviewed by the California Coastal Commission.  On this review, the Coastal Commission may consider whether the decision to approve, deny, or impose mitigation measures would potentially run into takings issues.  This practice by the Coastal Commission was challenged by a Marin County…
The Mercury News reports on a former Olympic champion’s tweet against the retention of Justice Carol Corrigan.  The basis for his opposition is Justice Corrigan’s dissenting view 10 years ago that the California Constitution does not provide a right to marriage for same-sex couples. The tweet says that Justice Corrigan “voted against same sex marriage.”  It does not mention that, besides her constitutional analysis, her concurring and dissenting opinion begins, “In my view, Californians should allow our gay and lesbian neighbors to call their unions marriages.”  (In re Marriage Cases (2008) 43 Cal.4th 757, 878.) More important, of course, is the tweet’s attack on judicial independence.  It is enormously damaging when a conscientious judge is removed by the voters because they disagree with a particular decision, as when three Iowa Supreme Court justices were defeated because of their votes in favor of a…
2018 CEQA 3rd QUARTER REVIEW - October 9, 2018 - William W. Abbott, Diane G. Kindermann, Glen C. Hansen and Daniel S. Cucchi
Welcome to Abbott & Kindermann’s 2018 3rd Quarter CEQA update. This summary provides links to more in depth case write-ups on the firm’s blog. The case names of the newest decisions start with Section 3 and are denoted by bold italic fonts.  1. 2017 CEQA UPDATE To read the 2017 cumulative CEQA review, click here:  2. CASES PENDING AT THE CALIFORNIA SUPREME COURT There are 2 CEQA cases pending at the California Supreme Court. The cases, listed newest to oldest, and the Court’s summaries are as follows: Union of Medical Marijuana Patients, Inc. v. City of San Diego, S238563. (D068185; 4  Cal.App.5th 103; San Diego County Superior Court; 37-2014-00013481- CU-TT-CTL.) Petition for review after the Court of Appeal affirmed the judgment in an action for administrative mandate. This case presents the following issues: (1) Is the enactment of a zoning ordinance categorically a “project” within the meaning of the California Environmental…
Earlier this week, California Governor Jerry Brown signed into law SB 826, a landmark measure that requires each publicly held corporation whose principal executive offices are located in California to have, by the end of 2019, at least one woman on its board of directors. By 2021, each such corporation is required to have at least two women board members if the corporation has five directors, and at least three women board members if the corporation has six or more directors.In today’s column, Part One in a series, we begin to spot and analyze some of the cutting-edge constitutional questions SB 826 raises. More specifically, in the space below we address aspects of federal equal protection review, focusing on what it means under federal intermediate scrutiny to for a state to “substantially further” a government objective. In Part Two we ask which government objectives—both in enacting and implementing SB 826—are appropriate for a state to pursue…
In a published opinion filed September 18, 2018, the Fourth District Court of Appeal (Div. 1) affirmed a judgment granting a writ setting aside the City of San Diego’s (City) decision to subject a coastal development permit (CDP) application for construction of a single family home on a vacant La Jolla lot to CEQA review.  Francis A. Bottini, Jr. v. City of San Diego (2018) ___ Cal.App.5th ___. The City’s basis for finding the CEQA Guidelines Class 3 categorical exemption for construction of a single-family residence (14 Cal. Code Regs., § 15303) inapplicable was that CEQA review was required to address the potential impacts of the landowners’ (Bottinis) project on an allegedly “historic” cottage (the Windemere).  Which at first blush seems pretty reasonable – that is, until you consider the undisputed fact that at the time of the Bottinis’ CDP application, the Windemere didn’t exist anymore.  While the…
One more lesson on the speed of the interwebs: we were all set to take a deep dive into the California Court of Appeal's opinion in an inverse condemnation case, Bottini v. City of San Diego, No. D071670 (Sep. 18, 2018), when our colleague Brad Kuhn analyzed the case at his California Eminent Domain Report blog.  The title of Brad's post, "Improper CEQA Determination Does Not Trigger Regulatory Taking," tells you most of what you need to know. The short story is that the City asserted that Bottini's planned demolition of a beach bungalow as part of a project to build a new house required assessment and analysis under California's environmental reporting statute, CEQA (California Environmental Quality Act). Bottini disagreed, asserting the demolition was exempt from CEQA, and, by the way, the delay caused by the City's wrongful assertion of CEQA authority was a temporary taking.  As Brad writes, "[t]he Court of Appeal agreed…