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

First Amendment

ShareAfter nearly two hours of oral argument on Monday, a majority of the justices appeared sympathetic to the Biden administration’s argument that a federal court in New Orleans went too far in an order that would limit the government’s ability to communicate with social media companies about their content moderation policies. The lawsuit before the court on Monday stems from efforts by the Biden administration in 2021 to encourage companies to restrict misinformation about the COVID-19 vaccine. But the challengers – two states with Republican attorneys general, Missouri and Louisiana, and several individuals whose social media posts were removed or downgraded – say that the government’s efforts violate social media users’ rights to free speech. A federal judge in Louisiana agreed with the challengers that federal officials had violated the First Amendment by “coercing” or significantly encouraging” the content moderation…
Comstockery in the Court and on the Campaign - March 18, 2024 - Guest Blogger
Reva Siegel & Mary ZieglerWe have just posted Comstockery on SSRN, the first legal history of the Comstock Act since the antiabortion movement began arguing for reviving enforcement of the law in the wake of Dobbs v. Jackson Women’s Health Organization. The movement has advanced claims to revive enforcement of this 1873 federal obscenity law—whose long-unenforced provisions cover abortion-related articles—in courts and in the presidential campaign. This post provides a brief update.On March 26, Food and Drug Administration v. Alliance for Hippocratic Medicine will return to the Supreme Court. Representing the Alliance, the Alliance Defending Freedom (ADF), a leader of the Christian legal movement that has played key roles in 15 Supreme Court cases, including Dobbs and 303 Creative v. Elenis, has challenged the FDA’s authority to approve mifepristone, a drug used in more than half of all abortions, under the relevant laws and regulations. ADF has…
Jawbone. - March 18, 2024
"One day Sampson was walking alone/He looked down on the ground and he saw an old jawbone/He lifted up that jawbone and he swung it over his head/And when he got to moving ten thousand was dead" — Peter, Paul & Mary."Oh, Jawbone, when did you first go wrong? Oh, Jawbone, where is it you belong?" — The Band.From "Moral Suasion" (Wikipedia):"Jawboning"... is the use of authority to persuade various entities to act in certain ways, which is sometimes underpinned by the implicit threat of future government regulation. In the United States, during the Democratic administrations of Presidents John F. Kennedy and Lyndon B. Johnson, officials tried to deal with the mounting inflationary pressures by direct government influence or jawboning.... From an amicus brief in National Rifle Association v. Vullo, one of 2 free-speech cases up for oral argument in the Supreme Court today: In the…
Bully. - March 18, 2024
I'm reading "White House’s Efforts to Combat Misinformation Face Supreme Court Test/The justices must distinguish between persuading social media sites to take down posts, which is permitted, and coercing them, which violates the First Amendment."This is Adam Liptak's piece in the NYT about the case that's up for oral argument in the Supreme Court.[A 5th Circuit panel] said the [Biden administration] officials had become excessively entangled with the platforms or used threats to spur them to act.... [The administration argues] that the government was entitled to express its views and to try to persuade others to take action.“A central dimension of presidential power is the use of the office’s bully pulpit to seek to persuade Americans — and American companies — to act in ways that the president believes would advance the public interest,” Solicitor General Elizabeth B. Prelogar wrote.In response, lawyers for the…
Laura Portuondo on "Gendered Liberty" - March 18, 2024 - Jamie Abrams
Laura Portuondo has posted Gendered Liberty on SSRN. This article is forthcoming in the Georgetown Law Review in 2024. The abstract previews: Individual liberty is ascendant in constitutional law, but only for some. First Amendment doctrine has increasingly protected liberty...
Editor’s Note: The article “Media Evolution: Striking a Balance in the Age of Generative AI” delves into the transformative journey of news organizations as they navigate the burgeoning potentials and ethical considerations brought forth by AI technologies. Highlighting the groundbreaking initiatives of leading entities such as Le Monde and their collaborative ventures with AI pioneers like OpenAI, this article explores the industry’s cautious yet optimistic strides toward integrating AI into journalism. With a focus on enhancing journalistic integrity, embracing innovation, and maintaining the invaluable human touch in storytelling, the piece sheds light on the efforts to establish a balanced symbiosis between AI advancements and traditional journalistic values. It is a compelling read for professionals in cybersecurity, information governance, and eDiscovery, offering insightful perspectives on the evolving landscape of media, the proactive measures…

Anti-SLAPP

There's a new SLAPP law in town - March 14, 2024 - Second Circuit Civil Rights Blog
New York has long had a law on the books that makes it illegal to sue someone over their public advocacy. These were called anti-SLAPP suits. SLAPP stands for Strategic Lawsuits Against Public Participation. But the old anti-SLAPP law only applied in the context of advocacy for public permits, usually  land-use disputes. But the SLAPP law changed a few years ago to prohibits retaliatory lawsuits involving other forms of public advocacy. The case law is still developing in this area.The case is Whittaker v. Markle, issued by Ulster County Supreme Court on March 13. Christopher Watkins and I represent defendant Donnie Markle, a private businessman who testified before the County Legislature that an employee at the Ulster County Resource Recovery Agency (which runs the landfill and takes on other recycling duties), Willie Whittaker, was hoarding the compost that members of the community are able to purchase on their own. Following Markle's testimony, Willie's…
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. We have great news to share with you. This week, CGFoE launched the French Language Case Law Database. The database now hosts more than 100 briefs of landmark freedom of expression cases, and we will be adding new cases monthly. Six Special Collection Papers in French add to the database resources. They cover internet shutdowns, hate speech, the right to be forgotten, the African System of Human and Peoples’ Rights, the Inter-American System of Human Rights, and the Grand Chamber of the ECtHR. To celebrate the launch, join our ongoing webinar series in French with simultaneous…
The first and most obvious problem with the Bill is that it does nothing to address the most common scenarios and concerns in SLAPP cases.  In particular: the problem of a imbalance of resources between wealthy claimants and individual journalists and the problem of legal complaints made in relation to what are, in fact, true allegations. Wealthy claimants – no doubt wealthy claimants with reputation concerns will continue to be able to engage specialist lawyers from the outset who can be careful that no step will be taken which would mean that the action could be deemed to be a SLAPP.  These provisions will do nothing to diminish the cost and inconvenience heaped upon the defendant journalist, indeed probably they will add to them.  Defamation and other media proceedings – even when conducted with scrupulous propriety – are already inherently extremely complex, cumbersome and expensive. Indeed it is hard to avoid the conclusion that that the…
The Private Member’s Bill on SLAPPs, introduced by backbench Labour MP, Wayne David, has had its second reading in the House of Commons.  The “Strategic Litigation Against Public Participation Bill”, sets out to make a generalised anti-SLAPP provision, very much in line with the provisions in sections  194 and 195 of the Economic Crime and Corporate Transparency Act 2023 (“ECCTA”) which were confined to allegations relating to “economic crime”. Both the Bill and the ECCTA provisions respond to what the Ministry of Justice describes as the emergence of “a distinctive and often procedurally disruptive form of litigant … using legal action to harass, intimidate and silence those who question their conduct”.  But it is not clear what litigation is being referred to here.  Various groups like the Campaign against SLAPPs in Europe (“CASE”) produce figures for what are described as SLAPPs…
Last week, in Bristol Asphalt v. Rochester Bituminous Products, the SJC jettisoned two prior decisions and revised its directions to lower courts regarding how to handle “special motions to dismiss” under Massachusetts’ so-called “Anti-SLAPP” statute.  If you don’t know what SLAPP stands for, you can just stop reading now.  The purpose of the Anti-SLAPP statute is, in brief, to prevent large corporations from stifling petitioning activities by citizen groups.  Unfortunately, the statute is both vague and overbroad, resulting in it becoming “a frequent subject of [SJC] jurisprudence since” it was enacted.  The SJC’s effort to reform jurisprudence under the Anti-SLAPP statute is a reaction to the difficulties the statute has created.  It also likely resulted in part from a dissent in the Appeals Court decision in Bristol Asphalt from Justice Englander, which I think can best be described as a cri de…
From last week's California Court of Appeal decision in Cusi v. Gibson, written by Alameda Superior Court Judge Michael Markman, joined by Justices Therese Stewart and Marla Miller: Alison Gibson's appeal from the denial of her anti-SLAPP motion concerns the consequences of her demonstrably false online speech. Ramon Cusi sued Gibson after she had posted in a large Facebook community group that Cusi had been "fired for sexual harassment" from his position as principal of her daughter's middle school, as well as from a prior position at another school. Neither school, however, had terminated Cusi "due to allegations or a legal finding of sexual harassment." Cusi's attorney tried to get Gibson to take the post down, but Gibson instead posted an edited version of her comments and Gibson's husband left the attorney a voicemail refusing to take further action….. The court concluded that Cusi introduced enough evidence of knowing or…

California Constitution

States May Be Warming to Green Amendments - March 12, 2024 - Evan George
Last week, New Jersey lawmakers and a variety of stakeholders crammed into a statehouse committee room for a relatively rare legislative hearing. This 2-hour hearing centered on New Jersey’s proposed green amendment, which committee chair Senator Bob Smith described as “a very controversial topic” as he gaveled in the meeting. This green amendment would add a constitutional guarantee to a healthy, clean environment. Advocates have been pushing for such a hearing for years. Dozens of supporters spoke up for the legislation while a handful of corporate lobbyists and executives read statements against the bill. In 2024, these kinds of hearings may take place more and more in statehouses around the country as legislatures warm to the idea of so-called green amendments. At least 10 states so far this year have proposed legislation that would let voters decide in November whether they want the right to a clean, safe environment spelled out in their state…
01 March 2024 See how JMBM’s Global Hospitality Group® can help you.Click here for the latest articles on Hospitality Dispute Resolution. Why Judicial Reference is better than Arbitration for resolving Hotel Management Agreements & Hotel Franchise Agreements. Advanced analysis of Judicial Reference features. Hotel Management Agreements & Franchise Agreements by Mark S. Adams, Hotel Dispute LawyerPartner & Senior Member JMBM’s Global Hospitality Group®   In prior articles, we have looked at the options available to parties in resolving hotel industry disputes. See, Critical considerations for hospitality litigation, arbitration & alternate dispute resolution clauses in hotel contracts. See also, Is Judicial Reference better than Arbitration to resolve Hotel Contract disputes? The basics of Judicial Reference.  The authority for Judicial Reference in California comes from two sources. The first is the California Constitution which…
In Discovery Builders, Inc. v. City of Oakland (2023) 92 Cal.App.5th 799, the First District Court of Appeal held an agreement between a developer and the City of Oakland was unenforceable to the extent it prevented the city from imposing new impact fees in the future. The court reasoned such a provision constituted an impermissible contracting away of the city’s police power. Between 2004 and 2005, the city approved a vesting tentative map and final tract maps for a 400-unit housing project. The city’s approval required that the developer satisfy various terms and mitigate various environmental impacts. In 2005, the city and developer entered into a separate agreement (“2005 Agreement”), which set the terms by which the developer would compensate the city for employee services and outside consultants required to satisfy the agreed-upon terms and mitigation requirements. Development of the project began soon thereafter. In 2016, as development was…
Construction accidents in CA refer to mishaps on construction sites leading to harm. Construction site accidents occur during construction operations involving poor safety precautions, equipment malfunction, human mistakes, or carelessness. Identifying and addressing these issues can prevent Construction Site Injuries. Also, the state legislation has developed a few stunning workers’ rights that protect them from several losses involving both bodily and financial. Reach out to a construction accident law firm Gaylord & Nantais promptly when faced with a Construction Site Injury in CA. A skilled construction accident injury lawyer can assess your case, ensuring timely action and optimal legal guidance. An overview of the construction site safety features described in the California constitution. The California constitution emphasizes construction site safety through stringent regulations and provisions. It mandates a safe work environment, requiring…
Last year, I commented on the likely unconstitutionality of two California laws compelling forced speech: The California legislature has of late adopted the tactic of driving behavior by compelling speech.  SB 253 (Wiener), for example, compels disclosure of greenhouse gas emissions and SB 261 (Stern) requires disclosure of climate-related financial risks.  Both of these requirements clearly compel speech arguably in contravention of the First Amendment to the U.S. Constitution.  Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 61 (2006) ("Some of this Court's leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say."). I had previously noted that SB 253 was very similar to an earlier bill that did not make it into law. Yesterday, the Chamber of Commerce of the United States of America and several…
Article IV, Section 9 of the California Constitution provides "A statute shall embrace but one subject, which shall be expressed in its title".  This rather simple notion, absent from the United States Constitution, dates back over two millenia to the Roman Republic.  In 98 B.C.E., two consuls, Quintus Caecilius Metellus Nepos and Titus Didius fathered the enactment of the eponymous Lex Caecilia Didia.  Like its modern counterpart, the Lex Caecilia Didia prohibits a lex satura, or stuffed law.   The second century Roman grammarian Sextus Pompeius Festus described a "stuffed law" as a "lex multis aliis conferta legibus" or a law crowded with many others.  The great Roman lawyer Marcus Tullius Cicero described the Lex Caecilia Didia as follows in his Oratio de Domo Sua: Quae est, queso, alia vis, qua sententia Caecilia Legis et Didiae nisi hae, ne populo necesse sit in coniunctis rebus…