This interview has been edited for length and clarity.* Marjorie Heins is a writer, former civil rights/civil liberties attorney, and past director of the Free Expression Policy Project (FEPP) and the American Civil Liberties Union's Arts Censorship Project. She is the author of "Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge," which won the Hugh M. Hefner First Amendment Award in Book Publishing in 2013, and "Not in Front of the Children: Indecency, Censorship, and the Innocence of Youth," which won the American Library Association's Eli Oboler Award for Best Published Work in the Field of Intellectual Freedom in 2002.  Her most recent book is "Ironies and Complications of Free Speech: News and Commentary From the Free Expression Policy Project." She has written three other books and scores of popular and scholarly articles on free speech, censorship, constitutional law, copyright, and…

There's been a lot of recent legal action involving the Horseracing Integrity and Safety Authority. The Fifth Circuit found HISA unconstitutional in 2022; Congress changed the statute within about six weeks; in a parallel case, the Sixth Circuit found that the statutory change had fixed the problem; the Fifth Circuit found that the statutory change partially fixed the problem but still struck down HISA's enforcement (but not regulatory) power. Meanwhile, in yet another parallel challenge, the Eighth Circuit upheld HISA. Because none of the parties in the latest Fifth Circuit iteration got exactly what they wanted, basically everyone is petitioning for cert—and what with the circuit split and the fact that the Fifth Circuit partly struck down a federal statute—a cert grant is very likely. But there's still some dispute about whether the cert grant should be limited to the "private nondelegation doctrine" question or also include an…

Minnesota recently enacted a law aimed at restricting misleading AI deepfakes aimed at influencing elections; the law is now being challenged on First Amendment grounds in Kohls v. Ellison. To support the law, the government defendants introduced an expert declaration, written by a scholar of AI and misinformation, who is the Faculty Director of the Stanford Internet Observatory. Here is ¶ 21 of the declaration: [T]he difficulty in disbelieving deepfakes stems from the sophisticated technology used to create seamless and lifelike reproductions of a person's appearance and voice. One study found that even when individuals are informed about the existence of deepfakes, they may still struggle to distinguish between real and manipulated content. This challenge is exacerbated on social media platforms, where deepfakes can spread rapidly before they are identified and removed (Hwang et al., 2023). The attached bibliography provides this cite: Hwang, J., Zhang, X., &…

The US Supreme Court on Monday refused to hear Alaskan residents’ challenge against a ballot measure that requires public disclosure of political donations. The plaintiffs argue that the requirement violates their constitutional right to free speech. The plaintiffs initially requested a preliminary injunction to prevent the provisions of Ballot Measure 2 from taking effect. Specifically, these provisions include an “individual-donor contribution-reporting requirement,” which stipulates that within twenty-four hours, election donors must report the sources of their contributions if they exceed $2,000 annually; and a political advertisement-related requirement, which requires “the disclosure of certain identifying information about donors.” Whether the respective provisions of Ballot Measure 2 violate the First Amendment remained in the plaintiff’s petition to the US Supreme Court. One of the plaintiffs’ reasons for granting the…

We at the International Center for Law & Economics (ICLE) filed an amicus brief earlier this month to the U.S. District Court for the Northern District of California in the NetChoice v. Bonta case. It was an updated version of the brief we filed earlier this year before the 9th U.S. Circuit Court of Appeals. Our more recent amicus was in support of NetChoice’s second motion for preliminary injunction. The 9th Circuit had upheld part of the original preliminary injunction against provisions of California’s Age-Appropriate Design Code (AADC) Act that called for data-protection impact assessments (DPIAs). The panel, however, remanded the rest of the law for reconsideration as to whether the case was properly brought as a facial challenge, instead of as-applied to NetChoice’s members.  Our brief argued that, regardless whether the law is considered as a facial or as-applied challenge, restrictions on data collection for the purposes of curation and…

This quarterly update highlights key legislative, regulatory, and litigation developments in the third quarter of 2024 related to artificial intelligence (“AI”) and connected and automated vehicles (“CAVs”).  As noted below, some of these developments provide industry with the opportunity for participation and comment. I.     Artificial Intelligence Federal Legislative Developments There continued to be strong bipartisan interest in passing federal legislation related to AI.  While it has been challenging to pass legislation through this Congress, there remains the possibility that one or more of the more targeted bills that have bipartisan support and Committee approval could advance during the lame duck period. Senate Commerce, Science, and Transportation Committee: Lawmakers in the Senate Commerce, Science, and Transportation Committee moved forward with nearly a dozen AI-related bills, including…

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. As Donald Trump strides back into the US presidency, we are thinking of the potential stakes for freedom of expression. Responding to the 2016-2020 record, comprising a stack of lawsuits to silence critics and spread false narratives, and a belligerent campaign, the press freedom community has been sounding the alarm. In a special report for the Committee to Protect Journalists (CPJ), Katherine Jacobsen warned of more violence against media workers – not just in the US but also globally. In a report for the Coalition for Women in Journalism, Máire Rowland and Inge…

This post was co-written by EFF legal intern Gowri Nayar. X’s lawsuit against the nonprofit Center for Countering Digital Hate is intended to stifle criticism and punish the organization for its reports criticizing the platform’s content moderation practices, and a previous ruling dismissing the lawsuit should be affirmed, EFF and multiple organizations argued in a brief filed this fall.  X sued the Center for Countering Digital Hate (“CCDH”) in federal court in 2023 in response to its reports, which concluded that X’s practices have facilitated an environment of hate speech and misinformation online. Although X’s suit alleges, among other things, breach of contract and violation of the Computer Fraud and Abuse Act, the case is really about X trying to hold CCDH liable for the public controversy surrounding its moderation practices. At bottom, X is claiming that CCDH damaged the platform by critically reporting on it. CCDH sought to…

On Monday 28 October, Johnson J sentenced far-right activist, Stephen Yaxley-Lennon, who goes by the name Tommy Robinson, to 18 months in prison for contempt of court in the case of HM Solicitor General v Yaxley-Lennon (aka Tommy Robinson) [2024] EWHC 2732 (KB). The High Court heard that Yaxley-Lennon had admitted to 10 breaches of an injunction imposed in 2021 relating to the libel case of Hijazi v Yaxley-Lennon. In that case, Yaxley-Lennon had made untrue allegations against a Syrian refugee, which he was ordered not to repeat by the court. In breach of the order, Yaxley-Lennon repeated the accusations in a film called “Silenced” which he posted online and aired to thousands of his supporters in Trafalgar Square this July.  The sentence is ‘coercive’ meaning that Yaxley-Lennon could apply to have it partly discharged if he demonstrates a commitment to complying with the injunction going forward, for example by removing the film from social media.…

Phoebe Bridgers. Photo from Raph_PH, CC BY 2.0 , via Wikimedia Commons This case involves three people: Chris Nelson, “a well-established music industry entrepreneur.” Emily Bannon, an alleged former girlfriend and victim of Nelson’s behavior. Phoebe Bridgers (photo on the right), “a singer, songwriter, and guitarist” with a large Instagram audience. Nelson claims Bridgers participated in 3-ways with him and Bannon, and that Bridgers and Bannon maintained their relationship after Nelson and Bannon broke up. “In October 2020, Bannon made a lengthy post to Instagram summarizing negative experiences of persons doing business with Nelson and of his romantic partners, and recounting her own bad experiences with him.” Two days later, Bridgers made an Instagram post affirming Bannon’s post about Nelson’s behavior, adding “I witnessed and can personally verify much of the…

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. “Although it is said that laughter is the best medicine, examples from our work show it is often a bitter pill to swallow,” Barbora Bukovská, Senior Director for Law and Policy, ARTICLE 19, addressed our audience at Columbia University last Friday. In case you missed it: We gathered to discuss humor and its complexity in the context of free speech and the digital landscape at Panel and Roundtable What’s in a Joke? Humor in Free Speech Jurisprudence and Content Moderation. We welcomed humor researchers, lawyers, judges, activists, free speech scholars, and other guests. More than one hundred…

It's a bit ironic -- or at least caused me sly amusement -- that this appeal involves a (successful) anti-SLAPP motion filed against a cross-complainant whose name is Bob . . . Slap.It's juvenile, I know, to find humor in someone's surname. Still(The word "SLAPP" appears 47 times in the opinion and the word "Slap" appears 98 times, so it's kinda hard to miss the similarity.)

In Grafton Partners L.P. v. Superior Court, 36 Cal.4th 944 (2005), the California Supreme Court found that pre-dispute contractual jury trial waivers were unconstitutional under Article 1, Section 16 of the California Constitution.  In  2019, I penned a post discussing a case in which the Court of Appeal invalidated a forum selection clause that included a jury trial waiver.  Last week, the interplay between a pre-dispute jury waiver and forum selection was again at issue.   In Comedy Store v. Moss Adams LLP, 2024 WL 4783868 (Cal. Ct. App. Nov. 14, 2024), the parties agreed to litigate in federal court in Los Angeles.  When the U.S. District Court dismissed the action for lack of jurisdiction, the plaintiff filed a complaint in the California Superior Court.  The defendant responded by bring a motion to dismiss or stay the action based on improper venue, citing the parties' written agreement to resolving disputes in the state or…

Following this past Tuesday's presidential election, California Governor Gavin Newsom proclaimed an special session of the California legislature.   The Governor's proclamation specified two reasons for the special session: Provide additional funding to the California Department of Justice and other agencies, departments, boards, and offices within the Executive Branch to support the ability to immediately file affirmative litigation challenging actions taken  by the incoming Trump Administration, defend against litigation or enforcement actions brought by  the incoming Trump Administration, and take administrative action authorized under state law to  mitigate the impacts of actions by the incoming Trump Administration. Make conforming changes to existing law consistent with the preceding paragraph. A special session is required because under Rule 51(b)(3) of the legislature's joint rules, the legislature went into recess on…

The California Supreme Court has declined to review a case involving revived sexual assault claims against public entities, with Justice Joshua Groban casting the lone dissenting vote. The case in question is West Contra Costa Unified School District v. Superior Court, which stems from allegations of sexual assault by a high school counselor between 1979 and 1983. AB 218 provided a three-year window for plaintiffs to bring childhood sexual assault claims against public entities, even if these claims would otherwise be barred by statutes of limitations or claim presentation requirements. The First District Court of Appeal, Division Five, rejected constitutional challenges to this 2019 legislation. The West Contra Costa Unified School District argued that AB 218 violated the California Constitution’s provision prohibiting the Legislature from making “any gift” to an individual. Continue reading → The post California Supreme Court Denies Review in AB 218…

Senate Bill (SB) 399, the “California Worker Freedom from Employer Intimidation Act” (“Act”), will prohibit compelled attendance at employer-mandated meetings to discuss political and religious matters, including the decision to join or support a labor union. The Act adds the new Labor Code section 1137, and is effective January 1, 2025. Prohibition Against Employer-Mandated Political and Religious Meetings: The Act strictly prohibits employer-mandated meetings, sometimes referred to as “captive audience meetings,” in relation to a union’s organizing effort, or in which employees are required to attend and listen to the employer’s opinion about religious or political matters, including the decision to join or support a labor organization. A meeting is considered mandatory if an employee is subject to “discharge, discrimination, retaliation, or any other adverse action” because the employee declines to attend the…

By Julius Young, Richard Jacobsmeyer, Barry Bloom, Editors-in-Chief for Herlick, California Workers’ Compensation Handbook [Note: This article is excerpted from the upcoming 2025 edition of Herlick, California Workers’ Compensation Handbook. Sections below refer to the Handbook.] The after-effects of the COVID epidemic are still evident in the California system. Since 2020, many workers’ compensation stakeholders have changed their operational models. Large numbers of insurance brokers, employer HR departments, insurance and TPA claims departments, attorneys, and other companies servicing the workers’ compensation industry shifted to a remote work model. Depositions now frequently take place over Zoom or other video platforms. Video and telephonic medical appointments became common, although in person treatment has seen a resurgence. Some QME and AME appointments continue to be done via telehealth. For the last several years, most conferences and some…

In a published decision filed October 7, 2024, the Third District Court of Appeal affirmed the trial court’s judgment rejecting a CEQA challenge to the revised EIR for the State Capitol renovation project based on recent legislation exempting that project from CEQA.  Save Our Capitol! v. Department of General Services (Joint Committee on Rules of the California State Senate and Assembly) (2024) ___ Cal.App.5th ___.  This was the Court’s third published appellate decision in the CEQA litigation over the controversial project; see my posts dated January 2 and January 23, 2023 and May 23, 2024, covering the Court’s initial two published decisions finding flaws in the project EIR, and in the trial court’s premature discharge of the remedial writ, and my post dated July 11, 2024 covering the dispositive statutory CEQA exemption enacted through SB 174. The Court of Appeal’s Opinion Little more need be said regarding the substantive…