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

First Amendment

In a big announcement, the Lee County Attorney’s Office dismissed the remaining charges against the protestors arrested last fall while protesting the Dakota Access Pipeline. Over 50 people, ranging from their mid-teens to their late 70s, were arrested on charges including trespassing, interference with official acts, and disorderly conduct. While some pled guilty and agreed to pay their respective fines, the majority of protestors pled not guilty and requested a jury trial. In more than one instance, journalists covering the protests were arrested along with legal observers and protestors. Assistant Lee County Attorney Clinton Boddicker dropped the charges against one reporter, Aaron Murphy, along with those against 10 other protestors that only had one charge against them.    Those with more than one charge were offered a different deal. One woman, Jessica Garraway of Minneapolis, had her trespassing charge dropped if she agreed to plead guilty to a charge of…
WashU Expert: Trump’s Muslim ban based on animus - April 26, 2017 - Neil Schoenherr
While a handful of courts around the United States have found unconstitutional President Trump’s travel ban on Muslim-majority nations, these courts may have overlooked an important point, says an expert on law and religion at Washington University in St. Louis. “Courts across the country have rightly concluded that the Muslim travel ban is unjust and unconstitutional,” said Elizabeth Sepper, associate professor of law. “But they haven’t always recognized a key principle — that the First Amendment forbids the government from acting based on animus toward religion in general or a particular religious group.” SepperSepper, along with a group of leading constitutional law scholars from throughout the country, has filed an amicus brief in the U.S. Court of Appeals for the 4th Circuit, which is hearing the case International Refugee Assistance Project v. Trump. “Given all of President Trump’s public promises of a Muslim ban, it…
NEWSFLASH: Howard Dean’s First Amendment Is Really Just About Banning Criticism of Democrats and Leftists. Democrats and leftists have weak egos, and weak arguments. Thus, they have to ban criticism.
Pretending a Tax Payment Is For Something Else - April 26, 2017 - James Edward Maule
There’s a man in Montana who is unhappy that the county treasurer has not cashed the check he wrote in November to pay his property tax bill. After waiting several months for the check to be cashed, Scott Dion, according to this report, retained a lawyer to help sort out the situation. The lawyer notified the treasurer that failure to cash the check violated the First Amendment, and ran afoul of two state laws, one requiring financial institutions to report the deposit of public money, and the other requiring county treasurers to keep a record of tax payments. The lawyer accused the county treasurer of official misconduct and suggested that the treasurer be prosecuted.According to Dion, he writes something on the memo line of most of his checks. Earlier in 2016, he wrote “bulls—t” on the memo line of a tax payment check. He claims that the county treasurer have never failed to cash his checks in the past, despite whatever he had written.But perhaps the…
Steve Bright with Nina Totenberg   In 1991, I was still yearning to re-direct my career from the 25-lawyer corporate law firm that I had joined two years earlier , to something more meaningful. Ever since finishing law school, I went out of my way to meet birds of a professional and social justice feather, which ironically brought me in the same room with Clarence Thomas when he still headed the EEOC; followed with my standing shoulder-to-shoulder with a lone demonstrator outside the Chinese Embassy against the Tiananmen Square massacre; meeting Tiananmen Square surviving activists and Sigourney Weaver through the Lawyers Committee for Human Rights; taking out a High Times subscription in protest against a federal prosecutor’s subpoena of the magazine’s advertiser records; breaking bread with NORML’s then-national director Don Fiedler; reveling in Paul Krassner’s and others’ brilliant talks at the annual NORML conference;…
By Anne K. Walsh – Although the First Amendment has been more often discussed in the context of drug and medical device promotion, the Eleventh Circuit recently evaluated whether claims for a food also deserve similar constitutional scrutiny. In Ocheesee Creamery LLC v. Putnam, the Eleventh Circuit considered whether the State of Florida’s actions prohibiting the truthful use of the term “skim milk” violated the First Amendment, and held that the state’s restriction of the creamery’s description of the product as “skim milk” violated the Central Hudson test for commercial speech regulation. The Ocheesee Creamery is a seller of skim milk, which, consistent with standard practice, is produced by skimming the cream from the top of the milk. The leftover product is skim milk. Although the skimming process depletes the vitamin A from the milk, the creamery does not replace the lost vitamin A because it sells only all-natural,…

Anti-SLAPP

(Spoiler alert: suing the client is not the correct answer). The Opinion Glover hired and then fired Spencer as his divorce lawyer. Glover then posted this Yelp review: Worst ever. Had to fire him after I gave him a chance for well over a year. Paid him his $2,500 retainer, then paid him another $2,500 shortly after … and I still owe him another several thousand dollars! … all for his hunt-and-peck filing typing b.s. while he makes me watch. I’d be willing to wager that he was sitting on it and running the bill up until I produced money that she had not gotten her hands on. There was none that she had not gotten her hands on. She admitted that she spent the $40k in the safe. My order is _still_ based on substantially higher income earned the hard way in the Middle East, supporting my family by supporting those who protect our freedom. The arrears [have] become astronomical and ORS is threatening to take my license and passport … Yelled at me once when…
You surely recall the Hassell v. Bird ruling from last year. A lawyer was unhappy with a Yelp review about her. The lawyer sued the putative author (with dubious service of process), got a default ruling that the review was defamatory along with a removal injunction, and then delivered the injunction to Yelp and demanded removal. Yelp refused to remove the review. In a shocking turn of events, the California appeals court held that Yelp was required to remove the review. That ruling accomplished a rare trifecta. It screwed up not one, not two, but THREE cherished American legal principles: the First Amendment, Due Process, and Section 230. If it survives, the consequences of the appellate court’s ruling could be severe: it would create a giant workaround to Section 230, and it would create a synthetic right to be forgotten in the US. Fortunately, the California Supreme Court granted a petition to review. This blog post will summarize what’s happened since then.…
As you may recall, the FTC is pursuing 1-800 Contacts for antitrust violations based on 1-800 Contacts having sued and then settled with competitors who bought keyword ads on 1-800 Contacts’ trademarks. Recently, the FTC filed its “Complaint Counsel’s Corrected Pre-Trial Brief and Exhibits” in the Matter of 1-800 Contacts, Inc. This 90 page document, unfortunately swiss-cheesed by numerous redactions, lays out the FTC’s case. It’s a fascinating read, and I encourage you to read the whole thing. In this post, I’ll flag some of the highlights. Tangling with the U.S. Government. The first page lists 14 FTC lawyers as “Counsel Supporting the Complaint,” of which 12 are listed in the signature block. This is what it’s like to bring the full weight of the US government down on a defendant. 1-800 Contacts is no slouch, with 7 attorneys listed in the case, which sounds a lot of lawyers until you compare it to the FTC’s…
One of the reasons some people prefer a condo, just as others reject one, is that they come with rules. If you like the rules, then it’s the right place for you. If not, then maybe you would do better elsewhere. One common rule is no dogs. Regardless of your feelings toward critters, some people prefer it that way. Are they not allowed? Well, sometimes the answer is no, when the rules of private accommodations clash with government regulations. Two residents, Walters and Kromenhoek, had emotional support dogs authorized by their doctors (these were not “service dogs” as defined by the statute, though the plaintiffs called them service dogs). As you can imagine, other condo residents are not OK with the facial violation of the condo rules. Talkington blogged about the situation, and he and another resident Felice repeatedly complained about it for months. Walters and Kromenhoek sued Talkington and Felice for alleging violating 42 U.S.C. § 3617, which says:…
The Meaning of Life, Emoji Edition - April 10, 2017 - SHG
Over the past few years, definitions have fallen out of favor, replaced by Humpty-Dumptyisms  that serve their purpose in twitter-level discussion. But the vagaries that make total sense in the context of the echo chamber have yet to be accepted in court. As Eric Goldman discusses, there is a definitional void that needs fillin’. This is an interesting opinion from the Texas Supreme Court on citing Wikipedia as a dictionary. The underlying case involves an article in D Magazine titled “The Park Cities Welfare Queen.” The article purports to show that the plaintiff, Rosenthal, “has figured out how to get food stamps while living in the lap of luxury.” After publication, evidence emerged that the plaintiff has not committed welfare fraud. She sued the magazine for defamation. So what is a “Welfare Queen”? Much as it has become a common slur, roundly understood as such, is there an “official” definition? If so, who gets to…
This is an interesting opinion from the Texas Supreme Court on citing Wikipedia as a dictionary. The underlying case involves an article in D Magazine titled “The Park Cities Welfare Queen.” The article purports to show that the plaintiff, Rosenthal, “has figured out how to get food stamps while living in the lap of luxury.” After publication, evidence emerged that the plaintiff has not committed welfare fraud. She sued the magazine for defamation. The appeals court denied the magazine’s anti-SLAPP motion in part because it held the term “Welfare Queen,” as informed by the Wikipedia entry, could be defamatory. The Texas Supreme Court affirms the anti-SLAPP denial, but it also criticizes the appeals court for not sufficiently examining the entire article’s gist. Along the way, the court opines on the credibility and validity of Wikipedia as a dictionary. TL;DR = the Supreme Court says don’t treat Wikipedia like a dictionary.…

California Constitution

Eureka! Win $2,500 in California legal history writing competition - April 26, 2017 - California Supreme Court Historical Society
The California Supreme Court Historical Society is taking entries for its Selma Moidel Smith Law Student Writing Competition. The society is seeking original, unpublished scholarly writing on any aspect of California legal history, ranging from the Supreme Court itself, and its justices and decisions, to local events of legal historical importance – including biography, significant cases, independent state interpretation, the California Constitution, and reorganization of the court system, as well as areas of law such as criminal law, civil rights, family law, tort liability, environmental law, and taxation – in any time period from 1846 to the present. On the leading position and nationwide influence of the California Supreme Court, see the article on “Followed Rates” by Jake Dear and Edward W. Jessen. The deadline is June 30, 2017. The first-place winner receives $2,500 and publication in the society’s journal, California Legal History.…
PROPOSITION 57: HOW IT WORKS - April 24, 2017 - jsweriduk
PROPOSITION 57: THE PUBLIC SAFETY AND REHABILITATION ACT INTRODUCTION Many people have called us about Proposition 57, how it works, and who qualifies. As a result, we have decided to cover this topic to hopefully enlighten and inform you about the law and what we anticipate it will look like in action. Below is what we know at this point. Guidelines still have to be drafted by the CDC, so until that is done, there is no mechanism to apply for early parole via Proposition 57 as of yet. Once those guidelines are created and approved of by Governor Brown and the parole board in Sacramento, then will they start accepting applications for early parole via Proposition 57. In November 2016, Proposition 57 was passed by the people of California. The language relating to adult sentencing: Section 32 is added to Article I of the California Constitution to read: (a)    The following provisions are hereby enacted to enhance public safety, improve rehabilitation, and avoid…
In our first post, the Stoel Rives’ Energy Team provided a summary of energy related bills introduced by California legislators during the first half of the 2017-2018 Legislative Session. Provided below is a summary of changes to bills we have been following, as well as a list of energy related bills not included in our previous entry. We will continue to monitor and update all energy related bills as the legislative session proceeds. Amended Bills AB 35 (Quirk, D): Residential and nonresidential buildings: energy savings program.  STATUS: Introduced December 15, 2016; amended March 23, 2017. AB 35 was previously drafted to require agencies implementing energy efficiency programs to establish metrics and collect and use data systematically across those programs to increase the performance of those programs in low-income communities.  As amended, AB 35 now proposes changing the State Energy Resources Conservation and Development Commission’s program to…
California Chamber of Commerce, et al. v. California Air Resources Board, et al., Case No. C075930 (Cal. Ct. App. 3d. Dist., 2017). On April 6, the California Court of Appeal for the Third District issued its long-awaited decision in the consolidated lawsuits challenging the greenhouse gas (“GHG”) emission allowance auctions, which are a key component of the California Air Resources Board’s (“CARB”) Cap-and-Trade Program.  The court held that CARB has the authority to establish the auctions and that they do not constitute an illegal tax.  The second holding is key and breaks new legal ground; it also was made over a strong dissent.  As the court put it, “the hallmarks of a tax are: 1) that it is compulsory; and 2) that the payor receives nothing of particular value for payment of the tax.”  (Op. at 5.)  The auction system is not a tax because 1) “the purchase of allowances is a voluntary decision driven by…
In recent years political smearing and outright lying have come to dominate campaigns in California. Candidates are spending less and less time discussing important issues and their own qualifications and more and more time telling falsehoods about their opponents. Although the above quotation sounds as if it could have been written today, it was in fact penned more than three decades ago as part of the successful ballot argument in favor of Proposition 20.  As a result of the electorate’s approval of Proposition 2o, the California Constitution now provides that no person who is found liable in a civil action for making libelous or slanderous statements against an opposing candidate during an election campaign shall retain the seat to which elected when it is judicially found that: the libel or slander was a major contributing cause in the defeat of an opposing candidate, and the statement was made with knowledge that it was false or with…
Private emails used for public business have been more than a little bit of a sticking point for several high profile politicians.  It would hardly be an exaggeration to say that private emails characterized our most recent election.  In a streak of extreme irony, it even came to light a few weeks back that Vice President Mike Pence had used his private email account to conduct official government business while he was Governor of Indiana.  The difference between the two incidents–Clinton and Pence–being that while Clinton sent emails through a server set up for the private use of her family; Pence sent emails from a plain Jane AOL account. Frankly, both of these incidents are far from a new concept and neither deserved anywhere near the scrutiny they received.  It’s remarkably common for government agents to use private email accounts–so much so that a recent California Supreme Court case pitting the City of San Jose against one Ted…