Genelle Belmas, Ph.D. Cal State Fullerton

Genelle Belmas, Ph.D.
Cal State Fullerton
CJ Roberts
California Supreme Court (left to right): The Honorable Carol A. Corrigan,
The Honorable Kathryn M. Werdegar, The Honorable Joyce L. Kennard,
Chief Justice Tani Gorre Cantil-Sakauye, The Honorable Marvin R. Baxter,
The Honorable Ming W. Chin, The Honorable Goodwin Liu.
Perez v. Dietz Development LLC (Va. 2012): Virginia
Supreme Court vacated preliminary injunction against
a homeowner who had posted harsh reviews of a
contractor on and
Contractor Christopher Dietz sued homeowner Jane Perez
for $750,000 in libel damages; she had posted scathing
online reviews accusing Dietz of damaging her residence,
stealing jewelry, and employing deceitful billing practices
Judge issued preliminary injunction requiring her to delete
some critical comments, except those specifically about
Dietz’s work on her residence
On Dec. 28, 2012, the VA Supreme
Court issued a brief order vacating
the injunction, stating simply that
the injunction “was not justified”
Rahbar v. Batoon (Cal 2013): California
Supreme Court declined to revive a
dentist’s lawsuit against a patient who
had posted a negative online review on
Jennifer Batoon wrote in 2008: “DON’T GO HERE. MOST
PAINFUL DENTIST EVER.” and complaining about the
treatment, billing, and communication skills; the dentist,
Gelareh Rahbar, sued for defamation and invasion of privacy
Batoon moved to strike under state anti-SLAPP statute (“a
cause of action against a person arising from any act of that
person in the furtherance of the person’s right of petition or
free speech…in connection with a public issue shall be
subject to a special motion to strike”)
Batoon won $43k in attorney’s fees, and Rahbar filed a second suit
and lost both trial and appeal; CA Supreme Court declined to review
the dentist’s challenge
Six states have laws already, including
A.B. 1844: September 27, 2012;
Signed by Governor. Chapter 618
Prohibits employer from requiring or requesting an
employee or applicant for employment to disclose user
name or password for the purpose of accessing personal
social media, to access personal social media in the
presence of the employer, or to divulge any personal social
media. Prohibits employer from discharging, disciplining,
threatening to discharge or discipline, or otherwise
retaliating against employee or applicant for not complying
with a request or demand by a violating employer
A.B. 25: Status: Dec. 3, 2012; Introduced
This bill would apply the provisions described
above to public employers. The bill would state that
its provisions address a matter of statewide interest
and apply to public employers generally, including
charter cities and counties.
Pending legislation in at least 17 states
Other states with laws:
Delaware, Illinois, Maryland,
Michigan and New Jersey
Not in Oregon: Obsidian Finance Group, LLC v. Cox (2012)
Crystal Cox criticized Obsidian Financial Group and its founder on her
blog. Judge found for OFG, saying the Oregon shield law did not cover
bloggers, as Cox was not “affiliated with any newspaper, magazine,
periodical, book, pamphlet, news service, wire service, news or feature
syndicate, broadcast station or network, or cable television system”
defined by the law. Moreover, no First Amendment implications applied
because Cox was not a media professional, the issues were not of public
interest, and OFG and its founder were not public figures
But yes in Illinois: John-Byrnes Co. v. TechnoBuffalo (2012)
Printing company sued because someone from its company leaked
images of a soon-to-be released cell phone to a tech blog; the blog
claimed privilege. Judge agreed: “Under the ordinary meaning of ‘news,’
the article at issue presented a report on recent events…It also supplied
previously unknown information… [W]ithin the
present definitions under the act, this Court must
find TechnoBuffalo is a news medium, its
employees are reporters … and TechnoBuffalo is
protected by the Illinois reporter’s privilege”
Glik v. Cunniffe (1CA 2011): First Circuit said Simon Glik
was exercising his First Amendment rights to record officers
in public: “[A] citizen’s right to film government officials,
including law enforcement officers, in the discharge of their
duties in a public space is a basic, vital, and wellestablished liberty safeguarded by the First Amendment”
ACLU v. Alvarez (7CA 2012): ACLU challenged Illinois
wiretapping law that would make public recording of an
officer a class 1 felony (video recording was OK, but not
audio recording): Seventh Circuit said, “The ACLU wants to
openly audio record police officers performing their duties
in public places and speaking at a volume audible to
bystanders. Communications of this sort lack any
‘reasonable expectation of privacy’ for purposes of the
Fourth Amendment”
Brownmark Films, LLC v. Comedy Partners (7CA
2012): Yes, if it’s a clear parody!
Samwell, creator of the Internet viral video “What
What (In The Butt),” took on South Park’s character
Butters’ parody; court found for Comedy Partners
“When a defendant raises a fair use defense claiming his
or her work is a parody, a court can often decide the
merits of the claim without discovery
or a trial. When the two works in this
case are viewed side-by-side, the South
Park episode is clearly a parody of the
original WWITB video, providing
commentary on the ridiculousness of the
original video and the viral nature of
certain YouTube videos”
“The Schools and Local Public Safety Protection Act of
2012” contained a little-publicized provision that
removed a loophole for local governments that balked
at spending their own money to comply with the
Brown Act if the state government was not paying for it
“Any requirement that a local agency comply with Chapter 9
(commencing with Section 54950) of Part 1 of Division 2 of Title 5 of
the Government Code, with respect to performing its Public Safety
Services responsibilities, or any other matter, shall not be a
reimbursable mandate under Section 6 of Article XIII B”
Any expense incurred by local
governments’ compliance with
the Brown Act is not a reimbursable
expense – governments must simply
absorbs those costs
Amendments will:
modify the list of “personal
information” that cannot be
collected without parental notice and consent,
clarifying that this category includes geolocation
information, photographs, and videos;
offer companies a streamlined, voluntary and
transparent approval process for new ways of
getting parental consent;
close a loophole that allowed kid-directed apps and
websites to permit third parties to collect personal
information from children through plug-ins without
parental notice and consent;
Amendments will:
extend the COPPA Rule to cover
persistent identifiers that recognize users over time
and across different websites or online services,
such as IP addresses and mobile device IDs;
strengthen data security protections by requiring
covered website operators and online service
providers to take reasonable steps to release
children’s personal information only to companies
capable of keeping it secure and confidential;
require that website operators adopt reasonable
procedures for data retention and deletion; and
strengthen the FTC’s oversight of self-regulatory
safe harbor programs
R.J. Reynolds v. FDA (2012): No – rather than the
government’s stated goal of educating consumers, the
court said, “[t]he Government’s reliance on the graphic
images—which were chosen based on their ability to
provoke emotion…—coupled with the toll free number,
further supports the conclusion that the Government’s
actual purpose is to convince consumers that they
should ‘QUIT NOW’”
Moreover, plaintiffs
had shown the
government could
achieve its goals
without burdening
tobacco companies’
speech rights; the government lost on appeal
Supreme Court dodged First
Amendment questions about indecency
Instead, it relied on Fifth Amendment due process
grounds to find the FCC’s policies regarding fleeting
expletives to be unconstitutionally vague
Kennedy, writing for the majority, said, “The Commission
failed to give Fox or ABC fair notice prior to the broadcasts
in question that fleeting expletives and momentary nudity
could be found actionably indecent. Therefore, the
Commission’s standards as applied to these broadcasts were
vague, and the Commission’s orders must be set aside”
Ginsburg, concurring in the judgment, urged the
reconsideration of Pacifica, agreeing with Thomas in the
2009 Fox case
Does the First Amendment protect
knowingly false speech?
Court overturned the Stolen Valor Act, 6-3
Calling Xavier Alvarez’s lies “a pathetic attempt
to gain respect that eluded him,” Kennedy
wrote that there is no “general exception to the
First Amendment for false statements”
Dissenters said the majority ignored “a long line of
cases recognizing that the right to free speech does
not protect false factual statements that inflict real
harm and serve no legitimate interest”
Is a witness in a grand jury proceeding entitled
to the same absolute immunity from suit under
Section 1983 as a witness who testifies at trial?
Yes, unanimously: grand jury witnesses, like trial
witnesses, are entitled to absolute immunity
from any liability under 1983 arising from their
Section 1983: a federal cause of action against any
person who, acting under color of state law, deprives
another of federal rights – a means of enforcing civil
Can a plaintiff who alleges only mental and
emotional injuries establish “actual damages”
within the meaning of the civil remedies
provision of the Privacy Act?
No: Alito said that “actual damages” is limited to
pecuniary loss only and does not include claims
involving mental and emotional distress
Sotomayor dissented, saying that the majority’s
approach “cripples the act’s core purpose of
redressing and deterring violations of privacy
Billy Joe Reynolds did not register as required by the
Sex Offender Registration and Notification Act
(SORNA), saying it was an ex post facto law as applied
to him, and 3CA upheld SORNA’s retroactive
Court disagreed: SORNA does not require pre-Act
offenders to register before the Attorney General
validly specifies that the Act’s registration provisions
apply to them
So Reynolds won, but the case was remanded and the lower
courts will have to decide if the original law is acceptable
The First Amendment does not permit a public-sector
union to impose a special assessment without the
affirmative consent of a member upon whom it is
Three holdings:
(1) When a public-sector union imposes a special
assessment or dues increase, the union must provide fresh
notice (7-2);
(2) the union cannot require nonmembers to pay the
increased amount unless they opt in by affirmatively
consenting (5-4); and
(3) the case was not rendered moot by the union’s postcertiorari offer of a full refund (unanimous)
Steven Howards and his son were at a Colorado mall
where then-VP Cheney was appearing; Secret Service
agents arrested Howards after he laid a hand on the VP
and after they’d heard him talk smack about the VP
Court supported the Secret Service
Thomas wrote that the question was not one of First
Amendment retaliation, but rather the “right to be free
from a retaliatory arrest that is otherwise supported by
probable cause”—and there is no such right
Ginsburg, concurring, added that the agents “were duty
bound to take the content of Howards’ statements into
account in determining whether he posed an immediate
threat to the Vice President’s physical security”
2CA said that Supap Kirtsaeng, a Thailand native,
violated copyright law by importing
foreign-made editions of U.S.
textbooks into the U.S. to sell on eBay
The first-sale doctrine does not apply to
goods manufactured in a foreign country
Question before the Court: How do Section 602(a)(1) of the
Copyright Act, which prohibits the importation of a work
without the authority of the copyright’s owner, and Section
109(a) of the Copyright Act, which allows the owner of a
copy “lawfully made under this title” to sell or otherwise
dispose of the copy without the copyright owner’s
permission, apply to a copy that was made and legally
acquired abroad and then imported into the United States?
Question before the Court: Whether the United States
Leadership Against HIV/AIDS, Tuberculosis, and Malaria
Act of 2003, 22 U.S.C. § 7631(f), which requires an
organization to have a policy explicitly opposing
prostitution and sex trafficking in order to receive
federal funding to provide HIV and AIDS programs
overseas, violates the First Amendment
2CA said the law “does not merely require recipients of
Leadership Act funds to refrain from certain conduct, but
goes substantially further and compels recipients to
espouse the government’s viewpoint”
(1) Whether Section 3 of the Defense of Marriage
Act (DOMA) violates the Fifth Amendment’s
guarantee of equal protection of the laws as applied to
persons of the same sex who are legally married under the
laws of their State; (2) whether the Executive Branch’s
agreement with the court below that DOMA is
unconstitutional deprives this Court of jurisdiction to decide
this case; and (3) whether the Bipartisan Legal Advisory
Group of the House of Representatives has Article III standing
in this case
(1) Whether the Equal Protection Clause of the Fourteenth
Amendment prohibits the State of California from defining
marriage as the union of a man and a woman; and (2)
whether petitioners have standing under Article III, § 2 of the
Constitution in this case
A.B. 1723 (Fuentes): Requires live video transmissions of
meetings of the Board of Governors of the CA Community
Colleges, the Trustees of the CA State University and the CA
Postsecondary Education Commission
In effect January 1; requires the post-secondary boards to archive
and post the video and audio transmissions on the entities’ Internet
Web sites for at least 12 months and within 48 hours following initial
S.B. 1001 (Yee): Requires campaign committees to pay a $50
annual registration fee on and increases by $25 the amount
lobbyists must pay when they register with the state, to pay
for improvements to a website, run by the Secretary of
State, tracking lobbying and campaign finance activity
Expected to generate $600k
A.B. 744 (Pérez): Establishes the Office of
Intellectual Property to identify, track and provide
policy guidance for state agency management of
intellectual property (IP) developed by state
employees or with state funds; would authorize IP
records and information to be shared among state
agencies and departments but prohibits them from
divulging information that is not expressly allowed
or public
Exempts IP agreements administered by the UC and CSU
and agreements governed by the California Stem Cell
Research and Cures Bond Act
A.B. 1270 (Ammiano): Would restore the ability of
journalists to conduct prearranged interviews and
exchange confidential correspondence with
particular state prison inmates, and to do so using
pens, pencils, paper, cameras and other recording
devices when conducting these interviews
Gov. Brown: bill goes too far; “giving criminals celebrity
status through repeated appearances on television will
glorify their crimes and hurt victims and their families”
S.B. 1002 (Yee): Would authorize a state or local
agency, when requested by a person, to provide an
electronic record in a format in which the text in
the electronic record is searchable by commonly
used software, and require the requester to pay for
converting the record into a searchable format
Gov. Brown: “This bill would require the State Chief Information
Officer to provide a report to the Legislature on the feasibility of
providing public records in a specific electronic format. The role of
the State Chief Information Officer is to make sure that state
government uses information technology efficiently and effectively –
including providing public records electronically when possible.
Another legislative report on electronic public records isn't
In Bland v. Roberts (E.D. Va. 2012), Judge Raymond
Jackson said that the click of a “Like” was not really
speech. Comparing earlier cases in which Facebook
posts (with words) had been protected by the First
Amendment, he drew a distinction – it’s not speech if
you just click…
“These illustrative cases differ markedly from the case at hand in one
crucial way: Both [cases] involved actual statements. No such
statements exist in this case. Simply liking a Facebook page is
insufficient. It is not the kind of substantive statement that has
previously warranted constitutional protection. The Court will not
attempt to infer the actual content of [plaintiff’s] posts from one click of
a button on Adams’ Facebook page. For the Court to assume that the
Plaintiffs made some specific statement without evidence of such
statements is improper. Facebook posts can be considered matters of
public concern; however, the Court does not believe [plaintiffs] have
alleged sufficient speech to garner First Amendment protection.”
thanks for your attention!