The Results of the Shootout at the Amicus Corral

In a case that attracted amicus participation of noteworthy proportions, the California Supreme Court holds that a medical provider has no constitutional defense, based on freedom of religion and freedom of speech, to a claim for sexual orientation discrimination under California’s Unruh Act (Civ. Code, § 51).  The doctor defendants had refused artificial insemination services to a lesbian and contended that they did so for religious reasons.  The Supremes find no such exception under the federal or state constitutions.  The court finds that because the Act is a facially neutral and valid law of general applicability, the incidental infringement on religious liberty that compliance requires cannot sustain a constitutional defense to a sexual orientation discrimination claim.

Bikers’ Colors — First Amendment Claim Not Dead

The Ninth Circuit has just ordered en banc rehearing in the First Amendment case of the bikers ejected from the Garlic Festival in Gilroy on the ground that the club jackets they were wearing constituted “gang insignia”  (Villegas v. City of Gilroy, case no. 05-15725 (9th Cir., Sept. 14, 2007)).  I missed covering the original case; it was published on the day I launched this blog and some other cases caught my eye that day instead. 

Decision of the Day was there.  He says that the original panel “blithely affirmed” the dismissal of the bikers’ First Amendment claims because four of them gave four different answers as to what they were trying to express through the design of their jackets.  DotD concludes, “Looks like the en banc Ninth doesn’t think that poor deposition preparation should be the death knell for First Amendment claims.”  See his post on the en banc rehearing for a link to his original coverage.

Jurisdiction over Church Property Issues

When does a Southern Baptist church cease to be a Southern Baptist church?  I know that sounds like a set-up, but there’s no punchline here.  It’s a serious question, and it was at the heart of a dispute decided by the a Monterey County Superior Court.

In Central Coast Baptist Assn. v. First Baptist Church of Los Lomas, case no. H029958 (6th Dist. August 23, 2007), a reversionary clause in First Baptist’s constitution provided that its assets would pass to Central Coast, a voluntary association of Baptist churches, in the event of a “dissolution or winding up” of First Baptist or if it should “cease to be a Southern Baptist Church.”  Central Coast brought suit to enforce the reversionary clause, contending it was triggered by the attempted takeover of First Baptist by New Life Community Church and its Pastor.  After a bench trial ordered enforcement of the reversionary clause based on its findings that FIrst Baptist had “ceased to function as a Southern Baptist Church” and had “de facto dissolved.”

The court finds that the trial court lacked jurisdiction to inquire into the first condition for triggering the clause — whether First Baptist had ceased to be a Southern Baptist Church — because the question required resolution of disputes over church doctrine.  Such an inquiry violates the First Amendment.

However, the First Amendment does not bar inquiry into the existence of the second condition — dissolution or winding up — because the issue can be resolved by application of neutral legal principles to the governing church bylaws and constitution.  The court finds plenty of evidence — not the least of which were resolutions, properly adopted according to the procedures in the bylaws, to dissolve the church and turn the assets over to Central Coast — to support the trial court’s finding that First Baptist had “de facto dissolved.”

Legal Blogosphere Reacts as Ninth Circuit Puts the Brakes on CDA Immunity for Online Services

Yesterday’s Ninth Circuit decision in Fair Housing Council v., LLC, case no. 04-56916 (May 15, 2007) has the digital legal world abuzz . . . as one should expect of the latest decision on the scope of immunity afforded to online services by the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c).

In this case, two municipal fair housing councils sued, an online clearinghouse for those seeking to obtain roommates or move in as one. They alleged that the website published discriminatory roommate preferences in violation of the Fair Housing Act and various state laws. The district court found Roommates immune under the CDA and granted summary judgment on the FHA claim.

Judge Kozinski’s majority opinion succinctly summarized the bounds of immunity under the CDA:

In other words, if Roommate passively publishes information provided by others, the CDA protects it from liability that would otherwise attach under state or federal law as a result of such publication. But if it is responsible, in whole or in part, for creating or developing the information, it becomes a content provider and is not entitled to CDA immunity. (Footnote omitted.)

The majority opinion then finds that Roommates lacks immunity under the CDA for publishing and e-mailing member profiles containing members’ gender, sexuality, and children information and preferences, which it collects from its members via an interactive, drop-down menu registration process. But it finds that Roommates is immune from liability for publishing the free-form comments submitted by its members. Concurring and dissenting, Judge Reinhardt would also find immunity lacking for the latter publication.

Some bloggers suggest a possible relationship to anti-blogging sentiment recently expressed by Judge Kozinski. Howard Bashman at How Appealing says this “decision screwing-up the protection from liability for online postings” might have been foreshadowed by “Judge Kozinski’s recent expression of anti-blogger sentiment,” to which he links. David Lat at Above the Law headlines his post about the case: “Does Judge Kozinski Hate Blogs?” University of San Diego School of Law Professor Shaun Martin, blogging at California Appellate Report, spies a “tangential slam on bloggers” in footnote 1 of the opinion, but doesn’t seriously tie the decision to anti-blogging bias.

In a subsequent post, Bashman links to an article about the case that will appear in Wednesday’s New York Times.

UCLA law professor Eugene Volokh at The Volokh Conspiracy has two posts about the case. The first is a detailed analysis of the decision. His second is a commentary on the (un)constitutionality of limiting free speech and free intimate association rights to advertise for and select a roommate of one’s choice.

Professor Eric Goldman of the Santa Clara University School of Law, blogging at Technology and Marketing Law Blog headlines his take “Ninth Circuit Screws Up 47 USC 230.” He sees a “180” being pulled by the court:

Just a couple months ago, in Perfect 10 v. CCBill, the Ninth Circuit issued an incredibly expansive 230 ruling. Today, in a highly fractured opinion, they go in the completely opposite direction, creating a significant exception to 230’s coverage that’s bound to spur plenty of new unmeritorious and ill-advised lawsuits from plaintiffs. Why the 180? Such is life in the Ninth Circuit.

The Decision of the Day blog provides analysis supporting its opinion that the “decision suggests that § 230 may be a lot narrower than some websites would like.

Bashman’s and Goldman’s posts suggest ramifications for pending suits against and the insanely popular Craig’s List.

Thanks to the bloggers mentioned above for providing many of the links.

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California Joins Jurisdictions Holding that Injunction Against Speech Already Proven at Trial to be Defamatory is Constitutional

In a rather comprehensive analysis of the constitutional doctrine of prior restraint, the California Supreme Court holds in Balboa Island Village Inn, Inc. v. Lemen, case no. S127904 (April 26, 2007), that speech already proven at trial to be defamatory may be enjoined without running afoul of the First Amendment. Reaching back more than half a millennium to Blackstone’s commentaries as well as evaluating present-day commentaries and U. S. Supreme Court cases, the Balboa Island majority offers a primer on its view of the prior restraint doctrine. The majority draws the line between speech already adjudicated to be unprotected by the First Amendment and that which has not: “In determining whether an injunction restraining defamation may be issued, therefore, it is crucial to distinguish requests for preventive relief prior to trial and post-trial remedies to prevent repetition of statements judicially determined to be defamatory.”

The majority concludes from U. S. Supreme Court decisions upholding injunctions against speech adjudicated to be obscene or in violation of gender discrimination laws that these decisions were consistent in holding that “an injunctive order prohibiting the repetition of expression that had been judicially determined to be unlawful did not constitute a prohibited prior restraint of speech.” Finally, noting that the Sixth Circuit Court of Appeals and the supreme courts of Ohio, Georgia and Minnesota had upheld injunctions against speech already proven to be defamatory, the majority holds that “following a trial at which it is determined that the plaintiff defamed the defendant, the court may issue an injunction prohibiting the defendant from repeating the statements determined to be defamatory.”

The Court nonetheless upholds the Court of Appeal’s decision striking down the injunction, but only because the majority found the injunction too broad. It remanded the case to allow the injunction to be tailored more narrowly and consistent with its opinion.

Justices Kennard and Werdegar, in two solo “concur and dissent” opinions, agree that the injunction should be struck down, but would not remand to allow a more narrowly tailored injunction to replace it. Neither would allow any prior restraint in the absence of a compelling state interest or public policy in tension with free speech rights, and neither found such a competing consideration in this case.

California Anti-SLAPP Statute Does Not Protect Acts in Furtherance of Free Exercise of Religion

When defendants were sued by their neighbors for nuisance arising from smoke and ash entering the neighbors’ properties from fires defendants regularly lit as part of religious rituals in their backyard, they filed a motion to dismiss under the anti-SLAPP statute (Code of Civil Procedure section 425.16). The Court of Appeal affirmed the trial court’s denial of the motion, rejecting the defendant’s contention that section 425.16 was intended to protect acts associated with the free exercise of religion. Section 425.16 “did not import wholesale the protections of the First Amendment.” The statute mentions only two of the rights enumerated in the First Amendment — freedom of speech and the right to petition — and extending the statute to cover religious acts such as the ritual fires would run counter to the legislative intent. The California Supreme Court has issued seven anti-SLAPP decisions since the beginning of last year. Might this eventually be another? The case is Castillo v. Pacheco, 2nd Dist. Ct. of App. case no. B188991 (April 25, 2007).