U.S. Supreme Court strikes down California’s restriction on violent video games

Today the United States Supreme Court struck down California’s ban on selling violent video games to children.  From the majority opinion written by Justice Scalia:

California’s legislation straddles the fence between (1) addressing a serious social problem and (2) helping concerned parents control their children. Both ends are legitimate, but when they affect First Amendment rights they must be pursued by means that are neither seriously underinclusive nor seriously overinclusive. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993). As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harm-less pastime. And the overbreadth in achieving one goal is not cured by the underbreadth in achieving the other.Legislation such as this, which is neither fish nor fowl, cannot survive strict scrutiny.

You can read the entire decision in Brown v. Entertainment Merchants Association here.

Ninth Circuit upholds Redondo Beach’s crackdown on day laborers

The LA Times reports here:

A federal appeals court ruled Wednesday that Redondo Beach city authorities are entitled to prohibit people from soliciting work or money by approaching motorists in the street.

The 2-1 ruling by a panel of the U.S. 9th Circuit Court of Appeals overturns a lower-court opinion that barring street solicitation interferes with individuals’ 1st and 4th Amendment rights unless alternative sites are identified where the solicitors can speak and assemble freely.

You can read the opinion in COMITE DE JORNALEROS V. CITY OF REDONDO, Case No. 06-55750 here.

LA Prevails in appeal over unpermitted billboards

The LA Times reports:

The 9th Circuit Court of Appeals handed a major victory to the city of Los Angeles on Wednesday in its fight against the proliferation of unpermitted billboards, reversing a federal judge’s ruling that struck down a ban on new supergraphics, billboards and freeway-facing signs.

The panel of three judges found that the City Council did not violate the 1st Amendment right to free speech when it allowed exceptions to its citywide ban. The court also reversed injunctions that blocked the city from seeking the removal of unpermitted signs at nearly 40 locations.

You can read the Ninth Circuit opinion in World Wide Rush, LLC v. City of Los Angeles here.  An interesting website, Ban Billboard Blight, dedicated to opposing these signs can be found here.

Tattoo Parlor owner asserts First Amendment Right to open shop in Hermosa Beach

The L.A. Times reports here.

Anderson, owner of the Yer Cheat’n Heart tattoo parlor in Gardena, said he thinks his store is in a seedy neighborhood and sought to move to a vacant storefront in Hermosa Beach in 2006. His request to open a parlor there was denied on grounds that zoning laws don’t allow tattooing anywhere in the city. He sued in federal court in Los Angeles, alleging suppression of his 1st Amendment right to impart artistic expression on customers’ bodies.

The tattoo artist lost the first round of his legal challenge in 2008, when a federal judge deemed tattooing “not sufficiently imbued with elements of communication” to qualify as constitutionally protected speech.

Anderson took his case to the U.S. 9th Circuit Court of Appeals this month, and some constitutional law scholars predict the outcome could be different in what would be the first — and potentially precedent-setting — federal appellate decision on whether the tattoo artist is engaged in 1st Amendment-protected activity when designing and applying custom tattoos.

Anderson blames his failure in the lower court on the persistent impression, especially among older Americans, that tattoo parlors attract an unsavory clientele.

Posting a protest sign on your own front lawn is not against the law

Good news. In California, the right of free speech is still alive and well. When neighbors posted protest signs on their own front lawns about a company’s plan to sell timeshares, the company sued the neighbors for defamation, slander of title and interference with economic advantage.

A classic case of legal bullying.

The neighbors promptly brought an anti-SLAPP motion (a tool available when a defendant believes they have been unfairly targeted with a lawsuit as a punishment for exercising their right to free speech or to petition the government for redress). The neighbors won at the trial and appellate level. The lawsuit was dismissed and the protesting neighbors received an award of their legal costs. This is exactly the kind of legal abuse the anti-SLAPP laws were designed to curb.

The unpublished decision in Santa Barbara Beach Club, LLC v. Freeman has been posted by Leagle.com here.

Apple again at center of debate over Reporter’s Shield Protection for bloggers

Four years ago, I was part of a legal team that represented a group of bloggers that filed a friend of the court brief in O’Grady v. Superior Court, a legal proceeding that tested, among other things, whether bloggers were entitled to the same protections as mainstream journalists under California reporter’s shield laws. In O’Grady v. Superior Court, Apple wanted to use subpoenas to discover how information regarding its products was being leaked to bloggers. Ultimately, the Court of Appeal sided with the bloggers.

Flash forward four years, this week police executed a search warrant of a Gizmodo reporter concerning Gizmodo’s well publicized acquisition of a new iPhone 4G. CNET reports on the search warrant here. Some have speculated that felony criminal charges may be levied against those involved in the acquisition of the new iPhone. The search warrant appears to fly in the face of the ruling bloggers obtained in O’Grady v. Superior Court in 2006. In finding the Reporter’s Shield Law covers bloggers, the Court wrote:

We decline the implicit invitation to embroil ourselves in questions of what constitutes “legitimate journalis[m].” The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here. We can think of no workable test or principle that would distinguish “legitimate” from “illegitimate” news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace.

A Washington Post blogger claims that this search warrant has nothing to do with whether bloggers are treated as journalists and entitled to the protections of the Reporter’s Shield. I, respectfully disagree. If law enforcement had seized the computers of the Washington Post, you can bet an army of lawyers would be challenging the search on First Amendment and Reporter’s Shield grounds.

LA DA Challenges Jerry Brown to Reject Title and Summary of California’s Marijuana Ballot Initiative

The Metropolitan News-Enterprise reports:

Los Angeles District Attorney Steve Cooley has called on Attorney General Jerry Brown not to approve the title and summary of an initiative to legalize marijuana that will appear on the November ballot.

Cooley, one of three candidates vying for the Republican nomination to replace Brown, yesterday announced his opposition to “The Regulate, Control and Tax Cannabis Act of 2010” and criticized the title and summary prepared by Brown’s office last September.

“The marijuana initiative is terribly misleading, poorly drafted and not in the best interests of California residents,” he said in a written statement. “It will not regulate, not control nor effectively tax marijuana in California.”

Eastman and Harman lose ballot designation cases

The Metropolitan News-Enterprise reports:

Two candidates for the Republican nomination for California attorney general had their proposed ballot designations rejected by Sacramento Superior Court judges in separate cases yesterday.

Sacramento Superior Court Judge Timothy M. Frawley yesterday ruled that John Eastman cannot use the ballot designation of “Assistant Attorney General” or “Taxpayer Advocate/Attorney” on the June ballot. State Sen. Tom Harman, R-Costa Mesa, had his designation of “Prosecutor/Attorney/Senator” rejected by Sacramento Superior Court Judge Allen H. Sumner.

Wednesday Legal News Round Up

Notable legal news and views from around the legal world:

• The AP reports that the U.S. government has agreed to remove over 50 decaying military ships from a California bay over concerns that the ships were leaking toxic materials into the waters.
• Findlaw columnist Sherry Colb opines here that California prisons should accomodate prisoner requests for a vegan diet.
• The Reporter’s Committee for Freedom of the Press reports here that the Obama administration has filed a legal brief seeking to keep private the list of names of individuals who sought and were denied clemency and pardons during the Bush administration.
• Above the Law examines a recent craig’s list posting offering employment for a litigation associate at $12 an hour.

Judge finds Bush Administration illegally wiretapped phone conversation between Islamic charity and lawyers

The Contra Costa Times reports:

A federal judge ruled Wednesday that government investigators illegally wiretapped the phone conversations of an Islamic charity and two American lawyers without a search warrant.

U.S. District Court Judge Vaughn Walker said the plaintiffs have provided enough evidence to show “they were subjected to warrantless electronic surveillance.”

At issue was a 2006 lawsuit challenging the Bush administration’s so-called Terrorist Surveillance Program. The lawsuit was filed by the Ashland, Ore. branch of the Saudi-based Al-Haramain Islamic Foundation and two American lawyers Wendell Belew and Asim Ghafoor.

Belew and Ghafoor claimed their 2004 phone conversation with a foundation official, Soliman al-Buthi, was wiretapped soon after the Treasury Department had declared the charity branch a supporter of terrorism.

U.S. Attorney General Eric Holder has said the lawsuit threatens to expose ongoing intelligence work and must be thrown out.

Legal Pad has posted a copy of the ruling here.You can read past posts about warrantless searches here.