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This week our guests address developments in First and Second Amendment jurisprudence that relate closely to recent California case law.
Paul Levy, from Public Citizen, contends that the First District Court of Appeal should have, in last week's ruling ZL Technologies v. Doe, endorsed a stricter standard applied to defamation plaintiffs seeking the identities of anonymous online posters on review sites. There, the 1DCA approved a test requiring plaintiffs make out a prima facie case of defamation, but didn't go as far as the prevailing majority rule, which involves a balancing of equities, and requires plaintiffs to show why such a balancing favors them.
David Kopel then will address the consolidated cases of Wrenn v. District of Columbia and Matthew Grace and Pink Pistols v. District of Columbia, which were decided by a split D.C. Circuit court this week, and in which the panel struck down a regulation requiring D.C. gun owners to show they had a special need to carry their firearms in public. The ruling conflicts, at least arguably, with the 9th Circuit's Peruta decision, which affirming the propriety of California's 'good cause' requirement gun owners must meet to be allow to get a concealed carry permit. The disharmony in the opinions could potentially compel the U.S. Supreme Court to address the matter in the near future.
Is donating to charity surplus class action settlement funds a logical, efficient solution for unclaimed damages, or a Due Process and First Amendment violation that incentivizes collusion and self-dealing? The U.S. Supreme Court will consider the practice next term, reviewing a Ninth Circuit affirmance of a Cy Pres-based settlement. Guests Jeremy Kidd (Mercer Univ. SOL) and Jay Tidmarsh (Univ. Notre Dame SOL) offer differing views on the doctrine's utility, defects, and future.
A new three-step test distinguishing employees from independent contractors stands to tilt worker misclassification suits toward plaintiffs, and reshape many modern, independent contractor-centric business models. Michael Rubin (Altshuler Berzon LLP) and Gina Roccanova (Myers Nave) unpack the new 'ABC Test,' articulated last week by the California Supreme Court, and its implications.
To what extent should the president's statements (on social media, the campaign trail, or in office) bear on judicial review of enacted policy? As SCOTUS weighs the third travel ban, Rory Gray (Sr. Counsel, Alliance Defending Freedom) argues the Court shouldn't look past the policy's professed purpose of national security, while Professor Richard Primus (Univ. of Michigan Law School) contends statements hinting at religious animus should be given their full probative weight.
Three guests weigh the implications of Justice Neil Gorsuch's swing vote last week with his more liberal colleagues in an immigration case; John McGinnis (Northwestern SOL) gleans aspects of Gorsuch's 'modern' originalism, Mark Pulliam (contributing editor, Law and Liberty; Misrule of Law blog proprietor) wonders whether the new justice has already 'gone wobbly,' and Eric Segall (Georgia St. Univ. Law) speculates on what extra-judicial influences might prompt another surprise vote from Gorsuch this term.