California Court of Appeal Issues Devastating Decision for Associational Rights

Today California’s First District Court of Appeal held that a plaintiff can escape the anti-SLAPP statute with an unsupported allegation of vicarious liability for an illegal act.

This case arises out of an advocacy organization, Direct Action Everywhere, gathering petition signatures to shut down Golden Gate Fields, a particularly deadly horse racing track in the San Francisco Bay Area. The organization obtained more than 38,000 signatures asking the local government to close the track due to the inordinate number of horses killed there every year.

After four people stormed the track and locked down to it, the tracked sued them for their civil disobedience. Fine.

But it also sued Direct Action Everywhere. The only facts they pleaded against the organization are that it engages in political advocacy, it gathered petition signatures to shut down the track, it held public protests, and it cheered on the civil disobedience on social media. The track also made, on information and belief, a boilerplate allegation that each defendant is the agent, co-venturer, conspirator, employee, and representative of each other defendant.

Because each of the actual facts alleged against the organization involved protected activity (advocacy, protesting, petition-gathering), my office argued the statute should apply. The claims either arise out of speech or they arise out of nothing.

But the Court of Appeal held that it could ignore all the facts involving protected conduct and look only to the cause of action (trespass), which couldn’t involve protected activity. And it was enough that the plaintiff pleaded a boilerplate allegation of vicarious liability to defeat an anti-SLAPP motion. That the plaintiff didn’t plead any facts to show the vicarious liability is an issue that can only be resolved on a demurrer or motion for summary judgment—not an anti-SLAPP motion, the court held.

To imagine the kind of havoc this approach could wreak, imagine a Black Lives Matter march down that 100 people attend. The local newspaper has a reporter there. Someone throws a rock through a shop window. The shop owner then sued all 100 people, BLM the organization, and the newspaper. The plaintiff details everything each person did — they marched, they organized, they reported. And the plaintiff has a boilerplate allegation of a bunch of different vicarious liability theories, pleaded on information and belief and unsupported by any facts.

Now imagine any of the defendants (other than the rock thrower) files an anti-SLAPP motion arguing “I’m being sued for marching/organizing/reporting.” This decision would have it that they don’t get an anti-SLAPP remedy. They’re alleged to be vicariously liable for the illegal action and therefor the claims can never arise from protected speech.

It a dangerous decision.

More coverage here, here, and here:

Fourth Circuit Holds Public Transit Operator Can't Prohibit "Political" Advertising (Where Political Means Anything Controversial)

Today the Fourth Circuit struck down a prohibition on so-called “political” advertising on the Greater Richmond Transit Company’s buses as facially violative of the First Amendment.

We first sued in 2017. My client, the White Coat Waste Project, sought to run this advertisement criticizing animal testing at the Richmond, Virginia Veterans Affairs Hospital.

The Greater Richmond Transit Company rejected the ad claiming it violated the bus company’s prohibition on “political” advertisement.

But the transit system could never offer a sensible definition of what “political” meant. It ran ads for a Vice Presidential debate. It ran ads for a pro-free speech art exhibit. It said it would run an advertisement stating, “Support our troops” if run by the federal government but would not run the same ad by a private veterans’ organization. It even ran other ads against animal cruelty, including one against dog fighting, telling viewers “don’t stand for cruelty.”

The Fourth Circuit held that the bus company’s “vaguely defined policies and even vaguer unwritten rules make it impossible for a reasonable person to identify what violates their advertising policy and what does not.”

And the Fourth Circuit found that this prohibition was not just unconstitutional as applied to White Coat Waste’s advertisement, but unconstitutional on its face. It thus affirmed the district court on the bus company’s appeal and reversed the district court’s ruling on White Coat Waste’s cross-appeal.

This was a long-fought victory but my office is happy we finally got to the right result.

Supreme Court Denies Cert in Case Challenging Kansas Ag Gag Law

Today the United States Supreme Court denied the State of Kansas’ request to review the 10th Circuit Court of Appeals’ decision striking down Kansas’ Ag Gag law.

In August of last year, the Tenth Circuit found that the Kansas Ag Gag law was facially unconstitutional in violation of the First Amendment because it operated only to silence critics of animal agriculture.

This is a significant victory! Supreme Court review threatened not just our victory in Kansas, but a decade’s worth of victories against these laws, in states including Idaho, Utah, Wyoming, Iowa, and North Carolina.

🚨 Big Victory! South Carolina Agrees to Stop Requiring People with "Buggery" Convictions to Register as Sex Offenders

Late last year, my office and the ACLU of South Carolina filed a challenge to South Carolina’s continued enforcement of its anti-gay “Buggery” law that still criminalized having gay sex nearly two decades after the Supreme Court invalidated such laws. This was the fourth in a series of cases my office has litigated challenging sex offender registration for people who were convicted of being gay in the 1900s and early 2000s.

Our plaintiff, who proceeded as a John Doe, was arrested was indicted in 2001 for engaging “in oral and anal sex.” The other man was listed as his “victim” but also indicted. They both pleaded guilty. Doe even received a pardon, but South Carolina still mandated that he register a sex offender.

To its credit, unlike Mississippi, Idaho, and Montana, South Carolina quickly recognized its scheme was unconstitutional and agreed to negotiate. After a couple months of talking, they agreed that, “[t]o conform with the Supreme Court’s ruling in Lawrence v. Texas, 539 U.S. 588 (2003), [South Carolina] shall remove from the South Carolina Sex Offender Registry all individuals currently registered solely for a conviction for Buggery, S.C. Code § 16-15-120, stemming from sodomy between consenting adults.” And it agreed it would not attempt to register such people in the future should they relocate to South Carolina.

Today the judge entered the agreed order permanently enjoining South Carolina from requiring people with “Buggery” convictions to register as sex offenders. This is a huge victory for our client and other victims of this homophobic registration scheme, who all faced a lifetime of registration obligations.

“For nearly 20 years, South Carolina has used the Sex Offender Registry to track, shame, and ostracize these individuals for engaging in consensual and constitutionally-protected behavior,” said Allen Chaney, Director of Legal Advocacy for the ACLU of South Carolina. “I am pleased that the State agreed to settle the case, but discouraged that we had to sue at all.”

I’d like to thank the ACLU of South Carolina for taking this issue seriously and agreeing to co-counsel on it, and to Allen Chaney especially for his vigorous advocacy in this case.

Victory!

First Amendment and Activist Groups Support Challenge to Dangerous Vicarious Liability Ruling in anti-SLAPP Context

We just received some wonderful amicus support in an important anti-SLAPP case and I wanted to highlight the issue and amicus briefs.

This case presents an important question for political activists and organizations: if one protester does something illegal at a protest, can a party claiming injury from that illegal action sue everyone at the protest and strip them of their rights under the anti-SLAPP statute?

The anti-SLAPP statute does not protect activity that is illegal. (Flatley v. Mauro (2006) 39 Cal.4th 299, 316.) But if a plaintiff alleges a conspiracy to engage in illegal activity, does it matter what facts the plaintiff pleads against the alleged conspirator to show the conspiracy? Put another way, when a plaintiff asserts a claim on a conspiracy theory, which “acts” are considered to determine whether the anti-SLAPP statute applies to the alleged conspirator: the acts of the party it alleges the moving defendant conspired with, or the moving defendant’s own acts evidencing his participation in the conspiracy?

Imagine a pro-choice activist assaults a pro-life activist protesting outside a Planned Parenthood clinic. The assaulted pro-life activist sees an opportunity to take a swipe at Planned Parenthood. So he sues Planned Parenthood alleging a conspiracy with his assailant. His only evidence against Planned Parenthood is that it shares a mission with his assailants and uses similar slogans and rhetoric.

If Planned Parenthood filed an anti-SLAPP motion, would the statute apply? If the statute looks to the plaintiff’s allegations against Planned Parenthood itself, the statute would seem to apply—the plaintiff’s claims against the organization are based on its speech (slogans and rhetoric) on a matter of public interest. But if the statute looks only to the acts of the party Planned Parenthood is alleged to have conspired with, the statute wouldn’t apply—the pro-choice activist’s assault is illegal.

In my case, animal rights group Direct Action Everywhere (DxE) organized against Golden Gate Fields, a horse racing track in the Bay Area. Golden Gate Fields kills a lot of horses. In 2020 alone, as most of the country was staying home to alleviate a global pandemic, Golden Gate kept racing horses—and at least 26 of them died there. Twenty horses died there the year before.

So DxE authored a petition to the cities of Berkeley and Albany asking the cities to shut the track down. It gathered more than 30,000 signatures. 

Then, while some members of a local chapter of DxE protested outside the track, four activists committed civil disobedience by going onto the track and locking down. The track cancelled some races. The activists were arrested and the track sued them for trespass.

But the track also sued DxE. And all it alleged against DxE was that it has a petition on its website seeking to shut the track down, that it organizes protests on the public sidewalk outside the track, and that they gave live commentary on Facebook cheering on the people committing the civil disobedience. The track alleges DxE had a conspiracy with the activists who locked down. But the only facts they allege to show the conspiracy are political speech—protesting, petitioning, social media organizing, and so on.

So we filed an anti-SLAPP motion because the track sued DxE for its speech and the First Amendment prevents imposing liability on a political organization for the acts of others unless the organization ratifies, directs, or authorizes the illegal activity.

But the trial court found that because the activists who did the civil disobedience committed a crime, the anti-SLAPP statute couldn’t apply to DxE because the track alleged DxE was vicariously liable for the crime. It didn’t matter that there were no facts to show the vicarious liability; merely alleging it was enough.

We appealed, contending this would cripple associational rights under the anti-SLAPP. If just alleging vicarious or conspiracy liability can defeat the statute, then opportunistic SLAPP plaintiffs can sue anyone as soon as one person breaks the law. A shop owner who had a rock thrown through his window during a Black Lives Matter protest could sue everyone who attended the protest, the chapter that organized it, the reporters and newspapers who reported on it, and the city official who issued the permit. None of them could invoke the anti-SLAPP statute.  

We’ve received some excellent support from organizations that recognize the threat posed by this legal theory. The First Amendment Coalition, together with the ACLU of Northern California, California News Publishers Association, and Californians Aware, filed a brief detailing the threat that loose vicarious liability allegations can have on First Amendment rights in the context of political organizing. And the Climate Defense Project, together with the Sierra Club, Amazon Watch, the Civil Liberties Defense Center, and others, detailed the history of the statute and how it was meant to screen out exactly these types of lawsuits.

All of the briefing can be found here:

Our Opening Brief

The Horse Track’s Opposition

Our Reply

Amicus from First Amendment Coalition, ACLU of Northern California, and others

 Amicus from Climate Defense Project, Sierra Club, and others

$17,500 Settlement on Behalf of Woman Wrongfully Cited for Panhandling in Calabasas

The L.A. County Sheriff’s Department ran Kayla Walton out of Calabasas for being poor and Black.

On the day after Thanksgiving in 2020, Ms. Walton was standing on the sidewalk near the exit of a Trader Joe’s parking lot in Calabasas. She held a sign asking for monetary assistance.

Los Angeles County Sheriffs Deputy Konrad Thieme arrested her holding a sign asking for monetary assistance. He told her that panhandling was prohibited in Calabasas. And he cited her for a misdemeanor violation of Calabasas Municipal Code section 9.03.040. And he cited the title of the violation as “Panhandling.”

But there is no such prohibition on panhandling. Section 9.03.010 does not prohibit panhandling. And neither does any other section of the Calabasas Municipal Code. Deputy Thieme made it up.

Section 9.03.010 does prohibit certain types of solicitation. The section’s title is “Solicitation” (not “Panhandling,” as Thieme wrote). And it prohibits people from “solicit[ing], or attempt[ing] to solicit, employment from a location within a commercial parking area.” Essentially, section 9.03.010 appears to be a prohibition on day laborers seeking work within private commercial parking lots. But Walton was neither soliciting employment nor within a commercial parking area. She was panhandling on the sidewalk. Thieme’s arrest report concedes as much.

A passerby saw Thieme arrest Walton and began to film the encounter. Throughout the interaction, Thieme insisted that it is illegal to panhandle in Calabasas.

After we brought suit, the County quickly settled the case. We obtained $17,500 for Officer Thieme violating Ms. Walton’s First Amendment rights and briefly detaining her.

I Was on "On Balance with Leland Vittert" Talking About Unconstitutional Sodomy Laws

Last night Leland Vittert has me on his nightly news show “On Balance” to talk about how states are still requiring people to register as sex offenders simply for having been gay in the 1990s or early 2000s. You can watch it here.

My Office is Challenging South Caronlina's "Buggery" Law

Today my office filed yet another challenge to continuing enforcement of anti-gay sodomy laws nearly two decades after the Supreme Court invalidated such laws.

This is a challenge to South Carolina’s Buggery statute. (That’s right; the statute is titled “Buggery.”) Like other state’s sodomy laws, it appears to make it a crime to engage in oral or anal sex.

The Plaintiff, who is proceeding as a John Doe, was indicted in 2001 for engaging “in oral and anal sex.” The other man was also indicted. They both pleaded guilty.

This was the entirety of the basis for his arrest warrant:

But South Carolina requires anyone who was convicted of “Buggery” of registering as a sex offender. And it still continues to require it today, nearly two decades after the Supreme Court said such law violate the Fourteenth Amendment.

Doe was even pardoned for his so-called crime in 2006. But still, the state of South Carolina requires that he register as a sex offender.

Together with the ACLU of South Carolina, we’re challenging this entire scheme. We’re are asking the South Carolina federal court to declare the “Buggery” statute unconstitutional and the requirement that people convicted of having had oral or anal sex register as sex offenders.

This is the fourth in a series of cases my office has litigated. We’ve challenged similar laws and schemes in Mississippi and Idaho, as well as Montana’s enforcement of Idaho’s registration scheme. Mississippi, Idaho, and South Carolina are the only three state remaining that require registration for historical sodomy convictions. Hopefully this is the last case we will have to bring over this issue.

Press release below:

ACLU-SC SUES TO STRIKE DOWN LAW REQUIRING GAY MEN TO REGISTER AS SEX OFFENDERS FOR CONSENSUAL INTIMATE ACTS

In 2003, the United States Supreme Court ruled in Lawrence v. Texas that the government has no right to criminalize private intimate relationships between consenting adults. It was a watershed moment in the LGBTQ+ struggle—a legal proclamation that love isn’t criminal, and that gay people have the same right to “define one’s concept of existence, of meaning, of the universe, and of the mystery of human life,” that heterosexuals do.

In 2021—over eighteen years later—South Carolina continues to flout the clear holding of Lawrence by requiring our client, John Doe, to register as a sex offender for the “crime” of having consensual gay sex with another man in 2001. This is wrong, violates well-established constitutional law, and must be stopped. Being gay isn’t a crime, and having gay sex isn’t a sex offense. Enough is enough.

“South Carolina is the last state in the country to require sex offender registration for pre-Lawrence sodomy convictions,” writes Allen Chaney, ACLU-SC’s Legal Director. “This practice needlessly subjects law abiding citizens to the horrors of the sex offender registry and demonstrates a deeply troubling animosity by the State towards the gay community.”

“It is unconscionable that in 2021, South Carolina would still put people convicted of having gay sex on the sex offender registry,” said Matthew Strugar. “This kind of overt, state-sanctioned homophobia would have been surprising 30 years ago. Today it is shocking. And it is unconstitutional.”

Lawsuit Filed Against LA Metro's Advertising Censorship

Today my office filed a lawsuit challenging the LA Metro’s policies and practices censoring political advertising.

Metro purports to only allow commercial advertising (which “must promote for sale, lease or other form of financial benefit a product, service, event or other property interest in primarily a commercial manner for primarily a commercial purpose”). And it seeks to keep out any advertising that “comments on issues of public debate.”

But in practice, Metro regularly allows advertising that comments on issues of public debate and advertising that does not propose a commercial transaction. Metro just rejects the advertising when it doesn’t agree with the advertiser’s message.

Metro ran noncommercial advertising about homelessness (an “issue of public debate”) by the United Way that did not propose a commercial transaction.

And it ran advertising telling people to “get the facts” about the Covid-19 vaccine that does not propose a commercial transaction.

It ran advertising from the Foundation for a Better Life—founded and funded by billionaire conservative activist Phillip Anschutz to “promote good values.” The Foundation’s website declares “We don’t sell anything or accept monetary donations.” And it certain comments on issues of public debate, including commentary that police officers are the “brave” and “answer the toughest call.”

But when People for the Ethical Treatment of Animals asked Metro to run this ad, Metro wouldn’t allow it, claiming it doens’t run noncommercial advertising that comments on issues of public debate.

Our lawsuit alleges that Metro uses unfettered discretion to selectively apply its purported prohibition on non-commercial advertising and messages that comment issues of public debate to let in messages it wants and keep out messages it doesn’t want. The First Amendment prohibits this kind of viewpoint discrimination by government actors.

But even if Metro consistently applied and enforced its policies, they would still result in viewpoint discrimination. Allowing commercial advertisers to promote themselves while shielding them from criticism is the government deciding one viewpoint is more valid than another. For example, Metro allowed Jack in the Box to run this advertisement for “popcorn chicken” while prohibiting PETA’s ad responding that chickens are not popcorn and should not be killed for food.

The case is filed in the Central District of California. The case number is 21-cv-7662.

Idaho Enjoined from Forcing Sex Offender Registration on People Who've Had Oral or Anal Sex

Following our victory against Montana forcing sex offender registration on people who had been convicted of having oral or anal sex, today a federal judge in Idaho enjoined the state from forcing sex offender registration on two plaintiffs who were convicted of having oral or anal sex before the Supreme Court said such convictions were unconstitutional. Press release to come, but for now, here is the order.

UPDATE - Here’s our press release:

Federal Court Rules Against Idaho in Lawsuit Over Sex Offender Registration for Oral, Anal Sex

Decision Blocks Idaho’s enforcement of its “Crimes Against Nature” statute through the state’s sex offender registry

BOISE – On Saturday, September 4, 2021, the federal district court for Idaho ruled that plaintiffs in Doe v. Wasden, a lawsuit challenging Idaho’s enforcement of its archaic “Crime against Nature” statute, cannot be required to register as sex offenders while the lawsuit proceeds.

The ruling, issued by federal Judge B. Lynn Winmill, highlighted the “discriminatory and arbitrary enforcement of the Idaho crime against nature statute,” which the judge found “has been used to target, condemn, and punish consensual homosexual activity” in the state.

“I’m grateful to the court for putting an end to my nightmare,” said Randall Menges. “I wish it didn’t take a lawsuit to enforce what the Supreme Court commanded 18 years ago, but I’m happy that the Court took this action. I look forward to winning this case.”

“It is hard to believe that in 2021, Idaho would still put people convicted of having oral or anal sex on the sex offender registry,” said Matthew Strugar, an attorney representing the plaintiffs. “This kind of overt, state-sanctioned homophobia would have been surprising 30 years ago. Today it is shocking.”

“The decision by the Court is the first step in righting a wrong that has persisted in Idaho for many years,” said Debra Groberg, an attorney at Nevin Benjamin & McKay LLP, the law firm that was initially contacted about challenging this registration requirement in Idaho.  Ms. Groberg added: “What is frequently forgotten in situations such as this is the terrible harm that individuals like our clients endure when laws that have no business being laws are blindly enforced.  The real heroes here are our clients who had the courage to stand up and challenge these laws.”       

“We hope our clients can soon move on with their lives, lives that have been irreparably harmed by the State’s illegitimate infringement on their fundamental rights and liberty.” said Aadika Singh, legal director for the ACLU of Idaho. 

Doe v. Wasden was filed in September of 2020 by the ACLU of Idaho, the Law Office of Matthew Strugar, and Boise law firm Nevin, Benjamin & McKay, LLP. Two men, Randy Menges and an Idahoan known as “John Doe” in the case, sued Idaho officials requiring them to register as sex offenders for having oral and anal sex more than 20 years ago. The court’s order prohibits Idaho from making Menges or Doe register on Idaho’s sex offender registry.

In 2003, the United States Supreme Court’s landmark decision in Lawrence v. Texas held that anti-sodomy laws, including Idaho’s Crime Against Nature statute, violate constitutional protections under the Fourteenth Amendment. Yet Idaho is one of three states that continues to enforce its anti-sodomy Crime Against Nature law by requiring people with convictions to register as sex offenders. From 1955 to 1957, Idaho’s Crime Against Nature statute was the primary legal tool for the “The Boys of Boise” affair—one of the most virulent anti-gay witch hunts in American history. Idaho’s Crimes Against Nature Statute remains virtually unchanged since its inception in Idaho’s territorial days.

More information: https://www.acluidaho.org/en/cases/doe-v-wasden