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9th Circuit January 2014 News

This Quentin Tarantino v. Gawker Lawsuit Is a Load of Crap

Quentin Tarantino wrote a script. He gave the script, without any security precautions (such as watermarking or armed guards) to six people in Hollywood. One of the six people leaked it. Shocking.

It made it onto the Internet. Again, shocking. Tarantino complained to Deadline Hollywood about the leak.

At this point, the story became newsworthy. Even without his statements to Deadline Hollywood, his next movie would be newsworthy, but doubly so when he complains about it and tells a media outlet that he's considering postponing or cancelling the movie due to the leak.

At this point, you want to read the script. So do I. When the script popped up online, Gawker's Defamer blog, which covers the underbelly of the industry (including Tarantino's foot fetish), published a story about it, including a link.

Asked and Answered: Cal. Court's Answer Ends Jail Special Ed Case

That was easy.

A years-long dispute over which agency was responsible for picking up the tab for the federally-mandated special education that must be provided to students, even those in jail, ended yesterday with a per curiam whimper and a citation to a lengthy California Supreme Court opinion.

The short answer? The offender's parents' local district.

Will Gay Juror Case End Nevada's Same-Sex Marriage Battle?

Until now, Nevada's Attorney General Catherine Cortez Masto has fought vehemently to uphold the state's ban on same-sex marriage.

As recently as last week, on the same day that the Ninth Circuit held that a heightened standard of scrutiny, as well as equal protection principles, applied to gays, the state submitted a brief that reportedly placed gay marriage in the context of bigamy and incest.

By Friday afternoon, Masto's office had backed off via a press release, announcing that in light of the Smithkline opinion, many of the arguments made in the brief were now untenable.

Judge Cebull: Retired, but Not Forgotten by the Conduct Committee

Thanks to this week's big news in the Smithkline Beecham case, where the Ninth Circuit held that gays are protected by a heightened form of scrutiny, a full report of retired Judge Richard Cebull's misconduct, which was released on the eve of the holiday weekend, got swept under the rug.

We missed out on misconduct? Say it ain't so. Lets take a closer look, shall we?

9th Extends Batson to Gay Jurors Using Windsor's Vague Reasoning

A lawyer uses a peremptory challenge on a juror who repeatedly uses a male pronoun to reference his partner. The issue in the case? HIV drugs and price gouging. GlaxoSmithKline, the plaintiff, objected to the challenge but was overruled. Though GSK won, the verdict was miniscule compared to the amount sought.

The question is, of course, whether striking a juror on the basis of sexual orientation is permissible.

Batson protected African-American jurors. J.E.B. extended that protection to gender-based peremptory strikes. And other lower courts have extended Batson even further -- to all classifications subject to heightened scrutiny (per Romer, that's race, national origin, sex, religion, illegitimacy, and alienage).

But, does sexual orientation belong amongst the other protected groups?

Bloggers, Even Corrupt Ones, Get Same Protections as Journalists

"As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable."

That's the money quote from Judge Andrew Hurwitz's opinion for the Ninth Circuit panel, which held that bloggers enjoy the same free speech protections as traditional journalists, and under Gertz v. Welch, cannot be liable for defamation absent proof of negligence regarding the truth of the allegedly defamatory material.

That's true even if, as the court explicitly noted, the blogger "apparently has a history of making similar allegations and seeking payoff in exchange for retraction."

Inhale Inc. Gets Smoked by Starbuzz in Hookah Copyright Dispute

Legend has it that the Persians invented the hookah many centuries ago. In that time, the design has changed little. The base holds water, the stem leads to a tobacco bowl, where tobacco and coals create smoke. A hose, connected near the base, uses suction to pull smoke from the tobacco, through the water, and back through the hose, where it is inhaled.

Hookahs come in all shapes and sizes, from mini-hookahs (which look like massively oversized smokers' pipes) to insanely elaborate works of art.

Inhale, Inc.'s copyrighted hookah was none of these things. The company copyrighted its base in 2011, which looks like every other base from the last few hundred years, except it had skull decorations. Starbuzz, a competing company, also makes hookahs, which unsurprisingly, have the same shaped vase, though theirs lacked skulls. Inhale sued Starbuzz one month after obtaining their copyright. And they lost. And they appealed.

And now, they just got smoked.

Year in Review 2013: Highlights From the Ninth Circuit

What can one say about the Ninth Circuit? The rest of the nation, my former black-robed employer included, thinks that we're a bit looney. And the Circuit constantly contends for the "most reversed by SCOTUS" title.

Guilty as charged. But at least we have fun (and sunshine) while doing it. Here is just some of the fun that we had this year:

Letter Besmirching Kozinski Asks: Can a Chief Judge Be a Litigant?

I have a mailbox at FindLaw. I have never used this mailbox. For the entirety of my tenure, it has been absolutely vacant.

Until yesterday.

On my way to the snack room, I noticed, for the first time, a post-marked envelope in my box. I didn't know how to feel about this letter. Excited? A bit. Snail mail is a rarity nowadays. But it had no return address. Was it hate mail? I usually get that via email.

Nope, it was none of those things. It was a letter declaring that Chief Judge Alex Kozinski is an "embarrassment to the 9th Circuit, and to the judiciary in general."

Arizona's Immigrant Bail Denial Headed Back to En Banc 9th

Over the past few years, the nation has watched, with little amusement, while a circus of immigration reform efforts have played out in Arizona. Frustrated by what they call the federal government's failings in curbing illegal immigration, the state passed its own set of laws, in the legislature and via referendum, most of which have since met their demise in the courts.

Arizona's laws have been criticized as improperly motivated, and preempted by federal law, but last June, a divided panel upheld Proposition 100, which denies bond to illegal immigrants accused of serious crimes, as a proper means of ensuring that the state can enforce its laws against those prone to flee.

On Thursday, however, the court announced that the case will head back to the court for the full en banc treatment.