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9th Circuit February 2014 News

9th Kills Free Speech Twice: First T-Shirts, Then YouTube?

It's been a bad week for free speech, with censured shirts and prior restraints on speech.

We were all ready to lambast the Ninth Circuit's opinion in Dariano v. Morgan Hill, where the court allowed a school district to ban t-shirts with the American Flag on them (for safety!). Then, the court topped itself, with a idiotic takedown order of the infamous and also idiotic "Innocence of Muslims" video on YouTube, due to an actress's copyright claim over her fifteen seconds of footage.

It gets worse: the court also made their order under seal, with a gag order in place. Once, twice, three times a censor.

9th Reversed: Highway or Not, Government Controls Military Bases

And so, another odd legal dispute comes to a ... well, it's still going, thanks to the First Amendment. But we at least know this: the government controls military bases, even if there is a public highway passing through.

The case, with its odd plaintiff (a man who sprayed his own blood on a military sign, and who has been arrested seventeen times for protesting on the base, with three convictions), will be returned to the lower courts in order to hear the First Amendment implications of barring certain protestors from designated protest areas.

San Diego Backing Off; Concealed Carry May Still be Appealed

Two weeks ago, the Ninth Circuit shocked the legal world by holding, contrary to many circuits with more conservative credentials, that the U.S. Constitution guarantees the right to keep and bear arms, which in practical terms, must guarantee the right to bear them in public -- i.e., concealed or open carry.

Our gut reaction was en banc appeal. And because the panel's 2-1 majority aligned along conservative-liberal lines, there was some question about what an entire en banc court might hold.

That question may remain unanswered, as the San Diego Sheriff's Office, in a press release, announced that would not petition for an en banc rehearing of the case.

A Case About Sunflower Seeds; Adjust Expectations Accordingly.

We can't beat Judge Silverman's summary of the case, so we'll stick with the direct quote:

"Some days we are called upon to consider such profound issues as eleventh-hour death penalty appeals, catastrophic threats to the environment, intense and existential questions of civil and human rights, and the most complicated, controversial problems in civil, criminal and administrative law. Today we consider the coating on sunflower seeds."

Yes, this is a class-action lawsuit over the coating on sunflower seeds, and whether the sodium in the coating must be disclosed on the product's nutrition label.

School Uniform's Slogan is Compelled Speech

Eugene Volokh is on quite the winning streak.

The professor and blogger, fresh off a victory in another pro bono free speech case (the ongoing Crystal Cox saga), scored again, this time on behalf of parents who were challenging their children's school's uniform policy. The Ninth Circuit held that the policy, which required "Tomorrow's Leaders" to be displayed on students' shirts, and which had exemptions for certain national youth organizations, constituted compelled speech and content-based discrimination.

The ruling narrows an earlier Ninth Circuit school uniform opinion from 2008, Jacobs v. Clark County School District, which allowed a school uniform policy. The uniforms in that case lacked any slogan or message.

Uh, What? 9th Circuit Strikes Cal. Concealed Carry Restrictions

"The right to bear arms includes the right to carry an operable firearm outside the home for the lawful purpose of self-defense."

We repeat: what? How does the left-leaning Ninth Circuit rule in favor of concealed carry, while other circuits, including the semi-conservative 4th Circuit, go the other way?

The majority, penned by Judge Diarmuid O'Scannlain, much like the Supreme Court in District of Columbia v. Heller, read 19th century cases, and interpreted "bear arms" to mean a right to carry, in some manner, firearms outside of one's home.

Nevada Attorney General Backs Down on Gay Marriage; Battle Over?

First California. Then Virginia. Now Nevada.

State after state after state, attorneys general are backing down in the the battle over gay marriage. Those who fight face costly, and likely losing battles, followed by years of appeals.

And for those who punt? It's quite possible someone else will step in. To predict the outcome in Nevada, prior cases demonstrate that standing is tricky.

Can't Find a Job? Maybe Spokeo's Misinformation Is to Blame

An unemployed job hunter can proceed with his lawsuit against Spokeo claiming violations of the Fair Credit Reporting Act, the Ninth Circuit ruled.

For those of you unfamiliar Spokeo: It's a creepily comprehensive data aggregating website with the slogan, "not your grandmother's phonebook." According to Forbes, it's also notoriously inaccurate. Go ahead, check yourself out -- just don't be surprised if you see yourself listed as the only child of a distant cousin whom you haven't seen in years.

In his suit, Thomas Robins claims the website's inaccurate information about him hurt his job prospects. For the courts, his harm raised classic standing issues.

CNN Scores Partial Victory in Online Closed Captions Dispute

Netflix capitulated, and agreed to put captions on all of its online videos by 2014.

CNN? They fought, and tried to have a similar lawsuit, brought by the Greater Los Angeles Agency on Deafness (GLAAD) dismissed under California's anti-SLAPP statute, which provides a mechanism for tossing lawsuits at an early stage if they target conduct in furtherance of free speech rights.

CNN lost in the lower courts, based on dicta that stated that closed captioning is a mechanical transcription that does not implicate content and the First Amendment.

Update: Protected Blogger Wants Elaboration on Alleged Extortion

When we last saw Crystal Cox, she was celebrating a victory in the Ninth Circuit. Instead of owing $2.5 million for defamation, the Ninth Circuit held that citizens, speaking on matters of public concern, get Gertz v. Welch protections and can't be held liable for defamation absent proof of negligence regarding the truth of the allegedly defamatory material.

It was  victory for her. It was a victory for the First Amendment. Journalist, blogger, or just crazy person with a keyboard, Obsidian Finance Group v. Cox was an important victory for your speech.

So why is she still hounding the Ninth Circuit?

En Banc Denied in Conversion Therapy Case

Back in August, the Ninth Circuit handed down a decision in a case that pitted free speech concerns against the state's interest in protecting minors from harmful "conversion" therapy, meant to cure individuals of homosexuality. California became the first state to ban such therapy in October 2012.

While district courts split on the issue, the Ninth Circuit's holding was clear: there was no speech, only conduct. And late last week, the court denied a rehearing in the case, over the dissent of three judges.