Rarely the subject of entertainment industry buzz, Gov. Jerry Brown sparked outrage and confusion among First Amendment advocates by a new law intended to protect actors’ privacy online.

“Actors who don’t want casting directors and fans knowing their age can conceal their birthday information on subscription-based entertainment sites like the Internet Movie Database [IMDb] under a new California law,” the Wall Street Journal reported. “Supporters of the bill, including the film industry’s largest labor union, said it would help curb age-based discrimination for actors and other artists toiling in Hollywood. The measure passed both chambers by wide margins in August,” the paper added. 

Union support

SAG-AFTRA President Gabrielle Carteris, whose organization had begun the push for legislation during the term of the organization’s previous president, was quick to laud the governor’s decision to sign. “Gov. Jerry Brown today stood with thousands of film and television professionals and concerned Californians who urged him to sign AB1687, a California law that will help prevent age discrimination in film and television casting and hiring,” she said, according to Yahoo TV.

AB1687 was authored by 30-year-old first-term Assemblyman Ian Calderon, D-Whittier, who told the LA Weekly his goal was to shelter newcomers to the film and television industry from having their age revealed publicly against their consent. “Even though it is against both federal and state law, age discrimination persists in the entertainment industry,” he said. “AB1687 provides the necessary tools to remove age information from online profiles on employment referral websites to help prevent this type of discrimination.” 

Legal questions

But some respected legal experts have cast doubt on the constitutionality of the law. “This raises serious First Amendment problems,” Irwin Chemerinsky, dean of UC Irvine’s School of Law, told the Weekly. “The law is clear that there is a First Amendment right to publish truthful information that is lawfully obtained. Holding someone liable for publishing accurate facts likely violates the First Amendment.” One question for free speech activists, however, has gone as yet unanswered: who would sue? Any plaintiff would have to have standing to bring suit, including celebrities or perhaps less well-known actors affected by the law. 

In response to the criticism, Calderon tried to emphasize that AB1687 had been closely written to fit a specific segment of the internet. “Limiting the bill to only subscribers makes it clear that the bill advances an important government interest,” he told The Hollywood Reporter, “that of reducing age discrimination in a manner that is substantially related to that interest and no more extensive than necessary to achieve that interest.” 

Wary media

Critics have not been convinced. Michael Beckerman, CEO of the Internet Association, warned previously in an opinion column at THR that “[r]equiring the removal of factually accurate age information across websites suppresses free speech. This is not a question of preventing salacious rumors; rather it is about the right to present basic facts that live in the public domain. Displaying such information isn’t a form of discrimination, and internet companies should not be punished for how people use public data.”

Media companies with an offline as well as an online presence have also reacted with wariness. “Opponents of the bill note that even though the law is narrowly tailored to restrict the speech of just a few websites, it’s precisely this narrow language that makes the law useless to begin with,” Gizmodo observed. “If you censor IMDB, why not censor the Los Angeles Times?” Perhaps pondering the same question, the Times editorial board weighed in against the law: “Forcing public sites to remove information about someone at the person’s behest sets a troubling precedent for deleting all kinds of information that’s in the public record, but that someone might not want the public to know,” wrote the board. 

On Monday, four California gun dealers filed a federal lawsuit challenging a nearly century-old law that bans the display of handguns in store advertisements.

Under state law, it’s perfectly legal for a gun-control supporter to use images of handguns in a protest outside of a gun store. But if a gun store were to put the same sign in its store window, it would be a violation of state law.

States California Civil Code § 26820, which was first enacted in 1923:

“No handgun or imitation handgun, or placard advertising the sale or other transfer thereof, shall be displayed in any part of the premises where it can readily be seen from the outside.”

This isn’t a case of hypothetical free speech scenarios. Earlier this year, a Central Valley gun dealer was cited by the California Department of Justice for breaking the law by displaying a handgun in its window. Tracy Rifle and Pistol, the San Joaquin County firearm retailer that was cited by the Department of Justice in September, points out the obvious content-based speech restriction.

“I run one of the most heavily regulated and inspected businesses in existence, but it’s still illegal for me to show customers that I sell handguns until after they walk in the door,” said Michael Baryla, the owner of Tracy Rifle and Pistol. “That’s about as silly a law as you could imagine, even here in California.”

Gun stores speak out

One Fresno gun dealer and plaintiff in the case, PRK Arms, told KMPH Fox 26 News’ Erika Cervantes that the lack of proper signage can be confusing for customers.

“We actually get quite a few calls throughout the week from people asking if we sell handguns,” Elijah Smedley, the store’s general manager, told KMPH. “If you look around, there’s plenty of them here. The product itself is not illegal in any way, so why should advertising be illegal?”

Smedley pointed out the obvious double standard.

“You can advertise for just about anything else that you sell,” he said. “There’s grow shops, there’s dirty magazine stores, there’s all kinds of things out there that you can advertise for the exact item you’re selling. Yet, for some reason, handguns are taboo.”

First Amendment scholars join case

Eugene Volokh, a UCLA law professor who is considered one of the country’s foremost experts on the First Amendment, has joined the case on behalf of the plaintiffs.

“The government generally may not ban advertising of lawful products — indeed, of constitutionally protected products — on the grounds that such advertising is offensive, or stimulates consumer interest in such products,” Volokh explained on his legal blog at the Washington Post.

In addition to a double standard for gun owners and gun control advocates, there’s a double standard for weapons. In California, it’s legal for gun dealers to display images of shotguns and rifles on their premises, but illegal to display an image of a handgun. The multiple content-based restriction has helped the gun dealers enlist other constitutional experts in the case, including top-notch attorneys Bradley Benbrook and Stephen Duvernay.

“The First Amendment prevents the government from telling businesses it disfavors that they can’t engage in truthful advertising,” said Bradley Benbrook, lead counsel for the plaintiffs. “This case follows a long line of Supreme Court cases protecting such disfavored businesses from that type of censorship.”

A spokesman for Attorney General Kamala Harris, the lead defendant in the case, declined to comment about it to CalWatchdog.com.

State’s clever gun rights advocates target vulnerable laws

The lawsuit is only the latest effort in a series of savvy moves by the state’s leading Second Amendment advocates. Unable to slow the endless series of new gun-control bills proposed each legislative session, the California Association of Federal Firearm Licensees, Calguns Foundation and the Second Amendment Foundation have turned to lawsuits and public-records request to overturn laws. And when the mainstream media ignore their achievements, CA-FFL shares its victories directly with its nearly 40,000 Facebook fans.

In August, a federal judge ruled that California’s 10-day waiting period on gun sales violated the Second Amendment rights of certain groups of gun owners. The plaintiffs in the case were represented by Calguns Foundation and Second Amendment Foundation.

The group has also exploited the state’s public records law to obtain information about the uneven administration of conceal-carry permits. In 2011, Calguns Foundation believed then-San Francisco Sheriff Michael Hennessey was failing to comply with California’s conceal-carry laws. Under state law, all agencies that have the authority to issue firearm permits must create and publish a written policy on the process. Thanks to a public records request, the group proved that the sheriff had selectively enforced the law and awarded permits to politically-connected applicants.

San Francisco wasn’t an isolated case, but a part of Calguns’ program to enforce compliance with the law. A similar 2010 request filed by Calguns with the Ventura County sheriff’s office was denied. Calguns was forced to file a lawsuit, which it won.

Whenever it can, California’s gun-rights advocates are looking to form broad-based political coalitions.

“Since we started our Carry License Initiative, Calguns Foundation has had the great pleasure of supporting and, where possible, collaborating with fantastic open government groups like the First Amendment Coalition and CalAware on matters relating to public records and meetings,” said Brandon Combs, one of the masterminds behind the effective political strategy.

A copy of the complaint can be viewed here.

Fortunately, the courts seem to be siding with freedom. A Florida state Circuit Court recently held that bloggers enjoy the same First Amendment protections as other members of the media. Gigaom reported:

“Under state law, anyone who wants to pursue a defamation case has to notify the media outlet in question five days before filing. But Christopher Comins argued he didn’t have to do so in the case of a blog post from university student Matthew VanVoorhis, because blogs aren’t a traditional form of media and therefore aren’t entitled to notice.

“As Techdirt notes, Comins’s argument was thrown out by the original court, but he appealed. Now, an appeals court has upheld that decision — and in the course of doing so, the judges in question chose to provide some great commentary on the importance of blogging as a form of media.”

Here’s the key section from the court decision:

“The advent of the internet as a medium and the emergence of the blog as a means of free dissemination of news and public comment have been transformative… the impact of blogs has been so great that even terms traditionally well defined and understood in journalism are changing as journalists increasingly employ the tools and techniques of bloggers – and vice versa.”

Indeed, as Gigaom noted, a Pulitzer Prize just was awarded to blogger Glen Greenwald for reporting on Edward Snowden’s revelations that the government spies on all of us, all the time, in violation of our Fourth Amendment rights. (Albeit the blogs also were published in two print newspapers; but most of us read Greenwald’s articles on his blog.)

Freedom is indivisible. Bloggers, fortunately, also are protected by the First Amendment.

BIG BROTHER

The committees will also have to report the name of the website where the content appears.

The long arm of the government has found a chilling new way to intimidate new-media.

Political bloggers writing online will be subjected to new disclosure rules under state regulations the Fair Political Practices Commission approved Thursday.

Here's how the State, under California Code Section 82013, defines a “committee”:

“Committee” means any person or combination of persons who directly or indirectly does any, of the following: (a) Receives contributions totaling one thousand dollars ($1,000) or more in a calendar year. (b) Makes independent expenditures totaling one thousand dollars ($1,000) or more in a calendar year; or (c) Makes contributions totaling ten thousand dollars ($10,000) or more in a calendar year to or at the behest of candidates or committees. A person or combination of persons that becomes a committee shall retain its status as a committee until such time as that status is terminated pursuant to Section 84214.

Any writer who receives indirectly or directly, $1,000 or more, will be subjected to this state-required reporting. The FPPC claims this is to corral the campaigns, but it's really aimed at political writers.

That could mean non-profit journalism, which is supported through voluntary donations, will now be under mandatory reporting by the State. (Full disclosure: CalWatchDog.com's parent think tank, the Pacific Research Institute, is a nonprofit.)

Conflict of interest lobbying and Capitol staff

Adding another twist to California's new FPPC regulation, The Sacramento Bee reported Democratic consultant Steven Maviglio, who is also the Communications Director for Assembly Speaker John Perez, has been involved in the decision-making process.

The Bee left Maviglio's Assembly job out of the story. He is paid $9,500 a month by the California Legislature for the part-time job.

“Democratic campaign consultant Steven Maviglio, who writes for the California Majority Report blog and has been working with the FPPC on the regulations for more than a year, said he was unhappy with the final product,” the Bee reported Thursday evening.

“The goal has always been righteous,” Maviglio said. “Implementation is going to be an avalanche of paperwork that is unenforceable.”

Maviglio's “work” with the FPPC on this new regulation is highly suspect. As Communications Director for the Assembly Leader, he does more than just write press releases. He advises the leader on the potential fallout or benefits of certain legislation. And he reports the pulse of the other Assembly members, as well as the constituents they represent. Maviglio plays a big role in influencing what happens in the Assembly.

There is a legislative manual which states a “consultant” like Maviglio can't have clients or do outside business with while on the state payroll, especially where there might be the slightest hint of a conflict of interest, according to a Capitol source who asked to remain unnamed for this story.

History repeating

Maviglio is not alone. Infamous political consultant Richie Ross helped Democrats get elected, and then proceeded to lobby them unabashedly at the Capitol. This went on for decades. He vehemently defended his duel roles, and insisted there was no conflict in his interests.

In 2003, Democratic Assembly Speaker Herb Wesson appointed a task force to address what he referred to as a growing problem of aggressive lobbying tactics and conflict of interest by political consultants who lobby legislators they helped elect. He had Richie Ross in mind after Ross verbally abused the staff members of two legislators who refused to vote against a bill that was of interest to one of his lobbying clients, the United Farm Workers Union, CalState News reported.

In 2006, Gale Kaufman, a top political strategist to Assembly Speaker Fabian Nunez and the California Teachers Association Union, returned to the state payroll as a consultant to the speaker's office, Capitol Weekly reported.

“'I'm only working part time. I can still rake in the big bucks on the outside,' Kaufman joked in a conversation with Capitol Weekly. “'I'm in and out of [the Assembly] all the time. This time around, for the next little while, I'll be doing some more work, so I decided to go on the payroll.'”

“Kaufman even has a small office on the third floor of the Assembly annex, around the corner from the Assembly floor,” Capitol Weekly found. “She says she will be working out of the office part time.”

The conflict lies with the revolving door between political parties, labor unions, consultants, and paid staff, and rarely with the people doing the writing, reporting and exposing.

But now, Maviglio and his political ilk have influenced more than the Assembly leadership — they've gone in through the back door of the state, into the bowels of state code, in an attack on dissent.

“We see political spending as distorting markets in policy making and creating a skewed playing field,” said Bruce Freed, founder of the Center for Political Accountability, in a recent debate over corporate political speech.

Freed’s organization and other leftist groups have been pressuring corporations to eliminate or at least disclose their political spending. But a recent Common Cause study of $220 million in independent expenditures for candidates in California from 2000 to 2012 shows that unions spend much more than businesses.

“[L]abor unions are the largest source of independent spending, focusing primarily on governor’s races,” the study states.

Some findings:

— Union-backed independent expenditure committees outspent business-backed committees three-to-one: $90 million to $27.7 million.

— Three-quarters of the donations exceeding $1 million came from unions.

— Seven unions are among the top 10 donors.

— Business-backed committees accounted for 12.5 percent of independent expenditures.

— Chevron, the largest corporate contributor to independent expenditure committees, ranked 28th among all donors.

Professors target corporate speech

But a political playing field skewed in favor of unions hasn’t deterred a group of law professors from filing a petition with the Securities and Exchange Commission that has the potential to significantly decrease corporate political spending.

“We ask that the Commission develop rules to require public companies to disclose to shareholders the use of corporate resources for political activities,” the July 2011 petition states.

It makes several assertions:

— Public investors have become increasingly interested in receiving information about corporate political spending.

— In response, a large number of public companies have voluntarily adopted policies requiring disclosure of the company’s spending on politics.

— Disclosure is important for the operation of corporate accountability mechanisms, including those that the courts have relied upon in their analysis of corporate political speech.

Fifty of the 465 shareholder proposals on company proxy statements in 2011 were related to political spending, including one-fourth of the S&P 100, according to the petition.

The petition addresses the pro-corporate speech argument that there are already numerous regulations governing corporate political spending. It states that the information is scattered “among several federal, state and local government agencies, presented in widely varying formats, and is ill-suited to giving shareholders a good picture of a particular corporation’s political spending.”

And much information remains undisclosed, the petition states, including contributions to intermediaries like 501(c)(4) organizations that are not required to disclose their donors. The petition concludes:

“Shareholders in public companies have increasingly expressed strong interest in receiving information about corporate spending on politics, and such spending is likely to become even more important to public investors in the future. Furthermore, shareholders need to receive such information for markets and the procedures of corporate democracy to ensure that such spending is in shareholders’ interest. Still, while many large public companies have begun to provide such information, no existing rule requires disclosure of this information to investors, and corporate political spending remains opaque to investors in most publicly traded companies. The Commission should address this lack of transparency and, drawing on its expertise and experience in designing rules for disclosure of other information that is of interest to investors, should adopt rules concerning disclosure of corporate political spending.”

Not a priority for SEC — so far

The SEC has yet to act on the petition, and may take its time doing so. The petition was recently placed in the long-term action category of the “reg flex” agenda, said SEC general counsel Brian Cartwright at the Society of Corporate Secretaries & Governance Professionals conference.

“If I were advising [SEC Chairman] Mary Jo White, and she decided this is something she was not interested in, I would advise her to put it in the long-term action category rather than take it off the reg flex agenda altogether,” said Cartwright. “Because you would have to take a whole bunch of arrows you don’t need to take if you do that. So I would say for the near term this has been very substantially downgraded for SEC action. This late in the year nothing could impact the 2014 proxy season.”

When the petition does reach the SEC board, at least one commissioner, Daniel M. Gallagher, may be skeptical, judging by his remarks at the SCS&GP conference on July 11. He agreed that there are benefits for investors from more disclosure, but he draws a tighter line on how much needs to be disclosed.

“[T]he disclosure regime was [not] meant to guarantee that investors receive all information known to a public company, much less to eliminate all risk from investing in that company,” said Gallagher. “Instead, the point has always been to ensure that they have access to material investment information.”

‘Regulatory creep’ leads to information overload

He went on to say:

“Arguably, the Commission’s disclosure regime has been subject to the classic Washington scourge of regulatory creep, in spite of the principle that investors should have access to ‘basic facts.’ The beauty of the disclosure regime as created by Congress almost 80 years ago was that it did not require government regulators to judge the merits of a company, its board or management structure, or its business practices –– those judgments were intended to remain in the hands of investors armed with the knowledge provided by the disclosure of material information. Today, however, some of our disclosure rules are being used by special interest groups, who do not necessarily have the best interests of all shareholders in mind, to pressure public companies on certain governance and business practices.”

Gallagher also warned about the potential for information overload:

“As Justice Thurgood Marshall warned almost 40 years ago, disclosure requirements with ‘unnecessarily low’ materiality standards risk ‘simply bur[ying] the shareholders in an avalanche of trivial information — a result that is hardly conducive to informed decision making.’ When investors are inundated with immaterial information, it increases the likelihood that they will miss key disclosures. Even more likely is the possibility that investors, despairing about the voluminous compilations of corporate minutiae contained in company filings, will never even look at disclosure documents. In either case, the result is that investors are left less informed when making investing decisions than they would be if presented with a document that didn’t require a magnifying glass to read and a PhD to understand.”

The quantity and length of the documents needing to be reviewed by shareholders has increased by about 50 percent from 2003 to 2011, he said. As a result, Gallagher pushed for streamlining regulations.

“Given the importance of this issue, it is critical for the Commission to engage with issuers and shareholders to rethink whether the mandatory disclosure rules in their current form are still valuable, and whether in some cases it may be better for investors if there was a lower volume, but an overall higher quality, of disclosure,” he said. “As I’ve noted repeatedly, disclosure is not costless to issuers, and we cannot forget — because far too many policy makers do forget — that it’s the shareholders who ultimately bear the burden of increased costs on issuers.”

Overreach of SEC authority seen

Former SEC Commissioner Paul Atkins is strongly opposed to the disclosure petition. He discussed the issue at a Pacific Research Institute luncheon in San Francisco last year, and wrote a petition response, “Materiality: A Bedrock Principle Protecting Legitimate Shareholder Interests Against Disguised Political Agendas.” It makes several arguments:

— The SEC does not have the authority to require disclosure of information on these sorts of expenditures because such information is immaterial.

— Should the Commission decide to proceed, which would harm rather than protect investors, the Commission would be unable to satisfy its legally mandated cost-benefit analysis because the alleged benefits are outweighed by the significant costs of mandated disclosure.

— It would be inappropriate for the Commission to move forward with a rule-making related to corporate public policy spending at a time when it must address myriad issues related to the financial crisis of 2008, as well as those that are central to the economically important capital-raising functions of the capital markets.

“Ultimately, the SEC is not the appropriate body to address this issue, primarily because SEC does not have the authority to require disclosure of information on these sorts of immaterial expenditures,” wrote Atkins. “Rational shareholders, considering their economic interests and not political interests, do not consider this information material to their investment decision making.

“Even if the SEC were to forge ahead and consider a rule, an impartial economic analysis of the costs and benefits of such a requirement would find that the costs exceed the purported benefits, because the narrow interests of an extremely vocal minority of shareholders (and even non-shareholder activists) could more easily intimidate value-creating corporate behavior, create brand damage to the disclosing companies, and stifle corporate speech, all of which would have a detrimental economic effect on the company and its shareholders.”

One of the disclosure advocates, Freed, suggested that he might not be bothered were the SEC to reject the disclosure petition.

“I think when you’re looking at the work we have done on political disclosure, we are not talking about regulations,” he said. “We are talking about companies adopting policies that govern their political spending practices. This is very, very important. Voluntary disclosure as a result of shareholder engagement has laid a strong foundation for broader disclosure.”

Even if SEC passes, state-level action proceeding

But if the petition is rejected, corporations won’t be able to breathe easy. Disclosure advocates have started lobbying state legislatures.

“At the state level there’s quite a bit of ferment,” said Freed. “Disclosure laws have passed in Iowa and Maryland. There’s strong support for disclosure legislation in Texas and Montana. The Texas legislature passed a very strong disclosure bill that was vetoed. In Montana there was very strong bipartisan support. In New York state, regulations were issued by the attorney general requiring  501(c)(4) disclosure. California is getting very active in this area. So there’s quite a bit of ferment there.”

Between the fomenting from disclosure activists and the regulatory fermenting in state legislatures, free market supporters will need to stay alert lest the already-skewed political playing field be totally forfeited to one team.

By John Seiler

I love it! Americans finally are standing up to the tyrannical governments that rule, and ruin, our lives. The latest:

“A South Carolina valedictorian garnered wild applause after he ripped up his pre-approved speech and delivered the Lord’s prayer at his high school graduatino on Saturday.

“The act was apparently in protest of the Pickens County School District’s decision to no longer include prayer at graduation ceremonies, Christian News reported. Officials said the decision was made after the district was barraged with complaints by atheist groups.

“But that didn’t stop Roy Costner IV of Liberty High School. He ripped up his graduation speech for all to see, before he started talking about his Christian upbringing, Christian News reported.

“’Those that we look up to, they have helped carve and mold us into the young adults that we are today,’ he said. ‘I’m so glad that both of my parents led me to the Lord at a young age.’

“’And I think most of you will understand when I say…’ he paused. ‘Our Father, who art in Heaven, hallowed be Thy name…’

“The auditorium began to erupt with applause and cheers.”

So, civil libertarians, does the First Amendment ban religion in public schools, or protect free speech in pubic schools?

Actually, we should be thinking about it differently. School prayer was common in public schools until the early 1960s, when the U.S. Supreme Court banned it, and any other religious expressions, based on the Establishment Clause of the First Amendment. The court insisted on “separation of church and state.”

The point almost nobody makes, though, is that the Supreme Court actually did the opposite of what was advertised. It turned America’s formerly local public schools into national schools that inculcate a national religion based on anti-religion. If the Court had been serious about “separation of church and state,” it simply would have abolished public schools, making them all private, with no public funding and the poor taken care of with scholarships.  That way, parents would decide everything.

But the last thing the Court wanted was for parents to have a say in their kids’ educations. The Court wanted the schools to produce docile people who would do what they were told by the Court and the rest of the regime.

It’s pointless to argue about school prayer. Some conservatives still try to get prayer back in schools through a constitutional amendment. They’re wasting their time and money.

The best thing to do now is to get your kids out of the government schools and into private, parochial or home schools. If you have the money or the organizing talent, set up your own private or parochial school.

And encourage kids to rebel, like Roy Costner IV did, against the anti-religion religion that is pushed on them in these government schools.

By Katy Grimes

The Associated Press found itself in an interesting juxtaposition yesterday when it had to report that the Obama Justice Department secretly obtained two months of AP’s own employees’ phone records.

In what can only be called strange, the Obama Justice Department has been secretly tapping the phone lines for 100 reporters and editors of the Associated Press, according to news reports just released yesterday.

This is a direct attack on the freedom of the press. Ironically however, this is the same press which has been in-the-bag for candidate, and now President Obama.

Also ironically, while the Patriot Act was being rammed through Congress, the press sat on their hands and did nothing. Now they are being spied on, ostensibly under the guise of the Patriot Act and national security.

According to the Associated Press, general phone lines for AP office numbers in New York, Washington and Hartford, Conn., and for the main number for the AP in the House of Representatives press gallery, were all tapped, according to attorneys for the AP.

The Justice Department, run by Attorney General Eric Holder, obtained two months of telephone records of reporters and editors for The Associated Press in what the news cooperative’s top executive called a “massive and unprecedented intrusion” into how news organizations gather the news.

“Chief Executive Officer Gary Pruitt said the government sought and obtained information far beyond anything that could be justified by any specific investigation,” the AP reported. “He demanded the return of the phone records and destruction of all copies.”

“There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters. These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period, provide a road map to AP’s newsgathering operations and disclose information about AP’s activities and operations that the government has no conceivable right to know,” Pruitt said.

This is going to get interesting. The IRS has been targeting conservatives and pro-Israel groups, and no one has been fired. Now the same administration is attacking freedom of the press and spying on the AP. What Constitutional right will be violated next? And what are people willing to do about it?

On the Jewish blog, Boker tov, a reader left a thought-provoking comment: “The sheer stupidity of the Obama mob is beyond belief. This really is the gang that cannot shoot straight. Why in the world would they pull this caper on — of all the news agencies on the planet — the one news agency that has done probably more than any other to make Obama look like a Great American President? Whatever happened to such sage admonitions as “Don’t bite the hand that feeds you” and ‘Don’t kill the goose that lays golden eggs’? Will this be the straw that breaks the camel’s back? I wouldn’t bet on it; so far, the camel’s back has been as strong as Atlas’s. But if this is the straw that cripples the camel, Obama will have only his own and his henchmen’s stupidity to blame.”

By Chris Reed

In 2004, in a case involving union pickets on the property of a California grocery state, the U.S. Circuit Court of Appeals for the District of Columbia explicitly ruled that they had no special protections:

“This petition for judicial review of an order of the National Labor Relations Board, and the Board’s cross-petition for enforcement, turn on whether California law gives labor organizers a right to hand out leaflets in the privately-owned parking lot of a stand-alone grocery store. Because it was not clear where the Supreme Court of California stood on the subject, we certified two questions to it. The California court refused to decide the questions. It has therefore fallen upon this court to determine the meaning of California law, in light of the First Amendment to the Constitution. We hold that under California law, union organizers have no right to distribute literature on a stand-alone grocery store’s private property.”

That’s the very first paragraph. The D.C. appeals court is widely considered the second-most powerful court in the land because of its responsibility for “directly reviewing the decisions and rulemaking of many federal independent agencies of the United States government,” such as the NLRB.

But on Thursday, overturning a state appeals court ruling, the California Supreme Court found that state laws granting picket rights to union protesters in fact do give union protesters the right to rally on the property of California grocery stores. In her majority decision, Justice Joyce Kennard held the federal appeals court just didn’t understand that this wasn’t a First Amendment matter when it overturned the NLRB.

“In making that ruling, the [NLRB] had concluded that under California law the supermarket owner did not have a right to exclude union representatives from its property. (Waremart/N.L.R.B., at p. 872.) The board‘s conclusion was based in part on our state‘s Moscone Act, as construed by this court in Sears, supra, 25 Cal.3d 317. The federal appellate court disagreed with the board, holding that ―the union organizers had no right under California law to engage in handbilling on the privately-owned parking lot of WinCo‘s grocery store.‖ (Waremart/N.L.R.B., at p. 876.) Regarding the Moscone Act, the federal appellate court concluded, citing the United States Supreme Court‘s decisions in Mosley, supra, 408 U.S. 92, and in Carey, supra, 447 U.S. 455, that the act ―violates the First Amendment to the Constitution‖ insofar as it extends greater protection to speech regarding a labor dispute than to speech on other subjects. (Waremart/N.L.R.B., at pp. 874-875.)

“The analysis of the federal appellate decision in Waremart/N.L.R.B., supra, 354 F.3d 870, failed to recognize, however, that, as we explained earlier, neither the Moscone Act nor section 1138.1 of our state law restricts speech. Waremart/N.L.R.B.‘s analysis also failed to recognize that the United States Supreme Court‘s decisions in Mosley, supra, 408 U.S. 92, and Carey, supra, 447 U.S. 455, both involved laws restricting speech in a public forum, as opposed to the situation here, involving laws that do not restrict speech and are being applied on privately owned property that is not a public forum under the First Amendment. For these reasons, we do not consider Waremart/N.L.R.B. persuasive on the issues we address here.”

I am not a lawyer. And I understand that the California Supreme Court, while not considered hard left, has a long history of an expansive interpretation of union picket rights. But I bet plenty of people who read the passage above feel like this smacks of the 9th U.S. Circuit Court of Appeals, which has many judges who simply don’t care what the Constitution says, they know what they’re going to do.

Lawyer-blogger Glen Valenza of the Shaw Valenza law firm, which has offices in Sacramento and San Francisco, specializes in employment law, and has some high-profile clients, also struggles with Kennard’s opinion:

“The Supreme Court decided that two provisions of California law can protect labor picketing against trespass claims, even though the picketing occurred on private property – a parking lot and entrance to a Ralphs store.  The picketing would be allowed even if non-labor picketing would constitute a trespass.  The way the law allows this is by limiting the grounds under which courts will issue injunctions against picketing to narrow circumstances.  For good measure, the law makes it harder to prove those circumstances than other types of cases. 

“That sounds a lot like a First Amendment violation to me, because the government is picking and choosing what kind of speech is worthy of protection and what is not.”

And the First Amendment, which is generally considered the most important part of the Bill of Rights, sure as hell trumps an odd interpretation of California’s collective-bargaining laws. This passage from the appellate ruling that the California Supreme Court overturned makes that point better than I ever could:

“Laws which prohibit speech based on its content — or, in this case, based on the failure of the speech to address a ‘labor dispute’ — are presumptively invalid. (Simon & Shuster, Inc. v. Members of N.Y. State Crime Victims Bd. (1991) 502 U.S. 105, 116.) Such laws are permitted only if they serve a compelling state interest and are narrowly drawn to accomplish that interest. (Mosley, supra, 408 U.S. 92, 95.) The desire to provide the broadest forum for expression in labor disputes is not a compelling state interest. (Carey v. Brown, supra, 447 U.S. 455, 466.) 

“We conclude the state may not act to selectively create a free speech right applicable only to the few, while excluding all others, in the absence of a compelling state interest.”

So now even the California Supreme Court is firmly in labor’s camp. Great. Just great.

Things like this make me feel like buying Lotto tickets.

By John Seiler

In civics and law classes, we’re taught that the court system is “objective” and “follows the Constitution.” In fact, courts are just more political bodies. And as someone said, the U.S. Supreme Court “reads the newspapers.”

That’s also true of the California Supreme Court. It just ruled that private property can be invaded by union protesters, but not by other protesters or by people gathering signatures for petitions.

What a coincidence. Just last month, unions demonstrated their total control over California by passing the Proposition 30 tax increase, defeating the Proposition 32 limit on taking union dues for politics directly from employee paychecks and pushing a Democratic supermajority into power in the state Legislature. Two years ago, unions put Jerry Brown on the governor’s throne; he calls them “my troops.”

As to protests, the U.S. Constitution is clear: they are allowed on public property, such as sidewalks, but not on private property. The Fifth Amendment stipulates that no person may “be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

When the government allows unions — and only unions — to trample on your property, then your property is being “taken for public use, without just compensation” — or any compensation.

The Fourteenth Amendment, enacted after slavery was abolished, also guaranteed, “nor shall any State deprive any person of life, liberty, or property, without due process of law.”

State courts allowing unions to march on your private property obviously is a State — in the case before us, California — depriving property owners of their “property, without due process of law.”

What about the rights to free speech and to protest, as guaranteed by the First Amendment? Those certainly are allowed — on public property, or on private property with the owner’s permission. But no one, obviously, has a right to barge into your living room and start protesting your beliefs; that’s your private property. And the building, parking lot and private sidewalks of a business are its private property.

Except for union protests in the state of Unionifornia.