First Amendment challenge in Oregon

2024Instead, HotChalk argued that the trial court should apply the regular discovery standard provided in ORCP 36 B(1), which allows parties to “inquire into any matter, not privileged, that is relevant to the claim or defense of the party seeking discovery.”6 Under that rule, discovery is not limited to information that would be admis- sible at trial “if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Id.

2024Instead, HotChalk argued that the trial court should apply the regular discovery standard provided in ORCP 36 B(1), which allows parties to “inquire into any matter, not privileged, that is relevant to the claim or defense of the party seeking discovery.”6 Under that rule, discovery is not limited to information that would be admis- sible at trial “if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Id.

2002Four members of the Court concluded that nude dancing "falls within the outer ambit of the First Amendment's protection." 529 U.S. at 289 , 120 S.Ct. 1382 .

2002Four members of the Court concluded that nude dancing "falls within the outer ambit of the First Amendment's protection." 529 U.S. at 289 , 120 S.Ct. 1382 .

2000We do not decide whether that assumption is correct in resolving whether the custom plate system constitutes a nonpublic forum. [17] See OAR 735-46-010(7) (1995) (bars approval of excretory-related words on custom license plates); OAR 735-46-000(6) (1995) (defines excretory-related words to include words that refer to the external elimination of feces). [1] I also concur with the lead opinion's First Amendment analysis. [2] In State v. Stoneman, 323 Or. 536 , 920 P.2d 535 (1996), the Supreme Court wrote: "If the enactment's restraint on speech or communication lies outside an historical except

2000We do not decide whether that assumption is correct in resolving whether the custom plate system constitutes a nonpublic forum. [17] See OAR 735-46-010(7) (1995) (bars approval of excretory-related words on custom license plates); OAR 735-46-000(6) (1995) (defines excretory-related words to include words that refer to the external elimination of feces). [1] I also concur with the lead opinion's First Amendment analysis. [2] In State v. Stoneman, 323 Or. 536 , 920 P.2d 535 (1996), the Supreme Court wrote: "If the enactment's restraint on speech or communication lies outside an historical except

2022Plaintiff appealed, and the Court of Appeals reversed and remanded, concluding that first, the absence of the text of the review was not dispositive of the summary judgment motion; second, the Google review was on a “matter of public concern,” satisfying one of the prongs of defendants’ asserted First Amendment defense; third, a speaker’s motive or purpose in speaking is relevant to whether speech is on a “matter of public concern”; and fourth, to over- come defendants’ First Amendment defense, plaintiff need not show that defen- dants acted with “actual malice” because defendants were nonmedi

2022Following this court’s holding in Wheeler v. Green, 286 Or 99 , 593 P2d 777 (1979), the court held that plaintiff need not establish that defendants acted with actual malice to overcome the First Amendment defense because that stan- dard applied only to media defendants, a status defendants lacked, and that, in any case, plaintiff supplied sufficient evidence to establish actual malice for the purposes of sum- mary judgment.

2022Plaintiff appealed, and the Court of Appeals reversed and remanded, concluding that first, the absence of the text of the review was not dispositive of the summary judgment motion; second, the Google review was on a “matter of public concern,” satisfying one of the prongs of defendants’ asserted First Amendment defense; third, a speaker’s motive or purpose in speaking is relevant to whether speech is on a “matter of public concern”; and fourth, to over- come defendants’ First Amendment defense, plaintiff need not show that defen- dants acted with “actual malice” because defendants were nonmedi

2022Plaintiff appealed, and the Court of Appeals reversed and remanded, concluding that first, the absence of the text of the review was not dispositive of the summary judgment motion; second, the Google review was on a “matter of public concern,” satisfying one of the prongs of defendants’ asserted First Amendment defense; third, a speaker’s motive or purpose in speaking is relevant to whether speech is on a “matter of public concern”; and fourth, to over- come defendants’ First Amendment defense, plaintiff need not show that defen- dants acted with “actual malice” because defendants were nonmedi

2022Lowell v. Wright, 306 Or App 325, 334-35 , 473 P3d 1094 (2020).

2022Lowell v. Wright, 306 Or App 325, 334-35 , 473 P3d 1094 (2020).

2022Cite as 369 Or 806 (2022) 843 Thus, although I agree with much of what the major- ity opinion holds—including its discussion of the missing text of the review, its conclusion regarding the role of motive in identifying speech of public concern, and its ultimate disposition—I disagree with key parts of the majority’s First Amendment analysis.

2022Cite as 369 Or 806 (2022) 843 Thus, although I agree with much of what the major- ity opinion holds—including its discussion of the missing text of the review, its conclusion regarding the role of motive in identifying speech of public concern, and its ultimate disposition—I disagree with key parts of the majority’s First Amendment analysis.

2022The Supreme Court explained the falsity require- ment in Philadelphia Newspapers, Inc. v. Hepps, 475 US 767 , 106 S Ct 1558 , 89 L Ed 2d 783 (1986), and Milkovich.

2022The Supreme Court explained the falsity require- ment in Philadelphia Newspapers, Inc. v. Hepps, 475 US 767 , 106 S Ct 1558 , 89 L Ed 2d 783 (1986), and Milkovich.

2020See State v. Campbell/Campf/Collins, 265 Or 82, 94 , 506 P2d 163 (1973) (rejecting challenge under Article IV, section 1, of the Oregon Constitution to former ORS 254.590 (1971), renumbered as ORS 260.565 (1981); repealed by Or Laws 1983, ch 756, § 13, which banned payment of initiative petition circulators and made payment of circulators a misdemeanor);6 Wolfe v. Brown, 294 Or App 800 , 432 P3d 1121 (2018) (address- ing First Amendment challenge to pay-per-signature ban in context of administrative evidentiary ruling).

2020See State v. Campbell/Campf/Collins, 265 Or 82, 94 , 506 P2d 163 (1973) (rejecting challenge under Article IV, section 1, of the Oregon Constitution to former ORS 254.590 (1971), renumbered as ORS 260.565 (1981); repealed by Or Laws 1983, ch 756, § 13, which banned payment of initiative petition circulators and made payment of circulators a misdemeanor);6 Wolfe v. Brown, 294 Or App 800 , 432 P3d 1121 (2018) (address- ing First Amendment challenge to pay-per-signature ban in context of administrative evidentiary ruling).

2020In Nixon v. Shrink Missouri Government PAC, 528 US 377 , 120 S Ct 897 , 145 L Ed 2d 886 (2000), the Supreme Court rejected a First Amendment challenge to Missouri’s $1,075 individual contribution limit in statewide elections.

2020In Nixon v. Shrink Missouri Government PAC, 528 US 377 , 120 S Ct 897 , 145 L Ed 2d 886 (2000), the Supreme Court rejected a First Amendment challenge to Missouri’s $1,075 individual contribution limit in statewide elections.

2016Defendant’s first alternative contention is that the First Amendment standard for defamation claims by public figures and officials requires plaintiff to establish that defendant acted either with “actual malice,” New York Times Co. v. Sullivan, 376 US 254, 279-80 , 84 S Ct 710 , 11 L Ed 2d 686 (1964), or “express malice,” McDonald v. Smith, 472 US 479, 484 , 105 S Ct 2787 , 86 L Ed 2d 384 (1985).

2016Defendant’s first alternative contention is that the First Amendment standard for defamation claims by public figures and officials requires plaintiff to establish that defendant acted either with “actual malice,” New York Times Co. v. Sullivan, 376 US 254, 279-80 , 84 S Ct 710 , 11 L Ed 2d 686 (1964), or “express malice,” McDonald v. Smith, 472 US 479, 484 , 105 S Ct 2787 , 86 L Ed 2d 384 (1985).

2016Healthy City Board of Ed. v. Doyle, 429 US 274, 287 , 97 S Ct 568 , 50 L Ed 2d 471 (1977) (in public employment retaliation claim based on exercise of First Amendment rights, a plaintiff must show that the plaintiffs conduct was constitutionally protected and that his conduct was a “motivating factor” in the adverse employment action; then the burden shifts to the employer to show that it would have reached the same decision absent the protected conduct).

2016Healthy City Board of Ed. v. Doyle, 429 US 274, 287 , 97 S Ct 568 , 50 L Ed 2d 471 (1977) (in public employment retaliation claim based on exercise of First Amendment rights, a plaintiff must show that the plaintiffs conduct was constitutionally protected and that his conduct was a “motivating factor” in the adverse employment action; then the burden shifts to the employer to show that it would have reached the same decision absent the protected conduct).

2016Defendant’s first alternative contention is that the First Amendment standard for defamation claims by public figures and officials requires plaintiff to establish that defendant acted either with “actual malice,” New York Times Co. v. Sullivan, 376 US 254, 279-80 , 84 S Ct 710 , 11 L Ed 2d 686 (1964), or “express malice,” McDonald v. Smith, 472 US 479, 484 , 105 S Ct 2787 , 86 L Ed 2d 384 (1985).

2016Defendant’s first alternative contention is that the First Amendment standard for defamation claims by public figures and officials requires plaintiff to establish that defendant acted either with “actual malice,” New York Times Co. v. Sullivan, 376 US 254, 279-80 , 84 S Ct 710 , 11 L Ed 2d 686 (1964), or “express malice,” McDonald v. Smith, 472 US 479, 484 , 105 S Ct 2787 , 86 L Ed 2d 384 (1985).

2016As we note below, however, even if the trial court erred in admitting that testimony, any such error was harmless. 359 Or at 449 n 46.

2014The trial court rejected that argument, and the Court of Appeals declined to reach the First Amendment issue, reasoning that “any opinion [it] might render based on the First and Fourteenth Amendments would be premature” because the court had not yet determined “whether the state’s law *** ha[d] deprived defendants of the rights they [sought] to vindicate under the United States Constitution.” Babson, 249 Or App at 307 .

2010Id. at 428-29 (citing Murphy, 238 Or at 244 ). 11 The First Amendment defense was not at issue in that case. 12 Although defendants also sought a directed verdict on the alternate ground that the statements were qualifiedly privileged and plaintiff had failed to present sufficient evidence for a jury to find that the privilege had been abused, they did not renew that argument in their JNOV motion, and they are not defending the JNOV on that basis on appeal.

2010Id. at 428-29 (citing Murphy, 238 Or at 244 ). 11 The First Amendment defense was not at issue in that case. 12 Although defendants also sought a directed verdict on the alternate ground that the statements were qualifiedly privileged and plaintiff had failed to present sufficient evidence for a jury to find that the privilege had been abused, they did not renew that argument in their JNOV motion, and they are not defending the JNOV on that basis on appeal.

2010Id. at 428-29 (citing Murphy, 238 Or at 244 ). 11 The First Amendment defense was not at issue in that case. 12 Although defendants also sought a directed verdict on the alternate ground that the statements were qualifiedly privileged and plaintiff had failed to present sufficient evidence for a jury to find that the privilege had been abused, they did not renew that argument in their JNOV motion, and they are not defending the JNOV on that basis on appeal.

2010Id. at 428-29 (citing Murphy, 238 Or at 244 ). 11 The First Amendment defense was not at issue in that case. 12 Although defendants also sought a directed verdict on the alternate ground that the statements were qualifiedly privileged and plaintiff had failed to present sufficient evidence for a jury to find that the privilege had been abused, they did not renew that argument in their JNOV motion, and they are not defending the JNOV on that basis on appeal.

2005It is true that, in one case, Connick v. Myers, 461 U.S. 138, 146 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1983), the Court held that a public employer committed no First Amendment violation by firing a public employee who, in her capacity as such, expressed herself on a matter of purely private concern.

2005It is true that, in one case, Connick v. Myers, 461 U.S. 138, 146 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1983), the Court held that a public employer committed no First Amendment violation by firing a public employee who, in her capacity as such, expressed herself on a matter of purely private concern.