First Amendment challenge in California

2026(Citing In re George T. (2004) 33 Cal.4th 620, 634 (George T.).) “To avoid the risk of punishing protected First Amendment speech,” the term “ ‘‘threat’ ” in section 69 has been construed “to mean a threat of unlawful violence used in an attempt to deter the officer.” (Manuel G., supra, 16 Cal.4th at pp. 814–815.) When a defendant raises a plausible First Amendment defense to a section 69 charge, the appellate court makes an independent examination of the record to determine whether the communication at issue constitutes a true criminal threat.

2026(People v. Smolkin (2020) 49 Cal.App.5th 183 , 188; Cf. George T., supra, 33 Cal.4th at p. 634 .) Although appellant fails to show he raised a plausible First Amendment defense, we independently consider the constitutional issue.

2021(See People v. Jackson (2005) 128 Cal.App.4th 1009, 1020 [cited by maj. opn., ante, p. 19]; see also Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 499 .) Because this case does not involve a First Amendment issue, these cases do not bear upon the standard of review that should be applied here. 5 PEOPLE v. VIVAR Corrigan, J., concurring and dissenting credible evidence (ibid.), they are not binding upon the court as they would be under the substantial evidence standard.

2012Defendant requests that we “employ [an] independent review standard,” due to the “plausible First Amendment defense to [the] charge.” “In Bose Corp. v. Consumers Union of U. S., Inc. (1984) 466 U. S. 485, 499 [ 80 L.Ed.2d 502 , 104 S.Ct. 1949 ], the United States Supreme Court explained that ‘in cases raising First Amendment issues ... an appellate court has an obligation to “make an independent examination of the whole record” in order to make sure that “the judgment does not constitute a forbidden intrusion on the field of free expression.” ’ [Citation.]” (People v. Lindberg (2008) 45 Cal.4t

2008However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.’ (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 339-340 [ 41 L.Ed.2d 789 , 94 S.Ct. 2997 ], fn. omitted; Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 600-601 [ 131 Cal.Rptr. 641 , 552 P.2d 425 ].)” (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 259-260 [ 228 Cal.Rptr. 206 , 721 P.2d 87 ].) To state a defamation claim that survives a First Amendment challenge, thus, a plaintiff must present evidence of a statement of f

2008However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.’ (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 339-340 [ 41 L.Ed.2d 789 , 94 S.Ct. 2997 ], fn. omitted; Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 600-601 [ 131 Cal.Rptr. 641 , 552 P.2d 425 ].)” (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 259-260 [ 228 Cal.Rptr. 206 , 721 P.2d 87 ].) To state a defamation claim that survives a First Amendment challenge, thus, a plaintiff must present evidence of a statement of f

2025As noted earlier, the high court has explained that when applying strict scrutiny, such “[c]ontext matters.” (Grutter, supra, 539 U.S. at p. 327 ; see also 303 Creative, supra, 600 U.S. at p. 600, fn. 6 [observing that “context matters” in considering First Amendment challenge to application of public accommodations law].) In the context of this facial challenge, I find it appropriate to consider this literature, advanced by amici curiae, insofar as it illuminates the state’s interest in enacting and enforcing the challenged provision.

2025As noted earlier, the high court has explained that when applying strict scrutiny, such “[c]ontext matters.” (Grutter, supra, 539 U.S. at p. 327 ; see also 303 Creative, supra, 600 U.S. at p. 600, fn. 6 [observing that “context matters” in considering First Amendment challenge to application of public accommodations law].) In the context of this facial challenge, I find it appropriate to consider this literature, advanced by amici curiae, insofar as it illuminates the state’s interest in enacting and enforcing the challenged provision.

2011(Ibid.; see § 391 et seq.) And Simpson v. Municipal Court (1971) 14 Cal.App.3d 591, 598 [ 92 Cal.Rptr. 417 ], held that Penal Code section 17If, which makes even peaceable picketing in the State Capitol building unlawful, was not a First Amendment violation because, among other things, picketing in that particular place “would tend to chill and repress the views of others.” (Simpson, at p. 598.) Under section 425.16, subdivision (c), the plaintiff will be required to pay the government’s attorney fees only if the plaintiff cannot demonstrate that the complaint “is legally sufficient and suppor

2011(Ibid.; see § 391 et seq.) And Simpson v. Municipal Court (1971) 14 Cal.App.3d 591, 598 [ 92 Cal.Rptr. 417 ], held that Penal Code section 17If, which makes even peaceable picketing in the State Capitol building unlawful, was not a First Amendment violation because, among other things, picketing in that particular place “would tend to chill and repress the views of others.” (Simpson, at p. 598.) Under section 425.16, subdivision (c), the plaintiff will be required to pay the government’s attorney fees only if the plaintiff cannot demonstrate that the complaint “is legally sufficient and suppor

2008However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.’ (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 339-340 [ 41 L.Ed.2d 789 , 94 S.Ct. 2997 ], fn. omitted; Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 600-601 [ 131 Cal.Rptr. 641 , 552 P.2d 425 ].)” (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 259-260 [ 228 Cal.Rptr. 206 , 721 P.2d 87 ].) To state a defamation claim that survives a First Amendment challenge, thus, a plaintiff must present evidence of a statement of f

2008However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.’ (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 339-340 [ 41 L.Ed.2d 789 , 94 S.Ct. 2997 ], fn. omitted; Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 600-601 [ 131 Cal.Rptr. 641 , 552 P.2d 425 ].)” (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 259-260 [ 228 Cal.Rptr. 206 , 721 P.2d 87 ].) To state a defamation claim that survives a First Amendment challenge, thus, a plaintiff must present evidence of a statement of f

2019And second, “[t]o state a defamation claim that survives a First Amendment challenge, . . . a plaintiff must present evidence of a statement of fact that is ‘provably false.’ ” (Nygård, supra, 159 Cal.App.4th at p. 1048 .) “ ‘The dispositive question . . . is whether a reasonable trier of fact could conclude that the published statements imply a provably false factual assertion.’ ” (Ibid.) None of the remaining statements plaintiff cites, recited in the margin, meets that standard.8 8 The allegedly false statements not directly related to the LAPD investigation, along with plaintiff’s assertio

2019And second, “[t]o state a defamation claim that survives a First Amendment challenge, . . . a plaintiff must present evidence of a statement of fact that is ‘provably false.’ ” (Nygård, supra, 159 Cal.App.4th at p. 1048 .) “ ‘The dispositive question . . . is whether a reasonable trier of fact could conclude that the published statements imply a provably false factual assertion.’ ” (Ibid.) None of the remaining statements plaintiff cites, recited in the margin, meets that standard.8 8 The allegedly false statements not directly related to the LAPD investigation, along with plaintiff’s assertio

2016(R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188 [ 135 Cal.Rptr.3d 791 ].) We engage in a further analysis when a restraining order is alleged to infringe on constitutional rights of expression. “ ‘[F]acts that are germane to’ the First Amendment analysis ‘must be sorted out and reviewed de novo, independently of any previous determinations by the trier of fact.’ [Citation.] And ‘the reviewing court must “ ‘examine for [itself] the statements in issue and the circumstances under which they were made to see . . . whether they are of a character which the principles of the First Amendment . . . pro

2016(R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188 [ 135 Cal.Rptr.3d 791 ].) We engage in a further analysis when a restraining order is alleged to infringe on constitutional rights of expression. “ ‘[F]acts that are germane to’ the First Amendment analysis ‘must be sorted out and reviewed de novo, independently of any previous determinations by the trier of fact.’ [Citation.] And ‘the reviewing court must “ ‘examine for [itself] the statements in issue and the circumstances under which they were made to see . . . whether they are of a character which the principles of the First Amendment . . . pro

2016(People v. Ervine (2009) 47 Cal.4th 745, 783 [constitutional claim forfeited because appellant did not properly raise it below]; People 4 v. Clayburg (2012) 211 Cal.App.4th 86, 93 [First Amendment claim forfeited by failure to raise it below].) FACTUAL BACKGROUND In 2013 M.H. and Matthew attended University City High School.

2015Respondent contends that appellant has forfeited this claim because he cannot raise the free speech claim for the first time on appeal. “ ‘ “[N]o procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” ’ [Citations.]” (In re Sheena K. (2007) 40 Cal.4th 875, 880-881 (Sheena K.), quoting United States v. Olano (1993) 507 U.S. 725, 731 ; People v. Clayburg (2012) 211 Cal.App.4t

2008However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.’ (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 339-340 [ 41 L.Ed.2d 789 , 94 S.Ct. 2997 ], fn. omitted; Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 600-601 [ 131 Cal.Rptr. 641 , 552 P.2d 425 ].)” (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 259-260 [ 228 Cal.Rptr. 206 , 721 P.2d 87 ].) To state a defamation claim that survives a First Amendment challenge, thus, a plaintiff must present evidence of a statement of f

2008However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.’ (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 339-340 [ 41 L.Ed.2d 789 , 94 S.Ct. 2997 ], fn. omitted; Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 600-601 [ 131 Cal.Rptr. 641 , 552 P.2d 425 ].)” (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 259-260 [ 228 Cal.Rptr. 206 , 721 P.2d 87 ].) To state a defamation claim that survives a First Amendment challenge, thus, a plaintiff must present evidence of a statement of f

2006Because a constitutional privilege is implicated, we must subject the trial court’s order to the relatively searching standards of “ ‘constitutional fact review.’ ” (DVD Copy Control Assn., Inc. v. Burner (2003) 31 Cal.4th 864, 889 [ 4 Cal.Rptr.3d 69 , 75 P.3d 1 ] (Bunner), quoting Rankin v. McPherson *1467 (1987) 483 U.S. 378, 385, fn. 8 [ 97 L.Ed.2d 315 , 107 S.Ct. 2891 ].) “ ‘[W]here a Federal right has been denied as the result of a [factual] finding ... or where a conclusion of law as to a Federal right and a finding of fact are so intermingled as to make it necessary, in order to pass up

2006Because a constitutional privilege is implicated, we must subject the trial court’s order to the relatively searching standards of “ ‘constitutional fact review.’ ” (DVD Copy Control Assn., Inc. v. Burner (2003) 31 Cal.4th 864, 889 [ 4 Cal.Rptr.3d 69 , 75 P.3d 1 ] (Bunner), quoting Rankin v. McPherson *1467 (1987) 483 U.S. 378, 385, fn. 8 [ 97 L.Ed.2d 315 , 107 S.Ct. 2891 ].) “ ‘[W]here a Federal right has been denied as the result of a [factual] finding ... or where a conclusion of law as to a Federal right and a finding of fact are so intermingled as to make it necessary, in order to pass up

1996(Chicago Teachers Union, supra, 475 U.S. 292 .) Although the Supreme Court opinion focuses most heavily on a First Amendment issue not present in the instant case, the Court expressly agreed with Judge Posner that “the ‘most conspicuous feature of the procedure is that from start to finish it is entirely controlled by the union, which is an interested party, since it is the recipient of the agency fees paid by the dissenting employees.’ ” ( 475 U.S. at p. 308 [ 89 L.Ed.2d at p. 248 ], quoting Hudson v. Chicago Teachers Local No. 1, supra, 743 F.2d at pp. 1194-1195.) The Supreme Court observed

1996(Chicago Teachers Union, supra, 475 U.S. 292 .) Although the Supreme Court opinion focuses most heavily on a First Amendment issue not present in the instant case, the Court expressly agreed with Judge Posner that “the ‘most conspicuous feature of the procedure is that from start to finish it is entirely controlled by the union, which is an interested party, since it is the recipient of the agency fees paid by the dissenting employees.’ ” ( 475 U.S. at p. 308 [ 89 L.Ed.2d at p. 248 ], quoting Hudson v. Chicago Teachers Local No. 1, supra, 743 F.2d at pp. 1194-1195.) The Supreme Court observed

2011(Ibid.; see § 391 et seq.) And Simpson v. Municipal Court (1971) 14 Cal.App.3d 591, 598 [ 92 Cal.Rptr. 417 ], held that Penal Code section 17If, which makes even peaceable picketing in the State Capitol building unlawful, was not a First Amendment violation because, among other things, picketing in that particular place “would tend to chill and repress the views of others.” (Simpson, at p. 598.) Under section 425.16, subdivision (c), the plaintiff will be required to pay the government’s attorney fees only if the plaintiff cannot demonstrate that the complaint “is legally sufficient and suppor

2011(Ibid.; see § 391 et seq.) And Simpson v. Municipal Court (1971) 14 Cal.App.3d 591, 598 [ 92 Cal.Rptr. 417 ], held that Penal Code section 17If, which makes even peaceable picketing in the State Capitol building unlawful, was not a First Amendment violation because, among other things, picketing in that particular place “would tend to chill and repress the views of others.” (Simpson, at p. 598.) Under section 425.16, subdivision (c), the plaintiff will be required to pay the government’s attorney fees only if the plaintiff cannot demonstrate that the complaint “is legally sufficient and suppor

2010(See, e.g., McLaughlin v. Walnut Properties, Inc. (2004) 119 Cal.App.4th 293, 297 [ 14 Cal.Rptr.3d 369 ].) Virginia v. Black involved a First Amendment challenge to a Virginia statute that criminalized cross burning. ( Virginia v. Black, supra, 538 U.S. at p. 347 .) In the consolidated appeals of three defendants convicted under the statute, the Supreme Court of Virginia held that the statute was unconstitutional on its face, and the United States Supreme Court affirmed in part, vacated in part, and remanded. ( Id. at pp. 348, 351, 367-368.) The statute prohibited cross burning only if done "`

2010(See, e.g., McLaughlin v. Walnut Properties, Inc. (2004) 119 Cal.App.4th 293, 297 [ 14 Cal.Rptr.3d 369 ].) Virginia v. Black involved a First Amendment challenge to a Virginia statute that criminalized cross burning. ( Virginia v. Black, supra, 538 U.S. at p. 347 .) In the consolidated appeals of three defendants convicted under the statute, the Supreme Court of Virginia held that the statute was unconstitutional on its face, and the United States Supreme Court affirmed in part, vacated in part, and remanded. ( Id. at pp. 348, 351, 367-368.) The statute prohibited cross burning only if done "`

2016(R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188 [ 135 Cal.Rptr.3d 791 ].) We engage in a further analysis when a restraining order is alleged to infringe on constitutional rights of expression. “ ‘[F]acts that are germane to’ the First Amendment analysis ‘must be sorted out and reviewed de novo, independently of any previous determinations by the trier of fact.’ [Citation.] And ‘the reviewing court must “ ‘examine for [itself] the statements in issue and the circumstances under which they were made to see . . . whether they are of a character which the principles of the First Amendment . . . pro

2016(R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188 [ 135 Cal.Rptr.3d 791 ].) We engage in a further analysis when a restraining order is alleged to infringe on constitutional rights of expression. “ ‘[F]acts that are germane to’ the First Amendment analysis ‘must be sorted out and reviewed de novo, independently of any previous determinations by the trier of fact.’ [Citation.] And ‘the reviewing court must “ ‘examine for [itself] the statements in issue and the circumstances under which they were made to see . . . whether they are of a character which the principles of the First Amendment . . . pro

2015They rely on the reasoning in Wisconsin v. Mitchell (1993) 508 U.S. 476 [ 124 L.Ed.2d 436 , 113 S.Ct. 2194 ] (Mitchell), where the United States Supreme Court rejected a First Amendment challenge to a penalty-enhancement statute aimed at bias-motivated crimes.

2015They rely on the reasoning in Wisconsin v. Mitchell (1993) 508 U.S. 476 [ 124 L.Ed.2d 436 , 113 S.Ct. 2194 ] (Mitchell), where the United States Supreme Court rejected a First Amendment challenge to a penalty-enhancement statute aimed at bias-motivated crimes.

2005It is necessary ‘because the reaches of the First Amendment are ultimately defined by facts it is held to embrace’ and an appellate court must decide ‘whether a given course of conduct falls on the near or far side of the line of constitutional protection.’ (Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.[, supra,] 515 U.S. 557, 567 [ 132 L.Ed.2d 487 , 115 S.Ct. 2338 ], citing Bose, supra, 466 U.S. at p. 503 .)” (George T., supra, 33 Cal.4th at pp. 631-632.) “We conclude that a reviewing court should make an independent examination of the record in a section 422 case w

2005It is necessary ‘because the reaches of the First Amendment are ultimately defined by facts it is held to embrace’ and an appellate court must decide ‘whether a given course of conduct falls on the near or far side of the line of constitutional protection.’ (Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.[, supra,] 515 U.S. 557, 567 [ 132 L.Ed.2d 487 , 115 S.Ct. 2338 ], citing Bose, supra, 466 U.S. at p. 503 .)” (George T., supra, 33 Cal.4th at pp. 631-632.) “We conclude that a reviewing court should make an independent examination of the record in a section 422 case w

2018Rather, the anti-SLAPP statute applies to all claims that are based on acts in furtherance of protected rights of petition and free speech. (§ 425.16, subds. (b)(1), (e); see Navellier, supra, 29 Cal.4th at p. 89 .) 22 Further, and contrary to MBT’s suggestion, Ruiz’s filing of his complaint against MBAG did not prevent MBT from seeking to enforce Ruiz’s performance of the 2010 arbitration agreements with MBT. “[T]he anti-SLAPP statute [does not] allow[] a defendant to escape the consequences of wrongful conduct by asserting a spurious First Amendment defense. [Citation.] In fact, the statute

2018Rather, the anti-SLAPP statute applies to all claims that are based on acts in furtherance of protected rights of petition and free speech. (§ 425.16, subds. (b)(1), (e); see Navellier, supra, 29 Cal.4th at p. 89 .) 22 Further, and contrary to MBT’s suggestion, Ruiz’s filing of his complaint against MBAG did not prevent MBT from seeking to enforce Ruiz’s performance of the 2010 arbitration agreements with MBT. “[T]he anti-SLAPP statute [does not] allow[] a defendant to escape the consequences of wrongful conduct by asserting a spurious First Amendment defense. [Citation.] In fact, the statute

2016(R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188 [ 135 Cal.Rptr.3d 791 ].) We engage in a further analysis when a restraining order is alleged to infringe on constitutional rights of expression. “ ‘[F]acts that are germane to’ the First Amendment analysis ‘must be sorted out and reviewed de novo, independently of any previous determinations by the trier of fact.’ [Citation.] And ‘the reviewing court must “ ‘examine for [itself] the statements in issue and the circumstances under which they were made to see . . . whether they are of a character which the principles of the First Amendment . . . pro

2016(R.D. v. P.M. (2011) 202 Cal.App.4th 181, 188 [ 135 Cal.Rptr.3d 791 ].) We engage in a further analysis when a restraining order is alleged to infringe on constitutional rights of expression. “ ‘[F]acts that are germane to’ the First Amendment analysis ‘must be sorted out and reviewed de novo, independently of any previous determinations by the trier of fact.’ [Citation.] And ‘the reviewing court must “ ‘examine for [itself] the statements in issue and the circumstances under which they were made to see . . . whether they are of a character which the principles of the First Amendment . . . pro

1995(Waters v. Churchill , supra,_U.S. at p__ [128 L.Ed.2d at pp. 697-699, 114 S.Ct. at pp. 1886-1888]; Pickering v. Board of Education, supra, 391 U.S. at p. 568 [ 20 L.Ed.2d at p. 817 ].) “The key to First Amendment analysis of government employment decisions, then, is this: The government’s interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer.

1995(Waters v. Churchill , supra,_U.S. at p__ [128 L.Ed.2d at pp. 697-699, 114 S.Ct. at pp. 1886-1888]; Pickering v. Board of Education, supra, 391 U.S. at p. 568 [ 20 L.Ed.2d at p. 817 ].) “The key to First Amendment analysis of government employment decisions, then, is this: The government’s interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer.

2025(People v. Lowery (2011) 52 Cal.4th 419, 427 (Lowery) [quoting Black, at p. 359.].) When a defendant raises a plausible First Amendment defense, we independently examine the record “to ensure that a speaker’s free speech rights have not been infringed by a trier of fact’s determination that the communication at issue constitutes a criminal threat.” (In re George T. (2004) 33 Cal.4th 620, 632 (George T.).) “[I]ndependent review is different from de novo review; we do not make an entirely ‘ “original appraisal” ’ of the evidence.

2020Thus, we must make an independent legal determination whether a “reasonable listener would understand” the February 2017 letter to constitute “ ‘a serious expression of 6 an intent to commit an act of unlawful violence’ ” “in light of the context and surrounding circumstances.” (Lowery, supra, 52 Cal.4th at p. 427 ; see also In re Ernesto H. (2004) 125 Cal.App.4th 298 , 302–303 [“because the minor raises a ‘plausible First Amendment defense,’ we make an ‘independent examination of the record’ in accord with George T., ‘to ensure that the speaker’s free speech rights have not been infringed by

2026A. The First Amendment Defense Generally The “First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” (Garcetti v. Ceballos (2006) 547 U.S. 410, 417 .) “The discipline imposed on a public employee may 10 not infringe constitutionally protected free speech.” (Department of Corrections v. State Personnel Bd. (1997) 59 Cal.4th 131, 139 .) A threshold question in considering a First Amendment defense in this context “is whether the employee’s challenged speech may be ‘fairly characterized as constituting speech on a

2026A. The First Amendment Defense Generally The “First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” (Garcetti v. Ceballos (2006) 547 U.S. 410, 417 .) “The discipline imposed on a public employee may 10 not infringe constitutionally protected free speech.” (Department of Corrections v. State Personnel Bd. (1997) 59 Cal.4th 131, 139 .) A threshold question in considering a First Amendment defense in this context “is whether the employee’s challenged speech may be ‘fairly characterized as constituting speech on a

2021(O’Brien, supra, 391 U.S. at p. 377 .) That factor appears in the context of a First Amendment challenge to a time, place, and manner restriction on speech.

2021(O’Brien, supra, 391 U.S. at p. 377 .) That factor appears in the context of a First Amendment challenge to a time, place, and manner restriction on speech.

2012(Wisconsin v. Mitchell (1993) 508 U.S. 476, 487 [ 124 L.Ed.2d 436 , 113 S.Ct. 2194 ] [holding that penalty enhancement statute “is aimed at conduct unprotected by the First Amendment”]; In re M.S. (1995) 10 Cal.4th 698, 720-726 [ 42 Cal.Rptr.2d 355 , 896 P.2d 1365 ] [upholding hate crimes statute against First Amendment claim alleging content-based discrimination].

2012(Wisconsin v. Mitchell (1993) 508 U.S. 476, 487 [ 124 L.Ed.2d 436 , 113 S.Ct. 2194 ] [holding that penalty enhancement statute “is aimed at conduct unprotected by the First Amendment”]; In re M.S. (1995) 10 Cal.4th 698, 720-726 [ 42 Cal.Rptr.2d 355 , 896 P.2d 1365 ] [upholding hate crimes statute against First Amendment claim alleging content-based discrimination].

2018The government speech doctrine was not invoked at all in Glickman v. Wileman Brothers & Elliott, Inc. (1997) 521 U.S. 457 , 117 S.Ct. 2130 , 138 L.Ed.2d 585 ( Glickman ), which rejected a First Amendment challenge to compelled assessments for advertising under marketing orders issued pursuant to the federal Agricultural Marketing Agreement Act of 1937. ( 7 U.S.C. § 601 et seq. ; see Glickman , at p. 482, fn. 2, 117 S.Ct. 2130 (dis. opn. of Souter, J.) [observing that the defendant had not argued "that the advertisements at issue represent so-called 'government speech' "].) Even without the gov

2018The government speech doctrine was not invoked at all in Glickman v. Wileman Brothers & Elliott, Inc. (1997) 521 U.S. 457 , 117 S.Ct. 2130 , 138 L.Ed.2d 585 ( Glickman ), which rejected a First Amendment challenge to compelled assessments for advertising under marketing orders issued pursuant to the federal Agricultural Marketing Agreement Act of 1937. ( 7 U.S.C. § 601 et seq. ; see Glickman , at p. 482, fn. 2, 117 S.Ct. 2130 (dis. opn. of Souter, J.) [observing that the defendant had not argued "that the advertisements at issue represent so-called 'government speech' "].) Even without the gov

2003As such, "any factual findings subsumed" in the trade secret misappropriation determination "are subject to constitutional fact review." ( Rankin v. McPherson (1987) 483 U.S. 378, 385, fn. 8 , 107 S.Ct. 2891 , 97 L.Ed.2d 315 .) "[W]here a Federal right has been denied as the result of a [factual] finding ... or where a conclusion of law as to a Federal right and a finding of fact are so intermingled as to make it necessary, in order to pass upon the Federal question, to analyze the facts," the reviewing court must independently review these findings. ( Fiske v. State of Kansas (1927) 274 U.S.

2003As such, "any factual findings subsumed" in the trade secret misappropriation determination "are subject to constitutional fact review." ( Rankin v. McPherson (1987) 483 U.S. 378, 385, fn. 8 , 107 S.Ct. 2891 , 97 L.Ed.2d 315 .) "[W]here a Federal right has been denied as the result of a [factual] finding ... or where a conclusion of law as to a Federal right and a finding of fact are so intermingled as to make it necessary, in order to pass upon the Federal question, to analyze the facts," the reviewing court must independently review these findings. ( Fiske v. State of Kansas (1927) 274 U.S.