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This week, the Ninth Circuit examines how the loss-causation requirement of a securities-fraud claim may be satisfied in cases involving FOIA disclosures, and considers the application of Younger v. Harris to a State civil-enforcement action pressed by private counsel.

DAVID GRIGSBY v. BOFI HOLDING, INC.The Court holds that information obtained through the Freedom of Information Act can constitute a corrective disclosure for purposes of alleging loss causation in a securities-fraud action.

Panel: Judges Murguia, Christen, and Hellerstein (S.D.N.Y.), with Judge Christen writing the opinion.

Key highlight: Plaintiffs may rely on a corrective disclosure derived from a FOIA response by plausibly alleging that the FOIA information had not been previously disclosed. If a plaintiff relies on information obtained via a FOIA request, the pleading burden to allege loss causation is no different from the pleading burden for other types of corrective disclosures.

Background: Plaintiffs filed a putative class action on behalf of shareholders alleging that BofI Holding, Inc. and its executives violated securities law by, among other things, denying that the company was being investigated for money laundering. To prove loss causation, plaintiffs pointed to a news article that revealed the existence of an SEC investigation through a FOIA request and that immediately preceded a drop in the companys stock price. The district court dismissed the suit on the ground that information obtained under FOIA was, as a matter of law, publicly available prior to its disclosure, and thus could not be a corrective disclosure of a misrepresentation.

Result: The Ninth Circuit affirmed in part and reversed in part. The Court began by explaining that a securities fraud plaintiff can satisfy the loss-causation pleading burden by alleging that a corrective disclosure revealed the truth of a defendants misrepresentation and thereby caused the companys stock price to drop and investors to lose money. In general, the Court continued, a disclosure is not corrective if it contains information derived entirely from public filings and other publicly available sources of which the stock market was presumed to be aware. BofI had argued that the investigation was already reflected in its stock price before the article was published because the information was discoverable through FOIA. The Court rejected that approach for two reasons: First, FOIA information is not generally available, but must be specifically requested. And second, because the government may invoke exceptions to FOIA, certain information may never come to light. At a minimum, the Court said, there must be some indication that the relevant information was requested and produced before the information contained in a FOIA response can be considered publicly available for purposes of loss causation.

The Court went on to conclude that plaintiffs had adequately alleged that the investigation into BofI had not been publicly disclosed prior to publication of the news article. It was enough that the plaintiffs had alleged that the [news] article disclosed BofI had been the subject of a formal SEC investigation, that the article revealed the falsity of BofIs prior statement, and that the revelation caused BofIs stock price to drop. Plaintiffs were not required to make an additional showing that no one else had obtained the same information through FOIA before the articles publication, and documents showing five other BofI-related FOIA requests did not render the initial allegations implausible.

The Court also concluded that the news article was corrective of BofIs allegedly false statement, rejecting BofIs argument that the article did not establish that it knew about the investigation. Nonetheless, the Ninth Circuit affirmed the district courts separate conclusion that a different news article was not a corrective disclosure with respect to another allegedly false statement because the article contained only public information, and did not require any expertise or specialized skills beyond what a typical market participant would possess. Finally, the Court declined to consider whether plaintiffs adequately pleaded scienter because the district court did not reach that issue.

BRISTOL-MYERS SQUIBB COMPANY v. CONNORSThe Court holds that Younger v. Harris precludes a federal-court challenge to a state-court civil enforcement proceeding, even where that state-court prosecution is led by private counsel and allegedly profit-driven.

The panel: Judges Watford, Friedland, and Miller, with Judge Miller writing the opinion.

Key highlight:"Conducting litigation on behalf of a State is a core sovereign function, and the people of each State, through their elected representatives, have the right to decide whether that function should be carried out by full-time government employees or, as here, by outside counsel retained for a particular case."

Background: The State of Hawaii filed suit in Hawaii state court against a variety of pharmaceutical companies. The State asserted that the defendants advertising of the drug Plavix had been misleading given the drugs allegedly reduced effectiveness in people with a genetic variation particularly prevalent among those of Asian or Pacific Islander descent. The State retained two private law firms on a contingency-fee basis in bringing this suit.

The pharmaceutical companies then sued the State in federal court, seeking an injunction against the state-court proceedings, which the companies claimed violated their First Amendment rights. The district court dismissed, invoking Younger abstention.

Result: The Ninth Circuit affirmed. As the Court explained, while federal courts have a virtually unflagging obligation to hear all cases within their jurisdiction, Younger establishes an exception to that obligation when the federal-court plaintiff seeks to enjoin certain types of civil enforcement proceedings that are akin to criminal prosecutions. The Court dismissed the companies arguments that this exception was not applicable here.

First, the Court rejected the contention that the state-court action was not in fact brought by the State because the State was relying on private counsel. As the Court explained, it is up to the State to decide who will represent it in court (or elsewhere), and thus the Court saw no reason why the application of Younger should turn on the States choice of lawyers. Rather, what mattered was that the Attorney General of Hawaii made the decision to bring the action, and the people of Hawaii may hold her accountable for that decision.

Next, the Court rejected the contention that the case was not a civil enforcement action because private counsel had conducted most of the underlying investigation, and the State was purportedly motivated by profit rather than any desire to punish wrongdoing. The Court concluded that what was relevant, for Younger purposes, was not the States interest in any particular case, but rather its interest in a given class of proceedings. After all, [a] federal-court inquiry into why a state attorney general chose to pursue a particular case, or into the thoroughness of the States pre-filing investigation, would be entirely at odds with Youngers purpose of leaving state governments free to perform their separate functions in their separate ways. And here, the Court held, the State sought to recover civil penalties for an alleged violation of a statute punishing deception, bring the proceeding comfortably within the general class of proceedings to which Younger applies.

Finally, the Court rejected the argument that because the companies First Amendment rights were at issue, the Court should apply special scrutiny, reasoning that Younger abstention routinely applies even when important rights are at stake. Because the companies claim did not fall within the narrow exception for cases of proven harassment . . . by state officials in bad faith, it was properly dismissed.

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This Week at The Ninth: Public Knowledge and Private Counsel - JD Supra

The First Amendment protects Americans' right to protest and the right to political dissent.Video provided by Newsy

The types of protests held by white supremacist groups in Charlottesville, Va., in 2017 enjoy broad First Amendment protection.(Photo: Mykal McEldowney, Mykal McEldowney/IndyStar)

The First Amendment is a mere 45words. Butit's still giving lawmakers and judges fits 227 years after its adoption.

The government can'testablish religion,but federal, state and municipal officials can open meetings with a prayer.

The government can't block religious exercise, but it's tryingtoban travelers from majority-Muslim countries in the name of national security.

It can't restrictfree speech not even hate speech or flag-burning or protests ofmilitary funerals. But don't try shouting "Fire!" in a theater or threatening folkson Facebook.

It can't muzzle the media, unless it concerns outright lies made with malicious intent.

And peaceful protests areprotected,but that doesn't mean the Secret Service can't push you around a little in order to protect the president.

Sound confusing?Here's your guide to the First Amendment, circa 2018:

032818-first amendment_online_Online(Photo: USA TODAY)

If white nationalists and neo-Nazis can march through the college town of Charlottesville, Va., and win backing from the American Civil Liberties Union, the rights of demonstrators are in safe hands.

What remains in doubt: whether such protests can be accompanied by displays of weapons, even in states that permit firearms to be carried in public. That raises the potential for violence, which public officials have the authority to prevent.

In a series of cases dating back to the 1960s, the Supreme Court has struck down restrictions on so-called "hate speech" unless it specifically incites violence or is intended to do so.

The First Amendment, the justices have said, protected neo-Nazis seeking to march through heavily Jewish Skokie, Ill., in 1977. It protected a U.S. flag burner from Texas in 1989, three cross burners from Virginia in 2003 and homophobic funeral protesters in 2011.

Even symbols of intimidation, such as torches carried by some marchers in Charlottesville, are protected unless they have specific targets. Justice Clarence Thomas dissented inthe cross-burningcase, reasoning that "those who hate cannot terrorize and intimidate," but he was on the losing end of an 8-1 vote.

If right-wing demonstratorsare protected by the First Amendment, so too are right-wing speakers. The Supreme Court made that clear in 1969 when itprotected a Ku Klux Klan member decrying Jews and blacks in Ohiobecause he did not pose an imminent threat.

Richard Spencer, a white nationalist who hastraveledthe country on a controversial "alt-right" speaking tour, is but the most recent example. He'sbeen allowed to speak, along with counter-demonstrators aligned with aleft-wing coalition known as Antifa.

Poland's state-run news agency reports Polish authorities banned Spencer from the Schengen Area, which is comprised of 26 European countries.Video provided by Newsy

Spencer is better off giving sparsely attended speeches and facing opponents in Florida, Michigan and Virginiathan he would be overseas. He's been banned from visiting large portions of Europe and Great Britain by government officials who said his speeches fosterhatred.Under the First Amendment, those banswould not stand.

The American free speech tradition holds unequivocally that hate speech is protected, unless it is intended to and likely to incite imminent violence, says Jeffrey Rosen, president of the National Constitution Center in Philadelphia.

Adds Justice Stephen Breyer: "It's there for people whose speech you don't like."

Speech isn't restricted to the spoken or written word. The First Amendment also protects movies and TV, art and music, yard signs and video games, clothing and accessories.

The Supreme Court has ruled in favor of video games depicting the slaughter of animals. It has upheld derogatory trademarks,such as those promoting The Slants, an Asian-American rock band. When a Pennsylvania school district tried to stop students from wearing breastcancer awareness bracelets reading "I (Heart) Boobies," the court refused even to hear the case.

But as usual, there are exceptions. When the speaker is the government, the court has allowed for censorship such as when Texas refused to permit specialty license plates displaying the Confederate flag. The justices reasoned that the government, not the motorist, was doing the talking.

The First Amendment gives you the right to speak out as well as the right "to refrain from speaking at all," Chief Justice Warren Burger wrote in 1977. That signaled a win for a New Hampshire couple who covered up part of their home state's motto, "Live Free or Die," on license plates.

The doctrine is up for grabs in three major Supreme Court cases this term. It appears likely the justices will rule that an Illinois state employee cannot be compelled to contribute to his local union. They also seem inclined to say that California cannot force anti-abortion pregnancy centers to informclients where they can get an abortion.

The third case is a closer call: Must a deeply religious Colorado baker use his creative skills to bake a cake for a same-sex couple's wedding? Here the court seems split.

"The case isn't about same-sex marriage, ultimately. It isn't about religion, ultimately," says Jeremy Tedesco, a lawyer with Alliance Defending Freedom, which represents Jack Phillips. "Its about this broader right to free speech, the right to be free of compelled speech.

Jack Phillips, a suburban Denver cake shop owner, tells USA TODAY's Richard Wolf that he's fighting an order that would compel him to make cakes for the weddings of gay couples because of religious objections.

Facebook, Twitter and other social media sites can police their own websites to control what's posted. But under the First Amendment, the government has no such right.

Thus did the Supreme Court rule that a North Carolina law criminalizing social media use by sex offenders violated the First Amendment.

The justices also gave a temporary reprieve to an angry, self-styled rapper who rattled his wife, co-workers and others on Facebook. Phrases such as "Hell hath no fury like a crazy man in a kindergarten class" are criminal only if intended as a threat, they ruled, and sent the case back to a lower court, which ruled against him on that basis.

If you want to put free speech rights to work in politics, you're in luck. The Supreme Courtequates campaign spending with speech.

Say you're a wealthy individual, or you run a corporation that wants to spend unlimited amounts in this year's elections. As long as you do not coordinate your spending with a candidate or political committee, you're home free.

And while there are anti-corruption limits on how muchyou can donate directly to a candidate, committee or political party, the court recently ditched restrictionson the total amount you can apportion among those recipients. That means you can give to as many campaigns as you like.

Your First Amendment rightto exercise your religion depends on what other rights it bumps up against. That's why it's a frequent conundrum in court.

When the arts and crafts chain Hobby Lobby wanted out from Obamacare's requirement that employers offer free coverage of contraceptives, the Supreme Court ruled narrowly in its favor. The corporation's First Amendment right "protects the religious liberty of the humans who own and control" it, Justice Samuel Alito said.

Supreme Court says employers with religious objections can refuse to pay for contraception. (June 30)

And when a Lutheran church in Missouri was denied state funds to resurface its playground, the high court said the separation of church and state does not apply to purely secular activities such as swings and slides.

But religious claims are not a slam dunk, as Phillips, the Colorado baker, may discover. At least four justices possibly five are likely to say his speech and religious beliefs must take a back seat topublic accommodations laws requiring that merchants serve all customers.

This is another area where more than two centuries haven't reduced passions on both sides, often leaving courts divided.

Public schools cannot lead children in prayer, a prohibition that has been extended in recent years to graduations and football games. But Congress, state legislatures and local governments can open their sessions with a prayer, provided the audience is not coerced to participate.

The line between what's OK and what's not is even thinner than that. On the same day in 2005, the Supreme Court ruled against displaying the Ten Commandments inside a county courthouse but said it could be memorialized outdoors on statehouse grounds.

Addressing his first Cabinet meeting of 2018, President Donald Trump touted his administration's accomplishments and said his White House would address the nation's libel laws, which he called a "sham and a disgrace." (Jan. 10)

President Trump took aim at the press soon after coming into office. Our current libel laws are a sham and a disgrace and do not represent American values or American fairness, he said.

Since the 1960s, the Supreme Court has made clear that the First Amendment protects statements made about public officials unless they are false andintended to defame. Only "reckless disregard for the truth" is unprotected.

Furthermore, the media can publish information from classified documents even if the government says it would threaten national security, a conclusion reached in the Pentagon Papers case featured in the recent film, The Post.

This explainer is part of the Trusting News project. Learn more about it here.

For more information on the First Amendment, check out theNational Constitution Center, theNewseum Instituteand theLegal Information Institute.

Read or Share this story: https://www.usatoday.com/story/news/politics/2018/04/06/what-first-amendment-protects-and-what-doesnt/469920002/

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First Amendment: What rights it protects and where it stops

Display of political signs is a form of freedom of speech

The Allegany County Democratic Central Committee denounces the theft or destruction of political campaign signs for all candidates, regardless of political affiliation.

It is unfortunate that in recent weeks, signs for several candidates have been stolen or destroyed.

Political campaign signs come at a financial cost and are the personal property of the individuals who display them. Their display is a form of First Amendment freedom of speech. Democrats believe that the First Amendment must be protected and that theft and destruction of personal property is reprehensible.

Please keep in mind that political campaign signs may only be placed on properties in accordance with applicable laws and may only be placed with permission of the property owner. Signs may never be placed on governmental property.

The success of democracy demands that political parties stand for democracy for all. Please do not destroy or steal any candidate signs.

Brian K. Grim, chair

Allegany County Democratic Central Committee

Cumberland

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Display of political signs is a form of First Amendment freedom of speech - Cumberland Times-News

The 2020 edition of the college's Lewis B. ODonnell Media Summit will convene an all-star group to discuss On the Front Lines with the First Amendment on Wednesday, Oct. 28.

The centerpiece panel presentation will take place virtually at 3:30 p.m. via Zoom, and will feature Connie Schultz, a Pulitzer-Prize winning, nationally syndicated columnist with Creators Syndicate; Oswego alumna Michelle Garcia, editorial manager of NBC News NBC BLK, which which tells stories by, for and about the Black community; Bret Jaspers, politics reporter for KERA Public Media in Dallas-Fort Worth;Steve Brown, investigative reporter at WGRZ in Buffalo;and Ava Lubell, a Legal Fellow at the Cornell Law School First Amendment Clinic. Communication studies faculty member Michael Riecke will serve as moderator.

Student co-directors Mikayla Green and Benjamin Grieco noted that when they and the rest of the team were looking at themes for the 16th annual summit, they watched the world in which journalists operate change so much in a few months, as the press adapted to covering and telling the stories of COVID-19, the Black Lives Matter movement, the upcoming election and so many compelling, fast-moving stories.

We were told to aim high, said Grieco, a senior journalism major and editor in chief of The Oswegonian. Our guests dont have to travel, which makes it easier. We could ask, Do you have four hours to talk to these students who are really interested in what you have to say?

Especially with the summit coming just days before such a pivotal election, the virtual arrangement helped secure a high caliber of participants, they noted.

A popular panelist at a previous summit, Schultz also is a Professional in Residence at Kent State University School of Journalism. She won the Pulitzer Prize in 2005 for Commentary for columns that judges praised for providing a voice for the underdog and the underprivileged. She also won the Robert F. Kennedy Award for Social Justice Reporting and the Batten Medal, which honors a body of journalistic work that reflects compassion, courage, humanity and a deep concern for the underdog. Schultz is the author of three books published by Random House, plus her first novel, The Daughters of Erietown, a New York Times bestseller.

Over the last decade, Garcia has covered major social movements across the United States including the fight for marriage equality, #MeToo and the Black Lives Matter movement, to name a few. The 2006 SUNY Oswego journalism graduate and former Oswegonian editor in chief was named to Folios list of 20 in their 20s, won a GLAAD Media Award with her staff about the advancement of the HIV treatment drug Truvada, taught at CUNY Graduate School of Journalism and has coached several successful writers along the way. Previously, Garcia was an editor at Vice, Out, Vox, Mic and The Advocate.

Jaspers stories have aired on the BBC, NPRs All Things Considered, Morning Edition, Weekend Edition, and Here & Now, and APMs Marketplace. He previously reported on politics and the Colorado River basin for KJZZ in Phoenix, and before that was managing editor at WSKG in upstate New York. Awards include three 2020 Regional Murrow Awards for reporting at KJZZ, one for Hard News, and two as part of KJZZs series Tracing the Migrant Journey. That series also won a 2020 Kaleidoscope Award for excellence in covering an issue of race, ethnicity, sexual orientation or gender.

Brown has spent a lifetime in journalism after graduating from Canisius College in 1983. He has been honored with multiple award including six regional Murrow Awards, four of which he collected while working for 2 On-Your-Side. In 2019, he won a national Murrow Award for his short documentary about a man who sought to have the Catholic Church admit a priest was his biological father. Before coming in Buffalo, Brown spent 15 years as a correspondent for Fox News.

Lubell provides pro bono legal advice to NYC metro area journalists on a range of First Amendment issues arising from newsgathering and publication. Previously, Lubell served as the General Counsel of Quartz Media, which focuses on global business news and has reporters based in cities around the world. She previously also worked at Slate as general manager and general counsel; as special assistant for briefing under New York Gov. Andrew Cuomo, and as the political director for the Women and Politics Institute at American University. She is an affiliate member of the NYC Bar Association Communications and Media Law Committee.

The panelists traditionally visit classrooms on the day of the event, and that is something organizers plan to continue via Zoom rooms.

I remember being a freshman and knowing that someone will show up to your class and tell some really cool stories, said Green, a senior broadcasting major and vice president of production for WTOP-TV 10. Im glad we can still do that.

The popular Career Connectors component is still in the plan, this time in a virtual environment where current students can talk to recent graduates in the industry and network on a one-on-one basis.

This year's Career Connectors include Natalie Brophy '17, a reporter for Gannett/USA Today Network; Imani Cruz '17, talent and development, MTV Networks;Justin Dobrow '17, program operations manager, Peacock for NBCUniversal Media;Stephanie Herbert '18, media director for MOST (Museum of Science and Technology) in Syracuse;Allif Karim '18, sports director for WDVM-TV in Maryland; andOmy Melo '14, junior editor at Nickelodeon.

As different as everything is this year, we do want to keep it familiar, Green said. But one way we can change it is to make it even more open virtually.

We dont really want to change that tradition or standard, Grieco added. Were trying to maintain that legacy. It may be virtual, but everything else is, so why cant we keep doing the same things?

Organizers expect student media WTOP and WNYO to broadcast the Zoom feed of the panel discussion as well.

Louis A. Borrelli Jr., a pioneer in cable television, online media and broadcast production services and a 1977 Oswego graduate, made a founding gift for the media summit in 2005. Two years later, 1976 graduate Al Roker, the national weather anchor and co-host of the third hour of NBC's "Today" show, provided additional funding to rename the summit in memory of longtime professor Dr. Lewis B. O'Donnell, a seminal figure in the college experiences of Borrelli, Roker and many others.

The annual School of Communication, Media and the Arts highlight is organized by a student team with journalism faculty member Brian Moritz serving as advisor.

For more information, visit MediaSummit.org.

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Media Summit to explore 'On the Front Lines with the First Amendment' - SUNY Oswego

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UAW and other unions withdrew their effort to overthrow a new rule in Michigan that will requre public employees to opt-in on an annual basisas a condition for the state to collect union dues. In early October, U.S. District Judge George Caram Steeh denied unions a preliminary injuction.

If the state may completely prohibit payroll deductions for union dues without running afoul of the First Amendment, it follows that a yearly reauthorization requirement for payroll deductions also does not implicate the First Amendment, Steeh wrote. [T]he State is not constitutionally obligated to provide payroll deductions at all.

Common (and Constitutional) sense prevailed, but the suit raises some important questions too. Why are taxpayers still footing the bill for private dues collection? Why won't some unions accept the principle of voluntary association?

When the U.S. Supreme Court ruled in 2018's Janus v ASFCME that government employees could not be forced to join a public employee union or be forced to pay dues and fees if they refused, the Court was simply affirming that government employees did not surrender their constitutional rights as a condition of employment. Prior to Janus, state and local goverrnmnets would generally force employees into becoming union members or paying the union fees if they opted out. These unions are private organizations, yet had the strong arm of government to enforce membership and take dues money direct from their paychecks.

In 2018, following the Janus ruling, King 5 interviewed Lynne Dodson, the Secretary Treasurer of the Washington State Labor Council AFL-CIO, who said, "We need to focus on talking with our members showing what the value is with unions. I think it will grow power and numbers we have. We will do much more direct talking and organizing,

Her sentiment is the right one and it is the one other private organizations have, which is that you need to persuade people your organization is of value and worth joining. Government union backed critics of WPC like to point to membership renewals amongst government employees as indicating of our "failure" on Janus policy. They fail to grasp the point that voluntary membership is fine-- but forced membership is not.

Annual renewal of membership allows for better accountability, prevents creating obstuctions to members who wish to opt-out, and is a small price to pay for taxpayers footing the bill for your membership dues collection.

Speaking of annual memberships, have you renewed your WPC membership yet?

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A victory for the First Amendment and workers in Michigan - Washington Policy