Appellate Cases - First Amendment

Mr. Adelstein has handled several First Amendment free speech appeals.

State v. Drahota

Mr. Adelstein filed an amicus brief in the Nebraska Supreme Court on behalf of twelve current and former elected officials.

The defendant had sent offensive e-mails to a former professor, who was a candidate for office. The e-mails were offensive but involved political issues. The defendant was conficted of breach of the peace and fined $250. The Nebraska Court of Appeals affirmed. Professor Eugene Volokh petitioned the Nebraska Supreme Court to take the case, and it did. The Nebraska Supreme Court then reversed, holding that such communications were protected by the First Amendment.

Supreme Court Opinion.
Court: Nebraska Supreme Court
Case No. S-08-0628
Citatioin: 280 Neb. 627
Authors: Justice Connolly
Opinion Date: September 24, 2010
Appellant's Counsel: Professor Eugene Volokh at UCLA Law School

Aguilar v. Avis Rent a Car System Inc.

Mr. Adelstein filed an amicus brief in the California Supreme Court on behalf of the National Writer's Union, the Reason Foundation, the Center for Individual Rights, and the Libertarian Law Council supporting free speech.

This case arose out of a racial harassment lawsuit. Some employees at a car rental agency were involved in racially harassing other employees. The plaintiffs sued, won monetary damages, and those were paid and were not challenged on the appeal. However, the plaintiffs also obtained an injunction enjoining specific employees from using specific racial epithets. The company appealed. The Court of Appeal modified the injunction but affirmed in a 2-1 published decision. The California Supreme Court granted review, and affirmed in a 4-3 decision, with separate concurring and dissenting opinions.

This case involves the intersection between free speech law and Title VII law, and the issues are quite complex.

Case Data

Supreme Court Opinion.
Court: California Supreme Court
Case No. S054561
Authors: Chief Justice Ronald George, Justice Katherine Werdegar (concurring),
Justice Stanley Mosk (dissenting), Justice Joyce Kennard (dissenting), Justice Janice Brown (dissenting)
Opinion Date: August 2, 1999
Trial Counsel: Joel Kelley, now at Jackson Lewis

Krell v. Gray

On appeal, Mr. Adelstein represented a former substitute teacher who was peacefully picketing in front of a LAUSD middle school. His sign and leaflets stated that the school promoted racism, sexism, and low student performance, and he specifically named the assistant principal. The assistant principal was upset with this. First, he and LAUSD sued the former teacher on the theory that the teacher's picketing was promoting workplace violence, and sought an injunction under Code of Civil Procedure, section 527.8. The trial court noted that the teacher was not encouraging violence and in any case his picketing was protected by the First Amendment.

Undeterred, the assistant principal then sued under Code of Civil Procedure, section 527.6, arguing that the teacher's picketing was a form of harassment. The case was assigned to a different judge who concluded that the picketing was harassment, rejected the teacher's res judicata and collateral estoppel defenses, rejected the First Amendment defense, and entered the injunction.

The appeal had a convoluted history. Mr. Adelstein's brief argued that the injunction should be reversed under res judicata, collateral estoppel, and the First Amendment, among other things. He also requested attorney's fees under Code of Civil Procedure, section 527.6, subdivision (i). LAUSD represented the assistant principal and argued to the contrary.

The Court of Appeal initially issued a published opinion affirming most of the injunction but remanding for a relatively minor correction. Mr. Adelstein filed a petition for rehearing, arguing that this opinion had incorrectly analyzed both the collateral estoppel and First Amendment issues. The Court of Appeal then asked for two sets of supplemental letter briefs, granted rehearing, and issued a second opinion reversing the trial court's injunction in full. The Court of Appeal also awarded attorney's fees under Code of Civil Procedure, section 527.6, subdivision (i).

Case Comment

I need to commend the justices in this case for granting rehearing. Petitions for rehearing are rarely granted, especially if a case has been designated for publication. But the Court of Appeal's analysis in its initial opinion, especially of the First Amendment, was simply incorrect. Many justices would be tempted to simply deny the rehearing petition and be done with the case. But the court here not only granted rehearing, but spent a considerable amount of time ordering and considering two sets of supplemental letter briefs. The justices not only worked hard to get the right result, but changed their mind in the process, and this should not pass without note.

Case Comment

The Court of Appeal's initial (and later vacated) opinion relies heavily on Aguilar v. Avis Rent A Car System, Inc (1999) 21 Cal.4th 121. If Aguilar is read narrowly as simply holding that an injunction that is part of a remedy once there has been a specific finding that the conduct is likely to recur, then it is probably still wrongly decided, but will not work much mischief. However, if Aguilar is read broadly, it can create serious problems for free speech. At some point, the California Supreme Court will have to clarify the holding in Aguilar.

Case Data

Initial Court of Appeal Opinion.
Revised Court of Appeal Opinion.
Court: California Court of Appeal, Second Appellate District, Division Five (Los Angeles)
Case No. B169593
Authors: Justice Richard Mosk; Presiding Justice Paul Turner
Opinion Date: February 16, 2005; April 27, 2005
Trial Counsel: The client was in pro per.