Two-Party Consent Privacy Laws Might Be Unconstitutional, and Other Recent Cases

The California Appellate Law Podcast

One of the most biggest recent case is the split decision out of the 9th Circuit holding that a prohibition on secretly recording communications between two people violates the First Amendment. Project Veritas v. Schmidt, No. 22-35271 (9th Cir. July 3, 2023). The statute at issue here was an Oregon statute. But it suggests that two-party consent statutes, such as California’s likewise may be unconstitutional.

We also cover:

• Does "sexually derogatory" or "misogynistic" music in the workplace create employer liability? Possibly, says the 9th Circuit. Sharp v. S&S Activewear (9th Cir. - June 7, 2023).
• Justice Gorsuch’s statement that COVID emergency orders are among `greatest intrusions on civil liberties.' (Statement here.)
• “Diversity” in the judiciary.
• Briefing extensions tighten up in the 9th Circuit.
• PJ Rubin on oral argument: "It's a very important thing to have lawyers feeling comfortable -- but not too comfortable -- in the courtroom. (Via Ben Shatz.)
• The citation signal “semble” that ignited #appellatetwitter.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• Lowery v. Rhapsody Int'l, No. 22-15162, at *1 (9th Cir. June 7, 2023)
• Birke v. Lowe’s Home Centers, No. S279470 (Cal. May 31, 2023).
• Supreme Court scores high in diversity study (via David Ettinger); Camper on Admission (via David Ettinger); Daily Journal’s Malcolm Maclachlan’s account of the story.
• Of president Biden’s 30 nominees to the 9th Circuit and California district courts, 25 have attended one of six elite law schools. (Via Ben Shatz.) 10 law schools were responsible for approximately 33% of the federal clerk hires in the nation. (Also via Ben Shatz.)
• Speaking of Berkeley Law grad Justice Corrigan: Cancel "Berkeley?” (SoCalAppNews)
• City Had Right to Get Rid of Its Statue of Father Serra (via MetNews).
• CJEO draft formal opinion addressing whether a judicial officer may attend a celebration hosted by a law firm. (Via Ben Shatz.)
• Kleidman v. Court of Appeal
• Justice Bedsworth on citing unpublish