Publius v. Boyer-Vine, No. 1:2016cv01152 - Document 24 (E.D. Cal. 2017)

Court Description: MEMORANDUM DECISION AND ORDER re 19 Motion for Preliminary Injunction signed by Chief Judge Lawrence J. O'Neill on 2/27/2017. (Status Report due by 3/10/2017). (Lundstrom, T)

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Publius v. Boyer-Vine Doc. 24 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 1 of 38 1 2 UNITED STATES DISTRICT COURT 3 FOR THE EASTERN DISTRICT OF CALIFORNIA 4 5 DOE PUBLIUS and DEREK HOSKINS, 6 Plaintiffs, 7 8 9 1:16-cv-1152-LJO-SKO MEMORANDUM DECISION AND ORDER RE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION (Doc. 19) v. DIANE F. BOYER-VINE, in her official capacity as Legislative Counsel of California, Defendant. 10 11 I. INTRODUCTION 12 Plaintiffs Doe Publius1 and Derek Hoskins bring this civil rights case under 42 U.S.C. § 1983 13 14 (“§1983”), challenging California Government Code § 6254.21(c) (“§ 6254.21(c)”) under the First 15 Amendment, the Commerce Clause, and 47 U.S.C. § 230 (“§ 230”). Plaintiffs move for a preliminary 16 injunction that prevents Defendant Diane F. Boyer-Vine, Legislative Counsel for the Office of 17 Legislative Counsel of California (“the Office”), from enforcing § 6254.21(c) against them. See Doc. 18 19-1 at 26. The Court took the matter under submission on the papers pursuant to Local Rule 230(g). Doc. 19 20 23. For the following reasons, the Court GRANTS IN PART and DENIES IN PART Plaintiffs’ motion. 21 22 23 24 25 1 Publius brings this suit anonymously under Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000), because he believes doing so is “necessary to preserve [his] First Amendment right to speak anonymously when criticizing the government . . . and to guard against the risk of retaliatory and unfounded prosecution under the criminal provisions of the statutory scheme [he] challenges,” specifically, California Government Code § 6254.21(c). Doc. 12, First Amended Complaint (“FAC”), at ¶ 12 n.1. Publius states in the FAC that he intends to file a motion to pursue this case anonymously, but, to date, he has not done so. Id. Defendant, however, has not objected to his anonymity. 1 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 2 of 38 1 2 II. FACTUAL AND PROCEDURAL BACKGROUND On July 1, 2016, California Governor Jerry Brown signed several gun control bills into law. Doc. 3 12, First Amended Complaint (“FAC”), at ¶ 15. One of those bills established a database tracking all 4 ammunition purchases in California. See Cal. Penal Code §§ 30352, 30369. The database includes the 5 driver’s license information, residential address and telephone number, and date of birth for anyone who 6 purchases or transfers ammunition in California. See id. 7 Publius maintains a political blog under the name, “The Real Write Winger.” FAC at ¶ 15. On 8 July 5, 2016, in response to the California legislature’s gun control legislation, he posted the following 9 blog entry, titled “Tyrants to be registered with California gun owners”: 10 11 If you’re a gun owner in California, the government knows where you live. With the recent anti gun, anti Liberty bills passed by the legisexuals in the State Capitol and signed into law by our senile communist governor, isn’t it about time to register these tyrants with gun owners? 12 13 14 15 16 17 18 19 20 21 22 23 24 Compiled below is the names, home addresses, and home phone numbers of all the legislators who decided to make you a criminal if you don’t abide by their dictates. “Isn’t that dangerous, what if something bad happens to them by making that information public?” First, all this information was already public; it’s just now in one convenient location. Second, it’s no more dangerous than, say, these tyrants making it possible for free men and women to have government guns pointed at them while they’re hauled away to jail and prosecuted for the crime of exercising their rights and Liberty. These tyrants are no longer going to be insulated from us. They used their power we entrusted them with to exercise violence against us if we don’t give up our rights and Liberty. This common sense tyrant registration addresses this public safety hazard by giving the public the knowledge of who and where these tyrants are in case they wish to use their power for violence again. So below is the current tyrant registry. These are the people who voted to send you to prison if you exercise your rights and liberties. This will be a constantly updated list depending on future votes, and if you see a missing address or one that needs updating, please feel free to contact me. And please share this with every California gun owner you know. To be fair, the only way for a tyrant to have their name removed from the tyrant registry is to pass laws which repeal the laws that got them added to the list, or upon the tyrant’s death. Otherwise, it is a permanent list, even after the tyrant leaves office. The people will retain this information and have access to it indefinitely. 25 2 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 3 of 38 1 FAC at ¶ 17. Through searching public records for free on zabasearch.com2, Publius compiled the 2 names, home addresses, and phone numbers of 40 California legislature members who had voted in 3 favor of the gun control measures. Id. at ¶¶ 17-18. He then posted that information on his blog. Id. at ¶ 4 17. 5 In the days that followed, several legislators received threatening phone calls and social media 6 7 messages that appeared to have been prompted by Publius’s blog entry. Doc. 21, Declaration of Frederic Woocher (“Woocher Decl.”), at ¶ 2. Specifically, 8 there were reports from at least four different State Senators that either they or one of their family members had received a phone call at their residence from an unidentified male speaker saying, “I know your address and don’t you wish you knew who I am?” One of the calls was received by the step-son of a Senator who was alone in the home while the Senator and his wife were away. At least two other Senators had reported receiving (and forwarded to the [California Senate] Sergeant-at-Arms) threatening social media messages; one warned: “You have no right to pass laws to take my constitutional rights away. (2nd & 1st amendments) Let alone pass a bill that makes you exempt from the very same laws. I’ve have [sic] shared your home address in the Internet. The People will be acting on this.” 9 10 11 12 13 14 Id. The Senate Sergeant-at-Arms sent the Office “a request to seek the removal of the legislators’ 15 16 home addresses from the internet pursuant to section 6254.21(c).” Doc. 20 at 13. In response, on July 8, 17 2016, Deputy Legislative Counsel Kathryn Londenberg sent a written demand to, who 18 hosted Plaintiff’s blog. FAC at ¶ 19. The demand stated: 19 To whom it may concern: 20 My office represents the California State Legislature. It has come to our attention that the home addresses of 14 Senators and 26 Assembly Members have been publically posted on an Internet Web site hosted by you without the permission of these elected officials. Specifically, the user on your platform by the name of 21 22 23 24 25 2 Defendant describes zabasearch as “a commercial vendor,” and therefore contends Publius “did not obtain the legislators’ addresses from public records.”Doc. 20 at 24-25. But, according to, “[a]ll information found using ZabaSearch comes from public records databases. That means information collected by the government, such as court records, country records, state records, such as the kind of information that becomes public when you buy a new house or file a change-of-address form with the United States Postal Service.” See (last visited February 7, 2017). Defendant therefore does not dispute that the legislators’ personal information Publius posted was publicly available. 3 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 4 of 38 “therealwritewinger” posted the home addresses of these elected officials on his or her Web site . . . . 1 2 This letter constitutes a written demand under subdivision (c) of Section 6254.21 of the Government Code that you remove these home addresses from public display on that Web site, and to take steps to ensure that these home addresses are not reposted on that Web site, a subsidiary Web site, or any other Web site maintained or administered by or over which exercises control. Publicly displaying elected officials’ home addresses on the Internet represents a grave risk to the safety of these elected officials. 3 4 5 6 On the “therealwritewinger” blog site, the user describes the listed legislators as “tyrants,” encourages readers to share the legislators’ home addresses with other gun owners, and threatens that the home addresses will not be removed unless the legislator repeals specified gun laws or “upon the tyrant’s death.” The Senators and Assembly Members whose home addresses are listed on this Web site fear that the public display of their addresses on the Internet will subject them to threats and acts of violence at their homes. 7 8 9 10 To comply with the law, please remove the home addresses of these elected officials from your Web site no later than 48 hours after your receipt of this letter (cl. (i), subpara. (D), para. (1), subd. (c), Sec. 6254.21, Gov. C.). You are also required to continue to ensure that this information is not reposted on that Web site, any subsidiary Web site, or any other Web site maintained by you (subpara. (D), para. (1), subd. (c), Sec. 6254.21, Gov. C.). 11 12 13 . . . . If these home addresses are not removed from this Web site in a timely manner, we reserve the right to file an action seeking injunctive relief, as well as associated court costs and attorney’s fees (para. (2), subd. (c), Sec. 6254.21, Gov. C.). 14 15 16 17 Id. WordPress immediately removed Publius’s entire blog entry. Id. at ¶ 20. Publius requested a copy of the demand from WordPress. Doc. 12-2 at 1. WordPress forwarded the letter, explaining that “[u]nder 18 subdivision (c) of Section 6254.21 of the Government Code, an authorized representative from the state 19 of California ha[d] demanded that we disable” Publius’s blog entry. Id. 20 21 22 Hoskins, a resident of Massachusetts, id. at ¶ 133 owns and moderates the website, “a popular New England online forum for discussing firearms issues and shooting sports activities.” Id. at ¶ 21. On July 11, 2016, users began a 23 24 25 3 In the FAC, Plaintiffs allege Hoskins is a resident of Massachusetts, but in their moving papers they claim he is a resident of New Hampshire. See, e.g., Doc. 19-1 at 23. His residency is relevant only insofar as he challenges § 6254.21(c)’s reach beyond California, so the analysis of his claims is the same whether he is a resident of Massachusetts or New Hampshire. 4 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 5 of 38 1 discussion about the Legislative Counsel’s takedown demand to WordPress concerning Publius’s blog 2 entry. Id. at ¶ 22. One commenter, under the name “headednorth,” reposted Publius’s compiled list of 3 names, addresses, and home addresses of the California legislators. Id. at ¶ 23. Legislative Counsel 4 Londenberg immediately emailed Hoskins, noted that headednorth had reposted the legislators’ personal 5 information removed from Publius’s blog on, and demanded that Hoskins 6 remove it immediately via a takedown demand that was “materially identical” to the one sent to 7 WordPress. Id. at ¶ 24. Hoskins complied. Id. at ¶ 5. 8 9 Plaintiffs seek a declaratory judgment from the Court that § 6254.21(c) violates (1) the First Amendment both facially and as applied to both of them; (2) the Commerce Clause, U.S. Const., art. I, § 10 8, cl. 3, as applied to Hoskins’s out-of-state speech; and (3) § 230 as to Hoskins and other computer 11 service providers. FAC at 16. Plaintiffs currently seek a preliminary injunction on these grounds, and 12 ask the Court to enjoin Defendant from “enforcing or applying” § 6254.21(c) against them. Doc. 19 at 2. 13 Defendant argues, among other things, that: (1) Plaintiffs lack standing; (2) Plaintiffs fail to state a claim 14 under § 1983; and (3) the statute is entirely lawful. Doc. 20 at 8. 15 16 III. STANDARD OF DECISION To secure injunctive relief prior to a full adjudication on the merits, a plaintiff must show “that 17 he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of 18 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public 19 interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Injunctive relief is “an 20 extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such 21 relief.” Id. at 22. The Ninth Circuit follows a “sliding scale” approach to preliminary injunctions. See 22 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). “Under this approach, the 23 elements of the preliminary injunction test are balanced, so that a stronger showing of one element may 24 offset a weaker showing of another.” Id. at 1131-32. For example, if the moving party is unable to 25 establish a likelihood of success on the merits, preliminary injunctive relief may still be proper if the 5 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 6 of 38 1 party can show that (1) there are at least “serious questions” going to the merits; (2) the balance of the 2 hardships tips “sharply” in its favor; and (3) the other factors listed in Winter (i.e., irreparable harm and 3 in the public interest) are satisfied. Id. at 1135. IV. ANALYSIS 4 5 A. Plaintiffs have standing 6 1. Standing principles 7 Standing is a judicially created doctrine that is an essential part of the case-or-controversy 8 requirement of Article III. Pritikin v. Dept. of Energy, 254 F.3d 791, 796 (9th Cir. 2001). “To satisfy the 9 Article III case or controversy requirement, a litigant must have suffered some actual injury that can be 10 redressed by a favorable judicial decision.” Iron Arrow Honor Soc. v. Heckler, 464 U.S. 67, 70 (1984). 11 “In essence the question of standing is whether the litigant is entitled to have the court decide the merits 12 of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975). The doctrine of 13 standing “requires careful judicial examination of a complaint’s allegations to ascertain whether the 14 particular plaintiff is entitled to an adjudication of the particular claims asserted.” Allen v. Wright, 468 15 U.S. 737, 752 (1984). The court is powerless to create its own jurisdiction by embellishing otherwise 16 deficient allegations of standing. Whitmore v. Arkansas, 495 U.S. 149, 155-56 (1990); Schmier v. U.S. 17 Court of Appeals for Ninth Circuit, 279 F.3d 817, 821 (9th Cir. 2002). 18 Generally, to have standing, a plaintiff must show three elements. 19 First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. 20 21 22 23 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal citations and quotations omitted). 24 First Amendment cases, however, “present unique standing considerations.” Ariz. Right to Life Pol. 25 Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003). “In an effort to avoid the chilling effect 6 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 7 of 38 1 of sweeping restrictions, the Supreme Court has endorsed what might be called a ‘hold your tongue and 2 challenge now’ approach rather than requiring litigants to speak first and take their chances with the 3 consequences” Id. (citations omitted). “[A]s the Supreme Court has recognized, a chilling of the exercise 4 of First Amendment rights is, itself, a constitutionally sufficient injury.” Id. Accordingly, “the Supreme 5 Court has dispensed with rigid standing requirements [in First Amendment cases] and recognized ‘self- 6 censorship’ as a harm that can be realized even without an actual prosecution.” Human Life of Wash., 7 Inc. v. Brumsickle, 624 F.3d 990, 1000 (9th Cir. 2010).4 “[W]here a plaintiff has refrained from 8 engaging in expressive activity for fear of prosecution under the challenged statute, such self-censorship 9 is a constitutionally sufficient injury as long as it is based on an actual and well-founded fear that the 10 challenged statute will be enforced.” Id. at 1001 (quotation marks omitted). Thus, “when the threatened 11 enforcement effort implicates First Amendment rights, the inquiry tilts dramatically toward a finding of 12 standing.” LSO, Ltd. v. Stroh, 205 F.3d 1146, 1155 (9th Cir. 2000). First Amendment challenges may be brought as “facial” or “as-applied” challenges. See Santa 13 14 Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1033 (9th Cir. 2006). The Ninth 15 Circuit succinctly described the challenges as follows: Facial constitutional challenges come in two varieties: First, a plaintiff seeking to vindicate his own constitutional rights may argue that an ordinance is unconstitutionally vague or . . . impermissibly restricts a protected activity. Second, an individual whose own speech or expressive conduct may validly be prohibited or sanctioned is permitted to challenge a statute on its face because it also threatens others not before the court. The former sort of challenge . . . may be paired with the more common as-applied challenge, where a plaintiff argues that the law is unconstitutional as applied to his own speech or expressive conduct. 16 17 18 19 20 21 Id. at 1033-34 (citations and quotation marks omitted). “It is within this framework that [Plaintiffs] . . . 22 must establish standing.” Id. at 1034. 23 24 25 4 Self-censorship for fear of civil liability may be a sufficient injury for standing purposes. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 277 (1964). 7 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 8 of 38 1 2. Analysis 2 Defendant contends Plaintiffs cannot demonstrate that Defendant caused them to suffer any 3 injury that could be favorably addressed by the Court. As to Publius, the thrust of Defendant’s position 4 is that it is “quite plausible, if not probable” that WordPress removed Publius’s blog entry on its own 5 accord because it violated WordPress’s terms of service and, in any event, Plaintiffs have not presented 6 any evidence that WordPress would permit the blog entry even if Defendant never invoked § 6254.21(c) 7 or if the Court found the statute unlawful. See Doc. 20 at 18-19. As to Hoskins, Defendant concedes 8 (and the Court agrees) that “there is no issue regarding the causation and redressability prongs of the 9 constitutional standing requirements,” but argues that Hoskins did not suffer any injury. Id. at 19. 10 Instead, Defendants argue that only the user of his site, “headednorth,” whose post Hoskins removed, 11 suffered any asserted injury. Id. 12 That Hoskins did not produce the content contained in headednorth’s removed post does not 13 mean he did not and cannot suffer a First Amendment injury. As the owner of, 14 Hoskins has a First Amendment right to distribute and facilitate protected speech on the site. See Smith 15 v. California, 361 U.S. 147 (1959) (striking down statute imposing strict liability on a seller of obscene 16 books as violating First Amendment); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 497 (1952) (striking 17 down statute prohibiting movie producer’s distribution of movie); Bantam Books, Inc. v. Sullivan, 372 18 U.S. 58, 59-61 (1963) (holding book distributors had standing to challenge law restricting the sale of 19 certain books). The mere threat of prosecution under a challenged statute that results in actual self20 censorship constitutes “a constitutionally sufficient injury as long as it is based on an actual and well21 founded fear that the challenged statute will be enforced.” Human Life, 624 F.3d at 1001. Defendant’s 22 takedown demand letter threatening legal action against Hoskins if he did not immediately comply and 23 remove headednorth’s post, coupled with Hoskins’s compliance with the demand, constitutes a 24 cognizable constitutional injury. See id.; Bayless, 320 F.3d at 1006 (finding that plaintiff, who was 25 “forced to modify its speech and behavior to comply with the statute,” had suffered sufficient injury 8 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 9 of 38 1 even though it had “neither violated the statute nor been subject to penalties for doing so”).5 The Court 2 therefore finds that Hoskins has standing to challenge § 6254.21(c) both on its face and as-applied to 3 him. 4 Defendant does not dispute that Publius suffered a constitutional injury, but disputes whether the 5 Office caused his asserted injury and whether the Court could redress it favorably. Defendant essentially 6 argues that there is no evidence that WordPress removed Publius’s blog post as a result of the Office’s 7 demand letter, and that it is plausible that WordPress did so on its own accord because the post violated 8 WordPress’s terms of service. Thus, Defendant claims, it is plausible that WordPress would remove the 9 post regardless of the Court’s decision. The only evidence concerning WordPress’s motivation in removing Publius’s blog entry does 10 11 not support Defendant’s position. As explained above, WordPress removed the blog post immediately 12 after the Office sent the takedown demand. Publius, somehow cognizant of the Office’s demand, 13 requested a copy of it. WordPress forwarded the Office’s demand to Publius, and explained that 14 “[u]nder subdivision (c) of Section 6254.21 of the Government Code, an authorized representative from 15 the state of California has demanded that we disable [your blog entry].” Doc. 19-2 at 13. WordPress 16 provided no other explanation for its removing the blog entry. On the current record, Defendant’s 17 assertion that WordPress removed the entry because it violated the site’s terms of service is entirely 18 speculative, not “quite plausible, if not probable.” Doc. 20 at 18. Likewise, because the only evidence 19 (direct and circumstantial) submitted suggests that WordPress removed the blog post because of the 20 5 In any event, Defendant seemingly does not dispute that headednorth would have standing to challenge § 6254.21(c) under 21 the First Amendment. See Doc. 20 at 19. Though Plaintiffs do not make the argument, Hoskins, as the owner and operator of 22 23 24 25, has third-party standing to assert the First Amendment rights of its anonymous users, such as headednorth. Enterline v. Pocono Med. Ctr., 751 F. Supp. 2d 782, 785 (M.D. Pa. 2008) (holding as matter of first impression that website owner may assert First Amendment rights of third-party anonymous users of its site); McVicker v. King, 266 F.R.D. 92, 95-96 (W.D. Pa. 2010) (relying on Enterline and holding the same); In re Drasin, No. ELH-13-1140, 2013 WL 3866777, at *2 n.1 (D. Md. July 24, 2013) (same); In re Verizon Internet Servs., Inc., 257 F. Supp. 2d 244, 257-58 (D.D.C. 2003) (holding that Verizon had standing to assert First Amendment rights of its customers), rev'd on other grounds, 351 F.3d 1229, 1239 (D.C. Cir. 2003) see also Trawinski v. Doe, No. L-8026-12, 2015 WL 3476553, *4-5 (N.J. Super. Ct. App. Div. June 2, 2015) (applying First Amendment standing principles); Indiana Newspapers, Inc. v. Miller, 980 N.E.2d 852, 858-59 (Ind. 2012) (same). 9 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 10 of 38 1 Office’s takedown demand, it is plausible that it would not have been removed but for the demand. Further, Publius does not simply claim his asserted First Amendment right is to post as he sees fit 2 3 on WordPress alone, as Defendant suggests. Publius challenges § 6254.21(c)’s prohibition on his ability 4 to repost the legislators’ personal information anywhere online—or “through any other medium.” § 5 6254.21(c)(1)(D)(ii). Although this case does not present the Court with any jurisdiction to control the 6 content on WordPress, a private entity, the Court does have the authority (and obligation) to determine 7 whether legislation violates the First Amendment. The Court’s finding that § 6254.21(c) does so would 8 redress Publius’s asserted injury. Accordingly, the Court finds that Publius has standing to challenge 9 § 6254.21(c). 10 B. Defendant’s conduct was under color of law 11 “To state a claim for relief under section 1983, the Plaintiffs must plead two essential elements: 12 1) that the Defendant[] acted under color of state law; and 2) that the Defendant[] caused them to be 13 deprived of a right secured by the Constitution and laws of the United States.” Johnson v. Knowles, 113 14 F.3d 1114, 1117 (9th Cir. 1997).6 Defendant asserts Plaintiffs fail to state a claim under § 1983 because 15 the Office’s sending the takedown demand letters was not “under color of law” and, consequently, the 16 Court lacks jurisdiction over this case. Doc. 20 at 20-21; West v. Atkins, 487 U.S. 42, 46 (1988) (holding 17 that acting under color of state law is “a jurisdictional requisite for a § 1983 action”). Distilled, 18 Defendant argues that the Office’s sending the takedown demand letters to WordPress and Hoskins on 19 behalf of the California legislators was not state action because the legislators were acting as private 20 citizens who made private decisions to threaten private lawsuits if their personal information was not 21 22 23 24 25 6 Although not raised in the briefs, the Court notes that the “Eleventh Amendment bars suits for money damages in federal court against a state, its agencies, and state officials acting in their official capacities.” Aholelei v. Dep't of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). State official defendants named in their official capacities are subject only to suit “for prospective declaratory and injunctive relief . . . to enjoin an alleged ongoing violation of federal law” under § 1983. Flint v. Dennison, 488 F.3d 816, 824-25 (9th Cir. 2007) (citation omitted); Lacano Investments, LLC v. Balash, 765 F.3d 1068, 1072 (9th Cir. 2014) (“[The Eleventh Amendment does not bar actions when citizens seek only injunctive or prospective relief against state officials who would have to implement a state law that is allegedly inconsistent with federal law.”) (citations omitted). 10 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 11 of 38 1 2 removed. Doc. 20 at 20. “An individual acts under color of state law when he or she exercises power possessed by virtue 3 of state law and made possible only because the wrongdoer is clothed with the authority of state law.” 4 Naffe v. Frey, 789 F.3d 1030, 1036 (9th Cir. 2015) (citations and quotation marks omitted). “This test is 5 generally satisfied when a state employee . . . wrongs someone while acting in his official capacity or 6 while exercising his responsibilities pursuant to state law.” Id. (citations and quotation marks omitted). 7 Defendant relies primarily on Gritchen v. Collier, 254 F.3d 807 (9th Cir. 2001), and Laxalt v. 8 McClatchy, 622 F. Supp. 737 (D. Nev. 1985), for her position that the Office’s conduct was not state 9 action. In Gritchen, the plaintiff (Gritchen) filed a formal complaint against a police officer, Collier, 10 claiming that Collier “had been discourteous, argumentative, and that his breath smelled like alcohol.” 11 254 F.3d at 809. After the police department “found no misconduct,” Collier, through his attorney, sent 12 Gritchen a letter threatening to bring suit for defamation under California Civil Code § 47.5, which 13 permits peace officers to bring defamation actions against someone who files a false complaint. Id. at 14 809-10. Gritchen then filed a § 1983 suit alleging, among other things, that § 47.5 violates the First 15 Amendment. Id. at 810. The Ninth Circuit held that Collier’s conduct—threatening to sue Gritchen for 16 defamation under § 47.5—was not “under color of state law” because he acted “entirely by himself, 17 without assistance from state officials.” Id. at 813-14. 18 In Laxalt, the plaintiff (Laxalt), a United States Senator, brought suit against numerous 19 newspapers and their staff for their allegedly defamatory articles. 622 F. Supp. at 739. The defendants 20 counterclaimed against Laxalt under § 1983, arguing that the Senator had violated their First 21 Amendment rights by using his office to chill their speech. Id. at 746. The basis for their claims was 22 that, shortly after the defendants published their articles, Laxalt sent them a letter on Senate stationary 23 with his signature demanding the sources for the articles and that they be retracted. Id. at 747. The 24 defendants construed the letter as a threat from Laxalt that he would use his office “to retaliate against 25 them if they did not comply.” Id. The court rejected the defendants’ claim, finding that Laxalt “ha[d] 11 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 12 of 38 1 proceeded, as any other private citizen would have, to clear his name . . . and to recover damages for an 2 alleged libel.” Id. at 748. Gritchen and Laxalt are easily distinguishable from this case. In both of those cases, the 3 4 government officials acted individually as wholly private citizens without the aid of any other 5 government official. That is not what happened here. At the legislators’ request, the Office sent the 6 takedown demands to WordPress and Hoskins, which explicitly stated that the Office “represents the 7 California State Legislature.” The letter concluded: “If these home addresses are not removed from this 8 Web site in a timely manner, we reserve the right to file an action seeking injunctive relief, as well as 9 associated court costs and attorney’s fees.” FAC at ¶ 19 (Emphasis added.). Unlike Gritchen and Laxalt, 10 this case does not involve a state employee’s private attorney threatening legal action on behalf of one 11 individual. The Office informed WordPress and Hoskins that if they did not comply, the Office—on 12 behalf of the legislators—would consider legal action, including attempting to recover the Office’s 13 statutorily available fees and costs. The Office, a government entity, therefore provided legal services on 14 behalf of 40 state legislators at their request and made that clear to WordPress and Hoskins when doing 15 so. In the Court’s view, it is difficult to conceive how this could not constitute state action. See Frey, 16 789 F.3d at 1036. 17 C. Plaintiffs’ First Amendment challenge 18 Plaintiffs contend § 6254.21(c) is a content-based restriction on constitutionally protected speech 19 that violates the First Amendment on its face and as applied to them. See Doc. 19-1 at 15. Defendant 20 does not dispute the statute is content-based, but argues it is nonetheless lawful under the First 21 Amendment. See Doc. 20 at 15. 22 As to Plaintiffs’ facial challenge, they contend § 6254.21(c) is impermissibly overbroad. “[A] 23 law may be invalidated as overbroad if ‘a substantial number of its applications are unconstitutional, 24 judged in relation to the statute’s plainly legitimate sweep.’” United States v. Stevens, 559 U.S. 460, 473 25 (2010) (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n.6 (2008)). 12 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 13 of 38 1 “Technically, the overbreadth doctrine does not apply if the parties challenging the statute engage in the 2 allegedly protected expression,” as Plaintiffs did here, because the doctrine is used “to overcome what 3 would otherwise be a plaintiff’s lack of standing.” Nunez ex rel. Nunez v. City of San Diego, 114 F.3d 4 935, 949 (9th Cir. 1997). “A party seeking to challenge the constitutionality of a statute generally must 5 show that the statute violates the party’s own rights,” but “[t]he First Amendment overbreadth doctrine 6 carves out a narrow exception to that general rule.” United States v. Stevens, 559 U.S. 460, 483 (2010) 7 (Alito, J., dissenting) (citations omitted). Plaintiffs, however, may still “seek, as a remedy, the facial 8 invalidation of [a statute] if it is an overly broad regulation that create[s] an unacceptable risk of the 9 suppression of ideas.” ACLU of Nev. v. City of Las Vegas, 466 F.3d 784, 790 n.9 (9th Cir. 2006) 10 (citation and quotation marks omitted). 11 But “because a successful overbreadth challenge renders a statute unconstitutional and, therefore, 12 invalid in all its applications . . . the doctrine is employed sparingly and only as a last resort.” United 13 States v. Alvarez, 617 F.3d 1198, 1236 (9th Cir. 2010) (emphasis in original) (citations and quotation 14 marks omitted), aff’d, 132 S.Ct. 2537 (2012). Accordingly, when a litigant brings both an as-applied and 15 facial challenge, the Supreme Court has strongly suggested that courts should address the facial 16 challenge only if the as-applied challenge fails. See Serafine v. Branaman, 810 F.3d 354, 363 n.19 (5th 17 Cir. 2016) (collecting cases). The Court therefore turns first to Plaintiffs’ as-applied challenge. 18 1. Background on § 6254.12(c) 19 Section § 6254.21(c)(1)(A) prohibits anyone from posting or displaying the home address or 20 telephone number of certain government officials, see § 6254.21(f), if the official makes “a written 21 demand” that his or her personal information not be displayed. The written demand must “include a 22 statement describing a threat or fear for the safety of that official or of any person residing at the 23 official’s home address.” § 6254.21(c)(1)(B). A written demand is “effective for four years.” § 24 6254.21(c)(1)(C). After receiving such a written demand, the recipient must remove the official’s home 25 address and/or phone number from the internet within 48 hours, and may not “transfer” it to anyone 13 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 14 of 38 1 through any medium. § 6254.21(c)(1)(D)(i)-(ii). “An official whose home address or telephone number is made public as a result of a violation of 2 3 [§ 6254.21(c)(1)] may bring an action seeking injunctive or declarative relief.” § 6254.21(c)(2). “If a 4 court finds that a violation has occurred, it may grant injunctive or declarative relief and shall award the 5 official court costs and reasonable attorney’s fees.” Id. 6 Briefly summarized, if someone publishes the home address or telephone number of certain 7 officials on the internet, those officials may demand that it be removed. The official must make the 8 demand in writing, and must describe the threat or fear for safety the official feels personally or for his 9 or her family who reside at the official’s home address. Anyone who receives such a demand must 10 remove it within 48 hours, must takes steps to ensure it is not reposted, and may not communicate the 11 information to anyone through any medium. If the official’s home address or telephone number “is made 12 public” because someone posted the information online without the official’s consent, the official may 13 seek a court order to have the information removed from the internet. If the court finds that the 14 individual who posted the information online failed to comply timely with the official’s demand, then 7 15 the court must award attorney’s fees to the official, regardless of the relief the court orders. 16 2. Section 6254.21(c) is content-based 17 Section 6254.21(c)(1)(A) states, “[n]o person, business, or association shall publicly post or 18 publicly display on the Internet the home address or telephone number of any elected or appointed 19 [California] official” if the official makes a written demand that his or her personal contact information 20 be removed. An enforcing official could not determine whether § 6254.21(c)(1) applies to particular 21 speech without determining if (1) the speech contains a home address and/or phone number of (2) a 22 covered official. The statute is therefore content-based on its face: it applies only to speech that contains 23 certain content—the “home address or telephone number of any elected or appointed [California] 24 25 7 Defendant disputes how § 6254.21(c)’s attorney’s fees and costs provision operates. The Court discusses its disagreement with Defendant’s interpretation in a more relevant context below. 14 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 15 of 38 1 official.” See Reed v. Town of Gilbert, Ariz., 135 S.Ct. 2218, 2227 (2015) (“Government regulation of 2 speech is content based if a law applies to particular speech because of the topic discussed or the idea or 3 message expressed.” (citations omitted)); see also S.O.C., Inc. v. Cty. of Clark, 152 F.3d 1136, 1145 (9th 4 Cir. 1998) (holding that regulations that require officials to examine content of speech to determine 5 whether regulation applies are content-based (collecting cases)). 6 3. Analysis 7 “Content-based laws—those that target speech based on its communicative content—are 8 presumptively unconstitutional and may be justified only if the government proves that they are 9 narrowly tailored to serve compelling state interests.” Reed, 135 S.Ct. at 2226. This requires the 10 government to show that the law is “the least restrictive means to further a compelling interest.” Foti v. 11 City of Menlo Park, 146 F.3d 629, 637 (9th Cir. 1998) (citation omitted). Because § 6254.21(c)(1) is 12 content-based, Defendant must establish that, when applied to Plaintiffs’ speech, the statute is narrowly 13 tailored to a compelling state interest. See Reed v. Town of Gilbert, Ariz., 587 F.3d 966, 974 (9th Cir. 14 2009), rev’d on other grounds, 135 S.Ct. 2218. “As a general matter, ‘state action to punish the publication of truthful information seldom can 15 16 satisfy constitutional standards.’” Bartnicki v. Vopper, 532 U.S. 514, 527 (2001) (quoting Smith v. Daily 17 Mail Pub. Co., 443 U.S. 97, 102 (1979)). “More specifically, [the Supreme Court] has repeatedly held 18 that ‘if a newspaper lawfully obtains truthful information about a matter of public significance then state 19 officials may not constitutionally punish publication of the information, absent a need . . . of the highest 20 order.’” Id. at 527-28 (quoting Daily Mail, 443 U.S. at 103).8 21 22 23 24 25 8 Individuals who use the internet to disseminate their speech, such as Plaintiffs, are entitled to full First Amendment protections. See Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997). (“We agree with [the district court’s] conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to [the internet].”). Cases that concern other forms of media (e.g., newspapers) therefore apply with full force to speech on the internet. 15 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 16 of 38 a. 1 The legislators’ personal information is a matter of public significance Defendant suggests, in a footnote, that it is “questionable” whether the legislators’ personal 2 3 information is “a matter of public significance.” Doc. 20 at 23 n.12. For decades, the Supreme Court has 4 broadly held that “[p]ublic records by their very nature are of interest to those connected with the 5 administration of government, and a public benefit is performed by the reporting of the true contents of 6 the records by the media.” Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 495 (1975).9 Thus, several 7 cases demonstrate that the First Amendment protects the right to publish highly personal information of 8 private individuals, such as the names of rape victims and juveniles involved in legal proceedings, when 9 they relate to matters of public concern.10 Viewed in isolation, the legislators’ home address and phone numbers may not, in and of 10 11 themselves, constitute “a matter of public significance.” But when considered in the specific context of 12 Plaintiffs’ speech—political protest, which is “core political speech,” with First Amendment protection 13 “at its zenith,” Buckley v. Am. Const. Law Found., 525 U.S. 182, 186-87 (1996)—the information takes 14 on new meaning. Publius searched publicly available documents and compiled, and headednorth 15 reposted, the legislators’ personal information specifically in response to legislation that required the 16 government to maintain a database with the personal information of individuals who buy firearms and 17 ammunition in California. When viewed in that context of political speech, the legislators’ personal 18 information becomes a matter of public concern. Snyder v. Phelps, 562 U.S. 443, 453 (2011) (“Speech 19 deals with matters of public concern when it can be fairly considered as relating to any matter of 20 9 Cox concerned only information contained and placed into the public record through “official court records.” 420 U.S. at 21 495. But the Supreme Court has long “recognize[d] a general right to inspect and copy public records and documents.” Nixon 22 v. Warner Commnc’ns, Inc., 425 U.S. 589, 597 (1978). This is true even if the government inadvertently releases the information. See Florida Star, 491 U.S. at 534, 538 (holding First Amendment protected newspaper’s publishing a rape victim’s name that local police department had inadvertently released to the public). 23 10 24 25 See, e.g., Cox, 420 U.S. at 496-97 (holding television reporter had First Amendment right to publish name of 17-year-old rape victim when learned through court documents); Florida Star, 491 U.S. at 526 (holding newspaper had First Amendment right to publish name of rape victim inadvertently disclosed by police); Oklahoma Publishing Co. v. Dist. Ct., 430 U.S. 308, 308 (1977) (holding media had First Amendment right to publish name and photograph of 11-year-old involved in criminal proceedings that media had attended); Daily Mail, 443 U.S. at 99 (holding newspapers had First Amendment right to publish names of juvenile offenders) 16 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 17 of 38 1 political, social, or other concern to the community” (citation and quotation marks omitted)); see also 2 Org. for a Better Austin v. Keefe, 402 U.S. 415, 417 (1971) (holding injunction on dispersing pamphlets 3 with realtor’s home phone number and urging recipients to call him to urge certain political stance was 4 prior restraint that violated First Amendment). Four cases on which Plaintiffs primarily rely support this 5 proposition well: Florida Star, 491 U.S. 524; Brayshaw v. City of Tallahassee, 709 F. Supp. 2d 1244 6 (N.D. Fla. 2010); Sheehan v. Gregoire, 272 F.Supp.2d 1135 (W.D. Wash. 2003); and Ostergren v. 7 Cuccinelli, 615 F.3d 263 (4th Cir. 2010). 8 9 Florida Star involved a challenge to a Florida statute (“§ 794.03”) that made “it unlawful to ‘print, publish, or broadcast ... in any instrument of mass communication’ the name of the victim of a 10 sexual offense.” 491 U.S. at 524. A sheriff’s department investigating a reported rape “prepared a report, 11 which identified [the victim] by her full name, and placed it in the Department’s press room,” which was 12 open to the public. Id. A reporter for The Florida Star “copied the press report verbatim, including [the 13 victim’s] full name,” and subsequently published her full name in an article about the reported crime and 14 the department’s investigation of it. Id. at 528. The victim successfully sued The Florida Star under § 15 794.03 for publishing her name. 16 The Supreme Court reversed, and held the First Amendment prohibited imposing liability on The 17 Florida Star for publishing the victim’s name under the circumstances of the case. Id. at 537. The Court 18 held that “the article generally, as opposed to the specific identity contained within it, involved a matter 19 of paramount public import: the commission, and investigation, of a violent crime which had been 20 reported to authorities.” Id. at 536-37. The Court therefore concluded that, under its precedent, the 21 article concerned “a matter of public significance.” See id. at 536-37 (“Cox Broadcasting, supra (article 22 identifying victim of rape-murder); Oklahoma Publishing Co. v. Oklahoma County District Court, 430 23 U.S. 308 (1977) (article identifying juvenile alleged to have committed murder); Daily Mail, supra 24 (same); cf. Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978) (article identifying judges 25 whose conduct was being investigated).”). 17 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 18 of 38 1 In Brayshaw, the plaintiff truthfully posted the personal information of a peace officer, including 2 her personal address, phone number, and email, all of which was publicly available. 709 F. Supp. 2d at 3 1247. The plaintiff was charged with a misdemeanor for violating a Florida statute that provided: 4 Any person who shall maliciously, with intent to obstruct the due execution of the law or with the intent to intimidate, hinder, or interrupt any law enforcement officer in the legal performance of his or her duties, publish or disseminate the residence address or telephone number of any law enforcement officer while designating the officer as such, without authorization of the agency which employs the officer, shall be guilty of a misdemeanor of the first degree. 5 6 7 Id. at 1247. 8 The court rather summarily rejected the government’s argument that the plaintiff’s speech was 9 unprotected because it was not a matter of public significance. Id. at 1249. The court found that the issue 10 11 of police accountability was “of legitimate public interest,” and the “publication of truthful personal information about police officers is linked” to that interest “through aiding in achieving service of 12 process, researching criminal history of officers, organizing lawful pickets, and other peaceful and 13 lawful forms of civic involvement that publicize the issue.” Id. 14 Sheehan involved an overbreadth challenge to a Washington statute that provided: 15 16 17 18 A person or organization shall not, with the intent to harm or intimidate, sell, trade, give, publish, distribute, or otherwise release the residential address, residential telephone number, birthdate, or social security number of any law enforcement-related, corrections officer-related, or court-related employee or volunteer, or someone with a similar name, and categorize them as such, without the express written permission of the employee or volunteer unless specifically exempted by law or court order. 19 272 F. Supp. 2d at 1139. The plaintiff removed from his website the personal information of numerous 20 officials covered by the statute, then challenged it as overbroad. Id. As in Brayshaw, the court found the 21 22 23 officials’ personal information to be a matter of public concern because it was related to the issue of police accountability and could be relevant “to achieve service of process, research criminal history, and to ‘organize an informational picket [at individual officers’ homes] or other lawful forms of civic 24 involvement to force accountability.’” Id. at 1139, 1139 n.2. 25 18 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 19 of 38 1 Ostergren, 615 F.3d 263, a case Plaintiffs characterize as “closely analogous” to this one, is 2 particularly illustrative here. In that case, the plaintiff brought an as-applied challenge to a Virginia 3 statute that prohibited “[i]ntentionally communicat[ing] another individual’s social security number 4 (“SSN”) to the general public.” Id. at 266. “Calling attention to Virginia’s practice of placing land 5 records on the Internet without first redacting SSNs, [the plaintiff] displayed copies of Virginia land 6 records containing unredacted SSNs on her website.” Id. By doing so, she sought “to publicize her 7 message that governments are mishandling SSNs and generate pressure for reform.” Id. at 269 (footnote 8 omitted). The information the plaintiff posted on her website was publicly available for a nominal fee, 9 but her website made the public records “more accessible to the public than they [we]re through 10 Virginia’s [records] system.” Id. 11 Before she could be prosecuted for posting the SSNs on her website, the plaintiff challenged the 12 Virginia statute as applied to her website on First Amendment grounds. Id. As a threshold matter, the 13 Fourth Circuit rejected the government’s position that unredacted SSNs are entirely unprotected speech 14 under the First Amendment. Id. at 271. The court reasoned that, in the plaintiff’s case, the unredacted 15 SSNs “are integral to her message,” and, in fact, “they are her message” because her “[d]isplaying them 16 proves Virginia’s failure to safeguard private information and powerfully demonstrates why Virginia 17 citizens should be concerned.” Id. (emphasis in original and footnote omitted). Although the plaintiff 18 could have redacted the SSNs, the First Amendment protected the plaintiff’s “freedom to decide how her 19 message should be communicated.” Id. at 271 n.8. The Fourth Circuit therefore concluded that the 20 plaintiff’s speech “plainly concern[ed] a matter of public significance . . . because displaying the 21 contents of public records and criticizing Virginia’s release of private information convey political 22 messages that concern the public, see Cox Broad., 420 U.S. at 495, (‘Public records by their very nature 23 are of interest to those concerned with the administration of government, and a public benefit is 24 performed by the reporting of the true contents of the records by the media.’).” Id. at 276 (citation 25 omitted). 19 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 20 of 38 Florida Star, Brayshaw, Sheehan, and Ostergren thus show that highly personal information has 1 2 public significance when inextricably associated with political speech. That principle applies here. 3 Plaintiffs oppose, among other things, California legislation that requires the creation and maintenance 4 of a database run by the California Department of Justice that compiles the residential address and 5 telephone number of anyone who purchases or transfers firearms ammunition in California. See Cal. 6 Penal Code § 30352(a)(6). Plaintiffs’ means of protesting the legislation is by compiling their own 7 “database” of the legislators’ residential addresses and phone numbers. Like the plaintiff in Ostergren, 8 that information is not just “integral to [Plaintiffs’] message,” it is their message. 615 F.3d at 271. At its core, Plaintiffs’ speech is a form of political protest. 11 The Court therefore finds that the 9 10 legislators’ home address and telephone number touch on matters of public concern in the context of 11 Plaintiffs’ speech. b. 12 § 6254.21(c) is not narrowly tailored There is no dispute that Plaintiffs lawfully obtained and truthfully published information that was 13 14 readily available online. When lawfully obtained, the truthful publication of that information falls within 15 the First Amendment’s ambit. See Florida Star, 491 U.S. at 524; see also Bartnicki, 532 U.S. at 516 16 (holding First Amendment protected radio commentator’s playing anonymously and illegally wiretapped 17 recording on air). And as Florida Star, Sheehan, Brayshaw, and Ostergren demonstrate, when an 18 individual’s personal information is relevant to issues of public significance, its truthful dissemination— 19 particularly when already in the public domain and lawfully obtained—triggers exacting First 12 20 Amendment scrutiny under Supreme Court precedent. See Florida Star, 491 U.S. at 533. Specifically, 21 11 Defendant does not suggest Publius’s speech was a threat or otherwise not protected by the First Amendment. 12 22 The Court is not suggesting that the truthful dissemination of an individual’s personal information is always entitled to 23 First Amendment protections under any circumstance, even if it is already in the public domain. See Florida Star, 491 U.S. at 532 (“Nor need we accept appellant’s invitation to hold broadly that truthful publication may never be punished consistent 24 with the First Amendment. Our cases have carefully eschewed reaching this ultimate question, mindful that the future may 25 bring scenarios which prudence counsels our not resolving anticipatorily.” (collecting cases)). As the Fourth Circuit recognized: “Cox Broadcasting and its progeny avoided deciding the ultimate question of whether truthful publication could ever be prohibited. Each decision resolved this ongoing conflict between privacy and the First Amendment ‘only as it arose 20 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 21 of 38 1 if an individual publishes lawfully obtained, “truthful information about a matter of public significance 2 then state officials may not constitutionally punish publication of the information, absent a need . . . of 3 the highest order.” Daily Mail, 443 U.S. at 103. Any law that seeks to meet that need must be narrowly 4 tailored. Florida Star, 491 U.S. at 540-41. 5 The Court in Florida Star seemingly assumed without deciding that protecting a rape victim’s 6 identity is a state interest “of the highest order,” but held the challenged Florida statute was not narrowly 7 tailored to that interest for three reasons. See Florida Star, 491 U.S. at 538, 541; see also id. at 550 8 (White, J., dissenting). First, the state had released the victim’s name, though inadvertently, in a publicly 9 available document. Id. at 538. The Court found that when “the government has failed to police itself in 10 disseminating information, it is clear . . . that the imposition of damages against the press for its 11 subsequent publication can hardly be said to be a narrowly tailored means of safeguarding anonymity,” 12 reasoning that the government’s doing so “can only convey to recipients that the government considered 13 dissemination lawful, and indeed expected the recipients to disseminate the information further.” Id. at 14 538-39. 15 Second, the Florida statute imposed a “negligence per se standard” in that it did not permit 16 “case-by-case findings” concerning liability, but instead imposed it “automatically.” Id. at 539. Liability 17 followed publication regardless of the publisher’s intent, and “regardless of whether the identity of the 18 victim is already known throughout the community; whether the victim has voluntarily called public 19 attention to the offense; or whether the identity of the victim has otherwise become a reasonable subject 20 of public concern-because, perhaps, questions have arisen whether the victim fabricated an assault by a 21 particular person.” Id. The Court therefore concluded the statute imposed an impermissible “categorical 22 prohibition” even when “important First Amendment interests are at stake.” Id. 23 Third, the Florida statute was facially underinclusive. Id. at 540. Although it prohibited 24 25 in a discrete factual context.’” Ostergren, 615 F.3d at 276 (quoting Florida Star, 491 U.S. at 530). 21 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 22 of 38 1 publication in “instrument[s] of mass communication,” it did not prohibit the same information from 2 being published and distributed through other means. Id. The Court noted that “[a]n individual who 3 maliciously spreads word of the identity of a rape victim is thus not covered [by the statute], despite the 4 fact that the communication of such information to persons who live near, or work with, the victim may 5 have consequences as devastating as the exposure of her name to large numbers of strangers.” Id. For 6 these reasons, the Court held that The Florida Star could not be held liable under § 794.03 because the 7 statute was not narrowly tailored under the facts of the case. Id. at 541. 8 9 In Ostergren, the court assumed without deciding that Virginia’s asserted state interest was “of the highest order” because, even if it were, the statute was not narrowly tailored to that interest in the 10 plaintiff’s case. Id. at 280. The court succinctly reasoned that the statute could not be narrowly tailored 11 to protecting individuals’ privacy when Virginia made the records publicly available online and the 12 plaintiff obtained the records through Virginia’s online records system. Id. at 286. The court noted that, 13 at the very least, Virginia could have redacted the SSNs before making the documents accessible to the 14 public. Id. Accordingly, the Fourth Circuit held that the Virginia statute violated the First Amendment as 15 applied to the plaintiff. Id. at 287. 16 The courts in Brayshaw and Sheehan likewise found the contested laws were not narrowly 17 tailored without much difficulty. In Brayshaw, the court found that the challenged statute was both 18 overinclusive and underinclusive. 709 F. Supp. 3d at 1249. The court reasoned: 19 20 21 It is overinclusive in proscribing speech that is not a true threat. It is underinclusive both in its failure to prohibit dissemination of the same information by other entities to thirdparties who do intend to harm or intimidate officers, and in its failure to punish parties who actually wish to harm or intimidate police officers and obtain the officer's identifying information. 22 Id. at 1249-50. Further, the court found that “punishing Plaintiff for his dissemination of information 23 which is already publicly available is relatively unlikely to advance the interests claimed by the State.” 24 Id. (citing Florida Star, 491 U.S. at 535 (“punishing the press for its dissemination of information which 25 is already publicly available is relatively unlikely to advance the interests in the service of which the 22 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 23 of 38 1 2 3 4 5 6 7 State seeks to act”)). The court in Sheehan used largely the same reasoning. See 272 F. Supp. 2d at 1145. Additionally, the court observed: [W]hen the government itself injects personal identifying information into the public domain, it cannot credibly take the contradictory position that one who compiles and communicates that information offends a compelling state interest. Further, defendants can demonstrate no compelling interest because the statute hinges solely on the subjective intent of the speaker. Any third party wishing to actually harm or intimidate these individuals may freely acquire the personal identifying information from myriad public and private sources, including for-profit commercial entities, without entering the scope of the statute. 8 9 10 Id. at 1147 (footnotes omitted). The Court assumes that the interest underlying § 6254.21(c)—protecting the personal safety of 11 covered officials and their families—is a state interest of the highest order. But the Court need not 12 decide whether it is because the statute is not narrowly tailored to further that interest. The logic of 13 Florida Star, Ostergren, Brayshaw, and Sheehan applies here, and shows that there are a number of 14 reasons why § 6254.21(c) is not narrowly tailored. 15 First, § 6254.21(c) makes no attempt to prohibit or prevent true threats. Under the statute, a 16 covered official need only subjectively fear for his or her safety (or that of his or her family) due to his 17 or her home address or telephone number being online. § 6254.21(c)(1). To make a compliant request 18 that the information be removed, the official need only send the publisher of the information a 19 “statement describing a threat or fear for the safety of that official or of any person residing at the 20 official’s home address.” Id. If the official does so, the recipient must comply or face a lawsuit. An 21 official can therefore make an effective takedown demand by informing someone who has posted the 22 official’s home address or phone number that doing so has made the official fear for his or her safety. 23 On its face, § 6254.21(c)(1) does not require that the threat be credible or that a third-party review 24 whether the official’s request is well-founded. The statute makes no distinction between those who 25 publish a covered official’s home address or phone number online for wholly lawful reasons and those 23 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 24 of 38 1 who do so for wholly unlawful reasons. So long as an official subjectively feels threatened, the official 2 may make a takedown request under § 6254.21(c)(1). And if the publisher fails to comply with an 3 official’s takedown request within 48 hours, then he or she has violated § 6254.21(c)(1), which will 4 entitle the official to bring suit in which attorney’s fees would be awarded automatically to the official. 5 See id. §§ 6254.21(D)(i), 6254.21(c)(2). This lack of case-by-case oversight and effective per se liability 6 suggests that § 6254.21(c) is not narrowly tailored. See Florida Star, 491 U.S. at 539. 7 Defendant disputes this characterization of the statute. See Doc. 20 at 25 n.15. Defendant argues 8 that § 6254.21(c)(2)’s mandatory attorney’s fees and costs award does not impose “automatic liability” 9 for two reasons: 10 11 12 First, of course, no fees are awarded unless the Court has already determined that issuance of an injunction, with the resulting fee award, would not violate the First Amendment. Second, it is well-established that attorney’s fee awards under fee-shifting statutes like section 6254.21(c) are considered “costs,” not “damages,” and are not provided to “punish” the defendant in any way but merely to ensure that the plaintiff will be fully compensated. 13 Id. (citations omitted). Defendant provides no authority for her first point, and the plain language of the 14 statute contradicts it. On its face, § 6254.21 does not contemplate a First Amendment defense, and no 15 court has found one applicable. (In fact, the Court cannot find any court decision that even mentions the 16 statute.) As the Court interprets the provision, under § 6254.21(c)(2), if a court finds that the defendant 17 has violated § 6254.21(c)(1)—that is, whether the defendant has failed to timely comply with a covered 18 19 20 21 official’s appropriate and effective takedown request—then the court must award the plaintiff-official attorney’s fees and costs, regardless of the whether the court orders injunctive or declaratory relief. Defendant’s second point is a straw man. Regardless of whether attorney’s fees are “damages,” the imposition of attorney’s fees and costs is a form of liability, particularly in the First Amendment 22 context, where even their mere potential may have a chilling effect on First Amendment rights. See, e.g., 23 Dean v. Riser, 240 F.3d 505, 510 (5th Cir. 2001); Riddle v. Egensperger, 266 F.3d 542, 551 (6th Cir. 24 2001); see also New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964) (“would-be critics of official 25 24 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 25 of 38 1 conduct may be deterred from voicing their criticism . . . because of doubt whether it can be proved in 2 court or fear of the expense of having to do so” (emphasis added)). Defendant does not cite, and the 3 Court cannot find, any authority that suggests First Amendment scrutiny of a content-based statute 4 should be any different simply because attorney’s fees and costs are the only financial relief possible 5 under the statute. Section § 6254.21(c)(1) is not narrowly tailored for the additional reason that it does not 6 7 differentiate between acts that “make public” previously private information and those that “make 8 public” information that is already publicly available. There is no dispute that the information Publius 9 compiled and posted, and a member of Hoskins’s forum re-posted, was publicly available and readily 10 accessible online. “[P]unishing [Plaintiffs] for [their] dissemination of information which is already 11 publicly available is relatively unlikely to advance the interests in the service of which the State seeks to 12 act.” Florida Star, 491 U.S. at 535. When “the government has failed to police itself in disseminating 13 information, it is clear . . . that the imposition of damages against the press for its subsequent publication 14 can hardly be said to be a narrowly tailored means” to further the state’s interests. Id. at 538. Because 15 the information Plaintiffs published came from freely available public records, § 6252.21(c)(1) is not 16 narrowly tailored to protecting the safety of covered officials and their families. See id.; Ostergren, 615 13 17 F.3d at 286. Third, § 6254.21(c)(1) is underinclusive. See Florida Star, 491 U.S. at 540 (holding that statute 18 19 was not narrowly tailored in part because it was underinclusive on its face). A statute is underinclusive 20 when it affects “too little speech,” such that there are “doubts about whether the government is in fact 21 pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.” Williams22 Yulee v. Florida Bar, 135 S.Ct. 1656, 1668 (2015) (emphasis, quotation marks, and citation omitted). 23 13 Plaintiffs also point out that the voter registration affidavit of any voter, which includes his or her “home address, 24 telephone number, [and] email number,” Cal. Elec. Code § 625.4, “[s]hall be provided with respect to any voter . . . to any 25 person for election, scholarly, journalistic, or political purposes.” Cal. Elec. Code § 2194(a)(3). So, even if the legislators’ personal information was not freely available online, Plaintiffs potentially could have obtained it through lawful means. 25 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 26 of 38 1 “The Supreme Court has looked skeptically on statutes that exempt certain speech from regulation, 2 where the exempted speech implicates the very same concerns as the regulated speech.” Chaker v. 3 Crogan, 428 F.3d 1215, 1227 (9th Cir. 2005) (citations omitted). In Florida Star, for instance, the 4 challenged statute only prohibited the publication of information identifying a rape victim on “an 5 instrument of mass communication.” 491 U.S. at 540. That the statute did not prohibit the same 6 information being spread by other means raised “serious doubts” as to whether the statute was serving 7 the interests it purportedly served. Id. at 525, 540. 8 Section 6254.21(c)(1) is similarly underinclusive. It proscribes the dissemination of a covered 9 official’s home address and phone number only on the internet, regardless of the extent to which it is 14 15 10 available or disseminated elsewhere. That the statute does not prohibit a major newspaper or 11 television channel from publishing the information, but would potentially prohibit an online blog with a 12 limited audience from doing so, raises serious questions about whether it is serving its intended goals. 13 See id. “[A] law cannot be regarded as protecting an interest of the highest order, and thus as justifying a 14 restriction upon truthful speech, when it leaves appreciable damage to that supposedly vital interest 15 unprohibited.” Id. at 541-42 (Scalia, J., concurring) (citation and quotation marks omitted). The Court therefore concludes § 6254.21(c)(1) is not narrowly tailored to serve its underlying 16 17 interests. In addition, because the statute is content-based, Defendant had to show that it is “the least 18 restrictive means to further a compelling interest.” Foti v. City of Menlo Park, 146 F.3d 629, 637 (1998) 19 (citation omitted). Defendant has failed to do so. In fact, Defendant made no attempt to explain how § 20 6254.21 is the least restrictive means to further the statute’s goal of protecting covered officials. As 21 noted above, the statute could be less restrictive in that it could proscribe only true threats, or it could 22 14 The statute does prohibit the recipient of an official’s takedown demand from “transfer[ring]” the information on “any 23 other medium.” § 6254.21(c)(1)(D)(ii). But there can be no liability under § 6254.21(c)(1) unless an official’s home address or phone number is posted on the internet. 24 25 15 Ironically, a newspaper could face no liability under § 6254.21(c)(1) for publishing in print the same information that it posts online. 26 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 27 of 38 1 require a neutral third-party to determine if the official’s fear is objectively sound, or it could permit an 2 objective case-by-case determination for liability instead of permitting a covered official to trigger its 3 protections due to the official’s subjective concerns. In summary, the Court finds that Plaintiffs are 4 likely to succeed on their claim that § 6254.21(c)(1) is unconstitutional as applied to them. 5 D. Hoskins’s Commerce Clause challenge16 Plaintiffs contend that § 6254.21(c) violates the dormant Commerce Clause as applied to 6 7 Hoskins and out-of-state actors17 because the statute restricts speech that occurs wholly outside 8 California’s borders. Doc. 19-1 at 23 (citing Healy v. Beer Inst., 491 U.S. 324, 336 (1989) (“The 9 ‘Commerce Clause . . . precludes the application of state statutes to commerce that takes place wholly 10 outside of the State’s borders, whether or not the commerce has effects within the State”). Defendant counters that the extraterritoriality doctrine articulated in Healy does not apply to § 11 12 6254.21(c) because the statute does not control prices. Doc. 20 at 26. Defendant argues that, even if the 13 doctrine applies, “[§] 6254.21(c) does not significantly burden interstate commerce.” Id. at 27. 14 Specifically, Defendant asserts that the statute does not project any regulatory regimes or affirmative 15 obligations onto Hoskins, but rather “authorizes California public officials to request to have certain 16 17 18 19 20 21 22 23 24 25 16 Under the canon of constitutional avoidance, a court should avoid deciding unnecessary constitutional issues. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288 (1936). The doctrine generally applies only when “there is a viable alternate, nonconstitutional ground to reach the same result.” Ariz Dream Act Coal. v. Brewer, __ F.3d __, 2017 WL 461503, at *6 (9th Cir. Feb. 2, 2017) (citations omitted). But when a plaintiff challenges a law on multiple constitutional grounds, courts have discretion to decide which ground (or grounds) on which to decide the case. Compare Am. Booksellers Found. V. Dean, 342 F.3d 96, 102-03 (2d Cir. 2003) (finding federal statute unconstitutional under First Amendment and dormant Commerce Clause), PSINet, Inc. v. Chapman, 362 F.3d 227 (4th Cir. 2004) (same) with Old Coach Dev. Corp., Inc. v. Tanzman, 881 F.2d 1227, 1231 n.2 (3d Cir. 1989) (declining to address whether challenged statute violated the First Amendment after finding that it violated the dormant Commerce Clause). And because the Court concludes Hoskins’s § 230 challenge is unlikely to succeed, the Court may address his constitutional claims. 17 It appears Plaintiffs’ Commerce Clause claim is an as-applied challenge brought by Hoskins only. See FAC at 17 ¶ 2 (“Plaintiff Hoskins respectfully requests that this Court enter a declaratory judgment stating that applying California Government Code section 6254.21(c) to Hoskins’ out-of-state speech violates the Commerce Clause.”); see also id. at ¶ 45 (“The application of Section 6254.21(c) to out-of-state actors like Hoskins violates the so-called dormant Commerce Clause”), ¶ 53 (“Defendant, acting under color of state law, has applied California Government Code section 6254.21(c) in violation of the Commerce Clause, U.S. Const. art. I, § 8, cl. 3, thus in turn violating 42 U.S.C. § 1983.”). To the extent Hoskins brings both a facial and as-applied dormant Commerce Clause challenge, the Court need only address his as-applied challenge. 27 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 28 of 38 1 specifically identified sensitive personal information removed from a particular post.” Id. Although 2 Defendant acknowledges that § 6254.21(c) requires Hoskins to remove the information specific in the 3 Office’s takedown request or face the possibility of a suit for injunctive and declaratory relief, 4 Defendant argues that § 6254.21(c) does not impose any substantial burden on Hoskins. Id. Defendant 5 also contends there is no evidence that § 6254.21(c) conflicts with or is incompatible with New 6 Hampshire or any other State’s laws. Id. 7 “[A]s both the means to engage in commerce and the method by which transactions occur, ‘the 8 Internet is an instrumentality and channel of interstate commerce,’” United States v. Sutcliffe, 505 F.3d 9 944, 953 (9th Cir. 2007) (quoting United States v. Trotter, 478 F.3d 918, 921 (8th Cir. 2007) (per 10 curiam)). Thus, “regulation of the Internet impels traditional Commerce Clause considerations.” 11 American Libraries Ass'n v. Pataki, 969 F. Supp. 160, 173 (S.D.N.Y. 1997). 12 “The Commerce Clause of the United States Constitution assigns to Congress the authority ‘[t]o 13 regulate Commerce with foreign Nations, and among the several States.’” Sam Francis Foundation v. 14 Christies, Inc., 784 F.3d 1320, 1323 (9th Cir. 2015) (quoting U.S. Const. art. I, § 8, cl. 3). “Generally 15 speaking, the Commerce Clause protects against inconsistent legislation arising from the projection of 16 one state regulatory regime into the jurisdiction of another State.” Healy, 491 U.S. at 336. 17 “Courts have long read a negative implication into the clause, termed the ‘dormant Commerce 18 Clause,’ that prohibits states from discriminating against interstate commerce.” Yakima Valley Mem'l 19 Hosp. v. Wash. State Dep't of Health, 731 F.3d 843, 846 (9th Cir. 2013). The doctrine “bars state 20 regulations that unduly burden interstate commerce.” Quill Corp. v. North Dakota, 504 U.S. 298, 312 21 (1992) (citation omitted). “[A] statute violates the dormant Commerce Clause per se when it directly 22 regulates interstate commerce.” Pharm. Research and Mfrs. of America v. Cty. of Alameda, 768 F.3d 23 1037, 1043 (9th Cir. 2014) (quoting Assoc. des Eleveurs de Canards et d'Oies du Quebec v. Harris, 729 24 F.3d 937, 949 (9th Cir. 2013)) (internal quotation marks omitted). “Direct regulation occurs when a state 25 law directly affects transactions that take place across state lines or entirely outside of the state’s 28 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 29 of 38 1 borders.” Id. (quoting S.D. Myers, Inc. v. City and Cty. of S.F., 253 F.3d 461, 467 (9th Cir.2001)) 2 (internal quotation marks omitted). 3 Under the extraterritoriality doctrine, any “statute that directly controls commerce occurring 4 wholly outside the boundaries of a State exceeds the inherent limits of the enacting State’s authority and 5 is invalid regardless of whether the statute’s extraterritorial reach was intended by the legislature,” 6 Rocky Mountain Farmers Union v. Corey, 730 F.3d 1070, 1101 (9th Cir. 2013) (“RMFU”) (quoting 7 Healy v. Beer Inst., 491 U.S. 324, 336 (1989)), and regardless of “whether or not the commerce has 8 effects within the State.” Healy, 491 U.S. at 336. To determine whether state legislation violates the 9 dormant Commerce Clause, “[t]he critical inquiry is whether the practical effect of the [legislation] is to 10 control conduct beyond the boundaries of the State.” Id. 11 “Although the Ninth Circuit has not reached this issue, courts in several circuits have invalidated 12 state laws regulating the internet” where the statute regulates conduct occurring outside the borders of 13 the state. Nat’l Fed’n of the Blind v. Target Corp., 452 F.Supp. 2d 946, 958 (N.D. Cal. 2006) (collecting 14 cases). In contrast, courts have upheld state regulation of the internet where application of the law has 15 been limited to only local conduct, or where “[a] state would enforce the law only against conduct 16 occurring within the state.” Id. (collecting cases); see also Greater Los Angeles Agency on Deafness, 17 Inc. v. Cable News Network, Inc., 742 F.3d 414, 432-33 (9th Cir. 2014) (“Agency on Deafness”) 18 (holding that California statute that required captioning of online videos for California viewers did not 19 regulate out-of-state conduct because CNN could create a separate website specific to California users). 20 Defendant claims that the extraterritoriality doctrine articulated in Healy is inapplicable to this 21 case because Healy has been limited to its facts, namely, “price control or price affirmation statutes that 22 involve tying the price of . . . in-state products to out-of-state prices.” Doc. 20 at 26. For support, 23 Defendant cites to Pharmaceutical Research and Mfrs. of America v. Walsh, 538 U.S. 644, 669 (2003), 24 Harris, 729 F.3d at 951, and RMFU, 730 F.3d at 1101. 25 These cases do not support Defendant’s position. Walsh, Harris, and RMFU all concerned state 29 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 30 of 38 1 laws that regulated in-state conduct which were found not to directly regulate extraterritorial behavior, 2 and thus, Healy was inapplicable. See Walsh, 538 U.S. at 669 (“the Maine Act does not regulate the 3 price of any out-of-state transaction, either by its express terms or by its inevitable effect”); Harris, 729 4 F.3d at 951 (“Section 25982 applies to both California entities and out-of-state entities and precludes 5 sales within California of products produced by force feeding birds regardless of where the force feeding 6 occurred.”)18; RMFU, 730 F.3d at 1104 (“[California] does not control the production or sale of ethanol 7 wholly outside California.”). As the Ninth Circuit observed in RMFU, “[c]ourts have extended the 8 [extraterritoriality] rule from Healy and Brown-Forman to cases where the ‘price’ floor being imposed 9 on another jurisdiction was not monetary but rather a minimum standard of environmental protection.” 10 730 F.3d at 1102. Sam Francis Foundation, 784 F.3d at 1323-24, and Agency on Deafness, 742 F.3d at 432-33, a 11 12 case Defendant cites (albeit for a different proposition), make clear that extraterritoriality doctrine 13 applies beyond statutes that regulate out-of-state prices. Sam Francis Foundation involved a challenge 14 to California’s Resale Royalty Act, which required “the payment of royalties to the artist after a sale of 15 fine art whenever ‘the seller resides in California or the sale takes place in California.’” 784 F.3d at 16 1323 (emphasis in original). The plaintiff challenged the statute as violating the dormant Commerce 17 Clause because it regulated sales that took place outside California. Id. The Ninth Circuit “easily 18 conclude[d]” that the royalty requirement violated the dormant Commerce Clause because it mandated 19 that royalties be paid for sales that had no connection to California. Id. Agency on Deafness involved the California Disabled Person Act (“DPA”), a law having nothing 20 21 22 23 24 25 18 The court in Harris analyzed the statute at issue for whether it was directed wholly at extraterritorial activity. 729 F.3d at 949. While the court did not explicitly mention Healy during its analysis, it applied the extraterritoriality doctrine to determine that the statute was not directed solely at out-of-state producers. Id. To the extent Defendant relies on the court’s statement that “Healy and Baldwin are not applicable to a statute that does not dictate the price of a product” for support that the extraterritoriality doctrine is limited to price-fixing statutes, the court’s own application of the extraterritoriality doctrine in that case to a statute that does not dictate the price of a product undermines Defendant’s argument. Id. at 951. Furthermore, subsequent decisions apply Healy and the extraterritoriality doctrine to non-price-fixing statutes. See, e.g., Sam Francis Found., 784 F.3d at 1323-24. 30 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 31 of 38 1 to do with prices or sales of any kind.19 742 F.3d at 419. The plaintiffs in that case argued that the 2 defendant’s failure to provide closed captioning for its online videos for California viewers violated the 3 DPA, which mandated the captioning. Id. The defendant argued the DPA violated the dormant 4 Commerce Clause because it attempted to regulate conduct wholly outside of California. Id. at 433. The 5 Ninth Circuit rejected the argument, holding instead that the DPA did not have the practical effect of 6 regulating conduct outside of California because the defendant could enable close captioning for 7 California residents only, thereby limiting the statute’s effect to California’s borders. Id. Although the 8 court found that the DPA did not violate the dormant Commerce Clause, there is no indication that the 9 plaintiffs’ challenge under that provision was improper. Accordingly, the Court finds that Defendant’s contention that the extraterritoriality doctrine is 10 11 limited to price control or price affirmation statutes is without merit. The Court now turns to analyze § 12 6254.21(c) for its extraterritorial effects as applied to Hoskins and out-of-state actors. “Because the 13 internet does not recognize geographic boundaries, it is difficult, if not impossible, for a state to regulate 14 internet activities without project[ing] its legislation into other States.” Am. Booksellers Found. v. Dean, 15 342 F.3d 96, 103 (2d Cir. 2003) (internal quotation marks omitted). For example, if “[a] person outside 16 [California] posts information on a website or on an electronic discussion group . . . for the intended 17 benefit of other people [outside California], that person must assume that someone from [California] 18 may also view the material.” Id. As a result, posters outside of California must comply with § 19 6254.21(c) or risk subsequent litigation and attorney’s fees. California therefore has projected § 20 6254.21(c) “onto the rest of the nation.” Id. Defendant’s alternative argument that § 6254.21(c) does not significantly burden interstate 21 22 commerce ignores that § 6254.21(c) as applied to out-of-state actors, such as Hoskins, directly regulates 23 wholly out-of-state conduct. Section 6254.21(c) requires the recipient of a demand letter—anywhere in 24 25 19 The California Disabled Person Act assures that “[i]ndividuals with disabilities or medical conditions have the same rights as the general public to the full and free use” of public places and areas open to the public. Cal. Civ. Code §§ 54(a)-(b). 31 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 32 of 38 1 the country—sent by an elected official to remove the “official’s home address or telephone number 2 from public display on the internet,” and to “continue to ensure that this information is not reposted on . 3 . . any . . . Internet Web site maintained by the recipient of the written demand.” Cal. Gov. Code. § 4 6254.21(c)(1)(D)(i). It also prohibits the demand recipient from “transfer[ring] the appointed or elected 5 official's home address or telephone number to any other person, business, or association through any 6 other medium.” Cal. Gov. Code. § 6254.21(c)(1)(D)(ii) (emphasis added). The statute does not limit its 7 application to California, nor does it require that websites displaying officials’ home address or 8 telephone numbers bar California only internet users’ access. See Agency on Deafness, 742 F.3d at 432- 9 33 (rejecting dormant Commerce Clause challenge to statute requiring website to provide captioning for 10 California residents who access its online videos because captioning could be limited to only California 11 residents). 12 Rather, § 6254.21(c) requires Hoskins, a Massachusetts resident, to remove a post from his 13 online forum, FAC ¶ 45, and mandates that he “continue to ensure that [the legislators’ contact 14 information] is not reported on the forum or any other website maintained by him,” Doc. 19-1 at 23 15 (internal quotation marks omitted), even if the only people accessing the forum are New Hampshire 16 residents (or citizens of states other than California). Section § 6254.21(c) also prohibits Hoskins from 17 transferring the specified information to any other entity, “through any medium,” even if Hoskins and 18 the recipient have no connection to California or the transfer “takes place wholly outside of the State's 19 borders.” Healy, 491 U.S. at 336. Thus, California has projected § 6254.21(c) “onto the rest of the 20 nation.” Dean, 342 F.3d at 103. The Court therefore concludes that Hoskins is likely to succeed on his 21 claim that § 6254.21(c), as applied to out-of-state actors like Hoskins, violates the dormant Commerce 22 Clause. See Sam Francis Found., 784 F.3d at 1324 (holding that statute “regulating out-of-state art sales 23 where ‘the seller resides in California,’ . . . and no other connection to California need exist, violates the 24 dormant Commerce Clause as an impermissible regulation of wholly out-of-state conduct.”); see also 25 Dean, 342 F.3d at 103 (holding that Vermont statute that directly regulated speech on the internet 32 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 33 of 38 1 outside of Vermont was a “per se violation of the dormant Commerce Clause”). 2 E. Hoskins’s § 230 challenge 3 Under § 230(c)(1) “[n]o provider ... of an interactive computer service shall be treated as the 4 publisher or speaker of any information provided by another information content provider.” Under § 5 230(e), “[n]o cause of action may be brought and no liability may be imposed under any State or local 6 law that is inconsistent with this section.” Section 230 therefore “precludes liability that treats a website 7 as the publisher or speaker of information users provide on the website. In general, this section protects 8 websites from liability for material posted on the website by someone else.” Doe v. Internet Brands, 9 Inc., 824 F.3d 846, 850 (9th Cir. 2016). More specifically, § 230 immunity applies when “(1) the 10 defendant [is] a provider or user of an interactive computer service; (2) the cause of action treat[s] the 11 defendant as a publisher or speaker of information; and (3) the information at issue [is] provided by 12 another information content provider.” Hassell v. Bird, 247 Cal. App. 4th 1336, 1362 (2016) (citation 13 and quotation marks omitted). Hoskins claims that, as owner and operator of, he is a “provider of an 14 15 interactive computer service” under § 230(c)(1), who is entitled to immunity from any liability for the 16 content created on the website by third parties. Doc. 19-1 at 24 (citing § 230(c)). He argues that the 17 Office’s takedown request “treat[s] [him] as the publisher or speaker of third-party content in violation 18 of § 230.” Doc. 19-1 at 24 (internal quotation marks omitted). Hoskins further asserts § 6254.21(c) is 19 inconsistent with § 230(e), which provides that “[n]o cause of action may be brought and no liability 20 may be imposed under any State or local law that is inconsistent with this section.” See FAC at ¶ 56. 21 Hoskins therefore requests “a declaratory judgment stating that the Defendant has violated his rights 22 under Section 230.” Id. at 17 ¶ 3.20 Defendant takes no position on whether Hoskins qualifies as “a provider of an interactive 23 24 25 20 The Court notes that this is a particularly narrow request and, accordingly, the Court limits its analysis to its confines. 33 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 34 of 38 1 computer service” or whether he is entitled to immunity under § 230(c). See Doc. 20 at 28. Instead, 2 Defendant argues that § 6254.21(c) is entirely consistent with § 230(c) in that both preclude Hoskins 3 from facing any liability because “subdivision (e) of section 6254.21 . . . provides Hoskins with the 4 same immunity from liability, using the exact same definition of interactive computer service, as does 5 47 U.S.C. § 230.” Id.21 Hoskins’s claim is premised on the assumption that the Office’s takedown request violates his 6 7 § 230 immunity. Although the Office’s takedown demand may have erroneously assumed Hoskins 8 qualified as a “publisher” or “speaker” of the speech at issue here (headednorth’s re-posting the 9 legislators’ personal information)—an issue the Court need not and does not decide—the demand did 22 10 not violate his purported immunity under § 230. To the extent Plaintiffs assert § 6254.21(c)’s mandatory attorney’s fees provision violates § 230, 11 12 that issue is not properly before the Court. As explained in detail above, attorney’s fees are not available 13 under § 6254.21(c) unless and until (1) the plaintiff brings a lawsuit in state court for declaratory and/or 14 injunctive relief and (2) the court finds that the defendant violated § 6254.21(c)(1). If the defendant 15 asserts it is entitled to § 230 immunity as an “interactive computer service provider or access software 16 provider,” the court would have to determine (1) whether that is correct; and, if so, (2) whether imposing 17 attorney’s fees would amount to “liability” in violation of § 230 immunity; and, if so, (3) whether § 18 6254.21(e) precludes a fee award. Those issues are not ripe for the court’s review. Though not on all fours with the facts of this case, Google, Inc. v. Hood, 822 F.3d 212, 225-26 19 20 (5th Cir. 2016), guides the Court’s analysis here as the only analogous case the Court can find. Hood 21 21 22 (e) An interactive computer service or access software provider, as defined in Section 230(f) of Title 47 of the United States Code, shall not be liable under this section unless the service or provider intends to abet or cause imminent great bodily harm that is likely to occur or threatens to cause imminent great bodily harm to an elected or appointed official. 23 24 25 Section 6254.21(e) provides in full: 22 Neither party addresses whether Hoskins has standing to assert his § 230 claim. The Court notes, however, that the Office’s threat to bring suit under § 6254.21(c) is sufficient to confer Hoskins with standing to bring the claim. See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 118-19 (2007). 34 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 35 of 38 1 involved Google’s declaratory judgment challenge to a state attorney general’s administrative subpoena 2 that “sought information on Google's platforms, advertising practices, and knowledge of and efforts to 3 police ‘dangerous’ or ‘illegal’ content.” Id. at 218. The subpoena stated that if Google refused to 4 comply, the attorney general “‘may apply to’ a state court ‘for an order compelling compliance.’” Id. Before responding to the subpoena or seeking relief in state court, Google filed a declaratory 5 6 judgment case in federal court. Id. at 219. Google alleged, among other things, that the attorney 7 general’s investigation violated its § 230 immunity, and that any further proceedings to enforce the 8 subpoena would likewise violate that immunity. Id. at 219-20. The attorney general moved to dismiss 9 the case on numerous grounds, including that Google’s claims were not ripe for adjudication. See 10 Google, Inc. v. Hood, 96 F. Supp. 3d 584, 592 (S.D. Miss. 2015), rev’d, 822 F.3d 212. The district court 11 disagreed, and found that the claims were ripe because “Google is not required to expose itself to civil or 12 criminal liability before bringing a declaratory action to establish its rights under federal law, 13 particularly where the exercise of those rights have been threatened or violated.” Id. at 594 (citing 14 MedImmune, 549 U.S. at 128-29). 15 The Fifth Circuit reversed, holding that the “administrative subpoena was not ripe for 16 adjudication.” Hood, 822 F.3d at 224. The court so held because (1) the subpoena was “non-self17 executing,” meaning that Google could not be sanctioned for not complying with it; (2) the attorney 18 general could, but did not file a state court action to enforce Google’s compliance; and (3) if the attorney 19 general did file such a suit, Google could raise its claimed § 230 immunity as a defense. See id. at 22420 26; see also id. at 227 n.12 (“[W]e do not suggest that section 230 of the CDA would not apply if Hood 21 were to eventually bring an enforcement action, or cannot be applied at the motion-to-dismiss stage.”). 22 For these reasons, the Fifth Circuit held that Google’s “pre-enforcement challenge” was unripe. Id. at 23 226. 24 This is consistent with the Court’s understanding that § 230 immunity is an affirmative defense. 25 See Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997); Doe v. GTE Corp., 347 F.3d 655, 35 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 36 of 38 1 657 (7th Cir. 2003); Barnes, 570 F.3d at 1109. As the Ninth Circuit explained, § 230(c)(1) “only protects 2 from liability (1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, 3 under a . . . cause of action, as a publisher or speaker (3) of information provided by another 4 information content provider.” Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1100-01 (9th Cir. 2009) 5 (emphasis added); see also Fed. Trade Comm’n v. Leadclick Media, LLC, 838 F.3d 158, 173 (2d Cir. 6 2016 (observing that courts have interpreted § 230 to provide immunity from “claims”). Section 7 230(c)(1) therefore “protects certain internet-based actors from certain kinds of lawsuits.” Barnes, 570 8 F.3d at 1099 (emphasis added)); Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997) 9 (holding “lawsuits seeking to hold a service provider liable [for third party content] . . . are barred” 10 under § 230(c)(1)). As § 6254.21(c) and the demand letter make clear, the only liability Hoskins faced was a 11 12 potential lawsuit and attorney’s fees and costs if he failed to comply with the Office’s request. Despite 13 extensive research, the Court cannot find any authority that suggests the Office’s letter even triggers 14 Hoskins’s purported § 230 immunity, much less violates it, as the letter is not a “cause of action,” and 15 did not impose any kind of “liability” on Hoskins—even if he ignored it. See Barnes, 570 F.3d at 1099; 16 Hassell, 247 Cal. App. 4th at 1363 (“The [court’s] removal order does not violate section 230 because it 17 does not impose any liability on Yelp.”). Assuming that Hoskins is entitled to § 230 immunity, Hoskins 18 does not cite, and the Court cannot find, any case holding that the mere threat of a lawsuit that 19 ostensibly would violate his § 230(c) immunity constitutes a violation of § 230 itself. Likewise, the 20 Court is unaware of any authority that suggests the Court has jurisdiction over a declaratory judgment 21 claim that a threatened lawsuit would violate § 230. Hood, the only case with similar circumstances the 22 Court can locate, suggests otherwise. Accordingly, the Court finds that Hoskins’s claim that Defendant 23 23 “violated Hoskins’ rights under Section 230,” FAC at ¶ 55, is not ripe for review. Hoskins is therefore 24 25 23 Because of this conclusion, the Court need not address Hoskins’s alternative argument that § 6254.21(e) is inconsistent 36 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 37 of 38 1 not likely to succeed on the merits of his § 230 claim. 2 F. 3 Remaining preliminary injunction factors As outlined above, the Court finds that Plaintiffs are likely to succeed on the merits of their 4 challenges to § 6254.21(c) under the First Amendment and the Commerce Clause. “Both [the Ninth 5 Circuit] and the Supreme Court have repeatedly held that ‘[t]he loss of First Amendment freedoms, for 6 even minimal periods of time, unquestionably constitutes irreparable injury.’” Klein v. City of San 7 Clemente, 584 F.3d 1196, 1207-08 (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). “The harm is 8 particularly irreparable where, as here, [Plaintiffs] seek[] to engage in political speech.” Id. Plaintiffs 9 have “therefore demonstrated a likelihood of irreparable injury in the absence of an injunction.” Id. 10 Plaintiffs have also demonstrated that an injunction is in the public interest, and that the equities 11 tip in their favor. The Ninth Circuit has broadly held that “it is always in the public interest to prevent 12 the violation of a party’s constitutional rights.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012); 13 see also Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013) (“the [district] court acknowledged the 14 obvious [when issuing an injunction]: enforcement of an unconstitutional law is always contrary to the 15 public interest” (collecting cases)). Further, any “ongoing enforcement of the potentially 16 unconstitutional regulations . . . would infringe not only the free of expression interests of [Plaintiffs], 17 but also the interests of other people” subjected to § 6254.21(c). Klein, 584 F.3d at 1208 (quoting 18 Sammartano v. First Jud. Dist. Ct., 303 F.3d 959, 974 (9th Cir. 2002)). “The balance of equities and the 19 public interest thus tip sharply in favor of enjoining the [statute].” Id.; see also id. (noting that Ninth 20 Circuit “caselaw clearly favors granting preliminary injunctions to a plaintiff . . . who is likely to 21 succeed on the merits of his First Amendment claim”). Accordingly, the Court finds that a preliminary 22 23 with § 230 because the former excludes immunity for interactive computer service providers, as defined in § 230(f), if the “provider intends to abet or cause imminent great bodily harm that is likely to occur or threatens to cause imminent great 24 bodily harm to an elected or appointed official.” First, Hoskins made this argument for the first time in reply. Doc. 22 at 11; 25 Ass'n of Irritated Residents v. C & R Vanderham Dairy, 435 F. Supp. 2d 1078, 1089 (E.D. Cal. 2006) (“It is inappropriate to consider arguments raised for the first time in a reply brief.”). Second, it is questionable whether Hoskins can challenge that aspect of § 6254.21(e), which is wholly inapplicable to this case. 37 Case 1:16-cv-01152-LJO-SKO Document 24 Filed 02/27/17 Page 38 of 38 1 injunction restraining and enjoining the Office from enforcing § 6254.21(c) against Plaintiffs is proper.24 2 V. CONCLUSION AND ORDER 3 For the foregoing reasons, the Court finds that Plaintiffs are likely to succeed on their claims that 4 § 6254.21(c) violates the First Amendment as applied to them, and also violates the dormant Commerce 5 Clause as applied to Hoskins. The Court further finds that the remaining preliminary injunction factors 6 weigh in Plaintiffs’ favor. The Court therefore preliminarily RESTRAINS AND ENJOINS Defendant 7 from applying or enforcing § 6254.21(c) against Plaintiffs. Under Federal Rule of Civil Procedure 65(c), the Court “may issue a preliminary injunction . . . 8 9 only if the movant gives security in an amount that the court considers proper to pay the costs and 10 damages sustained by any party found to be wrongfully enjoined or restrained.” Plaintiffs request that 11 the Court set a nominal bond of $1.00. Doc. 19-5 at 2. Defendant offers no opinion on the matter, and 12 has not indicated it will suffer any financial loss as a result of the injunction. Accordingly, Plaintiffs 13 shall post a nominal bond of $1.00 before the preliminary injunction will issue. On or before March 10, 2017, the parties shall file a joint status report informing the Court how 14 15 they wish to proceed. 16 17 IT IS SO ORDERED. 18 Dated: February 27, 2017 /s/ Lawrence J. O’Neill _____ UNITED STATES CHIEF DISTRICT JUDGE 19 20 21 22 23 24 25 24 Because the Court only addressed Plaintiffs’ as-applied challenge and because Plaintiffs ask only for an order directing the Office not to enforce § 6254.21(c) against them, see Doc. 19-1 at 26, the Court limits the preliminary injunction to preclude enforcement of § 6254.21(c) against Plaintiffs only. 38

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