California law criminalizes use of Assembly video for political purposes

|The Volokh Conspiracy |

California Government Code § 9026.5 provides—on pain of criminal prosecution—that

No television signal generated by the Assembly shall be used for any political or commercial purpose, including, but not limited to, any campaign for elective public office or any campaign supporting or opposing a ballot proposition submitted to the electors.

As used in this section, "commercial purpose" does not include either of the following:

(1) The use of any television signal generated by the Assembly by an accredited news organization or any nonprofit organization for educational or public affairs programming.

(2) As authorized by the Assembly, the transmission by a third party to paid subscribers of an unedited video feed of the television signal generated by the Assembly.

I'm pleased to report that Bradley Benbrook and Steve Duvernay of the Benbrook Law Group and I have just filed a challenge to this statute, on behalf of (among others) the Firearms Policy Coalition. The coalition wants to produce, among other things, a video opposing a November 2016 ballot initiative (the so-called "Safety for All Act of 2016"); the video would include "Assembly television footage of past and current bill committee hearings, floor discussion, debates, and votes as well as footage from a May 3, 2016 joint Senate and Assembly Public Safety Committee hearing on the Initiative." But that use would be a crime under § 9026.5; indeed, another one of our clients, former Assembly member and current congressional candidate Tim Donnelly, had been threatened with punishment in 2014, "when he used video footage of a hearing in which he participated."

Here is the heart of our argument, from the memorandum supporting our request for a temporary restraining order; the judge denied the TRO request, but said that he will hold a hearing on a preliminary injunction on June 9. The state's opposition is due in a week, and our reply is due a few days later; I'll post both when they are available.

Section 9026.5 Is Presumptively Unconstitutional Because It Is A Content-Based Prohibition On Protected Speech.

"Discussion of public issues" is "integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order 'to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'" Buckley v. Valeo, 424 U.S. 1, 14 (1976) (quoting Roth v. United States, 354 U.S. 476, 484 (1957)). "[I]nteractive communication concerning political change" is "core political speech" for which the First Amendment's protection is "at its zenith." Buckley v. Am. Const. Law Found., 525 U.S. 182, 186-87 (1999) (quoting Meyer v. Grant, 486 U.S. 414, 422, 425 (1988)). Plaintiffs seek to use video footage of Assembly proceedings in connection with the discussion of public issues, but are prevented from engaging in such core political speech—on pain of criminal sanctions—by California Government Code section 9026.5.

By imposing a content-based restriction on the use of video, section 9026.5 violates the First Amendment. The government "has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015) (citation omitted). "Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests." Id.

Section 9026.5 is a content-based restriction that criminalizes core political speech. The statute expressly limits itself to speech based on its content: video footage of television signals generated by the Assembly, which consists of video recordings of Assembly proceedings. Section 9026.5 does not limit or restrict the use of video footage from other sorts of television signals. It is therefore content-based. SeeReed, 135 S. Ct. at 2227 (holding that a distinction between political signs and other signs was content-based).

Moreover, "defining regulated speech by its function or purpose," the Supreme Court has held, also makes a restriction "content based." Id. Section 9026.5 does this by expressly barring only the use of Assembly-generated signals "for any political or commercial purpose," whereas certain other uses of the footage—for instance, use in nonprofits' nonpolitical "educational or public affairs programming"—are not prohibited.

In McCullen v. Coakley, for example, the Supreme Court held that a law is "content based if it require[s] 'enforcement authorities' to 'examine the content of the message that is conveyed to determine whether' a violation has occurred." 134 S. Ct. 2518, 2531 (2014); see also Regan v. Time, Inc., 468 U.S. 641, 649 (1984) ("A determination concerning the newsworthiness or educational value of a photograph cannot help but be based on the content of the photograph and the message it delivers."). To determine whether a speaker is "us[ing]" a "television signal generated by the Assembly … for any political … purpose," or instead for "educational" or "public affairs" purposes, enforcement authorities must examine the content of the speaker's message: They must examine it to decide whether the message uses an Assembly-generated signal, and they must examine it to decide whether the message uses the signal for a political, educational, or public affairs purpose.

Section 9026.5 also contains an impermissible speaker-based classification. "Because '[s]peech restrictions based on the identity of the speaker are all too often simply a means to control content,'" the Supreme Court has "insisted that 'laws favoring some speakers over others demand strict scrutiny when the legislature's speaker preference reflects a content preference.'" Reed, 135 S. Ct. at 2230. Section 9026.5 distinguishes "accredited news organization[s]" and "nonprofit organizations" from other organizations. The only explanation for this speaker preference consistent with the structure of section 9026.5 is that the legislature prefers nonpolitical "news" content to other content, such as "campaign[s] for … office" or "campaign[s] support or opposing … ballot proposition[s]."

Any of these reasons, even standing alone, would render section 9026.5 content-based. Put together, they illustrate the content discrimination even more clearly.

Section 9026.5 Cannot Withstand Strict Scrutiny.

Because section 9026.5 expressly criminalizes political speech in a content- and speaker-based way, it is "presumptively unconstitutional" and is subject to strict scrutiny. Reed, 135 S. Ct. at 2226-27; see also Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 340 (2010) ("Laws that burden political speech are subject to strict scrutiny.") (internal quotation marks and citation omitted). This means that the statute is unconstitutional unless it "furthers a compelling interest and is narrowly tailored to achieve that interest." Reed, 135 S. Ct. at 2231 (internal quotation marks and citation omitted).

There is no compelling state interest in criminalizing the dissemination of Assembly hearings and debates for political or commercial purposes. To the contrary, California law recognizes in various ways that the state's interest is served by promoting dissemination of public proceedings. The California Constitution declares that "[t]he proceedings of each house [of the legislature] and the committees thereof shall be open and public." Cal. Const., art. IV, § 7(c)(1); see also Cal. Const., art. I, § 3(b)(1) ("The people have the right of access to information concerning the conduct of the people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny."). The legislature itself has acknowledged that "access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state." Cal. Gov. Code § 6250. To that end, the legislature has declared on multiple occasions that the people's right to know what its government is doing is essential to our system of democratic self-governance:

The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.—Cal. Gov. Code § 54950; id., § 11120.

The Assembly carries on the legislative business on behalf of the citizens of California and it creates video footage that captures those proceedings. California cannot restrict its citizens from sharing that footage with fellow citizens in furtherance of their fundamental speech rights.

The video footage is simply a recording of the events taking place in the legislature. For more than a century, the primary record of those proceedings was produced in written form—a transcript of a floor debate, for example. It is inconceivable in the U.S. constitutional system that a citizen could ever have been prevented from copying and disseminating those transcripts to his or her fellow citizens in connection with a message critical—or supportive—of what was recorded in those proceedings. Yet that is exactly what section 9026.5 purports to do to the modern equivalent of those transcripts.

Readers may recall that I blogged about a similar Texas statute, which the Texas attorney general refused to defend; that post came before I became involved in the California case.