The Volokh Conspiracy
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As I noted a few weeks ago, Brad Benbrook, Steve Duvernay and I are representing the Firearms Policy Coalition in its challenge to a curious California statute—California Penal Code § 9026.5, which makes it a crime to rebroadcast televised California Assembly proceedings "for any political or commercial purpose, including … any campaign for elective public office or any campaign supporting or opposing a ballot proposition submitted to the electors."
At the hearing on June 9, U.S. District Court Judge Morrison England granted a preliminary injunction ordering the state not to enforce the law and promised an opinion in due course. The opinion has been issued, and here's a quick rundown.
1. Intellectual property: The state seemed to argue that use of the video was somehow an infringement of intellectual property; here's the court's response:
[The state argues that] members of the public have no right to "expropriate video footage of Assembly proceedings created and paid for … by the State[.]" According to [the state], Plaintiffs' proposed use of such video footage implicates copyright infringement concerns, contravenes the purpose of the Assembly television signal, and would chill the speech of Assembly members in the course of their work for the people.
This argument fundamentally misunderstands the well-established First Amendment right to use public records to inform the public about the administration of its government. In Cox Broad. Corp. v. Cohn (1975), the Supreme Court considered whether a broadcaster could be civilly liable for the publication of accurate information contained in public records. In concluding that the publication of such information was protected by the First Amendment, the Court noted that "[p]ublic records by their very nature are of interest to those concerned with the administration of government" and that the public benefits from the publication of the true contents of public records. Accordingly, the Court held that the First Amendment forbids states from imposing civil sanctions "on the publication of truthful information contained in official court records open to public inspection." Although states are free to make political calculations about the kind of information they release to the public, once that information is disclosed in "public documents open to public inspection, the press cannot be sanctioned for publishing it."
The Supreme Court's holding in Cox cannot be limited to members of the press. See Citizens United v. Fed. Election Comm'n (2010) (explaining that the Supreme Court has "consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers. With the advent of the Internet and the decline of print and broadcast media … the line between the media and others who wish to comment on political and social issues becomes far more blurred."). Nor can Cox's holding be limited to Court records. If what transpires in the courtroom is public property, then what transpires before the Legislature is, too.
Plaintiffs here seek to publish accurate excerpts of Assembly proceedings that the California Legislature made publicly available through the Assembly's television signal. Defendant's assertion that Plaintiffs have no right to use the publicly available video footage of those proceedings is contrary to the clear pronouncement of the Supreme Court in Cox and antithetical to the nature of our democracy.
[Footnote:] The Court declines to address the argument that Plaintiffs' use of Assembly video footage implicates copyright infringement concerns because Defendant has not established that it has obtained copyright protection for such footage. The Court notes, however, that even if Defendant had made a showing of copyright protection, the fair use doctrine would almost certainly protect Plaintiffs' ability to use excerpts from the Assembly video footage.
2. Compelling government interest: Because the law is a content-based restriction on constitutionally protected speech, it violates the First Amendment unless it is necessary to serve a "compelling government interest." The state argued that it was indeed necessary to do that; the court responded:
[The state's] argument that the compelling interest of protecting the integrity of the legislative process justifies section 9026.5 is nothing more than a mirage. At a 1989 hearing on the proposed televising of Assembly proceedings, there was some worry that the presence of cameras would lead to grandstanding on the Assembly floor. Defendant identifies the need to prevent grandstanding as synonymous with the protection of the integrity of legislative proceedings. That argument fails for a very basic reason: the fact that an Assembly member plays to the camera during legislative proceedings does not mean that those proceedings or their results lack integrity. One person's "grandstanding" is another's "passionate debate." In other words, "grandstanding" is simply "speech" by another name. The State's interest in preventing such speech is far from compelling.
Furthermore, even if preventing grandstanding protects the integrity of legislative proceedings and thus constitutes a compelling state interest, section 9026.5 is far from necessary—or narrowly tailored—to achieve that goal. First, it is telling that, although the California Senate also televises its proceedings, neither section 9026.5 nor any other statute prevents members of the public from using its footage for political or commercial purposes. Second, the fact that no one can use Assembly video footage for a political purpose does not prevent Assembly members from playing to the cameras. After all, section 9026.5 permits "any accredited news organization" to use Assembly video footage. Assembly members can surely grandstand to attract press coverage even if section 9026.5 is enforced. Their ability to do so would undermine the integrity of legislative proceedings just as easily as if they played to the cameras in order to create footage for third-party political advertisements.
Finally, the California Legislature can prevent grandstanding through less intrusive means. The Assembly is free to police its members' conduct on the Assembly floor through its own rules. Indeed, it already does so. See e.g., Standing Rules of the Assembly, 2015-16 Regular Session, at Rule 108.5.
Defendant's counterargument—that preventing grandstanding solely through rules constraining Assembly members would lead to an unbalanced situation in which Assembly members would be prohibited from using video footage of their conduct while leaving their political opponents free to attack them with that footage—misses the point. This sort of "balancing" is not a legitimate governmental objective. "[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment." Buckley v. Valeo (1976).
[Footnote moved: Indeed, Defendant's balancing argument acknowledges the actual, entirely uncompelling purpose behind section 9026.5: "ensuring that Assembly members are free to engage in legislation without considering that video footage will be used to support or oppose them in political advertisements."]
3. The state also argued that two of the plaintiffs, who are paid commercial producers, were going to be engaged in mere "commercial speech"—a term generally used to refer only to commercial advertising, and not political speech produced for money. The court's response:
Defendant argues that because Plaintiffs Chollet and Koenig will profit economically from producing advertisements with Assembly video footage, section 9026.5 is entitled to greater deference with respect to their challenge. Defendant's argument lacks merit. "Some of our most valued forms of fully protected speech are uttered for a profit." Board of Trustees of State Univ. of N.Y. v. Fox (1989) (citing, as examples, cases involving political ads for which money is paid). "[W]hat defines commercial speech" is that the speech "proposes a commercial transaction," not that some of the people who engage in the speech are motivated by profit. That someone … "has an economic motivation" for speech "would clearly be insufficient by itself to turn the materials into commercial speech." Bolger v. Youngs Drug Products Corp. (1983).
4. The state also argued that a preliminary injunction is unwarranted, because plaintiffs can just express themselves using other means. The court's response:
Defendant argues that Plaintiffs will not suffer any real harm if they are required to comply with section 9026.5 because they are still free to use transcripts and audio recordings of the Assembly proceedings in question. Transcripts and audio recordings, however, are imperfect substitutes for video images. See Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985) ("The use of illustrations or pictures in advertisements serves important communicative functions: it attracts the attention of the audience to the advertiser's message, and it may also serve to impart information directly."). Furthermore, the Ninth Circuit has repeatedly found irreparable harm to plaintiffs even where a speech restriction left them free to speak in other ways. E.g., Klein v. City of San Clemente (9th Cir. 2009) (restriction on placing leaflets on unoccupied cars irreparably harmed speakers, even though speakers remained free to speak using other media); Valle Del Sol Inc. v. Whiting (9th Cir. 2013) (although plaintiffs remained free to speak using other media, restriction on solicitation of employment on public streets irreparably harmed them).
5. Plaintiffs want to use Assembly footage to oppose a gun restriction ballot initiative. The state argued that plaintiffs aren't being sufficiently harmed by the existence of the statute "because the Initiative has not yet qualified for the ballot," but the court disagreed:
Defendant's argument is perplexing. As the Ninth Circuit has repeatedly stated, "timing is of the essence in politics and a delay of even a day or two may be intolerable …." Plaintiffs have decided that their political
interests are best served by opposing the Initiative before it qualifies for the ballot. Defendant cannot seriously expect that this Court will allow her to criminally prosecute Plaintiffs simply because she disagrees with their sense of timing.
This is just a preliminary injunction against enforcement of the law, based on England's view of the likelihood of success on the merits. But I think the opinion pretty definitively foreshadows the likely result as to the permanent injunction for which we'll be asking, if the state keeps fighting this. The state can also appeal the grant of the preliminary injunction immediately, and likely get a Ninth Circuit oral argument on the subject within six to nine months; but I'm pretty confident that, if it does so, the Ninth Circuit will agree with us as well.
In any case, I'll blog further about this as we see more developments. Many thanks to Brad and Steve for all their work on the case, and to Brandon Combs of the Firearms Policy Coalition.