237 F. Supp. 3d 997
E.D. Cal.2017Background
- Plaintiffs Publius (political blogger) and Derek Hoskins (forum owner) posted or reposted publicly available home addresses and phone numbers of California legislators in political protest to recent California gun-control legislation.
- The California Legislative Counsel’s Office (Office) sent takedown demand letters under Cal. Gov. Code § 6254.21(c) to WordPress (hosting Publius) and to Hoskins, threatening suit and attorney’s fees if material was not removed.
- WordPress removed Publius’s blog entry immediately after receiving the demand; Hoskins removed a reposted list after receiving a materially identical demand.
- Plaintiffs sued under 42 U.S.C. § 1983 seeking declaratory and injunctive relief, alleging § 6254.21(c) violates the First Amendment (facial and as-applied), the dormant Commerce Clause (as-applied to out-of-state speech), and 47 U.S.C. § 230. They moved for a preliminary injunction barring enforcement of § 6254.21(c) against them.
- The district court found Plaintiffs had standing and that the Office acted under color of state law by sending the demands on behalf of legislators, and granted a preliminary injunction limited to preventing enforcement of § 6254.21(c) against the plaintiffs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing | Publius and Hoskins suffered First Amendment injury (self-censorship/removal) from enforcement threat | Office argues causation/redressability lacking for Publius (WordPress may have removed on its own); Hoskins didn’t author the content | Court: Both have standing—the takedown demands and removal show causation and redressability; self-censorship and forced removal are cognizable injuries |
| State action (§ 1983) | Office’s letters constituted state action because Office acted on behalf of legislators, invoking statutory remedies | Office contends letters were private-law threats by legislators and not state action | Court: Sending demands as legislative counsel on behalf of legislators was state action (acted under color of law) |
| First Amendment (content-based restriction) — as-applied | § 6254.21(c) is content-based: prohibits posting officials’ home addresses/phones after a subjective written demand; Plaintiffs’ political protest is core speech | Office argues statute is lawful to protect officials’ safety and is not impermissibly broad | Court: § 6254.21(c) is content-based and not narrowly tailored as applied — it permits per se takedowns based on subjective fear, covers information already public, is underinclusive and overbroad; Plaintiffs likely to succeed on as-applied First Amendment claim |
| Dormant Commerce Clause (as-applied to Hoskins) | § 6254.21(c) projects California regulation onto out-of-state websites/actors and thus impermissibly regulates wholly extraterritorial conduct on the Internet | Office argues statute does not directly regulate out-of-state commerce or significantly burden interstate commerce | Court: As applied to out-of-state actors like Hoskins, statute likely violates the dormant Commerce Clause (practical effect controls out-of-state conduct) |
| § 230 preemption / immunity | Hoskins contends § 6254.21(c) conflicts with § 230 by treating site operators as publishers and exposing them to liability | Office contends § 6254.21(e) mirrors § 230 and provides similar immunity; further, § 230 issues are premature because fee-shifting liability requires a court action | Court: § 230 challenge is not ripe — threatened enforcement letter alone does not presently impose liability under § 6254.21(c); Hoskins unlikely to succeed on § 230 claim at this stage |
Key Cases Cited
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (Court may issue preliminary injunction only upon showing likelihood of success, irreparable harm, balance of equities, and public interest)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requires concrete, traceable, redressable injury)
- Reed v. Town of Gilbert, 576 U.S. 155 (content-based speech restrictions trigger strict scrutiny)
- Bartnicki v. Vopper, 532 U.S. 514 (publication of lawfully obtained truthful information on matters of public concern is highly protected)
- Florida Star v. B.J.F., 491 U.S. 524 (punishing publication of lawfully obtained public information not narrowly tailored where government made information public)
- Ostergren v. Cuccinelli, 615 F.3d 263 (4th Cir.) (truthful display of public records can be core political speech; statute not narrowly tailored as applied)
- Healy v. Beer Inst., 491 U.S. 324 (dormant Commerce Clause: state statute cannot control commerce wholly outside state)
- Sam Francis Found. v. Christies, Inc., 784 F.3d 1320 (9th Cir.) (state law regulating out-of-state transactions can violate dormant Commerce Clause)
- Greater Los Angeles Agency on Deafness v. Cable News Network, 742 F.3d 414 (9th Cir.) (internet regulation requires analysis whether effect can be limited to in-state conduct)
- Barnes v. Yahoo!, 570 F.3d 1096 (9th Cir.) (§ 230 immunity is an affirmative defense protecting interactive computer services from being treated as publishers)
- Zeran v. America Online, 129 F.3d 327 (4th Cir.) (§ 230 protects online intermediaries from liability for third-party content)
- MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (ripeness for declaratory judgment where a plaintiff reasonably fears enforcement)