Victor Gresham v. Michael Picker
705 F. App'x 554
| 9th Cir. | 2017Background
- Gresham and Conquest Communications appeal the denial of a preliminary injunction against Cal. Pub. Util. Code § 2872.
- § 2872 prohibits use of automatic dialing-announcing devices, with specified exemptions (including education, certain organizations, utilities, and emergencies).
- Plaintiffs argue § 2872 is facially content-based and triggers strict scrutiny, contrasting Bland v. Fessler (9th Cir. 1996).
- Bland held § 2872 facially constitutional as content-neutral, but plaintiffs contend Reed v. Town of Gilbert and Citizens United overrule that.
- The district court applied Winter v. NRDC, requiring likelihood of success, irreparable harm, and public-interest balance.
- Court affirms denial of injunction, concluding plaintiffs fail to show probable success on the merits and fail to satisfy Winter’s requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2872 is likely to be upheld on the merits | Gresham argues Bland is undermined by Reed/Citizens United. | Defendants contend § 2872 remains constitutional or severable, avoiding strict scrutiny. | Plaintiffs fail to show likelihood of success on the merits. |
| Whether subsections (d)(1)–(4) are severable and how that affects § 2872's validity | Exemptions render the statute unconstitutional under strict scrutiny. | Exemptions are severable; rest of statute can survive. | Subsections (d)(1)–(4) are severable; rest of § 2872 remains enforceable. |
| Whether the balance of equities and public interest favor an injunction | Public interest in free speech supports lifting the statute's restrictions. | Winter requires more than First Amendment likelihood; harms and public interests weigh against injunction. | Plaintiffs fail to show Winter factors support relief. |
Key Cases Cited
- Bland v. Fessler, 88 F.3d 729 (9th Cir. 1996) (facial constitutionality of content-neutral regulations; factors for injunction)
- Vivid Entm’t, LLC v. Fielding, 774 F.3d 566 (9th Cir. 2014) (severability and injunction standards in First Amendment context)
- Doe v. Harris, 772 F.3d 563 (9th Cir. 2014) (do not assume merits collapse into injunction standards)
- Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320 (Supreme Court 2006) (severability and narrowing the statute to avoid broader invalidation)
- Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (Supreme Court 2008) (injunction standard: likelihood of success, irreparable harm, balance of equities, public interest)
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (Supreme Court 2015) (content-speech-based distinctions and strict scrutiny implications)
- Citizens United v. FEC, 558 U.S. 310 (Supreme Court 2010) (content- and speaker-based considerations and First Amendment scrutiny)