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Firearms Policy Coalition Second Amendment Defense Committee v. Harris

United States District Court, E.D. California

June 20, 2016

KAMALA D. HARRIS, Defendant.



         Plaintiffs Firearms Policy Coalition Second Amendment Defense Committee ("FPC Committee"), Firearms Policy Coalition ("FPC"), Kris Koenig, Steven Chollet, Michael Schwartz, and Tim Donnelly (collectively "Plaintiffs") would like to use video footage from California Assembly hearings generated by the Assembly's television signal in political advertisements. They have refrained from doing so, however, because California Government Code section 9026.5 makes the use of such video for political purposes a misdemeanor.[1] Plaintiffs thus filed this lawsuit seeking a declaration that section 9026.5 violates the First Amendment of the United States Constitution and an injunction preventing the Attorney General from enforcing section 9026.5 against them.

         On June 9, 2016, the Court orally granted Plaintiffs' Motion for a Preliminary Injunction ("Motion") and indicated that a written order would follow. See ECF Nos. 6, 8, 14. This written order supersedes the Court's oral ruling.


         Since 1991, proceedings of the California Legislature have been publicly broadcast throughout the state. Although members of the public are able to use the California Senate's video feed for any purpose, Government Code section 9026.5 prohibits the use of the Assembly's video feed "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." Cal. Gov't Code § 9026.5(a). Violation of the statute is a misdemeanor.

         Plaintiffs are a diverse group of individuals and organizations that intend to use Assembly video footage to create political advertisements. Specifically, Plaintiff FPC Committee is a political action committee organized to oppose a proposed statewide ballot initiative (officially titled the "Safety for All Act of 2016" and hereafter referred to as the "Initiative") submitted for qualification to appear on the ballot in November 2016. Plaintiff "FPC is a 501(c)(4) non-profit organization whose purpose involves "defending . . . the fundamental right to keep and bear arms." ECF No. 1 at ¶ 10. Plaintiffs Kris Koenig ("Koenig") and Stephen Chollet ("Chollet") are filmmakers who have contracted with the FPC Committee and FPC to develop and produce videos and political advertisements. Plaintiff Michael Schwartz ("Schwartz") is the Executive Director of San Diego County Gun Owners PAC. Finally, Tim Donnelly ("Donnelly") is a candidate for Congress in California's eighth congressional district. Donnelly would like to use Assembly video footage in political advertisements in support of his congressional campaign and in opposition to other political candidates and issues. Schwartz, FPC, and the FPC Committee wish to use Assembly video footage in advertisements opposing the Initiative. All Plaintiffs aver that they would use Assembly video footage in creating their advertisements, but fear prosecution under section 9026.5 if they do so. Accordingly, they have either refrained from producing advertisements that include Assembly video footage, or have refrained from releasing advertisements they have already created.


         "A preliminary injunction is an extraordinary and drastic remedy." Munaf v. Geren, 553 U.S. 674, 690 (2008). "[T]he purpose of a preliminary injunction is to preserve the status quo between the parties pending a resolution of a case on the merits." McCormack v. Hiedeman, 694 F.3d 1004, 1019 (9th Cir. 2012). A plaintiff seeking a preliminary injunction must establish that he is: (1) "likely to succeed on the merits;" (2) "likely to suffer irreparable harm in the absence of preliminary relief;" (3) "the balance of equities tips in his favor;" and (4) "an injunction is in the public interest." Winter v. Natural Res. Defense Council, 555 U.S. 7, 20 (2008). "If a plaintiff fails to meet its burden on any of the four requirements for injunctive relief, its request must be denied." Sierra Forest Legacy v. Rey, 691 F.Supp.2d 1204, 1207 (E.D. Cal. 2010) (citing Winter, 555 U.S. at 22). "In each case, courts ‘must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.'" Winter, 555 U.S. at 24 (quoting Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542 (1987)). A district court should enter a preliminary injunction only "upon a clear showing that the plaintiff is entitled to such relief." Winter, 555 U.S. at 22 (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)). Alternatively, under the so-called sliding scale approach, as long as the plaintiff demonstrates the requisite likelihood of irreparable harm and shows that an injunction is in the public interest, a preliminary injunction can still issue so long as serious questions going to the merits are raised and the balance of hardships tips sharply in the plaintiffs' favor. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011) (concluding that the "serious questions" version of the sliding scale test for preliminary injunctions remains viable after Winter).


         A. Plaintiffs have Standing to Challenge Section 9026.5.

         Before proceeding to the merits of the instant Motion, the Court must first examine Plaintiffs' standing to bring this action. Article III of the Constitution limits federal courts' jurisdiction to "cases" and "controversies." Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 597-98 (2007). A plaintiff can establish a case or controversy if he alleges "personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Id. at 598 (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)).

         Courts apply a relaxed standing requirement in First Amendment cases. See e.g., Italian Colors Restaurant v. Harris, 99 F.Supp. 3d 1199, 1206 (E.D. Cal. 2015) ("When the threatened enforcement effort implicates First Amendment rights, the inquiry tilts dramatically toward a finding of standing.") (quoting LSO, Ltd. v. Stroh, 205 F.3d 1146, 1155 (9th Cir. 2000)). The right of free expression secured by the First Amendment is so important that courts find the requisite level of injury necessary to confer standing where a plaintiff alleges that he or she engaged in self-censorship as a result of a speech-restricting statute. Az. Right to Life Pol. Action Comm. v. Bayless, 320 F.3d 1002, 1006-07 (9th Cir. 2003).

         Here, both the Complaint and the declarations in support of the instant Motion specifically allege that Plaintiffs Donnelly, Schwartz, FPC and FPC Committee have engaged in self-censorship as a result of section 9026.5. See ECF No. 1 at ¶¶ 19-26; ECF No. 6-6 at ¶¶ 7-8; ECF No. 6-7 at ¶ 3; ECF No. 6-5 at ¶ 3. Furthermore, while Plaintiffs Chollet and Koenig have not specifically stated that they have refrained from producing advertisements that include Assembly video footage, they have alleged that they are under contract with FPC and FPC Committee to produce such advertisements. ECF No. 6-3 at ¶ 2; ECF No. 6-4 at ¶ 2. The only logical inference is that Chollet and Koenig have suffered actual injury because section 9026.5 has prevented them from creating the films they were hired to produce. Given the "transcendent value to society" of the right of free expression, Az. Right to Life, 320 F.3d at 1006, this inference is sufficient to establish that Chollet and Koenig have also engaged in self-censorship as a result of section 9026.5.

         Defendant argues, however, that Plaintiffs self-censorship cannot constitute an actual injury for purposes of the First Amendment standing inquiry because members of the public have no right to "expropriate video footage of Assembly proceedings created and paid for . . . by the State[.]" ECF No. 10 at 13:23-26. According to Defendant, Plaintiffs' proposed use of such video footage implicates copyright infringement concerns, contravenes the purpose of ...

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