United States District Court, E.D. California
FIREARMS POLICY COALITION SECOND AMENDMENT DEFENSE COMMITTEE, et al., Plaintiffs,
KAMALA D. HARRIS, Defendant.
MEMORANDUM AND ORDER
MORRISON C. ENGLAND JR. UNITED STATES DISTRICT JUDGE
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. 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.
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
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.
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.
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).
Plaintiffs have Standing to Challenge Section
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)).
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.
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.
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