Monday, August 8, 2016

Firearms Policy Coalition Sues California on First Amendment Grounds - Again

The Firearms Policy Coalition has sued the Legislative Counsel of California, Diane Boyer-Vine, for her attempts to suppress free speech. The suit centers around a blog post that posted publicly available addresses and phone numbers of Assembly members who voted for gun control. The post by FPC member "Publius" on his or her blog, The Real Write Winger, was removed by after the Legislative Counsel said it violated California law. The suit, as described in the press release below, seeks to have California Government Code section 6254.21(c) declared unconstitutional and to enjoin its enforcement.

This is the second lawsuit this year that the Firearms Policy Coalition has brought this year on First Amendment grounds. In the first lawsuit which they won, they challenged the California Legislature's ban on the use of video footage from floor debates in political ads. This is an interesting tactic as it forces judges to apply, in most cases, strict scrutiny.

More on the lawsuit and the whole back story is below:
SACRAMENTO (August 5, 2016) A just-filed First Amendment lawsuit challenges the State of California's attempt to censor a political blog using an unusual and unconstitutional “takedown” process authorized by a state statute. The lawsuit is funded by the Firearms Policy Coalition, and filed on behalf of one of the Coalition’s members.

“Publius” (a pseudonym, since the challenged law carries a criminal penalty) runs a political blog under the alias “The Real Write Wringer” and writes extensively about California politics, civil liberties, and the Second Amendment.

The case, Doe Publius v. Diane Boyer-Vine, Legislative Counsel of California, seeks a restraining order against and challenges California Government Code section 6254.21(c), which broadly restricts the publication of the home address or telephone number of any “elected or appointed official” on the Internet.

Following California Governor Jerry Brown’s July 1 signing of six new gun control laws, the FPC member (pseudonymized as “Publius” in the lawsuit due to potential criminal liability) published a post on July 5 saying, in part, “... below is the names, home addresses, and home phone numbers of all the legislators who decided to make you a criminal if you don’t abide by their dictates. So below is the current tyrant registry. These are the people who voted to send you to prison if you exercise your rights and liberties. This will be a constantly updated list depending on future votes ....”

Soon after, the political blog’s hosting site,, received a censorious takedown letter from the California Legislative Counsel threatening litigation if the “tyrant registry” wasn’t removed due to the “grave risk” that it supposedly posed to the safety of elected officials.

In her letter, Deputy Legislative Counsel Kathryn Londenberg told that “My office represents the California State Legislature” and that it had “come to [their] attention that the home addresses of 14 Senators and 26 Assembly Members have been publically [sic] posted on an Internet Web site hosted by you without the permission of these elected officials.” She went on to say that if the content was not taken down within 48 hours, “we reserve the right to file an action seeking injunctive relief, as well as associated court costs and attorney’s fees.”, which sees about 83 million unique monthly visits, and Automattic capitulated immediately, removing Publius’ “tyrant registry” content and subsequently barring them from publishing any similar content.

"Our Publius lawsuit argues that a State of California statute and the Legislative Counsel's demand letter threatening legal action and penalties unconstitutionally forced WordPress into taking down the material,” explained Brandon Combs, president of Firearms Policy Coalition.

“Our member’s truthful, non-threatening speech was attacked mere days after the elected subjects of their speech carpet-bombed the Bill of Rights in the largest legislative attack on Second Amendment rights in decades.”

“FPC will not tolerate it or its members voices being censored by any government.”

"The First Amendment protects the publication of facts about government officials, especially facts drawn from the public record,” explained Eugene Volokh, an attorney and UCLA law professor working on the Publius case.

“Of course, the First Amendment doesn't protect true threats of violence, but the statute and the California government's demand letter forbid all publication of these facts, whether or not accompanied by threats.”

The publication of legislators’ addresses and phone numbers can serve a variety of lawful purposes. For example, residential picketing is allowed in many places, and concerned citizens can hardly engage in such picketing to demand action from their legislators without knowing where they live.

And even where a local government has a valid content-neutral restriction on residential picketing, marching through residential neighborhoods, or even walking a route in front of an entire block of houses, is likely constitutionally protected conduct.

In Brayshaw v. City of Tallahassee, 709 F. Supp. 2d 1244 (N.D. Fla. 2010), the ACLU of Florida challenged a similar statute and got it struck down in an order by United States District Court Judge Richard Smoak, who held that the Florida law was facially “invalid as unconstitutional under the First and Fourteenth Amendments.”

Following the victory, Randall Marshall, ACLU of Florida Legal Director, said that it “cannot be a crime to publish truthful information. With very rare exceptions, courts protect the publication of truthful information that is already available to the public.”

Publius is represented by Bradley Benbrook and Stephen Duvernay of Benbrook Law Group as well as Eugene Volokh, a UCLA law professor who has written and taught extensively about the First and Second Amendments.

Before joining the UCLA faculty 20 years ago, Volokh clerked for Judge Alex Kozinski of the Ninth Circuit Court of Appeals and Justice Sandra Day O’Connor of the U.S. Supreme Court. He also operates the popular legal blog “The Volokh Conspiracy,” now hosted at the Washington Post.

A copy of the complaint, which includes exhibits containing the censored content, can be viewed or downloaded at

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