Publius v. Boyer-Vine

237 F.Supp.3d 997

Doe PUBLIUS and Derek Hoskins, Plaintiffs,

v.Diane F. BOYER–VINE, in her official capacity as Legislative Counsel of California, Defendant.

1:16–cv–1152–LJO–SKO

United States District Court, E.D. California.

Signed February 27, 2017

Bradley A. Benbrook, Stephen M. Duvernay, Benbrook Law Group, Sacramento, CA, Eugene Volokh, UCLA School of Law, Los Angeles, CA, for Plaintiffs.

Fredric D. Woocher, Jenna Lauter Miara, Strumwasser & Woocher LLP, Los Angeles, CA, for Defendant.

MEMORANDUM DECISION AND ORDER RE PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION (Doc. 19)

Lawrence J. O'Neill, UNITED STATES CHIEF DISTRICT JUDGE

I. INTRODUCTION

Plaintiffs Doe Publius¹ and Derek Hoskins bring this civil rights case under 42 U.S.C. § 1983 (" § 1983"), challenging California Government Code § 6254.21(c) (" § 6254.21(c)") under the First Amendment, the Commerce Clause, and 47 U.S.C. § 230 (" § 230"). Plaintiffs move for a preliminary injunction that prevents Defendant Diane F. Boyer–Vine, Legislative Counsel for the Office of Legislative Counsel of California ("the Office"), from enforcing § 6254.21(c) against them. See Doc. 19–1 at 26.

The Court took the matter under submission on the papers pursuant to Local Rule 230(g). Doc. 23. For the following reasons, the Court GRANTS IN PART and DENIES IN PART Plaintiffs' motion.

II. FACTUAL AND PROCEDURAL BACKGROUND

On July 1, 2016, California Governor Jerry Brown signed several gun control bills into law. Doc. 12, First Amended Complaint ("FAC"), at ¶ 15. One of those bills established a database tracking all ammunition purchases in California. See Cal. Penal Code §§ 30352, 30369. The database includes the driver's license information, residential address and telephone number, and date of birth for anyone who purchases or transfers ammunition in California. See id.

Publius maintains a political blog under the name, "The Real Write Winger." FAC at ¶ 15. On July 5, 2016, in response to the California legislature's gun control legislation, he posted the following blog entry, titled "Tyrants to be registered with California gun owners":

If you're a gun owner in California, the government knows where you live. With the recent anti gun, anti Liberty bills passed by the legisexuals in the State Capitol and signed into law by our senile communist governor, isn't it about time to register these tyrants with gun owners?

Compiled 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. "Isn't that dangerous, what if something bad happens to them by making that information public?" First, all this information was already public; it's just now in one convenient location. Second, it's no more dangerous than, say, these tyrants making it possible for free men and women to have government guns pointed at them while they're hauled away to jail and prosecuted for the crime of exercising their rights and Liberty.

These tyrants are no longer going to be insulated from us. They used their power we entrusted them with to exercise violence against us if we don't give up our rights and Liberty. This common sense tyrant registration addresses this public safety hazard by giving the public the knowledge of who and where these tyrants are in case they wish to use their power for violence again.

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, and if you see a missing address or one that needs updating, please feel free to contact me. And please share this with every California gun owner you know.

To be fair, the only way for a tyrant to have their name removed from the tyrant registry is to pass laws which repeal the laws that got them added to the list, or upon the tyrant's death. Otherwise, it is a permanent list, even after the tyrant leaves office. The people will retain this information and have access to it indefinitely.

FAC at ¶ 17. Through searching public records for free on zabasearch.com² , Publius compiled the names, home addresses, and phone numbers of 40 California legislature members who had voted in favor of the gun control measures. Id. at ¶¶ 17–18. He then posted that information on his blog. Id. at ¶ 17.

In the days that followed, several legislators received threatening phone calls and social media messages that appeared to have been prompted by Publius's blog entry. Doc. 21, Declaration of Frederic Woocher ("Woocher Decl."), at ¶ 2. Specifically,

there were reports from at least four different State Senators that either they or one of their family members had received a phone call at their residence from an unidentified male speaker saying, "I know your address and don't you wish you knew who I am?" One of the calls was received by the step-son of a Senator who was alone in the home while the Senator and his wife were away. At least two other Senators had reported receiving (and forwarded to the [California Senate] Sergeant-at-Arms) threatening social media messages; one warned: "You have no right to pass laws to take my constitutional rights away. (2nd & 1st amendments) Let alone pass a bill that makes you exempt from the very same laws. I've have [sic] shared your home address in the Internet. The People will be acting on this."

Id.

The Senate Sergeant-at-Arms sent the Office "a request to seek the removal of the legislators' home addresses from the internet pursuant to section 6254.21(c)." Doc. 20 at 13. In response, on July 8, 2016, Deputy Legislative Counsel Kathryn Londenberg sent a written demand to WordPress.com, who hosted Plaintiff's blog. FAC at ¶ 19. The demand stated:

To whom it may concern:

My office represents the California State Legislature. It has come to our attention that the home addresses of 14 Senators and 26 Assembly Members have been publically posted on an Internet Web site hosted by you without the permission of these elected officials. Specifically, the user on your platform by the name of "therealwritewinger" posted the home addresses of these elected officials on his or her Web site....

This letter constitutes a written demand under subdivision (c) of Section 6254.21 of the Government Code that you remove these home addresses from public display on that Web site, and to take steps to ensure that these home addresses are not reposted on that Web site, a subsidiary Web site, or any other Web site maintained or administered by WordPress.com or over which WordPress.com exercises control. Publicly displaying elected officials' home addresses on the Internet represents a grave risk to the safety of these elected officials.

On the "therealwritewinger" blog site, the user describes the listed legislators as "tyrants," encourages readers to share the legislators' home addresses with other gun owners, and threatens that the home addresses will not be removed unless the legislator repeals specified gun laws or "upon the tyrant's death." The Senators and Assembly Members whose home addresses are listed on this Web site fear that the public display of their addresses on the Internet will subject them to threats and acts of violence at their homes.

To comply with the law, please remove the home addresses of these elected officials from your Web site no later than 48 hours after your receipt of this letter (cl. (i), subpara. (D), para. (1), subd. (c), Sec. 6254.21, Gov. C.). You are also required to continue to ensure that this information is not reposted on that Web site, any subsidiary Web site, or any other Web site maintained by you (subpara. (D), para. (1), subd. (c), Sec. 6254.21, Gov. C.).

.... If these home addresses are not removed from this Web site in a timely manner, we reserve the right to file an action seeking injunctive relief, as well as associated court costs and attorney's fees ( para. (2), subd. (c), Sec. 6254.21, Gov. C.).

Id. WordPress immediately removed Publius's entire blog entry. Id. at ¶ 20. Publius requested a copy of the demand from WordPress. Doc. 12–2 at 1. WordPress forwarded the letter, explaining that "[u]nder subdivision (c) of Section 6254.21 of the Government Code, an authorized representative from the state of California ha[d] demanded that we disable" Publius's blog entry. Id.

Hoskins, a resident of Massachusetts, id. at ¶ 13³ owns and moderates the website Northeastshooters.com, "a popular New England online forum for discussing firearms issues and shooting sports activities." Id. at ¶ 21. On July 11, 2016, Northeastshooters.com users began a discussion about the Legislative Counsel's takedown demand to WordPress concerning Publius's blog entry. Id. at ¶ 22. One commenter, under the name "headednorth," reposted Publius's compiled list of names, addresses, and home addresses of the California legislators. Id. at ¶ 23. Legislative Counsel Londenberg immediately emailed Hoskins, noted that headednorth had reposted the legislators' personal information removed from Publius's blog on Northeastshooters.com, and demanded that Hoskins remove it immediately via a takedown demand that was "materially identical" to the one sent to WordPress. Id. at ¶ 24. Hoskins complied. Id. at ¶ 5.

Plaintiffs seek a declaratory judgment from the Court that § 6254.21(c) violates (1) the First Amendment both facially and as applied to both of them; (2) the Commerce Clause, U.S. Const., art. I, § 8, cl. 3, as applied to Hoskins's out-of-state speech; and (3) § 230 as to Hoskins and other computer service providers. FAC at 16. Plaintiffs currently seek a preliminary injunction on these grounds, and ask the Court to enjoin Defendant from "enforcing or applying" § 6254.21(c) against them. Doc. 19 at 2. Defendant argues, among other things, that: (1) Plaintiffs lack standing; (2) Plaintiffs fail to state a claim under § 1983 ; and (3) the statute is entirely lawful. Doc. 20 at 8.

III. STANDARD OF DECISION

To secure injunctive...