Landslide Communications et al v. State of California et al

Filing 35

ORDER signed by Judge Garland E. Burrell, Jr on 12/27/2013 ORDERING Plaintiffs' 25 Motion for Summary Judgment is DENIED; and Defendants' 26 Cross-Motion for Summary Judgment is GRANTED; CASE CLOSED. (Waggoner, D)

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UNITED STATES DISTRICT COURT

6

EASTERN DISTRICT OF CALIFORNIA

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8
9
10

LANDSLIDE COMMUNICATIONS,
INC. and JAMES V. LACY, in
his capacity as President of
LANDSLIDE COMMUNICATIONS,
INC.,

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12
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14
15
16
17

Plaintiffs,
v.

No. 2:13-cv-00716-GEB-KJN

ORDER DENYING PLAINTIFFS’ MOTION
FOR SUMMARY JUDGMENT AND
GRANTING DEFENDANTS’ CROSSMOTION FOR SUMMARY JUDGMENT

STATE OF CALIFORNIA; KAMALA
HARRIS, in her capacity as
Attorney General of
California; CALIFORNIA FAIR
POLITICAL PRACTICES
COMMISSION; ANN RAVEL, in her
capacity as Chair of the Fair
Political Practices
Commission,

18

Defendants.

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20

Pending are cross-motions for summary judgment on all

21

claims in Plaintiffs’ First Amended Complaint (“FAC”). Plaintiffs

22

challenge

23

California

24

certain election mail. Plaintiffs’ FAC comprises the following

25

claims: declaratory relief that the statute does not apply to

26

Plaintiffs’ California Public Safety Newsletter and Voter Guide

27

publication

28

title),

a

and

recently-enacted
Government

Code

(hereinafter
that

if

it

California

statute

section 84305.7(c),

referred
applies,
1

to
it

as

prescribed
which

“mailing”

is

or

in

governs

by

full

unconstitutional

as

1

applied; and injunctive relief under 42 U.S.C. § 1983 preventing

2

violations of Plaintiffs’ rights under the First Amendment Free

3

Speech

4

Process Clause, and the Fourteenth Amendment Equal Protection

5

Clause.

and

6

Association

Clauses,

the

Fourteenth

Amendment

Due

Oral argument was heard on November 11, 2013. For the

7

reasons

stated

below,

8

Plaintiffs’ motion is DENIED.

9

Defendants’

motion

is

GRANTED,

and

I. LEGAL STANDARD

10

A

seeking

323

14

substantive

15

Thrifty Oil Co. v. Bank of Am. Nat’l Trust & Sav. Ass’n, 322 F.3d

16

1039, 1046 (9th Cir. 2003) (quoting Anderson v. Liberty Lobby,

17

Inc., 477 U.S. 242, 248 (1986)). An issue of material fact is

18

“genuine” when “‘the evidence is such that a reasonable jury

19

could return a verdict for the nonmoving party.’” Id. (quoting

20

Anderson, 477 U.S. at 248). To meet this burden, the movant must

21

“inform[] the district court of the basis for its motion, and

22

identify[] those portions of the pleadings, depositions, answers

23

to interrogatories, and admissions on file, together with the

24

affidavits, if any, which it believes demonstrate the absence of

25

a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323

26

(internal quotation marks omitted).
If

law,

the

it

is

‘material’

could

movant

affect

satisfies

when,
the

its

a

genuine

initial

13

fact

of

the

material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317,
“A

absence

bears

12

(1986).

the

judgment

burden

28

demonstrating

summary

11

27

of

party

under

outcome

“initial

issue

the
of

of

governing

the

case.”

burden,”

“the

nonmoving party must set forth, by affidavit or as otherwise
2

1

provided in Rule 56, ‘specific facts showing that there is a

2

genuine issue for trial.’” T.W. Elec. Serv., Inc. v. Pac. Elec.

3

Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (quoting

4

former Fed. R. Civ. P. 56(e)); see also Fed. R. Civ. P. 56(c)(1).

5

The nonmoving party “cannot ‘rest upon the mere allegations or

6

denials of the adverse party’s pleading’ but must instead produce

7

evidence that ‘set[s] forth specific facts showing that there is

8

a genuine issue for trial.’” Tucker ex rel. Tucker v. Interscope

9

Records,

10

Inc.,

515

F.3d

1019,

1030

(9th

Cir.

2008)

(quoting

Anderson, 477 U.S. at 248).

11

Further, Local Rule 260(b) prescribes:

12

17

Any party opposing a motion for summary
judgment
or
summary
adjudication
[must]
reproduce the itemized facts in the [moving
party's] Statement of Undisputed Facts and
admit those facts that are undisputed and
deny those that are disputed, including with
each denial a citation to the particular
portions
of
any
pleading,
affidavit,
deposition, interrogatory answer, admission,
or other document relied upon in support of
that denial.

18

If the nonmovant does not “specifically . . . [controvert duly

19

supported]

20

undisputed facts,” the nonmovant “is deemed to have admitted the

21

validity of the facts contained in the [movant’s] statement.”

22

Beard v. Banks, 548 U.S. 521, 527 (2006) (finding that a party

23

opposing

24

challenge the facts identified in the [moving party’s] statement

25

of undisputed facts . . . is deemed to have admitted the validity

26

of [those] facts”). “Because a district court has no independent

27

duty ‘to scour the record in search of a genuine issue of triable

28

fact,’ and may ‘rely on the nonmoving party to identify with

13
14
15
16

facts

summary

identified

judgment

in

who

3

the

[movant’s]

“fail[s]

[to]

statement

of

specifically

1

reasonable

particularity

2

judgment,’

.

3

obligation to undertake a cumbersome review of the record on the

4

[nonmoving party’s] behalf.” Simmons v. Navajo Cnty., Ariz., 609

5

F.3d 1011, 1017 (9th Cir. 2010) (quoting Keenan v. Allan, 91 F.3d

6

1275, 1279 (9th Cir. 1996)).

.

.

the

the

evidence

district

court

that

precludes

.

.

.

[is]

summary
under

no

7

When deciding cross-motions for summary judgment, each

8

motion is evaluated on its own merits, “giving the nonmoving

9

party in each instance the benefit of all reasonable inferences.”

10

ACLU v. City of Las Vegas, 466 F.3d 784, 790–791 (9th Cir.2006)

11

(internal citations and quotations omitted). When the defendant

12

is the moving party and is seeking summary judgment on one or

13

more of a plaintiff's claims, the defendant

14

20

has both the initial burden of production and
the ultimate burden of persuasion on [the
motion]. In order to carry its burden of
production,
the
[defendant]
must
either
produce
evidence
negating
an
essential
element of the [plaintiff's] claim . . . or
show that the [plaintiff] does not have
enough evidence of an essential element to
carry its ultimate burden of persuasion at
trial. In order to carry its ultimate burden
of persuasion on the motion, the [defendant]
must persuade the court that there is no
genuine issue of material fact.

21

Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102

22

(9th Cir. 2000) (citations omitted).

15
16
17
18
19

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24

II. UNDISPUTED FACTS
The following facts are undisputed under

Local Rule

25

260(b). Under California law, a “slate mailer” is a “mass mailing

26

which supports or opposes a total of four or more candidates or

27

ballot measures.” Cal. Gov’t Code § 82048.3. (Defs.’ Resp. to

28

Pls.’ Statement of Undisputed Facts ¶ 6, ECF No. ECF No. 29.)
4

1

Plaintiffs’ “[mailing] is a slate mailer.” (Id. ¶ 9; see FAC ex.

2

2; ECF No. 15.) “Plaintiffs’ California Public Safety Voter Guide

3

[hereinafter referred to as “the Guide” or by full name] is a

4

slate

5

Government Code section 82048.4 because “[i]t is involved in the

6

production of one or more slate mailers, exercises control over

7

the

8

mailers,

9

. . . or more in a calendar year to produce slate mailers.”

10

mailer

organization”

selection
and

of

candidates

receives

within

and

payments

the

meaning

measures
totaling

of

found
five

in

California

the

hundred

slate

dollars

(Defs.’ Resp. to Pls.’ Statement of Undisputed Facts ¶ 8.)

11

California

Government

Code

section

84305.7(c)

12

prescribes that “[i]f a slate mailer organization sends a slate

13

mailer . . . that identifies itself or its source material as

14

representing

15

safety-related name, then it “shall disclose on the outside of

16

each piece of mail . . . the total number of members in the

17

organization identified in the slate mailer . . . .” (Id. ¶ 5.)

18

Plaintiffs’ mailing lists its publisher with the following phrase

19

in the upper-left corner of the first page of its mailing: “[The

20

Guide] is a Special Project of the Policy Issues Institute.” (FAC

21

ex. 2, p. 1.) A silhouette of a firefighter battling a blaze is

22

prominently displayed on the first page below the publication’s

23

title. (Id.)

24

a

nongovernmental

Plaintiffs
have

no

and

members.

their

organization”

slate

(Defs.’

mailer
to

a

public

organization,
Pls.’

Statement

The

25

Guide,

26

Undisputed Facts ¶¶ 10, 11.) “Plaintiffs do not wish to publish

27

‘the total number of members’ on any piece of slate mail they

28

distribute.” (Id. ¶ 15.)
5

Resp.

with

of

1
2

III. DISCUSSION
A. Application of California Government Code Section 84305.7(c)
to Plaintiffs

3
4
5
6
7
8

Plaintiffs

argue

in

their

opposition

to

Defendants’

cross-motion for summary judgment that California Government Code
section 84305.7(c) does not apply to the subject mailing. (Pls.’
Rep.

to

(“Pls.’

Defs.’
Rep.

&

Opp’n

&

Opp’n”)

Opp’n

to

5:8-21,

Defs.’
ECF

Cross-Mot.

No.

31.)

The

Summ.

J.

statute

prescribes:

9

If a slate mailer organization

10

sends a slate mailer or other mass mailing

11

that identifies itself or its source material
as
representing
a
nongovernmental
organization

12
13

with a name that includes the term “peace
officer,”
“reserve
officer,”
“deputy,”
“deputy
sheriff,”
“sheriff,”
“police,”
“highway
patrol,”
“California
Highway
Patrol,” “law enforcement,” “firefighter,”
“fire
marshal,”
“paramedic,”
“emergency
medical technician,” “public safety,” or any
other
term
that
would
reasonably
be
understood to imply that the organization is
composed
of,
or
affiliated
with,
law
enforcement, firefighting, emergency medical,
or other public safety personnel,

14
15
16
17
18
19

[then] the slate mailer or mass mailing shall
disclose on the outside of each piece of mail
and on at least one of the inserts included
with each piece of mail in no less than 12point roman type, which shall be in a color
or print that contrasts with the background
so as to be easily legible, the total number
of members in the organization identified in
the slate mailer or mass mailing.

20
21
22
23
24
25

Cal.

Gov’t

Code

26

clarity).

27

organization[s]”

28

mailing.” Id. Plaintiffs admit that “California Public Safety

The

§ 84305.7(c)
statute
that

(paragraph

only

“send[]

applies
a

6

slate

breaks
to

mailer

inserted

“slate
or

for

mailer

other

mass

1

Voter Guide,” which Plaintiffs’ mailer describes as a “Special

2

Project

3

organization” and its publication, entitled “California Public

4

Safety Newsletter and Voter Guide,” is a slate mailer. (Pls.’

5

Statement Undisputed Facts ¶ 8, 9 ECF No. 25-5; FAC Ex. 2, p. 1)

6

However, Plaintiffs contend this slate mailer “does not identify

7

itself or its source material as representing a nongovernmental

8

organization.”

9

argue that the phrase “slate mailer organization” is a legal term

10

of art, and thus “an entity that send[s] . . . slate mailers” is

11

not

12

understood.” (Id. 7:6-8.)

of

the

Policy

(Pls.’

necessarily

13

an

California

Issues

Rep.

&

Institute,”

Opp’n

“organization

Government

as

Code

is

5:15-18.)

that

a

“slate

mailer

Plaintiffs

term

is

also

generally

section 82048.4

defines

14

“slate mailer organization”; however, the statute does not define

15

“nongovernmental organization” or “organization.” See § 82048.4

16

(defining “slate mailer organization” as “any person who . . .

17

[i]s involved in the production of one or more slate mailers”).

18

Defendants argued during the hearing on the motions that the

19

statute’s definition of “slate mailer organization” in section

20

82048.4

21

“organization” in section 84305.7(c). Plaintiffs argue that the

22

following

23

Dictionary should be used: “a group of persons organized for some

24

end or work.” (Id. 6:16-18 (emphasis added).) Under Plaintiffs’

25

definition of “organization,” their slate mailer identifies both

26

“itself”

27

nongovernmental organization.” Cal Gov’t Code § 84305.7(c).

28

is

not

the

definition

and

“its

appropriate

of

definition

“organization”

source

material

in

as

of

the

the

Random

word

House

representing

a

Plaintiffs’ slate mailer “identifies itself . . . as
7

1

representing a nongovernmental organization” through the use of

2

the

3

mailer is identified in the upper-left corner of the first page

4

of

5

Safety Voter Guide is a Special Project of the Policy Issues

6

Institute.”

7

“institute” implies that the publisher identified is—consistent

8

with

9

persons organized for some end or work.” Webster’s Third New

10

International Dictionary defines the word “institute” as “(1): an

11

organization for the promotion of some estimable or learned cause

12

or the welfare of some group” and “(2): an association of persons

13

or

14

professional authority in a field or work or study.” Webster’s

15

Third New International Dictionary 1171 (1986). These definitions

16

of

17

“organization.” Under the first definition, an institute cannot

18

promote its public policy cause without constituent individuals.

19

Further,

20

definition of “organization” since an “association of persons” is

21

a synonym for “a group of persons.” Therefore, by describing the

22

“California Public Safety Voter Guide” as a “Special Project of

23

the Policy Issues Institute,” the slate mailer identifies itself

24

as a nongovernmental organization.

word

the

“institute.”

slate

mailer

(First

Plaintiffs’

organizations

“institute”

the

Id.

The

document

Amend.

of

with

definition

of

follows:

Ex.

2,

Plaintiffs’

“California

p.

1.)

“organization”—“a

collectively

comport

second

as

Compl.

definition

that

publisher

constitute

Plaintiffs’

directly

a

slate

Public

The

word

group

of

technical

definition

mirrors

or

of

Plaintiffs’

25

Plaintiffs’ slate mailer also identifies “its source

26

material as representing a nongovernmental organization.” Cal.

27

Gov’t

28

“California” in the mailer’s title, “California Public Safety

Code

§ 84305.7(c).

The

8

prominent

use

of

the

noun

1

Newsletter

2

connected to an organization of public safety officials employed

3

in California. Further, considering the words “California Public

4

Safety”

5

battling a blaze directly below, it is clear that Plaintiffs have

6

represented their source material as being a “group of persons,”

7

specifically

8

Compl. Ex. 2, p. 1.) Therefore, Plaintiffs’ slate mailer, through

9

its

10

and

in

title,

Voter

Guide,”

conjunction

with

the

public-employee

identifies

“its

implies

the

source

silhouette

firefighters.

source

of

(See

material

as

material

a

is

firefighter

First

Amend.

representing a

nongovernmental organization.”

11

Since the slate mailer both “identifies itself” and

12

“its

13

organization,”

14

organization is identified “with a name that includes the term

15

. . . ‘public safety.’” Cal. Gov’t Code § 84305.7(c). The term

16

“public safety” is included both in the name of the publisher,

17

“California Public Safety Voter Guide,” and the document title,

18

“California Public Safety Newsletter and Voter Guide,” either of

19

which is the name of the organization the mailing purports to

20

represent. (See First Amend. Compl. Ex. 2, p. 1.) Therefore,

21

section 84305.7(c) applies to Plaintiffs’ slate mailer.

22

source

material
the

as

statute

representing
applies

if

a

nongovernmental

the

nongovernmental

B. First Amendment Freedom of Speech Challenge

23

Plaintiffs argue section 84305.7(c) unconstitutionally

24

infringes their First Amendment right to freedom of speech both

25

facially and as applied to their mailing. “Facial challenges are

26

disfavored”

27

fundamental principle of judicial restraint that courts should

28

neither anticipate a question of constitutional law in advance of

because,

inter

alia,

9

they

“run

contrary

to

the

1

the

2

constitutional law broader than is required by the precise facts

3

to which it is to be applied.” Wash. State Grange v. Wash. State

4

Republican Party, 552 U.S. 442, 449 (2008). “A facial challenge

5

to a legislative Act is . . . the most difficult challenge to

6

mount successfully, since the challenger must establish that no

7

set of circumstances exists under which the Act would be valid.”

8

United States v. Salerno, 481 U.S. 739, 745 (1987). Plaintiffs’

9

facial challenge is based only on conclusory arguments that are

10

insufficient to support such a challenge. Nevertheless, “[i]f

11

[Plaintiffs’]

12

facial challenge necessarily fails as well because there is at

13

least

14

84305.7(c) would not violate First Amendment free speech rights.

15

Williams Jefferson & Co. v. Bd. Of Assessment & Appeals No. 3 ex

16

rel. Orange Cnty., 695 F.3d 960, 963 (9th Cir. 2012).

necessity

one

set

of

deciding

as-applied

of

it

nor

challenge

circumstances

17

The

fails,

where

a

then

rule

of

[Plaintiffs’]

application

of”

section

1. Standard of Review

18

formulate

parties

dispute

the

level

of

judicial

scrutiny

19

applicable to Plaintiffs’ First Amendment free speech as-applied

20

challenge.

21

applies, contending this standard requires Defendants to bear

22

“the

23

requirement] at issue [is] (1) narrowly tailored, to serve (2) a

24

compelling state interest.” (Pls.’ Mot. Summ. J. (“Pls.’ Mot.”)

25

7:14-17,

26

Randolph, 507 F.3d 1172, 1178 (9th Cir. 2007) (internal quotation

27

marks

28

requires

Plaintiffs

burden

ECF

of

No.

removed)).)
the

argue

proving

25

the

that

(quoting

Further,

statute

to

“use

“strict

the

Cal.

[California

Pro-Life

Plaintiffs
the
10

scrutiny”

least

standard

disclosure

Council,

argue

this

restrictive

Inc.

v.

standard
means

to

1

further the articulated interest.” (Id. 7:17-18 (quoting ACLU of

2

Nev. v. Heller, 378 F.3d 979, 993 (9th Cir. 2004).) Defendants

3

counter

4

“exacting

5

recent authority. (Defs.’ Cross-Mot. Summ. J. & Opp’n Pls.’ Mot.

6

Summ. J. (“Defs.’ Cross-Mot. & Opp’n”) 7:15-8:21, ECF No. 26.)

that

7

the

statute

scrutiny”

Although

is

subject

standard,

the

which

strict

to
has

scrutiny

the

less

been

demanding

illuminated

standard

is

in

typically

8

applied to content-based speech restrictions, the Supreme Court

9

has

recently

explained

are

that

subject

“exacting

disclaimer

requirements

11

Citizens United v. Fed. Elections Comm’n, 558 U.S. 310, 366-67

12

(2010). Therefore, the exacting scrutiny standard is applied to

13

Plaintiffs’

14

requirement,

15

requirement, to determine “whether the law’s requirement[] [is]

16

substantially related to a sufficiently important governmental

17

interest.” Human Life of Wa., Inc. v. Brumsickle, 624 F.3d 990,

18

1005 (9th Cir. 2010).

which

an

and

10

as-applied

to

disclosure

challenge

Plaintiffs

to

the

scrutiny”

statute’s

characterize

as

a

standard.

disclosure
disclaimer

19

Under the exacting scrutiny standard, the proponent of

20

an electoral disclosure or disclaimer requirement must identify

21

an “important governmental interest” the statute serves. Family

22

PAC

23

proponent

24

court

25

substantial

26

Brumsickle, 624 F.3d at 1008. “To survive exacting scrutiny, ‘the

27

strength

28

seriousness of the actual burden on First Amendment rights.’”

v.

McKenna,

685

identifies

then

of

F.3d
an

determines

806

important
whether

relationship”

the

800,

to

governmental

11

(9th

Cir.

2011).

governmental
the

that

If

the

interest,

the

regulation

“bear[s]

governmental

interest

must

a

interest.

reflect

the

1

McKenna, 685 F.3d at 806 (quoting Davis v. Fed. Elections Comm’n,

2

554

3

strength of the governmental interest against the actual burden

4

on First Amendment rights. See id. at 806-11. If the governmental

5

interest

6

survives the free speech challenge.

U.S.

724,

744

outweighs

(2008)).

the

A

burden

court,

on

therefore,

speech,

then

the

weighs

the

regulation

7

2. California
Government
Code
Survives Exacting Scrutiny

8

Defendants argue the statute’s disclosure requirement

9

serves, inter alia, California’s informational interest in better

10

informing the electorate of who is speaking before an election.

11

(Defs.’

12

McKenna,

13

voting

14

various messages vying for their attention in the marketplace for

15

ideas,” is an important governmental interest. Brumsickle, 624

16

F.3d at 1008. By requiring a slate mailer to disclose the number

17

of members in a public safety-related organization it purports to

18

represent, the statute aids the public in understanding what type

19

of entity is speaking and who stands to benefit. “The increased

20

‘transparency’

21

electorate to make informed decisions and give proper weight to

22

different speakers and messages.’” Id. (quoting Citizens United,

23

558

Cross-Mot.
685

F.3d

public

U.S.

at

with

&

Opp’n

at

806,

the

more

Moreover,

by

“Informing

specifically,

information

engendered

371)

9:8-24.)

Section 84305.7(c)

with

disclosure

“[a]ccess

to

the

public,”

“providing

which

laws

the

to

the

assess

‘enables

reliable

the

information

24

becomes even more important as more speakers . . . enter the

25

marketplace,

which

26

years.”

at

27

informed electorate . . . is of the utmost importance.” McKenna,

Id.

is

1007.

precisely
Therefore,

28
12

what

has

occurred

California’s

in

“interest

recent
in

an

1

685 F.3d at 809.

2

Plaintiffs

argue

Defendants’

asserted

governmental

3

interest in an informed electorate cannot justify the burden of

4

compelled speech the statute imposes on their free speech rights

5

by requiring them to disclose that their organization has no

6

members. Plaintiffs explain:

7

[The
statute]
severely
handicaps
nonmembership public safety-related slate mailer
organizations by sending their slate mailers
out into the marketplace of ideas with the
equivalent of a sandwich-board sign saying,
“Feel free to ignore me.” To force a nonmembership slate mailer organization such as
that of Plaintiffs to say that it has no
members is so stigmatizing and marginalizing
that it amounts to a muzzle and invitation to
readers and voters to disregard the mailers,
regardless of how worthy the messages are.

8
9
10
11
12
13
14

(Pls.’ Rep. & Opp’n 3:15-21.)

15

The essence of the burden Plaintiffs identify is the

16

disclosure

requirement’s

17

credibility. A “California Public Safety Newsletter and Voter

18

Guide” displaying an image of a firefighter without any reference

19

to the size of the represented organization could garner greater

20

esteem

21

represented

22

Plaintiffs’ mailing without this disclosure may be inclined to

23

believe that the “organization” publicizing the mailer represents

24

public-employee firefighters.

than

the

same

organization

potential

mailing
has

to

with

zero

damage

a

their

disclosure

members,

since

a

perceived

that
reader

the
of

25

But if the disclosure has the potential to undermine

26

the author’s credibility, this potential consequence results from

27

the

28

public-employee firefighters. Thus, the potential damage posed to

author’s

representation

that

13

its

message

is

endorsed

by

1

Plaintiffs’ credibility under the circumstances at issue does not

2

constitute a serious and “actual burden” “on [Plaintiffs’] First

3

Amendment rights.” McKenna, 685 F.3d at 806. Here, the statute

4

does not, as Plaintiffs argue, require them to “speak ill” of

5

themselves. (Pls.’ Rep. & Opp’n 12:19.) Rather, it imposes an

6

obligation

7

representing public safety-related organizations to disclose a

8

neutral fact—a membership number—and it is up to the electorate

9

to

on

interpret

slate

that
do

mailers

fact.

Further,

the

themselves

statute’s

disclosure

11

advocacy conducted at any time.” Brumsickle, 624 F.3d at 1018.

12

Instead, the statute, by its definition of “slate mailer,” only

13

targets

14

speech. See Cal. Gov’t Code § 82048.3 (defining “slate mailer” as

15

a “mass mailing[,] which supports or opposes a total of four or

16

more candidates or ballot measures”). Additionally, the mandated

17

disclosure, which must be written “in no less than 12-point roman

18

type,” would not occupy an overly large portion of Plaintiffs’

19

slate mailer. Cal. Gov’t Code § 84305.7(c). Therefore, to the

20

extent

21

speech rights, this burden is modest.

the

speech

and

statute

indiscriminately

as

“requirements

that

extend

identify

10

election

not

that

only

burdens

certain

to

types

Plaintiffs’

all

of

First

issue

election

Amendment

22

“[T]he people in our democracy are entrusted with the

23

responsibility for judging and evaluating the relative merits of

24

conflicting

25

judgment,

26

Brumsickle, 624 F.3d at 1008 (quoting First Nat’l Bank of Bos. v.

27

Bellotti, 435 U.S. 765, 791-92 (1978)). The disclosure statute in

28

this case is aimed directly at California’s interest in aiding

arguments.
the

source

They
and

may

consider,

credibility

14

of

in

making

the

their

advocate.”

1

the voting public in understanding “the source and credibility”

2

of

3

informational interest against any modest burden on Plaintiffs’

4

speech rights, the statute survives Plaintiffs’ as-applied First

5

Amendment free speech challenge.

“advocate[s].”

Id.

Weighing

the

government’s

strong

C. First Amendment Freedom of Association Challenge

6

Plaintiffs

7

also

cursorily

argue

that

the

statute

8

unconstitutionally interferes with their First Amendment right to

9

free

association.

However,

Plaintiffs

do

not

explain

how

the

10

statute interferes with their ability to associate. Plaintiffs

11

argue that certain organizations desire the number of members

12

they have to remain private; however, revealing the size of an

13

organization does not harm its “privacy of association and belief

14

guaranteed by the First Amendment.” Buckley v. Valeo, 424 U.S. 1,

15

64 (1976). Right of association case law focuses on disclosure of

16

the

17

documents, and such disclosure is not at issue in this case. See

18

NAACP

19

compelled disclosure of the names and addresses of all members of

20

a

21

Schwarzenegger, 591 F.3d 1126, 1145 (9th Cir. 2009) (granting a

22

petition for a writ of mandamus to prevent disclosure of campaign

23

strategy documents). Therefore, the statute survives Plaintiffs’

24

First Amendment right of association challenge.

25
26
27
28

names

v.

group

of

an

Alabama,

violated

organization’s

357

U.S.

members’

members

449,

right

462

of

or

internal

(1958)

campaign

(holding

association);

Perry

that

v.

D. Due Process Vagueness Challenge
Plaintiffs also challenge the statute under the Due
Process Clause of the Fourteenth Amendment as unconstitutionally
vague on its face.
15

1

“A
a

law

is

unconstitutionally

reasonable

to

conduct

is

prohibited,

4

discriminatory

5

(quoting Tucson Woman’s Clinic v. Eden, 379 F.3d 531, 555 (9th

6

Cir. 2004)). “Nevertheless, perfect clarity is not required even

7

when a law regulates protected speech, and we can never expect

8

mathematical certainty from our language.” Id. (internal citation

9

omitted)

indefinite

enforcement.”

(internal

Brumsickle,

quotation

624

marks

F.3d

at

omitted).

Moreover,

vast majority of its intended applications.’” Cal. Teachers Ass’n

13

v.

14

(quoting

15

touchstone of a facial vagueness challenge in the First Amendment

16

context . . . is not whether some amount of legitimate speech

17

will be chilled; it is whether a substantial amount of legitimate

18

speech will be chilled.” Id. at 1152.

Hill

19

v.

Colorado,

Plaintiffs

F.3d
530

specifically

1141,
U.S.

not

1019

12

271

will

and

invalidation if it is clear what the statute proscribes ‘in the

Educ.,

margins

arbitrary

11

of

statute’s

allow

“uncertainty

Bd.

a

to

10

State

at

as

what

fails

3

so

know

it

provide

is

to

if

2

or

opportunity

vague

1151

703,

argue

warrant

(9th

733

that

facial

Cir.

(2000)).

the

2001)
“The

prescribed

20

phrase in the statute stating “or any other term that would

21

reasonably

22

composed of, or affiliated with, law enforcement, firefighting,

23

emergency medical, or other public safety personnel,” which is

24

contextualized as follows, is unconstitutionally vague. (Pls.’

25

Mot. 13:7-11.)

26
27
28

be

understood

to

imply

that

the

organization

If a slate mailer organization sends a slate
mailer or other mass mailing that identifies
itself or its source material as representing
a nongovernmental organization
16

is

1

with a name that includes the term “peace
officer,”
“reserve
officer,”
“deputy,”
“deputy
sheriff,”
“sheriff,”
“police,”
“highway
patrol,”
“California
Highway
Patrol,” “law enforcement,” “firefighter,”
“fire
marshal,”
“paramedic,”
“emergency
medical technician,” “public safety,”

2
3
4
5

or any other term that would reasonably be
understood to imply that the organization is
composed
of,
or
affiliated
with,
law
enforcement, firefighting, emergency medical,
or other public safety personnel,

6
7
8

12

[then] the slate mailer or mass mailing shall
disclose on the outside of each piece of mail
and on at least one of the inserts included
with each piece of mail in no less than 12point roman type, which shall be in a color
or print that contrasts with the background
so as to be easily legible, the total number
of members in the organization identified in
the slate mailer or mass mailing.

13

Cal. Gov’t Code § 84305.7(c) (emphasis added) (paragraph breaks

14

inserted

15

unconstitutionally

16

“affiliation,”

17

defined.

(Pls.’

18

“statute

will

19

discriminatory enforcement’ simply due to the lack of clarity of

20

the terms.” (Id. 13:17-18.)

21

However,

9
10
11

for

clarity).

Plaintiffs

vague

and

because

“other

Mot.

argue

the

public

these

terms

safety

13:11-12.)

undoubt[ably]

this

is

“reasonable[ness],”
personnel”

Plaintiffs
encourage

“otherwise

provision

imprecise

argue

are

not

that

the

‘arbitrary

terms

[]

and

avoid

22

vagueness problems” here where they are “used in combination with

23

terms that provide sufficient clarity.” Gammoh v. City of La

24

Habra,

25

precede

26

“police,” “law enforcement,” “firefighter,” and “paramedic,” and

27

“public safety,” all give meaning to the provision’s text: “any

28

other term that would reasonably be understood to imply that the

395
the

F.3d

1114,

provision,

1120

(9th

including

17

Cir.

2005).

“peace

The

officer,”

terms

that

“sheriff,”

1

organization is composed of, or affiliated with, law enforcement,

2

firefighting,

3

personnel.” Cal. Gov’t Code § 84305.7(c). The statute does not

4

list every term that triggers its application, but from reading

5

the

6

applicability, a non-listed term should connote the same meaning

7

as one of the many listed terms.

emergency

exemplars,

8

While

it

the

medical,

is

clear

terms

or

other

that

Plaintiffs

in

public

order

attack

as

to

vague

safety

trigger

may

be

9

susceptible to some differences in interpretation, “speculation

10

about possible vagueness in hypothetical situations not before

11

the Court will not support a facial attack on a statute when it

12

is

13

applications.’” Brumsickle, 624 F.3d at 1021 (quoting Hill v.

14

Colo., 530 U.S. 703, 733 (2000)). Plaintiffs do not provide any

15

evidence of actual confusion over this provision or even submit

16

example terms that would illustrate the provision’s vagueness.

17

Because it is “clear what the [statute] as a whole prohibits,”

18

the provision survives the vagueness challenge. Grayned v. City

19

of Rockford, 408 U.S. 104, 110 (1972).

surely

20

valid

‘in

Plaintiffs

also

vast

raise

vagueness

concerns

about

the

23

identified.” Cal. Gov’t Code § 84305.7(c). Plaintiffs argue it is

24

unclear if an organization with zero members must specifically

25

use

26

members” would suffice. (Pls.’ Rep. & Opp’n 19:3-5.) Although “it

27

is solely within the province of state courts to authoritatively

28

construe

number

state

“0”

or

an

of

members

explanation

legislation,”

in

that

employing
18

mailer

intended

disclose

number

slate

its

22

total

covered

of

statute’s

“the

that

majority

21

the

requirement

the

organizations

the

a

the

organization

group

plain

“has

no

meaning

1

“traditional tool[] of statutory construction” it is evident that

2

the issue of whether Plaintiffs could satisfy the requirement in

3

the

4

number

5

challenge

6

Teachers Ass’n, 271 F.3d at 1146-47. Plaintiffs also question the

7

clarity of the term “members,” arguing “[t]he term could refer to

8

those who are able to vote as a member of an organization, or

9

instead to those who have merely expressed an interest in an

10

organization.” (Pls.’ Rep. & Opp’n 19:12-14.) However, Plaintiffs

11

admit

12

argument regarding the meaning of the term members is exactly the

13

type of “hypothetical situation[] not before the Court [that]

14

will not support a facial attack.” Brumsickle, 624 F.3d at 1021.

15

Further,

16

surrounding the definition of “member” would chill a “substantial

17

amount of legitimate speech.” Cal. Teachers Ass’n, 271 F.3d at

18

1151.

19

Amendment vagueness challenge.

20

statute
does

by
not

that

that

responding
present

should

their

be

group

Plaintiffs

Therefore,

with
a

explanation

concrete

resolved

has

provide

the

an

statute

by

zero

no

vagueness
a

survives

court.

thus,

that

than

a

constitutional

federal

members;

evidence

rather

Cal.

Plaintiffs’

any

Plaintiffs’

confusion

Fourteenth

E. Equal Protection Challenge
Finally,

21

Plaintiffs

seek

summary

judgment

on

their

22

claim that the statute violates their rights under the Equal

23

Protection Clause of the Fourteenth Amendment. (Pls.’ Mot. 14:1-

24

3.)

25

protection claim

26

[State’s] [cross-] motion for summary judgment” or addressing it

27

at oral argument. Jenkins v. Cnty. of Riverside, 398 F.3d 1093,

28

1095 n.4 (9th Cir. 2005). Further, even had Plaintiffs’ equal

Plaintiffs,

however,
“by

not

later

raising

19

abandoned

[it]

in

their

opposition

equal
to

the

1

protection claim not been abandoned, Plaintiffs’ claim would fail

2

because Plaintiffs have not made the threshold showing that they

3

are “similarly situated to other entities not affected by the law

4

at issue.” Safeway Inc. v. City & Cnty. of S.F., 797 F. Supp. 2d

5

964, 971 (9th Cir. 2011). Therefore, Plaintiffs’ equal protection

6

claim is not reached, as it is deemed waived.

7

IV. CONCLUSION

8
9
10
11

For
summary

the

judgment

foregoing
is

DENIED,

reasons,
and

summary judgment is GRANTED.
Dated:

December 27, 2013

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
20

Plaintiffs’

Defendants’

motion

for

cross-motion

for