Gresham, et al v. Picker, et al

Filing 26

ORDER signed by District Judge John A. Mendez on 10/06/16 ORDERING that plaintiff's 7 Motion for Preliminary Injunction is DENIED. (Benson, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VICTOR GRESHAM and CONQUEST
COMMUNICATIONS GROUP, LLC,

No.

2:16-cv-01848-JAM-CKD

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Plaintiffs,
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ORDER DENYING DEFENDANTS’ MOTION
FOR PRELIMINARY INJUNCTION

v.
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MICHAEL PICKER, MIKE FLORIO,
CARLA PETERMAN, LIANE
RANDOLPH, and CATHERINE
SANDOVAL, in their official
capacity as Commissioners of
the California Public
Utilities Commission,

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Defendants.
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This matter is before the Court on Plaintiffs’ Motion for

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Preliminary Injunction to prohibit Defendants from enforcing

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California’s automatic dialing-announcing device prohibition

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against Plaintiffs on the grounds that the statute violates the

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First Amendment.

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is denied.

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///

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///

For the following reasons, Plaintiffs’ motion

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I.

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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

Plaintiff Victor Gresham is a political consultant who

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engages in political communications through Plaintiff Conquest

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Communications Group, LLC, a Virginia based company of which he

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is a principal.

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Plaintiffs’ Motion for Preliminary Injunction (“Gresham Decl.”)

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¶ 2.

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related, automated telephone calls in California during the 2016

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election cycle.

Declaration of Victor Gresham in Support of

Gresham and his company want to conduct politically

Id. ¶ 3.

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Plaintiffs have refrained from conducting politically

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related automated telephone calls in California, at least since

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late Spring 2016, due to California Public Utility Code §§ 2872,

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2874(a), and 2876 (“ADAD Statute”).

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Plaintiffs have declined to place automated telephone

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communications for clients and have lost potential business

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opportunities and revenue as a result.

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ban, Plaintiffs would make calls such as automated surveys and

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messages related to political campaigns, automated scripted calls

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on behalf of political clients, and telephone town hall calls

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that allow the answerer to join a live, town hall style forum

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conducted with a politician or officeholder.

Gresham Decl. ¶ 3.

Id. ¶ 4.

Without the

Id. ¶ 3.

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Defendants admit that they, as Commissioners of the

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California Public Utilities Commission, have the authority to

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enforce California’s ADAD Statute when there is no express or

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implied consent to the call.

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may enforce penalties against violators, including a fine not to

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exceed five hundred dollars for each violation and/or

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disconnection of telephone service to the automatic dialing-

Ans. ¶ 3.

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Under the statute, they

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announcing device for a period of time specified by the

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commission.

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Cal. Pub. Util. Code § 2876.

Plaintiffs filed their complaint at the beginning of August

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2016.

ECF No. 1.

The complaint contains two causes of action

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under 42 U.S.C. § 1983.

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Cal. Pub. Util. Code §§ 2872 and 2874 violate Plaintiffs’ free

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speech rights guaranteed by the First and Fourteenth Amendments

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both on their face and as applied.

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cause of action alleges that those sections impose impermissible

The first cause of action alleges that

Compl. ¶ 22.

The second

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prior restraints on constitutionally-protected speech and that

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they are unconstitutional for failing to contain adequate

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standards or guidelines to control the discretion of the

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decision-maker.

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Compl. ¶¶ 35, 36.

Plaintiffs filed their Motion for Preliminary Injunction and

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Request for Advance Hearing on the Motion on August 17, 2016.

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ECF Nos. 7, 9.

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Court denied Plaintiffs’ request to advance the hearing.

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Nos. 17, 18.

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took this motion under submission with an order to follow.

Defendants timely filed their opposition and the
ECF

The Court heard arguments on October 4, 2016, and

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II.

OPINION

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A.

Legal Standard

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A preliminary injunction is “an extraordinary remedy that

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may only be awarded upon a clear showing that the plaintiff is

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entitled to such relief.”

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Inc., 555 U.S. 7, 22 (2008).

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a plaintiff must demonstrate that: (1) she is likely to succeed

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on the merits, (2) she is likely to suffer irreparable harm in

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the absence of preliminary relief, (3) the balance of equities

Winter v. Natural Res. Def. Council,
To obtain a preliminary injunction,

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tips in her favor, and (4) an injunction is in the public

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interest.

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(9th Cir. 2016) (quoting Winter, 555 U.S. at 20).

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factors merge when the government is a party.

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Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2013).

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Circuit, a preliminary injunction may be appropriate “when a

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plaintiff demonstrates that serious questions going to the merits

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were raised and the balance of hardships tips sharply in the

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plaintiff’s favor,” as long as the other two Winter factors are

Boardman v. Pac. Seafood Grp., 822 F.3d 1011, 1020

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also satisfied.

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The last two

Drakes Bay Oyster
In the Ninth

F.3d 1127, 1131–35 (2011).

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Alliance for the Wild Rockies v. Cottrell, 632

A preliminary injunction can be prohibitory or mandatory.

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See Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571

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F.3d 873, 878 (9th Cir. 2009).

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prohibits a party from taking action and ‘preserves the status

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quo pending a determination of the action on the merits.’”

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(quoting Chalk v. U.S. Dist. Court, 840 F.2d 701, 704 (9th Cir.

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1988)).

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preceded the pending controversy.”

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Univ. of Cal. v. Am. Broad. Cos., 747 F.2d 511, 514 (9th Cir.

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1984)).

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responsible party to take action.”

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W., Inc., 516 U.S. 479, 484 (1996)) (internal quotation marks

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omitted).

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generally “are not granted unless extreme or various serious

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damage will result[;] they are not issued in doubtful cases or

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where the injury complained of is capable of compensation in

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damages.”

“A prohibitory injunction

Id.

The “status quo” is “the last, uncontested status which
Id. (quoting Regents of the

A mandatory injunction, on the other hand, “orders a
Id. (quoting Meghrig v. KFC

Mandatory injunctions are particularly disfavored and

Id. (quoting Anderson v. United States, 612 F.2d 1112,
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1115 (9th Cir. 1980)).

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Plaintiffs seek to change the status quo and thus seek a

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disfavored, mandatory injunction.

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in Doe v. Harris, this standard can be difficult to apply in the

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First Amendment context:

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As the Ninth Circuit explained

[A]pplication of this standard in First Amendment cases
involves an inherent tension: the moving party bears
the burden of showing likely success on the merits—a
high burden if the injunction changes the status quo
before trial—and yet within that merits determination
the government bears the burden of justifying its
speech-restrictive law. Accordingly, in the First
Amendment context, the moving party bears the initial
burden of making a colorable claim that its First
Amendment rights have been infringed, or are threatened
with infringement, at which point the burden shifts to
the government to justify the restriction.

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772 F.3d 563, 570 (9th Cir. 2014) (quoting Thalheimer v. City of

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San Diego, 645 F.3d 1109, 1115–16 (9th Cir. 2011) (internal

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quotation marks and citations omitted).

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B.

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Analysis
1.

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Likelihood Of Success On The Merits

The merits of Plaintiffs’ case depend on whether the Ninth

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Circuit’s decision upholding the constitutionality of the ADAD

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Statute, Bland v. Fessler, 88 F.3d 729 (1996), was overruled by

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the Supreme Court’s more recent decisions regarding First

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Amendment analysis in Reed v. Town of Gilbert, Ariz., 135 S.Ct.

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2218 (2015), and Citizens United v. Fed. Election Comm’n, 558

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U.S. 310 (2010). 1

The Bland holding binds this Court unless that

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At the hearing, Plaintiffs raised the possibility that portions
of the statute may be unconstitutionally vague. Plaintiffs did
not make a void for vagueness argument in either their Motion or
Reply and thus the Court will not address it at the preliminary
injunction stage.
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decision is clearly irreconcilable with intervening Supreme Court

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precedent.

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717 F.3d 678, 689 (9th Cir. 2013).

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United decision effectively overruled Bland, this Court will need

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to reevaluate the statute in light of the more recent precedent.

See Biggs v. Sec’y of Cal. Dep’t of Corr. & Rehab.,

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a.

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If the Reed or Citizens

Statute At Issue

Any person operating an automatic dialing announcing device

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in California is subject to the ADAD Statute.

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Code § 2872 (b). 2

Cal. Pub. Util.

An “automatic dialing-announcing device” is

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“any automatic equipment which incorporates a storage capability

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of telephone numbers to be called or a random or sequential

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number generator capable of producing numbers to be called and

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the capability, working alone or in conjunction with other

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equipment, to disseminate a prerecorded message to the telephone

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number called.”

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§ 2871.

The ADAD Statute’s general provision proscribes use of ADADs

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to place calls over telephone lines unless “pursuant to a prior

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agreement between the persons involved, whereby the person called

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has agreed that he or she consents to receive such calls from the

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person calling, or as specified in Section 2874.”

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Section 2874 requires ADAD calls to be preceded by unrecorded,

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natural voice that provides certain information and requests

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consent from the caller to play the prerecorded message.

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The ADAD must disconnect from the line upon termination of the

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call.

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§ 2873.

§ 2874.

Id.
Section 2872 lists a number of exemptions to the article’s

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All further section citations are to the California Public
Utility Code unless otherwise noted.
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prohibitions, which are the subject of Plaintiffs’ complaint.
(d) This article does not prohibit the use of an
automatic dialing-announcing device by any person
exclusively on behalf of any of the following:
(1) A school for purposes of contacting parents or
guardians of pupils regarding attendance.

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(2) An exempt organization under the Bank and
Corporation Tax Law (Part 11 (commencing with
Section 23001) of Division 2 of the Revenue and
Taxation Code) for purposes of contacting its
members.

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(3) A privately owned or publicly owned cable
television system for purposes of contacting
customers or subscribers regarding the previously
arranged installation of facilities on the premises
of the customer or subscriber.

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(4) A privately owned or publicly owned public
utility for purposes of contacting customers or
subscribers regarding the previously arranged
installation of facilities on the premises of the
customer or subscriber or for purposes of
contacting employees for emergency actions or
repairs required for public safety or to restore
services.
(5) A petroleum refinery, chemical processing
plant, or nuclear powerplant for purposes of
advising residents, public service agencies, and
the news media in its vicinity of an actual or
potential life-threatening emergency.
(e) This article does not prohibit law enforcement
agencies, fire protection agencies, public health
agencies, public environmental health agencies, city or
county emergency services planning agencies, or any
private for-profit agency operating under contract
with, and at the direction of, one or more of these
agencies, from placing calls through automatic dialingannouncing devices, if those devices are used for any
of the following purposes:
(1) Providing public service information relating
to public safety.

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(2) Providing information concerning police or fire
emergencies.
(3) Providing warnings of impending or threatened
emergencies.

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These calls shall not be subject to Section 2874.

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(f) This article does not apply to any automatic
dialing-announcing device that is not used to randomly
or sequentially dial telephone numbers but that is used
solely to transmit a message to an established business
associate, customer, or other person having an
established relationship with the person using the
automatic dialing-announcing device to transmit the
message, or to any call generated at the request of the
recipient.

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b.

Standard Of Review For Speech Regulation

The ADAD Statute’s constitutionality depends on whether the
statute is content-based or content neutral.
Under the First Amendment, “the government has no power to

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restrict expression because of its message, its ideas, its

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subject matter, or its content.”

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Mosley, 408 U.S. 92, 95 (1972).

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target speech based on its communicative content—are

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presumptively unconstitutional and may be justified only if the

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government proves that they are narrowly tailored to serve

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compelling state interests.”

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distinction is drawn based on the message a speaker conveys, the

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distinction is subject to strict scrutiny.

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Content-based regulations that burden speech are treated the same

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way as content-based bans on speech and are thus subject to

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strict scrutiny as well.

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552, 555–56 (2011) (quoting United States v. Playboy Entm’t Grp.,

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Inc., 529 U.S. 803, 812 (2000)).

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Government to prove that the restriction furthers a compelling

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interest and is narrowly tailored to achieve that interest.”

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Reed, 135 S.Ct. at 2231.

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speech restriction withstands strict scrutiny.”

Police Dep’t of City of Chi. v.
“Content-based laws—those that

Reed, 135 S.Ct. at 2226.

When a

Id. at 2227.

Sorrell v. IMS Health Inc., 564 U.S.

Strict scrutiny “requires the

“[I]t is the rare case in which a

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Reed, 135 S.Ct.

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at 2236 (Kagan, J., concurring in the judgment) (citing Williams-

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Yulee v. Fla. Bar, 135 S.Ct. 1656, 1666 (2015)).

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In contrast, a reasonable time, place or manner restriction

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on speech may be valid under the First Amendment.

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for Creative Non-Violence, 468 U.S. 288, 293 (1984).

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regulations will be upheld “provided they are justified without

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reference to the content of the regulated speech, that they are

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narrowly tailored to serve a significant governmental interest,

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and that they leave open ample alternative channels for

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communication of the information.”

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Clark v. Cmty
Such

970, 973 (1995).

Id.; Moser v. FCC, 46 F.3d

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The Ninth Circuit has held that the ADAD Statute is a

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content neutral, reasonable time, place, and manner regulation.

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Bland, 88 F.3d at 732–36, 739.

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unless intervening precedent dictates otherwise.

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c.

That holding binds this Court

The Law-of-the-Circuit Rule

Under this circuit’s law-of-the-circuit rule, courts are

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bound by a prior circuit decision unless that decision is

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“clearly irreconcilable with intervening Supreme Court

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precedent.”

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F.3d 678, 689 (9th Cir. 2013) (citing Miller v. Gammie, 335 F.3d

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889, 899–900 (9th Cir. 2003)).

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effectively overruled by subsequent Supreme Court decisions that

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are ‘closely on point’ even though those decisions do not

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expressly overrule the prior circuit precedent.”

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F.3d at 899 (citing Galbraith v. Cnty of Santa Clara, 307 F.3d

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1119 (9th Cir. 2002)).

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“[r]ather, the relevant court of last resort must have undercut

Biggs v. Sec’y of Cal. Dep’t of Corr. & Rehab., 717

“Circuit precedent . . . can be

Miller, 335

The issues need not be identical;

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the theory or reasoning underlying the prior circuit precedent in

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such a way that the cases are clearly irreconcilable.”

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900.

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court “should consider itself bound by the later and controlling

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authority, and should reject the prior circuit opinion as having

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been effectively overruled,” at least “to the extent [the prior

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opinion] is inconsistent with the [later authority.]”

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893.

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Id. at

In such circumstances, the three-judge panel or district

“This is a high standard.”

Id. at

Lair v. Bullock, 697 F.3d 1200,

1207 (9th Cir. 2012).
Although [the court] should consider the intervening
authority's reasoning and analysis, as long as [it] can
apply our prior circuit precedent without running afoul
of the intervening authority, [it] must do so. It is
not enough for there to be some tension between the
intervening higher authority and prior circuit
precedent or for the intervening higher authority to
cast doubt on the prior circuit precedent.

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Id. at 1207 (internal citations and quotation marks omitted).

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Thus, this Court must follow Bland unless Bland is clearly

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irreconcilable with intervening Supreme Court precedent.

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d.

Ninth Circuit Precedent: Bland v. Fessler

In Bland, the Ninth Circuit subjected the California ADAD

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Statute to intermediate scrutiny and held that it does not

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violate the First Amendment.

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the statute is content-based or content neutral.

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statute into its central prohibitory provision (§ 2873) and its

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exemptions (§ 2872(d)–(f)).

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provision prescribes a method of communication, not the content

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of communication.

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First, the court analyzed whether
It divided the

It concluded that the central

Bland, 88 F.3d at 733 (emphasis in original).

Next, the court concluded that the exemptions in the statute
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are also content neutral.

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parties with an existing relationship, § 2872 (f), and the

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exemption for nonprofit organizations calling their members,

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§ 2872(d)(2), rest “not on the content of the message, but on

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existing relationships implying consent to the receipt of ADAD

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calls.”

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Minnesota’s ADAD statute in Van Bergen v. Minn., 59 F.3d 1541

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(8th Cir. 1995)).

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other exemptions, but noted that the others “do relate to

It found that the global exemption for

Id. (noting the Eighth Circuit’s similar analysis of

The court reached the same conclusion for the

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content, some involving existing relationships, others not.”

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Bland, 88 F.3d at 733–34.

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The Bland court stated:

Although regulating content, all of these exemptions
are based on relationships implying consent to receive
ADAD calls, or messages the recipient wants to hear, or
both: parents want to know of their children’s
attendance, consumers of cable and utility services
want installation information, and everyone wants
information concerning public safety and emergencies.

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Id., at 734.

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the exemptions privilege some relationships over others, noting

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that the statute exempts communications between all persons and

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entities with established relationships. Id. (emphasis added).

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The court rejected the plaintiffs’ argument that

Finally, the court rejected plaintiffs’ argument that “the

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group-based exemptions improperly contain content-based

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restrictions,” as there was no indication that the government

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adopted the regulation because of disagreement with the message

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conveyed.

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791 (1989)) It observed:

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Id. (Citing Ward v. Rock Against Racism, 491 U.S. 781,

Not a scintilla of evidence suggests that the State of
California disapproves of parent-teacher communication
regarding student grades, as opposed to the
communication about student attendance that the statute
permits. Nor do the restrictions on the content of the
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messages the other exempted groups may convey—cable
companies may call only regarding previously arranged
service installation, and dangerous facilities may call
only regarding disasters—carry the scent of government
favoritism in the free market of ideas.

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Id.

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statute, were content neutral and went on to apply intermediate

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scrutiny.

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The court determined that the exemptions, and thus the

e.

Intervening Precedent: Reed v. Town of
Gilbert, Ariz.

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In 2015, the Supreme Court held that a sign ordinance

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exempting and regulating signs of certain categories—imposing

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different restrictions on temporary directional signs as compared

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to political and ideological signs—was a content-based regulation

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of speech that could not survive strict scrutiny.

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of Gilbert, Ariz., 135 S.Ct. 2218 (2015).

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reversed the Ninth Circuit’s holding that the town’s Sign Code

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was content neutral.

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issue with the Ninth Circuits’ reasoning that the Sign Code was

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content neutral because the town “did not adopt its regulation of

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speech based on disagreement with the message conveyed and its

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justifications for regulating temporary directional signs were

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unrelated to the content of the sign.”

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the appellate court).

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Id. at 2226.

Reed v. Town

In doing so, the Court

The Court primarily took

Id. at 2227 (paraphrasing

Justice Thomas wrote:

But this analysis skips the crucial first step in the
content-neutrality analysis: determining whether the
law is content neutral on its face. A law that is
content based on its face is subject to strict scrutiny
regardless of the government's benign motive, contentneutral justification, or lack of animus toward the
ideas contained in the regulated speech. . . . Although
a content-based purpose may be sufficient in certain
circumstances to show that a regulation is content
based, it is not necessary. In other words, an
innocuous justification cannot transform a facially
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content-based law into one that is content neutral.

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That is why we have repeatedly considered whether a law
is content neutral on its face before turning to the
law's justification or purpose.

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Id. at 2228.

Correcting the Ninth Circuit’s reliance on Ward,

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Justice Thomas explained that “Ward’s framework applies only if a

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statute is content neutral.”

Id. at 2229.

The Court next rejected the Ninth Circuit’s reasoning that

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“the Sign Code was content neutral because it does not mention

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any idea or viewpoint, let alone single one out for differential

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treatment.”

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Amendment's hostility to content-based regulation extends . . .

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to prohibition of public discussion of an entire topic.”

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2230.

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is content based even if it does not discriminate among

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viewpoints within that subject matter.”

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Justice Thomas clarified that “[t]he First

Id. at

“A speech regulation targeted at specific subject matter

Id.

Finally, the Reed Court rejected the Ninth Circuit’s

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characterization of the Sign Code’s distinctions as content

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neutral because they are speaker and event-based.

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the Court, the distinctions were not speaker-based, and even if

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they were, that would not necessarily make the distinctions

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content neutral: laws favoring some speakers over others demand

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strict scrutiny when the legislature’s speaker preference

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reflects a content preference.

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United, 558 U.S. at 340, and Turner Broad. Sys., Inc. v. FCC, 512

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U.S. 622, 658 (1994)).

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According to

Id. at 2230 (citing Citizens

Concluding that the Sign Code imposed content-based

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restrictions on speech, the Court subjected the code to strict

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scrutiny and found that the town could not show that the
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ordinance was narrowly tailored to further a compelling

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government interest.

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opined that “a sign ordinance narrowly tailored to the challenges

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of protecting the safety of pedestrians, drivers, and passengers—

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such as warning signs marking hazards on private property, signs

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directing traffic, or street numbers associated with private

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houses—well might survive strict scrutiny.”

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f.

Id. at 2232.

In closing, Justice Thomas

Id. at 2233.

Bland Is Not Clearly Irreconcilable With
Reed

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As Plaintiffs argue, and the Ninth Circuit has recognized,

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Reed “provided authoritative direction for differentiating

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between content neutral and content-based enactments.

United

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States v. Swisher, 811 F.3d 299, 313 (9th Cir. 2016).

Reed’s

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holding, however, is not so clearly irreconcilable with Bland to

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excuse this Court from following Bland’s binding authority.

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Reed’s prescription that courts apply strict scrutiny to

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facially content-based statutes regardless of governmental motive

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is in tension with some of the Ninth Circuit’s language in Bland.

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The Bland court noted that certain exemptions to the ADAD Statute

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are “related to content” and cited “Ward’s framework” to reject

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the plaintiffs’ argument “that the group-based exemptions

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improperly contain content-based restrictions.”

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at 734.

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may call parents and guardians regarding student attendance;

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certain companies may call customers about previously arranged

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services; certain agencies may contact the public regarding

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public safety and emergencies.

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Bland, 88 F.3d

A few of the exemptions do relate to content: schools

But, “some tension” is not enough to make the decisions
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clearly irreconcilable. See Lair, 697 F.3d at 1207.

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court found that all of the ADAD Statute exemptions were based

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“on existing relationships implying consent to the receipt of

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ADAD calls” or messages—like public safety and emergency

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information—the recipient wants to hear.

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34.

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relationship except for the exemptions for emergencies and public

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safety, which Plaintiffs say they do not contest the government’s

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interest in making.

The Bland

Bland, 88 F.3d at 733–

In fact, each and every exemption involves an existing

Although the exemption for schools regarding

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attendance and certain entities regarding prearranged services

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relate to content, these callers have an established relationship

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with the call recipients that would otherwise exempt direct calls

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to those recipients under § 2872(f).

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extends that relationship-based exemption to intermediaries

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working solely on behalf of those callers to convey information

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the recipient already expects to receive.

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(4).

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Reed to find that the decision reaches relationship-based,

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consent-based, or emergency-based distinctions.

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Subsection (d) merely

§ 2872(d)(1),(3), &

This Court would be reading too far beyond the holding in

In addition to the analytical distinctions between Reed and

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Bland, the factual distinctions caution against finding circuit

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precedent overruled. 3

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signs from a general prohibition and imposed different

The Sign Code in Reed exempted certain

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3

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Defendants further distinguish the cases on the fact that the
Sign Code regulated outdoor signs while the ADAD Statute
regulates intrusions into the private home. Although courts have
recognized that residential privacy is an important or
significant government interests, Defendants do not point the
Court to any case where a private channel of communication
triggered a lower standard of scrutiny.
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restrictions on “Ideological Signs,” “Political Signs,” and

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“Temporary Directional Signs Relating to a Qualifying Event.”

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Reed, 135 S.Ct. at 2224–25.

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requires consent for all ADAD calls and makes exemptions to the

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express consent requirement only for those with existing

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relationships that imply consent and for emergencies.

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statute does not single out political subject matter or other

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subject matter for differential treatment.

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nonprofit to a member or from a business to an established

In contrast, the ADAD Statute

The

A call from a

10

customer may contain a political message, a commercial message,

11

or a message on another subject matter, and that message will not

12

determine whether the caller violated the statute; the

13

relationship between the parties will.

14

position, Plaintiffs direct the Court to a post-Reed, Fourth

15

Circuit decision striking down a South Carolina ADAD Statute for

16

its content-based restrictions; however, that statute, like the

17

Sign Code in Reed, singled out “calls with a consumer or

18

political message but [did] not reach calls made for any other

19

purpose.”

20

More significant to this Court are two post-Reed district court

21

decisions that each upheld a state ADAD statute that also exempts

22

certain ADAD calls placed to recipients with a preexisting

23

relationship with the caller.

24

1420, 2016 WL 4027767 (D. Minn. July 27, 2016); Patriotic

25

Veterans, Inc. v. Ind., No. 10-723, 2016 WL 1382137 (S.D. Ind.

26

Apr. 7, 2016).

27

strict scrutiny for relationship-based distinctions.

28

In support of their

Cahaly v. Larosa, 796 F.3d 399, 405 (4th Cir. 2015).

See Gresham v. Swanson, No. 16-

Neither of those courts read Reed to require

Furthermore, Plaintiffs’ principal issue with the ADAD
16

1

Statute is that it exempts nonprofits for calls to their members

2

but does not exempt Plaintiffs’ activity.

3

the Bland court, without considering governmental motives, easily

4

determined that the exemption for nonprofits was content neutral

5

and that the exemption “rests on existing relationships implying

6

consent.”

7

nonprofits are only exempt from the prohibition when making calls

8

to their members; the Legislature did not write them a blank

9

check.

10
11

Bland, 88 F.3d at 733.

See § 2872(d)(2).

But

The critical point is that

Of the exemptions that may be in tension with Reed, this

is not one of them.
For all of these reasons, this Court finds that the Ninth

12

Circuit’s holding in Bland is not clearly irreconcilable with

13

Reed and that decision cannot justify departure from this

14

circuit’s precedent.

15

g.

Bland Is Not Clearly Irreconcilable With
Citizens United

16
17

Plaintiffs also argue that the ADAD statute discriminates on

18

the basis of the speaker’s identity in violation of the First

19

Amendment.

20

argued that the exemptions are speaker-based distinctions that

21

are impermissible under Reed and Citizens United.

22

Rep. at 3; Mot. at 10.

At the hearing, Plaintiffs

However, neither decision meets the law-of-the-circuit

23

rule’s high threshold to overcome Bland.

The Reed court

24

determined that the Sign Code at issue was not speaker-based, and

25

the dicta accompanying that conclusion do not provide this Court

26

with a clear rule for determining when a speaker-based statute

27

would trigger strict scrutiny.

28

Reed court merely points out that a speaker-based distinction is

Reed, 135 S.Ct. at 2230–31.

17

The

1

not necessarily content neutral; rather, the distinction

2

“begin[s] [] the inquiry.”

3

Reed, 135 S.Ct. at 2230–31.

Citizens United speaks more to Plaintiffs’ point, but is not

4

irreconcilable with Bland.

In the majority opinion, the Supreme

5

Court stated that “speech restrictions based on the identity of

6

the speaker are too often simply a means to control content.

7

. . . [T]he Government may commit a constitutional wrong when by

8

law it identifies certain preferred speakers.”

9

v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010).

Citizens United
The law at

10

issue in Citizens United was both content-based—specifically

11

applying to electioneering and speech advocating for or against

12

political candidates—and speaker-based—singling out corporations

13

and unions.

14

cannot suppress political speech on the basis of the speaker’s

15

corporate identity.

16

Id. at 310.

The Court held that the government

Id. at 365.

The Citizens United decision does not say, or even strongly

17

imply, that a distinction based on relationship or consent is

18

subject to strict scrutiny.

19

statutes will requires some inquiry into a speaker’s identity,

20

but only in order to determine the existence of a relationship

21

between the speaker and the listener.

22

blanket exemptions for certain speakers.

23

nonprofit would be exempted under § 2872(d)(2) when calling

24

members, but not if it canvassed all phone numbers in a certain

25

geographic region.

26

Certainly, relationship-based

The statute does not make
For instance, a

Furthermore, even if the statute were speaker-based, the

27

Ninth Circuit has not interpreted Citizens United to hold that

28

speaker-based laws automatically trigger strict scrutiny.
18

Doe v.

1

Harris, 772 F.3d 563, 575–76 (9th Cir. 2014) (analyzing a statute

2

that singles out registered sex offenders under intermediate

3

scrutiny after distinguishing the case from Citizens United).

4

Bland is not clearly irreconcilable with Citizens United and thus

5

Bland remains binding on this Court.

6

Under controlling Ninth Circuit precedent, the California

7

ADAD Statute does not violate the First Amendment and Plaintiffs

8

are thus not likely to succeed on the merits of their claim.

9
10

2.

The Remaining Factors

As described above, courts consider the four factors

11

outlined in Winter to determine whether a preliminary injunction

12

should issue.

13

irreparable harm, balance of the equities, and public interest

14

analysis are heavily informed by the merits determination.

15

binds this Court and Plaintiffs are unlikely to succeed on the

16

merits.

17

factors as well.

However, in the First Amendment context, the

Bland

The Court thus finds against Plaintiffs on the remaining

18
19
20

III.

ORDER

Plaintiffs’ Motion for Preliminary Injunction is DENIED.

21
22

IT IS SO ORDERED.

23

Dated: October 6, 2016

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