Publius v. Boyer-Vine
237 F.Supp.3d 997, 45 Media L. Rep. (BNA) 1827, 66 Communications Reg. (P&F) 343 (2017)
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Rule of Law:
A state statute that allows government officials to demand the removal of their publicly available personal information from the internet based on the official's subjective fear for their safety is an unconstitutional content-based restriction on speech when applied to political protest using lawfully obtained, truthful information. Such a statute may also violate the dormant Commerce Clause when enforced against out-of-state internet service providers.
Facts:
- In response to new California gun control laws, Doe Publius published a blog post titled 'Tyrants to be registered with California gun owners.'
- The post criticized legislators who voted for the bills and included a list of their names, home addresses, and phone numbers.
- Publius compiled this information from zabasearch.com, a website that aggregates publicly available records.
- Following the blog post, several legislators reported receiving threatening phone calls and social media messages.
- The Office of Legislative Counsel of California sent a written takedown demand to Publius's blog host, WordPress.com, citing § 6254.21(c).
- A user on an online forum, Northeastshooters.com, owned by Massachusetts resident Derek Hoskins, reposted the list of legislators' information.
- The Office of Legislative Counsel then sent a similar takedown demand to Hoskins.
- Both WordPress and Hoskins complied with the demands and removed the posted information.
Procedural Posture:
- Doe Publius and Derek Hoskins filed a complaint in the U.S. District Court for the Eastern District of California against Diane F. Boyer-Vine in her official capacity as Legislative Counsel.
- Plaintiffs brought the action under 42 U.S.C. § 1983, seeking a declaratory judgment that California Government Code § 6254.21(c) is unconstitutional.
- Plaintiffs filed a motion for a preliminary injunction to prevent the Defendant from enforcing the statute against them during the litigation.
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Issue:
Does California Government Code § 6254.21(c), which prohibits posting an elected official's home address or phone number online upon the official's written demand based on a subjective fear for their safety, violate the First Amendment when applied to political speech that uses publicly available information?
Opinions:
Majority - O'Neill, Chief District Judge
Yes, California Government Code § 6254.21(c) violates the First Amendment as applied to the plaintiffs. The statute is a content-based restriction on speech that fails strict scrutiny because it is not narrowly tailored to serve a compelling state interest. The court assumed, without deciding, that protecting the safety of public officials is a compelling interest. However, the statute is not narrowly tailored because: (1) it allows for takedown based on an official's subjective fear rather than an objective threat; (2) it punishes the dissemination of truthful, lawfully obtained information that is already in the public domain; and (3) it is underinclusive, as it only applies to internet publications and not to other media like newspapers. The court also found that the statute, as applied to Hoskins, an out-of-state website operator, violates the dormant Commerce Clause by directly regulating conduct that occurs wholly outside of California's borders.
Analysis:
This decision reinforces the high constitutional protection afforded to core political speech, particularly when it involves criticism of government officials using publicly available information. It establishes that even a compelling government interest, such as protecting the safety of officials, cannot justify a law that is not narrowly tailored and relies on subjective standards. The ruling significantly curtails the ability of states to use broad statutes to remove politically inconvenient but lawful content from the internet. Furthermore, the court's dormant Commerce Clause analysis highlights the constitutional limits on a state's power to regulate internet content on a national scale, reaffirming that states cannot project their regulatory schemes onto conduct occurring entirely in other states.
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