Legislature curbs free speech for ‘worthy’ aims—then come the lawsuits

Back before the internet made it so easy to find a celebrity’s age, a 29-year-old actress landed the role of a 17-year-old girl—and helped propel “Beverly Hills 90210” into a hit TV show in the 1990s.

That was the story actress Gabrielle Carteris told state lawmakers last year as she lobbied for a bill to strip actors’ ages from commercial websites used in casting. Now the president of the Screen Actors Guild, Carteris said she would never have been able to land the career-making role today because of websites like IMDB.com that publish actors’ ages. In response, lawmakers—sweeping aside First Amendment concerns that the government doesn’t have the right to keep anyone from publishing information such as a birth date—approved Assembly Bill 1687, and the governor signed it into law.

That law is now being challenged in federal court with a lawsuit that says it amounts to unconstitutional censorship. It’s one of a handful of policies to come out of the Democratic-controlled Legislature that limit unfettered speech—some of them prompted by pressure from liberal allies such as the actors’ labor union and Planned Parenthood.

And when the state has to defend them, taxpayers wind up footing the bill.

“The government tries to restrict speech in order to serve whatever it sees as important goals,” said Eugene Volokh, a law professor at University of California, Los Angeles, one of several First Amendment scholars who signed an amicus brief supporting IMDB.com in its suit against the state over AB 1687.

“Usually free speech prevails, even against worthy government goals.”

In this case, the “worthy” goal was the Legislature’s desire to shield actors from being discriminated against as they age. Assemblyman Ian Calderon, the Whittier Democrat who wrote AB 1687, said his bill does that without violating the Constitution.

“The Legislature isn’t looking to censor anyone or anything just because we think we can,” he said. “It’s about protecting an industry that is large in this state, that is homegrown to this state, and the folks that work within it.”

Assemblyman Ian Calderon, center, with Assembly Speaker Anthony Rendon.

A different case Volokh litigated last year, on behalf of a gun-rights group called the Firearms Policy Coalition, challenged the Assembly’s long-standing rule that prohibits rebroadcasting public video footage of its proceedings “for any political or commercial purpose.” The firearms group wanted to use government video clips in political ads, and argued that the prohibition infringed on its right to free speech. The Legislature defended the rule, saying it was meant to keep lawmakers from grandstanding.

A federal court judge ripped that argument apart in a sharply-worded injunction that said the Assembly’s rule violated the First Amendment.

“One person’s ‘grandstanding’ is another’s ‘passionate debate.’ In other words, ‘grandstanding’ is simply ‘speech’ by another name. The State’s interest in preventing such speech is far from compelling,” wrote U.S. District Court Judge Morrison England.

The Legislature then passed a new law repealing the prohibition on rebroadcasting public video footage.

First Amendment concerns were also raised last year as the Legislature debated a bill inspired by the revelation of secretly recorded videos of a Planned Parenthood executive. State law already forbids secret recordings; the bill made it an additional crime to distribute a “confidential communication with a health care provider.”

Lobbyists for the news media feared the bill would inhibit a free press. Publishers and other First Amendment advocates successfully lobbied for amendments that prevent news organizations from being prosecuted for distributing undercover videos they did not record.

Still, legislative staffers flagged the potential for a lawsuit in their analysis of the bill, writing that there could be “potentially significant future costs for litigation… to the extent the provisions of this measure face constitutional challenges under the First Amendment.” Nonetheless, the bill was approved and signed into law in September.

First Amendment advocates in Sacramento expect their challenges to continue as the media landscape shifts with the evolution of technology.

“The internet is a wild west of free speech issues,” said Nikki Moore, a lawyer for the California Newspaper Publishers Association. “I don’t expect this to be a dying trend.”

Case in point: Democratic lawmakers have already proposed two new bills inspired by the “fake news” phenomenon that emerged during presidential campaign. Assembly Bill 155 and Senate Bill 135 call on education officials to craft lessons teaching students to discern which online news stories are trustworthy.

Free speech advocates will be watching to see if Democrats’ response to the latest liberal cause celebre escalates into a constitutional violation.

What does the First Amendment actually say?

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

The courts have interpreted this to apply not just to Congress but also to the states, as a consquence of the Fourteenth Amendment. It says, in part: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…”

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