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1 EUGENE VOLOKH (SBN 194464)
UCLA School of Law
2 405 Hilgard Ave.
Los Angeles, CA 90095
3 Telephone: (310) 206-3926
Facsimile: (310) 206-7010
4 eugene.volokh@gmail.com
5 BENBROOK LAW GROUP, PC
BRADLEY A. BENBROOK (SBN 177786)
6 STEPHEN M. DUVERNAY (SBN 250957)
400 Capitol Mall, Suite 1610
7 Sacramento, CA 95814
Telephone: (916) 447-4900
8 Facsimile: (916) 447-4904
brad@benbrooklawgroup.com
9 steve@benbrooklawgroup.com
10
Attorneys for Plaintiffs
11
12
13 UNITED STATES DISTRICT COURT
14 EASTERN DISTRICT OF CALIFORNIA
15
16 DOE PUBLIUS and DEREK HOSKINS, Case No.: 1:16-CV-01152-LJO-SKO
17 Plaintiffs,
FIRST AMENDED COMPLAINT FOR
18 v. DECLARATORY, INJUNCTIVE, OR
OTHER RELIEF
19 DIANE F. BOYER-VINE, in her official
capacity as Legislative Counsel of California,
20
21 Defendant.
22
23
24
25
26
27
28

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1 Plaintiffs Doe Publius and Derek Hoskins complain of Defendant and alleges:
2 INTRODUCTION
3 1. This is a constitutional challenge to California Government Code section
4 6254.21(c), which prohibits the continued publication on the Internet of the home address or
5 telephone number of any “elected or appointed official,” once an official claims that such
6 publication has caused them to “fear for [their] safety.”
7 2. Plaintiff Doe Publius maintains a political blog under the alias “The Real Write
8 Winger,” https://therealwritewinger.wordpress.com/. The blog focuses on California politics, with
9 a particular emphasis on criminal law, civil rights and liberties, and the right to keep and bear arms
10 secured by the Second Amendment to the U.S. Constitution. Publius posted a blog entry
11 criticizing the California Legislature for passing a series of laws that Publius believes compromise
12 the rights and liberties of California gun owners, including a law establishing a registry tracking all
13 ammunition purchases and transfers throughout the State. As part of the article, Publius
14 characterized state lawmakers as “tyrants” and announced the establishment of a “tyrant registry”
15 that listed the home addresses and telephone numbers of 40 legislators who voted to pass the bills
16 Publius was protesting. As the post makes clear, Publius obtained the information through
17 publicly available sources and compiled it in “one convenient location,” to provide broad access to
18 the information.
19 3. In response to the post, the California Legislative Counsel sent a letter to
20 WordPress.com (the Internet hosting service for Publius’ blog) demanding that it remove the post
21 pursuant to Section 6254.21(c). The letter, sent on behalf of all of the legislators identified in
22 Publius’ blog post, stated that “[p]ublicly displaying elected officials’ home addresses on the
23 Internet represents a grave risk to the safety of these elected officials,” who “fear that the public
24 display of their addresses on the Internet will subject them to threats and acts of violence at their
25 homes.” The Legislative Counsel demanded, on the threat of litigation, that WordPress remove
26 the addresses, and that it “continue to ensure that this information is not reposted on that Web site,
27 any subsidiary Web site, or any other Web site maintained by you.”
28 ///
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1 4. In response to the demand, WordPress disabled Publius’ post and removed it from
2 the Internet. Under the terms of this “takedown statute,” Publius is barred from reposting this
3 information for four years. Cal. Gov’t Code § 6254.21(c)(1)(C).
4 5. Plaintiff Derek Hoskins is the owner of Northeastshooters.com, an online forum for
5 discussing firearms issues and shooting sports activities, news, and politics. Firearms laws and
6 legislation are a frequent discussion topic on the forum. The Legislative Counsel issued a
7 takedown demand to Hoskins based on a discussion thread concerning the controversy over the
8 Legislative Counsel’s takedown demand to Publius. Specifically, the Legislative Counsel took
9 issue with one commenter who stated “[t]hey [the legislators] must realize after [their contact
10 information is] on the web, it can be copied by others and posted somewhere else over and over.
11 Like this,” then reposted the legislators’ contact information from Publius’ post. According to the
12 Legislative Counsel, posting the contact information in this context also constituted a “grave”
13 threat, and Hoskins is “required to continue to ensure that” the information is not reposted
14 anywhere on the forum for four years. Hoskins complied with the takedown demand.
15 6. Section 6254.21(c)’s takedown requirement violates the First Amendment on its
16 face and as applied to Plaintiffs. “There is no question that speech critical of the exercise of the
17 State’s power lies at the very center of the First Amendment.” Gentile v. State Bar of Nevada, 501
18 U.S. 1030, 1034 (1991). “Suppression of the right of the press to praise or criticize governmental
19 agents and to clamor and contend for or against change” violates the most basic principles of the
20 First Amendment. Mills v. Alabama, 384 U.S. 214, 219 (1966). “Criticism of government is at the
21 very center of the constitutionally protected area of free discussion. Criticism of those responsible
22 for government operations must be free, lest criticism of government itself be penalized.”
23 Rosenblatt v. Baer, 383 U.S. 75, 85 (1966).
24 7. By censoring the content of Plaintiffs’ speech, the State has run afoul of “the
25 fundamental rule of protection under the First Amendment, that a speaker has the autonomy to
26 choose the content of his own message.” Hurley v. Irish–American Gay, Lesbian and Bisexual
27 Group of Boston, Inc., 515 U.S. 557, 573 (1995); accord Cohen v. California, 403 U.S. 15, 24
28 (1971) (noting “the usual rule that governmental bodies may not prescribe the form or content of
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1 individual expression.”).
2 8. Moreover, the U.S. Supreme Court has held repeatedly that the First Amendment
3 prohibits the government from punishing the publication of truthful, lawfully obtained information
4 that is already in the public domain. See, e.g., Florida Star v. B.J.F., 491 U.S. 524 (1989); Smith v.
5 Daily Mail Publ’g Co., 443 U.S. 97 (1979); Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975).
6 9. The takedown requirement is presumptively invalid and must satisfy strict scrutiny
7 to survive. Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015); Florida Star, 491 U.S. at 541.
8 The takedown requirement cannot meet that standard. Because Section 6254.21(c) violates the
9 First Amendment, Plaintiffs seek declaratory and injunctive relief to invalidate the statutory
10 provisions and enjoin any further action by the Legislative Counsel of California to suppress or
11 punish Plaintiffs’ protected speech.
12 JURISDICTION AND VENUE
13 10. This case raises questions under the First Amendment and 42 U.S.C. § 1983. This
14 Court has jurisdiction over all claims for relief pursuant to 28 U.S.C. § 1331.
15 11. Venue is proper under 28 U.S.C. § 1391(b). Assignment to the Fresno division is
16 proper pursuant to Local Rule 120(d) because a substantial portion of the events giving rise to this
17 action occurred in Stanislaus County.
18 THE PARTIES
19 12. Plaintiff Doe Publius is a California resident who lives in Stanislaus County.1
20 Publius maintains a political blog under the alias “The Real Write Winger,”
21 https://therealwritewinger.wordpress.com/.
22 13. Plaintiff Derek Hoskins is a Massachusetts resident. Hoskins is the owner of
23 Northeastshooters.com, an online forum for discussing firearms issues and shooting sports
24
1
25 Publius will file a motion seeking permission to proceed pseudonymously pursuant to Does
I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000). Initiating suit
26 anonymously is necessary to preserve Plaintiff’s First Amendment right to speak anonymously
when criticizing the government, see McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995),
27 and to guard against the risk of retaliatory and unfounded prosecution under the criminal
provisions of the statutory scheme Plaintiffs challenge, see Cal. Gov’t Code § 6254.21(b).
28

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1 activities, news, and politics.
2 14. Defendant Diane F. Boyer-Vine is the Legislative Counsel of California. Mrs.
3 Boyer-Vine is sued in her official capacity. The Legislative Counsel provides legal services for
4 the California Legislature and its members. As relevant here, the Legislative Counsel served as
5 the agent for certain California legislators, pursuant to California Government Code section
6 6254.21(c)(3), for the purposes of making the takedown demand that is the subject of this lawsuit.
7 The Office of Legislative Counsel maintains an office in Sacramento.
8 GENERAL ALLEGATIONS
9 Publius Publishes Truthful, Publicly-Available Information Disclosing
10 Legislators’ Home Addresses To Protest Recent Gun Legislation
11 15. Publius maintains a political blog under the alias “The Real Write Winger,”
12 https://therealwritewinger.wordpress.com/. The blog focuses on California politics, with a
13 particular emphasis on criminal law, civil rights and liberties, and the right to keep and bear arms
14 secured by the Second Amendment to the U.S. Constitution.
15 16. On July 1, Governor Jerry Brown signed several gun-control bills into law. See
16 Patrick McGreevey, Gov. Jerry Brown signs bulk of sweeping gun-control package into law,
17 vetoes five bills, L.A. Times, July 1, 2016, online at http://lat.ms/29bvT5P. Included in this
18 package of legislation was a law that, among other things, requires the State to establish and
19 maintain a database tracking all ammunition purchases throughout California (the “Ammunition
20 Purchase Records File”). Senate Bill No. 1235 (2015-2016 Reg. Sess.), ch. 55, §§ 12, 14 (enacting
21 Cal. Penal Code §§ 30352 and 30369). The ammunition database will include the driver’s license
22 information, residential address and telephone number, and date of birth for everyone who
23 purchases or transfers ammunition. See id.
24 17. On July 5, 2016, Publius posted a blog entry criticizing the Legislature’s firearms
25 legislation. Publius believes the laws violate the constitutional rights and liberties of California
26 gun owners. The article, titled “Tyrants to be registered with California gun owners,” states:
27 If you’re a gun owner in California, the government knows where you live. With
the recent anti gun, anti Liberty bills passed by the legisexuals in the State Capitol
28 and signed into law by our senile communist governor, isn’t it about time to register
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these tyrants with gun owners?
1
Compiled below is the names, home addresses, and home phone numbers of all the
2 legislators who decided to make you a criminal if you don’t abide by their dictates.
“Isn’t that dangerous, what if something bad happens to them by making that
3 information public?” First, all this information was already public; it’s just now in
one convenient location. Second, it’s no more dangerous than, say, these tyrants
4 making it possible for free men and women to have government guns pointed at
them while they’re hauled away to jail and prosecuted for the crime of exercising
5 their rights and Liberty.
6 These tyrants are no longer going to be insulated from us. They used their power we
entrusted them with to exercise violence against us if we don’t give up our rights
7 and Liberty. This common sense tyrant registration addresses this public safety
hazard by giving the public the knowledge of who and where these tyrants are in
8 case they wish to use their power for violence again.
9 So below is the current tyrant registry. These are the people who voted to send you
to prison if you exercise your rights and liberties. This will be a constantly updated
10 list depending on future votes, and if you see a missing address or one that needs
updating, please feel free to contact me. And please share this with every California
11 gun owner you know.
12 To be fair, the only way for a tyrant to have their name removed from the tyrant
registry is to pass laws which repeal the laws that got them added to the list, or upon
13 the tyrant’s death. Otherwise, it is a permanent list, even after the tyrant leaves
office. The people will retain this information and have access to it indefinitely.
14
15 The article then listed the home addresses and phone numbers of fourteen California State
16 Senators and twenty-six California State Assembly Members. A true and correct copy of the
17 article with the contact information redacted is attached to the Complaint as Exhibit A.2
18 18. Publius obtained the addresses and phone numbers listed in the article through
19 searching public records online, then compiled the results of the search for the post.
20 Legislative Counsel Issues A Takedown Demand And The Post Is Censored
21 19. On or before July 11, the California Legislative Counsel sent a written demand to
22 WordPress.com (the Internet hosting service for Plaintiff’s blog), threatening to pursue a lawsuit if
23 WordPress did not remove the post pursuant to Section 6254.21(c):
24 To whom it may concern:
25 My office represents the California State Legislature. It has come to our attention
that the home addresses of 14 Senators and 26 Assembly Members have been
26
2
27 A true and correct copy of the entire post is attached to the Complaint, Dkt. No. 1–1. The
post was sealed by order of the Court, Dkt. No. 5.
28

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publically posted on an Internet Web site hosted by you without the permission of
1 these elected officials. Specifically, the user on your platform by the name of
“therealwritewinger” posted the home addresses of these elected officials on his or
2 her Web site at https://therealwritewinger.wordpress.com/2016/07/05/
tyrantstoberegisteredwithgunowners.
3
This letter constitutes a written demand under subdivision (c) of Section 6254.21 of
4 the Government Code that you remove these home addresses from public display
on that Web site, and to take steps to ensure that these home addresses are not
5 reposted on that Web site, a subsidiary Web site, or any other Web site maintained
or administered by WordPress.com or over which WordPress.com exercises
6 control. Publicly displaying elected officials’ home addresses on the Internet
represents a grave risk to the safety of these elected officials. On the
7 “therealwritewinger” blog site, the user describes the listed legislators as “tyrants,”
encourages readers to share the legislators’ home addresses with other gun owners,
8 and threatens that the home addresses will not be removed unless the legislator
repeals specified gun laws or “upon the tyrant’s death.” The Senators and Assembly
9 Members whose home addresses are listed on this Web site fear that the public
display of their addresses on the Internet will subject them to threats and acts of
10 violence at their homes.
11 To comply with the law, please remove the home addresses of these elected
officials from your Web site no later than 48 hours after your receipt of this letter
12 (cl. (i), subpara. (D), para. (1), subd. (c), Sec. 6254.21, Gov. C.). You are also
required to continue to ensure that this information is not reposted on that Web site,
13 any subsidiary Web site, or any other Web site maintained by you (subpara. (D),
para. (1), subd. (c), Sec. 6254.21, Gov. C.).
14
. . . . If these home addresses are not removed from this Web site in a timely
15 manner, we reserve the right to file an action seeking injunctive relief, as well as
associated court costs and attorney’s fees (para. (2), subd. (c), Sec. 6254.21, Gov.
16 C.).
17 Regards,
Kathryn Londenberg
18 Deputy Legislative Counsel
Legislative Counsel Bureau
19
20 20. On or about July 11, WordPress disabled Publius’ post and removed it from the
21 Internet. A true and correct copy of an e-mail exchange between Publius and WordPress, which
22 includes the Legislative Counsel’s takedown request, is attached as Exhibit B.
23 Legislative Counsel Censors Discussion of Publius’ Post
24 Through Further Takedown Demands
25 21. Hoskins is the owner and moderator of Northeastshooters.com, a popular New
26 England online forum for discussing firearms issues and shooting sports activities. Through
27 Northeastshooters, Hoskins seeks to provide an open forum that allows for robust and uninhibited
28 debate, and citizens frequently discuss firearms laws and legislation on the site.
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1 22. Northeastshooters users engaged in a spirited discussion over the Legislative
2 Counsel’s takedown demand to “The Real Write Winger,” in a discussion thread titled
3 “GOVERNMENT WARNS SITE TO REMOVE LIST OF STATE SENATORS WHO PASSED
4 GUN CONTROL.” A true and correct copy of the discussion thread, as of July 11, 2016, is
5 attached as Exhibit C. One commenter stated: “Can’t speak for California, but here in
6 Connecticut, home addresses of an elected official is a matter of public record.” Another
7 characterized the dispute as “Laws for thee, but not for me…..”
8 23. Another commenter, identified as “headednorth” stated “[t]hey [the legislators]
9 must realize after its [sic] on the web, it can be copied by others and posted somewhere else over
10 and over. Like this,” and he or she then reposted the California legislators’ home addresses.
11 Exhibit C contains a copy of this post, with the addresses redacted.
12 24. On July 11, 2016, Kathryn Londenberg, Deputy Legislative Counsel at the
13 California Legislative Counsel office, sent Hoskins an email noting that “headednorth” had posted
14 the home addresses of California legislators and demanding that he remove the addresses from the
15 site. This takedown demand that is materially identical to the demand it issued to Wordpress.
16 Specifically, it directed Hoskins to take immediate action to remove the post, states that he is
17 “required to continue to ensure that this information is not reposted on that Web site, any
18 subsidiary Web site, or any other Web site maintained by you,” and closes with a threat of
19 litigation. A true and correct copy of the takedown demand is attached as Exhibit D.
20 25. Another website, known as “Burst Updates,” reported on Publius’ post and the
21 State’s demand that it be taken down. Burst Updates, State Warns Site to Remove List of Senators
22 Who Passed Gun Control Requiring Personal Info on Owners: Update, Post Content Deleted, July
23 11, 2016, online at http://bit.ly/2avhf7l. The Burst Updates post included a link to the original
24 WriteWinger post, a short quote from the original post, some original content (encouraging readers
25 to see the original post) and a copy of the list of legislators’ address included in the original post.
26 26. The Office of Legislative Counsel issued a similar takedown demand under Section
27 6254.21(c), asserting that Burst Updates’ separate post also constituted a “grave” threat by listing
28 legislators’ addresses.
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1 The Takedown Provisions Of Cal. Gov’t Code § 6254.21(c) Violate The First Amendment
2 27. California Government Code section 6254.21(c) allows virtually any elected
3 official in California to prevent citizens from republishing their home addresses if they feel that
4 such republication threatens them:
5 (c)(1)(A) No person, business, or association shall publicly post or publicly display
on the Internet the home address or telephone number of any elected or appointed
6 official if that official has, either directly or through an agent designated under
paragraph (3), made a written demand of that person, business, or association to not
7 disclose his or her home address or telephone number.
8 (B) A written demand made under this paragraph by a state constitutional officer, a
mayor, or a Member of the Legislature, a city council, or a board of supervisors
9 shall include a statement describing a threat or fear for the safety of that official or
of any person residing at the official’s home address.
10
(C) A written demand made under this paragraph by an elected official shall be
11 effective for four years, regardless of whether or not the official’s term has expired
prior to the end of the four-year period.
12
(D)(i) A person, business, or association that receives the written demand of an
13 elected or appointed official pursuant to this paragraph shall remove the official’s
home address or telephone number from public display on the Internet . . . within 48
14 hours of delivery of the written demand, and shall continue to ensure that this
information is not reposted on the same Internet Web site, subsidiary site, or any
15 other Internet Web site maintained by the recipient of the written demand.
....
16
(E) For purposes of this paragraph, “publicly post” or “publicly display” means to
17 intentionally communicate or otherwise make available to the general public.
18 (2) An official whose home address or telephone number is made public as a result
of a violation of paragraph (1) may bring an action seeking injunctive or declarative
19 relief in any court of competent jurisdiction. If a court finds that a violation has
occurred, it may grant injunctive or declarative relief and shall award the official
20 court costs and reasonable attorney’s fees. A fine not exceeding one thousand
dollars ($1,000) may be imposed for a violation of the court’s order for an
21 injunction or declarative relief obtained pursuant to this paragraph.
22 (3) An elected or appointed official may designate in writing the official’s
employer, a related governmental entity, or any voluntary professional association
23 of similar officials to act, on behalf of that official, as that official’s agent with
regard to making a written demand pursuant to this section. . . . A written demand
24 made by an agent pursuant to this paragraph shall include a statement describing a
threat or fear for the safety of that official or of any person residing at the official’s
25 home address.
26 28. In short, once a public official demands that their address or phone number be
27 removed from the Internet, the publisher has 48 hours to comply, or be subject to a fine, and the
28 publisher is barred from republishing the official’s address or phone number—for any purpose—
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1 for four years.
2 29. The takedown provisions violate the First Amendment both on their face and as
3 applied to Plaintiffs.
4 30. Publius’ experience demonstrates how the provisions impose a content-based
5 restriction that impinges on the free flow of political speech. Publius’ blog entry criticized the
6 legislators’ actions, and posting the home addresses and telephone numbers was integral to
7 Publius’ message. Indeed, informing others that Publius was establishing a “common sense tyrant
8 registration” as a protest measure against the State’s efforts to compile information about gun
9 owners was the whole point of the post. As Publius explained: “If you’re a gun owner in
10 California, the government knows where you live. . . . [I]sn’t it about time to register these tyrants
11 with gun owners?”
12 31. This political advocacy is protected by the First Amendment. “The First
13 Amendment affords the broadest protection to such political expression in order ‘to assure [the]
14 unfettered interchange of ideas for the bringing about of political and social changes desired by the
15 people.’” Buckley v. Valeo, 424 U.S. 1, 14 (1976) (quoting Roth v. United States, 354 U.S. 476,
16 484 (1957)). And “[t]here is no question that speech critical of the exercise of the State’s power
17 lies at the very center of the First Amendment.” Gentile, supra, 501 U.S. at 1034. “Suppression of
18 the right of the press to praise or criticize governmental agents and to clamor and contend for or
19 against change” violates the most basic principles of the First Amendment. Mills, supra, 384 U.S.
20 at 219. “Criticism of government is at the very center of the constitutionally protected area of free
21 discussion. Criticism of those responsible for government operations must be free, lest criticism of
22 government itself be penalized.” Rosenblatt, supra, 383 U.S. at 85.
23 32. By censoring the content of Publius’ speech criticizing the government, the State
24 has run afoul of “the fundamental rule of protection under the First Amendment, that a speaker has
25 the autonomy to choose the content of his own message.” Hurley, supra, 515 U.S. at 573; accord
26 Cohen, supra, 403 U.S. at 24 (noting “the usual rule that governmental bodies may not prescribe
27 the form or content of individual expression.”). “As a general principle, the First Amendment bars
28 the government from dictating what we see or read or speak or hear.” Ashcroft v. Free Speech
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1 Coalition, 535 U.S. 234, 245 (2002); accord Sorrell v. IMS Health Inc., 564 U.S. 552, 568 (2011)
2 (“An individual’s right to speak is implicated when information he or she possesses is subjected to
3 ‘restraints on the way in which the information might be used’ or disseminated.”) (quoting Seattle
4 Times Co. v. Rhinehart, 467 U.S. 20, 32 (1984)).
5 33. Put simply, Publius is free to publish speech critical of the government and air
6 grievances in the form of Publius’ choosing, and the First Amendment constrains the government
7 from determining the content of Publius’ criticism.
8 34. Beyond Publius’ expressive purpose, however, the publication of legislators’
9 addresses and phone numbers can serve a variety of other lawful purposes. For example,
10 residential picketing is often constitutionally protected, Carey v. Brown, 447 U.S. 455 (1980), and
11 concerned citizens can hardly picket demanding action from their legislators without knowing
12 where they live. Though some cities and counties may have valid content-neutral restrictions on
13 residential picketing, Frisby v. Schultz, 487 U.S. 474 (1988), many jurisdictions lack such content-
14 neutral limitations; and even in those that have such restrictions, “marching through residential
15 neighborhoods, or even walking a route in front of an entire block of houses,” id. at 483, is likely
16 constitutionally protected.
17 35. The Legislative Counsel’s takedown demand to Hoskins poses a distinct threat to
18 his free speech rights. Like the parade organizers in Hurley, 515 U.S. 557, or the New York Times
19 in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), Hoskins has a First Amendment right to
20 invite others to add speech to his forum, without facing the risk of liability for choosing what
21 speech to allow. The demand likewise runs afoul of section 230 of the Communications Decency
22 Act, which “immunizes providers of interactive computer services against liability arising from
23 content created by third parties.” Fair Hous. Council of San Fernando Valley v. Roommates.Com,
24 LLC, 521 F.3d 1157, 1162 (9th Cir. 2008) (en banc) (footnote omitted) (citing 47 U.S.C. § 230(c)).
25 36. A second strain of U.S. Supreme Court decisions reinforces the unconstitutionality
26 of the takedown provisions. Time and again, the U.S. Supreme Court has held that the First
27 Amendment prohibits the government from punishing the publication of truthful, lawfully obtained
28 information that is already in the public domain. See, e.g., Florida Star, 491 U.S. 524 (1989); Cox
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1 Broad. Corp. v. Cohn, 420 U.S. 469 (1975); Smith v. Daily Mail Publ’g Co., 443 U.S. 97 (1979).
2 Publius lawfully obtained the addresses and phone numbers of public officials by searching public
3 records; once such “truthful information was ‘publicly revealed’ or ‘in the public domain,’” the
4 State cannot “constitutionally restrain its dissemination.” Florida Star, 491 U.S. at 535 (quoting
5 Daily Mail, 443 U.S. at 103).
6 37. Because the takedown requirement is a content-based restriction on protected
7 political speech that republishes truthful information in the public domain, it is subject to strict
8 scrutiny. Reed, 135 S. Ct. at 2226 (content-based laws “are presumptively unconstitutional and
9 may be justified only if the government proves that they are narrowly tailored to serve compelling
10 state interests”); Florida Star, 491 U.S. at 541 (laws punishing the publishing of truthful
11 information can be upheld “only when narrowly tailored to a state interest of the highest order”);
12 see also Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010) (“Laws that burden
13 political speech are subject to strict scrutiny.”) (internal quotation marks and citation omitted).
14 The Takedown Provisions Fail To Satisfy Strict Scrutiny
15 38. A statute “which makes criminal a form of pure speech, must be interpreted with
16 the commands of the First Amendment clearly in mind. What is a threat must be distinguished
17 from what is constitutionally protected speech.” Watts v. United States, 394 U.S. 705, 707 (1969).
18 Section 6254.21(c) is not narrowly tailored to address unprotected speech, such as “true threats.”
19 See Virginia v. Black, 538 U.S. 343, 359 (2003). “‘True threats’ encompass those statements
20 where the speaker means to communicate a serious expression of an intent to commit an act of
21 unlawful violence to a particular individual or group of individuals.” Id. at 359. On the other
22 hand, true threats must be distinguished from the “vehement, caustic, and sometimes unpleasantly
23 sharp attacks on government and public officials” that take place in “uninhibited, robust, and
24 wideopen” “debate on public issues.” Watts, 394 U.S. at 708. “The language of the political arena
25 . . . is often vituperative, abusive, and inexact.” Id.
26 39. Section 6254.21(c) permits censorship of speech based on assertions of fear by
27 public officials – not findings in a judicial proceeding – that fall far short of the governing standard
28 set out in Watts and Virginia v. Black. It requires takedown based on any subjective threat of harm
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1 articulated by public officials, without respect to whether the alleged threat is objectively
2 reasonable. It applies without regard to the author’s subjective intent, and even without an actual
3 likelihood of harm. Indeed, the takedown statute would apply if the potential harm did not arise
4 from the content of the post, but because a public official feared harm from a third party (even
5 though that same third party could search other readily available public records to get the same
6 information). And it applies, without qualification, for four years. As such, Section 6253.21(c) is
7 overbroad and cannot satisfy strict scrutiny.
8 40. Nor are the takedown provisions narrowly tailored to weed out unprotected speech
9 constituting “incitement.” Even when speech advocates violence, the First Amendment “do[es]
10 not permit a State to forbid or proscribe advocacy of the use of force or of law violation except
11 where such advocacy is directed to inciting or producing imminent lawless action and is likely to
12 incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam).
13 “Statutes . . . touching on freedom of speech . . . must observe the established distinctions between
14 mere advocacy and incitement to imminent lawless action.” Id. at 449 n.4. Yet Section
15 6253.21(c) is not limited to incitement of lawless action (or for that matter even advocacy of such
16 action).
17 41. Plaintiffs’ experiences demonstrates the statute’s overbreadth: The Legislative
18 Counsel issued a generic takedown demand, on behalf of all 40 legislators, stating that they fear
19 the speculative prospect of future harm (specifically, they “fear that the public display of their
20 addresses on the Internet will subject them to threats and acts of violence at their homes.”).
21 Hoskins’ experience, in particular, shows the vast overreach of the statute and its potential for
22 abuse: The Legislative Counsel sought to apply the statute to an online discussion forum with a
23 primary audience on the other side of the country, and to a post where the commentator merely
24 copied and pasted the legislators’ addresses—with no commentary that could possibly be deemed
25 threatening—to emphasize the futility of attempts to sensor republication of public information on
26 the Internet.
27 42. Other courts have routinely held unconstitutional the application of statutory
28 schemes that have similarly punished the online publication of publicly available information
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1 about public officials. In Ostergren v. Cuccinelli, for example, the Fourth Circuit held that the
2 First Amendment protected a privacy advocate who posted unredacted Social Security numbers of
3 Virginia legislators and public officials online as part of her criticism of the government’s
4 collection and handling of personal information. 615 F.3d 263, 270–87 (4th Cir. 2010). In
5 Sheehan v. Gregoire, the Western District of Washington reached the same conclusion when
6 invalidating a law broadly prohibiting the dissemination of the “residential address, residential
7 telephone number, birthdate, or social security number” of law enforcement personnel, after the
8 plaintiff had posted such information on his website (www.justicefiles.com) advocating police
9 accountability. 272 F.Supp.2d 1135 (W.D. Wash. 2003). And in Brayshaw v. Tallahassee,
10 another district court struck down as facially unconstitutional a statute that prohibited publishing
11 the “residence address or telephone number” of a law enforcement officer, after plaintiff was
12 arrested for posting such information on “Ratemycop.com.” 709 F.Supp.2d 1244 (N.D. Fla.
13 2010).
14 43. As a result of Defendant’s actions, Publius’ post containing legislators’ addresses
15 and phone numbers was removed from the Internet. Making this already-publicly-available
16 information available in one place through Publius’ blog is central to Publius’ message criticizing
17 the government’s actions. But for Section 6254.21(c) and Defendant’s demand (and the threat of
18 statutory sanctions), Publius would re-post the legislators’ addresses and phone numbers to
19 Plaintiff’s blog, and would leave such information on the Internet.
20 44. Likewise, as a result of Defendant’s actions, Hoskins has modified the content of
21 his online discussion forum, and Defendant has interfered with Hoskins’ ability to provide robust
22 and uninhibited debate on important public issues. Furthermore, Section 6254.21(c) purports to
23 impose on Hoskins an obligation to continuously monitor the forum to ensure that the legislators’
24 contact information is not reposted, in any context or for any purpose, for four years. But for
25 Section 6254.21(c) and Defendant’s demand (and the threat of statutory sanctions), Hoskins would
26 not have removed the legislators’ contact information, and would not undertake any effort to
27 ensure that such information was not reposted on Northeastshooters.com.
28 ///
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1 Applying Section 6254.21(c) To Out-Of-State Actors Violates the Commerce Clause
2 45. The application of Section 6254.21(c) to out-of-state actors like Hoskins violates
3 the so-called dormant Commerce Clause, U.S. Const. art. I, § 8, cl. 3, which prohibits prohibition
4 on state regulation that “unduly burdens interstate commerce and thereby imped[es] free private
5 trade in the national marketplace.” General Motors Corp. v. Tracy, 519 U.S. 278, 287 (1997)
6 (quoting Reeves, Inc. v. Stake, 447 U.S. 429 (1980)). Hoskins is a Massachusetts resident, and
7 operates an online forum that focuses primarily on New England. Yet the Legislative Counsel has
8 demanded that Hoskins remove a post from the forum, and that he “continue to ensure that [the
9 legislators’ contact information] is not reposted” on the forum or any other website maintained by
10 him. Section 6254.21(c) violates the Commerce Clause by regulating speech on the Internet that
11 occurs wholly outside of California’s borders, imposing burdens on interstate commerce that
12 exceed the local benefits of the statute, and subjecting interstate use of the Internet to inconsistent
13 regulation. See, e.g., Am. Booksellers Found. v. Dean, 342 F.3d 96, 102–04 (2d Cir. 2003);
14 PSINet, Inc. v. Chapman, 362 F.3d 227, 239–40 (4th Cir. 2004); Am. Civil Liberties Union v.
15 Johnson, 194 F.3d 1149, 1160–63 (10th Cir. 1999); Ctr. for Democracy and Tech. v. Pappert, 337
16 F.Supp.2d 606, 662–63 (E.D.Pa.2004); Am. Libraries Ass’n v. Pataki, 969 F. Supp. 160, 168–83
17 (S.D.N.Y. 1997).
18 * * *
19 46. An actual and judicially cognizable controversy exists between Plaintiffs and
20 Defendant regarding whether Section 6254.21(c) violates the United States Constitution. Plaintiffs
21 desire a judicial declaration of their rights and Defendant’s duties regarding the constitutionality
22 and enforcement of the statutory provision.
23 47. For the reasons set forth above, Defendant has relied on Section 6254.21(c) to
24 infringe Plaintiffs’ constitutional rights, and the threat of further action continues to impose a
25 substantial burden on those rights.
26 ///
27 ///
28 ///
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1 CLAIMS FOR RELIEF
2 COUNT I: VIOLATION OF 42 U.S.C. § 1983 (FIRST AMENDMENT)
3 48. Plaintiffs incorporate here by reference paragraphs 1 through 47, supra, as if fully
4 set forth herein.
5 49. Defendant, acting under color of state law, has relied on California Government
6 Code section 6254.21(c) to deprive Plaintiffs of rights secured by the First Amendment to the
7 United States Constitution in violation of 42 U.S.C. § 1983.
8 50. California Government Code section 6254.21(c) violates the First Amendment,
9 both on its face and as applied to Plaintiffs.
10 51. Because the takedown requirement is a content-based restriction on protected
11 political speech that republishes truthful information in the public domain, it is presumptively
12 unconstitutional. Reed, 135 S. Ct. at 2226; Florida Star, 491 U.S. at 541.
13 COUNT II: VIOLATION OF 42 U.S.C. § 1983 (COMMERCE CLAUSE)
14 52. Plaintiffs incorporate here by reference paragraphs 1 through 47, supra, as if fully
15 set forth herein.
16 53. Defendant, acting under color of state law, has applied California Government
17 Code section 6254.21(c) in violation of the Commerce Clause, U.S. Const. art. I, § 8, cl. 3, thus in
18 turn violating 42 U.S.C. § 1983.
19 COUNT III: VIOLATION OF 42 U.S.C. § 1983 (47 U.S.C. § 230)
20 54. Plaintiffs incorporate here by reference paragraphs 1 through 47, supra, as if fully
21 set forth herein.
22 55. Defendant, acting under color of state law, has relied on California Government
23 Code section 6254.21(c) to violate Plaintiff Hoskins’ rights under Section 230 of the
24 Communications Decency Act, which “immunizes” him “against liability arising from content
25 created by third parties.” Fair Hous. Council of San Fernando Valley, 521 F.3d at 1162; see 47
26 U.S.C. § 230(c)(1) (no internet service provider “shall be treated as the publisher or speaker” of
27 internet content that was “provided by another.”).
28 56. Because Defendant’s takedown demand is inconsistent with Section 230, it is
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1 foreclosed by the statute. See 47 U.S.C. § 230(e)(3) (“No cause of action may be brought and no
2 liability may be imposed under any State or local law that is inconsistent with this section.”).
3 PRAYER FOR RELIEF
4 Wherefore, Plaintiffs pray for judgment as follows:
5 1. Plaintiffs respectfully request that this Court enter a declaratory judgment stating
6 that California Government Code section 6254.21(c) violates the First Amendment.
7 2. Plaintiff Hoskins respectfully requests that this Court enter a declaratory judgment
8 stating that applying California Government Code section 6254.21(c) to Hoskins’ out-of-state
9 speech violates the Commerce Clause.
10 3. Plaintiff Hoskins respectfully requests that this Court enter a declaratory judgment
11 stating that the Defendant has violated his rights under Section 230 of the Communications
12 Decency Act.
13 4. Plaintiffs respectfully request that this Court enter a preliminary and permanent
14 injunction enjoining enforcement or application of California Government Code section
15 6254.21(c).
16 5. Plaintiffs respectfully requests costs of suit, including reasonable attorneys’ fees
17 under 42 U.S.C. § 1988 and any other applicable law, and all further relief to which Plaintiffs may
18 be justly entitled.
19 Dated: October 31, 2016 /s Eugene Volokh
EUGENE VOLOKH
20 Attorney for Plaintiff
21
22 BENBROOK LAW GROUP, PC
23
24 By /s Bradley A. Benbrook
25 BRADLEY A. BENBROOK
Attorneys for Plaintiff
26
27
28

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