DANIEL E. LUNGREN, Attorney General of the State of California, et al.,
Defendants.
No. C 95-0440-FMS
MEMORANDUM OF DECISION
Issue Presented
Do Cal. Penal Code Section 132.5 and Cal. Civil Code Section 1669.7 violate the free speech and free press guarantee of the First Amendment to the United States Constitution and Article I, Section 2(a) of the California Constitution?[FN1]
Introduction
On August 7, 1995, at the conclusion of oral argument in this matter, the Court issued its ruling from the bench, finding Cal. Penal Code Section 132.5 and Cal. Civil Code Section 1669.7 to be unconstitutional on their face. At that time, the Court permanently enjoined defendants, their agents, servants, employees and all others acting in concert or participating with defendants from enforcing Cal. Penal Code Section 132.5 and Civil Code Section 1669.7. This Memorandum of Decision serves to set forth more fully the basis for the Court's August 7, 1995 ruling.
In September of 1994, California Governor Pete Wilson signed two legislative bills, which added section 132.5 to the Cal. Penal Code and section 1669.7 to the Cal. Civil Code. This legislation prohibits witnesses of crimes from selling their stories for a designated period of time.
Plaintiff California First Amendment Coalition ("CFAC") is a non-profit organization dedicated to protecting the rights to free expression of California's journalists and citizens. CFAC's membership consists of seven media professional associations and over two hundred individual news organizations. On February 7, 1995, CFAC, on behalf of its members, filed a complaint seeking a preliminary and permanent injunction and reasonable attorneys' fees and costs. The complaint names, inter alia, the California Attorney General and the District Attorney of San Francisco County as defendants. On May 18, 1995, CFAC filed this motion for a preliminary and permanent injunction on the grounds that Sections 132.5 and 1669.7, on their face, violate the free speech provisions of the United States and California Constitutions. Plaintiff asks the Court to combine its request for a preliminary and permanent injunction and enter judgment in its favor pursuant to Fed. R. Civ. P. 65(a)(2). Defendants ("The State" or "Defendants") ask the Court to deny plaintiff's motion for injunctive relief, to dismiss the complaint, and to enter judgment in defendants' favor.[FN2]
Background
In the wake of the enormous pre-trial publicity preceding the trial in the O.J. Simpson case, California's legislature passed Cal. Penal Code Section 132.5 ("Section 132.5") and Cal. Civil Code Section 1669.7 ("Section 1669.7").[FN3] Section 132.5 makes it a crime for a person to receive any payment or benefit for providing information about what he or she knows or reasonably should know is a crime, or where that person knows or reasonably should know that he or she may be called as a witness in a criminal prosecution. Section 1669.7 renders contracts in violation of Section 132.5 void and authorizes the Attorney General or district attorney of the county in which a violation occurs to bring a civil action to enjoin the enforcement of such contracts.
Section 132.5 was enacted to protect three interests: "the right of every accused person to a fair trial, the right of the people to due process of law, and the integrity of judicial proceedings" Cal. Penal Code Section 132.5(a).[FN4] State Senator Quentin L. Kopp, one of the legislation's sponsors, cited the following incident, which, in large part, gave rise to sections 132.5 and 1669.7:
The obvious motivation for this urgent legislation is the recent O.J. Simpson debacle, where both witnesses and potential jurors appear tainted by the immense media publicity surrounding the case. For example, a potentially critical prosecution witness, Jill Shively, who received $5,000 from media tabloid "Hard Copy" and whose testimony places the suspect near the scene of the crime at about the time of the slayings, will not be called to testify because of lack of credibility . . . .
State Sen. Quentin Kopp's Aug. 1, 1994 Memorandum to Members of the Senate and Assembly, Declaration of Daniel
G. Stone in Support of Attorney's General's Opposition, Ex. A.
In addition, Speaker of the California Assembly Willie Brown, Jr, author of the challenged legislation, offered his comments on why he believes compensated speech impedes the opportunity for a fair trial:
First, it compounds the problem of pretrial publicity, since there are clearly some people who would not talk to the press without payment. Second, and more importantly, it intrudes upon the judicial process, because it creates an incentive to lie. That kind of incentive can be devastating in a trial. A witness who tells the truth, but admits to being paid for his or her story, may lose credibility in the eyes of the jury . . . . When such [juror and witness] participation is linked to the receipt of large sums of cash, the very integrity of the judicial process is at risk.
Senate Committee on Judiciary, Report on Assembly Bill 501, Declaration of Richard S. Hoffman in Support of Plaintiff's Motion, Ex. 1, p. 4.
In challenging the recent legislation, plaintiff has submitted affidavits from various CFAC members detailing how the statutes have or would have impacted their ability to communicate. For example, CFAC offers the declaration of Dannie M. Martin, a former convict of Lompoc penitentiary who wrote a series of prize-winning essays detailing prison life. In one such article, "AIDS: The View From a Prison Cell" (The Chronicle, Aug. 3, 1986) Martin described his first-hand knowledge of homosexual sex and illicit drug use by an HIV positive prisoner. Martin submits that the payments he received for such articles, which often contained descriptions of penal code violations, would have been illegal under Section 132.5, and if the statute had been in effect at the time, it is "almost certain that many of [my] . . . columns would not have been written." Declaration of Dannie M. Martin in Support of Plaintiff's Motion, p. 4. CFAC has also submitted declarations from other journalists, publishers and producers, in which they explain how they routinely compensate their sources of information by paying for a variety of expenses, including meals, transportation and lodging. They also reveal how, in order to obtain information from reluctant witnesses, they may offer their sources the "benefit" of confidentiality. See e.a., Declarations of Todd J. Merriman and Bruce Pottash. These declarants contend that they are presently "chilled and intimidated" by the recent legislation from offering any such "benefits" to individuals who may have witnessed a crime.
In its motion, CFAC argues that the challenged statutes are content-based regulations and fail the Supreme Court's strict scrutiny test because they are not necessary and narrowly tailored to serve a compelling state interest. CFAC also attacks the statutes on the grounds that they are unconstitutionally vague. Defendants submit that the statutes are content-neutral regulations but, even if they are deemed to be content-based, they satisfy the strict scrutiny test. Defendants also argue that because CFAC is "facially" challenging these statutes, and not making an "as applied" challenge, the Court must disregard plaintiff's "hypothetical" and "speculative" applications of the statutes. Discussion
A. The Legal Standard
To grant a permanent injunction the Court must decide three issues: 1. whether plaintiff has prevailed on the merits; 2. whether the balance of the equities favors injunctive relief; and 3. what type of relief is appropriate. LaDuke v. Nelson, 762 F.2d 1318, 1330 (9th Cir. 1985), modified on other grounds, 796 F.2d 309 (9th Cir. 1986) A permanent injunction should be issued where plaintiff has shown a "'likelihood of substantial and immediate irreparable injury and the inadequacy of remedies of law."' Id. at 1330 (citation omitted).
B. CFAC'S Facial Challenge Permits Court to Consider Statutes' Actual Chilling Effect.
As a threshold matter, the Court must address defendants' contention that because CFAC brings a facial challenge, the Court may not consider plaintiff's hypothetical and speculative applications of the statute. See Defendants' Opposition, p. 8 ("Court may not properly consider, at this juncture, plaintiff's various 'What if' arguments--such as 'What if some prosecutor were to charge a freelance journalist under section 132.5? . . . 'What if it were applied to the mere reimbursement of a witness's travel costs or telephone charges"'). Plaintiff does not dispute that it mounts only a facial challenge but argues that it is proper for the Court to consider evidence regarding the impact the statutes have on CFAC members.
Defendants' argument is without merit. In United States v. National Treasury Employees Union, ("NTEU") 115 S. Ct. 1003 (1995), the Supreme Court struck down a regulation banning all federal employees from receiving fees for making speeches or writing articles. In doing so, the Supreme Court relied on evidentiary submissions which detailed how the statutes impacted members of the plaintiff class. See NTEU at 1010 ("The record contains a number of affidavits describing respondents' past activities that the honoraria ban would now prohibit."). As here, while there were no enforcement proceedings pending or threatening in NTEU, the evidence regarding the statute's impact was relevant to demonstrate its chilling effect. See Secretary of State of Maryland v. Joseph H. Munson Co., 104 S. Ct. 2839, 2847 (1984) (facial challenges to overbroad statutes are allowed to prevent "the statute from chilling the First Amendment rights of other parties not before the court."). CFAC's challenge is not based on "imagined hypothetical prosecutions" but on the actual effect this legislation is having on its members' freedom of expression. [FN5] See also Simon & Schuster. Inc. v. Members of the N.Y. State Crime Victims Bd., 112 S. Ct. 501, 511 (1991) (Court considered effect "Son of Sam" law would have had on authors such as Malcolm X, Jesse Jackson, Henry Thoreau, and Martin Luther King, Jr.).
C. The Statutes are Content-Based Regulations
Under the Supreme Court's ruling in Simon & Schuster 112 S. Ct. at 501 the statutes are content-based regulations. In that case, the Supreme Court held that New York's "Son of Sam" law, which required that income from a criminal's literary works describing his crime be deposited in an escrow account for his victims, was a content-based statute. "It singles out income derived from expressive activity for a burden the State places on no other income, and it is directed only at works with a specified content." Id. at 508. As in Simon & Schuster, the statutes herein target only speech relating to crimes. See Section 132.5(b)&(c) (forbids compensated speech relating to "information obtained as result of witnessing the event or occurrence or having personal knowledge of the facts" that the witness "knows or reasonably should know is a crime.").
Defendants argue that Sections 132.5 and 1669.7 are not content-based because they only restrict compensation for speech, not the speech itself. This argument was squarely rejected by the Simon & Schuster Court: a "statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech." Id. at 508. See also NTEU at 1014 ("[p]ublishers compensate authors because compensation provides a significant incentive toward more expression. By denying respondents that incentive, the honoraria ban induces them to curtail their expression . . .").
The State also argues that the statutes are not content-based because they were enacted not "to prevent speech, but only to preserve and protect the criminal justice system." Opposition, at 9. Again, the Supreme Court has addressed and rejected such an argument:
The Board next argues that discriminatory financial treatment is suspect under the First Amendment only when the legislature intends to suppress certain ideas. This assertion is incorrect; our cases have consistently held that 'illicit legislative intent is not the sine qua non of a violation of the First Amendment'. . proper governmental concerns can restrict unduly the exercise of rights protected by the First Amendment.
Simon & Schuster, 112 S. Ct. at 509 (citations omitted).
Finally, defendants argue that the challenged statutes should be construed as content-neutral time, place and manner regulations because they are directed at the secondary effects of speech, not the speech itself. See Renton v. Playtime Theatres. Inc., 106 S. Ct. 925 (1986), reh'g denied, 106 S. Ct. 1663 (1986) (ordinance prohibiting adult theaters from locating within 1,000 feet of residential areas held to be content-neutral.). The question of whether or not these statutes are content-based raises an interesting question in lieu of the Supreme Court's footnote in Simon & Schuster, 112 S. Ct. at 511 ("[b]ecause the Son of Sam law is so overinclusive, we need not address the Board's contention that the statute is content neutral . . . ."). Considering, however, the express holding of the Simon & Schuster Court that "[t]he Son of Sam law is a . . . content-based statute," this Court presumes that the Supreme Court meant what it said. Moreover, as the Son of Sam law, the statutes herein are so overinclusive that they would fail to meet any constitutional standard, regardless of whether they were deemed content-neutral or content-based.
In sum, because these statutes are directed at speech with a particular content, they must pass muster under the Supreme Court's strict scrutiny test.
D. Sections 132.5 and 1669.7 Are Not Necessary and Narrowly Tailored to Serve a Compelling State Interest
When a statute imposes a financial disincentive to publish works with a particular content, "'the State must show that its regulation is necessary to serve a ,compelling state interest and is narrowly drawn to achieve that end."' Simon & Schuster, 112 S. Ct. at 509 (quoting Arkansas Writers' Project, Inc. v. Ragland, 107 S. Ct. 1722, 1728 (1987).
Two fundamental principles guide the inquiry here. First, these statutes impose a prior restraint on speech, which is "the most serious and the least tolerable infringement on First Amendment rights." Nebraska Press Asso. v. Stuart, 96 S. Ct. 2791, 2803 (1976). Second, the speech targeted by Sections 132.5 and 1669.7 is at the core of protected expression. As the Supreme Court made clear in Cox Broadcasting Corp. v. Cohn, 95 S. Ct. 1029, 1045 (1975), "the commission of crime, prosecutions resulting from it, and judicial proceedings arising from the prosecutions . . . are without question events of legitimate concern to the public and consequently fall within the responsibility of the press to report the operations of government." Keeping these two underlying principles in mind, the Court turns to the strict scrutiny test.
1. The State's Interests
The State asserts three interests which are served by Sections 132.5 and 1669.7: "preserving the integrity of the criminal justice process, protecting the fundamental right of citizens to a fair trial, and ensuring the right to adduce credible evidence through the testimony of witnesses." Opposition, pp. 11-12. The Court addresses each in turn.
a. Integrity of the judicial process
Insofar as this interest is focused on possible erosion of public confidence in the courts, the Supreme Court has repeatedly found that a state's interest in maintaining "the institutional integrity of its courts," is not sufficiently compelling to justify wholesale burdens on speech. See Landmark Communications Inc. v. Virginia, 98 S. Ct. 1535, 1543 (1978) (state's interest in maintaining the "institutional reputation of the courts" insufficient to justify punishment of speech); Bridges v. California, 62 S. Ct. 190 (1941) (statute restricting speech to preserve fair and orderly administration of justice struck down); and Wood v. Georgia, 82 S. Ct. 1364 (1962) (statute restricting speech to preserve fair administration of justice struck down). The State cites only one case, Cox v. Louisiana, 85 S. Ct. 476 (1965), reh'g denied, 85 S. Ct. 879 (1965), for its assertion that a compelling state interest exists in insuring the appearance of impartiality in its criminal justice system. The statute at issue in Cox, however, was aimed primarily at conduct, namely picketing, and was found to be a content-neutral time, place, and manner regulation; therefore, the State did not need to offer a compelling state interest.
Because the State's asserted interest in preserving the integrity of the judicial process has been deemed not sufficiently compelling, the Court need not decide whether the statutes are narrowly tailored to serve this interest. See Simon & Schuster, 112 S. Ct. at 511.
b. Insuring a Fair Trial
CFAC does not dispute that the State has a compelling interest in insuring the fairness of criminal trials. See Plaintiff's Memorandum, p 18; U.S. Const. amend VI; and Cal. Const. Art. 1, Section 15.[FN6]
c. Maintain Credibility of Witnesses
In its opposition, the State claims that the statutes are designed in part "to adduce credible evidence through the testimony of witnesses." The Court has difficulty appreciating how this interest differs from the State's ultimate interest in insuring a fair trial and analyzes it as one element of the State's core interest in guaranteeing a fair trial.
2. The Statutes are Not Necessary to Advance the State's Interest in Insuring a Fair Trial
The State claims that Sections 132.5 and 1669.7 are necessary to promote a fair trial because compensated witnesses are more likely to exaggerate or lie, their testimony will appear tainted in the eyes of the jury, and they can be easily discredited during trial.
a. Alternative, Less Restrictive Means Already Exist To Sufficiently Promote State's Interest
The Supreme Court has repeatedly struck down speech restrictive laws when existing state law sufficiently provided a means of achieving the State's compelling interest. In Meyer v. Grant, 108 S. Ct 1886 (1988), the Court struck down a statute which banned payments to circulators of initiative petitions, finding that the State had failed to demonstrate that such a ban was necessary to promote its interest in protecting the integrity of the initiative process. Colorado had argued that compensation might tempt a circulator from disregarding his duty to verify the authenticity of signatures on the petition. The Court rejected this argument because the State had provided "[n]o evidence to support that speculation" and Colorado already had several provisions in place to "deal expressly with the potential danger that circulators might be tempted to pad their petitions with false signatures . . risk of improper conduct . . . ." Id. at 1894-95. See also Riley v. National Federation of the Blind of North Carolina, 108 S. Ct. 2667, 2676 (1988) (in holding unconstitutional statute which limited professional fundraisers' fees, Court found sufficient mechanisms existed to combat fraud); and Butterworth v. Smith, 110 S. Ct. 1376, 1382 (1990) (in striking down statute which prohibited witnesses from ever disclosing testimony given before grand jury, Court found State's interest in preventing subornation of witnesses adequately served by criminal penalties for perjury and tampering with witnesses.).
As in Meyer, Riley and Butterworth, California has sufficient non-speech restrictive safeguards in place to serve its interest. Well before the enactment of Sections 132.5 and 1669.7, California's criminal courts employed a myriad of non-speech restrictive mechanisms to minimize and discourage witness fabrication. California's statute books contain laws banning perjury (Cal. Penal Code Section 118), subornation of perjury (Cal. Penal Code Section 127), and the bribing of witnesses (Cal. Penal Code Section 138). In addition, the oath procedure (Cal. Evid. Code Sections 165, 710), witness competency requirements (Cal. Evid. Code Sections 700-704) and the prospect of cross-examination (Cal. Evid. Code Section 761), promote truthful and accurate testimony by witnesses in criminal cases. Similarly, the State's concern that jurors will be unable to assess the credibility of a compensated witness is safeguarded by Cal. Evid. Code Sections 761, 780, and 785, which allow for the cross-examination of all witnesses in criminal cases. California's Evidence Code also permits the introduction of evidence regarding bias and requires instructions to the jury on how to evaluate a witness' credibility. See 1 CALJIC Sections 2.13, 2.20-24 (jury instructions on how to evaluate credibility of witnesses). California's courts have previously recognized the effectiveness of such procedures. See Sun Co. v. Superior Court of San Bernardino, 105 Cal. Rptr. 873, 884 (1973) (striking down pre-trial ban on disclosure of witnesses' names in interest of insuring a fair trial because "sufficient legal safeguards presently exist to assure the defendant of a fair trial.").
Moreover, as in Meyer, the State's assertion that witness compensation has a deleterious effect on witnesses in criminal cases is unsupported by the record, save the one example of Jill Shively, a witness in the o.J. Simpson case who was not called to testify after she had been paid $5,000 by a tabloid .[FN7] See NTEU 115 S. Ct at 1017 ("[w]hen the Government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more than simply posit the existence of the disease sought to be cured . . . It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.") (quotation omitted).
Defendants argue that the above-cited safeguards are inadequate to serve the State's goal because, once a witness has been paid for his story, the damage to his testimony/credibility has already been done. According to the State, it is because a witness' credibility may be attacked on the stand and "because juries may discredit and reject evidence because of witnesses' perceived bias or perceived financial interests in the testimony," that the legislation is necessary. Opposition, p. 24 (emphasis in original). In making this argument, however, the State modifies its asserted interest from that of insuring a fair trial to one of avoiding the inconvenience of addressing the issue of witness compensation. This latter interest is hardly compelling. While it would undoubtedly be more convenient if witnesses were not compensated for their speech prior to trial, "the First Amendment does not permit the State to sacrifice speech for efficiency." Riley, 108 S. Ct. at 2676.
The State, citing Nebraska Press Asso. v. Stuart, 96 S. Ct. 2791 (1976) and Gentile v. State Bar of Nevada, 111 S. Ct. 2720 (1991) next argues that these statutes should be deemed necessary because the First Amendment rights of criminal trial participants may be restricted to a greater degree to protect a defendant's Sixth Amendment right to a fair trial. Ironically, the cases defendants cite for this proposition, reject the blanket, categorical approach taken by California's legislature. The Nebraska Press Court held that before any prior restraint on the rights of trial participants could be justified, the State must meet "the heavy burden of demonstrating, in advance of trial, that without prior restraint a fair trial will be denied." Id. at 2807-08. In Gentile, the ethical rules of the Nevada State Bar prohibited lawyers from making extrajudicial statements which have a "substantial likelihood of materially prejudicing" an adjudicative proceeding. Recognizing that lawyers are subject to special regulation by the bodies that license the practice of law, Chief Justice Rehnquist, writing for the majority, held that an attorney's speech could be so regulated. An unanimous Court, however, found that a "substantial likelihood" of "material prejudice" must be demonstrated before such a speech restriction could be justified. Id. at 2745. Section 132.5 contains no such standard. California's reliance on Nebraska Press and Gentile is therefore misplaced.
b. The Statutes Are Substantially Overbroad
As a means of insuring the fairness of a criminal trial, the challenged statutes are significantly overinclusive. The legislation restricts speech relating to "crimes" regardless of whether there will ever be a trial or even an indictment in the matter. As CFAC points out in its brief, the vast majority of crimes go unprosecuted and, of those that are prosecuted, few are tried. See Memorandum, p. 21, fn 7. Sections 132.3 and 1669.7, however, inexplicably restrict speech in all such cases. The State's asserted interest in insuring a fair trial cannot be implicated in cases where there will be no trial.
The statutes also bar receipt of all payments or benefits, no matter how small. The witness who receives $50 for a meal and cab fare would therefore be covered by the legislation. In their declarations, CFAC's members have expressed a realistic concern that non-monetary "benefits," such as insuring witness anonymity, would also be barred by the statute. It is difficult to understand how such de minimus benefits would have a deleterious effect on a witness' credibility at trial.
The statutes also provide that a witness may not be paid for any information relating to a crime. Thus, for example, information which is undisputed, inadmissible, or immaterial and would therefore have no bearing on a trial's fairness, would be regulated. Contrast Cal. Penal Code Section 118 (California's perjury statute bars only willful deceit when the misstatement is "material" to outcome of the proceeding.)
As in Simon & Schuster, 112 S. Ct. 501, "these two provisions combine to encompass a potentially very large number of works." Id. at 511. CFAC has submitted a list of acclaimed works which would have been barred had these statutes been in effect at the time and place of publication. For instance, books by Watergate participants John Dean (Blind Ambition) and John Erlichman (Witness to Power) could not have been published until the Watergate prosecutions had reached "final judgment." Works by citizens engaged in civil disobedience would have been illegal if they discussed the author's contemporaneous criminal activities. See e.g., Martin Luther King Jr's Why We Can't Wait. See also Affidavit of Lisa Drew, Vice President of Simon & Schuster division (cites numerous works which would have been illegal). As these examples illustrate, the challenged statutes reach an wide range of works that have no bearing on the fairness of a criminal trial.
The State contends that the statutes are not as overbroad as the Son of Sam law because, unlike New York's law, these regulations only restrict speech for a limited period of time. See Section 132.5(f) (restriction does not apply after one year has lapsed since criminal act and, if prosecution commenced, until judgment entered). This time limit does not save the statutes. In Bridges v. California, 62 S. Ct. 190, 196-7 (1941), the Supreme Court rejected the contention that a restriction on press coverage was less onerous because it was limited to the pendency of the trial:
It must be recognized that public interest is much more likely to be kindled by a controversial event of the day than by a generalization, however penetrating, of the historian or scientist. Since they punish utterances made during the pendency of a case, the[y] produce their restrictive results at the precise time when public interest in the matters discussed would naturally be at its height . . . . This unfocused threat [of sanctions] is, to be sure, limited in time, terminating as it does upon final disposition of the case. But this does not change its censorial quality. An endless series of moratoria on public discussion, even if each were very short, could hardly be dismissed as an insignificant abridgment of freedom of expression.
See also Nebraska Press, 96 S. Ct. at 2803 (rejecting argument that because court order postponed but did not prohibit press coverage it was lesser intrusion on speech) .[FN8]
In sum, because the State's asserted need for this legislation appears to be based on no more than speculation and because sufficient safeguards already exist to serve its interest, Sections 1669.7 and 132.5's blanket, prior bans on speech are not necessary to serve the State's interest. Having found that the challenged legislation is neither necessary nor narrowly tailored to serve a compelling state interest, the Court must decide whether injunctive relief is appropriate.
C. Injunctive Relief Is Warranted Here
The Supreme Court has stated that "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 96 S. Ct. 2673, 2690 (1976). As the declarations submitted by CFAC demonstrate, its members' ability to exercise their First Amendment rights is impaired each day that these statutes remain on the books. Because no remedy of law would be adequate to protect plaintiff's First Amendment rights, a permanent injunction is appropriate.
Conclusion
At oral argument, counsel for the State argued that the statutes could be salvaged if the Court were to narrowly construe them. [FN9] Because the statutes' defects are so many and so basic, however, the Court is unable to construe the legislation narrowly without engaging in "judicial legislation." This the Court declines to do. See NTEU 115 S. Ct. at 1019 ("[o]ur obligation to avoid judicial legislation also persuades us to reject the Government's second suggestion - that we modify the remedy by crafting a nexus requirement for the honoraria ban.").
For the above reasons, on August 7, 1995, the Court GRANTED plaintiff CFAC's motion for a permanent injunction. Plaintiff shall submit an accounting in support of its motion for costs and attorneys' fees by September 4 1995. Defendants shall submit their opposition, if any, no later than September 18, 1995. The Clerk of the Court shall close the file.
SO ORDERED.
DATED: August 9 , 1995
/s/ FERN M. SMITH
United States District Judge
==========FOOTNOTES==========
[1] The First Amendment provides that "Congress shall make no law makes that prohibition applicable to the states. Article I, section 2(a) of the California Constitution provides that "[e]very person may speak, write and publish his or her sentiments on all subjects .... A law may not restrain or abridge liberty of speech or press." "The right to speak freely is more broadly construed under the state Constitution than under the First Amendment." People v. Tisbert, 14 Cal. Rptr.2d 128, 130 (1992). Because the principles used in assessing the constitutionality of a statute under the U.S. Constitution are virtually identical to those used in analyzing a law under California's Constitution, the Court analyzes the statutes under both Constitutions simultaneously.
[2] 0n May 30, 1995, the San Francisco defendants, District Attorney Arlo Smith, Sheriff Michael Hennessey, and Chief of Police Anthony Ribera submitted their response to plaintiff's motion in which they deferred to the Attorney General's defense of this action.
[3] Section 132.5 reads, in relevant part, as follows:
(b) A person who is a witness to an event or occurrence that he or she knows, or reasonably should know, is a crime or who has personal knowledge of facts that he or she knows, or reasonably should know, may require that person to be called as a witness in a criminal prosecution shall not accept or receive, directly or indirectly, any payment or benefit in consideration for providing information obtained as result of witnessing the event or occurrence or having personal knowledge of the facts.
(c) Any person who is a witness to an event or occurrence that he or she reasonably should know is a crime shall not accept or receive, directly or indirectly, any money or its equivalent in consideration for providing information obtained as a result of his or her witnessing the event or occurrence . . . .
(e) A violation of subdivision (b) is a misdemeanor punishable by imprisonment for a term not exceeding six months in a county jail, a fine not exceeding three times the amount of compensation requested, accepted, or received or contracted for by the person.
(f) This section does not apply if more than one year has elapsed from the date of any criminal act related to the information that is provided under subdivision (b) or (c) unless prosecution has commenced for that criminal act. If prosecution has commenced, this section shall remain applicable until the final judgment in the action.
(g) This section does not apply to any of the following circumstances:
(1) Lawful compensation paid to expert witnesses, investigators, employees, or agents by a prosecutor, law enforcement agency, or an attorney employed to represent a person in a criminal matter.
(2) Lawful compensation provided to an informant by a prosecutor or law enforcement agency.
(3) Compensation paid to a publisher, editor, reporter, writer, or other person connected with or employed by a newspaper, magazine, or other publication or a television or radio news reporter or other person connected with a television or radio station, for disclosing information obtained in the ordinary course of business.
(4) Statutorily authorized rewards offered by governmental agencies for information leading to the arrest and conviction of specified offenders.
(h) For purposes of this section, "information" does not include a photograph, videotape, audiotape, or any other direct recording of events or occurrences.
[4] Section 132.5(a) contains the following legislative findings: (a) The Legislature supports and affirms the constitutional right of every person to communicate on any subject. This section is intended to preserve the right of every accused person to a fair trial, the right of the people to due process of law, and the integrity of judicial proceedings. This section is not intended to prevent any person from disseminating any information or opinion. The Legislature hereby finds and declares that the disclosure for valuable consideration of information relating to crimes by prospective witnesses can cause the loss of credible evidence in criminal trials and threatens to erode the reliability of verdicts. The Legislature further finds and declares that the disclosure for valuable consideration of information relating to crimes by prospective witnesses creates an appearance of injustice that is destructive of public confidence.
[5] Defendants rely primarily on Tobe v. City of Santa Ana, 40 Cal. Rptr. 2d 402 (Cal.1995) to argue that the Court should reject CFAC's proffered evidence. The challenged statute in Tobe, however, did not implicate the First Amendment and any concerns regarding the chilling effect on protected expression were not at issue. See Tobe, 40 Cal. Rptr.2d at 417, fn. 15. Defendants themselves concede that "[w]ith respect to a claim that the state laws are facially overbroad and/or vague, and therefore sweep in a substantial amount of protected First Amendment conduct, a plaintiff is given somewhat more leeway to rely on hypothetical applications of the statute to third persons." opposition, p. 9, fn. 9 (emphasis in original). As discussed above, this case involves just such a facial attack.
[6] The State attempts to distinguish this case from the Supreme Court's holding in Simon & Schuster by arguing that the State's interest is more compelling because it implicates a constitutional concern (the Sixth Amendment), while New York's interest did not (providing restitution for crime victims). Even assuming arguendo that the interest here is more compelling than the one in Simon & Schuster, this does not alter the Court's analysis under the strict scrutiny test, which, once a compelling interest is found, turns to whether the means used are necessary to achieve that government interest. It is the second part of that test, not the first, which the State fails to satisfy.
[7] The Court further questions the State's alleged "need" for these provisions when expert witnesses and paid government informants appear regularly before juries. The Court does not understand how a jury can adequately assess the paid witness' testimony when the witness is an expert or a paid governmental informant but cannot do so when the witness receives compensation from a news organization. While this argument goes to the statutes' underinclusiveness, which the Court does not address, it is raised here merely to demonstrate why the State's claim that the statutes are necessary is problematic.
[8] Because the Court has found that these statutes are substantially overbroad, it need not address CFAC's persuasive arguments that the statutes are also underinclusive and vague.
[9] For example, counsel suggested that the Court could rule that the laws do not apply to freelance journalists, to de minimus compensation, to rewards by private third parties, to offers of anonymity and confidentiality, or to defendants.
