Rulings muddy waters on 1st Amendment

By J. CLARK KELSO

Kelso

It's time once again for a quick look back at a few of the more interesting and important decisions from our state's high court.

This year, I highlight a few First Amendment cases, the courts interpretation of the Personal Responsibility Law of 1998, and the court's re-burial of the "single subject rule."

First Amendment

Before the court were two particularly noteworthy First Amendment cases this year, one involving the always difficult question of what constitutes "commercial speech," and the other involving the constitutionality of California's "Son of Sam" law. Somewhat counterintuitively, the felon's rights of free speech were fully protected, while business' rights of free speech took a substantial beating.

InKeenan v. Superior Court (2002) 27 Cal.4th 413, Frank Sinatra Jr. brought an action under Civil Code §2225, California's "Son of Sam" law, seeking all the proceeds and profits derived from the sale of a story and movie rights based on Sinatra's kidnapping.

Payments for the story and movie rights were to be made to the three defendants who had conspired to kidnap Sinatra. The "Son of Sam" law seeks to prevent felons from exploiting his or her crimes for financial gain while victims of the crime go uncompensated. The defendants challenged the law on First Amendment grounds.

The court unanimously struck down the statute on its face, reasoning that, although the law served the compelling purpose of preventing criminals from economically exploiting their crimes, the law was not narrowly tailored to serve only that purpose.

In particular, the statute confiscated all of a felon's proceeds from speech that included the story of the felony, even though the story of the felony might have been mentioned only in passing and was not the central feature of the speech.

Thus, the court explained, California's statute was significantly overbroad and burdened speech that was unrelated to profiting from one's own crime.

The court's reasoning leaves open the possibility of amending §2225 to narrow its sweep to satisfy constitutional standards, although the drafting challenge presented to the legislature by the court's opinion should not be underestimated.

It will be difficult to thread the needle through the court's First Amendment jurisprudence when, as in this case, the court applied its highest level of constitutional screening, the so-called "strict scrutiny" test.

The decision in Kasky v. Nike Inc. (2002) 27 Cal.4th 939, is a nice contrast to Keenan. In Kasky, the court did not apply strict scrutiny since, according to the court, the type of speech involved was "commercial speech," and commercial speech receives less constitutional protection than the speech at issue in Keenan.

Various newspaper articles and television magazine reports alleged that Nike factory workers overseas were being exposed to physical and verbal abuse and dangerous conditions, and were receiving less than the legal minimum wage.

Nike responded to these stories with press releases, letters to newspapers, letters to university presidents and athletic directors, and in other public relations documents.

Nike also purchased full page advertisements in several newspapers to publicize a report Nike had commissioned which found no evidence of illegal or unsafe working conditions.

The plaintiff, suing on behalf of the general public under California's Unfair Competition Law and False Advertising Law, Business and Professions Code §§17204 and 17535, brought an action for restitution and injunction alleging that Nike had made false statements of fact about its labor practices and working conditions in its public relations campaign.

Nike might have thought that its expressive activities were fully protected by the First Amendment. After all, it was simply attempting to defend its business reputation in a public forum using precisely the same expressive, First-Amendment-protected channels of communication which had been used by Nike's detractors.

However, in a 4-3 decision, the court held that Nike's public relations campaign constituted "commercial speech" and that the content of its speech was therefore subject to the very strict requirements of the False Advertising Law.

The court reached this conclusion in part by utterly ignoring the medium in which Nike and its detractors had chosen to wage their battle. According to the court, it was enough that Nike was a business engaged in selling a product, the intended audience included customers who might purchase the product, and the content related to the product or to Nike's business operations.

The fact that the speech was in the context of a broad-based attack on Nike's business operations, that the criticism of Nike related to important public policy issues regarding workplace standards and the globalization of economic activity, and that Nike responded to the criticism through a public relations campaign rather than through traditional advertising made no difference to the majority.

The court's holding in this case will be of concern to the business community since it creates an unlevel playing field. A business' critics can secure nearly impenetrable protection from legal liability by executing a public relations campaign that triggers the high standards for libel under New York Times v. Sullivan .

By contrast, under the court's interpretation, the targeted business is not permitted to respond in kind without exposing itself to a lawsuit under the False Advertising Law and Unfair Competition Law. The court's holding makes one wonder about the state of our First Amendment jurisprudence when a legal business seems to get less protection for its economically self-interested speech than the speech of a convicted felon who seeks to exploit economically his or her crimes. Common sense seems to be turned on its head here.

Uninsured motorists and premises liability

Civil Code §3333.4, enacted by Proposition 213 as "The Personal Responsibility Act of 1996," provides that an injured person shall not recover non-economic losses "in any action to recover damages arising out of the operation or use of a motor vehicle" when the injured person was the owner of an uninsured vehicle involved in the accident or was a vehicle operator who had not complied with the state's financial responsibility laws. In

Allen v. Sully-Miller Contracting Co. (2002) 28 Cal.4th 222, the court held that §3333.4 applied in a premises liability suit against a private construction company that had negligently left an unmarked bus pad on a public road where the pad was not level with the asphalt surface of the road and, in some places, rose as much as three inches above the road.

The plaintiff, riding an uninsured motorcycle at night, was injured when the motorcycle's tire caught on the elevated lip of the pad during a right-hand turn across the pad, causing the motorcycle to fall. The majority held that §3333.4 was not ambiguous in the context of this fact pattern since, applying a test first formulated in Day v. City of Fontana (2001) 25 Cal.4th 268, 274, the facts demonstrated a "necessary and causal relationship" between the operation of the motorcycle and the accident.

Moreno

Kennard

As Justices Joyce Kennard and Carlos Moreno point out in separate dissents, the extension of the Personal Responsibility Act to a premises liability action against a private contractor seems to go beyond what appears to have been the core purpose of the act to remedy the economic unfairness that occurs when an uninsured motorist recovers damages from an insured motorist for injuries arising out of a motor vehicle accident.

Admittedly, that core purpose appears more in the ballot arguments in support of Proposition 213 than in the statutory language itself, which seems to be fairly clear on first reading and appears to apply no matter what the legal theory of the suit, whether involving a claim of negligent driving or premises liability.

But Justices Moreno and Kennard still have a point because the court had previously decided in Hodges v. Superior Court (1999) 21 Cal.4th 109, that the act did not apply in the context of a product liability suit brought against a car manufacturer for injuries resulting from an accident caused by a defective car.

It is not easy to distinguish Hodges and Allen in a way that makes sense out of the statutory language or the ballot arguments, and the "proximate cause"?). Unfortunately, it appears we will have to wait for more cases to come before the courts with slightly different facts before this gets sorted out.

Single subject roulette

In 1999, the court used the "single subject rule" to strike from the ballot an initiative measure that combined a reduction in legislative salaries with a proposal to shift the power of reapportionment from the legislature to the California Supreme Court.

The court held in Senate of the State of California v. Jones (1999) 21 Cal.4th 1142, that these two logically and functionally separate proposals had been improperly joined together for improper tactical purposes (i.e., logrolling), notwithstanding the argument that both proposals related to "incumbency reform."

The decision in Senate v. Jones raised the possibility that the single subject rule might become a more potent weapon in challenging broad initiative measures that reform large areas of law.

That possibility appears to have vanished with the court's decision this year in Manduley v. Superior Court (2002) 27 Cal.4th 537, where the court upheld the constitutionality of the Gang Violence and Juvenile Crime Prevention Act of 1998, enacted by Proposition 21.

Among other things, the act gives prosecutors the discretion to bring charges against minors 14 years of age and older directly in criminal court without a prior determination by the juvenile court that the minor is unfit for a disposition by the juvenile court (the court upheld this transfer of power to prosecutors against equal protection, due process and separation of powers arguments).

The act also contained provisions dealing with other aspects of the juvenile justice system, provisions dealing with gang activity, and provisions adding certain crimes to the list of violent and serious felonies that qualify as strikes under the Three Strikes law.

In order to reject the single subject challenge, the court had to identify the overall purpose of the law as "addressing violent crime committed by juveniles and gangs" and then engage in something of a sleight of hand with respect to the Three Strikes provisions by arguing that juveniles and gang members often commit the felonies that were being added to the Three Strikes law (including such things as exploding a destructive device causing bodily injury, throwing acid or a flammable substance, assault with a deadly weapon, assault on a peace officer or firefighter, continuous sexual abuse of a child and terrorist threats, among other things).

This is just as much a "logroll" as the initiative struck down in Senate v. Jones , and we are left with the sense that the decision in Senate v. Jones was largely aberrational. Initiative writers can now get back to their word processors free from substantial worry about the single subject rule.

J. Clark Kelso is a Professor of Law and Director of the Capital Center for Government Law & Policy at the University of the Pacific McGeorge School of Law.