LOOSE CANNON: Report In Opposition To The Confirmation Of Janice Rogers Brown To The United States Court Of Appeals For The DC Circuit

Free Speech and Association

Brown’s opinions in the important area of free speech are troubling on a number of levels. These cases illustrate Brown’s tendency to rule in favor of corporations and seek to provide broad protections for corporate speech, while sometimes giving short shrift to the First Amendment rights of average citizens. Her vigorous support of strong legal protections for even false and misleading corporate speech is even more disturbing when contrasted with her willingness to enforce a very broad anti-gang injunction severely restricting the ability of Latino youth who were alleged to be gang members to gather in certain neighborhoods.

Kasky v. Nike, 45 P.3d 243 (Cal. 2002), cert. dismissed as improvidently granted, 123 S.Ct.

California resident Marc Kasky sued Nike and several of its officers on behalf of the public. His lawsuit alleged that Nike had lied about the conditions of workers employed in overseas factories to produce Nike products. The Nike statements about which Kasky complained followed the publication of stories in a number of media outlets about abusive conditions confronted by Nike’s overseas workers asserting that Nike’s workers were paid less than applicable minimum wage laws required, forced to work overtime even when it exceeded the maximums set by local law, subjected to verbal, physical and sexual mistreatment, and exposed to various occupational health hazards. In response, Nike officials made numerous statements denying mistreatment of overseas workers and touting Nike’s record in protecting overseas employees. Kasky’s lawsuit asserted that Nike’s statements were false and misleading and that they therefore constituted unfair competition and false advertising.

The primary issue in the case turned on whether or not Nike’s statements were commercial speech, since commercial speech is entitled to less constitutional protection than noncommercial speech. While the lower courts held that Nike’s statements were noncommercial speech subject to strict protections, the California Supreme Court reversed and found that Nike’s statements constituted commercial speech, clearing the way for Kasky’s lawsuit to continue. In so doing, the court established a new test to determine whether speech is commercial for the purpose of deciding whether or not it is subject to statutes prohibiting false advertising and commercial deception.

Brown dissented in a strongly worded and often sarcastic opinion (complete with references to the Harry Potter children’s books) which was very critical of Supreme Court jurisprudence on the subject of commercial speech. Her opinion revealed that her chief concern was protecting speech by corporations. Relying on precedent that the majority pointed out had been handed down three decades before the development of modern commercial speech jurisprudence, Justice Brown disagreed with the majority that Nike’s speech was commercial. She argued instead that Nike’s labor practices were themselves a matter of public concern and thus Nike’s mailings and other speech on the subject should have been protected even if false. Finally, Justice Brown also opined that the Supreme Court should abandon its current test that distinguishes between commercial and noncommercial speech and should expand the contexts in which corporations could make false or misleading representations with no legal ramifications at all.

In response, Justice Kennard, writing for the majority wrote:

Sprinkled with references to a series of children’s books about wizardry and sorcery, Justice Brown’s dissent itself tries to find the magic formula or incantation that will transform a business enterprise’s factual representations in defense of its own products and profits into noncommercial speech exempt from our state’s consumer protection laws. As we have explained, however, such representations, when aimed at potential buyers for the purpose of maintaining sales and profits, may be regulated to eliminate false and misleading statements because they are readily verifiable by the speaker and because regulation is unlikely to deter truthful and nonmisleading speech. 45 P.3d at 262. T
The Supreme Court initially accepted the decision for review, but dismissed certiorari as improvidently granted in 2003. Brown listed her dissent in Nike as one of her ten most significant opinions.

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Intel Corporation v. Hamidi, 71 P.3d 296 (Cal. 2003).

The Court majority in this case declined to extend the common law tort of trespass to chattels to include e-mail communications from a former Intel employee to current employees which did not damage or impair the functioning of the computer system. Former Intel employee Hamidi had sent approximately six messages criticizing Intel’s employment practices to numerous Intel employees, although he removed any employee from his list who so requested. Based on its objection to the contents of Hamidi’s messages, although employees were allowed to make other reasonable non-business use of the system, Intel sought an injunction against the messages by Hamidi. The court majority ruled that there was no proper legal basis for such an injunction, and also noted the concern that state court imposition of an injunction against speech in such a lawsuit would be “state action that must comply with First Amendment limits.” 71 P.3d at 311.

Despite her claim in Aguilar, supra, that an injunction against racially discriminatory harassing speech in the workplace would violate the First Amendment, Brown dissented in Hamidi and argued that the requested injunction was proper, based on Hamidi’s alleged trespass on Intel’s “property” and the First Amendment principle of “the right not to listen.” Id. at 318. She accused the majority of “antipathy toward property rights.” Id. at 314. As the majority explained, however, the actual intended recipients of Hamidi’s messages were Intel employees, there was no evidence that Hamidi sent messages to any unwilling employees who did not want to listen, and Brown’s property rights arguments suffered from “overreliance on metaphor and analogy” and ignored the fact that “Intel objected not because of an offense against the integrity or dignity of its computers,” but because of its objections to the messages’ contents. Id. at 312, 310 n.7.

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Keenan v. Superior Court, 40 P.3d 718 (Cal. 2002), cert. denied, 123 S.Ct 94 (2002).

In 1963, Barry Keenan and Joeseph Amsler, conspiring with John Irwin, kidnapped Frank Sinatra, Jr. and demanded and were paid a ransom by Sinatra’s father. All three men were tried and convicted of kidnapping. Eventually, Keenan was interviewed by Peter Gilstrap, a reporter for a tabloid magazine called the New Times, and a story was publishe entitled “Snatching Sinatra.” It was also reported in other publications that Columbia Pictures had negotiated a deal for the movie rights for “Snatching Sinatra.” In 1998, Sinatra filed a lawsuit against the kidnappers, Gilstrap, the New Times and Columbia, arguing that any monies arising from a story about the kidnapping should be held in trust for Sinatra, Jr. under California’s socalled “Son of Sam” law. This law sought to keep felons from benefitting from their crimes by producing books, articles, movies or other media productions about their illegal activities.

The trial court and appeals court both ruled for Sinatra. The California Supreme Court, however, reversed and held that the California law was unconstitutional because it regulated expression based on its content and was not narrowly tailored to serve the compelling government goal of preventing criminals from gaining financially from their crimes. Brown concurred with the court that the law was unconstitutional, but she wrote a separate decision to make a few additional points. Her primary purpose was to outline ways that she believed it would be possible to draft a constitutional law that would allow the state to accomplish the same purpose as the “Son of Sam” law. Her contention was that because it is constitutional to require criminals to compensate their victims, and constitutional to ensure that criminals are not enriched by their crimes, it would be possible to craft a law that would accomplish the purposes of the “Son of Sam” law without running afoul of the constitution. She wrote:

Notwithstanding today’s decision, the state may constitutionally seize any asset of a criminal to redress the harm inflicted upon his victim. Additionally, the state may seize the fruits of the crime to render it unprofitable. For some works, like The Autobiography of Malcolm X, it may be difficult to determine the extent to which royalties result from the author’s criminal involvement or his literary skill. But the existence of hard cases that might win an as-applied challenge does not mean all such laws are facially unconstitutional.
40 P.3d at 735.

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Golden Gateway Center v. Golden Gateway Tenants Ass’n, 29 P.3d 797 (Cal. 2001).

The Golden Gateway Center (GGC) was a retail and residential apartment complex. From 1982 until 1993, the Golden Gateway Tenants Association (GGTA) distributed newsletters by placing them under residents’ doors. In 1993, the managers asked the GGTA to stop placing the newsletters under or on residents’ doors but when the GGTA threatened litigation, the complex managers initially did nothing to prevent the newsletter distribution. In 1995, a new building manager was hired and thereafter GGTA’s leafletting activities increased dramatically. The new manager asked the GGTA to limit its distribution of newsletters and leaflets and the GGTA refused. GGC then revised its building standards to prohibit the distribution of newsletters under or on residents’ doors except where the tenant had specifically requested such newsletters. The GGTA again refused to stop and GGC filed suit.

The trial court found that the tenants had a contractual right to distribute the newsletters. The Court of Appeal reversed and found that the GGTA had no contractual right, nor any right under the U.S. or California Constitutions to distribute the leaflets. An extremely divided California Supreme Court affirmed the result of the Court of Appeal but not its reasoning. Brown wrote a plurality lead opinion for the court which attracted two other justices, Chief Justice George wrote a concurrence agreeing with Brown’s result but not her reasoning, and Justice Werdegar wrote a very forceful dissent. All of the separate opinions in this case focused on the question of whether the California Supreme Court protected the GGTA’s leafletting.

Brown’s opinion began by acknowledging the California Supreme Court case of Pruneyard Shopping Center v. Robins, which held that the California Constitution’s protections for free speech are broader than those of the U.S. Constitution. Brown stated, in her opinion that the principles of stare decisis require that the court follow the Robins decision, but then, in the name of “clarifying” the Robins decision, she seemed to seek to effectively overrule it. 29 P.3d at 803. Brown concluded that the real intent of the California Constitution’s framers was to protect against government restrictions on speech and that there was no evidence that it was intended to protect against “private encroachments.” 29 P.3d at 806. In reaching this conclusion, Brown even rejected commentary (which Brown called “nonbinding dictum”) included in another California Supreme Court opinion that she herself had signed onto less than a year earlier. 29 P.3d at 807. See, Gerawan Farming, Inc. v. Lyons, 12 P.3d 720 (Cal. 2000).

While Chief Justice George agreed with the result advocated by Brown, he declined to adopt any of her reasoning, or even reach the issue of whether the California Constitution protects only against government restrictions on speech. He also went to some lengths to make clear that the court’s ruling in this case was very narrow. Justice Werdegar, joined by two other members of the court, wrote a very forceful dissent in which she completely rejected Brown’s lead opinion. In summarizing her position, Justice Werdegar wrote:

Ultimately, neither the text of the state free speech clause, the history of its adoption, our prior pronouncements, nor considerations of constitutional theory support judicial imposition of a state action limitation on Californians’ free speech rights. Consequently, I join with the Chief Justice in rejecting the lead opinion’s discussion and conclusions with regard to the state action doctrine and would adhere to our traditional understanding that, even when a restriction on speech “does not implicate any right to freedom of speech under the First Amendment, [it may nevertheless] implicate such a right under [California’s free speech clause].”
29 F.3d at 827 (citations omitted, bracketed material in the original).

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People ex. rel. Gallo v. Acuna, 929 P.2d 596 (Cal. 1997), cert. denied, 521 U.S. 1121 (1997).

Writing for a majority of the court, Justice Brown upheld an injunction which, among other things, denied the right of certain alleged gang members to be “in the company of any other VSL or VST [gang] member while ‘[s]tanding, sitting, walking, driving, gathering or appearing anywhere in public view’ in the four-block Rocksprings area.” As two of the dissenters pointed out, the language of the injunction was alarmingly broad and invited selective, and possibly discriminatory, enforcement. 929 P2d at 619.

It is interesting to compare this case to Aguilar v. Avis Rent a Car Systems, Inc., 980 P.2d 846 (Cal. 1999), discussed above. In that case Justice Brown argued that Latino victims of discrimination should not be protected by an injunction against recurrence of discrimination because it constituted “speech” protected by the First Amendment. In this case, however, Justice Brown denied the First Amendment right of Latino youths to peaceful assembly because they were alleged to be members of a gang – even though they had not necessarily been convicted of, or even arrested for, any crime.

As Justice Mosk wrote in dissent: “The majority would permit our cities to close off entire neighborhoods to Latino youths who have done nothing more than dress in blue or black clothing or associate with others who do so; they would authorize criminal penalties for ordinary, nondisruptive acts of walking or driving through a residential neighborhood with a relative or friend. In my view, such a blunderbuss approach amounts to both bad law and bad policy. Justice Black warned in Jay v. Boyd (citations omitted): ‘Unfortunately there are some who think that the way to save freedom in this country is to adopt the techniques of tyranny.’ The majority here appear to embrace that misguided belief.” 929 P.2d at 633.

Reporting on Brown’s opinion in Acuna, one article stated, “[t]he ruling, which prompted other cities to seek similar injunctions, gave Brown an occasion for discourse on the purpose of government, the dangers of unrestrained liberty and the traditions of ‘Englishspeaking peoples.’” Her reference to “English-speaking peoples” was reportedly especially irksome to the Latino plaintiffs. Newest State Justice, Janice Rogers Brown, Holds Forth on Life, Law, by Bob Egelko, Associated Press Newswires, 3/29/97. Brown listed her opinion in Acuna as one of her ten most significant opinions.

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