New First Amendment R.A.V.-Based Case on the Way to the Supreme Court?

Last week, The Ninth Circuit struck down a state law that criminalized knowingly false statements in cicitzen complaints against police officers. While the law can punish knowingly false statements generally, the court held that a law can't punish knowingly false statements on one side of an issue (here, knowingly false statements accusing police officers) but leave unpunished knowingly false statements on the other side (here, knowingly false statements by witnesses who are seeking to exonerate the police officer). The court cited R.A.V. v. City of St. Paul (1992), in which the U.S. Supreme Court struck down a ban on racist fighting words; a total ban on fighting words (i.e., epithets directed to a particular person that seem likely to trigger a fight), the R.A.V. Court held, would be constitutional, but certain kinds of discrimination within the category of fighting words -- for instance, banning racist fighting words but not other fighting words -- are unconstitutional.

Three years ago, though, the California Supreme Court upheld the same provision against the same sort of challenge. We thus not only have a split among lower courts (itself a reason for the U.S. Supreme Court to hear the case, when the split involves federal courts of appeals and state supreme courts), but a split between a state supreme court and the court of appeals in the very same circuit, about the very same law.

It's always risky to predict that the Court will grant cert in any particular case, but given this split, I'll go out on a limb and make such a prediction (unless the Ninth Circuit decides to take the case en banc and reverse it, which I doubt).

Josh L.:
Is it fully accurate to call the different opinions between the state and federal courts here a "split"? The federal court opinion controls in this case, since it ruled that the law runs afoul of the (federal, of course) First Amendment. There is no confusion about the state of things now in California with respect to that California law. Contrast that with a circuit split, when (e.g.) two circuits interpret the same law differently -- then, the state of things is different and what that one law means is different depending on where one lives. The Court may indeed grant cert in this case (though I doubt it), but except for the Cal. Sup. Ct. opinion's persuasive value, will the U.S. Sup. Ct. really care at all that the Cal. Sup. Ct. came out differently than the 9th Circuit?
11.8.2005 5:20pm
Note to Copy Editor: replace cicitzen with citizen.
11.8.2005 5:23pm
PG (mail) (www):
I'd be interested to see where Scalia and Thomas come out on this; judging by their votes in Virginia v. Black, I'm inclined to think they'll go with the CA Supreme Court instead of the 9th Circuit.
11.8.2005 5:41pm
Cheburashka (mail):
I think it is a split. The 9th Circuit was only able to review the conviction under PSLRA because the state court had not produced any opinion on the 1st Amendment issue and the state had failed to raise procedural default thereby waiving the waiver.

The California Supreme Court is not obligated to adopt the 9th Circuit's reasoning, and indeed the 9th Circuit might be unable to apply its ruling to any future case in which the California court passed on the question, because then the standard of review would be whether the decision is contrary to clearly established Supreme Court precedent.

So its not only a split between the Cal courts and the 9th Circuit, but the opinion is almost a nullity on its face.

It occurs to me that this sort of Federal court reasoning -- actively avoiding the PSLRA and then creating a rule of law which true or not no-one can avail themselves of -- serves only to bring substantial disrespect on the Courts.

I predict cert as well, and I suspect there are habeas procedural issues that could draw the court's attention.
11.8.2005 6:12pm
Interesting. No other circuits have found this law constitutional?

How about fraud laws? They discriminate against the viewpoint of those who falsely claim that what they're selling is better than it really is, and don't pubish those who falsely claim their stuff is worse than it really is.
11.8.2005 6:36pm
Hans Bader (mail):
Under the logic of the Ninth Circuit's decision, defamation law itself is unconstitutional under R.A.V., since it only punishes false criticisms, not false praise.

And yet, R.A.V. cited defamation as an example of an unprotected category of speech.

The state courts have rejected First Amendment challenges to the California law.

Some Ninth Circuit judges have said that the state appellate courts should defer to the federal appeals courts in deciding the constitutionality of state laws, but the Supreme Court has never taken that position, and some of the more conservative justices have rejected it as contrary to equality and comity among federal and state courts, arguing instead that neither state supreme courts nor federal circuit courts are more authoritative in interpreting the U.S. constitution.
11.8.2005 6:42pm
Paul Johnson (mail):
It's typical Pregerson result-oriented jurisprudence. He had to find ways past jurisdictional and mootness issues (what? the guy's not in confinement, no longer on probation, and in fact has no remaininging state supervision? No problem!) in order to torture R.A.V. worse than Al Qaeda members are being tortured in secret confinement facilities.

Seems to me that the state has a compelling interest in discouraging false reports of police misconduct -- which mandate investigation at the least, and disciplinary action or prosecution based on false information at the most -- while it has a far lesser interest in discouraging false reports of good police conduct. As Pregerson characterized it:

Only knowingly false speech critical of peace officer conduct is subject to prosecution under section 148.6. Knowingly false speech supportive of peace officer conduct is not similarly subject to prosecution.

Note that "supportive of peace officer conduct" does not mean "exonerating," as Prof. Volokh suggests, but may well include a false claim that a police officer helped an elderly person across the street.
11.8.2005 6:42pm
It seems that an easy solution to this problem has been overlooked- require all citizen complaints of this nature to be signed by the complainant under penalty of perjury. Currently, making a false complaint of police misconduct is a misdemeanor, while lying to get a welfare check is a felony. The former seems to me to be a more serious crime. This has the added benefit of reducing the number of laws as well.
11.8.2005 7:58pm
Cheburashka (mail):
The case does have a point - its a pretty perverse set of incentives which are being created when complaining of police misconduct puts one at risk of prosecution but claiming to be a witness that the misconduct did not occur -- even a false witness -- does not.

But I don't see a legitimate 1st Amendment issue here.
11.9.2005 1:34am
Cheburashka (mail):

Interesting. No other circuits have found this law constitutional?

Its a state law, so no other circuits have addressed it.

How about fraud laws? They discriminate against the viewpoint of those who falsely claim that what they're selling is better than it really is, and don't pubish those who falsely claim their stuff is worse than it really is.

The defamation laws do, actually, punish those who falsely claims that the goods of others are worse than they really are.

If someone falsely claims that their product is worse than it is - what are the damages, and who has standing?
11.9.2005 1:37am
David M. Nieporent (www):
but claiming to be a witness that the misconduct did not occur -- even a false witness -- does not.

Wouldn't that be obstruction of justice? Presumably providing false evidence to exonerate a person of a crime is already a crime. (Or are we talking about police misconduct that doesn't rise to the level of criminal?)
11.9.2005 2:08am
Wintermute (www):
Good post, made me look at the syllabus of RAV.

The 9th Circuit's mirror fairness decision is different than RAV's ... I hate to call it slippery slope analysis. I hate fighting words legislation anyway, my being of the sticks and stones persuasion. Would it be criminal for a white person to call a black n___r (leaving out for the moment whether a black rapper would be criminal for using that word), but a black could call a protected person a white mother f___r?

I do mostly criminal defense, and I have had cases where verbal abuse of police and subsequent physical abuse BY police were both alleged. How do we want people in our society to act? It is my ideal that a black officer ignore racial epithets with professional forbearance and politeness, even if cold; and vice versa. And yes, I think that should be an example to all people. I guess this makes me a First Amendment absolutist, aside from punishing the disclosure of battle plans as treason and affording reasonable redress for defamation.
11.9.2005 2:39am
Striking down the law does fit within one of the key purposes of the First Amendment--encouraging citizens to criticize their government.

Laws like the one in California are designed to intimidate people from complaining against police officers. If the witness makes even one honest mistake, the police can pressure him to withdraw the complaint by threatening prosecution.

Often, the cop and the complainant are the only witnesses to the events. So if the cop denies the complaint, they can charge the complainant with a crime.

One general rule of trial courtrooms is that cops always win swearing contests unless there is a video tape. Most cops are honest, but as the Rampart and other scandals have shown, they all aren't. The California law would make it extremely dangerous for many people to file complaints about cops when there are no other witnesses.

Citizens need to be able to make complaints against cops without fearing prosecution. The California law should be called the Bad Cop Protection Act.
11.9.2005 4:12am
Is there a "split" in practice? This was a habeas case, so any defendant charged under the statute can obtain habeas relief if he properly raises the issue.

Also, couldn't someone file a 1983 suit to bar enforcement of the law? The District Court and any Ninth Circuit panel would be bound by this panel's decision.

If I were the cert respondent, I'd argue that this was a simple application of law to facts, unworthy of the High Court's time.

But Professor Volokh is right on one thing--predicting cert grants is difficult even for those who regularly practice in the high court (I am definitely not one of them).
11.9.2005 5:48am
Dilan Esper (mail) (www):
This is not only a clear split, this is an even more compelling case for review than most splits, because suppose you are sitting on a California court hearing a prosecution under this law. You are required to apply the state Supreme Court case upholding the law (see Auto Equity Sales v. Superior Court). But you also know that in doing so, the defendant will be entitled to a writ of habeas corpus from the federal District Court setting him or her free.

The two decisions have stuck the California trial courts between a rock and a hard place, and I think this is just about the most compelling case for a grant of cert.

And I say this even though I think the Ninth Circuit case was rightly decided and, as a substantive matter, would not mind if it were allowed to stand.
11.9.2005 4:12pm
NickM (mail) (www):
Pregerson is once again utterly lacking in the application of common sense. Any reasonable judge looking at that argument would have noticed quickly that these are complaints that are being discussed. Of course the false statement would be accusatory, not laudatory. It wouldn't be much of a complaint if you alleged good conduct. Instead, he seeks to require the State to equally punish things which do not happen.

11.9.2005 4:50pm
Cheburashka (mail):

Is there a "split" in practice? This was a habeas case, so any defendant charged under the statute can obtain habeas relief if he properly raises the issue.

It is a split in practice, and future defendants cannot obtain habeas relief by properly raising the statute.

If the defendant fails to raise the statute in the state proceedings, it is procedurally waived and the federal habeas court cannot review it unless, as in this case, the state waives the waiver by failing to argue procedural default.

If the defendant does raise the statute in the state proceedings and the state court passes on the question, then the standard of review on habeas will not be whether the state court decision was correct - it will be whether the state court decision was contrary to clearly established precedent of the Supreme Court. The 9th Circuit's opinion in this case will not be binding -- even on future 9th Circuit panels -- addressing the question, because only Supreme Court precedent is relevant to the standard. Future panels will be obligated to deny habeas relief even if the result is contrary to this opinion.

Also, couldn't someone file a 1983 suit to bar enforcement of the law? The District Court and any Ninth Circuit panel would be bound by this panel's decision.

I'm not sure that overbreadth and 1st Amendment standing doctrines are broad enough to let just anyone bring that action, and I'm not sure who, if anyone, could. But this question is complex and I don't feel competent to resolve it.

11.9.2005 7:11pm
As for defamation & fraud, they are different because they are civil claims between private parties (non-state actors). The 1st amendment isn't concerned with liability based on viewpoint/content in those circumstances. Liability for those claims by definition arises based upon the content of the speech.
11.9.2005 8:19pm

This was a federal habeas action, so this case creates a 9th Circuit precedent on the availability of habeas relief to challenge a conviction under this law.

As to section 1983, the 9th Circuit has already ruled that the law violates the 1st Amendment. I don't see why it should be hard to get an injuction to order that California not enforce an unconstitutional criminal statute, but I admit that 1983 isn't my specialty.
11.10.2005 8:38am
Hans Bader (mail):
Lia's argument that defamation claims between private actors are distinguishable from the California law because private defamation claims are not state action was rejected by the Supreme Court in New York Times v. Sullivan (1964), which noted that when the state awards damages to one private party from the pockets of another, that's state action subject to the First Amendment.

So the Ninth Circuit's decision can't be justified on that ground.
11.10.2005 12:42pm
Dilan Esper (mail) (www):
Public and Cheb:

I don't think 1983 relief is available to enjoin prosecutions, given Younger v. Harris.

However, the AEDPA (the law that restricts habeas petitions) requires the 9th Circuit to rely on Supreme Court authority but allows the court to grant relief if the facts are detrmined not to be materially different from a Supreme Court case. Given that, and the circuit precedent on this issue (i.e., that R.A.V. does apply to this statute), I think it likely that the 9th Circuit is going to grant habeas in any case that comes before it. That makes the conflict pretty stark.
11.10.2005 6:22pm
The Rat (mail):
Is it clear that the decision of the Ninth Circuit and that of the California Supreme Court are at odds? Granted, each case involves a First Amendment challenge to Penal Code section 148.6, and one challenge was rejected while the other was upheld. But in Stanistreet, the defendant contended the statute was unconstitutional because persons who falsely complained about POLICE OFFICERS could be prosecuted while those who falsely complained about OTHER PUBLIC OFFICIALS could not. (25 Cal.4th at p. 507.) In Chaker, by contrast, the petitioner contended the statute was unconstitutional because those who falsely COMPLAINED about police officers could be prosecuted, while those who falsely DEFENDED officers could not. Are the two issues identical? Would the 9th Circuit's analysis be valid if it was addressing the claim considered by the California Supreme Court, and vice versa? Can anyone identify a place in the two opinions where the 9th Circuit's reasoning clashes with that of the California Supreme Court?
11.11.2005 4:32pm