Victor Gresham v. Michael Picker , 705 F. App'x 554 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 24 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR GRESHAM and CONQUEST No. 16-16829
COMMUNICATIONS GROUP, LLC,
D.C. No.
Plaintiffs-Appellants, 2:16-cv-01848-JAM-CKD
v.
MEMORANDUM*
MICHAEL PICKER; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted July 12, 2017
San Francisco, California
Before: GRABER and FRIEDLAND, Circuit Judges, and MARSHALL,** District
Judge.
Plaintiffs Victor Gresham and Conquest Communications Group, LLC,
appeal the denial of their motion for preliminary injunction, which sought to enjoin
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Consuelo B. Marshall, Senior United States District
Judge for the Central District of California, sitting by designation.
Defendants from enforcing California Public Utilities Code § 2872 against them.
We affirm.1
Plaintiffs argue California’s Automated Call Ban, Cal. Pub. Util. Code §
2872, is facially content-based and, therefore, subject to strict scrutiny. Section
2872 provides:
(a) The connection of automatic dialing-announcing devices to a
telephone line is subject to this article and to the jurisdiction, control,
and regulation of the commission.
(b) No person shall operate an automatic dialing-announcing device
except in accordance with this article. The use of such a device by any
person, either individually or acting as an officer, agent, or employee
of a person or corporation operating automatic dialing-announcing
devices, is subject to this article.
(c) No person shall operate an automatic dialing-announcing device in
this state to place a call that is received by a telephone in this state
during the hours between 9 p.m. and 9 a.m. California time.
(d) This article does not prohibit the use of an automatic dialing-
announcing device by any person exclusively on behalf of any of the
following:
(1) A school for purposes of contacting parents or guardians of
pupils regarding attendance.
(2) An exempt organization under the Bank and Corporation
Tax Law (Part 11 (commencing with Section 23001) of
Division 2 of the Revenue and Taxation Code) for purposes of
contacting its members.
1
We have reviewed the Eighth Circuit’s recent decision in Gresham v. Swanson,
No. 16-3219, 2017 WL 3270832 (8th Cir. Aug. 2, 2017).
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(3) A privately owned or publicly owned cable television
system for purposes of contacting customers or subscribers
regarding the previously arranged installation of facilities on the
premises of the customer or subscriber.
(4) A privately owned or publicly owned public utility for
purposes of contacting customers or subscribers regarding the
previously arranged installation of facilities on the premises of
the customer or subscriber or for purposes of contacting
employees for emergency actions or repairs required for public
safety or to restore services.
(5) A petroleum refinery, chemical processing plant, or nuclear
powerplant for purposes of advising residents, public service
agencies, and the news media in its vicinity of an actual or
potential life-threatening emergency.
(e) This article does not prohibit law enforcement agencies, fire
protection agencies, public health agencies, public environmental
health agencies, city or county emergency services planning agencies,
or any private for-profit agency operating under contract with, and at
the direction of, one or more of these agencies, from placing calls
through automatic dialing-announcing devices, if those devices are
used for any of the following purposes:
(1) Providing public service information relating to public
safety.
(2) Providing information concerning police or fire
emergencies.
(3) Providing warnings of impending or threatened
emergencies.
These calls shall not be subject to Section 2874.
(f) This article does not apply to any automatic dialing-announcing
device that is not used to randomly or sequentially dial telephone
numbers but that is used solely to transmit a message to an established
business associate, customer, or other person having an established
relationship with the person using the automatic dialing-announcing
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device to transmit the message, or to any call generated at the request
of the recipient.
(g) The commission may determine any question of fact arising under
this section.
Cal. Pub. Util. Code § 2872.
In Bland v. Fessler, 88 F.3d 729 (9th Cir. 1996), this Court held Section
2872 was constitutional on its face because it was content neutral, served a
significant governmental interest, was narrowly tailored to serve that interest, and
left open alternative channels of communication. Plaintiffs argue that Bland is no
longer good law following Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), and
Citizens United v. FEC, 558 U.S. 310 (2010), and that strict scrutiny therefore
applies to the Automated Call Ban because it is content- and speaker-based.2
“A plaintiff seeking a preliminary injunction must establish that he is likely
to succeed on the merits, that he is likely to suffer irreparable harm in the absence
of preliminary relief, that the balance of equities tips in his favor, and that an
2
Plaintiffs acknowledge that they are unlikely to succeed in showing that
§ 2872(d)(5) or subsection (e) is unconstitutional. Subsection (d)(5) pertains to
public safety and emergencies and would therefore likely be permissible even if
strict scrutiny applies. Subsection (e) involves government speech and thus would
not trigger strict scrutiny. Plaintiffs also acknowledge that subsection (f) is
content- and speaker-neutral and would not trigger strict scrutiny. The gist of
Plaintiffs’ argument is that the allegedly content- and/or speaker-based exceptions
of subsections (d)(1)–(4) render the Automated Call Ban unconstitutional under
strict scrutiny.
4 16-16829
injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 20 (2008).
Whether or not Bland remains good law, Plaintiffs fail to establish that they
are likely to succeed on the merits.
If Bland remains good law, Section 2872 is constitutional on its face.
On the other hand, if Bland was overruled by Reed and/or Citizens United,
and Reed requires strict scrutiny, Plaintiffs would still fail to obtain any practical
relief because, as Plaintiffs themselves acknowledge, see supra note 2, they would
still be required to satisfy subsection (f) in order to escape the statute’s restrictions.
Under a statutory construction analysis, subsections (d)(1)–(4) have no
independent force because they are simply examples of “an established
relationship” set forth in subsection (f). As a matter of constitutional
interpretation, although Defendants do not argue that the statute could survive
strict scrutiny, subsections (d)(1)–(4), are severable from the statute. See Vivid
Entm’t, LLC v. Fielding, 774 F.3d 566, 576 (9th Cir. 2014). 3 Under either the
statutory construction analysis or the constitutional interpretation approach,
subsections (d)(1)–(4) would no longer be operative, but the rest of the statute
3
Enjoining the entire statute rather than severing these exceptions would result in
“nullify[ing] more of a legislature’s work than is necessary.” Ayotte v. Planned
Parenthood of N. New England, 546 U.S. 320, 329 (2006).
5 16-16829
would remain. Thus the only way Plaintiffs could escape the statute’s restrictions
would be to demonstrate that their calls were exempt under subsection (f). But
subsection (f) is, as Plaintiffs acknowledge, content- and speaker-neutral and
would not trigger strict scrutiny.4 Accordingly, even if Bland has been overruled,
Plaintiffs fail to demonstrate that they are likely to succeed on the merits in lifting
any relevant limits on their speech.
Plaintiffs also fail to demonstrate that the balance of equities tips weighs in
their favor, and that an injunction is in the public interest. Winter, 555 U.S. at 20.
Plaintiffs argue that the public has an interest in the preservation of the right to free
speech guaranteed by the First Amendment, and that there is no public interest in
enforcing an unconstitutional law. Even if Plaintiffs could demonstrate a
likelihood of success on the merits—which they cannot—proving a likelihood of
success on their First Amendment claim, alone, does not satisfy the balance of
hardships and public interest requirements for an injunction under Winter. Vivid
Entm’t, 774 F.3d at 577; Doe v. Harris, 772 F.3d 563, 582–83 (9th Cir. 2014)
4
Plaintiffs have never contended that their use of automatic dialing-announcing
devices fall into the exceptions described in subsections (d)(1)–(4). Thus
Plaintiffs’ only way to avoid the statute’s prohibition has been, and would continue
to be, through subsection (f). Although the parties disagree as to whether Plaintiffs
fall within subsection (f)’s exception for messages made to a person or entity
having “an established relationship,” Plaintiffs do not challenge the
constitutionality of subsection (f) here.
6 16-16829
(“We do not simply assume that these elements collapse into the merits of the First
Amendment claim.” (internal quotation marks omitted)).
AFFIRMED.
7 16-16829