Aubin v. Bonta

Background

California Penal Code § 594.39, enacted through Senate Bill 742, made it unlawful to knowingly approach within 30 feet of a person or occupied vehicle near a vaccination-site entrance or exit for the purpose of obstructing, injuring, harassing, intimidating, or interfering with that person or vehicle occupant. The law applied when the person was within 100 feet of the site’s entrance or exit. A violation could result in a fine, imprisonment in a county jail, or both. The law exempted lawful picketing arising from a labor dispute and contained a severability clause.

The law defined “harassing” to include knowingly approaching, without consent, within 30 feet of another person or occupied vehicle to pass a leaflet or handbill, display a sign, or engage in oral protest, education, or counseling on a public way or sidewalk. Plaintiffs Teresita Aubin, David Brownfield, and Wynette Sills said they were activists who engaged in sidewalk conversations near vaccination sites but did not want to be arrested. They challenged the law under the First and Fourteenth Amendments and sought a declaration that it was unconstitutional and an injunction against enforcement.

The court had previously issued a temporary restraining order. The parties later filed cross-motions for summary judgment, agreeing that there were no factual disputes requiring a trial.

Federal free-speech claim

The court granted the plaintiffs’ motion for summary judgment and denied the defendant’s cross-motion on Count 1, a claim under 42 U.S.C. § 1983 alleging violation of the plaintiffs’ First Amendment free-speech rights as applied to the states through the Fourteenth Amendment.

The court held that the law was a content-based speech restriction because it expressly exempted labor picketing. A content-based restriction regulates speech based on the message, topic, or subject matter involved. The court therefore applied strict scrutiny, which requires a law to be narrowly tailored to serve a compelling government interest.

The court recognized that California had a compelling interest in stopping the spread of COVID-19 and ensuring access to vaccination sites. But it found that the law was not narrowly tailored because the 30-foot zone was larger than necessary, the law covered locations that could be public forums such as community centers and shopping centers, and it protected all people in the zone rather than only people seeking vaccination services. The court also concluded that less restrictive rules could protect access to vaccination sites.

State-law claim

The court agreed with the defendant that the plaintiffs had not meaningfully briefed Count 2, which alleged violations of the California Constitution and California Civil Code § 52.1. The court found that the plaintiffs had abandoned this claim and dismissed it. In its conclusion, the court stated that it denied the plaintiffs’ summary-judgment motion and granted the defendant’s cross-motion on Count 2.

Severability

The defendant argued that, if the law violated the First Amendment, the court should remove only the offending provision and retain the rest. The plaintiffs opposed severance.

Applying California law, the court held that the “harassing” prohibition could be severed from the rest of § 594.39. The statute’s severability clause created a presumption that the Legislature preferred severance. The court found that removing the “harassing” provision would not undermine the remaining statute’s wording or coherence and that the remaining prohibitions against obstructing, injuring, intimidating, and interfering would remain complete. The court declined to remove the labor-dispute-picketing exception because doing so would criminalize more conduct than the Legislature intended.

The court declared that the “harassing” prohibition violated the First and Fourteenth Amendments but did not invalidate the remainder of the statute.

Permanent injunction and disposition

The court granted in part the plaintiffs’ request for a permanent injunction. It ordered Rob Bonta, in his official capacity as California’s attorney general, along with the attorney general’s officers, agents, servants, employees, and anyone acting in concert with the attorney general, to stop enforcing the statutory prohibition on “harassing” against the plaintiffs and facially against any speaker.

The court found that enforcement would cause irreparable injury because the loss of First Amendment freedoms, even for a short time, constitutes irreparable harm. It concluded that the narrower injunction was tailored to the specific harm shown and balanced the parties’ hardships and the public interest.

The court vacated the temporary restraining order issued on December 23, 2021, and replaced it with the narrower permanent injunction. It required no bond from the plaintiffs, required the parties to meet and confer before seeking fees or costs, stated that judgment would be entered separately, and requested that the clerk close the case after judgment. Judge Nathanael M. Cousins signed the order.