# Project for Open Government v. County of San Diego

> District Court, S.D. California · September 12, 2022

URL: https://www.frixlaw.com/law-library/cases/10086384

## Case

- **Court:** District Court, S.D. California
- **Decided:** September 12, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10086384

## How later opinions describe it (automated extraction)

- emphasizing the Free Speech Clause 28 “does not regulate government speech”

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 PROJECT FOR OPEN GOVERNMENT, Case No.: 22-cv-00067-AJB-MDD

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Plaintiff, ORDER GRANTING IN PART
13 DEFENDANT’S MOTION TO
v. DISMISS AND DECLINING TO
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EXERCISE SUPPLEMENTAL
15 COUNTY OF SAN DIEGO, JURISDICTION OVER THE
REMAINING STATE LAW CLAIMS
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Defendant.
17 (Doc. No. 3)
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19 Before the Court is the County of San Diego’s (“Defendant” or “County”) motion
20 to dismiss Project for Open Government’s (“Plaintiff”) Complaint. (Doc. No. 3.) Plaintiff
21 filed an opposition, to which Defendant replied. (Doc. Nos. 7, 8.) For the reasons set forth
22 below, the Court GRANTS IN PART Defendant’s motion to dismiss and REMANDS the
23 remaining state law claims to San Diego Superior Court.
24 I. BACKGROUND
25 Plaintiff filed a Complaint in San Diego Superior Court, alleging that Defendant
26 violated the United States Constitution, California Constitution, and California’s
27 open-government laws when the County Board of Supervisors (“Board”) adopted
28 Resolution No. 21-174 (“Resolution”). (Doc. No. 1-2, Compl. at ¶¶ 5, 10, 14.) The
1 Resolution states that the Board “desires to make necessary changes to its Rules of
2 Procedures to promote more equitable, civilized public engagement while continuing to
3 honor the rights of all under the First amendment and free speech principles.” 1 (Doc. No.
4 1-2, Exh. A at 9.)2 To that end, the Resolution approved amendments to the Board’s Rules
5 of Procedures during public meetings. (Id.)
6 Plaintiff’s Complaint challenges these changes, claiming the amendments to Rule
7 4(l) “violate the free-speech rights of members of the public who desire to address the
8 [Board] during public meetings, in violation of the federal and state constitutions” and are
9 “impermissibly vague.” (Id. ¶ 10.) Plaintiff also alleges the changes to Rule 4(a)(2) “violate
10 state open-government laws applicable to the [Board] during public meetings.” (Id. ¶ 14.)
11 Defendant timely removed the case to federal court and thereafter filed the instant motion
12 to dismiss the Complaint. (Doc. Nos. 1, 3.)
13 II. LEGAL STANDARD
14 A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint.
15 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “To survive a motion to dismiss, a
16 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
17 that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
18 To determine the sufficiency of the complaint, the court must assume the truth of all factual
19 allegations therein and construe them in the light most favorable to the plaintiff. Cahill v.
20 Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). This tenet, however, does not
21 apply to legal conclusions. Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of
22 a cause of action, supported by mere conclusory statements, do not suffice.” Id.; Bell
23 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court may dismiss a complaint
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1 Plaintiff attached to its Complaint, a copy of the Resolution and Rules at issue. As exhibits attached to
26 the Complaint, these materials are appropriate for the Court’s consideration in adjudicating the present
motion. Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007).
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2 Unless otherwise indicated, the pinpoint page citations in this Order refer to the ECF-generated page
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1 under Rule 12(b)(6) if “the complaint lacks a cognizable legal theory or sufficient facts to
2 support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d
3 1097, 1104 (9th Cir. 2008).
4 III. DISCUSSION
5 Defendant moves to dismiss the entirety of Plaintiff’s Complaint. With respect to
6 Plaintiff’s First Amendment claim, Defendant argues that Rule 4(l): (1) does not regulate
7 or restrict public speech, (2) is a proper exercise of the Board’s free speech rights, and (3)
8 is not unconstitutionally vague. The Court discusses these arguments in turn.
9 Rule 4(l) provides that if a person makes discriminatory or harassing remarks at a
10 public meeting, the Chairperson may interrupt and admonish the speaker by taking the
11 following actions: (1) stating the County’s policy regarding discrimination and harassment,
12 (2) stating that comments in violation of County policy will not be condoned, and (3)
13 inform the speaker that their language is unwanted, unwelcome and/or inappropriate, and
14 that they interfere with the ability of those present to listen and understand. (Doc. No. 1-2
15 at 24.) The Rule defines “discriminatory or harassing remarks” as including “legally
16 protected speech in a Board meeting that disparages an individual or group based on their
17 perceived race, religion, sexual orientation, ethnicity, gender, disability, etc. or other hate
18 speech but does not rise to the level of a criminal threat or inciting violence.” (Id.) The
19 Rule states that during the admonishment, the speaker’s time will be held, and the speaker
20 will receive their full allotment of time and be allowed to resume speaking after the
21 admonishment. (Id.) If the speaker’s comments “continue to disturb, disrupt, or impede the
22 orderly conduct of the meeting,” the Chairperson may have the speaker removed from the
23 meeting. (Id. at 23–24.)
24 As an initial matter, the Court agrees with Defendant that the Board’s admonishment
25 of the speaker’s discriminatory and harassing remark constitute government speech, which
26 is not subject to scrutiny under the First Amendment’s Free Speech Clause. See Pleasant
27 Grove City v. Summum, 555 U.S. 460, 467 (2009) (emphasizing the Free Speech Clause
28 “does not regulate government speech”). The United States Supreme Court has recognized
1 that a government entity has the right to speak for itself, is entitled to say what it wishes,
2 and to select the views it wants to express. See id. at 467–68 (quoting Board of Regents of
3 Univ. of Wis. System v. Southworth, 529 U.S. 217, 229 (2000), Rosenberger v. Rector and
4 Visitors of Univ. of Va., 515 U.S. 819, 833 (1995), and Rust v. Sullivan, 500 U.S. 173, 194
5 (1991)). Here, through the Resolution and adopted rule, the Board expresses its opinion
6 that discriminatory and harassing remarks do not promote civilized public engagement and
7 are contrary to the County’s Code of Ethics. (Doc. No. 1-2 at 9, 25.) Plaintiff offered no
8 explanation as to why the government’s criticism of discriminatory or harassing remarks
9 does not constitute government speech. As the Court of Appeals for the District of
10 Columbia Circuit persuasively explained:
11 We know of no case in which the first amendment has been held to be
implicated by governmental action consisting of no more than governmental
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criticism of the speech’s content.
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A rule excluding official praise or criticism of ideas would lead to the strange
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conclusion that it is permissible for the government to prohibit racial
15 discrimination, but not to criticize racial bias; to criminalize polygamy, but
not to praise the monogamous family; to make war on Hitler’s Germany, but
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not to denounce Nazism. It is difficult to imagine how many governmental
17 pronouncements, dating from the beginning of the Republic, would have been
unconstitutional on that view of things.
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19 Block v. Meese, 793 F.2d 1303, 1313 (D.C. Cir. 1986) (internal quotations omitted). For
20 the foregoing reasons, the Court concludes the admonishment amounts to government
21 speech and is therefore not subject to the Free Speech Clause.
22 Turning to Plaintiff’s challenge to the meaning of “discriminatory or harassing
23 remarks,” Plaintiff argues the inclusion of the word “etc.” in the definition renders it
24 impermissibly vague. This definition, however, merely describes the circumstances under
25 which the Board may exercise its government speech, which as noted above, is outside the
26 purview of the Free Speech Clause. Plaintiff’s vagueness and overbreadth challenges are
27 therefore without merit. See Pleasant Grove, 555 U.S. at 467–68 (If the government was
28 “engaging in their own expressive conduct, then the Free Speech Clause has no
1 application.”); Pulphus v. Ayers, 249 F. Supp. 3d 238, 254 (D.D.C. 2017) (“When the
2 government speaks, it is free to promulgate vague guidelines and apply them arbitrarily.”)
3 Moreover, because Rule 4(1) does not preclude individuals from resuming their
4 remarks after the government has expressed its counter speech and preserves the full
5 allotment of the speaker’s time during the admonition, the Court does not find this aspect
6 of the Rule a restriction on speech for purposes of a First Amendment analysis. Plaintiff’s
7 contrary argument is unavailing.
8 Plaintiff asserts that Rule 4(l) is unconstitutional because the First Amendment
9 protects speech not only “from patent restraints, but also from more subtle forms of
10 governmental interference” and cites Huntley v. Pub. Utilities Comm’n, 69 Cal.2d 67
11 (1968) in support. (Doc. No. 7 at 12.) Huntley, however, is distinguishable because it did
12 not involve facts like those present in this case. In Huntley, the California Supreme Court
13 considered the Public Utilities Commission’s requirement that subscribers who transmitted
14 recorded messages include in the recording their name and address. See 69 Cal. 2d at 70.
15 The governmental interference in Huntley was a forced disclosure of information. It said
16 nothing about whether a government’s criticism of a speaker’s discriminatory or harassing
17 remark at a public meeting is actionable under the First Amendment. Because the case
18 before this Court does not involve the compelled disclosure of information, the Court finds
19 Plaintiff’s reliance on Huntley misplaced.
20 As to Rule 4(l)’s provision permitting the Chairperson to stop a speaker’s time or
21 have the speaker removed from the meeting for “continu[ing] to disturb, disrupt, or impede
22 the orderly conduct of the meeting,” Ninth Circuit case law is clear that while the First
23 Amendment constrains the government’s power even in a limited public forum like a city
24 council meeting, speakers may be stopped or removed if their comments are actually
25 disruptive. See Norse v. City of Santa Cruz, 629 F.3d 966, 979 (9th Cir. 2010) (Kozinski,
26 J., concurring) (collecting cases); accord White v. City of Norwalk, 900 F.2d 1421, 1425
27 (9th Cir. 1990) (“While a speaker may not be stopped from speaking because the moderator
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1 disagrees with the viewpoint he is expressing, it certainly may stop him if his speech
2 becomes irrelevant or repetitious.”) (citation omitted).
3 Defendant specifically argues that Rule 4(l) is squarely in compliance with the Ninth
4 Circuit’s precedent in White v. City of Norwalk. There, the court considered a facial
5 challenge to a city ordinance that permitted a city council to remove individuals from
6 public hearings if they made “personal, impertinent, slanderous or profane remarks.” 900
7 F.2d at 1424. The court upheld the ordinance, explaining that it was not unconstitutional
8 on its face because “[s]peakers are subject to restriction only when their speech disrupts,
9 disturbs, or otherwise impedes the orderly conduct of the Council meeting.” Id. at 1426.
10 (internal quotations omitted). The Court agrees that Rule 4(l) is akin to the ordinance
11 upheld in White.
12 Like in White, the Rule at issue here is not facially unconstitutional because its
13 language reveals that the Chairperson’s ability to stop a speaker’s discriminatory or
14 harassing remarks is limited to instances where the comments actually “interfere with the
15 ability of those present to listen and understand” and “continue to disturb, disrupt, or
16 impede the orderly conduct of the meeting.” (Doc. No. 1-2 at 24.) As Rule 4(l) is analogous
17 to White in this consequential way, the Court sees no reason why White does not govern
18 here. And Plaintiff offered none. Defendant’s opening brief made plain its reliance on
19 White, yet Plaintiff chose not to address or otherwise distinguish this case. See generally
20 Buggs v. Powell, 293 F. Supp. 2d 135, 141 (D.D.C. 2003) (“[W]hen a plaintiff files an
21 opposition to a dispositive motion and addresses only certain arguments raised by the
22 defendant, a court may treat those arguments that the plaintiff failed to address as
23 conceded.”).
24 Upon consideration of the Complaint, the Resolution and Rules attached thereto, and
25 the controlling law, the Court finds Plaintiff has not and cannot state a First Amendment
26 claim. See Mendiondo, 521 F.3d at 1104; SmileCare Dental Grp. v. Delta Dental Plan of
27 California, Inc., 88 F.3d 780, 783 (9th Cir. 1996) (“The court may dismiss a complaint as
28 a matter of law for (1) lack of a cognizable legal theory or (2) insufficient facts under a
1 || cognizable legal claim.) (internal quotations omitted). Accordingly, the Court dismisses
2 || without leave to amend Plaintiffs cause of action under the First Amendment of the United
3 || States Constitution.
4 Lastly, as the Court has dismissed Plaintiff's sole federal claim at the outset of the
5 || litigation, the Court exercises its discretion to decline exercising supplemental jurisdiction
6 the remaining state law claims. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,
7 (1988) “Where, as here, all federal-law claims in the action have been eliminated and
8 pendent state-law claims remain, the district court has a powerful reason to choose
9 || not to continue to exercise jurisdiction.”); Oliver v. Ralphs Grocery Co., 654 F.3d 903, 911
10 Cir. 2011) (The district court did not err “in declining to exercise supplemental
11 ||jurisdiction over [plaintiff's] state law claims” when it “properly disposed of ‘all claims
12 || over which it had original jurisdiction.’”’) (citing 28 U.S.C. § 1367(c)(3)).
13 CONCLUSION
14 For the reasons stated herein, the Court GRANTS IN PART Defendant’s motion to
15 dismiss. Plaintiff's claim under the First Amendment of the United States Constitution is
16 ||dismissed without leave to amend. Because the Court declines to exercise supplemental
17 ||jurisdiction over the remaining state law claims, the Clerk of Court is instructed to
18 || REMAND the remainder of Plaintiff's Complaint to the San Diego Superior Court and
19 close this case accordingly.
20 IT IS SO ORDERED.
21 Dated: September 10, 2022 © ¢
22 Hon, Anthony J.Battaglia
23 United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10086384. Public record. Not legal advice.