In this U.S. District Court decision, California's so called checkbook journalism law is struck down as unconstitutional. The law, enacted in the wake of the O.J. Simpson trial, prohibits crime witnesses from selling their stories for a designated period of time.

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

CALIFORNIA FIRST AMENDMENT COALITION,
Plaintiff,

vs.

DANIEL E. LUNGREN,
Attorney General of the State of California, et al.,
Defendants.

No. C 95-0440-FMS

MEMORANDUM OF DECISION

Issue Presented

Do Cal. Penal Code Section 132.5 and Cal. Civil Code Section 1669.7
violate the free speech and free press guarantee of the First
Amendment to the United States Constitution and Article I, Section
2(a) of the California Constitution?[FN1]

Introduction

On August 7, 1995, at the conclusion of oral argument in this matter,
the Court issued its ruling from the bench, finding Cal. Penal Code
Section 132.5 and Cal. Civil Code Section 1669.7 to be
unconstitutional on their face. At that time, the Court permanently
enjoined defendants, their agents, servants, employees and all others
acting in concert or participating with defendants from enforcing Cal.
Penal Code Section 132.5 and Civil Code Section 1669.7. This
Memorandum of Decision serves to set forth more fully the basis for
the Court's August 7, 1995 ruling.

In September of 1994, California Governor Pete Wilson signed two
legislative bills, which added section 132.5 to the Cal. Penal Code
and section 1669.7 to the Cal. Civil Code. This legislation prohibits
witnesses of crimes from selling their stories for a designated period
of time.

Plaintiff California First Amendment Coalition ("CFAC") is a
non-profit organization dedicated to protecting the rights to free
expression of California's journalists and citizens. CFAC's membership
consists of seven media professional associations and over two hundred
individual news organizations. On February 7, 1995, CFAC, on behalf of
its members, filed a complaint seeking a preliminary and permanent
injunction and reasonable attorneys' fees and costs. The complaint
names, inter alia, the California Attorney General and the District
Attorney of San Francisco County as defendants. On May 18, 1995, CFAC
filed this motion for a preliminary and permanent injunction on the
grounds that Sections 132.5 and 1669.7, on their face, violate the
free speech provisions of the United States and California
Constitutions. Plaintiff asks the Court to combine its request for a
preliminary and permanent injunction and enter judgment in its favor
pursuant to Fed. R. Civ. P. 65(a)(2). Defendants ("The State" or
"Defendants") ask the Court to deny plaintiff's motion for injunctive
relief, to dismiss the complaint, and to enter judgment in defendants'
favor.[FN2]

Background

In the wake of the enormous pre-trial publicity preceding the trial in
the O.J. Simpson case, California's legislature passed Cal. Penal Code
Section 132.5 ("Section 132.5") and Cal. Civil Code Section 1669.7
("Section 1669.7").[FN3] Section 132.5 makes it a crime for a person
to receive any payment or benefit for providing information about what
he or she knows or reasonably should know is a crime, or where that
person knows or reasonably should know that he or she may be called as
a witness in a criminal prosecution. Section 1669.7 renders contracts
in violation of Section 132.5 void and authorizes the Attorney General
or district attorney of the county in which a violation occurs to
bring a civil action to enjoin the enforcement of such contracts.

Section 132.5 was enacted to protect three interests: "the right of
every accused person to a fair trial, the right of the people to due
process of law, and the integrity of judicial proceedings" Cal. Penal
Code Section 132.5(a).[FN4] State Senator Quentin L. Kopp, one of the
legislation's sponsors, cited the following incident, which, in large
part, gave rise to sections 132.5 and 1669.7:

The obvious motivation for this urgent legislation is the recent O.J.
Simpson debacle, where both witnesses and potential jurors appear
tainted by the immense media publicity surrounding the case. For
example, a potentially critical prosecution witness, Jill Shively, who
received $5,000 from media tabloid "Hard Copy" and whose testimony
places the suspect near the scene of the crime at about the time of
the slayings, will not be called to testify because of lack of
credibility . . . .

State Sen. Quentin Kopp's Aug. 1, 1994 Memorandum to Members of the
Senate and Assembly, Declaration of Daniel

G. Stone in Support of Attorney's General's Opposition, Ex. A.

In addition, Speaker of the California Assembly Willie Brown, Jr,
author of the challenged legislation, offered his comments on why he
believes compensated speech impedes the opportunity for a fair trial:

First, it compounds the problem of pretrial publicity, since there are
clearly some people who would not talk to the press without payment.
Second, and more importantly, it intrudes upon the judicial process,
because it creates an incentive to lie. That kind of incentive can be
devastating in a trial. A witness who tells the truth, but admits to
being paid for his or her story, may lose credibility in the eyes of
the jury . . . . When such [juror and witness] participation is linked
to the receipt of large sums of cash, the very integrity of the
judicial process is at risk.

Senate Committee on Judiciary, Report on Assembly Bill 501,
Declaration of Richard S. Hoffman in Support of Plaintiff's Motion,
Ex. 1, p. 4.

In challenging the recent legislation, plaintiff has submitted
affidavits from various CFAC members detailing how the statutes have
or would have impacted their ability to communicate. For example, CFAC
offers the declaration of Dannie M. Martin, a former convict of Lompoc
penitentiary who wrote a series of prize-winning essays detailing
prison life. In one such article, "AIDS: The View From a Prison Cell"
(The Chronicle, Aug. 3, 1986) Martin described his first-hand
knowledge of homosexual sex and illicit drug use by an HIV positive
prisoner. Martin submits that the payments he received for such
articles, which often contained descriptions of penal code violations,
would have been illegal under Section 132.5, and if the statute had
been in effect at the time, it is "almost certain that many of [my] .
. . columns would not have been written." Declaration of Dannie M.
Martin in Support of Plaintiff's Motion, p. 4. CFAC has also submitted
declarations from other journalists, publishers and producers, in
which they explain how they routinely compensate their sources of
information by paying for a variety of expenses, including meals,
transportation and lodging. They also reveal how, in order to obtain
information from reluctant witnesses, they may offer their sources the
"benefit" of confidentiality. See e.a., Declarations of Todd J.
Merriman and Bruce Pottash. These declarants contend that they are
presently "chilled and intimidated" by the recent legislation from
offering any such "benefits" to individuals who may have witnessed a
crime.

In its motion, CFAC argues that the challenged statutes are
content-based regulations and fail the Supreme Court's strict scrutiny
test because they are not necessary and narrowly tailored to serve a
compelling state interest. CFAC also attacks the statutes on the
grounds that they are unconstitutionally vague. Defendants submit that
the statutes are content-neutral regulations but, even if they are
deemed to be content-based, they satisfy the strict scrutiny test.
Defendants also argue that because CFAC is "facially" challenging
these statutes, and not making an "as applied" challenge, the Court
must disregard plaintiff's "hypothetical" and "speculative"
applications of the statutes. Discussion

A. The Legal Standard

To grant a permanent injunction the Court must decide three issues: 1.
whether plaintiff has prevailed on the merits; 2. whether the balance
of the equities favors injunctive relief; and 3. what type of relief
is appropriate. LaDuke v. Nelson, 762 F.2d 1318, 1330 (9th Cir. 1985),
modified on other grounds, 796 F.2d 309 (9th Cir. 1986) A permanent
injunction should be issued where plaintiff has shown a "'likelihood
of substantial and immediate irreparable injury and the inadequacy of
remedies of law."' Id. at 1330 (citation omitted).

B. CFAC'S Facial Challenge Permits Court to Consider Statutes' Actual
Chilling Effect.

As a threshold matter, the Court must address defendants' contention
that because CFAC brings a facial challenge, the Court may not
consider plaintiff's hypothetical and speculative applications of the
statute. See Defendants' Opposition, p. 8 ("Court may not properly
consider, at this juncture, plaintiff's various 'What if'
arguments--such as 'What if some prosecutor were to charge a freelance
journalist under section 132.5? . . . 'What if it were applied to the
mere reimbursement of a witness's travel costs or telephone
charges"'). Plaintiff does not dispute that it mounts only a facial
challenge but argues that it is proper for the Court to consider
evidence regarding the impact the statutes have on CFAC members.

Defendants' argument is without merit. In United States v. National
Treasury Employees Union, ("NTEU") 115 S. Ct. 1003 (1995), the Supreme
Court struck down a regulation banning all federal employees from
receiving fees for making speeches or writing articles. In doing so,
the Supreme Court relied on evidentiary submissions which detailed how
the statutes impacted members of the plaintiff class. See NTEU at 1010
("The record contains a number of affidavits describing respondents'
past activities that the honoraria ban would now prohibit."). As here,
while there were no enforcement proceedings pending or threatening in
NTEU, the evidence regarding the statute's impact was relevant to
demonstrate its chilling effect. See Secretary of State of Maryland v.
Joseph H. Munson Co., 104 S. Ct. 2839, 2847 (1984) (facial challenges
to overbroad statutes are allowed to prevent "the statute from
chilling the First Amendment rights of other parties not before the
court."). CFAC's challenge is not based on "imagined hypothetical
prosecutions" but on the actual effect this legislation is having on
its members' freedom of expression. [FN5] See also Simon & Schuster.
Inc. v. Members of the N.Y. State Crime Victims Bd., 112 S. Ct. 501,
511 (1991) (Court considered effect "Son of Sam" law would have had on
authors such as Malcolm X, Jesse Jackson, Henry Thoreau, and Martin
Luther King, Jr.).

C. The Statutes are Content-Based Regulations

Under the Supreme Court's ruling in Simon & Schuster 112 S. Ct. at 501
the statutes are content-based regulations. In that case, the Supreme
Court held that New York's "Son of Sam" law, which required that
income from a criminal's literary works describing his crime be
deposited in an escrow account for his victims, was a content-based
statute. "It singles out income derived from expressive activity for a
burden the State places on no other income, and it is directed only at
works with a specified content." Id. at 508. As in Simon & Schuster,
the statutes herein target only speech relating to crimes. See Section
132.5(b)&(c) (forbids compensated speech relating to "information
obtained as result of witnessing the event or occurrence or having
personal knowledge of the facts" that the witness "knows or reasonably
should know is a crime.").

Defendants argue that Sections 132.5 and 1669.7 are not content-based
because they only restrict compensation for speech, not the speech
itself. This argument was squarely rejected by the Simon & Schuster
Court: a "statute is presumptively inconsistent with the First
Amendment if it imposes a financial burden on speakers because of the
content of their speech." Id. at 508. See also NTEU at 1014
("[p]ublishers compensate authors because compensation provides a
significant incentive toward more expression. By denying respondents
that incentive, the honoraria ban induces them to curtail their
expression . . .").

The State also argues that the statutes are not content-based because
they were enacted not "to prevent speech, but only to preserve and
protect the criminal justice system." Opposition, at 9. Again, the
Supreme Court has addressed and rejected such an argument:

The Board next argues that discriminatory financial treatment is
suspect under the First Amendment only when the legislature intends to
suppress certain ideas. This assertion is incorrect; our cases have
consistently held that 'illicit legislative intent is not the sine qua
non of a violation of the First Amendment'. . proper governmental
concerns can restrict unduly the exercise of rights protected by the
First Amendment.

Simon & Schuster, 112 S. Ct. at 509 (citations omitted).

Finally, defendants argue that the challenged statutes should be
construed as content-neutral time, place and manner regulations
because they are directed at the secondary effects of speech, not the
speech itself. See Renton v. Playtime Theatres. Inc., 106 S. Ct. 925
(1986), reh'g denied, 106 S. Ct. 1663 (1986) (ordinance prohibiting
adult theaters from locating within 1,000 feet of residential areas
held to be content-neutral.). The question of whether or not these
statutes are content-based raises an interesting question in lieu of
the Supreme Court's footnote in Simon & Schuster, 112 S. Ct. at 511
("[b]ecause the Son of Sam law is so overinclusive, we need not
address the Board's contention that the statute is content neutral . .
. ."). Considering, however, the express holding of the Simon &
Schuster Court that "[t]he Son of Sam law is a . . . content-based
statute," this Court presumes that the Supreme Court meant what it
said. Moreover, as the Son of Sam law, the statutes herein are so
overinclusive that they would fail to meet any constitutional
standard, regardless of whether they were deemed content-neutral or
content-based.

In sum, because these statutes are directed at speech with a
particular content, they must pass muster under the Supreme Court's
strict scrutiny test.

D. Sections 132.5 and 1669.7 Are Not Necessary and Narrowly Tailored
to Serve a Compelling State Interest

When a statute imposes a financial disincentive to publish works with
a particular content, "'the State must show that its regulation is
necessary to serve a ,compelling state interest and is narrowly drawn
to achieve that end."' Simon & Schuster, 112 S. Ct. at 509 (quoting
Arkansas Writers' Project, Inc. v. Ragland, 107 S. Ct. 1722, 1728
(1987).

Two fundamental principles guide the inquiry here. First, these
statutes impose a prior restraint on speech, which is "the most
serious and the least tolerable infringement on First Amendment
rights." Nebraska Press Asso. v. Stuart, 96 S. Ct. 2791, 2803 (1976).
Second, the speech targeted by Sections 132.5 and 1669.7 is at the
core of protected expression. As the Supreme Court made clear in Cox
Broadcasting Corp. v. Cohn, 95 S. Ct. 1029, 1045 (1975), "the
commission of crime, prosecutions resulting from it, and judicial
proceedings arising from the prosecutions . . . are without question
events of legitimate concern to the public and consequently fall
within the responsibility of the press to report the operations of
government." Keeping these two underlying principles in mind, the
Court turns to the strict scrutiny test.

1. The State's Interests

The State asserts three interests which are served by Sections 132.5
and 1669.7: "preserving the integrity of the criminal justice process,
protecting the fundamental right of citizens to a fair trial, and
ensuring the right to adduce credible evidence through the testimony
of witnesses." Opposition, pp. 11-12. The Court addresses each in
turn.

a. Integrity of the judicial process

Insofar as this interest is focused on possible erosion of public
confidence in the courts, the Supreme Court has repeatedly found that
a state's interest in maintaining "the institutional integrity of its
courts," is not sufficiently compelling to justify wholesale burdens
on speech. See Landmark Communications Inc. v. Virginia, 98 S. Ct.
1535, 1543 (1978) (state's interest in maintaining the "institutional
reputation of the courts" insufficient to justify punishment of
speech); Bridges v. California, 62 S. Ct. 190 (1941) (statute
restricting speech to preserve fair and orderly administration of
justice struck down); and Wood v. Georgia, 82 S. Ct. 1364 (1962)
(statute restricting speech to preserve fair administration of justice
struck down). The State cites only one case, Cox v. Louisiana, 85 S.
Ct. 476 (1965), reh'g denied, 85 S. Ct. 879 (1965), for its assertion
that a compelling state interest exists in insuring the appearance of
impartiality in its criminal justice system. The statute at issue in
Cox, however, was aimed primarily at conduct, namely picketing, and
was found to be a content-neutral time, place, and manner regulation;
therefore, the State did not need to offer a compelling state
interest.

Because the State's asserted interest in preserving the integrity of
the judicial process has been deemed not sufficiently compelling, the
Court need not decide whether the statutes are narrowly tailored to
serve this interest. See Simon & Schuster, 112 S. Ct. at 511.

b. Insuring a Fair Trial

CFAC does not dispute that the State has a compelling interest in
insuring the fairness of criminal trials. See Plaintiff's Memorandum,
p 18; U.S. Const. amend VI; and Cal. Const. Art. 1, Section 15.[FN6]

c. Maintain Credibility of Witnesses

In its opposition, the State claims that the statutes are designed in
part "to adduce credible evidence through the testimony of witnesses."
The Court has difficulty appreciating how this interest differs from
the State's ultimate interest in insuring a fair trial and analyzes it
as one element of the State's core interest in guaranteeing a fair
trial.

2. The Statutes are Not Necessary to Advance the State's Interest in
Insuring a Fair Trial

The State claims that Sections 132.5 and 1669.7 are necessary to
promote a fair trial because compensated witnesses are more likely to
exaggerate or lie, their testimony will appear tainted in the eyes of
the jury, and they can be easily discredited during trial.

a. Alternative, Less Restrictive Means Already Exist To Sufficiently
Promote State's Interest

The Supreme Court has repeatedly struck down speech restrictive laws
when existing state law sufficiently provided a means of achieving the
State's compelling interest. In Meyer v. Grant, 108 S. Ct 1886 (1988),
the Court struck down a statute which banned payments to circulators
of initiative petitions, finding that the State had failed to
demonstrate that such a ban was necessary to promote its interest in
protecting the integrity of the initiative process. Colorado had
argued that compensation might tempt a circulator from disregarding
his duty to verify the authenticity of signatures on the petition. The
Court rejected this argument because the State had provided "[n]o
evidence to support that speculation" and Colorado already had several
provisions in place to "deal expressly with the potential danger that
circulators might be tempted to pad their petitions with false
signatures . . risk of improper conduct . . . ." Id. at 1894-95. See
also Riley v. National Federation of the Blind of North Carolina, 108
S. Ct. 2667, 2676 (1988) (in holding unconstitutional statute which
limited professional fundraisers' fees, Court found sufficient
mechanisms existed to combat fraud); and Butterworth v. Smith, 110 S.
Ct. 1376, 1382 (1990) (in striking down statute which prohibited
witnesses from ever disclosing testimony given before grand jury,
Court found State's interest in preventing subornation of witnesses
adequately served by criminal penalties for perjury and tampering with
witnesses.).

As in Meyer, Riley and Butterworth, California has sufficient
non-speech restrictive safeguards in place to serve its interest. Well
before the enactment of Sections 132.5 and 1669.7, California's
criminal courts employed a myriad of non-speech restrictive mechanisms
to minimize and discourage witness fabrication. California's statute
books contain laws banning perjury (Cal. Penal Code Section 118),
subornation of perjury (Cal. Penal Code Section 127), and the bribing
of witnesses (Cal. Penal Code Section 138). In addition, the oath
procedure (Cal. Evid. Code Sections 165, 710), witness competency
requirements (Cal. Evid. Code Sections 700-704) and the prospect of
cross-examination (Cal. Evid. Code Section 761), promote truthful and
accurate testimony by witnesses in criminal cases. Similarly, the
State's concern that jurors will be unable to assess the credibility
of a compensated witness is safeguarded by Cal. Evid. Code Sections
761, 780, and 785, which allow for the cross-examination of all
witnesses in criminal cases. California's Evidence Code also permits
the introduction of evidence regarding bias and requires instructions
to the jury on how to evaluate a witness' credibility. See 1 CALJIC
Sections 2.13, 2.20-24 (jury instructions on how to evaluate
credibility of witnesses). California's courts have previously
recognized the effectiveness of such procedures. See Sun Co. v.
Superior Court of San Bernardino, 105 Cal. Rptr. 873, 884 (1973)
(striking down pre-trial ban on disclosure of witnesses' names in
interest of insuring a fair trial because "sufficient legal safeguards
presently exist to assure the defendant of a fair trial.").

Moreover, as in Meyer, the State's assertion that witness compensation
has a deleterious effect on witnesses in criminal cases is unsupported
by the record, save the one example of Jill Shively, a witness in the
o.J. Simpson case who was not called to testify after she had been
paid $5,000 by a tabloid .[FN7] See NTEU 115 S. Ct at 1017 ("[w]hen
the Government defends a regulation on speech as a means to redress
past harms or prevent anticipated harms, it must do more than simply
posit the existence of the disease sought to be cured . . . It must
demonstrate that the recited harms are real, not merely conjectural,
and that the regulation will in fact alleviate these harms in a direct
and material way.") (quotation omitted).

Defendants argue that the above-cited safeguards are inadequate to
serve the State's goal because, once a witness has been paid for his
story, the damage to his testimony/credibility has already been done.
According to the State, it is because a witness' credibility may be
attacked on the stand and "because juries may discredit and reject
evidence because of witnesses' perceived bias or perceived financial
interests in the testimony," that the legislation is necessary.
Opposition, p. 24 (emphasis in original). In making this argument,
however, the State modifies its asserted interest from that of
insuring a fair trial to one of avoiding the inconvenience of
addressing the issue of witness compensation. This latter interest is
hardly compelling. While it would undoubtedly be more convenient if
witnesses were not compensated for their speech prior to trial, "the
First Amendment does not permit the State to sacrifice speech for
efficiency." Riley, 108 S. Ct. at 2676.

The State, citing Nebraska Press Asso. v. Stuart, 96 S. Ct. 2791
(1976) and Gentile v. State Bar of Nevada, 111 S. Ct. 2720 (1991) next
argues that these statutes should be deemed necessary because the
First Amendment rights of criminal trial participants may be
restricted to a greater degree to protect a defendant's Sixth
Amendment right to a fair trial. Ironically, the cases defendants cite
for this proposition, reject the blanket, categorical approach taken
by California's legislature. The Nebraska Press Court held that before
any prior restraint on the rights of trial participants could be
justified, the State must meet "the heavy burden of demonstrating, in
advance of trial, that without prior restraint a fair trial will be
denied." Id. at 2807-08. In Gentile, the ethical rules of the Nevada
State Bar prohibited lawyers from making extrajudicial statements
which have a "substantial likelihood of materially prejudicing" an
adjudicative proceeding. Recognizing that lawyers are subject to
special regulation by the bodies that license the practice of law,
Chief Justice Rehnquist, writing for the majority, held that an
attorney's speech could be so regulated. An unanimous Court, however,
found that a "substantial likelihood" of "material prejudice" must be
demonstrated before such a speech restriction could be justified. Id.
at 2745. Section 132.5 contains no such standard. California's
reliance on Nebraska Press and Gentile is therefore misplaced.

b. The Statutes Are Substantially Overbroad

As a means of insuring the fairness of a criminal trial, the
challenged statutes are significantly overinclusive. The legislation
restricts speech relating to "crimes" regardless of whether there will
ever be a trial or even an indictment in the matter. As CFAC points
out in its brief, the vast majority of crimes go unprosecuted and, of
those that are prosecuted, few are tried. See Memorandum, p. 21, fn 7.
Sections 132.3 and 1669.7, however, inexplicably restrict speech in
all such cases. The State's asserted interest in insuring a fair trial
cannot be implicated in cases where there will be no trial.

The statutes also bar receipt of all payments or benefits, no matter
how small. The witness who receives $50 for a meal and cab fare would
therefore be covered by the legislation. In their declarations, CFAC's
members have expressed a realistic concern that non-monetary
"benefits," such as insuring witness anonymity, would also be barred
by the statute. It is difficult to understand how such de minimus
benefits would have a deleterious effect on a witness' credibility at
trial.

The statutes also provide that a witness may not be paid for any
information relating to a crime. Thus, for example, information which
is undisputed, inadmissible, or immaterial and would therefore have no
bearing on a trial's fairness, would be regulated. Contrast Cal. Penal
Code Section 118 (California's perjury statute bars only willful
deceit when the misstatement is "material" to outcome of the
proceeding.)

As in Simon & Schuster, 112 S. Ct. 501, "these two provisions combine
to encompass a potentially very large number of works." Id. at 511.
CFAC has submitted a list of acclaimed works which would have been
barred had these statutes been in effect at the time and place of
publication. For instance, books by Watergate participants John Dean
(Blind Ambition) and John Erlichman (Witness to Power) could not have
been published until the Watergate prosecutions had reached "final
judgment." Works by citizens engaged in civil disobedience would have
been illegal if they discussed the author's contemporaneous criminal
activities. See e.g., Martin Luther King Jr's Why We Can't Wait. See
also Affidavit of Lisa Drew, Vice President of Simon & Schuster
division (cites numerous works which would have been illegal). As
these examples illustrate, the challenged statutes reach an wide range
of works that have no bearing on the fairness of a criminal trial.

The State contends that the statutes are not as overbroad as the Son
of Sam law because, unlike New York's law, these regulations only
restrict speech for a limited period of time. See Section 132.5(f)
(restriction does not apply after one year has lapsed since criminal
act and, if prosecution commenced, until judgment entered). This time
limit does not save the statutes. In Bridges v. California, 62 S. Ct.
190, 196-7 (1941), the Supreme Court rejected the contention that a
restriction on press coverage was less onerous because it was limited
to the pendency of the trial:

It must be recognized that public interest is much more likely to be
kindled by a controversial event of the day than by a generalization,
however penetrating, of the historian or scientist. Since they punish
utterances made during the pendency of a case, the[y] produce their
restrictive results at the precise time when public interest in the
matters discussed would naturally be at its height . . . . This
unfocused threat [of sanctions] is, to be sure, limited in time,
terminating as it does upon final disposition of the case. But this
does not change its censorial quality. An endless series of moratoria
on public discussion, even if each were very short, could hardly be
dismissed as an insignificant abridgment of freedom of expression.

See also Nebraska Press, 96 S. Ct. at 2803 (rejecting argument that
because court order postponed but did not prohibit press coverage it
was lesser intrusion on speech) .[FN8]

In sum, because the State's asserted need for this legislation appears
to be based on no more than speculation and because sufficient
safeguards already exist to serve its interest, Sections 1669.7 and
132.5's blanket, prior bans on speech are not necessary to serve the
State's interest. Having found that the challenged legislation is
neither necessary nor narrowly tailored to serve a compelling state
interest, the Court must decide whether injunctive relief is
appropriate.

C. Injunctive Relief Is Warranted Here

The Supreme Court has stated that "[t]he loss of First Amendment
freedoms, for even minimal periods of time, unquestionably constitutes
irreparable injury." Elrod v. Burns, 96 S. Ct. 2673, 2690 (1976). As
the declarations submitted by CFAC demonstrate, its members' ability
to exercise their First Amendment rights is impaired each day that
these statutes remain on the books. Because no remedy of law would be
adequate to protect plaintiff's First Amendment rights, a permanent
injunction is appropriate.

Conclusion

At oral argument, counsel for the State argued that the statutes could
be salvaged if the Court were to narrowly construe them. [FN9] Because
the statutes' defects are so many and so basic, however, the Court is
unable to construe the legislation narrowly without engaging in
"judicial legislation." This the Court declines to do. See NTEU 115 S.
Ct. at 1019 ("[o]ur obligation to avoid judicial legislation also
persuades us to reject the Government's second suggestion - that we
modify the remedy by crafting a nexus requirement for the honoraria
ban.").

For the above reasons, on August 7, 1995, the Court GRANTED plaintiff
CFAC's motion for a permanent injunction. Plaintiff shall submit an
accounting in support of its motion for costs and attorneys' fees by
September 4 1995. Defendants shall submit their opposition, if any, no
later than September 18, 1995. The Clerk of the Court shall close the
file.

SO ORDERED.

DATED: August 9 , 1995

/s/ FERN M. SMITH

United States District Judge



==========FOOTNOTES==========

[1] The First Amendment provides that "Congress shall make no law
makes that prohibition applicable to the states. Article I, section
2(a) of the California Constitution provides that "[e]very person may
speak, write and publish his or her sentiments on all subjects .... A
law may not restrain or abridge liberty of speech or press." "The
right to speak freely is more broadly construed under the state
Constitution than under the First Amendment." People v. Tisbert, 14
Cal. Rptr.2d 128, 130 (1992). Because the principles used in assessing
the constitutionality of a statute under the U.S. Constitution are
virtually identical to those used in analyzing a law under
California's Constitution, the Court analyzes the statutes under both
Constitutions simultaneously.


[2] 0n May 30, 1995, the San Francisco defendants, District Attorney
Arlo Smith, Sheriff Michael Hennessey, and Chief of Police Anthony
Ribera submitted their response to plaintiff's motion in which they
deferred to the Attorney General's defense of this action.


[3] Section 132.5 reads, in relevant part, as follows:

(b) A person who is a witness to an event or occurrence that he or she
knows, or reasonably should know, is a crime or who has personal
knowledge of facts that he or she knows, or reasonably should know,
may require that person to be called as a witness in a criminal
prosecution shall not accept or receive, directly or indirectly, any
payment or benefit in consideration for providing information obtained
as result of witnessing the event or occurrence or having personal
knowledge of the facts.

(c) Any person who is a witness to an event or occurrence that he or
she reasonably should know is a crime shall not accept or receive,
directly or indirectly, any money or its equivalent in consideration
for providing information obtained as a result of his or her
witnessing the event or occurrence . . . .

(e) A violation of subdivision (b) is a misdemeanor punishable by
imprisonment for a term not exceeding six months in a county jail, a
fine not exceeding three times the amount of compensation requested,
accepted, or received or contracted for by the person.

(f) This section does not apply if more than one year has elapsed from
the date of any criminal act related to the information that is
provided under subdivision (b) or (c) unless prosecution has commenced
for that criminal act. If prosecution has commenced, this section
shall remain applicable until the final judgment in the action.

(g) This section does not apply to any of the following circumstances:

(1) Lawful compensation paid to expert witnesses, investigators,
employees, or agents by a prosecutor, law enforcement agency, or an
attorney employed to represent a person in a criminal matter.

(2) Lawful compensation provided to an informant by a prosecutor or
law enforcement agency.

(3) Compensation paid to a publisher, editor, reporter, writer, or
other person connected with or employed by a newspaper, magazine, or
other publication or a television or radio news reporter or other
person connected with a television or radio station, for disclosing
information obtained in the ordinary course of business.

(4) Statutorily authorized rewards offered by governmental agencies
for information leading to the arrest and conviction of specified
offenders.

(h) For purposes of this section, "information" does not include a
photograph, videotape, audiotape, or any other direct recording of
events or occurrences.


[4] Section 132.5(a) contains the following legislative findings: (a)
The Legislature supports and affirms the constitutional right of every
person to communicate on any subject. This section is intended to
preserve the right of every accused person to a fair trial, the right
of the people to due process of law, and the integrity of judicial
proceedings. This section is not intended to prevent any person from
disseminating any information or opinion. The Legislature hereby finds
and declares that the disclosure for valuable consideration of
information relating to crimes by prospective witnesses can cause the
loss of credible evidence in criminal trials and threatens to erode
the reliability of verdicts. The Legislature further finds and
declares that the disclosure for valuable consideration of information
relating to crimes by prospective witnesses creates an appearance of
injustice that is destructive of public confidence.


[5] Defendants rely primarily on Tobe v. City of Santa Ana, 40 Cal.
Rptr. 2d 402 (Cal.1995) to argue that the Court should reject CFAC's
proffered evidence. The challenged statute in Tobe, however, did not
implicate the First Amendment and any concerns regarding the chilling
effect on protected expression were not at issue. See Tobe, 40 Cal.
Rptr.2d at 417, fn. 15. Defendants themselves concede that "[w]ith
respect to a claim that the state laws are facially overbroad and/or
vague, and therefore sweep in a substantial amount of protected First
Amendment conduct, a plaintiff is given somewhat more leeway to rely
on hypothetical applications of the statute to third persons."
opposition, p. 9, fn. 9 (emphasis in original). As discussed above,
this case involves just such a facial attack.


[6] The State attempts to distinguish this case from the Supreme
Court's holding in Simon & Schuster by arguing that the State's
interest is more compelling because it implicates a constitutional
concern (the Sixth Amendment), while New York's interest did not
(providing restitution for crime victims). Even assuming arguendo that
the interest here is more compelling than the one in Simon & Schuster,
this does not alter the Court's analysis under the strict scrutiny
test, which, once a compelling interest is found, turns to whether the
means used are necessary to achieve that government interest. It is
the second part of that test, not the first, which the State fails to
satisfy.


[7] The Court further questions the State's alleged "need" for these
provisions when expert witnesses and paid government informants appear
regularly before juries. The Court does not understand how a jury can
adequately assess the paid witness' testimony when the witness is an
expert or a paid governmental informant but cannot do so when the
witness receives compensation from a news organization. While this
argument goes to the statutes' underinclusiveness, which the Court
does not address, it is raised here merely to demonstrate why the
State's claim that the statutes are necessary is problematic.


[8] Because the Court has found that these statutes are substantially
overbroad, it need not address CFAC's persuasive arguments that the
statutes are also underinclusive and vague.


[9] For example, counsel suggested that the Court could rule that the
laws do not apply to freelance journalists, to de minimus
compensation, to rewards by private third parties, to offers of
anonymity and confidentiality, or to defendants.