Explainers

The California Public Records Act (“CPRA”) applies to state & local agencies, which must generally disclose any public record on request to any member of the public unless the record falls within a specific statutory exemption from disclosure. Govt. Code §§ 7922.525, 7922.530.

The CPRA provides for two means of accessing public records: inspection and copying.

As to inspection, the CPRA states, “Public records are open to inspection at all times during the office hours of a state or local agency and every person has a right to inspect any public record, exempted as otherwise provided…. Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law.” Govt. Code § 7922.525.

The CPRA also states, “A requester who inspects a disclosable record on the premises of the agency has the right to use the requester’s equipment on those premises, without being charged any fees or costs, to photograph or otherwise copy or reproduce the record in a manner that does not require the equipment to make physical contact with the record,” unless copying would damage records or result in unauthorized access to “computer systems or secured networks.” Govt. Code § 7922.530(b).

The California Attorney General has stated that the public has a “right of access to and inspection of public records free of charge” Cal. A.G. Op. No. 01-605 at p. 5.

The right to make one’s own copies is subject to “reasonable limits” to protect records or “prevent the copying of records from being an unreasonable burden to the orderly function of the agency and its employees.” Govt. Code § 7922.530(c).

The CPRA addresses the right to obtain copies of records separately from the right to inspect them and states that agencies may charge certain costs for copies. An “agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. Upon request, an exact copy shall be provided unless impracticable to do so.” Govt. Code § 7922.530(a).

The CPRA specifies a timeline for responding to requests for copies of records. Govt. Code § 7922.535(a) (each “agency, upon a request for a copy of records, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor.”).

These statutes contemplate that an agency has 10 days to respond to a request for copies of records, or 14 more for unusual circumstances, and that the agency can charge certain costs for copies. But they stand independently of the provisions for inspection of records & making copies at one’s own expense, which are not apparently subject to the timeline for responding to a request for copies. Standing alone, the statutory language suggests there could be a right to inspect public records on demand during office hours.

However, in a case decided before the CPRA was adopted, but which concerned previous laws similarly providing for inspection of public records during office hours, the California Supreme Court held that the right of inspection is “subject to an implied rule of reason,” under which the agency may “formulate regulations necessary to protect the safety of the records against theft, mutilation or accidental damage, to prevent inspection from interfering with the orderly function of his office and its employees, and generally to avoid chaos in the record archives.” Bruce v. Gregory, 65 Cal. 2d 666, 676 (1967) (discussing inspection of property tax records). However, the regulations should not be “broader than is strictly essential to prevent inefficiency or chaos in public offices.” Id. at 677.

Applying that principle, the court noted, “Inspection may be denied or restricted if (1) records are needed by the staff of the tax collector’s office or other officials; (2) the adequate space for inspection which the tax collector, in his regulations, has undertaken to provide is, at a particular moment, occupied by other members of the public; (3) he has valid reasons to fear defacement or other damage to the records, and supervision of inspection is, at the moment, impossible; (4) a person is monopolizing certain records to the detriment of other members of the public who wish to inspect them.” Id. at 678.

The court approved regulations that made records generally available for inspection during business hours, but with potential restrictions on access during peak workload periods. Id. at 670. It is possible a court would hold that an agency has similar authority to impose reasonable regulations on the timing of inspecting records under the CPRA.

The CPRA’s catchall exemption allows an agency to withhold records if it can prove “on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” Govt. Code § 7922.000. This “provision contemplates a case-by-case balancing process, with the burden of proof on the proponent of nondisclosure to demonstrate a clear overbalance on the side of confidentiality.” American Civil Liberties Union Foundation v. Superior Court, 3 Cal. 5th 1032, 1043 (2017).

As one court has noted, the catchall exemption “cannot logically be applied” if “the Legislature has created a specific exemption” for the records at issue or “categorical exemptions” for “classes of documents related to those in issue.” City of Hemet v. Superior Court, 37 Cal. App. 4th 1411, 1421 (1995).

Another court has explained why the catchall exemption must be narrowly applied:

We remain mindful that openness in the activities of government is fundamental to the exercise of our constitutional rights and our ability to function as a democracy. Courts must be alert to contentions by government entities that exaggerate the interest in nondisclosure, lest they be used as a pretext for keeping information secret for improper reasons, such as to avoid embarrassment over mistakes, incompetence, or wrongdoing. After all, to some extent any request for disclosure of public records will place a burden on government. Both the voters and their elected officials have established the general policy that this burden is well worth bearing in order to keep democracy vital. If the catchall provision of the CPRA becomes a loophole used to improperly keep public records from the people, the important purposes of the CPRA would be undermined.

Los Angeles Unified School Dist. v. Superior Court, 228 Cal. App. 4th 222, 250 (2014).

Mere assertions about the need to protect privacy or financial interests are not necessarily sufficient to justify withholding records under the catchall exemption. For example, where an agency used “public funds for a public multipurpose arena on land owned by a public university” and withheld the names of buyers of luxury suites under the catchall exemption, the Court of Appeal rejected the argument that withholding was justified on the ground that “donors, particularly anonymous donors, have a right to privacy in their financial dealings.” California State University, Fresno Assn., Inc. v. Superior Court, 90 Cal. App. 4th 810, 834 (2001). As the court said:

The public should be able to determine whether the purchase price for luxury accommodations in the arena is a fair and reasonable return on its contribution to the project. In other words, disclosure allows the public to discern whether its resources have been spent for the benefit of the community at large or only a limited few. The public should also be able to determine whether any favoritism or advantage has been afforded certain individuals or entities in connection with the license agreements, and whether any discriminatory treatment exists. Determinations pertaining to the public’s business cannot be made without disclosure of the identities of the licensees and the license agreements.

Id. at 833.

Similarly, where a city withheld “financial statements” submitted by a waste disposal company “in support of a rate increase” on the ground that “the financial information was a private corporation’s confidential documents obtained in confidence,” the Court of Appeal held the catchall exemption did not apply because any “privacy interests” in the company’s financial data did “not outweigh the public’s need to be informed of the provision of governmental services contracted on behalf of the residents,” given that the city had relied on the data to approve the rate increase. San Gabriel Tribune v. Superior Court, 143 Cal. App. 3d 762, 769-70, 780 (1983).

The Court of Appeal also held that the catchall exemption did not apply to disclosure of “pesticide applicator spray reports” given the compelling public interest in disclosure of such information concerning impacts on public health. Uribe v. Howie, 19 Cal. App. 3d 194, 214 (1971).

Agencies may sometimes assert the catchall exemption on the ground that compliance with a records request presents an undue burden. In such cases, this exemption requires courts “to weigh the benefits and costs of disclosure in each particular case,” including the “expense and inconvenience involved in segregating nonexempt from exempt information,” because the public interest “encompasses public concern with the cost and efficiency of  government” and it is not “in the public interest” to “make it possible for any person requesting information, for any reason or for no particular reason, to impose upon a governmental agency a limitless obligation.” American Civil Liberties Union Foundation v. Deukmejian, 32 Cal. 3d 440, 452-53 (1982). This analysis is highly fact-intensive, depending on the subject matter of the request, the public interest in disclosure, and the extent of the burden.

However, the mere claim that a request might call for hundreds or thousands of records is not necessarily sufficient to justify an assertion that locating and disclosing them is “unduly burdensome.” Any such assertion requires an agency to justify withholding the reports by demonstrating “a clear overbalance on the side of confidentiality.” Becerra v. Superior Court, 44 Cal. App. 5th 897, 930 (2020).

As one court said, “There is nothing in the Public Records Act to suggest that a records request must impose no burden on the government agency.” County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1327 (2009). For example, “the Legislature chose to enact Senate Bill 1421 despite its awareness that [an agency’s] compliance would entail significant expense.” Becerra, 44 Cal. App. 5th at 931.

Courts have rejected claims of undue burden in some circumstances. For example, the Court of Appeal dismissed an agency’s assertion of undue burden merely because the agency contended it might have to review “over 109,000 records” and it failed to provide sufficient specificity to support its assertion. Id. at 930.

In another case, the court held it was not unduly burdensome to require an agency to review “approximately 8700 exemptions for individuals with criminal histories who were seeking employment in a licensed day care facility” so it could “compile an accurate list of the individuals granted criminal conviction exemptions.” CBS Broadcasting Inc. v. Superior Court, 91 Cal. App. 4th 892, 898, 909 (2001).

The Court of Appeal also rejected the claim that it was unduly burdensome to compile and disclose “copies of all charging documents in homicide cases filed by the District Attorney between January 1977 and May 1993,” which involved “hundreds of defendants and victims.” Weaver v. Superior Court, 224 Cal. App. 4th 746, 748-49 (2014).

In a more recent case, the Court of Appeal held a request was not unclear or unduly burdensome where a county was able to produce “an index of 42,582 e-mails that fit the criteria of the request, thereby demonstrating that the records could be located with reasonable effort and the volume of material was not unmanageable.” Getz v. Superior Court, 72 Cal. App. 5th 637, 651 (2021).

The court also rejected any claims of undue burden based on the alleged need to review the emails for any privileged or exempt material because there was no evidence any privilege or exemption applied where the request sought emails “with four outside e-mail domains,” only one of which belonged to a law firm & therefore the “evidence does not support a claimed need to review all 42,852 indexed e-mails.” Id. at 655-56.

Govt. Code § 7927.705 provides that the CPRA “does not require disclosure of records, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.”

One such law is Welfare & Institutions Code § 827, which generally prohibits public disclosure of a juvenile “case file.” The juvenile court retains discretion to allow inspection of such files upon petition & hearing after notice to the minor & other interested parties, but that is not an automatic entitlement to disclosure. Welf. & Inst. Code § 827(a)(1)(Q); Cal. Rules of Court, rule 5.552; In re Keisha T., 38 Cal. App. 4th 220 (1995).

The statute allows disclosure of certain records about a “deceased child” who had been under the court’s dependency jurisdiction, if a petition for release of the records “has been filed and interested parties have been afforded an opportunity to file an objection.” Welf. & Inst. Code § 827(a)(2)(A); see also Welf. & Inst. Code § 10850.4(a) (providing for release of certain information by “county child welfare agency” when “a child fatality has occurred in the county and that there is a reasonable suspicion that the fatality was caused by abuse or neglect”).

A “juvenile case file” is defined as a “a petition filed in a juvenile court proceeding, reports of the probation officer, and all other documents filed in that case or made available to the probation officer in making the probation officer’s report, or to the judge, referee, or other hearing officer, and thereafter retained by the probation officer, judge, referee, or other hearing officer.” Welf. & Inst. Code § 827(e).

However, courts have held that section 827 applies to police reports about the arrest or detention of juveniles regardless of whether charges were filed in juvenile court. T.N.G. v. Superior Court, 4 Cal. 3d 767, 780-81 (1971); Wescott v. County of Yuba, 104 Cal. App. 3d 103, 106-07 (1980). Those courts did not clearly address the question whether police reports could be disclosed if redacted to remove identifying information of juveniles. That question may be academic to the extent that police reports are covered by the separate exemption for investigatory records. Govt. Code § 7923.600; Haynie v. Superior Court, 26 Cal. 4th 1061, 1068-71 (2001). No published opinion has yet addressed whether section 827 prevents disclosure of records about certain uses of force or types of misconduct by officers, as discussed in FAC’s police transparency guide, if they are committed against juveniles.

The California Public Records Act (“CPRA”) specifies a time to respond to requests, but not necessarily a specific deadline for providing copies of records, other than that an agency “shall make the records promptly available.” Govt. Code § 7922.530(a).

“Each agency, upon a request for a copy of records, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor. If the agency determines that the request seeks disclosable public records, the agency shall also state the estimated date and time when the records will be made available.” Govt. Code § 7922.535(a).

Therefore, although the CPRA establishes deadlines for an agency’s initial response to a request, it “does not specify when records must be produced to a requesting party.” Motorola Communication & Electronics, Inc. v. Department of General Services, 55 Cal. App. 4th 1340, 1349 (1997).

An exception applies for records covered by SB 1421 & SB 16, relating to certain uses of force or misconduct by law enforcement officers. Except for certain delays authorized during pending investigations or proceedings, such records “shall be provided at the earliest possible time and no later than 45 days from the date of a request for their disclosure.” Penal Code § 832.7(b)(11).

In “unusual circumstances,” the time to respond may be extended by up to 14 days. Govt. Code § 7922.535(b). The term “unusual circumstances” means “the following, but only to the extent reasonably necessary to the proper processing of the particular request:

(1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request.

(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request.

(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein.

(4) The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data.”

Govt. Code § 7922.535(c).

If an agency claims “unusual circumstances,” it must provide “written notice … setting forth the reasons for the extension and the date on which a determination is expected to be dispatched.” Govt. Code § 7922.535(b).

In general, when a person “requests to inspect a public record or obtain a copy of a public record, the public agency, in order to assist the member of the public make a focused and effective request that reasonably describes an identifiable record or records, shall do all of the following, to the extent reasonable under the circumstances:

(1) Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated.

(2) Describe the information technology and physical location in which the records exist.

(3) Provide suggestions for overcoming any practical basis for denying access to the records or information sought.”

Govt. Code § 7922.600(a).

The CPRA provides that nothing in it “shall be construed to permit an agency to delay or obstruct the inspection or copying of public records.” Govt. Code § 7922.500. Unfortunately, however, the CPRA itself typically “provides no remedy for failure to timely comply with a request for records” by itself & courts do not typically force disclosure of records merely because the agency was late. Rogers v. Superior Court, 19 Cal. App. 4th 469, 483 (1993).

As the California Supreme Court said, “we believe that requiring disclosure of otherwise exempt records as a penalty for delay in complying with the Act’s timing requirements is unduly harsh. Certainly, the Act does not expressly provide such a remedy.” Michaelis, Montanari & Johnson v. Superior Court, 38 Cal. 4th 1065, 1072 (2006).

If one believes an agency has unlawfully withheld public records not covered by a specific exemption, the CPRA provides for legal action to enforce the right to inspect or copy public records. See Govt. Code §§ 7923.000, 7923.100. In such litigation, a person prevailing against an agency in a CPRA case is generally entitled to recover costs & attorney fees. Govt. Code § 7923.115(a). An agency is not entitled to recover costs or attorney fees from a requester who brings suit unless the court finds the case is “clearly frivolous.” Govt. Code § 7923.115(b).

In litigation, an agency bears the burden of proof to justify withholding requested records. International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court, 42 Cal. 4th 319, 328 (2007).

To FAC’s knowledge, there is no published decision that discusses whether the California Public Records Act (“CPRA”) requires release of booking photographs, or whether such records are exempt from disclosure.

Agencies often cite an Attorney General opinion from 2003, which stated that law enforcement has the discretion to decide whether to disclose booking photos primarily on the theory that “mug shots fall within the ‘records of investigations’ exemption,” now codified at Govt. Code § 7923.600, to justify withholding booking photos. 86 Ops. Cal. Atty. Gen. 132, 135 (2003).

However, the California Supreme Court has explained that this exemption applies only to a record that “on its face purport[s] to be an investigatory record,” Williams v. Superior Court, 5 Cal. 4th 337, 356 (1993).

Thus, it could be argued that the investigative records exemption does not include booking photographs, as courts elsewhere have suggested. Pemberton v. Bethlehem Steel Corp., 502 A.2d 1101, 1119 (Md. Ct. Spec. App. 1986) (ordering disclosure because “[i]t is not at all clear that a ‘mug shot’ necessarily constitutes or is part of a ‘record of investigation’ so as to be permissibly excludable” from public disclosure under similarly worded open records law).

Arguably, mug shots are not on their face records of an investigation, and may not be withheld under the investigatory exemption except where they are legitimately used for investigatory purposes. Williams, 5 Cal. 4th at 356. An agency may not shield a record from public disclosure “simply by placing it in a file labeled ‘investigatory.’ … ‘To say that the exemption … is applicable to any document which a public agency might, under any circumstances, use in the course of [an investigation] would be to create a virtual carte blanche for the denial of public access to public records. The exception would thus swallow the rule.’” Id. (quoting Uribe v. Howie, 19 Cal. App. 3d 194, 212-13 (1971)).

Generally, however, the CPRA’s exemptions are permissive rather than mandatory & an agency may choose to release certain records even if it is allowed to withhold them. Govt. Code § 7921.500; Marken v. Santa Monica-Malibu Unified School Dist., 202 Cal. App. 4th 1250, 1262 (2012). Accordingly, agencies have historically exercised discretion to release mugshots in certain circumstances.

If an agency intentionally discloses a record that is otherwise exempt from disclosure, such disclosure generally waives exemptions from disclosure as to that record. Govt. Code § 7921.505; Ardon v. City of Los Angeles, 62 Cal. 4th 1176, 1183 (2016). Inadvertent disclosure does not generally waive exemptions. Id.

Under AB 1475, which took effect January 1, 2022, “A police department or sheriff’s office shall not share, on social media, booking photos of an individual arrested on suspicion of committing a nonviolent crime” except in the following circumstances:

(1) A police department or sheriff’s office has determined that the suspect is a fugitive or an imminent threat to an individual or to public safety and releasing or disseminating the suspect’s image will assist in locating or apprehending the suspect or reducing or eliminating the threat.

(2) A judge orders the release or dissemination of the suspect’s image based on a finding that the release or dissemination is in furtherance of a legitimate law enforcement interest.

(3) There is an exigent circumstance that necessitates the dissemination of the suspect’s image in furtherance of an urgent and legitimate law enforcement interest.

Penal Code § 13665(a).

The term “nonviolent crime” means “a crime not identified in subdivision (c) of Section 667.5.” Penal Code § 13665(c)(1). Penal Code § 667.5(c) lists a number of crimes identified as a “violent felony.”

The term “social media” has “the same meaning as in Section 632.01, except that social media does not include an internet website or an electronic data system developed and administered by the police department or sheriff’s office.” Penal Code § 13665(c)(2).

Under Penal Code § 632.01(a)(1), “social media” means “an electronic service or account, or electronic content, including, but not limited to, videos or still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.”

Therefore, it appears that “social media,” as defined in Penal Code § 13665 by cross-reference to Penal Code § 632.01, includes “electronic content” & “email.” However, nothing in § 13665 appears to prevent an agency from sharing a hard copy of a booking photo.

The California Public Records Act requires agencies to help persons requesting public records in certain ways:

When a member of the public requests to inspect a public record or obtain a copy of a public record, the public agency, in order to assist the member of the public make a focused and effective request that reasonably describes an identifiable record or records, shall do all of the following, to the extent reasonable under the circumstances:

(1) Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated.

(2) Describe the information technology and physical location in which the records exist.

(3) Provide suggestions for overcoming any practical basis for denying access to the records or information sought.

Govt. Code § 7922.600(a)

With respect to searching for requested records, as one court said, “There is nothing in the Public Records Act to suggest that a records request must impose no burden on the government agency.” County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1327 (2009).

Although an agency need not “search an enormous volume of data for a ‘needle in the haystack,’ … [r]ecords requests, however, inevitably impose some burden on government agencies. An agency is obliged to comply so long as the record can be located with reasonable effort.” Cal. First Amendment Coalition v. Superior Court, 67 Cal. App. 4th 159, 166 (1998) (“CFAC“).

A request must be one that “reasonably describes an identifiable record or records,” Govt. Code § 7922.530(a), but “the requirement of clarity must be tempered by the reality that a requester, having no access to agency files, may be unable to precisely identify the documents sought. Thus, writings may be described by their content. The agency must then determine whether it has such writings under its control and the applicability of any exemption. An agency is thus obliged to search for records based on criteria set forth in the search request.” CFAC, 67 Cal. App. 4th at 165-66.

Generally, the “scope of the search agencies are required … to undertake need only be reasonably calculated to locate responsive documents,” although “it is often not easy to say what is reasonable in the circumstances” because “the scope of the search is determined by the scope of the request.” American Civil Liberties Union of Northern California v. Superior Court, 202 Cal. App. 4th 55, 85 (2011). Typically, if “an agency has reason to know that certain places may contain responsive documents, it is obligated … to search barring an undue burden.” Community Youth Athletic Center v. City of National City, 220 Cal. App. 4th 1385, 1425-26 (2013).

Under the federal Freedom of Information Act, on which the CPRA was modeled, one court held that an agency must show “beyond material doubt” that “it has undertaken all reasonable measures to uncover all relevant documents,” and a search for requested records may be inadequate when an agency ignores “positive indications of overlooked materials” or “leads that emerge[d]” during the search. Transgender Law Ctr. v. Immigration & Customs Enf’t, 46 F.4th 771, 780 (9th Cir. 2022).

The failure to produce public records due to an inadequate search can be tantamount to an outright refusal to disclose. Community Youth Athletic Center, 220 Cal. App. 4th at 1425 (“The effect of the City’s inability or unwillingness to locate the records had the same effect as withholding requested information from the public.”).

The California Public Records Act (“CPRA”) provides for both inspection & copying of public records.

As to inspection, it states, in relevant part, “Public records are open to inspection at all times during the office hours of a state or local agency and every person has a right to inspect any public record, exempted as otherwise provided.” Govt. Code § 7922.525.

There is generally no charge to inspect public records and make copies at one’s own expense with one’s own equipment. Govt. Code § 7922.520(a). The California Attorney General has stated that the public has a “right of access to and inspection of public records free of charge” Cal. A.G. Op. No. 01-605 at p. 5.

When a request seeks copies of public records, agencies may generally charge for “direct costs of duplication,” or a specific “statutory fee if applicable.” Govt. Code § 7922.530(a). An agency has discretion “to waive or reduce” fees that are otherwise authorized by law. North County Parents Organization v. Department of Education, 23 Cal. App. 4th 144, 148 (1994).

For copies of electronic records in particular, agencies may generally charge only “the direct cost of producing a copy of a record in an electronic format,” except agencies may charge “the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record” when the “agency would be required to produce a copy of an electronic record and the record is one that is produced only at otherwise regularly scheduled intervals” or the “request would require data compilation, extraction, or programming to produce the record.” Govt. Code § 7922.575.

For hard copy or electronic records, the CPRA does not authorize agencies to charge for “staff time involved in searching the records, reviewing records for information exempt from disclosure under law, and deleting such exempt information.” National Lawyers Guild v. City of Hayward, 9 Cal. 5th 488, 493 (2020).

The Court of Appeal addressed the term “statutory fee” in Shippen v. Dep’t of Motor Vehicles, 161 Cal. App. 3d 1119 (1984). At issue in Shippen was the question whether Vehicle Code § 1811 created a “statutory fee” authorizing DMV to charge fees in excess of its actual costs for copies of records. At the time, § 1811 provided “The department may sell copies of all or any part of its records at a charge sufficient to pay at least the entire actual cost to the department of the copies, the charge for the records and the conditions under which they may be sold to be determined by the director.” Shippen, 161 Cal. App. 3d at 1123. The court held § 1811 established a “statutory fee” for purposes of the CPRA. Id. at 1125.

Under the California Public Records Act, “A state or local agency may not allow another party to control the disclosure of information that is otherwise subject to disclosure pursuant to this division.” Govt. Code § 7921.005.

A public agency may not generally rely on a confidentiality agreement, standing alone, to justify withholding records that are otherwise subject to disclosure. “Assurances of confidentiality” by themselves are not generally “sufficient to convert what was a public record into a private record.” San Gabriel Tribune v. Superior Court, 143 Cal. App. 3d 762, 775 (1983); see also Register Div. of Freedom Newspapers v. County of Orange, 158 Cal. App. 3d 893, 909-910 (1984) (“We conclude that assurances of confidentiality by the County … are inadequate to transform what was a public record into a private one.”).

The CPRA contains an exemption that covers “[r]ecords pertaining to pending litigation to which the public agency is a party, until the pending litigation has been finally adjudicated or otherwise settled” & “[r]ecords pertaining to a claim made” under the Government Claims Act “until the pending claim has been finally adjudicated or otherwise settled.” Govt. Code § 7927.200.

As interpreted by the courts, this exemption does not authorize withholding public records simply because they might be relevant to pending litigation. Instead, it generally applies only to documents “specifically prepared for use in litigation” by the agency itself. Board of Trustees of California State University v. Superior Court, 132 Cal. App. 4th 889, 897 (2005).

For example, where a police officer was investigated for misusing his powers & the city conducted an internal investigation before a tort claim arising from the incident was filed, the court held the report of the internal investigation was not covered by the pending litigation. City of Hemet v. Superior Court, 37 Cal. App. 4th 1411, 1419 (1995) (noting “internal affairs report here was prepared with a ‘dominant purpose’ relating to intradepartmental concerns” of “self-critical analysis” & “better training” rather than litigation).

Also, claims made against public agencies under the Government Claims Act are not covered by this exemption. Poway Unified Sch. Dist. v. Superior Court, 62 Cal. App. 4th 1496, 1503 (1998). However, correspondence between agency counsel & opposing counsel that is intended to be confidential, such as settlement negotiations, is covered by the exemption as long as the case remains pending, while deposition transcripts are generally not subject to the exemption, although in some cases the transcripts may be covered in whole or in part by a court’s protective order preventing their release. Board of Trustees, 132 Cal. App. 4th at 900-01.

The California Public Records Act (“CPRA”) requires state & local agencies to disclose public records on request except to the extent they can prove records or portions thereof are expressly exempt from disclosure. Govt. Code §§ 7922.000, 7922.525, 7922.530(a).

“Deliberative process” is not an express statutory exemption. Instead, it is a conditional application of the CPRA’s “catchall” exemption, which allows withholding only if an agency can prove that “on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1338 (1991) (quoting then-Govt. Code § 6255(a), now § 7922.000). Under the catchall exemption, the “proponent of nondisclosure” must “demonstrate a clear overbalance on the side of confidentiality.” American Civil Liberties Union Foundation v. Superior Court, 3 Cal. 5th 1032, 1043 (2017).

A claim of deliberative process must generally establish that “the disclosure of materials would expose an agency’s decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions” on the particular facts of each case. Times Mirror, 53 Cal. 3d at 1342; see also American Civil Liberties Union of Northern California v. Superior Court, 202 Cal. App. 4th 55, 75 (2011) (“ACLU”) (deliberative process protects “mental processes by which a given decision was reached” and “the substance of conversations, discussions, debates, deliberations and like materials reflecting advice, opinions, and recommendations by which government policy is processed and formulated”).

In some circumstances, “the public interest in nondisclosure does not clearly outweigh the public interest in disclosure, whatever the incidental impact on the deliberative process.” Times Mirror, 53 Cal. 3d at 1345–46. Thus, in general, “[n]ot every disclosure which hampers the deliberative process implicates the deliberative process privilege. Only if the public interest in nondisclosure clearly outweighs the public interest in disclosure does the deliberative process privilege spring into existence.” Citizens for Open Government v. City of Lodi, 205 Cal. App. 4th 296, 306 (2012).

If challenged in litigation, an agency must generally do more than merely recite “a policy statement about why the privilege in general is necessary…. While the policy behind the privilege makes sense, invoking the policy is not sufficient to explain the public’s specific interest in nondisclosure of the documents,” because the “policy could apply to almost any decisionmaking process.” Id. at 307 (holding agency “failed to carry its burden” with boilerplate); see also Golden Door Properties LLC v. Superior Court, 53 Cal. App. 5th 733, 791-92 (2020) (rejecting claim of deliberative process where agency’s “declaration makes broad conclusory claims” that “merely echo public policies underlying claims of privilege generally” and contains “no specific explanation of the role played by any of the 1,900 documents in the deliberative process, or why disclosure would be harmful—other than these generalities”); Caldecott v. Superior Court, 243 Cal. App. 4th 212, 225–26 (2015) (rejecting “conclusory statement” that document “contains the substance of or excerpts from actual discussions or debate, or information showing how government policy was formed,” or “will interfere with discussions or debate”).

The concept of “deliberative process” draws on parallel federal law under the Freedom of Information Act, Times Mirror, 53 Cal. 3d at 1340, under which “the deliberative process privilege shields from disclosure documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” United States Fish & Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777, 785 (2021) (cleaned up).

That rationale “does not apply, of course, to documents that embody a final decision, because once a decision has been made, the deliberations are done.” Id. A document generally “represents an agency’s final decision” when “the agency treats the document as its final view on the matter” & the document has “real operative effect.” Id. at 786; see also ACLU, 202 Cal. App. 4th at 76 (deliberative process protects “the formulation of policy,” not “implementation of the policy”).

In addition, deliberative process does not generally protect documents establishing general policies or criteria that agencies follow in making particular decisions. See, e.g., Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 867 (D.C. Cir. 1980) (holding agencies must generally disclose “orders and interpretations which it actually applies to cases before it”).

The California Public Records Act (CPRA) applies to state & local agencies, which must generally disclose any public record on request to any member of the public unless the record falls within a specific statutory exemption from disclosure. Govt. Code §§ 7922.525, 7922.530.

Govt. Code § 7927.705 provides that the CPRA “does not require disclosure of records, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.”

Among other things, this provision establishes that records protected by attorney-client privilege are generally exempt from disclosure. Roberts v. City of Palmdale, 5 Cal. 4th 363, 370 (1993).

As the California Supreme Court has explained:

The attorney-client privilege applies to communications in the course of professional employment that are intended to be confidential. Under the Evidence Code, a client holds a privilege to prevent the disclosure of confidential communications between client and lawyer. “Confidential communication” is defined as including “a legal opinion formed and the advice given by the lawyer in the course of that [attorney-client] relationship.” … [T]he attorney-client privilege applies to confidential communications within the scope of the attorney-client relationship even if the communication does not relate to pending litigation; the privilege applies not only to communications made in anticipation of litigation, but also to legal advice when no litigation is threatened.

Id. at 371 (citations omitted). A complete discussion of all potential attorney-client privilege issues is beyond the scope of this page, but a few common situations often applicable to public agencies are discussed.

In general, the “attorney-client privilege” does not “protect independent facts related to a communication,” such as the mere fact “that a communication took place, and the time, date and participants in the communication.” State Farm Fire & Casualty Co. v. Superior Court, 54 Cal. App. 4th 625, 640 (1997).

Not “all communications with attorneys are subject” to attorney-client privilege. Caldecott v. Superior Court, 243 Cal. App. 4th 212, 227 (2015). A “communication which was not privileged to begin with may not be made so by subsequent delivery to the attorney.” Doe 2 v. Superior Court, 132 Cal. App. 4th 1504, 1522 (2005). As one court said, “otherwise routine, nonprivileged communications between corporate officers or employees transacting the general business of the company do not attain privileged status solely because in-house or outside counsel is ‘copied in’ on correspondence or memoranda.” Zurich American Ins. Co. v. Superior Court, 155 Cal. App. 4th 1485, 1504 (2007). The same principle generally applies to public agencies.

The “attorney-client privilege only protects disclosure of communications between the attorney and the client; it does not protect disclosure of underlying facts which may be referenced within a qualifying communication.” State Farm, 54 Cal. App. 4th at 639.

As the Supreme Court has said, the “protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, ‘What did you say or write to the attorney?’ but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney.” Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981).

The Court of Appeal held that the attorney-client privilege can attach to an attorney’s investigation of alleged misconduct of a client’s official or employee. City of Petaluma v. Superior Court, 248 Cal. App. 4th 1023, 1035 (2016) (holding privilege attached to report of outside counsel to city who “was retained to use her legal expertise to conduct a factual investigation that would, in turn, be the basis for the City Attorney to provide legal advice to the city” about harassment & retaliation claim even though outside counsel herself did not provide legal advice).

The attorney-client privilege generally extends to invoices showing how much a government agency has spent on its outside lawyers during pending litigation, but it may not completely exempt such invoices once the litigation is over. County of Los Angeles Board of Supervisors v. Superior Court, 2 Cal. 5th 282 (2016).

As the California Supreme Court said, “the attorney-client privilege does not categorically shield everything in a billing invoice from PRA disclosure. But invoices for work in pending and active legal matters are so closely related to attorney-client communications that they implicate the heartland of the privilege. The privilege therefore protects the confidentiality of invoices for work in pending and active legal matters.” Id. at 288. The court continued:

To the extent that billing information is conveyed “for the purpose of … legal representation”—perhaps to inform the client of the nature or amount of work occurring in connection with a pending legal issue—such information lies in the heartland of the attorney-client privilege. And even if the information is more general, such as aggregate figures describing the total amount spent on continuing litigation during a given quarter or year, it may come close enough to this heartland to threaten the confidentiality of information directly relevant to the attorney’s distinctive professional role. The attorney-client privilege protects the confidentiality of information in both those categories, even if the information happens to be transmitted in a document that is not itself categorically privileged. When a legal matter remains pending and active, the privilege encompasses everything in an invoice, including the amount of aggregate fees.

Id. at 297. The same is not necessarily true for a closed case. “In contrast to information involving a pending case, a cumulative fee total for a long-completed matter does not always reveal the substance of legal consultation.” Id. at 298.

However, although invoices in closed cases may not be “categorically privileged,” certain portions of the invoices might be redacted as privileged “if they either communicate information for the purpose of legal consultation or risk exposing information that was communicated for such a purpose.” Id. at 300.

Generally a “written fee contract” with an agency’s outside lawyer “shall be deemed to be a confidential communication within the meaning of subdivision (e) of Section 6068 [of the Business and Professions Code] and of Section 952 of the Evidence Code,” which means that it is generally exempt from disclosure due to attorney-client privilege. Bus. & Prof. Code § 6149.

With respect to records about specified uses of force or forms of misconduct by law enforcement officers, as described in FAC’s police transparency guide, “the lawyer-client privilege does not prohibit the disclosure of either of the following:

(i) Factual information provided by the public entity to its attorney or factual information discovered in any investigation conducted by, or on behalf of, the public entity’s attorney.

(ii) Billing records related to the work done by the attorney so long as the records do not relate to active and ongoing litigation and do not disclose information for the purpose of legal consultation between the public entity and its attorney.

Penal Code § 832.7(b)(12)(A).

Under the California Public Records Act (“CPRA”), a state or local agency must generally disclose public records on request unless they are covered by a specific exemption from disclosure. Govt. Code §§ 7922.525, 7922.530.

Among other provisions, the CPRA contains an exemption, in relevant part, for “[r]ecords of complaints to, or investigations conducted by … any state or local police agency … or any investigatory or security files compiled by any other state or local police agency for correctional, law enforcement, or licensing purposes.” Govt. Code § 7923.600(a), formerly § 6254(f).

A law enforcement agency’s own investigatory records, such as its reports, notes & findings about alleged crimes, are generally exempt under § 7923.600. Haynie v. Superior Court, 26 Cal. 4th 1061, 1068-70 (2001). The exemption covers “only those investigations undertaken for the purpose of determining whether a violation of law may occur or has occurred. If a violation or potential violation is detected, the exemption also extends to records of investigations conducted for the purpose of uncovering information surrounding the commission of the violation and its agency.” Id. at 1071.

Therefore, the exemption for “records of investigations” includes only those records generated “as part of a targeted inquiry into any particular crime or crimes.” American Civil Liberties Foundation of Southern California v. Superior Court, 3 Cal. 5th 1032, 1042 (2017); see also Register Div. of Freedom Newspapers v. County of Orange, 158 Cal. App. 3d 893, 904 (1984) (where sheriff’s investigation was “conducted at the request of the County’s risk management office primarily for the purpose of ascertaining the facts in much the same way investigations are undertaken by insurance company claim adjustors,” court held exemption did not apply because “investigation was not for law enforcement purposes, but rather to discover the facts upon which to determine the County’s civil liability stemming from the incident”); cf. California ex rel. Div. of Industrial Safety v. Superior Court, 43 Cal. App. 3d 778, 784 (1974) (noting exemption pertains to “the enforcement of penal statutes” & did not apply to agency that “does not compile investigatory files for ‘correctional, law enforcement or licensing purposes’”) (discussing records related to bridge collapse).

One of the records at issue in Haynie was a tape recording of a traffic stop. 26 Cal. 4th at 1067. By analogy, for example, a body camera or other video of a traffic stop or other investigation may also be exempt as an investigatory record.

However, the investigatory records exemption does not protect records described in Penal Code § 832.7(b) or Govt. Code § 7923.625, as discussed in our police transparency guide, such as records relating to an officer discharging a firearm at a person or using force that resulted in death or great bodily injury, or sustained findings of various forms of misconduct.

The investigatory records exception also does not protect documents filled in court by a district attorney. Weaver v. Superior Court, 224 Cal. App. 4th 746, 751 (2014) (“Because they were publicly filed, the charging documents Weaver seeks are not investigatory files exempt from disclosure under the CPRA.”).

Once investigatory records or files become exempt under § 7923.600, they generally remain permanently exempt from disclosure regardless of whether the investigation is closed. Williams v. Superior Court, 5 Cal. 4th 337, 357-62 (1993); Rivero v. Superior Court, 54 Cal. App. 4th 1048, 1051-52 (1997).

Under this exemption, certain “materials that, while not on their face exempt from disclosure” can “nevertheless become exempt through inclusion in an investigatory file.” Williams, 5 Cal. 4th at 354. Once an investigation “has come into being, a document in the file may have extraordinary significance to the investigation even though it does not on its face purport to be an investigatory record and, thus, have an independent claim to exempt status. Examples abound. A commonplace business card may reveal the name and endanger the safety of an informant. Receipts for transportation may tell the astute observer which clues the police have checked and which they have not yet found.” Id. at 356.

That said, “a state or local law enforcement agency shall make public all of the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation:

(a) The full name and occupation of every individual arrested by the agency.

(b) The individual’s physical description including date of birth, color of eyes and hair, sex, height, and weight.

(c) The time and date of arrest.

(d) The time and date of booking.

(e) The location of the arrest.

(f) The factual circumstances surrounding the arrest.

(g) The amount of bail set.

(h) The time and manner of release or the location where the individual is currently being held.

(i) All charges the individual is being held upon, including any outstanding warrants from other jurisdictions, parole holds, and probation holds.”

Govt. Code § 7923.610. This provision has been limited to “current information and records” of “contemporaneous police activity,” although the case law does not precisely define “current” or “contemporaneous.” Kinney v. Superior Court, 77 Cal. App. 5th 168, 177 (2022).

The CPRA also generally requires disclosure of certain information to “the victims of an incident, or an authorized representative thereof,” such as “the names and addresses of persons involved in, or witnesses other than confidential informants to, the incident, the description of any property involved, the date, time, and location of the incident, all diagrams, statements of the parties involved in the incident, [and] the statements of all witnesses, other than confidential informants.” Govt. Code § 7923.605(a), formerly § 6254(f). However, this provision “does not require the disclosure of that portion of those investigative files that reflects the analysis or conclusions of the investigating officer.” Govt. Code § 7923.605(b).

In addition, unless “disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation,” Govt. Code § 7923.615(a)(1), the CPRA requires public disclosure of “certain information derived from” investigatory records, Williams, 5 Cal. 4th at 349, such as “the time, substance, and location of all complaints or requests for assistance received by the agency and the time and nature of the response thereto, including, to the extent the information regarding crimes alleged or committed or any other incident investigated is recorded:

(A) The time, date, and location of occurrence.

(B) The time and date of the report.

(C) The name and age of the victim.

(D) The factual circumstances surrounding the crime or incident.

(E) A general description of any injuries, property, or weapons involved.”

Govt. Code § 7923.615(a)(2). This provision is not limited to “contemporaneous” records. Fredericks v. Superior Court, 233 Cal. App. 4th 209, 233-34 (2015).

If sought for journalistic or other specified purposes, as declared under penalty of perjury, the addresses of persons arrested & crime victims, with a number of exceptions, must be disclosed, “except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation.” Govt. Code § 7923.620.

There is also a specialized provision for disclosure of certain information to the victim of an incident or authorized representative thereof, an insurance carrier, or persons suffering bodily injury or property damage or loss in certain circumstances. Govt. Code § 7923.605.

The California Public Records Act (“CPRA”) requires state & local agencies to disclose public records on request except to the extent they can prove records or portions thereof are expressly exempt from disclosure. Govt. Code §§ 7922.000, 7922.525, 7922.530(a).

The CPRA exempts from disclosure “[p]reliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure.” Govt. Code § 7927.500.

To justify this exemption, the agency must generally prove each of its “statutory conditions”: “(1) The record sought must be a preliminary draft, note, or memorandum; (2) which is not retained by the public agency in the ordinary course of business; and (3) the public interest in withholding must clearly outweigh the public interest in disclosure.” Citizens for a Better Envt. v. Dept. of Food & Agriculture, 171 Cal. App. 3d 704, 711–12 (1985).

Not every “draft” necessarily qualifies for this exemption, the purpose of which “is to provide a measure of agency privacy for written discourse concerning matters pending administrative action” and to “foster robust discussion within the agency of policy questions attending pending administrative decisions.” Id. at 712–13. The exemption can cover “advisory opinions, recommendations, and policy deliberations” but not “compiled factual material or purely factual material” that can be segregated from exempt content. Id. at 713.

The agency must show the withheld records are in fact “drafts … produced in the course of a determinate process” that “results in administrative action,” and they must also prove their “policy and custom concerning retention of preliminary materials.” Id. at 713-14. “If preliminary materials are not customarily discarded or have not in fact been discarded as is customary they must be disclosed.” Id.

Apart from those issues, an agency must generally prove “the public interest in withholding the records clearly outweigh[s] the public interest in disclosure.” Id. By necessity, “[i]f the records sought pertain to the conduct of the people’s business there is a public interest in disclosure. The weight of that interest is proportionate to the gravity of the governmental tasks sought to be illuminated and the directness with which the disclosure will serve to illuminate.” Id. at 715.

Any interest in withholding records as “preliminary drafts” must generally be justified by reference to “the specific policy domain of the statutory exemption,” which is “the policy fostering robust agency debate” about specific policy decisions, not protecting records “consisting of factual material” or “severable factual material contained in memoranda” or other records “along with deliberative material.” Id. at 716. Where it is possible “to separate the factual descriptions of what went on … from the recommendations made on the basis of these facts,” any “severable factual information with no recommendatory content” must generally be disclosed. Id. at 717.

While the California Public Records Act (CPRA) generally requires public agencies to provide access to their existing records, agencies need not create records or “generate new substantive content to respond to a PRA request.” National Lawyers Guild v. City of Hayward, 9 Cal. 5th 488, 502 (2020). See Haynie v. Superior Court, 26 Cal. 4th 1061, 1073–75 (2001) (holding agency had no duty to create a log of potentially responsive records covered by request).

The CPRA “is designed to give the public access to information in possession of public agencies. [The CPRA] itself does not undertake to prescribe what type of information a public agency may gather, nor to designate the type of records such an agency may keep, nor to provide a method of correcting such records. Its sole function is to provide for disclosure.” Los Angeles Police Dept. v. Superior Court, 65 Cal. App. 3d 661, 668 (1977). As the Court of Appeal said, “the CPRA is not a records retention statute since the CPRA lacks any provisions pertaining to records retention. The CPRA is also silent with respect to any obligation on the part of a public agency to keep any particular records or to preserve records after a public records request has been made.” City of Gilroy v. Superior Court, 96 Cal. App. 5th 818, 836 (2023). However, the California Supreme Court has granted review in City of Gilroy & may change that rule, depending on its decision.

Accordingly, “while the CPRA requires public agencies to provide access to their existing records, it does not require them to create new records to satisfy a request.” Sander v. Superior Court, 26 Cal. App. 5th 651 (2018); see also Fredericks v. Superior Court, 233 Cal. App. 4th 209, 227 (2015); Regents of University of California v. Superior Court, 222 Cal. App. 4th 383, 400 (2013). Laws outside the CPRA may impose certain requirements to create or retain records.

The CPRA is modeled on the federal Freedom of Information Act (“FOIA”). See Los Angeles County Bd. of Supervisors v. Superior Court, 2 Cal. 5th 282, 290 (2016). FOIA “does not obligate agencies to create or retain documents; it only obligates them to provide access to those which it in fact has created and retained.” Kissinger v. Reporters Comm. for Freedom of Press, 445 U.S. 136, 152 (1980). As the Supreme Court noted, the legality of withholding requested records is “gauged by the time at which the request is made since there is no FOIA obligation to retain records prior to that request.” Id. at 155 n.9.

As a result, typically “FOIA does not provide a remedy” for “destruction of documents in the normal course of an agency’s business.” Turner v. United States, 736 F.3d 274, 283 (4th Cir. 2013); see also, e.g., SafeCard Services, Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991) (“If the agency is no longer in possession of the document, for a reason that is not itself suspect, then the agency is not improperly withholding that document and the court will not order the agency to take further action in order to produce it.”).

However, in general, “an agency may not avoid a FOIA request by intentionally ridding itself of a requested document.” DiBacco v. United States Army, 795 F.3d 178, 192 (D.C. Cir. 2015). Therefore, generally “an agency is not shielded from liability if it intentionally transfers or destroys a document after it has been requested under FOIA.” Chambers v. United States Dept. of Interior, 568 F.3d 998, 1004 (D.C. Cir. 2009). Although it is not certain, a California court might hold the same under the CPRA.

Generally, a “legislative body” of a “local agency” is subject to the Brown Act & as such, it may typically hold meetings only in open session based on an agenda posted sufficiently in advance, unless a statutory exception authorizes a closed session. Govt. Code §§ 54951, 54952(a), 54952.2, 54953, 54954.2; Bell v. Vista Unified School Dist., 82 Cal. App. 4th 672, 682 (2000).

Under the Brown Act, a “meeting” is “any congregation of a majority of the members of a legislative body at the same time and location, including teleconference location … to hear, discuss, deliberate, or take action on any item that is within the subject matter jurisdiction of the legislative body.” Govt. Code § 54952.2(a).

Apart from real-time physical or virtual communication, the Brown Act also applies to “serial” meetings. “A majority of the members of a legislative body shall not, outside a meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.” Govt. Code § 54952.2(b)(1).

“[A]ction taken” means “a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or a negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance.” Govt. Code § 54952.6.

Without proper notice or agenda or an applicable exception to open meeting requirements, the Brown Act prohibits “a series of private meetings (known as serial meetings) by which a majority of the members of a legislative body commit themselves to a decision concerning public business or engage in collective deliberation on public business.” Page v. MiraCosta Community College Dist., 180 Cal. App. 4th 471, 503-04 (2009).

The mere “passive receipt” by all board members of an email from agency staff or a member of the public does not necessarily amount to a meeting covered by the Brown Act. Roberts v. City of Palmdale, 5 Cal. 4th 363, 376 (1993).

However, a reply to such an email that is circulated to all or a majority of the board members would present a risk of violating the Brown Act as an unauthorized “serial meeting.” That would generally be the case regardless of whether the board members made any decisions or took any actions in the email exchange.

Although some agencies post both current & past agendas, agenda packets, or minutes on their websites, the letter of the Brown Act may not necessarily require an agency to do so.

Under the Brown Act, the agenda for a regular meeting shall generally be posted at least 72 hours before the meeting “on the local agency’s Internet Web site, if the local agency has one.” Govt. Code § 54954.2(a)(1).

Similarly, the call and notice for a special meeting shall generally be posted “on the local agency’s Internet Web site, if the local agency has one.” Govt. Code § 54956(a).

These requirements only apply to certain legislative bodies covered by the Brown Act, such as governing boards or other specified bodies. Govt. Code §§ 54954.2(d), 54956(c).

“For a meeting occurring on and after January 1, 2019, of a legislative body of a city, county, city and county, special district, school district, or political subdivision established by the state that has an Internet Web site,” various provisions control how the agenda for a regular meeting must be posted and displayed. Govt. Code § 54954.2(a)(2). Please see the statute for more details.

However, it is not clear that the statute requires an agency to maintain past agendas or related materials on its website. For example, the statute provides that an ”integrated agenda management platform may contain the prior agendas of a legislative body of a city, county, city and county, special district, school district, or political subdivision established by the state for all meetings occurring on or after January 1, 2019,” Govt. Code § 54954.2(a)(2)(C)(ii) (emphasis added), but that appears to be optional, not mandatory. See Tarrant Bell Property, LLC v. Superior Court, 51 Cal. 4th 538, 542 (2011) (noting that courts ordinarily “construe the word ‘may’ as permissive”).

Other Brown Act provisions refer to posting materials on the agency’s website but do not clearly impose a general requirement to do so in all circumstances. For example:

Any person may request that a copy of the agenda, or a copy of all the documents constituting the agenda packet, of any meeting of a legislative body be mailed to that person. If a local agency has an internet website, the legislative body or its designee shall email a copy of, or website link to, the agenda or a copy of all the documents constituting the agenda packet if the person requests that the item or items be delivered by email. If the local agency determines it is technologically infeasible to send a copy of all documents constituting the agenda packet or a link to a website that contains the documents by email or by other electronic means, the legislative body or its designee shall send by mail a copy of the agenda or a website link to the agenda and mail a copy of all other documents constituting the agenda packet in accordance with the mailing requirements established pursuant to this section

Govt. Code § 54954.1. In addition, supporting documents distributed to members of the legislative body less than 72 hours before a meeting or at the meeting itself must be made available on request if not posted in advance, and to do so, an agency may post such materials “on the local agency’s internet website in a position and manner that makes it clear that the writing relates to an agenda item for an upcoming meeting,” in addition to other requirements. Govt. Code § 54957.5(b)(2)(B)(ii).

As a practical matter, many agencies may post all current & past agendas & supporting documents online in the interest of simplicity & transparency, but it’s not clear the Brown Act requires them to do so in all circumstances.

The Brown Act provides two sets of remedies to address violations of the Act: “cure & correct” & “cease & desist.” Each is designed to accomplish different things. Either can be invoked by the district attorney or any member of the public.

The “cure & correct” remedy is for declaring certain actions null & void in specific circumstances. It is not available for all violations–for example, it does not apply to violations of public comment rights.

The “cease & desist” remedy is for stopping violations of the Brown Act generally, or finding an agency violated the Brown Act in the past, without setting aside a specific action as null & void.

Generally, a plaintiff prevailing in a Brown Act case may seek to recover costs & attorney fees from the agency. Please see below for more details.

Cure & Correct

The Brown Act states, “The district attorney or any interested person may commence an action by mandamus or injunction for the purpose of obtaining a judicial determination that an action taken by a legislative body of a local agency in violation of” the Brown Act’s open-meeting or agenda requirements is “null and void.” Govt. Code § 54960.1(a).

Please note that a court may declare agency action null & void only for violating certain provisions of the Brown Act, such as “requirements for open meetings (§ 54953), posting agendas (§ 54954.2), closed session item descriptions (§ 54954.5), meetings regarding new or increased taxes or assessments (§ 54954.6), special meetings (§ 54956), and emergency meetings (§ 54956.5).” Fowler v. City of Lafayette, 46 Cal. App. 5th 360, 371 n.3 (2020). A court may not declare an action null & void for other violations, such as violation of public comment rules. Olson v. Hornbrook Community Services Dist., 33 Cal. App. 5th 502, 518 (2019).

“[A]ction taken” means “a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or a negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance.” Govt. Code § 54952.6.

Before going to court, the plaintiff must make a written “demand of the legislative body to cure or correct” the allegedly unlawful action “within 90 days from the date the action was taken” if it was not taken in open session, or within 30 days if it was. Govt. Code § 54960.1(b), (c)(1). The legislative body must respond to the cure & correct letter within 30 days of receiving it. Govt. Code § 54960.1(c)(2); see also Page v. MiraCosta Community College Dist.,180 Cal. App. 4th 471, 500 (2009) (“To state a cause of action for violation of section 54960.1 of the Brown Act, a petitioner must allege (1) that a legislative body of a local agency violated one or more enumerated Brown Act statutes; (2) that there was ‘action taken’ by the local legislative body in connection with the violation; and (3) that before commencing the action, plaintiff made a timely demand of the legislative body to cure or correct the action alleged to have been taken in violation of the enumerated statutes, and the legislative body did not cure or correct the challenged action.”) (citation & quotation marks omitted).

If the agency does not cure & correct the alleged violation, the deadline to file suit is 15 days after receipt of the legislative body’s response, or 15 days after the 30-day response deadline expires if the body does not respond, whichever is earlier. Govt. Code § 54960.1(c)(4).

Please refer to the statutes to confirm the exact process & time limits, which are strictly construed & mandatory.

Although the text of the Brown Act does not expressly contain such a requirement, courts have held plaintiffs “must show prejudice” from a violation to justify setting aside agency action as null & void. See, e.g., Olson, 33 Cal. App. 5th at 517

A sample cure & correct template letter is available on our website, although without any promises or guarantees.

Cease & Desist

The Brown Act states, “The district attorney or any interested person may commence an action by mandamus, injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations of this chapter by members of the legislative body of a local agency or to determine the applicability of this chapter to ongoing actions or threatened future actions of the legislative body, or to determine the applicability of this chapter to past actions of the legislative body, subject to Section 54960.2.” Govt. Code § 54960(a).

In other words, even if one is not seeking to declare certain actions null & void, one may file a lawsuit to stop or prevent ongoing or future violations of the Brown Act, or to ask the court to decide if the Brown Act was violated in the past.

Unlike the “cure & correct” remedy, which is limited to specific violations of the Brown Act, the “cease & desist” remedy is available for any violation of the Act, for example, violation of the public comment rules. The cease & desist remedy is also available to correct ongoing violations of the Act, even if one is not challenging a particular “decision” or “vote.” Govt. Code § 54952.6.

Before filing a lawsuit “to determine the applicability” of the Brown Act “to past actions of the legislative body,” one must first send a “cease and desist letter” to the legislative body “within nine months of the alleged violation.” Govt. Code § 54960.2(a)(1)-(2). The legislative body has 30 days to respond to the letter. Govt. Code § 54960.2(b).

Unless the legislative body responds with an “unconditional commitment” to cease and desist from the challenged violation within that time, the time limit to file suit is within 60 days of the legislative body’s response, or within 60 days of the expiration of the 30 days to respond, whichever is earlier. Govt. Code § 54960.2(a)(4).

The time limit is mandatory & strictly enforced. Please see the statute for more details on the procedure to be followed.

However, under this statute, a court has held that a cease and desist letter is only required “for litigation to determine the Brown Act’s applicability to past actions of a legislative body.” Center for Local Government Accountability v. City of San Diego, 247 Cal. App. 4th 1146, 1154 (2016). The court held that such a letter is not required “before the filing of litigation to determine the Brown Act’s applicability to ongoing or threatened future actions.” Id. at 1156.

Costs & Attorney Fees

Generally, when a plaintiff prevails in a Brown Act lawsuit, the plaintiff may seek to recover costs & attorney fees from the local agency. See Govt. Code § 54960.5; Los Angeles Times Communications v. Los Angeles County Bd. of Supervisors, 112 Cal. App. 4th 1313 (2003). A court may award “court costs and reasonable attorney fees” to the defendant prevailing in a Brown Act case only if “the court finds that the action was clearly frivolous and totally lacking in merit.” Govt. Code § 54960.5.

Generally, a legislative body covered by the Brown Act “shall post an agenda” at least 72 hours before a regular meeting “containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session. A brief general description of an item generally need not exceed 20 words.” Govt. Code § 54954.2(a)(1). Please see the statute for more details.

Usually, “[n]o action or discussion shall be undertaken on any item not appearing on the posted agenda,” with exceptions for brief questions, responses to questions, announcements, reports, or references to staff. Govt. Code § 54954.2(a)(3). Other exceptions exist for limited circumstances such as emergencies. Govt. Code § 54954.2(b). Please see the statute for more details on those exceptions.

With respect to supporting documents such as plans, staff reports, draft resolutions or ordinances, and the like, it’s not clear the Brown Act invariably requires all such materials to be posted or distributed in advance of the meeting, although it may be common practice to do so. The Act provides as follows:

• On request, an agency must provide “a copy of the agenda, or a copy of all the documents constituting the agenda packet, of any meeting of a legislative body.” Govt. Code § 54954.1. “Any request for mailed copies of agendas or agenda packets shall be valid for the calendar year in which it is filed, and must be renewed following January 1 of each year. The legislative body may establish a fee for mailing the agenda or agenda packet, which fee shall not exceed the cost of providing the service. Failure of the requesting person to receive the agenda or agenda packet pursuant to this section shall not constitute grounds for invalidation of the actions of the legislative body taken at the meeting for which the agenda or agenda packet was not received.” Id. Please refer to the statute for more details.
• Government Code section 54957.5 generally provides that supporting documents distributed to members of the legislative body less than 72 hours before a meeting or at the meeting itself must be made available on request if not posted in advance. Please see the statute for details.

The Brown Act itself does not necessarily mandate the creation of any particular document such as a report or plan regarding any given agenda item. If such documents are given to legislative body members for discussion in open session, they must be shared with the public.

The Brown Act generally regulates the process by which legislative bodies of local agencies must conduct their meetings & take actions, but it does not necessarily address the substantive requirements for such actions, for example, whether the body must have or review any particular documents or information before voting on a given issue. Other laws may apply to those issues.

The Brown Act requires, in relevant part, “At least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session. A brief general description of an item generally need not exceed 20 words,” and with some exceptions, “[n]o action or discussion shall be undertaken on any item not appearing on the posted agenda.” Govt. Code § 54954.2(a)(1), (3); see also, e.g., Cohan v. City of Thousand Oaks, 30 Cal. App. 4th 547, 555 (1994) (holding city council violated Brown Act by “‘amending’ the agenda at the meeting to consider an appeal from the planning commission’s approval” of a given project).

In general, an agenda “must give the public a fair chance to participate in matters of particular or general concern by providing the public with more than mere clues from which they must then guess or surmise the essential nature of the business to be considered by a local agency.” San Diegans for Open Government v. City of Oceanside, 4 Cal. App. 5th 637, 643 (2016). As that court said, “an agency fulfills its agenda obligations under the Ralph M. Brown Act so long as it substantially complies with statutory requirements.” Id. at 642-43. Typically, “so long as notice of the essential nature of the matter an agency will consider has been disclosed in the agency’s agenda, technical errors or immaterial omissions will not prevent an agency from acting.” Id. at 644-45.

The question whether an agenda gives sufficient notice as to a given item is fact-specific. For example, courts held agendas gave insufficient notice in the following circumstances:

• Olson v. Hornbrook Community Services Dist., 33 Cal. App. 5th 502, 510, 521 (2019) (where agenda included item to “‘[a]pprove bills and authorize signatures on Warrant Authorization Form for’ various bills listed in the agenda, not including an AT&T bill” or payment to district employee, court held agenda did not give sufficient notice as to bills not expressly named, because agenda provided a “specific and exhaustive list of payments to be approved”).
• Hernandez v. Town of Apple Valley, 7 Cal. App. 5th 194, 209 (2017) (holding Brown Act was violated where agenda “only listed that the ‘Wal-mart Initiative Measure’ and the direction to be given to staff would be discussed at the meeting” & did not disclose “Town council was going to accept a gift from Walmart in order to pay for a special election to pass the Initiative”).
• Moreno v. City of King, 127 Cal. App. 4th 17, 26-27 (2005) (holding agenda that listed “Public Employee (employment contract)” did not give sufficient notice of potential termination because “agenda’s description provided no clue that the dismissal of a public employee would be discussed at the meeting”).
• Carlson v. Paradise Unified Sch. Dist., 18 Cal. App. 3d 196, 200 (1971) (holding agenda which stated that school board would consider a “‘[c]ontinuation school site change’” did not permit board to decide to close elementary school and move continuation school to site of elementary school).

On the other hand, courts held agendas substantially complied with the Brown Act as follows:

• Olson, 33 Cal. App. 5th at 520 (where agenda “communicated the essential nature of the Board’s action—to discuss and approve payment to the State Compensation Insurance Fund—and any person interested in that payment would know it would be acted upon at the District’s August meeting,” court held “[t]he fact that the amount of the payment was listed incorrectly in the agenda is a technical error” because amount actually paid was not “significant increase over that which was described in the agenda” & “incorrect amount could not possibly have misled or confused anyone as to whom the District was making a payment to and for what”).
• San Diegans for Open Government, 4 Cal. App. 5th at 645 (holding agenda was sufficient where it “gave the public notice that [city council] would be considering a fairly substantial development of publicly owned property as a luxury hotel; that the city would be sharing TOT’s [transit occupancy taxes] generated by the project; and, importantly, by express reference to the subsidy report, that the project, if approved, would involve a subsidy by the city” although it did not “set forth the amount of the subsidy, its duration, and its source in TOT’s generated by the project”).
• Castaic Lake Water Agency v. Newhall County Water Dist., 238 Cal. App. 4th 1196, 1207 (2015) (holding that although the agenda “did not direct the reader” to correct subdivision of statute for closed session discussion of litigation, “it was sufficient to apprise the public that the Newhall Board would be meeting with its legal counsel, in closed session, to discuss potential litigation in two cases,” where mistake “could not possibly have misled or confused anyone”).

In addition, a “legislative body may take action on items of business not appearing on the posted agenda under any of the conditions stated below. Prior to discussing any item pursuant to this subdivision, the legislative body shall publicly identify the item.

(1) Upon a determination by a majority vote of the legislative body that an emergency situation exists, as defined in Section 54956.5.

(2) Upon a determination by a two-thirds vote of the members of the legislative body present at the meeting, or, if less than two-thirds of the members are present, a unanimous vote of those members present, that there is a need to take immediate action and that the need for action came to the attention of the local agency subsequent to the agenda being posted as specified in subdivision (a).

(3) The item was posted pursuant to subdivision (a) for a prior meeting of the legislative body occurring not more than five calendar days prior to the date action is taken on the item, and at the prior meeting the item was continued to the meeting at which action is being taken.

(4) To consider action on a request from a member to participate in a meeting remotely due to emergency circumstances, pursuant to Section 54953, if the request does not allow sufficient time to place the proposed action on the posted agenda for the meeting for which the request is made. The legislative body may approve such a request by a majority vote of the legislative body.

Govt. Code § 54954.2(b).

As discussed generally on our website, the Brown Act governs each meeting of a “legislative body” of a “local agency” in California. Govt. Code §§ 54951, 54952. Such meetings must generally be open to the public, with opportunity for public comment, based on an agenda posted in advance, except to the extent the Brown Act specifically allows certain matters to be discussed in closed session.

Under the California Constitution, a law such as the Brown Act “shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.” Cal. Const., Art. I, § 3(b)(2); see also, e.g., Julian Volunteer Fire Co. Assn. v. Julian-Cuyamaca Fire Protection Dist., 62 Cal. App. 5th 583, 601 (2021) (noting Brown Act’s provisions must be ‘“construed liberally in favor of openness in conducting public business”).

A “meeting” is generally defined as “any congregation of a majority of the members of a legislative body at the same time and location, including teleconference location” when otherwise permitted, “to hear, discuss, deliberate, or take action on any item that is within the subject matter jurisdiction of the legislative body.” Govt. Code § 54952.2(a).

“All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided” for closed sessions allowed by specific provisions of the Brown Act or other law. Govt. Code § 54953(a); see also Govt. Code § 54962 (except “as expressly authorized” by law, “no closed session may be held by any legislative body of any local agency”).

“A majority of the members of a legislative body shall not, outside a meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.” Govt. Code § 54952.2(b)(1).

“[A]ction taken” means “a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or a negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance.” Govt. Code § 54952.6.

As the Brown Act states, “Each legislative body of a local agency, except for advisory committees or standing committees, shall provide, by ordinance, resolution, bylaws, or by whatever other rule is required for the conduct of business by that body, the time and place for holding regular meetings.” Govt. Code § 54954(a). The Act may allow city councils to decide for themselves what time to hold regular meetings, as long as the meetings are open to the public.

Generally, a legislative body covered by the Brown Act “shall post an agenda” at least 72 hours before a regular meeting “containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session. A brief general description of an item generally need not exceed 20 words.” Govt. Code § 54954.2(a)(1).

“Each legislative body of a local agency, except for advisory committees or standing committees, shall provide, by ordinance, resolution, bylaws, or by whatever other rule is required for the conduct of business by that body, the time and place for holding regular meetings.” Govt. Code § 54954(a). Generally, “[r]egular and special meetings of the legislative body shall be held within the boundaries of the territory over which the local agency exercises jurisdiction,” with specified exceptions. Govt. Code § 54954(b).

Usually, “[n]o action or discussion shall be undertaken on any item not appearing on the posted agenda,” with exceptions for brief questions, responses to questions, announcements, reports, or references to staff. Govt. Code § 54954.2(a)(3). Other exceptions exist for limited circumstances such as emergencies. Govt. Code § 54954.2(b).

By requiring “that an agenda be posted at least 72 hours before a regular meeting and forbid[ding] action on any item not on that agenda … [t]he Act thus serves to facilitate public participation in all phases of local government decisionmaking and to curb misuse of the democratic process by secret legislation of public bodies.” Int’l Longshoremen’s & Warehousemen’s Union v. L.A. Exp. Terminal, 69 Cal. App. 4th 287, 293 (1999).

Under Government Code section 54954.3(a), “Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body.”

As to special meetings, “Every notice for a special meeting shall provide an opportunity for members of the public to directly address the legislative body concerning any item that has been described in the notice for the meeting before or during consideration of that item.” Id.

This statute “has been construed to mean that for each agenda of a regular meeting, there must be a period of time provided for general public comment on any matter within the subject matter jurisdiction of the legislative body, as well as an opportunity for public comment on each specific agenda item as it is taken up by the body.” Galbiso v. Orosi Public Utility Dist., 167 Cal. App. 4th 1063, 1079 (2008).

Under Government Code section 54954.3(b), the legislative body may adopt “reasonable regulations” to ensure the public’s right to comment in section (a) above is carried out, “including, but not limited to, regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker.”

That said, “[t]he legislative body of a local agency shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body.” Govt. Code § 54954.3(c).

“In the event that any meeting is willfully interrupted by a group or groups of persons so as to render the orderly conduct of such meeting unfeasible and order cannot be restored by the removal of individuals who are willfully interrupting the meeting, the members of the legislative body conducting the meeting may order the meeting room cleared and continue in session. Only matters appearing on the agenda may be considered in such a session. Representatives of the press or other news media, except those participating in the disturbance, shall be allowed to attend any session held pursuant to this section. Nothing in this section shall prohibit the legislative body from establishing a procedure for readmitting an individual or individuals not responsible for willfully disturbing the orderly conduct of the meeting.” Govt. Code § 54957.9.

The Brown Act governs meetings of legislative bodies, such as the governing boards, of local agencies in California. General background is available in our Brown Act primer.

With respect to public comments, Government Code section 54954.3(a) states, “Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body.”

As to special meetings, “Every notice for a special meeting shall provide an opportunity for members of the public to directly address the legislative body concerning any item that has been described in the notice for the meeting before or during consideration of that item.” Id.

This statute “has been construed to mean that for each agenda of a regular meeting, there must be a period of time provided for general public comment on any matter within the subject matter jurisdiction of the legislative body, as well as an opportunity for public comment on each specific agenda item as it is taken up by the body.” Galbiso v. Orosi Public Utility Dist., 167 Cal. App. 4th 1063, 1079 (2008).

Under Government Code section 54954.3(b), the legislative body may adopt “reasonable regulations” to ensure the public’s right to comment in section (a) above is carried out, “including, but not limited to, regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker.”

That said, “[t]he legislative body of a local agency shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body.” Govt. Code § 54954.3(c).

Courts accord significant flexibility to legislative bodies in determining what is a “reasonable” regulation of public comment, as long as the bodies do not discriminate based on viewpoint or prohibit criticism. As one court noted:

[H]aving no limit on either the length of any particular presentation by a member of the public or on the number of public speakers (or on the total time for public comment) has the potential for endless discussion—given the potential that there will be a far greater number of members of the public who may wish to speak to an issue than there are staff and guests who make presentations concerning it. The number of staff and invited guests speaking on a topic will clearly be limited; the potential for public speakers is potentially extensive and needs some reasonable limitation.

Ribakoff v. City of Long Beach, 27 Cal. App. 5th 150, 172 (2018).

In particular, the Court of Appeal held it did not violate the Brown Act when the chair of a legislative body “announced at the beginning of the meeting that public comment on each agenda item would be limited to two minutes per speaker, instead of the three minutes normally allotted to each speaker,” because the chair “anticipated that four of the items on the agenda would be lengthy, and the Commission would not be able to complete the meeting in a reasonable period unless public comments were shortened.” Chaffee v. San Francisco Public Library Comm., 134 Cal. App. 4th 109, 111 (2005).

Also, the Court of Appeal held that “[l]imiting public comment on items described in the agenda to the time when those items are being considered by the Board is not an unreasonable regulation,” because it “ensures the Board has a clear and complete understanding of the public concern regarding an item of business on the agenda at the time that item is to be transacted or discussed.” Olson v. Hornbrook Community Services Dist., 33 Cal. App. 5th 502, 528 (2019).

A legislative body can set its own internal rules that go beyond the requirements of the Brown Act to provide greater access or transparency.

Apart from the Brown Act, the First Amendment generally reflects our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). “Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized.” Rosenblatt v. Baer, 383 U.S. 75, 85 (1966).

In general, the Ninth Circuit has said the public comment portion of a city council meeting can be considered a limited public forum, in which restrictions on speech are typically upheld if they are deemed reasonable & viewpoint neutral. See, e.g., Norse v. City of Santa Cruz, 629 F.3d 966, 975 (9th Cir. 2010).

For example, rules imposing time limits or restricting comments to relevant subjects might be deemed reasonable if they are applied equally to all speakers. But generally “a speaker may not be stopped from speaking because the moderator disagrees with the viewpoint he is expressing.” White v. Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990); see also, e.g., Acosta v. City of Costa Mesa, 718 F.3d 800, 812–13 (9th Cir. 2013) (rule against “personal, impertinent, profane” or “insolent” remarks at city council meeting violated First Amendment).

The United States District Court for the Northern District of California recently considered a constitutional challenge to a city council’s decision to prohibit a member of the public from reading into the record a written comment that was prepared by another person who was not present at the council meeting. Barich v. City of Cotati, No. 21-cv-00034-EMC, 2022 U.S. Dist. LEXIS 222435 (N.D. Cal. Dec. 9, 2022). There were numerous examples of other city council meetings at which persons spoke on behalf of others during the open-comment period. Id. at *10–11. The court held that there was sufficient evidence for a reasonable jury to find that the city council unlawfully discriminated against the plaintiffs by treating them differently from similarly situated speakers. Id. at *15–17.

The Brown Act addresses removal of individuals in Government Code section 54957.95, which provides:

(a)(1) In addition to authority exercised pursuant to Sections 54954.3 and 54957.9, the presiding member of the legislative body conducting a meeting or their designee may remove, or cause the removal of, an individual for disrupting the meeting.

(2) Prior to removing an individual, the presiding member or their designee shall warn the individual that their behavior is disrupting the meeting and that their failure to cease their behavior may result in their removal. The presiding member or their designee may then remove the individual if they do not promptly cease their disruptive behavior. This paragraph does not apply to any behavior described in subparagraph (B) of paragraph (1) of subdivision (b).

(b) As used in this section:

(1) “Disrupting” means engaging in behavior during a meeting of a legislative body that actually disrupts, disturbs, impedes, or renders infeasible the orderly conduct of the meeting and includes, but is not limited to, one of the following:

(A) A failure to comply with reasonable and lawful regulations adopted by a legislative body pursuant to Section 54954.3 or any other law.

(B) Engaging in behavior that constitutes use of force or a true threat of force.

(2) “True threat of force” means a threat that has sufficient indicia of intent and seriousness, that a reasonable observer would perceive it to be an actual threat to use force by the person making the threat.

Whether profanity is protected under First Amendment jurisprudence largely depends on the context. Profanity cannot be categorically banned under the First Amendment. Cohen v. California, 403 U.S. 15 (1971) (upholding the right to wear a jacket that says “Fuck the Draft” in a courthouse). The Ninth Circuit has held it violates the First Amendment to prohibit “personal,” “impertinent,” “profane,” or “insolent” speech at city council meetings. Acosta v. City of Costa Mesa, 718 F.3d 800, 815 (9th Cir. 2013).

Profanity may be restricted in very limited circumstances. For example, the government may regulate profane speech in a traditional broadcast medium if it constitutes indecency. Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978). Also, public elementary and secondary schools may prohibit “vulgar” speech, including profanity. Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986)

Under the Brown Act, the government may regulate the bounds of public comment, such as limiting speaker times or limiting comments to subject matter that is within the jurisdiction of the legislative body. (Gov. Code § 54954.3(a), (b)(1))

Any limitation placed on a member of the public addressing a local body may not be based on the viewpoint of the testimony, although “irrelevant or repetitious” comments can be curtailed in some circumstances. Acosta, 718 F.3d at 816. In particular, bodies cannot prevent members of the public from complaining about or criticizing the legislative body itself or employees of the public agency it supports. See, e.g., Leventhal v. Vista Unified School Dist., 973 F. Supp. 951 (1997); Baca v. Moreno Valley Unified School Dist., 936 F. Supp. 719 (1996).

The First Amendment does not necessarily require public officials to speak out or give interviews. See, e.g., Baltimore Sun Co. v. Ehrlich, 437 F.3d 410 (4th Cir. 2006); Danielson v. Huether, 355 F. Supp. 3d 849, 867-68 (D.S.D. 2018). However, a rule prohibiting such speech or interviews raises different concerns.

A rule prohibiting speech before it occurs is generally considered a prior restraint. Alexander v. United States, 509 U.S. 544, 550 (1993). As the Supreme Court has long held, “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976). That principle is no less true “when speech concerns information related to or learned through public employment. After all, public employees do not renounce their citizenship when they accept employment, and this Court has cautioned time and again that public employers may not condition employment on the relinquishment of constitutional rights.” Lane v. Franks, 573 U.S. 228, 236 (2014); see Moonin v. Tice, 868 F.3d 853 (9th Cir. 2017) (holding prior restraint on speech of officers about anything relating to particular law enforcement program violated First Amendment).

As the Ninth Circuit noted, “Although it could be true that police departments would operate more efficiently absent inquiry into their practices by the public … efficiency grounded in the avoidance of accountability is not, in a democracy, a supervening value.” Moonin, 868 F.3d. at 866.

A policy that restricts the speech of officers violates the First Amendment where it “sweeps broadly to cover” a broad category of communications on matters of public interest rather than being “tailored to prevent the release of factual information or official records that would jeopardize” government services. Id. at 867.

In any event, even if restrictions on speech might be appropriate for ordinary public employees in some circumstances, the Ninth Circuit has said, “The rationale for allowing the government to restrict the speech of government employees and contractors is not applicable to elected officials.” Boquist v. Courtney, 32 F.4th 764, 779 (9th Cir. 2022). As the court noted:

Such elected officials are not speaking as employees of the government, nor does the government need to regulate their speech in order to deliver public services effectively and efficiently or to control daily management functions. An elected official’s speech does not interfere with his performance of duties; to the contrary, the speech is a vital component of his duties because legislators have an obligation to take positions on controversial political questions so that their constituents can be fully informed by them and may be represented in governmental debates by the person they have elected to represent them. Elected officials therefore have the right to enter the field of political controversy, and the role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves.

Id. at 779-80 (citations, quotation marks & brackets omitted).

To the extent any such policy would allow praise but not criticism of a government entity, it would unconstitutionally discriminate based on viewpoint. See, e.g., Chaker v. Crogan, 428 F.3d 1215 (9th Cir. 2005); Leventhal v. Vista Unified Sch. Dist., 973 F. Supp. 951 (S.D. Cal. 1997). Also, the terms such policies use could be unconstitutionally vague. See, e.g., Dambrot v. Central Michigan University, 55 F.3d 1177, 1184 (6th Cir. 1997) (holding university code prohibiting “negative” or “offensive” speech was void for vagueness).

Policies that restrict the speech of elected officials would also impair the public’s interest in transparency and accountability. The First Amendment protects not only “the speaker’s interest in self-expression” but also “the public’s interest in receiving information.” Pacific Gas and Elec. Co. v. Public Utilities Commission, 475 U.S. 1, 8 (1986).

As the Supreme Court has held, the government has “no interest in limiting its legislators’ capacity to discuss their views of local or national policy.” Bond v. Floyd, 385 U.S. 116, 135 (1966).

The manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy. The central commitment of the First Amendment … is that ‘debate on public issues should be uninhibited, robust, and wide-open.’ … Just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected…. Legislators have an obligation to take positions on controversial political questions so that their constituents can be fully informed by them, and be better able to assess their qualifications for office; also so they may be represented in governmental debates by the person they have elected to represent them.

Id. at 135-37.

For elected officials as well as ordinary people, “[c]riticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized.” Rosenblatt v. Baer, 383 U.S. 75, 85 (1966).

As the Brown Act declares, “The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.” Govt. Code § 54950. That principle applies equally to the First Amendment rights of elected officials to speak on matters of public concern & the right of the people to hear the views of elected officials.

Generally, the First Amendment only applies to the government. As courts have said, it does not typically apply to the actions of private persons or entities. See, e.g., Hudgens v. NLRB, 424 U.S. 507, 513 (1976) (“[T]he constitutional guarantee of free speech is a guarantee only against abridgment by government.”); Grinzi v. San Diego Hospice Corp., 120 Cal. App. 4th 72, 81 (2004) (“[T]he First Amendment free speech provision expresses a guarantee only against action taken by the government.”).

By statute, California has created certain protections for the political activities of employees of private entities. For example, Labor Code section 1101 states, “No employer shall make, adopt, or enforce any rule, regulation, or policy:

(a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.

(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.”

Labor Code section 1102 states, “No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.”

The California Supreme Court has said that these statutes typically “protect the fundamental right of employees in general to engage in political activity without interference by employers.” Gay Law Students Ass’n v. Pac. Tel. & Tel. Co., 24 Cal. 3d 458, 487 (1979).

This is not comprehensive research or legal advice. Substantive & procedural Issues of employment or labor law are outside FAC’s expertise.

The U.S. Court of Appeals for the Ninth Circuit, which covers California, has considered whether the First Amendment allows the government to restrict signs on highway overpasses. As the court held, “highway overpasses” are “nonpublic fora,” in which restrictions “on free expression” are constitutional if they are “reasonable in light of the purpose served by the forum” and “viewpoint neutral.” Brown v. Cal. Dept. of Trans. 321 F.3d 1217, 1222 (9th Cir. 2003).

In Brown, the court held that a CalTrans policy allowing flags on overpasses but other signs or banners was not reasonable under the First Amendment, because the asserted “safety risks” posed by signs and banners, “including the potential for falling signs and distracted motorists,” applied equally to flags, which present “the same risk of falling objects that accompanies all other signs and banners” and can be similarly distracting. Id. at 1222-23. The court also held the policy discriminated based on viewpoint. Id. at 1224.

If CalTrans still has a similar policy, it might be unconstitutional. However, if CalTrans is now prohibiting all signs or banners on overpasses, including flags, it’s possible a court might find the policy is a valid means to reduce safety risks. See, e.g., Faustin v. City & County of Denver, 423 F.3d 1192, 1200-01 (10th Cir. 2005) (holding government “may constitutionally restrict the displaying of signs or banners on highway overpasses” because it “has a significant interest in traffic safety” and “[r]estricting signs or banners on highway overpasses directed at the motorists below is narrowly tailored to achieve this interest”).

This post discusses what restrictions a private homeowners’ association (HOA) may impose on political candidate signs. Although HOAs are not necessarily state actors governed by the First Amendment, California law limits the power of HOAs to restrict noncommercial signs. According to Civil Code § 4710:

(a) The governing documents may not prohibit posting or displaying of noncommercial signs, posters, flags, or banners on or in a member’s separate interest, except as required for the protection of public health or safety or if the posting or display would violate a local, state, or federal law.

(b) For purposes of this section, a noncommercial sign, poster, flag, or banner may be made of paper, cardboard, cloth, plastic, or fabric, and may be posted or displayed from the yard, window, door, balcony, or outside wall of the separate interest, but may not be made of lights, roofing, siding, paving materials, flora, or balloons, or any other similar building, landscaping, or decorative component, or include the painting of architectural surfaces.

(c) An association may prohibit noncommercial signs and posters that are more than nine square feet in size and noncommercial flags or banners that are more than 15 square feet in size.

Under § 4710, owners retain the right to display noncommercial signs or banners that conform to the statute’s requirements for location, materials & size. An HOA may ban noncommercial signs and posters more than 9 square feet in size & noncommercial flags or banners that are more than 15 square feet in size. If the banner at issue is 24 square feet, it may not be protected by § 4710, assuming the HOA has adopted a rule prohibiting noncommercial banners more than 15 square feet in size.

With respect to public art programs, a threshold First Amendment issue is whether the program at issue is considered “government speech” or a forum for private speech.

As the Supreme Court recently said, “When the government encourages diverse expression—say, by creating a forum for debate—the First Amendment prevents it from discriminating against speakers based on their viewpoint. But when the government speaks for itself, the First Amendment does not demand airtime for all views.” Shurtleff v. City of Boston, 142 S. Ct. 1583, 1587 (2022).

In speaking for itself, the government “chooses what to say and what not to say” and it need not “transmit the views” of others. Id. at 1589. According to the Court, “The Constitution therefore relies first and foremost on the ballot box, not on rules against viewpoint discrimination, to check the government when it speaks.” Id.

The question whether a given case involves government speech or “a forum for the expression of private speakers’ views” depends on a “holistic inquiry designed to determine whether the government intends to speak for itself or to regulate private expression,” depending on factors such as “the history of the expression at issue; the public’s likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression.” Id. at 1589-90.

In certain circumstances, some courts have held that some public art constituted government speech. See, e.g., People for the Ethical Treatment of Animals, Inc. v. Gittens, 414 F.3d 23 (D.C. Cir. 2005); McGriff v. City of Miami Beach, 594 F. Supp. 3d 1302 (S.D. Fla. 2022); Pulphus v. Ayers, 249 F. Supp. 3d 238 (D.D.C. 2017); cf. Pleasant Grove City v. Summum, 555 U.S. 460, 470-73 (2009) (holding that monuments in public park constituted government speech although they were privately funded & donated).

In some circumstances, however, the government may create either a designated or limited public forum for the private speech of artists, depending on the facts. See Hopper v. City of Pasco, 241 F.3d 1067 (9th Cir. 2001). In either a designated or limited public forum, the government may not generally discriminate against a person due to the viewpoint of their speech. Id. at 1074-75.

To the extent a public art program might be considered a competitive grant program, the government retains considerable discretion in awarding such grants, although even in that context the existence of “invidious viewpoint discrimination” would present a significant First Amendment problem. Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 587 (1998).

With exceptions noted below, California law establishes an absolute privilege against liability for “a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued.” Civil Code § 47(d)(1); see, e.g., J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP, 247 Cal. App. 4th 87, 98 (2016) (noting statement covered by fair report privilege “is absolutely privileged regardless of the defendants’ motive”).

However, the above provision does not apply to “any communication to a public journal that does any of the following:

(A) Violates Rule 3.6 of the State Bar Rules of Professional Conduct.

(B) Breaches a court order.

(C) Violates a requirement of confidentiality imposed by law.”

Civil Code § 47(d)(2).

Newspapers & other media outlets are generally “‘public journals’ within the meaning of the statute.” Green v. Cortez, 151 Cal. App. 3d 1068, 1073 (1984); see also, e.g., Carver v. Bonds, 135 Cal. App. 4th 328, 351 (2005) (“The Chronicle and its Web site are ‘public journal[s]’ within the meaning of this statute.”).

For purposes of Civil Code section 47, courts have held that “legislative” proceedings include those of a city council, planning commission, or school board. Cayley v. Nunn, 190 Cal. App. 3d 300, 303 (1987); Royer v. Steinberg, 90 Cal. App. 3d 490, 503 (1979). As one court said, the statute covers “all legislative, quasi-legislative and administrative board proceedings.” Royer, 90 Cal. App. 3d at 503.

A “public” official proceeding “means governmental, as opposed to private” & may include matters that are “confidential and not open to the public.” Carver, 135 Cal. App. 4th at 351; see also, e.g., Balzaga v. Fox News Network, LLC, 173 Cal. App. 4th 1325, 1337 (2009) (“A ‘public official proceeding’ includes a police investigation.”); Braun v. Chronicle Publishing Co., 52 Cal. App. 4th 1036, 1051 (1997) (holding “investigative audit conducted by the State Auditor” was public official proceeding).

A court has noted, “‘Fair and true’ in this context does not refer to the truth or accuracy of the matters asserted in the judicial [or other] proceedings, but rather to the accuracy of the challenged statements with respect to what occurred in the judicial [or other] proceedings.” Healthsmart Pacific, Inc. v. Kabateck, 7 Cal. App. 5th 416, 434 (2016). As another court said:

To be fair and true, the report must capture the substance, the gist or sting of the subject proceedings as measured by considering the natural and probable effect of the report on the mind of the average reader. The defendant is entitled to a certain degree of flexibility/literary license in this regard, such that the privilege will apply even if there is a slight inaccuracy in details—one that does not lead the reader to be affected differently by the report than he or she would be by the actual truth.

Argentieri v. Zuckerberg, 8 Cal. App. 5th 768, 787-88 (2017) (citations, brackets & quotation marks omitted); see also, e.g., Balzaga, 173 Cal. App. 4th at 1337 (“The privilege applies if the substance of the publication or broadcast captures the gist or sting of the statements made in the official proceedings.”).

A similar absolute privilege applies to “a fair and true report of (1) the proceedings of a public meeting, if the meeting was lawfully convened for a lawful purpose and open to the public, or (2) the publication of the matter complained of was for the public benefit.” Civil Code § 47(e).

The California Supreme Court held this privilege applied, for example, to reporting on a press conference called by public officials. Kilgore v. Younger, 30 Cal. 3d 770, 776-77 (1982) (holding that “as far as the press was concerned, the news conference was a legally convened public meeting for a lawful purpose to which the public — by way of the media — had been invited” & media’s reporting was fair & true because it “captured the substance” of what was said).

Generally, the elements of a defamation claim are intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or causes special damage. Taus v. Loftus, 40 Cal. 4th 683, 720 (2007); Smith v. Maldonado, 72 Cal. App. 4th 637, 645 (1999). The First Amendment also places certain limits on defamation claims.

False Statement of Fact

Typically, only statements of fact, not opinion, can support a defamation claim. Taus, 40 Cal. 4th at 720. A statement is generally not actionable as defamation unless “it could reasonably be understood as declaring or implying actual facts capable of being proved true or false…. An opinion is not actionable if it discloses all the statements of fact on which the opinion is based and those statements are true.” Integrated Healthcare Holdings, Inc. v. Fitzgibbons, 140 Cal.App. 4th 515, 527 (2006); see also, e.g., Franklin v. Dynamic Details, Inc., 116 Cal. App. 4th 375, 387 (2004) (“A statement of opinion based on fully disclosed facts can be punished only if the stated facts are themselves false and demeaning.”).

In addition, to support a defamation claim, a statement of fact must generally be substantially false, which usually means it must “have a different effect on the mind of the reader from that which the … truth would have produced.” Carver v. Bonds, 135 Cal. App. 4th 328, 344-45 (2005) (citation and quotation marks omitted). “Minor inaccuracies do not amount to falsity so long as the substance, the gist, the sting, of the [alleged] libelous charge be justified.” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517 (1991); GetFugu, Inc. v. Patton Boggs LLP, 220 Cal. App. 4th 141, 154 (2013). “Libel law overlooks minor inaccuracies and concentrates on substantial truth … from the perspective of the average reader, not a person trained in the technicalities of the law.” Ferlauto v. Hamsher, 74 Cal. App. 4th 1394, 1404 (1999) (citation and quotation marks omitted). A plaintiff must generally bear the burden to prove the alleged statements are substantially false if they involve matters of public concern. Philadelphia Newspapers v. Hepps, 475 U.S. 767, 776 (1985).

Unprivileged

In California, an “unprivileged” statement is one not protected by an applicable legal privilege. For example, California law generally provides an absolute privilege against liability for statements made in judicial, legislative or official meetings such as city council or planning commission meetings. Civil Code § 47(b); Cayley v. Nunn, 190 Cal. App. 3d 300, 303 (1987); Scott v. McDonnell Douglas Corp., 37 Cal. App. 3d 277, 288 (1974).

Another potentially applicable privilege is “the ‘common-interest privilege,’ codified in California in Civil Code section 47, subdivision (c),” under which a person “who makes a statement to others on a matter of common interest is immunized from liability for defamation so long as the statement is made ‘without malice.'” Lundquist v. Reusser, 7 Cal. 4th 1193, 1196 (1994).

One court said “malice” in this context “is established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff’s rights.” Noel v. River Hills Wilsons, Inc., 113 Cal. App. 4th 1363, 1370 (2003). To the extent statements are on matters of common interest to the recipients, this privilege might apply. See, e.g., Cruey v. Gannett Co., 64 Cal. App. 4th 356, 369 (1998) (holding that a complaint to an employer about workplace harassment was subject to common interest privilege).

California law also recognizes absolute privileges for “fair and true reports” of certain matters, as discussed in a related post.

First Amendment Issues: Public Officials & Figures

Even when statements at issue contain substantially false & defamatory assertions of fact that are not privileged under state law, the First Amendment generally mandates that a public official, or a public figure, whether general purpose or limited purpose, cannot establish defamation without proving by clear & convincing evidence that any such assertions were made with actual knowledge they were false or reckless disregard for the truth. New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964); Ampex Corp. v. Cargle, 128 Cal. App. 4th 1569, 1577 (2005).

As one court said, “to characterize a plaintiff as a limited purpose public figure … First, there must be a public controversy, which means the issue was debated publicly and had foreseeable and substantial ramifications for nonparticipants. Second, the plaintiff must have undertaken some voluntary act through which he or she sought to influence resolution of the public issue. In this regard it is sufficient that the plaintiff attempts to thrust him or herself into the public eye. And finally, the alleged defamation must be germane to the plaintiff’s participation in the controversy.” Gilbert v. Sykes, 147 Cal. App. 4th 13, 24 (2007).

When the plaintiff in a defamation case is a public official or general or limited purpose public figure, the plaintiff must prove more than that the statement is objectively false. Harte-Hanks Communications v. Connaughton, 491 U.S. 657, 681 (1989). Such a plaintiff must meet “a subjective test, under which the defendant’s actual belief concerning the truthfulness of the publication is the crucial issue. This test directs attention to the defendant’s attitude toward the truth or falsity of the material published,” not “the defendant’s attitude toward the plaintiff.” McGarry v. Univ. of San Diego, 154 Cal. App. 4th 97, 114 (2007). The defendant’s attitude must be one of reckless disregard for the truth of the material published, and, generally, the “mere failure to investigate” or “gross or even extreme negligence” are insufficient. Christian Research Institute v. Alnor, 148 Cal. App. 4th 71, 90 (2007).

One court has held that “a patrolman or low-level police officer is a ‘public official’” for First Amendment purposes. Gomes v. Fried, 136 Cal. App. 3d 924, 933 (1982).

Private Figures: Negligence

To recover for defamation, a private figure must prove that the defendant was negligent. Brown v. Kelly Broadcasting Co., 48 Cal. 3d 711, 742 (1989). To prove negligence, the plaintiff must prove that the defendant “failed to use reasonable care to determine the truth or falsity” of the statement at issue, Hecimovich v. Encinal School Parent Teacher Organization, 203 Cal. App. 4th 450, 470 (2012), or “the existence of extrinsic circumstances making the statement defamatory.” Savage v. Pacific Gas & Electric Co., 21 Cal. App. 4th 434, 448 (1993). The question of negligence or reasonable care depends on all the relevant facts.

Retraction

Civil Code section 48a states, in part, that a “plaintiff shall only recover special damages unless a correction is demanded and is not published or broadcast, as provided in this section.” The demand must include “a written notice specifying the statements claimed to be libelous and demanding that those statements be corrected” and “be served within 20 days after knowledge of the publication or broadcast of the statements claimed to be libelous.” If the correction “is not published … in substantially as conspicuous a manner in the same daily or weekly news publication … in a regular issue thereof published or broadcast within three weeks after service, plaintiff, if he or she pleads and proves notice, demand and failure to correct, and if his or her cause of action is maintained, may recover general, special, and exemplary damages.”

Anti-SLAPP Statute

If one is sued for making statements of public interest, one might have the right to file a motion to strike some or all of the claims under California’s anti-SLAPP statute, Code Civ. Proc. § 425.16, which generally requires plaintiffs bringing such claims to prove a reasonable probability of prevailing on the merits early in the case or risk paying the defendant’s attorney fees. Information about the anti-SLAPP law is available from the California Anti-SLAPP Project, although I can’t make any promises about its completeness or accuracy.

Even if a statement might be defamatory, any injunction against making defamatory statements must generally “must not prevent [the speaker] from presenting her grievances to government officials” and must be limited to an order against repeating the specific statements “that were determined at trial to be defamatory.” Balboa Island Village Inn, Inc. v. Lemen, 40 Cal. 4th 1141, 1160, 1162 (2007).

As the Supreme Court has said, generally speech on matters of public concern “cannot be restricted simply because it is upsetting or arouses contempt,” and “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Snyder v. Phelps, 562 U.S. 443, 458 (2011). Typically, as the Court said, the Constitution requires that society “must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” Id.

The Supreme Court has shown some solicitude for privacy in the home, for example by upholding an ordinance that prohibited “picketing focused on, and taking place in front of, a particular residence,” regardless of the content or viewpoint of the picketing. Frisby v. Schultz, 487 U.S. 474, 482 (1988).

In some cases, courts have recognized “a hostile housing environment cause of action” under fair housing laws, based on conduct that is so “severe or pervasive” that it “unreasonably interferes with use and enjoyment of the premises,” which is determined “by looking at all the circumstances,” including factors such as the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes” with occupation of the home. DiCenso v. Cisneros, 96 F.3d 1004, 1008 (7th Cir. 1996).

As one court has said, the First Amendment “protects a wide variety of speech that listeners may consider deeply offensive,” and when “laws against harassment attempt to regulate oral or written expression on such topics, however detestable the views expressed may be, we cannot turn a blind eye to the First Amendment implications.” Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 206 (3d Cir. 2001). Generally, to show harassment, it is “not enough that the speech is merely offensive to some listener.” Id. at 217.

However, as the court noted, this is not to say “no application of anti-harassment law to expressive speech can survive First Amendment scrutiny,” assuming the speech or conduct at issue is sufficiently severe or pervasive, given that preventing discrimination is not only a “legitimate, but a compelling, government interest.” Id. at 209; see also, e.g., DeJohn v. Temple Univ., 537 F.3d 301, 320 (3d Cir. 2008) (noting that “unless harassment is qualified with a standard akin to a severe or pervasive requirement, a harassment policy may suppress core protected speech.”). The question of what is unprotected as severe or pervasive harassment, as opposed to what is protected by the First Amendment as merely offensive, depends on specific facts and circumstances.

As the Supreme Court has said, “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers,” and the “freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” City of Houston v. Hill, 482 U.S. 451, 461, 462-63 (1987); see also, e.g., Mackinney v. Nielsen, 69 F.3d 1002, 1007 (9th Cir. 1995) (recognizing “First Amendment right to challenge the police” and noting that “[e]ven when crass and inarticulate, verbal challenges to the police are protected”).

In particular, the Ninth Circuit held that the First Amendment prohibited making an arrest merely because a driver was making “obscene gestures” and “yelling profanities in Spanish” at an officer. Duran v. City of Douglas, 904 F.2d 1372, 1377 (9th Cir. 1990). As the court said:

[W]hile police, no less than anyone else, may resent having obscene words and gestures directed at them, they may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment. Inarticulate and crude as Duran’s conduct may have been, it represented an expression of disapproval toward a police officer with whom he had just had a run-in. As such, it fell squarely within the protective umbrella of the First Amendment and any action to punish or deter such speech — such as stopping or hassling the speaker — is categorically prohibited by the Constitution.

Id. at 1378.

The Supreme Court recently held that the mere “censure of one member of an elected body by other members of the same body,” standing alone, does not violate the First Amendment. Hous. Cmty. Coll. Sys. v. Wilson, 142 S. Ct. 1253, 1263 (2022).

According to the Court, such a censure, standing alone, is “a form of speech by elected representatives” that concerns “the public conduct of another elected representative,” and “[e]veryone involved was an equal member of the same deliberative body.” Id. at 1261. In such circumstances, the Court held that a censure by itself is not a “materially adverse action” for purposes of the First Amendment. The Court said, “In this country, we expect elected representatives to shoulder a degree of criticism about their public service from their constituents and their peers—and to continue exercising their free speech rights when the criticism comes.” Id.

The Court also noted, “The First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy. But just as surely, it cannot be used as a weapon to silence other representatives seeking to do the same.” Id.; see also Blair v. Bethel Sch. Dist., 608 F.3d 540, 543 (9th Cir. 2010) (noting First Amendment does not shield elected officials “from the give-and-take of the political process” and holding removal of school board member from position of vice president of board did not violate First Amendment because “his authority as a member of the Board was unaffected; despite his removal as Board vice president, he retained the full range of rights and prerogatives that came with having been publicly elected”).

The Supreme Court noted that the case before it concerned only a censure by itself and did “not involve expulsion, exclusion, or any other form of punishment.” Wilson, 142 S. Ct. at 1263. The latter types of actions might present problems under the First Amendment. See, e.g., Bond v. Floyd, 385 U.S. 116 (1966) (holding state legislature violated First Amendment by refusing to seat duly elected representative due to his criticism of Vietnam War); Velez v. Levy, 401 F.3d 75, 98 (2d Cir. 2005) (holding “the First Amendment bars state officials from stripping elected representatives of their office based on the political views of such representatives”).

In some circumstances, actions not amounting to expulsion or formal punishment may amount to retaliation against elected officials in violation of the First Amendment. The Ninth Circuit has held an elected official’s claim “for First Amendment retaliation by his elected peers” requires the official to prove “(1) he engaged in constitutionally protected activity; (2) as a result, he was subjected to adverse action by the defendant that would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action.” Boquist v. Courtney, 32 F.4th 764, 775 (9th Cir. 2022).

An elected official’s speech is protected regardless of whether the official is speaking as a citizen on a matter of public concern, nor does the court take into account the government’s interest “in promoting the efficiency of the public services it performs through its employees,” as it would in assessing claims by other public employees. Id. at 780-81.

If the elected official meets their initial burden, the defendants must prove they “would have taken the same adverse action even in the absence of their animus or retaliatory motive arising from the plaintiff’s speech.” Id. at 778.

The foregoing issues depend heavily on the facts of each individual case. For example, the question of what is a sufficient “adverse action” is highly fact-specific. See, e.g., id. at 773, 783 (holding that order directing legislator “to give at least twelve hours advance notice in writing to the Secretary of the Senate before he intended to visit the State Capitol” was “materially adverse action” for First Amendment purposes).

On the facts before it, a California court also held that it would violate the First Amendment to prevent city “council members from advocating their constituents’ positions” to city staff. Levy v. City of Santa Monica, 114 Cal. App. 4th 1252, 1261 (2004).

With respect to the rights of a council member to speak during a city council meeting, in some circumstances, “[r]estrictions on a council member’s ability to attend council meetings and address matters of public concern may infringe the member’s First Amendment rights,” depending on the facts. DeGrassi v. City of Glendora, 207 F.3d 636, 646 (9th Cir. 2000) (holding exclusion from closed sessions did not violate council member’s First Amendment rights where she “was excluded from the October meetings because of her status as a party” to litigation, “not because of her viewpoint”).

As one court has noted, legislative bodies often adopt “rules of parliamentary procedure to enable it to … function in an efficient manner. These rules govern a wide range of matters, ranging from the order of business to the order in which motions will be considered. The function of these rules is to maintain order by structuring the deliberative process and thereby allowing the legislature efficiently and effectively to perform its main function of making collective decisions on proposals before it.” Parker v. Merlino, 646 F.2d 848, 854 (3d Cir. 1981). Such rules do not necessarily violate the First Amendment. For example, the Parker court upheld a “rule permitting a question to be brought to a vote without further debate.” Id.

Another court held that the portion of a meeting dedicated to council members’ comments is a limited public forum, which is confined to the speech of certain persons on specified topics. Mobley v. Tarlini, 641 F. Supp. 2d 430, 438-39 (E.D. Pa. 2009). In such a forum, the First Amendment requires that restrictions on the speech of council members must be reasonable in light of the purpose of the forum & viewpoint neutral. Id. at 438.

For example, the court held that in general, it does not necessarily violate the First Amendment to apply Robert’s Rules of Order to limit the speech of council members, because on their face, such rules are reasonable and viewpoint neutral. Id. at 439. However, in some circumstances, depending on the facts, a “particular application of Robert’s Rules” may “amount to viewpoint-based discrimination” against a speaker. Id.

Generally, California recognizes a tort of “common law right of publicity,” which “has four elements: (1) [the] defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.” Hoang v. Tran, 60 Cal. App. 5th 513, 538 (2021). However, the common law right of publicity is not generally violated by “[p]ublication of matters in the public interest, which rests on the right of the public to know and the freedom of the press to tell it.” Id.

“In addition to the common law cause of action, California has provided a statutory remedy for commercial misappropriation under Civil Code section 3344,” but that statute has an express exemption for use ‘in connection with any news, public affairs, or sports broadcast or account, or any political campaign.’ This is similar to the exception developed under the common law right for publication of matters of public interest.” Stewart v. Rolling Stone LLC, 181 Cal. App. 4th 664, 680 (2010) (citation omitted).

The First Amendment does not by itself generally guarantee an absolute right to address or give public comment to a governmental body or agency during its meetings. See, e.g., Minn. State Bd. for Cmty. Colleges v. Knight, 465 U.S. 271, 283-84 (1984) (“The Constitution does not grant to members of the public generally a right to be heard by public bodies making decisions of policy…. Policymaking organs in our system of government have never operated under a constitutional constraint requiring them to afford every interested member of the public an opportunity to present testimony before any policy is adopted.”); Madison Joint School Dist. v. Wisconsin Employment Relations Comm’n, 429 U.S. 167, 175 n.8 (1976) (noting public bodies “may hold nonpublic sessions to transact business”); Curnin v. Town of Egremont, 510 F.3d 24, 29 (1st Cir. 2007) (‘Non-legislators have no First Amendment right to address sessions of deliberating legislative bodies. The Supreme Court has never extended First Amendment forum analysis to a deliberating legislative body or to the body’s rules about who may speak.”); West Farms Assoc. v. State Traffic Com., 951 F.2d 469, 473 (2d Cir. 1991) (holding state body “has no federal obligation to open all of its meetings to the public. On the contrary, it is plainly permitted by the First Amendment to conduct business in private”); Fraternal Order of Police v. Ocean City, 916 F.2d 919, 923 (4th Cir. 1990) (holding “the First Amendment does not demand that government officials be accessible to all who wish to influence their policy decisions” and thus “city officials were free to refuse to speak with whomever they chose”).

However, if other law provides a right to address public meetings, such as the Brown Act, see Govt. Code § 54954.3(a) (“Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body.”), then

In general, the Ninth Circuit has said the public comment portion of a city council or similar meeting can be considered a limited public forum, in which restrictions on speech are typically upheld if they are deemed reasonable & viewpoint neutral. See, e.g., Norse v. City of Santa Cruz, 629 F.3d 966, 975 (9th Cir. 2010).

For example, rules imposing time limits or restricting comments to relevant subjects might be deemed reasonable if they are applied equally to all speakers. But generally “a speaker may not be stopped from speaking because the moderator disagrees with the viewpoint he is expressing.” White v. Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990); see also, e.g., Acosta v. City of Costa Mesa, 718 F.3d 800, 812–13 (9th Cir. 2013) (rule against “personal, impertinent, profane” or “insolent” remarks at city council meeting violated First Amendment).

As the Supreme Court has said, the First Amendment generally reflects our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). “Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized.” Rosenblatt v. Baer, 383 U.S. 75, 85 (1966).

Another court held the First Amendment does not generally allow the government to prohibit criticism while allowing praise, because such a provision discriminates based on viewpoint. Chaker v. Crogan, 428 F.3d 1215, 1228 (9th Cir. 2005). For similar reasons, a court held that it violates the First Amendment to prohibit criticism of specific officials or employees at a school board meeting. Leventhal v. Vista Unified Sch. Dist., 973 F. Supp. 951 (S.D. Cal. 1997).

Although the First Amendment may permit removal of an individual from a governing board meeting due to actual disruption of the meeting, the board may not define disruption in any way it wishes. “Actual disruption means actual disruption. It does not mean constructive disruption, technical disruption, virtual disruption, nunc pro tunc disruption, or imaginary disruption.” Norse, 629 F.3d at 976 (individual could not be expelled from meeting solely for giving silent Nazi salute).

In California, the statute of limitations for defamation based on a statement made in print or online is generally one year from the date the statement was first published, regardless of whether the plaintiff knew about the statement when it was published.

The tort of “defamation” takes the form of “libel,” which is written, or “slander,” which is oral. Civil Code §§ 44, 45, 46. The statute of limitations for an “action for libel [or] slander,” i.e., defamation, is “one year.” Code Civ. Proc. § 340(c).

California follows the single publication rule, under which “[n]o person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one issue of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture.” Civil Code § 3425.3.

When allegedly defamatory statements were made publicly, for example in a book, the California Supreme Court held that “the cause of action for defamation accrued and the statute of limitations ran from the date the book was first generally distributed to the public, regardless of the date on which plaintiff actually learned of the existence of the book and read its contents.” Shively v. Bozanich, 31 Cal. 4th 1230, 1237 (2003).

This rule “applies without limitation to all publications,” regardless of circulation or distribution, and thus generally covers materials “published with only limited circulation,” such as the transcript of an oral history interview where “[f]ewer than 10 copies of the transcripts of these interviews were published.” Hebrew Academy of San Francisco v. Goldman, 42 Cal. 4th 883, 888, 893 (2007).

“Under the single-publication rule, with respect to the statute of limitations, publication generally is said to occur on the first general distribution of the publication to the public,” including the first “Web page publication” of an allegedly defamatory statement. Traditional Cat Assn., Inc. v. Gilbreath, 118 Cal. App. 4th 392, 401, 404 (2004).

Generally, “under California’s single-publication rule, once a defendant publishes a statement on a website, the defendant does not republish the statement by simply continuing to host the website.” Yeager v. Bowlin, 693 F.3d 1076, 1082 (9th Cir. 2012).

If the allegedly defamatory statement were updated with revisions or new content, or the statement were posted on an entirely different website, that might amount to a new publication that restarts the one-year clock. Oja v. United States Army Corps of Eng’rs, 440 F.3d 1122, 1134 & n.16 (9th Cir. 2006) (noting publication on “second site” distinct from that of first posting “constitutes a separate and distinct publication”).

However, merely posting the same statement “in a different section of the same website” does not constitute a new publication, and a “new cause of action” for defamation does not necessarily “arise every time a few characters — due to the continually evolving nature of technology — in a URL address changes, even though the same allegedly defamatory statement continued to appear on the same website.” Canatella v. Van De Kamp, 486 F.3d 1128, 1135 (9th Cir. 2006). Similarly, updates or revisions to other content on a website, unrelated to the allegedly defamatory statement, does not necessarily constitute a new publication that restarts the clock on the statute of limitations. Yeager, 693 F.3d at 1083.

The Supreme Court has held that the First Amendment prohibits official action that “single[s] out the press for special treatment,” Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 575, 582 (1983), or improperly discriminates between different segments of the press. Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 227-28 (1987). However, the Court held that a tax of “general applicability” that “does not single out the press” or “threaten to hinder the press as a watchdog of government activity” is not unconstitutional where it exempted newspapers and magazines but not cable television services and the state had “not selected a narrow group to bear fully the burden of the tax.” Leathers v. Medlock, 499 U.S. 439, 447 (1991).

In general, for purposes of the First Amendment, courts have noted that “[t]he press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion,” and a journalist need not be “associated with the institutionalized press,” because “[l]iberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.” von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 144-45 (2d Cir. 1987) (citations and quotation marks omitted). As the Supreme Court said in another context, there is “no basis for qualifying the level of First Amendment scrutiny that should be applied” to speech online. Reno v. American Civil Liberties Union, 521 U.S. 844, 870 (1997).

The California Court of Appeal held that an online publication can qualify for the protection of the state’s reporter’s shield law as well as the First Amendment journalist’s privilege. O’Grady v. Superior Court, 139 Cal. App. 4th 1423, 1462-67 (2006). As the O’Grady court said, there is “no sustainable basis to distinguish” a journalist who publishes online “from the reporters, editors, and publishers who provide news to the public through traditional print and broadcast media,” because they all “gather, select, and prepare, for purposes of publication to a mass audience, information about current events of interest and concern to that audience,” and “the open and deliberate publication on a news-oriented Web site of news gathered for that purpose” is “conceptually indistinguishable from publishing a newspaper.” Id. at 1459, 1467. The Court of Appeal has also held that freelance journalists can qualify for protection under the reporter’s shield law. People v. Von Villas, 10 Cal. App. 4th 201, 232 (1992).

As the Supreme Court has said, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989); see also, e.g., Street v. New York, 394 U.S. 576, 592 (1969) (holding “the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers”).

Accordingly, the Court has held that speech in public on matters of public concern generally “cannot be restricted simply because it is upsetting or arouses contempt,” and “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment,” due to the risk of excessive censorship arising from a “highly malleable” standard such as “[o]utrageousness.” Snyder v. Phelps, 562 U.S. 443, 458 (2011). Although such speech may “inflict great pain,” the First Amendment generally “protect[s] even hurtful speech on public issues to ensure that we do not stifle public debate.” Id. at 461.

Therefore, outside of unique contexts such as schools or prisons, the First Amendment typically does not allow restrictions on speech about matters of public concern merely because it is unorthodox, offensive, or distasteful. See, e.g., United States v. Eichman, 496 U.S. 310, 318 (1990) (referring to “virulent ethnic and religious epithets” as protected speech). As one court has said, if First Amendment “rights are to remain vital for all, they must protect not only those society deems acceptable, but also those whose ideas it quite justifiably rejects and despises.” Collin v. Smith, 578 F.2d 1197, 1210 (7th Cir. 1978).

In general, public sidewalks around the perimeter of courthouse property are traditional public forums. United States v. Grace, 461 U.S. 171 (1983) (holding public sidewalk around Supreme Court was a traditional public forum in which protest could not be prohibited). However, the Supreme Court has upheld a Louisiana statute that prohibits protesting “in or near” a courthouse with specific intent to interfere with, obstruct, or impede justice, or influence a judge, juror, witness, or court officer. Cox v. Louisiana, 379 U.S. 559 (1965).

Unlike sidewalks around the perimeter of courthouse property, the walkways leading to a government building’s entrance as well as the building’s interior & curtilage are generally considered limited rather than traditional public forums. United States v. Kokinda, 497 U.S. 720 (1990); Sammartano v. First Judicial Dist. Ct., 303 F.3d 959 (9th Cir. 2002). In a limited public forum, restrictions on speech are generally upheld if they are reasonable & viewpoint neutral.

A court might well uphold a general prohibition on protesting & demonstrating inside a courthouse or its curtilage, without regard to viewpoint, as a reasonable restriction, given that people are generally free to protest on the nearest public sidewalk & courthouses are generally reserved for their intended use of hearing legal disputes & not traditionally open to protest. Also, whether in a traditional or limited public forum, courts generally uphold restrictions on physically obstructing access to a sidewalk or building.

It is not clear if a court has addressed a prohibition on approaching persons waiting in line to enter a courthouse without their consent, but the Supreme Court has upheld a similar rule in the context of the vicinity around a healthcare facility. Cf. Hill v. Colorado, 530 U.S. 703 (2000) (upholding a rule making it unlawful, within 100 feet of a healthcare facility, for any person to “knowingly approach” within 8 feet of another person and without that person’s consent for the purpose of leafleting, protesting, educating, or counseling another person).

Similarly, a court might well uphold a restriction on using amplification equipment in a manner that harasses or interferes with people entering or leaving a courthouse or waiting in line to enter. Such rules might be subject to abuse depending on how they’re applied, but that doesn’t necessarily make them invalid on their face.

The “First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.” Pell v. Procunier, 417 U.S. 817, 833 (1974); Branzburg v. Hayes, 408 U.S. 665, 684 (1972); see also, e.g., Danielson v. Huether, 355 F. Supp. 3d 849, 867-68 (D.S.D. 2018) (citing cases).

For example, the First Amendment does not generally require public officials to give interviews to any journalist on demand or prohibit officials from refusing to speak with certain reporters. Balt. Sun Co. v. Ehrlich, 437 F.3d 410, 417-18 (4th Cir. 2006) (“Public officials routinely select among reporters when granting interviews or providing access to nonpublic information,” and “government officials frequently and without liability evaluate reporters and reward them with advantages of access — i.e., that government officials regularly subject all reporters to some form of differential treatment based on whether they approve of the reporters’ expression.”); Sherrill v. Knight, 569 F.2d 124, 129 (D.C. Cir. 1977) (“It would certainly be unreasonable to suggest that because the President allows interviews with some bona fide journalists, he must give this opportunity to all.”); Raycom Nat’l, Inc. v. Campbell, 361 F. Supp. 2d 679, 683-84 (N.D. Ohio 2004) (where radio station was not deprived of “access to information generally available to other members of the media,” court held “Mayor may exercise her right not to speak with certain reporters that, in her opinion, she views as untrustworthy or irresponsible:” and “make the determination that City administrators and employees may not comment on behalf of the City to members of the media”); Snyder v. Ringgold, 40 F. Supp. 2d 714, 718 (D. Md. 1999) (“No reporter has a right to access to a particular interview exclusive story, or off the record statement,” and First Amendment does not prohibit officials from “granting an exclusive interview to a particular reporter” or “declining to speak to reporters whom they view as untrustworthy”).

However, courts have held that when the government gives the media general access to press conferences, press facilities, or official meetings, the First Amendment prohibits the government from excluding particular reporters or media entities. Sherrill, 569 F.2d at 129 (holding that because the White House had established press facilities that were “perceived as being open to all bona fide Washington-based journalists,” the First Amendment required that access to the facilities “not be denied arbitrarily or for less than compelling reasons”); Am. Broadcasting Cos. v. Cuomo, 570 F.2d 1080, 1083 (2d Cir. 1977) (“[O]nce there is a public function, public comment, and participation by some of the media, the First Amendment requires equal access to all of the media or the rights of the First Amendment would no longer be tenable.”); United Teachers of Dade v. Stierheim, 213 F. Supp. 2d 1368, 1373-74 (S.D. Fla. 2002) (holding that the exclusion of a reporter from a press room that was open to the media was an improper denial of access to information); see also Anderson v. Cryovac. Inc., 805 F.2d 1, 9 (1st Cir. 1986) (where district court selectively allowed one media outlet access to “otherwise confidential information” for publication, court held, “A court may not selectively exclude some news media from access to information otherwise made available for public dissemination.”).