Last week, TechFreedom and two other preeminent free speech organizations filed an amicus brief in Diamond S.J. Enterprise, Inc. v. City of San Jose, urging the full Ninth Circuit to rehear the case after a three-judge panel issued a decision undermining First Amendment protections against government speech licensing. The case involves a constitutional challenge to San Jose’s municipal code, which allows the Chief of Police to revoke or suspend a business’ public entertainment permit if he determines that the business is a “public nuisance”—which California law defines as anything “indecent” or “offensive to the senses.” Also joining the brief were the First Amendment Lawyers Association and the Foundation for Individual Rights and Expression.

For nearly a century the courts have ruled that when expression is subject to government permits, the First Amendment forbids granting broad discretion to the official or entity that determines who can obtain a permit. In a 2-1 ruling, the panel held that the discretion to determine which businesses are a “public nuisance” is limited enough to satisfy the First Amendment because the California Supreme Court noted that a court can only find a public nuisance when the impact is objectively “unreasonable” and “substantial.” Our brief argued that the factors constraining a court’s decision do little to constrain the discretion of a licensing authority that acts as investigator, prosecutor, judge, and jury—all outside the formal protection of judicial proceedings.

“The panel’s decision missed the point almost entirely,” said Ari Cohn, TechFreedom Free Speech Counsel and principal author of the brief. “An objective standard that restricts a court’s application of the law is all well and good, but it does very little to rein in a bureaucrat’s subjective (and exclusive) decision of what is ‘indecent’ or ‘offensive’ when deciding whether a business gets to engage in free speech. Those terms have long been found to be highly toxic to expressive rights, and that’s made exponentially worse when a single person gets to make the decision.”

“Inexplicably, the panel also managed to miss an entire separate layer of discretion on top of the discretion to decide what is a nuisance,” Cohn continued. San Jose’s city code allows but does not require the Chief of Police to revoke or suspend a permit if he decides that a business has done something indecent or offensive to the senses. “The Chief of Police is not just the investigator, judge, and jury of who gets to speak in San Jose, he’s also the prosecutor. The ability to pick and choose which alleged ‘public nuisances’ should result in a permit revocation or suspension poses a clear and obvious risk of discrimination. It is astounding that the panel decision did not write one word about this broad, easily abused discretion.”

“The panel’s decision is especially dangerous in light of what we know is coming around the bend in social media regulation,” Cohn concluded. Bills like the Digital Consumer Protection Commission Act, introduced by Elizabaeth Warren and Lindesy Graham, would require social media platforms to get a license from a licensing agency. “If licensing authorities have this wide discretion to adjudicate any body of law its creators want and permit or deny First Amendment activity as a result, the possibilities for weaponization to control the free flow of information online are virtually endless. The full Court must step in to prevent two judges from upending decades of well-established and time-tested First Amendment safeguards.”

###

Find this brief on our website, and share it on Twitter, Bluesky, LinkedIn, Facebook, and Mastodon. 

For more information about the case, please see these court documents:

  • The district court’s ruling on the City of San Jose’s motion to strike (July 1, 2019)
  • The district court’s ruling on motions for summary judgment
  • The 9th Circuit panel opinion affirming the district court rulings
  • Diamond S.J. Enterprise’s petition for rehearing en banc

We can be reached for comment at media@techfreedom.org. Read our related work, including:

About TechFreedom: 

TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.

</>