1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PROJECT FOR OPEN GOVERNMENT, Case No.: 22-cv-00067-AJB-MDD

12 Plaintiff, ORDER GRANTING IN PART 13 DEFENDANT’S MOTION TO v. DISMISS AND DECLINING TO 14

EXERCISE SUPPLEMENTAL

15 COUNTY OF SAN DIEGO, JURISDICTION OVER THE

REMAINING STATE LAW CLAIMS

16 Defendant. 17 (Doc. No. 3) 18 19 Before the Court is the County of San Diego’s (“Defendant” or “County”) motion 20 to dismiss Project for Open Government’s (“Plaintiff”) Complaint. (Doc. No. 3.) Plaintiff 21 filed an opposition, to which Defendant replied. (Doc. Nos. 7, 8.) For the reasons set forth 22 below, the Court GRANTS IN PART Defendant’s motion to dismiss and REMANDS the 23 remaining state law claims to San Diego Superior Court. 24 I. BACKGROUND 25 Plaintiff filed a Complaint in San Diego Superior Court, alleging that Defendant 26 violated the United States Constitution, California Constitution, and California’s 27 open-government laws when the County Board of Supervisors (“Board”) adopted 28 Resolution No. 21-174 (“Resolution”). (Doc. No. 1-2, Compl. at ¶¶ 5, 10, 14.) The 1 Resolution states that the Board “desires to make necessary changes to its Rules of 2 Procedures to promote more equitable, civilized public engagement while continuing to 3 honor the rights of all under the First amendment and free speech principles.” 1 (Doc. No. 4 1-2, Exh. A at 9.)2 To that end, the Resolution approved amendments to the Board’s Rules 5 of Procedures during public meetings. (Id.) 6 Plaintiff’s Complaint challenges these changes, claiming the amendments to Rule 7 4(l) “violate the free-speech rights of members of the public who desire to address the 8 [Board] during public meetings, in violation of the federal and state constitutions” and are 9 “impermissibly vague.” (Id. ¶ 10.) Plaintiff also alleges the changes to Rule 4(a)(2) “violate 10 state open-government laws applicable to the [Board] during public meetings.” (Id. ¶ 14.) 11 Defendant timely removed the case to federal court and thereafter filed the instant motion 12 to dismiss the Complaint. (Doc. Nos. 1, 3.) 13 II. LEGAL STANDARD 14 A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint. 15 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “To survive a motion to dismiss, a 16 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief 17 that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). 18 To determine the sufficiency of the complaint, the court must assume the truth of all factual 19 allegations therein and construe them in the light most favorable to the plaintiff. Cahill v. 20 Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). This tenet, however, does not 21 apply to legal conclusions. Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of 22 a cause of action, supported by mere conclusory statements, do not suffice.” Id.; Bell 23 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court may dismiss a complaint 24 25 1 Plaintiff attached to its Complaint, a copy of the Resolution and Rules at issue. As exhibits attached to 26 the Complaint, these materials are appropriate for the Court’s consideration in adjudicating the present motion. Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). 27 2 Unless otherwise indicated, the pinpoint page citations in this Order refer to the ECF-generated page 28 1 under Rule 12(b)(6) if “the complaint lacks a cognizable legal theory or sufficient facts to 2 support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 3 1097, 1104 (9th Cir. 2008). 4 III. DISCUSSION 5 Defendant moves to dismiss the entirety of Plaintiff’s Complaint. With respect to 6 Plaintiff’s First Amendment claim, Defendant argues that Rule 4(l): (1) does not regulate 7 or restrict public speech, (2) is a proper exercise of the Board’s free speech rights, and (3) 8 is not unconstitutionally vague. The Court discusses these arguments in turn. 9 Rule 4(l) provides that if a person makes discriminatory or harassing remarks at a 10 public meeting, the Chairperson may interrupt and admonish the speaker by taking the 11 following actions: (1) stating the County’s policy regarding discrimination and harassment, 12 (2) stating that comments in violation of County policy will not be condoned, and (3) 13 inform the speaker that their language is unwanted, unwelcome and/or inappropriate, and 14 that they interfere with the ability of those present to listen and understand. (Doc. No. 1-2 15 at 24.) The Rule defines “discriminatory or harassing remarks” as including “legally 16 protected speech in a Board meeting that disparages an individual or group based on their 17 perceived race, religion, sexual orientation, ethnicity, gender, disability, etc. or other hate 18 speech but does not rise to the level of a criminal threat or inciting violence.” (Id.) The 19 Rule states that during the admonishment, the speaker’s time will be held, and the speaker 20 will receive their full allotment of time and be allowed to resume speaking after the 21 admonishment. (Id.) If the speaker’s comments “continue to disturb, disrupt, or impede the 22 orderly conduct of the meeting,” the Chairperson may have the speaker removed from the 23 meeting. (Id. at 23–24.) 24 As an initial matter, the Court agrees with Defendant that the Board’s admonishment 25 of the speaker’s discriminatory and harassing remark constitute government speech, which 26 is not subject to scrutiny under the First Amendment’s Free Speech Clause. See Pleasant 27 Grove City v. Summum, 555 U.S. 460, 467 (2009) (emphasizing the Free Speech Clause 28 “does not regulate government speech”). The United States Supreme Court has recognized 1 that a government entity has the right to speak for itself, is entitled to say what it wishes, 2 and to select the views it wants to express. See id. at 467–68 (quoting Board of Regents of 3 Univ. of Wis. System v. Southworth, 529 U.S. 217, 229 (2000), Rosenberger v. Rector and 4 Visitors of Univ. of Va., 515 U.S. 819, 833 (1995), and Rust v. Sullivan, 500 U.S. 173, 194 5 (1991)). Here, through the Resolution and adopted rule, the Board expresses its opinion 6 that discriminatory and harassing remarks do not promote civilized public engagement and 7 are contrary to the County’s Code of Ethics. (Doc. No. 1-2 at 9, 25.) Plaintiff offered no 8 explanation as to why the government’s criticism of discriminatory or harassing remarks 9 does not constitute government speech. As the Court of Appeals for the District of 10 Columbia Circuit persuasively explained: 11 We know of no case in which the first amendment has been held to be implicated by governmental action consisting of no more than governmental 12 criticism of the speech’s content. 13 . . . A rule excluding official praise or criticism of ideas would lead to the strange 14 conclusion that it is permissible for the government to prohibit racial 15 discrimination, but not to criticize racial bias; to criminalize polygamy, but not to praise the monogamous family; to make war on Hitler’s Germany, but 16 not to denounce Nazism. It is difficult to imagine how many governmental 17 pronouncements, dating from the beginning of the Republic, would have been unconstitutional on that view of things. 18

19 Block v. Meese, 793 F.2d 1303, 1313 (D.C. Cir. 1986) (internal quotations omitted). For 20 the foregoing reasons, the Court concludes the admonishment amounts to government 21 speech and is therefore not subject to the Free Speech Clause. 22 Turning to Plaintiff’s challenge to the meaning of “discriminatory or harassing 23 remarks,” Plaintiff argues the inclusion of the word “etc.” in the definition renders it 24 impermissibly vague. This definition, however, merely describes the circumstances under 25 which the Board may exercise its government speech, which as noted above, is outside the 26 purview of the Free Speech Clause. Plaintiff’s vagueness and overbreadth challenges are 27 therefore without merit. See Pleasant Grove, 555 U.S. at 467–68 (If the government was 28 “engaging in their own expressive conduct, then the Free Speech Clause has no 1 application.”); Pulphus v. Ayers, 249 F. Supp. 3d 238, 254 (D.D.C. 2017) (“When the 2 government speaks, it is free to promulgate vague guidelines and apply them arbitrarily.”) 3 Moreover, because Rule 4(1) does not preclude individuals from resuming their 4 remarks after the government has expressed its counter speech and preserves the full 5 allotment of the speaker’s time during the admonition, the Court does not find this aspect 6 of the Rule a restriction on speech for purposes of a First Amendment analysis. Plaintiff’s 7 contrary argument is unavailing. 8 Plaintiff asserts that Rule 4(l) is unconstitutional because the First Amendment 9 protects speech not only “from patent restraints, but also from more subtle forms of 10 governmental interference” and cites Huntley v. Pub. Utilities Comm’n, 69 Cal.2d 67 11 (1968) in support. (Doc. No. 7 at 12.) Huntley, however, is distinguishable because it did 12 not involve facts like those present in this case. In Huntley, the California Supreme Court 13 considered the Public Utilities Commission’s requirement that subscribers who transmitted 14 recorded messages include in the recording their name and address. See 69 Cal. 2d at 70. 15 The governmental interference in Huntley was a forced disclosure of information. It said 16 nothing about whether a government’s criticism of a speaker’s discriminatory or harassing 17 remark at a public meeting is actionable under the First Amendment. Because the case 18 before this Court does not involve the compelled disclosure of information, the Court finds 19 Plaintiff’s reliance on Huntley misplaced. 20 As to Rule 4(l)’s provision permitting the Chairperson to stop a speaker’s time or 21 have the speaker removed from the meeting for “continu[ing] to disturb, disrupt, or impede 22 the orderly conduct of the meeting,” Ninth Circuit case law is clear that while the First 23 Amendment constrains the government’s power even in a limited public forum like a city 24 council meeting, speakers may be stopped or removed if their comments are actually 25 disruptive. See Norse v. City of Santa Cruz, 629 F.3d 966, 979 (9th Cir. 2010) (Kozinski, 26 J., concurring) (collecting cases); accord White v. City of Norwalk, 900 F.2d 1421, 1425 27 (9th Cir. 1990) (“While a speaker may not be stopped from speaking because the moderator 28 1 disagrees with the viewpoint he is expressing, it certainly may stop him if his speech 2 becomes irrelevant or repetitious.”) (citation omitted). 3 Defendant specifically argues that Rule 4(l) is squarely in compliance with the Ninth 4 Circuit’s precedent in White v. City of Norwalk. There, the court considered a facial 5 challenge to a city ordinance that permitted a city council to remove individuals from 6 public hearings if they made “personal, impertinent, slanderous or profane remarks.” 900 7 F.2d at 1424. The court upheld the ordinance, explaining that it was not unconstitutional 8 on its face because “[s]peakers are subject to restriction only when their speech disrupts, 9 disturbs, or otherwise impedes the orderly conduct of the Council meeting.” Id. at 1426. 10 (internal quotations omitted). The Court agrees that Rule 4(l) is akin to the ordinance 11 upheld in White. 12 Like in White, the Rule at issue here is not facially unconstitutional because its 13 language reveals that the Chairperson’s ability to stop a speaker’s discriminatory or 14 harassing remarks is limited to instances where the comments actually “interfere with the 15 ability of those present to listen and understand” and “continue to disturb, disrupt, or 16 impede the orderly conduct of the meeting.” (Doc. No. 1-2 at 24.) As Rule 4(l) is analogous 17 to White in this consequential way, the Court sees no reason why White does not govern 18 here. And Plaintiff offered none. Defendant’s opening brief made plain its reliance on 19 White, yet Plaintiff chose not to address or otherwise distinguish this case. See generally 20 Buggs v. Powell, 293 F. Supp. 2d 135, 141 (D.D.C. 2003) (“[W]hen a plaintiff files an 21 opposition to a dispositive motion and addresses only certain arguments raised by the 22 defendant, a court may treat those arguments that the plaintiff failed to address as 23 conceded.”). 24 Upon consideration of the Complaint, the Resolution and Rules attached thereto, and 25 the controlling law, the Court finds Plaintiff has not and cannot state a First Amendment 26 claim. See Mendiondo, 521 F.3d at 1104; SmileCare Dental Grp. v. Delta Dental Plan of 27 California, Inc., 88 F.3d 780, 783 (9th Cir. 1996) (“The court may dismiss a complaint as 28 a matter of law for (1) lack of a cognizable legal theory or (2) insufficient facts under a 1 || cognizable legal claim.) (internal quotations omitted). Accordingly, the Court dismisses 2 || without leave to amend Plaintiffs cause of action under the First Amendment of the United 3 || States Constitution. 4 Lastly, as the Court has dismissed Plaintiff's sole federal claim at the outset of the 5 || litigation, the Court exercises its discretion to decline exercising supplemental jurisdiction 6 the remaining state law claims. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 7 (1988) “Where, as here, all federal-law claims in the action have been eliminated and 8 pendent state-law claims remain, the district court has a powerful reason to choose 9 || not to continue to exercise jurisdiction.”); Oliver v. Ralphs Grocery Co., 654 F.3d 903, 911 10 Cir. 2011) (The district court did not err “in declining to exercise supplemental 11 ||jurisdiction over [plaintiff's] state law claims” when it “properly disposed of ‘all claims 12 || over which it had original jurisdiction.’”’) (citing 28 U.S.C. § 1367(c)(3)). 13 CONCLUSION 14 For the reasons stated herein, the Court GRANTS IN PART Defendant’s motion to 15 dismiss. Plaintiff's claim under the First Amendment of the United States Constitution is 16 ||dismissed without leave to amend. Because the Court declines to exercise supplemental 17 ||jurisdiction over the remaining state law claims, the Clerk of Court is instructed to 18 || REMAND the remainder of Plaintiff's Complaint to the San Diego Superior Court and 19 close this case accordingly. 20 IT IS SO ORDERED. 21 Dated: September 10, 2022 © ¢ 22 Hon, Anthony J.Battaglia 23 United States District Judge 24 25 26 27 28