An excerpt from FIRE's memorandum filed last night:
Both as applied to Plaintiffs and on its face as to everyone who disseminates lawfully obtained information about sealed arrests, the anti-dissemination statute violates the First Amendment as a presumptively unconstitutional content-based speech restriction that cannot withstand strict scrutiny. Reed v. Town of Gilbert (2015); see also IMDb.com v. Becerra (9th Cir. 2020) (prohibition on "dissemination of one type of speech: 'date of birth or age information'" was a content-discriminatory restriction on a category of speech). This is all the more so given binding Supreme Court precedent protecting dissemination of lawfully obtained information, and holding that penalizing dissemination as pertains to sealed arrests is not the least restrictive means to achieve a compelling state interest. See Smith v. Daily Mail Publ'g Co. (1979) (other states had "found other ways of accomplishing the objective" of protecting the identity of juvenile offenders)….
The anti-dissemination statute regulates speech in covering only "disseminat[ing] information" and is content-based in reaching only speech "relating to a sealed arrest." Cal. Penal Code § 851.92(c). The "dissemination of information [is] speech within the meaning of the First Amendment." Sorrell v. IMS Health Inc. (2011)…. As the Supreme Court held decades ago, a state may not "punish publication" of "lawfully obtain[ed]" "truthful information about a matter of public significance," such as information about an arrestee. Daily Mail Publ'g Co.; see also, e.g., Worrell Newspapers of Ind. v. Westhafer (7th Cir. 1984) (striking down as overbroad a statute prohibiting any person from disclosing the existence of a sealed indictment before the defendant is arrested)….
[The statute] is also presumptively unconstitutional on its face. By its content-based terms, the statute penalizes disseminating lawfully obtained information about sealed arrests in an extensive number of its applications. True enough, the statute also covers those who disseminate information about sealed arrests they obtained through independently unlawful means. But more predominantly, the anti-dissemination statute punishes only what the First Amendment protects—publishing lawfully obtained information about matters of public concern. See Daily Mail Publ'g Co. And as detailed next, penalizing that range of protected expression cannot survive constitutional scrutiny because it is facially unconstitutional as to a substantial amount of the dissemination of lawfully obtained information. See United States v. Stevens (2010) (a law will be "invalidated as overbroad if 'a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep'")….
