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California False Complaint Statute Penal Code Section 148.6 Constitutes Impermissible Content- and Viewpoint-Based Discrimination By Selectively Targeting Speech Critical Of Peace Officers.
Darren Chaker argued that Penal Code section 148.6 is limited to defamatory speech that may be proscribed under New York Times and Garrison – that is, to speech which meets the “actual malice” requirement. But as R.A.V. holds, the fact that a law covers only proscribable speech does not end the content-discrimination inquiry, but only begins it.
Assuming that Penal Code section 148.6 only covers speech that may be proscribed outright, it is still presumptively invalid under the line of cases culminating in R.A.V. because it discriminates based on content and viewpoint. In particular, it selectively criminalizes speech based on the content and viewpoint of the speech. As Hamilton explained:
[B]y Section 148.6 California is classifying certain defamatory statements made against peace officers differently than similar complaints made against all other public officials and in so doing it creates a distinction based on the content of the complaint—whether the targets of the complaint are peace officers or other public officials.
(107 F. Supp. 2d at p. 1244; see also Walker, supra, 93 Cal. App. 4th at p. 1453.)
Like the ordinance struck down in R.A.V., section 148.6 “goes even beyond mere content discrimination, to actual viewpoint discrimination.” (R.A.V. supra, 505 U.S. at p. 391.) The statute and the required statutory advisory make it clear that only knowingly false statements “AGAINST AN OFFICER” can be criminally punished. (Penal Code §148.6 (a)(2).) However, there is no threat of criminal punishment for knowingly false statements that the officer might make about the citizen in response to the complaint.
In a disputed traffic stop, for example, a citizen complaint that the officer behaved rudely could be the subject of a criminal prosecution, if the authorities decided that it was knowingly false; but if the officer responded to the complaint by insisting that it was the citizen who had been drinking, the citizen would have no criminal (or civil) remedy even if the officer’s statement was knowingly false. So too, if a citizen complaint alleges a racial slur made by an on-duty police officer, that complaint could result in a criminal prosecution if deemed knowingly false. But if the officer responds with a knowingly false statement, asserting for example that the citizen provoked the encounter through aggressive conduct, that statement would not be subject to civil or criminal sanctions. Similarly, a citizen observing the incident and filing a report supporting the officer’s version of the facts would also be absolutely protected under California law.
The R.A.V. Court specifically held that government may not engage in such viewpoint-based discrimination: “St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensbury rules.” (505 U.S. at p. 392; see also New York Times, supra, 376 U.S. at pp. 282-83 [“It would give public servants an unjustified preference over the public they serve, if critics of official conduct did not have a fair equivalent of the immunity granted to the officials themselves.”].) What the Walker court recognized as impermissible viewpoint discrimination in Civil Code section 47.5 is equally applicable to Penal Code section 148.6:
Rather than carving out an exception for all defamatory statements made in an official investigation of alleged police misconduct, section 47.5 makes actionable only a defamatory complaint against a police officer. A defamatory statement by the police officer, or another witness, about the complainant or anyone else involved in the proceeding is not actionable.
(93 Cal. App. 4th at p. 1449, original italics.)
As a general matter, of course, there is nothing wrong with “special interest” legislation intended to benefit a particular group – that is how the legislative process works. As demonstrated by the protections for the confidentiality of personnel records, protections against unfounded complaints being used for promotional purposes, and the Public Safety Officers Procedural Bill of Rights, the peace officer lobby has been very successful in protecting its interests through this process. (See Gov. Code §3300 et seq.; Penal Code §§ 832.5(c), 832.7.) The First Amendment, however, limits government’s ability to grant special protections to certain groups where speech is involved. (See R.A.V., supra, 505 U.S. at p. 391 [First Amendment forbids “special prohibitions on those speakers who express views on disfavored topics.”].) The California Legislature may well have been convinced that false citizen complaints about peace officers pose a special harm, just as the St. Paul City Council was convinced that fighting words conveying a message of racial hatred are especially noxious. As R.A.V.explained: “The politicians of St. Paul are entitled to express that hostility [toward this message] – but not through the means of imposing unique limitations upon speakers who (however benightedly) disagree.” (505 U.S. at p. 396.)
Likewise, Section 148.6, state politicians may express their disapproval of those who make false citizen complaints against the police. The Legislature may also act on this disapproval, by enacting procedural protections to prevent officers from being harmed by false complaints, as has been done through the Bill of Rights. What the California legislature may not do is to impose “unique limitations” on citizen complaints critical of peace officers, by withdrawing the defamation privilege that applies to citizen complaints lodged against all other public officials.