Gun Enthusiasts Can Use Assembly Video in Ads

SACRAMENTO (CN) — Gun-rights activists can use video footage from the California Assembly in their political advertisements against Lt. Gov. Gavin Newsom's initiative that would tighten the state's gun laws, a federal judge ruled.

U.S. District Judge Morrison England ruled Wednesday that a state law making it a crime to use Assembly videos for political or commercial purposes is unconstitutional.

The First Amendment lawsuit was filed against Attorney General Kamala Harris in late May by the Firearms Policy Coalition and two filmmakers who want to use clips from Assembly hearings in their advertisements opposing Newsom's gun-control initiative that is expected to be on the November ballot.

Newsom's "Safety for All" proposal mandates background checks for ammunition purchases and tightens California's assault weapons ban to include guns with magazines holding more than 10 rounds.

Right-wing radio talk show host Tim Donnelly, another plaintiff in the case, wants to use footage from Assembly hearings in which he participated to advertise his run for Southern California's 8th Congressional District. Donnelly, a gun owners' rights supporter, unsuccessfully sought the GOP nomination for governor in 2014.

At issue is California Government Code section 9026.5, which prohibits the use of Assembly videos for "any political or commercial purpose, including any campaign for elective public officer or any campaign supporting or opposing a ballot proposition submitted to the electors."

While news organizations can use copies of streamed and recorded Assembly video footage, those who use snippets from Assembly hearings in political advertisements could face criminal charges.

On Wednesday, England issued a preliminary injunction forbidding enforcement of the law, finding that Donnelly and the Firearms Policy Coalition are likely to prevail on their challenge of the law.

The U.S. Supreme Court previously held that the First Amendment forbids states from imposing civil sanctions for the publication of accurate information contained in public records.

"Plaintiffs here seek to publish accurate excerpts of Assembly proceedings that the California Legislature made publicly available through the Assembly's television signal. Defendant's assertion that plaintiffs have no right to use the publicly available video footage of those proceedings is contrary to the clear pronouncement of the Supreme Court," England wrote in an 11-page ruling.

The judge also rejected the state's argument that use of the video in political campaigns would ruin the integrity of the legislative process since it could potentially lead to grandstanding on the Assembly floor.

"[T]he fact that an Assembly member plays to the camera during legislative proceedings does not mean that those proceedings or their results lack integrity. One person's 'grandstanding' is another's 'passionate debate.' In other words, 'grandstanding' is simply 'speech' by another name," England said.

Furthermore, any accredited news organization can use Assembly video footage, so Assembly members could just as easily play to the cameras to attract press coverage, the judge said.

England also pointed out that the California Senate televises its proceedings, but there is no statute that prevents members of the public from using its footage for political or commercial purposes.

Harris's argument that the activists cannot suffer irreparable harm from the law's enforcement because the gun-control initiative has not yet qualified for the ballot is perplexing, England said.

"Plaintiffs have decided that their political interests are best served by opposing the initiative before it qualifies for the ballot. Defendant cannot seriously expect that this court will allow her to criminally prosecute plaintiffs simply because she disagrees with their sense of timing," the judge wrote.

Harris is also unable to support her arguments that barring enforcement of the law will result in the Assembly cutting off television access to its proceedings or Assembly members fearing to participate in robust debate, England said.

"The state will suffer comparatively little harm if the court enjoins the enforcement of section 9026.5. Conversely, plaintiffs will become criminals if they release their advertisements without the protection of a preliminary injunction," the judge said.

Brandon Combs, president of the firearms coalition, said that he is pleased with the ruling.

"This important decision means that the California Assembly can't hide from public scrutiny by suppressing political messages that use Assembly television footage," Combs said.

The Attorney General's office is reviewing the preliminary injunction, press secretary Rachele Huennekens said.

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