(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury case and its proceedings.)
In its next First Amendment pronouncement, in Keenan v. Superior Court (2002) 27 Cal 4th 413, 117 Cal.Rptr. 2d 1, our Supreme Court held facially unconstitutional the “Son of Sam” law, Civil Code Section 2225(b)(l), concluding that these provisions of the California statute are facially invalid under both the free speech clause of the First Amendment in the Federal Constitution, as applied to the states through the 14th Amendment and the Liberty of Speech clause, of the California Constitution, Article I, Section 2, Subdivision(a).
Just about one year ago, the U.S. Supreme Court, in Tory v. Cochran (2005) 542 U.S. 965, struck down an injunction issued by a judge of this court (and upheld by the Court of Appeal), prohibiting petitioners from picketing, displaying signs, placards or other written or printed material, and from orally uttering statements about one Johnnie L. Cochran, Jr. and about Cochran’s law firm in any public forum .
In so holding, the Supreme Court found that the injunction …. amounts to an overly broad prior restraint upon speech, lacking plausible justification, and that “Prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” (Tory. supra) (Emphasis added.) (Citations omitted. )
Then, just two months ago, in ARP Pharmacy Services, Inc. v. Gallagher Bassett Services, Inc. (2006) 135 Cal.App.4th 841, Justice Epstein, for Div. 4 of our 2nd District, affirmed a courageous (conservative Republican) judge, (Stephen Peterson, who sits in Van Nuys) who held unconstitutional, strictly on 1st Amendment grounds, Civil Code. Section 2527, a statute compelling speech, with severe consequences for its violation.
Lastly, Burkle v. Burkle (2006) 135 Cal. App. 4th 1045, is a case of the classic young man in a hurry who made good [very, very good] and now wishes to shed his wife.
As Burkle v. Burkle, supra, involves court records, as does C.C.P. § 425.10 and 425.13, it is impossible to consider a scenario closer to the facts of Burkle than we have at bar.
Note please, at p. 1052 of Burkle, supra, Mr. Justice Boland, for himself, and presiding Justice Cooper and Justice Rubin wrote as follows:
No meaningful distinction may be drawn between the right of access to courtroom proceeding and the right of access to court records …. Mr. Burkle does not inform us …. nor does he cite any persuasive authority distinguishing the closure of court proceedings from the closure of court records for First Amendment purposes. The precedents suggest no such distinction.
Herein, the court should forthrightly declare C.C.P, § 425.13(a), as well as C.C.P, § 425.10 invalid, and void, as violative of the First Amendment.
Based upon the foregoing, Plaintiffs respectfully request that the court overrule the demurrer of defendants David X., M.D. and Doctors Medical Group, deny their Motion to Strike, and direct them to Answer Plaintiffs Complaint, forthwith.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.