Opinion
CIV. S-07-2517 KJM GGH PS.
August 30, 2011
FINDINGS AND RECOMMENDATIONS
Plaintiff is recently proceeding in this action pro se, last counsel having withdrawn on April 11, 2011. This proceeding was referred to this court by Local Rule 302(21), pursuant to 28 U.S.C. § 636(b)(1). Previously pending on this court's law and motion calendar for August 11, 2011, was defendant's motion for reconsideration, filed July 8, 2011. Andrew Stroud and Stephen Lau appeared for defendant. Plaintiff appeared in pro se. Having heard oral argument and reviewed the papers, the court now issues the following findings and recommendations.
BACKGROUND
Plaintiff initiated this action on November 21, 2007, concerning a press release issued by defendant on May 17, 2006, in which plaintiff's name was used. The two page publication, entitled "Cingular Wireless Announces Enhanced Emergency Preparedness Program for 2006 Hurricane Season," states in part:
Although the press release mentions Cingular Wireless, the parties stipulated that AT T Mobility is the entity responsible for publication of the press release. (Dkt. # 12.)
`Nearly 60 years ago, the legendary test pilot Chuck Yeager broke the sound barrier and achieved Mach 1. Today, Cingular is breaking another kind of barrier with our MACH 1 and MACH 2 mobile command centers, which will enable us to respond rapidly to hurricanes and minimize their impact on our customers,' [Chief Operating Officer] de la Vega said.
(Compl., Ex. 1.) This mention of plaintiff is the sum total of references to his name or likeness in this press release.
On December 7, 2009, District Judge Damrell denied defendant's motion for summary judgment. Because of an interlocutory appeal from that order and a stay of the action as a result, as well as various substitutions and withdrawals of plaintiff's counsel, and reassignment of the case to Judge Mueller, defendant did not bring its motion for reconsideration until ordered to do so by the undersigned on June 24, 2011.
The Ninth Circuit Court of Appeals denied defendant's request for interlocutory appeal on June 14, 2010. (Dkt. # 76.)
Defendant's grounds for the motion are twofold. First, defendant argues that Judge Damrell committed clear error by relying on Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983), to find that the Press Release Release at issue was commercial speech. Second, defendant submits that two recent Supreme Court cases issued after the summary judgment order constitute an intervening change in the law warranting reconsideration and granting of defendant's summary judgment motion. Plaintiff opposes the motion, arguing that defendant has failed to show clear error or an intervening change in controlling law.
The procedural posture of this case is somewhat unusual in that it requires a magistrate judge to determine if a district judge committed clear error. It is nevertheless authorized under E.D. Local Rule 302(21) as plaintiff previously had counsel but is now proceeding in pro se.
DISCUSSION
Parties seeking reconsideration should demonstrate "new or different facts or circumstances [which] are claimed to exist or were not shown upon such prior motion, or what other grounds exist for the motion." E.D. Cal. L. R. 230(j); see United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997) (citing Thomas v. Bible, 983 F.2d 152, 154 (9th Cir.), cert. denied, 508 U.S. 951, 113 S.Ct. 2443, 124 L.Ed.2d 661 (1993)) (Reconsideration appropriate for a change in the controlling law, facts, or other circumstances, a need to correct a clear error, or a need to prevent manifest injustice).
Although motions to reconsider are directed to the sound discretion of the court, Frito-Lay of Puerto Rico, Inc. v. Canas, 92 F.R.D. 384, 390 (D.C. Puerto Rico 1981), considerations of judicial economy weigh heavily in the process. Thus Local Rule 230(j) requires that a party seeking reconsideration of a district court's order must brief the "new or different facts or circumstances [] claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion." The rule derives from the "law of the case" doctrine which provides that the decisions on legal issues made in a case "should be followed unless there is substantially different evidence . . . new controlling authority, or the prior decision was clearly erroneous and would result in injustice." Handi Investment Co. v. Mobil Oil Corp., 653 F.2d 391, 392 (9th Cir. 1981); see also Waggoner v. Dallaire, 767 F.2d 589, 593 (9th Cir. 1985), cert. denied, 475 U.S. 1064 (1986).
"After thoughts" or "shifting of ground" are not appropriate bases for reconsideration. Fay Corp. v. BAT Holdings I, Inc., 651 F.Supp. 307, 309 (W.D. Wash. 1987), aff'd, 896 F.2d 1227 (9th Cir. 1990). The standards "reflect [] district courts' concern for preserving dwindling resources and promoting judicial efficiency." Costello v. United States Government, 765 F.Supp. 1003, 1009 (C.D. Cal. 1991). "While Rule 59(e) permits a district court to reconsider and amend a previous order, the rule offers an `extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources.'" Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) ( quoting 12 James Wm. Moore et al., Moore's Federal Practice § 59.30[4] (3d ed. 2000)).
A. Whether the District Court's Bolger Analysis Was Clear Error
Here, defendant first claims that Judge Damrell committed clear error in relying on Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 103 S.Ct. 2875 (1983), because the Press Release is missing the combination of characteristics that leads to a finding of commercial speech. Defendant argues that this case does not present the circumstances found in Bolger in that the Press Release did not use an advertising format, was not distributed through advertising channels, and does not contain a sales pitch, or any specific products.
The undersigned has not been involved in the merits of this case until now, which might explain the lack of clarity as to why the statement at issue does not qualify as historical fact in the public domain. See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 347-48, 111 S.Ct. 1282, 1289 (1991) ("all facts-scientific, historical, biographical, and news of the day . . . "may not be copyrighted and are part of the public domain available to every person"); Downing v. Abercrombie Fitch, 265 F.3d 994, 1001 (9th Cir. 2001) (noting qualified defense in publishing statements about "people who, by their accomplishments, mode of living, professional standing or calling, create a legitimate and widespread attention to their activities"). However, such an issue is not before the court on this motion.
Defendant contends that it was not aware of the district court's intention to rely on Bolger as plaintiff did not cite to that case, and the court did not hold oral argument. Bolger was raised initially by the court in its order.
In Bolger, the Supreme Court considered and found the speech at issue, pamphlets concerning prophylactics produced and distributed by a contraceptives manufacturer, to be commercial in nature because all three of the following factors were present: (1) the party conceded the pamphlets were advertisements; (2) the pamphlets contained a reference to a specific product; (3) the party had an economic motivation for mailing the pamphlets. The Ninth Circuit Court of Appeals has interpreted the factors inBolger as follows: (1) use of an advertising format; (2) reference to a particular product; (3) existence of an economic motive. S.O.C., Inc. v. County of Clark, 152 F.3d 1136, 1144 n. 8, as amended by 160 F.3d 541 (9th Cir. 1998).
Judge Damrell relied on Bolger in analyzing the Press Release. He found that the central theme of the Press Release was how defendant's emergency preparedness program enhanced its wireless services. The court also noted that the service provider was mentioned multiple times throughout the publication. "[T]he publication did not seek to inform the reader about emergency preparedness generally, but rather how defendant's wireless service specifically had been improved to handle such emergencies." The order also referred to testimony by the writer of the publication, which revealed that its purpose was to create positive associations with the AT T brand. The court found that although none of these facts was dispositive, the publication, when looked at as a whole, was commercial speech. Order, filed December 7, 2009, at 10-11. (Dkt. # 66.)
Defendant argues that when the three Bolger factors are applied, a finding that the Press Release is not commercial speech is required. First, defendant claims that it never conceded that its Press Release was advertising because it was not distributed through advertising channels, it is a text only document containing dry, technical details, and it does not offer any product or service for sale. The Press Release was not disseminated in newspapers or on air, but was only posted on the PR Newswire and on Cingular's website. This Press Release was later published by news outlets, including Reuters, Associated Press, CNN, and local newspapers and television. Defendant argues that the fact that this release was picked up by so many mainstream news media outlets indicates that it was newsworthy and not advertising, or it would not have been disseminated by these outlets.
Defendant argues that the Press Release does not meet the second Bolger factor either in that it does not reference a particular product. It does not pitch a particular cell phone or cell phone plan for purchase. Defendant argues that without reaching the third factor, it is clear under the first two factors that the Press Release lacks the "combination of . . . characteristics" that make it commercial speech under Bolger. Because the first two prongs of the Bolger test have not been met, defendant argues that summary judgment is appropriate.
The next section addresses defendant's argument that the thirdBolger factor, economic motivation, has been effectively eliminated by two recent Supreme Court cases.
Clear error presupposes a manifest failure to consider material facts presented to the court before the decision. See Personal Communications Devices v. Platinum Cargo, 2011 WL 3319538, at *2 (citing C.D. Cal. L.R. 7-18). As plaintiff quotes, "[t]o be clearly erroneous, a decision must strike us as more than just maybe or probably wrong; it must, as one member of this court recently stated during oral argument, strike us as wrong with the force of a five-week old, unrefrigerated dead fish." Fisher v. Roe, 263 F.3d 906, 912 (9th Cir. 2001) (citation omitted), overruled on other grounds by Payton v. Woodford, 346 F.3d 1204 (9th Cir. 2002). Here, the district court properly consideredBolger although it did not specifically frame its analysis in terms of the three factors cited by defendant. The fact that defendant can make reasonable, and potentially meritorious, arguments to the contrary does not transform the decision into clear error. Therefore, the undersigned declines to find clear error in the decision. As discussed infra, the two recent Supreme Court cases cited by defendant do not affect the Bolger analysis or the court's application of it.
B. Recent Supreme Court Law
Defendant cites two Supreme Court cases decided this year, arguing that they have dramatically expanded the free speech rights of corporations since the district court's order was issued. Defendant interprets the first case, Citizens United v. FEC, ___ U.S. ___, 130 S.Ct. 876 (2010), as "proclaim[ing] that corporate speakers and individual speakers have equal standing before the First Amendment." (Def.'s Mot. at 1-2.) In actuality, the opinion discussed whether corporations could use their funds to make expenditures for political speech and found that such speech could not be suppressed on the basis of the speaker's corporate identity. The communications at issue there were electioneering communications, speech that expressly promotes the election or defeat of a candidate. Defendant quotes the court's statement:
Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints. See, e.g., United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) (striking down content-based restriction). Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others. See First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 784, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978). As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content.
Quite apart from the purpose or effect of regulating content, moreover, the Government may commit a constitutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker's voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.Citizens United, 130 S.Ct. at 898-99.
The court's rationale for this statement, however, is inconsistent with defendant's interpretation. The court stated: "it is inherent in the nature of the political process that voters must be free to obtain information from diverse sources in order to determine how to cast their votes." Id. at 899. The court's task in that case was to analyze two conflicting lines of precedent: one that forbade restrictions on political speech based on the speaker's corporate identity, and a later line of cases that permitted restrictions. Id. at 903. Citizens United did not refer to Bolger, let alone discredit it or impliedly overrule it in any way, and expectedly so, as the entirety of this decision was focused on political speech and campaign spending, and has no application here.
At most, defendant can state only that based on scholarly academic analyses, this case proposes that the content of the speech rather than the motivations of the speaker should be examined, and that given a future case, the court will do away with the commercial speech doctrine or apply a stricter scrutiny to it. Such reasoning is far too attenuated a proposition for this court to adopt.
As to the second recent Supreme Court case raised in defendant's motion, Sorrell v. IMS Health Inc., ___ U.S. ___, 131 S.Ct. 2653, (June 23, 2011), defendant argues that it went further than Citizens United by holding that even corporate speech in furtherance of a commercial enterprise is entitled to full First Amendment protection. In that case, the court struck down a Vermont statute that restricted the sale of pharmacy records which revealed the prescribing practices of individual doctors so that pharmaceutical manufacturers could not use them for marketing and sales purposes. The Supreme Court found the statute was impermissible as a content and speaker based speech restriction, and that the speech at issue was fully protected by the First Amendment, even if it is in aid of pharmaceutical marketing. Therefore, Vermont's statute was subjected to heightened judicial scrutiny. Id. at 2659. The court found that speech relating to public health and safety is just as important as political speech, if not more so. Id. at 2664.
Defendant argues that speech concerning public safety, such as during hurricanes, rises to the same importance. Defendant invokes a link between Citizens United and Sorrell, both written by Justice Kennedy, to create an inference that corporate speech equates to individual speech, and in fact notes Justice Breyer's dissent in which he recognizes this significant departure in the law concerning commercial speech. Id. at 2677. Additionally, defendant points out that the district court conceded the analysis was a close call under Bolger, Order, at 4, and if so, the two recent Supreme Court opinions change the outcome in favor of protected speech. In fact, defendant argues, Sorrell (and to a lesser extent Citizens United), overturn Bolger insofar as commercial speech no longer receives only qualified protection under the First Amendment, and there is no longer authorized speech-discrimination based on a corporation's economic interest in speaking. It is true that Sorrell did state that the statute at issue imposed a speaker and content based burden on protected speech, sufficient to justify application of heightened judicial scrutiny, (Id. at 2667); however, the Supreme Court in no way modified the Bolger test. It had the opportunity to specifically delete the third factor from the Bolger analysis and declined to do so. Furthermore, Judge Damrell did not analyze the Press Release solely in terms of the status of the speaker, a corporation, or its economic motivation. He clearly considered the other factors as set forth above.
Specifically, a reading of Sorrell indicates that it referencedBolger three times in regard to specific points without discrediting or modifying this precedent in any way, let alone overruling it. Sorrell, 131 S.Ct. at 2669, 2670, 2672. For example, the court distinguished a cited principle that "private decisionmaking can avoid government partiality and thus insulate privacy measures from First Amendment challenge" as inapposite to the Sorrell case, with a cf. reference to Bolger. Id. at 2669.
At hearing, plaintiff cited cases decided post-Sorrell which construe its effect on Bolger consistently with this court's view. In particular, Dex Media West, Inc. v. City of Seattle, ___ F.Supp.2d ___, 2011 WL 2559391 (W.D. Wash. June 28, 2011), had occasion to discuss Sorrell and apply Bolger within days after the Sorrell decision. At issue in Dex Media West was the city's ordinance which banned distribution of yellow pages type phone books unless certain conditions were met, because so many residents had complained of these unwanted deliveries to their homes. In upholding the ordinance, the court applied Bolger to find that the yellow pages were commercial speech, and then applied an intermediate scrutiny analysis under Central Hudson Gas Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557, 561, 100 S.Ct. 2343 (1980). Id. at *4, *8. The court considered all three Bolger factors as cited above, without modification. It found that the yellow pages contain many advertisements, that the directories reference specific products, and that plaintiffs had an economic motivation in delivering the directories to the doorsteps of Seattle's residents. Id. at *4. In fact, the court noted that aside from Bolger, common sense dictates that yellow page directories in general should not receive the highest level of scrutiny under the First Amendment. Id. at *5. The court did mention Sorrell, but only on one point: to distinguish the regulation there as paternalistic in permitting the government to control the access to the material. Id. at *8. Perhaps Sorrell merely reflects, as plaintiff contends, the First Amendment's hostility toward government censorship, which is not the case here. This context of Sorrel, involving the challenge to a state law implicating the First Amendment, is far different from the challenge to a Press Release made here by an individual.
Defendant proposes that this court in essence find that Bolger has been overruled, an act which it has no authority to do. As the Supreme Court has stated:
We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent. We reaffirm that "[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." Rodriguez de Quijas, supra, at 484, 109 S.Ct., at 1921-1922.Agostini v. Felton, ___ U.S. ___, 117 S.Ct. 1997, 2017 (1997).
For this court to grant defendant's motion for reconsideration would, in essence, require it to overrule Bolger which the court cannot do.
CONCLUSION
Accordingly, IT IS HEREBY RECOMMENDED that: Defendant's motion for reconsideration, filed July 8, 2011, (dkt. # 98), be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen (14) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
DATED: August 29, 2011