California governor signs bills aimed at First Amendment freedoms

On Friday, California Gov. Jerry Brown signed into law two bills which, as originally drafted and passed along party lines, represented serious threats to First Amendment liberties. Statewide protests forced legislators to amend the heavy-handed measures, but opponents still say the legislation represents unnecessary government infringement on constitutionally protected freedoms.

The first bill, SB 1146, would have prohibited the use of state student aid grants at universities that applied for exemptions from state and federal nondiscrimination laws, almost exclusively Christian schools. Students also would have been allowed to sue the institutions for discrimination based on sexual orientation or gender identity.

Legislators struck both provisions from the law before sending it to the governor’s desk. The bill Brown signed requires schools applying for exemptions from the state’s Higher Education Act and Title IX to post that information on campus and include it in communications with prospective and current students, faculty, and staff. Schools must also report those exemptions to the California Student Aid Commission, which will post a list of religious, exemption-seeking schools on its website.

The bill’s sponsor, Sen. Ricardo Lara, a Democrat, promised to reintroduce a version of the original legislation next year. Lara, who is gay, accuses Christian universities of systemic discrimination against LGBT students, using as his only evidence a report issued by a pro-LGBT organization.

The other bill watched by religious liberty advocates, AB 1671, faces potential legal challenges now that Brown has signed it into law. Planned Parenthood drafted the legislation in response to undercover videos made by pro-life group Center for Medical Progress at several of its facilities. But AB 1671 caught media outlets in its net of possible offenders, forcing them into an unusual coalition with pro-life groups opposing the bill.

As originally written, the law criminalized the distribution of illegally recorded conversations with healthcare workers by any outlet, including news media. The final version does not include that provision, or another that would have left media outlets open to civil lawsuits. Based on those changes, media and civil libertarians removed their opposition but still insist the law is fraught with problems.

Existing California law makes it illegal to secretly record a private conversation without the consent of everyone involved. AB 1671 criminalizes the distribution of a conversation by the person who recorded it, but only if the conversation includes healthcare providers. No other California industry gets the same protection—an inconsistency that opens the door for the potential legal challenge.

The California Newspaper Publishers Association (CNPA) said the law represents “content-based regulation that is subject to strict scrutiny by the courts, meaning it must be narrowly tailored to serve a compelling government interest. … The proposed law is much broader and captures significantly more speech than that related to reproductive rights and providers.”

Even the Los Angeles Times editorial board, which supports abortion on demand, blasted the bill in an Aug. 31 editorial: “But make no mistake, this measure would heap more criminal and civil penalties on making a secret recording—an act that’s already prohibited by state law, even when done in the public interest—simply to satisfy an interest group popular among Sacramento Democrats.”