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U.S. News & World Report v. Chiu

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  1. First Amendment

Court: U.S. District Court for the Northern District of California

Date Filed: March 20, 2024

Background: In June 2023, San Francisco City Attorney David Chiu announced an investigation into hospital rankings published annually by U.S. News & World Report under California’s “Unfair Competition Law,” which prohibits, among other things, misleading or deceptive commercial advertising. As part of the investigation, the city attorney issued subpoenas to the news organization seeking information about the methodology for its rankings, citing concerns about perceived “bias.”

U.S. News sued Chiu in federal court, on the grounds that the city attorney’s investigation violated the news outlet’s First Amendment rights. U.S. News also asked the U.S. District Court for the Northern District of California for a preliminary injunction to block the subpoenas.

In response, Chiu asked the court to deny the news outlet’s preliminary injunction motion and to dismiss the lawsuit. The city attorney also filed a motion to strike pursuant to California’s anti-SLAPP statute, alleging that U.S. News’ lawsuit is a strategic lawsuit against public participation, or SLAPP, intended to silence the city attorney’s protected speech activity — namely, issuing subpoenas to U.S. News.

Our Position: The district court should grant U.S. News’s motion for a preliminary injunction and deny the city attorney’s motion to dismiss and/or to strike.

  • The city attorney’s subpoenas target non-commercial speech entitled to full First Amendment protection.
  • The city attorney cannot target a news outlet with subpoenas because he disagrees with its editorial viewpoint.
  • U.S. News’ First Amendment challenge is ripe, even if the city attorney has not yet gone to court to enforce the subpoenas. Courts have recognized that government threats — even absent direct government authority to take some action — can violate the First Amendment.
  • California’s anti-SLAPP law is not a sword to be wielded by government officials to defend subpoenas to news organizations, and the city attorney’s attempt to invoke the speech-protective law against U.S. News is improper.

Quote: “Repackaging a difference of opinion between a government official and news outlet over editorial choices as a violation of consumer protection laws carries the acute risk that states will use such laws to sway public discourse in its favor — and undercut the independence the First Amendment was enacted to protect.”

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