BILL ANALYSIS                                                                                                                                                                                                    



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          Date of Hearing:  April 22, 2014

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                Bob Wieckowski, Chair
                   AB 2643 (Wieckowski) - As Amended: April 9, 2014

                             As Proposed to be Amended 
           
          SUBJECT  :  Privacy: Distribution of Sexually Explicit Materials 

           KEY ISSUE  :  Should a person who has had sexually explicit images  
          of himself or herself distributed, without his or her consent,  
          have a private cause of action against the person who  
          intentionally OR recklessly distributed those images?  

                                      SYNOPSIS 

          Existing law creates criminal or civil liability, or both, for  
          various kinds of conduct that intrude upon a person's reasonable  
          expectation of privacy, especially where those intrusions  
          involve inherently intimate matters.  For example, existing  
          "peeping Tom" statutes make it a crime to spy upon someone in an  
          interior private space (e.g. bedroom, bathroom, etc.), whether  
          the spying is done with the naked eye or with a camera or  
          recording device.  In addition, the civil "invasion of privacy"  
          statute creates civil liability where a person attempts to  
          capture the visual image or sound recording of a person engaged  
          in a "personal or familial activity," as defined, and in a  
          manner that would be offensive to a reasonable person.  Finally,  
          various common law torts protect against other invasions of  
          privacy.  Last year, AB 255 (Chapter 466, Stats. of 2013) made  
          it a crime for a person to photograph (or otherwise record) a  
          person's "intimate body parts" and then distribute the image or  
          recording with the intent to cause the depicted person serious  
          emotional distress (and where the two parties had an  
          understanding that the image or recording would remain private).  
           AB 255 was enacted in response to the allegedly growing problem  
          of "revenge porn," which, in the typical scenario, involves one  
          person maliciously posting sexually explicit images of another  
          person (usually a former intimate partner) without that person's  
          consent.  This bill supplements AB 255 by creating a civil cause  
          of action, including injunctive relief ordering the offending  
          material to be removed and not republished.  In addition, so as  
          not to expose the victim to even more humiliation, this bill  
          would permit a victim to file an action using a pseudonym and to  








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          redact other identifying characteristics from the pleadings or  
          other documents filed as part of the action.  Although the  
          author's primary objective is to allow victims to obtain an  
          injunction ordering removal the offending image, the bill  
          expressly states that nothing in the bill is intended to  
          preclude any other remedies available at law, including pursuit  
          of damages under various theories of tort law.

           SUMMARY  :  Creates a private right of action against a person who  
          intentionally or recklessly distributes a sexually explicit  
          photograph or other image or recording of another person,  
          without the consent of that person, as specified.  Specifically,  
           this bill  :  


          1)Provides that a private cause of action lies against a person  
            who intentionally or recklessly distributes by any means a  
            photograph, film, videotape, recording, or any other  
            reproduction of another without his or her consent, if the  
            distributed material exposes an intimate body part of the  
            other person, or shows the other person engaging in an act of  
            sexual intercourse, oral copulation, sodomy, or other act of  
            sexual penetration.  Defines "intimate body part" to mean any  
            portion of the genitals, and, in the case of a female, also  
            includes any portion of the breast below the top of the  
            areola, that is uncovered or visible through less than fully  
            opaque clothing. 


          2)Provides that a person distributing material of the sort and  
            in the manner described above shall not be liable under any of  
            the following circumstances:


             a)   The distributed material was created under an agreement  
               by the person appearing in the material for its public use  
               and distribution or otherwise intended by that person for  
               public use or distribution.


             b)   The person possessing or viewing the distributed  
               material has permission from the person appearing in the  
               material to publish or post the material.










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             c)   The person appearing in the material waived any  
               expectation of privacy in the distributed material by  
               making it accessible to the general public. 


             d)   The distributed material constitutes a matter of public  
               concern. 


             e)   The distributed material was photographed, filmed,  
               videotaped, recorded, or otherwise reproduced in a public  
               place and under circumstances in which the person depicted  
               had no reasonable expectation of privacy. 


          3)Permits the court, in addition to any other relief, to order  
            equitable relief against the person violating the provisions  
            of this bill, including a temporary restraining order or a  
            preliminary or permanent injunction ordering the defendant to  
            remove the distributed material.  Permits the court to grant  
            injunctive relief substituting a pseudonym for the true name  
            of the plaintiff, and permits the court, after holding a  
            properly noticed hearing, to grant reasonable attorney's fees  
            and costs to the prevailing party. 


          4)Permits a plaintiff to proceed using a pseudonym for his or  
            her true name and to exclude or redact from all pleadings and  
            documents other identifying characteristics of the plaintiff.   
            A plaintiff who proceeds using a pseudonym and excluding or  
            redacting identifying characteristics shall file a  
            confidential information form for this purpose that includes  
            the plaintiff's name and other identifying characteristics  
            that have been excluded or redacted.  The court shall keep the  
            plaintiff's name and excluded or redacted characteristics  
            confidential.  Specifies that the identifying characteristics  
            in the information form must be kept confidential, except to  
            defense counsel as part of discovery.


          5)Defines "identifying characteristics" to include, but not  
            limited to, name or any part thereof, address or any part  
            thereof, city or unincorporated area of residence, age,  
            marital status, relationship to defendant, and race or ethnic  
            background. 








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           EXISTING LAW  :

          1)Makes it a misdemeanor for a person to photograph or record by  
            any means the image of the intimate body part or parts of  
            another identifiable person, under circumstances where the  
            parties agree or understand that the image shall remain  
            private, and the person subsequently distributes the image  
            taken, with the intent to cause serious emotional distress,  
            and the depicted person suffers serious emotional distress.   
            Defines "intimate body part or parts" to mean  any portion of  
            the genitals, and in the case of a female, also includes any  
            portion of the breasts below the top of the areola, that is  
            either uncovered or visible through less than fully opaque  
            clothing.  (Penal Code Section 647(j)(4).)

          2)Makes it a misdemeanor for a person to look through a hole or  
            opening, into, or otherwise view, by means of any  
            instrumentality, including, but not limited to, a periscope,  
            telescope, binoculars, camera, motion picture camera,  
            camcorder, or mobile phone, the interior of a bedroom,  
            bathroom, changing room, fitting room, dressing room, or  
            tanning booth, or the interior of any other area in which the  
            occupant has a reasonable expectation of privacy, with the  
            intent to invade the privacy of a person or persons inside.   
            (Penal Code Section 647 (j)(1).)

          3)Makes it a misdemeanor for a person to use a concealed  
            camcorder, motion picture camera, or photographic camera of  
            any type, to secretly videotape, film, photograph, or record  
            by electronic means, another, identifiable person under or  
            through the clothing being worn by that other person, for the  
            purpose of viewing the body of, or the undergarments worn by,  
            that other person, without the consent or knowledge of that  
            other person, with the intent to arouse, appeal to, or gratify  
            the lust, passions, or sexual desires of that person and  
            invade the privacy of that other person, under circumstances  
            in which the other person has a reasonable expectation of  
            privacy.  (Penal Code Section 647 (j)(2).)

          4)Makes it a misdemeanor for a person to use a concealed  
            camcorder, motion picture camera, or photographic camera of  
            any type, to secretly videotape, film, photograph, or record  
            by electronic means, another, identifiable person who may be  
            in a state of full or partial undress, for the purpose of  








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            viewing the body of, or the undergarments worn by, that other  
            person, without the consent or knowledge of that other person,  
            in the interior of a bedroom, bathroom, changing room, fitting  
            room, dressing room, or tanning booth, or the interior of any  
            other area in which that other person has a reasonable  
            expectation of privacy, with the intent to invade the privacy  
            of that other person.  (Penal Code Section 647 (j)(3).) 

          5)Makes a person liable for  physical  invasion of privacy if that  
            person (defendant) knowingly enters onto the land of another  
            person (plaintiff) without permission or otherwise commits a  
            trespass in order to physically invade the privacy of the  
            plaintiff with the intent to capture any type of visual image,  
            sound recording, or other physical impression of the plaintiff  
            engaging in a personal or familial activity and the physical  
            invasion occurs in a manner that is offensive to a reasonable  
            person.  (Civil Code Section 1708.8 (a).)


          6)Makes a person liable for  constructive  invasion of privacy  
            when that person (defendant) attempts to capture, in a manner  
            that is offensive to a reasonable person, any type of visual  
            image, sound recording, or other physical impression of  
            another person (plaintiff) engaging in a personal or familial  
            activity under circumstances in which the plaintiff had a  
            reasonable expectation of privacy, through the use of a visual  
            or auditory enhancing device, regardless of whether there is a  
            physical trespass, if this image, sound recording, or other  
            physical impression could not have been achieved without a  
            trespass unless the visual or auditory enhancing device was  
            used.  (Civil Code Section 1708.8 (b).) 


          7)Allows a party to file an action anonymously or to keep names  
            out of public records and court proceedings under certain  
            circumstances.  [See e.g. Civil Code Section 3427.3 (health  
            care patients and staff); Health & Safety Code Section 120291  
            (victim of intentional HIV infection); Penal Code Sections 293  
            and 293.5 (victims of sexual offenses).] 

           FISCAL EFFECT  :  As currently in print this bill is keyed fiscal.  


           COMMENTS  :  According to the author, as the Internet becomes a  
          more pervasive part of our lives, it has also become a source  








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          for novel forms of harassment and emotional cruelty when  
          intimate material that was intended to remain private is posted  
          online for all to see.  This serious problem - referred to as  
          "revenge porn" in media and other accounts - can damage careers  
          and cause severe humiliation and emotional distress.  The author  
          hopes that this bill will address "the growing problem of  
          non-consensual distribution of intimate imagery by creating a  
          strong, clear and focused civil remedy for victims."  

          Specifically, this bill would permit the person whose image is  
          intentionally or recklessly posted by another person to bring an  
          action against that other person for equitable relief, in  
          addition to any other relief to which the plaintiff might be  
          entitled.  The provisions of this bill would apply only where  
          the distributed image depicted the victim's "intimate body part  
          or parts," as defined, or showed the victim engaged in sexual  
          intercourse, oral copulation, sodomy, or other act of sexual  
          penetration.  The bill incorporates a number of important  
          defenses, specifying that there is no liability under the bill  
          if (1) the plaintiff agreed that the material was intended for  
          public use; (2) the defendant had permission to publish or post  
          the material; (3) the plaintiff waived any expectation of  
          privacy by making it accessible to the general public; (4) the  
          material constitutes a matter of public concern; or (5) the  
          material was obtained in a public place and under circumstances  
          in which the plaintiff had no reasonable expectation of privacy.  


          The bill would authorize the court to order equitable relief,  
          including a temporary restraining order, or a preliminary  
          injunction or a permanent injunction ordering the defendant to  
          remove the material.  In addition, the court may, after holding  
          a properly noticed hearing, award reasonable attorney's fees and  
          costs to the prevailing party.  Finally, in order to protect the  
          victim from further unwanted disclosure of these private images,  
          the bill allows a plaintiff to file the action with a pseudonym  
          (e.g. Jane or John Doe) and to redact certain identifying  
          characteristics from the pleadings.  Such redacted information  
          would, of course, be subject to civil discovery by the  
          defendant.  The bill gives responsibility for redacting a name  
          or other identifying characteristic to the plaintiff, and  
          requires that, where the plaintiff exercises this option, the  
          complaint must contain a conspicuous caption to that effect. 

           Bill Does Not Modify Existing Rights, Immunities, or Remedies  :   








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          Finally, this bill makes it clear that none of its provisions  
          shall be construed to affect existing rights and remedies.  For  
          example, to the extent (and only to the extent) that a website  
          or social networking service has immunity from liability for the  
          postings of third parties under federal law, the website or  
          service will continue to have that immunity.  In addition, this  
          bill will not diminish any other remedies that a plaintiff may  
          have under existing law.  As discussed below, under appropriate  
          circumstances, a victim of revenge porn can potentially bring a  
          cause of action based on various theories of tort (such as  
          public disclosure of private facts or intentional infliction of  
          emotional distress).  This bill is intended to supplement, not  
          displace, those other civil remedies. 

           Background  :  According to University of Maryland Professor  
          Danielle Keats Citron, 90% or more of the victims of "revenge  
          porn" are women.  According to Citron's study, one-in-ten former  
          intimate partners have threatened to expose potentially  
          embarrassing images of their ex-partner online.  Of those, 60%  
          follow through with the threat.  The study found that 59% of  
          revenge porn posts include the victim's full name, 26% include  
          an email address, 20% include a phone number, 16% include a  
          physical home address, and 14% include the victim's work  
          address.  Perhaps most troubling, 49% of victims say they have  
          been harassed or stalked by people who saw the revenge porn  
          post.  As the Committee consultant discovered to his dismay, if  
          one searches for information on "revenge porn" online, one must  
          scroll down through several disturbing websites that,  
          apparently, have been created for no other purpose than to post  
          explicit photos of persons with whom one has a grudge.  It is  
          difficult to know the true incidence of the problem; an attorney  
          who successfully represented a female victim in a tort claim  
          informed the Committee victims are often reluctant to take  
          action, fearing that making public charges will risk even  
          greater humiliation by drawing more attention to the posting.   

           AB 255 and Criminal Penalties for Revenge Porn  :  By creating a  
          civil action for equitable relief, this bill seeks to supplement  
          legislation enacted last year, AB 255 (Chapter 466, Stats. of  
          2013), which followed the lead of a handful of other states in  
          making "revenge porn" a crime.  Specifically, AB 255 made it a  
          misdemeanor for a person to photograph (or otherwise record) and  
          distribute an image of another person's "intimate body part or  
          parts" under the following circumstances:  (1) the parties  
          agreed or understood that the image would remain private; (2)  








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          the defendant distributed the image with the intent to cause  
          serious emotional distress to the person depicted; and (3) the  
          depicted person in fact suffers serious emotional distress.  AB  
          255 defined "intimate body part of parts" to mean any portion of  
          the genitals, and in the case of a female, any portion of the  
          breasts below the top of the areola.  

          Because it creates a crime under the Penal Code, AB 255 sets a  
          much higher bar for establishing criminal liability than this  
          bill sets for establishing civil liability.  For example, unlike  
          AB 255, this bill does not require proof that the defendant  
          intended to cause the plaintiff serious emotional distress, and  
          it does not require proof that the victim in fact suffered  
          serious emotional distress.  Also, unlike AB 255, this bill does  
          not require that the victim and the defendant agreed or  
          understood that the material would remain private.   
          Traditionally, criminal statutes, because they might lead to  
          incarceration and loss of liberty, require a higher burden of  
          proof and, usually, a showing of a particular intent or frame of  
          mind on the part of the defendant.  Under this bill, however, no  
          criminal penalty is imposed; relief will most likely consist of  
          an injunction ordering the defendant to remove and cease  
          publishing the offending material.  An injunction is a far less  
          punitive remedy and, arguably, should not require the same  
          standard as a criminal prosecution.  Indeed, timely injunctive  
          relief may forestall the need for a more costly criminal  
          prosecution and, if obtained in time, prevent the development of  
          serious emotional distress.  It seems inappropriate, if not a  
          bit irrational, to require a showing of serious emotional  
          distress before ordering the removal of the image if removal  
          will prevent the emotional distress from becoming "serious." 
           
          Potential Civil Remedies under Existing Law  :  Under existing  
          theories of tort, it is possible for a victim of "revenge porn"  
          to obtain relief, including compensatory and punitive damages,  
          as was revealed in a case decided by the Superior Court of Santa  
          Clara County.  In what may have been "the first civil verdict  
          for revenge porn," according to the legal newspaper, The  
          Recorder, a San Jose jury awarded $250,000 to a woman's whose  
          intimate photos were posted, without her consent, on a Facebook  
          profile created in her name.  Apparently, the woman's  
          ex-boyfriend had somehow obtained the photographs and shared  
          them with his new partner, who posted them on a fake Facebook  
          account in the plaintiff's name and then sent "friend requests"  
          to the plaintiff's friends, family, and colleagues.  (The  








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          Recorder, January 24, 2014.)  The plaintiff alleged a number of  
          civil causes of action, including invasion of privacy (intrusion  
          into private affairs), invasion of privacy (public disclosure of  
          private facts), intentional infliction of emotional distress,  
          negligence, negligent infliction of emotional distress, as well  
          as criminal impersonation under Penal Code Section 528.5.   
          ("Plaintiff's Trial Brief," Liamsithisack v. Bruce, et. al Case  
          No. 112CV233490.)  

          The jury found for the plaintiff on the civil actions for  
          negligence and the two privacy claims of intrusion into private  
          affairs and public disclosure of private facts.  The jury  
          rejected the claims of intentional infliction of emotional  
          distress, negligent infliction of emotional distress, and the  
          criminal claim for impersonation.  On the claim for the  
          intentional infliction of emotional distress, the jury agreed  
          with two of three critical elements:  (1) the defendant's  
          conduct was "outrageous" and (2) the defendant intended to cause  
          emotional distress, but (3) the jury did not find that the  
          plaintiff's emotional distress rose to required level of  
          "severe."  ("Verdict Forms," Liamsithisack, supra.)  In the end,  
          the plaintiff won a judgment of $100,000 in compensatory damages  
          against the ex-boyfriend who shared the images with his new  
          girlfriend, and $150,000 (which included $60,000 in punitive  
          damages) against the new girlfriend who created the fake  
          Facebook profile, posted the images, and sent fake friend  
          requests to the plaintiff's friends, family, and colleagues.   
          ("Judgment," Liamsithisack, supra.) 

          The Liamsithisack case is highly instructive as to the  
          potential, and limitations, of existing tort remedies for  
          revenge porn.  Invasion of privacy torts - especially intrusion  
          and public disclosure of private facts - seem to offer the  
          lowest hurdle.  "Intrusion" requires that a plaintiff has a  
          reasonable expectation of privacy, that the defendant intended  
          to intrude upon the plaintiff's privacy, and that the intrusion  
          would be highly offensive to a reasonable person; but it does  
          not require that the defendant intended to cause severe  
          emotional distress and that the plaintiff in fact suffered  
          severe emotional distress. (See "Verdict Forms, supra.)   
          Similarly, "public disclosure of private facts" does not require  
          a showing that "severe" emotional distress was both intended and  
          resulted.  Instead, "private disclosure of public facts"  
          requires that (1) the defendant publicized the private  
          information; (2) a reasonable person would consider the  
 







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          publicity highly offensive; (3) the defendant acted with  
          reckless disregard of the fact that a reasonable person would  
          find the publicity highly offensive; (4) the private information  
          was not of a public concern; and (5) the defendant's conduct was  
          a substantial factor in causing harm to the plaintiff.  (Id.)   
          Where these elements are met, existing law provides a civil  
          remedy for damages, including punitive damages.

          However, Liamsithisack also shows the limitations of existing  
          civil remedies and, arguably ,why this bill might provide a more  
          reasonable and realistic alternative to victims.  Where a  
          plaintiff seeks damages, including punitive damages, it might be  
          reasonable to require a showing that the defendant intended to  
          act either recklessly or with a particular intent, that a  
          reasonable person would find the conduct highly offensive, and  
          that the plaintiff suffered some degree of harm or distress,  
          depending on the particular tort.  However, where the victim  
          only seeks to remove the offending image - where the defendant  
          posted intentionally or recklessly and the plaintiff had a  
          reasonable expectation of privacy - the author believes that it  
          is unreasonable to demand the kinds of showings that would  
          justify compensatory and punitive damages. 

           PROPOSED AUTHOR AMENDMENTS  :  In order to address concerns  
          brought by the ACLU (see arguments section below) the author  
          will take the following amendments in Committee:

             -    On page 3, line 5 insert:

           (5) The distributed material was photographed, filmed,  
          videotaped, recorded, or otherwise reproduced in a public place  
          and under circumstances in which the person depicted had no  
          reasonable expectation of privacy.

              -    On page 2, line 8, delete "penetration or other sexual  
               act" and insert:   
             
             intercourse, oral copulation, sodomy, or other act of sexual  
            penetration
           
           ARGUMENTS IN SUPPORT  :  According to the author, "distribution of  
          intimate imagery has become an increasingly common problem.  It  
          often involves former intimate partners distributing, forwarding  
          or publishing pictures and videos of their former intimate  
          partner naked or engaged in sexual acts publicly online."  This  








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          is typically, the author asserts, "an act of revenge for ending  
          a relationship.  Oftentimes, these pictures or videos are posted  
          along with the victim's phone number, name, and links to the  
          victim's social media accounts.  The emotional and reputational  
          harm caused by these postings can be devastating.  It causes a  
          great emotional toll as friends, family, coworkers and future  
          employers suddenly have access to intimate and humiliating  
          information.  This form of abuse may also increase the  
          likelihood of a physical attack on the victim."  The author  
          believes that this bill will help to address the problem by  
          "creating a strong, clear and focused civil remedy for victims."  
           Specifically, the author writes, this bill "provides for  
          equitable relief in the form of a temporary restraining order, a  
          preliminary injunction, or a permanent injunction ordering the  
          defendant to stop distributing the material.  This serves the  
          goal of providing victims with an option for getting the images  
          out of the public eye as quickly as possible - the primary goal  
          of the majority of victims.  The bill creates a clear pathway  
          for women and men seeking justice in the courts when a former  
          intimate partner seeks to betray their trust and cause serious  
          harm and embarrassment by distributing intimate images." 

          The California Partnership to End Domestic Violence  
          (Partnership) supports this bill because it "will create a  
          private right of action for victims of harm, defamation, and  
          embarrassment that results from wrongful sharing of intimate  
          material, often referred to as 'revenge porn.'"  The Partnership  
          claims that many of these images are most likely obtained in the  
          course of a romantic relationship and, whether obtained  
          consensually or not, were meant to be kept private.  It is  
          typically only after relationship ends, and one partner seeks to  
          exact revenge or exert power over the other, that the  
          once-private images are made public without the consent of the  
          person depicted in the image.  But "no matter the origin," the  
          Partnership claims, "victims of revenge porn face embarrassment  
          that seemingly has no end and has led to dire consequences, such  
          as alienation, loss of employment, and even suicide."  

          For substantially the same reasons as those articulated above,  
          this bill is also supported by California Attorney General's  
          Office, the California Police Chiefs Association, the Consumer  
          Attorneys of California, the Cyber Civil Rights Initiative, and  
          Women's Caucus of the McGeorge School of Law. 

           ARGUMENTS IN OPPOSITION UNLESS AMENDED (prior to amendments  








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          taken today  ):  The ACLU opposes this bill unless amended to  
          narrow its application to circumstances under which the victim  
          has a reasonable expectation of privacy and to address potential  
          free speech implications.  Specifically, the ACLU raises two  
          concerns.  First, ACLU contends that the bill "is drafted so  
          broadly that it could prohibit distribution of nude images where  
          there may be no expectation of privacy - a nude beach - and  
          without a showing of any harm."  Second, ACLU points out that  
          "sexual act" is not defined and thus potentially too broad or  
          too vague. 

           Proposed Amendments Appear to Address Most of ACLU's Concerns  :   
          The ACLU opposition letter is based on the bill in print, not  
          the bill as proposed to be amended today in Committee (and  
          listed above.)  The first amendment providing that there is no  
          liability where the distributed material was captured in a  
          public place and where the victim has no reasonable expectation  
          of privacy, appears to largely address the ACLU's first concern.  
           The second amendment, replacing "sexual act" with the more  
          specific "sexual intercourse, oral copulation, sodomy, or other  
          act of sexual penetration," appears to address the second  
          concern.  The ACLU letter also suggests that there should be  
          some "showing of harm" in order to establish liability, which  
          the bill does not require - and the rationale for which is  
          discussed in the analysis.  However, communications between the  
          Committee staff, the ACLU, and the author's office indicate a  
          clear and amicable willingness on the part of all parties to  
          continue discussions on ways to ensure that the bill  
          appropriately respects First Amendment rights. 
           
          REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Attorney General Kamala Harris
          California Employment Lawyers Association
          California Partnership to End Domestic Violence
          California Police Chiefs Association
          Consumer Attorneys of California
          Cyber Civil Rights Initiative
          Democratic Activists for Women Now
          McGeorge Women's Caucus
          Peace Officers Research Association of California
          Women Escaping a Violent Environment (WEAVE)
          Two individuals








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           Opposition 
           
          American Civil Liberties Union (unless amended) 
          
          Analysis Prepared by  :   Thomas Clark / JUD. / (916) 319-2334