Two Local Lawsuits Raise First Amendment Questions

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Two First Amendment cases tied to Petaluma made headlines last week. Photo by Tingey Injury Law Firm/Unsplash

Two lawsuits that made local news last week feature questions about freedom of speech in Petaluma.

A resident is suing the city for free speech violations one month after he was kicked off a city committee tasked with discussing race relations and policing. And a local company won the right to advertise its plant-based products with words historically reserved for traditional dairy. 

City Committee

On Thursday, Aug. 12, an attorney representing Stefan Perez filed a lawsuit alleging that the City of Petaluma violated Perez’s freedom of speech when the city council voted last month to remove him from a 28-member advisory committee formed earlier this year.

In March, the Petaluma City Council appointed Perez to the Ad Hoc Community Advisory Committee (AHCAC), a group formed to offer the city advice on race relations and police reforms.

In the months before the council voted on July 12 to remove him from the AHCAC, Perez’s past social media posts came under scrutiny. While many committee members and Petalumans consider the posts racist, Perez and his attorneys insist they were meant as jokes.

The July 12 resolution used to remove Perez from the AHCAC relied on the city council’s inherent power to remove or replace members of it with or without cause. A 7-page staff report explaining the resolution does not mention Perez’s social media posts and does not cite a specific reason for Perez’s removal.

The lawsuit alleges that the council’s action was “motivated at least in part by Stefan Perez’s participation in the protected activity of making social media posts.”

Perez’s attorney, D. Gill Sperlein, separately asked Northern District Court Judge Jon Tigar to enact a temporary restraining order forcing the city to halt two upcoming AHCAC meetings unless Perez is able to participate as a member of the committee. In an Aug. 13 response, Tigar denied the request, allowing the city to hold an Aug. 17 meeting without re-appointing Perez.

In his response, Tigar noted that Sperlein’s legal filings do not explain why Perez waited to file for an emergency temporary restraining order against the city days before the AHCAC’s Aug. 17 meeting instead of when the city council removed him from the committee a week before the committee’s July 20 meeting.

“Plaintiff’s unexplained delay in seeking relief undermines his claim that he will suffer irreparable harm in the absence of a [temporary restraining order] TRO,” Tigar wrote in part.

Perez’s social media posts first received broad public attention in May after Chad Loder, a Twitter user with over 100,000 followers, shared some of Perez’s past posts online.

Initially, the city seemed to want to discourage discussion of the issue.

On June 9 the mayor and two city council members signed a letter urging committee members to refrain from “participating in disparaging behaviors on social media and elsewhere.” Although the statement does not name Perez, it came as discussion about his past social media posts raged online.

The statement also says that “the First Amendment prohibits the City from regulating Committee members’ speech, or participation in the AHCAC based on protected speech.”

However, according to a timeline laid out in Perez’s lawsuit, city officials soon started to ask Perez to resign from the committee.

Hours before a June 15 AHCAC meeting, three city employees requested that Perez step down from the committee. Perez agreed to skip the June 15 meeting but did not resign. 

In a July 1 phone call, city attorney Eric Danly again asked Perez to resign, this time allegedly stating that the city council would vote to remove him if he did not leave on his own accord by 5pm on July 7. 

At the July 12 meeting, the city council voted 5–1 to remove Perez.

During the meeting, Councilmember Mike Healy, the lone dissenting vote, condemned the resolution as a violation of Perez’s First Amendment rights. City attorney Danly and other members of the council defended the action’s legality during a public discussion of the item.

At an Aug. 2 meeting, the city council privately discussed a letter from Sperlein, Perez’s attorney, threatening legal action unless they reinstated Perez to the committee. The council did not act and Sperlein filed the lawsuit on Aug. 12.

The city’s response to Perez’s allegations remains unclear as of press time on Tuesday, Aug. 17. Tigar ordered the city to respond to Perez’s request for a restraining order by Wednesday, Aug. 18.

NOTE: The city’s Aug. 18 responses to Perez’s request for a temporary restraining order are available here and here. Perez’s original complaint and request for an emergency order are available here and here. Judge Tigar’s response is available here.

Freedom to Label

On Aug. 11, the Animal Legal Defense Fund announced a court success on behalf of companies selling plant-based dairy alternatives.

In early 2020, Petaluma-based Miyoko’s Creamery received an enforcement letter from the California Department of Food and Agriculture (CDFA) telling the company not to label its products using terms such as “cheese” and “dairy” even if they used qualifiers that noted the food was plant-based. The CDFA alleged that the company’s labeling practices violated Food and Drug Administration (FDA) rules.

In response, the company filed a lawsuit alleging that the order was a violation of the First Amendment. The court granted the company temporary permission to use the terms last year and, on Aug. 11, ruled in favor of Miyoko’s indefinitely.

Miyoko’s founder Miyoko Schinner and her supporters seem to view the victory as part of a larger fight, as the market for dairy alternatives continues to grow.

“Food is ever-evolving, and so, too, should language to reflect how people actually use speech to describe the foods they eat. We are extremely pleased by this ruling and believe that it will help set a precedent for the future of food,” Schinner said in a press release last week.

Indeed, consumption of plant-based dairy products has grown quickly in recent years, but still makes up a fairly small portion of total consumption.
“Fifteen percent of fluid milk sales in retail are now plant-based, plant-based butter is at 7 percent, and plant-based coffee creamer 6 percent,” Vox reported this April.