Content-Based Limits on “Unprotected” Speech Face Heightened Scrutiny When They Chill Protected Complaints: California Supreme Court Invalidates Penal Code §148.6

Introduction

In Los Angeles Police Protective League v. City of Los Angeles (Cal. Nov. 10, 2025), the California Supreme Court revisited and significantly narrowed its 2002 decision in People v. Stanistreet. The Court held that Penal Code §148.6(a)—which (1) criminalized the filing of a “knowing” false allegation of misconduct against a peace officer and (2) required complainants to sign a bold, all-caps advisory warning of criminal prosecution before an agency would accept a complaint—violates the First Amendment.

The parties were the Los Angeles Police Protective League (LAPPL), which sought to compel the City of Los Angeles to enforce §148.6(a)(2)’s advisory requirement, and the City, which argued the statute was unconstitutional in light of intervening federal authority. The key issues were:

How R.A.V. v. City of St. Paul’s framework for content discrimination within “proscribable” speech applies when the regulation burdens protected speech;
Whether Alvarez (Stolen Valor) and Free Speech Coalition v. Paxton require heightened scrutiny for statutes that target unprotected speech but incidentally chill protected speech; and
Whether §148.6(a) is narrowly tailored to the legitimate goal of protecting complaint-process integrity.

Summary of the Opinion

Justice Groban, writing for the Court, concluded that §148.6(a) is a content-based regulation within a proscribable class of speech (defamation) but nonetheless warrants heightened scrutiny because it burdens protected speech—truthful or well-intentioned complaints of police misconduct. Drawing on R.A.V., Davenport v. WEA, United States v. Alvarez, and Free Speech Coalition v. Paxton, the Court held:

When a statute regulates a subset of unprotected speech in a way that risks “driving certain ideas or viewpoints from the marketplace” or incidentally burdens protected speech, heightened scrutiny applies;
At minimum, intermediate scrutiny governs where a law regulates unprotected speech but imposes incidental burdens on protected speech (per Free Speech Coalition); and
§148.6(a) fails intermediate scrutiny because, taken as a whole, it “burdens substantially more speech than is necessary” to serve the significant government interest in deterring knowingly false complaints.

The Court reversed the Court of Appeal, dissolved the injunction requiring the City to enforce the advisory, and remanded. It reaffirmed the Legislature’s authority to protect complaint-process integrity but held that §148.6, as drafted, is unconstitutional. Justice Liu dissented.

Key Holdings at a Glance

Knowingly false allegations of officer misconduct fall within defamation—a proscribable category—but the method of regulation can still trigger heightened scrutiny when it burdens protected speech.
Heightened scrutiny applies to content-based subclassifications of unprotected speech if they pose a nontrivial risk of suppressing protected speech or disfavoring viewpoints.
§148.6(a) fails intermediate scrutiny due to a combination of chilling features: singling out police-criticism complaints, asymmetrical criminalization, a mandatory bold signed advisory, unclear scope and inconsistent phrasing, and no materiality or harm requirement.
Stanistreet is limited; the Court “parts ways” with its prior reasoning in light of Davenport, Alvarez, and Free Speech Coalition.

Analysis

Precedents Cited and Their Influence

1) R.A.V. v. City of St. Paul (1992) 505 U.S. 377

R.A.V. established that even within proscribable speech (e.g., defamation, fighting words), content-based subclasses are suspect if they risk driving ideas or viewpoints from the marketplace. It identified situations where subclassification generally does not trigger heightened scrutiny: when the selection criterion is the very reason the entire category is proscribable; when a regulation is aimed at secondary effects; or where there is no realistic risk of suppressing ideas (the “catch-all”).

The Court here reframed those “categories” as proxies for the ultimate question: does the subclassification pose a consequential risk of suppressing ideas or viewpoints or of burdening protected speech? The Court found that §148.6(a) does pose such risks.

2) People v. Stanistreet (2002) 29 Cal.4th 497

Stanistreet upheld §148.6 under R.A.V., reasoning that (i) false complaints against police are especially harmful due to mandatory investigation and retention; (ii) the statute targeted secondary effects (resource drain, reputational harm); and (iii) it did not suppress ideas. Justice Werdegar concurred only on secondary effects, warning that the advisory would realistically chill legitimate complaints.

The 2025 Court, acknowledging intervening authority, “parts ways” with Stanistreet. It preserves the Legislature’s power to protect complaint integrity but rejects the conclusion that §148.6’s means do not threaten protected speech.

3) Ninth Circuit and Federal District Court Decisions

Chaker v. Crogan (9th Cir. 2005) 428 F.3d 1215: Held §148.6(a)(1) unconstitutional as viewpoint discrimination, because only citizen-critics were criminally exposed while officer-supportive falsehoods were not.
Hamilton v. City of San Bernardino (C.D. Cal. 2000, 2004): Twice concluded §148.6 unconstitutional; emphasized the chilling effect of the mandatory advisory and found Stanistreet’s application of R.A.V. unpersuasive.
Eakins v. Nevada (D. Nev. 2002): Followed Hamilton to strike a similar Nevada law.

The California Supreme Court agreed §148.6 is unconstitutional but proceeded on different reasoning than Chaker: rather than pronouncing the law viewpoint discriminatory, it held the law fails intermediate scrutiny as a content-based regulation of unprotected speech that incidentally burdens protected speech.

4) Davenport v. WEA (2007) 551 U.S. 177

Davenport refined the R.A.V. inquiry by focusing courts on the “risk” that content-based regulations will distort the marketplace of ideas. The California Supreme Court adopted that framing, asking whether the risks of suppression or chilling are inconsequential or consequential.

5) United States v. Alvarez (2012) 567 U.S. 709

Alvarez held that false statements are not categorically unprotected and that even well-intentioned bans on falsehoods can chill protected speech, requiring heightened scrutiny. The plurality and concurrence differ on strict vs. intermediate scrutiny, but both cautioned against broad, undifferentiated criminalization of falsity.

The California Supreme Court relied on Alvarez to emphasize that mens rea (“knowing” falsehood) and subject-matter limits do not automatically cure chill; breadth, lack of limiting features (e.g., materiality or harm), and prosecutorial discretion can suppress protected speech.

6) Free Speech Coalition, Inc. v. Paxton (2025) 606 U.S. 461

Paxton clarified that when a law directly targets unprotected speech but incidentally burdens protected speech, intermediate scrutiny applies. This was pivotal: §148.6(a) regulates a subset of unprotected defamation, yet the means incidentally deter truthful or good-faith complaints—a protected activity central to petitioning and democratic accountability.

Other Authorities

Reed v. Town of Gilbert (2015) 576 U.S. 155; McCullen v. Coakley (2014) 573 U.S. 464: Content-based laws are presumptively unconstitutional.
Packingham v. North Carolina (2017) 582 U.S. 98: Intermediate scrutiny requires narrow tailoring to significant interests; overbreadth in effect invalidates.
Reno v. ACLU (1997) 521 U.S. 844: Criminal penalties create especially potent chilling effects.
Alameda Books (2002) 535 U.S. 425; Renton (1986) 475 U.S. 41: Secondary-effects doctrine does not permit undue speech burden.
California statutes: §832.5 (mandatory investigations and retention); §118.1 (false officer reports); §§118, 132 (perjury, false evidence).

Legal Reasoning

A refined R.A.V.–Alvarez–Paxton approach

The Court articulated a unifying principle: When the State regulates a subset of unprotected speech (here, defamatory falsehoods about officer misconduct), courts must ask whether the regulation:

Risks “driving certain ideas or viewpoints” from public discourse (R.A.V.; Davenport), and/or
Imposes a nontrivial incidental burden on protected speech (Alvarez; Free Speech Coalition v. Paxton).

In this framework, the R.A.V. “exceptions” are indicators that risk is inconsequential; they do not foreclose scrutiny if protected speech is burdened.

Why §148.6(a) burdens protected speech

Considering the statute as a whole, the Court identified multiple mutually reinforcing features that deter protected, truthful or well-intentioned complaints:

Criminalization in a high-salience context: The law singles out a particularly public-facing class of officials (police) whose actions are at the core of public concern, and applies criminal penalties—recognized as especially chilling—only to allegations against them.
Asymmetrical design: The statute criminalizes false complaints against officers and compels an admonition, yet it leaves unregulated false statements supporting officers made in the ensuing investigation (under §148.6)—a design likely to deter accusers while emboldening counter-narratives. (The majority declined to resolve whether this is also forbidden “viewpoint discrimination,” as Chaker held.)
Mandatory signed advisory in bold all caps: Before acceptance, the complainant must sign an advisory emphasizing misdemeanor prosecution if the complaint “is false.” The message arrives in a coercive setting (often a police station), delivered by agents of the very institution being accused, with the same agency often making first-line decisions about arrest or referral. The Court credited Justice Werdegar’s Stanistreet concurrence and Hamilton’s finding that this creates a “potent disincentive.”
Inexact and inconsistent scope: The criminal provision covers “allegations of misconduct” with no materiality or harm requirement; the advisory refers to “improper police conduct” and to any “complaint” known to be false. The mismatch and breadth generate uncertainty—another recognized source of chill—especially for nuanced or hard-to-prove claims (e.g., profiling or unlawful stops).
No materiality or harm threshold: Unlike tailored fraud or perjury statutes, §148.6(a) lacks limiting features that confine criminal liability to materially consequential falsehoods that cause legally cognizable harm, heightening fear of error or selective enforcement.

Stare decisis and why Stanistreet was revisited

The Court found that Davenport, Alvarez, and Paxton materially altered the First Amendment landscape. Those decisions, plus multiple federal rulings striking down §148.6(a), and practical conflicts (state courts enforcing the advisory amid Ninth Circuit invalidation of the criminal provision), warranted reexamination. The Court preserved Stanistreet’s recognition of the State’s interest but rejected its conclusion that §148.6(a) fell into risk-free R.A.V. categories.

Standard of review and tailoring

The Court acknowledged doctrinal uncertainty over strict versus intermediate scrutiny for content-based subclassifications of unprotected speech, but held §148.6(a) fails even intermediate scrutiny. The State’s interests are significant—preventing abuse of complaint processes and resource drain—but the statute burdens substantially more speech than necessary. The Court highlighted obvious narrower alternatives:

Add a materiality requirement and proof of concrete harm;
Symmetrically address knowingly false statements made in investigations, not just complaints;
Clarify and harmonize statutory/advisory language to avoid overbroad or confusing coverage;
Mitigate chilling effects by revising or removing the coercive advisory; and
Strengthen officer-focused procedural protections and file handling (many already exist in the Public Safety Officers Procedural Bill of Rights and §832.5(c)).

Impact

Immediate consequences

Courts cannot compel agencies to condition complaint acceptance on the §148.6(a)(2) advisory; injunctions premised on Stanistreet’s constitutionality analysis are unsustainable.
Criminal prosecutions predicated on §148.6(a)(1) are vulnerable; future attempts to use the statute will invite dismissal and civil-rights exposure.
Municipal complaint forms and workflows throughout California should be reviewed; many larger agencies already omitted the advisory, a practice the Court noted without suggesting adverse effects on complaint volume.

Broader doctrinal effects

Clarified test in California: Content-based regulations of unprotected speech are not insulated if they incidentally burden protected speech; Paxton’s intermediate scrutiny now clearly applies in California courts.
Recalibrated R.A.V. analysis: The “exceptions” are not safe harbors where protected speech is meaningfully chilled; courts must assess the realistic risk of suppression or chill.
Legislative drafting guidance: Laws targeting falsehoods in petitioning or accountability processes must include limiting features (materiality, harm, cabined contexts), avoid asymmetric design suggestive of viewpoint favoritism, and eschew coercive prefiling advisories with punitive overtones.
Signal beyond policing: Any subject-specific falsehood statute coupled with a pre-access warning regime is at risk if it can deter lawful petitioning or reporting (e.g., administrative complaints, whistleblower channels).

Complex Concepts Simplified

Content-based vs. viewpoint-based: Content-based laws hinge on the topic or subject of speech. Viewpoint-based laws go further by favoring one side of a debate. Viewpoint discrimination is almost always invalid. The Court resolved this case without deciding viewpoint discrimination, focusing instead on incidental burdens on protected speech.
“Proscribable” speech and subclassification: Categories like defamation and perjury can be regulated, but selecting subtopics within them (e.g., only defamation of one office) triggers scrutiny if it risks chilling protected speech or favoring ideas.
Intermediate vs. strict scrutiny: Strict scrutiny requires narrow tailoring to a compelling interest; intermediate scrutiny requires narrow tailoring to a significant interest and forbids burdening substantially more speech than necessary. Here, the Court used intermediate scrutiny because the statute targeted unprotected speech but incidentally burdened protected speech.
Secondary effects: Laws addressing non-speech harms (e.g., crime, resource drain) associated with speech are sometimes upheld, but only if they do not unduly impair speech itself and leave reasonable alternative channels.
Materiality and harm: Tailored falsehood laws often require that a lie be material and cause or risk concrete harm (e.g., fraud, perjury), reducing chill and selective enforcement risks.
“Marketplace of ideas” risk: Courts examine whether a law’s structure, even in regulating unprotected speech, realistically deters protected expression or narrows the diversity of viewpoints entering civic processes.

The Dissent and the Court’s Response

Justice Liu dissented, likening §148.6 to perjury and false-statement statutes that protect the integrity of government processes; he argued there is no asymmetry because officers face §118.1 liability and witnesses face general false-evidence rules. He doubted a chilling effect given the advisory’s acknowledgment of the right to file, the confidentiality of most complaints, the prevalence of non–in-person filing options, and the lack of empirical proof of deterrence.

The majority countered that perjury-style laws prohibit lies neutrally and in sworn or formal contexts with robust limiting features. By contrast, §148.6 combines a subject-specific criminalization with a coercive prefiling advisory, unclear scope, and asymmetry within the same investigative process—all likely to deter truthful or uncertain complainants. The Court emphasized that legal analysis does not demand empirical survey evidence to recognize real-world chill and cited the RIPA Board’s repeated warnings and federal court findings of deterrence. Confidentiality, the Court added, does not negate the First Amendment harm of deterring individuals from engaging in protected petitioning and reporting.

Practical Guidance

For Legislators

Consider redrafting any false-complaint statute to:
- Require materiality and proof of concrete harm;
- Apply symmetrically to knowingly false statements made within the same official process (complainants and supporting witnesses alike);
- Define “misconduct” or “improper conduct” consistently and narrowly; and
- Replace or substantially revise any prefiling advisory to avoid a coercive or punitive tone and to clarify safe harbor for good-faith complainants.

For Agencies

Remove §148.6(a)(2) advisory language from forms and portals; accept complaints without conditioning access on a signed warning of criminal prosecution.
Adopt neutral, non-coercive information notices emphasizing the right to file, the investigative process, and the distinction between intentional falsity and good-faith disagreement or uncertainty.
Ensure investigative independence and communicate that structure clearly to complainants.
Review training to prevent informal verbal “warnings” that recreate the unconstitutional advisory environment.

For Litigators

Challenge any attempt to resurrect §148.6(a) criminal charges; seek suppression or dismissal.
Where clients were deterred or arrested under §148.6(a), evaluate civil-rights claims (the Court cited real-world examples such as Hamilton and Cuadra).
Scrutinize other topic-specific falsehood prohibitions and pre-access advisories for similar chilling structures.

Conclusion

Los Angeles Police Protective League v. City of Los Angeles marks a significant recalibration of California’s First Amendment doctrine at the intersection of R.A.V., Alvarez, and Free Speech Coalition. The Court holds that content-based subclassifications of unprotected speech are subject to heightened scrutiny when they incidentally burden protected expression. Penal Code §148.6(a), as drafted, fails even intermediate scrutiny: its combination of subject targeting, asymmetry, a coercive mandatory advisory, imprecise scope, and lack of materiality or harm limits chills truthful or well-intentioned complaints at the heart of democratic accountability.

The decision does not strip the Legislature of tools to protect the integrity of complaint processes. It requires narrower, more even-handed means that deter intentional abuse without suppressing the public’s right to report misconduct. In that sense, the opinion both invalidates an overbroad statutory scheme and offers a blueprint for constitutionally sound reform.