Monthly Archives: February 2008

He Could Make a Big Difference

By the time his term ends in January 2011, Arnold Schwarzenegger may well have experienced the worst fiscal environment of any California governor since the Great Depression—much of it bad luck, some of it his own doing.  But he can still make a positive, indeed historic mark in keeping with some of the most encouraging promises in his 2003 campaign to replace Gray Davis. To the degree that his ambitious platform proposed programs relying on any substantial new spending, the state’s budget deficit—now estimated at $16 billion for the coming fiscal year—is prohibitive.  It’s also widely sensed that the state is entering a recession, and perhaps even a stagflation, likely to drive down tax revenues for much of the remaining Schwarzenegger years. Nonetheless, in considering what the Governor can accomplish in a positive way, we should remember that in his 2003 campaign he pledged "to throw open the doors and windows of government," commenting in one speech, "There’s no such thing as democracy in the dark."    His “open government reform plan” included a commitment to add the Legislature (which had exempted itself) to a constitutional amendment mandating open government records and meetings of official bodies.  But that commitment was quietly dropped. The Governor also takes credit for giving the press access to his appointment calendars, but his office began to provide them—in edited form—only when it appeared that a lawsuit for them might be in the offing. More typically, last fall the Governor vetoed a modest bill—AB 1393, which Californians Aware sponsored—that would have allowed citizens to file public records access requests on every state agency’s website, with follow-up contact information.  His veto message stated, Ensuring access to public information is one of my […]

Public Forum Law Week in Review: 2/25/08

(CalAware Weekly comprises this plus the previous three posts) Free Speech First Amendment Seminars Soon at UC Davis      The University of California, Davis has announced that some of today’s most prominent legal minds will lead discussions on the First Amendment, with all of its constitutional complexities and interpretations, at free campus events Feb. 26 and March 7. Racist Fliers Leave Vacaville Disgusted       The Reporter newspaper reports that two days after an onslaught of racist literature littered about 200 driveways in Vacaville, residents remained up in arms about the incident and police were struggling to determine whether the distribution, however offensive, was in fact a crime. Border, Airport Searches Raise Alarms     A legal analyst discusses the constitutional dimensions of the government’s routine searches at borders and airports of travelers’ laptops, cell phones, Blackberries and MP3 players—a practice that could violate both freedom of speech and freedom from unreasonable search. UCSF Medical Center Bars Union Leafleting     The UCLA Daily Bruin reports that University of California officials plan to appeal a temporary restraining order obtained by the American Federation of State, County and Municipal Employees barring the university from stopping union members from leafleting in certain areas at UC medical centers.  Judge Again Finds No Right to Anti-Gay T-Shirt       The Student Press Law Center reports that a federal judge has for the second time that the Poway Unified School District did not violate a former student’s rights to freedom of speech and free exercise of religion when officials punished him for wearing an anti-gay T-shirt. In 2004, Tyler Chase Harper was detained for wearing a T-shirt to Poway High School that said, "Homosexuality is shameful. Romans 1:27" on the front […]

The New York Times provides the most thorough early account of a federal judge in San Francisco recently ordering the disabling of a website devoted to disclosing leaked confidential documents, “in a move that legal experts said could present a major test of First Amendment rights in the Internet era.”  The best recent report on what information a Swiss bank wanted kept secret and who’s behind Wikileaks has been done by The Guardian  in England, where the website is based. For technical reasons the judge’s order did not and could not entirely block access to Wikileaks.  But the fact that the judge tried to do just that, and believed he had the authority to do so is astonishing, given that the very first case in the United States Supreme Court invoking the First Amendment as protection for the press and declaring the constitution’s repugnance for prior restraint involved—at least for its day—a very similar annihilating spirit. Near v. Minnesota, 283 U.S. 697 (1931), involved a state law that allowed officials to shut down (“abate”), as a “nuisance,” scandal-focused publications that offended those in private prominence or public power.  Minneapolis officials used the law to close a tabloid of just that character published by a man described by a historian of the incident as "anti-Catholic, anti-Semitic, anti-black and anti-labor." In the words of Justice Charles Evans Hughes for the Supreme Court, the last straw was added when the newspaper’s articles charged in substance that a Jewish gangster was in control of gambling, bootlegging and racketeering in Minneapolis, and that law enforcing officers and agencies were not energetically performing their duties. Most of the charges were directed against the Chief of Police; he was charged with gross […]

Protecting Advisors to the Student Press

California law provides students greater free speech and press protections from school censorship than does the First Amendment.  As interpreted by the U.S. Supreme Court, for example, high school student newspapers can be prevented by school administrators from publishing a story concerning teen pregnancy, for a variety of reasons (Hazelwood School District v. Kuhlmeier , 484 U.S. 260 (1988)).  The court conclued that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns. In contrast, California Education Code Section 48907 dictates that high school student journalists can almost never be disciplined for saying or writing things in news reports, editorials or other forms of of official school communication that would have free speech or press protection off campus; if they are,  they can sue the school district to have the discipline reversed (and their records cleared), and have the district pay their attorney’s fees reimbursed by the district.  Similar laws protect college and university students. In addition to protection from punishment after the fact, California makes the Hazelwood case of little moment by providing, in Education Code Section 48950, that student journalists cannot be prevented from printing in official school publications whatever they decide is appropriate news, comment or other expression, with the sole exception of material that would expose the district to a successful libel suit, that constitutes not just vulgarity but actual obscenity, or that creates the clear and present danger of inciting serious disruption or lawlessness.  This law also protects against such prior restraint any student expression found in whatever medium—speeches, posters, fliers or Internet postings. But […]

If You See Something, Say Something

CalAware’s President Emeritus Rich McKee, a chemistry Professor at Pasadena City College, is not as active as he was several years ago in reminding local councils, boards and commissions in southern California about their open meeting obligations under the Brown Act.  Although not a lawyer, McKee made it his fond avocation to urge, threaten litigation if necessary, and ultimately represent himself in lawsuits to see that the Act was respected.  He was even successful in going to the Court of Appeal, resulting in published decisions establishing that meetings of the governing body of a Los Angeles area joint powers network of drug law enforcement units are subject to the open meeting laws, and that anyone in California has standing to sue any local agency in California for violations of the Brown Act—with no residency requirement.  Rich has not been as active so consistently to enforce the Brown Act in the last year or so, but he notes that a recent “issue with Whittier was the kind of thing that used to really irritate me, so I just had to do something.”  He forwarded to CalAware four documents which “in chronological order . . . are offered to illustrate the modest change you can make if you’re willing to engage secrecy, consciously or unconsciously used by local government, that removes public input from decision-making.” He refers to an initial news story reporting the public reaction to seeing trees cut down in a residential neighborhood because of a closed session decision; the letters from a nearby couple stating their health concerns that were used as justification for taking the matter behind closed doors as an instance of potential litigation; McKee’s own letter challenging this secretive approach and […]

Public Forum Law Week in Review: 2/6/08

(CalAware Weekly comprises this plus the previous three posts) Open Government What Questions Would You Like Asked?      OMB Watch is running a short survey to try and find the best open government questions to put to presidential candidates this year and is asking anyone interested to participate. Sean Moulton, OMB Watch’s director for federal information policy, says: Take just a few minutes to answer our “Open Government: What We Need To Know” survey and vote on your five favorite questions on the issue of government transparency and openness. We will then share the top questions with the news media and other organizations that have direct contact with candidates. Comment: Time to Stand against Secrecy    Contra Costa Times investigative reporter Tom Peele challenges you to ask yourself a list of questions about your experience in seeking public information—then start getting assertive if you find your request stalled, stonewalled or stymied. Free Speech “Choose Life” OK for License Plate        The San Francisco Chronicle reports that the U.S. Ninth Circuit Court of Appeals has ruled that an Arizona anti-abortion group’s speech rights were violated when the state refused to issue specialty license plates with the message "Choose Life." The court noted that Arizona’s License Plate Commission had approved blander plates for other nonprofit organizations, such as associations of police and firefighters and the Wildlife Conservation Council, before turning down the Arizona Life Coalition. The ruling is applicable in California as well—in ways that DMV lawyers have been pondering—but at least one Californian doesn’t think it’s a wise one. High Praise Indeed . . .     . . . For Anthony Lewis’s new book, Freedom for the Thought That We Hate, coming from Nat Hentoff, […]

The Secrecy Apparat's "Neutron Bomb"

Congressional Quarterly’s national security editor notes that when employees of intelligence agencies turn to the courts for redress of their maltreatment as whistleblowers, “they encounter the judicial version of a neutron bomb, the state secrets privilege.” For more than 50 years, it’s allowed the spy agencies to pre-empt troublesome suits by declaring a matter so sensitive that mere mention of any of its elements in court, no matter how oblique, would cause “grave damage” to U.S. national security. The judges usually go along, the record shows, sometimes without even examining the documents themselves. Big surprise: Sometimes the spy agencies don’t tell the truth.” As Steven Aftergood of Secrecy News observes, "The state secrets privilege has been invoked with growing frequency to deflect claims of unlawful domestic surveillance, detention, and torture as well as other more mundane complaints, on grounds that adjudicating them would cause unacceptable damage to national security." Meanwhile a journalist for Pajamas Media reports that the government’s use of the privilege to gag FBI whistleblower Sibel Edmonds didn’t stop the London Sunday Times from reporting on January 6 that A whistleblower has made a series of extraordinary claims about how corrupt government officials allowed Pakistan and other states to steal nuclear weapons secrets.    Sibel Edmonds, a 37-year-old former Turkish language translator for the FBI, listened into hundreds of sensitive intercepted conversations while based at the agency’s Washington field office.    She approached The Sunday Times last month after reading about an Al-Qaeda terrorist who had revealed his role in training some of the 9/11 hijackers while he was in Turkey.    Edmonds described how foreign intelligence agents had enlisted the support of US officials to acquire a network of moles in sensitive […]

Tabloids: A Legitimate Mirror of "Public Interest"

One who is sued for injuring another by things he or she has said or written can, in California, immediately file a defense motion asking the court to dismiss the suit unless the plaintiff can show without further ado that the suit is likely to win.  But this anti-SLAPP motion, which among other things has greatly reduced the number of intimidation suits filed to silence speakers and writers, is not available to just any defendant. Under the Code of Civil Procedure. when the challenged statement was made directly to the news media, the motion is appropriate only when that statement concerns a matter of “public interest.” In Nygård, Inc. v. Uusi-Kertula (California Court of Appeal, 2d District, 2/1/08) the plaintiff company contended that an ex-employee’s statements to a Finnish entertainment tabloid, Katso, complaining of oppressive and intolerable working conditions at Nygård, and also the company founder’s guests at his Caribbean retreat,  were not a matter of public interest since they did not involve significant public issues; they did not touch on “government matters (or) private conduct that affect[s] a community in a manner similar to a government entity." But the California Court of Appeal, construing the term “public interest” broadly as the SLAPP statute requires, disagreed. Taken together, (the) cases and the legislative history that discusses them suggest that "an issue of public interest" within the meaning of (Code of Civil Procedure) section 425.16, subdivision (e)(3) is any issue in which the public is interested. In other words, the issue need not be "significant" to be protected by the anti-SLAPP statute; it is enough that it is one in which the public takes an interest. Judged by this standard, the trial court correctly concluded that […]

Berkeley Lives up to Its Caricature

The Berkeley City Council’s January 29 decision to ask Marine recruiters to get out of town “as univited and unwelcome intruders” and to give a group protesting the Marines’ presence a free sound ordinance permit and parking space in front of the recruiting office is arousing the predictable reaction from everyone who does not blame the Marines for the Iraq war.  Some of the reaction is pre-Cro-Magnon, some is as mis-targeted as the street protest, and some is informative and noncommittal. But none so far has mentioned the constitutionally suspect material support provided the protesters at the council’s direction. At the request of two council members, the body approved the waiver of a sound permit ($36) every Wednesday from 12:00 pm – 4:00 pm for the next six (6) months (February 6, 2008 – July 30, 2008) and designate one (1) parking space on Shattuck directly in front of the Military Recruiting Station at 64 Shattuck Square for Code Pink.  It is recommended that Council approve the permanent tagging of the one parking spot and designate it with signage "No Parking from 12:00 pm – 4:00 pm every Wednesday,” for six (6) months from approval of this request, and that Code Pink be allowed permission for one table and chairs that may not obstruct the 10-foot access for public-right-of-way.  It is settled law that, as the California Supreme Court observed in Stanson v. Mott, 17 Cal. 3d 206, 219, “the First Amendment precludes the government from making public facilities available to only favored political viewpoints; once a public forum is opened, equal access must be provided to all competing factions.” The only way to invoke this principle squarely would be to have a group supportive […]