A small Internet–based community news service is suing the local sheriff for his alleged punitive denial of access to public information. In a lawsuit filed today in Lake County Superior Court, John Jensen and Elizabeth Larson, proprietors of the Lake County News (LCN), say that Lake County Sheriff Frank Rivero is retaliating against them and the News because of its coverage of issues critical of him.
That reporting includes a series of articles in which the journalists uncovered that Rivero was under investigation by Lake County District Attorney Don Anderson for allegedly lying about a 2008 shooting in which he was involved while working as a deputy.
“The Lake County Sheriff's Office has a media distribution list that identifies the email addresses for all media outlets that have asked to receive copies of press releases issued by the office. LCN was removed from this list after publishing articles critical of Sheriff Rivero. That means our competitors receive press releases with important public safety information, but LCN does not. And that means that LCN cannot inform its readers of this important information,” editor and publisher Larson said.
LCN's lawsuit also alleges that the sheriff’s office discriminates against LCN by failing to comply with the California Public Records Act (CPRA).
“The CPRA allows journalists and private citizens to gain access to information and documents held by governmental agencies,” said Paul Nicholas Boylan, a Davis-based attorney specializing in open government issues who is representing Jensen and Larson.
“Investigative journalists in California rely on CPRA to look into how government operates and to determine whether or not public officials and employees are behaving in a lawful manner. That's what happened in the City of Bell case from a few years ago. A local journalist used the CPRA to prove widespread corruption. That would not have been possible without the CPRA,” Boylan said.
“This isn't just about us, just about one small Internet media outlet that covers news in a small county in northern California,” Larson said. “This is about something bigger. It is about the freedom of the press and the right of people to be free from government retaliation. It isn't right for elected officials to punish media outlets and the people associated with those media outlets when they report on issues and publish statements that the elected officials don't like. There are rules to prevent that from happening, and my husband and I have decided to take the steps necessary to make sure it doesn't happen to us and doesn't happen to anybody else.”
Jensen and Larson are considering additional legal actions. “Elizabeth and I have been advised that we have potential actions for damages against the Sheriff and those working with him to violate our constitutional rights,” Jensen said.
“We're waiting to see how all of this works out before we decide what to do next,” Larson concluded. Boylan said that negotiations are beginning and that he is hopeful that this dispute can be resolved quickly.
“The law is very clear: public officials cannot pick and choose which media outlets they communicate with based on the content of what is being reported. There is no question in my mind that my clients are going to prevail if Sheriff Rivero refuses to treat them fairly and equally and continues to violate the public's right to access governmental information and records. The only rational decision, the only option the Sheriff has, is to return my clients to the Sheriff Office’s media distribution list and to provide my clients with access to the public documents and information they have requested,” Boylan said.
The First Amendment has been generally recognized as prohibiting officials from reacting to unwelcome news coverage or editorial opinion by cutting the offending journalist or news organization off from access opportunities freely afforded to others. Courts have repeatedly applied this principle in a variety of contexts, for example:
- a Honolulu mayor's banishing of a particular reporter from his news conferences;
- a Texas district attorney's order that a particular reporter be given interviews only by appointment, while others were free to ask him questions on the fly;
- the order of a federal judge in Milwaukee, as a sanction for "misconduct" not backed by any evidence, that a reporter be denied access to exhibits in a drug trafficking trial ; and
- a New Orleans area sheriff's order that reporters for a particular newspaper be excluded from a media lists interviews, press releases and alerts.
More recently the U.S. Court of Appeals for the Fourth Circuit departed from this consensus by concluding that the governor of Maryland was within his rights to direct the agencies in his administration not to speak with, supply information to or return calls from two journalists for the Baltimore Sun, based on their alleged failure “to objectively report on any issue dealing with the . . . administration.” The journalists did not state an actionable case of First Amendment retaliation, the court concluded, since they failed to demonstrate that the blacklist was anything more than an extreme case of access selectivity that politicians and government officials commonly exercised, with no protest from the press. Moreover, the plaintiffs could not show they had been either “chilled” or seriously hobbled in their pursuit of news about the administration, the court said. None of the cases listed above—finding unconstitutional retaliation—was even mentioned in the opinion.
A California blacklisted reporter case not only recognizes the majority view concerning governmental retaliation but extends it to a public utility (which under state law must respect First Amendment rights to some extent the same as a government agency).
Last summer the Sacramento Bee, which does not have to depend on Sheriff Rivero for news, painted him as a colorful throwback to the wild west.