Legal Issue: Whistleblower Rights

Bill would chill reporting by medical whistleblowers

Assembly Bill 1671, as amended May 18, could deter news organizations from publishing or broadcasting excerpts of surreptitious recordings made by others of conversations with medical professionals showing the latter to be engaging in practices that were both illegal and dangerous. The bill, which has passed the Assembly and awaits hearings in the Senate, was sponsored by Common Cause after an anti-abortion group released secretly shot video of its own operatives, posing as potential buyers of fetal tissue, meeting with officials of abortion clinics.   The “sting” videos had been edited to create the false impression that the clinics were marketing tissue from aborted fetuses for profit, and the resulting furor became an issue in the Republican presidential primary and has led to calls in Congress for ending federal funding for Common Cause, AB 671’s First Amendment problem is that it not only criminalizes the public release of unlawfully recorded confidential conversations with medical professionals by those who recorded them. It also makes a crime, as “aiding and abetting,” of the release of such recordings or their content by journalists who may suspect their unlawful creation but had no role in it, even if the conversations disclosed matters of genuine public concern.  That result would be plainly unconstitutional. The U.S. Supreme Court held, in Bartnicki v. Vopper, 532 U.S. 514 (2000) that under the First Amendment, a radio commentator could not be held civilly liable under either state or federal laws for broadcasting a tape recording of an unlawfully intercepted cell phone conversation between local teachers’ union representatives arguably threatening violence against members of a school board with which the union was negotiating for a raise. The commentator did not know who made the recording, but knew […]

Grand juries & police; torture & accountability

Should grand juries handle police shootings? Some California lawmakers may move to take police shooting cases away from the secretive grand jury and into open hearings When torture’s no crime, but exposing it is Critic: CIA’s Bush-era torturers go free, but the CIA officer who exposed their methods has been prosecuted by Obama’s DOJ Accountable government: The devil’s in the emails Expert: Senate’s torture report relied crucially on preserved emails—often the only evidence of what was going on Court: Record’s prior release must be proved Government can’t keep a record from you that’s been shared with someone else in the public—if you can prove it was shared Court: Retaliatory firing’s motive is what counts You can sue your employer for firing you on suspicion of whistleblowing—even if you never actually blew the whistle

State Bar, CalTech Face Whistleblower Suits

WHISTLEBLOWERS Whistleblower suits claim retaliation for accusing colleagues of altering records at the State Bar, spying for Israel at CalTech FREE SPEECH Hearing set in suit against West Covina School District for barring first grader from handing out candy canes mentioning Jesus OPEN MEETINGS Little Hoover Commission reports recent roundtable discussion of needed flexibility in Brown Act, Bagley-Keene Open Meeting Act

Air Marshal Whistleblower Case Goes to High Court

Robert MacLean of Ladera Ranch in Orange County was fired from his Air Marshal job with the Transportation Security Agency in 2003 for disclosing to the press that the TSA planned to discontinue assigning marshals to overnight flights from Las Vegas to save money, despite an airline hijack alert which prompted higher security concerns at the time. He appealed his firing as illegal under the Whistleblower Protection Act, and while the trial court ruled against him, the U.S. Court of Appeals for the Federal Circuit unanimously agreed he had a case, despite the government’s argument that such a precedent would encourage leaks that could threaten lives. But it has been a hard road for MacLean, as Teri Sforza reports for the Orange County Register. His case finally goes before the U.S. Supreme Court next month and, reports Jacob Gershman for the Wall Street Journal, lawmakers in both Houses of Congress and both parties are saying the viability of the WPA is at stake if the Court rules that the government can fire its employees for revealing anything that it pronounces—before or after the whistle is blown—as “sensitive” national security information.   

How Chilled Must a “Vegeterrorist” Be to Get into Court?

Remember when Oprah Winfrey was sued for saying some unflattering things about the health risks of beef, and hamburger in particular? A jury found that she had not defamed the cattleman who sued under Texas’s False Disparagement of Perishable Food Products Act, but it’s been pointed out that she’s been mum on the subject since then. California has never passed an “ag gag” law like that of Texas or several other breadbasket states—despite more than one attempt, the most recent last year—but it’s been home to some very active animal rights groups. They’re no doubt watching closely a petition for certiorari filed in the U.S. Supreme Court Monday by a plaintiff, Sarahjane Blum, who fears she faces a stiff penalty as a “terrorist” for speaking out against animal cruelty. As explained here at 5:47, the First Circuit U.S. Court of Appeals, departing from longstanding doctrine, ruled that her speech was not directly enough chilled by the prospect of prosecution under the Animal Enterprise Terrorism Act to give her standing to challenge it as an infringement of the First Amendment. That statute is a vivid example of how a single loaded word—terrorist—can be used to stamp speech and other above-ground civic activity as so menacing to public order and security that it must be hounded with the full weight of the law. Local angle: Plaintiff Blum was, according to Wikipedia, a co-producer of the documentary “Delicacy of Despair: Behind the Closed Doors of the Foie Gras Industry” and created the website, both of which expressly advocate for a ban on the production and consumption of Foie Gras. Through the film and website, supporting activists and protesters whose efforts, and expose-style “investigations” of companies such as […]

Whistleblower Punished for Sounding Alarm on Parole Violators

The Department of Corrections has punished a retired parole officer for reporting that parole-violating sex offenders can’t be kept in jail, reports CNN. Thirty-year veteran Susan Kane last November told a CBS affiliate television station that the San Joaquin County Jail was being forced to release parole violators, including sex offenders, after only a few days’ stay behind bars because of overcrowding resulting from the “Realignment” transfer of state prisoners to county facilities. Now the Department of Corrections has in effect fined her $3,000 for not clearing her statement with supervisors, although she expressly gave her opinions as a concerned citizen and not a public official.

Free Speech, Whistleblowing, Public Information

FREE SPEECH Court: California privacy law gives Internet opinions on public issues not just the right to be wrong, but also to stay anonymous Study: Surprise! Supreme Court justices’ support for free speech depends on the ideology of the speech seeking protection   WHISTLEBLOWING ICE chills volunteer observers who visit detained immigrants and teach them their rights or publicly expose abuses against them   PUBLIC INFORMATION Journalism student gets federal judge to consider possibility that FERPA student privacy shield does not extend to parking tickets Sacramento courts soon to erect expensive paywall for online access to case records: A dollar per page for PDFs, for example

One Line News in Public Forum Law: 9/13/2013

OPEN GOVERNMENT CalAware’s proposed Plan B to save the Brown Act and the Public Records Act to go before the voters Sunlight’s new list has 32 pointers for local/state governments on “proactive disclosure” policies FREE PRESS Judge denies deputies’ bid to gag the L. A. Times from publishing leaked background screenings Governor gets bill requiring 5 day notice to journalists before subpoenas of their phone, email records Federal shield bill moving to the Senate would protect sources of a wider variety of journalists OPEN MEETINGS L.A. Council may allow citizens to address its meetings remotely, avoid hassles of trip downtown FREE SPEECH Federal judges cool to arguments that new sex offender online data tracking preserves free speech PUBLIC INFORMATION Campaign finance watchdog: Just how helpful will the improved Cal-ACCESS online database be? WHISTLEBLOWERS Court: Government attorneys’ ethical duties don’t strip them of law’s whistleblower protections Secret spy court judge: Snowden leak led to “considerable public interest”; more openness needed      

Civil Liberties v. Surveillance: a Gold Standard?

With all the “Yes, but” debate filling the air on the propriety of secret national security surveillance vs. whistleblowers’ disclosures thereof, it comes as a relief (and something of an astonishment) that this very week an international collaborative of experts and activists on all sides of these issues has published a 35-page report, based on more than two years of research and debate, called “Principles on National Security and the Right to Know.” As reported by Steven Aftergood, who tracks national security secrecy for the Federation of American Scientists, The Principles present guidance on specific types of information that the drafters believe may legitimately be withheld from disclosure on national security grounds (e.g. current war plans), as well as categories of information that should not be withheld on national security grounds “in any circumstances” (e.g. information on gross violations of human rights). The Principles are the product of an international initiative, and they are not the same as U.S. policy writ large.  In fact, some of the Principles are inconsistent with current U.S. government practice. Thus, one principle would preclude the use of secret interpretations of law in the conduct of intelligence surveillance. “The overall legal framework concerning surveillance of all kinds, as well as the procedures to be followed for authorizing surveillance, selecting targets of surveillance, and using, sharing, storing, and destroying intercepted material, should be accessible to the public.” (Principle 10E). Another principle would provide strong protection to persons who publicly disclose government wrongdoing involving classified information, under certain specified conditions. (Principle 40). The tools of transparency can be used to attack an open society– by infringing on personal privacy, by violating confidentiality in the exercise of religious freedom or free association, or […]

The Worst Week in Memory for Basic Liberties

The current IRS’s selection of conservative groups seeking tax-free nonprofit status as a class suitable for suspicion and close investigation may not be in quite the same league as President Richard Nixon’s efforts to get the IRS to audit his political enemies—for one thing, there’s no evidence so far that the Obama White House knew about, much less directed the current policy.  But that does not mitigate the gravity of the episode, which should be a warning to groups all around the political compass of just how frail their First Amendment rights of speech, petition and association can be in the toils of large, remote, powerful and secretive governmental institutions.  But equally alarming is the other scandalous invasion of First Amendment rights disclosed this week—the U.S. Justice Department’s secret and wholesale seizure of phone records for more than 20 lines used by more than 100 Associated Press reporters and editors for a two month period last spring. That abuse looks very much like the outgrowth of a White House mania for plugging leaks and hunting down leakers not seen since Nixon’s notorious Plumbers era. That the secrets said to have been leaked last year concerned national security does not distinguish the episode from the scandal 40 years ago, which also dealt with putative national security alarms—Daniel Ellsberg’s leak of the Pentagon Papers to the New York Times.  And in any event the question must be asked: What kind of security does the nation have under an executive willing to abridge the freedom of the press on a wholesale basis to find and punish those who would inform the public about how the now perpetual Global War on Terror is being waged?  The GWOT phrase is […]