Legal Issue: Whistleblower Rights

CalAware’s report card—and a plea

Californians Aware, the nonprofit organization fighting for your rights to open government, free speech and protected reporting, needs your help as never before. After our first dozen years working in the courts and the Legislature, we need to fund a full-time executive director and a modest administrative office, relieving me to concentrate on picking battles and continuing to help those in need of individual attention. I would continue receiving a consultation fee, established last March, of $500, but we estimate total costs of this shift to be more than $100,000. Please contribute generously to help us realize this transition, and thank you in advance for doing so! You can make your gift here or send your check to Californians Aware, 2218 Homewood Way, Carmichael, CA 95608. This past year has seen several advances in open government/public information law that we can take some credit for: Transparency in the Legislature Most significant was our early consultation on and endorsement of what became Proposition 54, approved by an overwhelming majority of the electorate earlier this month. As of January 1 the California Legislature must abandon its prior practice of last minute gut-and-amend tactics, instead posting all bills on the Internet for 72 hours before a final vote in either house. And even earlier in the process, Proposition 54 will require the Legislature to audiovisually record every committee hearing or floor session, post the recordings on the Internet within 24 hours, and store downloadable copies of the footage on a publicly-accessible database for at least 20 years. Finally, those present to observe such proceedings can record them on their own devices and republish the product as they please. Accessible Police Dashcam Videos Second most significant is the decision […]

Obama’s secrecy arsenal is now Trump’s to use

The Obama Administration has left President-Elect Donald Trump a sobering array of options to deter journalists and whistleblower from going public with information it wants to keep secret—or to punish them for doing so—notes Tim Mak in The Daily Beast. For nearly eight years, President Obama massively expanded his authority on national security issues: on the prosecution of whistleblowers, secret surveillance courts, wars without congressional authorization, and drone campaigns without public oversight. During this time the left, with the exception of some civil liberties groups, remained largely silent. But now this entire apparatus is being handed over to Donald Trump, a president with a penchant for authoritarianism, who will no doubt point to Obama as precedent to justify the continuation, and perhaps broadening, of these national security excesses. The article mentions most of the Obama mechanisms providing precedent for aggressive secrecy controls, but does not mention the Insider Threat program in which the national security agencies are now preemptively training internal counterintelligence agents to look for and detect potential leakers of information. The program was reported by Steven Aftergood of the Federation of American Scientists Secrecy News blog, who commented that it was developed by the Obama Administration in order to protect against actions by government employees who would harm the security of the nation.  But under the rubric of insider threats, the policy subsumes the seemingly disparate acts of spies, terrorists, and those who leak classified information. The insider threat is defined as “the threat that an insider will use his/her authorized access, wittingly or unwittingly, to do harm to the security of the United States.  This threat can include damage to the United States through espionage, terrorism, [or] unauthorized disclosure of national security […]

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 http://www.gourmetcruelty.com/, 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