When someone leaks a city attorney’s communications with the city council to a local newspaper, can the city get a court to stop their publication?

No, decided a Monterey Superior Court judge last Friday, affirming the Monterey County Weekly’s right to publish such sensitive documents about a pre-litigation claim brought by the City of Greenfield’s former city manager, alleging wrongful termination.

Defending that right was attorney Kelly Aviles, who also acts as Vice President for Open Government Compliance with Californians Aware.

As the Weekly’s own story about the hearing that led to the judge’s decision recounted it,

“In terms of an injunction, you would have to reach a very high standard,” Aviles said. “You are seeking to enjoin speech. They have not met that standard.”

Aviles rattled off a list of examples in case law where the First Amendment has been determined to override other legal issues, such as privacy or an offensive anti-Semitic screed, and news outlets have been permitted by the courts to publish—even if many outlets would choose not to, for ethical and journalistic reasons.

“The publication of classified material; the identity of rape victims; doctor-patient privilege. If all of those are insufficient [to prevent publication], attorney-client privilege is certainly not an issue that overrides the First Amendment.

“This case is about public officials, their decision-making process and possibly creating liability [for the city]. The First Amendment exists to prevent exactly what’s happening here.”

Matcham agreed. “I think the issue is whether attorney-client privilege—which I do think City Council had—whether the release of that information is compelling enough to override free speech.

“I do think release of attorney-client privileged [documents] is very harmful to the holders of that privilege, but the case law is clear that rights much stronger than attorney-client privilege have been found to not be sufficiently compelling. There really isn’t a lot of question.”