Whistleblowers, Sunshine, Speech Bills Advance

PUBLIC FORUM LAW — In a very encouraging hour or so for public forum law, bills with new protections for aggrieved government whistleblowers, open government law enforcement, and speech and press freedoms won approval today in the Assembly Judiciary Committee; three of the four are headed for their final stop on the Assembly floor before going to the Governor.

All are Senate bills already passed in that house.  Three of the four are authored by Senator Leland Yee (D-San Francisco), whose office reports their progress as follows:

In
response to the Court’s decision in Miklosy v. the Regents of the
University of California (S139133, July 31, 2008), the Assembly
Judiciary Committee today approved (8-2) legislation to provide UC
employees with the same whistleblower protections and legal standing as
all other state employees.

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On a 7-2 vote, the Assembly Judiciary Committee also approved Yee’s SB
220 to expand the protections for state employees who report waste,
fraud, and abuse.  That bill now heads to the Assembly Appropriations Committee.

Yee's office also reports passage of a bill whose need was highlighted by CalAware's troubling experience in a lawsuit to enforce open government laws:

On a 9-1 vote, the Assembly Judiciary Committee today approved
legislation to prohibit public entities from recovering attorney’s fees
from individuals who sue to enforce the State’s open government laws,
specifically the California Public Records Act, Bagley-Keene Open
Meetings Act, and the Ralph M. Brown Act.

“SB 786 corrects an
abuse of the anti-SLAPP law by government bodies,” said Senator Leland
Yee (D-San Francisco/San Mateo), the bill’s author.  “The anti-SLAPP
law was designed to protect freedom of speech and petition; not to
chill an individual’s right to participation and ability to access
public documents.  SB 786 will not only protect the right of
individuals to enforce open government laws without fear of a
significant financial burden, but will also ensure that government
entities act with greater transparency.”

In 1992, the California
Legislature enacted the original anti-SLAPP (Strategic Lawsuits Against
Public Participation) law for individuals to obtain an early judicial
ruling and termination of a SLAPP suit arising out of one’s exercising
of speech and petition rights in connection with a public issue.  Prior
to the law, big corporations and developers – in attempt to silence an
individual who was exercising their free speech or petition rights –
would often masquerade false defamation cases as ordinary lawsuits. 
Such cases resulted in severe economic hardships against innocent
individuals.

“In 2007, we filed an action for declaratory
relief—not damages—against a school district, alleging violations of
the Brown Act, the CPRA and the First Amendment,” wrote CalAware
Executive Director Terry Francke, in a letter supporting the bill.  “We
challenged the board of trustee majority’s censure of one of its
members for his open session criticism of board action and staff
performance, and the superintendent’s editing of those remarks out of
the video recording distributed for cable TV replay.  Our belief at the
time was (and still is) that the public has a right to hear even the
harshest criticism by an elected member of a government body as to how
the body has dealt with any issue—even a personnel matter—on which it
has acted.”

The trial court dismissed CalAware’s action upon the
district’s anti-SLAPP motion (Californians Aware et al. v. Orange
Unified School District, No. G038499).  As a consequence, the nonprofit
organization was held liable to pay the district attorney’s fees and
costs for trial totaling more than $80,000.

The committee also approved SB 320 by Senator Ellen Corbett (D-San Leandro), which would, as summarized in the committee analysis,

permit a court in California to not recognize (and enforce) a judgment for (libel or slander) 
obtained in a foreign jurisdiction that does not provide at least as much protection for 
freedom of speech and the press as that provided under the United States and California 
Constitutions. This bill seeks to address the problem of "Libel Tourism," which is the 
increasingly popular practice of suing U.S. journalists and authors in libel-friendly foreign 
courts (often in Great Britain) and then attempting to enforce the judgment in a 
California court. Because existing state law, the Uniform Foreign-Country Money 
Judgments Recognition Act, requires the recognition of foreign money judgments in the 
U.S., except as specified, and because there are stark differences in libel law and free 
speech protection between the U.S. and other countries, there is an incentive for libel 
plaintiffs to engage in forum-shopping in order to silence speech they find objectionable. 
Past examples of this phenomenon, with their chilling effect on free speech and which 
have been well documented, have spurred lawmakers in the U.S. to propose legislation 
similar to and including this bill, with the goal of protecting free speech from the effects of 
Libel Tourism. 

Coincidentally, the Reporters Committee for Freedom of the Press notes that the U.S. House of Representatives Judiciary Committee last week passed a bill addressing the same problem.

The bill that passed, H.R. 2765,
put forth by Rep. Steve Cohen (D-Tenn.), would prevent American courts
from recognizing foreign libel judgments that are deemed "repugnant" to
the First Amendment. It does not go as far
as two other libel tourism bills under consideration in Congress, both
of which would allow libel defendants to counter-sue the plaintiffs who
bring such claims against them in foreign courts.

Those bills —H.R. 1304, sponsored by Rep. Peter King (R-NY), and S. 449, sponsored by Sen. Arlen Specter (D-PA)—have not yet been put to a vote.

Cohen’s bill passed the full House last September, but that was as far as it got before the congressional session ended.  

All three of the libel tourism bills were introduced after New York author Rachel Ehrenfeld was ordered by a British court to pay 30,000 British pounds in a libel lawsuit brought by billionaire Saudi businessman Khalid bin Mahfouz.