First Amendment and open government news
Vol. 15, No. 14, June 27, 2005
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COMMENTARY
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The Jacko Exception to the First Amendment.
For persons who care about public access to trials, the Michael Jackson
case has been a nightmare.
By Peter Scheer
(CFAC, June 27) -- If bad facts make for bad law, then the Michael Jackson case is--for advocates of public access to trials--our worst nightmare. Nothing tests the First Amendment principle of openness like the trifecta of lurid sexual charges, juvenile victims, and a defendant whose celebrity status is virtually without parallel.
And bad law the Jackson case has made in abundance.
Trial judge Rodney Melville broke one access rule after another, ordering the sealing of, among other normally public documents: the search warrant and supporting affidavit for the search of Jackson's "Neverland" estate; the transcript of the grand jury proceeding resulting in Jackson's indictment; and the indictment itself.
In the face of court decisions, e.g., NBC Subsidiary v. Superior Court (1999) 20 Cal. 4th 1178, state statutes, Civil Code Section 1534(a), and a rule of procedure, Rule of Court 243.1, establishing a clear presumption of access to all these records, the judge reasoned that the extraordinary media interest in the case justified extraordinary measures to protect witnesses' privacy and Jackson's right to a fair trial.
To the dismay of First Amendment lawyers, the Court of Appeal (for the second appellate district) recently affirmed nearly all of Judge Melville's rulings. NBC Universal, Inc. v. Superior Court of Santa Barbara County. In a published decision, the appeals court held that, although the Jackson indictment should have been made public (because the contents had been divulged by the prosecutor in open court), access to the search warrant, grand jury records, and other legal documents was properly barred.
As though inspired by Jackson's persona, the appeals court's decision is, well, weird. For one thing, the court records sought by NBC and the other media petitioners had, by the time of the oral argument, all been leaked and posted on the Internet, as the court itself pointed out. Since NBC, like the rest of the world, already had the documents it was demanding, the case had become moot--an abstract legal debate rather than a fight over actual records.
The court should have dismissed the appeal on grounds of mootness, without reaching the merits of the appeal. Indeed, CFAC is a signatory to a letter to the state Supreme Court requesting "de-publication" of the appeals court's decision on that basis. (If de-published, the opinion would stand, but could not be cited as precedent.)
One might ask: If NBC et al. had all the records they wanted, why did their lawyers, led by Theodore J. Boutrous Jr. of LA's Gibson, Dunn & Crutcher, persist in an appeal which has yielded such "bad law"? Shouldn't they have pulled the plug at oral argument (if not earlier)? With 20/20 hindsight, it's easy to argue they made the wrong judgment. At the time of oral argument, however, the lawyers must have thought that the appeals court was leaning in their direction.
The other weird aspect of the appeals court's decision is that, both logically and in the court's own characterization of the holding, it applies exclusively to Michael Jackson, whose trial, the court says, was "sui generis"--one of a kind. Courts don't usually fashion rules for a single person. But, then, there will never be another person quite like Jackson.
Fine, let's call the decision the Jacko Exception to the First Amendment. And if a court ever relies on it to withhold court records, just remind the judge that the opinion may only be invoked by the Gloved One.
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FIRST AMENDMENT AND OPEN GOVERNMENT NEWS
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RIP, MIX, AND BURN:
Bloggers:
Court decision leaves everyone unsatisfied
Grokster
decision text
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San
Bernardino County Sun:
When is use of anonymous sources and leaked information justified?
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POWER TO THE PEOPLE: UNLOCKING GOVERNMENT FOR THE PUBLIC, PRESS, AND THE
BLOGS
featuring
* FLOYD ABRAMS as keynote
* a special honor to MARK FELT (aka "Deep Throat")
* panel discussions on blogging, Prop 59 and everything in between
CFAC's annual free speech assembly
October 14 and 15
Cal State Fullerton
Details coming soon!
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MORE NEWS
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Contra
Costa Times:
Open government ordinance wins Benicia council support
Inland Valley
Daily Bulletin:
Open-government advocate calls Colonies negotiator picks illegal
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CFAC HOTLINE Q & A
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The Hotline is CFAC's online legal information service. Questions from reporters, government officials, civic activists and the occasional crackpot are answered by media law specialists Roger Myers, Brooke Beros, Isela Castaneda, James Chadwick, Katherine Keating, Joshua Koltun, Rachel Matteo-Boehm, Diana Ng Fung, and Danielle Van Wert at the national law firm of DLA Piper Rudnick Gray Cary, CFAC's general counsel.
Have a legal issue? Submit your question here.
Video taping public meetings
Q: I need advice on a problem I encountered in my city. During a Fire Commission meeting, the President of the Fire Commission ordered me to stop video taping when I panned my video camera, which was mounted on a tri-pod, to show the fire department employees in the audience.
The Fire Commissioner stated that I was disrupting the meeting. I have been video taping the Fire Commission meetings for over 7 years and I have never been ordered or prevented from taping anything within the Fire Commission meeting room, including the audience.
I should note that the audience I was video taping consisted of 2 people at one point and they were both Fire Department employees.
I believe that I was singled out and targeted in retaliation for filing a previous recent SUNSHINE complaint against the Fire Commission.
Can you give me advice and direction on what my rights are in this case? Do I have the right to video tape the audience during the meeting? The video tape that I have will show that I was not disruptive. My camera never left its tripod and I never left my position with the camera.
For the record, I have been video taping meetings consistently for nearly 8 years and never had a problem like this. Just several weeks ago the local TV news from several different news channels sent their own cameras to video tape a fire commission meeting in the same room and they were allowed to train their cameras on the audience and in fact they kept repositioning their cameras throughout the meeting. The Commissioner NEVER once admonished them to stop taping.
I truly believe that he singled me out to give me a hard time because of several pending complaints I have on file against him.
Any help you can give me would be appreciated. My plan is to keep video taping future meetings, but I do not want to violate any laws. Am I within my First Amendment Rights to video tape the audience if I so choose?
A: Pursuant to Government Sections 54953.5 and 54953.6, a legislative body may not prohibit any person attending an open meeting from video recording, audio recording or broadcasting the proceedings, absent a reasonable finding that such activity would constitute a disruption of the proceedings. One of the rights you have in the event of a violation of this or other provisions of the open meetings laws is to file a lawsuit under the Brown Act. As to your concern that you may have been singled out in retaliation for previously filing a Sunshine complaint, unfortunately, we do not have any particular expertise on this specific issue and a review of the various laws that may apply is beyond the scope of services CFAC provides. You may wish to find an appropriate attorney to provide you with legal advice or representation on this matter.
I've provided a link to CFAC's Lawyer Assistance Request Service below.
http://www.cfac.org/Lawyers/lawyers_assistance.html
Privilege barring release of confidential internal information
Q: I am a relatively new attorney and feel overwhelemd in a discrimination case I've taken on. The case involves discrimination and harassment of a police officer internally by the police department and the City in general. I recently deposed another officer seeking responses regarding internal procedures, conduct and action. I basically received nothing, as the attorney representing the City objected to my requests on privilege using Penal Code section 832.7 as a shield and instructed the witness not to testify. Is there any case law that addresses overcoming privileges to obtain internal confidential infromation from police departments in discrimination suits?
A: Penal Code section 832.7 relates to the confidentiality of certain records from discovery. It does not by its terms create a privilege against testifying, although I imagine the police attorney could develop arguments that certain questions going expressly to the content of protected documents should be protected. How good that argument would be would depend on the questions you asked that the attorney instructed him not to answer. In any event, however, even if section 832.7 were extended to certain testimony, the protection is not absolute, but rather conditional. See Rosales v. City of Los Angeles (App. 2 Dist. 2000) 98 Cal.Rptr.2d 144, 82 Cal.App.4th 419. Thus any refusal to answer should be subjected to a motion to compel, and you would have to make your arguments to the court as to the materiality of the information you seek.
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ASKED AND ANSWERED
Do you find these questions and answers helpful? If so, you should also
consult "Asked and
Answered" on CFAC's Web site, a compilation of past Hotline questions
and answers.
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MORE FIRST AMENDMENT AND OPEN GOVERNMENT NEWS
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North
County Times:
Minuteman cancellation triggers free speech grumbles
Berkeley
Daily Planet:
Council considers secrecy ban, budget, Drayage
Ventura County Star:
Report: School boards following Brown Act
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CFAC IN THE NEWS
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San Bernardino County Sun:
When is use of anonymous sources and leaked information justified?
North
County Times:
Minuteman cancellation triggers free speech grumbles
Berkeley Daily Planet:
Council considers secrecy ban, budget, Drayage
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EDITORIALS
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Ukiah
Daily Journal:
Budget conference committee saves Brown Act
Boston Globe:
Abusing the flag
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