Stories (1997):
Free Speech
January
February
March
April
May
June
July
August
September
October
November
December
March
Lockyer Introduces Bill to Strengthen
Protection against SLAPPs
Anti-SLAPP motions -- designed to protect citizens against harassment
by libel suits and other civil actions for speaking out on matters of public
concern -- would be strengthened under legislation introduced February
28 by Senate President Pro Tempore Bill Lockyer (D-Hayward).
SB 1296, assigned to the Senate Judiciary Committee but not yet set
for hearing, would correct the weakening effects of several court decisions.
The bill would broaden the parameters of "public concern" to
provide more breathing room for those commenting about court cases and
in public forums generally; would make it harder for SLAPP plaintiffs to
circumvent a defensive motion to strike; and would provide for payment
of all legal defense fees to those prevailing on an anti-SLAPP motion-not
just those involved in preparing the motion itself.
As an example of how important such broad protections can be, a San
Francisco Superior Court Judge early in March awarded $72,000 in court
costs and attorney fees to an environmental protection foundation for its
expenses in defending a SLAPP brought by a parking garage proprietor. A
foundation researcher had taken air samplings in an underground garage
to test for carbon monoxide levels. The proprietor sued and tried to block
release of the findings to anyone, including government agencies or the
press. The proprietor grounded the whole legal action on a claim of trespass,
but Judge A. James Robertson concluded that it should be dismissed, being
"brought primarily to chill the valid exercise of the constitutional
rights of freedom of speech and petition for the redress of grievances."
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School Trustee Sues Own Board, Alleging
Retaliation against Her Speech Rights
Last fall CFAC's Assembly looked at how some local bodies cut off their
own members' speech and information rights in order to stifle dissent.
Now Barbara Bass, trustee of the Hamilton Union Elementary School District
in Glenn County, is suing the district and her fellow school board members
in U.S. District Court in Sacramento for $350,000 in damages, alleging
violations of her federal and state free speech rights, violations of the
Brown Act, defamation and several other counts.
Elected on a cost-cutting platform (the tiny, largely Hispanic district
is among the poorer in the state), Bass apparently raised hackles last
spring by openly criticizing other trustees' participation -- as a perk
of office -- in district-paid health and accident insurance. She also ran
afoul of a board-adopted policy requiring trustees to get board clearance
before commenting to the press. She was formally censured at one point
last summer -- with no notice on the meeting agenda -- for looking at district
records without permission. This step was taken after school authorities
complained to the sheriff and district attorney, who could find no violation
of law in her behavior. (Bass v. Hamilton Union, Case No. 97-CV-177).
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Mexican-American Activists Survive Libel
Suit Financed by School District
Despite $13,000 in public funds spent by four school officials to sue
them for defamation, two advocates for Latino students were protected by
the First Amendment, a court has ruled.
Riverside Superior Court Judge Stephen Cunnison dismissed the case brought
by four administrators of the Val Verde School District against Victoria
Baca and Raul Wilson February 13 after a hearing in which the defendants'
comments and printed materials were found to have been issued without actual
malice, i.e. a knowledge of falsity or awareness of probable falsity.
The offending statements ranged from an accusation that a high school
principal had covered up the cause of death of an African American student
in 1995 -- where the coroner later ruled it to be heart failure -- to a
newsletter caricature of an African American assistant superintendent.
Baca and Wilson, organizers of a group called the Mexican Political
Association, represented themselves in the action, which was brought in
the names of the individual administrators but financed with district funds.
The activists now plan to sue the district in a taxpayer's action, alleging
the illegal making of a gift of public funds to the plaintiffs.
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April
Petition Circulators Suing Major Market
for Denying Access to Patrons
A handful of Sacramento area residents are suing a major Northern California
supermarket chain for having them arrested for gathering signatures for
statewide ballot initiatives outside a store in February 1996.
Raley's, the company involved, allows petition-gathering on only two
occasions per year per store. Those who exceed the limit are subjected
to citizen's arrest for trespass. That was the fate of the six plaintiffs,
apparently paid circulators rather than personally committed activists,
who were arrested at a Raley's West Sacramento store, handcuffed and booked
for criminal trespass -- charges that were later dropped.
A Raley's spokesman told the Sacramento Bee that its policy comports
with property owners' rights. A 1979 case involving petitition gathering
at the Pruneyard Shopping Center in San Jose established that the California
Constitution can and does create some right of access to shopping malls
for speech-related activity despite the mall owner's property rights. But
Raley's says that principle has never been applied to freestanding stores
or even outdoor strip malls.
On the other hand, plaintiffs' attorney Mark Merin of Sacramento argues
that the Raley's policy as applied to petition-gathering for ballot measures
goes far beyond a reasonable protection of property rights. He calls petition
gathering "highly seasonal work" and says the two-visit-per-year
limit does not fit well with the relatively narrow time windows when state
ballot signature gathering occurs.
The suit, filed in Yolo County Superior Court, is a damages action alleging
false arrest, interference with constitutionally protected rights and intentional
infliction of emotional distress.
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Parolee under Speech-sensitive "Special
Conditions" Dodges 3rd Strike
Leslie White is no angel, and as a convicted perjurer is nobody's idea
of a poster child for freedom of expression. But his recent narrow escape
from a third strike conviction shows how costly it can be to have the scrutiny
of the state focused on what you say -- and what you may say in the future.
White, 39, first drew public attention in 1989 when he used TV's "60
Minutes" to blow the whistle on what he described as the Los Angeles
District Attorney's office's repeated and knowing use of perjured testimony
-- his own and that of other inmates in the L.A. County Jail -- to convict
cellmates.
In return for the testimony, White told CBS News, he and others had
been given leniency or shorter sentencing recommendations. A county grand
jury probe led to chastisement of the D.A.'s office on ethical grounds,
but no indictments. White alone went to prison, on two guilty pleas of
perjury. The Department of Corrections classified him as a "special
interest case," which normally refers to inmates whose crimes draw
unusual media attention.
With White, the interest was more that of the system itself than of
the press, and had more to do with what he might say. While serving his
sentence, in several magazine pieces for Buzz and California Lawyer, he
wrote about conditions at Pelican Bay State Prison, about prison treatment
of AIDS-affected inmates, and about his encounters with Charles Manson.
When he was paroled in 1993, his propensity to publish irritating material
led to the imposition of "special conditions" calculated to keep
a close guard over his public statements. To be eligible for parole he
was forced to sign an agreement that he would not, among other things,
release prisoner-related information or publish "libelous" statements.
And that meant that the Department of Corrections insisted on reviewing
manuscripts or speech outlines prior to approval.
In 1994, officials vetoed White's appearance before a graduate journalism
class at U.C. Berkeley and, until an attorney versed in prisoners' speech
rights threatened litigation, refused White's request to publish an op-ed
piece in the Los Angeles Times, critical of the three strikes law. When
White considered writing an autobiography, Corrections officials wanted
to see the draft first to decide whether to allow publication.
The effect of the "special interest" and "special conditions"
was even more drastic for White, however. As noted in recent testimony
by a parole official, it meant in effect that the ordinary procedures adopted
to protect parolees against arbitrary re-arrest were relaxed. In spring
of 1995, based on an expedited emergency warrant, he was picked up in a
parked car in the small San Bernardino County community of Trona -- unfortunately
for him, with four grams of methamphetamine between the seats.
Since then White has been struggling to get the drug evidence which
would send him into his third strike conviction suppressed, on the basis
of an illegal arrest stemming from his special First Amendment-hostile
handling. To make the case that the arrest resulted from an official policy
with political dimensions reaching to the highest levels of state government,
White was prepared to subpoena officials from the Department of Corrections
and even the Governor's office, and sought to bring into evidence related
documents which the Attorney General had persuaded the court to seal as
matters of executive privilege.
But San Bernardino Superior Court Judge Jules E. Fleuret, in granting
White's suppression motion in Victorville April 17, obviated recourse to
a First Amendment line of attack by ruling simply that the process used
to interrupt his parole (and find the illegal drug) violated the prescribed
procedure and lacked sufficient legal cause. Fleuret agreed that the special
conditions of parole were imposed to prevent White's exercise of protected
speech rights. But the arrest itself would probably have been upheld --
if it had just been played by the book.
The San Bernardino District Attorney's office subsequently dismissed
the prosecution, opting not to pursue the case to the Court of Appeal.
White told the Press-Enterprise in Riverside that the two years in jail
had, among other things, taught him to steer far clear of illegal drugs.
His challenge now is to get a job somewhere near where his son lives in
Southern California. He says he'd like to get back into a field he did
rather well in back in the 1980s -- newspaper advertising sales.
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May
Stephen "Kiss My Bill of Rights"
Dunifer to Appear at Micropower Radio Conference
Stephen Dunifer of Radio Free Berkeley is one of a handful of speakers
set to appear at a two-day Los Angeles area workshop in June dedicated
to low-power neighborhood FM radio broadcasting -- how to do it and what
to do about the Federal Communications Commission's efforts to stamp it
out.
For about $600, Dunifer says, anyone can get on the air and, like his
15-watt operation, pipe music, information, comment or whatever to those
in the immediate community, without interfering with other broadcasters.
But the FCC disputes the latter point and maintains that in any case one
doesn't just engage in free, unregulated communication on the FM band --
one has to get in line for a license like the big guys.
Since 1993 Dunifer has been in U.S. District Court in San Francisco
fighting the FCC's attempts to shut his transmitter down and force him
to pay a $20,000 fine. Dunifer views this contest as, among other things,
a First Amendment struggle. He claims that the FCC is after him because
he's vocal, leftist and subversive: he believes his freedom of speech is
being abridged and doesn't plan to go away quietly. But other micropower
broadcasters that stick to music programming don't get FCC attention, he
says. Dunifer will tell anyone that regardless what happens to him, micropower
radio is growing too fast for the government to keep up with.
His message to regulators: "Kiss my Bill of Rights." Those
interested in hearing more from or about Dunifer can attend the West Coast
Micropower Radio Conference, to be held in Carson at the Oil, Chemical
and Atomic Workers Local 1-765, 1200 East 220th St., on Friday evening,
June 20 and all day Saturday, June 21. Friday evening's panel will include
Dunifer and three other "liberation radio" advocates; Saturday's
nuts-and-bolts sessions from 10 to 4:30 will address technical, journalistic
and legal issues. Registration for both days ranges from $15 to $45, based
on ability to pay. Further information is available from Paul Griffin at
(510) 848-1455.
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Committee Passes Broadened Version of
Anti-SLAPP Bill
The Senate Judiciary Committee on May 13 passed Senator Bill Lockyer's
SB 1296, a bill designed to give more protection against SLAPPs -- non-meritorious
lawsuits aimed at chilling First Amendment activity.
The bill, which passed on a 5-2 vote (Haynes and Wright voting no),
had been amended by Lockyer the previous day to give even broader protection,
by covering not only speech or communication in general, but "any
. . . conduct in furtherance of the exercise of the constitutional right
of petition or the constitutional right of speech in connection with a
public issue or an issue of public interest."
The latter distinction is intended to disapprove a holding by the California
Court of Appeal last year to the effect that controversies tied up in civil
lawsuits, however interesting they might be to the public, were not "public
issues" about which out-of-court speech protection was necessary.
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House Votes to Seek First Amendment to
the First Amendment
The House of Representatives today voted to propose the first amendment
to the First Amendment in its more than 200-year history, one stating that
"The Congress shall have power to prohibit the physical desecration
of the flag of the United States."
House Joint Resolution 54, which passed by a margin of 310 to 114, got
20 more votes than the two thirds needed. The same vote proportion must
now be gained in the Senate, where California's Dianne Feinstein and Barbara
Boxer are on record as voting in 1995 for a flag desecration exception
to the Bill of Rights.
Senator Feinstein defended her position then as follows, in a piece
published in the San Francisco Chronicle:
OPEN FORUM -- The Flag Deserves Protection
"There seems to be a mind-set, particularly among Democrats, that
if you support a constitutional amendment to protect the American flag
you are either (a) opposed to free speech, (b) undermining the most fundamental
tenets of a free society or (c) singing like a political wind-chime to
the popular tune of the day. In my view, it is exactly this kind of straight-jacketed
thinking that has caused an increasing number of people to move away from
both major political parties.
"The fact is, there are intelligent arguments on both sides of
the flag-amendment debate. To be sure, just as one who opposes amending
the Constitution to protect the flag should not be accused of being less
than wholly American, one who supports it should not automatically be accused
of engaging in pseudo-patriotic posturing.
"I, for one, support a constitutional amendment to restore protection
to our national flag, and I do so not in deference to political expediency,
but because I believe it is the right thing to do and have for a long time.
Our national flag has come to hold a unique position in our society as
the most important and universally recognized symbol that unites us as
a nation. No other symbol crosses the political, cultural and ideological
patchwork that makes up this great nation and binds us as a whole.
"We are not creating a symbol to honor today. The evolution of
the American flag as the preeminent symbol of our national consciousness
is as old and as rich as the evolution of the country itself.
"It wasn't until the flag was fired upon at Fort Sumter -- in an
act of war -- that Americans came to look upon the flag as more than just
a symbol of their government. Our history books are replete with stories
of soldiers who were charged with the responsibility of leading their units
into battle by carrying the flag. It was an honor worth dying for -- and
many did.
"The unique status of the national flag is supported by constitutional
scholars as diverse as Chief Justices William Rehnquist and Earl Warren,
and Justices John Paul Stevens and Hugo Black. It is my belief that restoring
legal protection to our nation's flag would not infringe on our long-standing
tradition of free speech under the First Amendment.
"Until the Supreme Court's 1990 decision overturning the federal
law banning desecration of the flag, 48 of 50 states had laws preventing
the burning or defacing of our nation's flag. I do not believe one can
credibly claim that, over the course of those years, these laws prevented
anyone from speaking out, even against the United States itself, in the
strongest possible terms.
"I view the burning of our national flag as conduct -- not speech
-- and I support the constitutional amendment that will treat it as such.
I realize that, in order to avoid unduly infringing on legitimate forms
of expression, the language of this amendment must not be vague or over-inclusive.
"I will never forget the emotion I felt as a child when I saw that
famous photograph by San Francisco photographer Joe Rosenthal of the Marines
raising the American flag at Iwo Jima -- capturing in one moment in time,
the strength and determination of the entire nation.
"The courage and devotion of these brave soldiers should not be
allowed to become simple relics in our history books -- some anachronism
of times past. If we are not teaching our children today the kind of values
and respect that produced such courage and pride, then those will most
certainly die in the hearts of those soldiers. Our country can't afford
that."
Senator Boxer is not known to have spoken out on her position publicly
then or since.
For a collection of background information and ideas on this issue,
visit the Flag Burning Page at http://www.indirect.com/www/warren/flag.html.
Senators Feinstein and Boxer can be reached by e-mail at senator@feinstein.senate.gov
and senator@boxer.senate.gov respectively.
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November
Court: Picketers Properly Enjoined From
Tagging Hospital With "Rat" Image
Neither the First Amendment nor federal labor law prevented issuance
of an injunction forcing a union to stop saying, on picket signs, that
an Upland hospital was "full of rats." So ruled the U.S. Court
of Appeals for the Ninth Circuit recently in San Antonio Community Hospital
v. District Court (9/8/97).
The Southern California District Council of Carpenters had no direct
labor dispute with the hospital, but a running prevailing wage battle with
Best Interiors, a company subcontracted in the hospital's expansion project.
What the hospital sought and obtained from the federal district court
was a preliminary injunction against the union's tactic of posting three
men on the sidewalk near the construction site (and the maternity ward
entrance) with a large banner stating, in foot-high red capital letters,
"THIS MEDICAL FACILITY IS FULL OF RATS." Underneath, in red lettering
half as high, the sign said: "CARPENTERS L.U. 1506 HAS A DISPUTE WITH
_______ FOR FAILING TO PAY PREVAILING WAGES." And filling in the blank,
but in black letters only two inches high, the sign said: "Best Int."
The hospital sought the injunction on the basis of fraud and other theories,
contending that passersby were understanding the top deck of the message
literally, that it was false and known to be such, and that patients were
avoiding the premises to an extent that was causing economic damage.
The union argued that its use of the word "rats" was well-understood
by the public as a metaphor similar to "scabs," but the panel
majority agreed with the hospital that the risk was too great that the
sign would be read as a warning of rodent infestation, and upheld the injunction.
Justice Alex Kosinski, with typical pith, dissented: "It's implausible
to believe that anyone choosing what hospital to patronize, or whether
to donate money, would make such a weighty decision on the basis of a fleeting
glance at a picket sign during a drive-by. People ain't that dumb; they
would investigate and discover the truth."
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A.G. Is Asked: Must Public Libraries Keep
Internet Smut Away From Minors?
Attorney General Dan Lungren's office has announced it has been asked
for a published opinion on the question: "Are public libraries prohibited
from allowing obscene material to be viewed by minors on computer terminals
offering Internet access?"
The question, submitted by Senator Tim Leslie (R-Tahoe City), references
sections of the Penal Code (313.1 (e) and 313.3), which require video shops
to create special adults-only rooms for the display of erotic film rentals
inappropriate for minors, and which state that legitimate scientific or
educational purposes can be cited in defense against a prosecution for
providing harmful matter to minors.
Send comments to Deputy Attorney General Gregory Gonot, P.O. Box 944255,
Sacramento 94244-2550; reference Opinion No. 97-1010.
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A.G. Opines: School Districts Can Deny
Campus Access to Hollywood
Commercial film-makers have no enforceable legal right to use public
school grounds as locations for movie shooting, and school officials can
even discriminate for such purposes between movie projects based on their
review of scripts, with an eye to the probable age-related rating of the
film.
So concludes a published opinion from Attorney General Dan Lungren's
office (No. 96-809), requested by Assembly Member Valerie Brown (D-Sonoma).
The opinion finds no legislation or constitutional principle that prevents
officials from banning all movie-making on school grounds if they so choose.
It also concludes that discrimination among films based on content is permissible
to some degree, since school campuses are "nonpublic" forums
for speech rights analysis. But officials must pick and choose based on
some valid, viewpoint-neutral educational objectives.
So, for example, a school could rule out use of its grounds for movies
that, based on script review, appear headed for an "R" rating
because of sexual content-no matter what viewpoint the film expressed toward
the sex. The rationale: Students are likely to flock to films shot at their
own school, and the school has the right not to appear to be endorsing
a movie inappropriate for minors.
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