Stories:1998
Free Speech

 

These reports cover issues dealing with the right to use any number of means of expression, including activity such as public assembly and petitioning, in order to participate in self-government and to communicate one's views and visions to the world. The legal authorities supporting freedom of expression include the First Amendment, common law decisions and statutes enacted by legislatures.

1997

January

February

March

April

May

June

July

August

September

October

November

December

 

 

 

March

 

Willows Man Arrested, Injured, Restrained after Questioning School Superintendent's Pay

William Barry Duncan, a Glenn County carpenter, was arrested Friday, February 20 after commenting sarcastically on the superintendent's salary level at the prior evening's meeting of the Willows Unified School District.

His remarks had already led to his ouster from the meeting, according to the weekly newspaper, the Valley Mirror. In comments during the public presentation period, Duncan noted that WUSD Superintendent Wayne Weatherford had justified salary increases for administrators to ensure that they were paid more than those they supervised.

"My question, Sir, is -- you obviously make a whole lot more money than I do -- Is that the reason why you are reticent to respond to the public when they have concerns, because you make more money than they do?"

During a break before the board's closed session, Weatherford asked Duncan (then conversing with a trustee) to leave and told him he would be banned from further board meetings and visits to the district office.

The next morning, on a complaint from the school administration, Duncan was taken into custody at the district office by a Willows police officer, handcuffed, and concussed as he was helped into the patrol car. The basis: Penal Code Section 602.1, a criminal trespass offense involving "interfering with a lawful business" after being asked by the proprietor to leave. Duncan was taken to the police station, fingerprinted, photographed, questioned, searched, and released on his own recognizance.

The Glenn County District Attorney declined to file charges. But this week a visiting municipal court judge from Downieville issued an order restraining Duncan from approaching an administrative secretary closer than 10 feet while in the district office or at board meetings, or closer than 100 feet elsewhere.

The order, sought by the district, came after Duncan leaned over a counter at the administrative office, arguing his right to obtain a copy of a tape recording of a board meeting. His request had been denied on the basis that he already had made his own tape of the meeting.

Duncan's interest in Weatherford's salary, according to the Valley Mirror, is not a private obsession. Others have questioned the arrangement under which the superintendent's pay is tied to the teachers' contract, with him serving as the district's representative in negotiations with them. In a district of approximately 1,800 pupils, Weatherford reportedly earns about $87,000 and his wife, a teacher, about $56,000.

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Court: Local Officials Immune from Liability for Using Legislation to Punish Employee's Speech

Local officials cannot be sued in a civil rights action for damages for eliminating the job of an employee, even if the motive is to punish her for blowing the whistle on improper behavior by a co-worker.

So ruled the U.S. Supreme Court recently in Bogan v. Scott-Harris (___ U.S.___, 3/3/98), extending to city, county and other local policy-makers the absolute personal immunity already accorded federal and state officials for their legislative acts.

Janet Scott-Harris, administrator of the Fall River, Massachusetts Department of Health and Human Services (DHHS),in 1990 received a complaint that Dorothy Biltcliffe, an employee serving temporarily under her supervision, had made repeated racial and ethnic slurs about her colleagues. After Scott-Harris prepared termination charges against Biltcliffe, the latter used her political connections to press her case with several state and local officials, including Marilyn Roderick, vice president of the city council.

The council held a hearing on the charges against Biltcliffe and ultimately suspended her without pay for 60 days. Mayor Daniel Bogan later substantially reduced the punishment. While the charges against Biltcliffe were pending, Bogan prepared his budget proposal for the 1992 fiscal year. Anticipating a reduction in state aid, he proposed freezing the salaries of all city employees and eliminating 135 positions. As part of this package, Bogan called for the elimination of DHHS, of which respondent was the sole employee.

The council's Ordinance Committee, which was chaired by Roderick, approved an ordinance eliminating DHHS. The council adopted the ordinance by a vote of 6 to 2, with Roderick among those voting in favor. Bogan signed the ordinance into law.

Scott-Harris sued the city, Bogan, Roderick, and several other officials. She alleged that the elimination of her position was motivated by racial animus and a desire to retaliate against her for exercising her First Amendment rights in filing the complaint against Biltcliffe. The U.S. District Court denied Bogan' s and Roderick' s motions to dismiss on the ground of legislative immunity, and the case proceeded to trial.

The jury returned a verdict in favor of all defendants on the racial discrimination charge, but found the city, Bogan, and Roderick liable on Scott-Harris's First Amendment claim, concluding that her constitutionally protected speech was a substantial or motivating factor in the elimination of her position. The District Court again denied Bogan's and Roderick's claims of absolute legislative immunity, reasoning that "the ordinance amendment passed by the city council was an individually-targeted administrative act, rather than a neutral,legislative elimination of a position which incidentally resulted in the termination of plaintiff."

The First Circuit, U.S. Court of Appeals set aside the verdict against the city but affirmed the judgments against Council Member Roderick and Mayor Bogan. Although the court concluded that they had "absolute immunity from civil liability for damages arising out of their performance of legitimate legislative activities," it held that their challenged conduct was not "legislative." Relying on the jury's finding that "constitutionally sheltered speech was a substantial or motivating factor" underlying petitioners' conduct, the court reasoned that the conduct was administrative, rather than legislative, because Roderick and Bogan "relied on facts relating to a particular individual" [Scott-Harris] in the decisionmaking calculus.

In his opinion for the Supreme Court, Justice Clarence Thomas noted that at the time the federal law creating damages actions against public officials for civil rights violations was enacted, it was already a common law rule that legislators as such enjoyed complete immunity from personal liability for the laws they passed. Applying this rule to local government, "where the part-time citizen-legislator remains commonplace," made at least as much sense as to state and federal legislators, he said, in order to remove legal inhibitions against creating controversial policy when needed. Thomas added that citizens are already better protected from civil rights persecution by local legislators than by their state and federal counterparts, since local agencies at least can be sued for damages, whereas the latter have sovereign immunity protections, and since the electorate has a closer political grip on local than on state or federal officials.

Inherent in the notion of absolute immunity, Thomas noted, is the well-settled rule that for legislative actions, no matter how transparently ill-intentioned, motive will simply not be weighed in the balance. The budgetary action taken, in the form of an ordinance, Thomas concluded, "bore all the hallmarks of traditional legislation. The ordinance reflected a discretionary, policymaking decision implicating the budgetary priorities of the city and the services the city provides to its constituents. Moreover, it involved the termination of a position, which, unlike the hiring or firing of a particular employee, may have prospective implications that reach well beyond the particular occupant of the office."

Comment: This case is not a carte blanche for punishing protected speech by public employees. To enjoy the cover it allows, the retaliation must take the form of an ordinance or other legislation -- a rule of general application -- rather than, for example, an employee-specific disciplinary or termination move. It obviously also helped these defendants that the action taken was in the context of a genuine budget crunch in which many other positions were on the block, and all employees faced a pay cut.

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A.G.: Apartment Complexes, Mobilehome Parks, Condos Can Bar Uninvited Political Canvassers

The owner of a mobilehome park or apartment complex or the homeowners' association of a condominium project may prohibit uninvited, nonresident political candidates from distributing their campaign materials door-to-door.

So concludes a published opinion (No. 97-1005) issued February 13 by Attorney General Dan Lungren.

Written by Deputy Attorney General Gregory Gonot in response to a query from Assembly Member Dick Ackerman (R-Fullerton), the opinion notes that such premises are private property where freedom of speech by strangers is a function of the owner's tolerance rather than First Amendment rights.

The California Supreme Court has held that large shopping malls, where the public is invited en masse to stroll through privately owned virtual Main Streets, cannot simply ban First Amendment activities such as petition signature gathering and leafleting. But the circumstances and the law are different with respect to smaller retail, professional and residential establishments.

At the same time, the opinion notes that residents may have their own rights to invite speakers and other message-bearers. The law protecting mobilehome park tenants, for example, spells out such rights explicitly.

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April

 

Tuned Out: Award-winning Public Issues Show Ousted From L.A. Cable Time Slot

What may be the best public affairs forum on public access cable in Southern California has been yanked from its schedule by the quasi-governmental gatekeeper for the Los Angeles system.

The Los Angeles Cable Television Access Corporation (LACTAC), a nonprofit entity organized to oversee public access cable TV programming on the L.A. Channel -- "Los Angeles' Neighborhood Network," has told Leslie Dutton, producer of "Full Disclosure," that her long-running, five-day-a-week (or "strip show" in ACTAC-ese) 6:30 pm. time slot has been given to another program, "Anita's Point of View."

Dutton, whose 30-minute talk show has been a consistent award-winner in recent years, tackling hot political and social subjects and winning big-name guests, was informed in a February 27 letter that LACTAC "has received a program contract from another access producer for the March 30 Spring Season during the time your program is being currently cablecast." By LACTAC rules, this apparently meant that "Full Disclosure" could be summarily bumped.

But on March 3 Dutton informed LACTAC Executive Director Sharon Mooney that the competing application or "contract" simply didn't exist: "I spoke with another cable access producer as late as this morning, who told me she was offered the 6:30 p.m. strip show time slot by your staff this morning. This producer had insisted on the 6 p.m. time slot even though your staff continued to push the 6:30 p.m. time slot, which is the time where our program is airing.

This is hardly a first-come first-served basis, when we were prevented from submitting a contract by your arbitrary rules."

CFAC, contacted about this problem, placed a call Friday morning (April 3) to LACTAC's new executive director, Dyke H. Redmond, asking for a copy of the competing contract application referred to in the February 27 letter.

Dutton is not sure how to explain what appears to be an extraordinary move to shift her out of the premium schedule. It would not appear to be for lack of a good audience or a public interest emphasis. The Full Disclosure Network, sponsored by the nonprofit Citizens Protection Alliance, has Dutton's program running on cable access and city cable TV stations reaching an estimated 150 or so communities in southern California. Topics since 1992 have tended to follow headlines in the region, including such issues as bilingual education, media ethics, immigration, automotive air pollution and tax policy. Guests have included state and local politicians, issue activists, police officials and authors.

In a two-part series aired about a year ago, the show featured several CFAC members serving on city councils or school boards in the area, who shared their common experience of being isolated, gagged and generally persecuted by their majority peers for such offenses as asking to see their own agencies' public records or bringing up uncomfortable topics at public meetings.

In 1995 and 1996 the program received the Programming Excellence Award from the South Bay Producers Guild. Last year Dutton and her sponsors were handed Gold and Silver Angel statuettes by Steve Allen, presented in the annual award ceremony of the Excellence in Media organization, which singles out those "who have worked tirelessly to make this world a better place through communication" (previous winners included TV's "Prime Time Live" and "Touched by an Angel").

On Thursday Dutton appeared at a meeting of the board of directors of LACTAC to plead her case, was given three minutes to speak, and was told the matter was under review by the city's Information Technology Agency (ITA). On March 31, the LACTAC official who had first told her of the competing bid for her time slot sent her a letter warning that "a major and minor offense has been charged against you" under its policies and procedures -- for jumping out of channels to complain to ITA and the mayor's office.

Comment: Dutton's plight now is that after being ousted from a daily schedule for the next quarter, she has several "offenses" in her file that may make it all the tougher to get back on track in the summer season or later -- unless it's shown that, as she suspects, her replacement was recruited by LACTAC.

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May

Court: Developer's Suit Against Disloyal Consultant not a SLAPP

A SLAPP -- "Strategic Litigation Against Public Participation" -- is a meritless lawsuit filed to stifle speech on matters of public concern, and by that standard, even broadly interpreted, a mall developer's litigation against a consultant who may have gone over to the competition is not a SLAPP.

So concluded the California Court of Appeal Wednesday (April 29) in Los Carneros Community Associates, Inc. v. Penfield & Smith, Inc. (2d Dist. Case No. B105545).

The plaintiff, (Los Carneros), and one of the co-defendants, Camino Real LLC (Camino), are developers who at different times hired co-defendant Penfield & Smith Engineers, Inc. (Penfield), a civil engineering firm, to design and promote their competing projects before government agencies.

In 1994 both developers were backing "big box" mall projects on their respective properties in Goleta, and Penfield was working for each on its project. Camino's project manager believed that a Penfield engineer had publicly attacked the Camino project, and told Penfield's executives that the firm could not serve two masters. Penfield opted to stick with Carneros, but later sent a letter to Camino hoping to reestablish a relationship, and in doing so assured Camino that the engineer first complained about (who worked on the Carneros project) would confine his public statements to technical matters.

But then Los Carneros terminated its contract with Penfield because it believed that Camino secretly rehired Penfield on condition that Penfield not publicly disparage Camino's competing project.  Los Carneros filed suit against Penfield, Camino and others for such things as intentional interference with contractual relations and prospective business advantage, breach of contract, and declaratory and injunctive relief.  The Penfield and Camino defendants each filed SLAPP motions to strike the Los Carneros complaint, pursuant to section Code of Civil Procedure Section 425.16.  The trial court granted the motions and dismissed the suit against the defendants.

In reversing, the Second District Court of Appeal conceded that under both case law and recent legislative adjustments, the SLAPP defense had been liberally applied to a wide variety of litigation concerning public speech on public matters. But this case, it concluded, was simply not about matters of public concern.

"Here we have a private contract dispute," summarized Justice Gilbert for the court. "To apply the statute here would give immunity to parties contracting to perform services concerning matters before government agencies. A party could breach its contract with impunity and raise the SLAPP shield to prevent recovery for damages. That is not what the Legislature had in mind when it enacted section 425.16."

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Court: City Officials Personally Liable for Censorship of Bus Shelter Signs

If a labor union can prove that city officials pressured a contract bus shelter operator to get rid of union signs or face loss of the contract, the officials can be held personally liable in damages in a civil rights lawsuit.

So ruled the U.S. Ninth Circuit Court of Appeals in its opinion issued Wednesday (May 6) in Metro Display Advertising, v. City of Victorville, (Case No. 96-55317).

While none of the more controversial facts have been yet established (the defendants sought appellate review early in the case on the issue of their personal immunity), the allegations are as follows.

Metro Display contracted with Victorville for permission to build 38 bus shelters, in exchange for which it could sell advertising in the sign spaces (two in each shelter). Its contract with the city barred indecent and vulgar ads, and also those that would compete with a business within a block of the shelter. The contract was terminable at will but had been renewed automatically for several years.

When an advertising agency bought space for a union protesting labor practices in a local food store chain, store executives complained to the city council. Mayor Terry Caldwell and Council Member Felix Diaz said, in open session, that they could not simply order the ads removed, due to "First Amendment problems," but if Metro could not be persuaded to terminate them, they would see to it that its contract was not renewed. The director of public works soon passed that message to Metro. In the court's words, "if Metro did not remove the union ads, the city would find a pretext to cancel the contract."

Metro asked the union to allow it to remove their ads, but the union threatened suit unless at least some were left in place. But the public works director was adamant: they would all have to go, promptly. Suddenly, Metro started getting an unprecedented wave of maintenance complaints from the city, with warnings about contract termination.

Metro sued for a court declaration that this pressure violated the First Amendment, for an injunction to stop it, and for damages from the city, Caldwell, Diaz and the public works director. The three officials moved for dismissal against them, arguing qualified immunity. The district court denied their motion, and they went to the Ninth Circuit.

In that forum their argument was twofold. First, prior U.S. Supreme Court cases had established that, for example, a municipal bus system could ban all political ads from its placards, and that in a governmentally owned transportation facility such as an airport, the official proprietor had more leeway to pick and choose among permitted expression -- soliciting donations could be barred even if leafleting could not.

Second, the officials contended that they enjoyed immunity because they could reasonably rely on these cases as settled law in support of their actions.

The Ninth Circuit disagreed, and held that if Metro could prove its case, the defendants were not immune as a matter of law. First, the cases cited involved barring all communications of a certain type, irrespective of the particular message or messenger, whereas Victorville was reacting to a specific topic: labor grievances. Second, the settled law was that it was "axiomatic" that the government may not regulate speech on a message-by-message basis, and that the U.S. Supreme Court's use of this word referred to "a self-evident or universally recognized truth" -- something any reasonable public official could be expected to be aware of.

Recalling the elected officials' reference, at the initial council meeting, to "First Amendment problems," the Ninth Circuit stated:

"The First Amendment is not a problem. It is a solution to a problem. The problem is government officials trying to abridge the liberty of private individuals to say what they like. (The cases cited in the officials' defense) do not establish public transportation facilities as liberty-free zones; they provide a nuanced arrangement of regulatory discretion which can in no event empower the government to engage in viewpoint discrimination among private speakers."

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Court: Injunction Violated Immigration Watchdog Group's Speech Rights

When a government transportation facility becomes annoyed with the heckling of one public interest advocacy group by another on its premises, it may not simply restrict the speech activities of both.

That is the lesson of a May 1 decision of the California Fourth District Court of Appeal in San Diego Unified Port District v. U.S. Citizens Patrol, Case No. 98 C.D.O.S. 3518.

In May 1996, U.S. Citizens Patrol, a private group concerned with illegal immigration in San Diego County, engaged in a kind of "neighborhood watch" effort at San Diego International Airport. They concentrated on policing airlines' observance of a Federal Aviation Administration requirement that passengers show photo identification before being allowed to board. While immigration concerns are not the principal rationale for the photo ID rule, Citizens Patrol wanted the airlines to comply strictly to prevent undocumented immigrants from using the airport as a point of departure for the U.S. interior.

Citizens Patrol members confined their methods to speech. Wearing blue t-shirts with "U.S. Citizens Patrol" on the back and a small emblem on the front pocket, they walked through the airport and conversed with airline employees. But this routine angered another group, the Chicano Federation, who after about three weeks called a press conference in the terminal and issued a statement vowing to document and film the patrols and stop its activities "by any means necessary."

A patrol member walked up to the group at the press conference, was spotted, and was pursued through the terminal by a shouting, chanting crowd of federation supporters. Asked by harbor police officers to leave the terminal to defuse the confrontation, he complied, but was followed by the crowd until a car picked him up outside. The following day the port district, proprietor of the airport, sought and obtained a temporary restraining order, and later a preliminary injunction.

The latter prohibited members of both the Federation and the Citizens Patrol from:

• entering the airport for any purpose other than meeting or boarding flights;
• asking to see passengers' photo ID or performing "other security functions";
• engaging in threatening conduct on airport grounds, including shouting or chanting;
• knowingly coming closer than 100 yards to a member of the other group on airport grounds; and
• doing anything else at the airport except at widely separated sites designated on a map for their respective groups.

Citizens Patrol challenged the first and the last of these prohibitions, and the Fourth District held them to be in violation of its First Amendment rights. First, the district overreacted by allowing the disruptive reaction of one group to be the premise for gagging its peaceable quarry. As the court put it:

"The preliminary injunction attempts to prevent future disruptions by casting too fine a net. Citizens Patrol, engaging in lawful and passive conduct, was scooped up with the Federation, some of whose supporters aggressively confronted a Citizens Patrol member. Because the injunction subjects Citizens Patrol's right to engage in protected speech to the censorship of a group who disagrees with its content, it constitutes an impermissible 'heckler's veto' of Citizens Patrol's protected speech."

Second, the order would have been overbroad even if otherwise justified:

"The significant governmental interest served by the District's bid for injunctive relief is the prevention of further confrontations between the Citizens Patrol and the Federation that could obstruct ingress to and egress from the airport and pose a security risk and risk of injury. This interest is fully served by the three paragraphs of the injunction not challenged in this appeal. . . The challenged portions of the injunction unnecessarily burden Citizens Patrol' s speech and expression inside the airport without significantly furthering the governmental interest served by the unchallenged portions.

"Paragraph 1a limits the activities of Citizens Patrol members inside the airport to typical airport activities . . . This means a Citizens Patrol member would violate the injunction by engaging in virtually any speech in the airport unrelated to transacting business with an airline or other airport tenant. For example, a member waiting for a departing flight would violate paragraph 1a by engaging in a conversation about illegal immigration, or any other political issue, with another waiting passenger. A member of the Citizens Patrol would certainly violate paragraph 1a by handing out leaflets expressing the views of Citizens Patrol at the airport, an activity the United States Supreme Court has specifically held is protected by the First Amendment. . .

"Paragraph 1e (l)ike paragraph 1a . . . on its face bars members from engaging in any speech or expressive activities inside the airport terminals except those related to flight arrival and departure and the business of airport tenants. Such a comprehensive ban on activities protected by the First Amendment and article I, section 2, subdivision (a) of the California Constitution imposes a far greater burden on the Citizens Patrol's right to free speech than is necessary to serve the District's legitimate interest in preventing airport confrontations . . . "

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Court: Candidate has no First Amendment Right to Join Public TV Debate

The First Amendment rights of an Arkansas candidate for the House of Representatives were not violated when he was excluded from participating in a candidates' debate broadcast by a state-run public television network.

So ruled the U.S. Supreme Court this week (May 18) in Arkansas Educational Television Commission v. Forbes, Case No. 96-779.

The case involves the bid of Ralph Forbes, a frequent but so far unsuccessful contender for public offices in Arkansas, to be included in a debate panel arranged for the runup to the November 1992 elections.

The Arkansas Educational Television Commission (AETC), a state agency which owns and operates five public TV stations, had consulted with the Associated Press' Arkansas bureau chief to organize a debate format allowing 53 minutes of questions and answers for each of five one-hour debate broadcasts. For the program on contenders for the Arkansas Third Congressional District, the organizers responded to the time constraints by limiting invitations to the Republican and Democratic candidates.

Forbes, the only independent candidate for the Third District seat, had gotten on the ballot by obtaining 2,000 signatures, but was turned down by the AETC. Its executive director characterized as "a bona fide journalistic judgment" its decision to exclude him while inviting all Democrat and Republican party candidates in all four Arkansas districts, despite the fact that in two of them one of the major party contenders was viewed as very unlikely to win.

Four days before the scheduled debate, Forbes sought to block it with an injunction, but was denied relief in the U.S. District Court and a three-judge panel of the Eighth Circuit Court of Appeals. Later in a continuation of the proceedings the Eighth Circuit held that, although the discrimination against Forbes was one typically exercised as a matter of journalistic judgment -- and a judgment protected under the First Amendment at that -- AETC as a government entity sponsoring a debate for political candidates had created a public forum for free speech purposes, from which it could not exile a legally qualified candidate on the basis of its own estimate of his political "viability."

But the U.S. Supreme Court, by a 6-3 majority, disagreed that a public forum had been created, and found the exclusion constitutionally permitted. The majority opinion, by Justice Kennedy, classified governmentally arranged candidates' debates as "nonpublic forums" -- a term of art referring to highly specialized occasions created for particular types of speech in which the governmental organizer from the outset insists on selectivity. The situation used in analogy was an in-house charitable contribution drive -- the Combined Federal Campaign -- appealing to government workers, to which only certain causes (charitable, not political) would be eligible participants.

The Eighth Circuit's reading of speech forum precedents, Kennedy stated, not only was incorrect but "would result in less speech, not more. In ruling that the debate was a public forum open to all ballot-qualified candidates . . . the Court of Appeals would place a severe burden upon public broadcasters who air candidates' views. In each of the 1988, 1992, and 1996 Presidential elections, for example, no fewer than 22 candidates appeared on the ballot in at least one State . . . In the 1996 congressional elections, it was common for 6 to 11 candidates to qualify for the ballot for a particular seat . . . In the 1993 New Jersey gubernatorial election, to illustrate further, sample ballot mailings included the written statements of 19 candidates . . . On logistical grounds alone, a public television editor might, with reason, decide that the inclusion of all ballot-qualified candidates would 'actually undermine the educational value and quality of debates.' . . . Were it faced with the prospect of cacophony, on the one hand, and First Amendment liability, on the other, a public television broadcaster might choose not to air candidates' views at all." (Citations omitted.)

Dissenting Justice Stevens, joined by Souter and Ginsburg, agreed that AETC could exclude candidates to ration time, but stressed that such discrimination must, under the First Amendment, be based on objective criteria established and publicized in advance, not on some unexplained staff judgment never fully articulated until legally challenged.

Comment: The case involves Ralph, not Steve, Forbes -- a "perennial" candidate rather than a self-financed overnight "viable" contender. Its implication is that the Ralphs, whether perennial or first-time bidders for public office, will simply have to ramp up to a viability adequate to a governmentally-organized forum by acquiring visibility, at the cost of either their own funds if they are wealthy, or fundraising with all its burdens, distractions and temptations to corruption if they are not.

Like financial lenders, of whom it's said that the only borrower they're prepared to help is one who can prove he doesn't need the loan, the court in AETC seems to be saying that the government can reasonably impose a selectivity on which candidates it showcases based on their previously purchased exposure.

The court excuses this "marketplace of ideas" literalism by casting the AETC debates as an exercise in journalism, and raising the bogeyman of chaos were the platform to be more inclusive. Two responses: Whatever a state-owned television network does, however neutrally it strains to do it, it is not journalism as our system understands it, and the conflation dangerously suspends the tension between governmental presentation and news reporting. And the "cacophony" of just once allowing the public to see every candidate cheek by jowel for an hour or two in a confrontation with one another and a panel of interrogators is precisely the kind of risk that, in a minimal gesture to democracy, a publicly funded debate should be willing to run. Not to worry; the victory would still go to someone with bought-and-paid-for "viability." But meanwhile others with not that much hope of winning might express an idea that could affect the agenda, whoever prevailed. Or maybe -- just maybe -- some new face and voice might bestir some in the broadcast audience to provide the funding to edge that dark horse closer to the front of the pack.

In any event, AETC can be viewed not so much as a decision saying much new about either governmental forums or journalistic decision-making, as instead a further plutocratizing of the path to elective office begun in Buckley v. Valeo. That case said the First Amendment prevents a cap on how much money a wealthy person can spend to get elected. This case says the First Amendment permits the government to exclude from its officially presented electoral debates any candidate with insufficient prior exposure to be taken seriously by the organizers. That only money -- great quantities of money -- can buy that exposure is a fact of life which, since the parties never raised it, the court was never embarrassed to have to deal with.

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June

No First Amendment Protection for Radio Free Berkeley; Station Shut Down

Within weeks of getting local government's stamp of respectability, Free Radio Berkeley has been ordered off the air by the federal government.

The 50-watt transmitter of "pirate" micropower broadcaster Stephen Dunifer was shut down June 17 after a federal district judge in Oakland ruled against the station and for the Federal Communications Commission.

Dunifer has been locked in a court battle with the FCC for years, hoping to show that the agency's insistence on an expensive license for radio transmitters operating in the interstices of commercial broadcasting frequencies violates the First Amendment. But Judge Claudia Wilken, after more than a year of considering the constitutional arguments, concluded that Dunifer was not positioned to make them because he had not in fact applied for either a license or a waiver and been turned down.

The ruling came just as Dunifer was gaining municipal recognition. On May 29 he had won, by unanimous vote, a use permit to operate his station from the Berkeley Zoning Adjustments Board, despite the reported submission of a 98-page statement of opposition from the California Broadcasters Association.

Dunifer, a winner of the California First Amendment Coalition's Beacon Award as a Pathfinder in free speech efforts, was quoted in the San Francisco Recorder that his immediate priority was to work in the national micropower movement to get the rules changed -- allowing small radio stations to get permits for operation in frequencies and locations where doing so would cause no interference with commercial and governmental signals.

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Court: High-Ranking State Official Has No 'Insubordination' Right

A senior policy assistant to a state insurance commissioner has no First Amendment protection in opposing her boss's commitment to high-profile "public outreach" -- even if she believes that emphasis to be a waste of resources at best and illegal politicking at worst.

That is the effect of a June 2 ruling by the U.S. Court of Appeals for the Ninth Circuit, denying a terminated employee's bid for civil damages against her former superior, Washington State Insurance Commissioner Deborah Senn.

In Moran v. Washington (Senn), Case No. 96-36129), the court held that Nickie Moran, the former Deputy Commissioner for Consumer Advocacy, had not overcome Senn's qualified immunity for official action, and thus could not recover damages for retaliatory dismissal in violation of Moran's First Amendment rights.

The crux of the matter was that Senn, elected after promising voters an energetic program of consumer outreach and education, embarked on such a priority effort in that regard that Moran, chief of the division charged with carrying out those tasks, became convinced that the emphasis was wrongheaded, political and perhaps even illegally so. She confronted Senn with her convictions, stressing that the use of so many resources was detracting from what she, Moran, had always viewed as the real thrust of her bailiwick -- helping consumers on a retail basis with their complaints against agents and carriers.

Moran repeatedly made these points, and even made it plain she thought that the high-visibility program of appearances, speeches and media contacts was an illegal use of state resources to build a wider political presence for Senn's career.

After about 18 months of this tension Senn, who had hired Moran, fired her. Moran sued, seeking damages both from the state and from Senn personally. The district court ruled that that Senn would enjoy no immunity since Moran's speech was such that "a reasonable official would understand that termination for exercise of that right would be unlawful."

On the other hand, the district court also ruled that outreach and education were a legitimate part of Senn's duties, and that her means of fulfilling that mission were not, as a matter of law, improper use of public resources for political purposes. It denied, however, her motion for summary judgment.

On appeal, the Ninth Circuit noted that a public officer loses immunity for official conduct contrary to the First Amendment only when the law is so settled and plain that any official under the circumstances would be reasonably expected to acknowledge it. That may not be difficult to discern in some cases -- a police officer beating a citizen in reaction to his criticism of the department, for example -- but is far more elusive when it comes public employees terminated for vocally resisting their own agencies' policies.

The standards for public employee speech protection are clear enough in the abstract. The speech must involve a matter of public concern, not a conventional employee grievance. But even speech on public concern must, for a public employee, be balanced against the governmental employer's need to avoid actual or even predictable disruption of the agency's mission. Whether the employee is high-ranking and thus expected to show some special executive commitment to established policy, and whether the speech is accurate, are other factors weighed in the balance.

This mix depends so much on circumstantial variables, the court concluded, that public agency officials will almost always, even if behaving wrongfully in the final analysis, be protected from personal damages liability. As the court put it, "Because the underlying determination (of) whether a public employee's speech is constitutionally protected turns on a context-intensive, case-by-case balancing analysis, the law regarding such claims will rarely, if ever, be sufficiently 'clearly established' to preclude qualified immunity . . ."

The court then applied the employee free speech balancing to determine whether Senn (who by the standard above would be immune even if wrong) was actually innocent of unconstitutional conduct. The Ninth Circuit concluded that Moran (who was a high policy official) engaged in expression (which was inaccurate as to the political impropriety charge) such that her execution of official duties was seriously compromised. While her speech involved matters of public concern, therefore, her right to speak as she did was outweighed by her employer's legitimate right to expect her to "get with the program."

"Sometimes, on the merits, the question may be a close one," stated Judge Diarmuid F. O'Scannlain for the court.

"Not so today. We believe that on these facts, the (employee freedom/employer efficiency) balance tips demonstrably in favor of Commissioner Senn. Indeed, we are most doubtful that the Constitution ever protects the right of a public employee in a policymaking position to criticize her employer's policies or programs simply because she does not share her employer's legislative or administrative vision . . . The First Amendment simply does not constitutionalize insubordination."

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July

Free Radio Berkeley Broadcaster Asking Court's Reconsideration

Attorneys for Stephen Dunifer, whose unlicensed micropower radio station in Berkeley was ordered shut down two weeks ago by a federal judge, are seeking reconsideration.

A hearing has been set before U.S. District Judge Claudia Wilken on August 7 in the federal courthouse in Oakland, on a motion for alteration or amendment of her order to cease broadcasting.

Judge Wilken recently concluded that Dunifer's First Amendment attack on the F.C.C.'s prohibition on low-power (less than 100 watt) radio broadcasting lacked foundation, since he had never applied for licensing and been turned down. Dunifer's lawyers will now argue that an application was excused because under the circumstances it would have plainly been an exercise in futility.

"As the result of this Court's Order," they state in the notice of motion, "all those who have awaited the opportunity to have a federal court resolve on the merits the constitutional issues surrounding access to the airwaves have been told that they must refrain from broadcasting for the months and years that it will take them to apply to the F.C.C. for waivers, and to receive the certain denials that will be issued. That is a cruel hoax upon thousands of Americans who want nothing more than the right to speak over their own airwaves, and is not mandated by the law."

Dunifer "constructively" sought a waiver of licensing years ago, before going on the air, they argue, in his earliest communications with the F.C.C., but to no avail. Forcing him and others to undergo the elaborate and expensive process of a formal application when the result was certain rejection, they say, would be to exalt form over substance.

"The microradio stations that this Court's order is affecting are virtually the only sources broadcasting local city council meetings, local high school athletic events, local church and community meetings, and local cultural events in literally hundreds of towns and communities throughout this nation. To tell those people that they must shut down their transmitters and spend over 1-1/2 years of time and untold thousands of dollars to ask the F.C.C. to waive its unconstitutional regulations is unwarranted, given the fact that the F.C.C.'s denial is a foregone conclusion."

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Appeals Court Judge Facing Ethics Probe for Outspoken Dissent

A judge of the California Court of Appeal has been charged with unethical conduct for his sharp criticism of, and refusal to follow, a controversial state supreme court precedent.

The Commission on Judicial Performance, an arm of the state's court system, announced July 6 that Justice J. Anthony Kline of the First District Court of Appeal in San Francisco was the subject of "formal proceedings" concerning possible violations of the Code of Judicial Ethics canons 2A and 3B(2).

Canon 2A, titled "Promoting Public Confidence," states: "A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

Canon 3B(2) states: "A judge shall be faithful to the law regardless of partisan interests, public clamor, or fear of criticism and shall maintain professional competence in the law."

The commission informed Kline that the charges stem from his refusal to join the two-judge majority in a three-member panel that granted a motion for stipulated reversal of a trial court judgment and dismissal of appeal in Morrow v. Hood Communications, 59 Cal.App.4th 924, decided last December 2. The accusation noted that Kline, in his dissent, refused to be bound by precedent "despite acknowledging that the decision of the California Supreme Court in Neary v. Regents of the University of California . . . required that the motion be granted."

The stipulated reversal procedure, as approved by the supreme court in Neary (3 Cal.4th 273 [1992]), presumes that in the absence of special circumstances, civil litigants after trial can agree to have an appellate court nullify the trial court judgment, even when it is entirely free from error. Error, in fact, is beside the point. Removing an embarrassing or otherwise undesirable adjudication from the public record is the objective.

A losing defendant, for example, may decide there is little to be gained from an appeal on the merits -- since the trial court judgment followed well-established law. But it may be well worthwhile paying the plaintiff not only the amount claimed but perhaps something more to persuade him to join in a motion to reverse the judgment and remove it from the books.

In the Neary case, for example, three veterinary experts found to have committed libel in writing a false and damaging report on cattle-raising practices sought to have the judgment removed as a blot on their professional reputations.

This procedure, Kline said in his dissent in Morrow, is "a doctrine employed in no other jurisdiction in this nation and unanimously repudiated by the Supreme Court of the United States," and "destructive of judicial institutions." He warned against creating a "public perception that civil judgments are commodities that may be bought and sold . . . Should this occur, it is the rule of law that would be endangered, not just the reputation of the courts of this State."

Court observers queried by the San Francisco Recorder on the matter were uniformly surprised and troubled by the move against Kline, speculating that it was his very forthrightness in rejecting the Neary doctrine and pledging not to follow it which led to the disciplinary action. Kline explained in a letter to the commission in March that he felt it necessary to take a strong position in hope that the supreme court would use the case to revisit and abandon its blessing of stipulated reversals (his two colleagues who voted to grant the petition stated they shared this hope as well).

One court-watcher noted that a lower court's sharp disapproval was likely to be the only means of getting the supreme court to revisit Neary's ruling, since by its very nature stipulated reversal involves the consent of both parties and leaves no litigant to raise the issue on appeal.

Comment: This development is significant to those who share CFAC's concerns for three reasons. First, it arises from an extraordinary crossover case, involving both the law of libel and the California Public Records Act (CPRA). Plaintiff Neary was a cattle rancher who sued U.C. for defamation when it released a report suggesting he was negligent in managing his livestock. The university's defense was that under the CPRA there were no conclusive exemptions allowing it to withhold the report, and therefore its release was compelled by law and immune from liability. But the court of appeal noted that communications compelled by law in California are not necessarily privileged from defamation liability, and in any event it was not clear that release of the report was truly compelled. The court pointed out that the university could have withheld it under the "catchall" exemption based on the balance of public interests. Interestingly, public agencies in the 12 years since have not used Neary to justify withholding documents whose release might injure reputations.

The second point of interest is that stipulated reversals are in at least some cases alien to freedom of information principles, especially when public agencies are parties. As explained by Justice Kennard in her dissent in Neary:

"(T)he judgment that Neary obtained is undoubtedly a matter of significant and legitimate public interest. The defendants in this lawsuit are a public university and three professionals who are its employees. The subject of the dispute is a report written by these professionals in the course of their employment for the university and published as a public record. Both the employees' salaries and the publication of the report were funded with public tax moneys. The jury determined that the report contained false statements and that the report's authors had made these statements with malice. It further concluded that these false statements had damaged the reputation of plaintiff, a locally prominent cattle rancher. Because the judgment embodies the jury's carefully considered assessment of the performance of a public institution in one not insignificant incident, it should not be set aside merely because some of the defendants insist on the judgment's destruction as a condition of settlement."

The final point deals with the real thrust of what is being done by the Commission on Judicial Performance -- a body so secretive, despite recent sunshine reforms embodied in a constitutional amendment, that it refuses to disclose the votes of its members. The Commission is punishing outspoken speech as unethical conduct.

The supreme court -- particularly in an election year -- needs to have its vision of the judiciary examined closely and prominently by those most attentive to its record. And in any season, judges who call its judgment into question should be given every protection in doing so, at least within the confines of the decisional record. In all of government, only the judicial branch institutionalizes dissent as a formal component of its process, in part because today's minority view may, if preserved, ultimately be persuasive enough to become tomorrow's orthodoxy. Is there now to be an ethical failing -- a new species of judicial impropriety -- known as Excessive Dissent?

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September

 

Gadfly Faces Year and a Half in Jail for 'Disruptive' Meeting Speech

A San Bernardino man faces a year and a half behind bars for failing to curb his tongue in addressing officials at public meetings.

On August 18 Jeff Wright, 40, was sent back to jail for violating probation from a 1996 conviction for disrupting a public meeting. Wright's counsel is taking the conviction to a superior court appellate division this month, but in the meantime the activist is in jail, facing up to 18 months incarceration and another 18 months probation.

Wright is no novice to official sanctions. By the calculation of a fellow activist, he was ejected from, cited for disrupting, or otherwise censured while addressing no fewer than 59 local public meetings over a 34-month span ending in 1996. He is known for having views on a very wide array of issues, and can be argumentative in pursuing them. But he has never been known to be violent or threatening.

The typical bases for his censures have been talking off the topic or over the usual three-minute limit. But Wright says that his points are indeed relevant to agenda items - if he were not cut off before establishing the connection - and that sometimes the public body's very lack of clarity about the rules, or interruption of his statements, causes the problem.

As the best illustration of this point, Wright's final-straw parole violation came when, at a June 1 meeting of the San Bernardino City Council, he was speaking on the first of three related agenda items.

After addressing the first, he was informed by Mayor Judith Valles that his three minutes were up and he should sit down. The council's rules allow each speaker up to three minutes' comment on each item, for a total of 12 minutes per meeting.

Wright, instead of sitting down, questioned why he could not use two more minutes for the other items, but was told that because a council member had moved to take action on all three at once, they would be treated as one item and the comment time collapsed correspondingly. Wright and Valles discussed this for several more minutes before she recessed the meeting and had a private discussion with him. He stayed at the meeting, addressed several other matters, and there was no further attention to the rule confusion.

But his colloquy with Valles cost Wright his freedom. Weeks later he learned he would be brought back before the court on a probation violation. Superior Court Judge John P. Wade watched a videotape of the June 1 exchange, chastised Wright for exploiting the patience of public officials and confusing it with "weakness," and sentenced him to 18 months confinement.

Comment: One test of the true civilization of a community, many like to think, is how it accommodates its eccentrics. If that is a fair standard, and if it can be assumed that the Jeff Wrights are fairly well distributed over the state, it says something about the poverty of imagination, if nothing else, that leads San Bernardino officials to this apparently unprecedented pass. "What other alternative do we have?" asked Deputy District Attorney Beth Houser in defending the decision to lower the boom on Wright this summer. While the question was almost certainly rhetorical, one can think of a number of options to criminal prosecution.

For example, the use of two speakers' podiums, with the presiding officer alternating microphone power between them, would allow that official simply to switch from a speaker not playing by the rules to the next waiting speaker. If the unplugged person then behaved truly disruptively, he or she could be ejected altogether. But there need be no bottleneck. And after all, the strongest case against the Jeff Wrights is that they subtract from the time and rights of others. If the meeting room's facilities and procedures precluded such blockage, there would far less justifiable talk of "disruption."

This all assumes that Wright is wrong. His supporters suggest, however, that there is a pattern of exclusions, including an earlier four-month jail sentence, which selectively took him out of the picture when certain sensitive proposals were before this or that public forum. In one case, they say, he was kept in jail for more than a week on a matter of mistaken identity, when responsible officials knew he had been erroneously seized by sheriff's deputies looking for someone who had uttered a threat to a county officer.

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Court: Mayor Immune From Personal Liability in Ejecting Speaker

A mayor who cuts off a citizen speaker in a city council meeting - or even has him removed from the meeting room in a preemptive strike - is absolutely immune from personal liability in doing so, however illegal, unconstitutional and malicious the interference may be.

So ruled a U.S. District Court judge in Los Angeles August 17 in Boyle v. City of Redondo Beach, case number 96-1126 MRP.

Judge Mariana R. Pfaelzer concluded that the immunity for legislative acts enjoyed by government officials (recently explicitly extended to the local level by the U.S. Supreme Court) applies to the preservation-of-order conduct of a presiding officer in a local government meeting.

Public comments at local meetings are part of the legislative process for which legislative immunity is intended, she reasoned, even though they may not be related to specific agenda items, since they might and sometimes do result in legislation.

Christopher Boyle, an accountant whose appearances before the Redondo Beach City Council progressively irritated then Mayor William Parton, alleges in his civil rights suit against the city and Parton that the latter cut him off from speaking to, or actually ejected him from meetings of, the council on five separate occasions. In one instance Boyle alleges he was ordered out of the room as soon as the meeting began, and not allowed to return.

In what he thinks of as the most hurtful episode, Boyle says he was asking the council to reconsider its decision not to observe Dr. Martin Luther King's birthday as a city holiday, despite the general practice of doing so in surrounding communities.

"For those of you who can't seem to get beyond the color of his skin " Boyle said, and Parton allegedly cut the microphone off, stating, "That's it - you're outta here." He then, says Boyle, called him a "racist pig" and a "rat." Both men are white.

The Brown Act expressly provides that citizens appearing to address local bodies cannot be censored for their criticism of public officials, and other federal court judges in recent cases have given this protection First Amendment status and extended it to attacks on agency staff members.

Pfaelzer's ruling does not preclude her from later finding that the actions taken against Boyle were illegal and unconstitutional, but it does rule out Boyle's damages claim against Parton for violating his civil rights.

Comment: The judge need not have gone this far. Halfway responsible local government chairpersons are probably adequately protected by a rule of qualified immunity. That lower standard of protection is still quite robust and applies to police officers on the job, for example. Qualified immunity applies unless it can be shown that a reasonable and reasonably informed person in the office in question would not have behaved as did the defendant. This tends to separate the merely misinformed from the ogres.

The problem with absolute immunity for the kind of conduct alleged here is that only personal liability is calibrated to prevent it. Of course officials can be voted out of office (this one lost his next race for the council), but how much damage can be done in the meantime? Worse yet, what if the voting majority thinks a good bashing or simple exile for particular speakers is just what they deserve?
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October

Court: Alleged Slapp-er may be Unable to Dodge Fee Shifting

In a civil suit on libel or other grounds where the defendant makes an anti-SLAPP motion and the court rules in his favor and dismisses, the plaintiff can be ordered to pay the defendant's attorney fees and costs.

But what happens to the fee-shifting provision if the plaintiff backs away before the court rules on the SLAPP motion?

In a recent case from the Fourth District Court of Appeal, the answer is: It depends.

The issue is of key importance to First Amendment rights because the whole point of the anti-SLAPP law is to discourage the powerful from using the threat of ruinous litigation costs to intimidate the less powerful into silence on matters of public concern. The SLAPP motion made by a defendant in such instances places the burden on the plaintiff to show his case is meritorious and stands a chance of winning.

If he can make that early showing, the case proceeds normally. But if he cannot – if the court decides that his case lacks merit and is likely to lose -– the court dismisses the case and orders him to pay the defendant's court costs and attorney's fees.

But in Coltrain v. Shewalter, Case No. E019258 (8/19/98), the court of appeal examined the consequences when an apartment landlord dropped his lawsuit for libel and related claims against several neighbors after the neighbors had filed an anti-SLAPP motion but before the court ruled.

According to the opinion, the landlord's apartment tenants had been the subject of considerable consternation to neighbors, who complained of noise, trash and criminal activity, and several of whom were terrorized for complaining. Repeated attempts to get the landlord to act were in vain, and finally several neighbors filed small claims actions against the landlord, alleging public nuisances and damages in reduced property value and mental distress. The landlord then sued the neighbors for defamatory statements they had made in a demand letter circulated earlier, preliminary to their small claims action.

After the neighbors' attorneys filed an anti-SLAPP motion, but before the court could rule on it, the landlord dismissed his libel suit. But the defendants were able to convince the court that under the circumstances they had "prevailed" in using the motion to terminate the litigation, and should therefore be entitled to have the landlord pay their court costs and attorney's fees.

The Fourth District concluded that in such circumstances -– a plaintiff's voluntary dismissal in the face of an anti-SLAPP motion –- it should be presumed that the defendant prevailed, i.e. that the motion did what it was designed to do, get rid of nonmeritorious suits brought to punish or deter constitutionally protected speech. "Since the defendant's goal is to make the plaintiff go away with its tail between its legs, ordinarily the prevailing party will be the defendant.

The court treated the landlord's contention that he had withdrawn simply because he ran out of funds as an implication, if not evidence, that his litigation had indeed been a SLAPP, brought as it was as "an action they could not afford to win."

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Court: Decency Act's 'Annoyance' Curb Applies Only To Obscenity

The Communications Decency Act's prohibition against sending material via the Internet to "annoy" someone applies only to communications that also meet the technical standards of obscenity -- not those that are merely "indecent" in the eye of the recipient or the government. So ruled the majority in a special three-judge panel of the U.S. District Court for Northern California, September 22, in Apollomedia Corporation v. Reno, Case No. C-79-346-MMC.

Apollomedia is a San Francisco-based multimedia developer which has sponsored a World Wide Web site, annoy.com, to challenge the Communications Decency Act's prohibition. The court in this case denied its request for a declaratory judgment to the effect that the provision violates the First Amendment.

Instead, the two-judge majority, in an opinion written by Judge Maxine Chesney, concluded on the basis of the Act's legislative history that the prohibited messages sent with the intent to "annoy" the recipient must also be obscene -- and therefore are not protected by the First Amendment.

Accordingly, an intentionally annoying message, although "indecent" in content, does not run afoul of the Act because it is not obscene. Thus sending someone harassing e-mail containing sexually vulgar epithets or jokes would probably not be prohibited, while attaching images or documents constituting hard-core pornographya might be.

The U.S. Supreme Court ruled last year in Reno v. ACLU that "indecent" but not obscene speech may be regulated under some unusual circumstances (as, for instance, in broadcasting), but not prohibited outright.

Although technically the loser in this case, Apollomedia regarded the court's ruling as a victory for the First Amendment right to communicate annoyingly, even using indecency as an irritant.

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November

 

Court: School Not Liablefor Assinging Offensive Reading

A school district is not subject to suit under the Civil Rights Act or the Equal Protection Clause for including, among its mandatory reading assignments, established literary works which contain the word "nigger."

So ruled the U.S. Ninth Circuit Court of Appeals recently in Monteiro v. Tempe Union High School District, Case No. 97-15511 (10/19/98).

The plaintiff, an Arizona mother with a daughter enrolled at McClintock High School in Tempe, sued the school district for damages on two counts. First, she contended that being forced to read "Huckleberry Finn," which repeats the offending epithet more than 100 times, and also a William Faulkner story, "A Rose for Emily," which employs the word, resulted in her daughter's mental suffering both directly and indirectly, in that the reading assignments provoked fellow students to take up the term mockingly, both in oral assaults and graffiti scrawled on the campus. Secondly, the plaintiff argued that the district was liable for failing to try to suppress the hostile racial environment once the student's complaints brought it to administrators' attention.

The Ninth Circuit concluded that the second complaint could go forward to trial, since the plaintiff had made the requisite threshold allegations concerning the existence of the harassment, the student's having brought it to official notice, and the district's lack of action.

But the first element could not be sustained as a viable complaint under either the Civil Rights Act or the Equal Protection Clause, the court ruled, since no court had ever found students to have a protected right to be assigned literary works free of offensive content, and enforcing such a right would bring educational havoc.

Judge Stephen Reinhardt observed for the court, "There is, of course, an extremely wide -- if not unlimited -- range of literary products that might be considered injurious or offensive, particularly when one considers that high school students frequently take Advanced Placement courses that are equivalent to college-level courses. White plaintiffs could seek to remove books by Toni Morrison, Maya Angelou, and other prominent Black authors on the ground that they portray Caucasians in a derogatory fashion; Jews might try to impose civil liability for the teachings of Shakespeare and of more modern English poets where writings exhibit a similar anti-Semitic strain. Female students could attempt to make a case for damages for the assignment of some of the works of

 

Tennessee Williams, Hemingway, or Freud, and male students for the writings of Andrea Dworkin or Margaret Atwood.

"The number of potential lawsuits that could arise from the highly varied educational curricula throughout the nation might well be unlimited and unpredictable. Many school districts would undoubtedly prefer to 'steer far' from any controversial book and instead substitute 'safe' ones in order to reduce the possibility of civil liability and the expensive and time-consuming burdens of a lawsuit -- even one having but a slight chance of success. In short, permitting lawsuits against school districts on the basis of the content of literary works to proceed past the complaint stage could have a significant chilling effect on a school district's willingness to assign books with themes, characters, snippets of dialogue, or words that might offend the sensibilities of any number of persons or groups."

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Court: Ban on Pager Useby Gang Members Violates Their Rights

A gang abatement court order barring members of the Varrio Posole Locos from using pagers or beepers within a square-mile area of Oceanside cannot be upheld under the First Amendment.

So concluded the California Court of Appeal for the Fourth District recently in In re Englebrecht, Case No. D030992, 10/26/98.

The court, acting on a habeas corpus petition brought by David Englebrecht after his arrest for violating two provisions of a gang abatement restraining order, held that under prevailing case law from the California Supreme Court, the mere public "hanging out" of the defendant with two fellow gang members was an enjoinable nuisance which did not implicate free association rights under the First Amendment.

The constitutional right, according to the high court in People ex rel. Gallo v. Acuna (14 Cal.4th 1090), protected against government interference with certain intimate personal associations on the one hand and certain organizations formed for protected speech and/or religious purposes on the other. Membership in a street gang, the supreme court held, fell into neither category and was therefore an affiliation subject to regulation. And the current situation in Oceanside involved no meaningful differences, although the regulated "target" area covered was significantly larger than the four-block zone in San Jose figuring in Acuna. Gang members could meet and mingle freely outside the target zone, or visit and associate with anyone but one another within the zone.

But the Fourth District did disapprove, as inexcusably invasive of First Amendment rights, the ban on gang members' use of beepers or pagers in the target area. While such technology could be and was used to arrange illegal drug sales and keep an eye on police patrols, it also had innocent and legal uses, the court said, and communications means and devices can't be banned outright, even in a limited zone, simply because they are often used for illegal purposes. The court indicated that the district attorney, who had drafted the court's order, might have more success if the language were changed to proscribe only uses which abetted lawbreaking.

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High Court to Hear Arguments on Scope of Anti-Slapp Law's Protection

If the anti-SLAPP statute protects speakers' statements in public settings about "a matter of public significance," does a running feud between tenants and their landlord qualify? This issue is central to the California Supreme Court's scheduled hearing of oral argument this Tuesday (November 10), in the court's first case involving the statute.

Briggs v. ECHO involves a number of unflattering statements made by personnel of the Eden Council for Hope and Opportunity, an Alameda County nonprofit group offering counseling, assistance and advocacy to lower-income renters in their disputes with landlords, about Dan and Judy Briggs, owners of several rental properties in the county. The epithets used against the Briggs' included "drunk," "jerk," "redneck," "racist," and "KKK," and were supplemented by open discussion of Dan's mental stability. They arose at various times during a HUD investigation of the landlords, ECHO board meetings and other occasions, in connection with ECHO representation of several tenants' grievances.

The First District Court of Appeal ruled in 1997 that, when the Briggs' sued ECHO for defamation on these counts and the defense response was an anti-SLAPP motion, that protection was not available; despite ECHO's public funding and the involvement of HUD and several other landlord-tenant court proceedings, the controversy was not "a matter of public significance." If it were, the anti-SLAPP motion would force the Briggs' to either convince the court -- prior to trial -- that their case was likely to win, or face dismissal and having to pay ECHO's attorney fees.

The high court accepted the case for review on August 13, 1997, one day after Senator Bill Lockyer's SB 1296 became law. That legislation, intended to disapprove the First District's narrow view of "public significance" as expressed in Briggs and other cases and encourage courts to read the scope of anti-SLAPP protection broadly, will probably be a key issue in Tuesday's hearing.

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December

 

 

Court: False Claims Act Protects Public Employees Blowing Whistle on Boss

Public employees who complain through official channels about fraud, waste or other misuse of state funds by their own employers are entitled to whistle blower protection under the False Claims Act, and supervisors who retaliate against this protected speech may be liable for civil damages.

So ruled the California Court of Appeal for the Second District Monday, December 14 in LeVine v. Weis, Case No. B115091 (text attached as LeVine v. Weis.html - to be opened by your browser; if you do not have a browser, send a message to cfac@cfac.org requesting the link and we will send it by reply e-mail).

Robert LeVine was a teacher hired by the Ventura County superintendent of schools to provide classes at the McBride School within the county's juvenile hall. He was assigned to maximum security inmates, and class sizes ranged from 40 to 80.

Within a week of his meeting with the school principal to complain about under staffing, he earned a chilling memo in his personnel file in which the principal portrayed his attitude as defiant and uncooperative. The next day, the principal told him to go on sick leave and consult a doctor, citing inmate complaints about his "irrational" behavior. LeVine asked to confront his accusers and was told, "It doesn't work that way."

Within a month, LeVine filed grievances against his superiors, insisting that his posture at the original meeting had been distorted. "I stated over and over," he wrote, "that I wanted a reason why these kids should be deprived of an instructor in the room when clearly they were bringing in the funding to easily pay for some desperately needed, long documented, staff help." He was nonetheless let go.

At a subsequent trial for retaliatory dismissal, the school won a summary judgment motion against him, primarily because of his tenuous status as a year-to-year teacher with no contract rights to continued employment. But he grounded part of his complaint on the protections of the False Claims Act, and the appellate court agreed that it was applicable in this case irrespective of contractual niceties.

Speaking for the court, Justice Arthur Gilbert stated: "Here (the Ventura County Superintendent of Schools' office), which has the burden on its motion for summary adjudication, does not dispute that it applied for and received money to operate the unit school from the state. Nor does it dispute that the state in return for its money expected adequate staffing at the unit school. The state was not getting what it was paying for. It takes no leap of imagination to conclude that LeVine' s expressions of concern about inadequate staffing were within the (whistle blower protection under the False Claims Act). "

The court remanded the False Claims Act count for trial on the merits.

COMMENT: The court's holding is a cheery holiday present to all public employees who earn retribution for shining the spotlight on misuse of state resources, and is particularly heartening for school and college employees who see fraud (phantom enrollment counts, misapplied special funding) perpetrated by one level of government against another.

For Further Information about the False Claims Act, go to http://www.false claims act.com/california.html; for the whistle blower protection provision involved in the LeVine case, scroll down to Section 12653.

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ACTIONLINE Q&A

(The following is a sampling of recent queries received and answered by CFAC's ActionLine. Related information appears in the California Journalist's Legal Notebook on the pages noted.)

 

Unnamed Police Shooter

Q: Are police required to name an officer who shot someone to death? The police chief in a nearby community where this happened Monday night is refusing to release the officer's name saying the officer needs his peace time, and he doesn't want the officer hassled in this relatively small town (30,000 or so). Are we entitled to the name?

 

A: This comes up not infrequently, and by no means only in small communities. If you or I shot someone, no matter what the circumstances, you can be sure that the police would show little hesitation in releasing our name - arrested or not. But somehow as a professional courtesy, officers are allowed their "peace time" - often for extended periods. Actually, the chief in your case gets points for candor. Often the reason given is that the matter "is still under investigation" - as if naming the officer would jeopardize evidence. But a 1997 case from the Second District Court of Appeal holds that under the California Public Records Act, the names of officers who discharged their weapons in a volley that killed a suspect are matters of public record. Justice Steven J. Stone wrote for the court, "Fear of possible opprobrium or embarrassment is insufficient to prevent disclosure... Exceptions to the general rule of disclosure are construed narrowly, and the burden is upon the public agency to show that the record should not be disclosed. ... The perceived harm to deputies from revelation of their names as having fired their weapons in the line of duty resulting in a death does not outweigh the public interest served in disclosure of their names." (New York Times Co. v. Superior Court [52 Cal.App.4th 97]; citations omitted). (Legal Notebook p. 115)

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Park Permits for Video/Photo Coverage

Q: Our camera crew was recently at Sutter's Fort in Sacramento to get videotape for a historical mini-series of features we've been airing in observance of the state bicentennial. A state park ranger approached and told us we'd have to get a permit and show proof of liability insurance in order to shoot. We got what we needed anyway by that time, and later a parks department public information officer backpedaled a bit, but what is this? Do we really need official permission to shoot on state park land?

 

A: No. The problem is a policy that too easily lends itself to misinterpretation by rangers. The following item from a midsummer 1997 FLASH shows how far such misunderstandings can go.

________________________________________

 

The California Film Commission, established in 1984 both to encourage motion picture production in the state and to regulate location shooting on state property, also is collecting fees for permits from "commercial" still photographers - including photojournalists - when they work on state land.

 

But where its legal authority to do so comes from is not clear.

 

The situation came to CFAC's attention in July when a Los Angeles-based freelance photographer called for suggestions on his plight. In late December 1996, he had been cited by a state park ranger while photographing a vintage motorcycle at Point Mugu State Beach, for publication in a cycle magazine. He was facing trial and a $300

fine liability for the "crime" of photography on state property without a permit from the California Film Commission - as set forth in California Code of Regulations Section 4316.

 

Before long the Ventura County Municipal Court dismissed the prosecution on procedural grounds, but the incident itself raises some serious questions. For one thing, the ranger did not simply write the photographer a ticket. He forced him to cease working, called for backup when compliance was taking too long, grabbed for the camera bag, and when the photographer did not release it soon enough ("having worked all over the world," the photographer explains, "where lots of official and not-so-official people have all kinds of excuses for grabbing your camera"), he slammed him up against his car and patted him down. The ranger finally demanded - and

got - surrender of the film that had been shot.

 

Even when enforcement does not result in such violent and confiscatory action, the issue remains whether there is any established law to enforce.

 

The regulatory section referenced in the citation (CCR 4316) states:

 

"Except where authorized by the Department (of Parks and Recreation), no person shall photograph, videotape or film for commercial (profit and sale) purposes in any unit, or portion thereof, owned, operated or administered by the Department without a permit from the California Film Commission, pursuant to Government Code Section

14998.8."

 

But that Government Code section makes no mention of still photography. It defines its scope by providing that:

 

"The Director of the Film Office shall be the permitting authority for the use of state-owned property and state employee services for the purpose of making commercial motion pictures. The (California Film) commission may establish fees not to exceed the actual cost of the affected state agency for this purpose."

 

Indeed, the entire Motion Picture, Television, and Commercial Industries Act of 1984, of which the section is a portion, mentions "motion pictures," "film industry" and "film making" 26 times, and mentions still photography just once, stating that: "The Director of the Film Office shall prepare and implement a program to promote the production of motion pictures and still photography for the benefit of the state's economy."

 

Authority for issuing permits and charging fees, in short, is stated exclusively in terms of commercial motion picture production.

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Phone Interviews with Public Officials

Q: In covering local boards and commissions I often need to interview the members during the day, by phone. In one city, the city attorney is suggesting that in seeking these contacts I could be facilitating a violation of the Brown Act through a serial meeting, allowing me to derive a consensus among a majority or totality of the council outside an open and public meeting. The county won't even give me the daytime phone numbers of the planning commissioners, maintaining that they are confidential, and that there's a voice mail box for their use. That may be fine for some purposes, but I sometimes have to get their reactions on short notice, and some of them apparently seldom check their voice mail. What is the law on these issues?

 

A: What counts in the first instance is not what you do but whether the interviewed officials use the serial contacts to communicate indirectly and reach an agreement on something to be done or not done.

 

If this were a private process the risk of that occurring would be greatly magnified, because the person doing the interviewing would not be publicizing the answers - or even the fact that the process took place - and the participants, if so inclined, would feel much freer to use the interviewer or questioner as a conduit for a secret dialogue and consensus. If your interview subjects are really nervous about this, there's a simple precaution. Just don't tell them what their peers have said. The result is that they're each speaking just to you - and the community. If they discover each others' views, it will be by reading the newspaper like everyone else. As for the commissioners' daytime phone numbers, nothing exempts them from disclosure under the California Public Records Act. The silence would not be read as an oversight, since there are classes of individuals whose phone numbers are made confidential, e.g. school employees, peace officers, all persons's residential contact information in DMV files. For most commissioners, a daytime number would presumably be a work number and easily found anyway. (Legal Notebook p. 116, 117)

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