Stories:1999
Free Speech
A.G.: PETITION CIRCULATORS NEEDN'T
BE CITY VOTERS, EVEN RESIDENTS 12/31/99
COURT: LAW BANNING "SYNTHETIC"
CHILD PORN OVERBROAD, VAGUE 12/24/99
COURT: NO FREE SPEECH RIGHT TO
FALSIFY FACTS ON BALLOT PETITION 10/8/99
COURT: SUPERMARKET FRONTAGE OPEN
TO UNION ORGANIZER SPEECH 8/27/99
COURT: DEMONSTRATION PERMIT CAN'T
HANG ON NO-TRESPASS PROMISE 8/27/99
COURT: RACIAL INSULTS IN WORKPLACE
CAN BE BARRED BY INJUNCTION 8/20/99
COURT: SCHOOL CAN'T ACCEPT BALL
FIELD BILLBOARD AD FOR RELIGION 8/20/99
COURT: JAIL CAN BAN INMATES' MAGAZINES
SHOWING FRONTAL NUDITY 8/20/99
COURT: FLAT COMPLEX CAN BAR
TENANTS' UNSOLICITED NEWSLETTERS 7/30/99
COURT: MARKET'S FRONTAGE NOT
A FORUM FOR SIGNATURE GATHERERS 7/23/99
FREE SPEECH DEMONSTRATIONS RETURN
TO BERKELEY; RADIO IS THE ISSUE 7/16/99
OATS INSIDE: INTEL TO GET AN
UNWANTED MESSAGE VIA PONY EXPRESS 7/2/99
JUDICIAL CONDUCT PANEL DROPS
KLINE CASE, RELEASES VOTE DATA 6/25/99
COURT: FIRST AMENDMENT PROTECTS
BROADCAST PRIVATE CASINO ADS 6/18/99
ECHOES RAISED OF "SON OF
SAM" AND "CHECKBOOK JOURNALISM" LAWS 6/18/99
COURT: CHICAGO'S GANG LOITERING
LAW UNCONSTITUTIONALLY VAGUE 6/11/99
WHERE THE BILLS ARE: UPDATE ON
PENDING LEGISLATION OF INTEREST AB 83 6/4/99
FS: Annoying E-Messages Legal If Not "Obscene"
5/7/99
FS: Mass E-mailing Can Be Stopped As Trespass
5/7/99
FS: Interest in Hot Issue Not Flagging:4/30/99
COURT: PLAINTIFF WITHDRAWING
SLAPP MUST PAY DEFENDANT'S FEES 4/30/99
COURT: CALIFORNIA'S ANTI-SLAPP
MOTION CAN BE MADE IN FEDERAL COURT LAWSUITS 3/26/99
BILL WOULD MANDATE OBSCENITY
SCREENS FOR LIBRARY COMPUTERS ACCESSING THE INTERNET 2/26/99
COURT: FIRST AMENDMENT PERMITS
BAN OF COMMERCIAL SOLICITING ON COURTHOUSE SIDEWALK 2/12/99
SUPREME COURT TO REVIEW CALIFORNIA
CASE ON COMMERCIAL ACCESS TO RECORDS 1/29/99
COURT:
SPEECH RELATED TO OFFICIAL PROCEEDINGS BROADLY PROTECTED FROM SLAPPS 1/22/99
COURT:REGISTRATION, DISCLOSURE
RULES FOR PETITION CIRCULATORS UNCONSTITUTIONAL 1/22/99
A.G.: PETITION CIRCULATORS NEEDN'T BE CITY VOTERS,
EVEN RESIDENTS 12/31/99
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COURT: LAW BANNING "SYNTHETIC" CHILD
PORN OVERBROAD, VAGUE 12/24/99
A federal law making it a crime to produce, distribute or possess pornography
involving a person who "appears to be" a minor, or which is marketed
to "convey the impression" that such is the case, fails the tests
for speech regulation under the First Amendment. Among other problems,
those phrases insufficiently define what type of conduct is prohibited.
So concluded the U.S. Ninth Circuit Court of Appeals in an opinion issued
December 17 in Free Speech Coalition v. Reno, Case No. 97-16536.
In a 2-1 decision of the kind likely to attract supreme court interest,
the court concluded that while the Child Pornography Prevention Act of
1996 may stand as a whole, two definitional sections cannot stand constitutional
muster: one which bans sexually explicit images that appear to involve
minors, and one which bans works based on their marketing, i.e. if they
are "advertised, promoted, presented, described or distributed in
a manner that conveys the impression" that they contain sexually explicit
depictions of minors.
As the court noted, the challenged language represents the first incursion
by federal criminal laws, after 22 years of repeatedly more extensive enactments,
into virtual reality voyeurism. Up to the 1996 law, the focus was on photographic
images of real children actually involved in sexual scenes. The frank aim
of Congress was to dry up the market for child pornography entirely, since
its production necessarily involved the abuse of real children.
But computer technology now permits the generation of synthetic actors
-- or the digital alteration of real performers -- with a verisimilitude
often successful in fooling the eye. This state of the art sometimes made
it difficult, if not impossible, for prosecutors to prove beyond reasonable
doubt that the apparent minors depicted in works marketed in kiddie porn
were in fact children at all, or that children were actually used in producing
the pornography being prosecuted.
The phrases added to the law in 1996 were intended to cure that problem,
as well as to answer the concern that even if children were not used as
performers, a work portraying what appeared to be children in such circumstances
could be used by pedophiles to "seduce," recruit, or overcome
the inhibitions of young victims.
But the Ninth Circuit majority, in an opinion by District Judge Donald
W. Molloy, sitting by designation, found the phrases to be one abridgment
too far. It cited three compelling interests typically cited for regulating
conventional child pornography: eliminating child performances, eliminating
material likely to whet criminal appetites, and eliminating "morally
and aesthetically repugnant" material.
The first interest, the majority noted, is not present where actual
children are absent, citing the U.S. Supreme Court's 1982 decision in New
York v. Ferber, 458 U.S. 747, which
"specifically focused on the harm to children. ... It also found
that distribution of pornographic images is 'intrinsically related' to
the harm suffered by child victims because the images produced are a permanent
record of the child' s participation, exacerbated by its dissemination.
... The Ferber Court acknowledged that 'if it were necessary for literary
or artistic value, a person over the statutory age who perhaps looked younger
could be utilized.' (citations omitted)
As for the argued use by pedophiles of materials not depicting real
children to lure real children into criminal abuse, the majority found
no factual studies or other evidence to date supporting that concern. Nor
is the elimination of all material that could conceivably appeal to pedophiles
-- renderings of imaginary children involved in sex -- itself justified
by the notion that certain "secondary effects" must be avoided
at all costs. The majority cited a 1985 decision by the Second Circuit,
in American Booksellers Association v. Hudnut, rejecting just that notion
as proffered by feminists arguing that adult pornography stimulates and
results in the abusive treatment of women. The Second Circuit observed:
"Sexual responses often are unthinking responses, and the association
of sexual arousal with the subordination of women therefore may have a
substantial effect. But almost all cultural stimuli provoke unconscious
responses . . . . If the fact that speech plays a role in a process of
conditioning were enough to permit governmental regulation, that would
be the end of freedom of speech."
The Ninth Circuit majority commented:
"By the same token, any victimization of children that may arise
from pedophiles' sexual responses to pornography apparently depicting children
engaging in explicit sexual activity is not a sufficiently compelling justification
for (the law's) speech restrictions. This is so because to hold otherwise
enables the criminalization of foul figments of creative technology that
do not involve any human victim in their creation or in their presentation."
The majority also concluded that the phrases were both vague and overbroad.
As to the first problem,
"The two phrases in question are highly subjective. There is no
explicit standard as to what the phrases mean. The phrases provide no measure
to guide an ordinarily intelligent person about prohibited conduct and
any such person could not be reasonably certain about whose perspective
defines the appearance of a minor, or whose impression that a minor
is involved leads to criminal prosecution ... In the same light, the absence
of definitions for these key phrases in the (Act) allows law enforcement
officials to exercise their discretion, subjectively, about what 'appears
to be' or what 'conveys the impression' of prohibited material. Thus, the
vagueness of the statute' s key phrases regarding computer images permits
enforcement in an arbitrary and discriminatory fashion."
And as to overbreadth, this effect was inherent in Congress's conviction
that to be able to prosecute conventional child pornography successfully,
the government needed to sweep in anything that was a convincing likeness:
"The danger with this analysis is that it suggests that the more
realistic an imaginary creation is, the less protection it is entitled
to under the First Amendment. This is not because of any harm caused in
its creation, rather it is because of the consequences of its purported
reality. Yet, the Supreme Court has restricted the regulation of pornographic
material involving minors because of the harm caused by its creation, not
necessarily because of the consequences of its creation. The government'
s interest in prohibiting computer-generated child pornographic depictions
is not the same as its interest in prohibiting child pornography produced
by using actual children. In the latter instance there may be direct and
indirect harm to a child. In the former instance there is no harm, and
there can be none, to an actual child, if no real human is used in the
production of the images. What is left then is an inconsistent effort to
regulate the evil consequences of abusing children to make such images,
even though no children are used in its production."
COMMENT: In a footnote, the majority states that since its ruling
invalidates only the specified phrases and leaves the rest of the statute
intact, the government could still prosecute the depiction of "morphed
computer images of an identifiable child...because there is then the potential
for harm to a real child." This case does not mean that child pornography,
whether or not involving real children, cannot be prosecuted. Any kind
of material can still be prosecuted under the obscenity laws. But at least
under the obscenity laws, a work of independent artistic or social merit
can be judged on that basis. In 1998, for example, Oklahoma City police
seized and the district attorney mounted a criminal prosecution around
a video store copy of The Tin Drum, a German feature movie which won the
1979 Academy Award for Best Foreign Language Film, on the basis of that
state's child pornography laws. The film's protagonist is a boy of 6 or
7 who is preternaturally aware of and frightened by the adult world around
him in the Nazi Germany of the 1930s, and one scene suggests him in sexual
contact with a teenaged girl. Given its overall theme and the lack of prurient
intention or effect, the film would not have been successfully prosecutable
as obscene, even in Oklahoma City. But the mere involvement of an identifiable
minor -- or someone who "appears to be" under age -- does make
the film arguable fair game for child pornography statutes which focus
strictly on appearances.
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COURT: NO FREE SPEECH RIGHT TO FALSIFY FACTS ON
BALLOT PETITION 10/8/99
While proponents of a ballot measure are constitutionally free to exaggerate,
spin and even lie in their advocacy for passage of a ballot measure, as
in any other political campaign, objectively disprovable false statements
of fact in the initiative petition itself can be the basis for a court
to order that the circulation of the petition be discontinued.
So ruled the California Court of Appeal for the First District Wednesday,
October 6, in San Francisco Forty-Niners v. Nishioka, Case No. A083687.
The case concerns the aftermath of a 1997 special election in which
San Francisco voters -- by a narrow margin -- approved two initiative measures
approving construction of a new football stadium sought by the San Francisco
Forty-Niners, by authorizing lease financing to borrow up to $100 million
to fund the project and by amending zoning laws to permit siting of the
stadium and an associated entertainment and shopping center.
Because the vote was close and there were press reports of anomalies
at several polling places, a citizen who had opposed the measures, Doug
Comstock, sued to contest the election and lost after a court hearing.
He and other stadium opponents then filed to circulate a petition to put
a repealer of the stadium measures on the ballot.
The notice of intention to circulate contained several assertions, including
the following:
"(1) The June 3, 1997 special election on Propositions D and F
was fundamentally flawed, and resulted in a denial of the secrecy of the
ballot for all San Francisco voters, and was further marred by numerous
instances of electioneering and campaigning using municipal funds, and
early, secret polling places opened with federal funds in areas thought
to favor Yes on D and F.
"(2) The election calls into question the relationship of the non-partisan
Department of Elections and the Office of the Mayor and his agents, whose
agendas were to pass Propositions D and F regardless of appearance or fairness.
This was compounded by questionable financial transactions, including campaign
contributions and expenditures to elected and appointed officials with
oversight of the election and the related investigation and possible cover-up.
***
"(4) The funding of the stadium/shopping mall was not truthfully
presented to the voters and taxpayers of the City and County of San Francisco.
Real cost estimates far exceed the $100 million, exclusive of interest,
which the Mayor and proponents of Propositions D and F insisted would be
the ' upper limit.' "
The Forty-Niners sought and obtained a writ of mandate from the superior
court, stopping circulation of the petition. The court found that statements
in the petition, including those quoted above, were "flat-out untrue,
and are not denied by those people that have submitted it; or if they do
deny them, they certainly didn't bother to do so in the course of this
proceeding." The court concluded that the undenied falsity of the
statements constituted a violation of Elections Code provisions restricting
the content of petitions.
On appeal the First District, in an opinion by Justice James J. Marchiano,
affirmed the trial court's judgment, noting:
"Elections Code Section 18600 prohibits the making of intentionally
false representations 'concerning the contents, purport or effect' of an
initiative petition, and specifically with intent to induce a voter into
signing the petition. The trial court made a finding of fact that appellants
violated section 18600 by making deliberately false statements in order
to induce San Francisco voters to sign their initiative petition. We defer
to this finding because it is supported by substantial evidence in the
record. Appellants did not present evidence before the trial court that
the statements in their petition were not false." (Footnote, citation
omitted)
The stymied petitioners argued that the contested statements said nothing
misleading about the effect of the measure they were trying to get on the
ballot, and thus did not violate Section 18600. But Justice Marchiano read
the statute differently.
"Appellants circulated an initiative petition essentially to reverse
a democratic election and repeal Propositions D and F. To convince voters
there was a need to repeal these measures and thus induce them to sign
their petition, appellants falsely represented the purported invalidity
of the Propositions and their enactment, as well as their purported adverse
impact on the City. While appellants did not misrepresent the contents
or effect of the initiative measure -- that it would in fact repeal Propositions
D and F -- appellants made false statements concerning the purport of the
initiative.
"'Purport' is broader than 'contents' and 'effect' and includes
such notions as 'tenor,' 'import,' 'gist,' 'substance,' and 'purpose.'
(Webster' s New Internat. Dict. (3d ed. 1961) p. 1847.) The Legislature,
presumably aware of (an earlier precedent's) injunction against misleading
a voter 'regarding the real purpose of [a] proposed [initiative] measure',
included the broader term 'purport' in section 18600 when it was enacted
in 1994.
"Appellants misled voters as to the tenor, substance and purpose
of their initiative by claiming it was justified by facts which were materially
false. In essence the petition stated that the voters should repeal Propositions
D and F because the previous election was fraudulent, the funding of the
stadium would cost San Franciscans more than the represented limit of $100
million, and the 2/3 majority required by Proposition 218 placed the results
in question. These misleading falsehoods violated the rationale of section
18600 and justified the trial court' s issuance of a writ."
Nor, the court concluded, did Section 18600 so interpreted violate the
petitioner's First Amendment rights. Looking to precedents dealing with
other official election documents, the court concluded that the petition
itself was not a public forum for free-wheeling advocacy, but rather a
governmental form which the public needed and was entitled to rely on as
free from objectively disprovable misstatements of fact.
"The initiative petition with its notice of intention is not a
handbill or campaign flyer -- it is an official election document subject
to various restrictions by the Elections Code, including reasonable content
requirements of truth. It is the constitutionally and legislatively sanctioned
method by which an election is obtained on a given initiative proposal.
The state clearly has a legitimate, compelling regulatory interest in preserving
the integrity of the initiative process from intentional falsehoods designed
to mislead voters into qualifying a measure for the ballot. Moreover, when
presented with a petition by a circulator, voters have a right to rely
on the integrity of the initiative process and the accuracy of the petition
which they properly believe complies with Elections Code requirements.
***
"We note we are speaking of outright falsehoods in an official
election document and not the typical hyperbole and opinionated comments
common to political debate. Appellants are not under a chilling effect
which prevents them from speaking out against the Forty-Niners' stadium
proposal. Appellants are free to speak out in any of the varied available
traditional public forums. They are also free to circulate an initiative
petition with persuasive language devoid of false and misleading statements.
They have a right to try to repeal Propositions D and F. We recognize that
courts should rarely interfere with the political process, especially the
initiative process where competing ideas converge. All we do in this case
is uphold a writ of mandate issued against a particular petition which
clearly violated the Elections Code because it contains undisputed, objective
untruths calculated to mislead and misinform a reasonable voter. "
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COURT: SUPERMARKET FRONTAGE OPEN TO UNION ORGANIZER
SPEECH 8/27/99
In an unusual decision cutting against the recent trend of more restrictive
rulings, a court has concluded that in California, the property rights
of a supermarket proprietor are not sufficient to allow him to expel non-employee
union organizers using the sidewalk and parking lot on his property and
immediately fronting his store for speech activities.
The different result reached in National Labor Relations Board v. Calkins,
Case No. 97-71240 may be accounted for primarily by the fact that the speech
activity involved was labor union picketing and leafleting targeting the
practices of the proprietor rather than just using his property to reach
the attention of customers on unrelated issues.
In her opinion for the U.S. Court of Appeals for the Ninth Circuit,
filed August 11, Judge Kim McLane Wardlaw concluded that the Indio Grocery
Outlet had committed an unfair labor practice under the National Labor
Relations Act (NRLA) in refusing to let non-employee members of the local
United Food and Commercial Workers Union use the store's property to picket
and hand customers leaflets encouraging a boycott of the store, a non-union
employer.
The NRLA protects peaceful picketing by non-employees for such purposes
to the extent permitted by local trespass laws, which in most states do
not permit on-premises speech activity over the property owner's objections.
The National Labor Relations Board (NLRB) had concluded that California
trespass law, however, has been reduced in this respect by a number of
cases granting the right to conduct speech and petitioning activity on
the premises of shopping centers or even some freestanding establishments.
The board thus decided that the Indio store had impermissibly interfered
with these rights.
The Ninth Circuit agreed. It pointed to the case of Robins v. Pruneyard
Shopping Center, the key 1979 decision of the California Supreme Court
requiring mall proprietors to permit some petitioning in the public passages
of their property as a right guaranteed by the state constitution, and
appropriately exercised where a commercial establishment creates an artificial
"main street" environment that invites not only store patronage
but general congregation and social activity.
The Pruneyard principle, ironically, has been significantly limited
by California's appellate courts, and in particular was specifically held
not to extend to a freestanding grocery store in Sonoma only last month
(see "COURT: MARKET'S FRONTAGE NOT A FORUM FOR SIGNATURE GATHERERS
(7/23/99)) in a decision of the First District Court of Appeal.
But while the Ninth Circuit opinion disagreed with this narrowing interpretation,
concluding that the Indio market was not a "modest retail establishment"
excluded from the speech-tolerance burdens of Pruneyard, its analysis had
an independent leg which distinguishes it from the First District's rationale.
In the latter case, the Sonoma store was being used by professional petition
signature gatherers on an issue (not specified in the opinion) entirely
unrelated to the store or its practices.
But the Ninth Circuit opinion placed great reliance on two decisions
of the state supreme court predating Pruneyard, In re Lane (71 Cal. 2d
872 (1969) and Sears, Roebuck & Co. v. San Diego County Dist. Council
of Carpenters, 25 Cal. 3d 317 (1979)), in which the high court dealt with
speech critical of the proprietor of the premises being used as a forum
- store-targeted picketing and leafleting.
The principle upheld by these cases was not, as in Pruneyard, that a
mall or large commercial establishment must expect to provide some general
speech forum if it opens its premises to "main street" patronage
for diverse purposes, but rather that an establishment which would have
to tolerate speech critical of its practices on its very doorstep if located
downtown on a city sidewalk cannot escape such exposure simply by moving
elsewhere and putting private land between itself and the street. As stated
in Sears, Roebuck (and quoted by the Ninth Circuit):
"If we were to hold the particular (on-premises) sidewalk area
to be 'off limits' for the exercise of First Amendment rights in effect
we would be saying that by erecting a 'cordon sanitaire' around its store,
(the store) has succeeded in immunizing itself from on-the-spot public
criticism."
COMMENT: The net effect seems to be that
freestanding retail or professional establishments-grocery markets and
others-may be allowed to protect their customers from exposure to picketing,
leafleting or signature gathering on their property concerning any subject
other than criticism of the store itself. What if protesters were to station
themselves at the Sonoma Trader Joe's store with the message, "Trader
Joe's is not a good citizen because it doesn't want you to take a moment
and sign this petition. Sign it, and show Trader Joe's you may like its
wares but you think for yourself" ?
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COURT: DEMONSTRATION PERMIT CAN'T HANG ON NO-TRESPASS
PROMISE 8/27/99
The government cannot condition issuance of a permit to demonstrate
on public property on the applicant's willingness to promise not to trespass
on non-public areas - even when the demonstrators' announced purpose is
to engage in civil disobedience. Instead, the government must issue the
permit and react only when and if actual trespasses occur. So ruled the
U.S. Court of Appeals for the Ninth Circuit in its decision filed Wednesday,
August 25 in United States v. Baugh et al., Case No. 98-10224, dealing
with the 1997 arrest of demonstrators at the Presidio in San Francisco.
The defendants, members of Religious Witness with Homeless People (RWHP),
had several times before visited the former army installation protesting
plans to raze residential quarters which they insisted should be converted
to house homeless people. On some occasions, after marching through the
housing area, some members had trespassed into the housing units and had
refused to leave until being arrested for demonstrating without a permit
and trespass, although prosecuted only for the latter offense.
On March 9 the group appeared at the Presidio Visitor Center and was
told it would be issued a permit to demonstrate only upon a pledge not
to trespass, and that in any case its protests must be confined to a Park
Service designated "First Amendment area" about 150-175 yards
from the visitor center.
Concluding that the conditions were unacceptable, the RWHP members stood
their ground on the lawn next to the visitor center and held a prayer service.
They were warned several times that unless they dispersed they would be
arrested, but most of them remained and were arrested for demonstrating
without a permit.
Despite their motion to quash on First Amendment grounds, the demonstrators
were convicted on the no-permit charge and sentenced to 90 days probation
and 12 hours community service, with the district court finding that the
no-trespass condition to issuance of the permit was reasonable.
The Ninth Circuit disagreed, in an opinion by Judge Mary M. Schroeder.
She noted that in such situations, restrictions on speech must be content-neutral
- not an effort to silence a particular message; must be "narrowly
tailored" - not so broad as needlessly to burden the speech activity;
and must leave open adequate alternative means of conveying the message.
On the first factor, Schroeder said, there was no real evidence that
the Park Service targeted the protesters' message in particular. But on
the second factor, said Judge Schroeder, "[t]he critical question
is whether the requirement that Sister Bernie (spokesperson for the group)
promise that no trespassing would occur before the Park Service would issue
RWHP a permit was sufficiently narrowly tailored to constitute a valid
First Amendment restriction. A narrowly tailored requirement need not be
the least restrictive means of furthering the Park Service' s interests,
but the restriction may not burden substantially more speech than necessary
to further the interests ...
"To do otherwise would be to burden substantially those seeking
to express their political views. Organizers of protests ordinarily cannot
warrant in good faith that all the participants in a demonstration will
comply with the law. Demonstrations are often robust. No one can guarantee
how demonstrators will behave throughout the course of the entire protest.
Thus, the promise the Park Service sought would be illusory and meaningless
at best ...
"The Park Service, in lieu of restraining the expressive activity
by refusing to issue the permit, should have issued the permit for the
lawful expressive activity and then arrested the demonstrators if and when
they trespassed."
And as to the final factor, Judge Schroeder observed, "(T)he Park
Service also failed to leave open sufficient alternative means for the
protesters to communicate their views. Lt. Hay ordered the demonstrators
to a First Amendment area 150 to 175 yards away from the Visitor Center.
The Park Service officials and the public to whom RWHP wished to communicate
its message were at the Visitor Center. Such distancing of the demonstrators
from the intended audience does not provide a reasonable alternative means
for communication of RWHP' s views ... Because RWHP was left with no alternative
that allowed it to reach its intended audience, the Park Service' s application
of the permit regulations also failed to satisfy the final requirement
for valid First Amendment restrictions."
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COURT: RACIAL INSULTS IN WORKPLACE CAN BE BARRED
BY INJUNCTION 8/20/99
In a seriously fragmented decision, the California Supreme Court has
concluded that once a business has been found to be creating a hostile
work environment by tolerating supervisors' use of bigoted language against
employees, an injunction prohibiting more of the same does not violate
the free speech guarantees of the First Amendment.
A three-justice cluster in Aguilar v. Avis Rent A Car System, Inc. Case
No. S054561, in an opinion filed August 2 and written by Chief Justice
Ronald George, found that once a jury concluded that an Avis supervisor's
stream of anti-Hispanic invective had violated employees' rights to be
free of a "hostile work environment" prohibited by the Fair Employment
and Housing Act, and had awarded money damages for the proven injuries,
an injunction to prevent further abrasions was proper, and not a prior
restraint of speech barred by the First Amendment.
The opinion stressed that Avis had not argued that the fines imposed
violated free speech rights or that the rights of Avis supervisors entitled
them to have verbally abused their subordinates. Avis's only First Amendment
argument was against the continuing effect of the injunction.
John Lawrence, the service station manager at the San Francisco Airport
Avis facility, was alleged in a lawsuit by 17 Avis employees classified
as "driver" (assigned to move cars around the lot and between
company facilities) to have "verbally harassed (plaintiffs) constantly.
He routinely called ONLY the Latino drivers 'motherfuckers' and other derogatory
names, and continually demeaned them on the basis of their race, national
origin and lack of English skills."
Five of the complainants were awarded $15,000 each by the jury; three
others were awarded $25,000. The George opinion became a four-justice plurality
with the concurrence of Jusice Kathryn Mickle Werdegar. She differed from
the others in believing that the court should expressly and thoughtfully
address a fundamental issue which they had, in effect, finessed: Whether
speech alone can, under the First Amendment, be taken to violate the law
by creating a hostile work environment. But Werdegar concluded that it
can, for several reasons. First, the workplace was a special setting over
which the government had imposed many regulations for the protection of
workers.
Second, people spend much of their time at the workplace as a kind of
captive audience; they cannot simply leave to avoid hurtful or provocative
verbiage, and if the employer (as in the case of Avis) does nothing to
protect them, they are trapped with whatever verbal abuse a supervisor
chooses to impose.
Third, from the speaker's perspective, the interference is limited.
He is free to express his hatred of Hispanics on his own time, where listeners
are free to stay or depart. The injunction operates as a measured control
analogous to long-recognized limitations on time, place and manner of speech.
But dissenters Stanley Mosk, Joyce L. Kennard and Janice R. Brown took
strong issue. Mosk in particular faulted the court's readiiness to find
the injunction constitutionally inoffensive in the absence of a clear record
of "what was said, to whom, and with what effect." The record
surviving to the supreme court contained no such information, only the
plaintiff's allegations. Kennard agreed, and added that even if some injunctive
relief were justified, the language of the order in question was overbroad,
in prohibiting Lawrence from uttering: "any derogatory racial or ethnic
epithets directed at, or descriptive of, Hispanic/Latino employees of Avis
..."
Indeed, she said, "I question whether ANY injunction prohibiting
workplace expression of particular views, however abhorrent those views,
can be reconciled with constitutional free speech guarantees..."
Brown said she could "think of no circumstance in which this court
has brushed aside such an important constitutional protection as the right
to free speech on the basis of so little analysis or authority." She
warned if speech alone could be treated as a cause of a "hostile work
environment" subject to suppression on employee protection grounds,
it could just as easily be suppressed under the related fair housing laws,
as an instance of creating a "hostile sidewalk environment."
The plurality, she said, "simply has not explained what makes the
workplace different from all other places where we have to put up with
hateful and discriminatory speech."
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COURT: SCHOOL CAN'T ACCEPT BALL FIELD BILLBOARD
AD FOR RELIGION 8/20/99
A school seeking to raise funds by selling advertising space on its
baseball diamond's fence may not, under the establishment of religion clause
of the First Amendment, accept a business owner's ad encouraging obedience
to the Ten Commandments. Denying this opportunity, moreover, is not an
infringement of the business owner's free speech rights.
In DiLoreto v. Board of Education of Downey Unified School District,
Case. No. B127050, filed Tuesday, August 17, the California Court of Appeal
for the Second District concluded that under prevailiing U.S. Supreme Court
analysis of what constitutes impermissible governmental support for religion,
Edward DiLoreto's proposed sign could not be stationed on public school
grounds.
In return for a $400 donation merchants were allowed to place their
promotional signs on the outfield fence at Downey High School, visible
to drivers on a nearby freeway. DiLoreto first offered a wordy sign incorporating
the Ten Commandments, and saw it rejected on First Amendment grounds. His
second version was more concise, simply stating "For Peace in Our
Day Pause & Meditate On These Principles to Live By!" and listing
the commandments beneath, closing with the statement,"To learn respect
for ourselves & our community we must do noble acts for the love of
God & concern of our country."
But when that offer was rejected, DiLoreto got official help to seek
an attorney general's opinion, which issued later as 79 Ops.Cal.Atty.Gen.196
(1996), concluding that under the Supreme Court's analysis employed in
Lemon v. Kurtzman (1971) - the so-called "Lemon test" - the proposed
sign was acceptable. The space-leasing program as a whole had a secular
purpose, the support for religion was a strictly incidental side-effect,
and there was no "excessive entanglement with religion," since
the religious message was contained in a commercial advertisement taken
out by a business. And since the ad was not barred, it would have to be
accepted on First Amendment grounds, to avoid discriminatory treatment
- or the ad program would have to be curtailed altogether.
That opinion apparently led the district to remove all signs from the
fencing and discontinue the fund-raising program. For the next two years,
in federal and state courts, DiLoreto fought to have the sign accepted,
and for damages for the violation of his religious and speech rights, but
summary judgment went to the school district on all counts.
In the court of appeal's view, as written by Justice Michael G. Nott,
the attorney general's opinion, even if correct, would be of little help
since DiLoreto was not offering a sign promoting his business which incidentally
incorporated a religious message; the sign was nothing but religious. Furthermore,
whether the posting was done by or with the financial support of a private
firm or not, it would appear on governmental property and would inevitably
be assumed to reflect a government endorsement for the message, especially
since it was known that the district did not accept all offered material,
but refused ads for liquor and family planning, for example.
Nor were DiLoreto's speech rights violated by exclusion of the religious
message from the fence ad program, because while religious messages must
be permitted along with any others in a public forum, the ball field fence
display was not a public forum, i.e. one thrown open or dedicated to the
expression of ideas per se, the court concluded.
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COURT: JAIL CAN BAN INMATES' MAGAZINES SHOWING
FRONTAL NUDITY 8/20/99
The proprietor of a county jail may deny inmates access to magazines
or other materials showing frontal nudty, as a legitimate exercise in penology
supporting security and rehabilitation, without transgressing the prisoners'
First Amendment rights to read what they please. Such is the case even
with respect to an unconvicted person awaiting trial.
So held the U.S. Court of Appeals for the Ninth Circuit in Mauro v.
Arpaio, Case No. 97-16021, filed Tuesday, August 17. The opinion by Judge
Thomas G. Nelson represented an en-banc revisitation of a case in which
a three-judge panel of the Ninth Circuit in 1998 had reversed a district
court decision granting summary judgment in favor of the jail.
The insitution in question is the Maricopa County Jail in Phoenix, with
an average population of 6,500 and run by the country's best-known jailer,
Sheriff Joseph Arpaio. In 1993 the jail adopted a ban on inmates' possession
of any literature depicting frontal nudty. The primary reason for the ban
was that too many women guards were being provoked, humilliated and badgered
by prisoners' unflattering comparisons of their anatomy with those depicted
in certain magazines circulating in the cells, which were also used as
kindling for other confrontations and tensions which the jailers felt dangerous.
When the magazine policy was instituted, the incidents dropped off dramatically.
Two years later a pretrial detainee, Jonathan Mauro, asked to receive
Playboy and was denied. He sued, alleging violation of his First Amendment
rights.
Judge Nelson's opinion applied a four-part test used to determine whether
prison regulations which in some way abridge constitutional freedoms do
so excessively, or instead are "reasonably related to legitimate penological
interests."
First, the opinion concluded that there was a "rational" connection
between the policy and the legitimate government interest said to justify
it. In this case the primary interest was security in the derivative sense
of reducing sexual harassment. Nelson noted that the issue was not whether
the policy was the best or even ultimately the correct solution to the
problem. The test is simply whether the prison authorities could have rationally
believed that sex magazines provoked sex harrassment, and the court concluded
in the affirmative.
Second, as to whether the policy left open adequate alternatives for
exercizing the right of receiving sexuallly explicit materials (a right
as such which the courts have not questioned), the court noted that the
only materials banned were frontally nude pictures; provocative pictures
otherwise were not banned, nor were any reading materials.
The third criterion - impact of others in the absence of the regulation
- the court had no problem identifying. Not only were female guards subject
to abuse, but inmate fights were somewhat predictable based on disparaging
comparisons with wives or girlfriends.
The final issue, whether the regulation represented an "exaggerated
response" to any real problem, in effect places the burden on the
inmate to show a less restrictive alternative adequate to the problem -
and available at trifling cost. Mauro suggested a reading room to which
the sex material would be confined, and psychological testing to determine
inmates "fit" to be exposed to the nude material. The court dismissed
these avenues as requiring more than trifling cost.
Nelson stressed the laxity of these factors. It was not necessary, he
noted, to show that banning all frontal nudity images was the "least
restrictive" means of lowering sexual teasing, taunts and tension,
only that the linkage in the prison authorities' minds was "rational."
Three judges - Mary M. Schroeder, Betty B. Fletcher and Andrew J. Kleinfeld
- dissented. They believed the regulation overbroad (in barring nudty whether
erotic or not); arbitrary in view of the goal (in failing to target erotic
illustrations not involving nudity); and needlessly indisrcriminate in
attempting to "reform" or "punish" pretrial detainees,
to whom the presumption of innocense applies. Kleinfeld in particular argued
that there were so many factual issues and uncertainties that summary judgment
was inappropriate: the matter should have gone to a jury trial.
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COURT: FLAT COMPLEX CAN BAR TENANTS' UNSOLICITED
NEWSLETTERS 7/30/99
The California Constitution does not preclude owners of apartment complexes
from forbidding tenants to deliver unsolicited newsletters to one another,
a state appellate court has concluded. The case declines to extend the
Pruneyard shopping mall case to an apartment complex, where general public
traffic is not conspicuously invited.
In Golden
Gateway Center v. Golden Gateway Tenants Association, Case No. A082319,
the California Court of Appeal for the First District issued anopinion
filed Monday, July 26. The case dealt with a downtown SanFrancisco 1,254-unit
townhouse and apartment complex which stresses privacy and security and,
accordingly, prohibited soliciting and leafleting on the premises.
When residents in the complex formed an association and began dropping
their own newsletters, the policy was not at first enforced, but as the
volume of messages increased, the management began cracking down. It ultimately
relented and agreed that it would not interfere with distribution in a
"reasonable manner." Then a new manager took office and the rate
of distribution picked up. Instead of negotiating with the new official,
the association informed him that they would stand on their constitutional
rights.
When the management sought an injunction against the practice, the trial
court issued it, but then ruled that the management had in its accommodation
effectively amended the lease terms to allow distribution six times a year.
On appeal, the conclusion of Justice Carol Corrigan for the court was
that the tenants were without constitutional support. The California Supreme
Court's decision in Robins v. Pruneyard Shopping Center was confined, Corrigan
said, to its facts, or at most to other large shopping centers, and had
been rejected by other courts in cases where plaintiffs attempted to apply
the speech and petitioning rights to smaller business establishments. Nor
was there any help in a case concluding that a vast gated community could
not selectively exclude free newspaper distribution when its own management
newspaper was allowed access to every doorstep. Nor, concluded the court,
had any concessions made by the management constituted a lease amendment
in favor of the association.
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COURT: MARKET'S FRONTAGE NOT A FORUM FOR SIGNATURE
GATHERERS 7/23/99
While California's constitutional protection for free speech may guarantee
the right to seek signatures to a petition in a shopping mall, that entitlement
does not extend to the pedestrian area fronting a freestanding supermarket.
There and on other relatively "modest retail" property, the proprietor's
right to exclude free speech activities prevails.
In Trader Joe's Co. v. Progressive Campaigns, Case No. A083723,
the California Court of Appeal for the First District held in an opinion
filed July 8 that the state supreme court's 1979 decision in Robins v.
Pruneyard Shopping Center, 23 Cal. 3d 899 did not apply to the Trader Joe's
food market in Santa Rosa. That store had obtained an injunction barring
professional petition workers employed by Progressive Campaigns from soliciting
signatures to an initiative petition from store patrons near its main entrance.
On appeal, the defendant argued that the Pruneyard case established
its right to engage in free speech activities at Trader Joe's, which it
characterized as not falling in the category of "modest retail establishments"
which the supreme court had pointedly excluded from its ruling in favor
of speech conduct in shopping malls.
In Pruneyard, the high court concluded that shopping malls like the
one at issue in San Jose, covering 21 acres and comprising interior pedestrian
walkways linking 65 shops, 10 restaurants and a movie theater, were increasingly
supplanting traditional urban commercial centers by inviting patrons to
stroll and congregate, and had thus "fully opened (their) property
to the public." In such circumstances, the court said, the mall proprietor
must be held to at least some of the public space burdens that go with
a traditional civic center, including tolerance for peaceable, nondisruptive
speech activity.
Accordingly, the court ruled, the Pruneyard center could not entirely
exclude a group of high school students who had set up a card table in
the mall's central court to solicit signatures to a petition opposing the
United Nations' condemnation of Israel for "Zionism." Instead,
it could impose only reasonable limitations on the time, place and manner
of the petitioning activity.
Despite Progressive Campaigns' invocation of this ruling in its favor,
however, the First District reasoned that Trader Joe's was indeed the kind
of "modest retail establishment" which the Pruneyard case had
expressly left with full proprietary rights to exclude unwanted speech
conduct. The Santa Rosa store was an 11,000 square foot free-standing structure
not part of a shopping center, the court noted.
In his opinion for the court, Justice Paul R. Haerle made several other
distinctions:
"Trader Joe' s invitation to the public to visit its Santa Rosa
store is more limited than the invitation made by a shopping center like
Pruneyard. Trader Joe' s invites people to come and shop for food and food
related items. It does not invite them to meet friends, to eat, to rest
or to be entertained. Indeed, citizens are not invited to 'congregate'
at the Santa Rosa Trader Joe' s. Thus, in our view, Trader Joe' s interest
in maintaining exclusive control over its private property is stronger
than the interest of a shopping mall owner... The store sells food but
has no restaurant or any place for patrons to sit and eat. Nor does the
Santa Rosa Trader Joe' s have a cinema or any other form of entertainment.
There is evidence suggesting Trader Joe' s may attract large numbers of
people. But those people come for a single purpose -- to buy goods. "
COMMENT: As noted in a recent article in
the San Francisco Recorder (see it online at http://www.callaw.com/weekly/feata712.html),
there is an increasing frequency of litigation attempting to apply the
Rose Bird court's 4-3 decision in Pruneyard to the precincts of supermarkets
and "big box" retailers that draw steady streams of patrons even
if not situated in huge shopping malls. "Civil rights lawyers blame
store owners for the litigation surge, saying they've stepped up efforts
to squelch free speech and petitioning on their properties since an appeal
court in 1997 OK'd strict regulations adopted by six L.A. area shopping
malls. But corporate lawyers say suits are being spawned by the pugnacious
employees and owners of professional, for-profit signature-gathering services."
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FREE SPEECH DEMONSTRATIONS RETURN TO BERKELEY;
RADIO IS THE ISSUE 7/16/99
"What do we want? Free Speech! When do we want it? NOW!" So
rang the chants of demonstrators in Berkeley Thursday, July 14. This time
the protest was not against University of California policies, but rather
in alarm at the accelerating collapse of dissent and even open reporting
at KPFA, the historic pioneer of radically democratic noncommercial radio.
According to a release from Media Alliance, a nonprofit organization
of freelance journalists based in San Francisco and serving the Bay Area,
the directors of the station's news department, several other KPFA staff
and 50 nonemployees had been arrested the previous evening when the station's
owner, Pacifica Radio, imposed a stark crackdown triggered by a defiant
broadcast.
The latest incident in a series of increasingly bitter confrontations
between KPFA's old guard community-based programmers and Pacifica's corporate
management style occurred when Dennis Bernstein, host of the daily "Flashpoints"
public affairs program, reported the existence and contents of a memo,
purportedly from the Pacifica board's treasurer to its president, outlining
options for increasing cash flow for some favored projects. One option:
sale of KPFA's sister station WBAI in New York City.
Reporting the memo, and even discussing any information about "internal"
issues at the station or Pacifica violated a management policy, and Bernstein
was removed forcibly from his office by company security guards after the
broadcast. The removal was reported on the air live by the station's news
director, Mark Mericle, shortly before all normal programming was suspended
in favor of taped music.
The demonstration the next day was large enough to bring out a 50-officer
contingent of Berkeley city police, which kept the protesters contained
as they moved from the station on Martin Luther King Way towards the U.S.
80 freeway and back again. A second assembly was announced for Thursday
evening.
COMMENT: KPFA -FM is probably the broadcast station most identified
with free speech and radical dissent in the nation. It began as the brain
child of pacifist Lewis Hill, a radio reporter and World War II conscientious
objector. Together with a handful of broadcasters and other pacifists,
in 1949 he established the first listener-sponsored, non-commercial radio
station in the world. A pioneer and founder of on-air fundraising, KPFA's
approach to fundraising became a model for public radio and eventually
public television.
Ironically, it appears to be the parent Pacifica group's drive in the
past several years to ambitiously look for support beyond listener contributions
and routine Corporation for Public Broadcasting (CPB) funding which has
increased friction with the older guard in KFPA's listener community. The
suspicion that Pacifica would sell one or two stations to fill the gap
between what it has and what it wants to do, whether or not well-founded,
is only the latest symptom in a fundamental rift between the visions of
the corporate board and of those in Berkeley and other Pacifica-served
communities who believe in grassroots control and involvement and abhor
the kind of commercialization increasingly visible in most other public
broadcast stations.
One aspect of the conflict brought to the attention of the California
First Amendment Coalition almost four years ago was that while federal
regulations governing the eligibility of public broadcasters for CPB funding
requires the recipient's corporate board to hold open meetings, with specified
notice and access to basic documents, the Pacifica board was flouting these
rules regularly, to the consternation of its critics. Take Back KPFA, a
movement locked in a war of values with the Pacifica board, had its representatives
locked out of the latter's meetings on several occasions, and complained
to the inspector general of CPB.
CFAC sent a letter to Pacifica's president noting the failures to follow
CPB sunshine requirements and asked for corrective action, but got no response.
And while at least three CPB inspector general's audits were done, the
staff members conducting the audits all left their positions shortly after
reporting their findings, for reasons never made clear. CPB never pursued
Pacifica on the matter.
For details on the positions of Pacifica , see http://www.pacifica.org.
The views of its Bay Area critics can be found at http://radio4all.org/freepacifica
and http://www.counterpunch.org.
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OATS INSIDE: INTEL TO GET AN UNWANTED MESSAGE
VIA PONY EXPRESS 7/2/99
Ken Hamidi, the Sacramento-based former Intel engineer enjoined by a
California court from sending e-mail to Intel employees, has announced
that next week (July 6) he will travel on horseback to Intel's corporate
headquarters in Santa Clara and deliver a message the really old-fashioned
way -- by tail-mail.
Riding on a horse named "Ponytium III," and dressed as a pony
express rider, Hamidi says he hopes "to illustrate the absurdity of
Intel's actions in obtaining a court order to bar me from sending e-mail
over the Internet." The injunction, he believes,"could be the
beginning of the end of e-mail as we know it. If Intel can do this
to me, they can do it to any of us."
After Intel dismissed Hamidi in 1995, he launched a Web site -- http://www.faceintel.com/
-- criticizing the company and later began sending e-mail to thousands
of Intel employees. The company sued Hamidi in 1998, contending that sending
unsolicited messages is a form of trespassing on its corporate e-mail routing
system, and seeking a court order to stop the messages. On June 16, Sacramento
Superior Court Judge John R. Lewis issued a permanent injunction restraining
Hamidi from sending unsolicited messages to any e-mail address at Intel.com.
The ruling has attracted the attention of national media and First Amendment
advocates, and was recently the subject of an article in the Harvard Law
Review --- http://www.harvardlawreview.org/issues/download/5-99-DEVO-III.htm
-- in which the author concluded, "Should the courts continue to prove
receptive to the theory of electronic trespass, this trend of censoring
unwanted speech will no doubt accelerate in the future, because almost
every conceivable 'trespass' in Cyberspace carries a message."
Hamidi says has set up a new Web site -- http://www.intelhamidi.com -- to inform the public about
the issues involved in the case. Meanwhile Hamidi says further information
on his 10:30 a.m. arrival is available on request to kenh@intelhamidi.com.
COMMENT: Will Intel's response include
"and the horse you rode in on?"
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JUDICIAL CONDUCT PANEL DROPS KLINE CASE, RELEASES
VOTE DATA 6/25/99
The state Commission on Judicial Performance recently voted to abandon
its disciplinary pursuit of Justice J. Anthony Kline of the First District
Court of Appeal, who had been accused of unethical conduct for expressly
refusing to follow legal precedent on a rule of procedure. A week later
it released information on how members voted in prior cases.
The two actions are unconnected. The panel's June 16 vote to terminate
the proceedings against Kline was reportedly 8-1, with no indication yet
on who voted which way. The action on June 23 to release the vote roll
call on 11 prior decisions reaching back to 1997 came as the result of
a decision by the First District recently in The Recorder v. Commission
on Judicial Performance, holding that the disclosure of vote tallies by
name was compelled by the California Constitution.
Kline had been accused by person or persons undisclosed of unethical
conduct for his refusal last year to follow a state supreme court ruling
on a relatively obscure but potentially consequential procedure called
stipulated reversal. That maneuver, blessed by the high court, allows parties
in civil disputes to have a court judgment reversed as a byproduct of their
settlement. Kline believed the procedure to undermine judicial independence
and integrity, and said so in a published opinion, as part of his dissent.
He said at the time that his overt protest was by definition the only way
to get the stipulated judgment issue to the high court's attention, since
neither of the parties concerned would ever care.
COMMENT: Normally a conventional dissent,
in which a judge says in effect that he or she simply sees the law differently,
suffices to signal to peers and posterity that there is another view of
the issues meriting consideration. But what if a judge agrees perfectly
what the law is but believes in good conscience that it undermines the
rule of law? If its subversive effect is such that no party will ever challenge
it -- because it always operates to serve the parties' short term interests
in a given case -- perhaps a judge's duty, or at least conscientious privilege,
is to take a more uncompromising stance. After all, judges are barred by
other ethical canons from doing what almost any other person in society
would be free to do under the First Amendment -- speaking and writing in
public protest about the matter on which they disagreed.
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COURT: FIRST AMENDMENT PROTECTS BROADCAST PRIVATE
CASINO ADS 6/18/99
The federal law prohibiting broadcast advertisements for lotteries and
other gambling cannot be constitutionally applied to stations in Louisiana
when they promote private casinos lawful in that state, since the law's
numerous exemptions and inconsistencies show no sufficiently compelling
federal interest to justify a ban on commercial speech.
So ruled the U.S. Supreme Court Monday, June 14 in Greater New Orleans Broadcasting Association, Inc. v. United
States, Case No. 98.837. In doing so it applied a set of tests adopted
in its 1980 case, Central Hudson Gas & Electric Corp. v. Public Service
Commission of New York, 447 U.S. 557, by which courts gauge whether state
restrictions on advertising for lawful activities -- "commercial speech"
-- are consistent with the First Amendment.
The case concerns the application of a 65-year-old federal law -- part
ofthe original Communications Act of 1934 and now found at Title 18 UnitedStates
Code Section 1304 -- which bars licensed radio or televisionstations from
carrying "any advertisement of or information concerningany lottery,
gift enterprise, or similar scheme, offering prizesdependent in whole or
in part upon lot or chance, or any list of theprizes drawn or awarded by
means of any such lottery, gift enterprise, or scheme, whether said list
contains any part or all of such prizes."
But, as Justice John Paul Stevens noted in his opinion for the court,
in which seven other justices joined, the general rule has become freighted
with an increasing number of exceptions over the years:
- some nonprofit fishing contests (1950);
- state-run lotteries, for stations in the same state (1975);
- legalized Indian casino gaming (1988);
- lotteries or casinos lawful in their home states run by any government
agency, nonprofit group or even commercial enterprise, the latter if "occasional
and ancillary" to the main thrust of the businessoperator (1988);
and
- certain legalized sports betting operations (1992).
But all these exceptions and loopholes did not reach the situation challenged
by the plaintiffs, namely the remaining ban on their carrying commercials
for legal privately operated casinos in Louisiana. They challenged that
predicament on First Amendment grounds, arguing that under the Central
Hudson case standards, their commercial speech rights were unjustifiably
infringed.
The district court and the Fifth Circuit disagreed, but the supreme
court held for the broadcasters. The four Central Hudson factors as applied:
- the content of the advertisements was not misleading and concerned
lawful activity;
- the historic governmental interests in discouraging gambling and its
attendant social ills had been clouded by a number of exceptions which
seemed to favor governmental, or even tribal and nonprofit, revenue interests;
while the former were still "substantial," they had been increasingly
set at cross-purposes with the latter by Congress;
- the ban on private casino ads had not been shown to "directly
and materially advance" the government's anti-vice interest since,
among other things, the result may simply be to drive gamblers to particular
operations rather then suppress the impulse overall; and
- the ban was more extensive than need be to achieve the anti-vice interests;
it "sacrifices an intolerable amount of truthful speech about lawful
conduct when compared to all of the policies at stake and the social ills
that one could reasonably hope such a ban to eliminate," in Stevens's
words.
In conclusion, he said, the government:
"cannot overcome the presumption that the speaker and the audience,
not the Government, should be left to assess the value of accurate and
non-misleading information about lawful conduct ... Had the Federal Government
adopted a more coherent policy, or accommodated the rights of speakers
in States that have legalized the underlying conduct, ... this might be
a different case. But under current federal law, as applied to petitioners
and the messages that they wish to convey, the broadcast prohibition ...
violates the First Amendment." (citations omitted)
COMMENT: Commercial speech protection is
probably easiest to establish when the government, as here, wants to have
it both ways: suppressing vice and yet cutting itself (or favored "clean"
players) in for a piece of the action. Fortunately, when the hypocrisy
gets too irrational, the court protects what needs preservation: advertising
that is about as truthful as any other, about recreation that may be risky
but isn't against the law.
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ECHOES RAISED OF "SON OF SAM" AND "CHECKBOOK
JOURNALISM" LAWS 6/18/99
When can the law bar payment to a person for his information about acrime?
Two recent cases from the California Court of Appeal raise this question
in widely separate contexts: a book written by a man about his1963 kidnaping
of Frank Sinatra, Jr., and the appeal of a murder conviction by a defendant
claiming a government witness was illegally "bought."
In the first case, Keenan
v. Superior Court (2d Dist., Case No. B128379,filed May 27), the California
Court of Appeal held that this state'sversion of the "Son of Sam"
law was not, like the original New Yorkstatute, invalid under the First
Amendment. The New York law was heldunconstitutional in a 1991 decision
of the U.S. Supreme Court, Simon & Schuster, Inc. v. New York State
Crime Victims Board (502 U.S. 105). That statute allowed the state, in
effect, to confiscate the proceeds of books or other literary works written
about a crime by the person who had been "convicted" of it, and
turn them over to the crime victims.
But the court found the language "overinclusive" and threatening
to legitimate expression because it was defined to apply to even incidental
references to a crime in otherwise praiseworthy works written by ex-felons,
or to material written about a crime by someone who had never been convicted
-- or even accused -- of committing it. Henry David Thoreau's "Civil
Disobedience" was mentioned as one example of a work that would be
affected, because the author admitted to violations of law for which he
had never been prosecuted.
In 1998 Barry Keenan, who had been arrested, tried and convicted for
the 1963 kidnaping of Frank Sinatra, Jr., and had been released after a
federal prison sentence, was paid for an interview by a writer for the
Los Angeles magazine New Times. The story appeared in January, and shortly
after Keenan, the writer, and the magazine sold the movie rights to Columbia
Pictures.
Sinatra heard of the proposal and went to court after he failed to persuade
Columbia that under the law Keenan's share of the proceeds of the sale
of rights should go to him, the victim. He got an injunction against the
release of any funds by the studio to Sinatra, citing the California Son
of Sam statute, Civil Code Section 2225. Keenan argued that under Simon
& Schuster, this state's law was as unconstitutional as New York's.
But the trial court disagreed, and so did the Second District.
In her opinion for the court, Justice Miriam A. Vogel noted that the
California law was written much more tightly than the New York original
disapproved in Simon & Schuster. It applies only to felons actually
convicted of a crime, and it applies only to their "depiction, portrayal,
or reenactment of" that felony, not just a "passing mention"
of it. Accordingly, Keenan's challenge to the injunction was properly overruled
by the trial court.
The other case involves the appeal of Jeremy Raymond Maldonado from
his conviction for the first degree murder of a member of a rival gang
in the Riverside area in 1996. In People v. Adame, Case No. E021856/E021904 (4th Dist.,
filed May 26), Maldonado included among his challenges the argument that
the testimony of the key witness against him, an accomplice in the murder
who turned state's evidence in exchange for a plea down to manslaughter
and was sentenced to 12 years in prison, had been illegally "bought"
within the meaning of Penal Code Section 132.5.
That law was passed in 1994 in reaction to the purported "bidding
wars" among some media outlets for interviews with various witnesses
or potential witnesses in the spectacularly covered prosecution in People
v. Simpson. The section is written in broad terms and makes it a misdemeanor
for a person to accept money or any other "benefit" in exchange
for information that might become evidence in a criminal prosecution. Maldonado
contended that this law prohibited the plea bargain under which the accomplice
testified against him.
Justice James Ward in his opinion for the Fourth District rejected that
argument, noting that the statute expressly exempts both "(l)awful
compensation provided to an informant by a prosecutor or law enforcement
agency" and "(s)tatutorily authorized rewards offered by governmental
agencies for information leading to the arrest and conviction of specified
offenders." Under one or the other of these provisions, or both, Ward
concluded, leniency offered by a prosecutor in exchange for testimony is
not barred by the statute.
The opinion in Adame had no reason to mention it, but Section 132.5
has been essentially disabled by a permanent injunction against its enforcement
won by CFAC in California First Amendment Coalition v. Lungren, 1995 U.S.
Dist. LEXIS 11655 (N.D. Cal. Aug. 9, 1995). CFAC's case convinced the court
that the "checkbook journalism" law was unconstitutionally overinclusive,
punishing speech in a variety of situations not harmful to law enforcement
interests. The chief authority relied on was Simon & Schuster -- the
supreme court's invalidation of the New York Son of Sam law.
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COURT: CHICAGO'S GANG LOITERING LAW UNCONSTITUTIONALLY
VAGUE 6/11/99
A Chicago ordinance authorizing police to arrest gang members (or others
with them) who fail to obey an order to move on, issued for want of having
an "apparent purpose" to be gathered, violates the Fourteenth
Amendment because it can be used to punish entirely innocent as well as
unlawful conduct, depending on how police judge what they see.
So ruled a six-justice majority of the U.S. Supreme Court Thursday,
June 10 in City
of Chicago v. Morales, Case No. 97-1121.
The majority opinion by Justice John Paul Stevens located the ordinance's
unconstitutional fault in its definition of "loitering," namely
"to remain in any one place with no apparent purpose." In Stevens'
words,"The broad sweep of the ordinance ... violates ' the requirement
that a legislature establish minimal guidelines to govern law enforcement.'
(citing Kolender v. Lawson, 461 U.S., at 358). There are no such guidelines
in the ordinance. In any public place in the city of Chicago, persons who
stand or sit in the company of a gang member may be ordered to disperse
unless their purpose is apparent. The mandatory language in the enactment
directs the police to issue an order without first making any inquiry about
their possible purposes. It matters not whether the reason that a gang
member and his father, for example, might loiter near Wrigley Field is
to rob an unsuspecting fan or just to get a glimpse of Sammy Sosa leaving
the ballpark; in either event, if their purpose is not apparent to a nearby
police officer, she may -- indeed, she 'shall' -- order them to disperse.
"
The "vast discretion" left to police allows them thus to decide
on the spot, spontaneously and subjectively, whether the offense of loitering
is occurring. Accordingly, the option is open to an officer to arrest a
non-gang member for innocently conversing with a gang member on any street
at any time simply because to the officer that citizen's purpose for pausing
and conversing is not "apparent." Conversely and perversely,
Stevens noted, an officer could ignore an entirely suspect conversation
simply because its criminal purpose was indeed "apparent" and
thus outside the definition of "loitering."
The impact of the Chicago law, enacted in 1992, has not been trivial.
Failure to disperse after a police order can mean a fine of up to $500,
jail time of up to six months and an order to perform up to 120 hours of
community service. Although police department regulations attempted to
narrow the sweep of the law with rules confining enforcement authority
to certain gang-targeted officers and to certain zones of the city (areas
never identified on the public record), they failed to reach the core defect
of the vagueness problem: that citizens up to no mischief at all could
be arrested for their mere stationary presence on the streets with a known
gang member.
During its three years of operation (until held invalid by the Illinois
Appellate Court on several grounds, including infringement of the First
Amendment freedom of association), the ordinance was used to arrest more
than 42,000 people. Ultimately the Illinois Supreme Court ruled that the
law violated the Fourteenth Amendment on due process grounds, in that it
was impermissibly vague on its face.
While the U.S. Supreme Court majority (Stevens, O'Connor, Kennedy, Souter,
Ginzburg and Breyer) agreed and affirmed the Illinois court's judgment,
a subset of this group (Stevens, Souter and Ginzburg) went further, concurring
in language providing a ringing defense of the right, in effect, to loiter,
tracing precedents back to England's 18th century common law commentator,
Blackstone. They concluded, in Stevens's words:
- "Lack of clarity in the description of the loiterer' s duty to
obey a dispersal order might not render the ordinance unconstitutionally
vague if the definition of the forbidden conduct were clear, but it does
buttress our conclusion that the entire ordinance fails to give the ordinary
citizen adequate notice of what is forbidden and what is permitted. The
Constitution does not permit a legislature to 'set a net large enough to
catch all possible offenders, and leave it to the courts to step inside
and say who could be rightfully detained, and who should be set at large'
... This ordinance is therefore vague 'not in the sense that it requires
a person to conform his conduct to an imprecise but comprehensible normative
standard, but rather in the sense that no standard of conduct is specified
at all.'" (citations omitted)
Justices O'Connor and Breyer provided, in a concurring opinion, a suggestion
that might remove the vagueness defect and yet get at what Chicagoans legitimately
feared, namely to amend the definition of loitering as "to remain
in any one place with no apparent purpose other than to establish control
over identifiable areas, to intimidate others from entering those areas,
or to conceal illegal activities." So also would a limitation of the
criminal penalties to gang members.
Justice Scalia filed a dissent, and Justice Thomas filed his own dissent,
in which Scalia and Chief Justice Rehnquist joined. Scalia scornfully rejected
the notion that remaining in any one place -- loitering -- is constitutionally
protected, and concluded that since it is not, the law permitting the arrest
of the father and son at Wrigley Field might be arbitrary, but not unconstitutionally
so. Thomas' dissent traced a long history of never-challenged laws against
loitering.
COMMENT: California cities' approach to
Chicago's problem is via court orders abating gangs as nuisances, and barring
public congregations of identified gang members in specific areas of the
community. Non-gang members are not brought within the target, and such
orders have survived First Amendment challenge as well, in that courts
have found the associations involved in gang members' "hanging"
in designated high-crime areas not to be the kind of personally, politically
or socially essential networks for which First Amendment protection is
intended. Vagueness challenges have also been unsuccessful against California
orders which typically focus not simply on stationary presence, as in Chicago,
but on some kind of harmful or menacing behavior -- the kind of behavior
mentioned in Justice O'Connor's suggested curative language for the Chicago
ordinance.
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WHERE THE BILLS ARE: UPDATE ON PENDING LEGISLATION
OF INTEREST AB 83 6/4/99
AB 83 (Cardenas) Artistic Home Occupations - Ban on Local
Regulation
AB 83 (Cardenas) Artistic Home Occupations - Ban on Local Regulation,
would prohibit cities within Los Angeles County from requiring writers,
musicians, movie directors or other defined "creative artists"
to have a business license or home business occupation permit, or to pay
a tax or business registration fee, solely on the basis of work done at
the artist's home. The bill is in the Senate after passing the Assembly
53-7 on June 1. It has not yet been assigned to committee.
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COURT: PLAINTIFF WITHDRAWING SLAPP MUST PAY DEFENDANT'S
FEES 4/30/99
A person suing another for some exercise of speech or petitioning rights
may prevent the defendant from having the suit ruled a SLAPP by voluntarily
dismissing the case before the court rules on the anti-SLAPP motion. This
loss-cutting tactic may deprive the defendant of a vindication on the merits,
but not of court costs and attorney's fees.
So ruled the California Court of Appeal for the Third District April
28 in Kyle v.
Carmon, Case No. C029072. The underlying litigation was brought in
1997 by James Kyle, superintendent of the Hamilton Union Elementary School
District near Chico, against Shelly Carmon, an activist on school district
issues. It alleged Carmon's involvement in a plot to paint Kyle as a racist,
largely based on her relationship with a school trustee who was then suing
the district on a civil rights claim. The causes of action included defamation,
invasion of privacy and infliction of emotional distress.
When Carmon's attorney's filed an anti-SLAPP motion under Code of Civil
Procedure Section 425.16, contending that the case was an effort to punish
protected speech and was unlikely to prevail on the merits, the trial court
held a hearing on the motion and then took it under submission. The purpose
of the anti-SLAPP motion is to allow courts to reject, at the earliest
possible stages, various kinds of civil cases brought primarily to deter
the exercise of First Amendment rights.
Two days after the hearing on the motion, Kyle requested that the case
be dismissed. A week later the court granted Carmon's motion to strike
Kyle's complaint, and ordered him to pay her court costs and attorney's
fees.
Kyle then appealed, arguing that once he filed his voluntary dismissal,
the trial court no longer had jurisdiction to declare the case a SLAPP.
In an opinion by Justice Richard M. Sims III, the Third District agreed,
reviewing a number of cases to locate the threshold before which the plaintiff's
withdrawal from the field precludes a SLAPP ruling. That point, the court
concluded, can occur at any time prior to the ruling, and in this case,
where dismissal was filed while the motion was under submission, the court
was deprived of authority to rule on it.
In terms of fairness, Carmon had two main objections to losing the benefit
of an on-the-record SLAPP determination. One was that it would make it
harder to show, in her separate suit against Kyle for malicious prosecution,
that she had gained a favorable termination in the first case. The other
was that it would cut off her right to recoupment of attorneys fees and
costs spent in defending Kyle's suit.
The court said that the first concern was unavailing, since the purpose
of the anti-SLAPP procedure was defensive and not, in Justice Sims's words,
"to assist defendants when they switch roles and become plaintiffs
seeking damages for malicious prosecution."
As for recovery of attorney's fees and costs, the court noted that the
trial judge, after fully considering the merits, had reached a SLAPP determination
and had taxed Kyle with Carmon's fees and costs as a consequence. And now,
said Justice Sims, Kyle "does not suggest that, if given the opportunity
on remand, he could show his voluntary dismissal was motivated by some
reason unrelated to the pending (anti-SLAPP) motion." Thus Carmon's
entitlement as the effectively "prevailing" defendant was upheld.
Back to top
MORSELS AND SOURCES: Brief Items and Where to
Find More 4/30/99
FS: Annoying E-Messages Legal If Not "Obscene"
5/7/99
The U.S. Supreme Court has let stand a Ninth Circuit Court of Appeals
decision saying that the Communications Decency Act doesn't mean what it
says. The statute criminalizes sending anything "obscene, lewd, lascivious,
filthy or indecent" by electronic means, with intent to bother someone.
According to the Ninth Circuit, those last four adjectives are to be ignored;
all the act bans is outright obscenity. The challengers are frustrated
with this statute-saving ruling; they wanted the law as a whole thrown
out. ApolloMedia v. Reno, judgment affirmed 4/19/99; see http://www.annoy.com
for background.
FS: Mass E-mailing Can Be Stopped As Trespass
5/7/99
A former Intel employee trying to share his grievances with the company's
current work force can be stopped from sending e-mail to their workplace
addresses. So ruled Sacramento Superior Court Judge John R. Lewis recently
in ordering Ken Hamidi, who had sent as many as 30,000 messages at one
time to the company's worldwide e-mail network, to stop what Lewis said
was a trespass to personal property, i.e. the corporate e-mail server.
Hamidi says the notion is nonsense, that the server's capacity was never
threatened, that recipients could always opt off the mail list, that few
did, and that the order is an unconstitutional prior restraint on speech.
See http://www.faceintel.com.
FS: Interest in Hot Issue Not Flagging:4/30/99
A U.S. Senate judiciary subcommittee approved, on a 5-3 party line vote
April 21, yet another bill aiming to amend the First Amendment to allow
states to outlaw flag burning and other desecration. Previous bills to
this effect have fallen short, but the last one by only four votes in the
Senate. See LEGI-SLATE News Service on the Web at http://www.legislate.com/xp/p-daily/i-1999042101/a-924733492/article.view.
A week earlier, the counterpart subcommittee in the house approved adifferent
bill to the same effect, by a 7-4 party line vote. See http://www.legislate.com/xp/p-daily/i-1999041401/a-924135743/article.view.
Back to top
COURT: CALIFORNIA'S ANTI-SLAPP MOTION CAN BE MADE
IN FEDERAL COURT LAWSUITS 3/26/99
In a significant advance for the vigor of California's protection against
intimidation suits brought to chill speech, petitioning or the seeking
of redress in the courts, a federal appeals court has held that the anti-SLAPP
motion can be made in a federal court lawsuit in California. The result
promises SLAPP targets equal shelter irrespective of the choice of forum.
In U.S.
ex rel. Newsham v. Lockheed Missles and Space co., Inc., case nos.
97-16704, 98-15111, the Ninth Circuit, U.S. Court of Appeals recognized
and applied California's anti-SLAPP motion to keep two former Lockheed
employees' whistleblower's lawsuit against the company alive, thus enabling
them -- as stand-ins for the government -- to seek a share in the penalties
assessed for Lockheed's alleged submission of false contract claims.
Lockheed, in combating the qui tam action, filed its own counterclaims
against the plaintiffs, alleging breach of fiduciary duty, company loyalty,
and good faith and fair dealing in bringing charges against their former
employer. The plaintiffs' response was to cite California's anti-SLAPP
statute, moving to strike the counterclaims as efforts to punish them for
exercise of their rights to petition the courts for relief. Lockheed answered
with the argument -- which U.S. District Court Judge James Ware adopted
-- that the state law of procedure should not be entertained in federal
court, especially since it conflicted with federal court rules dealing
with striking and dismissing causes of action.
But the Ninth Circuit disagreed, seeing no irreconcilable conflict and
on the contrary noting a benefit to be served by allowing federal courts
to entertain California's anti-SLAPP motions. In the words of Seattle District
Court Judge Robert Bryan (sitting by designation on a panel of appeals
judges):
"Plainly, if the anti-SLAPP provisions are held not to apply in
federal court, a litigant interested in bringing meritless SLAPP claims
would have a significant incentive to shop for a federal forum. Conversely,
a litigant otherwise entitled to the protections of the anti-SLAPP statute
would find considerable disadvantage in a federal proceeding."
A SLAPP suit is typically a civil action for damages, and may be dismissed
-- with court-ordered payment by the plaintiff of the defendant's attorney
fees -- in cases where the defendant asks the court to throw the case out
because it is unlikely to succeed on the merits and has been filed more
to intimidate speech, petitioning or other First Amendment activity in
a public forum than to redress actual injury.
COMMENT: This case is of special interest
to the news media, not uncommonly targets of libel or privacy litigation
and sometimes sued by out-of-staters in federal court diversity actions.
It stands for the proposition that whether a defendant deserves protection
from a meritless suit brought to chill speech should depend on what the
claim is and how sturdy its chances are, given the First Amendment or other
defenses -- and not on which courthouse the action was filed in.
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BILL WOULD MANDATE OBSCENITY SCREENS FOR LIBRARY
COMPUTERS ACCESSING THE INTERNET 2/26/99
While court cases in California and elsewhere
have reached different results on this issue as a First Amendment concern,
new legislation would flatly require that all public libraries in California
equip all of their computers providing Internet access with software capable
of blocking connections with sources of obscene material, as legally defined.
SB 238
by Senator Joe Baca (D-San Bernardino) as introduced states simply:
"Every public library that provides public
access to the Internet shall purchase, install, and maintain computer software
for use on all of the computers available for public use, or in the case
of a library that has only one computer, for use on that computer that
prohibits access to obscene matter, as defined in Section 311 of the Penal
Code, on the Internet."
COMMENT: Obscene matter so defined means "matter,
taken as a whole
-- "that, to the average person, applying
contemporary statewide standards, appeals to the prurient interest;
-- "that, taken as a whole, depicts or describes
sexual conduct in a patently offensive way; and
-- "that, taken as a whole, lacks serious
literary, artistic, political, or scientific value."
It is not clear what kind of software is capable
of making these judgments, on which living juries are so unpredictable
that obscenity prosecutions are fairly rare, given the proliferation of
suspect material. The problem with current blocking software is precisely
its literalism -- using verbal cues primarily to screen out essentially
all overt references to sex (even in material of "serious literary,
artistic, political, or scientific value") while potentially missing
more subtly phrased erotica.
Not long ago a Contra Costa superior court decision
ruled that the Livermore library system could not be compelled to use blocking
software on all machines, and a federal court in Philadelphia has likewise
struck down Congress's latest attempt in the Internet censorship field,
which focuses not on obscenity but on "harmful matter for children."
This phrase embodies a recognized legal category -- a double standard which
recognizes maturity levels as a relevant consideration such that some nonobscene
material might not be redeemed by any "serious literary, artistic,
political, or scientific value" for youngsters.
Harmful matter controls in California statutes
and elsewhere have been upheld against constitutional challenge, i.e. the
objection that nonobscene erotica cannot be placed off limits to all in
order to place it beyond children's reach. Such distinctions are reflected
in separate adults-only zones in retail stores and video rental outlets,
and in a state law which requires harmful matter street newsracks to be
monitored by an adult attendant. An analogous approach would be to reserve
some library terminals for minors' use, and equip them with blocking programs
or situate them to be monitored by a library employee, whereas the unblocked,
unmonitored units would be available to adults. No such system is foolproof,
but then neither is that supposedly optimal arrangement: parental control.
If parental control were foolproof, schools and libraries would have no
headaches on this score to begin with.
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COURT: FIRST AMENDMENT PERMITS BAN OF COMMERCIAL
SOLICITING ON COURTHOUSE SIDEWALK 2/12/99
A Santa Clara County municipal court rule banning all solicitation activity
on all court property was unconstitutionally over broad, the California
Court of Appeal for the Sixth District has ruled. But a narrowed rule could
bar business solicitation on the entry sidewalk of the Los Gatos muni court
without infringing First Amendment rights, the court concluded.
In Ciraulo v. Municipal Court (Case No.
H017708) (unpublished; originally filed October 2, 1998), the issue was
the validity under the First Amendment of a municipal court policy prohibiting
any kind of solicitation of the public at any place in court buildings
or on court property. The clash came with the attempt of Wayne Ciraulo,
whose business involved a variety of nonlawyer but court-related services,
to pass out handbills from a point on the six-foot-wide main entry sidewalk
of the Los Gatos court.
Justice Patricia Bamattre-Manoukian for the Sixth District held that
entry walkways on court property (as distinct from city sidewalks adjacent
to courts) were neither traditionally ceded nor specially dedicated forums
for speech, and thus the question became whether the restriction was "reasonable"
under the circumstances, and not discriminatorily applied to a certain
viewpoint. While Ciraulo's use of the sidewalks was not inconsistent with
court functions (as many other imaginable commercial solicitations might
have been), the fact remained that the distribution activity itself threatened
interference with orderly coming and going of people with business before
the court. This would be especially true if a number of other conceivable
vendors and solicitors also availed themselves of the sidewalk to pitch
their services, Bamattre-Manoukian said.
She distinguished other, more generous cases in that they involved premises
in some way set up to provide information about government activities,
or involved public issue speech of one kind or another, which is given
more deference than commercial solicitation in general.
On the other hand, the overall court restriction was found too broad
on its face, banning all kinds of speech from all court property in all
instances. There might well be other non-commercial speech whose expression
might not disrupt ingress or egress or otherwise disturb the proper court
functioning.
(CFAC has no copy of the opinion in digital form. To obtain a paper
copy, contact plaintiff's counsel James Chadwick at
jchadwick@smmff.com).
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SUPREME COURT TO REVIEW CALIFORNIA CASE ON COMMERCIAL
ACCESS TO RECORDS 1/29/99
The U.S. Supreme Court agreed on Monday, January 25 to review a decision
of the Ninth Circuit Court of Appeal which last summer held that a California
law putting arrest records off limits to commercial requesters violated
the First Amendment right of lawyers and others to send information to
the arrestees.
The case, United
Reporting Publishing Corp. v. California Highway Patrol,
centers on an amendment of several years ago to the California Public Records
Act, which provides that public information about arrests, including the
name and address of the person arrested, is available only "where
the requester declares under penalties of perjury that the request is made
for a scholarly, journalistic, political, or governmental purpose, or that
the request is made for investigation purposes by a licensed private investigator
. . . . Address information obtained pursuant to this paragraph shall not
be used directly or indirectly to sell a product or service to any individual
or group of individuals, and the requester shall execute a declaration
to that effect under penalty of perjury." (Government Code Section
6254 (f) (3)).
United Reporting Publishing Corp, which among other enterprises bought
name and address lists of recently arrested persons from police agencies
and sold them to attorneys, insurance companies, drug and alcohol counselors,
religious counselors, and schools, sued seeking an injunction against enforcement
of the no-commercial-use clause in the access rule, arguing that its free
expression rights lawfully to communicate information generally available
to the public had been violated. The U.S. District Court agreed, and when
the CHP and Los Angeles Police Departments appealed, so did the Ninth Circuit.
That court ruled that United Reporting's use of the arrest information
qualified for protection even as merely "commercial" speech,
since the underlying purpose of the bar on access by commercial users was
ostensibly to protect the privacy of those arrested, and yet the same statute
of which it was a part made the fact of the arrest accessible to the press
and the general public. Under the analysis used by courts to test the constitutionality
of restrictions on commercial speech, the privacy protection was selective
at best and not calculated to address the arrestees' most central privacy
concerns.
"The myriad of exceptions to (Section) 6254(f)(3) precludes the statute
from directly and materially advancing the government's purported privacy
interest," concluded Circuit Judge Diarmuid F. O'Scannlain for the
court. For example, "It is not rational for a statute which purports
to advance the governmental interest in protecting the privacy of arrestees
to allow the names and addresses of the same to be published in any newspaper,
article, or magazine in the country so long as the information is not used
for commercial purposes. Having one's name, crime, and address printed
in the local paper is a far greater affront to privacy than
receiving a letter from an attorney, substance abuse counselor, or driving
school eager to help one overcome his present difficulties..."
Before the U.S. Supreme Court, lawyers for the police authorities are expected
to argue that the law's differential treatment of commercial users is not
a First Amendment affront because it does not prevent them from communicating,
but rather simply forecloses one category of government information which
they would otherwise use to target their messages. The law could have put
arrest information off limits to everyone, and that would not violate the
First Amendment, they contend. They maintain that, as it stands, the law
fosters press and other communications about crime by leaving the information
generally accessible, and restricting access only to those with a narrow
business purpose for its use.
COMMENT:
As far removed as this case seems from the pursuits of most citizens and
journalists, it is of vital and far-reaching significance. It tests a proposition
that seems obvious to CFAC and like- minded observers, but has never been
explicitly adopted by the U.S. Supreme Court, namely that the govern- ment's
withdrawal of public access to information about its activities (and those
it acts upon) is an indirect but unquestionably effective means of stifling
speech. If, as the appellants' lawyers suggest, the California Legislature
simply made all arrest information secret, does anyone doubt that that
alone would end most reporting and discussion about particular arrests
and would end absolutely all informed discussion thereof? The trend in
this state to making "public" information accessible only to
those on a list of presumptively legitimate users (the press, researchers,
government officials, etc.) needs to be re-examined before it becomes the
default approach. N.B.:The bill that added the no-commercial use amendment
to the law was authored by Senator Steve Peace (D-Chula Vista), whose recently
introduced contribution to privacy interests (SB 29) would require all information-
gatherers (no exceptions) to notify individuals about whom they had collected
facts and get their consent for use of the information.
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COURT:
SPEECH RELATED TO OFFICIAL PROCEEDINGS BROADLY PROTECTED FROM SLAPPS 1/22/99
The California Supreme Court has ruled California's anti-SLAPP law protects
citizens from unmeritorious lawsuits aimed to punish their comments about
matters dealt with in court and other official proceedings even when uttered
outside the proceedings. The protection applies whether or not the offending
statement broached a matter of "public concern."
Briggs
v. Eden Council for Hope and Opportunity, Case
No. S062156 filed January 21, is the court's first encounter with the anti-SLAPP
statute (Code of Civil Procedure Section 425.16) since its enactment in
1992. The justices voted 5-7 to heed the tenor of recent legislative amendments
urging a generous, speech-protective reading of the law.
In general, the statute benefits those who have been sued for exercising
their legally protected speech (or speech-related conduct) for libel, slander
or on other theories. It gives them breathing space and an initial advantage
at the threshold of the case, by making a motion asking the court to require
the plaintiff to show without further delay that his or her case is solid
enough that it is likely to win. Frequently this amounts to a showing that
the defendant's speech not only supplied the offensive ingredients of the
tort, but was not protected by any recognized privileges or constitutional
defenses.
If the plaintiff's case as outlined in this early phase turns out faulty,
the court grants the requested "motion to strike" and the speech-related
case is dismissed, saving the defendant a costly trial. In addition, the
court requires the plaintiff to reimburse the defendant for court costs
and attorney's fees related to preparing the anti-SLAPP counteroffensive.
But to qualify for this protection, the speech (or in some cases even acts)
in question must be "in furtherance of (the defendant's) right of
petition or free speech under the United States or California Constitution
in connection with a public issue." In turn, the statute lays out
several examples of what might qualify:
"(1) any written or oral statement or writing made before a legislative,executive,
or judicial proceeding, or any other official proceeding authorized by
law;
(2) any written or oral statement or writing made in connection with an
issue under consideration or review by a legislative, executive, or judicial
body, or any other official proceeding authorized by law;
(3) or any written or oral statement or writing made in a place open to
the public or a public forum in connection with an issue of public interest;
or any other conduct in furtherance of the exercise of the constitutional
right of petition or the constitutional right of free speech in connection
with a public issue or an issue of public interest."
At issue in Briggs was item (2) above as it applied to the facts. It involved
a number of unflattering statements made by personnel of the Eden Council
for Hope and Opportunity (ECHO), an Alameda County nonprofit group offering
counseling, assistance and advocacy to lower-income renters in their disputes
with landlords. The statements at issue were 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."
But on appeal from the First District's ruling, Supreme Court Justice Kathryn
Mickle Werdegar, writing for the majority, disagreed. Reviewing the statute's
legislative history, including recent amendments stressing the intent that
the protection be read broadly, she concluded that if a challenged statement
was made either in the course of or in connection with a matter in an official
proceeding such as a trial, a HUD investigation or even a local meeting
or hearing such as those covered by the Brown Act, there need be no separate
proof that the matter was one of "public significance." For purposes
of deciding anti-SLAPP protection, the very fact of a controversy or proposal
being in such an official forum made it a matter of sufficient public significance.
In Justice Werdegar's words, "the timing of the Legislature's amendment,
considered together with relevant legislative history and materials related
to both the original statute and the amendment, amply demonstrates the
Legislature' s intent consistently has been to protect all direct petitioning
of governmental bodies (including, as relevant here, courts and administrative
agencies) and petition-related statements and writings."
Supporting this conclusion, she said, was a policy consideration. Using
the proceeding test without laboring to find some independent "public
significance" would provide a "bright line" for courts in
judging whether the behavior qualified for the protection. Not every motion
to strike will prevail; if the trial court concludes that the plaintiff's
case is probably a winner, the motion will fail and the suit will proceed.
All that the motion accomplishes is to ensure that true SLAPPs cases brought
to punish or intimidate legally protected speech and petitioning activity
will be sifted out at the earliest possible point.
COMMENT:
Justice Werdegar is right. The anti-SLAPP law creates no new privileges
or defenses. It simply allows defendants to bring them into play when they
are most effective in curtailing protracted and costly litigation. A party
to a bitter custody battle, for example, who shreds his ex's reputation
in out-of- court statements to the press, may be granted an anti-SLAPP
motion in any subsequent slander case against him. But since the media
comments would normally enjoy no privilege (especially if the victimized
plaintiff were not a public official or figure), the odds againstwinning
the motion ending the case would still be very long. On the other hand,
Briggs qualifies all speech and petitioning in or about matters in official
proceedings for the opportunity to abort merit less lawsuits before they
can have their wasting effect. If, as the dissent by JusticeMarvin Baxter
argues, the result is to make anti-SLAPP motions available far beyond the
context which first inspired the 1992 legislation well- heeled business
entities striking terror into public interest advocates the fact remains
that only privileged or otherwise legally defensible speech will be shielded
from full litigation on the merits. If anyone with such a privilege or
defense is now afforded the most effective timing to assert it, one has
to ask why that is a bad outcome.
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COURT:REGISTRATION, DISCLOSURE RULES FOR
PETITION CIRCULATORS UNCONSTITUTIONAL 1/22/99
The U.S. Supreme Court has held that Colorado's law violates the First
Amendment rights of paid petition circulators in requiring that they be
registered voters and display ID badges with their names, and that the
proponents of the petition report to the state their names, addresses and
the amounts they were paid.
The 5-4 majority opinion by Justice Ruth Bader Ginsburg in Buckley v.American
Constitutional Constitutional Law Foundation;
(Contact CFAC for full text) surveyed prior case law on state regulation
of election procedures and concluded that each of the Colorado requirements
interfered with the First Amendment petitioning freedom without sufficient
cause, and in particular were not sufficiently justified by the state's
interest in preventing fraud on the voters in ballot initiative petitions.
The need to require that gatherers be registered to vote in the state had
not been demonstrated as a necessary safeguard to allow the secretary of
state to subpoena them, Ginsburg said, since there was already a residence
requirement in place which had not been challenged nor shown to be insufficient.
Confining circulators to the pool of registered voters, therefore, "cuts
down the number of message carriers in the ballot-access arena without
impelling cause. "
Moreover, requiring petition gatherers to identify themselves on badges
worn while soliciting served no such sufficient purpose, and yet interfered
with the right of anonymity often associated with free speech and petition
interests. The majority carefully left for another day, however, the question
of whether the state could require a badge disclosure of whether the circulator
was volunteer or paid, and if the latter, by whom.
For the same reasons, reporting circulators and their addresses to the
state burdened their legitimate anonymity interests without sufficient
cause, since reports of the total amounts spent by petition sponsors on
circulationactivities was already required, had not been challenged and
provided the public with adequate information as to the source and scale
of funding put behind matters seeking electoral attention, the majority
concluded.
COMMENT: The
worst "fraud" encountered in the promotion ballot initiatives
is probably not the street level variety involved in fiddling with the
authenticity of petitioning signatures or otherwise inappropriatelysoliciting
signatures. The worst fraud is likely found right under everyone's nose:
in how the petition sponsors (and opponents) characterize the thrust of
such proposals in mass advertising trading on fear, envy, malice and greed
and counting on a dim and susceptible electorate. And yet fraud at this
level is clearly protected as political speech, and so must be combated,
if at all, by more speech. Keeping the worst abuses out of ballot initiative
campaigns is not the job of the state, but the responsibility of those,
including but not limited to the press, with the independence, the means
and the will to give voters the facts they need to filter out the bunkum.
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