Stories:2000
Free Speech

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

2000

Court: Anti-Slapp Statute Applies To Senior Community 'War' (12/15/00)

A.G. Asked When Schools Can Ban Political Buttons On Staff (11/22/00)

One Speech Offender Arrested Trying To Get Ballot To Another (11/9/00)

Schools Move To Suspend Students For Offensive Language (10/27/00)

Court: Speech Retaliation No Basis For Federal Case Against Schools (10/6/00)

Court: Young Offender Properly Kept From Wearing Heart On His Skin (10/6/00)

Court: Hud Officials Not Immune In Hounding Vocal Housing Protesters (10/6/00)

Court: No Teacher's Right To Dissident Bulletin Board In School (9/8/00)

Court: Iranian's Fatwa Fears Well-Founded, Meriting Asylum (9/8/00)

Court: Abortion Opponents Properly Kept Off School Campus (8/18/00)

San Bernardino speech Offenders Spared Extensive Jail Time (8/18/00)

Court: Cops' Complaints About Superior Not Protected Speech (8/18/00)

CFAC Asks Supervisor Chair To Seek Dismissal In Speaker Arrest (7/28/00)

Court: Free Radio Berkeley's Challenges Had No Place In Court (7/21/00)

Cases Test Zoning Strategies Facing Adult Book, Video Retailers (6/30/00)

Court: Federal Child Online Protection Act Is Unconstitutional (6/23/00)

Civic Activist Groups Sue Postal Service Over Petitioning Ban (6/2/00)

Low-Power Fm Licensing Backers Raise Alert After House Vote (4/28/00)

Court: Paycheck Punishment Of Prof A Violation Of Speech Rights (3/31/00)

Court: Deputy's Speech Rights May Be Protected From Payback (3/24/00)

Court: Council Member's Treatment By Peers No Speech Affront (3/24/00)

Poll: By A Hefty Margin, Torn Voters Back The Initiative Process (3/17/00)

Court: First Amendment No Shield For Speech You Won't Admit (3/17/00)

D. A. Refuses To Prosecute "Walmart 9" For Petitioning/Protest (3/10/00)

Terminix Drops Lawsuit Against Yuba City Customer's Web Forum (3/10/00)

Court: Panhandling Can Be Punished Under State Constitution (3/3/00)

Journalist Headed for Jail Thursday Unless Federal Court Issues Stay (2/23/00)

First Amendment Arguments in the Forest, or, Whose Land is This Land? (2/11/00)

Dissident Begins Year And A Half Jail Term For Speech Crimes (2/4/00)

Court: Ban On Protest In Road Building Zone Was Constitutional (1/28/00)

POLL SHOWS EVEN SPLIT ON PROTEST DISTANCE ISSUE HEARD BY SUPREME COURT 1/21/00

COURT: WRITERS CAN'T CHALLENGE HOME BUSINESS TAX BEFORE PAYING 1/14/00

COURT: ANTI-SLAPP STATUTE APPLIES TO SENIOR COMMUNITY 'WAR' (12/15/00)
Attacks on the competency of the manager of a senior citizens' planned community of more than 1,600 homes, including critical statements made by residents at association board meetings and articles printed in a privately-edited residents' newsletter, were "public" enough to be entitled to the protection of California's anti-SLAPP law.

So concluded the California Court of Appeal for the Fourth District in Damon v. Ocean Hills Journalism Club, Case No. D034890, filed Wednesday, December 13.

The plaintiff, Dennis Damon, was the general manager of the homeowners association governing Leisure Village at Ocean Hills in northern San Diego County, with approximately 3,000 retired residents, a golf course and other recreational amenities, a staff of about 60, and an annual budget normally topping $3 million.

The defendants were residents who sharply disagreed with the retired marine officer's management style, and said so, repeatedly and vigorously, from shortly after his hiring in 1996 through early 1998. Specifically, they included the Ocean Hills Journalism Club, a group of residents who published the community's unofficial newsletter (the association had its own official publication); two members of the association's board; and several other residents who wrote critical stories or letters in the club's newsletter. Their common activity was to publish, speak and generally agitate against Damon ­ in the newsletter and at board meetings.

By the end of 1997 Damon was the axis splitting the community into two camps, for and against, in what one resident testified later as being a "war zone with verbal salvo(s) being lobbed back and forth," reflecting "hate and discontent."
Damon finally resigned, then sued the club, the two directors and several newsletter writers for defamation. The defendants filed anti-SLAPP motions that the trial court granted, concluding their offending speech had been uttered on public issues in public forums. Then concluding that the plaintiff was unlikely to win the suit since the speech consisted largely of protected opinion, the court dismissed the case.

On appeal, the Fourth District agreed that, despite the private nature of the community and its management for some purposes, Ocean Hills was large enough as a community that its management was a public issue, commented on in suitably public forums, to warrant protection from SLAPPs. In the unpublished portion of the opinion the appellate court agreed with the trial judge that the comments, oral and written, were protected opinion.

 

A.G. ASKED WHEN SCHOOLS CAN BAN POLITICAL BUTTONS ON STAFF (11/22/00)
Can public school districts prohibit staff members from wearing political buttons while on duty but outside regular instructional hours-including, but not limited to "back-to-school nights?" That's the question Attorney General Bill Lockyer's office will be answering in a published opinion. Comments from the public are being solicited.

In a 1994 published opinion (No. 92-120) the attorney general's office concluded that "a school district may prohibit its elementary school teachers from wearing buttons expressing political opinions on statewide ballot measures during classroom periods. A district would have a legitimate pedagogical interest in preventing its students from viewing political
material they may not understand and in protecting itself against a perception that its classrooms are being used for partisan political advantage. Such a restriction upon the teachers' First Amendment rights would be permissible if set forth in a regulation or rule adopted pursuant to the terms of Section 7055."

Section 7055 of the Education Code makes an exception to the general rule that schools may not restrict the political expression of employees. It states: "The governing body of each local agency may establish rules and regulations on the following: "(a) Officers and employees engaging in political activity during working hours. "(b) Political activities on the
premises of the local agency."

That opinion concluded that classrooms were not public forums for the teachers' personal expression, which if voiced to a captive audience of pupils might run the risk of being identified as representing the official views of the school or district.

The current questions are:

"1. May a school district lawfully prohibit employees from wearing political buttons while on duty even if those duty hours fall outside the usual instructional day?

"2. May a school district lawfully prohibit employees from wearing political buttons at Back-to-School night?"

Responses, requested by December 18, should reference Opinion No. 00-1103, and should be sent to:

Deputy Attorney General Gregory Gonot, P.O. Box
944255, Sacramento, CA 94244-2550.

 

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ONE SPEECH OFFENDER ARRESTED TRYING TO GET BALLOT TO ANOTHER (11/9/00)
Shirley Goodwin, arrested in June for out-of-order comments at a San Bernardino Board of Supervisors meeting, was arrested again on election day while trying to get an absentee ballot to Jeff Wright, in jail for comparable speech violations. She faces prosecution for insisting on her right to question a newly announced jail visitation policy.

Wright is back in jail to serve out four more months after being released from the San Bernardino County jail in September and then abruptly recommitted about a month later. His current jail term, which began last February, was triggered in the summer of 1999. At that time he was held to have violated probation by objecting to a procedural ruling by the mayor of San Bernardino that shortened Wright's time for addressing the body at a meeting.

At its recent annual Assembly in Fullerton, the California First Amendment Coalition announced a Black Hole Award for San Bernardino's district attorney and board of supervisors, as well as the mayor, for their roles in treating violations of speech limits at public meetings as offenses suitable for prosecution and substantial jail time. Responses by the district attorney and the county administrative officer defended their actions and blamed the speakers.

Since then, Goodwin's home was searched on a warrant citing robbery ­ apparently referring to her earlier efforts to recover a cat from the hands of an animal control officer. All her audio tapes were seized, including a number she had been keeping to document a pending civil rights action against the county for a raid on her home several years ago. The search warrant has since been sealed, Goodwin says.

The officers conducting the search found Wright in Goodwin's house and took him into custody. He was recommitted to jail after a brief court hearing in which a prosecutor satisfied a judge that he had been released by mistake.

Goodwin, in attempting to get an absentee ballot to Wright on Tuesday, used a letter from Wright's attorney authorizing her to visit him in her capacity as a licensed private investigator. Goodwin has gotten a same-day visit with Wright under this authorization process several times before.

But on this occasion, Goodwin told CFAC, she encountered resistance at the first jail checkpoint, when a clerk complained that the attorney's authorizing letter had been faxed, and dated from October. Goodwin noted that these issues had not been a problem on prior visits. The clerk conferred with a supervisor then allowed Goodwin to proceed, despite insisting on a contrary "policy" of which she could not produce any written copy.

At the second checkpoint, Goodwin says, the gate officer began scolding her for challenging the jail policy and on her general attitude. She insisted that her visit credentials had been accepted as being in compliance, and told him he had no right to lecture her for questioning the policy. He told Goodwin to leave, and when she refused he arrested her on a violation of Penal Code Section 148, in which one who "resists, delays, or obstructs" a public safety officer in the performance of duty is guilty of a misdemeanor.

While Goodwin was held in custody and before her release on citation, officers searched her car parked outside. They also refused to return a badge issued to her a dozen years ago upon her retirement in good standing as a sheriff's sergeant, she said. A jail official told her the badge was the property of the sheriff's department. Goodwin said that when she protested, one officer said, "So sue us."

The sheriff's office issued a press release accusing Goodwin of shouting obscenities and refusing to leave the jail. It created the impression that she had tried to pass herself off as "representing" Wright, noting that she was not an attorney. Goodwin denies these assertions.

Goodwin faces arraignment on December 7. She was unable to deliver the ballot to Wright, who told CFAC that it was the first time he has ever missed voting.

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SCHOOLS MOVE TO SUSPEND STUDENTS FOR OFFENSIVE LANGUAGE (10/27/00)
In Clovis, a high school senior has been suspended for two days for greeting his fellow African-American friend with "Whazzup" and the N-word. It was a white bystander who turned him in for uttering an offensive word. In Sacramento, two high school students were suspended for an off-campus zine carrying crude insults to a variety of targets.

Incidents such as these illustrate the clash of state laws ostensibly giving student speech as much protection as the First Amendment affords, and even more, with the real-world determination of school officials to suppress racial and other adolescent aggressions "post-Columbine."

The Buchanan High School senior in Clovis, Nathan Martin, argued that his use of the term in context was a harmless, non-provocative expression.

Martin's friend, Maurice Ward, agreed. "It's a natural word. It's a dude thing," he told the Fresno Bee. "We use it as a greeting. We use it during basketball."

Nathan's mother told the Bee that she doesn't like anyone using the term, but realizes it's a commonplace of communication among many, especially young, African-Americans. And she's upset that her son would be punished for using it as he did.

But the policy of the Clovis Unified School District doesn't recognize any contextual distinctions. Area superintendent Rene Errotabere commented, "We have two ethnic students who are calling each other words that would not be acceptable if a white student was calling them that word.

"So, to be consistent, we are saying that is a racial slur no matter who speaks it, and we are taking consistent action," he said.

Mrs. Martin said she hoped the district would reconsider its suspension decision. "He doesn't get in trouble. He's not a bad student," she said. "He just wants to graduate from high school."

Meanwhile two Sacramento High School students were suspended for five days and ordered to a "behavior hearing" when copies of a home-made zine they produced began showing up on campus, containing a purported photo of lesbians kissing, and offensive references to racial minorities, "fatties," cheerleaders and various school administrators and teachers.

The Sacramento Independent Press had four issues published last year and two this fall, with the October number finally provoking official reaction.

An attorney for the school said the material was potentially libelous toward faculty members. The school principal, Judy Billingsley, told the Sacramento Bee, "It's not a First Amendment issue when it comes to disrupting education."

The Bee found student reactions mixed. Caroline Sosa, editor of the school's official paper, the X-Ray, acknowledged that the Independent Press "put down everybody, but it was meant to be a joke. I don't support it, but I support the students' right to express themselves."

Another student who preferred not to be named said," I thought it was funny until I saw the 'N' word."

Comment: When one carefully assembles all the statutes that may bear on these incidents, including those cited by Sacramento High School to justify its suspensions for "hate violence," it should become clear that state law sets a fairly high and clear barrier against overreaction to abusively offensive or even provocative language used by high school students.

Education Code Section 48907 requires much more tolerance than the First Amendment, as interpreted by the U.S. Supreme Court, would require of school administrators:

"Students of the public schools shall have the right to exercise freedom of speech and of the press including, but not limited to, the use of bulletin boards, the distribution of printed materials or petitions, the wearing of buttons, badges, and other insignia, and the right of expression in official publications, whether or not such publications or other means of expression are supported financially by the school or by use of school facilities, except that expression shall be prohibited which is obscene, libelous, or slanderous. Also prohibited shall be material which so incites students as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school."

Section 48950, whose legislative history clearly indicates an intent to protect students from discipline resulting from an excess of political correctness, states:

" (a) School districts operating one or more high schools and private secondary schools shall not make or enforce any rule subjecting any high school pupil to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article 1 of the California Constitution.
(b) Any pupil enrolled in a school that has made or enforced any rule in violation of subdivision (a) may commence a civil action to obtain appropriate injunctive and declaratory relief as determined by the court. Upon motion, a court may award attorney's fees to a prevailing plaintiff in a civil action pursuant to this section.
(c) This section does not apply to any private secondary school that is controlled by a religious organization, to the extent that the application of this section would not be consistent with the religious tenets of the organization.
(d) Nothing in this section prohibits the imposition of discipline for harassment, threats, or intimidation, unless constitutionally protected.
(e) Nothing in this section shall be construed to supersede, or otherwise limit or modify, the provisions of Section 48907.
(f) The Legislature finds and declares that free speech rights are subject to reasonable time, place, and manner regulations."

Education Code Sections 48900.3 and 48900.4, on which Sacramento High School appears to be relying, apply to "hate violence," a term which by reference to other statutes amounts to criminal violations of civil rights:

Section 48900.3 states:

"... a pupil in any of grades 4 to 12, inclusive, may be suspended from school or recommended for expulsion if the superintendent or the principal of the school in which the pupil is enrolled determines that the pupil has caused, attempted to cause, threatened to cause, or participated in an act of, hate violence, as defined in subdivision (e) of Section 233*."

*That section defines "hate violence" as "any act punishable under Section 422.6, 422.7, or 422.75 of the Penal Code." These are the state's civil rights protection provisions, of which the key expression is subdivision (a) of Section 422.6:

"No person, whether or not acting under color of law, shall by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States because of the other person's race, color, religion, ancestry, national origin, disability, gender, or sexual orientation, or because he or she perceives that the other person has one or more of those characteristics."

Section 48900.4 states:

"...a pupil enrolled in any of grades 4 to 12, inclusive, may be suspended from school or recommended for expulsion if the superintendent or the principal of the school in which the pupil is enrolled determines that the pupil has intentionally engaged in harassment, threats, or intimidation, directed against a pupil or group of pupils, that is sufficiently severe or pervasive to have the actual and reasonably expected effect of materially disrupting classwork, creating substantial disorder, and invading the rights of that pupil or group of pupils by creating an intimidating or hostile educational environment."

Such conduct almost certainly consists in something dramatically more focused and ferocious than the kind of tasteless, mindless and heartless immaturity demonstrated in an off-campus zine.

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COURT: SPEECH RETALIATION NO BASIS FOR FEDERAL CASE AGAINST SCHOOLS (10/6/00)
A California school district employee cannot use the federal Civil Rights Act to sue her employer for retaliatory action taken in violation of her First Amendment rights-not because retaliation is always lawful but because California schools, as arms of the state, are immune from suit under the act altogether. The same principle would bar a civil rights suit on any other grounds.

So ruled the California Court of Appeal for the Fourth District in Kirchmann v. Lake Elsinore Unified School District, Case No. E026060, filed September 27.

The case involves Norma Kirchmann, who after nine years as a permanent employee of the district was in 1994 a secretary in its facilities department. A certain architectural firm was serving as project manager for a middle school under construction, and a particular consulting architect for that firm, Mellissa Truitt, had principal responsibility.

Kirchmann's supervisor, an assistant superintendent, was then put in charge of making recommendations for designating a firm as permanent project manager for all future district construction. He assigned the details of this task to Truitt, who rewrote the request for proposals, reviewed the 18 responses, worked with two district officials including Kirchmann's boss to select the interview finalists, sat as one of four interview panel members, and at the direction of Kirchmann's boss, drafted a proposed agenda item for the board, recommending her own firm for the permanent contract.

Kirchmann, who was given the agenda item to type up, used her home fax machine to contact 16 unsuccessful bidders for the contract, informed them of the recommendation to go to the board and Truitt's role in the selection process, and stated, "Since there appears to be a conflict of interest, at least in the professional sense, it might be in the interest of your company to attend the board meetingand question the legalities involved."

The item never made it to the board agenda, ostensibly because of concerns for funding, but shortly thereafter Kirchmann was suspended for 30 days without pay on a variety of charges. She sued in superior court challenging the discipline on First Amendment grounds, but the court ruled that the district's interests in promoting the efficiency of its processes outweighed her free speech interests.

The California Court of Appeal for the Fourth District, in Kirchmann v. Lake Elsinore Unified School District, 57 Cal.App.4th 595 (1997), reversed and remanded the matter, directing the lower court to order the district to rescind the suspension and restore all benefits lost as a consequence. The court found that Kirchmann's statements in the alert to unsuccessful bidders involved a matter of public concern, were either substantially true or excusably oversimplified, did not substantially undermine any close working relationships, did not breach confidentiality, and did not seriously impair the employer's outside relationships, e.g. with the bidders. It concluded that her First Amendment rights, even as an employee, had been impermissibly infringed.

Kirchmann then filed the current case against the district, seeking damages under the federal Civil Rights Act. The district demurred, arguing that it was an arm of the State of California and therefore immune from suit under the federal act, and the superior court agreed. On appeal, the Fourth District affirmed the dismissal. After a long analysis of the statute and a prior leading case in particular, Justice Betty A. Richli summarized the court's conclusion:

" California school districts are subject to substantially more than 'some' state funding and control; in fact, as discussed, beneficial ownership of their funds and other property resides in the state, and they are agencies of the state under state law. Therefore, the District shared the state' s immunity from suit under section 1983, and the trial court properly sustained the demurrer."

Comment: Part of the court's case law basis for this conclusion are decisions concluding that because of the 11th Amendment, Congress did not intend states themselves to be sued in federal or state court under the Civil Rights Act.

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COURT: YOUNG OFFENDER PROPERLY KEPT FROM WEARING HEART ON HIS SKIN (10/6/00)
A juvenile court's order barring a 15-year-old delinquent, as a term of probation, from marking his body with more tattoos, brands, burns or scars was not a violation of his First Amendment rights. But the order's prohibition against body piercing should be narrowed to forbid only punctures having gang significance and done without the legally required consent of the youth's parents.

So ruled the California Court of Appeal for the Fifth District in In re Antonio C., Case No. F034727, filed September 25.

Antonio C., then 15, after being spotted at Madera High School lighting some homemade object and throwing it into the air where it exploded, was charged in juvenile court with felony possession of an explosive and placed on probation. He had denied gang membership but admitted associating with the Surenos. He had "Trust No Bitch" tattooed on his chest, and on his shoulders, clown faces said to be gang emblems. A probation officer (this was not his first visit to juvenile court) had found a gang belt buckle in his home on a routine visit.

His new probation conditions included restrictions on how he covered or altered his skin symbolically, and he challenged these conditions on free expression grounds. A pun-filled summary by Justice James A. Ardaiz, author of the court's opinion, observed:

"Antonio presents this court with a graphic and penetrating constitutional question. He contends the probation condition barring him from obtaining 'any new tattoos, brands, burns, piercings or any voluntary scarring,' as opposed to a condition barring new gang-related body markings and piercings, impermissibly prohibits him from acquiring a tattoo or marking honoring his mother, his girlfriend, or his country. As such, the condition bars conduct unrelated to future criminality, is over-broad, and infringes on his constitutional right to free speech. "

The court noted that for a minor, tattoos are illegal with or without parental consent, and brands, burns or scarring could be interpreted as pathological self-mutilation, a condition minors are properly protected against, or even consent to mayhem, itself a crime. As a rehabilitation issue, the court reasoned, prohibition of this activity was not an undue burden of expression rights, especially in being content-neutral-not related to any message intended-and "a reasonable manner restriction."

Piercing was a different matter, however, since minors are legally permitted to have their lips, eyebrows, tongues or noses punctured with parental consent. Thus assuming that consent, "the absolute piercing prohibition is invalid because it has no relationship to the crime of which Antonio was convicted, relates to conduct that is not itself criminal, and bars conduct that is not reasonably related to future criminality. We will modify that aspect of the probation condition accordingly."

 

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COURT: HUD OFFICIALS NOT IMMUNE IN HOUNDING VOCAL HOUSING PROTESTERS (10/6/00)
Officials of the federal Department of Housing and Urban Development are not immune from personal liability for having pursued Berkeley residents for their organized resistance against a plan to convert a former motel into housing units for the homeless. HUD officials should have known that the residents' rights to oppose the project were protected by the First Amendment.

So ruled the U.S. Court of Appeals for the Ninth Circuit in White v. Lee, Case No. 99-15098 99-15109 99-16033, filed September 27.

The case involves the personal liability of a half-dozen HUD officials, including an assistant secretary of the department and five members of the San Francisco regional office, for infringing the First Amendment rights of members of a neighborhood coalition in Berkeley who resisted the establishment of a residence for mentally disordered and drug-handicapped people near their homes.

The conflict was sparked when a nonprofit group, Resources for Community Development, sought zoning permission to convert a motel to housing units for the homeless. It needed a use permit from the city's zoning adjustment board, and also approval from the city council. Its initiative to obtain the permit prompted three residents living near the motel to appear before the board and in other public meetings, write letters to the city council, publish a newsletter, speak to the local press and attempt to rally neighborhood merchants-all in opposition the what they called the city's effort to force the project "down our throats."

The board granted the use permit, however, and an appeal to the council opposing the permit failed. A coalition including the three vocal residents sued the city and the nonprofit group, alleging that a member of the group's board was also on the zoning board that had approved the permit, and seeking an injunction, citing the asserted conflict of interest. The superior court ultimately ruled against the plaintiffs but the project developer experienced funding problems.

Meanwhile a Berkeley advocacy group, Housing Rights, Inc., complained to the San Francisco regional office of HUD, citing the agitation against the project and the lawsuit as violations of the rights of the handicapped and homeless under the federal Fair Housing Act. Thereupon, as summarized by Judge Stephen Reinhardt for the Ninth Circuit, the San Francisco office:

"initiated an eight-month investigation into the neighbors' activities and beliefs. During the course of its investigation, HUD officials questioned the neighbors under threat of subpoena about their views and public statements regarding the challenged project; directed them to produce an array of documents and information, including all involved parties' names, addresses, and telephone numbers and all correspondence or other documents relating to their efforts in opposition to the project; informed them and a major metropolitan newspaper that they had violated the Fair Housing Act; and advised them to accept a 'conciliation proposal' that required them to cease all litigation and the distribution of 'discriminatory" newsletters and flyers. The HUD officials in San Francisco recommended finding that the neighbors had violated the Fair Housing Act, but officials in Washington ultimately concluded that no violation had occurred and that the neighbors had engaged solely in activity protected by the First Amendment."

White v. Lee is thus the Civil Rights Act damages suit by the original three project protesters against the HUD officials who had investigated and threatened them with liability. In the trial phase the district court denied the defendants' motion for summary judgment, finding they were not protected by qualified immunity and that they had violated the residents' First Amendment rights, leaving only the issue of damages for trial.

The Ninth Circuit affirmed entirely. First, the court concluded that the plaintiff's free speech rights had been violated, since the public meeting appearances, newsletter statements and other expressions were all protected expression, as was the lawsuit itself-although ultimately not successful, not baseless or without merit either.

Second, the officials should have known better and thus were not entitled to qualified immunity. Their argument that the investigation and pressure on the protesters was necessary not so much because of the vocal campaign as because of the lawsuit was fatally weakened by their final investigative report to headquarters in Washington D.C. That report, which found "reasonable cause" to believe the plaintiffs had violated the housing act, contained no substantial information about the lawsuit at all, and focused in detail on the speech and publication of the group's protests.

Comment: The denouement of this dispute, well-publicized at the time, included a policy clarification by HUD intended to minimize the chances of citizens being hounded for such advocacy in the future. As described by the court:

"(A) memorandum issued by Roberta Achtenberg, Assistant Secretary for (HUD's Fair Employment and Housing Office), dated April 3, 1995, and titled 'Substantive and Procedural Limitations on Filing and Investigating Fair Housing Act Complaints That May Implicate the First Amendment' prohibits HUD officials from accepting for filing or investigating any complaint involving public activities that 'are directed toward achieving action by a governmental entity or officials' and 'do not involve force, physical harm, or a clear threat of force or physical harm to one or more individuals.' It lists examples of protected speech activity and provides that 'any investigation which may be necessary to obtain information about the extent to which the First Amendment may be applicable should be prompt, narrowly tailored to gather sufficient preliminary data to allow such a decision to be made, and conducted in close consultation with counsel.' It prohibits document requests that seek 'membership lists, fundraising information or financial data of an organization that is or may be engaging in protected speech activities,' and the preparation or transmission of conciliation proposals 'that would circumscribe the First Amendment rights of any party to the complaint.' The Achtenberg memorandum also states that a 'lawsuit which is frivolous can be a violation of the Act.' While it does not define this standard or discuss the First Amendment concerns involved with respect to the filing of nonfrivolous suits, the memorandum provides that 'given the sensitivity and complexity of the issues relating to such litigation, all situations involving claims that litigation amounts to a violation of [§ 3617 of the FHA] must be cleared with Headquarters before the complaint is filed.' More broadly, the memorandum states that where FHA concerns 'intersect with First Amendment protections," HUD officials must defer to the latter: 'the Department chooses to err on the side of the First Amendment.'"

The memorandum was among the first principal acts of Ms. Achtenberg on being appointed. She came to the post from the San Francisco Board of Supervisors, where she was the original author of what would become the city's first Sunshine Ordinance, which was drafted by CFAC.

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COURT: NO TEACHER'S RIGHT TO DISSIDENT BULLETIN BOARD IN SCHOOL (9/1/00)
When a public school adopts an official line on an issue and promotes it by allowing staff to create supportive bulletin boards in school corridors, dissident teachers have no First Amendment right to erect bulletin boards to take issue with the sanctioned view. Some freedoms students may enjoy to express dissent on campus do not extend to teachers.

So ruled the U.S. Court of Appeals for the Ninth Circuit in its opinion filed September 7 in Downs v. Los Angeles Unified School District, Case No. 99-56797, a case involving controversy over tolerance for homosexuality.

In 1992 the Los Angeles School District board designated June of each year as "a time to focus on gay and lesbian issues," and by 1997 it was known as Gay and Lesbian Awareness Month.

The district provided its own promotional literature for the observance, and at its Doris S. Leichman High School some staff members put up a bulletin board on which they and others could post material along the same line. Poster titles or content included "The Civil Rights Movement," "Diversity Is Beautiful;" name calling; "What Is a Family?;" statistics on hate crimes; "The Rainbow Flag;" and miscellaneous comparable themes and material stressing tolerance, and re-emphasizing the official blessing given to respect for gays and lesbians.

Leichman teacher Robert Downs balked at this new sensitivity and put up his own bulletin board across the corridor from his own classroom, titling it "Testing Tolerance," posting on it his own collage of documents and authorities, including among them suggesting that 60 percent of Americans believe homosexuality to be immoral, and most "mainline" religions in the nation "condemn homosexual behavior," a quotation from Leviticus 18:22-24 calling homosexual congress "detestable;" a passage citiing anatomical structures and functions for the proposition that nonprocreative sex is not "appropriate and natural;" and noting that "the United States Supreme Court upheld state authority to maintain laws prohibiting homosexual sodomy."

In June of both 1997 and 1998, other faculty complained about Downs' material and his board was ordered taken Down because, one of the two successive principals involved later testified, he "did not see the activity supporting tolerance and diversity." Downs sued, and the district court ultimately ruled for the school authorities, concluding that they had license as school authorities to define and promulgate doctrine reasonably related to educational concerns. The court said school authorities need not host antithetical positions because such postings could easily be confused by students or the public as the approved view.

The supportive teachers' postings were protected not because of their "freedom" under the First Amendment but simply because they expressed or spoke for the government itself. Downs' views were unprotected, the court reasoned, because of the risk they would be identified by students or others as those of the school or the district-simply because they were
allowed to remain on the corridor wall. And, as the U.S. Supreme Court concluded in Hazelwood School District v.Kuhlmeier, 484 U.S. 260 (1988) -the high school newspaper "censorship" case-a public school can control the content of official school publications, performances or other expressive activities if there is a serious risk that the content would
be perceived as reflecting the views of the institution as a governmental agency, and providing that the content control has a legitimate educational rationale.

"Just as a school could prohibit a teacher from posting racist material on a bulletin board designated for Black History Month, the district judge observed, " (LAUSD) may prohibit (Downs) from posting intolerant materials during "Gay and Lesbian Awareness Month."

The Ninth Circuit, in its opinion by Judge Stephen S. Trott reached the same result, upholding the district's action, although for somewhat more complicated reasons. In a situation such as this, where the school board adopts an educationally related and legitimate policy such as tolerance (if it is not legitimate, the court suggests, the public can always correct or eject the trustees) and dedicates a particular month to the promotion of "awareness" of this theme, any congruent bulletin board
appearing in school hallways-even if put up spontaneously by faculty members rather than administratively arranged-is deemed to be the speech of the government itself.

To put it differently, although the board's policy was to make June "a time to focus on gay-lesbian issues," abundant other district policy material made it clear that the dignity or morality of homosexuals or homosexuality was not invited for debate, and that the inculcation of "tolerance" was the sole objective. Accordingly, bulletin board postings made by individual teachers were permitted if supporting this effort, unpermitted if to the contrary, and this differential treatment "Simply because the government opens its mouth to speak does not give every outside individual or group a First Amendment right to play ventriloquist. As applied here, the First Amendment allows LAUSD may not speak as its representative. This power is certainly so if his message is one with which the district disagrees."

COMMENT: "Intolerance will not be tolerated." This case is probably best understood as being confined strictly to its facts and setting, i.e. where an impressionable young audience might arguably conclude that any
faculty member's posting permitted on a corridor bulletin board carried not only the school's imprimatur but its affirmative support. Ironically, under the California Education Code students cannot be prohibited from posting or otherwise expressing on public school campuses the very views which Downs was not permitted to post.
The court's ventriloquism metaphor is a bit strained, however, since Downs wasn't attempting to hijack or monopolize the dummy's voice, just get in his own views for a moment or two. That the case gives schools a
rather comprehensive license to control any faculty expression that could possibly reach students on campus, and isn't just about "ventriloquism,"is apparent when one asks whether the outcome would have been any
different if Downs had prominently labeled his bulletin board as reflecting his own personal views and not those of the school, district or any official agency. Under this case, schools need not settle for such disclaimers; when teachers are speaking in a manner accessible to students in the school environment, the administration can insist on either agreement with official policy or at least no message challenging
it.

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COURT: IRANIAN'S FATWA FEARS WELL-FOUNDED, MERITING ASYLUM (9/8/00)
An Iranian citizen's request for asylum in the United States was well-founded in adequate evidence to show that he faced persecution or even death -- for helping circulate a bootleg translation of a condemned novel ­ if forced to return to his native land. So ruled the U.S. Court of Appeals for the Ninth Circuit in Zahedi v. INS, Case No. 98-71179.

Abbas Zahedi ran stores in Tehran selling auto parts and electronic equipment when, in 1994 or 1995, he heard about Salman Rushdie's novel, The Satanic Verses, its less than reverent treatment of some subjects sacred to Islam, and the consequent death order placed by the Ayatollah Khomeini on the head of Rushdie, who is in hiding to this day.

The sensation of it all made Zahedi curious. As he later explained, "I thought maybe [government officials] are try ing to hide something from people, from us. Therefore, I was determined to find this book, no matter how expensive or dangerous it is, and find out what it is about and let the people know. It was very important to me and I was very curious of that -- the people ruling . . . my country who claim that they are . . . the freedom fighter[s], and at the same time they have determined . . . so many million dollars for the -- to kill this writer . . . who we all know everybody has a right to write freely, and I was really curious to find out what this book is all about. "

Zahedin met with a neighborhood friend identified only as Moshen, who had been expelled from a university in Iran for his political beliefs. Moshen then began translating the novel into Farsi, and as each chapter was done Zahedi would make multiple photocopies and hand them out to sympathetic acquaintances. The friends knew the stakes and swore to each other that if either was arrested he would never betray the other.

But then Moshen was arrested, and Zahedi feared that his friend would be tortured into naming him, fled to Canada. On the day of his departure the Iranian authorities began trying to serve a summons for him to appear in court. They harrassed his family, seeking his whereabouts and published a legal notice demanding his appearance in lieu of a default verdict (an interesting approach in a criminal and potentially capital case). A supposedly confidential letter (copy later smuggled out to Zahedi) went from the Bureau of Interrogation (under or after whose attenions Moshen had died) to the Islamic Revolutionary Court, accusing Zahedi as one "active" in the Islamic Verses translation and dissemination conspiracy and recommending that the court proceed.

All this Zahedi placed before the Immigration and Naturalization Service's administrative law judge, but she denied his asylum petition on credibility grounds. His narrative testimony about the events was supported by copies of the personally served summons, the newspaper summons notice, the letter naming Zahedi as complicit in the Verses crimes, and Moshen's death certificate.

The Ninth Circuit, in an opinion for the court by Judge Betty B. Fletcher, concluded that the immigration judge had been too exacting and suspicious. Her disbelief of Zahedi had much to do with his testimonial vagueness on precise dates of time sequences in some parts of his story. These traced mostly to the fact that his account was being interpreted by someone having to cope on the fly with not only a different language but a very different calendar. Moreover, Fletcher noted, the immigration judge should have given more weight to the documents, which were not subject to the same fuzziness as his testimony. Substantial evidence, the opinion concluded, favored Zahedin's credibility, and thus the basis for his asylum claim. In Judge Fletcher's words:

"Since the (immigration judge) found that Zahedi was not eligible for asylum, she rejected his application for withholding of deportation. To be eligible for withholding, an applicant must establish 'a clear probability of persecution' upon return, which has been interpreted to mean that it is 'more likely than not' that the applicant will be persecuted... This court has explained that 'a key factor in finding evidence sufficient for withholding of deportation is whether harm or threats of harm were aimed against petitioner specifically.' ... "In this case, both Zahedi' s testimony and the documents he provided establish that the Iranian government was actively pursuing him personally for his activities related to translating and distributing the Satanic Verses. It is highly likely that if Zahedi were to return toIran, he at the very least would be imprisoned, and at the worst tortured or executed for distribution of The Satanic Verses. Under such circumstances, a grant of withholding of deportation is appropriate."

 

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COURT: ABORTION OPPONENTS PROPERLY KEPT OFF SCHOOL CAMPUS (8/18/00)
A Placer County Superior Court Judge has ruled that four citizens seeking access to a high school campus to distribute literature opposing abortion and supporting sexual abstinence were properly excluded. Judge John L. Cosgrove reasoned that the speech rights of the applicants were not abridged since the campus was not a public forum.

The July 27 ruling, not yet reduced to a final statement of decision, came in a lawsuit by members of the Sanctity of Human Life Network (SOHLNET) against officials of Rocklin High School near Sacramento. In May of 1997, and then a year later, a total of four SOHLNET representatives asked permission to enter the 1,600-student campus to hand out their materials but were turned away by the school administration.

The four sued, citing four bases for relief including violation of their First Amendment rights. In the trial of the case in May of this year, the defendants pointed to the conduct of other SOHLNET members picketing on the public sidewalk along the school's frontage, calling it disruptive and risking a traffic jam as well as violent confrontations between some picketers, shouting "Repent," and some students, answering with obscenities.

SOHLNET's attorney told CFAC that picketers' conduct outside the campus did not make the proposed distribution of literature on campus disruptive, and that those seeking admission for this purpose were quiet, polite and undemonstrative.

But Judge Cosgrove, according to an account in the Sacramento Bee, focused instead on the nature of the school property itself, which he said was not "a public forum...for the unrestricted distribution" of material by outsiders.

Cosgrove called the purpose of a high school "to educate our youth in a safe environment under the direction of trained professionals preparing them for adult life in the work force or continued college education," adding that it was "hard to imagine how this purpose could be advanced by a barrage of special interest groups using the high school campus to advance their own viewpoint, as noble as the cause may be."

Llewellyn predicted that the group would likely appeal the ruling once it became final.

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SAN BERNARDINO 'SPEECH OFFENDERS' SPARED EXTENSIVE JAIL TIME (8/18/00)
Bob Nelson, a citizen watchdog facing as much as a year in jail for failing to yield the microphone at a San Bernardino County Supervisors' meeting, has had his sentence reduced to 30 days plus a fine and probation. A fellow board critic, Shirley Goodwin, will not be prosecuted for her own outspokenness at a board meeting - at least not now.

Nelson, 63, was convicted almost two years ago of disturbing three board meetings and resisting arrest, but the latter counts were reversed by the appellate division of the superior court, since the videotape showed he offered no resistance. But he still faced a year's potential sentence, which was recently canceled when his attorney pointed out that Nelson had not been present at the sentencing.

The final sentence, imposed August 9, allows Nelson to serve the jail time on weekends but also subjects him to a $110 fine, 250 hours of community service and three years on probation. This package of penalties was as requested by Nelson's attorney, Allen Bartleman, who called a year's jail time "excessive and heavy-handed."

Bartleman's emphasis on the frailty of free speech in the face of heavy jail time led the sentencing magistrate, Superior Court Judge Christopher Warner, to counter that "if everyone behaved in this fashion, we would have anarchy."

Deputy District Attorney Beth Houser had sought a six-month sentence, which was the original sanction imposed on another time-limit violator, Jeff Wright - until Wright was held to have violated his probation by later breaches of time limits at other meetings, landing him in jail for a term of 18 months, which he is now serving.

Shirley Goodwin, a retired deputy sheriff, was removed from a supervisors' meeting and arrested on June 20 when she spoke up from the audience once too often. Her momentary outburst protested having been wrongfully cut off at the microphone earlier - when it became clear that she had been addressing a matter on the agenda after all.

District Attorney Dennis Stout determined on July 13 not to pursue the count of disturbing a public meeting, a fact which Goodwin learned only when reporting to court for her arraignment on July 31.

In response to a letter from CFAC General Counsel Terry Francke asking him to ask Stout to forbear prosecution of Goodwin in the interests of justice, Board Chairman Jon D. Mikels responded, "I do not believe it appropriate to interfere with or attempt to influence the independent discretion of the District Attorney with regard to the matters mentioned in your letter."

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COURT: COPS' COMPLAINTS ABOUT SUPERIOR NOT PROTECTED SPEECH (8/18/00)
Two Los Angeles police officers' repeated intradepartmental complaints and criticisms of a superior officer, although arguably matters of some public concern, were also markedly corrosive of discipline, working relationships and morale. Consequently, their transfers to other divisions, albeit retaliatory, did not infringe the officers' free speech rights.

So concluded the U.S. Ninth Circuit Court of Appeals in its opinion, filed August 17, in Cochran v. City of Los Angeles, Case No. 98-56834.

Officers Stanley Cochran and Dean Anderson, both white men, developed increasingly abrasive and resentful relationships with a black superior, Lieutenant Kathy Age, between the time she took her position in the spring of 1993 and the following year, when they were transferred from the Foothill Division to the Hollywood and Wilshire Divisions, respectively. They believed Age was overprotective of certain of their black colleagues who they contended violated various regulations, and said so repeatedly, and continued to pursue their complaints after higher supervisors had ordered them to drop the matters.

The last straw for Cochran was his entry into an official log the statement that the truth did not matter to Lieutenant Age. He was transferred less than a month later. Anderson's last offense was to disregard an order from two captains to stop his investigation of an alleged sleeping on patrol infraction by a black officer who he thought had been wrongfully shielded by Age.

After their transfers both officers first sought administrative relief. The Board of General Appeals upheld the division's right to transfer the pair, but recommended that unfavorable comments about the reasons for the transfers be purged from their personnel jackets, and that they be given the choice of which division they would be transferred to. But LAPD Chief Willie Williams, not bound by the board's recommendations, did not accept them.

Cochran and Anderson then sued, claiming a violation of their civil rights in that they had been disciplined in unconstitutional retaliation for exercise of their speech rights. They also claimed injury under California's employee whistleblower statute. The U.S. District Court rejected the civil rights claim, initially dismissing it on the basis that their speech was not of public concern - the first element a public employee plaintiff must establish in speech retaliation cases. But the officers amended their complaints, and because the city was late in its motion for summary judgment, the case went to trial.

The jury found for the officers (except in their claim against Chief Williams) and awarded Cochran $100,000, Anderson $75,000, and both their attorney's fees.

The Ninth Circuit, in an opinion by Judge Jane A. Restani (sitting by designation, seconded from the U.S. Court of International Trade), reversed the judgment on the civil rights claim, concluding that while the officers' speech touched on matters of some public concern - even if never publicly voiced - it was not protected against disciplinary consequences.

"The employer' s interest outweighs the employee' s interest in speaking," wrote Judge Restani, "'if the employee' s speech " impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker' s duties or interferes with the regular operation of the enterprise."' "

In this case, she noted, the officers' statements "directly challenged Lieutenant Age' s ability to make decisions free from personal bias or preferences, and undermined her authority." Anderson' s speech and actions also tended to undermine the authority of the two captains who had told him to desist in his investigations of the sleeping incident.

In addition, the nature of the officers' protests and complaints "was conducive to racial and gender tension, and several witnesses testified to the development of 'camps' of people, often based on race or gender, within the Foothill station that would disrupt the 'harmony among coworkers,'" Judge Restani stated, adding: "This disharmony seems particularly troubling in a police station, where 'personal loyalty and confidence' are essential to the 'close working relationships' among the officers."

As to when, how and where the complaints and criticisms were voiced - another factor in assessing the degree of disruptiveness a government employer is not required to tolerate - Judge Restani observed:

"In this case, although the appellees made their direct accusations against Lieutenant Age privately to Captain Gale, they interviewed other police officers regarding the alleged incidents of favoritism, thus making their beliefs known to other officers who were subordinate to Lieutenant Age. Moreover, the speech was not directed to the public so that it independently could assess the functioning of the police department. The speech, while touching on racial and gender equality issues, largely involved internal office matters, particularly one supervisor - Lieutenant Age, and apparently stemmed, at least on Cochran' s part, from personal concerns. Cochran disliked Lieutenant Age from the beginning of their relationship. Cochran also did not complain to Captain Gale until after Cochran had been reprimanded in the union dispute.

"Anderson was a close friend of Cochran' s and they expressed the same concerns. Additionally, Anderson' s continued unwillingness to accept his superiors' disposition of his complaints bordered on insubordination and raised both workplace discipline and disruption considerations. There are a range of acceptable dispositions of complaints against police officers. It should have been expected that the appellees' superiors would take action when the appellees refused to accept the dispositions selected by their superiors, whether or not those decisions were based on the correct understanding of the facts of the complaints."

The court reversed the civil rights judgment but remanded the case to the district court to decide what the outcome would be on the state whistleblower law claims independently considered.

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CFAC ASKS SUPERVISOR CHAIR TO SEEK DISMISSAL IN SPEAKER ARREST (7/28/00)
The California First Amendment Coalition has asked the chairman of the San Bernardino County Board of Supervisors to request that the district attorney seek dismissal of charges in the impending prosecution of a citizen arrested for "piping up" once too often at a supervisors' meeting on June 20. Shirley Goodwin faces arraignment Monday.

Goodwin was removed from the meeting and arrested on charges of disturbing the peace after objecting audibly from her seat three times at perceived unfairness at how speakers were being treated. The first comment questioned the proposed removal of a speaker who, after Goodwin's protest, was not removed. The second comment was to note that another speaker, Bob Nelson, was being cut off at the speaker's podium before his three-minute time limit had elapsed. He was then allowed to conclude his remarks.

Chairman Jon D. Mikels then warned Goodwin that a further outburst from the audience would leave her to "face the consequences."

The third interjection involved Goodwin's own treatment. She was speaking to one aspect of an agenda item ­ a proposed contract for psychiatric services ­ but was interrupted by board chairman Jon D. Mikels that her concern for use of psychiatric personnel to screen jail inmates was not part of the proposal. "You don't have a clue," said Mikels. Goodwin then yielded her time and sat down.

A moment later, the official making the proposal conceded inmate screening was indeed part of the services covered by the contract, but that he hadn't included them in his comments.

Goodwin said from her seat, "Excuse me ­ What was my question?" and was promptly ordered removed. Goodwin, on disability retirement from her prior service as a deputy sheriff, asked the deputy escorting her out if she was being arrested, and on what charges. She was told Penal Code Section 415 (disturbing the peace, an infraction), but was taken to the jail and booked on Penal Code Section 403 (disturbing a public meeting, a misdemeanor).

This incident occurred against a background in which Jeff Wright, an abrasively intense speaker on many topics at a variety of agency meetings in the county, is serving an 18-month jail sentence after a prosecution and parole violation on disruption charges. Bob Nelson, a quieter but emphatic critic who publishes a web site critical of county agencies' patterns of removal of speakers from meetings (http://www.ephemeralpress.com), is facing what could be as much as a year in jail for refusing to yield the podium at a supervisors' meeting until taken out by a deputy.

Nelson's sentence (temporarily in abeyance and due for reconsideration August 9) has attracted an unusual spate of newspaper attention, including stories in the Los Angeles Times and the San Bernardino Sun and stories and a column in the Riverside Press-Enterprise. The general tenor of the coverage is to highlight the remarkable use of extensive jail time to punish stubborn but nonviolent behavior in connection with critical speech in a public forum.

CFAC's letter, signed by general counsel Terry Francke and faxed to Mikels today (Friday, July 28), asks Mikels to "lend your authority to request the District Attorney to dismiss, in the interests of justice, the charges of disrupting a public meeting on which Shirley Goodwin was booked in connection with the incident of June 20."

Seeking a longer-term solution, the letter notes that "CFAC also offers to work with you and other interested county officials, if you so desire, to develop a policy that will in the future obviate the resort to Penal Code arrests and prosecutions as a sanction for what amounts to, at worst, a misappropriation of official time and attention."

Francke notes that the CFAC board does not share or even know the issue agenda advocated by Goodwin, Nelson or Wright, and appreciates how speakers can sometimes test the patience of public bodies, and holds "no brief for chaos or even passive obstruction of the people's business."

Nonetheless, the letter states, "we believe that tradition and the law itself ­ state statute as well as constitutional principles ­ argue against resort to criminal prosecution for what the record shows Ms. Goodwin's conduct was at the meeting in question. Earlier prosecutions were likewise, we believe, improvident, and in that sense it is not a satisfactory answer to note that the defendants were convicted by due process. If we all were duly prosecuted for every transgression of statute arguably leaving us culpable, who would be left to visit us?"

Moreover, the letter expresses concern that the county's justification for removal and arrest, alluded to as a three or four page "protocol" by a deputy sheriff who testified at Nelson's trial, has been withheld from Nelson, apparently as a privileged attorney-client communication.

"We find it striking," the letter observes, "that the confrontations which were the predicate for the jailing of Mr. Wright , for the arrest and trial of Mr. Nelson, and for the arrest of Ms. Goodwin, all involved their attempts to get clarification of how the body was applying its speech rules. Surely if there is a protocol of several pages on when removal is appropriate and what consequences may flow from it, sharing it with the public might have answered such questions."

The letter acknowledges "that the District Attorney has independent discretion as to how Ms. Goodwin's arrest should be dealt with. But we also are confident that, as that of the presiding officer whose request for removal here was involved, your position on the matter would be given considerable respect."

COMMENT: Speakers who test the limits of order and official patience at public meetings are hardly unique to San Bernardino County. And yet unless the press throughout the rest of the state has been oddly silent and complacent about such matters, no county seems to be sending people to long months in jail for such annoyances. San Bernardino County has had its embarrassments in recent years (see U.S. Attorney's press release below), and now should be the time to avoid the impression that it is silencing those who feel, as do Shirley Goodwin and the other arrested speakers, that the agenda for reform is not completed.

 

ALEJANDRO N. MAYORKAS
United States Attorney
Central District of California

Thom Mrozek, Public Affairs Officer

October 27, 1999

Four former top officials in the County of San Bernardino were charged today with accepting bribes in three schemes in which millions of dollars in government contracts where awarded to individuals who paid the bribes.

The United States Attorney's Office today filed criminal charges against the four ex-officials and three private citizens who paid the bribes to obtain county business for themselves and their companies. All seven defendants have agreed to plead guilty to federal charges. Three of the defendants have agreed to cooperate with authorities in an ongoing corruption investigation.

At the center of the three schemes is James J. Hlawek, the former county administrative officer, who played a role in all three schemes by accepting bribes to influence the awarding of contracts to a waste management company, a financial consulting outfit and a consultant who offered motivational seminars.

Those charged today in United States District Court in Los Angeles are:

* James J. Hlawek, 53, of Carlsbad, who served as the county administrative officer from June 1994 until August 1998;
* Harry M. Mays, 60, of Carlsbad, who was CAO from 1986 to 1994;
* Kenneth James Walsh, 52, of Carlsbad, who was a vice president of Norcal Waste Systems, Inc., a waste management company, and who was in charge of Norcal's Southern California division called Norcal/San Bernardino, Inc.;
* Sol Levin, 67, of Redlands, who served as the county investment officer;
* Thomas O'Donnell, 67, of Carlsbad, who was the elected treasurer/tax collector;
* Richard Tisdale, 60, of Charlotte, North Carolina, a financial consultant; and
* Ronald Canham, 51, of San Diego, a management consultant.

Today's filing of criminal information and related plea agreements with these defendants was announced at a press conference this afternoon by United States Attorney Alejandro N. Mayorkas, FBI Assistant Director in Charge James V. DeSarno, and San Bernardino County Sheriff Gary Penrod.

"These officials were entrusted with the responsibility of ensuring that the county's money was spent fairly and legally," said United States Attorney Mayorkas. "These defendants have abused that trust and have used their influence in official positions to better their own financial condition without regard for the welfare of the county and the citizens for which they worked."

"Corruption in government officials undermines the foundation of our democratic society and the trust of the people whom they serve," said FBI Assistant Director in Charge DeSarno.

Sheriff Gary Penrod said: "The allegations involved in this case strike at the very heart of public trust and confidence. A cooperative effort between local and federal investigators was the most efficient way to proceed and that's what we have done. It's a sad time when we have to focus our investigative resources on our colleagues in county government, but there was no escaping the necessity to do so, and the county will be a much healthier place because of it."

The first scheme in this case revolves around bribes paid to Hlawek in exchange for Norcal obtaining contracts to operate landfills in San Bernardino County.

In relation to the Norcal scheme, Hlawek, Harry Mays and James Walsh have been charged with and have agree to plead guilty to a felony charge of conspiring to pay and accept bribes. In his plea agreement, Hlawek specifically acknowledges that in exchange for his assistance to Norcal he received cash or in-kind payments of between $4,500 and $5,400 on eight occasions in 1996 and 1997. Furthermore, Hlawek admits that on at least 20 occasions he received payments of $650 to $1,300.

Hlawek received payments in two ways. In the first way, Mays, a consultant to Norcal, paid bribes to Hlawek and also paid kickbacks to Walsh, who was responsible for overseeing Mays' consulting contract with Norcal. In the second way, Walsh received kickbacks from Hernandez Trucking, a dirt-hauling company that did business with Norcal, and Walsh split the money between himself, Hlawek and Mays.

As the county administrative officer, Hlawek and Mays oversaw more than two dozen county departments that were responsible for health care, finance and many other functions of government. Several court documents in this case indicate that Norcal received nearly $20 million in county contracts while Hlawek was CAO.

In the second scheme, Richard Tisdale paid thousands of dollars in bribes to three county officials ­ Hlawek, Thomas O'Donnell and Sol Levin. In exchange for cash bribes, free trips and the payment of travel and entertainment expenses which were also reimbursed by the county, Tisdale was awarded a series of contracts for his company to provide consulting services.

In the third scheme, Ronald Canham paid $10,000 in cash bribes to Hlawek, who used his position to influence the board of supervisors to award Canham a $94,000 contract for his "Visions 2000" motivational training program.

Each of the defendants in this case, with the exception of Canham, is expected to plead guilty to a charge of conspiracy to pay and accept bribes, a felony that carries a maximum penalty of five years in federal prison and a fine of up to $250,000. Canham has agreed to plead guilty to paying bribes, also a felony, which carries a potential penalty of 10 years imprisonment and a $250,000 fine.

The seven defendants in this case will be arraigned in United States District Court in Los Angeles next month. Mays, Walsh and Tisdale are scheduled to be arraigned on November 15. Levin, O'Donnell and Canham are scheduled to appear for arraignment on November 22. Hlawek will be arraigned on November 29.

The charges against the seven defendants are the result of an ongoing investigation by the Federal Bureau of Investigation, the San Bernardino County Sheriff's Department and the Criminal Investigation Division of the Internal Revenue Service.

Release No. 99-220

 

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COURT: FREE RADIO BERKELEY'S CHALLENGES HAD NO PLACE IN COURT (7/21/00)
The U.S. District Court in San Francisco had no jurisdiction to hear pirate FM broadcaster Stephen Dunifer's First Amendment defenses to being shut down by the Federal Communications Commission. His arguments for Free Radio Berkeley were ultimately rejected by Judge Claudia Wilken, but should not have been entertained in the first place.

So ruled the U.S. Court of Appeals for the Ninth Circuit in its opinion in U.S. v. Dunifer, filed Thursday, July 20 as Case No. 99-15035. Judge A. Wallace Tashima, writing for a three judge circuit panel, concluded that the Communications Act of 1934 itself, in combination with another federal statute, gives the FCC initial appeal jurisdiction in cases of orders to shut down radio stations, with the circuit courts of appeals as the forums for judicial review, not the district courts.

This essentially procedural ruling comes as something of an anticlimax in view of several developments prompted by, but leapfrogging over, Dunifer's original legal challenge. In 1993 the FCC's Field Operations Bureau notified Dunifer that the FM signal emanating from his home in Berkeley exceeded the power permitted for an unlicensed transmitter (a limit confining the signal to about a two-block radius). It informed him of the relevant sanction, a forfeiture of $20,000.

When Dunifer responded with various legal arguments against the forfeiture and the bureau rejected them, he then filed for a formal review with the FCC, but in 1994 the agency went to court for declaratory relief and a court order instead. Judge Wilken at first denied the government's injunction request, holding off to hear Dunifer's First Amendment challenge on its merits. After that argument was fully made, however, she ruled for the FCC anyway and issued the injunction it sought in June 1998.

Free Radio Berkeley then officially ceased broadcasting at 104.1 FM, but according to its friends in the San Francisco Bay area, a familiar programming source can be heard at that frequency by those close enough to pick up its 50 watt signal. Meanwhile, FRB continues the struggle in its own voice at http://www.freeradio.org/splash.shtml.

Since then, and almost certainly because of the micropower radio rebellion which Dunifer brought into the courts, the FCC has created a program to license such FM stations, outlined in detail at http://www.fcc.gov/mmb/prd/lpfm/.

Dunifer's attorney, Louis Hiken of San Francisco, is skeptical of the FCC's licensing scheme for several reasons, among them its requirement that such stations be separated by at least three "adjacent channels" or points on the FM band. He feels this separation standard has nothing to do with the physics of interference and everything to do with the politics of protecting entrenched commercial broadcasters. Free Radio Berkeley, for example, has a two-channel spacing around it, but could not satisfy the three-channel standard.

Another provision of the licensing scheme would also prevent Free Radio Berkeley from applying: the so-called "Rosa Parks" clause which renders ineligible any station which has engaged in pirate broadcasting in the past.

But these restrictions are apparently not entirely satisfactory to the National Association of Broadcasters, which wants the FCC's authority to license low power FM stations taken away by Congress (see http://www.nab.org/newsroom/issues/lpfm/lpfmsenlist.asp. Legislation to that effect, as of NAB's last count, was supported by 35 Senators, 30 of them Republicans, with neither Feinstein nor Boxer so far on the record for or against.

A superficially more moderate House bill that passed 274-110 would allow some licensing, but would lock into statute the three-channel separation and the Rosa Parks rule.

Hiken says he believes that such legislation would, if passed, actually improve the arguments of legal challengers like Dunifer that FCC restriction of small stations is unconstitutional.

Meanwhile Dunifer, a CFAC Beacon Award winner in 1997, says he is busy working with the Indybay Media to help prepare a "warm welcome" for the NAB's annual convention in San Francisco on September 20, with details to be announced at http://www.indybay.org.

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CASES TEST ZONING STRATEGIES FACING ADULT BOOK, VIDEO RETAILERS (6/30/00)
For proprietors of adult entertainment emporia, the standard real estate value criterion of "Location, location, location" has become the exclusive issue in reaching accommodation with local zoning laws. Three recent cases involving Southern California cities show how officials can ­ and can't ­ limit the choice of sites for such businesses to set up shop.

Despite some occasional highly publicized cases, the reality is that in the past quarter century the government at all levels has by and large gotten out of the business of trying to censor pornography item by item. That, in fact, is the problem facing prosecutors: a carload of adult material can't just be presumed to be illegally erotic and hauled off to the warehouse. Under the First Amendment, each suspect work must in effect be given its day in court ­ without significant delay -- and determined to be obscene, usually in a jury trial, before being suppressed.

There is a more wholesale approach held to comport with free speech ­ confiscation of a vendor's entire inventory based on a single obscenity conviction as the predicate crime in a RICO (racketeering statute) prosecution. That approach has been upheld by the U.S. Supreme Court as constitutional because the materials become forfeit as punishment irrespective of their content, or even of the fact that they are expressive works. They're simply part of the racketeering offender's property and are fair game on that basis.

But nevertheless the RICO strategy does not seem to be used much in practice, and the other main attack on particular sexual content targets child pornography. As for the vast majority of other sex material, the government's role, constrained by constitutional requirements, changing mores and sheer volume of production, has been relegated by and large to the Red Light district compromise ­ keeping such pursuits in their place, away from the more respectable residential and retail districts (or, in the online world, behind barriers that attempt at least to filter out child patrons).

In the bricks-and-mortar domain, the Supreme Court has held that while a city, for example, may not use its zoning process to outlaw or severely restrict the location of an adult bookstore based on the content of the merchandise, much the same restriction can be accomplished indirectly, based on a certain evidentiary ritual. First, the regulation must not on its face outlaw the adult bookstore as such, but may subject it to "content-neutral" time, place and manner restrictions in recognition of certain sufficiently documented "secondary effects." The latter phrase refers to skid row blight, documented as tending to develop on streets with an unusual concentration of certain businesses, not necessarily limited to adult bookstores. Cities need not prove such blight on their own streets ­ simply cite respectable studies showing it as a consequence of unregulated clusters of adult businesses elsewhere.

Such findings are seldom seriously challenged anymore as a foundation for some zoning restrictions. Instead the ground of engagement has largely retreated to which location choices, if any, are left once the zoning ordinance's rules are switched on. There are two principal strategies: one, to confine all adult businesses in a kind of ghetto, usually in an otherwise unappealing and lightly trafficked industrial sector, and the other, to disperse adult retailers widely ­ away from each other as well as from homes, schools, churches and other sites patronized by youth.

The key legal question then becomes one which turns on what amounts to real estate market analysis: What's left once the zoning distance rules are all in operation, distancing the adult business so many yards from others of its kind and from homes, schools and other protected sites? This issue of "reasonable alternatives" is central to two decisions from the same three judge panel of U.S. Ninth Circuit Court of Appeal issued June 27, involving the cities of Taft and Long Beach, and the decision of a different Ninth Circuit panel a week earlier involving Simi Valley.

In Lim v. City of Long Beach (Case No. 98-55915) proprietors of four adult businesses ­ three book and video stores and one "mini-theater" ­sought an injunction against enforcement of an ordinance which outlawed their operation within 300 feet of a residential district, a spacing that applied to each of them, and that also banned adult operations within specified zones of the city, a proscription affecting two of their establishments. The city contended that no fewer than 115 sites were still left available under the ordinance, and the district court concluded that within this universe as many as 28 adult businesses might find an address.

The Ninth Circuit agreed, sweeping aside plaintiffs' objections that some sites on the city list might have restrictive leases banning adult uses, and that others were currently occupied and might not soon be on the market. The court reasoned that not every alternative site on the city list need be proven available, so long as the list provided detailed information about "potentially" available locations. The burden to show them as unreasonably included (because not even "potentially" available) would be on the plaintiffs. But, said the court, the district court had erred in preventing plaintiffs from making such a showing, and the case must be remanded for that process in order to establish the actual market for alternative locations.

The Ninth Circuit also held that the plaintiffs' Equal Protection challenge was of no avail. They contended that the city was enforcing its adult business zoning restrictions against them while neglecting enforcement of other zoning codes against nonconforming businesses not in the adult amusement category: "respectable" concerns were being given a pass. The city's position, adopted by the district court and upheld by the Ninth Circuit, was that since the adult entertainment businesses were not subject to a "suspect" classification (e.g. based on race, religion, sexual identity, etc.) shown to have been the object of oppressive treatment historically, the justification for treating them differently under the law need only be "rational," i.e. explainable. In this case that low standard was met simply by the fact that Long Beach placed a priority on combating the blight of "secondary effects" greater than on its interests in enforcing other zoning-related restrictions.

In Diamond v. City of Taft (Case No. 98-17253), filed the same day, the court dealt with a factually quite different situation. Instead of the impact of a larger city's ordinance on several going concerns, the case involved the effect of a very small (pop. 6,800) city's ordinance on the first applicant seeking to comply with it. In that case the proprietor had formerly used his address as a pawnshop, but closed that business and proposed to open an adult bookstore. When his application was rejected because his establishment was within 1,000 feet of homes, parks and churches, he sued against enforcement of the ordinance. Taft contended that its restrictions left 20 alternative locations open. The district court found that with these choices, a total of three adult establishments could be operated simultaneously in the city ­ spaced apart from the protected areas and also away from each other.

Those three choices, the district court ruled, were constitutionally enough for the first-time sole applicant. The Ninth Circuit agreed, noting that even if two of the three were currently occupied, they were at least "potentially" available and had been cited by the city in good faith, not arbitrarily or manipulatively mentioned. Also, the fact that they lacked some elements of infrastructure ­ sidewalks and street lights ­ did not disqualify them for consideration as part of the available market, since they had enough other elements (water, power, sewer) to support a "generic" business operation. Finally, the court noted, since this applicant did not have to worry about distancing himself from other existing adult businesses ­ there were none -- the number of sites available to him was seven rather than three, and that selection provided reasonable alternatives.

The case a week earlier (Young v. Simi Valley, Case No. 97-56484) also involved a sole establishment, but in yet another factual setting: a suburban community of 100,000, approaching the size of Long Beach in terms of population, but nowhere near as industrially marked: a large bedroom town. Here the plaintiff was already invested in a business commitment when his zoning clearance, only a few weeks old, was suspended and he fell subject to an emergency ordinance which froze all adult business applications. A few months later the permanent ordinance outlawed such enterprises within 1,000 feet of one another, or of schools, parks, playgrounds, churches, or religious-operated noncommercial establishments, or within 500 feet of residential zones or youth-oriented businesses.

The city conceded that while otherwise there might be as many as 120 potential adult use sites, the 1,000-foot spacing mandate among them reduced the number of simultaneously qualifying locations to four. The plaintiff abandoned his plans to open at his current address, sued to challenge the permanent ordinance on constitutional grounds, leased a location that appeared to qualify, and began a complex permit-seeking process that would consume about a year of furnishing ever greater amounts of information to the city, at a cost of about $45,000. At the end, the city denied his application because, contrary to its earlier reassurance to him, there had been after all what it considered a youth-oriented business ­ a karate studio -- within 500 feet of his new address at the time he began his permit-seeking process.

In addition, the ordinance as interpreted by the planning commission and city council disqualified adult business applications if there was a zone clearance application from an inconsistent "sensitive" use (one from which the adult business must distance itself) on file at any time prior to completion of the adult business application, and a religious organization had filed such an application for an address just a block away -- on the day before the adult business application process was deemed complete.

The matter went to a jury trial which ended in a mistrial when the jury was unable to reach a verdict, but the judge granted a motion for judgment as a matter of law, and held the ordinance unconstitutional because it left insufficient qualifying sites open and because of the "sensitive use veto."

The Ninth Circuit concluded that the question of adequate alternative sites had been prematurely resolved in the plaintiff's favor ­ the fact that a maximum of four adult business could operate under the ordinance was not fatal to this applicant, the first on record and with no competition, and so his alternatives were not unreasonable.

But the court agreed that the sensitive use veto was unconstitutional and upheld the bar on its enforcement. The problem was a novel one, the court noted, but in its view obvious. If at any time during an adult business's application process (which as illustrated here, can take many months), a church, school, youth-oriented business or noncommercial religious-backed enterprise can squelch the permit just by taking out an application for an address within the zone of prohibition, adult business proprietors will be chilled from even attempting to qualify, for fear of having all their efforts very simply canceled. Such a policy would permit the government to delegate to private parties a function which it cannot itself perform: censorship based on content rather than regulation based on secondary effects.

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COURT: FEDERAL CHILD ONLINE PROTECTION ACT IS UNCONSTITUTIONAL (6/23/00)
Because Internet publishers can't limit where their material is seen, a federal law that could apply the most sexually repressive local "community standards" to judge any material "harmful to minors," and thus illegal, would force self-censorship of otherwise constitutionally protected speech. The law is thus properly barred from being enforced.

So ruled the U.S. Court of Appeals for the Third District in ACLU v. Reno, Case No. 99-1324, filed Thursday, June 22 in Philadelphia. (Full text of the court's decision is at http://pacer.ca3.uscourts.gov:8080/C:/InetPub/ftproot/Opinions/991324.TXT)

The case is the second one by the same name to challenge congressional attempts to regulate sexual content on the Internet. In the first, the U.S. Supreme Court decided that the Communications Decency Act (CDA) violated the First Amendment because it criminalized the online publication of non-obscene erotic material ­ sexual content which adults had the constitutional right to send and receive. The court noted that in attempting to protect minors from "indecent" material, Congress had invaded the rights of adults to be, in essence, as indecent as they consent to be.

Congress's response was the Child Online Protection Act (COPA), which adopted the law of "harmful matter for minors," a double standard held to be constitutional by the U.S. Supreme Court, applying it to more conventional media in the pre-cyber age. The basic notion is that, consistent with the First Amendment, a law may criminalize the distribution to minors of erotically charged material which, based on local community standards, has little or at least insufficiently redeeming social, educational or scientific value for minors.

Thus a sexual image or narrative that might never be prosecutable as obscene (for adults) because it was embedded in or fraught with otherwise substantial redeeming content (for adults) might be found to be "harmful for minors" because minors might not "get" the redeeming content or context, and see only the sex.

In a given prosecution, the task of deciding the balance of harmful versus redeeming content is left, under both the adult and minor standards, to the jury, required to apply "community standards." For example, a jury in Orange County might have different ideas about the appropriateness of sexually candid educational material than its counterpart in, say, San Francisco.

It was because of the local community standards criterion that the Third Circuit found COPA to be an unworkable adaptation of the "harmful matter for minors" approach, since the Internet by definition uncontrollably distributes content to the world, unlike a local adult bookstore or even a mail order house.

The court cited language from the supreme court's decision in ACLU v. Reno I, which noted that "the 'community standards' criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message."

The Third Circuit elaborated:

"Similarly, to avoid liability under COPA, affected Web publishers would either need to severely censor their publications or implement an age or credit card verification system whereby any material that might be deemed harmful by the most puritan of communities in any state is shielded behind such a verification system. Shielding such vast amounts of material behind verification systems would prevent access to protected material by any adult seventeen or over without the necessary age verification credentials. Moreover, it would completely bar access to those materials to all minors under seventeen ­ even if the material would not otherwise have been deemed 'harmful' to them in their respective geographic communities."

COMMENT: For a sense of the range of Web publishers who were concerned enough about the sweep of COPA to join the ACLU as co-plaintiffs, see the names and site links at http://www.aclu.org/court/acluvrenoII_plaintiffs.html.

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CIVIC ACTIVIST GROUPS SUE POSTAL SERVICE OVER PETITIONING BAN (6/2/00)
A nonpartisan coalition of activist groups and individuals has filed suit in federal court in Washington, D.C. to overturn the two-year-old U.S. Postal Service (USPS) regulation prohibiting citizens from gathering signatures on initiative petitions on postal property. The challengers call the ban an unconstitutional and needless burden on democracy.

M. Dane Waters, president of the nonprofit Initiative & Referendum Institute, the group spearheading the lawsuit, said in a Thursday, June 1 press conference in Washington announcing the action that he and other co-plaintiff groups "wish that we didn't have to take the USPS to court (and) had hoped that given the facts they would recognize that petitioning for ballot issues is protected free speech."

But despite six months of the Institute's efforts to seek a compromise, USPS officials, he said, had refused to consider negotiating any softening to the regulation, which Waters said abridged "not only free speech, but also the right to petition our government for the redress of grievances."

Until the challenged new policy adopted in June 1998, citizens were allowed to gather signatures for ballot issues in front of all post offices, so long as doing so did not disrupt postal business. The new policy prohibits "soliciting signatures on petitions, polls or surveys" in front of any post office.

The Institute says that 24 states and "thousands of cities and towns" allow citizens to gather signatures to put an issue on the ballot. Co-plaintiffs with the Institute include the ACLU, the Humane Society of the United States, U.S. Term Limits, Clean (Washington state), Oregon Taxpayers United, Citizens for Limited Taxation (Massachusetts), Americans for Medical Rights (California), Oregonians for Fair Taxation, Nebraskans for Limited Terms, and 14 individuals.

Plaintiffs' attorney John Ferguson said,

"As a nation, we lament the decline in public participation in the democratic process. Thus it is particularly surprising and unfortunate when an agency of the government acts to preclude vital aspects of public participation. Yet, in its 1998 regulation prohibiting, indeed, criminalizing the peaceable gathering of signatures on petitions, referenda and initiatives in (its) parking lots and on its walkways, the Postal Service has, in fact, acted to impair an important aspect of the exercise of a long-recognized First Amendment Right."

The full text of the complaint was to be available on the Institute's Web site at http://www.iandrinstitute.org on June 2.

COMMENT: Suburbanites can easily spend almost all their time on private property, cocooned in their cars from their own garages to private parking and thence to private offices, shops and other destinations. They can live in a world from which all public domain civic space has been protectively walled off. This insulation comes at a great cost to the effective exercise of some of our most fundamental rights, and in particular hits hardest at those who must publicize or seek recruits for their causes the old-fashioned, face-to-face way, not through millions of dollars of paid media time.

Post offices, however, are still relatively ubiquitous hubs of pedestrian patronage and communication, and their walk-in character makes them one of the last few natural parcels of ideal speech and petitioning turf owned by the government. But the U.S. Supreme Court has ruled in effect that for First Amendment public forum purposes, the postal service has been privatized in place. It's no more compelled to go out of its way to defer to free speech rights than are its competitors at Mailboxes Etc. or FedEx; if its concern for interference with postal business (slowing pedestrian traffic, etc.) is "reasonable," that's all that's required. The plurality opinion written by Justice Sandra Day O'Connor in U.S. v. Kokinda (1990) provoked one of Justice William Brennan's last impassioned dissents can be found on CFAC's Web site at: www.cfac.org.
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Despite the far greater attention given to the First Amendment in cyberspace, the case just announced is of far greater potential consequence for the majority of Americans for whom the literal bricks and mortar public forum is increasingly shrinking or bypassed. Recent polling shows that most California voters want to keep the initiative and referendum process. That sentiment won't mean much, however, if the places on which petitioners can plant their feet with impunity are far from where most citizens congregate on foot.

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LOW-POWER FM LICENSING BACKERS RAISE ALERT AFTER HOUSE VOTE (4/28/00)
Steve Dunifer's case challenging the Federal Communications Commission's authority to keep his Berkeley low-power FM radio station off the air was being heard by a three-judge panel of the Ninth Circuit, U.S. Court of Appeal on April 13. His lawyers were asked about mootness, given the FCC's new low-power friendly regulations. Then Congress struck.

That same day, thanks to the full-court lobbying of the National Association of Broadcasters and even National Public Radio, the House of Representatives voted 274-100 to gut the FCC's January rulemaking which opened the way to licensing stations like Dunifer's - although perhaps not in metro centers as large as the San Francisco Bay area. An estimated 1,000 new nonprofit, noncommercial FM stations, with a 10 mile or less signal radius and operating costs within the range of very small groups, would be the result.

But the commercial and government-subsidized broadcast establishment persuaded a majority in the House to limit licensing, in effect, to stations in the most remote and underpopulated regions of the nation, carefully avoiding even smaller metropolitan centers with their sizeable and profitable audiences. The technical arguments - that of signal interference in urban centers - are being strongly questioned by low-power advocates, who point to independent engineering studies concluding that with current technology, spectrum spacing need not be as wide as previously thought to avoid conflict.

Supporters of low-power licensing are now turning to the Senate to stop the House bill (HR 3439), where they ask kindred spirits to contact both their own Senators and Senator John McCain (R-Arizona), whose Commerce Committee will perhaps be the key hurdle for the House bill.

Senator Barbara Boxer's staff indicates she is opposed to the House bill and supports the FCC's opening to low-power. Senator Dianne Feinstein's position has not yet been made known.

Meanwhile Dunifer's legal saga is not likely to get a decision from the Ninth Circuit while action on the House bill is still pending. Since 1993 Dunifer, who was presented with the California First Amendment Coalition's 1997 Beacon Award as a First Amendment "Pathfinder," has been in federal court fighting the FCC's attempts to shut his transmitter down and force him to pay a $20,000 fine.

Dunifer views his struggle in particular as, among other things, a First Amendment controversy. He claims that the FCC is after him because he's vocal, leftist and subversive, while other micropower broadcasters who stick to music programming don't get the government's attention. His message to regulators: "Kiss my Bill of Rights."

For a "pro-low-power" perspective on the House legislation, see http://www.freeradio.org; for that of the National Association of Broadcasters, see http://www.nab.org/newsroom/issues/lpfm.

The vote of California's delegation on the House bill appears heavily partisan, with Republicans mainly supporting it and Democrats mainly opposing. The count follows.

YES

• Baca, Bilbray, Bono, Calvert, Campbell, Capps, Condit, Cox, Cunningham, Doolittle, Dreier, Herger, Horn, Hunter, Kuykendall, Lewis, McKeon, Ose, Packard, Pombo, Radanovich, Rohrabacher, Sherman, Thomas , Thompson.

NO

• 
  Becerra, Berman, Dixon, Dooley, Eshoo, Farr, Filner, Lantos, Lee, Matsui, Millender-McDonald, Napolitano, Pelosi, Roybal-Allard, Royce, Tauscher, Waters, Waxman, Woolsey.

NOT VOTING

• Gallegly; Lofgren; Martinez; Miller, Gary; Miller, George; Rogan; Sanchez; and Stark.

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COURT: PAYCHECK PUNISHMENT OF PROF A VIOLATION OF SPEECH RIGHTS (3/31/00)

A Portland State University professor fighting on the wrong side of the feminist critique of the literary canon had his speech rights violated if he was denied promotions or due pay increases in retaliation for his out-of-step beliefs. But retaliatory abbreviation of his course unit value or exclusion from a search committee would not be a basis for suit.

 

So ruled the U.S. Ninth Circuit Court of Appeals in its opinion filed March 30 in Hollister v. Tuttle, Case No. 98-35058.

 

Professor Michael A. Hollister alleged that as a tenured professor of English, teaching American literature courses at PSU, he was persecuted in two ways for being vocal in rejecting calls for more gender, racial and ethnic diversity in the choice of authors and works assigned for study in the department.

 

First, a number of superiors and colleagues, he alleged, saw to it that he was denied timely promotion to full professorship and also pay increases and merit pay bonuses appropriate to his seniority and performance.

 

Second, he was snubbed and slighted in a number of more symbolic ways, for example by being kept off a key search committee, by having his main course cut back in terms of units, and by other continuing acts of "ridicule, harassment and humiliation."

 

The trial court threw out Hollister's case, granting his colleague defendants a motion for summary judgment on the grounds of qualified immunity. The court found, in effect, that even if Hollister's rights had been infringed, at the time the defendants' alleged conduct began in the 1980s they could have been expected to know it, since "any right the plaintiff had to speak as he allegedly did was not clearly established during the period in question."

 

But the Ninth Circuit disagreed. In the words of Judge John T. Noonan for the court:

 

"The lifeblood of a college is free inquiry and its companion, free speech, by its faculty on subjects pertaining to education. A high school teacher cannot be disciplined arbitrarily for speech on a matter of public concern ... A fortiori, a college teacher cannot. Sometimes the precise contours of a constitutional right are vague and need filling in by court decisions. In the case of a professor's speech on educational policy, any member of the faculty or administration would know - and would have known in 1980 - that it would be to deny his constitutional right to speak to deny him a promotion or pay increase in retaliation. (The First Amendment), to be sure, permits freedom of speech to be limited by legitimate concerns of the employing school ... But in this case the defendants have not offered a scrap of evidence of any concern supporting curtailment of Hollister's speech. Naked retaliation is alleged and is unrefuted."

 

The court concluded that Hollister could press his case against department officials proven to have denied or delayed his material rights to pay and promotion, but not against those involved solely in mistreatment that did not affect matters in which he had a property right, such as the number of credit hours in his courses or the inclusion on a faculty search committee.

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COURT: DEPUTY'S SPEECH RIGHTS MAY BE PROTECTED FROM PAYBACK (3/24/00)

A Tehama County deputy sheriff's firing by her newly elected boss after she prominently supported his opponent's campaign may have been a violation of her free speech rights. And the officers accused of this retaliation may have acted so unreasonably that they have lost the qualified immunity from personal damages liability which normally applies.

 

So ruled the U.S. Court of Appeals for the Ninth Circuit in Diruzza v. County of Tehama, Case No. 98-15997, filed March 21.

 

Sherol Diruzza was a deputy sheriff in Tehama County when the election for sheriff was held in November 1994. She campaigned for her incumbent boss, Sheriff Mike Blanusa, and appeared in a television ad supporting him. But Blanusa lost, and in the meantime Diruzza had a problem of her own. Sometime before the election, in the heat of a quarrel with her fiance in which he allegedly damaged her car, tore her phone off the wall and physically threatened her, she fired eight rounds from her service revolver out her bedroom window - according to her, to get neighbors to summon police.

 

She was suspended by Blanusa for 30 days for this conduct, and in mid-December after the election but before the new sheriff took office, the district attorney charged her with a felony and a misdemeanor concerning negligent use of a firearm. After the new sheriff, Robert Heard, took office in January, Diruzza was allowed to plead to a simple infraction of disturbing the peace - but only on condition that she resign.

 

Diruzza sued, alleging retaliatory dismissal - payback for her having supported the wrong sheriff's candidate. The U.S. District court agreed with the defendants - Sheriff Heard, his undersheriff and the county itself - that the First Amendment does not prohibit retaliatory firing of public employees who hold the kind of policy-making positions where political loyalty is a limitation on free speech, and that therefore Diruzza had no case, since her rank of deputy sheriff was a policy-making position as a matter of law.

 

The Ninth Circuit disagreed, holding that this issue must be treated as a question of fact, and that while the evidence might show Diruzza holding a sensitive policy position with political loyalty as part of the job description, it might show just the opposite.

 

Wherever deputy sheriffs might be in the pecking order of other states, the court noted, in California they are simply line officers. Perhaps it could be shown that Diruzza was more equal than her peers in actual job status, but that would require further fact finding.

 

Accordingly, the court sent the matter back to the trial judge to determine, based on factors cited in case law, "whether Diruzza had vague or broad responsibilities, whether she was paid an unusually high salary, whether she had the power to control others or the authority to speak in the name of the department, whether the public perceived that she had such authority, and whether she created or substantially influenced the policy of the sheriff' s department. "

 

If the trial court concluded that Diruzza was not a policymaker, other factors for trial court decision would be whether the sheriff and the county actually worked with the district attorney to put the squeeze on her for political reasons, or whether any deputy, for example, would face dismissal for handling his or her weapon as she did under the circumstances.

 

Still another issue would be the personal liability of the sheriff and undersheriff, assuming an unconstitutional retaliatory dismissal were otherwise proven. The district court ruled that they would be immune from damages liability because under the law known at the time, they reasonably could have assumed that the retaliation was protected. But the Ninth Circuit panel's two-judge majority disagreed.

 

It noted that three cases on the books at the time of the dismissal - two from the U.S. Supreme Court and one from the Ninth Circuit - had held that non-policymaking government employees could not be fired in political retaliation. The dissenting Judge, Diarmuid O'Scannlain, accused the majority of holding the defendants to a standard announced only in a Ninth Circuit case decided two years after they acted. But in a footnote, Judge William A. Fletcher wrote for the majority:

 

"The dissent contends that the right of a non-policymaking public employee to be free from retaliation was not clearly established in 1995, the date of the actions at issue in this case, because Fazio v. City and County of San Francisco was decided by this circuit in 1997. This would be a telling point if Fazio HAD BROKEN NEW GROUND. Fazio, however, was an obvious application of an already-established rule. Elrod and Branti, decided by the Supreme Court in 1976, and 1980, and Thomas, decided by this circuit in 1989, all clearly held that non-policymaking employees are protected from retaliatory discharge based on the exercise of First Amendment rights." (emphasis by italics in the original)