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Stories: 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. 2001 Court: Growers Canıt Be Forced to Subsidize Market Ads (12/31/01) Court: Injunction Can Stop Avalanche of Incoming E-mails (12/17/01) Supreme court to decide purpose of anti-SLAPP motion (12/10/01) Court: Law Exposing Cop Accusers is Unconstitutional (12/3/01) Court: Home Depot's Free Speech Zones Are Adequate (11/26/01) Court: Internet Insults To Firm’s Stock No Basis For Lawsuit (11/19/01) Fresno: Foes of Low-Income Housing Win Suit Dismissal (11/19/01) Supreme Court to Address Simulated Child Pornography (11/5/01) Court: Law Unconstitutionally Inhibits Cop Complaints (11/5/01) Watchdogs' Vigilance Leads HUD to Reject City's Funding Bid (10/22/01) CFAC Signs on National Press Plea for Adequate Coverage Rules (10/15/01) Davis Signs Bill Creating Privilege for Student Whistleblowers (10/15/01) Alhambra Resident Sued for Whistleblowing on Body Shop (10/8/01) CFAC Urges Lawmakers to Go Slow on Anti-Terrorism Bill (9/24/01) Freedom Watchdogs Go On Alert During Nation's Recoil (9/24/01) Federal Court Allows Secrecy in Corruption Trial (9/17/01) Verdict: Recording Didn't Invade Parents' Privacy (9/17/01) City Fails in Try to Bar Resident from Petitioning (9/17/01) No Jury Nullification Advocacy in Courthouse (9/17/01) Court: Anti-SLAPP Rule Can't Stop Federal Court Discovery (9/10/01) Court: Tenants Have No Right to Leaflet (9/4/01) A.G.: Political Buttons Protected on Back-to-School Night (8/27/01)
Court: College Teacher's Needling was
Protected Speech (8/20/01) Court: Hostile Words, Error In Election Spat Not Actionable (5/7/01) CFAC Urges Supreme Court To Deny Hearing On Bid Case (5/7/01) Court: Comment Alleging Boss's Funding Delays Not Protected (4/27/01) Marijuana Activist Suing Wal-Mart For Barring His Petitioning (4/13/01) Prof Not Immune From Liabiity In Trashing Notices About Lecture (4/13/01) Court: Anti-Abortionists' Chilling Focus On Doctors Not Criminal (4/6/01) Court: Student's Bump-Provoked Outburst No Terrorist Threat (3/23/01) Anti-SLAPP Decision Makes The Web Safer For Anti-Corporate Ranting (3/2/01) State Supremes Take Case Asking If A Speech Injury Merits Damages (3/2/01) Pacifica Radio Network Moves To Shut Down Critical Web Forums (2/23/01) Court: Protecting Clerical Whistleblower No Church Infringement (2/23/01) Cases Rule On Prisoners' Rights To Receive Postal, Electronic Mail (2/16/01) Court: Oil Companies' Response To Consumer Action A SLAPP (2/16/01) Protesters Decry Stay-Away Order Involving Santa Cruz City Hall (1/12/01) Court: Big Grocery Store Premises No Public Forum For Speech (1/12/01) Court: Public Employees' Internal Whistleblowing Protected (1/12/01) Court: Growers Canıt Be Forced to Subsidize Market Ads
(12/31/01) So ruled the California Court of Appeal for the Fifth District in its opinion filed December 17 in Gerawan Farming, Inc. v. Lyons, Case No. F031142 (Gerawan_Farming_v_Lyons). The complaint of the plum grower in this case was summarized in a series of propositions by the California Supreme Court in an earlier phase of the litigation, contending in short that the grower "produces and handles plums; plums constitute a lawful product; it has developed, and uses, a brand for marketing purposes; it engages in commercial speech about its own branded plums through advertising; its message is not false or misleading; it is nevertheless compelled by the California Plum Marketing Program to fund commercial speech in the form of generic advertising about plums as a commodity against its will; and the compulsion of funding reduces the amount of money available for its own advertising." The supreme court, rather than resolve the issues immediately, sent the case back to the Fifth District to determine "what protection, precisely, does article I (of the California Constitution) afford commercial speech, at what level, of what kind, and ... subject to what test (?)" and whether the Plum Marketing Program violates that free speech right. The Plum Marketing Program, like dozens of others covering products from alfalfa to garlic to wild rice, is one consequence of the Depression-era California Marketing Act (CMA) of 1937. As noted by the dissent in this case, "Before the CMA was promulgated, California agriculture was chaoticŠ Each fruit or vegetable grower attempted to be the first in the market with his or her commodity in order to take advantage of the premium prices paid for early shipments. This led to the marketing of inadequately ripened produce and the glutting of the market during the peak season with poor quality commodities. In an attempt to enhance the attractiveness of the produce, growers would often resort to deceptive packaging, improper sampling, and false grading. Consequently, consumer acceptance of California fruits and vegetables was adversely affected and California's agricultural wealth was unreasonably and unnecessarily wasted." But such regulation is unusual in that marketing orders adopted by the Secretary of Agriculture are not binding on a particular agricultural or fisheries sector until and unless approved by the producers to be regulated. Thus governmental enforcement is put behind what amounts to an industrially self-imposed regime. This characteristic, the Fifth District concluded, means that there is no sufficiently strong governmental interest per se behind these orders, and the Plum Marketing Program in particular, to justify forcing member growers to subsidize generic product promotion especially at a cost to a grower's own advertising for his branded products. In reaching this conclusion the court distinguished a local entity's room tax to promote tourism marketing, which while imposed on a narrow sector of the community is enacted by a generally accountable local elected body, not the hotel-keepers themselves. In the Plum Marketing Program, a bare majority of the affected producers can impose the assessment on the bare minority. so long as the former produce at least 65 percent of the affected fruit in the state. Justice Steven M. Vartabedian stated for the two-justice majority, "Whatever might be said about governmental speech funded from generalized tax revenues, when the funding mechanism targets a particular and narrow group, the act of funding the speech, in and of itself, takes on attributes of compelled speech; such compulsion, as coerced speech, requires its own justification. No such justification has been offered." The majority also rejected the analogy of federally regulated labor relations, where the law permits unions to impose mandatory contributions on workers for the common cause of organizing. Whereas the federal government has an interest in a viable union structure regardless of whether any particular bargaining agreement is reached, the state government has no interest in the marketing order structure until and unless those affected approve it as an act of self-regulation. Dissenting Justice Herbert I. Levy cited the regulation of both labor and attorneys as valid comparisons, and stressed that the test should be, as it is in those contexts, whether the compelled subsidy is being used for speech advancing properly central associational purposes: "Analogous situations have arisen in the context of unions and state bar associations. For example, a state may compel nonunion employees who benefit from the union's collective bargaining efforts to pay service fees to the unionŠ This compelled association is justified by the state's interest in facilitating collective bargaining and preventing free riders." Nevertheless, there are limits on a union's use of the mandatory fee. The nonmembers may prevent the union from using their contributions to fund the expression of political and ideological views unrelated to collective bargaining. "Similarly, a state's interest in regulating the legal profession and improving the quality of legal services justifies compulsory bar membership. Therefore, the state bar association may constitutionally fund activities germane to those goals out of the mandatory dues of all members." However, the bar association may not fund its own political expression in this manner. "In sum, the state may require a person to support an organization if there is a sufficiently compelling reason to do so. However, the organization's use of mandatory contributions must be Œgermaneı to the purposes justifying the support." Comment: At commercial stake in the Gerawan case is the revenue base supporting such catchy commodity marketing as seen in recent years for raisins (the animated fruit dancing to the tune of "I Heard It on the Grapevine"; the "Got Milk?" campaign; and the current California Cheese spots. But in legal terms the case also represents a defining moment for how commercial speech issues will be dealt with when brought under the speech shield of the California Constitution rather than the First Amendment. As a compelled speech subsidy case also, it is not the garden-variety commercial speech conflict, i.e. where the question is the advancement of a significant public interest by the restriction on the content of a non-misleading message about a lawful activity (for alcohol and tobacco products, for example). Court: Injunction Can Stop Avalanche of Incoming
E-mails (12/17/01)
So ruled the majority of a three-judge panel of the California Court of Appeal for the Third District in its opinion filed December 10 in Intel Corporation v. Hamidi, Case No. C033076 (Intel_v_Hamidi) Kourosh Kenneth Hamidi, a former Intel employee terminated from work on terms he believed unfair, sent e-mails on six occasions complaining of company policy to its employees worldwide sometimes as many as 35,000 addressees -- via Intel’s e-mail system. As noted in a report in the Sacramento Bee, “Hamidi, 54, is the leader and spokesman of a small Citrus Heights-based group called Former and Current Employees of Intel, or FACE Intel, which professes to show how the giant microprocessor manufacturer abuses its workers. He was an engineer at Intel's Folsom campus until 1996, when he was involved in an auto accident. A dispute over the disability claim led to his firing, and he has since been a vocal critic of the company. The e-mails accused Intel of treating employees unfairly, including unannounced layoffs and harassment.” The company tried unsuccessfully to block the missives, and asked Hamidi to stop sending them. Hamidi maintained that other than the content of the messages themselves, there was no harm done to the company, that he gave all recipients the option to be deleted from the mailings, and that only 450 employees opted out. Finally, Intel sued for an injunction, and won on a summary judgment motion. Its final theory was that the FACE-Intel campaign was a trespass to chattels an unconsented and harmful interference with its personal property, namely its internal e-mail management system. Hamidi argued to the Court of Appeal that his mailings were not a trespass to chattels, and even if so, that the First Amendment would not permit issuance of an injunction to stop them. But the Third District majority affirmed. In the words of Justice Fred Morrison for the court: “Hamidi' s conduct was trespassory. Even assuming Intel has not demonstrated sufficient “harm” to trigger entitlement to nominal damages for past breaches of decorum by Hamidi, it showed he was disrupting its business by using its property and therefore is entitled to injunctive relief based on a theory of trespass to chattels. Hamidi acknowledges Intel's right to self help and urges Intel could take further steps to fend off his e-mails. He has shown he will try to evade Intel's security. We conceive of no public benefit from this wasteful cat-and-mouse game which justifies depriving Intel of an injunction. S Even where a company cannot precisely measure the harm caused by an unwelcome intrusion, the fact the intrusion occurs supports a claim for trespass to chattels. “Some commentators espouse the view that Ocyberspace, as they term it, is necessarily free and open, minimizing the harm caused to Intel' s business. S And Amicus ACLU urges OHarm flowing from the content of the communication may not form the basis for an action for trespass to chattel.ı But Intel proved more than its displeasure with Hamidi's message, it showed it was hurt by the loss of productivity caused by the thousands of employees distracted from their work and by the time its security department spent trying to halt the distractions after Hamidi refused to respect Intel's request to stop invading its internal, proprietary e-mail system by sending unwanted e-mails to thousands of Intel's employees on the system.” The court relied in large part on a federal district court case emphasizing that while mass e-mails may not cause damage to a company’s system, they do tie up measurable storage capacity and divert measurable processing power. That case stated, for example, “[A]ny value CompuServe realizes from its computer equipment is wholly derived from the extent to which that equipment can service its subscriber base . . . . To the extent that defendants' multitudinous electronic mailings demand the disk space and drain the processing power of plaintiff s computer equipment, those resources are not available to serve CompuServe subscribers. Therefore, the value of that equipment to CompuServe is diminished even though it is not physically damaged by defendants' conduct.” Once the court satisfied itself that Hamidi’s conduct constituted a trespass tort, it found little difficulty in deciding that the First Amendment did not stand in the way of an injunction, any more than it would in the case of a trespass to real property in which speech was involved. Issuance of the injunction under these circumstances was simply not “state action” triggering federal constitutional considerations. Nor, under the state constitution’s free speech provisions, was a company’s e-mail system anything like the virtual public forum that a large shopping mall might constitute: “Although Intel is a large company, it is not like a Pruneyard Shopping Center, in that it is not a place where the public gathers to engage in expressive activity such as gathering signatures to petition the government, nor is its e-mail system so used. The Intel e-mail system is private property used for business purposes. Intel's system is not transformed into a public forum merely because it permits some personal use by employees. S Intel invites the public to use its e-mail system for and only for business purposes. “Hamidi insists Intel's act of connecting itself (and thus, its employees) to the Internet and giving its employees e-mail addresses makes Intel's e-mails a public forum. By the same reasoning, connecting one' s realty to the general system of roads invites demonstrators to use the property as a public forum and buying a telephone is an invitation to receive thousands of unwanted calls. That is not the law. Intel is as much entitled to control its e-mail system as it is to guard its factories and hallways. No citizen has the general right to enter a private business and pester an employee trying to work. It may be a few unwanted e-mails would not be sufficient to trigger a court's equity powers. Indeed, such may be an inevitable, though regrettable, fact of modern life, like unwelcome junk mail and telephone solicitations. S However, the massive size of Hamidi' s campaign caused Intel much trouble, not the least of which was caused by the lost time of each employee who had to read or delete an unwanted message, either out of fear of a virus or a lack of desire to communicate with Hamidi." Justice Daniel M. Kolkey, dissenting, observed: “The other appellate decisions that have applied trespass to chattel to computer systems have done so only where the transmittal of the unsolicited bulk e-mail burdened the computer equipment, thereby interfering with its operation and diminishing the chattel' s value S, or where the unauthorized search of, and retrieval of information from, another party's database reduced the computer system' s capacity, slowing response times and reducing system performance S But no case has held that the requisite injury for trespass to chattel can consist of the mere receipt of an e-mail, the only damage from which consists of the time consumed to read it -- assuming the recipient chooses to do so. To apply this tort to electronic signals that do not damage or interfere with the value or operation of the chattel would expand the tort of trespass to chattel in untold ways and to unanticipated circumstances.” Comment: In a telling fracture of analogy, the majority states: “Hamidi and (the Electronic Frontier Foundation) ask, if unwanted e-mail can constitute a trespass, why isn't unwanted first-class mail a trespass? The short, though regular journey from mailbox to trash can . . . is an acceptable burden, at least as far as the Constitution is concerned.” The issue is one of degree. As Hamidi impliedly concedes, he could not lawfully cause Intel's computers to crash, or overwhelm the system so that Intel's employees were unable to use the computer system. Nor could a person send thousands of unwanted letters to a company, nor make thousands of unwelcome telephone calls.” But the difference in degree between a few phone calls and a barrage of them, or a few postal messages and tons of them, collapses when the vector is the Internet. The time inflation due to massive phone traffic or the space inflation owing to massive postal delivery has no counterpart in the e-mail dimension, at least as practiced by Hamidi, where admittedly Intel’s chief burden was its effort to block its workers from exposure to the criticisms. The physical intrusion, impact, interference and "trespass" was approximately what might have occurred if Hamidi had used skywriting to say his piece, and Intel had sent its housekeepers around to pull down the shades. Supreme court to decide purpose of anti-SLAPP
motion (12/10/01) The issues presented are: "--Must a defendant bringing a special motion to strike a claim pursuant to Code of Civil Procedure § 425.16 (the anti-SLAPP statute) show that the action was intended to chill First Amendment rights? and "--Must a defendant bringing a special motion to strike under § 425.16 show that the action had the effect of chilling First Amendment rights?" Lower courts have concluded that despite the problem leading to passage of the anti-SLAPP motion law, namely the increasing use of litigation and threats of litigation to intimidate speakers and community activists, the law as it stands does not require a showing either that the plaintiff intended to deter or suppress the exercise of such First Amendment rights, or that the lawsuit had that effect on the defendant. But that conclusion is now up for reconsideration, and in a case that in its facts is clearly far from the normal "intimidation" suit. The underlying dispute began when the City of Cotati enacted a rent freeze ordinance for mobile home parks, and several affected park owner, led by Gene Cashman, sued in federal court to have the ordinance declared an unconstitutional taking in violation of the Fifth Amendment. Cotati responded preemptively by filing a motion asking the federal court to dismiss the suit as an abstention from intervention in a state court issue and then filing its own declaratory relief action in Sonoma County Superior Court, asking for confirmation that yes, the ordinance was free from defect -- under the California constitution. In doing so it named Cashman’s group as defendants, and at that point they filed an anti-SLAPP motion, arguing essentially that the superior court suit was intended to cut off the federal action and thereby interfere with the Cashman group’s right to petition the federal court for relief. The superior court found that the anti-SLAPP motion was proper and that Cotati would be unlikely to prevail, since it had failed to show the basis for a declaratory relief action, there being no legal controversy between the parties as to the state constitution’s effect on the ordinance. But the appellate court disagreed, finding that the Cashman group had not demonstrated that Cotati’s action was a SLAPP, and that even if it were a SLAPP, Cotati had presented evidence suggesting that it would probably prevail, since the city’s ordinance, viewed in context, had been passed to further a legitimate and substantial public interest, and would satisfy both federal and state constitutional muster. “Based on an independent review of the evidence, we conclude that respondents have failed to make a prima facie showing that Cotati's lawsuit chilled their First Amendment rights, as required by the statute. Š Were we to conclude otherwise, we would be encouraging and approving the use of SLAPP in virtually all disputes over jurisdiction and venue. This we will not do, for there is little to distinguish the procedural purpose and effect of Cotati's state court action from any attempt to dislodge a pending proceeding from a selected judicial forum.” ” In sum,” said Justice Ruvolo, “we conclude from our independent review that it would be an ‘overbroad application of the anti-SLAPP mechanism’ to apply it to the instant case, because Cotati's state action was not brought primarily to chill respondents' valid exercise of their constitutional rights and was not an abuse of the judicial process. A legitimate dispute exists between the parties over the constitutionality of Ordinance 680. Cotati's complaint herein is nothing more than an effort to obtain what it considers to be a more favorable forum for resolution of the disputed issues. Each party is utilizing the federal and state judicial systems in a permissible manner to achieve their respective goals. Accordingly, the complaint is not subject to (an anti-SLAPP motion).” Thus in the First District’s view, Cotati’s tactics were not intended to intimidate or suppress the Cashman group’s entitlement to petition, merely to move the dispute to what might be a more favorable forum. And the mobile park owners were not in fact frustrated in seeking redress, only subjected to normal litigation skirmishing. The Supreme Court will decide a more general question, however: whether the plaintiff’s intent and the effect on the defendant are really essential to the latter’s entitlement to invoke the anti-SLAPP procedure. Court: Law Exposing Cop Accusers is
Unconstitutional (12/3/01) The Nov. 28 decision (Walker v. Kiousis, Case No. E029822 (Walker vs. Kiousis) marks the third time the law has been struck down as flawed, but this is the first decision that would have binding effect on state courts. Two cases from the U.S. District Court have concluded that the law is an unconstitutional infringement of speech because it subjects citizens to legal exposure when they commit libel or slander in complaining of the conduct of peace officers -- exposure they would not have in complaining of the conduct of anyone else in an official proceeding [Haddad v. Wall (C.D. Cal. 2000) 107 F.Supp.2d 1230 and Gritchen v. Collier (C.D.Cal. 1999) 73 F.Supp.2d 1148, reversed. on other grounds (9th Cir. 2001) 254 F.3d 807.] The law in question is an exception from Civil Code Section 47, which provides an absolute privilege from liability for statements made in the course of an official proceeding: a trial, legislative or administrative hearing, a criminal or regulatory investigation, or even an official public meeting such as those governed by the Brown Act. The privilege also attaches to documents supporting these proceedings. The exception comes in Civil Code Section 47.5, which states: "Notwithstanding Section 47, a peace officer may bring an action for defamation against an individual who has filed a complaint with that officer's employing agency alleging misconduct, criminal conduct, or incompetence, if that complaint is false, the complaint was made with knowledge that it was false and that it was made with spite, hatred, or ill will. Knowledge that the complaint was false may be proved by a showing that the complainant had no reasonable grounds to believe the statement was true and that the complainant exhibited a reckless disregard for ascertaining the truth." The case was prompted when CHP Officer Donovan Walker sued Bill John Kiousis for libel after the latter filed a formal written complaint against Walker, charging him with using profanities and threatening him with physical harm and, if he did not take a blood alcohol test, with three days in jail. Walker and a partner had stopped Kiousis in traffic on December 5, 1997 and arrested him on drunk driving charges. Kiousis pled guilty to a charge of speeding while having consumed alcohol, then filed his complaint, demanding Walker be disciplined, if not fired. A tape recording made by the officers at the time of the stop showed no basis for the complaint, but did show Kiousis being profanely defiant. Walker was cleared by his superiors, then sued. As a defense response Kiousis filed an anti-SLAPP motion, which put the burden on Walker to convince the court immediately that his case would probably prevail. Kisousis’ main contention to the contrary was that Section 47.5, which exposed him to the litigation in the first place, violates the First Amendment in selectively targeting speech critical of peace officers and therefore wrongly regulates speech based on its content. The trial court avoided the constitutional issue but granted the motion and dismissed Walker’s case, finding that Walker had failed to show any actual damage resulting from the complaint. On appeal, the Fourth District found that rationale in error, and concluded that Walker’s case could well have survived the anti-SLAPP motion on its merits, if Section 47.5 were constitutional. Injury to reputation in this case was presumed, given the doubt cast on Walker’s professionalism, and the tape made by the officers supplied evidence that Kiousis’ charges were not only knowingly false but made out of ill will. On the other hand, the court agreed with Kiousis that Section 47.5 was unconstitutional in enabling peace officers and them alone to sue for libel based on statements made in official proceedings, of which the formal complaint process was one example. First, the statute contained a discrimination against certain speech not only based on its content -- discussion of peace officer conduct -- but also on its viewpoint -- criticism of that conduct. Justice Betty Richli for the court pointed out that a citizen, because of the general privilege, could not sue officers for their statements made about the citizen in official proceedings, no matter how how libelous, whereas officers could sue citizens for statements they made about the officers, conceivably in the very same proceeding. This discrimination alone, she said, renders the law "presumptively invalid." Second, the discrimination is not justified by any of the distinctions identified by the U.S. Supreme Court. For example, the notion that peace officers are uniquely exposed to nasty attacks is not warranted, Richli noted: "Many other types of statements which are not actionable under section 47.5 are at least as injurious as those that are. Physicians are at least as vulnerable to charges of Oincompetence’ as are law enforcement officers, as the Legislature has recognized in requiring that physicians be given at least 90 days' notice before they can be sued for malpractice. ... Yet complaints of physician incompetence to the Board of Medical Quality Assurance (now Medical Board of California) have been held to be privileged under section 47... "Attorneys, like police officers, frequently deal with hostile members of the public, including parties to whom their clients are adverse and, sometimes, the clients themselves. ... The motivation for such persons to make false accusations against attorneys is strong, and the potential harm to an attorney's reputation, and ultimately his or her right to practice law, is significant. Yet complaints about attorneys to the State Bar are absolutely privileged under section 47... "Political office holders, by virtue of their widespread exposure, are subject to scrutiny by a much greater number of people than are peace officers and are required to take often controversial and unpopular public positions as part of their duties... Yet such office holders enjoy no protection from defamatory complaints about their performance as do peace officers under section 47.5." There was insufficient evidence, in short, that the disparate treatment served a compelling governmental interest. Justice Richli also cited a study of other states’ law on the subject concluding that California alone singles out complaints against peace officers for unique legal vulerability. Was such an approach necessary -- the "narrowly tailored" response to the problem of tarnished officers’ reputations? No, she concluded: "Here ... there are ways other than the content-based discrimination imposed by section 47.5 to insure that peace officers' careers are not unduly jeopardized by unfounded citizen complaints. The Legislature already has taken such measures. Penal Code section 832.7, subdivision (a) provides that peace officer personnel records are confidential and shall not be disclosed except on motion and court order. Penal Code section 832.5, subdivision (c) provides that any citizen complaints that have been determined to be Ounfounded’ shall not be maintained in the officer's general personnel file. In addition, any such complaints shall be removed from the officer's general personnel file prior to any official determination regarding promotion, transfer, or disciplinary action by the employing agency... " Similarly, there are other means to deter false accusations of misconduct than allowing an action for defamation. As the courts in Gritchen and Haddad pointed out, a law enforcement agency could require citizen complaints to be made under oath, so that false complaints would be punishable as perjury... "The state might also do as most other states do and simply decline to provide an absolute privilege for statements made during a misconduct investigation, regardless of who makes them or about whom they are made. Then false statements by officers or in support of them would be subject to the same potential liability as false statements about them. What the state cannot do is adopt a restriction which selectively targets only speech which is critical of peace officers, unless that restriction is necessary to serve a compelling governmental interest. As we find no such necessity in this case, we conclude section 47.5 is unconstitutional on its face." Court: Home Depot's Free Speech Zones Are
Adequate (11/26/01)
In March of 1998, Lushbaugh repeatedly strayed outside the designated space and moved closer to the entrance and was cautioned about it by store officials. When he persisted they summoned the Glendale police to make a citizen’s arrest for trespass in violation of a city ordinance. The city attorney later decided not to press charges, but Lushbaugh sued the store for false arrest, abuse of process and violation of his free expression rights. He sought declaratory relief, an injunction and damages. Both parties moved for summary judgment, Lushbaugh contending that Home Depot, pursuant to the California Supreme Court’s historic 1979 decision in Robins v. Pruneyard Shopping Center (23 Cal.3d 899), was large enough to be treated as a "main street" surrogate and required to permit speech and petitioning subject only to reasonable restrictions on time, place and manner. He argued that confining him to a small area near the entry door was unreasonable, in part because the company’s own corporate rules specified speech zones near both the north entry (where he was) and a south door (where he was not allowed to be). The superior court ruled that the Pruneyard rationale did not apply to freestanding single retailers like Home Depot, and even if it did, the store was behaving reasonably in not allowing a speech zone near the south door, which did serve as an entry but also was a forklift passage with special safety and congestion challenges. The Court of Appeal agreed: "The trial court here gave two reasons for granting summary judgment: (1) that Home Depot was exempt from the holding in Pruneyard, and (2) that respondents fully complied with Home Depot' s existing time, place, and manner rules by precluding access to the Southern door for safety reasons. Appellant seeks a reversal of the first ruling, arguing that just as shopping centers replaced OMain Street’ as the gathering place for members of the public potentially interested in lending an ear (or signature) to political activists, stand-alone warehouse-type discount stores are replacing shopping centers. We are not sure that the analogy rings true. Shopping centers encourage the public to linger on the premises with facilities such as restaurants, theatres, public benches, or attractive walkways. The store involved here provided little beyond a hot dog stand and classes directly related to marketing its home improvement products. "But even assuming that appellant is correct, because we agree that Home Depot complied with any duty it may have had to provide public access by enforcing its reasonable time, place, and manner rules, we need not consider whether a warehouse-type retail store's characteristics do or do not render it immune from Pruneyard' s reasoning." Comment: Perhaps because this case had already been briefed and heard at the time, it makes no mention of the California Supreme Court’s recent (August 30) decision in Golden Gateway Center v. Golden Gateway Tenants Association. That opinion suggests that an attempt to apply the Pruneyard principle to anything less than a full shopping center, where the public is obviously invited to linger and socialize as on a downtown street, are shaky at best. But as this case points out in a footnote, two single-supermarket cases are set for review by the high court, involving a Trader Joes store in Santa Rosa and a Raley’s in Woodland. Court: Internet Insults To Firm’s Stock No
Basis For Lawsuit (11/19/01)
In reaching this conclusion in its opinion filed November 15 ( ComputerExpress_v_Jackson), the court also ruled that other statements made in strictly private communications were potentially subject to liability and thus survived an anti-SLAPP motion, despite the fact they were made as part of the same general tension between the plaintiff and defendant. The tension was the product of a failed corporate courtship. Defendants Lee Jackson and colleagues owned several businesses with which in February 1999 ComputerXpress, a computer-related products supplier was considering a merger. As alleged in the complaint, ComputerExpress decided not to go through with the merger, and before long Jackson and others were stimulating a series of critical comments about their former suitor on the Raging Bull Web site as well as talking a key ComputerXpress client, Cal Tech Solutions, into breaking a contract, based on damaging things said about ComputerXpress officers and directors. The plaintiff’s suit against its detractors on a variety of theories was met with an anti-SLAPP motion, but the trial court denied it entirely without explicitly ruling on whether ComputerXpress had shown a probability of winning on the merits. The court of appeal, in an opinion by Justice Betty Richli, gave Jackson and fellow defendants a partial victory plus an award of attorney’s fees for their partially successful anti-SLAPP motion. The court agreed with the defendants that: -- the causes of action complaining of the Raging Bull attacks and statements made in a complaint to the Securities and Exchange Commission qualified for anti-SLAPP scrutiny, because the former were statements made in a public forum (the Raging Bull site, a place "open to the public where information is freely exchanged"), and the latter were made in a formal governmental proceeding. -- these statements were either not actionable because their overheated, metaphorical, colloquial and/or exaggerated form left them unlikely to be understood as allegations of specific, defamatory fact (in the case of the typically zesty Raging Bull postings), or absolutely privileged as statements made in the onset of a governmental proceeding (in the case of the SEC complaints). -- in winning a dismissal of the counts arising from these statements (trade libel, interference with prospective economic advantage, conspiracy, injunction) as unlikely to be successful at trial, the defendants were entitled to have the plaintiff charged with their court costs and attorney’s fees as provided by the law to prevailing defendants on anti-SLAPP motions, even though some other causes of action were not subject to dismissal as SLAPPs. The court agreed with the plaintiffs that the disparaging statements allegedly made by the defendants to privately and directly to Cal Tech had not been shown to be statements made in connection with a public issue or with an issue in a public forum. Thus the part of the lawsuit predicated on those communications could go forward, until and unless the defendants could show, for example, that all they did was to call Cal Tech’s attention to the Raging Bull rants, or the SEC complaint, against ComputerXpress. Fresno: Foes of Low-Income Housing Win Suit
Dismissal (11/19/01)
The alleged conspiracy centered on the involvement of former Councilman Chris Mathys in organizing a series of public meetings that produced angry, profane and (some felt) threatening outbursts against the Affordable Housing Development Corporation. AHDC was proposing construction of a 324-unit apartment complex, 20 percent of whose units would be reserved for families with annual incomes of less than $24,000. When the city rejected their project, AHDC and the contractor sued under the federal and state Fair Housing Acts, which allow damages actions against persons who conspire to deprive low-income people of housing rights. But, noted Judge Oliver W. Wanger in granting the defendants’ motion for summary judgment, the U.S. Ninth Circuit Court of Appeals has ruled in a similar case that simply organizing, holding meetings and conducting other speech activities in resistance to public housing projects is protected under the First Amendment, no matter how energetic or nasty, "absent violence or threatening conduct that is a precursor to imminent harm." The city reportedly spent more than $1.3 million in defense costs. Supreme Court to Address Simulated Child
Pornography (11/5/01) The case may decide whether the government ever has, under the First Amendment, the power to punish one for possessing even the dirtiest pictures those of minors engaged in sex acts if despite their realism the images were synthesized without using real children. The case comes from the U.S. Ninth Circuit Court of Appeals as Free Speech Coalition v. Reno (see full text at FSC_v_Reno) Set for oral argument tomorrow, October 30, the case is now styled Ashcroft v. Free Speech Coalition. The Free Speech Coalition, an advocacy group comprising adult entertainment producers, performers, distributors and enthusiasts, filed suit in the U.S. District Court for Northern California, seeking to have the Child Pornography Prevention Act of 1996 (CPPA) declared unconstitutional. Prior to the CPPA, the Supreme Court had been able to find the protection of children as a sufficient basis for upholding child pornography laws; since real children were being used as models or performers, that injury alone justified ending the market for products exploiting them. But what if no real children were involved, and yet the images were very realistic indeed? The Congress, for the first time in the CPPA, addressed that issue by treating it as insignificant. The legislation outlawed pornography that even appeared or left the impression that minors were involved. Thus the CPPA prohibits the use of adult performers who appear under age, or of computer wizardry to synthesize images never existing in three dimensions, if the result seems to depict minors behaving sexually. Under First Amendment jurisprudence, the flat prohibition of words or images based on their content alone requires a very high justification. Courts have determined that in this context, the moral repugnance of sex with children as an idea (as opposed to a practice) does not justify keeping people from communicating that idea. The reason is that if the test for censorshipıs legitimacy were its moral righteousness, there would be little safe from some authoritiesı disapproval. The Taliban, for example, find dancing contrary to the will of God, and forbid it. Attorney General John Ashcroft also finds dancing unacceptable for religio-moral reasons, and might well seek to ban it were it not for the First Amendment. The court also rejected the argument that the "secondary effects" of portraying children as sexual participants justified the CPPAıs banning of even simulations. This notion is that real children will be the ultimate victims when the appetites of a pedophile are whetted by even simulated situations. The problem, noted the court, is that secondary effects arguments can be applied to any depiction of any crime made somehow more attractive to those inclined to commit it. There may be real victims if a potential murderer, for example, sees a movie seeming to justify or glamorize a certain killing, or if bank robberies are made to appear too easy and rewarding. But courts have consistently dismissed lawsuits against entertainment producers arguing that a certain film or record inspired criminal or suicidal acts. Accordingly, the Ninth Circuit found provisions of the CPPA prohibiting simulation of minors engaged in sex acts to be an unconstitutional punishment of speech based on its content. Writing for the two-judge majority in the case, Judge Donald Molloy stated: "By criminalizing all visual depictions that Œappear to beı or Œconvey the impressionı of child pornography, even where no child is ever used or harmed in its production, Congress has outlawed the type of depictions explicitly protected by the Supreme Court's interpretation of the First Amendment. Because the 1996 Act attempts to criminalize disavowed impulses of the mind, manifested in illicit creative acts, we determine that censorship through the enactment of criminal laws intended to control an evil idea cannot satisfy the constitutional requirements of the First Amendment." The Ninth Circuit also held the prohibited simulation language unconstitutionally vague, since violation of the law would depend on the subjective opinions of law enforcement agencies, prosecutors and jurors as to whether a young-looking sexual participant was only that or "appeared to be" a minor, with criminal consequences. But as a preview of arguments the Supreme Court may find compelling, dissenting Judge Warren J. Ferguson said he would uphold the CPPA based on several points, including these: -- Convincing simulations, even if they involve no real child, can be used by pedophiles to recruit other real children into sexual cooperation by making the conduct look acceptable and normal. -- The simulation can be so effective that a prosecutor may find it impossible to prove beyond reasonable doubt that real children were used; if their burden, in other words, is to prove what the jury sees is not a simulation (because the latter are lawful), that burden may be increasingly formidable. -- Banning all images of child sexual acts, real or virtual, will dry up the market for such depictions and make any production or consumption of child pornography unsafe, and thus reduce the risk to minors overall. -- The consumption of images of children engaging in sex has little or no intellectual content; ideas are not involved at all, and the banning of this activity is not likely to threaten core political and social discourse. -- The whole "strict scrutiny" analysis employed by the majority was misplaced. In child pornography cases the government has not been so far burdened to treat child pornography laws like other speech restrictions. "The majority should have weighed Congress' reasons for banning virtual child pornography against the limited value of such material. If the majority had, it would have realized that Congress' interests in destroying the child pornography market and in preventing the seduction of minors outweigh virtual child pornography's exceedingly modest social value. Since the balance of competing interests tips in favor of the government, virtual child pornography should join the ranks of real child pornography as a class of speech outside the protection of the First Amendment." Court: Law Unconstitutionally Inhibits Cop
Complaints (10/22/01) So ruled the California Court of Appeals for the Second District on October 30 in its opinion in People v. Stanistreet, Case No. 2d Civil B143501.People_v_Stanistreet The case concerns a complaint filed with the Oxnard Police Department by Shaun Stanistreet and Barbara Atkinson to the effect that an officer in the department the director of its Police Athletic League had engaged in lewd conduct with a youth at a meeting of the organization. The complaint was determined to be false, and the complainants were then prosecuted on two main counts: Penal Code Section 148.5, which punishes the filing of a false report of a crime, and Section 148.6 (a) (1), the filing of a knowingly false charge of peace officer misconduct, whether criminal or not. Appealing to the superior courtıs appellate division after being convicted on both counts, the defendants argued that 148.5 was inapplicable to their conduct because they had not reported a crime as such but rather had used the departmentıs administrative processes to complain of an officerıs conduct. They also argued that 148.6, while it more appropriately referred to their conduct, was unconstitutional on its face. The appellate division concluded that 148.5 applied to them because the conduct complained of was not simply "a mishandling by the officer of normal duties," but rather criminal no matter who committed it. It also rejected the claim that 148.6 was unconstitutional. The Court of Appeal reversed on both counts. On the false crime report conviction, the court agreed with a previous case, Pena v. Municipal Court, and quoted its rationale: "We are of the opinion that the Legislature did not intend for citizens' complaints of police misconduct made to the police chief or other governmental officers to be considered as a report of a criminal offense under Penal Code section 148.5. A common sense reading of the section itself suggests that the section is intended to deter false reports of crimes and the resulting inconvenience and danger to other members of the public S This interpretation is supported by the fact Penal Code section 148.5 is one in a series of sections designed to prevent false reports to those responsible for police and fire protection and other emergency services." As for Section 148.6, the court found that it involved a content discrimination automatically suspect under the First Amendment. It quoted the U.S. Supreme Court decision in R.A.V. v. St. Paul to note that, for example, ""the government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government." Although there were certain situations where the government could discriminate as to content by outlawing an entire class of speech unredeemed obscenity, for example because it has little constitutional protection; or could ban expressive conduct based on its "secondary effects" causing terror by burning a cross or an effigy, for example, whatever the message might be; or could discriminate against certain content if, in the R.A.V. courtıs phrase, "there is no realistic possibility that official suppression of ideas is afoot," none of those exceptions applied here, the court concluded. Justice Arthur Gilbert observed for the court: "It is without question that competent law enforcement significantly benefits society. S A false complaint potentially impairs the ability of an officer to carry out assigned tasks. S A proponent of section 148.6 attested that about 60 to 70 percent of the citizens' complaints received by the Los Angeles County Sheriff were unfounded. SBut section 148.6 might well stifle the registering of legitimate complaints made by the remaining 30 to 40 percent of citizens." "Penal Code section 148.6 makes it a crime to knowingly make a false accusation of misconduct against a peace officer. It is not a crime to knowingly make such an accusation against a firefighter, a paramedic, a teacher, an elected official, or anyone else. By protecting only peace officers, section 148.6 selectively prohibits expression because of its content. It therefore violates the First Amendment to the United States Constitution." Watchdogs' Vigilance Leads HUD to Reject City's
Bid (10/22/01) The City of Oxnard has withdrawn its application for an $11 million U.S. Department of Housing and Urban Development Section 108 loan guarantee to fund a proposed downtown theater project, following a citizen complaint to HUD which questioned the project's eligibility for HUD funding. The complaint was filed by Peter Apanel, a CFAC member whose consulting position with the city was suddenly terminated in 1996, shortly after he began asking questions about the project. In the five years since then, Apanel, who now lives in Pomona, has been working closely with Oxnard residents Martin and Lois Jones to continue monitoring the project. Since 1994, Apanel says, the city has been aggressively seeking a multiplex theater for the downtown business district, and despite the many questions we raised about the merits of the project and the city's handling of the environmental review process, a Section 108 application was finally submitted to HUD in June, 2000. Under the Section 108 program, local agencies can use future Community Development Block Grant funds to collateralize loans from private lending institutions. Local agencies automatically qualify as long as the project meets HUD's eligibility requirements. Shortly after the city submitted its application, Apanel and the Joneses sent citizen complaints to HUD, along with a letter to U.S. Senator Barbara Boxer, which charged that the city had failed to comply with HUD's requirements for public review. They noted that the city had failed to even publish a copy of the draft application, and following an inquiry from Senator Boxer's office; HUD rejected the city's application in October 2000. There was virtually no local press coverage of the application's rejection, and claims by city officials that city staff had simply made some sort of clerical error went unchallenged by the media, Apanel says. Then in July 2001, the city announced that it would soon be pursuing a new Section 108 application. Meanwhile HUD's website had recently been upgraded, and most of HUD's rules and regulations are now posted online in a much more user-friendly format. As a consequence, Apanel discovered that the project had, in fact, been ineligible for HUD funding all along. To meet HUD's eligibility requirements, Apanel says, a Section 108 project such as the one proposed by Oxnard must create jobs, but the maximum amount of HUD funding that can be spent on any given business is $50,000 per "full-time equivalent" job created, and the theater would have cost over $300,000 per FTE job created. Apanel sent a new citizen complaint to HUD in July, and in mid-August, HUD Assistant Secretary Roy A. Bernardi in Washington, D.C., sent a letter to Oxnard City Manager Ed Sotelo requesting that a response on the issue of eligibility be sent to Apanel and HUD within 15 business days. In a September 21 letter to HUD's Los Angeles office, followed by a separate letter to Bernardi, the city offered no explanation as to how it had previously determined the project's eligibility, and instead announced the withdrawal of its application. Apanel got no letter from the city until October 9, five years to the day after losing his job, and that letter, too, offered no response on the issue of eligibility. He has since sent a letter informing HUD that the city's response is inadequate, and has presented the department with evidence that he says shows that the city, in its original application, filed other false claims. Once again, Apanel says, despite the significance of the project and the information available, there has been virtually no local media coverage of this story. CFAC Signs on National Please for War Coverage
Rules (10/15/01) The open letter to President Bush, the Congress and Pentagon officials, to be formally released later this week over the signature of a wide variety of leading national press groups, provides the first systematic list, in effect, of obstacles reporters and photographers have been encountering in facing the practical task of showing and telling Americans how the "war against terrorism" is actually playing out. It reads as follows: "In light of the terrorist attacks on September 11, the role of the press in informing the nation about public safety concerns and the military, diplomatic, law enforcement, and intelligence actions of its government will be tested in novel and profound ways. As organizations representing reporters, editors, and publishers nationwide, we write to provide the Administration and Congress with steps that we believe are essential for the government to take to ensure that it honors its obligations to the public under the First Amendment. "A free and autonomous press is as central to the preservation of democracy as is a strong military. Indeed, news organizations have a distinguished history in this country of providing the public with essential information during times of warfare and national crisis information that may also be useful to government officials. Journalists have handled knowledge of troop movements and deployments in a responsible manner during past conflicts, just as they have maintained the confidentiality of domestic law enforcement operations. Military public affairs guidelines themselves acknowledge that the dissemination of timely and accurate information concerning combat operations serves the interests of the U.S. armed forces. "During the Persian Gulf War, however, the Department of Defense inhibited news coverage of combat operations by forcing reporters and photojournalists into small pools controlled by military officials and attempted to exercise editorial control over news content. The Pentagon and the news media subsequently reached an accord in 1992 regarding coverage of military campaigns that recognized that open and independent reporting would be the norm for such coverage.. With combat operations now underway in Afghanistan and possibly developing elsewhere, it is time to make good on that guarantee. "Additionally, because this is a crisis on American soil as well as overseas, involving law enforcement and local public health services in addition to the armed forces, information on domestic operations will be as relevant and critical to the public as that on military activities. "President Bush and other national leaders have signaled that incursions against terrorist networks will differ from conventional warfare in that they will involve significant covert action, both on international and domestic fronts. We do not deny that secrecy has a place in these operations. The government should protect information as necessary and only for as long as necessary to protect national security. Overclassification dilutes the ability of agencies and others to determine what truly needs protection. It inhibits government officials from communicating effectively, especially if they face threats of criminal prosecution for even harmless disclosures. "Journalistic scrutiny of the war on terrorism and publication of dissenting viewpoints are not signs of disloyalty to the nation, but rather expressions of confidence in democratic self-government and fulfillment of the First Amendment function of holding government accountable. Such scrutiny does not diminish respect for the victims of terrorism or the privacy interests of their families. One overarching principle that must guide government-press relations throughout this difficult period is that decisions about what to publish, including the airing of statements issued by avowed enemies of the nation, must ultimately rest with publishers and broadcasters, not with government officials. "With the nation having confronted for the first time since the Civil War widespread violence and loss of life within its own borders and continuing to face ongoing threats the American public is in urgent need of reliable news. The abrupt removal of information from Internet websites maintained by federal agencies, for example, which has picked up pace in recent weeks, defeats public confidence in the openness of its government. "Recognizing these principles and the extraordinary circumstances in which the country finds itself, we urge government leaders to take the following immediate and long-term actions. Most of the immediate steps involve coverage of military operations; many of the long-term ones concern protection of our liberties at home. We recognize that as the situation changes, this list will evolve with it. "The government should promptly: " -- Reaffirm the 1992 Pentagon guidelines on coverage of combat operations, including the commitments to 1) provide journalists with access to all major military units and to special forces where feasible, 2) allow news organizations to use their own communications systems to file reports, and 3) utilize press pools not as a standard device but only when specific circumstances so require, such as when military action is conducted in remote areas; " -- Activate pool coverage of combat operations if that is, under current circumstances, the most likely method of putting reporters close to such operations; " -- Embed reporters in combat situations with troops whenever practicable and consistent with security considerations, as such methods of placing reporters in the field may provide a viable alternative to pool coverage of conflicts in certain circumstances; " -- In consultation with representatives of the news media, establish a clear set of military security ground rules for anti-terrorism initiatives in Afghanistan and elsewhere; " -- Work with the news media to ensure that uplink capabilities with adequate bandwidth exist to allow information to be transmitted in real-time or at least with some immediacy from military theaters of operation back to the American public; " -- Prohibit military officials from engaging in prior security review of news reports; " -- Exert pressure on this nation’s allies and other foreign governments to grant visas to U.S. journalists wishing to cover military and diplomatic events as they unfold overseas and impress upon foreign governments that threats against journalists or efforts to censor their work are illegitimate; and " -- At home, lift in its entirety the nationwide ban on flights by helicopters or other aircraft owned or leased by news media, in a manner consistent with public safety, and curtail indiscriminate obstructions to newsgathering and photojournalism, including any such barriers put in place solely in the name of protecting personal privacy. "Over the course of the conflict, however long its lasts, the government should also: " -- Establish a joint information bureau in any area where significant military operations occur; " -- If security review of news content is undertaken, 1) conduct such review as quickly as possible, as close to the source of news as possible, and only for the limited purpose of ensuring that troop movements and operations are properly protected; 2) reject across-the-board rules stipulating that certain information may never be published under any circumstances, and 3) examine news content in context and on a case-by-case basis by taking into account the actual dangers presented by each individual story; " -- Release to the public as soon as possible information concerning the identities, charges, and court proceedings against persons arrested and detained in the United States as suspected terrorists and material witnesses pertaining to the September 11 attacks; " -- Make available on a prompt basis the identities of all injured or deceased victims of terrorism against the United States, as well as the identities of any U.S. military persons who are casualties of the nation’s war on terrorist networks; " -- Refrain from using journalists as tools to gather intelligence and maintain the current policy forbidding intelligence agents to pose as reporters, as such practices compromise the relationships between the press and its sources and put the lives of journalists at risk; " -- Provide, as called for by the Electronic Freedom of Information Act of 1996, expedited review of Freedom of Information Act requests submitted by news organizations concerning terrorists attacks or threats against American interests and the nation’s response thereto; and " -- Allow media organizations and members of the public to observe or photograph evidence of terrorist assaults located on public property, as long as doing so does not interfere with rescue and clean-up workers." Davis Signs Bill Protecting Student
Whistelblowers (10/15/01)
Governor Gray Davis on October 5 signed into law AB 1717 by Assembly Members Charlene Zettel (R-Poway) and George Runner (R-Lancaster), which creates a new qualified privilege in the law of libel and slander for reports made to school authorities by students concerning other studentsı threats to use deadly weapons. The bill, effective January 1, is supposedly in response to the predicament of a Lancaster area high school student who informed school authorities of the threats made by a fellow student and then was sued by the student for slander. The bill adds Section 48.8 to the Civil Code, stating: "(a) A communication by any person to a school principal, or a communication by a student attending the school to the student's teacher or to a school counselor or school nurse and any report of that communication to the school principal, stating that a specific student or other specified person has made a threat to commit violence or potential violence on the school grounds involving the use of a firearm or other deadly or dangerous weapon, is a communication on a matter of public concern and is subject to liability in defamation only upon a showing by clear and convincing evidence that the communication or report was made with knowledge of its falsity or with reckless disregard for the truth or falsity of the communication. Where punitive damages are alleged, the provisions of Section 3294 shall also apply. "(b) As used in this section, school means a public or private school providing instruction in kindergarten or grades 1 to 12, inclusive." The incident prompting the legislation, widely reported earlier last year, occurred when a student at Quartz Hill High School near Lancaster reported, in April 1999, overhearing a freshman say, "I'm going to kill these people; I'm sick of them," and later threatening that he would "get" her for informing on him. The youth was arrested for making a terrorist threat and for menacing a witness and given informal probation by the juvenile court. But he then sued the Antelope Valley Union High School District for falsely accusing him, and sued the informing student as well. The litigation against the student was later dismissed as a SLAPP suit, but meanwhile the district refused to provide her with legal representation a position that led observers to note that schools would have trouble encouraging students to report possible threats of violence if they offered no protection for such initiative. Comment: The bill analysis by Senate Judiciary Committee staff noted this problem and the measure's failure (never cured) to address the issue of lawsuit defense costs: "The proposed bill would not solve the stated problem of protecting witnesses who come forward to give evidence to report potential violence from having to incur personal legal expenses to defend against meritless defamation lawsuits. As noted in the background information, the defamation lawsuit against the student whistleblower was ultimately dismissed, but only after the parents of the student incurred over $40,000 in legal expenses to obtain the dismissal. The school board was requested to provide or pay for the defense, but refused, contending it would be an improper gift of public funds. "Thus, one supporter of the bill, the California Psychiatric Association, suggests an amendment as follows: OThe school authorities in the Antelope Valley apparently refused to defend the Tapias, claiming that it would have been a gift of public funds to do so. However, the well established case law interpreting Article XIV, Section 6 of the state Constitution (the prohibition on gifts of public funds) makes it clear that it is not a gift of public funds to give money to a private party for a public purpose. I therefore suggest that you may wish to amend your bill to add findings stating the public purpose promoted by schools defending whistle blowers such as Ms. Tapia, and to specifically state that it is not a gift of public funds to do so, nor is it a gift to reimburse the costs of defense of the whistle blower." An equally serious defect in AB 1717 is its designation of the new privilege as qualified, i.e. depending on good faith belief in the truth of the facts reported. This qualification represents a step down from the privilege that the student would probably have anyway the absolute privilege (not limited to good faith) for making complaints or accusations in the initial stages of a proceeding authorized by law. A school's suspension or expulsion action for the utterance of a "terrorist threat" is a proceeding authorized expressly in the Education Code. The absolute privilege has been applied to immunize parents in comparable situations, e.g. in writing letters to school administrators complaining of the conduct of a teacher in the classroom. AB 1717, accordingly, in effect actually degrades the protection offered to students asked to inform on peer threats, while failing to address the problem of school districts that refuse to put their money where their "zero tolerance" mouths are. Resident Sued for Whistleblowing on Body Shop (10/8/01)
Paul Wondries, owner of several car dealerships and co-proprietor of a body shop that opened near Tom's home despite her and neighbors' protests, has sued her for defamation, interference with business interests and emotional distress. The suit seeks an injunction as well as damages, complaining that Tom and other neighbors orchestrated pickets, distributed misleading fliers and made false charges the dealers had to defend to government agencies. The suit wants all these speech, assembly and petitioning activities stopped, and comes at a time when Wondries and his partner and co-plaintiff, Peter James, face an October 22 hearing before the city council to review the operating permit for the Wondries Collision Center. The tension has been brewing for most of five years. In 1996, when the proposal to locate the shop near Tom's home was first broached, she and others resisted it as an incompatible incursion into their largely residential zone, and especially objected to the noise, lighting and fumes likely to be involved. When the shop opened, Tom and other neighbors monitored its compliance with regulations and complained of violations to the city code enforcement agency and to the South Coast Air Quality Management District. District records show it levying fines totaling $25,000 for failing to follow required procedures with equipment, allowing paint fumes to escape and disposing of toxic materials containers in an open trash bin. . When the operating permit came before the city planning commission in August for renewal, Tom and others said the shop violated its permit by allowing fumes to escape from open back doors. She also complained of the shop's letting employees park on the street, failing to shut off car burglar alarms at night, and opening an hour early on Saturdays. But to residents' chagrin, the commission allowed the shop a variance that legalize some of these practices, including the open doors and earlier opening hours, and approved renewal. That allows the company to keep the doors open and to open earlier. It is that action that Tom and her co-protesters, passing the hat to come up with an $800 appeal fee, have brought before the council for review. Agreeing that the suit against Tom is a classic SLAPP intended to cow her and others into silence on a public issue, James Wheaton, managing attorney for the First Amendment Project in Oakland, says he may take her case if local co-counsel can be found. "A more frontal attack on First Amendment rights could scarcely be imagined. The relief requested includes an injunction against her (I am not making this up) picketing at the place, passing out leaflets, or filing any more complaints with federal, state or local agencies about the company's violations of its permit and air laws. "They've managed to attack her rights of free speech, press, association and petition. Surprised they didn't also try to stop her from going to church and make a clean sweep of all of her First Amendment Rights." CFAC to Lawmakers: Go Slow on Anti-Terrorism
Bill (9/24/01)
The House Judiciary Committee is set to mark up the Bush Administration's Anti-Terrorism Act of 2001 in a hearing tomorrow morning, September 25, with but a single witness: Attorney General John Ashcroft. The Act's proposed set of legislative amendments, according to the Electronic Privacy and Information Center (EPIC), "address issues that are complex and implicate fundamental constitutional protections of individual liberty, including the appropriate procedures for interception of information transmitted over the Internet and other rapidly evolving technologies." (EPIC's summary analysis of the legislation is found atEPIC Because of the complexity and risk of possible overreach in law that may stay on the books long beyond the current crisis and be used in ways hard to predict with certainty but easy to imagine as abuses, civil liberties groups that have more questions than answers about the Act are urging a careful and wide debate as part of the process. Pollock's message to the committee members states: "When President Bush declared that freedom in our country would not be diminished by the evil acts of Sept. 11, he was appropriately stern and sincere. However, the administration's proposed Anti Terrorism Act of 2001, while no doubt the result of good intentions, does just that. History is replete with examples of liberties sacrificed during times of crisis that we later come to regret...the Alien Sedition Act, Japanese-American internment, FBI surveillance of anti-Vietnam war demonstrators and civil rights leaders, etc. "It is critical that consideration of the Anti Terrorism Act of 2001 be delayed until the Judiciary Committee holds comprehensive public hearings on the serious civil liberties issues the proposal implicates. I understand your committee is currently planning to proceed to mark-up after testimony from only the Attorney General and a short, informal 'briefing' on the issues that raise constitutional concerns. "Please, please, please...delay consideration of the bill until its impact on civil liberties can be carefully and fully considered." Freedom Watchdogs Go on Alert During Nation's
Recoil (9/24/01) The signs of dangerous emotion in the populace and governmental impatience with perceived security breaches or obstacles to telecommunications surveillance in particular were building almost from the start last week in reaction to the terrorist attacks in Manhattan and near Washington, D.C. On September 12, the day after the attacks, Secretary of Defense Donald Rumsfeld used a press conference to deliver himself of a gratuitous slap at unnamed government employees with security clearances engaging in unspecified breaches "on a daily basis." Caught off guard, the press at the conference asked Rumsfeld what he was referring to, and he would not go further. But he did concede there was nothing indicating that leaks of classified information which is what he was apparently referring to had contributed in any way to the terrorists' activities. (See briefing transcript atfas.org The Senate Intelligence Committee a week earlier had shelved plans to include in its annual spy agency funding bill an "Official Secrets Act" provision criminalizing all leaks of classified information. But the national emergency will likely give new energy to the debate on just how much must be done to plug all leaks, irrespective of intent or actual harm. Senator Richard Shelby (R-Alabama), principal force behind the proposal, has called for further study of the matter. (See Mobile Register story atRegister story Also on September 12, Senate Republican leader Trent Lott (R-Mississippi) was quoted as remarking, "Terrorists are at war with usSWhen you are at war, civil liberties are treated differently." There was almost immediate speculation that Congress would favorably revisit proposals from the Justice Department, floated but not adopted during the Clinton Administration, to make computer surveillance of suspected terrorists in the U.S. easier by requiring manufacturers to install a "Clipper Chip" in computer hardware, or a software "back door" functionality, that would make warranted searches through the FBI's Carnivore project possible despite the target's use of encryption programs. (See Detroit Free Press story at FreePressStory Anticipating arguments that such probe-friendly features in domestic computer systems would burden only U.S. citizens at home and give foreign software companies a competitive edge over their American counterparts, Senator Judd Gregg (R-New Hampshire), spoke out on the Senate floor in favor of an international requirement for installation of surveillance-enabling backdoors everywhere.WiredStory Other foreseeable impacts on First Amendment freedoms and civil liberties included -- various reported private threats and harassment of Arab Americans, other citizens and visitors with ethnic or national ties to the Middle East, and Muslims generally; -- the potential for targeting such individuals for special surveillance or search burdens, particularly through profile protocols at airports or elsewhere; -- new energy behind efforts to amend the Bill of Rights to permit punishment of flag desecration; and -- renewed tension over limits to press coverage from war zones once U.S. forces move against terrorist strongholds. Addressing many but not all of these issues, a statement of concern will be presented to the public at the National Press Club in Washington, D.C. at noon this coming Thursday. Signed by CFAC Executive Director Kent Pollock and probably scores if not hundreds of other organizations and individuals, "In Defense of Freedom at a Time of Crisis" reads as follows: "1. On September 11, 2001 thousands of people lost their lives in a brutal assault on the American people and the American form of government. We mourn the loss of these innocent lives and insist that those who perpetrated these acts be held accountable. "2. This tragedy requires all Americans to examine carefully the steps our country may now take to reduce the risk of future terrorist attacks. "3. We need to consider proposals calmly and deliberately with a determination not to erode the liberties and freedoms that are at the core of the American way of life. "4. We need to ensure that actions by our government uphold the principles of a democratic society, accountable government and international law, and that all decisions are taken in a manner consistent with the Constitution. "5. We can, as we have in the past, in times of war and of peace, reconcile the requirements of security with the demands of liberty. "6. We should resist the temptation to enact proposals in the mistaken belief that anything that may be called anti-terrorist will necessarily provide greater security. "7. We should resist efforts to target people because of their race, religion, ethnic background or appearance, including immigrants in general, Arab Americans and Muslims. "8. We affirm the right of peaceful dissent, protected by the First Amendment, now, when it is most at risk. "9. We should applaud our political leaders in the days ahead who have the courage to say that our freedoms should not be limited. "10. We must have faith in our democratic system and our Constitution, and in our ability to protect at the same time both the freedom and the security of all Americans." Federal Court Allows Secrecy in Corruption Trial (9/17/01) Verdict: Recording Didn't Invade Parents'
Privacy (9/17/01) City Fails in Try to Bar Resident from
Petitioning (9/17/01) No Jury Nullification Advocacy in Courthouse (9/17/01) Court: Anti-SLAPP Rule Can't Stop Federal Court
Discovery (9/10/01) So concluded the U.S. Court of Appeals for the Ninth Circuit in its opinion filed September 5 in Metabolife International, Inc. v. Wornick, Case. No. 99-56814.Metab_v_Warnick One of the key advantages for those using California's anti-SLAPP statutes to bat down meritless libel or other lawsuits --based on statements made in public proceedings or about public issues is that normally the filing of such a defense motion after receiving the initial complaint stays any further discovery until the court rules on the motion. The defendant is thus spared the time, cost and distraction of depositions, document demands and other discovery procedures until and unless the court has concluded that the plaintiff has a probably successful case based on what it can already show. If the court concludes otherwise, the speech related claim is stricken and unless there is some other claim the case is dismissed, with the plaintiff ordered to pay the defendant's costs and attorney fees. The Metabolife case is the first from the Ninth Circuit to address the fact that the anti-discovery rule in California Code of Civil Procedure Section 425.16, subdivision (f) appears inconsistent with Federal Rule of Civil Procedure 56, which requires the court to permit discovery adequate to present evidence on which it can make a case-terminating ruling. In Metabolife, the court concluded that the state rule "directly collides" with the federal rule, and thus when a case is in federal court (as it would be when the plaintiff is a resident of California and the defendant is a resident of another state, or vice versa), the anti-SLAPP motion cannot be used to stay discovery. The case involved a suit for libel, slander and related claims brought by Metabolife, a California-based manufacturer of herbal supplements. Its Metabolife 356, a weight-loss product, is classed as a food rather than as a drug and thus exempt from Food and Drug Administration requirements for testing new drugs.Metabolife Metabolife has been quite aggressive in combating what it considers unfair criticism in the press. The defendants in this case were Susan Wornick, an investigative reporter, her Boston-based employer, WCVB-TV, the station's corporate parent and Dr. George Blackburn, a Harvard Medical School professor. The suit was prompted by a May 1999 broadcast of Wornick's three-part series on Metabolife 356, including a statement by Dr. Wornick on the program that "you can die from taking this product;" and statements by Wornick that "every expert we asked said Metabolife (356) is not safe because of its main ingredientS," that the product had not been tested for safety, and that it shared the same main ingredient, ephedrine, with methamphetamines. After it was unsuccessful in getting the station to retract the statements, Metabolife sued in U.S. District Court in Los Angeles, whereupon the defendants filed their anti-SLAPP motion. The district court went through a series of shifting responses on whether Metabolife's requests for discovery would be allowed on certain issues or at all. It finally ruled that discovery would not be allowed, and despite the plaintiff's submission of more than 20 affidavits 750 pages of exhibits, including the opinions of six experts on issues relating to Metabolife 356' s safety, the court found reasons to conclude that the challenged broadcast criticism was either substantially true or at least that the plaintiff had provided insufficient or inadmissible evidence of falsity. On appeal, the Ninth Circuit concluded that the district court's rejection of various scientific studies offered by Metabolife had been an abuse of discretion, and also that Metabolife should, despite the California anti-SLAPP provision to the contrary, have been permitted further discovery to learn which experts Wornick had consulted in support of her statement that "every expert we asked said Metabolife (356) is not safe because of its main ingredient." It remanded the case to the district court accordingly, to determine a variety of issues regarding the media defendants. As for Dr. Blackburn, the court ordered his dismissal from the suit because his full unedited statement was substantially true and he was not responsible for the out-of-context broadcast excerpt. His full statement on this issue was: "The documents from the FDA hearings remained on the Internet in 1999, when we did this work years ago, and they know, even today as I know, there are people taking similar types of these products who are getting heart attacks, and of course the abuse [sic] can lead to death. But I mean, you can die from taking this product." Comment: The discovery-staying provisions of California SLAPP litigation would also be lost in light of this case when the case was in federal court because the media (or private speaker) defendant based in this state was being sued by a resident of another state. Court: Tenants Have No Right to Leaflet (9/4/01) So concluded a bare majority of the California Supreme Court in its decision filed August 30 in Golden Gateway Center v. Golden Gateway Tenants Association, Case No. S081900. In the opinion for the court written by Justice Janice R. Brown, with Justices Marvin R. Baxter and Ming W. Chin concurring, the three took the broad position that the state constitution's free speech guarantee applies only to governmental or "state action," not private restrictions on communication. The justices reasoned that Robins v. Pruneyard Shopping Center, 23 Cal.3d 899 (1979), in which the court had held that Californians have some state constitutional protection for petition circulation in large shopping malls, did not abandon the requirement for state action. Pruneyard, they concluded, simply deemed such mall restrictions as sufficient "state action," primarily because of the mall's "functional equivalence" to a system of public streets and general invitation to the public to congregate. They also reviewed legislative history of the state free speech clause and concluded that whatever clues to intent could be found pointed in the direction of a protection against state action only. Accordingly, they reasoned, not even the Pruneyard variety of "state action" was present in this case, which involved a San Francisco apartment complex's management ban on "leafleting" by tenants, defined to include passing messages or newsletters under doors, posting them on walls or leaving them for pickup. Pruneyard did not apply here, they concluded, because the public itself was not invited to use the complex's lobbies or corridors as gathering places. The fourth vote supporting the judgment only in this case came from Chief Justice Ronald M. George, who felt the reliance on the "state action" distinction was overbroad and unnecessary. Even if the government had owned the complex, he said, a number of cases made it clear that leafleting in the corridors of an apartment building from which the general public was excluded was not constitutionally protected. George explained why he felt the "state action" requirement should not be conclusively found essential in all cases: "When, in a future case, this court does address and decide whether, and in what circumstances, (the free speech guarantee) should be construed as requiring a showing of state action, it will be helpful to consider the diverse circumstances in which the free speech clause might be implicated. I have in mind circumstances in which a private person or entity may attempt to utilize its power or authority in one sphere to censor or undermine what might be viewed as another individual's free speech rights. "Consider a private landlord who, under penalty of eviction, precludes his or her tenants from displaying in the windows of their apartments the campaign poster of a particular political candidate supported by the tenant -- or requires the tenants to display in the windows of their homes a poster of the candidate supported by the landlord. Or consider a union or employer that attempts to utilize its power over an individual by precluding certain bumper stickers on vehicles parked in the employer's or union' s parking lot, or by requiring that the employee place a certain bumper sticker on his or her vehicle or attend a rally and make a political contribution, unconnected to employment-related issues, in support of a candidate favored by the union or employer but not supported by the employee. "If we were to hold, as the lead opinion broadly would, that all types of (state constitutional) free speech claims require state action (or its equivalent, shown by establishing that the location where the speech is exercised is the Ofunctional equivalent of a traditional public forum), we effectively would remove any state constitutional obstacle to any such action by a landlord, union, or employer. I see no reason to prejudge the resolution of such questions." The dissenting opinion of Justice Kathryn M. Werdegar, with concurrence by Justice Joyce L. Kennard and Court of Appeal Justice Joan D. Klein (assigned temporarily in place of the late Justice Stanley Mosk), rejected the notion that "state action" was required and that in order for it to apply to private actors, the spaces in question must be freely accessible to the public. The relevant community in question in this case, Werdegar said, was not the general public but the residents of the apartment building, who were after all free to circulate, congregate and communicate in all other respects in corridors and other passageways. Given that freedom, restrictions were to be analyzed using the same standards employed for speech restrictions in other "public" forums. The leafleting ban failed those tests, Werdegar said, since it: -- did not leave open adequate alternatives (written matter could be disseminated only by posting on a laundry room bulletin board, mail would be a costly means of reaching all residents and leafleting at the entrance would miss all those who entered by the parking garage); -- was broader than necessary (the tenants association had volunteered not to paper residents who asked not to be bothered); and -- failed to balance the interests of the tenants in communicating freely against the interests of the landlord in asserting full control over property. Moreover, Werdegar's analysis of the constitutional provision's structure and legislative history sharply disagreed with the lead opinion's conclusion that free speech was guaranteed only against governmental infringement.
A.G.: Political Buttons Protected on
Back-to-School Night (8/27/01) Senator Jack Scott (D-Altadena) had asked, "May a school district prohibit teachers from wearing political buttons while attending Back-to-School Night, an annual event where teachers meet with parents to discuss the curriculum and related matters for the coming school year?" The answer was No. Education Code Section 7052 states, "Except as otherwise provided in this article, or as necessary to meet requirements of federal law as it pertains to a particular employee or employees, no restriction shall be placed on the political activities of any officer or employee of a local agency." On the other hand, a court has concluded that a related section allows school employers to restrict the political speech of employees on school premises "during working hours," i.e. when their views might be interpreted by pupils as reflecting those of the school or school district. But the First Amendment has been interpreted by the U.S. Supreme Court as providing both pupils and teachers with some rights to political expression on school grounds. And California courts, notably in California Teachers Assn. v. Governing Board, 45 Cal.App.4th 1383 (1996), have interpreted this principle to mean that employee-to-employee political speech, as opposed to teacher-pupil communications, cannot be restricted. The opinion concludes: "We believe that the court's analysis in California Teachers may be readily applied to the Back-to-School Night program. The event does not involve an instructional setting for pupils of the district. Rather, the parents are in attendance to show support for their children's educational activities. In this setting, it reasonably need not be feared that young and impressionable minds will be unduly influenced by teachers wearing political buttons or that the parents will believe that the teachers' political buttons reflect the views of the district's governing board or other school officials. Specifically, there would be very little risk that even if some parents disagreed with the content of a particular political button, they would like children, extend their disagreement to the level of general hostility and uncooperativeness.'" Court: Vietnamese Protest Leader not Liable for
Violence (8/27/01) So ruled the California Court of Appeal for the Fourth District in its opinion issued August 21 in Lam v. Ngo, Case No. G026329. Lam_v_Ngo The widely reported 1999 furor in the Orange County city of Westminster resulting from a video store owner's placing in his window a North Vietnam flag and a picture of Ho Chi Minh led many members of the Vietnamese community to demand that local public officials--especially those with roots in Vietnam--to side with the protesters against this perceived provocation. Tony Lam, a city councilman in nearby Garden Grove and owner of the Vien Dong restaurant, later claimed that the city attorney had advised him not to become embroiled in the controversy, and so he did not. That abstention prompted a crowd of protesters to gather in the parking lot of the restaurant with the landlord's blessing and call for Lam's resignation from the council. Lam's patronage suffered and he filed suit against 1500 Doe defendants and the landlord, obtaining a temporary restraining order keeping the demonstrators from within 20 feet of the restaurant's windows and entrance, and from using bullhorns that could be heard inside. The perimeter was soon expanded to 50 feet beyond the parking lot's borders. Lam sought a preliminary injunction by contending that prior to court intervention protesters had gotten in the faces of customers and shouted at them, kept the noise level high for diners inside, and even occasionally slashed tires, pounded on cars, urinated on the restaurant walls, and tried to videotape patrons and their license numbers. As for what the protesters were saying and showing, the Court of Appeal noted that "demonstrators bore numerous signs casting Lam as a communist and a traitor. They carried drawings of Lam as a horned and fanged devil with blood dripping down his mouth. They crafted a life-sized effigy of Lam tied to a gallows next to a life-sized effigy of Ho Chi Minh; a bloody axe bearing a South Vietnamese flag, coffin-like box, and the slogan "Down with the Communists" adorned their creation. The protesters also created three-dimensional effigies of Lam and Ho Chi Minh in lewd sexual positions across the street from the restaurant." Then, having suffered a 40 percent revenue loss, to say nothing of having to hire security guards just to get customers through the parking lot to his doors, Lam filed a damages action against the protesters, citing intentional infliction or emotional distress and interference with economic damage, trespass, and nuisance. Ngo Ky, one of the defendants, filed an anti-SLAPP motion and lost. The trial judge concluded, in effect, that since the protesters' activities had already been found unjustified by the grant of the injunction, Ngo was perverse in contesting the damages suit. He ruled that Ngo must pay Lam $8,000 for putting him to the extra cost of resisting the anti-SLAPP motion. On appeal, the Fourth District reached several conclusions, all in Ngo's favor. A few were procedural, affecting the deadlines for making anti-SLAPP motions. But also, the court ruled, the trial judge had erred in reasoning that Lam's success in getting the injunction against all demonstrators meant that Ngo, one of them, could not challenge a related damages action as faulty against him. As explained by Associate Justice David G. Sills for the court: " In the context of this case, for example, the single cause of action against the protesters as a group for nuisance might indeed be meritorious. But the meritoriousness of that cause of action couldn't make valid a cause of action brought by a public figure for intentional infliction of emotional distress claim based on, say, being called a "communist." In sum, the fact that a preliminary injunction was granted did not prevent consideration of the merits of the anti-SLAPP suit motion." As to those merits, the court found that Lam could not likely prevail against Ngo, simply because he had had so little to do with the demonstrations and nothing significant to do with the offensive conduct causing the injuries to Lam's business: "Lam may have had a good case against the protesters generally for a preliminary injunction based on nuisance, but the evidence against Ngo personally is very thin indeed. A Garden Grove Police Department lieutenant declared that on the first day of the protest, March 12, 1999, "A gentleman approached me and identified himself as Ky Ngo and said he was an organizer of the protest, which again, is directed at Mr. Lam. Mr. Ngo assured me that he wanted a peaceful demonstration and that the protesters would limit their activities to the public sidewalk in front" of the restaurant. Lam produced several declarations to the effect that on April 4, Ngo had instructed the protesters not to take a copy of the TRO when one of Lam' s daughters attempted to serve them with it. Those declarations also asserted that just before Ngo made the "don't take it" statement, Ngo went 20 feet inside the then-50 feet buffer zone and screamed at one of Lam's process servers "you cannot stop them, they are just citizen [sic] with flags." On April 5, Ngo apparently also violated the buffer zone, was confronted by Lam's daughter, walked back, made some rude gestures toward Ms. Lam, took some pictures of her, and then screamed in Vietnamese the equivalent of, "I will send these pictures to Playboy magazine." And that, unless we have missed some reference to Ngo in this record or otherwise blinked, is pretty much it so far as the evidence of Ngo's personal involvement in the protests. None of the declarations delineating the clearly wrongful acts involved in the early days of the protests -- such as the slashed tires, the posting of banners on the restaurant, the urination on it, or even the direct intimidation of any of the customers in the parking lot -- show that such acts were authorized, directed or ratified by Ngo." The court also held that there was no tort liability against Ngo Ky or any other defendants for the offensive speech or images used, which were protected by the First Amendment because they had a political (not an economically competitive) purpose, and because their excesses ("Communist!") were figurative and unlikely to be taken literally by anyone. But to the extent that the Does could be identified who participated in the destructive activity beyond speech, their conduct w | |