Promoting and defending the people's right to know since 1988
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.
2003
Court:
DVD decryption code gag is constitutional (8/25/03)
Native American sacred sites bill
passes panel (8/20/03)
Court: Online matchmaker not liable
for mischief (8/13/03)
NEWSLINK: Suit
attacks cities' billboard policies (8/2/03)
Court: Dentist's report about officer
was protected (7/30/03)
Court: Smear campaign unworthy of
SLAPP shield (7/25/03)
Bill
calls for hush-up of data security problems (7/7/03)
Court: Some small group issue needed
for SLAPP (7/3/03)
U.S. Supreme Court review sought for
'trash talk' (7/3/03)
Committee
passes bill limiting SLAPP protections (7/2/03)
Court: Privatised street 'mall' is
still a public forum (7/2/03)
CFAC faults Kuehl bill trimming the
SLAPP shield (6/30/03)
Court: Cops' right to sue for spiteful
lies is lawful (6/6/03)
California Demos allow passage of
flag-burning bill (6/5/03)
Book details how e-needling led to
a big lawsuit (5/27/03)
Denial
of SLAPP motion to union becomes final (5/14/03)
Court: State can regulate ads for ballot
measures (5/8/03)
Court: Secretaries loyal to prior boss can be fired (4/8/03)
Rights
watchdogs begin coding own risk palettes (4/1/03)
Court: Albertson's frontage no public forum (3/18/03)
Court:
Flag display opens overpass to dissent (3/13/03)
Court: Fire official's private remarks
unprotected (2/28/03)
Court: Whistleblowing worker gets fair
arbitration (2/27/03)
Court: Abortion protest not extortion,
RICO basis (2/26/03)
Court:
State can't require heads-up on hit pieces (2/25/03)
Bill would deny businesses an anti-SLAPP motion (2/20/03)
Court: Whistleblowers protected from range of ills (2/18/03)
Court: Commencement speech no right to preach (2/19/03)
Court: Gun possession not protected expression (2/18/03)
Court: Vote-swap web sites to get their day in court (2/6/03)
Libel defendant rightly denied (2/3/03)
Whistleblower may show 'discharge' (1/31/03)
Court: Child's complaints of sexual abuse protected (1/30/03)
Court: Freeway overpass protests lawfully curtailed (1/27/03)
Court: U.C. supervisor's suit against union no SLAPP (1/27/03)
State
officials sued for blocking citizens' e-protests (1/16/03)
Court:
Suit to block public spending may backfire
SAN DIEGO (12/17/03) -- A
lawsuit to challenge government action is not absolutely privileged
and may prompt a malicious prosecution suit from affected private
parties.
So ruled the California Court of Appeal for the Fourth District
in its opinion in Padres L.P. v. Henderson, case no D040627.
Attorney Bruce Henderson brought a series of lawsuits for several
clients challenging steps taken by the city of San Diego to help
owners of the San Diego Padres baseball team build a ballpark
downtown as part of a redevelopment project.
The suits included a challenge to the lawfulness of a city-sponsored
ballot proposition approving public support for the enterprise
as well as appropriations to help fund it. Henderson's arguments
cited the state constitution, the city charter, a local spending
cap initiative and environmental law among other grounds.
The suits were unsuccessful in the superior court and, where appealed,
there as well. The Padres owners, who had been named in the actions
as co-defendants with the city, then sued Henderson for malicious
prosecution. Such lawsuits require the plaintiff to show that
the defendant sued the plaintiff and lost, that the defendant
went to court without "probable cause" -- i.e. that
no reasonable attorney would have brought such and action, and
that the suit was filed with "malice."
The superior court found, and the Fourth District agreed, that
all the suits in question had been squarely lost by Henderson
but that all but one of them had been filed with probable cause.
As to that remaining case, the court held it not only without
probable cause but close enough a call on the malice factor to
allow the matter to go to trial.
The principal reason the Padres suit got thus far was that, in
response to Henderson's anti-SLAPP motion, the superior court
ruled and the appellate court agreed that Henderson's litigation
was not absolutely privileged. While the California Supreme Court
has held that the government itself cannot sue even the most frivolous
and "malicious" plaintiff for malicious prosecution,
since allowing such a response would chill citizens' First Amendment
rights of petition.
But the Fourth District's two-justice majority in this case ruled
that this bar does not apply to a private party such as the Padres,
since their private interests merit protection from frivolous
litigation.
Dissenting Justice Patricia Benke saw it very differently, arguing
that, in effect, private parties in the position of the Padres
should be allowed to sue for malicious prosecution only when they
can prove that the real motivation for the suit was not to challenge
government action as such but rather to injure the private party's
business interests, much as might a commercial competitor. In
short, Henderson should be immune unless it could be shown that
his suit against the city was an utter sham or ruse simply devised
the harm the Padres. Said Justice Benke:
"Respectfully, I believe the consequences of the majority's
decision are staggering.
"As I noted at the outset, all government public institutions in this state must conduct themselves within the limits set forth by the people in various forms, from city charter provisions... to amendments to our state Constitution... Until today those limitations were often the subject of fiercely conflicting interpretations. The majority, however, has gone a long way in eliminating these conflicts: in a very powerful fashion, my colleagues have discouraged citizens from ever arguing with the government over limitations on its powers. Although Henderson's claims were in no definitive manner barred by either (precedent) or the provisions of the city charter, the majority has nonetheless found that he acted without probable cause. Given this holding it would be pure folly for any citizen or citizens group to challenge any government action. If they are unsuccessful, they will certainly be subject to sanctions and if the government action involved an agreement with a private third party, they may be liable in tort.
"In discouraging citizens from attempting to enforce limitations on government action, I think the majority has made a serious mistake. I would submit that as a general proposition our laws embody the principle that as citizens we are far better off with someone who feels free to challenge government leaders than with government leaders who feel free to ignore the restraints we have placed on them."
Court:
Credit card pitch gets no anti-SLAPP shield
LOS ANGELES (11/25/03) --
A bank's misleading 'pre-approved' credit card solicitation involves
no public issue entitled to the protection of the anti-SLAPP law.
So ruled the California Court of Appeal for the Second District
in its opinion
in Jewett v. Capital One Bank, case no.B163311.
The defendant bank's mailed solicitations told plaintiff Beverly
Jewett and others in this class action that they had been pre-approved
for $2,000 in credit, when in fact (alluded to only once in fine
print on the back of the form letter) the credit limit was $200,
but fees and penalties were as high as appropriate to the greater
amount.
The bank's ultimate response to Jewett's unfair business practices
suit was to file an anti-SLAPP motion to strike, contending that
its promotional material dealt with a public issue and therefore
could not be attacked at trial unless Jewett convinced the court
of a probability of success beforehand.
The trial court granted the bank's motion and found that Jewett
had failed to establish a probability that she would prevail on
the merits of the complaint because: the solicitations complied
with federal regulations; the statements in the solicitations
were not misleading; the survey attached to appellant's declaration
was seriously flawed; and Jewett had failed to produce any admissible
evidence that any person who responded to the ad was given credit
of less than $2,000.
On appeal, the Second District rejected these conclusions and
reversed the trial court's orders. The appellate court acknowledged
that a statement promoting or defending a product or business
practice might be protected if conveyed in a sufficiently broad
public policy context. But, said Justice Michael G. Nott for the
court:
"There is no indication that (the bank's) solicitations were
designed to inform the public of an issue of public interest,
despite (its) arguments that the solicitations affect large numbers
of people and provide 'important, specific, and detailed information
on serious matters.' We find that the solicitations were designed
solely for the purpose of commercial activity, and that to allow
such solicitations the protection of (the anti-SLAPP motion) by
virtue of the fact that they touch upon matters of general public
interest would eviscerate the unfair business practices laws.
We hold that the credit card solicitations at issue do not implicate
matters of public interest and therefore do not qualify for protection
under (the anti-SLAPP law)."
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Court:
Internet no special refuge from libel law
SAN JOSE (11/13/03) -- Despite
traditions of freewheeling "flaming" on the electronic
frontier, defamation on the Internet is libel, and no more protected
than elsewhere.
On the other hand, as elsewhere, those who post libels in cyberspace
cannot be blocked from doing so by court orders -- only held liable
for the consequences afterwards.
So concluded the California Court of Appeal for the Sixth District
in its opinion
in Varian Medical Systems, Inc. v. Delfino, case no. H024214.
The case was prompted by a series of provocative insults posted on Internet message boards by the defendant Michelangelo Delfino, a research scientist formerly with Varian, concerning an administrative co-worker, Susan Felch, as well as George Zdasiuk, a Varian manager whom Delfino reported to at the time of his firing in the fall of 1998.
Delfino was terminated not long after an inconclusive, video camera-enabled investigation into Felch's complaints that he was mocking her in the workplace by imitating her hand gesture used to simulate a phone placed to the ear. Day, Delfino's partner in professional work and life with even more seniority with the company (15 years to Delfino's 10), was likewise let go shortly thereafter.
Delfino's firing did nothing to squelch his expressed contempt for Felch or Zdasiuk. It only sparked a global and relatively long-lived forum (and magnet, since it prompted copycat postings by unknown parties) for derisory gibes, humiliating taunts and name-calling directed at Felch, Zdasiuk, and two Varian executive vice presidents
As FLASH reported last May, "In 'Be Careful Who You SLAPP!' Delfino and Day relate their version of the rest of the story as of last year, which so far has three main legal mileposts: the loss of the defendants' anti-SLAPP motion; a December 2001 jury verdict for the plaintiffs (the company, Felch and Zdasiuk) awarding a total of $775,000 in compensatory and punitive damages, chiefly for defamation; and an April 2002 order from the Sixth District Court of Appeal staying all trial court proceedings for contempt, asset discovery and damages enforcement, pending appeal.
"The self-published book goes far beyond legal analysis of the issues, however. As an exercise of self-justification, it stresses the plaintiffs' litigation excesses as baseless assaults against on-line flaming that, the authors insist, was not defamatory because it could not be taken seriously by anyone and was merely offensive, as Americans are free to be under the First Amendment. But it also celebrates, with a zest many will find disconcerting, the satisfaction of using 'merely' offensive language as payback to paint workplace adversaries as ludicrous if not repellent personalities."
The current opinion from the appellate court concludes that the defendants did publish statements about Felch and Zdaziuk, as well as Varian itself, that were defamatory whether believed or taken seriously by most readers or not. In the words of Justice Eugene M. Premo for the court:
"There are numerous messages that either directly assert or imply that Felch was professionally incompetent, that she engaged in sex outside of marriage, that she was a liar, that she had sabotaged her laboratory at work, and that she held her position by having sex with a supervisor. The 'dress with a stain' message that we quoted above is typical. Any recipient of that message in 1998 or 1999 would have reasonably concluded that the 'dress with the stain' remark was intended to refer to the Clinton/Lewinsky affair in which the White House intern was supposed to have preserved a dress stained with the President's semen. One reasonable interpretation of the statement is that Felch is so incompetent or lazy that she must resort to blackmail or sex with a supervisor to keep her job.
"There are numerous messages about Zdasiuk stating or implying defamatory facts. A message entitled 'Yes, George Zdasiuk is quite sick' contains this statement: 'Maybe his drinking clouded his judgment, maybe it's one of the reasons he repeatedly violated company policy, who knows. ' I just hope he's not intoxicated when he takes the stand at the trial.' Another one says, 'I' m sure there will be plenty of time for everyone to get to know each other as I suspect we' ll have to wait for Mr. Zdasiuk to sober up before he takes the stand . . . .' A reasonable factfinder could conclude that these messages assert or imply as a fact that Zdasiuk's judgment was regularly impaired by alcohol. This is defamation."
"The many publications relating to (Varian) videotaping company bathrooms would naturally have the effect of bringing the business into public contempt and imply that the company had committed a crime."
Next, the court concluded that defamatory postings in cyberspace are libel, not slander. The latter tort requires the plaintiff to prove particular injury, whereas libel presumes injury from the fact of publication. Justice Premo reasoned:
"We find the plain language of the defamation statutes is dispositive. That is, defendants' messages were publications by writing. The messages were composed and transmitted in the form of written words just like newspapers, handbills, or notes tacked to a conventional bulletin board. They are representations 'to the eye.' True, when sent out over the Internet the messages may be deleted or modified and to that extent they are not 'fixed.' But in contrast with the spoken word, they are certainly 'fixed.' Furthermore, the messages are just as easily preserved (as by printing them) as they are deleted or modified. In short, the only difference between the publications defendants made in this case and traditionally libelous publications is defendants' choice to disseminate the writings electronically."
In addition, the court concluded that neither the individual plaintiffs nor Varian were in any sense public figures; accordingly, they did not need to prove that the plaintiffs knew the libelous statements were false at the time they posted them.
The court also concluded that portions of the trial court's orders prohibiting the defendants from continuing to post their attacks were unenforceable prior restraints forbidden by the First Amendment since the court could not determine in advance whether they would be defamatory, context being crucial to that determination. But it upheld the order to the extent that it barred disclosure of certain specific confidential information.
Finally, the court concluded that appeal of an anti-SLAPP motion, which in this case the plaintiffs filed a year and a half after the litigation began, does not automatically require a stay in the trial.
"Where a defendant appeals
the denial of an anti-SLAPP motion, trial of the plaintiffs' action
is not automatically stayed because it would have no direct impact
on an appeal from the order. If the appeal is decided in defendants'
favor prior to judgment the matter will be dismissed. If the appeal
is decided in plaintiff's favor before judgment, the trial will
proceed. If the matter proceeds to trial before the appeal is
decided and defendant prevails at trial, the appeal may proceed
and the only effect the outcome could have on the judgment would
involve defendants' right to certain fees. On the other hand,
if plaintiffs prevail at trial they have proven their probability
of success and an appeal becomes moot because the dispositive
issue has been conclusively decided. That is not to say that in
some cases trial should be stayed. But we believe the question
rests in the discretion of the trial and appellate courts."
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Court:
Strip theater protesters' antics not protected
LOS ANGELES (10/23/03) -- Picketers were lawfully barred from
a mini-mall containing a strip club they objected to after they
violated an injunction limiting them to peaceful protest.
So concluded the California Court of Appeal for the Second District
in its opinion
in Slauson Partnership v. Ochoa, case no. B162900.
The court affirmed the trial court's denial of an anti-SLAPP motion
to dismiss, agreeing with the lower court that plaintiff Richard
Ochoa was properly ordered to stay off the premises of the Pico
Rivera mini-mall except as a non-protesting patron of its business
tenants.
Ochoa, pastor of a nearby church, was ordered to stay off the
mini-mall property after the trial court found that he had violated
an earlier, milder injunction that allowed him and his fellow
protesters to gather and peaceably express their views near Imperial
Showgirls, a strip club. The city had tried to shut the establishment
down, but its proprietors had obtained a federal court injunction
to the contrary, concluding its entertainment was not obscene
and therefore constitutionally protected.
The appellate court reasoned that while the mini-mall might be
required to tolerate peaceful protests against a particular tenant's
business, Ochoa in particular had exceeded his rights in instigating
disruptive behavior on the premises. In the words of Judge Aurelio
Muoz (a Los Angeles Superior Court judge sitting by assignment)
for the court:
"The original stipulated injunction was an admirable accommodation
in this case, giving the protestors sufficient access to the Mall
given its multi-store layout, yet taking into account the Mall's
small size and limited purposes (mainly shopping). Unfortunately,
Ochoa and the other protestors abused the generous access they
had been given. There is no free speech right to yell on bullhorns
in an admittedly residential area at 12:30 in the morning, to
accost and harass patrons of the Mall, and to deface property.
Furthermore, any contention that Ochoa ... did not direct the
wrongdoing and did not engage in any himself is unsupported by
the facts. Ochoa admitted that he directed the protestors; he
kept a list of many of their names; and he negotiated the original
stipulated injunction, purportedly on their behalf. Furthermore,
there is ample evidence of wrongful conduct on his part, for example,
his use of a bullhorn."
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Court:
Internet no haven for deliberate defamation
SAN FRANCISCO (10/15/03) --
Those who intentionally recirculate others' libels on the Internet
are not protected by the immunity provisions of the Communications
Decency Act.
So ruled the California Court of Appeal for the First District
in its opinion
in Barrett v. Rosenthal, case no. A096451.
Defendant Ilena
Rosenthal used two Internet newsgroups to forward an e-mail
message she had received from one Timothy Bolen, with whom she
shared hostility toward the activities of a "diet fraud"
and anti-quackery authority, Terry
Polevoy, M.D.
As summed up by Justice J. Anthony Kline for the court:
"According to the complaint, the message accused Dr. Polevoy of 'stalking women' and urged ' health activists . . . from around the world' to file complaints to government officials, media organizations, and regulatory agencies. Sample complaints to governmental agencies were also provided. The republished statements claimed Polevoy stalked Christine McPhee, a Canadian radio personality whose program in support of 'alternative medicine' he disliked. According to Bolen, Polevoy 'terrified' McPhee by e-mailing her the details of his stalking activities. McPhee allegedly sought police protection and 'the police kept two uniformed officers on site for some time, to deal with Polevoy.' The Bolen statement described Polevoy's conduct as part of a 'criminal conspiracy' and urged readers to bring this and other unspecified 'criminal' conduct to the attention of various governmental officials, urging them to use their influence to see that 'a criminal investigation' of Polevoy's 'subversive' activities 'begins immediately.'"
Polevoy and another target for
the defendant's attacks sued Rosenthal, and the trial court found
that the litigation was subject to the California anti-SLAPP statute
and that Polevoy could not prevail, in part because the damaging
statements had been circulated on the Internet but were not those
of the circulator, Rosenthal. The immunity relied on is found
in the federal Communications Decency Act, which protects Internet
"providers or users" of interactive computer services
who post or otherwise publish the libelous statements of others.
This federal statute in large part conflicts with the common law
principle that one who re-publishes another's libel is equally
answerable for it at law.
The appellate court, noting that common law liability for republication
does not extend to bookstores and other "distributors"
who do not know or have reason to know of a libel contained in
the material they circulate, pointed out that this principle was
consistent with the federal immunity -- providing the recirculator
is in fact unaware of the libel.
In resversing and remanding on this issue, Justice Kline stated
for the court:
"Appellants (Polevoy and Barrett) concede that section 230 (the federal immunity) bars treatment of providers or users of interactive computer services as primary publishers subject to strict liability, but maintain it does not bar treating them as distributors and subjecting them to knowledge-based liability. Appellants' argue that the trial court's interpretation of section 230 protects Internet intermediaries who intentionally distribute injurious third party content, and that this is contrary to the very purpose of the statute. If the trial court's interpretation is upheld, appellants maintain, 'a "clever libeler" could easily escape liability by having some other Internet user who is not subject to the jurisdiction of the Court, or who is anonymous, or who is judgment proof, publish libelous statements which another "Internet user" is free to republish.' In appellants' view, such an interpretation would convert an act designed to promote 'decency' into a shield for 'indecency,' which Congress could not have intended.
"We agree with appellants that the statute cannot be deemed to abrogate the common law principle that one who republishes defamatory matter originated by a third person is subject to liability if he or she knows or has reason to know of its defamatory character. By construing section 230 as conferring an absolute immunity, the trial court erred."
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Court:
Ban on union buttons in classroom is lawful
FRESNO (10/3/030) -- A
school district may lawfully bar teachers from wearing union buttons
in the classroom, even though such "political activity"
may not be disruptive.
So concluded the California Court of Appeal for the Fifth District
in its opinion
in Turlock Joint Elementary School District v. Public Employment
Relations Board, Case No. F041187.
The emblem in question was described by Justice Rebecca A. Wiseman
for the court:
"The circular button, approximately two inches in diameter,
had a burnt orange perimeter and a white background with 'Turlock
Schools' across the top arc and the numbers 9, 11 and 14 on the
lower arc. The center of the button contained a black number 1
with a burnt orange slash through it. A smaller handwritten 'TTA'
was located on the lower left portion of the button. TTA recommended
the teachers wear these buttons at all times to communicate and
publicize their position that they had slipped from number 1 in
the county in teacher salaries and benefits to number 9, number
11, and finally number 14. The button was large enough for students
to read from anywhere in the classroom. Later, new buttons with
a similar design were distributed to some teachers. The purpose
of the button campaign was to publicize to the community TTA's
demand; to build solidarity among the membership; and to demonstrate
to the administration that the teachers were unified."
As summarized by Justice Wiseman:
"We hold that the wearing of union buttons by teachers while
instructing in the classroom falls within the definition of 'political
activity' set forth in Education Code section 7055 and may therefore
be restricted by a school district. The union buttons pertained
to conduct of the board of trustees of the District, a governmental
entity. The purpose of wearing them was for teachers to attempt
to persuade the governing board of trustees to change its position
at the bargaining table. In short, TTA attempted to influence
and modify District policy and budgetary choices. A school district's
restriction of labor relations disputes to prevent such disputes
from spilling over into the classroom is a proper restriction
of political activity under Education Code section 7055. This
is particularly true in an era in which school districts are pressured
to maximize instructional minutes and achieve measurable educational
results. "
But Justice Wiseman also observed that teacher unions were free
to bargain for the right of their members to wear such buttons
in the classroom.
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Sacred
sites bill falls three votes short of passage
SACRAMENTO (9/15/03) -- A
measure to give Indian tribes' religious beliefs influence over
private land use and control over public speech died in the Assembly.
SB
18, opposed by the California First Amendment Coalition (CFAC)
as a dual infringement of the First Amendment, was not rejected
for its constitutional flaws, however, which aside from a moment
or two of dismissive comments in one committee, never engaged
lawmakers' attention at all.
Instead, the measure fell three votes short of the 41 needed for
passage, mainly due to the abstention of Assembly Democrats still
uncomfortable with its unusual spectrum of opposition from local
government, the California State University, and a wide variety
of agricultural and business interests.
The failure came despite intense efforts to reach compromise in
the final 24 hours of the session. And the bill's lead author,
Senate President pro Tempore John Burton (D-San Francisco) said
he would revive the effort next year and give it more of his uniquely
influential attention.
As reported
in the San Diego Union-Tribune:
"Burton personally lobbied fellow legislators, and top aides to the governor also pushed the measure on the floor, all to no avail. Burton said he couldn't explain what happened.
"'The bill might have gotten snake bit,' he said. 'I have no idea if it was a backlash from Republicans because Indians are supporting (Lt. Gov. Cruz) Bustamante (in the recall election), whether the builders had a problem with it.'
"'There will be a bill next year and I will get more personally involved in the negotiation of it. This year it was more the governor's office.'"
Burton is also author of SCA 1, the constitutional open government amendment bill co-sponsored by CFAC and the California Newspaper Publishers Association.
CFAC opposed SB 18 because it
provided for a non-public process whereby land owners or developers
planning a project would be officially informed when one or more
tribes considered the project area sacred, but also forbidden
on pain of prosecution from revealing that information to the
public. This central element of SB 18, said CFAC, violated the
First Amendment prohibition against the establishment of religion
and the First Amendment protection for speech.
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Court:
Online matchmaker not liable for mischief
PASADENA (8/13/03) -- A Web-based dating service is not liable
when someone signs up under your name and submits a fictitious
profile making you look vile or silly.
So concluded the U.S. Court of Appeals for the Ninth Circuit in
its opinion
in Carafano v. Metrosplash.com, case no. 02-55658.
Actress Chase Masterson,
with TV roles including "Star Trek: Deep Space Nine,"
was born as Christianne Carafano. In the fall of 1999 a listing
purporting to be from and about her appeared in the Los Angeles
section of Matchmaker.com
as a three-week trial (free) posted profile with the ID "Chase529".
It was apparently submitted by someone in Berlin, and without
her knowledge or consent. She first sensed something amiss about
a week later when she began hearing sexually explicit and threatening
messages on her voicemail, and then a real flood of lurid and
frightening attention began. As described by the court,
"When she returned to her home on November 4, she found a
highly threatening and sexually explicit fax that also threatened
her son. Alarmed, she contacted the police the following
day. As a result of the profile, she also received numerous
phone calls, voicemail messages, written correspondence, and e-mail
from fans through her professional e-mail account. Several
men expressed concern that she had given out her address and phone
number (but simultaneously expressed an interest in meeting her).
Carafano felt unsafe in her home, and she and her son stayed
in hotels or away from Los Angeles for several months."
Finally her assistant traced the phenomenon to the Matchmaker
Web site, where she found the connection. In the court's words,
"Pictures of the actress are widely available on the Internet,
and the false Matchmaker profile 'Chase529' contained several
of these pictures. Along with fairly innocuous responses
to questions about interests and appearance, the person posting
the profile selected 'Playboy/Playgirl' for 'main source of current
events' and 'looking for a one-night stand' for 'why did you call.'
In addition, the open-ended essay responses indicated that
'Chase529' was looking for a 'hard and dominant' man with 'a strong
sexual appetite' and that she 'liked sort of be[ ]ing controlled
by a man, in and out of bed.' The profile text did not include
a last name for "Chase" or indicate Carafano's real
name, but it listed two of her movies (and, as mentioned, included
pictures of the actress). In response to a question about
the 'part of the LA area' in which she lived, the profile provided
Carafano's home address. The profile included a contact
e-mail address, cmla2000@yahoo.com, which, when contacted, produced
an automatic e-mail reply stating, 'You think you are the right
one? Proof it !!' [sic], and providing Carafano's home address
and telephone number."
Carafano sued Matchmaker in superior court for invasion of privacy,
misappropriation of publicity, defamation and negligence. The
defendant had the case transferred to federal district court,
and that court granted defendant's motion for summary judgment
on various grounds, holding that while Matchmaker was not immune
from suit under the Communications Decency Act (CDA), Carafano's
privacy had not been invaded, and that with respect to all claims,
she as a public figure had not shown that Matchmaker behaved with
knowledge of the falsity of the representations.
The Ninth Circuit held, however, that Matchmaker was immune under
the CDA, which releases Internet service providers, publishers
and hosts from liability for material posted by others. Under
that protection, which the court called "expansive"
and "robust," it does not matter if the Web site proprietor
provides part of the content, in terms of prompts or multiple-choice
sample entries, so long as it does not supply the offending material
itself. In the words of Circuit Judge Sidney R. Thomas for the
court:
"In this case, critical information about Carafano's home address, movie credits, and the e-mail address that revealed her phone number were transmitted unaltered to profile viewers. Similarly, the profile directly reproduced the most sexually suggestive comments in the essay section, none of which bore more than a tenuous relationship to the actual questions asked. Thus Matchmaker did not play a significant role in creating, developing or 'transforming' the relevant information.
"Thus, despite the serious
and utterly deplorable consequences that occurred in this case,
we conclude that Congress intended that service providers such
as Matchmaker be afforded immunity from suit. Thus, we affirm
the judgment of the district court, albeit on other grounds."
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Native
American sacred sites bill passes panel
SACRAMENTO (8/20/03) -- A bill that would make it a crime to reveal
the location and ritual uses of Native American sacred places
is advancing despite CFAC concerns.
The Assembly Committee on Natural Resources passed SB
18 on an 8-4 party line vote Wednesday, Aug. 20, after almost
three hours of testimony from supporters -- officials of the Davis
Administration and Native American tribal advocates -- and largely
business and local agency opponents.
The bill would allow tribes to designate areas of public and private
land as ritually sacred on a secret list maintained by the Native
American Heritage Commission. The list would have to be consulted
and a listed site accommodated in any development projects or
general plan amendments. In environmental impact proceedings,
the effect on the land's value to tribal religious traditions
and practices would have to be taken into consideration, although
the project might still proceed if the lead agency found that
other factors favoring development were overriding.
The California First Amendment Coalition objected to the bill's
proposal for formal state deference to religious beliefs as such,
coupled with a provision making it a crime for anyone to reveal
the location, character or religious uses of the site, as unconstitutional.
General Counsel Terry Francke warned that ignoring this dimension
would lead to "an unpleasant surprise for supporters when
its implementation met an injunction based on the Establishment
and free speech clauses of the First Amendment."
Tom Newton, general counsel for the California Newspaper Publishers
Association, also expressed concern with the bill's impact on
open proceedings and records of local government agencies and
courts, which would likewise be required to keep the specific
site information secret.
Senator Denise Moreno Ducheny (D-San Diego) said she had not heard
of CFAC's objections until the past few days, but also said she
did not see the problem with keeping certain facts confidential
in public proceedings, a practice for which there were several
precedents.
Francke sent a follow-up letter Friday, August 22 to Barry Goode,
Governor Davis's legal affairs secretary, who helped draft the
controversial form of the bill that appeared in July 9 amendments,
and who has been serving as legal advisor on the bill. The letter
concentrates on the fundamental involvement of the state with
religious determinations that might well leave it to be struck
down in court, especially since the religious determinations would
be used as a basis for criminally-enforced secrecy.
The letter summarizes this objection by stating:
"SB 18 cannot stand because it codifies what is, in its original anthropological sense, a taboo -- a protection of that which is secretly sacred, with severe consequences for the sacred thing once disclosed, and for him who discloses it as well."
On the other hand, it says,
"we believe that the trust
so movingly appealed to by the author in the recent hearing should
be given a chance to work in some kind of voluntary scheme. We
think most Californians and citizens in general are prepared to
respect traditions they may not share or understand, particularly
those of peoples who have had so much else taken away. Surely
the tribes' beliefs and practices can be accommodated, within
the meaning of First Amendment case law if not to their entire
satisfaction, without the clearly unconstitutional approach taken
by SB 18 in its current form."
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Court: DVD decryption code gag is constitutional
SAN FRANCISCO (8/25/03) -- A court lawfully issued an order to
prevent a website host from telling others how to defeat DVD encryption
and watch movies free.
So concluded the California Supreme Court in its opinion
in DVD Copy Control Association, Inc. v. Bunner, case no S102588.
Andrew Bunner was one of several people interested in the technical
aspects of how motion picture studios had encrypted DVDs of their
productions to prevent their being copied. He was also among several
who posted on the Internet a program to defeat the encryption
and permit free copying.
The plaintiff association, comprising the studios who had most
to lose, went to court for an order barring Bunner and others
from making the decryption program, which they called a stolen
trade secret, available to others in any manner. The studios did
not seek damages or try to show that Bunner or anyone in particular
stole the trade secret, but did insist that he as well as the
other defendendants knew it had been unlawfully acquired by someone
in the first place.
The trial court issued a preliminary injunction to prevent further
injury to the plaintiffs while the fundamental questions were
settled. Only Bunner appealed, and when he did, the appellate
court struck down the injunction as an unconstitutional prior
restraint of "pure speech."
The Supreme Court majority disagreed. In her opinion for the majority,
Justice Janice Rogers Brown assumed that the injunction was a
proper application of California's trade secret law, and as applied
here burdened no more speech than was necessary to avoid further
harm to the property interests of the plaintiffs. Although Bonner
may have not stolen the programs, he had no better right to disseminate
them than did the thief, Brown noted. And his "prior unlawful
conduct" of treating the programs as his own kept the order
from being a prior restraint on publication in violation of either
the First Amendment or the free speech clause of the California
Constitution.
On the other hand, the court remanded the case to the Court of
Appeal to review the factual record carefully to determine if,
after all, the trade secret law warranted issuance of the injunction
otherwise -- including whether the program in question was protected
by trade secret law. Dissenting Justice Carlos Moreno in particular
was skeptical as to whether, by the time Bunner came across the
program and put it on his site, it was any longer secret.
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Court:
Smear campaign unworthy of SLAPP shield
SACRAMENTO (7/25/03) --
When a collector of tokens passes the word among fellow enthusiasts
that one of them is a thief, the resulting defamation suit is
not a SLAPP, according to the California Court of Appeal for the
Third District in Weinberg
v. Feisel, case no. C041087.
The court affirmed the trial court's denial of an anti-SLAPP motion
of Duane H. Feisel, sued by fellow token collector Alan V. Weinberg,
because Feisel's statements accusing Weinberg of theft were not
made in or concerning a matter under official investigation or
adjudication, and did not otherwise involve a matter of general
public interest.
Feisel, finding that a coin token he had shown Weinberg at a collector's
show was missing, accused Weinberg (a retired police officer)
of taking it, and despite the latter's denial, repeated the accusation
in several communications with hundreds of other token aficionados
Said Justice Arthur Scotland for the court:
"Defendant did not report his suspicions to law enforcement, and there is no evidence that he intended to pursue civil charges against plaintiff. Rather, it is alleged that defendant began a private campaign, so to speak, to discredit plaintiff in the eyes of a relatively small group of fellow collectors. Since the record does not support a conclusion that plaintiff is a public figure or that he has thrust himself into any public issue, defendant's accusations against plaintiff related to what in effect was a private matter. Under the circumstances, the fact that defendant accused plaintiff of criminal conduct did not make the accusations a matter of public interest.
"Simply stated, causes of
action arising out of false allegations of criminal conduct, made
under circumstances like those alleged in this case, are not subject
to the anti-SLAPP statute. Otherwise, wrongful accusations of
criminal conduct, which are among the most clear and egregious
types of defamatory statements, automatically would be accorded
the most stringent protections provided by law, without regard
to the circumstances in which they were made--a result that would
be inconsistent with the purpose of the anti-SLAPP statute and
would unduly undermine the protection accorded by paragraph 1
of Civil Code section 46, which includes as slander any false
and unprivileged communication charging a person with a crime,
and the California rule that false accusations of crime are libel
per se."
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Court:
Dentist's report about officer was protected
SAN FRANCISCO (7/30/03) --
A dentist's report to a police officer's superiors that the officer
had a troubling drug dependency was lawful and privileged against
liability.
So ruled the California Court of Appeal in its opinion
in Shaddox v. Bertani, case no. A097480.
The court concluded that the report made by Dr. Jeffrey J. Bertani
to a San Francisco Police Department's internal affairs officer
about the apparent drug dependency -- and its potentially violent
consequences -- of an SFPD officer who came to him as a patient
was no basis for being sued.
The patient, Officer Ricky Shaddox, became visibly angry, but
not violent, when the dentist refused to write him a prescription
for Vicodin Extra Strength. Shaddox had suffered a facial injury
more than a year earlier and had obtained previous Vicodin prescriptions,
but his dental file had been annotated to warn against further
"meds, especially Vicodin."
Shaddox's demeanor when denied the description unsettled Bertani,
as well as other observers; dental assistants called Shaddox "a
psycho" and told the dentist, "It looked like he wanted
to kick your ass." and he called another of his patients,
an SFPD inspector, for advice. The inspector referred him to the
internal affairs investigator, and the upshot was discipline for
Shaddox for violation of a departmental general order requiring
that officers report any impairment involving any legal drug,
prescription or otherwise, to his or her supervisor. Shaddox was
assigned a desk job and not allowed to carry a firearm or work
overtime. He sued Bertani for a breach of the Confidentiality
of Medical Information Act, invasion of privacy, and infliction
of mental distress. The trial court concluded that the dentist's
report was lawful and protected.
The Court of Appeal agreed. In summary, Justice Kay stated for
the court:
"Dr. Bertani did what he did because he believed Officer
Shaddox posed a danger to himself and to the public. The trial
court found that Dr. Bertani 'had a strong and reasonable basis'
for his concern. Only Dr. Bertani possessed the information leading
him to suspect the officer's fitness for duty. Dr. Bertani disclosed
his concern to the appropriate department of the SFPD, and no
one else. Apart from its source, the disclosure was the type of
report of suspected misconduct or unfitness of a police officer
sanctioned by the San Francisco Charter, by Penal Code section
832.5, and by (the privilege for statements made in an official
proceeding, including a citizen's complaint against a peace officer).
We believe it is sound public policy to construe (the Confidentiality
of Medical Information Act) in a way that will not impede voluntary
reports of suspected misconduct or unfitness by police, reports
whose importance is already recognized and immunized ... This
construction will protect the public interest by reducing danger
to the public. ... We therefore agree with the trial court that
Dr. Bertani's disclosure was not only lawful under (the CMIA),
it was also privileged ..."
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U.S.
Supreme Court review sought for 'trash talk'
ALBANY (7/3/03) -- A man
arrested for spreading trash on the floor to make a point with
a school board wants the U.S. Supreme Court to hear his argument
for protected speech.
Don J. McMahon used e-mail to report this point to Jack Bates,
general manager of the California Newspaper Publishers Association,
after hearing CNPA General Counsel Tom Newton talk about the Brown
Act's 50th anniversary on a call-in talk show on San Francisco's
KQED-FM.
The Albany resident told Bates:
"On April 30, 1996, I was the recognized speaker at a meeting of the Albany Unified School District Board of Education (AUSD), where I was petitioning, speaking, testifying and presenting evidence (trash on a tarp) about my petition, requiring the AUSD to follow the California Environmental Quality Act (CEQA) in the construction of the then proposed new middle school.
"In the middle of my speech, a board member said that my activity (showing the trash evidence on a tarp) was inappropriate, and without a request or warning called the police and adjourned the meeting. The police arrived and told the superintendent of the AUSD that I wasn't doing anything illegal (the trash was on the tarp), and they could not arrest me. The superintendent claimed that I had refused to yield the microphone, and ended up making a citizen's arrest.
"I sued for false arrest, violation of my rights to free speech, and violations of the Brown Act. In my case, public documents have been withheld for months and years, appear to have been modified, were willfully destroyed despite written notice that they were evidence, etc. I have been through two trials, numerous other proceedings, appeals, etc., and am now at the U.S. Supreme Court.
"The point I would like to make about the Brown Act is that there is no enforcement by the courts. In my case, the courts have cooperated with the district, refusing to allow discovery of the repeated suppression of my petition, allowing the district to violate the court's own subpoenas, etc. I am in possession of the evidence which shows that my petition has been suppressed three times, that documents appear to have been modified, and the district has admitted destroying them.
"Despite my Brown Act claims, the courts have removed the Brown Act claims from the case, and refused any related discovery. Likewise the courts have removed my California Civil Rights claims and First Amendment claims. The one claim that was left at trial was false arrest, and the evidence and testimony for that was highly controlled and manipulated by the court (including the Appellate Court). The Brown Act and First Amendment violations are a matter of public record. I was able to obtain some of these records only after my supreme court brief was submitted.
"My point is that the Brown Act (and First Amendment for that matter) are meaningless if the courts feel that they have it within their power to ignore them, either by preventing their 'discovery' through the legal process, or by removing them as causes of action. The actions of the courts in this case are basically a process of court-sanctioned protection of the government and its officials from any responsibility for violations of the Brown Act and, at least so far, the Constitution. This is unconstitutional.
"I have written to several
newspapers, including the local Albany paper the Journal, the
Chronicle, the Berkeley Planet, the Bay Guardian, etc., and so
far none appears interested in these issues. Please forward
this email and the petition to your members, who hopefully will
be more interested in the Brown Act and the First Amendment of
the Constitution."
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Court:
Privatised street 'mall' is still a public forum
SAN FRANCISCO (7/2/03) --
Las Vegas, having closed and converted several blocks of a blighted
downtown street into a pedestrian mall, can't banish free
speech activities.
So ruled the U.S. Court of Appeals for the Ninth Circuit in its
opinion
in ACLU v. City of Las Vegas, case no. 01-15958.
As summarized by Circuit Judge Richard A. Paez for the court:
"In a successful bid to revive its decaying downtown, the City of Las Vegas followed the lead of towns across the United States and turned several blocks of its main downtown street into a publicly-owned pedestrian mall, the Fremont Street Experience. Fearful of the potential for disruption of merchants and customers, the City placed significant restrictions upon First Amendment activities in the Fremont Street Experience. After running afoul of these restrictions, the American Civil Liberties Union of Nevada ("ACLU" ) and others brought this 42 U.S.C. 1983 civil rights suit. The Plaintiffs appeal the district court's determination that the mall is a nonpublic forum, and its ruling that City ordinances restricting soliciting and tabling were constitutional. The City of Las Vegas cross-appeals the district court's determination that City ordinances limiting leafleting and vending were unconstitutional.
"We affirm in part, reverse
in part, and remand. Because the Fremont Street Experience unmistakably
possesses the characteristics of a traditional public forum, we
reverse the district court's conclusion that it is a nonpublic
forum. Recognizing that "[t]he First Amendment . .
. must deal with new problems in a changing world," ...
we hold that the Fremont Street Experience is a public forum.
As a consequence, the restrictions on First Amendment activities
must be scrutinized under a strict standard of review in order
to protect adequately the right to expression. Because the
City ordinances restricting leafleting and vending message-bearing
materials fail even under the lesser standard applied by the district
court, we affirm the district court's conclusion that they are
unconstitutional."
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Bill
calls for hush-up of data security problems
SACRAMENTO (7/7/03) -- A bill that would give Finance Director
Steve Peace and successors a role in keeping data security breaches
secret is quietly moving forward. SB
403, a bill originally introduced to address transportation
issues, was gutted and reconstituted as a major new state information
technology governance framework on June 10, thus giving new life
to the measure, which as SB
791 had failed passage in a Senate committee on April 29.
SB 403 will be heard tomorrow in the Assembly Committee on Jobs,
Ecomonic Development and the Economy. Both bills were introduced
by Senator Dean Florez (D-Fresno), who as chair of the Joint Legislative
Audit Committee a year ago was harshly critical of the state's
awarding a $97 million enterprise license contract for Oracle
Corp. database software. Several of the lengthy bill's provisions
address state data security. Two in particular address the role
of the Department of Finance, which Peace heads. Proposed new
Government Code Sections 13346 and 13347 read:
"13346. The Department of Finance shall do all of the following
relating to the state's information technology:
(a) Develop policies and procedures for the confidentiality of
information.
(b) Develop policies and procedures necessary to provide for the
security of the state's informational and physical assets and
the preservation of the state's information processing capability.
(c) Coordinate research and identify solutions to problems affecting
information security.
(d) Appoint a state information security officer who shall represent
the state to the federal government, other agencies or state government,
local government entities, and private industry on issues that
have statewide impact on information security.
(e) Develop policies and procedures and review compliance therewith
of departments, agencies, and control agencies to ensure that
the technology supporting state business operations will continue
to function in the event of a disaster.
(f) Maintain the confidentiality of information about agency operational
recovery plans. That information may not be disclosed to the public.
(g) Review and advise on security plans concerning the location
and construction of information processing facilities for state
agencies; and keep confidential information about security plans,
features, and vulnerabilities of planned and existing information
processing facilities.
(h) Maintain the confidentiality of security and operational recovery
information received pursuant to Section 13347.
(i) Investigate any security incident reported pursuant to Section
13347, as the department deems necessary.
"13347. (a) State agencies shall notify the Department of
Finance, or its designee, of all incidents involving the intentional
unauthorized access or unauthorized intentional damage to, theft
of, or modification or destruction of, electronic information,
and the damage to, or destruction or theft of, data processing
equipment, or the intentional damage to, or destruction of, information
processing facilities.
(b) Information about incidents described in subdivision (a) received
by the Department of Finance, or its designee, the disclosure
of which poses a threat or potential threat to the safety or security
of the personnel, property, buildings, facilities, technology
infrastructure, or equipment, including electronic data owned,
leased, or controlled by the state, shall be considered confidential
and may not be disclosed to the public."
Last year as a Senator, Peace authored SB 1386, which took effect
July 1, with the following principal requirement:
"Any agency that owns or licenses computerized data that
includes personal information shall disclose any breach of the
security of the system following discovery or notification of
the breach in the security of the data to any resident of California
whose unencrypted personal information was, or is reasonably believed
to have been, acquired by an unauthorized person. The disclosure
shall be made in the most expedient time possible and without
unreasonable delay, consistent with the legitimate needs of law enforcement
... or any measures necessary to determine the scope of the breach
and restore the reasonable integrity of the data system."
But the bill authorizes disclosure of such breaches to the general
public by release to the news media only if direct notice to those
affected would exceed $250,000.
At the time these provisions, which are accompanied by others
applicable to private businesses, were introduced, Peace justified
them as follows:
"The recent incident at the Stephen P. Teale Data Center which saw the personal financial information of hundreds of thousands of state workers fall into the hands of computer hackers is a dramatic demonstration of an all too common event - a breach in data base security which exposes victims to the further harm of identity theft. In the Teale incident, authorities knew of the breach in security almost a month before state workers were told. We can at least be thankful that victims were given the opportunity to take protective measures based upon notice of the event - albeit late notice.
"All too often events of
this sort go completely unreported. How can this be? The embarrassment
of disclosure that a company or agency was "hacked,"
or the fear of lost business based upon shoddy information security
practices being disclosed overrides the need to inform the affected
persons."
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Commitee
passes bill limiting SLAPP protections
SACRAMENTO (7/2/03) -- The Assembly Judiciary Committee passed
Senator Sheila Kuehl's restriction on businesses' use of the anti-SLAPP
motion to defend lawsuits.
The 9-4 vote was strictly partisan, with Democrats supporting
Kuehl's bill and Republicans opposing it. SB
515 has already passed the Senate, and seems likely to be
sent by the full Assembly to Governor Davis, who last year vetoed
a similar measure by Kuehl.
The California First Amendment Coalition opposes the bill as needlessly
exposing small business owners to meritless lawsuits when they
appear in public forums or otherwise discuss matters of public
interest -- a result which could occur if their statements are
viewed as promoting their own goods, services or operations, or
attacking those of a competitor.
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Court:
Some small group issue needed for SLAPP
SAN FRANCISCO (7/3/03) -- An anti-SLAPP motion may be available
to protect speech of interest to only a small community -- but
the speech must concern a real issue.
So ruled the California Court of Appeal for the First District
in its opinion
in Du Charme v. International Brotherhood of Electrical Workers,
case no. A097898.
As summarized by Justice J. Anthony Kline for the court:
"The relevant facts are these:
Local 45 was placed in trusteeship in April 1997 after dues collection
deficiencies resulted in revenue losses, which led to an IBEW
investigation and an independent audit. Thereafter, the Department
of Labor (DOL) undertook a full investigation. In August, business
manager James Earl Jackson was terminated for embezzlement of
union funds, among other things, and eventually pleaded guilty
to credit card fraud. At about the same time, Du Charme received
a letter from Wynn terminating his employment as assistant business
manager based on his having received unauthorized vacation and
overtime pay.
"On August 26, 1997, the following statement was posted on
Local 45's Internet website, over the name of Cecil Wynn, Trustee:
'Business Manager James Earl Jackson and Assistant Business Manager
Frank Du Charme have been removed from office for financial mismanagement
of the Local. I, as Trustee, am the acting Business Manager and
want to assure you that business is as usual and [w]ill continue
to run smoothly. If you have any questions, please do not hesitate
to contact me.'
"These facts do not demonstrate how Wynn's statement informing the membership, after the fact, of Du Charme's termination was made 'in connection with an issue under consideration or review' by the DOL or in any trusteeship proceeding...
"Next, defendants contend Wynn's Internet posting constitutes a statement made in a public forum in connection with an issue of public interest, as well as conduct in furtherance of the exercise of his right to free speech in connection with a public issue or an issue of public interest. Du Charme responds that the trial court correctly determined his termination was not an issue of public interest."
****
"(I)n this case, the Local's trustee posted on its website the information that Du Charme had been removed from office for financial mismanagement, a statement that was presumably of interest to the membership (else why post it at all?), but unconnected to any discussion, debate or controversy. Du Charme's termination was a fait accompli; its propriety was no longer at issue. Members of the local were not being urged to take any position on the matter. In fact, no action on their part was called for or contemplated. To grant protection to mere informational statements, in this context, would in no way further the statute's purpose of encouraging participation in matters of public significance ...
"We therefore hold that in
order to satisfy the public issue/issue of public interest requirement
of ... the anti-SLAPP statute, in cases where the issue is not
of interest to the public at large, but rather to a limited, but
definable portion of the public (a private group, organization,
or community), the constitutionally protected activity must, at
a minimum, occur in the context of an ongoing controversy, dispute
or discussion, such that it warrants protection by a statute that
embodies the public policy of encouraging participation in
matters of public significance. Because the allegedly defamatory
statement in this case was not made in such a context, it is not
entitled to the statute's protection."
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CFAC
faults Kuehl bill trimming the SLAPP shield
SACRAMENTO (6/30/03) -- The California First Amendment Coalition
says it opposes a bill that would deny businesses the protection
of a barrier against meritless lawsuits.
SB
515 by Senator Sheila Kuehl (D-Santa Monica), which has passed
the Senate and is to be heard tomorrow in the Assembly Judiciary
Committee, would remove the ability to make an anti-SLAPP motion
from businesses sued because of statements made about their operations,
products or services, if likely to reach customers, even if made
in a government proceeding such as a public hearing, and even
if the issue were a matter of public concern.
The anti-SLAPP motion, a procedure added to California law about
10 years ago, has transformed most litigation concerning speech
or publication on significant public matters, or on issues pending
in court whether significant or not. Any such lawsuit faces, under
the motion, the immediate burden of convincing the court that
it is likely to succeed. Failing that, the plaintiff sees the
suit dismissed and is ordered to pay the defendant's court costs
and attorney fees.
The motion was created in a bill by then Senator Bill Lockyer
to protect citizen activists from being threatened with meritless
but protracted and costly lawsuits by well-heeled groups, typically
business enterprises, to silence their criticism in public forums
and communications. But a powerful trial lawyers' group complains
that anti-SLAPP motions are now more commonly used by businesses
themselves to create protracted procedural appeals that slow consumer
interest lawsuits.
Senator Kuehl carried a bill last year that would simply have
stripped the anti-SLAPP motion from any business defendant. That
bill, opposed by CFAC and others, was vetoed. This year's measure
has been modified, but still goes too far, CFAC's opposition
letter says.
"Suppose a local shoe merchant, bookseller or grocer arises before the city council to protest an offer of substantial tax and other enticements to lure a BigBox Corp. retail center to town, observing that 'We have always offered the best to local customers at the fairest prices, as you can see by the sale we're offering in this week's paper, and the only reason we'll have trouble staying in business once BigBox opens is that they can offer lower prices because they don't allow employees to claim overtime, they don't pay and promote women on an equal basis and they have tax-free Internet sales backing them up.'
"Or imagine the comments of a nonprofit but commercially active recycling center, critical of a proposed multi-year refuse hauling franchise offered to a nationally active enterprise, focusing on the contract's slighting of environmental concerns, or the contractor's heavy campaign contributions to the council members, or its corporate cousins' alleged involvement in organized crime in other states.
"Or consider a computer system vendor's letter to a legislative committee calling for an investigation into how a rival's mega-million dollar product and service contract with a state agency has been given favorable treatment not on the system's merits (which are attacked as negligible compared with those of the complainant's) but because of political or personal favoritism.
"Should these comments, absolutely privileged under California law, expose the speaker to ruinous litigation defense costs because an anti-SLAPP motion has been made unavailable?"
The letter says that CFAC will continue to oppose the bill unless the business exclusion is narrowed to focus on marketing statements with the following characteristics:
"(1) The statement or conduct
consisted of representations of fact about that person's business
operations, goods, or services, that was made for the purpose
of obtaining approval for, promoting, or securing sales or leases
of, or commercial transactions in, the person's goods or services.
(2) The intended audience was an actual or potential buyer or
customer, and the statement or conduct did not arise out of or
within the context of a governmental process, proceeding, or investigation."
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Court:
Cops' right to sue for spiteful lies is lawful
SAN DIEGO (6/6/03) -- Peace officers' right to sue for knowingly
false formal complaints about their conduct -- a unique right
among defamation plaintiffs -- is constitutional.
So concluded the California Court of Appeal for the Fourth District
in its opinion
in Loshonkohl v. Kinder, case no. D039267.
While citizens' complaints to government agencies in California
are normally considered absolutely privileged against liabiity
for libel or slander -- encouraging the complainant to seek redress
without anxiety over being sued -- formal complaints against police
and other peace officers are the great exception. Those
officers are permitted to sue citizens for libel where the complaints
are not only false and reputationally damaging but 1) formally
submitted (not just casual remarks); 2) known by the complainant
to be false; and 3) motivated by spite, hatred or ill will.
A judge found that a series of 20 complaints filed by a car rental
proprietor against a veteran San Diego police officer who had
been part of a code crackdown against downtown blight fit this
formula, were therefore libelous without privilege, and merited
a $350,000 damage award.
On appeal, the plaintiff argued that the special advantage enjoyed
by badged libel plaintiffs violated the First Amendment by singling
out certain unjustifiable speech for harsher consequence than
other kinds.
But the appellate court reasoned that the key First Amendment
question was whether such disparate treatment (under Civil Code
Section 47.5) was intended or used to muzzle certain disfavored
ideas, and concluded it was not.
Justice James A. McIntyre stated for the court:
"Section 47.5 makes actionable only formal complaints against
peace officers based on knowingly false statements of fact, speech
that is constitutionally unprotected. (This) requirement 'protects
witnesses who honestly misperceive facts. Those who knowingly
give false information to police officers should be discouraged
from doing so.' Further, section 47.5 provides an additional
safeguard not included in (a Penal Code section that actually
makes such false reports a crime) -- that the speech must be made
with 'spite, hatred, or ill will.' This extra requirement
exceeds the standards enunciated by the United States Supreme
Court for the recovery of defamation damages by public officials.
... Thus, the potential for defamation liability under section
47.5 creates no realistic possibility of the official suppression
of ideas because '[t]he Legislature is not suppressing all complaints
of police misconduct, only knowingly false ones.'"
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California
Demos allow passage of flag-burning bill
WASHINGTON, D.C. (6/5/03) -- California Democrats supplied the
margin needed last week for House passage of a bill allowing criminalization
of flag desecrators.
The American Civil Liberties Union is urging citizens to let their
Congressmembers hear from them on how they voted on the flag desecration
bill, H.J.
Res. 4.
In its statement
about the measure, the ACLU reported,
"On June 3 the House of Representatives narrowly voted to
approve the so-called flag protection amendment. This amendment
would alter the First Amendment for the first time in its history
and allow Congress to outlaw the physical desecration of the flag."
The ACLU's page allows visitors quickly to look up how their Representative
voted and send him or her a congratulatory or critical message
by e-mail.
The measure passed the House by a vote of 300 Ayes against 125
Noes, enough to provide the two-thirds majority required to amend
the Constitution, but only 10 votes over that mark -- exactly
the number of California Democrats voting Aye.
"Its proponents said that the patriotic fever sweeping the
nation in the post 9-11 environment would lead to a landslide
victory for the amendment," said Terri Schroeder, an ACLU
legislative analyst. "But what we saw was a status
quo vote that suggests that there is no great desire to adopt
a constitutional amendment that would betray the very ideals for
which the flag flies."
The California delegation in the House voted more or less on party
lines, with Democrats more often against and Republicans all but
entirely for the measure.
The tally runs as follows:
Democrats Voting No -- Becerra, Berman, Davis, Dreier, Eshoo,
Farr, Filner, Honda, Lee, Lofgren, Matsui, Miller (George), Pelosi,
Roybal-Allard, Sanchez (Linda), Schiff, Solis, Stark, Tauscher,
Thompson, Waters, Watson, Waxman, Woolsey
Democrats Voting Aye (and Providing the 10-vote Margin for Passage)
-- Baca, Capps, Cardoza, Dooley, Harman, Lantos, Millender-McDonald,
Napolitano, Sanchez (Loretta), Sherman
Republicans Voting Aye -- Bono, Calvert, Cox, Cunningham (the
author of the bill, H.J. Res. 4), Doolittle, Gallegly, Hunter,
Issa, McKeon, Miller (Gary), Nunes, Ose, Pombo, Radanovich, Rohrabacher,
Royce, Thomas
Republican Not Voting -- Herger
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Book
details how e-needling led to a big lawsuit
SAN JOSE (5/27/03) -- Those
who've wondered what the First Amendment will let them get away
with in posting insults online now have a lawsuit to watch closely.
Not only that, but the defendants have written an extremely detailed
and impassioned chronicle of what they did and didn't say about
former colleagues in a high-technology corporation, and what their
targets have been doing about it.
The case is Varian
Medical Systems v. Delfino
& Day, filed in Santa Clara Superior Court. It was
prompted by a series of provocative insults posted on Internet
message boards by the defendant Michelangelo Delfino, a research
scientist formerly with Varian, concerning an administrative co-worker,
Susan Felch, as well as George Zdasiuk, a Varian manager whom
Delfino reported to at the time of his firing in the fall of 1998.
Delfino was terminated not long after an inconclusive, video camera-enabled
investigation into Felch's complaints that he was mocking her
in the workplace by imitating her hand gesture used to simulate
a phone placed to the ear. Day, Delfino's partner in professional
work and life with even more seniority with the company (15 years
to Delfino's 10), was likewise let go shortly thereafter.
Delfino's firing did nothing to squelch his expressed contempt
for Felch or Zdasiuk. It only sparked a global and relatively
long-lived forum (and magnet, since it prompted copycat postings
by unknown parties) for derisory gibes, humiliating taunts and
name-calling directed at Felch, Zdasiuk, and two Varian executive
vice presidents
In "Be Careful Who You SLAPP!" Delfino and Day relate
their version of the rest of the story as of last year, which
so far has three main legal mileposts: the loss of the defendants'
anti-SLAPP motion; a December 2001 jury verdict for the plaintiffs
(the company, Felch and Zdasiuk) awarding a total of $775,000
in compensatory and punitive damages, chiefly for defamation;
and an April 2002 order from the Sixth District Court of Appeal
staying all trial court proceedings for contempt, asset discovery
and damages enforcement, pending appeal.
The self-published book goes far beyond legal analysis of the
issues, however. As an exercise of self-justification, it
stresses the plaintiffs' litigation excesses as baseless assaults
against on-line flaming that, the authors insist, was not defamatory
because it could not be taken seriously by anyone and was merely
offensive, as Americans are free to be under the First Amendment.
But it also celebrates, with a zest many will find disconcerting,
the satisfaction of using "merely" offensive language
as payback to paint workplace adversaries as ludicrous if not
repellent personalities.
The polemic tone of the book is duplicated on the defendants'
website
that continues the story, and summarizes its intended message
by emphasizing that the "more than 20,000 Internet postings
on 100+ message boards" have proliferated "with not
a single one ever shown to be defaming." It insists that
the authors, as "FREE SPEECH advocates are hell-bent on making
law, while settling for nothing less than full public disclosure
of the TRUTH behind Varian's fascist SLAPP, total vindication
of any wrongdoing whatsoever, and a public apology!"
While the press has not covered the case much since the jury verdict
almost 18 months ago, a recent story
by Najeeb Hasan on MetroActive shows one unanticipated development
in the couple's flame campaign: the arraignment of a Colorado
man in federal court in San Jose for allegedly using the Internet
to message them with terrorist threats.
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Denial
of SLAPP motion to union becomes final
SAN FRANCISCO ( 5/14/03) --
The California Supreme Court will not review or order depublished
an appellate decision denying an anti-SLAPP motion to a labor
union.
The denial lets stand a January opinion
of the California Court of Appeal for the First District in Rivero
v. American Federation of State, County and Municipal Employees,
holding that a supervisor of janitors at a U.C. Berkeley facility
may have a meritorious defamation case against a public employee
union that accused him of misconduct.
The California First Amendment Coalition joined a number of media
organizations in an amicus curiae brief supporting the union's
petition for review, arguing that contrary to the trial court's
conclusion, a union's accusation of improper conduct by a public
university's custodial supervisor did raise a matter of legitimate
public interest, and thereby entitled the union to force the supervisor's
libel claims to be tested for the likelihood of success at the
earliest possible stage in the lawsuit.
Back
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Court:
State can regulate ads for ballot measures
SAN FRANCISCO (5/8/03) --
California may regulate advocacy ads for statewide ballot measures,
but whether its way of doing so is constitutionial is still to
be decided.
"California may regulate express ballot-measure advocacy.
However, we do not determine whether California has shown a compelling
interest in informing its voters of the source and amount of funds
expended on express ballot-measure advocacy, or whether its scheme
is narrowly enough tailored. We leave these issues to the district
court on remand."
See the full opinion
of the U.S. Court of Appeals for the Ninth Circuit in California
Pro-Life Council v. Getman, Case No. 02-15378.
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Rights
watchdogs begin coding own risk palettes
HOMELAND U.S.A. (4/15/03) -- Taking a leaf from Homeland
Security Secretary Tom Ridge's book, those concerned with civil
liberties are starting to color-code the risks.
Last week the Washington-based Electronic Privacy Information
Center (EPIC) announced today
that it was establishing a new Privacy Threat Index to track the
growing threat to privacy resulting from the expansion of government
surveillance.
EPIC will follow the color-coded scheme established for the Homeland Security Advisory System by the Department of Homeland Security for the EPIC Privacy Threat Index. The rankings from green, blue, and yellow to orange and red signal Low Condition, Guarded, Elevated, High and Severe.
Based on developments during the past year, EPIC assessed the current level as Yellow.
Among the factors cited included:
At the same time, EPIC noted that there were some hopeful signs:
A slightly different scheme is used by USC constitutional law Professor Erwin Chmerinsky in this month's issue of California Lawyer, the magazine of the State Bar. He uses red ("severe risk"), yellow ("elevated risk") and green ("low risk") to label various provisions of the USA PATRIOT Act, the 2001 federal law designed to expedite pursuit of terrorist investigations by law enforcement and intelligence agencies.
In the red category, Chemerinsky places:
As yellow level risks, Chemerinsky
identifies certain enhanced procedures for surveillance and sharing
of information among agencies. The most important green provision
is that many of the PATRIOT Act powers are due to sunset at the
end of 2005 -- unless extended by separate legislation.
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Court:
Secretaries loyal to prior boss can be fired
SEATTLE (4/8/03) -- An elected county prosecutor need not retain
the confidential secretaries hired by -- and politically loyal
to -- the predecessor he defeated.
So ruled the U.S. Court of Appeals for the Ninth Circuit in its
opinion
in Hobler v. Brueher, case no. 00-35589.
The case involves the summary firing of two at-will secretaries
to the Adam's County (Washington) prosecutor -- actually his closest
non-attorney assistants -- by his successor. The new prosecutor
in the sparsely populated rural county made it no secret he wanted
a "new team" loyal to him rather than holdovers who
had worked for the man he defeated at the polls.
The secretaries, Susan Hobler and Linda Southwell, sued the county
and the new prosecutor, claiming a violation of their First Amendment
rights in that they had been punished for their political support
of their previous boss. Eventually the county was dropped as a
defendant and prosecutor Gary Brueher remained as the lone defendant.
The district court granted summary judgment for Brueher, ruling
that his right to dispense with confidential employees loyal to
his political opponent was established under Branti v. Finkel,
a U.S. Supreme Court decision from 1980 that established that
elected officials in particular could insist that their closest
staff confidantes share not only their partisan political label
but their political orientation and disposition generally, because
of the degree of trust and kindred perspectives that was legitimate
to expect of close aides.
After reviewing the Ninth Circuit cases exploring and applying
this theme, Judge Andrew J. Kleinfeld stated for the court, in
affirming the judgment for Brueher:
"What matters is not any of these sorts of bright-line rules.
What does matter is whether Ms. Hobler's and Ms. Southwell's actual
duties in the Ritzville and Othello offices and their relationship
to the elected official made them 'confidential employees' in
the Branti sense that their political conduct was 'an appropriate
requirement for the effective performance of the public office
involved.'
"Plainly, it was. Most offices have certain key personnel who aren' t policymakers in the Branti sense but who are critical to effective policy implementation, and whose loyalty and confidentiality are necessary. It is hard to run any sort of office without certain employees who work so closely with the outgoing boss that any incoming boss must have the option of picking his or her own people for that position. The outgoing Adams County prosecutor, Sandhaus, did have just such key personnel in each of the two offices, Ritzville and Othello, who functioned as his conduit for the most sensitive information. Sandhaus depended on Hobler and Southwell to tell him when other staff, including lawyers, weren' t doing their jobs the way he wanted them done. Sandhaus's replacement, Brueher, quite reasonably felt that he couldn' t patch things up with the staff attorneys and take effective control of the office himself if Hobler and Southwell were still in between.
"Moreover, Hobler and Southwell
functioned as Sandhaus's communications conduit to the public
and other elected officials like the governor's assistants in
the Branti example. Because the county commissioners and
the people at the courthouse were upset with the prosecutor's
office, Brueher could not carry out his program of making peace
with them if Hobler and Southwell remained. Brueher needed precisely
the same type of relationship with his key employees that Sandhaus
had with Hobler and Southwell in order to effectively implement
his policies. Requiring Brueher to keep on persons that his predecessor
and political enemy worked with so closely would simply have stymied
him."
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Court:
Albertson's frontage no public forum
SACRAMENTO (3/18/03) --
The sidewalk fronting the entry doors of an Albertson's supermarket
need not, all factors considered, be open indiscriminately to
speech. So concluded the California Court of Appeal for
the Third District in its opinion
in Albertson's Inc. v. Young, Case No. C037270.
The case is the latest in a series of Court of Appeal conclusions
that a large store that attracts many patrons, whether standing
alone or as part of a shopping complex, is simply not enough like
a downtown civic center to justify forcing the owner to tolerate
leafleting, signature-gathering and other political expression
the owner does not want to host.
Meanwhile, the California Supreme Court, which in 1979 in Robins
v. Pruneyard Shopping Center, 23 Cal.3d 899, first held that
a large shopping center with its internal "Main Street"
ambiance and accommodations for unhurried socializing in general
might be required to tolerate petitioning, recently showed itself
cooler to that proposition. In a case involving leafleting in
an apartment building not long ago, the court split down the middle
on whether California's consitutional speech and petition rights
should ever limit private property rights.
The high court has also removed from its review calendar two cases
concluding that Pruneyard does not apply to individual
stores, no matter how large or heavily patronized. That leaves
Justice Arthur Scotland observation for the court in this case
as a bow to property interests likely to be the default concern
for some time to come:
"In assessing the burden on a store like Albertson's, and
the effectiveness of time, place, and manner restrictions, courts
must keep in mind the significant implications of concluding private
property has become the functional equivalent of a traditional
town center. This determination affects not only signature-gathering
for initiative petitions, but other forms of expressive activity.
Such private property could be used by individuals or groups to
set up tables or carry signs voicing their views on a variety
of matters on which persons strongly disagree, like advocates
for or against a war in Iraq, for or against abortion, for or
against restrictions on the ownership of firearms, etcetera.
"Subject only to time, place, and manner restrictions, the
owners of such private property may be compelled to associate
with, and to assist, those who are disseminating ideas with which
the property owners vehemently disagree.
"And a finding that private property has become the functional
equivalent of a traditional town center inevitably will impose
on its owner the financial and emotional costs of defending against
a lawsuit whenever the owner resorts to time, place, and manner
restrictions to preclude its use for expressive activity. It takes
little imagination to recognize that those precluded from using
the property to advance their views will accuse the property owner
of impermissibly prohibiting the expressive activity based on
the content of the message."
In dissent, Justice Richard M. Sims stressed that the court's
conclusion was mainly attributable to a failure of proof. More
concrete evidence instead of conjecture on such issues as whether
this particular store, or its host shopping complex, had indeed
supplanted the public assembly function of the older downtown
might have yielded a different result:
"It is upon this narrow ground-- appellants' failure of proof--
that the judgment must be affirmed. In my view, other supermarkets
in other locations should view this case with caution, because
different proof could well lead to a different result.
"This is because the need to encourage free speech,
and the initiative process in general, has never been greater...
"The need to preserve the initiative process has never been
greater, because government at all levels in California has increasingly
become subject to the domination and control of monied special
interests, leaving the average citizen without an effective voice
in government...
"In my opinion, a majority of Californians think that the
current political system is unduly influenced by money. The reason
that voting turn-out has hit an all-time low ... is that average
citizens, who do not participate in the political process, believe
that, in practical effect, their votes will not matter, because
the political process is, in fact, ultimately controlled by big-money
special interests. These average citizens therefore simply give
up and stop voting. To quote a former politician turned statesman,
'I share their pain.' It is not hyperbole to say that democracy
in California is in serious trouble.
"It is in this context that the right to gather signatures
for an initiative petition at a supermarket must be decided. For
all its faults, the initiative process remains the last avenue
by which ordinary citizens can effect political change."
As big money raises the barriers of entry into politics, Justice
Sims opined, it likewise places an increasingly prohitive cost
simply on reaching people with political messages:
"For the average citizen, access to mass communication is
limited. You cannot write a letter to the editor of your local
television station. It seems to me obvious that those with great
wealth, who own the major media outlets, cannot be counted on
gratuitously to broadcast information or opinion that is antithetical
to their self-interest. It is therefore important to preserve
the opportunity for average citizens to engage in free speech
in locations which afford maximum exposure to the public, so that
their views may be made known.
"All these policy reasons, supporting recognition of a quasi
public forum in the vicinity of a popular supermarket, are crucial
to the maintenance of a representative democracy in this state.
On the other hand, a supermarket's interest in totally excluding
speech from its vicinity is not strong. The exercise of free speech
in a quasi-public forum is subject to 'reasonable regulations
adopted by [the property owner] to assure that these activities
do not interfere with normal business operations . . . ."
(Pruneyard)
Thus, a supermarket may adopt reasonable time, place, and manner
restrictions controlling the number of persons or groups that
may be present outside the store at any given time.
"Also, if a citizen or group wanted to hand out leaflets
in the vicinity of the store, a supermarket could lawfully require
the citizen or group to clean up all leaflets or to pay a reasonable
deposit to cover the supermarket's cost of cleaning up. A private
supermarket should not bear the cost of cleaning up after those
who exercise free speech on its property. Rather, those who exercise
speech in the vicinity of the store cannot interfere with normal
business operations and should be responsible for any cost of
their activity. With the allowance of reasonable time, place,
and manner restrictions, I do not see how there is a burden on
a supermarket that outweighs the strong public interest in allowing
free speech in the vicinity of its store.
"Accordingly, if those who wish to gather signatures for
an initiative in the future can prove that a private supermarket
has replaced the traditional public forum, I would hold that a
private supermarket is a quasi-public forum for free speech purposes.
It is of crucial importance that free speech in California remain
free ."
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Court:
Flag opens overpass to dissent
SAN FRANCISCO (3/13/03) --
CalTrans's practice of allowing the American flag to be draped
from a freeway overpass means that anti-war banners must be allowed
too.
So concluded the U.S. Court of Appeals for the Ninth Circuit in
its opinion
in Brown v. California Department of Transportation, Case No.
02-15385. The background, in the words of Judge Kim McLane
Wardlaw for the court:
"In the wake of the September 11th terrorist attacks, an
American citizenry united in grief, fear, and defense of country,
joined in a spontaneous display of patriotism. Across America,
her great national emblem, the United States flag, and its colors,
became ubiquitous, appearing everywhere -- from cars to homes,
buildings to clothes. The President of the United States, on September
21, 2001, addressed the nation: 'The only way to defeat terrorism
as a threat to our way of life is to stop it, eliminate it and
destroy it where it grows.' [This declaration of a 'war' on terrorism
heightened the patriotic fervor, and, according to the California
Department of Transportation ('CalTrans'), resulted in the proliferation
of flags on California's highways.]
"Highway 17 in Santa Cruz, California, was no exception. Private individuals hung flags from the highway's overpasses. On November 27, 2001, Amy Courtney and Cassandra Brown, concerned over the public's apparent failure to question the prospect of going to war, hung a responsive banner adjacent to a flag reading, 'At What Cost?' . A Scotts Valley police officer immediately removed the banner because it posed a safety risk. The following week, Courtney and Brown attempted again to voice their message, hanging another sign reading, 'At What Cost?' as well as one reading, 'Are you Buying this War?' . These anti-war banners were also immediately removed. Although the person who removed the banners is unknown, CalTrans has taken the position throughout this litigation that it would have removed them pursuant to its own policy if someone else had not.
"It is CalTrans's stated encroachment permit policy that citizens who wish to display a sign on a California highway overpass must obtain a permit to do so. Even then, permits are only available for signs designating turnoffs for special events. Citizens wishing to display any other message are prohibited from using the highway overpass to do so. Notwithstanding this policy, CalTrans does not prohibit the display of American flags, nor does it impose a permitting process for their display."
When Brown and Courtney sued for an injunction on First Amendment grounds, CalTrans's defense was that the plaintiffs had ample alternative sites for their signs, and that its special flag accommodation was resonable and content neutral. The district court disagreed, issuing a preliminary injunction against enforcement of the policy, and so did the Ninth Circuit, affirming entry of the injunction.
While freeway overpasses are a "nonpublic forum," i.e. a place neither traditionally used for expression of political views nor created by the government for that purpose, established doctrine prevents the government from banning speech from a nonpublic forum either arbitrarily or as a message-targeted act of censorship -- or endorsement.
On the arbitrariness issue, Judge Wardlaw stated:
"Because CalTrans's policy of allowing citizens to hang flags but not banners from highway overpasses is not required by state law, and the safety concerns apply equally to both flags and expressive banners, the policy is not reasonable."
On the censorship point, she noted that CalTrans claimed that its favoring the flag but not others was in part excusable because the flag itself had no particular message:
"We first reject CalTrans's argument that the flag encompasses so many different views that it represents no viewpoint at all. 'The very purpose of a national flag is to serve as a symbol of our country; it is . . . the one visible manifestation of two hundred years of nationhood.' Texas v. Johnson, 491 U.S. 397, 405 (1989). The reason the events of September 11th evoked such a spontaneous proliferation of flags is precisely because of its message. Americans sought solace in the symbol of a nation joined in the effort to combat terror in the face of tragedy. Indeed, it is the potency of the flag's message that makes CalTrans reluctant to remove it from California's highways. In light of recent world events, that reluctance is laudable; however, the policy derived from it is not.
"After the events of September 11th, what the flag's powerful message does not encompass, for many, is exactly that which Courtney and Brown voice: dissent. When 'nations . . . knit the loyalty of their followings to a flag,' id. , those who seek not to follow but to chart a different course are unable to express their message through the flag. In a nation founded on the tolerance of dissent, '[t]he way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong.' Id . at 419. Honoring the principles for which the flag stands extends beyond waving it in tribute. Those principles can survive only by allowing the voice of dissent to be heard."
CalTrans also argued that the
government was free to fund certain expression that represented
its policy, and deny funding to contrary views, as when it denies
funding to prenatal programs that include abortion counseling.
But Judge Wardlaw found that point inapplicable, since CalTrans
was not itself placing the flags, only allowing citizens to do
so:
"CalTrans is not executing a government-funded project to
promote national unity or support the war effort. Such an undertaking
must be implemented via elected policy-makers who are accountable
to the public, not by transportation employees who permit, ad
hoc, the display of certain banners and not others."
Finally, CalTrans argued that the injunction was unnecessary in
that the plaintiffs had not suffered "irreparable" loss:
they could apply for a permit to place an overpass sign, or buy
a billboard. The first suggested alternative Judge Wardlaw
called "disingenuous at best":
"Although CalTrans authorizes permits for the display of
signs providing directional assistance to motorists attending
special events, it is plain that Courtney and Brown's expressive
banners are not 'directional' or related to a 'special event.'
Even if the signs were to qualify for a permit, Courtney and Brown
nevertheless have demonstrated a discriminatory burden on speech,
for there is no equivalent requirement for a person desiring to
hang an American flag on an overpass. In a nonpublic forum, the
government must not make distinctions based on the speaker's viewpoint."
As for the availability of billboard space,
"This argument fails for the same reason: Restrictions
on the expression of ideas in a nonpublic forum must be viewpoint
neutral. Imposing a financial burden on one viewpoint while permitting
the expression of another free of charge runs afoul of this requirement...
Moreover, the delay involved in obtaining advertising space deals
the same blow as does the permit requirement. "The loss of
First Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury." Elrod v. Burns ,
427 U.S. 347, 373 (1976)."
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Court:
Fire official's private remarks unprotected
SAN FRANCISCO (2/28/03) -- A fire marshal's statement of his suspicions
of departmental sex discrimination to two colleagues was not constitutionally
protected.
"In this case, after a hearing from which he did not appeal,
Skaarup was found to have made untruthful statements about the
policy of the City and about the Union representing the firefighters.
While latitude is extended to inexactitude in political discourse,
the public interest in such unsubstantiated rumors is small. At
best, Skaarup was taking sides with Fire Chief Massey in a dispute
with Deputy City Manager Importuna, in the course of which Massey
seized on the transfer of two employees, one a woman and the other
a man, to try to make the issue one of gender. The public
interest in bureaucratic infighting is also small."
See the full opinion
of the U.S. Court of Appeals for the Ninth Circuit in Skaarup
v. City of North Las Vegas, Case No. 01-17364.
Back
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Court:
Whistleblowing worker gets fair arbitration
SAN FRANCISCO (2/27/03) -- A worker fired for reporting employer
fraud who then sues and is forced to arbitrate must be given fair
procedural rules in doing so.
"A Tameny claim is almost by definition unwaivable.
'[The] public policy exception to the at-will employment rule
must be based on policies "carefully tethered to fundamental
policies that are delineated in constitutional or statutory provisions
. . . "' Moreover, the public policy that is the basis for
such a claim must be public in that it affects society at large rather
than the individual, must have been articulated at the time of
discharge, and must be 'fundamental' and 'substantial.' Thus,
a legitimate Tameny claim is designed to protect a public interest
and therefore 'cannot be contravened by a private agreement.'
In other words, an employment agreement that required employees
to waive claims that they were terminated in violation of public
policy would itself be contrary to public policy. Accordingly,
because an employer cannot ask the employee to waive Tameny
claims, it also cannot impose on the arbitration of
these claims such burdens or procedural shortcomings as to preclude
their vindication. Thus, the Armendariz requirements are
as appropriate to the arbitration of Tameny claims
as to unwaivable statutory claims."
See the full opinion
of the California Supreme Court in Little v. Auto Stiegler, Inc.,
Case No S101435.
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Court:
Abortion protest not extortion, RICO basis
WASHINGTON, D.C. (2/26/03)
-- Protesters' disruptions of abortion clinics were not "extortion"
under federal law, and thus not subject to an anti-racketeering
injunction.
So concluded the U.S. Supreme Court in its opinion in Scheidler
v. National Organization for Women, Case Nos. 01-1118 and
01-1119. The six-justice majority, in an opinion by Chief Justice
Rehnquist for the court, held that since the defendant abortion
protesters had not acquired any property as the result of the
pressure they brought on the clinics or those attending them,
they had in no sense committed the kind of literal extortion made
criminal under either federal or state law, and hence could not
be stopped by an injunction brought under the Racketeer Influenced
Organizations (RICO) Act.
The decision is the latest phase of a court campaign begun in
1986, when NOW sued for a federal court order barring the anti-abortion
protesters from disturbing clinics or patients, alleging that
their doing so was in part advanced by criminal extortion. The
first phase ended when the high court ruled, in 1994, that under
RICO, NOW need not show any economic motivation for "racketeering"
crimes or conspiracies.
Back in the U.S. District Court, as Rehnquist summarizes it,
"After a 7-week trial, a six-member jury concluded that petitioners
violated the civil provisions of RICO. By answering a series of
special interrogatory questions, the jury found, inter alia, that
petitioners' alleged 'pattern of racketeering activity' included
21 violations of the Hobbs Act, 18 U. S. C. §1951; 25 violations
of state extortion law; 25 instances of attempting or conspiring
to commit either federal or state extortion; 23 violations of
the Travel Act, 18 U. S. C. §1952; and 23 instances of attempting
to violate the Travel Act. The jury awarded $31,455.64 to respondent,
the National Women's Health Organization of Delaware, Inc., and
$54,471.28 to the National Women's Health Organization of Summit,
Inc. These damages were trebled pursuant to §1964(c). Additionally,
the District Court entered a permanent nationwide injunction prohibiting
petitioners from obstructing access to the clinics, trespassing
on clinic property, damaging clinic property, or using violence
or threats of violence against the clinics, their employees, or
their patients."
The Seventh Circuit, U.S. Court of Appeals affirmed, deciding
that interference with the clinics' rights to do business was
sufficient "property" injury to trigger these extortion
laws, whether or not the offenders acquired that property. But
the Supreme Court majoirty would not go that far, in part because
calling what the protesters did "extortion" would erase
the distinction between that crime and the separate offense of
coercion -- using threat or force to limit another's freedom of
action. In creating the Hobbs Act which underlies RICO, Congress
included the crime of extortion but excluded coercion, Rehnquist
noted:
"There is no dispute in these cases that petitioners interfered
with, disrupted, and in some instances completely deprived respondents
of their ability to exercise their property rights. Likewise,
petitioners' counsel readily acknowledged at oral argument that
aspects of his clients' conduct were criminal. But even when their
acts of interference and disruption achieved their ultimate goal
of 'shutting down' a clinic that performed abortions, such acts
did not constitute extortion because petitioners did not 'obtain'
respondents' property. Petitioners may have deprived or sought
to deprive respondents of their alleged property right of exclusive
control of their business assets, but they did not acquire any
such property. Petitioners neither pursued nor received 'something
of value from' respondents that they could exercise, transfer,
or sell. To conclude that such actions constituted extortion would
effectively discard the statutory requirement that property must
be obtained from another, replacing it instead with the notion
that merely interfering with or depriving someone of property
is sufficient to constitute extortion."
Two justices, Ginsburg and Breyer, agreed that using RICO for
disruptive protest of this kind was overbroad, not only because
a more recently adopted statute was intended by Congress to rescue
abortion clinics from "shut-down" tactics, but equally
because if this kind of demonstration could trigger RICO, so might
others. They observed in a footnote:
"At oral argument, the Government was asked: '[D]o you agree
that your interpretation would have been applicable to the civil
rights sit-ins?' The Solicitor General responded: 'Under some
circumstances, it could have if illegal force or threats were
used to prevent a business from operating.'" Justice
Stevens dissented entirely, arguing a long line of cases that
had found extortion to exist when the offenders did no acquire
the victims' property, but only the advantages accruing from their
ceasing operations.
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Court: State can't require heads-up on hit pieces
SAN FRANCISCO (2/25/03) -- A state may not require competing candidates
in the last days before an election to give each other 24-hour
notice of their campaign ads.
"To limit negative advertising and to afford candidates an
opportunity to respond to 'negative hit pieces,' the Arizona legislature
passed a statute requiring advance notice before distribution
of certain political literature and advertising. Specifically,
within ten days before an election, a political action committee
advocating the election or defeat of any candidate must mail a
copy of the communication to the candidate at least twenty-four
hours in advance. We conclude that this regulatory scheme,
which imposes a severe burden on political speech, violates the
First Amendment because it is not 'narrowly tailored to serve
a compelling state interest.' Consequently, we reverse the
district court's denial of Arizona Right to Life Political Action
Committee's claims for injunctive and declaratory relief."
See the full opinion
of the U.S. Court of Appeals for the Ninth Circuit in Arizona
Right to Life Political Action Committee v. Bayless, Case No.
01-17065.
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Bill
would deny businesses an anti-SLAPP motion
SACRAMENTO (2/20/03) --
Senator Sheila Kuehl has introduced a bill identical to the one
vetoed last year, to deny businesses the ability to defend against
SLAPP suits. The Santa Monica Democrat's SB
515, introduced February 20, is a verbatim resurrection of
the final version of her SB 789 of 2002, which Governor Gray Davis
vetoed on September 30, observing:
"I am concerned...that this legislation unduly interferes with the court's discretion. The First Amendment right to free speech should be carefully guarded and the Court may be in the best position to ensure this right is protected by examining these claims on a case by case basis.
"There are important competing interests here. On the one hand, we should not discourage valid public interest claims. On the other hand, we must be careful about ch
