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.

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2004

U.S. cracking down hard on pornograph industry

For the first time in 10 years, the U.S. government is spending millions to file obscenity and pornography charges across the country. In a field office in Washington, 32 prosecutors, investigators and a handful of FBI agents spend millions of dollars to bring anti-obscenity cases to courthouses across the country for the first time in 10 years. Nothing is off limits, they warn, even soft-core cable programs such as HBO's long-running Real Sex or the adult movies widely offered in guestrooms of major hotel chains. (See story)

 

Abortion protesters win Riverside sign decision

RIVERSIDE (3/31/04) -- Anti-abortion protesters who target a clinic in downtown Riverside have won a First Amendment battle in federal court that could force the city to change one of its laws to allow protesters to place or hold large signs outside abortion clinics.

Group says RNC pressing to curb criticism

WASHINGTON, D.C. (3/30/04) -- The Republican National Committee is pressing the Federal Election Commission to issue new rules that would cripple groups that dare to communicate with the public in any way critical of President Bush or members of Congress, according to the political action group Move On.

 

UC regents censure colleague for criticism

SAN FRANCISCO (3/19/04) -- An agitated group of University of California regents voted Thursday to censure their chairman for writing a Forbes magazine article criticizing the university's admissions policies as favoring minorities.

NEWSLINK: Judge says Unabomber papers stay put (3/7/04)

Court: E-mail criticism of firm was protected opinion (3/2/04)

NEWSLINK: Protesters' suit against Wal-Mart revived (2/15/04)

NEWSLINK: Don't just fume at officials; follow through (2/6/04)

Court: Cybercafe licensing law unconstitutional (1/29/04)

Court: Councilman had right to urge staff inquiry (1/20/04)

NEWSLINK: Employer needn't tolerate intolerance (1/7/04)

Court: E-mail criticism of firm was protected opinion

SANTA ANA (3/2/04) -- A high-tech firm's e-mail warnings about the practices of another company were protected as opinion using fully disclosed, accurate references to fact.

 

So concluded the California Court of Appeal for the Fourth District in its opinion in Bryan Franklin v. Dynamic Details, Inc. case no. G031625.

 

Both plaintiff Franklin and defendant Dynamic operate in the market for printed circuit boards, the former representing test equipment vendors and the latter as designer and manufacturer, and have varying relationships with many of the same business customers.

 

A Dynamic testing department executive, Jim Axton, noticed what he believed to be evidence on Franklin's Web site of Franklin's violating copyright and other laws and plagiarizing material from other companies. After pointing out his suspicions to those firms and getting what he believed was confirmation of his suspicions, he sent three e-mails to yet other companies in the industry warning them of Franklin's practices.

 

Franklin sued Dynamic and Axton for defamation, trade libel and several business competition torts. The trial court found the defendants' statements libelous on their face, but protected by the privilege for communications made without malice by one person to another to further or protect their common interests. On this basis it granted summary judgment to the defendants, and likewise ruled in their favor on the business torts, as to which it ruled that Franklin failed to prove that the e-mails caused the problems it alleged.

 

On appeal, the Fourth District ruled for Dynamic but for different reasons than those of the trial court. It concluded that one of the e-mails was simply true, and whereas the other two contained statements calling Franklin's integrity and lawfulness into question in a way that might have amounted to actionable defamation, these statements were simply Axton's amateur legal opinions about facts that were fully disclosed and checkable by visiting Franklin's Web site and following the available links.

 

In the words of Justice Richard D. Fybel for the court,

"In determining whether the ... two e-mails implied a provably false factual assertion, we must also consider the context in which the e-mails were made. ...The circumstances in which the e-mails were prepared, sent, and understood support our conclusion the e-mails contained protected statements. Axton received Franklin's e-mail, reviewed the (Franklin) Web site, and formed the opinions expressed in the e-mails. These circumstances support the conclusion Axton's opinions in the first and second e-mails were based only upon the Web sites.

"Axton is not, and did not purport to be, an attorney. The average reader therefore would not have assumed the statements in the first and second e-mails had the weight of a legal opinion. Although Axton did not temper his opinions with words of transparency, neither did he present his opinions as legal truths framed in legal verbiage. Indeed, his statements that Franklin 'stole' copyrighted material, 'compromised' (Dynamic Designs), and 'plagiarized' data appear in context as rhetorical hyperbole."

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Court: Cybercafe licensing law unconstitutional

LOS ANGELES (1/29/04) -- The government cannot license cybercafes based on vague standards, but can require they be video-monitored to show customers' identities.

 

So ruled the California Court of Appeal for the Fourth District in its opinion in Vo v. City of Garden Grove, case no. G032058.

 

The Garden Grove licensing, monitoring and curfew ordinance was enacted in response to what the police chief viewed as a disturbing level of violence -- and gang-related violence in particular -- in or near cybercafes, which were being opened at an increasing pace throughout the city. One incident involved the murder of a young man as he stood outside a cybercafe. The chief also said school-age children were too often found on the premises during school hours.

 

The resulting ordinance set a moratorium on approval of new cybercafes, instituted a cybercafe curfew for minors, and required new and existing cybercafes to apply for a conditional use permit that could be denied for very vague reasons. That portion of the ordinance provided that city authorities "shall approve an application for a conditional use permit when the information submitted by the applicant and/or presented at public hearing substantiates the following findings: ... "(ii.) That the requested use at the location proposed will not:

 

-- Adversely affect the health, peace, comfort or welfare of persons residing or working in the surrounding area, or

 

"Unreasonably interfere with the use, enjoyment or valuation of property of other persons located in the vicinity of the site, or

 

"Jeopardize, endanger or otherwise constitute a menace to public health, safety or general welfare; ...

 

"The hearing body shall deny the application when the information submitted by the applicant and/or presented at the public hearing fails to substantiate such findings."

 

Several cybercafes sued to block enforcement of the ordinance, and the trial court granted a preliminary injunction against the use permit provisions above, finding them to violate the First Amendment in allowing "unfettered discretion" to deny a permit. The court also struck down a ban on minors' presence during school hours, in that it bore no relationship to the stated aim of preserving public safety. Among several other provisions ruled invalid was one requiring the cybercafes to maintain video surveillance systems subject to city inspection.

 

The court of appeal agreed that the permitting discretion given city officials was unconstitutional, but concluded that the curfew and surveillance requirements were justified and not unduly burdensome. As to the first, Justice Raymond J. Ikola stated for the two-justice majority,

 

"From the information provided, the city concluded that excluding minors from CyberCafes during school hours would advance its significant public interest in their protection and safety. That conclusion is reasonable. Although parents presumably believe their minor children are in school while it is in session, they are not in a position to assert direct supervision and control during school hours. As noted by the chief of police, if CyberCafes allow minor children on the premises during school hours, the potential that gang members will recruit minors is increased, as well as the potential that minors will become witnesses or victims of gang violence. Thus, the 'regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.'"

 

As to the surveillance requirement, Justice Ikola stated for the majority,

 

"We are not persuaded the video surveillance system affects First Amendment activity any more than does the presence of an adult employee and/or security guard. The ordinance does not require video surveillance of e-mail or images from the Internet appearing on the customer's computer screens. The ordinance requires only that the system be capable of showing 'the activity and physical features of persons or areas within the premises.' This is no more than can be observed by employees, security guards, or indeed, other customers. That the video system has a 72-hour memory that may be better than the short-term memory of the average security guard, customer, or employee is not a distinction of constitutional significance on First Amendment grounds. For the reasons discussed (earlier) in connection with the employee and security guard requirements, the video surveillance requirement is a content-neutral manner restriction, narrowly tailored to advance the city's legitimate interest in public safety and deterrence of gang violence."

 

Dissenting Justice David G. Sills argued that the gang violence threat at a handful of cybercafes did not justify the surveillance requirement for all such establishments, especially given the requirement's double impact on speech and privacy rights:

 

"The majority opinion only grudgingly acknowledges one of the most interesting parts of the record, which is a survey of the problems which surrounding cities (many cities in Orange County and some in Los Angeles County have had with cybercafes. Guess what? None reported any gang violence. Oh, there were a few instances of loitering in Los Alamitos, Cypress and in Long Beach. In Monterey Park there were 'Concerns, police related,' but instances of gang violence are simply not to be found in that table. So the 'gang' problem seems confined to Garden Grove. I will let some interested graduate student of social ecology at UCI explain why, but the point is that the empirical evidence from other cities shows what is only intuitive anyway: There is nothing inherently attractive about cybercafes to 'gangs.' For whatever reason, the most one can say here is that the gangs of Garden Grove have an idiosyncratic penchant for some cybercafes. And yet on the basis of problems at a minority of venues -- and possibly unpreventable problems at that -- the majority rubber stamps the city's attempt to impose heavy security costs on all venues."

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Court: Councilman had right to urge staff inquiry
LOS ANGELES (1/20/04) -- A member of the Santa Monica City Council had the constitutional right to represent constituents' concerns in communicating with staff.

So held the California Court of Appeal for the Second District in its opinion in Levy v. City of Santa Monica, case no. B157587.

The city's charter provides, in Section 6.10: "Except for the purpose of inquiry, the City Council and its members shall deal with the administrative service under the City Manager solely through the City Manager and neither the City Council nor any member shall give orders to any subordinates of the City Manager, either publicly or privately."

The case involves the requests of Council Member Ken Genser (at that time in 2000 also the mayor) to Suzanne Frick, the director of planning and community development to look into the complaint of a constuent over the compliance with city code of a neighbor's backyard playhouse.

The complaining constituents thought the playhouse was too high and too near their fence. The result of their initial complaints to city inspectors was that the playhouse owners spent $2,000 in moving the structure, after which they were told it conformed.

The complaining neighbor, still unsatisfied, sent a e-mail to Genser asking him to intercede, and he forwarded the message to Frick, stating, "Could you look into this? Is this structure being built without permits? And could it be built with a permit? Please feel free to contact them directly."

About two weeks later Genser sent Frick another message asking for "the status of the complaint I forwarded ... I just did a ' quick' review of the code. I can' t say that I am necessarily accurate . . . but: Mike's letter said a 5-ft. rear setback was required. I think the code requires the same rear setback as the rear yard - - generally 15 feet (?)... I wonder if the space under the first floor should be considered a story. (I haven' t found a citation to support this - yet.)"

Four months later the playhouse owner, David Levy, was given a notice of violation that told them to move the structure, on which they had spent a total of $13,000 in building and altering to get the inspector's approval, to a 15-foot setback from the fence.

Levy sued the city on several grounds, most of which were mooted when the city withdrew its notice of violation. But one cause of action sought a court order that the city enforce its charter provision against council interference with staff, asking that it be interpreted to prohibit "acts designed to influence" staff. This approach was tested by an anti-SLAPP motion filed by the city, which the trial court denied.

The Court of Appeal faulted this denial. Justice Arthur Gilbert stated, in his opinion for the court:

"The City contends that the court erred by ruling that the Levys met their burden to show they would prevail on their second cause of action to enforce City Charter Section 6.10 by declaratory and injunctive relief. We agree.

"The Levys seek a permanent injunction and a declaratory judgment that 'the City Council and its individual members are precluded by Section 6.10 from engaging in acts designed to influence City administrative staff through direct communication with City staff (other than the City Manager), with respect to zoning enforcement matters such as the Levy playhouse matter.' (Italics added.) They also allege they 'are entitled to issuance of a permanent injunction prohibiting members of the City Council [and their staffs] from violating Section [6.10.]' They state the injunction is necessary 'to allow city administrative personnel to carry out their administrative duties free from direct pressure or influence by' City council members. (Italics added.)

"The Levys contend the purpose of Section 6.10 is to prevent City council members from interfering with administrative staff. They claim they should make complaints on behalf of constituents directly through the City manager. But Section 6.10 allows direct contact 'for the purpose of inquiry.' That is what Genser did. He made an inquiry on behalf of (constituent and Levy neighbor) Garai.

"The Levys contend Genser violated Section 6.10 by what he said to City staff. But this section prohibits 'orders to any subordinates.' The Levys did not show that Genser gave orders. Genser's declaration states he 'never instructed or ordered' any City staff 'to take any specific enforcement action[.]' Frick said she did not consider the e-mails to be orders.

"The Levys contend Genser violated Section 6.10 by "advocating" on behalf of Garai. 'Government officials are frequently called upon to be ombudsmen for their constituents. In this capacity, they intercede, lobby, and generate publicity to advance their constituents' goals . . . .' (Manistee Town Center v. City of Glendale (9th Cir. 2000) 227 F.3d 1090, 1093.) 'This kind of petitioning may be nearly as vital to the functioning of a modern representative democracy as petitioning that originates with private citizens.' (Ibid.)

"Under the First Amendment, legislators are 'given the widest latitude to express their views' and there are no 'stricter "free speech"standards on [them] than on the general public.' (Eller Outdoor Advertising Co. v. Board of Supervisors (1979) 89 Cal.App.3d 76, 80.) Laws that restrict that freedom must be narrowly construed. City officials have First Amendment protection when they respond to inquiries from the public about the city's actions on construction projects. (Nizam-Aldine v. City of Oakland (1996) 47 Cal.App.4th 364, 376-377.)

"The Levys seek to enjoin council members from advocating their constituents' positions, applying 'direct pressure' or 'engaging in acts designed to influence' City administrative staff. But that is an overly broad restraint on speech which would inhibit constitutionally protected activity. (Bond v. Floyd (1966) 385 U.S. 116, 136; Baggett v. Bullitt (1964) 377 U.S. 360, 372; American Civil Liberties Union of Southern California v. Board of Education, supra, 55 Cal.2d at pp. 179-180.)

"It is not easy to distinguish between inquiry and 'acts' designed to influence decision. 'General words create different and often particular impressions on different minds.' (Thomas v. Collins (1945) 323 U.S. 516, 534.)

..."For some, a council member's inquiry for a constituent is advocacy simply because it calls attention to the constituent's position. To the head of a city agency, a council member's act of faxing citizen complaints about the agency might be considered an 'act designed to influence' or 'direct pressure.' For the Levys, an inquiry is advocacy where it could change the status quo or influence the result. Under their definition, virtually all inquiries would be suspect. Council members who may make inquiries under Section 6.10 might refrain from doing so because of fear of being sued or held in contempt. For example, council members could be inhibited from calling City agencies about matters crucial to the community such as securing help for families living in substandard housing. 'Free speech may not be so inhibited.' (Baggett v. Bullitt, supra, 377 U.S. at p. 372.)

"The purpose of Section 6.10 is to define the lines of authority within city government, not to prohibit protected speech. Interpreting this section to prohibit 'orders' to city staff is a bright line consistent with the purpose of Section 6.10 and the First Amendment. Counsel members 'are entitled to speak as they please on matters vital to them; errors in judgment . . . may be exposed, of course, but not through punishment for contempt for the expression.' (Wood v. Georgia (1962) 370 U.S. 375, 389.) '[E]rroneous statements must be protected to give freedom of expression the breathing space it needs to survive.' (Bond v. Floyd, supra, 385 U.S. at p. 136.) There are better ways to discourage improper conduct. 'Under our system of government, counterargument and education are the weapons available to expose these matters, not abridgment of the rights of free speech.' (Wood, at p. 389.)"

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