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View Flash: First Amendment and Open Government News Archive
FLASH:
First Amendment and Open Government News
Vol. 18, No. 6, June 6 , 2008
COMMENTARY
Senator Lieberman calls for misguided internet censorship, but the marketplace of ideas demands that free speech flourish.
By Kelly Dunleavy
On May 19th, Senator Joe Lieberman sent a letter to the CEO of Google, with copies to many major newspapers, demanding that Google remove videos that feature Islamic extremists, or are produced by terrorist organizations, from its video-sharing website YouTube.
Worse, Lieberman hinted that if YouTube and other websites didn’t remove such videos voluntarily, he would introduce legislation to force them to. The Senator’s demands may make for good publicity—he is rumored to be seeking John McCain’s designation as his vice-presidential running mate—but they reveal fundamental misunderstandings: about the internet and about the First Amendment.
The internet has created the ultimate marketplace of ideas. Good ideas, bad ideas, and truly horrific ideas compete more or less freely with each other. The First Amendment, which is predicated on a belief that the best ideas will win out, commands that government not interfere with this competition – no matter how tempting it may be to silence voices that are truly offensive, like those of terrorists. The technology of the internet enforces this prohibition on censorship by foiling efforts to erase objectionable content: compel the removal of a video from YouTube, and it will pop up on other websites.
[Read More]
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ASSEMBLY
Dates Set for CFAC's 2008 Assembly
Mark your calendars for October 17 & 18: The dates for this year's Free Speech and Open Government Assembly, to be held at UC Berkeley's Graduate School of Journalism.
If you go to only one professional conference in 2008, CFAC's Assembly, co-produced this year with UC Berkeley, is it: A feast of ideas presented in talks, debates, discussion groups, awards and films.
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Directory:
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CFAC NEWS
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Legislation Update
By Kelly Dunleavy
SB 1370, the bill sponsored by Senator Leland Yee to protect high school and college journalism instructors from being disciplined or removed for protecting their student’s freedom of the press, will be heard in the Assembly Judiciary Committee on June 10th.
The bill passed out of the Senate and now must be heard in the Assembly Committee and, then, voted on by the Assembly.
SB 1370 comes in the wake of 12 documented cases of journalism advisors being punished after refusing to pull critical stories written by student journalists.
AB 2379 will also be heard on June 10th in the Senate Judiciary Committee, after having passed out of the Assembly. AB 2379 is a bill written by Assemblymember Noreen Evan and co-sponsored by the California Newspaper Publishers’ Association. It attempts to streamline the court records request process and eliminate unnecessary waiting times.
The bill would eliminate appeals of orders to unseal court records that were improperly sealed. This will bring about quicker writ review and eliminate delays. It is also similar to the process that has been speeding up California Public Records Act requests since 1989.
[Read More]
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The Right to Know: A Guide to Public Access and Media Law is our new, comprehensive, one-stop law guide on access and First Amendment issues for journalists, bloggers, lawyers, citizens groups, activists, public officials, and voters.
-$25 for CFAC and CNPA members
-$30 for nonmembers
-Order your copy online or by calling 916-288-6009
The Right to Know replaces CFAC's previous "Journalist's Legal Notebook" and CNPA's "Reporter's Handbook." The Right to Know is the best of both books . . . the best of all books.
The Right to Know is written by CFAC Board President James Chadwick (partner at Sheppard Mullin Richter & Hampton) and by CFAC General Counsel Roger R. Myers (partner at Holme, Roberts & Owen). Editors include Tom Newton, General Counsel of CNPA, and Peter Scheer, Executive Director of CFAC.
Purchasers of The Right to Know also receive:
--access online to the full text of all court decisions cited in the book
--access online to new legal developments and updates
Order your copy now.
CFAC in the News:
View the most recent news articles about CFAC (courtesy of Google).
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STATE AND LOCAL FIRST AMENDMENT AND OPEN GOVERNMENT NEWS
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Sacramento Bee
State access law ignored by many local agencies
Ever wonder how much money your mayor got from developers? Want to know how much your city councilman spent on his last election bid? Want to find out this information without having to supply personal information about yourself? Well, tough luck if you live in some communities. Seven out of 13 city halls and county election offices around the region failed a Bee test of a state law that guarantees public access to the financial disclosure forms for elected officials.
Press-Enterprise
Docket cites attorney-client issues in judge’s decision to clear court
Judges can close a criminal case hearing to the public, but the circumstances are narrow and the reason needs to be clear and on the record -- even if that record itself is sealed -- legal observers say. Riverside County Superior Court Judge W. Charles Morgan closed two separate hearings in a murder case, and while he did not explain why from the bench, docket records entered later show it was to protect attorney-client privilege.
Lompoc Record
SB County Planning Commission denies it broke law
In response to an accusation that it had broken the law, the Santa Barbara County Planning Commission said that it had committed no violation during its April 21 meeting concerning an offshore oil drilling proposal. More than a month ago, commissioners approved Plains Exploration and Production Co.'s proposal to reach the Tranquillon Ridge oil field in state waters by slant-drilling from its Platform Irene in federal waters
Amador Ledger-Dispatch
Plymouth may talk to tribe
As time grows short for commenting on the Ione Band of Miwok Indians' draft environmental impact statement, pressure has been mounting on the Plymouth City Council to enter into negotiations with the Miwoks. Council members agreed to form an ad hoc committee to discuss the tribe's controversial gaming proposal, but it would be a committee with a different goal than outlined in the agenda's language.
Sherman Oaks Sun
Local Neighborhood Councils outgrow growing pains
The personalities that characterize neighborhood councils are as varied as the community challenges that face them. But when the councils were formed over seven years ago as part of the Los Angeles City Charter, they were envisioned as precisely this kind of participatory democracy where myriad points of view would conjoin. The Studio City (SCNC), Sherman Oaks (SONC), and Encino (ENC) neighborhood councils were limited in their early effectiveness by what Los Angeles City Councilmember Wendy Greuel called “growing pains, as with any organization.”
Los Angeles Wave
Chamber of Commerce still at odds with city over audit
A dispute between the Chamber of Commerce and the City Council has reached a bitter stalemate, with the business organization refusing to submit to an audit and the key question left unanswered: how has it spent the money it received from the city? For more than two decades, the chamber has worked with the city to promote businesses and to stimulate Lynwood’s lackluster economy. The city has paid an annual fee for the chamber’s services — $95,000 a year since at least 1998 — and during that time, the chamber has frequently submitted financial reports and openly disclosed its activities.
The Press Enterprise
Appellate court temporarily halts release of documents involving S.B. assessor’s office
Monday's public release of records justifying last month's seizure of computers and documents at the San Bernardino County assessor's office was delayed when a state appellate court called a temporary halt. The Riverside-based Fourth Appellate District, Division Two, issued a stay within hours of the San Bernardino County district attorney's office filing documents to block the unsealing. No explanation was given.
Santa Cruz Sentinel
Nazi salute case heads to 9th Circuit
Six years after Santa Cruz police arrested gadfly Robert Norse for giving the mayor a Nazi salute during a City Council meeting, Norse's argument that his civil rights were violated might be headed to the Supreme Court. Lawyers familiar with the case say they would not be surprised if the nation's top justices eventually rule on Norse's case, addressing the issue of freedom of speech in public meetings. Right now, the suit is pending before the 9th Circuit Court of Appeals.
Opinion & Editorial
Sacramento Bee
Editorial: Let Public in on government labor deals
Peter Scheer, who heads the California First Amendment Coalition, has a novel idea: End the secrecy surrounding local government labor contract negotiations. You can understand the logic and the urgency behind his idea when you consider the situation in Vallejo. That city is filing for bankruptcy. Why? Local officials approved salary and benefits costs for current employees and retirees that are more than the city can afford.
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NATIONAL FIRST AMENDMENT AND OPEN GOVERNMENT NEWS
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Citizen Media Law Project
MySpace Wins Important CDA 230 Case in Fifth Circuit
The United States Court of Appeals for the Fifth Circuit affirmed the dismissal of negligence claims brought against MySpace by the family of a teenage girl who used the popular social networking site to communicate with and arrange to meet a nineteen-year-old boy who sexually assaulted her. The district court held that section 230 of the Communications Decency Act ("CDA 230") barred the teen's claims based on MySpace's alleged failure to take basic safety measures to prevent sexual predators from communicating with minors on the site.
Citizen Media Law Project
Case Testing Illinois’ New Anti-SLAPP Law Settles Before Court Can Clarify Reach of Citizen Participation Act
In what would have been the first case to test Illinois' newly enacted Citizen Participation Act, which provides immunity for speech related to certain matters of government and public concern, the parties settled before a court could interpret this important addition to the growing list of state anti-SLAPP laws. (SLAPP stands for "Strategic Lawsuit Against Public Participation" and refers to lawsuits filed in retaliation against the target's speaking out on a public issue or controversy. ) SLAPPs are typically brought by corporations, developers, or government officials against individuals or community organizations that oppose their actions. To guard against the chilling effect of SLAPPs, twenty-five states have anti-SLAPP laws.
Reporters’ Committee for Freedom of the Press
New Jersey Supreme Court committee proposes online access to court records
Justices on the New Jersey Supreme Court heard testimony last week regarding a proposal to expand access to judicial documents. If implemented, the new rule would allow Internet publication of most records now available only at the courthouse.The proposal follows the release of a two-year study conducted by the Supreme Court Special Committee on Public Access to Court Records. The committee, lead by Associate Justice Barry T. Albin, concluded that transparency in proceedings will increase public confidence in the court system.
Associated Press
Judge says Corzine must release Katz emails
A judge has ordered New Jersey Gov. Jon S. Corzine to publicly release hundreds of e-mails he exchanged with a state worker union leader he once dated. In his ruling, Superior Court Judge Paul Innes said the e-mails were public records.The decision is a blow to Corzine, who wanted e-mails he exchanged with ex-girlfriend Carla Katz during state worker contract talks in 2006 and 2007 kept private.
Federation of American Scientists
Press Releases Could Become ‘Controlled Unclassified Info’
Government press releases could be temporarily marked as “controlled unclassified information” to protect them from premature disclosure, according to an official Background paper on the new White House information security policy. Controlled unclassified information, or CUI, refers to information that does not meet the standards for classification but that is considered too sensitive for unrestricted public disclosure. The new CUI policy was issued by President Bush on May 7.
Associated Press
Journalist facing fines urges press to protect 1st Amendment
A former USA Today reporter facing fines for failing to reveal her sources for stories about the 2001 anthrax attacks said Saturday that news organizations need to go on the offensive in the fight to protect the First Amendment. "As we all know, the news business is on a collective nervous breakdown," Toni Locy told a coalition of open-government and press groups. "It's time to stop running. It's time to turn and fight. If we don't fight for the First Amendment, who will?"
Opinion & Editorial
New York Daily News
Letter from Joe Lieberman: YouTube, take down terrorist videos-now
Close-range executions of hostages. Assassinations of U.S. soldiers through snipers' cross hairs. American tanks blowing sky-high. These are some of the gruesome images that violent Islamist terror organizations like Al Qaeda use to recruit, train and indoctrinate impressionable young followers. They can also be accessed easily on YouTube, the world's largest video-sharing Web site.
New York Times
Editorial: Joe Lieberman, Would-Be Censor
The Internet is simply a means of communication, like the telephone, but that has not prevented attempts to demonize it — the latest being the ludicrous claim that the Internet promotes terrorism. Senator Joseph Lieberman of Connecticut is trying to pressure YouTube to pull down videos he does not like, and a recent Senate report and a bill pending in Congress also raise the specter of censorship. It is important for online speech to be protected against these assaults.
New York Times
Letter: Senator Lieberman Responds
In “Joe Lieberman, Would-Be Censor” (editorial, May 25), you proclaim it “ludicrous” to “claim that the Internet promotes terrorism.” But the fact is that the Internet, through violent jihadist videos posted on YouTube, is being used to recruit terrorists here in the United States. And that is what I have asked YouTube, in the national interest, to stop. The bipartisan staff of the Senate committee I head, which oversees homeland security matters, has documented that Islamist terror networks rely extensively on the Internet in their continuing war against the American people.
Huffington Post
We’ve Met the Enemy and It is the Messenger
Senator Joe Lieberman took another step backward in America's "war on terrorism," by demanding that YouTube censor hundreds of videos allegedly posted by Islamic terrorists groups. And when the Google-owned video site responded by promptly removing a large number of those videos, which violated its guidelines against content containing hate speech and violence, he insisted that action was " not enough." What would be "enough" in the Senator's estimation? Simply the removal of all the tainted videos, even those that were plainly constitutionally protected advocacy, albeit abhorrent, and a plan "to prevent the content from reappearing."
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CFAC
HOTLINE Asked & Answered
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The
Hotline is CFAC's online legal information service. Questions from reporters,
government officials, civic activists and the occasional crackpot are answered
by media law specialists Roger Myers and Rachel Matteo-Boehm at the San Francisco
Office of Denver Law Firms, Holme Roberts & Owen, LLP.Have
a legal issue? Submit
your question here.
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City Salary Increases in Closed Session
Q: On the City Council agenda it states under closed session that the City Council will meet with the City Administrator to consider the department heads up for evaluation. All department heads are up for evaluation and they all want salary increases. All department heads are also contract employees and bargin directly with the Council for increases to benefits and salaries.
I believe the Council must discuss in open session all salary increases, not in closed session. The City says placing this on the agenda stating they will discuss salaries in closed session makes it legal as long as they come out of closed session and state what action, if any, is taken. Is that true or must they discuss salary increases in open session?
A: The California Brown Act states that, except for closed sessions to meet with the city's negotiator in bona fide labor relations situations concerning represented and unrepresented employees, "closed sessions may not include a discussion of or action on proposed compensation except for a reduction of compensation that results from the imposition of discipline." Gov't Code section 54957(b)(4). Consequently, the city's plan to discuss salary increases in closed session would appear to violate the Brown Act, and that violation would not be cured by stating after the closed session what action was taken. As the California Court of Appeal has said, "Salaries and other terms of compensation constitute municipal budgetary matters of substantial public interest warranting open discussion ...." San Diego Union v. City Council, 146 Cal. App. 3d 947, 955 (1983).
Notification of Records Requests to Third Parties
Q: Does the custodian of a public record have the right to notify the party that someone is requesting their public record? i.e., there was a bid for a public entity that is now closed. I want to obtain a copy of the winning bid, but the custodian is saying that they have to notice all requests to the party that placed the bid.
A: Under Public Records Act ("PRA"), public records (which include "any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics," Govt. Code Section 6252(e)), are open to the public unless a specific provision of the PRA or other law exempts them from disclosure. Under section 6253, you are entitled to review public records at any time during the office hours of the agency that has the records, or, under section 6256, you can submit a request in writing. We are not aware of any requirement that the agency may not release the records until it notifies the party that submitted them. Although we are also not aware of any provision of the PRA that would prohibit the agency from doing so, it would seem to be inconsistent with section 6256.2 (which states that "nothing in this chapter shall be construed to permit an agency to delay access for purposes of inspecting public records...") and section 6257 (which states that an agency "shall make the records promptly available to any person" upon payment of fees) that the agency could delay your access to the records while it notifies a third party of your request.
With respect to copies of bids once a contract has been awarded, such records may contain information that may be considered trade secrets, in which case they would be exempt from disclosure under section 6254(k) of the PRA. Section 6254(k) exempts from disclosure "[r]ecords the disclosure of which is exempted or prohibited pursuant to federal or state law." Trade secrets are generally protected from disclosure to the public under both state and federal law. "Trade secret" is defined under California law as: "information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy." Cal. Civ. Code § 3426.1. "Trade secret" is defined under federal law as: "all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if: (A) the owner thereof has taken reasonable measures to keep such information secret; and (B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, the public." 18 U.S.C. § 1839. This may be the reason for the agency's policy in notifying the party that placed the bid about the request for copies of them. However, where the trade secret owner failed to designate the information as trade secret when submitting it to the public agency, you may have an argument that such information has lost its status as trade secret -- and, thus, that it is subject to disclosure to the public -- on the grounds that the trade secret owner failed to take reasonable measures to keep the information secret. Moreover, even if the trade secret owner designated the information as trade secret, where a record contains information that is exempt from disclosure but otherwise public in character, the PRA imposes a duty on the agency to redact the exempted information and produce the nonexempted information (unless the exempt and nonexempt information are so interwoven as not to be reasonably segregable).
Although I understand you are seeking copies of bids, you should know that once the agency awards a contract, the contracts themselves are subject to disclosure under the PRA. San Gabriel Tribune v. Superior Court, 143 Cal. App. 3d 762 (1983). Also, in the San Gabriel Tribune case, the court rejected any claim by the city that financial information submitted to the city by a waste disposal company was exempt from disclosure as confidential proprietary information. San Gabriel Tribune v. Superior Court, 143 Cal. App. 3d 762 (1983).
You may want to contact the agency once again to submit a written request under the PRA for the documents you seek. The PRA requires agencies to provide you with the documents requested, or notify you that your request has been denied, within 10 days. (Gov't Code § 6253). If the written request is denied, the agency is obligated to back its denial by citing an exemption in the PRA or other state or federal law allowing it to withhold the records you seek. (Gov't code § 6255). You might want to remind the agencies of their obligation to provide you with the records, or to cite the authority that allows them to withhold it. A sample PRA request letter is found on CFAC's website at the following link: http://www.cfac.org/templates/cpraletter.html.
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ASKED
AND ANSWERED
Do
you find these questions and answers helpful? If so, you
should also consult "Asked
and Answered" on CFAC's Web site,
a compilation of past
Hotline questions and answers.
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ABOUT
US
The California First Amendment Coalition is a non-profit public
interest organization dedicated to enhancing rights to freedom
of speech and open government through information and
educational services, strategic litigation, and lobbying.
Our offices are at: 534
Fourth Street, Suite B, San Rafael, CA.
Phone:
415.460.5060, Fax: 415.460.5155,
Email: cfac@cfac.org
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