Thursday, August 16, 2007
2007 CFAC Free Speech & Open Government Assembly
Call for Nominations for Annual Bill Farr Award
The California First Amendment Coalition and the California Society of Newspaper Editors are seeking nominations for the 2007 Bill Farr Award, given each year to an individual or group for exemplary work to further principles of free speech, free press and public access to government.
The award is given in honor of former Los Angeles Herald Examiner reporter Bill Farr, who went to jail in 1971 after refusing to reveal the names of confidential sources for his reporting on the infamous Charles Manson case.
Deadline for award nominations is September 25.
The award will be presented at CFAC’s annual Free Speech and Open Government Assembly at the USC Annenberg School for Communication, October 25 & 26.
Qualifications for the award are exemplary accomplishment, service or other contributions to “the people’s right to know” in California. The winner will be an individual or institution whose actions deserve public honor and emulation.
Areas vital in the struggle for open government include access to public meetings, public records and courts; defense of citizens’ right to speak; defense of journalists’ rights; and defense of the right to “blow the whistle” and alert the public to matters of common concern.
Last year, the award was presented to the San Francisco Chronicle for its reporting on secret pay and perks to University of California administrators, and for its costly, long-term and ultimately successful legal battle to resist grand jury subpoenas demanding its reporters’ confidential sources for news stories about use of performance-enhancing drugs by professional athletes (the “BALCO investigation).
Deadline for nominations is September 25.
Send nominations with supporting material for the Bill Farr award to:
Bill Farr Award
California First Amendment Coalition
534 Fourth St., Suite B
San Rafael, CA 94901
Or by E-mail to: Farr.Award@cfac.org
Or by FAX 415-460-5155
Please be sure to send documentation for your nomination as well as contact information for yourself and for the nominee.
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2007 CFAC Free Speech & Open Government Assembly
Call for Nominations for Beacon and Darkness Awards
The California First Amendment Coalition is seeking nominations for its annual Beacon and Darkness awards, given in recognition of exceptional efforts, during 2006 and 2007, to advance and defend open-government and freedom of speech (Beacon Awards), and the opposite: exceptional efforts to curtail public access and free expression (Darkness Awards).
Deadline for award nominations is September 28.
The awards will be presented at CFAC’s annual Free Speech and Open Government Assembly at the USC Annenberg School for Communication, October 25 & 26.
Beacon awards are given to individuals or organizations in California for their exemplary work in fighting to keep government meetings or records open to the public, and for supporting the First Amendment’s fundamental free speech and free press rights. Generally, the awards will be given for achievement in 2006-2007, but longer term achievement may will be recognized.
Previous awards have been given to journalists, civic activists, public interest organizations, First Amendment lawyers, and government officials who have gone above and beyond the norm to assure government transparency and free speech/free press rights.
Last year, to cite some examples, Beacon award winners included the Daily Triplicate in Del Norte County, a 6,200-circulation newspaper with a two-person reporter staff that successfully battled attempts to shut down its court coverage; to the online news site TMZ.COM and its director, Harvey Levin, for uncovering efforts to whitewash the Mel Gibson drunk-driving escapade; and to John Hancock for making the California Channel the always-open window on the Legislature and the state Supreme Court.
Darkness awards are given to individuals or government agencies that have acted to thwart free speech, public participation in government or access to meetings or public records. Last year’s recipient, for instance, was investor Ron Burkle, for attempts to make divorce records secret. In 2005 the darkness “diss-honor” went to the state Department of Corrections and its then leader (what was his name??) for blocking legislation to give journalists access to prisoners.
CFAC has been rewarding good and bad open-government deeds since 1995. Among the first to receive the Beacon was the late Congressman John Moss, father of the federal Freedom of Information Act.
Send nominations with supporting material for the Beacon and Darkness awards to:
Beacon and Blackness
California First Amendment Coalition
534 Fourth St., Suite B
San Rafael, CA 94901
Or by E-mail to: Beacon-Darkness@cfac.org
Or by FAX 415-460-5155
Please be sure to send documentation for your nomination as well as contact information for yourself and the individual or organization being nominated.
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Monday, July 09, 2007
Commentary
The Bancrofts are supposed to use their control of the WSJ to veto buyouts, not to extract a huge premium. If Murdoch buys the paper, the Bancrofts should forfeit their windfall.
By Peter Scheer
In making his bid to buy Dow Jones, the parent company of the Wall Street Journal, media baron Rupert Murdoch’s crucial insight was that everyone has his (or her) price, even the thirty-five members of the Bancroft family who control ownership of the venerable newspaper company.
This may seem obvious now, but until Murdoch made his $5 billion offer for Dow Jones, the conventional wisdom was that the families that control the country’s preeminent newspapers—the Sulzbergers (who own control of the New York Times), the Grahams (Washington Post) and the Bancrofts (Wall Street Journal)—could not be paid enough to induce them to sell off their legacies.
Although these newspapers are public companies—in the sense that they have sold stock to outside shareholders—the families retain control through ownership of a class of vote-rich stock. This arrangement, despite its disenfranchisement of public shareholders, is defended on grounds that newspapers are a public trust, to be managed in the public interest by owners willing to forego short-term financial gain in order to safeguard the newspapers’ editorial integrity.
Clarence Barron, who purchased the Wall Street Journal in 1903 and created the family trusts through which the Bancrofts exercise control, would roll over in his grave to learn that his family, upon receiving Murdoch’s lucrative offer, didn’t JUST SAY NO. That’s why they were given their majority-voting stake, after all: to block attempted takeovers of the newspaper, not to use it as leverage to extract a windfall.
The Bancrofts are like the proverbial prostitute who, when a customer inquires about a discount, declares indignantly: “What kind of woman do you think I am?” Murdoch, the consummate dealmaker, understood this. He knew that, while the Bancrofts were committed in principle to preserving the Journal’s independence, that principle could be bought at the right price.
Murdoch set his bid for the company at $60 per share, a whopping 67% above Dow Jones’ share price before the bid became public. This huge premium, offered at a time of collapsing valuations for most newspaper companies, was high enough to both preempt competing bids, and to make the Bancrofts---each of whom will be roughly $14 million richer, on average, than before Murdoch appeared on the scene---reconsider the family’s commitment to resist takeovers.
In fairness, the Bancrofts might have worried about being sued by Dow Jones’ public shareholders had the board, at the family’s direction, rejected Murdoch’s offer out-of-hand. The public shareholders, however, knew when they bought stock having little or no voting power that they were ceding to the company the right to subordinate their financial interests to the public interest---as the Bancrofts perceive it---in preserving the Journal’s independence.
Also in fairness, the Bancrofts may believe that Dow Jones is so weakened financially that it needs to be part of a larger company—other than Murdoch’s News Corp., that is--with deep pockets and a willingness to invest heavily in the Journal. But if they are serious about pursuing alternative buy-out options, the Bancrofts will have to consider offers below Murdoch’s $60 per share bid---something they thus far have shown no inclination to do.
At this writing the Bancrofts and Murdoch are still negotiating, with the Bancrofts insisting unrealistically that Murdoch keep his hands off the news and editorial sides of the newspaper, and Murdoch making promises about editorial independence that, based on past experience, he probably has no intention of keeping. It is a dance choreographed by Murdoch to burnish his own image and to make the Bancrofts feel less guilty about selling out.
If, as seems likely, the parties come to terms on a deal, the Bancroft family members should be shamed into forgoing their windfall. They should be compensated for their stock, of course, but only for its value before Murdoch made his buyout offer. The huge premium in Murdoch’s $5 billion bid---amounting to some $495 million for the Bancroft family’s shares---should be put in a trust to underwrite the kind of investigative and enterprise journalism at which the Journal has long excelled.
That would be a gesture worthy of the family owners of what may be the best newspaper in the world.
Peter Scheer, a lawyer and journalist, is executive director of CFAC.
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Friday, June 29, 2007
CFAC NEWS
Public schools may take down a student banner stating “Bong Hits 4 Jesus,” the US Supreme Court rules. But not in California.
By Anthony Sanchez
(CFAC) Student speech promoting drug use can be restricted by public school officials, the Supreme Court ruled earlier this week. But that may not be the case in California because the state Education Code provides greater free speech protection.
The new Supreme Court decision, Morse v. Frederick, stems from a public high school’s suspension of a student who, while at a school event, unfurled a banner reading, “Bong Hits 4 Jesus.” The Supreme Court ruled against Frederick and held that student speech at public schools can be censored if it “can reasonably be regarded as encouraging illegal drug use.”
The Court held that the government has an “important--indeed, perhaps compelling interest” in deterring the use of dangerous drugs by students and that the First Amendment “does not require schools to tolerate at school events student expression that contributes to those dangers.” Citing Bethel School District v. Fraser and Hazelwood v. Kuhlmeier, the Court said that the First Amendment rights of students in school are not as broad as those of adults in other settings.
However, in California, students have free speech rights under Education Code 48907 that are, by design, closer to the First Amendment rights of adults. Under EC 48907, public school students “have the right to exercise freedom of speech and of the press” and can only be censored under two circumstances: if that expression is “obscene, libelous, or slanderous” or if it “incites” a “substantial disruption of the orderly operation of the school.”
EC 48907 provides more free speech protection for students than the qualified student speech rights under the First Amendment, which were the basis for the Morse v. Frederick ruling. EC 48907’s higher level of protection was reflected in another recent First Amendment case before the 1st District Court of Appeal in San Francisco involving a Novato High School senior who wrote a controversial anti-immigrant editorial in the student-run school newspaper.
In Andrew D. Smith v. Novato Unified School District, Smith’s editorial was retracted by the School after it caused an uproar and disrupted “an orderly school environment.” Under the First Amendment, student speech can be restricted if it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others…” However, the court noted that under EC 48907 that’s not enough to suppress student speech. Only student speech inciting a “material disruption” can be prohibited.
Banners proclaiming “Bong Hits 4 Jesus”—whatever that means---may be forever banished in public schools in most states across the country. But not in California.
Anthony Sanchez, a CFAC intern, is a June 2007 graduate of Stanford University.
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Tuesday, June 19, 2007
COMMENTARY
Corporate transparency, long cherished as an essential feature of US capital markets, is giving way to the secrecy of “private equity” deals. Big mistake.
By Peter Scheer
One of the great strengths of the American economy has been the openness, relatively speaking, of its largest national corporations.
Since the advent of federal securities regulation during the New Deal, big businesses have been required—as a condition of their gaining access to U.S. capital markets—to disclose gobs of information about their financial condition, performance and prospects. Mandated disclosures have opened a wide window into American corporate management.
“Transparency” has been a boon not only to investors—who are able to more accurately value companies’ shares—but to other stakeholders in the firms’ prospects. These include, most notably, the companies’ employees: Most of what they know about their employers—their financial health (or lack of it), their plans for growth and new capital investment, compensation of executives and of their fellow employees, etc.—they know because of disclosures required by federal law. The same is true for residents of cities and towns where companies’ operations are located: Without securities regulation, their only source of information about a company’s plans would be its self-serving and platitudinous press releases.
But the latest trend in the capital markets leads in the opposite direction. For an expanding list of companies—including, most recently, carmaker Chrysler Corp. and student loan company Sallie Mae—the information spigot is being turned off. It is being turned off because the formerly public companies have been acquired, not by other public companies, but by private investment firms riding the tidal wave of “private equity.”
Using capital supplied by private investors (typically augmented with lots of debt), private equity firms are in the business of finding and buying companies that they think are undervalued. The process of “going private,” by substituting private investors for public ones, substantially frees these public companies from the requirements of federal securities laws—including the key requirement of disclosure.
This effect is not trivial. The alternative universe of private equity now controls approximately 10 percent of the value of the companies listed on the New York Stock Exchange (according to a recent McKinsey study). At $281 billion so far this year, new private equity deals are running at a rate three times higher than in 2006 (says Thomson Financial), which was itself a banner year for buyouts. And private equity transactions involve ever-bigger companies, including First Data Corp., Alltel, Tribune Co. (publisher of the Los Angeles Times), Hospital Corporation of America, Equity Office Properties Trust, and Kinder Morgan. Private equity deals in the $30-40 billion range, unthinkable just a few years ago, are now commonplace.
The upsurge in private equity is a hot debate topic in political and economic circles. Unions and other critics on the left argue that private equity deals accelerate corporate downsizing and the outsourcing of jobs. However, there is little evidence for that proposition (and more than a few counter-examples of companies that have grown rapidly following their sale to private equity owners).
The investment community, in defending private equity deals, claims that shutting off the spigot of information, at least temporarily, is a good thing. The argument is that “taking private” a previously public company, by insulating it from Wall Street’s obsession with short-term results, frees management to make the kind of strategic changes and capital investments needed to set a company on a path for long-term growth.
Perhaps. But let’s remember that today’s defenders of private equity are the same people who, a few years back, extolled transparency as capitalism’s holy grail. During the 1990s’ boom, these champions of free enterprise and open competition argued that only with transparent markets and financial statements revealing all material information can individual businesses, and the economy as a whole, reach their full potential.
The investment community, it seems, favors full disclosure in all cases--except, that is, when investors have to do the disclosing. As buyers, professional investors insist on transparency so they can be sure not to overpay. But as owners, they favor a respite from the scrutiny of analysts and government. So-called “alternative investment” firms—private equity, venture capital and hedge funds—resist mightily any government regulation that would make them more transparent regarding the investments they make and the fees they charge. Most are secretive to the point of obsession about revealing firm profits.
Alternative investment firms’ hypocrisy about disclosure may be due to fear of a political backlash if the public finds out just how much money they make. The pending IPO by Blackstone Group, one of the most successful private equity firms, is instructive. The firm’s $4.75 billion offering, which will make a billionaire of firm chairman Stephen Schwarszman, has unleashed bills in Congress to tax the proceeds of such IPOs at corporate rates, rather than the much lower tax rates applicable to partnerships. Other legislation under consideration would raise taxes sharply on alternative investment firms’ “carried interest”—their share of profits (typically 20%) on private equity investments.
Transparency in corporate affairs is still the best policy. Public companies acquired in private equity deals should maintain full disclosure even in the absence of government disclosure requirements. Self-imposed (that is, voluntary) transparency is in the best interest of all concerned—including the dealmakers in private equity firms who would prefer to operate in secrecy.
Peter Scheer, a lawyer and journalist, is executive director of CFAC
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CFAC NEWS
Extracting information from Immigration and Customs Enforcement (ICE) takes persistence and understanding one’s rights under FOIA
By Nick Rahaim
The Immigration and Customs Enforcement raids in the past months have not only incited fear in immigrant communities across the country, but have caused confusion in the media, public agencies, and community groups that have sought, mostly without success, details about individuals swept up in the raids.
The initial information void brings to mind Gestapo-style disappearances reminiscent of the troubled political pasts of countries many immigrants have fled. To be fair, no one is being “disappeared,” but only with significant digging, persistence, and use of the Freedom of Information Act, can reporters gain access to relevant records.
In dealing with ICE, one needs information to gain information. Following raids or arrests, ICE’s public relations office will respond to questions based on the information the questioner already has. If a journalist, knowing only that arrests have been made, asks ICE for details---she is unlikely to get very far. But if she asks about a specific, named individual, ICE will at least disclose whether that person is in custody; if the person asking for information is a family member, he will receive information on where his arrested relative is being held.
Organizations that work with immigrant communitees are often a great resource in compiling background information before going to ICE. Tom Wilson, executive director of Canal Alliance in San Rafael, a nonprofit that works closely with the city’s immigrant community, told CFAC, “We often act as a clearing house of information, by making alliances with the community, lawyers, local government and the press.”
ICE rarely volunteers specific numbers or names of persons detained in raids. In March , following several high-profile raids in San Rafael’s canal neighborhood, the Marin Independent Journal was able to nail down specific information only by soliciting the help of the local member of Congress, Rep. Lynn Woolsey (D-Marin).
One problem is that ICE, being a national agency, compiles arrest statistics using geographic regions that do not necessarily correspond to communities in which raids are conducted. The agency’s information offices will provide only cumulative regional numbers, such as that ICE made 1,811 arrests in the “San Francisco Region” (Northern California & Central Valley) between May 26, 2006 and April 20, 2007, and that 918 of the persons arrested (about 50% of the total) were “fugitive aliens.” If you need to know the specific number of ICE arrests for, say, the City of San Francisco during March 2007, you should expect to have to badger agency personnel or file a Freedom of Information Act request, or both.
Using FOIA requests can be a slow process—often much slower than similar requests to state agencies under California law—but persistence, backed by a credible threat to sue, if necessary, will often pay off. The ACLU of Northern California, the Lawyers’ Committee for Civil Right of the San Francisco Bay Area, and the San Francisco Bay Guardian submitted a joint FOIA request in early March requesting all records on ICE immigration enforcement in the San Francisco region since May 2006. ICE has yet to respond, but this may be due to the huge volume of records involved.
Under the FOIA, ICE has 20 business days to respond to a request, and it can take an additional 10-day extension, provided it acknowledges your request at that time of the extension. ICE has highly specific FOIA policies. For example, requests must be made to the FOIA office in Washington D.C., and all requests for specific “alien” files must be made to U.S. Citizenship and Immigration Services, also in Washington.
Information on how to file a FOIA request is available at http://www.ice.gov (click on the FOIA link at the bottom of the page). All requests must be made in writing, and ICE offers an optional form for requests; however, a letter is better because it allows you to give a legal explanation as to why the documents should be released.
ICE often cites the Privacy Act as the legal basis for withholding information on arrests (in particular, the names of persons arrested). But the Privacy Act does not apply to documents that would otherwise be available under FOIA. CFAC legal counsel Rachel Matteo-Boehm, of Holme Robert & Owen, said, “…the only practical limit the Privacy Act places on FOIA disclosures is to prohibit disclosure in circumstances where agencies already have the discretion to withhold records under a FOIA exemption.” The Privacy Act, in other words, has no relevance in situations where FOIA requires disclosure, leaving ICE with no discretion in the matter.
There are FOIA exemptions that might apply to ICE records, depending on the circumstances. A favorite of the agency is FOIA exemption 7, which permits withholding records that are part of an ongoing investigation. But this exemption should not be used as a catch-all excuse for denying any request seeking names, charges, and location of detainment. If you need help in persuading ICE to honor a FOIA request, a great legal resource is CFAC’s free “Legal Hotline” (found at http://www.cfac.org). CFAC’s hotline lawyers provide free legal assistance and information on First Amendment and access issues in both English and Spanish.
In investigating ICE’s activities, FOIA should be considered one part of a multifaceted approach to gaining information on arrests and operations within immigrant communities. As Tom Wilson of the Canal Alliance told CFAC, “Getting information on ICE is a piecemeal operation; you just can’t rely on one source. The journalists have a great advantage here; they have the flexibility to dig, and piece together information.”
Nick Rahaim, a journalist, is a CFAC analyst and First Amendment advocate.
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Tuesday, May 29, 2007
Commentary
Tracy case tests the power of government officials to avoid disclosure of their emails on public business. Fed up Tracy residents should refuse to pay the officials’ legal fees.
By Peter Scheer
Those enterprising members of the Tracy City Council have come up with a strategy to hide from public view all their written communications about government business. With a bit of legal legerdemain, they claim to be able to evade state open-government laws, transforming their communications from public records into private correspondence.
How can they do that? Simple, according to their legal pleadings in a lawsuit in San Joaquin County Superior Court: When sending or receiving email, as long as the council members use their own computer (rather than a city-owned computer), and as long as they use their own email account (rather than an account set up by the city), their messages are not subject to the Public Records Act, no matter what the emails say or to whom they’re sent.
The Public Records Act defines a public record as “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency . . .” (emphasis added.) Email that is not composed on a Tracy computer or transmitted via a Tracy email account or server is not “prepared, owned, used or retained” by the city of Tracy, argue the council members.
This novel theory is advanced in a case involving Lawrence Livermore Laboratory, the subject of considerable public interest and media scrutiny in San Joaquin County. The Tracy Press requested, under the Public Records Act, copies of emails between city council members and the lab concerning a proposal to build a bio-agent weapons research facility. The newspaper filed suit after its request was denied on grounds the emails were not public records. (Full disclosure: CFAC filed a friend-of-the-court brief in this case in support of Tracy Press.)
You don’t have to be a First Amendment expert to see that Tracy’s theory, if accepted by the courts, would convert California’s Public Records Act into its opposite, an Official Secrecy Act. Elected officials and public employees would use official email accounts for proclamations, resolutions, press releases and other official drivel intended for public consumption, while switching to their personal yahoo accounts, insulated from public attention, for everything else--which is to say, all communications that are remotely substantive, important, sensitive, controversial or otherwise of interest.
Fortunately, the City Council’s creative interpretation of the Public Records Act is dead wrong.
Public officials, whether employees or elected officers, are agents of their respective governmental entities when they engage in public business. A city council member in Tracy, when composing and sending an email about Lawrence Livermore Lab--indisputably the “public’s business” for someone in that position--does so as an agent of Tracy. The linkage is not optional; it is inescapable given the subject of the email.
As agent of the city of Tracy, the council member’s composing and sending the email is imputed to Tracy, even if the council member believes or wishes otherwise. Tracy, in other words, is deemed to have “prepared, owned . . . [and] used” the email to the same extent as the council member--which means the email is a public record belonging to Tracy.
But even if the email could be withheld lawfully under the Public Records Act, it has to be turned over under Article I, § 3(b) of the California Constitution. Article I, § 3(b), better known as Proposition 59 (enacted in 2004), creates a new constitutional right to the “writings of public officials.” The right is independent of the Public Records Act or any other law. The right would exist even if the Legislature, in a paroxysm of secrecy, repealed all open-government statutes.
The analysis under Article I, § 3(b) is simple. Are the contested emails “writings”? The answer is clearly yes. Are council members “public officials”? Yes again. The emails therefore must be disclosed. How they were created and transmitted over the internet--the ownership of the computer and email account--are appropriately irrelevant under Article I, § 3(b).
The Tracy City Council has been clever in its attempt to immunize email from open-government mandates. But one wonders whether the residents of Tracy will share their representatives’ enthusiasm for cutting off public access to all the council members’ most important written communications. If not, here’s a suggestion for the folks in Tracy: Make the council members pay their own legal fees in this case. That will give them pause the next time they try to make themselves less accountable to voters by curtailing access to information voters have every right to see.
Peter Scheer, a lawyer and journalist, is executive director of CFAC
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Thursday, May 24, 2007
CFAC NEWS
Ed Code gives public school students stronger free speech protection than First Amendment, California appeals court affirms
By Anthony Sanchez
(CFAC) Public school students enjoy greater free speech protections from California’s Education code than under the First Amendment, a recent California court ruling confirms.
The ruling by the 1st District Court of Appeal in San Francisco focused on an anti-immigrant editorial published in the Novato High School’s newspaper in 2002 by then senior Andrew Smith. The editorial, which refers pejoratively to Mexican immigrants as drug dealers and robbers, offended many students and parents, prompting school officials to try to retrieve remaining copies of the newspaper.
The school claimed the editorial was not protected speech due to its disruption of “an orderly school environment.” However, the court found that Smith’s editorial was protected speech and that the school district chilled Smith’s speech rights by stating that his editorial “should not have been printed” and trying to recall the newspapers.
The case was decided under Education Code Section 48907, which provides public school students with greater protection for free speech than that provided by the federal First Amendment alone. First Amendment protections in a public school setting are prescribed by Tinker v. Des Moines School District, in which the Supreme Court held that students have the right to free expression unless that expression “materially disrupts classwork or involves substantial disorder or invasion of the rights of others . . .” . Ed Code Section 48907 provides similar rights, but uses a narrower exception than the Tinker decision. The California statute protects student expression unless it “so incites students as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school.”
It is the word “incite” in Ed Code Section 48907 that goes beyond the First Amendment and Tinker, according to the court ruling. The court held that “a school may not prohibit student speech simply because it presents controversial ideas and opponents of the speech are likely to cause disruption.”
The court continued: “Schools may only prohibit speech that incites disruption, either because it specifically calls for a disturbance or because the manner of expression (as opposed to the content of the ideas) is so inflammatory that the speech itself provokes the disturbance.”
As a result of Ed Code 48907, public schools in California may not prohibit controversial but noninflammatory speech merely because those who disagree with it are likely, even highly likely, to respond in a way that is disruptive of the school. In general, school officials may intervene only if the speaker desires, and calls for, such an outcome.
Anthony Sanchez, a senior at Stanford University, is a CFAC intern.
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