Sunday, January 20, 2008

report

Acting globally and locally: From internet censorship in China to a TRO against Atherton, CA

By Peter Scheer

This is to update CFAC supporters on our latest efforts to stir up trouble on behalf of First Amendment freedoms. I’m pleased to report that CFAC has managed to create a whole lot of trouble, both globally and locally, in the last 2 months.

First globally: CFAC has initiated a proceeding that will attempt to use international trade laws to force the government of China to end its censorship of the internet. In a submission and presentation to the Office of the US Trade Representative, CFAC has petitioned for the filing of a complaint with the World Trade Organization, of which China became a member in 2001.

Our (concededly novel) theory: that China’s censorship of the internet, the most pervasive and systematic system of censorship in the world, violates China’s obligations under treaties it signed (the GATT, covering free trade in goods, and the GATS, covering services) in order to join the WTO. We contend China must end its censorship or risk limitations on its access to US markets.

Think of this as the biggest access-to-information and free speech case in history. If the Trade Representative agrees with CFAC’s petition and files a complaint with the WTO, and if the WTO rules against China--big “ifs,” to be sure--some 1.2 billion Chinese citizens will, for the first time, have unfiltered access to information about the outside world, via the internet.

CFAC is represented by the national law firm of King & Spalding, whose Washington, DC office specializes in trade matters, including several successful cases against China. CFAC is supported in this initiative by a consortium of organizations, including the UC Berkeley Graduate School of Journalism, the Center for Internet and Society at Stanford Law School, the National Freedom of Information Coalition, and the China Internet Project at UC Berkeley, among others.

Stay tuned. You’ll be hearing a lot more about this matter.

California cases

Don’t think for a minute that the China initiative has distracted us from battles closer to home. In the last month alone, CFAC has filed amicus briefs in crucial access cases in Orange County and San Mateo County; intervened successfully in a Hadley v. McCoy feud in San Diego; and even published (together with our partner, the California Newspaper Publishers’ Association) a comprehensive new legal guide, “The Right to Know: A Guide to Public Access and Media Law.”

--Orange County
In Calaware v. Orange Unified School District, CFAC came to the assistance of open-government organization Californians Aware, which had sued Orange Unified to contest the school board’s censure of a dissident board member for comments he made at a public meeting (as well as the board’s editing of the audio record of the meeting to delete the comments). The Superior Court not only rejected Calaware’s claims, but granted the school board’s motion to strike the case under California’s anti-SLAPP law. The result: Calaware, a small nonprofit, was ordered to pay the school board’s legal fees.

CFAC’s amicus brief, written by CFAC Board President James Chadwick and Board members Guylyn Cummins and Steve Barnett, urges the appeals court to reverse the judgment against Calaware because the anti-SLAPP law, we argue, can’t be used as a defense against suits alleging violations of California’s open-government laws: the Brown Act and the Public Records Act. We also argue that allowing the anti-SLAPP law to be used to cut short a First Amendment claim violates federal safeguards, applicable in state court as well as federal court, for consideration of alleged violations of free speech rights.

--San Diego
San Diego City Attorney Michael Aguirre doesn’t like the management at KPBS public television, and the folks at KPBS don’t much like Aguirre. That’s the nicest way to describe the long-running Hadley v. McCoy-style feud over Aquirre’s criticisms of the station’s local programming. Aguirre says KPBS, which receives state funds as an extension of the Cal State University system, doesn’t do enough local programming. Aguirre’s critics say his real beef is that he wants more programming that is favorable to him.

Last month Aguirre escalated the feud by having his office send KPBS public records requests demanding copies of internal documents discussing the station’s programming decisions. That step, in CFAC’s view, crossed the line between political squabbling (OK) and government interference with the editorial process (not OK).

Following the appearance of a news article mentioning our concerns, Aguirre called CFAC; he and I spoke at length about his public records requests. By the end of the conversation he was persuaded that the First Amendment issues were real, and he promised to rescind the PRA requests to the station. True to his word, Aguirre held a press conference that day and announced the withdrawal of the record requests, as described in this item from the San Diego Union Tribune.

--San Mateo
The town of Atherton’s former Finance Director was the subject of an investigation. Atherton received a CPRA request for a report on the investigation, which the town decided to release. That decision was communicated to the Finance Director, who promptly filed suit against Atherton to block disclosure of the report on grounds of privacy.

CFAC believes strongly that government agencies should not be subject to suit when they do the right thing by deciding to release a requested document. We filed an amicus brief in this case to make an argument that would not only permit disclosure of the Atherton report, but, if generally accepted, would effectively prevent future suits to stop government agencies from voluntarily releasing public records.

In a brief filed last week, CFAC argued that government agencies have rights of freedom of speech, and that the disclosure of a written document is an exercise of that right. Since release of a requested record is constitutionally-protected speech, any court-issued injunction against disclosure is an invalid “prior restraint” on expression.

At a hearing on Friday, the Superior Court for San Mateo County gave Atherton a green light to disclose the investigative report. Although the judge did not issue an opinion, we think our brief, written by James Chadwick, had an impact.

--CFAC Legal Guide

Finally, CFAC has started selling its authoritative, new legal guide, The Right to Know: A Guide to Public Access and Media Law.

The Right to Know combines the best features of CFAC’s “Legal Notebook” and CNPA’s “Reporter’s Handbook.” It is the best of both books . . . the best of all books . . . a must-have, must-read, one-stop law guide on access and First Amendment law for journalists, bloggers, lawyers, citizens groups, activists and public officials.

The Right to Know is an incredible bargain:

-$25 for CFAC and CNPA members (very cheap)
-$30 for nonmembers (cheap)
-Order your copy online or by calling 916-288-6009

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).

Purchasers of The Right to Know also receive:
--access online to all court decisions cited in book (full text)
--access to new legal developments and updates online

Order your copy today.  You’ll not only get a terrific legal resource, but you’ll help pay for all the important cases we do.
=====

Peter Scheer, a lawyer and journalist, is executive director of the California First Amendment Coalition.

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Wednesday, November 28, 2007

Commentary

Anonymous speech, although constitutionally protected, is mostly digital graffiti. Freedom of expression means taking responsibility for what you write.

By Peter Scheer

A Chinese blogger, defying a government censorship decree, publishes information about the crash of a military transport plane. Another blogger, an Egyptian, posts photos of the scarred body of a teenager who was tortured by Egyptian police.

Both bloggers are anonymous.

No one can doubt these speakers’ need to hide their identities. Their internet postings are in the venerable tradition of the Federalist Papers and other revolutionary pamphlets and manifestos whose authors, also anonymous, had reason to fear prosecution for their political views. It is precisely for this kind of expression that the First Amendment protects speech of both named and unnamed authors.

The right to speak anonymously, at least in the United States, is well established. Regrettably, however, the right is also widely abused.

The internet is crawling with anonymous communications. Like digital kudzu, they spread from spam email to message board postings to entire blogs and websites. For all but a few, there is no discernible need or reason for anonymity. Writers enjoy the freedom that comes with anonymity, forgetting their obligations to their audience. First Amendment protection for anonymous speech has become, on the internet, license to avoid having to take responsibility for what one writes.

The promiscuous use of anonymity breeds distrust. Readers react to anonymous online postings with the same skepticism that they have for newspaper articles that rely unnecessarily on unnamed sources. They wonder if the anonymous blogger is a paid shill, or has some other conflict of interest, just as they wonder if a newspaper’s anonymous source is objective or has an ax to grind. And if the use of anonymity is not explained or apparent from the context, readers will question a blogger’s good faith, just as they may wonder whether a newspaper’s anonymous source really exists.

And anonymity corrodes the conventions of civil discourse, giving vent to impulses that, for society’s sake, are perhaps best held in check. Viciously personal attacks, racist screeds and paranoid rants are commonplace on the anonymous internet. While such atavistic displays may provide an interesting laboratory for Freudian psychologists, they contribute nothing to debate on matters of public interest. If you’ve ever been on the receiving end of this invective, you know that it is impossible to reason with people who are screaming at you from behind a one-way mirror. The volume of their screaming only goes up.

There are lessons here for fledgling bloggers and other practitioners of Citizen Media, particularly blogs that offer news and opinion focused on particular communities (defined geographically). These online publications hold tremendous promise as competitors for local newspapers and as vehicles for self-expression by community residents who previously had no means, save the occasional letter-to-the-editor, to make their voices heard.

These blogs, however, will not be taken seriously if their authors persist in hiding their identity. Bloggers must take responsibility for what they write. For bloggers who publish in the relative security of the U.S. (compared to, say, China or Iran or Singapore), fear of reprisals, the most commonly cited justification for anonymity, is greatly exaggerated. When a blogger in California mentions the risk of reprisals, he is really talking about the discomfort of having to stand in a supermarket checkout line next to a city council member whom he has criticized in online writings.

Awkward, yes, but not a risk grave enough to justify publishing anonymously. Bloggers forget that free speech is never truly free. The awkwardness and discomfort that derives from speaking one’s mind, and thereby giving offense to one’s neighbors, is the modest price that one must pay for the exercise of First Amendment rights. It is a price that good mainstream journalists have paid for decades.

Similarly, there are lessons here for newspapers and other media outlets that, in their rush to convert sleepy websites into “Web 2.0” engines of economic growth, turn over large sections of their online real estate to readers who post anonymously. This shortcut to increased website traffic is a mistake. Newspapers should not allow anonymous postings to their website, any more than they allow anonymous contributions to their Op-Ed pages. Persons who post comments on a newspaper’s website should be required to give their name, unless they can show a good reason not to.

Most anonymous speech is just digital graffiti. Although it is protected from government regulation under the First Amendment, private publishers---whether bloggers or news media websites---have a duty to take responsibility for materials that they publish. In all but the most extreme cases, taking responsibility means identifying the author.
------
Peter Scheer, a lawyer and journalist, is CFAC’s executive director.

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Tuesday, November 06, 2007

Back Talk

Readers respond to article criticizing anonymous postings

Amen.

-Mark Baird Alameda CA
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The author reveals to us that his name is Peter Scheer and he works for something called the California First Amendment Coalition. However we do not know who financed and established the organization or whether the author represents a client, or who that client may be. I suspect he does in fact represent a client organization that he is reluctant to reveal because if readers knew the identity of his client we may somehow disapprove. It is odd that an organization that seems to defend the first ammendment would write an op ed piece that would radically weaken it.
-rcastevet
----

As part of the ‘attorney client privilege’ attorneys are allowed to represent clients anonymously and do not need to reveal who their clients may be. Society would be much better off if lawyers had to reveal the identies of their clients than if citizens had to reveal themselves in public forums in order to speak. Rather than restricting first ammendment rights on citizens, we should focus on limiting the attorney client privilege which is NOT protected by the constitution and which causes far more potential harm to society. Perhaps the attorney who wrote this peculiar op ed opinion could also write an opinion on his right as an attorney to represent anonymous clients, and perhaps we should ask ourselves why it is so crucial that lawyers dont have to tell us who is paying them?
-rcastevet
---

Rather than limiting my right to speak out anonymously as a citizen I would much rather limit the author’s right as an attorney to anonymously represent clients....
-rcastevet
----
Perhaps Mr. Scheer actually represents a large corporation who is in danger of being busted for some kind of reprehensible or illegal criminal behavior and it is in that corporation’s best interests to limit the first amendment right to free speech which gives polluters, thieves, murderers, investment bankers, mortgage brokers and mafia godfathers no end of grief.....
-rcastevet
----

There is a reason our founding fathers made the right to speak anonymously the very very very FIRST amendment. Get it Scheer? The FIRST amendment......Amendment NUMBER ONE for our free society. I greatly mistrust an attorney from something called the California First Amendment Coalition trying to convince me we have to LIMIT the rights his organization claims to ‘represent’. I guarantee the attorney right to anonymously represent gansters and criminals causes orders of magnitude more damage to society than our FIRST amendment, and that our FIRST amendment is under a constant barrage from criminals seeking to destroy us.....
-rcastevet

----
Quite a rant there rcastevet...four entries. Yet, I have never heard of an attorney representing an anonymous client. In any court proceeding, all parties must be identified publicly, unless such identification results in a danger to them or others, in which case the identity is made known only to the judge and attorneys in the case. A reasonable precaution, given that some of these gangsters, etc., you mention might actually be acting against the organizations of which they are members and require this protection from those same organizations. As for whether Mr. Scheer’s organization has some ulterior motive, that was not the subject of the piece. Mr. Scheer identified himself and his organization and we are all free to research both to find out what they are really about. He was not in the least bit anonymous about it.
-rcastevet
-----

vtxbay is certainly right about how the legal profession works. And I agree in part w/ the author about maintaining civil discourse. These comments on SFGATE articles contain many examples of NON civil discourse, and uninformed people who just like to see their opinions in print (or on screen) and will say just about anything. I don’t want to stifle anyone, and you can remain anonymous if you want, but I would appreciate it if people would only comment on topics they know about and can write a coherent comment. In fact, I think a lot of readers don’t bother to contribute because they don’t want the negative feedback that often is flung at them.
-mkeenan

----
Excuse me did you imply I don’t know what I’m talking about because five seconds on Google is all you illiterate blog morons need....[...Evidence. Attorney-Client Privilege. Attorney Privileged from Identifying Anonymous Clients Who Employed Him to Forward Sums in Payment of Past Taxes Believed Due, but Not under Investigation by Government Virginia Law Review, Vol. 47, No. 1 (Jan., 1961), pp. 126-132
-rcastevet

-----

I’m the author of the article on anonymous speech that you are discussing. racastevet’s comments are, I think, a good example of the kind of rants that are unleashed by excessive anonymity on the internet. If racastevet identifies him(her?)self, I’ll try to respond to his comments. But if he insists on hiding behind a pseudonym, I will ignore what he has to say, and would recommend that others reading these comments do the same.
--Peter Scheer, California First Amendment Coalition
-----

Anonymous blogging and comments are a double edged sword. It would be potential dangerous for my blog (http://ridenshoot.blogspot.com) to be tied to me or my home address. If I can’t blog anonymously my voice is stilled and I don’t wish to be silenced. Being a gun owner and shooting enthusiast is something many people have no problem being gun bigots about. Careers can be jeopardized. I’d be a target for thieves (and worse). I’ve already been the victim of vicious lies and allegations made to local authorities, resulting in visits from the police. Please feel free to drop by and comment, anonymously if you wish.
-Fodder
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Does the term “journalistic credibility” also apply to the San Francisco Chronicle [which published Scheer’s article as an Op-Ed] when it comes to blacklisting commenting readers, removing their comments, but using technology to trick them into believing they have not been blacklisted. It appears sfgate.com continues to display comments only to the blacklisted commenter, but not to others.
-jpc55416

----
Peter Scheer’s article attempts to apply analog logic to a digital enviroment, and his argument doesn’t work. We’re not all at some seminar, in the same physical place where we can see each other speak at a podium. There is no compelling reason to verify anyone’s identity in cyberspace, and it’s virtually impossible to do it anyway. Nothing matters except what people say out here. Bloggers hiding their identities will not be taken seriously? It doesn’t make any sense. If I signed this post “Joseph Williams, Psychology Dept., University of Washington” would you take it seriously simply because the name “looks” real? You could call UW and verify the existence of Prof. Williams, but how would you know he posted this? Send someone over there to ask him? A handle---whether it’s real or invented---identifies the poster, and that’s about all they’re good for. Anonymity is irrelevant. We are all automically “responsible” for what we write on the Internet. It’s pretty simple.
-hemingway_cat

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CFAC NEWS

2007 Open Government Legislative Roundup:  Some successes and some failures

By Nick Rahaim

The 2007 legislative session started with a host of promising bills that would have created more transparency and would have reversed recent judicial and Attorney General opinions permitting excessive secrecy.  There were some successes and some disappointments.  The major disappointment was the failure to overturn the 2006 state Supreme Court decision in Copley Press v. Superior Court, which effectively sealed all police disciplinary records. The major success was legislation creating more oversight and accountability for the UC Regents’ and CSU Trustees’ executive pay committees. 

Assemblyman Mark Leno (D-San Francisco) and Senator Gloria Romero (D-Santa Monica) introduced AB 1393 and SB 1019, respectively.  These bills attempted to overturn the Copley Press decision that closed police disciplinary records to the pubic.  With the police union’s full political weight against the bills, they never emerged from committee. The battle is not over, however. Both bills are likely to be considered again in the next legislative session.

Leland Yee (D-San Mateo) ushered SB 190, the Higher Education Governance Accountability Act, to Governor Schwarzenegger’s desk where it was signed into law on October 12.  The bill applies to committees and sub-committees of the UC Regents and the CSU Trustees that decide on compensation of high-level university officials.  The bill requires full disclosure of all salary proposals and allows for public comment before bringing a proposal to a final vote.  In 2006 Yee authored a similar bill (AB 775), which was killed in the Senate Appropriations Committee by Don Perata (D-Oakland).  Interestingly, Perata coauthored SB 190.

Another open government success was SB 690 by Senator Ron Calderon (D-Montebello). SB 690 allows district attorneys and local prosecutors to release police blotters and defendants’ “rap sheet” histories upon written request to those who will attest, under penalty of perjury, that the information will be used for a journalistic or scholarly purpose.  The law overrides an opinion by former Attorney General Bill Lockyer, which had pulled blotters and rap sheets from the public record.

Governor Schwarzenegger also signed into law SB 39, authored by Carole Migden (D-San Francisco).  The bill allows public access to information on children who die in the state’s care.  Previously, records on children who died under the care of the state were kept confidential.  SB 39 requires county welfare offices, in any case where there is reasonable suspicion of misconduct by the state, to release documents within five days of the death.  The records can include medical records and records on abuse and mistreatment of the child under state care.

SB 343, introduced by Senator Gloria Negrete-McLeod, (D-Montclair) amends the Brown Act to require legislative bodies to make available staff analyses of meeting agenda items at the same time as the agenda is released. Prior to this legislation these records were only available through a Public Records Act request.

Gov. Arnold Schwarzenegger vetoed AB 941, which would have closed off access to investigations of emergency medical technicians. The governor said of the bill, “…I am concerned that the bill would significantly limit public disclosure.”

For the second year in a row the Governor vetoed a bill that would have provided for a nonbinding administrative appeal in Public Records Act cases. AB 1393, authored by Mark Leno, arrived on Gov. Schwarzenegger’s desk significantly weakened, yet still unacceptable to the Governor.  The vetoed bill would have required state agencies to create a Public Information Center on their websites, and would have convened an advisory task force to set standards for the posting of pubic documents.  The original version of the bill also would have required the attorney general to review rejected CPRA requests and would have created fines for agencies that failed the comply with the CPRA. 

AB 1668, the third open government bill authored by Leno, was held under submission in late May 2007.  The bill would have required all state documents to be kept in an open document format.  Open document formats allow text, spreadsheet, and presentation documents to be fully functional in a variety of applications, whereas documents for the current standard, Microsoft Office, are typically only fully functional in Microsoft Office.  Advocates of the bill claimed it would reduce the costs of archiving electronic documents and would have improved access to public documents requested in an electronic format.

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Thursday, November 01, 2007

Awards

CFAC Names Six Award Winners, One Big Loser

CFAC, San Rafael, CA-- The late Chauncey Bailey, jailed videoblogger Josh Wolf, New America Media executive director Sandy Close, AP reporter Martha Mendoza, and legislators Gloria Romero and Mark Leno are among the recipients of awards given by the California First Amendment Coalition (CFAC) at the organization’s Free Speech and Open Government Assembly held at the Annenberg School for Communication in Los Angeles. 

The awards are given in recognition of an individual’s or organization’s courage and commitment to First Amendment principles.

Chauncey Bailey
The 2007 Bill Farr Award, given jointly by CFAC and the California Socierty of Newspaper Editors, was presented on Friday, Oct. 26, to the late Chauncey Bailey, editor of the Oakland Post and a veteran journalist, who was gunned down on an Oakland street August 2 while reporting on Your Black Muslim Bakery. Bailey was also honored last month by the Northern California chapter of the Society of Professional Journalists

Darkness Award / City of Glendora
CFAC also announced the 2007 winner of its Darkness Award, given to cities, agencies or individuals who stand against the goals of free speech and access to information. This year’s Darkness Award, presented last Friday, went to the City of Glendora, CA for its disregard of the California Public Records Act.  According to CFAC, Glendora city officials required the public to pay excessive copying fees, created a mandatory records request form, demanded explanations from requesters as to the purpose of their requests—all in violation of state law

Sandy Close
CFAC honored Sandy Close, executive director of New America Media, with the special Leadership Award for tireless work giving voice to ethnic media, immigrants and youth. CFAC said Close has been “fearless in introducing a number of innovations, among them: multilingual polling to bring the voices of ethnic audiences into national focus, youth media publications and broadcasts and a unique news service that provides content, analysis, opinions and voices from every sector of society.”

CFAC also awarded four Beacon Awards to individuals who have championed free speech and open government: Bob Suhr, Josh Wolf, Martha Medoza, and one award to both State Senator Gloria Romero and Assemblyman Mark Leno.

Bob Suhr
Bob Suhr, a businessman-turned-open government activist, was named for using his understanding of the California Public Records Act to unearth the “unvarnished and untold truth” about the cost of public employee retirement and health benefits in Santa Cruz County

Josh Wolf
Josh Wolf, another Beacon Award winner, made national headlines last year for being incarcerated the longest of any journalist in US history for refusing to release to federal prosecutors his unpublished video of a 2005 anarchist rally in San Francisco.  Wolf demonstrated “unwavering commitment to journalistic ethics and the need for a federal shield law,” CFAC said.

Martha Mendoza
Martha Mendoza, AP reporter and Pulitzer Prize winner, was honored for her news stories about government wrongdoing, including an article exposing rapes of young women by US military recruiters.

Gloria Romero and Mark Leno
CFAC gave a joint Beacon Award to State Senator Gloria Romero (Los Angeles) and Assemblyman Mark Leno (San Francisco) for their sponsorship of legislation to open up selected police disciplinary files to public view, to establish journalists’ right to interview California prisoners, to increase access to public records and to improve open meeting laws. 

CFAC is an award-winning, nonprofit public interest organization dedicated to advancing free speech, more open and accountable government, and public participation in civic affairs. CFAC’s activities include strategic litigation to enhance First Amendment rights for the largest number of citizens, legal consultations, educational programs, legislative oversight of bills affecting access to government and free speech, and public advocacy.

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Friday, September 21, 2007

COMMENTARY

In their handling of controversy surrounding Chemerinsky and Summers, UC’s leaders showed themselves unable or unwilling to defend academic freedom

By Peter Scheer

The best that can be said about the University of California’s leaders is that they are neutral in their spinelessness:  in the face of political pressure, they are quick to surrender the university’s academic freedom--its lifeblood—whether that pressure comes from the ideological right or the left.

From the right, UC-Irvine was criticized for its hiring of law professor Erwin Chemerinsky, a liberal, as the dean of its new law school. Chancellor Michael Drake, rather than resisting pressure from conservative quarters to politicize a key academic appointment, fired Chemerinsky last week.  (Later, apparently realizing that his action would do grave harm to the fledgling law school, Drake went hat-in-hand to Chemerinsky and publicly re-hired him.)

From the left, the UC Regents found themselves under assault for their invitation to Lawrence Summers, prominent economist, former president of Harvard University and US Treasury Secretary under Bill Clinton, to speak at a regents’ function in Sacramento this week.  Some 290 UC faculty members, clearly in need of remedial training in First Amendment principles, signed a petition condemning Summers as a “symbol” of “gender and racial prejudice” and insisting that his speaking engagement be cancelled. The regents, to their great discredit, gave in, withdrawing Summer’s invitation.

These incidents reveal a UC leadership that has clearly lost sight of its mission.  Building new campuses, enhancing the diversity of faculty and students, strengthening university finances, and the like: these are all means to an end. That end is not conflict-avoidance or consensus. It is academic excellence in service of —excuse the corniness—the pursuit of truth.

Fundamental to the pursuit of truth is academic freedom—the freedom to consider, and give voice to, all manner of ideas, especially those that are unpopular or outside the mainstream or even subversive. This freedom is fundamental not because all ideas are equally valid---they’re not---but because the validity of an idea can only be determined through free and open debate.

Under the First Amendment, the appropriate response to speech with which one disagrees is more speech, not less. Suppression of speech is always antithetical to First Amendment values.  It assumes, erroneously, that the censor is invariably right. Also, it doesn’t work: censorship concedes the moral high ground to the censored, which only increases the power and following of a banished idea.

These principles are so axiomatic that it’s hard to believe that the anti-Summers protest attracted more than a handful of faculty extremists.  It is frightening, frankly, to think that several hundred faculty apparently believe that, because they don’t like what Summers has said, or is alleged to have said, that it’s OK to censor him—to deprive him of the opportunity to speak to the regents, and to deprive the regents of the opportunity to hear him—no small loss given Summers’ expertise and unique perspective on issues like university finances, faculty tenure, and long-range planning.

What is it about Summers that so offends the UC faculty petitioners?  As president of Harvard, he offended minority faculty by reportedly criticizing the scholarship of African-American professor Cornell West (who later left to teach at Princeton.) And he offended women faculty by suggesting that innate differences between the sexes may be one explanation for why women are underrepresented in careers in mathematics, engineering and the sciences. Although he later apologized for this remark, it ignited a firestorm of faculty discontent that ultimately forced Summers to resign.

But these transgressions, which are highlighted in the petition to the UC regents, hardly seem egregious enough to account for the intensity of the resentment against Summers, at least among college faculty. (He was actually popular at Harvard among students and alumni.) That resentment may have more to do with Summers’ unwillingness to defer to the Harvard faculty, which saw him—no doubt correctly-- as a threat to their considerable power and privileges.  Viewed in that light, the UC protest is less about gender and race, and more about a special interest group—UC faculty--jockeying to protect its status.

Still, special interests alone can’t do great harm to a great university. They can make demands, but their impact is negligible if the persons entrusted with safeguarding the university’s commitment to academic freedom—the chancellors and the UC Regents—just say no. In the on-again, off-again appointment of Chemerinsky as law school dean, and the canceling of Summers’ speaking engagement, UC’s leaders’ reflex reaction was, instead, to avoid conflict at all costs.

While that impulse is understandable, some things are worth fighting for, principles of academic freedom among them. They must be actively defended, even at the cost of dissension and conflict. That, like it or not, is the UC leaders’ job.  Consider them on probation.

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Tuesday, September 04, 2007

COMMENTARY

Watershed CA Supreme Court decision is major win for government transparency. A stunning end to the media’s 20-year losing streak in high court access cases.

By Peter Scheer

America’s highest courts are justly criticized for avoiding hard issues. The judicial fetish for deciding cases on the narrowest possible grounds yields opinions so limited and unambitious in scope that they often raise more questions, and generate more legal disputes, than they resolve.

Exceptions are the rare court decisions that, by boldly staking out broad and enduring legal principles, sweep away uncertainty about what the law does and doesn’t require, providing much-needed guidance to lower courts and to government agencies. To the short list of such defining cases should now be added a recent California Supreme Court decision, IFPTE, Local 21 v.  Superior Court, that affirms the vital link between public access to information and democratic self-government.

In the IFPTE case the Contra Costa Times newspaper had requested records showing the salaries, by name, of all Oakland public employees making more than $100,000 a year. Although the city of Oakland had released this information in past years, it changed policy in the face of pressure from government employee unions (the IFPTE and the union representing police officers), forcing the newspaper to sue Oakland.

The Superior Court and the Appeals Court ruled in favor of the Times, ordering disclosure of the salary information. Despite these court victories, cities and counties across California continued, for the next three years, to refuse news organizations’ requests for employee salaries. They could do so because of confusion created by two older court decisions that, though distinguishable, condoned limits on release of employee salaries.

In the California Supreme Court the Oakland unions argued that public employee salary data are: Exempt from the disclosure requirements of the Public Records Act; rendered confidential by a separate law concerning police personnel files; and protected from disclosure by California’s constitutional right of privacy.

But the Supreme Court would hear none of it. In a decision by Chief Justice Ronald M. George, the Court said that “openness in government is essential to the functioning of a democracy.” Balancing the public interest in release of the salaries with employees’ interest in the privacy of their personal finances, the Court held that the public interest must prevail when the sought-after information relates to the functioning of government.

The Court drew a broad distinction between “private information that happens to be collected in the records of a public entity,” on one hand, and “information regarding an aspect of government operations, the disclosure of which contributes to the public’s .  .  . oversight of those operations,” on the other. As a general matter, the former may be withheld from the public domain, while information of the latter type must be disclosed.

Significantly, the Court could have---but did not---limit its holding to employees earning over $100,000. While the justices no doubt were impressed by evidence of abuses and mismanagement concentrated at the high end of the public pay scale, they were careful not to ascribe any legal significance to the compensation threshold.

Similarly, the Court could have---but did not---limit its holding to local governments, like Oakland, that have a history of disclosing their employees’ salaries, thus undermining workers’ claims to a “reasonable expectation” of privacy in their government compensation.

And the Court also could have left intact the two appellate decisions that had approved the withholding of employee salary data (Teamsters Local 856 v. Priceless; City of Los Angeles v. Superior Court). Although the cases were distinguishable in various ways, the Court made a point of discrediting their reasoning, thus relegating them to the dustbin of superseded caselaw.

Not content with these incremental steps, Chief Justice George clearly wished to preempt years of further litigation over access to employee salaries. Perhaps he has grown impatient with the self-serving and overwrought claims of government unions. Perhaps he was offended by evidence of nepotism and the gaming of overtime rules, made possible by excessive secrecy. Whatever. The Court in IFPTE (and in a related case, Commission on Peace Officer Training v. Superior Court, involving the release of police officers’ names, employing departments and hire dates) was determined to tie up as many loose ends as possible---and it succeeded.

The IFPTE decision is a vindication of strategic litigation in public access cases. In requesting salaries only for employees with pay stubs in six-figures, San Francisco attorney Karl Olson, who represented the newspaper, gambled that state court judges would have little sympathy for police detectives making more money than they. The judges didn’t have to say what they almost certainly were thinking: “If my salary is a matter of public record, why should overpaid bureaucrats and police officers---some of whom make much more than I do---be allowed to keep theirs secret?” If the newspaper instead had requested all employee salaries, the court hearings would have focused unhelpfully on the privacy interests of entry level custodial workers.

The big loser in the IFPTE case are government unions. Not only did they suffer a resounding legal defeat, but they may also end up having to pay Contra Costa Times’ legal fees (or at least a substantial part of them.) Normally, successful litigants in public access cases receive payment for their attorney’s fees from the government entity they sued—Oakland in the IFPTE case. Oakland, however, wanted to turn over the contested salaries at the end of the proceedings in Superior Court. Release of the records at that stage was blocked by the unions, which, having intervened in the case, proceeded to drag it out through two costly appeals over three years. Clearly, the Times’ attorney’s fees related to those two appeals should be the responsibility of the unions.

For more than two decades, the media have been serial losers in access cases in the California Supreme Court. The watershed IFPTE decision marks a welcome and stunning end to that streak.

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Peter Scheer, a lawyer and journalist, is executive director of the California First Amendment Coalition. http://www.cfac.org

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