Tax-supported Media to Influence the Vote?

When do publicly funded information media become propaganda unlawfully supporting one side in an impending election? The Whittier Daily News reports that the Montebello City Council, holding a special meeting today, was set to consider the city’s subsidy of a nonprofit group’s newsletter that, three members told the reporter, “put a positive spin on the city.” Mayor Norma Lopez-Reid, who asked for the special meeting, and Councilman Bob Bagwell are up for re-election next Tuesday. The paper quotes Councilman Bill Molinari as saying, “You’d have to be very naive not to think there’s not a political connection between the timing of the publication and the election.”

But fellow Councilman Jeff Siccama said the city had been trying to get the latest edition of “Montebello Today” published for a year and a half, with the prepress work already paid for. The third incumbent not on the ballot, Rosie Vasquez, said she was bothered that the council had not seen the current edition before it went to press. “Taxpayer money is being used for this publication,” she said, “and we have an obligation to approve or not approve something paid for using the public’s money.” The newsletter is published by Montebello Tomorrow, Inc., founded in the 1970s to promote city activities, and currently supported entirely by city and redevelopment agency funds, with the publication’s cost coming to $12,000.

Molinari’s concern that the newsletter amounts to a campaign boost for Lopez-Reid and Bagwell raises a key issue now before the California Supreme Court in Vargas v. City of Salinas which, at the risk of oversimplification, boils down to this: May a local government agency spend public funds for public education/propaganda media whose impact favors a particular candidate or ballot measure in a coming election, so long as the messages do not actually come out and say “Vote for” (or against) him, her or it by name? The “express advocacy” standard that the City of Salinas and the League of California Cities, for example argue is the law has just that permissive effect—say anything you like but the taboo words. But the two taxpayer plaintiffs in the case, Angelina Morfin Vargas and Mark Dierolf, instead contend that the qualitative thrust and net effect of the agency’s media efforts are the factors that decide whether it has engaged in forbidden advocacy. The plaintiffs’ lawyer, Steven Andre, spells out their perspective in the current Monterey County Weekly.

In the leading case on this matter, Stanson v. Mott, the California Supreme Court in 1976 laid down the general principles that “at least in the absence of clear and explicit legislative authorization, a public agency may not expend public funds to promote partisan position in an election campaign,” adding that

Frequently, however, the line between unauthorized campaign expenditures and authorized informational activities is not so clear. Thus, while past cases indicate that public agencies may generally publish a “fair presentation of facts” relevant to an election matter, in a number of instances publicly financed brochures or newspaper advertisements which have purported to contain only relevant factual information, and which have refrained from exhorting voters to “Vote Yes,” have nevertheless been found to constitute improper campaign literature. . . In such cases, the determination of the propriety or impropriety of the expenditure depends upon a careful consideration of such factors as the style, tenor and timing of the publication; no hard and fast rule governs every case.

The style/tenor/timing analysis is the one argued as critical by the taxpayer plaintiffs; the city and its allies say that standard has been abandoned in subsequent legal developments which tolerate all but “express advocacy.”

Following the Fire beyond Fences

A confrontation between a journalist and a Blackwater official wasn’t prompted by weapons fire in Iraq, but by a wildfire near San Diego. Veteran freelance journalist Miriam Raftery, who accompanied a photographer shooting extensive fire coverage in San Diego County’s back country last week, got this Blackberry note early Saturday afternoon from Brian Bonfiglio, a vice president of Blackwater USA:

    Its been brought to my attention that in your own words you knowingly entered the
Kreutzkamp Ranch (referred to as Blackwater property) and did so without the property owners permission.
    If the information I received is inaccurate please let me know as soon as possible.
    As I am sure you are aware, even with press credentials and covering the Harris Fire, unless a property owner provides his authorization private citizens cannot, by law, enter property, especially posted "no trespassing" property.
    Please clear this up for me when time permits – I am certain there is more to this than what I was informed.
Thank you,

Raftery responded that evening:

Brian –
    In covering disasters within evacuation zones it is common practice for law enforcement or fire authorities to grant permission to media to takephotos. TV reports are filled with images this week of reporters standing on lawns, backyards, and even on charred rubble of homes in evacuated areas, clearly without owners’ permission.  There is no standard I’ve ever been advised of in 20+ years of newspaper reporting that requires such permission in a disaster situation, and clearly a wildfire is within that definition.
    As a former writer for the Union Tribune, which has legions of attorneys vetsuch matters, I can assure you that the UT has run many photos taken onprivate property without owner’s permission in evacuated areas during previous wildfires. 
    There was a fire truck stopped at the gate and a lot of charred debris as firefighters were dousing a hot spot close by the gate.  No "no trespassing" sign was visible but even if there had been, such would not pertain in a disaster where officials gave permission for media to visit, particularly since fire officials acknowledged our press passes and granted an interview on progress fighting the fire.
    Moreover the photographer and I did not enter any buildings or intrude beyond obtaining a vantage point to photograph the fire and burned areas with a telephoto lens to document the fire for newspapers, news websites and local list serves, keeping area residents informed of the fire’s path.

Bonfiglio then answered:

   The owners representative and attorney contacted me today. I will defer and send your POC information to them. To my understanding there was some looting that took place on the ranch and in the end it was clearly stated to me that under no circumstances is anyone allowed to enter onto anothers property unless permission is granted.

    I spoke with CALFIRE today about this and they said they would look into it but as an SOP they do not allow civilians to accompany them onto any property.
    At the request of the owners Rep I will be reaching out to the SO and Highway Patrol further, as well Chief Nissens office to determine what, if any, suppport / permission was provided by fire fighters for you to access property, but that permission was not granted by the owner.
    In speaking with the owners attorney it was disturbing to them that you found it appropriate to publish pictures that showed that you were clearly on private land that you were not authorized to be on.
    At the end of the day I will do whatever is requested of me by the property owner and his attorney. I have turned over emails from you stating that that you were on (blackwater property) when not authorized to be on.
    I am not at the front of this, but have made it clear to the SO and Highway Patrol that I have never granted permission to you to access the property.
R / Brian

He shortly thereafter added:

I received your initial email.
    As I am certain you can understand this is not a case of rubble or youstanding in someones yard.         You accessed a private onwers property at least a mile into his land based on your pictures and statement. As you can imagine you would not appreciate someone entering your property if you owned land similar to the current property owner.
    Again, I will do no more – no less than asked of me, but I was asked by the property owners attorney to provide any POC info I have for the new editor of the East County Californian since you write for them.
    Its certainly your choice, but based on what I know I think it very appropriate for you to draft a letter of appology to the property owner and to be cautious concerning what you publish.
    Its totally your call – not mine. I am just trying to be helpful.

R / Brian

She responded:

Brian –
    I never left the road and was clearly within view of firefighters at all times.  I showed a press pass and was waved in. Had anyone denied entry I would have honored that request. If you are suggesting I had anything to do with looting, I can assure you that won’t hold water either.  I brought relief supplies up with me and had witnesses who unloaded those few items in my car shortly after I left your site.  They could attest that I had nothing else, and I find your suggestion that a journalist would engage in looting to be extremely offensive. 
    This appears to be a blatant attempt at intimidation of the press and an effort to infringe 1st amendment rights to cover a breaking news story with pubic safety implications.  I would suggest that you not engage in legal harassment or threaten frivolous litigation.  The last time a major company attempted to intimidate me, National Writers Union provided legal support and obtained a settlement in my favor for a very large sum.  I have no wish for any legal entanglement, but will vigorously defend the rights of journalists to cover breaking news if pressed. 
    No judge in his or her right mind would rule that reporters or photographers may only cover wildfires in an evacuation zone with property owners’ permission.   

Bonfiglio’s final message, sent shortly after 9 that evening, said:

    For the record – I’m positive that taking photos is not the issue. Its trespassing on property that was still an active business and residence. (Jhat was confirmed in writing by CDF in writing. 
    Also, for the record, its my opinion that you were not looting (my opinion) but that you knew that you did not have permission to access the chicken ranch.
    To be honest – there is nothing to see, no secrets to find, but trespassing is trespassing and against the law.
    Let’s also be honest with each other that as a whole the east county californian editors (certainly your new boss) is tired of the Blackwater stories and I suspect will not stand behind trespassing on property that should clearly not be entered (so says CALFIRE). Your trespassing had nothing to do with journalism and everthing to do with providing pictures and text to anti- Blackwater opposition. But again, I could personally care less about pictures.   
    Do what you think is best, but I’m certain that there will be little support for trespassing to include from the
east county californian senior staff – Although I maybe wrong.
    Miriam, I am always available to talk with you and as I expressed to you the very first time you called, from what I was first told you can write balanced articles, so if there is any issue you want to discuss I am always open to your calls.
R / brian

Raftery’s comment to me in forwarding these messages for reaction was:

In this one they attempt to intimidate me by suggesting they will complain to my editor of bias, which is absurd. I posted the photos on more than one listserve that were all keeping the public informed about the progress of the fires, and actually the first to post them was a conservative-owned land use forum site; the photos also went to an East County progressive site that has been tracking the Blackwater issue and has many readers in the immediate vicinity of the fire, so clearly a compelling public safety reason to disseminate that news quickly.  Photos and a more detailed story were submitted to two East County newspapers.

The backstory to all this tension is that some local residents have recently been vocally resisting Blackwater USA’s attempt to get planning officials’ permission for a rural training center on its undeveloped property near the small East San Diego County community of Potrero,  just a few miles from the Mexican border.

So Who’s Right?

Who’s right on the trespass question?  Both—but the journalist is closer to the more practical answer. California law makes trespass either a criminal offense or the basis for a civil damages lawsuit or—depending on the facts—possibly both.  There are several varieties of the crime of trespass in the Penal Code, but the one most relevant here, Section 602.8, makes it an infraction with a first offense fine of $75 for “any person who without the written permission of the landowner, the owner’s agent, or the person in lawful possession of the land, willfully enters any lands . . . belonging to . . . another . . .”   But subdivision (c) of this section states that no such trespass is committed by “any person on the premises who is engaging in activities protected by the California or United States Constitution.” It’s not hard to see why journalists have not been prosecuted for trespass in California.

As for the civil action for damages, there must be actual injury of some kind—either to the land or in the form of physical or mental suffering of the owner or tenant—to make a trespass to real property a matter for litigation.  The only example I can find in the case law to date of a journalist’s civil liability for trespass was triggered by the broadcast of video shot in the sickroom of a dying man’s house; a TV crew, present in the home without the residents’ permission, had taped an unsuccessful resuscitation attempt by paramedics.  It was the later broadcast that caused the mental distress to the man’s widow (who had no idea until then that the TV crew had been in the home), but the court considered her suffering proximately caused by the trespass. This and a few other cases have created the clearest hard-and-fast rule for journalists concerning trespass and intrusion: never enter a home without the residents’ express permission, and always leave if and when they tell you to. 

But when it comes to undeveloped rural land, the question is not so much whether this or that entry amounts to a trespass (it may) but whether the result is the degree and kind of injury to the owner/tenant that makes going to court worthwhile.


Now Appearing Daily, More or Less

Thanks for your patience during my vacation break and thanks especially to Jim Ewert, legal counsel for the California Newspaper Publishers Association, for his help filling in with hotline calls.

From now on CalAware Weekly will come—to those who want it no more often than weekly—as a bundle or list of the previous week’s daily posts in the format you see here. Daily more or less; some days there may be occasion and opportunity for more than one post, other days may go by with neither occasion nor opportunity. The style will also be a bit more informal. If you would like to get notice of the new posts as they are added, use the “Subscribe in a reader” link to the right and follow the instructions appropriate to your Web service and preference.

Included with this launch message are the two posts from last week. Feel free to comment on either, or any future post, at the bottom of the item, or otherwise e-mail me your reactions at

Terry Francke

Bush Era Secrecy: Who Will Renounce It?

One of the Washington Post’s Deep Throat duo is warning that a President Hillary Clinton could be as hostile to transparency as the current administration—at least on matters touching her own White House experience and performance. Jon Wiener, blogging today for The Nation, reports that Clinton biographer and All the President’s Men co-author Carl Bernstein told an audience at the Nixon Library in Yorba Linda a few days ago that "Hillary’s fear of humiliation, her fear of secrets being revealed, absolutely permeates her life."  Adds Wiener:

At lunch before his talk, Bernstein emphasized Hillary’s continuing
obsession with secrecy. He told me he did not think Hillary would
repeal Bush’s Executive Order on Classification, the most restrictive
ever, which has outraged advocates of freedom of information in
Congress and the media. Bush’s order gives the president or any former
president the right to withhold the former president’s papers from the
public. . . .  But the Bush executive order on classification would have a special
appeal for Hillary as president, Bernstein said. "Do you think she
wants to open the papers of Bill’s presidency, which include all the
material on her role?" Asked about the legislation introduced by
Congressman Henry Waxman to repeal Bush’s classification order,
Bernstein was skeptical it would pass in the next congress: "Do you
think Democrats in Congress would demand repeal in the face of
Hillary’s opposition?"

This speculation seems supported by Michael Isikoff’s report in the October 29 Newsweek that a more recent biographer hit the wall in trying to do research at the new William J. Clinton Presidential Library, dubbed by some "Little Rock’s Fort Knox."  Author Sally Bedell Smith’s purpose was to document the First Lady’s actual influence on policy, says Isikoff, but she discovered that was a story the library would not help her with.

An archivist explained to Smith that the release of materials was
tightly controlled by the former president’s longtime confidant Bruce
Lindsey. Could she look at memos detailing the advice Hillary gave Bill
during debates over welfare reform? Smith asked. No, the archivist
said, those memos were "closed" to the public because they dealt with
"policy" matters. What about any records that show what advice Bill
gave his wife about her 2000 U.S. Senate campaign? Those, too, were
closed, the archivist said, because they dealt with "political"
matters. "He essentially told me I had no chance of getting anything,"
says Smith, whose book, For Love of Politics: Bill and Hillary
Clinton, the White House Years
, hits the bookstores this week.

The Isikoff piece notes that while Bill Clinton has testily denied responsibility for his library’s barriers and instead has blamed the current White House, documents obtained by Newsweek from the National Archives under the Freedom of Information Act show Clinton’s private instructions to Archives officials in 2002 to "consider" withholding a certain list of categories of records:

"confidential communications" involving foreign-policy issues,
"sensitive policy, personal or political" matters and "legal issues and
advice" including all matters involving investigations by Congress, the
Justice Department and independent counsels (a category that would
cover, among other matters, Whitewater, Monica Lewinsky and the pardons
of Marc Rich and others). Another restriction: "communications directly
between the President and First Lady, and their families, unless
routine in nature."

Like so many anti-disclosure policies, those giving former chief executives control over biographers’, historians’ or anyone else’s access to their official papers is nothing new to California.  A compliant legislature here amended the Public Records Act during the Deukmejian administration, giving outgoing governors full veto power over public access to their records lodged in the State Archives, for 50 years or the governor’s lifetime, whichever lasts longer (Government Code Section 6268).

Meanwhile the presidential campaign has so far found candidates giving little more than minimal lip service to reversing the Bush era of secrecy—only Barack Obama has given it any kind of emphasis. We are apparently to assume that Anyone But Bush has got to be more open.  But there are signs that some are becoming nervous about how little most candidates seem to care about reassuring the public of their transparency commitment.  Having deplored the Bush/Cheney expansion of presidential powers and unaccountability, are they nonetheless content to inherit them for their own purposes?

Why not start asking them?  Here’s one way.  And another.

The Vanity Veto

ImagesGovernor Arnold Schwarzenegger recently vetoed Assembly Bill 1393 (Leno-San Francisco), the measure sponsored by Californians Aware (CalAware) to make access to state government information far easier for those requesting it. AB 1393, as presented to the Governor, would have required every agency, board and commission in California’s executive branch that has a website to provide on its home page an HTML form allowing people to submit requests for documents that must be disclosed under the California Public Records Act (CPRA). It would also have called on Attorney General Jerry Brown to convene an expert study group to recommend which types of records should be routinely posted on state websites to spare citizens from having to ask for theim piecemeal. The bill reflected the results of a CalAware audit last year that found most state agencies failing the fundamentals of CPRA compliance—not producing clearly public records when asked (or at all) and meanwhile illegally demanding to know who was asking for them, for what purpose, etc.

When this depressing news was published the Governor issued an executive order that the appropriate agency staff be trained forthwith, but several months later a re-audit—requesting exactly the same information from the same agencies—found that the original passage rate of 37 percent had risen only to 70 percent. That was in August 2006. By the time AB 1393 reached his desk a year later you can imagine how the compliance rate would have eroded, owing to staff turnover and the normal clerical preoccupation with priorities other than providing the public with information on demand. So the Governor’s veto message—that the bill was unnecessary—implied that his one-time executive order of a year and a half earlier was all the correction that was needed; he had promptly acted and effectively solved whatever problem there was.

To suggest otherwise—and this is how the Governor must have interpreted AB 1393—was an affront to his vanity. He missed the chance to provide Californians with an inexpensive 21st century means of informing themselves about his administration, because to do so might concede that his executive penstroke had been inadequate to the reality of bureaucratic inertia. This is not the reaction of a strong man, but it is consistent with a career habit of checking one’s poses in the mirror.