Public Forum Law Week in Review: 1/25/08

Images11(CalAware Weekly comprises this plus the previous three posts)

Open Government

Windows on e-mail        An article in the current Governing magazine, “Delete at Your Own Risk,” examines the phenomenon that

Millions of state and local employees in jurisdictions all over the country correspond by e-mail every day without giving much thought to what should happen to the product. They may come to regret that behavior. Not only are records, and history, being lost, but many government lawsuits now turn on what is buried in old e-mail messages. 

Meanwhile the City of Palo Alto posts on its website e-mail sent to the city council concerning pending agenda items.

A Thaw in Bush Administration Secrecy?     The Washington Post seems to think so. But it says much of the recent outside pressure to restore transparency is to keep Bush’s successors from exploiting the anti-disclosure policies his people instituted. It quotes Steven Aftergood, who heads the project on government secrecy at the Federation of American Scientists: "Once a precedent is set and an administration not sufficiently rebuked, this kind of secrecy becomes a permanent option.” Meanwhile reports suggest that the Administration is already moving to rewrite an important provision of the new Freedom of Information Act amendments.

Free Speech

Taxpayer Witness Ousted from Capitol        The Foundation for Taxpayer & Consumer Rights reports that a witness whom it had arranged to come from Massachusetts to testify against mandatory health insurance legislation not only saw the hearing he planned to appear in canceled, but was banished from the Capitol rotunda when attempting to give an impromptu news conference. The order reportedly came from Assembly Speaker Fabian Núñez, sponsor of the insurance bill.

March 7 Student Speech Forum         From wearing black armbands in protest of the Vietnam War to displaying a "Bong Hits 4 Jesus" banner, generations of American students have tested the scope of First Amendment free-speech protections. These rights will be the focus of a daylong symposium on Friday, March 7, "From the Schoolhouse Gate to the Courthouse Steps," sponsored by the UC Davis Law Review. Speakers will include Erwin Chemerinsky, founding dean (despite his own liberal speech reputation) of UC Irvine’s new Donald Bren School of Law; Kenneth Starr, dean of the Pepperdine University School of Law; and eight others. More information here.

Renters’ Sign Rights Declared        The Davis Enterprise reports that the city council has passed an ordinance regarding political sign regulation that effectively guarantees a renter’s right to speech free of landlord control. Renters now have the right to post signs in support of their preferred candidates in upcoming elections, including the February 5 presidential primary as well as the June 3 city council elections.

CSU’s Civility Rules Revisited    The San Diego Union-Triune reports that California State University trustees would consider a revision to a section of the student conduct code that includes an expectation that students be “civil.” The change would establish that disciplinary action for “uncivil” expression is not allowed. A federal district court, in a case involving punishment of student demonstrators who stomped on Hamas and Hezbollah flags bearing the Arabic word “Allah,” recently ruled that the term “uncivil” is too broad to be a basis for discipline at public colleges and universities.

Open Meetings

Unlawful Spontaneity, Incident 1       District Attorney Steve Cooley’s office has concluded that the seven-member Los Angeles Airport Commission violated the Ralph M. Brown Act on December 17 by extensively discussing a matter not on its meeting agenda: a Government Accountability Office report that cited a "high risk" of close calls between aircraft maneuvering on the ground at the nation’s airports, including LAX. Cooley’s Public Integrity Unit will take no further action on the matter, since its investigations and published conclusions and admonitions (around 30 last year) achieve “a 99.9 percent compliance rate through some sort of remediation," according to Deputy D.A. Jennifer Lentz Snyder.

Unlawful Spontaneity, Incident 2        Ventura County District Attorney Gregory D. Totten’s office has concluded that the Conejo Valley Unified School District Board violated the Brown Act eight months ago when, with no notice on the meeting agenda and no opportunity for public comment provided, four of the five trustees voted to censure the fifth for allegedly contacting school employees and demanding information in a manner suggesting he had some personal authority concerning school closures.  Trustee Mike Dunn is now demanding a public apology from his colleagues.

Questioned Spontaneity        The Orange County Register reports that Capistrano Unified School District officials will ask the school board next week to rescind its December vote on certain construction projects for a newly opened high school after a parents group already targeting two of the trustees for recall alleged the vote violated the Ralph M. Brown Act by approving contracts not listed on the meeting agenda. The four accused of violating the law avoided a Brown Act criminal prosecution last October by publicly committing themselves “to cease such violations in the future."

Getting to Know You    The Desert Dispatch reports that a consulting firm hired last October by the City of Barstow, when it treated the council to a private, out-of-town dinner a month earlier, discussed no business that would have required the council to announce the event as a special meeting and open it to the public.  The redevelopment director was also present, but not the city attorney, who nonetheless seemed to defend the dinner as a “purely social” occasion exempt from the Ralph M. Brown Act.

Closed Session on Letter Approval Challenged    The Orange County Register reports that the Anaheim City Council may have violated the Brown Act by discussing and approving, in a closed session listed as dealing with litigation, letters sent to the Orange County Water District objecting to its plans to use eminent domain to buy the site of a closed Boeing plant for a water percolation basin, instead of a new business center, as the council prefers.

Closed Session on Salary Approval Challenged    The Santa Cruz Sentinel reports that the Pajaro Valley Unified School District Board decided to re-do (publicly) a decision reached in closed session January 2 to outline its superintendent search and set a $180,000 salary offer to be advertised along with the job.

Free Press

Columnist: No Petty Punishment     A columnist argues against requiring a competing newspaper uniquely to submit inquiries to city staff and council in writing as an instance of unconstitutional discrimination.  The City of Temecula has since dropped the proposal.

Public Information

What’s the Skinny on Your ZIP?
       Or on any other, for that matter?  Get a quick statistical profile on the single/married/divorced ratio, age, income bracket, educational attainment and other characteristics of your own or other areas pinpointed by ZIP code, based on the 2000 census, at ZIPskinny.com.

What’s the Skinny on Your School?    Or on any other, for that matter?  Get a quick statistical profile on the resources and performance of your local schools or any others in the state from two sources: the California SCHOOLFINDER, an offering of the State Department of Education that allows side-by-side comparisons, and a similar statistical set offered by the department as the School Accountability Report Card, a copy of which every school with a website is supposed to post there also.  The first site, with higher-end design and the Governor’s stamp all over it, is in beta phase, and so far allows searching by anything other than school name only with the Microsoft Internet Explorer browser and therefore not, for example, by Mac users.

More Disclosures on Substance-abusing Doctors     The San Francisco Chronicle reports that state physician-licensing officials are saying that California patients could soon find it easier to learn if  doctors are facing discipline over accusations they practiced while under the influence of drugs or alcohol.

More Disclosures of Gifts to Officials     The Los Angeles Times reports that the Fair Political Practices Commission, California’s political watchdog agency, is drafting tougher disclosure rules for gifts accepted by elected officials and could ban many of them altogether for statewide office-holders.

Public Records Released Disclose . . .?
    • allegations that Redding’s former assistant city manager who resigned in September after admitting to an affair at City Hall had earlier lied to investigators about the indiscretion and told others involved to destroy evidence.
    • that San Diego City Council president Scott Peters, compared with the water use of the average city resident of 125,644 gallons in 2007, consumed 1,027,752 gallons.
     • that Monterey County paid at least $435,000 for attorneys it hired to help with federal voting-rights lawsuits over two controversial land-use ballot measures that eventually went before voters last June.  But the Open Monterey Project, which sought this and other lawsuit spending records, is maintaining its demand before the California Court of Appeal, hoping to settle a legal point resolved against it last summer; a superior court judge agreed with the county that the California Public Records Act does not require disclosure of how much a pending case is costing a public agency until the litigation is over.

Slamming the Door on Real Debate

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The San Francisco Chronicle has run a thoughtful piece examining the ability of broadcast (or cable) network debate hosts to set what may be arbitrary standards on which candidates get access to their forums, and even then at the last minute to change the standards to the detriment of previously qualifying contenders.  The incident prompting the Chronicle’s look at what some people think is an undue power in the media to control the public’s access to the full spectrum of its electoral options was prompted by a decision of the Nevada Supreme Court concluding that a lower court judge had no authority to prevent MSNBC from excluding Representative Dennis Kucinich from his previous entitlement to join its debating table prior to the Nevada caucuses. 

What galled Kucinich and his supporters in particular was that so long as New Mexico Governor Bill Richardson was still in the race, MSNBC had drawn the line at the top four preferences in a national poll, which would have meant Richardson on the panel with Clinton, Obama and Edwards.  But when Richardson announced his withdrawal from the race, MSNBC changed the criteria, admitting only the top three and shutting out the next-in-line Kucinich.

Kucinich himself has today announced his withdrawal from the race.

Those commenting to the Chronicle (including me) seemed to agree that while the incident may lead the public—and not necessarily just Kucinich supporters—to trust the role of the media in politics even less, the court was probably legally correct in deciding that a candidate’s unfairness claim was to be resolved, if at all, by the Federal Communications Commission, and that MSNBC’s breach of promise was simply that, not a breach of contract amenable to court remedies.

Kucinich’s plight nonetheless lends fresh relevance to two proposals that have yet to get much respect from anyone with the power to do anything about them.  Both proposals would tend to give less well known and underfinanced bidders for national office a better chance to get their faces, qualifications and positions before the public in a way not doomed to marginality by those with big positive name recognition, big war chests or both.

The first scheme would simply re-order the state primaries into four or more progressively bigger population arenas, so relatively lesser known and modestly financed candidates could establish their relative viability early, reaching smaller populations without having to spend huge sums from the word go.  As described by FairVote.org,  one variant of  this idea,

(t)he Graduated Random Presidential Primary System, or The American Plan (sometimes known as the California Plan), is designed to begin with contests in small-population states, where candidates do not need tens of millions of dollars in order to compete. A wide field of presidential hopefuls will be competitive in the early going. A "minor candidate’s" surprise successes in the early rounds, based more on the merit of the message than on massive amounts of money, will tend to attract money from larger numbers of small contributors for the campaign to spend in later rounds of primaries.
    Thus there should be more longevity of candidacy, and more credible challengers to the "front-runners." However, as the campaign proceeds, the aggregate value of contested states becomes successively larger, requiring the expenditure of larger amounts of money in order to campaign effectively. A gradual weeding-out process occurs, as less-successful candidates drop out of the race.
    The goal is for the process to produce a clear winner in the end, but only after all voices have had a chance to be heard.

The other idea is (or orginally was) to attack three related evils at once: the often prohibitive expense of buying broadcast ad time in large population states, the widespread if not universal failure of local broadcasters in particular to do much political reporting during the campaigns, and the amount of elected officials need to devote to fundraising, even if the process is not tainted by improper influence.

The most recent, scaled-back effort in this regard is the Fair Elections Now Act, introduced last year as S. 936 by co-authors Richard Durbin (D-IL), Arlen Specter (R-PA), Russell Feingold (D-WI) and Barack Obama (D-IL). This bill is a more modest third try after two stillborn earlier attempts. The immediate predecessor, S. 1497 of 2003, the Our Democracy, Our Airwaves Act, was introduced by co-author Senators John McCain of Arizona, Jon Corzine of New Jersey, Durbin and Feigold.  That measure was a replate of a similarly DOA bill by three of the same authors in 2002. 

The Fair Elections Now Act no longer has McCain’s name on it, and has trimmed its scope to be a kind of public financing (through advertising vouchers) approach confined to Senate races only.  The more ambitious predecessors would have controlled how much broadcasters could charge for campaign spots and would have required them, in order to preserve their broadcast licenses, to dedicate a minimum amount of public service time to campaign reporting.

Confining the major thrust of the bill to public financing may be relatively desirable but is insufficient. PublicCampaign.org says,

This voluntary alternative to traditional privately financed campaigns would free candidates from the incessant, time-consuming money chase that has tainted public perceptions of elected officials and fostered abuses that undermine our democracy. Candidates could instead devote their time and energy to talking with their constituents about the issues that are important to them.

But look where public financing has got Jon Edwards for all his liberated time and energy to personally address voters, when confronting the enormous media-buying warchests of his competitors. Before deciding that it’s too much to ask that broadcasters earn their property-like possession of the public airwaves rather than simply sell it back to the public, it might be interesting to hear what Representative Kucinich might have said had he been given a chance in Nevada . . .

BILL MOYERS: . . . (Y)ou have had less time in the debates and less news coverage than almost any of the other candidates.
DENNIS KUCINICH: That’s true. But you know what?
BILL MOYERS: And what’s your explanation for that?
DENNIS KUCINICH: Well, I think part of it is the media’s attempt to be able to control an agenda that doesn’t upset the status quo.

*******

BILL MOYERS: What rationale did ABC give you for not including you in Saturday night’s debate (before the New Hampshire primary)?
DENNIS KUCINICH: Whatever their criteria was, they have no right to make the decision for the people of New Hampshire prior to the election being held. They have no right. As licensees, you know, the airwaves belong to the public, lest we forget. They don’t belong to ABC. Disney, which owns ABC, has had executives contributing to some of the candidates in this race. It’s a very serious matter here.
BILL MOYERS: But the editors of ABC say that, well, at some point, you know, as I do with this broadcast, they have to start making choices. And they have to start applying certain possibilities to the candidates.
DENNIS KUCINICH: Well, you know what, Bill? How can you have a debate if you don’t have a voice that challenges all the others?

It’s no accident that the “kinetics,” as the military would put it, among the non-Kucinich Democrats has settled on reciprocal alleged distortions of one another’s accomplishments, biographies and campaign utterances.  In terms of substantive principles and goals there is not that much to distinguish among them.  Neither they nor their journalistic inquisitors seem that enthusiastic about real debates posing real alternatives.  We may not agree with all or even most of Kucinich’s ideas, but it’s pretty clear that if the Democrats most frequently espousing “change” took the notion seriously, there’d be room for him at the table.

Surprise, Dude! You're Now a Gay Pinup

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The Orange County Register recently disclosed that poolside swimsuit photos of high school water polo athletes—all male, and mostly minors—have been posted without their knowledge on a number of gay porn sites—that is the phrasing used by the Register, although its failure to identify the sites leaves readers to take its word for the report that they contain graphic sexual language and images otherwise. 

The principal reaction to this disclosure is reportedly outrage from the players, their parents, and youth water polo fans generally.  Law enforcement officials are investigating whether a crime has occurred; interestingly, a dispatcher with the UC Irvine campus police department suspected of involvement has been placed on paid leave pending a probe of his role, if any.  A state legislator says the question of First Amendment protection for such activity is being researched by staff of the Assembly Public Safety Committee.  Meanwhile coaches involved are talking about closing team practices and meets to all but students, parents and credentialed sports photographers.

A prediction: Since taking photos of people in public without their knowledge or consent—even minors in swimsuits—is not normally criminal conduct (“upskirt” shots are outlawed by California Penal Code §647(k)(2))—it will be hard to criminalize such photography or the posting of its images, except to the extent the posted images are cropped to focus on the genitalia, which concentration can be an element of prosecutable child pornography. 

But there is a tort cause of action called false light in the public eye that might be used in a civil lawsuit for damages by a person whose photo was posted in a context implying his (or her) knowing and willing appearance in a highly eroticized context—especially when leading to the plaintiff’s personal humiliation, embarrassment and shock.  A case summarized by the Florida State Bar makes the point.

In Braun v. Flynt, 726 F.2d 245 (5th Cir.), cert. denied, 469 U.S. 883 (1984), plaintiff sued Chic, a hard-core men’s pornographic magazine, for false light invasion of privacy. Plaintiff was an amusement park employee who performed a novelty act with Ralph, the Diving Pig. The amusement park sold a postcard depicting Ralph diving toward the plaintiff, who was shown in the pool extending a bottle to the pig. Chic had obtained the consent of the amusement park’s management to use of the photograph by misrepresenting the true nature of the magazine. Plaintiff successfully contended that the ordinary reader automatically would form an unfavorable opinion about the character of a woman whose picture appeared in Chic. Even if, as Chic contended, no reader would assume the plaintiff to be unchaste or promiscuous on the basis of her picture’s publication, the court noted that the jury could have found that the publication of the picture implied the plaintiff’s consent to the publication or her approval of the opinions expressed in Chic. In affirming the liability verdict against the magazine, the court noted that either finding would support the verdict that the publication placed the plaintiff in a false light highly offensive to a reasonable person. Further, the appellate court found the trial court correct in admitting the entire magazine into evidence rather than just the photograph so that the jury could be placed in the position of the ordinary reader in evaluating whether the publication placed the plaintiff in "false light."

In other words, while I have to accept the risk of being photographed wearing (or not) a particular garment in public, I also have the right to object if, without my knowledge and consent, that photo is published in a context that implies something so false and demeaning about my character that I, like most people, would suffer deep humiliation as a consequence.

Deliberative Process Exposed?

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A lawsuit filed by a cardroom against the City of San Jose is making the first frontal and focused attack on the deliberative process privilege, an increasingly argued justification for withholding government records in California. The plaintiff in Sutter’s Place Inc. v. Superior Court contended in oral argument before Court of Appeal for the Sixth District last week that use of the privilege was entirely undermined by passage of Proposition 59 of 2004. 

That statewide ballot measure, passed by an 83.4 percent approval of the electorate:
    • added open government—specifically, access to meetings of government bodies and records of public agencies and officials—as a fundamental right of Californians provided by the state constitution;
    • declared that notwithstanding this right, all existing limits on access found in statutes or the constitution would remain in place—but must be narrowly interpreted;
    • declared that any new laws limiting access must be based on findings as to their purpose and the need for the limitation; and
    • exempted meetings and records of the Legislature from any of these access rights.

The deliberative process privilege has, for the past decade and a half, been asserted by state and local agencies as a basis for keeping secret advice or other communications received or recorded by public officials in the process leading up to policy decisions.  The rationale is that if consultation among officials or even with private citizens is exposed to public scrutiny, candid consideration of policy options will be chilled and the quality of decision-making will suffer. 

The privilege, originating in common law principles applied by federal courts in limiting access to records under the Freedom of Information Act, was held by the California Supreme Court in Times Mirror Co. v. Superior Court (State of California) (1991) 53 Cal.3d 1325 to present a public interest in nondisclosure which, under the “balancing test” provided by the California Public Records Act, outweighed the public’s interest in knowing who had met with Governor George Deukmejian over a five-year period.  Public knowledge of that information, disclosed in appointment calendars sought by the Los Angeles Times, would tend to discourage citizens from contacting the Governor and dry up that stream of input from the public, the court reasoned.

(The preposterousness of this notion—that people with enough influence to gain a personal meeting with the Governor are generally shy about having that fact known—did not deter the high court’s majority (all Deukmejian appointees) from announcing it as self-evident, nor did the majority’s likewise conspicuous exercise in conjecture that to know who met with the Governor would disclose his thinking about this or that issue, or indeed that public knowledge of his thoughts would be contrary to public policy.  If this crippling of executive decision-making is real, that risk did not occur to in a recent U.S. District Court decision ordering the Secret Service to disclose White House visitor logs. Judge Royce C. Lamberth observed, “Knowledge of these visitors would not disclose presidential communications or shine a light on the president’s or vice president’s policy deliberations.”)

In this state the privilege has since been cited and upheld in California Public Records Act cases as justifying the withholding of information about those seeking the governor’s interim appointments to vacancies on boards of supervisors and even of information showing the phone numbers to which city council members placed official calls, or from which they received calls on official business.

The current Sutter’s Place litigation deals with the privilege in the discovery rather than the California Public Records Act context, but its thrust could if successful remove deliberative process as an exemption basis under that statute as well.  At issue is a major gambling club’s allegation that the city, which in 1999 encouraged it to relocate and vastly expand in order to increase its taxable revenue, has under a new mayor’s anti-gambling policy imposed limits on its operations calculated to shut it down entirely.  The card club has sought a number of city memos and other documents to illuminate that question, and the city has steadfastly cited the privilege in refusing to disclose them.

The card club’s central argument at this point: “In voting to pass Prop. 59, California voters intended to change the law to allow the public to obtain information about the motives of local agency officials in their decision-making . . . ”

Public Forum Law Week in Review: 1/7/08

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Open Government

FOIA Processes Improved—Not Substance     President Bush has signed, without comment, the long-awaited bill aimed at improving processes for assuring compliance with the federal Freedom of Information Act.  But as was quickly noted, a provision authored by Rep. Henry Waxman (D-Los Angeles)—that would have presumed access unless the government could show not only an applicable exemption but a good reason to apply it—was dropped before passage.

CFAC’s Chinese Trade Track    The California First Amendment Coalition is seeing to weaken or end China’s censorship of the Internet by asking the U.S. Government to complain about it as a violation of commercial fairness rules set by the World Trade Organization.   

Whistleblowing? ??

New Shield for Doctors    California hospitals’ medical staff are getting new protection from retaliation for filing formal complaints against health facilities about substandard treatment or conditions. Doctors and hospitals reportedly disagree about whether this change to the state’s health care whistleblower law will interfere with peer review.

Open Meetings

Settlement Called Unsettling    A Vista judge is allowing a lawsuit to proceed challenging the Mira Costa Community College District’s $1.6 million departure “settlement” last summer with its former president, Victoria Muñoz Richart.  Plaintiff Leon Page, a local attorney who says he’s thinking of running for a seat on the district board, contends the agreement was excessive and needless, amounted to an illegal gift of public funds and also violated the Brown Act because the public was given no advance notice of its eyebrow-lifting terms. They provide—beyond a buyout for the 18 months remaining on her contract—$650,000 in unspecified damages; attorney fees; health benefits for Richart and her husband to age 65; and Medicare supplemental insurance for 10 more years to age 75 for both. A newspaper columnist calls Page the Hero of the Year as a gadfly, and notes the unusual “olive branch” he’s extending the ex-president as a real settlement of the settlement challenge.

Unscheduled Discussion        The seven-member Los Angeles Airport Commission is the subject of a district attorney’s investigation into whether it breached the Ralph M. Brown Act on December 17 by discussing a matter not on its meeting agenda: a Government Accountability Office report that cited a "high risk" of close calls between aircraft maneuvering on the ground at the nation’s airports, including LAX.

Open Courts

“It’s Our Policy”    Last year CalAware auditors found a variety of experiences at local police and sheriff’s departments suggesting that many (not all, but many) records clerks were either unfamiliar with the California Public Records Act as applicable to their agencies, or in a few cases were making it up as they went along.  Court clerks may be no better, if this anecdote is an example.

Free Press

Think Move On    After Apple Computer sued or subpoenaed several websites publishing rumors and facts about its new product plans in 2005, seeking to learn who in its ranks was leaking such jealously guarded information, the California Court of Appeal ruled that the website proprietors were protected as journalists under the state’s constitution from having to divulge their sources.  Apple has now settled with one of the sites, Think Secret, whose prompt anti-SLAPP motion against its trade secret infringement case kept the company from proceeding in court.  A key term of the settlement is that Think Secret will shut down.  But this is not a victory for Apple nor a defeat for a plucky little news site, says the latter’s lawyer.

A Literal Marketplace for Ideas

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The California Supreme Court’s astonishingly generous gift to free speech interests, filed Christmas eve, upheld the right of a labor union to enter a shopping mall and single out customers of one of the mall’s stores for  leafleting, and has even wider implications for other speech in malls. Fashion Valley Mall LLC v. National Labor Relations Board is, if viewed narrowly as a union case, entirely consistent with the court’s jurisprudence of more than 40 years.

In 1964, 15 years before the high court first decided, in the well-known case of Robins v. Pruneyard Shopping Center, 23 Cal.3d 899 that advocacy on issues unrelated to a mall or its tenants (e.g., Israel and U.N. charges of Zionism) could not, under California’s constitutional protection for speech, be excluded from a main street-scale mall altogether, it held that union picketing against a tenant merchant could not be excluded from a shopping center. Schwartz-Torrance Investment Corp. v. Bakery & Confectionery Workers’ Union, 61 Cal.2d 766.  The rationale was actually best put in a U.S. Supreme Court case reaching the same position four years later:

Business enterprises located in downtown areas would be
subject to on-the-spot public criticism for their practices, but businesses situated in the suburbs could largely immunize themselves from similar criticism by creating a cordon sanitaire of parking lots around their stores.  Neither precedent nor  policy compels a result so at variance with the goal of free expression and communication that is the heart of the First Amendment.

Food Employees v. Logan Plaza (1968) 391 U.S. 308, 324.

But the majority in Fashion Valley Mall—a bare majority at 4-3— did not narrowly confine its decision to unions picketing or otherwise focusing attention on custormerss of particular merchants.  What it concluded was:

A shopping mall is a public forum in which persons may reasonably exercise their right to free speech guaranteed by article I, section 2 of the California Constitution.  Shopping malls may enact and enforce reasonable regulations of the time, place and manner of such free expression to assure that these activities do not interfere with the normal business operations of the mall, but they may not prohibit certain types of speech based upon its content, such as prohibiting speech that urges a boycott of one or more of the stores in the mall.

(Emphsis added). The majority reached this broad conclusion by applying what courts have come to call “strict scrutiny” to the mall’s rule that no speech would be permitted on its premises “urging, or encouraging in any manner, customers not to purchase the merchandise or services offered by any one or more of the stores or  merchants in the shopping center.”

The majority, in an opinion written by Justice Moreno and joined by Justices Werdegar and Kennard and Chief Justice George, observed that in applying strict scrutiny,

a content-based rule limiting expression in a shopping center that constitutes a public forum must be necessary to serve a compelling interest and be narrowly drawn to achieve that end. . . . The Mall’s rule prohibiting speech that advocates a boycott cannot withstand strict scrutiny.  The Mall’s purpose to maximize the profits of its merchants is not compelling compared to the Union’s right to free expression. 

But if the mall’s interest in restraining distracting or embarrassing picketing, leafleting, etc. will be from now on characterized as simply “to maximize the profits of its merchants,” will that interest ever be held to trump anyone’s right to free expression, unless the court is willing to hold that union speech rights are somehow more worthy than others?

Dissenting Justice Chin, joined by Justices Baxter and Corrigan,  made no attempt to hide his exasperation with the majority.  The Pruneyard decision, he said, should be simply abandoned as by now almost totally isolated in American law. It should not be worsened by this case, which applied the highest barriers against official censorship to a mall owner’s natural desire to protect its tenants’ legitimate business expectations.  Strict scrutiny was developed to limit government’s ability to suppress particular messages by demanding, among other things, that a compelling governmental interest be shown as justification.  Dropping the “governmental” from the formula applies an alien yardstick to private property values, Chin insisted:

In finding no compelling interest, the majority merely asserts that the right of persons to use property they do not own is more compelling than the landowner’s right to use its own property for the very purpose it exists.  I would instead give some priority to the property’s owner. 
    The bankruptcy of the majority’s position is shown by its further assertion that “[t]he Mall cites no authority, and we are aware of none, that holds that a store has a compelling interest in prohibiting this traditional form of free speech.” Good reason exists for this lack of authority.  Because most of the country, including the United States Supreme Court, rejects the very notion of free speech rights on private property, the issue never arises.  Only in California is the issue relevant.  The only tradition that is relevant to this case is the tradition, followed in most of the country, of finding no free speech rights on private property.  The majority is trampling on tradition, not following it.

A small factual irony in the case is that the union was challenging the behavior of another traditional beneficiary of free speech protection—a newspaper that employed its members in its pressroom. Members of the Graphic Communications International Union Local 432-M, which argued that the San Diego Union-Tribune treated them unfairly, leafleted customers of the Robinsons-May store—a major U-T advertiser—at the entrances and exits, asking them to call the paper’s “CEO” and voice their concerns for the alleged unfairness.  The leaflets did not expressly call for a boycott of the store, and were handed out peaceably with no interference with customer traffic.                                          

What Did They Know, and When?

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Remember the televised May 2006 Pentagon question-and-answer session after a speech by then Secretary of Defense Donald Rumsfeld in which a man in the audience accused Rumsfeld of lying on several occasions about known weapons of mass destruction in Iraq?  If not, you can read about it here. Anyway, the questioner was Ray McGovern, whose mixed interests and experience in intelligence analysis and theology have led him to protest, at different times, policies emanating from the White House and from the Vatican.

Midway through a dot-connecting essay titled “Creeping Fascism: History’s Lessons,” McGovern has the following paragraph that might be of particular interest to Californians.

It Started Seven Months Before 9/11

How many times have you heard it? The mantra “after 9/11 everything changed” has given absolution to all manner of sin.
    We are understandably reluctant to believe the worst of our leaders, and this tends to make us negligent. After all, we learned from former Treasury Secretary Paul O’Neill that drastic changes were made in U.S. foreign policy toward the Israeli-Palestinian issue and toward Iraq at the first National Security Council meeting on Jan. 30, 2001.
    Should we not have anticipated far-reaching changes at home as well?
    Reporting by the Rocky Mountain News and court documents and testimony in a case involving Qwest strongly suggest that in February 2001 (National Security Agency’s General Michael) Hayden saluted smartly when the Bush administration instructed NSA to suborn AT&T, Verizon, and Qwest to spy illegally on you, me, and other Americans.
    Bear in mind that this would have had nothing to do with terrorism, which did not really appear on the new administration’s radar screen until a week before 9/11, despite the pleading of Clinton aides that the issue deserved extremely high priority.
    So this until-recently-unknown pre-9/11 facet of the “Terrorist Surveillance Program” was not related to Osama bin Laden or to whomever he and his associates might be speaking. It had to do with us.
    We know that the Democrats briefed on the “Terrorist Surveillance Program” include House Speaker Nancy Pelosi, D-California, (the one with the longest tenure on the House Intelligence Committee), Rep. Jane Harman, D-California, and former and current chairmen of the Senate Intelligence Committee, Bob Graham, D-Florida, and Jay Rockefeller, D-West Virginia, respectively.
    May one interpret their lack of public comment on the news that the snooping began well before 9/11 as a sign they were co-opted and then sworn to secrecy?

Not necessarily; maybe no one asked them for comment at the time. But it’s not too late.  Perhaps the most memorable words from the investigation of the Senate Watergate Committee were those of the late Senator Howard Baker (R-Tenn): “What did the President know, and when did he know it?”  When indeed were our Congress members first informed of the plans for wholesale warrantless wiretapping, and what did they do with what they knew?