Public Forum Law Week in Review: 11/24/08

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Free Speech

Supreme Court Denies CalAware’s Review Plea
As reported in the Metropolitan News-Enterprise, the California Supreme Court has declined to review a ruling that barred a school board member from suing his district, which he and Californians Aware claimed had violated his civil rights by censuring him and editing his comments out of a tape it prepared for cable television. The trial court and Fourth District Court of Appeal decided that the lawsuit, brought under the Brown Act and the First Amendment, was an unmeritorious SLAPP at the trustees’ right to express their opinion through a censure motion.

Judge to College: Spare Student While He Sues
California Catholic Daily reports that a federal judge has ordered Yuba Community College District officials to temporarily suspend punishment of a student pending a lawsuit brought on his behalf by Alliance Defense Fund attorneys. ?College officials had threatened the student with arrest or expulsion for sharing his faith on campus in violation of a college ban on student speech without a permit outside of the school’s “free speech” limits of one hour per day, two days per week.

Savage Sued for Suing Group Who Exposed Him
KRON.com reports that talk show host Michael Savage has been sued in federal court in San Francisco by a liberal film group for making an allegedly baseless demand that YouTube Inc. take down one of its videos. The video by Brave New Films was entitled "Savage Hates Muslims."

MySpace Hoax Prompts L.A. Trial, Bill in Congress
The First Amendment Center reports that as federal prosecutors in Los Angeles began last week to try a Missouri woman on charges of online fraud in connection with the suicide of a MySpace-taunted teenager, a California Congresswoman’s bill introduced last May to more directly confront “cyberbullying” remains in a subcommittee.

College Gay Clubs Can’t Use Preferred Acronym
The San Diego Union-Tribune reports that members of the Fellowship of Associated Gay Students & Straight Allies at two San Diego community colleges say campus administrators have violated their free speech rights by repeatedly blocking attempts to advertise their shared acronym: FAGS.

Open Government

Watchdog to Congress: Demand Facts on Bailout
The Project on Government Oversight reports it has sent a letter to key oversight committees in the House and Senate protesting “the nearly stunning lack of openness and transparency in the actions taken thus far pursuant to the bailout, or the Troubled Assets Relief Program (TARP).” The letter says in part, “Irrespective of whether the decisions are made by political appointees, career employees, or Members of Congress, the decision-making process has been a nearly perfect black box.”  Meanwhile OpenGovernment.Org offers an update and resource page.

Open Government Ideas Pouring into Transition
Stephen Aftergood at the Project on Government Secrecy reports, “Expectations of significant changes in government information policy continue to grow as more and more groups and individuals offer their recommendations for reform to the next administration and its transition team. Proposals for change concerning classification, freedom of information, and presidential records were developed by a cross-section of interested organizations convened by the National Security Archive . . .  A catalog of proposals affecting a broad range of national security and civil liberties issues, including secrecy, was compiled by the Constitution Project.” Another list of proposals, by specific organizations, is here.

Query: Will Obama Keep His Sunshine Promises?
A journalist for Pro Publica notes that after almost eight years under one of the most secretive administrations in history, open records advocates are hopeful that President-elect Barack Obama will keep his promise to run a transparent presidency. But his record on the issue is not spotless, she says.

An Open Inquiry into the Last Eight Secret Years?
An independent investigating task force like (but equipped with better chances for success than) the 9/11 Commission is needed “to find out what we still don’t know,” says an article in Washington Monthly, “Last Secrets of the Bush Administration

Don’t Remove Classified Records, Officials Told
Stephen Aftergood at the Project on Government Secrecy reports that federal officials were reminded recently that as they depart from government service with the end of the current Administration, they are not permitted to take classified information with them. The warning came from William J. Bosanko, the director of the Information Security Oversight Office, which oversees the national security classification system. “Document removal is among the most pernicious forms of secrecy,” notes Aftergood, “as it is often undetected and irreversible.”

Gilroy Council Adopts Sunshine Ordinance 7-0
The Gilroy Dispatch reports that the city council has unanimously passed Gilroy's first open government law, putting behind it a year of debate and review that included emotional and personal accusations. The sunshine ordinance will go into effect Dec. 17, and the council will meet to appoint three members to the Open Government Commission at its next regular meeting, Dec. 15.

Editorial: San Jose Officials Resist Sunshine Law
In an editorial, the San Jose Mercury News says that while San Jose city government has become more open under Mayor Chuck Reed, when it comes to records that would reveal how decisions have been or are being made, the city administration strongly resists a proposed sunshine ordinance’s new rules that go beyond what's required in the California Public Records Act.

Berkeleyans Ready Sunshine Draft for Council
The Berkeley Daily Planet reports that the citizens’ group working on its alternative to the Berkeley city attorney’s draft sunshine ordinance has released its final draft and would meet with Councilmember Kriss Worthington to discuss a plan to introduce it in the City Council agenda for December.

Editorial: Bug Board’s Leak Probe Wasted Funds
The Desert Sun in Palm Springs says in an editorial that the Coachella Valley Mosquito and Vector Control District spent at least $2,500 trying in vain to discover who leaked an unedited report to the paper. The leaked complete report revealed the former general manager’s claims that the former longtime district lawyer sexually harassed him and detailed specifics of their alleged relationship.

Public Information

Court: $244K+ Attorney Fee Award Not Excessive
A trial court did not abuse its discretion in awarding  successful California Public Records Act plaintiffs nearly a quarter million dollars in attorney’s fees and costs to be paid by the defendant county, ruled the California Court of Appeal for the Sixth District in Bernardi v. County of Monterey, filed September 30. The trial court awarded the plaintiffs the sum of $244,287.50 in fees and costs in a case involving records bearing on the county’s controversial approval of a 109-home development project near the mouth of Carmel Valley with notable water and traffic impacts.

Court: Requester’s Ouster Violated Records Act
A public utility district unlawfully denied a resident access to public records, entitling her to an award of attorney fees and costs when she had to sue for them, because it ejected her from its office when she went there to demand access. So ruled the California Court of Appeal for the Fifth District ruled in Galbiso v. Orosi Public Utility District, filed October 23.  The district unsuccessfully argued that she should be entitled to fees and costs only if she showed  she had been wrongfully denied access to one or more specific records.

Experts Debate Privacy in Political Contributions
Ben Smith, writing in Politico.com, reports that the resignation of a musical theater director in Sacramento who gave $1,000 to support the anti-gay-marriage Proposition 8 has fueled a fascinating discussion among election law experts, some of whom are seizing on it to make the little-heard case against the public disclosure of campaign contributions.

Attorney: City Must Disclose Rally Cop Strength
The Hollister Free Lance reports that although the city attorney and police chief have contended that disclosing the number of law enforcement personnel employed at the annual biker rally could endanger the community's safety, an open records expert says there's no legal authority supporting that stance.

Former Cop, City Trade Lawsuits—over Settlement
The San Gabriel Valley Tribune reports that former Monrovia police Officer Glenn Cobb settled a racial discrimination lawsuit with the city of Monrovia last year for $125,000. Now he is suing the city again for breach of contract, claiming officials violated a confidentiality agreement when they disclosed the financial terms to the Tribune. The city has filed a countersuit, alleging that Cobb's lawyer, Leo Terrell, caused Monrovia to be "humiliated and ridiculed" when he breached the agreement by speaking about the settlement to a reporter last year.

Rare Judge’s Brief Faulting Prosecutors Unsealed
The San Diego Union-Tribune reports that a previously sealed court filing from a federal judge in San Diego, unsealed at the newspaper’s request, criticized prosecutors for inaccurately describing the details surrounding the secret guilty plea of a money launderer in the Randy “Duke” Cunningham scandal. In a highly unusual move, U.S. District Judge Larry Burns sent a 15-page brief of his own to the 9th U.S. Circuit Court of Appeals, alleging that the government’s petition, on national security grounds, for an order to block him from unsealing previous records in the bribery prosecution “mischaracterizes substantial, relevant portions” of the case.

Federal Judges Routinely Allowing Sealed Files
The Recorder in San Francisco reports that a recent inadvertent disclosure of information from a sealed file in an industrial espionage case shows that while the First Amendment may presume public access to court files and disfavor sealing, in practice federal judges let the parties decide what information should be sealed unless the news media or some other third party notices and comes into court to protest.

Public Records Disclosed Reveal . . .
• that cat owners, including two members of the city council, have overwhelmingly ignored a year-old Stockton ordinance requiring the licensing of cats, according to the Stockton Record.

• that the San Joaquin County Library last year admitted to having 32,185 borrowers owing a total of $626,196, according to the Stockton Record, although an audit just released found the sum to be $3.4 million.

• that a San Francisco police officer drove Mayor Gavin Newsom's new $58,000 hybrid SUV with its police lights, radios, and satellite TV, all the way to Montana and back for Newsom’s wedding this summer at a total estimated cos
t of $15,000, while the mayor flew to the site in a private jet, according to KGO-TV.

Free Press

Editorial: Fire School Cop Who Bullied Journalist
The Oakland Tribune has editorially called on the Oakland School District to fire the chief of its small police force for his abusive behavior caught on tape as he inappropriately detained a Tribune videographer covering a student protest against immigration raids.  “We shudder to think,” the paper says, “how (the chief) would have reacted if the encounter had involved a student who lacked the ability or resources to question what was happening, and we wonder how much further he would have gone if the video camera wasn't running.”

Reporter Says Interview with Priest Got Rough
The Vacaville Reporter reports that a Fairfield priest verbally and physically attacked one of its reporters during an interview at the Our Lady of Mount Carmel Church, according to a police report. The reporter says he went to the church to talk to the priest about a parishioner who claimed the priest expelled her from Sunday Mass because her vehicle sported painted signs in support of president-elect Barack Obama.

Malibu Mayor’s Ideas on Paparazzi Swarms
Writing in the Malibu Times, Mayor Pamela Conley Ulich suggests several responses to the most annoying or menacing behavior of celebrity photographers such as sparked a notorious confrontation with surfers last summer.  Instead of a new ordinance that might bite true photojournalists as well, she proposes enforcing existing laws, creating some kind of “safety zones” at schools for certain hours (see story below), licensing and taxing as appropriate to commercial photography, using a new cheat sheet on potential criminal complaints, and collecting and posting video clips of paparascality.

L.A. Councilman Wants No-Lens Zone Rules
The Los Angeles Times reports that under a proposal introduced by a Los Angeles city councilman this week, celebrities could drop their children off at school and visit their doctors without fear of being accosted by paparazzi. The ordinance suggested by Councilman Dennis Zine to combat aggressive tabloid photographers would restrict commercial photography and video recordings within 20 feet of the entrances at schools, hospitals and medical facilities.

School Sued for Dropping Journalism Program
The Student Press Law Center reports that lawyers representing it and the American Civil Liberties Union are filing a lawsuit on behalf of students and a teacher at Fallbrook High School, claiming that the school violated their First Amendment rights by canceling the journalism class and removing the adviser. Four students and the adviser, David Evans, say the school's principal, Rod King, censored two articles in the Tomahawk student newspaper critical of the school district. When Evans brought the issue up with a member of the school board, King canceled the journalism class and removed Evans as the paper's adviser, making the newspaper an after-school, extracurricular activity.

Plans to Restart High School Paper in Place
The San Jose Mercury News reports that school officials say the student newspaper at Carlmont High School newspaper in Belmont could begin publication again early next year after having its journalism program suspended for what was deemed “inappropriate” content. The suspension centered on a satirical article about a writer’s own “sexiness,” and the newspaper’s staff felt it was being censored for its decision to print it. But Principal Andrea Jenoff said it was a matter of finding a long-term adviser to guide the students’ work. 

Principal’s Calls Spike a “Teachable Moment”
The Lodi News-Sentinel reports that students at Tokay High distributed the Tokay Press recently after a week-long impasse when Principal Erik Sandstrom stepped in and blocked the paper’s distribution on campus. They inserte a new page with a revised article in each of the 1,200 copies of the paper that Sandstrom spiked because of libel concerns with the story’s allegations that the athletic director had improperly obtained and used a logo that belongs to the University of Missouri. ??Sandstrom called the incident “a teachable moment,”

Blog Host Offers a Journalist Bailout Program
It’s not exactly the WPA Federal Writers’ Project, but one of the leading blog platforms is offering recently laid off journalists a free pro account, professional tech support, placement on the company’s blog aggregation site, and automatic enrollment in its advertising revenue-sharing program.

Open Meetings

Court: Denial of Comment Violated Brown Act
A public utility district board violated the Brown Act in denying a resident engaged in litigation with the district over a sewer fee assessment the opportunity to address the board in an open meeting concerning that litigation, the California Court of Appeal for the Fifth District ruled in Galbiso v. Orosi Public Utility District, filed October 23. That violation laid the basis for a possible trial court award of attorney’s fees and costs to her as a prevailing plaintiff suing under the open meeting law, the court concluded.

Brown Act Issue: Offcial’s $300K Parachute
The Inland Valley Daily Bulletin reports that turmoil has erupted in the Rialto school district since Superintendent Edna Davis-Herring resigned and the school board awarded her a $300,000 severance package. One issue: Did the board act in violation of the Brown Act when it took the action behind closed doors to both accept her resignation and give the severance?  Richard McKee, president emeritus of Californians Aware, thinks so.

Open
Courts

Juror: No Closed Trial in Journalist’s Murder
The Washington Post reports that the trial of three men accused of helping to organize the murder of one of Russia's most prominent investigative reporters, Anna Politkovskaya, took a surprise turn as a juror publicly challenged the court's decision to hold the proceedings behind closed doors—supposedly at the request of a fearful jury. “We are not cowards, of course. We were not afraid," said Yevgeny Kolesov. "They made a laughingstock of us."

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