Family Seeks Relief for Harrowing Photo Release

FREE SPEECH — More than two years after grisly photos from a teenage girl’s fatal car accident, circulated by California Highway Patrol dispatchers, landed on
the Internet and sparked a heated debate over the right to privacy of the dead and their survivors, a decision is expected soon.

CBS News reports that the plaintiffs in the case against the CHP are

the Catsouras family, who say they’ve been
forced to constantly relive the death of their 18-year-old daughter,
Nikki, who was killed during a high-speed crash in 2006.

Nikki was driving close to 100 m.p.h. on Halloween night when she
clipped another car, flipped across the median and crashed into a toll
booth. Very little remained of the Porsche she drove and the condition
of Nikki’s body was so disturbing that the coroner would not allow the
Catsouras family to identify it.

However, days after the accident, millions of people saw pictures
from Nikki’s crash on the Internet after at least one California
Highway Patrol dispatcher allegedly e-mailed photos of the scene to
friends. From there, the photos spread very quickly and landed on the
Internet.

*****
The family sought privacy for themselves and their late daughter by
suing the California Highway Patrol. A court initially ruled that
privacy rights do not extend to the dead. The family appealed, further
sparking the debate over privacy and first amendment rights.

Online expert Michael Fertik said new laws are needed to protect privacy on the Internet.

"Photos leak, comments get spread around, rumors get spread around.
It happens to regular, undeserving people all the time," he said.

People, even those dealing with death images online, are generally
protected by free speech—a reality that has made the Catsouras family
realize the difficulty in fighting cyberspace.

"These Internet predators that are harming us, that won't take the
photos down, have more rights than we do," said Lesli Catsouras,
Nikki’s mother.

According to UCLA law professor Eugene Volokh, "When you give
people freedom, they sometimes use it in ways that are offensive—and
even in ways that are even disgusting."

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Milpitas Dials Back Some Sunshine Requirements

OPEN GOVERNMENT — The City of Milpitas is relaxing some of the tougher standards of its four-year-old sunshine ordinance to eliminate requirements that its officials say are unwieldy, unduly time consuming for staff, or unused by the public, reports the Milpitas Post.

As approved, the city's Web site will offer access to a directory for all city documents available online and provide the public with a general direction of records not available on the Internet.

Council members, the city manager and planning commission members will continue to fill in their online calendars showing past events and appointments, but it will now exclude social or personal events. In March, the council unanimously gave their approval to other proposals to either change or keep provisions within the Open Government Ordinance. Among the provisions:

  • Shortening the timeframe regarding the availability of labor union memorandums of understanding from 15 calendar days to 10 days prior to council meetings where contracts are slated for approval.
  • Exacting a 10 cent per page charge for copies of agenda records and all documented records.
  • Eliminating the former Open Government Subcommittee and renaming it the Rules Committee.
  • Changing the response time for a public records request from seven days to 10 days.
  • Relaxing the requirement to issue a preliminary city council agenda six days before the council meeting, instead of eight days, purportedly to allow more flexibility for city staff.
  • Changing closed-door meeting transparency. City policy had been to make closed-session recordings open to public disclosure "whenever all rationales for keeping them closed" were no longer applicable and for some items, it was presumed the recordings were disclosable after two years. City officials now say these closed session recordings should never be disclosed.
  • Stop noticing, agendizing or recording proceedings of monthly city staff meetings because the public does not normally attend these meetings.
  • Deleting a requirement to formally list "sole source" city contracts or requests for proposals as this information can currently be found on the city's Web site.
  • Recommending that state Form 700, a California Fair Political Practices Commission mandate statement of economic interests for elected, and appointed officials and city employees, be placed on the city's Web site for council and planning commissioners. Currently, all Form 700s for city employees and elected officials are required for review by the city attorney and placed on the City Web site by the Milpitas City Clerk's Office.

Open Meeting Laws Roundup

OPEN MEETINGS — A bill to clarify the ban on serial meetings of state boards and commissions has passed the Assembly; the Marin County District Attorney is investigating a Brown Act complaint by a resigned school board member; a Ventura school trustee accuses colleagues of an unlawful serial meeting; and a nonprofit organization has praised a small city council for handling a conflict of interest issue openly.

Committee OKs Bill to Protect Sunshine Lawsuits

OPEN GOVERNMENT/FREE SPEECH — The bill intended to correct the problem that cost California's most active open government watchdog more than $80,000 in attorney's fees in an unsuccessful Brown Act/free speech lawsuit got a solid launch today in its first hearing in Sacramento.

The Senate Judiciary Committee, in a unanimous bipartisan vote, passed SB 786 by Senator Leland Yee (D-San Francisco) and sent it for action on the Senate floor.

The bill provides that if a state or local government agency successfully uses an anti-SLAPP motion to get dismissal of a lawsuit brought against it under the Brown Act, the Bagley-Keene Act or the California Public Records Act, the court may not order the losing plaintiff to pay the agency's attorney fees. 

That fee provision is now an automatic element of the anti-SLAPP law, which the Orange Unified School District used to get dismissal of the case last year brought against it by Californians Aware and Richard McKee, its then president.  CalAware's slim resources meant that McKee was forced to pay the district's attorney's fees at trial and on appeal, which eventually totaled more than $80,000.

The case was brought under the Brown Act and the Public Records Act, seeking a court declaration that a district trustee's speech rights, and the right of the public to hear him, were violated when he was censured by colleagues for his public meeting criticism of their personnel decision, and when his comments were edited out of a video of the meeting sent for community cable TV airing.

At today's hearing James Chadwick, president of the California First Amendment Coalition, told the committee that in his work as a media lawyer he had learned that lawsuits to enforce open government laws were rare and difficult to bring, and that exposure to the government attorney fee liability that McKee had suffered would threaten the end of citizen enforcement of these laws.

Also testifying in support of the bill were Tom Newton for the California Newspaper Publishers Association and Terry Francke for Californians Aware, both of whom emphasized that the bill would allow a court to order the fee payments if the losing plaintiff's case were determined to be frivolous.

The bill was opposed by organizations representing county governments.

Former Grand Juror Destined for Trial on Leak

OPEN GOVERNMENT/FREE SPEECH — Barring an unexpected
resolution otherwise, a former Butte County grand juror will stand
trial in August on charges that she illegally disclosed confidential
information about alleged police misconduct after her tour of service was over, reports the Contra Costa Times.

Georgie Szendrey is accused of providing information to the media
last year regarding an investigation she had conducted as a member of
the 2006-07 Grand Jury into an excessive force complaint against two
Paradise police officers.

The ex-grand juror has pleaded not guilty to a single
misdemeanor charge which could carry up to a year in jail upon
conviction.

*****
According to the criminal complaint, which was filed
, which was filed in
early February, the alleged disclosures were made well after her term
on the Grand Jury had ended, during a 28-day period between Feb. 7 and
March 6, 2008.

The latter date coincides with a joint article by the
Chico Enterprise-Record and Paradise Post concerning the Grand Jury police
probe, after it was revealed in open court. Szendrey was quoted in the
article as acknowledging that during her investigation, she determined
that two Paradise police officers, Timothy Cooper and Robert Pickering,
failed to inform an underage drunken driver, Justin Baltierra, that he
was under arrest before violently tackling him to the pavement as a
neighbor videotaped the incident.

Szendrey's unpublished grand jury findings in the Baltierra
case were later used by the attorney for a resisting arrest suspect,
Max Schumacher, to persuade a judge to release the names from the
officer's personnel file of three individuals who had filed previous
complaints against Pickering. Schumacher was subsequently acquitted at
trial on all charges.

A third ridge resident, Harold Funk, was later acquitted by a
separate jury of unrelated resisting arrest charges after the grand
jury information in the Baltierra case was also used to unseal
Pickering's file in an identical pre-trial motion.


Court: Teacher Wrong to Disrespect Creationism

FREE SPEECH — A public high school history teacher went too far in insulting creationist doctrine, a federal judge ruled the other day, but the teacher told the Orange County Register he wasn't hostile towards religion—he was trying to get young people to think.

Corbett, 62, who teaches at Capistrano Valley High School in Mission
Viejo, routinely brings up divisive topics in class and often makes
inflammatory statements about religion. It's all part of his effort to
"provoke" students to think critically about "changes in religious
thought and institutions," he says.

The class in question,
after all, is a college-level Advanced Placement European history
course that has religion as one of its key themes.

"I'm never
negative toward religion," Corbett said. "I'm negative toward the
actions of some churches toward religion. It's not disparaging religion
to point out that the Renaissance popes were a bunch of whacks."

The queasy-making spectacle is a federal judge picking, poking and parsing through a list of statements complained of as hostile to religion, as if religion can't take it.  That all but one passed the magistrate's assay will be little comfort to those who don't like to see history teachers in the dock for being provocative. 

She Wants Mean Speech to Be a Federal Crime

Images-4 FREE SPEECH — Congresswoman Linda Sanchez (D-Los Angeles) thinks vicious communications moved by electricity have gone too far and wants to imprison their purveyors for up to two years.

Here's what HR 1966 says.

(a) Whoever transmits in interstate or foreign commerce
any communication, with the intent to coerce, intimidate, harass or
cause substantial emotional distress to a person, using electronic
means to support severe, repeated and hostile behavior, shall be fined
under this title or imprisoned not more than two years, or both.

(b) As used in this section —

(1) the term ‘communication’ means the electronic transmission,
between or among points specified by the user, of information of the
user’s choosing, without change in the form or content of the
information as sent and received; and

(2) the term ‘electronic means’ means any equipment dependent on
electrical power to access an information service, including e-mail,
instant messaging, blogs, websites, telephones and text messages.


Here's what Rep. Sanchez says in its defense.

Here's why those who've studied the First Amendment say it's unconstitutional.

Here's someone who gives the bill all the sober dignity it deserves.

The proposal by Rep. Linda Sanchez, D-Los Angeles, would never pass
First Amendment muster, unless the U.S. Constitution was altered
without us knowing. So Sanchez, and the 14 other lawmakers who signed
on to the proposal, are grandstanding to show the public they care
about children and are opposed to cyberbullying.

*****

Sanchez’s bill goes way beyond cyberbullying and comes close to
making it a federal offense to log onto the internet or use the
telephone. The methods of communication where hostile speech is banned
include e-mail, instant messaging, blogs, websites, telephones and text
messages.

We can’t say what we think of Sanchez’s proposal. Doing so would clearly get us two years in solitary confinement.