Court: Mixed Signals on Agenda Not Unlawful

An unpublished decision by the Second District Court of Appeal concludes that without evidence of actual confusion in the public, a posted agenda that  states the public’s right to address the body in general but also notes, with respect to particular items, “Public hearing concluded,” is not misleading to a degree amounting to a violation of the Brown Act.

Stolen Valor: The Hearing, Four Unasked Questions

The transcript of yesterday’s oral argument before the U.S. Supreme Court in U.S. v. Alvarez, the Stolen Valor Act case, is here. Four relevant questions unasked by either the justices or the parties or, apparently, the amici curiae on either side:

Evidence of Harm

1. Stolen prestige: Where is the evidence that the Medal of Honor or other military decorations are less respected by the public because they have been falsely claimed?  Has that question ever been polled or otherwise subjected to social science inquiry?

2. Stolen esteem: Where is the evidence that authentic recipients of the Medal of Honor or other military decorations are less admired by the public because their awards have been falsely claimed by others?  Has that question ever been polled or otherwise subjected to social science inquiry?

3. Stolen mental health: Where is the evidence that authentic recipients of the Medal of Honor or other military decorations are mentally harmed in any clinically measurable degree, as for example as in PTSD, as distinct from being irritated, offended or angered by the fact their awards have been falsely claimed by others?  Has that question ever been subjected to psychological or psychiatric research?

A Preventive Alternative

4. Instead of criminalizing false claims to military honors, why not make them easily discoverable as a deterrent?  In today’s hearing Justice Scalia briskly dismissed the idea that the risk of being discovered might discourage such behavior.

You know when there is a sanction in place you think twice before you tell the lie. But if there is no sanction except you might be exposed, who’s going to expose you? That sanction already exists, and there are a lot of people nonetheless who tell the lie. You really expect the government to hire investigators to go around the country outing people who falsely claim military honors? That’s not going to happen.
(Counsel for Alvarez): Well, Justice Scalia, isn’t that exactly what’s happening right now with this law? Because the law is on the books, the law is sending FBI agents out to investigate these allegations. How do they find out about it? It’s because it’s recorded. Individuals hear the statement and they think it may be false. They investigate it. And — and, and conduct their own investigations. So that’s what happens. And that’s what’s supposed — that’s — that’s the whole idea of more speech.

The “more speech” prescription invokes the foundational Supreme Court case of Whitney v. California (1927), upholding a state law criminalizing the organization of labor with the goals of syndicalism. In his famous opinion concurring in the result but reading more like a dissent, Justice Louis Brandeis stated:

Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom.  Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.

The majority’s conviction that speech and organizing that the government saw as having a “bad tendency” could be punished without offending the First Amendment was later abandoned by the court. With respect to Alvarez, meanwhile, the “more speech” approach is being pursued in any event, by a congressman looking into the possibility of a Pentagon-maintained database simply listing all military awards winners—a lookup registry for those wanting to check such claims.



Milpitas Backslides on Transparency Commitment

The Milpitas City Council last night provided the best example of why local sunshine ordinances are not safe unless they’re passed by a vote of the people. The council on a 3-2 vote decided to repeal a provision of the ordinance it adopted in 2005 that had kept it from arguing that the public interest allowed withholding of information not made confidential by law.  The action at the meeting is reported by Ian Bauer in the Milpitas Post, but the conflict originated in a spat on the council itself. Continue reading

Be True to Your School—or See Me in My Office

Seniors at La Jolla High School will no longer have to keep their comments about the school positive when they paint them on a campus bench dedicated to their expression. The principal’s ignoring of their speech rights cost the district $22K and change.  Emily Summars reports for the Student Press Law Center. Continue reading

Stanislaus Council of Governments

February 20, 2012

Mr. Vince Harris
Executive Director
Stanislaus Council of Governments
1111 I Street, Suite 308
Modesto, CA 95354


Dear Mr. Harris,

Californians Aware demands a cure and correction of repeated violations of the Ralph M. Brown Act (Government Code Section 54950 et seq.), consisting of meetings of a quorum of its Policy Board of the Stanislaus Council of Governments (StanCOG) without notice to the public or accommodation of public attendance.

StanCOG, as a joint powers agency, is subject to the Brown Act with respect to the meetings of its governing body, the Policy Board.

While the Policy Board comprises 16 elected officials, StanCOG’s voting members comprise only 10 public agencies—Stanislaus County and nine incorporated municipalities: Modesto, Ceres, Hughson, Newman, Oakdale, Patterson, Newman, Riverbank and Waterford. Of those members, the bylaws provide that six constitute a voting quorum, since six is a majority of the member agencies. Thus the presence of six mayors, for example, can permit the conduct of business, and of those six as few as four—both a majority and two thirds of those present as a bare quorum—can determine the position of the Policy Board.

As it happens, six mayors—representing Modesto, Newman, Oakdale, Patterson, Riverbank and Waterford—constitute a “Mayors’ Working Group” which, we are reliably informed, has for months been meeting informally without notice to the public or the opportunity for public attendance, developing a ballot initiative on agricultural preservation.

The effect is that a majority of the Policy Board’s voting members has been meeting out of compliance with the Brown Act to develop policy proposals for legislative action at the ballot box. This non-noticed, nonpublic process has been a continuing violation of the Brown Act.

Californians Aware demands the following corrective actions:

1. The immediate cessation of the Mayors’ Working Goup meetings.

2. Release for public inspection by each member agency represented in the Mayors’ Working Group of any and all agendas, minutes or other documents, including email, produced or distributed to member mayors to support or reflect the work of the Working Group.

3. Full compliance with all Brown Act requirements by all future meetings of the Policy Board officials designated as members of the Mayors’ Working Group, namely Mayors Ridenour of Modesto, Katen of Newman, Paul of Oakdale, Molina of Patterson, Madueno of Riverbank and Goeken of Waterford.

Failure to comply with this demand at the Policy Board’s March meeting will cause me to recommend to our Litigation Committee that we file an action for declaratory and injunctive relief in the Superior Court of Stanislaus County to determine the applicability of the law to the meetings of the Mayors’ Working Group, for an order compelling Brown Act compliance in the future, and for costs and attorney fees.

Cordially ,

Terry Francke
General Counsel


Stanislaus COG agreed to some changes in response to CalAware’s Demand.