May 4, 2015

Judges Aren't Politicians, High Court Says

Does someone who wants to be a judge have a First Amendment right to hit people up for campaign money?

Thankfully, the U. S. Supreme Court says "no," in a 5-4 decision filed April 29. The Court's split decision will hopefully keep the most unseemly aspects of money-raising out of judicial races in a way that its controversial Citizens United decision doesn't for other campaigns.

Chief Justice John Roberts' decision focused on the unique aspects of judging, reasoning, "Judges are not politicians, even when they come to the bench by way of the ballot. And a State's decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor -- and without having personally asked anyone for money."

The Court's decision in Williams-Yulee v. Florida Bar sparked a vigorous debate both inside and outside the Court on the nature of judging. Former California Supreme Court Justice Joseph Grodin -- my boss when he was on that Court in the 1980s -- cited Chief Justice Roberts' statement during his confirmation hearings that a justice's role is like an umpire calling balls and strikes, and said in the wake of the Williams-Yulee decision, "most judging takes place along a continuum between the poles of judge-as-referee and judge-as-legislator, a middle ground of tension that tends to resist simplistic metaphors."

First Amendment lawyer Floyd Abrams, who was counsel to Senator Mitch McConnell in the Citizens United case, was critical of the Williams-Yulee decision, and asserted that the decision's focus on the special role of judging "reinforces" the Citizens United decision.

I'm not so sure. While there are, to be sure, differences between judges and politicians, much of what Chief Justice Roberts says in defense of the Florida Bar's rule restricting judicial candidates' solicitations could also be said about other campaign finance restrictions. Chief Justice Roberts catalogues a number of ways judicial candidates can campaign without saying, "Please give me money." The same can be said about the campaign finance restrictions the Court struck down in Citizens United: there were a number of ways candidates could get their message across without completely discarding any campaign finance restrictions and opening the door to the unlimited spending and "one dollar one vote" cesspool of super-PACs that has engulfed elections since Citizens United.

In the end, I think the majority got it right in Williams-Yulee. I only wish some of the Court's reasoning about the importance of preserving public confidence in the integrity of the judiciary had been applied in Citizens United to the interest in, as Chief Justice Roberts called it, "preventing the appearance of corruption in legislative and executive elections."

February 27, 2015

Swastika Display Triggers Hate Speech Debate

A Sacramento man's display of a swastika on his front lawn has triggered a hate speech debate in California.

State Senator Marty Block (D-San Diego) was joined by a group of veterans, community leaders and fellow legislators February 26 in Sacramento urging the homeowner to remove the swastika from his Sacramento home. The display takes up a large portion of the front of the home.

The calls for removal are well-meaning, but the First Amendment would surely prevent the legislators from forcing the homeowner to remove the hateful symbol.

Similar attempts have failed in the past. Perhaps the best-known example occurred back in 1977, when the National Socialist Party of America announced plans to march through the predominantly-Jewish community of Skokie, Illinois, where one in six residents was a Holocaust survivor. After a trip to the United States Supreme Court, the case resulted in an Illinois Supreme Court ruling that the use of a swastika is a symbolic form of free speech and the use of the symbol itself did not constitute "fighting words." The ruling allowed the Nazis to march in Skokie.

Likewise, a 1992 decision by the U.S. Supreme Court struck down a St. Paul, Minnesota law banning displays of a burning cross or swastika. That case involved a teenager who burned a cross on the lawn of an African-American family. And in 2003 the U.S. Supreme Court ruled that a Virginia law against cross-burning went too far, although cross-burning with intent to intimidate could be banned.

Ultimately, all these cases demonstrate this country's commitment to free speech -- even revulsive speech which seems to have no place in a civilized society -- which make our country worlds apart from Hitler's Germany. And they illustrate the famous words of the French writer Voltaire: "I do not agree with what you have to say, but I will defend to the death your right to say it."

June 21, 2014

High Court Protects Public Employee Whistleblowers

The U. S. Supreme Court has taken a step in the right direction for public employee whistleblowers.

The Court's June 19 decision in Lane v. Franks reiterates that citizens don't surrender First Amendment rights by accepting public employment and that First Amendment protection of a public employee's speech requires balancing "the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."

Lane is an example of the aphorism that while bad facts make bad law, good facts make good law.; Lane headed a statewise program for underprivileged youth in Alabama. The program had financial difficulties. Lane fired a well-connected Alabama State Representative who vowed revenge. That employee was later indicted for mail fraud and Lane testified at her trial.

The narrow question in the case was whether the First Amendment protects a public employee who provides truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job reasponsibilities. The Supreme Court answered that question "yes."

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June 16, 2014

Will Congress Shield News Media?

Will Congress step in where the U. S. Supreme Court decided not to tread?
That's the question facing the news media and advocates of the so-called Free Flow of Information Act now that the U. S. Supreme Court in early June decided not to hear a case involving New York Times reporter James Risen. The Fourth Circuit Court of Appeals last year ruled, "There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source." (U. S. v. Sterling, 724 F.3d 482, 492 (4th Cir. 2013).) The Supreme Court's June decision not to hear the case exposes Risen to potential jail time for not identifying a source.

Risen is the author of a book, "State of War: The Secret History of the CIA and the Bush Administration," that detailed a CIA plan to sabotage Iran's nuclear program. Prosecutors contend that a former CIA agent, Jeffrey Sterling, leaked information to Risen which was used in the book.

The Fourth Circuit's decision rejects a First Amendment privilege for reporters not to testify in criminal cases, and also rejects a "qualified, federal common-law reporter's privilege protecting confidential sources." But the Court did recognize a qualified reporter's privilege in civil cases, saying that the Fourth Circuit has "continued to recognize the important distinction between enforcing subpoenas issued to reporters in criminal proceedings and enforcing subpoenas issued to reporters in civil litigation. Subpoenas in criminal cases are driven by the quite different and compelling public interest in effective criminal investigation and prosecution, an interest that simply is not present in civil cases."

The Court rejected a privilege for Risen, holding, "he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury -- the illegal disclosure of classified, national security information by one who was entrusted by our government to protect national security, but who is charged with having endangered it instead."

The U.S. Supreme Court's decision not to hear the case is the latest in a number of decisions by the Supreme Court not to revisit its 1972 decision in Branzburg v. Hayes, 408 U. S. 665. For decades, many lower courts had relied upon Justice Lewis Powell's concurring opinion in Branzburg to recognize some form of reporter's privilege. Justice Powell's concurring opinion stated, "The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources."

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February 26, 2014

Can Smartphones Conceal Officials' Dumb Comments?

Public officials who say something stupid or corrupt often don't use their work computer.

The device du jour for sending incriminating or embarrassing messages has become the "personal" computer or smartphone.

Recent revelations of such incriminating or embarrassing e-mails by aides to Governor Chris Christie of New Jersey and Scott Walker of Wisconsin have shone a bright spotlight on the extent to which public officials are attempting to use "private" electronic devices to conduct public business, and to evade disclosure of their writings. The revelations also raise the issue of whether such e-mails and texts are covered by states' public records laws.

In Wisconsin, newly-released e-mails showed that Gov. Walker's aides did campaign business on government time. An investigation revealed that some of Mr. Walker's aides while he was a county executive routinely used personal laptop computers, a non-county computer network, and private Yahoo and Google e-mail accounts to conduct campaign-related business while at work. His chief of staff forwarded a chain e-mail to undisclosed recipients that concluded, "I can handle being a black, disabled, one-armed, drug-addicted, Jewish homosexual on a pacemaker who is H.I.V.-positive, bald, orphaned, unemployed, lives in a slum, and has a Mexican boyfriend, but please, Oh dear God, please don't tell me I'm a Democrat."

Gov. Christie's aides used various e-mail accounts while orchestrating lane closures in the George Washington Bridge scandal that has jeopardized Christie's Presidential ambitions.

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February 17, 2014

California Regents Coddle Billionaires

Income inequality is one of the biggest issues in the country.

The University of California Regents recently joined that issue squarely on the side of the billionaires, and against everyone else -- including taxpayers -- in a case involving the degree of transparency which should be allowed into the university's venture capital investments.

In a recent court case, Regents of the University of California v. Superior Court, the Regents coddled two of the richest venture capital funds, Sequoia Capital and Kleiner Perkins Caulfield & Byers, by spending taxpayer money to hide the individual fund performance of UC's investments in those two well-connected and fabulously-rich firms.

In the insular world of the Regents, if a billionaire venture capitalist says "jump," the Regents ask "how high"? The Regents count themselves lucky if they can give the venture capital firms tens of millions of taxpayer dollars.

If the name Kleiner Perkins sounds familiar, it should. The firm's co-founder, Tom Perkins, who is worth an estimated $8 billion, recently made news by comparing those who wonder about income inequality to Nazis. Perkins said in a letter to the Wall Street Journal, "I would call attention to the parallels of fascist Nazi Germany to its war on its 'one percent,' namely its Jews, to the progressive war on the American one percent, namely the 'rich.'"

It's easy to see why Mr. Perkins feels persecuted, since he's down to his last $8 billion. And it's easy to see why the UC Regents would spend taxpayer money to help out the Kleiner Perkins firm, given the firm's dire financial situation. Of course, Kleiner Perkins may need to hold on to some of its money since it's now fighting a gender discrimination suit brought by a former partner, Ellen Pao.

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February 5, 2014

Bloggers Protected Like Other Journalists

What's the difference between a blogger and an old-fashioned ink-stained newspaper reporter?

Not much, according to a January 17 court ruling from the federal Ninth Circuit Court of Appeals.

Ruling on what it called a "question of first impression" on the First Amendment protections afforded a blogger sued for defamation, the Court in Obsidian Finance Group v. Cox held that "liability for a defamatory blog post involving a matter of public concern cannot be imposed without proof of fault and actual damages."

The Court's ruling was not surprising. Although the Ninth Circuit had not directly addressed whether First Amendment defamation rules "apply equally to both the institutional press and individual speakers," the Court observed that "every other circuit to consider the issue has held that the First Amendment defamation rules...apply equally to the institutional press and individual speakers." Other courts have cited the difficulty of defining who belongs to the "media."

The Court in Obsidian concluded, "The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others' writings, or tried to get both sides of a story." It said a First Amendment distinction between the institutional press and other speakers is "unworkable."

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June 30, 2012

Court Strikes Down Law Banning Lies About Medals

The Supreme Court's ruling upholding President Obama's Affordable Care Act wasn't the only split decision it handed down on June 28.

The Court also made a major First Amendment ruling, striking down the "Stolen Valor Act of 2005," which makes it a crime to lie about having received the Congressional Medal of Honor. Justice Anthony Kennedy's plurality opinion stated, "Fundamental constitutional principles require that laws enacted to honor the brave must be consistent with the precepts of the Constitution for which they fought....Statutes suppressing or restricting speech must be judged by the sometimes inconvenient principles of the First Amendment."

Beyond the law at issue, the Court's plurality opinion observed, "The Court has never endorsed the categorical rule the Government advances: that false statements receive no First Amendment protection. Our prior decisions have not confronted a measure, like the Stolen Valor Act, that targets falsity and nothing more."

Does the Court's decision mean that there is now a license to commit fraud and perjury? No. The plurality opinion -- written by Justice Kennedy, and joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg and Sonia Sotomayor -- listed fraud as a category of speech which has long been restricted, and took pains to say that perjury statutes are constitutional. "Sworn testimony is quite distinct from lies not spoken under oath and simply intended to puff up oneself," Justice Kennedy's opinion declared.

The Stolen Valor case, United States v. Alvarez, produced three separate opinions. Justice Kennedy's plurality opinion applied strict scrutiny to the law, saying, "When content-based speech is in question...exacting scrutiny is required," and holding that the law flunked that test because, "The Government has not shown, and cannot show, why counterspeech would not suffice to achieve its interest. The facts of this case indicate that the dynamics of free speech, of counterspeech, of refutation, can overcome the lie." Justice Kennedy pointed out that Xavier Alvarez, the man who lied about having received a Congressional Medal of Honor, was perceived as a phony even before the FBI began investigating his false statements.

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January 4, 2012

Final Shot Fired in California Pension Transparency Battle?

A Los Angeles judge has issued what may be the last ruling in a years-long battle for pension transparency in California.

Superior Court Judge James Chalfant held on November 15 that the Los Angeles Times is entitled to know not just the names and pensions of retired Los Angeles County employees, but also their start date, years of service at retirement, service years they "purchased," benefit payment options, the formula used to calculate the benefits, and their gross medical benefits. His ruling became final on December 13.

The Los Angeles County Employees Retirement Association ("LACERA") had, for two years, resisted turning over even the names of pension recipients. Finally, after three separate 2011 Court of Appeal decisions held that names and pension amounts must be disclosed, LACERA agreed to disclose the names of its pension recipients, but still balked at disclosing other information like years of service, pension formula and medical benefits received.

Judge Chalfant's 14-page, single-spaced decision interpreted the three Court of Appeal decisions and found that the public had a right to know not only how much a public employee's pension is, but also how it's calculated. He agreed with newspaper reporters and taxpayer advocates who testified that without knowing how a pension is calculated, the public is unable to determine whether a pension has been "spiked" by adding perks to a last year's salary, or "purchasing" service time. "A retiree member's election of retirement options is a necessary component in the calculation of his or her retirement benefits in which the public has a legitimate interest," Judge Chalfant ruled. "A retiree's years of service at retirement, service years purchased, benefit payment options, and the formula used to calculate the benefit all must be disclosed...LACERA's calculation of retirement benefits cannot be evaluated without this information."

LACERA has stated it will not appeal Judge Chalfant's ruling and that it will turn over the records by February 15.

Many of LACERA's tens of thousands of retirees receive six-figure pensions, and at the state level California Governor Jerry Brown has called for raising the retirement age and trimming pension formulas to help the cash-strapped state balance its budget and avoid ever-deepening cuts to education and other services.

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December 27, 2011

"Stolen Valor" Case Poses Free Speech Test

The U. S. Supreme Court will soon hear a case which could do major damage to First Amendment free speech protections.

The case, U. S. v. Alvarez, involves the "Stolen Valor Act," a 2005 law which makes it a crime to lie about having received a military medal of honor. The federal 9th Circuit Court of Appeals found the law unconstitutional but the Supreme Court on October 17 agreed to hear the case.

The 9th Circuit had held, "if the Act is constitutional...then there would be no constitutional bar to criminalizing lying about one's height, weight, age or financial status on Match.com or Facebook, or falsely representing to one's mother that one does not smoke, drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway. The sad fact is, most people lie about some aspect of their lives from time to time." The ever-colorful Chief Judge Alex Kozinski commented that talking about oneself is "precisely when people are most likely to exaggerate, obfuscate, embellish, omit key facts or tell tell tales. Self-expression that risks prison if it strays from the monotonous reporting of strictly accurate facts about oneself is no expression at all."

But 9th Circuit Judge Diarmuid O'Scannlain, who dissented from the court's denial of rehearing, saw it differently, saying, "restrictions upon false speech do not receive strict scrutiny." The 9th Circuit majority, however, held, "regulations of false factual speech must, like other content-based speech restrictions, be subjected to strict scrutiny unless the statute is narrowly crafted to target the type of false factual speech previously held proscribable because it is not protected by the First Amendment."

No one argues that falsely claiming to have received a Medal of Honor is the highest and best form of free speech. But if the Supreme Court upholds the Stolen Valor Act it will likely expand the kinds of speech which are categorically exempted from First Amendment protection. This would create a slippery slope under which many forms of political speech might be subject to criminal sanctions if found to be untrue. After all, there is sometimes a fine line between the embellishments and half-truths which pervade political discourse, and the flat-out lies at issue in the Alvarez case. (Xavier Alvarez, a member of a water board in southern California, said in 2007 that he had been wounded as a Marine and had in 1987 received a Medal of Honor. He had never served in the military. The government prosecuted him and he conditionally pled guilty to violating the Stolen Valor Act, while reserving his rights to challenge its constitutionality. The Act imposes a penalty of up to a year in prison plus a fine; Alvarez was sentenced to three years probation and a $5,000 fine.)

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Consider the issue of "job creation," sure to be front and center in the 2012 elections. In the recent campaign for San Francisco Mayor, one candidate said he had "created" thousands of jobs. His "creation"? He voted for tax breaks for companies located downtown. On the Presidential level, Mitt Romney likes to talk about his record of "job creation." If he is lying about his record -- his venture capital firms laid people off after leveaged buyouts -- should he go to jail? The point is, criminalizing lies is likely to pose serious threats to free speech.

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December 7, 2011

Did Brown Cell Out Privacy Rights?

California Governor Jerry Brown disappointed privacy advocates with his October 9 veto of a bill which would have required law enforcement officers to have a warrant before searching cell phones incident to an arrest.

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The bill, Senate Bill 914, sailed through the Legislature with a 32-4 Senate vote and unanimous 70-0 support in the Assembly. It would have overturned a California Supreme Court decision, People v. Diaz(2011) 51 Cal. 4th 84, which held that a search of a defendant's cell phone incident to an arrest was lawful, even without a warrant, because a cell phone is like an article of clothing.

Dissenting Justice Kathryn Werdegar argued that, "The potential intrusion on informational privacy involved in a police search of a person's mobile phone, smartphone or handheld computer is unique among searches of an arrestee's person and effects," because a smartphone can contain hundreds of thousands of messages, photographs, videos, maps, contacts, financial records, memoranda and the like.

The Legislature agreed. SB 914 would have overturned the Diaz decision. The author, State Senator Mark Leno (D-San Francisco), said, "If you like to attend political rallies, parades, protests or sit-ins, you might want to consider leaving your cell phone at home in the event arrests are made. A recent California Supreme Court decision allows police to rummage through all of the private information on your smart phone as part of an arrest, including your text messages and e-mails." He said the court's decision raised many privacy concerns, and a bi-partisan majority of the Legislature agreed. Leno said cell phones "store a wealth of personal information," and that accessing information on a cell phone is "fundamentally different than searching an arrested person's wallet, cigarette pack or jeans pockets."

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November 23, 2011

Occupy Movement Raises Thorny First Amendment Issues

The Occupy movement is raising some thorny First Amendment issues.

Protesters have First Amendment rights to demonstrate and march, and they've raised important issues about the rising income inequality in this country.

On the other hand, governments traditionally have been able to impose so-called "time, place and manner" restrictions, so the issue becomes whether Occupy protesters have First Amendment rights to permanently occupy certain public places.

I had little sympathy for homeless people in San Francisco's Golden Gate Park who left syringes and human waste in the park and despoiled its natural beauty.

But I have more sympathy for those who've pitched tents in downtown spaces like San Francisco's Harry Bridges Plaza and Oakland's Frank Ogawa Plaza. For one thing, there's a clear speech message associated with their encampment. For another, they are occupying what seem like public spaces more suitable for public gatherings than enjoyment of natural beauty and the great outdoors.

Recently police have moved in and evicted Occupiers from places in which they've pitched tents in many cities. In some places, such as the University of California Davis, the police have stepped over the line, using pepper-spray on non-violent protesters who linked arms on the campus.

I don't doubt that the authorities can take steps to protect the public health. But special care must be taken to ensure that the exercise of pure political speech is not sacrificed in the process.

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