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.

In California, a Court of Appeal in San Jose will hear arguments in a case March 11 which will decide whether officials' e-mails on "personal" electronic devices are subject to disclosure under the state's Public Records Act or Constitution.

San Jose officials, backed by the League of California Cities, argue that only records "prepared, owned, used or retained" by the city as a whole are subject to the Public Records Act. The plaintiff in the case, Ted Smith, backed by media outlets and open government groups, argues that the city can only act through its employees and officials, and that the content of the messages -- not their location or the type of device on which a message is sent -- should determine whether the messages are public.

The recent examples in New Jersey and Wisconsin -- where top gubernatorial aides tried to hide wrongdoing by using personal smartphones and the like -- underscores the importance of this case. Public officials shouldn't be allowed to cover their tracks by the simple expedient of using their own smartphone to conduct shady government business or to electioneer at public expense.

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.

The Sequoia Capital firm is no less self-absorbed and self-righteous than Mr. Perkins. In an August 2003 letter to then-UC Treasurer David Russ (who's now gone to the private sector), Sequoia's Michael Moritz told UC that a Public Records Act case against UC had "impelled us to end our relationship." In other words, Moritz said, he wouldn't take UC's money any more. "We are utterly resolute in our belief that it is not in the interests of Sequoia Capital's other clients that we be hounded, badgered and stalked by entities wishing to either profit from or publicize our private and confidential information." Most people receicing tens of millions of dollars from the government would be happy, but Mr. Moritz felt "hounded, badgered and stalked" if anyone wanted to know how the investment of taxpayer money had performed.

Moritz and Sequoia got over their hurt feelings, however, when the Great Recession of 2008 dried up sources of venture capital. Sequoia solicitied UC to invest in several funds in 2009, and UC responded by -- you guessed it -- giving more millions of dollars to Sequoia. But it won't tell taxpayers how the latest Sequoia investments have performed.

The Regents say their investments in venture capital firms like Kleiner Perkins and Sequoia have been good for retirees and students. But without disclosing how individual venture capital funds have performed, there's no way to test the Regents' assertions. That was the ruling of a superior court in 2003, and the California Legislature followed by requiring, in 2005, that certain information about venture capital investments must be disclosed. The Regents are now trying to circumvent that law by refusing to obtain from Kleiner Perkins and Sequoia fund performance information that those venture firms don't want to disclose. (Other venture firms are, as of this writing, still disclosing fund-by-fund performance information.)

The Regents' position is bad public policy and bad business. A comprehensive 2012 report by the Ewing Marion Kauffman Foundation -- itself an investor or limited partner in many venture firms -- showed that the average venture capital firm fails to return investor capital after fees. The Kauffman Foundation study blasted the "complete lack of oversight and accountability" exercised by limited partner investors like the California Regents, called for increasing transparency and requiring firms like Kleiner Perkins and Sequoia to have more "skin in the game," and said, "Eliminating the black box of VC firm economics is required if limited partners seek to make prudent and aligned VC investments. Limited partners have historically failed to secure even miminal information rights on issues that foster transparency and are material to aligning limited partner and general partner interests."

California's Regents would do well to heed those words, to insist on a modicum of transparency, and to stop spending taxpayer money defending the hurt feelings and protecting the egos of billionaires. Asking for transparency, and questioning whether venture capitalists are getting special treatment, isn't Nazism. It's democracy.

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."

While the Court's ruling further blurs the lines between traditional and new media, it doesn't completely erase those lines outside the defamation context. Many states, such as California, have newsperson's "shield" laws which enable newspaper, radio and television reporters and editors to protect confidential sources and "unpublished information." It is by no means certain that such laws protect the so-called "bloggers in pajamas," and a proposed federal shield law is wrestling over that issue. So while the Ninth Circuit's Obsidian ruling gives breathing space to bloggers concerned about being sued for what they say, it's too early to herald the complete demise of all distinctions between bloggers and their brethren in the traditional media.

June 30, 2012

Court Strikes Down Law Banning Lies About Medals

The Supreme Court's ruling upholding President Obama's Affordable Card 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.

A concurring opinion written by Justice Stephen Breyer and joined by Justice Elena Kagan applied a lesser "intermediate scrutiny" to the law, agreed that it was unconstitutional, but left room for the government to come back with a narrower law. "The Government has provided no convincing explanation as to why a more finely tailored statute would not work," Justice Breyer's concurrence stated.

Meanwhile, Justice Samuel Alito, joined by Justices Antonin Scalia and Clarence Thomas, dissented, disagreeing with the assertion made in the other opinions that the government could protect its interest in honoring medal holders with an accurate, publicly available register of military awards. "Because a sufficiently comprehensive database is not practicable, lies about military awards cannot be remedied by what the plurality calls 'counterspeech,'" Justice Alito's dissent argued.

The decisions striking down the law, I think, are consistent with the Court's First Amendment jurisprudence. They clarify that fraud and perjury are unprotected, but they avoid creating a new type of unprotected speech. In the end, they adhere to what the Court said in its landmark New York Times v. Sullivan decision: some false statements are inevitable if there is to be open and uninhibited debate about issues that matter. That is a principle worth fighting for.

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.

Judge Chalfant also ruled in a companion case brought by law enforcement unions that only two of the roughly 7,000 retired sheriff's department employees represented by the unions were entitled to have their names withheld because of security concerns. The unions had brought their own lawsuit against the Times and LACERA, arguing that some of their members had safety reasons justifying withholding of their names. Judge Chalfant gave their lawsuit short shrift, issuing a tentative ruling rejecting all claims to withhold names, and eventually allowing one name to be withheld. The Times agreed that one other name could be withheld after the officer filed a declaration saying he is now in jail and other inmates might harm him if they saw his name in the Times.

In the last two and a half years, eight different California Superior Court judges, in heavily populated Los Angeles, Orange, San Diego, Sacramento and Contra Costa counties, and in Stanislaus, Sonoma and Ventura counties as well, have ruled in favor of pension transparency. Courts of Appeal in Sacramento, San Diego and San Francisco upheld the trial court rulings in Sacramento, San Diego and Sonoma counties. With Judge Chalfant's ruling, it appears the transparency battle is over, and the advocates of openness have defeated the forces of secrecy.

(Full disclosure: the author of this blog, Karl Olson, represented the Times in the Los Angeles case, the Sacramento Bee in the Sacramento case, and newspapers in the Contra Costa and Stanislaus cases. He filed a friend-of-the-court brief in the San Diego appellate case.)

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.

Our first President, George Washington, famously said he could not tell a lie and fessed up to chopping down a cherry tree, but few of his successors or would-be officeholders have held themselves to that standard.

The 9th Circuit struck down the "Stolen Valor Act" at issue in the Alvarez case because it was subject to strict constitutional scrutiny and was not narrowly tailored to achieve a compelling government interest. If the Supreme Court in the Alvarez case finds the lie at issue categorically unprotected, it will do major harm to free speech doctrine in a case which seems to be a victimless crime. After all, despite protestations that lies about the Medal of Honor might undermine troop morale, the country survived for over 200 years without the Stolen Valor Act (which was enacted in 2005), and Alvarez's lie was easily detected and "punished" where it should be, in the court of public opinion, when he was "outed" in the press.

The First Amendment protects, and should protect, not just true speech but occasional misstatements. As the Supreme Court held in the landmark New York Times v. Sullivan case, "erroneous statement is inevitable in free debate." The Supreme Court should affirm the 9th Circuit's holding that the "Stolen Valor Act" is unconstitutional.

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."

Governor Brown's veto message was sparse. The one-page veto stated, "The courts are better suited to resolve the complex and case-specific issues relating to constitutional search-and-seizures protections." The Governor -- who as Attorney General represented the state in the Diaz case -- didn't say much more about the decision, which was decided under federal (and not California) law. The majority opinion in Diaz, written by Justice Ming Chin, stated, "A warrantless search, incident to a lawful arrest, of a cell phone with limited storage capacity does not become constitutionally unreasonable simply because other cell phones may have a significantly greater storage capacity."

In my view, the dissent raised valid reasons why a warrant should be required to search cell phones, and Justice Werdegar acknowledged that "where the arresting officers have reason to fear imminent loss of evidence from the device, or some other exigency makes immediate retrieval of information advisable, warrantless examination and search of the device would be justified." The Legislature's overwhelming approval of SB 914 indicates strong support for requiring, under California law, warrants to search cell phones. Let's hope the Legislature takes another crack at this one -- I would not be at all surprised if the bill is introduced again, perhaps with some changes -- and finds a way to address Governor Brown's concerns.

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.

This is not the first time people have "occupied" places to send a message. As an advertisement in the New York Times from 1960 read, "In Montgomery, Alabama, after students sang 'My Country, 'Tis of Thee' on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission."

(That ad gave rise to a libel suit against the New York Times, and to the U. S. Supreme Court's famous New York Times v. Sullivan decision. The leader of the movement mentioned in the ad was, of course, Dr. Martin Luther King Jr.)

I am not saying that everyone in the Occupy movement is a saint, and I am not denying that there are some hangers-on and bad elements joining the Occupy crowd in some places. But I see important First Amendment values at stake here which should not lightly be sacrificed in the name of restoring order. When I see students rally at Sproul Plaza in Berkeley and students link arms at Davis, I go back to that 1960 newspaper ad, which read, "Decent-minded Americans cannot help but applaud the creative daring of the students and the quiet heroism of Dr. King." I go back to blacks "occupying" Southern lunch counters designated as "whites only," and people "occupying" buses. And I go back to the Supreme Court's opinion in the New York Times v. Sullivan case, which spoke of "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and siometimes unpleasantly sharp attacks on government and public officials." Or, in this case, the so-called "1 percent."

The Occupy movement is messy, and it's loud. But messy and loud protests are as American as apple pie, and any doubts about whether the Occupiers have a right to be where they are should be resolved in favor of the speaker.

October 15, 2011

Supreme Court Bludgeons California Video-Game Law

Is Mortal Kombat the highest form of free speech?

Maybe not. But it is protected by the First Amendment, according to a majority of the U. S. Supreme Court.

The Supreme Court's ruling on June 27 in Brown v. Entertainment Merchants Association struck down a California law restricting the sale or rental of violent video games to minors. It makes for interesting reading, and it produced several different opinions. Justice Antonin Scalia -- joined by Justices Kennedy, Ginsburg, Sotomayor and Kagan -- delivered a full-throated defense of violent video games, holding, "Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy, and restrictions upon them must survive strict scrutiny." He compared violent video games to Grimm's Fairy Tales, where the wicked queen, as punishment for trying to poison Snow White, "fell dead on the floor," and to Cinderella, where her evil stepsisters "have their eyes pecked out by doves."

The California law was dead on arrival, the Court said, because the state "acknowledges that it cannot show a direct causal link between violent video games and harm to minors."

Justice Samuel Alito and Chief Justice John Roberts weren't so sure. Alito wrote, "In the view of the Court, all those concerned about the effects of violent video games -- federal and state legislators, educators, social scientists, and parents -- are unduly fearful, for violent video games really present no serious problem. Spending hour upon hour controlling the actions of a character who guns down scores of innocent victims is not different in 'kind' from reading a description of violence in a work of literature. The Court is sure of this; I am not. There are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show."

Alito said, "Today's most advanced video games create realistic alternative worlds in which millions of players immerse themselves for hours on end. These games feature visual imagery and sounds that are strikingly realistic, and in the near future video-game graphics may be virtually indistinguishable from actual video footage." Alito and Roberts nevertheless agreed that the California law should be struck down, but only because the law was too vague.

Justice Clarence Thomas went off in a different direction, saying that the Founding Fathers "could not possibly have understood 'the freedom of speech' to include an unqualified right to speak to minors" without going through the minors' parents or guardians, and maintaining that the First Amendment challenge should be rejected on that basis.

Justice Stephen Breyer, meanwhile, would have upheld the law on its merits. He said that all the law does is prevent a child or adolescent from buying, without a parent's assistance, "a gruesomely violent video game of a kind that the industry itself tells us it wants to keep out of the hands of those under the age of 17." Breyer maintained that the law "imposes a restriction on speech that is modest at most."

This was a tough case, in my view. I have trouble accepting the notion that violent video games in which kids realistically simulate mass murder are no different from reading Cinderella or Grimm's Fairy Tales. As Justice Alito observed, "There are games in which a player can take on the identity and reenact the killings carried out by the perpetrators of the murders at Columbine High School and Virginia Tech." But at the same time, the law was correctly subjected to strict scrutiny, and the state was unable to show a "direct causal link between violent video games and harm to minors," as the majority held.

At the end of the day, the tie goes to the speaker, and as the majority held, because the state bears the risk of uncertainty, "ambiguous proof will not suffice." So parents who want to keep violent video games out of their kids' hands will have to take matters into their own hands, without the help of a well-intentioned -- but unconstitutional -- state law.

October 13, 2011

Transparency Not Always Convenient, But Important

There's an old saying: I may not agree with what you say, but I will defend to the death your right to say it.

Add to that: transparency may not always be convenient, but it's important to government.

This occurred to me recently in a case I am handling for the Los Angeles Times. The Times is suing the LA county retirement system for records of pensions paid to its tens of thousands of retirees. The system, LACERA, fought against disclosure for over a year and a half before finally relenting (in part) in the face of three court decisions ruling that the names and pension amounts of retirees must be disclosed.

Before anything was disclosed, a police union filed a lawsuit trying to block disclosure, claiming that some of its members might be "undercover retirees" who would be endangered by disclosure. Meanwhile, LACERA sent a letter to its members telling them it had to disclose their names and pension amounts. Its call center got jammed.

But not all retirees reflexively oppose disclosure, just as not all public employees oppose disclosure of their salaries. One LACERA retiree wrote a Times staffer saying that while she didn't like having her name and pension disclosed, she applauded the Times for fighting the battle. She said too many people in the media don't understand transparency laws like California's Brown Act and its Public Records Act.

There's a civics lesson here.

October 5, 2011

Amanda Knox convicted -- of defamation?

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must confess I haven't been following the Amanda Knox saga closely. But something caught my eye in the story about her return to the States.

She was convicted -- not of murder, but of defamation -- by an Italian jury.

Some states in the U. S. may still have criminal libel laws on the books. But it's safe to say no appellate court here would do what an Italian appellate court did -- overturn her conviction for murder but uphold a criminal conviction for accusing the bar owner she worked for of committing the murder.

September 7, 2011

BART Touches Third Rail in Cell-Phone Shutdown

The Bay Area Rapid Transit system (BART) stepped into a touchy First Amendment issue when it shut off cell-phone service this summer in response to protests over a police action.

The decision sparked protests from First Amendment advocates and even criticism from BART board members who thought the agency overreacted to protesters.

BART argues that it has no obligation to provide cell-phone service at all in its underground tube and tunnels. But the protesters argued, with some justification, that once BART provides cell-phone access it shouldn't cut it off to prevent protesters and riders from communicating and peacefully assembling.

Some even likened BART's actions to those of deposted Egyptian leader Hosni Mubarak, who tried to cut off cell-phone and Internet access to prevent swelling protests in Cairo which eventually brought down his regime.

That comparison may same somewhat over the top, but it does seem that there are better ways to prevent protests from getting out of hand than to prevent peaceful BART riders from communicating with each other and their loved ones. The BART board is in the process of setting a policy on cell-phone use -- and one hopes the policy will be sensitive to First Amendment rights.