First Amendment Lawyer Blog

ANONYMOUS SPEECH: RIGHT OR WRONG?

One of the hallmarks of the Internet age has been the increasing prevalence of anonymous speech.

No one can question that there is a First Amendment right to anonymous speech. The U. S. Supreme Court affirmed that point in the case of McIntyre v. Ohio. Anonymous speech serves many important purposes: people who are aware of government or corporate wrongdoing can alert the public to wrongdoing anonymously in situations where they can’t use their real name.

But a small number of online commentators post racist, homophobic, sexist and mean-spirited comments and hide behind the cloak of anonymity given to them as online commentators, as one editor has said. The editor wrote: “We’re trying to balance people’s right to free speech with the responsibility not to be slanderous, libelous, sexist, racist or just plain mean.”

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Last year's California Supreme Court ruling mandating disclosure of public employee salaries is the gift that keeps on giving to the public.

Every day, some newspaper throughout the state does a story reporting on some city which can't manage its budget, or some public employee who appears to be making more money than they should because of nepotism or cronyism. Transparency is vital to allow the public to at least see what's happening and agitate for change.

Some (but not all) powerful public employee unions, including those representing police and prison guards, waged a long fight recently to keep named public employee salaries under wraps. That fight ended last August when the California Supreme Court, in a lawsuit brought by the Contra Costa Times, held that public employee salaries are public records. The court held that disclosure of public employee salaries is necessary to guard against instances of nepotism, cronyism and inefficiency. The Court also brushed aside claims by police that their salaries couldn't be disclosed because of separate laws governing disclosure of police records.

The Court's ruling (full disclosure: I represented the Contra Costa Times in the case) pays daily dividends to the public. California has a multi-billion dollar deficit, and one of its cities, Vallejo, recently faced bankruptcy because of police and fire pay. There are many hard-working aunderpaid public employees out there, but there are also many instances of nepotism and out-of-control overtime. In the words of the U.S. Supreme Court, people in an open society don't demand infallibility from their government, but it's difficult for them to accept what they can't observe. Last year's public employee salary ruling from California's high court at least lets the public see who earns what.

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Does the First Amendment protect someone’s use of another’s copyright or trademark to make fun of them?

That question has been at the forefront of several cases involving so-called “parody” of intellectual property. Many cases have found parody of copyrighted works or trademarks protected under the “fair use” doctrine or the First Amendment or both. One of the best-known examples was a parody of the song “Pretty Woman” which the U.S. Supreme Court held was protected. Another case held that a 29-second song “When Sonny Sniffs Glue” which parodied the original “When Sunny Gets Blue” was a fair use.

A U. S. District Judge in San Francisco, Susan Illston, recently applied “fair use” principles in a lawsuit brought by radio talk show host Michael Savage. Savage went on a tirade (“Take your religion and shove it”) about Muslims and the Council on American-Islamic Relations. The Council posted his virulent remarks on its website, and Savage sued it for copyright infringement. Judge Illston gave the lawsuit savage treatment, dismissing it based upon the “fair use” doctrine and the “Oh Pretty Woman” case. See Savage v. Council on American Relations et al. She noted that the Copyright Act “expressly permits fair use for the purposes of criticism and commentary.” The same First Amendment which allows Michael Savage to rant about Muslims enables them to criticize him.

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The First Amendment and judicial independence – both prized pieces of American democracy – have an uneasy coexistence these days.

Many states elect their trial judges and the justices of their highest courts, and in some states, like West Virginia, big-money corporate interests have waged expensive campaigns to elect or defeat Supreme Court justices. John Grisham’s “The Appeal” offers a gripping tale about a fictional – but plausible – attempt to “buy” a seat on the Mississippi Supreme Court and swing the outcome of a pending case. In California this year, opponents of the California Supreme Court’s gay marriage ruling are likely to accuse the court of “judicial activism” in a multi-million dollar attempt to reverse its ruling.

The First Amendment protects these attacks on the courts, and it protects judges’ attempts to defend themselves. That much is clear from a U.S. Supreme Court case called Republican Party of Minnesota v. White. But there’s something unseemly, and deeply disturbing, about politicizing the courts. Judges and appellate court justices are supposed to be like umpires, calling balls and strikes, not playing for one team or the other. If they are dragged into political fights and have to raise and spend millions of dollars from the very people who have cases before them to defend themselves, the quality of justice suffers, the impartiality of the courts is imperiled, and public confidence in the courts takes a hit.

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The media will inevitably come under intense criticism this year for its coverage of the Presidential election. Supporters of John McCain have criticized the media for favoring Barack Obama. Hillary Clinton’s backers considered some in the media sexist, and Obama backers have complained of what they consider racist comments by members of the media.

‘Twas ever thus. The media – like politicians – can make some of the people happy all of the time, and all of the people happy some of the time, but can’t – and shouldn’t try to – make all of the people happy all of the time.

This election’s “media” coverage is complicated by the full emergence of the Internet and the blogershere and the cacophonous coverage produced by such a multitude of voices. Ironically, though, the Internet’s allowance of a greater number of voices may bring us back closer to where we were at the birth of our nation, when a panoply of pamphleteers peddled their wares and when one journalist – who was said to have been paid by Thomas Jefferson – called George Washington “a traitor, a robber and a perjuror,” and another accused President John Adams of “selfish avarice.”

Next time your candidate gets pilloried, or his or her words are taken out of context, think of those unfair and scurrilous attacks on George Washington more than 200 years ago – and think of how lucky we are to have the First Amendment’s protection for free speech and a free press – whatever “the press” is these days – instead of the enforced censorship that reigns in places like China.

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Congress is debating whether there should be a federal “shield law” for reporters, modeled after state reporter’s privilege laws which exist in 35 states and which help protect vital First Amendment rights.. Of the 15 states which don’t have statutory protections for reporters, all but one have some form of protection for reporters against compelled disclosure of their sources.

A key issue is whether such reporter’s privilege laws should apply only to reporters from traditional media such as newspapers and television stations, or whether online journalists and bloggers should have protection. One federal case warned against extending a federal common law privilege to “bloggers in pajamas.”

A California Court of Appeal, in the well-reasoned decision of O'Grady v. Superior Court, http://www.courtinfo.ca.gov/opinions/archive/H028579M.PDF, held that on-line journalists are “reporters, editors, or publishers entitled to the protections of the constitutional privilege. If their activities and social function differ at all from those of traditional print and broadcast journalists, the distinctions are minute, subtle, and constitutionally immaterial.”

This reasoning is persuasive. If sources need a promise of confidentiality to blow the whistle on corporate and government wrongdoing – and they do – and if journalists need to offer confidentiality on occasion, it shouldn’t matter whether the journalist’s story is delivered in a truck or over the Internet. Either way, the reporter’s privilege is protecting important speech and enabling vital stories to be told. Congress should pass a shield law, and it should extend to on-line journalists.

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Postmus gives public the mushroom treatment

Some government officials view members of the public as mushrooms, to be kept in the dark and covered with manure.

San Bernardino County Assessor Bill Postmus is surely one of those officials. Postmus waged a pitched battle, at county expense, last year to resist turning over calendars and e-mails from his time on the San Bernardino County Board of Supervisors in 2006. Now, in a stunning development, his aide Adam Aleman has been criminally charged with destruction of public records. The District Attorney’s office says Aleman deep-sixed the hard-drive of a laptop computer which belonged to his boss Postmus when Postmus was on the Board of Supervisors. Postmus has not been charged with a crime.

Aleman’s alleged criminality isn’t the only questionable conduct to take place on Postmus’ watch. The same day Aleman was arrested, June 30, the county Grand Jury issued a scathing report saying that the Assessor’s office had been widely used for political purposes, with staffers engaging in Republican party activities at county expense.

The Grand Jury found that when Postmus took office in January 2007 he hired an “executive support staff” which “lacked experience or training directly associated with assessor work.” Most of the “executive support staff” had been with Postmus when he was on the Board of Supervisors and/or was Republican Central Committee Chairman. While dedicated career employees who’d been on the job before Postmus was elected did the day-to-day work, Postmus’ people did “public image” work and “engaged in political activities for various national, state, and local political candidates during normal working hours.” In other words, Bill Postmus harnessed your tax dollars to the service of his own large political ambitions, whether you liked it or not. That’s called taxation without representation, or maybe even Tammany Hall corruption.

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Posted by Karl Olson | Permalink | Email This Post

Posted In: Public Records

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Playing Hide and Seek With Public Records

It’s not unusual for newspapers, or lawyers in Public Records Act or Freedom of Information Act cases, to accuse the government of trying to “hide” things. Now a San Bernardino County case has revealed what may be a criminal attempt at hiding public records, just in time for a Fourth of July reminder about the importance of access to information about government.

San Bernardino County officials June 30 arrested Adam Aleman, a 25-year-old assistant assessor in that county. Aleman was charged with six felony counts – among them a count for destruction of public records. That count alleges that he destroyed the hard drive of a laptop computer that had been issued by the county to Assessor Bill Postmus during Postmus’ tenure on the Board of Supervisors.

The link to Postmus is significant. He was the central figure in a Public Records Act lawsuit brought by the California First Amendment Coalition and the San Bernardino Sun claiming that Postmus should have disclosed calendars and e-mails relating to a two-week period in the summer of 2006 when fires raged in San Bernardino County and Postmus, then the chairman of the Board of Supervisors, was mysteriously absent.

A San Bernardino County judge ordered a few calendar entries and e-mails released but upheld the county’s decision to withhold many calendar entries based upon the county’s claim of “deliberative process.” But during the case, the judge ordered the county to prepare a “privilege log,” an inventory of withheld records and the county’s reasons for withholding them. The log revealed a gap in the summer of 2006 during which Postmus seemed to have been cut off from e-mail. His spokesmen offered conflicting accounts about where Postmus was and whether he had email access.

The DA’s office has not linked Aleman’s indictment to the mysterious events surrounding Postmus (and Postmus himself has not been charged with any crime). However, the hard drive may have been destroyed in June or July of 2006 – the same summer Postmus was absent during the raging fires in his home county.

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It’s been said that when it comes to the First Amendment, the tie goes to the speaker, not the censor.

The U. S. Supreme Court’s free speech decisions have generally adhered to that principle, but not always. The Court threw out campaign finance regulation partly because a speaker should have the autonomy to choose the content of his own message, and the regulations went too far in prohibiting campaign ads. We can expect to see plenty of free – and no doubt misleading – speech as the November 2008 elections approach.

The same day the Court struck down bars on campaign ads, however, it upheld the decision of an Alaska school censoring a student’s banner in the famous “Bong Hits for Jesus” case. The court showed more deference to school officials than it did to a high school student’s free speech rights. Dissenting Justice John Paul Stevens stated, “In my judgment, the First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students. This nonsense banner does neither, and the Court does serious violence to the First Amendment in upholding – indeed, lauding – a school’s decision to punish Frederick for expressing a view with which it disagreed.”

Justice Stevens was right, in my view. The court should have displayed the same “tie goes to the speaker, not the censor” attitude in that case that it displayed when it came to campaign finance regulations.

Posted by Karl Olson | Permalink | Email This Post

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