The ACLU is demanding that the Department of Defense change training materials that the ACLU says equates activism with terrorism. –DB

American Civil Liberties Union
Press Release
June 10, 2009

Anti-terrorism training materials currently being used by the Department of Defense (DoD) teach its personnel that free expression in the form of public protests should be regarded as “low level terrorism.”

ACLU attorneys are calling the approach “an egregious insult to constitutional values” and have sent a letter to the Department of Defense demanding that the offending materials be changed and that the DoD send corrective information to all DoD employees who received the erroneous training.

“DoD employees cannot fully protect our nation and its values unless they understand that a core American value is the constitutional right to criticize our government through protest activities,” said ACLU of Northern California attorney Ann Brick. “It is fundamentally wrong to equate activism with terrorism.”

Among the multiple-choice questions included in its Level 1 Antiterrorism Awareness training course, the DoD asks the following: “Which of the following is an example of low-level terrorist activity?” To answer correctly, the examinee must select “protests.”

The ACLU sent a letter today to Gail McGinn, Acting Under-Secretary of Defense for Personnel and Readiness, asking that the materials be corrected immediately. The ACLU points out that the misinterpretation of First Amendment freedoms is particularly disturbing when viewed in the context of a larger, long-term pattern of domestic security initiatives by the government that have attempted to treat lawful dissent as terrorism.

Examples of this shameful pattern can be seen in the Pentagon’s monitoring of at least 186 anti-military protests, the FBI’s surveillance of potential protesters at the Republican National Convention, the Fresno County Sheriff Anti-Terrorism Unit’s infiltration and surveillance of Peace Fresno, a community peace and social justice organization and the covert surveillance by the Maryland State Police of local peace and anti-death penalty groups.

“Teaching employees that dissent on issues of public concern is something to be feared, rather than respected, is a dangerously counterproductive use of scarce security resources, making us less safe and less democratic,” said Michael German, ACLU National Security Policy Counsel and former FBI Special Agent, who co-signed the letter with Brick.

The Level 1 Antiterrorism Awareness training course is an annual training requirement for all DoD personnel that is fulfilled through web-based instruction.

Concerned about a documentary film critical of their policies, the California Costal Commission has taken the unusual step of serving a subpoena for a copy of the work in progress, a move that critics say chills freedom of expression. –DB

CalAware
June 11, 2009

FREE PRESS—The California Coastal Commission has served a subpoena on documentary filmmaker Richard Oshen for a copy of his unreleased work, “Sins of Commission,” a move which he fears may be preparatory to an efffort “to silence the film because it reveals strong links between California’s increasingly catastrophic wildfires and the Coastal Commission’s prohibition of critical brush clearance.”

“Sins of Commission” examines decades of the Commission’s land use policies and questions how a government body could and, indeed did, unilaterally extend its jurisdiction from 1000 yards landward of the coastline to 5 miles inland.

No matter what your politics, this isn’t America if a quasi-governmental body is going to dictate whether you have the right to see a film. This is a very chilling development, and does not bode well for documentary filmmakers or freedom of speech.

“Sins of Commission” is a work in progress. For a government body to demand a work print if like asking a journalist for their notes, or an author for a copy of their book before publication.

To think, if the government doesn’t like what the see or read—they could issue an injunction and prevent a story from getting out is scary… very scary.

Public interest attorney Ronald A. Zumbrun began his February 12 article in Freedom Advocates, “The Unrepentant Sins Of The California Coastal Commission,” with the following reference to the film—a reference that may have been the Commission’s first clue that it was soon to get some unflattering publicity:

What do the former mayors of Malibu and San Diego, a former member of the California Coastal Commission, and a former captain of the County of Los Angeles Fire Department have in common? In a soon-to-be released documentary film entitled “Sins of Commission”, these former public servants, along with several other aggrieved property owners, describe in painful detail the transformation of the California Coastal Commission as a protector of the environment into a radical bureaucratic monster.

Copyright 2009 CalAware

Federal court tightens administrative vice on student speech

A student who challenged her principal’s authority by including religious appeals in her valedictory speech had her suit against the school district dismissed by a appeals judge in part on the grounds that the speech was a learning opportunity and given the Supreme Court precedent of in Hazelwood v. Kuhlmeier subject to content review. -DB

Citizen Media Law Project
June 12, 2009
By Lee Baker

In a recent decision, the 10th Circuit Court of Appeals upheld a Colorado District Court’s rejection of a student’s First Amendment and Equal Protection claims over a forced apology resulting from her valedictory address.  The case, Corder v. Lewis Palmer School District No. 38, No. 08-1293, 2009 U.S. App. LEXIS 11668, results from an unwritten School District rule requiring students to submit their valedictory addresses for content review prior to giving the speech.  Erica Corder, one of fifteen valedictorians selected based on their 4.0 GPA, submitted a thirty-second speech, which contained no religious content, to the principal of Lewis Palmer High School for content approval.

However, during the graduation ceremony she presented a different speech, telling the students about Jesus Christ and encouraging them to “find out more about the sacrifice He made for you.” As a result of the speech, she was denied her diploma until she issued an apology email, including the statement: “I realize that, had I asked ahead of time, I would not have been allowed to say what I did.” Corder issued the apology email, including the preceding statement, and was awarded her diploma.

Corder then filed suit, asserting claims that the school violated her rights to freedom of speech and religion under the First Amendment, compelled speech in violation of the First Amendment, and violated her right to equal protection under the Fourteenth Amendment based upon the fact that the School District “allowed similarly situated speakers to give inspiring speeches without facing disciplinary action, but disciplined [Corder] because her inspiring speech contained religious elements.” The District Court granted judgment for the School District on the pleadings, and the 10th Circuit affirmed.

There are two aspects of the courts’ reasoning that are particularly troubling for those concerned with restriction of student speech: the holding that Corder’s claims for declaratory relief are moot, and the overly-broad interpretation of “legitimate pedagogical concerns” from Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).

Beyond nominal damages, Corder sought “a declaration that the School District violated Corder’s First Amendment and Equal Protection rights, and a declaration that the School District’s unwritten policy of reviewing student graduation speeches is unconstitutional.” Citing Green v. Branson, 108 F.3d 1296 (10th Cir. 1997), the court noted “a plaintiff cannot maintain a declaratory or injunctive action unless he or she can demonstrate a good chance of being likewise injured by the defendant in the future.”

Since Corder graduated, “[t]he School District no longer has the power or the opportunity to adversely affect Corder’s rights as they pertain to valedictory speeches,” and her demand for declaratory relief is moot.  Although the 10th Circuit notes the exception to the mootness doctrine outlined in Murphy v. Hunt, 455 U.S. 478 (1982), for cases that are “capable of repetition, yet evading review,” it specifies that this exception is very narrow, applying only where “there s a reasonable expectation that the same complaining party w[ill] be subjected to the same action again.” (Emphasis added.) Corder, having graduated, will never again be subjected to the School District’s unwritten prior review policy.

While legally and analytically sound, this rationale is something of a cop-out – instead of making a determination on the School District’s policy now, the court puts it off until a student refuses to submit his or her speech for prior approval, is denied the opportunity to speak, and then sues.  Not only does this seem like a colossal waste of judicial resources, but it’s doubtful that a high school student will have the legal know-how to follow through on this carefully choreographed series of legal moves, nor the dedication to potentially put off graduating for years as the case moves through the court system.

The second disturbing part of the opinion is the continued expansive reading of “legitimate pedagogical concerns” under the Hazelwood test.  The 10th Circuit begins by discussing the two approaches to students’ First Amendment rights at school: the Tinker test (393 U.S. 503 (1969)), which only allows suppression of student speech if it will “materially and substantially disrupt the work and discipline of the school,” and the Hazelwood test, which allows for editorial control of student speech in “school-sponsored expressive activities so long as [educators’] actions are reasonably related to legitimate pedagogical concerns.” In Fleming v. Jefferson County School District R-1, 298 F.3d 918 (10th Cir. 2002), the 10th Circuit interpreted Hazelwood broadly by stating that “pedagogical” merely meant any activity that was “related to learning,” and that the concept was “by no means confined to the academic for it includes discipline, courtesy, and respect for authority.” Thus, according to the 10th Circuit, the painting of memorial tiles by students and community members, to be affixed to Columbine High School’s hallways, constituted school-sponsored, pedagogical speech under Hazelwood, and was thus subject to editorial control.

Not to be outdone, other courts have interpreted “pedagogical” even more broadly, stating that this test may be satisfied “simply by the school district’s desire to avoid controversy within a school environment.” Under this framework, it is not surprising that the Corder Court found that “[t]he giving of a speech in a community graduation ceremony certainly is a learning opportunity. . . . an opportunity for the School District to impart lessons on discipline, courtesy, and respect for authority.” Of course, to someone not myopically focused on legal doctrine, it is absurd to claim that the School District is imparting “lessons on discipline, courtesy, and respect for authority” when the valedictorians themselves had full control over the content of their speeches (subject, of course, to prior review).

While some may find this decision to be nothing special, such analysis misses the point.  The fact that Corder intentionally mislead her principal by submitting a different speech than the one she eventually presented certainly reduces her moral claim.  But the 10th Circuit did not address this issue in its discussion of Corder’s First Amendment arguments, except to distinguish Adler v. Duval County School Board, 250 F.3d 1330 (11th Cir. 2001) in a footnote.  Instead, such analysis was confined to the court’s discussion of Corder’s Fourteenth Amendment Equal Protection claim.  Thus, the First Amendment analysis outlined above presumably would apply to any student challenging the prior review policy, whether or not they engaged in Corder-style subterfuge.

Given the Supreme Court’s restrictive view of student speech rights, as exemplified by the recent Morse v. Frederick, 551 U.S. 393 (2007) decision – better known as the “BONG HiTS 4 JESUS” case – it is not surprising that the circuit courts should also err on the side of over-restricting student speech.  Yet it seems that a more extensive use of the Tinker test would more appropriately serve the dual interests of students and educators – granting students the greatest freedom to voice their opinion and speak their mind while preventing disruptions to the learning environment.  How do we reconcile a society that values free discourse and the open marketplace of ideas with an increasing restriction of student speech, even outside of the school environment?

Lee Baker is a rising second-year law student at Harvard Law School and a CMLP legal intern.

Copyright 2009 Citizen Media Law Project

Schwarzenegger’s Calendars

CFAC sued Governor Arnold Schwarzenegger to obtain his calendars of meetings and those of his top aides. CFAC argued that a state Supreme Court decision sustaining a denial of access to these records was implicitly overturned by Prop 59, which the governor had championed during the election. Schwarzenegger settled, agreeing to turn over nearly all the calendars.

• Legal Documents
• Commentary
• In the news

Legal Documents

Verified Petition for Writ of Mandate

Governor’s Office Settlement Letter

CFAC Commentary

Sunshine and shadow; State must operate in the open to maintain its accountability

By Peter Scheer

What’s the governor doing? What’s the California Supreme Court doing? What, for that matter, is Michael Jackson doing?

The public’s right to know has a bearing on all of those questions. Access to the deliberations of government agencies and to government records and information is critical not just for journalists and lawyers but for citizens who want to hold government and public officials accountable. That access for the public is improving on at least one front in California while being thwarted on others.

[Read More]

In the News

Sacramento Bee
Move by coalition behind Prop. 59 is first test of open-government law.
Buoyed by voters’ broadening of the public’s right to know government’s business, a nonprofit advocacy group has formally requested access to Gov. Arnold Schwarzenegger’s appointment book. If the California First Amendment Coalition is successful – either by Schwarzenegger’s agreement to provide the information or a court’s order – it could weaken a key court decision open-government supporters say has blocked reams of information they believe should be public.

Associated Press
Associated Press article on CFAC records request
Only days after California voters overwhelmingly approved Proposition 59 to increase the public’s ability to inspect government records, a media-backed group is asking Gov. Arnold Schwarzenegger to release all his appointment calendars, schedules and meeting logs since taking office Nov. 17.

Los Angeles Times
Saying he has no secrets, Schwarzenegger reveals appointment records. Corporate executives and union leaders have been frequent visitors.
Gov. Arnold Schwarzenegger released 350 edited pages of private calendar and appointment records Wednesday, showing that he met frequently with corporate executives and union leaders in his first year in office, took part in dozens of fundraisers and spoke to various special interests whose fortunes could depend on state action. Until now, the governor has made public the barest information about his daily schedule, typically through terse press releases that stated he spent the day in private meetings.But saying he has nothing to hide, Schwarzenegger chose to comply with a request submitted by the California First Amendment Coalition under the Public Records Act

San Francisco Chronicle
Tantalizing peek at governor’s calendars. Budget meetings vie with interviews with Access Hollywood
Gov. Arnold Schwarzenegger’s administration provided a glimpse behind the somewhat secretive workings of California’s celebrity governorship, releasing Wednesday his official calendars that show days mixing routine budget meetings with movie-star media appearances. The calendars — the first to be released by a sitting California governor, according to administration officials — document how Schwarzenegger’s political and celebrity lives intertwine.

San Francisco Chronicle
Far from tied down in the Capitol, Governor spends much of his time outside Sacramento, according to calendars.
Gov. Arnold Schwarzenegger presented the Legislature with an ambitious agenda to shake up state government and demanded that lawmakers quickly enact his proposals.Yet even as Schwarzenegger has alternately accused legislators of stalling his agenda and insisted he wants to negotiate with them, the governor has spent most of his time away from the Capitol.

San Jose Mercury News
Prop. 59 opening government doors
Gov. Arnold Schwarzenegger has promised something that Gray Davis and previous governors resisted. He agreed to show the public who he’s meeting with and why.
More than a goodwill gesture, the governor is complying with the overwhelming wishes of voters who just passed Proposition 59, which broadened the public’s right to know.

Sacramento Bee
Calendar release is good, but not enough
The most frustrating thing about Arnold Schwarzenegger as governor is how often he promises to be revolutionary and instead turns out to be, if not ordinary, certainly not the mold-breaking force he has the potential to become. Time after time he feints toward the radical, only to pull back at the last minute. The latest example is his release of edited versions of his schedule as governor. During the campaign, this was part of Schwarzenegger’s promise to open government to “the people.” He pledged to mimic Florida, where almost everything the government does is open to inspection, in something close to real time.

The Desert Sun
Schwarzenegger keeps his word, opens calendar to media. His willingness to open records is a public service
In one of the most straightforward moves of his one-year tenure as governor of California, Arnold Schwarzenegger has opened his calendar from his first year in office to let the public peek at his appointment book. None of his predecessors ever agreed to such scrutiny. Schwarzenegger’s move bodes well for the public’s access to government.

Sacramento Bee
Governor makes time for contributors
A year’s worth of Gov. Arnold Schwarzenegger’s office calendars released Wednesday paints a picture of a chief executive who meets regularly with corporate campaign donors and some of the “special interests” he routinely rips, but also devotes an unusual amount of his time to using the media to sell his message. With its 350-page release, the administration sought credit for being the first to make such information public since a 1991 California Supreme Court case that has limited newspapers’ access to what justices called government’s “deliberative process.” First Amendment advocates said they were pleased Schwarzenegger is taking steps to broaden public access to government as he promised on the campaign trail last year.

Associated Press
Schwarzenegger to release his appointment calendars to public
Attorneys for Gov. Arnold Schwarzenegger wrote the media-backed California First Amendment Coalition on Wednesday, agreeing to honor its public records request under newly passed Proposition 59 for the governor’s appointments calendar and daily schedule. In a letter to CFAC Executive Director Peter Scheer, the governor’s legal affairs secretary, Peter Siggins promised to compile records of Schwarzenegger’s first year in office within 35 days, and invited the CFAC to inspect the documents as they are being compiled. Scheer called the letter a “mostly positive” development, saying, “We won’t know what we’re getting until we see what we’re getting. We don’t know the nature of this process.” But he said he was encouraged.

Marin Independent Journal
Profile of CFAC: Opening the state’s books
When Gov. Arnold Schwarzenegger opened his calendar for the world to see late last year, it was at the behest of a little-known nonprofit organization now headquartered in Marin. The 16-year-old California First Amendment Coalition, which moved to San Rafael from Sacramento in July, provides advocacy for public access to government, from local town councils to the highest offices.

CFAC v. CalPERS

CFAC successfully sued CALPERS, California’s public employee retirement system, to force it to disclose the management fees it pays to venture capital, private equity, and hedge funds in which CALPERS invests. Because of its huge size, CALPERS is the de facto standard-setter for the pension industry nationally. When CALPERS settled CFAC’s suit, agreeing to most of the fee disclosures CFAC had sought, public pension plans across the country followed suit.

• Legal Documents
• Press Releases
• In the news

Legal Documents

Petition for Writ of Mandarte to Compel Release of Public Records

Press Releases

CalPERS settles suit filed by CFAC. Pension fund for first time disclosses fess and profits on “private equity” investments. The California Public Employees’ Retirement System (CalPERS) publicly disclosed Monday, for the first time, the management fees it pays to individual venture capital, hedge, and other private equity funds in which CalPERS invests. The disclosure was hailed as a major victory for open government by the California First Amendment Coalition (CFAC), which had sued CalPERS to get the documents.

The documents reveal millions of dollars in management fees paid to venture funds which, according to press reports, are affiliated with individuals who made campaign contributions to CalPERS board members.

In the News

San Jose Mercury News
CalPERS settles lawsuit over disclosure of fund fees, information released about investment charges
California’s giant pension fund, CalPERS, on Tuesday announced a settlement to the case filed against it by the California First Amendment Coalition, agreeing to disclose information about the money it pays to the managers of its private investments. According to the settlement, which was expected, CalPERS has disclosed the management fees it pays to individual venture capital, hedge and other private equity funds in which it invests. The information covers 2001 through 2003, and CalPERS will disclose information for 2004 and 2005 as it becomes available. The settlement has revealed that CalPERS pays just over $200 million a year in management fees to 416 private equity funds in which it has invested $13.5 billion and plans to invest $21.1 billion. The First Amendment Coalition argues that CalPERS is paying too much in fees, which CalPERS disputes.

Los Angeles Times
CalPERS discloses private equity fees to settle a watchdog suit, the fund agrees to reveal what it pays to have its money managed
A watchdog group settled a lawsuit with the California Public Employees’ Retirement System on Tuesday, forcing the giant pension fund to disclose the fees it pays to have its money managed. The settlement was hailed as a victory by open-government advocates and may give ammunition to critics who contend that CalPERS is fraught with conflicts of interest. Fee details released Tuesday confirmed reports that CalPERS had made payments to partnerships whose principals have contributed to the political campaigns of two CalPERS board members: state Treasurer Phil Angelides and Controller Steve Westly. CalPERS, a $177-billion fund, has made an international name for itself by demanding greater corporate responsibility and transparency from the companies in which it invests.

The Wall Street Journal
Calpers to Disclose Fees Paid, Returns Made on Its Investments
California public retirees for the first time will be able to see how much the nation’s largest pension fund is paying in fees to individual private-equity funds and how much profit or loss each of those funds is generating annually, under terms of a legal settlement reached yesterday. In response to a lawsuit filed by a First Amendment rights group, the California Public Employees’ Retirement System, or Calpers, agreed to disclose how much it has paid annually from 2001 to 2005 in fees and costs to private-equity firms. Under the settlement, Calpers is preparing spreadsheets that reflect the annual amounts of the profit that it has received from each fund during 1999-2005. The settlement is the latest win for open-records advocates who are seeking greater disclosure of performance and investment data from private-equity firms, which are resisting the push.

Los Angeles Times
Fees to hedge funds and venture capital firms should be made public, a media group says
A group representing California news organizations sued the California Public Employees’ Retirement System on Tuesday, demanding that the giant pension fund reveal the money management fees it pays to individual venture capital firms and hedge funds. The suit places CalPERS on the other side of the table on the hot-button issue of disclosure: The $166-billion fund has been among the most vocal big investors nationwide in agitating for companies to be more forthcoming in their financial accounting and how their boards make decisions. Despite that policy, CalPERS in June refused a request by the California First Amendment Coalition that it itemize what it pays venture capital firms and hedge funds that manage nearly $9 billion in CalPERS assets. In part, the fund cited competitive issues, saying that some investment managers might decline to do business with CalPERS if their fees were made public.

The Wall Street Journal
Calpers Is Sued To Disclose Fees It Pays to Firms
A new round in the so-called transparency wars kicked off yesterday. An open-government advocacy group filed a lawsuit against the California Public Employees’ Retirement System asking that the pension fund disclose the management fees it is charged by private-equity firms that invest on its behalf. The lawsuit, filed in Superior Court in San Francisco, follows a freedom-of-information request that the group filed in May, asking for the data. Calpers refused the request, citing confidentiality agreements, according to the suit. “Calpers spends $500 million in management fees for alternative investments like venture-capital funds,” says Peter Scheer, executive director of the California First Amendment Coalition, a nonprofit group that filed the suit. “That is a great deal of money by any measure.” The pension fund’s constituents, he maintains, “can’t tell whether Calpers is getting a good deal, a bad deal, or whether they are paying too much.”

CFAC v. Santa Clara County

• Decisions
• Legal Documents
• Press Releases
• In the news

Decisions

May 18, 2007
California Superior Court rules in favor of CFAC

Legal briefs and other major pleadings (by date)

California 6th Appellate Court of Appeals

April 11, 2008
CFAC ‘Return’ – Main Merits Brief on Appeal

Download (PDF, 4.53MB)

July 5, 2007
Santa Clara Reply to Preliminary Opposition

June 25, 2007
CFAC Preliminary Opposition to the Appeal

June 12, 2007
Santa Clara Appeal – Legal Arguments

June 12, 2007
Santa Clara Appeal – Facts – Petition for Ex Writ

California Superior Court

March 12, 2007
CFAC Supplemental Reply Brief

Download (PDF, 892.41KB)

March 2, 2007
Santa Clara Supplemental Opposition Brief

Download (PDF, 1.39MB)

February 5, 2007
CFAC Reply Brief

January 30, 2007
Santa Clara Main Opposition Brief

Download (PDF, 1.11MB)

January 19, 2007
CFAC Opening Brief

Download (PDF, 1.26MB)

October 10, 2006
CFAC Petition

Download (PDF, 785.73KB)

Amici Briefs

June 12, 2008
Data Aggregators’ Brief

June 12, 2008
GIS Professionals’ Brief
GIS Amici Curiae

June 12, 2008
Media Organizations’ Brief

June 12, 2008
National Security and Freedom of Technology Brief

Opposition Amici Brief

June 12, 2008
Association of Counties and League of Cities Brief

July 2, 2008
CFAC’s Response to Opposition Amici Brief

Press Releases

May 22, 2007

In landmark open records case, court rules Santa Clara County must disclose parcel map data in “Geographic Information System”

Santa Clara County must make public–at minimal cost and without restrictions on use–its digital “basemap” showing parcel boundaries, the assessor’s parcel number for each parcel, parcel address, and other similar data for all propertis in the county, a court has ruled.

In a lawsuit filed by the California First Amendment Coalition (CFAC), the Superior Court for Santa Clara County affirmed that the basemap, which is the foundation for the county’s Geographic Information System, or GIS, is a public record to which the county can no longer limit access to just a small number of purchasers willing to pay tens of thousands of dollars in fees. (The case is CFAC v. Santa Clara County, No. 1-06-CV-072630.)

GIS technology provides a 3-D display, on maps, of information in a relational database. In effect, it allows a visual depiction, with precise locations, of the results of statistical analyses. Think Google Earth but with a local focus and specialized data. Used together with other publicly available data, the basemap allows citizens to monitor their local government on matters ranging from property tax assessments to zoning variances to street repairs.

The basemap will also enable journalists to do reporting that would not otherwise be possible. For example, reporters and bloggers could write stories that assess whether poor neighborhoods are being shortchanged for road repairs. Data on crime statistics, census information, political party affiliations, campaign contributions, environmental hazards and school test score results could be analyzed to spot trends and to test the validity of government policy assumptions and prescriptions.

“This landmark decision vindicates our view that government agencies may not claim exclusive control over records that are created with tax dollars,” said Peter Scheer, CFAC executive director. “While we encourage agencies to create databases and adapt public records to new technologies, the resulting applications cannot be run as monopoly businesses,” Scheer said.

“Affordable access to the GIS basemap means that the media and ordinary citizens will have a powerful tool for judging government performance in such areas as tax assessments, zoning variances and decisions on real estate development,” said Rachel Matteo-Boehm, CFAC’s lead counsel in the Santa Clara case. Ms. Matteo-Boehm is with the San Francisco office of Holme Roberts & Owen LLP.

In a 27-page decision, Superior Court Judge James P. Kleinberg rejected the county’s arguments that it could withhold the GIS basemap files because of their claimed status as computer software, and because the files allegedly contain “trade secrets” protected from disclosure under state and federal law. The court concluded the basemap consisted of data, not software. And it found that the county, by selling the basemap to private entities, had waived any trade secret protection to which the records otherwise might be entitled. The ruling was issued May 18 but not received by the parties until yesterday. (A copy is attached.)

The court found that federal copyright protection did not permit the county to deny a valid request under California’s Public Records Act. The court also turned aside the county’s attempt to avoid releasing the records by getting them designated “Critical Infrastructure Information” (CII) by the federal Department of Homeland Security. The court noted that this designation was sought only after CFAC filed suit, and despite the county’s past sales of the GIS basemap to 15 purchasers, five of them private companies.

The court said that, while some of the data in the basemap–relating to the location of easements for pipelines carrying water from the Hetch Hetchy reservoir–might possibly qualify for the CII designation, the county had not met its burden of withholding the entire basemap on that basis. CFAC, while expressing doubt about the sensitivity of the information about the Hetch-Hetchy water easements, said in its briefs that it would be willing to accept the basemap with the pipeline information stripped out, if necessary.

Only 13 of California’s 58 counties currently limit access to their GIS by charging substantially more than the cost of reproduction for access. Of these, Santa Clara’s fees are the highest–over $100,000 for purchase of the full basemap. Orange County observes a similar policy. Both Los Angeles and San Diego Counties recently lifted restriction and use fees for access to their GIS basemaps.

“Santa Clara, because of its exorbitantly high GIS fees, was seen as a crucial obstacle, in California and nationally, to public access,” said CFAC’s Scheer. “As a result of this court victory, we hope and expect that Orange County and other holdouts will reconsider their GIS policies,” he said

CFAC is a nonprofit public interest organization dedicated to advancing free speech and open-government rights. A membership organization, CFAC’s activities include educational and informational programs, strategic litigation, legal information and consultation services, and legislative oversight of bills affecting free speech. CFAC’s members are newspapers and other news organizations, bloggers, libraries, civic organizations, academics, freelance journalists, community activists–and ordinary individuals seeking help in asserting rights of citizenship.

CFAC’s Board consists of people involved in both “old” and “new” media, including, in the latter category, recently elected members Nicole Wong, associate general counsel for Google, and Neil Budde, general manager of Yahoo! News.

Wednesday, October 11, 2006

CFAC Sues Santa Clara County for Release of Computerized Mapping Data.

Wednesday, October 11, 2006—CFAC filed suit against Santa Clara County to force it to make public computer-readable mapping data that the county now sells to a handful of customers at eye-popping fees that can run to the hundreds of thousands of dollars.

The suit, filed in Santa Clara County Superior, claims that the digital files are public documents, copies of which must be released under the California Public records Act and Prop 59, the open-government constitutional amendment enacted in 2004. The county, in its denial of the records request, argues (among other things) that the mapping data are proprietary and copyrighted.

The mapping data are part of Santa Clara County’s geographic information system, or GIS, which provides a computerized, visual depiction of all land in the county. The so-called “base map,” which CFAC requested, is the foundation of the GIS, and shows such things as the boundaries of all property parcels, the tax assessor’s parcel number for all properties, and the street address for each parcel.

To this can be added many other categories of data, including utilities, soil survey information, ambulance response areas, geological fault lines, flood zones, noise areas and more.

Think “Google Earth,” but for just Santa Clara.

Under current policies, the county makes the base map data available to the public, but at fees that are vastly higher than what the Public Records Act allows. The fee for county-wide parcel information, for example, is approximately $250,000. In addition, those receiving the data are required by the county to sign a non-
disclosure agreement.

“The county, through the combination of prohibitively high fees and restrictions on use of the data, has created a monopoly,” said Peter Scheer, CFAC’s executive director. “Our law suit seeks to break down this monopoly and make the mapping data available to the people who paid for it—namely, the public,” Scheer said.

Scheer said that if the county base map were readily available, citizens would be able to see if their property is fairly assessed, or if they are being overcharged for home or flood insurance. “Access to the base map makes it possible for citizens to see hold local government more accountable,” he said.

CFAC also argues that making GIS mapping data generally available will benefit the public by leveling the playing field for regulatory decisions. “Real estate developers can afford to pay for the GIS database, but residents living near a development site don’t have access because they can’t pay the huge license fees,” said CFAC counsel Rachel Matteo-Boehm, a lawyer with the firm of Holme Roberts & Owen LLP in San Francisco.

Public disclosure of the GIS base map will “provide the public with an essential tool for monitoring its government,” she said.

Most counties in California have GIS systems. Policies regarding public access vary from county to county. San Diego County recently abandoned its practice of charging hefty license fees for use of the county GIS, having concluded, on the basis of a 2005 Attorney General legal opinion, that the mapping data were public records and had to be released.

In the News

June 14, 2007
San Jose Mercury News
County fights ruling on access to map database
Santa Clara County has appealed a Superior Court ruling in hopes of blocking easy distribution to the public of its digital mapping database, which includes detailed parcel information. The court ruled in May that the county should make the geographical database available to the public at a reasonable cost.

May 22, 2007
San Jose Mercury News
Judge rules Santa Clara County must release map database
A Santa Clara County Superior Court judge has ruled that Santa Clara County should make its geographical mapping database that includes detailed parcel information available to the public at a reasonable cost. The decision is an outgrowth of a lawsuit filed last October against the county by the watchdog group California First Amendment Coalition. The group said county officials overcharge for the mapping information, making it prohibitive to many groups and companies that seek it for a variety of uses.

April 3, 2007
San Jose Mercury News
Santa Clara County stops selling its data for electronic maps, claims security risk
After years of selling data to make electronic maps of Santa Clara County, officials have temporarily stopped the practice, saying they didn’t want some of the information to end up in the hands of terrorists. The decision came as a lawsuit over the price the county charges for the information is entering its final stages. CFAC, the plaintiff in the case, says the county is using homeland security as a smoke screen so it can continue to sell the information at a high price.

October 20, 2006
Geospatial Solutions
Santa Clara County sued for release of computerized mapping data
An open-government organization has filed suit against Santa Clara County, California, to force it to make publicly available more reasonably priced computer-readable mapping data.

CFAC Taking on the Great Firewall of China

CFAC has initiated a proceeding that will attempt to use international trade laws to force the government of China to end its censorship of the internet. In a submission and presentation to the Office of the US Trade Representative, CFAC has petitioned for the filing of a complaint with the World Trade Organization, of which China became a member in 2001.

Our (concededly novel) theory: that China’s censorship of the internet, the most pervasive and systematic system of censorship in the world, violates China’s obligations under treaties it signed (the GATT, covering free trade in goods, and the GATS, covering services) in order to join the WTO. We contend China must end its censorship or risk limitations on its access to US markets.

Think of this as the biggest access-to-information and free speech case in history. If the Trade Representative agrees with CFAC’s petition and files a complaint with the WTO, and if the WTO rules against China–big “ifs,” to be sure–some 1.2 billion Chinese citizens will, for the first time, have unfiltered access to information about the outside world, via the internet.

CFAC is represented by the national law firm of King & Spalding, whose Washington, DC office specializes in trade matters, including several successful cases against China. CFAC is supported in this initiative by a consortium of organizations, including the UC Berkeley Graduate School of Journalism, the Center for Internet and Society at Stanford Law School, the National Freedom of Information Coalition, and the China Internet Project at UC Berkeley, among others.

• Legal Documents
• CFAC Commentary
• In the news
• Useful Links

Legal Documents

Position Paper of the California First Amendment Coalition: China-Measuring Affecting Market Access For Certain Good and Seervices Delivered Via The Internet

Factual Appendix for the Position Paper of the California First Amendment Coalition

CFAC Briefing Paper: China’s Internet Measures Violate Its WTO Obligations

CFAC Commentary

Using free trade to force China to permit more free speech

By Nick Rahaim

With the Beijing Summer Olympics approaching, the world has turned its focus toward China. From alt/pop musician Bjork lending her support to the Free Tibet movement while recently performing in Shanghai, to Steven Spielberg stepping down as artistic adviser of the Beijing Games citing objections to China’s ties to the Sudanese government, many see this as an opportune moment to put pressure on the People’s Republic. Here at the California First Amendment Coalition, we have had our eyes on China’s “Great Firewall” of internet censorship.

China’s censorship of the internet is well known, yet most arguments against the firewall and steps to counter it take an overtly political approach. CFAC’s approach is economic, using international trade laws to promote the political goals of free speech and freedom of information.

[Read More]

In the News

PC World
Group Seeks WTO Suit Against China
The California First Amendment Coalition (CFAC) is pushing the U.S. government to test the argument that international trade laws can be used to end Chinese censorship of the Internet. The free-speech group petitioned the Office of the U.S. Trade Representative (USTR) to bring a complaint against China to the World Trade Organization (WTO), arguing that Chinese censorship impedes the ability of U.S. Internet companies to do business in China.

Useful Links

Websitepulse.com Test Behind the Great Firewall of China

Reporters Without Borders China Profile

OpenNet Initialive China Profile

Posting Links on Neighborhood Council Websites

Q: My issue is in the stakeholder councils”, i.e. “neighborhood councils” (see www.freedomadvocates.org for background).

I have attempted to post some informational links on the Neighborhood Council website to offer factual information about redevelopment, stakeholder councils along with the other links they have there, e.g. political party meetings, neighborhood organizations, and “helpful” city agencies but have refused to add my requested links. (www.freedomadvocates.org) and (www.redevelopment.com) Both links are NON-PARTISAN…both are FACTUAL…no rhetoric.

I am not seeking money, I am seeking injunction for my links as a statement of public policy. What do you think my chances are?  Do you have case law suggestions?  Fed court for declatory judgment first? State court?

A: Under the First Amendment, the general rule is that a publisher has a constitutional right to decide what content to publish.  That means, for example, that a newspaper cannot be forced to publish a letter to the editor, or an article submitted for publication on the op-ed pages, or an advertisement.  Miami Herald v. Tornillo, 418 U.S. 241 (1974); see Parsons v. New York Post Corp., 427 F. Supp. 1297 (E.D.N.Y. 1977) (denying motion for injunction to force newspaper to publisher advertisement and granting newspaper’s motion to dismiss lawsuit).  The reasoning of those cases has been applied to deny motions seeking injunctions to force Google and Yahoo! to display a person’s advertisements on their web sites and/or to include the plaintiff’s web site in their search results.  Langdon v. Google, 474 F. Supp. 2d 622 (D. Del. 2007).

While I’m not aware of a case involving an attempt to force a web site to accept links, it seems likely the same rationale would apply and that the courts would be unlikely to grant such a motion.

Public Filming of TV Show

Q: There was a film crew in my city filming a popular TV show in a restaurant and sidewalk in front of the restaurant.  I took some pictures from the public sidewalk across the street.  None of my pictures were for anything but for my personal use–not commercial in any way.  One crew member said just not to use a flash.  Then 20 minutes later, another supposed crew person said I couldn’t take any pictures because they had a permit and they threatened to call the police and got pretty belligerent.  I told the guy that I was in a public place and just a common fan–not encroaching on any filming efforts.  I read in California film regulations that no permit is required for non-commercial private-only family filming… but can a permitted film crew like the one I described stop me from taking pictures from a public place inside or outside of the area where he has a permit?

A: The general rule is that photographing or filming what occurs on public property is legal.  A public sidewalk is a “public forum” for purposes of the First Amendment, and any restrictions on expression in such an area must be “narrowly drawn to achieve a compelling state interest.” Int’l Soc’y for Krishna Consciousness v. Lee, 505 U.S. 672, 678 (1992).  I am not aware of any authority for the proposition that if someone has a permit to use a certain public area, that entity could restrict your ability to take pictures in the public forum (absent a compelling state interest, which would generally not have to be something more compelling than helping an entity make a film).

Posting in City Sponsored Spaces

Q: I would like to know if cities which maintain bulletin boards, kiosks and other posting places may regulate the content of what is posted and if there is any requirement that these tax supported facilities be available to all?

Our city regulates the contents of posting but the only requirement written down is “it must be of general community interest”. Who decides is not specified and what are the criteria is not specified. In essence this excludes any opinion critical of the city administration.

Also I would like to know if the Public Records Act or some other statute requires that agencies, like cities, must have their practices and policies in writing somewhere.

A: Assuming the kiosks and bulletin boards you reference are located on city sidewalks, streets or parks, a restriction that bans speech that is critical to the administration would likely not pass First Amendment scrutiny.  Sidewalks, streets and parks are generally considered to be public forums.  See ACLU v. City of Las Vegas, 333 F. 3d 1092, 1099 (9th Cir. 2003).  “[T]he government must bear an extraordinarily heavy burden to regulate speech in such locales.”  Grossman v. City of Portland, 33 F.3d 1200, 1204 (9th Cir. 1995).  With respect to public forums, the government has the right to establish regulations on the time, place and manner of protected speech.  In order to impose restrictions on speech in a public forum, the restrictions must be “justified without reference to the content of the regulated speech … narrowly tailored to serve a significant governmental interest, and … leave open ample alternative channels for communication of the information.”  Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).  A regulation that would ban speech on those kiosks and bulletin boards that is critical to the administration would likely not be deemed content neutral and, thus, not pass First Amendment scrutiny.

Moreover, while there is no statute that I am aware of that would require cities to issue written regulations, one of the ways of ensuring that time, place and manner regulations are content-neutral is to have such regulations in writing.  If the regulations are not in writing, it gives too much discretion to the city to decide to impose them only when a person or organization is engaging in speech that the city dislikes. In addition, when decision-makers have the power to make decisions based on ambiguous criteria — such as that the speech simply be “of general community interest” — this leaves decision-makers with too much discretion to make determinations on any basis, including determinations based on content, which is impermissible.  See Vo v. City of Garden Grover, 115 Cal. App. 4th 425, 438 (2004) (“The [zoning administrator's] ability to make decisions based on ambiguous criteria such as the ‘general welfare’ of the community effectively gives the [zoning administrator] the power to make decisions on any basis at all, including an impermissible basis, such as content-based regulation of speech.”) (citing Dease v. City of Anaheim, 826 F. Supp. 336, 344 (C.D.Cal. 1993)).  Such regulations — that is, regulations that leave too much discretion on decision-makers to make determinations based on ambiguous criteria — would therefore be unconstitutional under the First Amendment.

Recording at a Board and Care Facility without Permission

Q: My mother lives in a board and care facility.  I have power of attorney.  She is mentally capable, but is diagnosed bi-polar and is experiencing beginning stages of dementia.  She has a private room.  The facility receives funds from CEI for my Mom’s B&C.- a Medicare/Medicaid managed program. May I legally use video camera/audio equipment in the room where my Mom resides?  Either with their knowledge or without?

A: We have reviewed a number of cases that, while not exactly on point, may shed some light on whether you may be able to use video/audio equipment in your mother’s room in the private facility she resides.  The question that must be answered is whether your mother, or someone else in that facility, has a reasonable expectation of privacy from the outside nonpublic world.

As a general matter, you would need the consent of your mother to audio and videotape the inside of her private room.  See Carter v. New York Times, 2002 Cal. App. Unpublished Lexis 501 (2001) (finding that a patient’s right to privacy was violated when camera crew members audio and videotaped inside the hospital room while the patient was being treated); See also Estate of Berthiaume v. Pratt, M.D. (Me. 1976) 365
A.2d 792, 795 [86 A.L.R.3d 365] (surgeon who had treated cancer patient committed actionable intrusion by photographing him in hospital bed against his will as he lay dying).  Although your mom is not in a hospital, these hospital cases provide some guidance on how courts look at the reasonable expectation of privacy in these types of settings.

However, if you have power of attorney because your mother’s condition prevents her from, say, entering into contracts on her own, then you probably would not need her consent (which is a form of oral contract).

Either way, a second issue that you want to look at is whether the nurses/employees of the private facility have a right to claim that their right to privacy was invaded by your actions if they do not consent to the audio/video equipment in your mother’s room.  While there is no authority on point, a case from the California Supreme Court,
People v. Escudero, 23 Cal. 3d 800 (1979), may be helpful in understanding the rights that an owner of a facility or building have over a room (such as a hotel room) when the room is occupied by someone else.  In People v. Escudero, the California Supreme Court analyzed the general rule that a landlord has no authority to consent to a police entry of premises occupied by a tenant and how such rule has been applied to other settings.  For example, the court stated that this general rule applies “not only when the tenant leases an entire detached house, but also when he rents an apartment, an enclosed garage, or a storage locker in a bowling alley.”  The rule does not depend “on the duration of the tenancy: it applies both to a long-term lessee and to a transient guest who takes a room, however briefly, in a hotel or a motel.”  In each of those instances, the court concluded, “the owner voluntarily gives up the right to occupy the premises for the period of the tenancy, and the tenant in turn acquires a legitimate expectation of privacy in his use or enjoyment of the premises for the same period.” The court went on to note, however, that the privacy is not absolute: “the tenant is generally deemed to give implied consent to reasonable entries by the owner or his agents, but only for certain narrowly limited purposes relating to the owner’s interest in the property.” With respect to a hotel room, the court noted, “a hotel guest is deemed to impliedly consent to hotel employees’ entering his room at reasonable times” but only to perform certain limited services (i.e., janitorial, maid, or repair services).  The owner cannot enter the room (or give consent for others to enter the room) for other than these limited purposes.

Applying the court’s analysis to your situation, it would follow that the nurses/employees in the private facility your mother resides have only very limited rights in your mother’s room (i.e., providing medical, janitorial, or maid services).  They would have no rights to enter the room other than for these limited purposes.  The right to give consent to audio/videotape your mother’s room, therefore, would seem to be your mother’s (or someone with power of attorney).

As you can see, there is no bright line rule with these types of cases. If you are able to, your safest course is to get the consent of the facility and that of your mother’s as well.  Absent that, you may risk facing some type of tort claim that may or may not prove successful in the end.

Anonymous Columnists

Q: Does anything in the law compel a newspaper to divulge the identify of a columnist who prefers to remain anonymous? Are Realtors, or persons engaged in the Real Estate business restricted in the opinions they may express about real estate?

A: In your inquiry, you pose two questions.  Turning to your first inquiry, as a general matter, a newspaper is not obligated to disclose the identity of a columnist or other contributor who wishes to remain anonymous.  The exception to this rule would be a situation where the newspaper receives a subpoena compelling the release of the columnist’s identity, or where the newspaper is sued and one of the parties to the litigation seeks the identity of the columnist through the course of discovery.  In such a case, the newspaper would still have a strong argument that the columnist’s identity should remain confidential (the courts have recognized a First Amendment interest in anonymous speech), but it would have to persuade the judge to adopt its argument, and the outcome would be highly dependent on the facts and circumstances of the particular case.

As to your second inquiry, as a condition of their licensing, real estate agents and brokers are subject to certain rules regarding the representations and disclosures they must make to certain classes of people (e.g., sellers and buyers, as well as prospective sellers and buyers).  The extent to which these rules have been or could be applied to an agent or broker’s speech in newspaper column is an interesting question that would certainly raise First Amendment issues.  However, answering that question would require a detailed analysis of the broker and agent rules at issue, which is unfortunately beyond the scope of the services we can provide as part of this free hotline.

Q: You recently stated in response to a question that there was no law against an attendee taping a homeowner association meeting without permission.  My question is:  can they do it without informing the Board of Directors or other attendees?

A: With respect to taking a homeowner association meeting without permission, the initial question would be whether the Board of Directors of a homeowners’ association is covered by the Brown Act.  I doubt that it is.  If it is, Government Code § 54953.4 would allow you to tape the meeting without permission unless the Board finds that the taping cannot continue without creating so much noise (or, in the case of video taping, illumination or obstruction of view) that it would constitute a persistent disruption of the meeting.

There is nothing in § 54953.4 that would appear to require that the taper provide notice to the Board or other attendees of the intent to tape.  Although the Board can order that the taping stop if it is or would constitute a persistent disruption, if the Board is and remains unaware of the taping it seems, by definition, that it is not creating the ruckus necessary to constitute a disruption.

If the Board is not covered by the Brown Act, then taping of a “confidential communication” without the permission of all parties is both a tort and a crime in violation of Penal Code § 632, punishable by a fine of up to $2,500 and a year in jail.

The question then becomes whether a homeowners’ association meeting could constitute a “confidential communication.”  If not, then you can tape without informing the Board or other attendees.  If so, then you cannot tape without informed consent (ie, knowledge of taping and permission to do so).

The California Supreme Court has held that a communication is confidential under section 632 if a party to that conversation had an objectively reasonable expectation that the conversation was not being overheard or recorded.  Flanagan v. Flanagan, 27 Cal. 4th 766 (2002).  And section 632(c) defines the term “confidential communication” as a “communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering . . . or in any other circumstances in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”

If the homeowners association is a “public gathering,” then it would be exempt from section 632.

Media Access to Crime/Disaster Scenes

Q: I am looking for the penal code in California for my right to cross a police line for news photography. Looking for something on a card or small for a print out to carry with my press pass.

A: Although I don’t have a wallet-sized version, following are California Penal Code Sections on media access to disaster scenes and avalanches.  I am not aware of any similar statutory authority regarding crime scenes. Cal. Penal Code Section 409.5. (a) Whenever a menace to the public health or safety is created by a calamity including a flood, storm, fire, earthquake, explosion, accident, or other disaster, officers of the Department of the California Highway Patrol, police departments, marshal’s office or sheriff’s office, any officer or employee of the Department of Forestry and Fire Protection designated a peace officer by subdivision (g) of Section 830.2, any officer or employee of the Department of Parks and Recreation designated a peace officer by subdivision (f) of Section 830.2, any officer or employee of the Department of Fish and Game designated a peace officer under subdivision (e) of Section 830.2, and any publicly employed full-time lifeguard or publicly employed full-time marine safety officer while acting in a supervisory position in the performance of his or her official duties, may close the area where the menace exists for the duration thereof by means of ropes, markers, or guards to any and all persons not authorized by the lifeguard or officer to enter or remain within the enclosed area. If the calamity creates an immediate menace to the public health, the local health officer may close the area where the menace exists pursuant to the conditions set forth in this section.
(b) Officers of the Department of the California Highway Patrol, police departments, marshal’s office or sheriff’s office, officers of the Department of Fish and Game designated as peace officers by subdivision (e) of Section 830.2, or officers of the Department of Forestry and Fire Protection designated as peace officers by subdivision (g) of Section 830.2 may close the immediate area surrounding any emergency field command post or any other command post activated for the purpose of abating any calamity enumerated in this section or any riot or other civil disturbance to any and all unauthorized persons pursuant to the conditions set forth in this section whether or not the field command post or other command post is located near to the actual calamity or riot or other civil disturbance.
(c) Any unauthorized person who willfully and knowingly enters an area closed pursuant to subdivision (a) or (b) and who willfully remains within the area after receiving notice to evacuate or leave shall be guilty of a misdemeanor.
(d) Nothing in this section shall prevent a duly authorized representative of any news service, newspaper, or radio or television station or network from entering the areas closed pursuant to this section.
(emphasis added) Cal. Penal Code Section 409.6. (a) Whenever a menace to the public health or safety is created by an avalanche, officers of the Department of the California Highway Patrol, police departments, or sheriff’s offices, any officer or employee of the Department of Forestry and Fire Protection designated a peace officer by subdivision (g) of Section 830.2, and any officer or employee of the Department of Parks and Recreation designated a peace officer by subdivision (f) of Section 830.2, may close the area where the menace exists for the duration thereof by means of ropes, markers, or guards to any and all persons not authorized by that officer to enter or remain within the closed area. If an avalanche creates an immediate menace to the public health, the local health officer may close the area where the menace exists pursuant to the conditions which are set forth above in this section.
(b) Officers of the Department of the California Highway Patrol, police departments, or sheriff’s offices, or officers of the Department of Forestry and Fire Protection designated as peace officers by subdivision (g) of Section 830.2, may close the immediate area surrounding any emergency field command post or any other command post activated for the purpose of abating hazardous conditions created by an avalanche to any and all unauthorized persons pursuant to the conditions which are set forth in this section whether or not that field command post or other command post is located near the avalanche.
(c) Any unauthorized person who willfully and knowingly enters an area closed pursuant to subdivision (a) or (b) and who willfully remains within that area, or any unauthorized person who willfully remains within an area closed pursuant to subdivision (a) or (b), after receiving notice to evacuate or leave from a peace officer named in subdivision (a) or (b), shall be guilty of a misdemeanor. If necessary, a peace officer named in subdivision (a) or (b) may use reasonable force to remove from the closed area any unauthorized person who willfully remains within that area after receiving notice to evacuate or leave.
(d) Nothing in this section shall prevent a duly authorized representative of any news service, newspaper, or radio or television station or network from entering the areas closed pursuant to this section.

Media Access to Federal Disaster Scenes

Q: We have been having difficulty getting access to photographing firefighting efforts on a National Forest within the state for a wildfire.  U.S. Forest Service personnel suggest that California Penal Code 409.5 doesn’t apply to federal employees or federal land.   They also refuse to allow media through road blocks on county roads leading to National Forest, saying that doing so would endanger their firefighters. Are they legally able to do this?  If not, how do we gain access to these areas without getting arrested in the process?

A: It is true that a state statute cannot control the activities of federal officials on federal land.

However, federal authorities are bound by the First Amendment, and there are cases (though not in California) holding that fire officials violated the First Amendment by imposing limits on press photographers’ access to fires that are not justified by an overriding need.  It should not be enough for federal fire officials to say that access might endanger firefighters.  As a practical matter, that is demonstrably not true in most cases, since press photographers routinely entire fire areas under Penal Code § 409.5 without incident.  As a legal matter, it is too speculative. There might be particular cases in which press presence would interfere with the fire fighters, in which case it would be appropriate to deny access, and there might even be cases where it would put the fire fighters in danger.  But in those cases the fire officials should explain, in detail, how press access would endanger fire fighters or interfere with their work (as opposed to some general rule that press presence always endangers or interferes with firefighters) and, if they cannot, the denial of access may be unconstitutional.

Unfortunately, if the paper cannot get a supervisor to see reason, you may have no resource but sending a legal letter from your attorney.  It shouldn’t cost much and may get their attention.

Public Comment at meetings, Campaigning, and Freedom of Speech

Q: May a legislative body prevent members of the public speaking during the public comments agenda item from blatantly campaigning for or against a candidate for that body?  I believe that that type of discussion is “not a matter subject to the body’s jurisdiction.”  I also believe that such comments at such a meeting are not guaranteed under the first amendment.  What say you?

A: It sounds like you are familiar with Section 54954.3 of the California Government Code (reproduced below), which provides that bodies subject to the Brown Act shall provide an opportunity for members of the public to address the body on items of interest to the public that are within the subject matter jurisdiction of the legislative body.  It’s difficult to say, categorically, that “blatantly campaigning for or against a candidate for that body” would or would not be considered within the subject matter jurisdiction of the body.  Among other things, the question probably depends on precisely what the speech consisted of.  Conceivably, carefully crafted restrictions on such speech could be permissible time, place, and manner restrictions under the First Amendment.  Indeed, Subdivision (b) of Section 54954.3 explicitly authorizes the body to regulate the public-comment process.
54954.3. (a) Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item, that is within the subject matter jurisdiction of the legislative body, provided that no action shall be taken on any item not appearing on the agenda unless the action is otherwise authorized by subdivision (b) of Section 54954.2. However, the agenda need not provide an opportunity for members of the public to address the legislative body on any item that has already been considered by a committee, composed exclusively of members of the legislative body, at a public meeting wherein all interested members of the public were afforded the opportunity to address the committee on the item, before or during the committee’s consideration of the item, unless the item has been substantially changed since the committee heard the item, as determined by the legislative body. Every notice for a special meeting shall provide an opportunity for members of the public to directly address the legislative body concerning any item that has been described in the notice for the meeting before or during consideration of that item.
(b) The legislative body of a local agency may adopt reasonable regulations to ensure that the intent of subdivision (a) is carried out, including, but not limited to, regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker.

(c) The legislative body of a local agency shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body. Nothing in this subdivision shall confer any privilege or protection for expression beyond that otherwise provided by law.

Audio Recording, Meetings

Q: Is it legal in California for a homeowner to secretly tape a HOA meeting. What rights do I have as a homeowner when I find that I have unknowingly been taped of my comments as a homeowner at a monthly HOA meeting? Does any homeowner have the right to tape without disclosure? Does the Board have the right to negate the use of audio recordings?

A: Although I cannot advise you with respect to your particular situation, I can give you some general information on California’s tape recording and eavesdropping laws. California Penal Code Section 632 (reproduced below) makes it a crime to intentionally record a “confidential communication” without the consent of all parties to the conversation.  “Confidential communication” is defined to include “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto” but to exclude “a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”  A central question with respect to the issues you raise would therefore be whether the attendees of the HOA meeting could reasonably have expected that the communications recorded would not be overheard or recorded.  It could also be important to know whether the bylaws or other governing rules provide any guidance on the procedures for recording meetings, including the Board’s power to prohibit such recordings.

I hope this information is useful to you.
Penal Code 632. (a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.
(b) The term “person” includes an individual, business association, partnership, corporation, limited liability company, or other legal entity, and an individual acting or purporting to act for or on behalf of any government or subdivision thereof, whether federal, state, or local, but excludes an individual known by all parties to a confidential communication to be overhearing or recording the communication.
(c) The term “confidential communication” includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.
(d) Except as proof in an action or prosecution for violation of this section, no evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section shall be admissible in any judicial, administrative, legislative, or other proceeding.
(e) This section does not apply (1) to any public utility engaged in the business of providing communications services and facilities, or to the officers, employees or agents thereof, where the acts otherwise prohibited by this section are for the purpose of construction, maintenance, conduct or operation of the services and facilities of the public utility, or (2) to the use of any instrument, equipment, facility, or service furnished and used pursuant to the tariffs of a public utility, or (3) to any telephonic communication system used for communication exclusively within a state, county, city and county, or city correctional facility.

(f) This section does not apply to the use of hearing aids and similar devices, by persons afflicted with impaired hearing, for the purpose of overcoming the impairment to permit the hearing of sounds ordinarily audible to the human ear.

Q: I have learned that our school board viewed files of a student in closed session. I learned that the file contains information about the student’s behavior. My further question is: Is there something in law that allows the board to meet in closed session when reviewing such materials? They regularly meet in closed session to deal with student expulsions.

A: For the purposes of responding to your question, we assume that the school district gave proper notice of its intent to consider the appeal of the denial of the transfer on a posted agenda, but that it did not give specific advance notice of its intent to discuss any part of the matter in closed session.  As long as the item was adequately described on the agenda, the Brown Act requires the school district to disclose, in the open meeting, “the item or items to be discussed in the closed session.”  Cal. Gov. Code Sec. 54957.7.  Nothing in that section “shall require or authorize a disclosure of information prohibited by state or federal law.”  Id.  While the authority to conduct a closed session is to be construed narrowly, the Brown Act specifically allows for a closed session if authorized by “any provision of the Education Code pertaining to school districts.” Cal. Gov. Code Sec. 54962.

Generally speaking, records pertaining to a student are presumptively confidential, and cannot be disclosed without parental consent or a court order. See Cal. Educ. Code Sec. 49073.  The California Education Code establishes that only so-called “directory information” about a pupil may be made publicly available, so long as notice is given at least annually of the types of information to be released, and parents are given an opportunity to object.  Id.  “Directory information” includes such basic information as a student’s name, address, telephone number, participation in officially recognized activities and sports, and dates of attendance.  Cal. Educ. Code Sec. 49061.

Beyond basic “directory information,” records pertaining to a student are not to be disclosed without parental consent or a court order, except under limited circumstances not present here.  See, e.g., Cal. Educ. Code Sec. 49076 (among other things, allowing for disclosure to probation officer or district attorney for purposes of conducting a criminal investigation, or for certain purposes related to a legitimate educational interest.)  Based on the facts available to us, it would appear that the School District’s decision to hold a closed session to discuss non-”directory information” about a particular student was proper, since that information is not to be disclosed without parental consent or a court order.

Potential Eavesdropping, Amplifying Speakerphone

Q: Does Penal Code section 632 (a) include a speakerphone conversation in the definition of “electronic amplifying”? I use speakerphone while working on the computer, however none of my conversations are considered confidential.

A: I believe you want to know whether listening to another’s conversation amplified through a speakerphone could be the basis for a violation of Penal Code Section 632(a).  The answer would depend on the particular facts of the situation, but as you note below, Section 632(a) applies to eavesdropping on or recording a “confidential communication.”  “Confidential communication” is defined in Section 632(c) to exclude one “carried on . . . in any . . . circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”  It might be difficult to establish that one could reasonably expect a conversation broadcast through a speakerphone to not be overheard.
Although I am not aware of any authority interpreting whether a speakerphone qualifies as an “electronic amplifying . . . device” under Section 632(a), it is not clear that someone having a conversation over a speakerphone could be using that device to eavesdrop on or record that conversation, as required by the statute.  The paradigmatic example of using an electronic amplifying device in violation of the statute would be a third party covertly using a remote sound receiver (surveillance sound gun).

Newsracks and Shopping Centers

Q: There is case law covering placement of news racks and stands on shopping center property. As I recall if they allow one paper to display their newspaper they have to allow all of them. And that they need to have a policy that clearly states what they allow. Currently I have a problem with a shopping center who without notice removed all the free newspaper racks from their shopping center saying they had no contract allowing us to distribute there. They continue to allow the paid circulation newspapers but appear to have no written policy covering this issue and they refuse to reimburse us for the cost of our lost rack. What exactly does the case law cover in these instances?

A: The circulation of newspapers on public property through newsracks is constitutionally protected. City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 768 (1988); accord, e.g., Reimer v. City of El Cajon, 52 Cal. App. 3d 441, 443 (1975).  Cities do not have unbridled discretion to grant or deny a permit for news racks on sidewalks and other public property — this is because sidewalks are generally considered to be public forums.  See ACLU v. City of Las Vegas, 333 F.3d 1092, 1099 (9th Cir. 2003).  “[T]he government must bear an extraordinarily heavy burden to regulate speech in such locales.” Grossman v. City of Portland, 33 F.3d 1200, 1204 (9th Cir. 1995).

However, in your case, the newsracks are not on city property, but rather on shopping center property. Although the California Supreme Court has held that the California Constitution protects petitioning and signature-gathering activity at large shopping malls due to their public character, see Robins v. Pruneyard Shopping Center, 23 Cal. 3d 899, 910 (1979), protection of speech on private property is not as broad as on public property.  At least two California Courts of Appeal have held that the Pruneyard right to petition and gather signatures did not apply to a stand-alone stores (in those cases, Trader Joe’s and Costco) that do not share a parking lot with any other commercial establishment.

Further, in Judlo, Inc. v. The Vons Companies, Inc., 211 Cal. App. 3d 1020 (1989), the California Court of Appeal determined that an injunction requiring a grocery store to follow a particular method for allowing newsracks on its property was an unconstitutional “taking” of private property without compensation.  In doing so, the court specifically held that “[e]ven if Vons may have permitted other publishers to place their newsracks on its property, it was not required to permit [plaintiff] to do so.”  Id. at 1029.

It is possible that a shopping center may be more of a “quasi-public” forum than the individual grocery store in Judlo, and that this might require a different result in your case.  However, the Court in Judlo emphasized a constitutionally significant distinction between allowing permanent occupation of property (as in the form of a newsrack) and

allowing temporary access to people for distributing or gathering signatures.  Id. at 1027-28.  In short, because the constitution also protects against taking private property without compensation, regulation of speech that requires a permanent occupation of property is less likely to run afoul of the First Amendment.  It may be that, in your case, this distinction allows the shopping center to determine, in its discretion, which newsracks to allow on its property.

DUI Incidences and Media Reporting

Q: I would like to know if DUI arrest complaints, that would cause harm to the DUI alleged offender (financial, career, personal, threat of personal harm (because of statements they made during an arrest while intoxicated) can legally be published by the media. I would like to know if the publication of the records resulted in revelations of alcoholism, and or other personal problems that would result in financial, personal, or physical threat harm to the DUI arrestee would result in liability if published by and against a media entity.  I would like to know if the same or more severe circumstances apply if the media entity received the records illegally, and or if they received those records legally if the media entity would be held criminally, and or civilly liable. I would also like to know if the release of the DUI arrest records was knowingly part of a “character assassination” scheme if the known dissemination of the DUI records would result in civil and or criminal liability for the individual and or a media outlet who released the records. Thanks, I am doing personal research and would appreciate any and all information that you can summarize.  I have reviewed many laws, statutes, case law, etc., and would like your opinion based on the questions asked.

A: Under California Civil Code section 47(d), the media have an absolute right to republish the contents of police and court records, such as those concerning DUI arrests and complaints.  That means the media cannot be sued for accurately republishing any information contained in those records.  This is true even if the police or DA’s allegations in the arrest records or complaint are mistaken.  As long as the media accurately republish information contained in those records, they cannot be sued.

The same result would probably be compelled by the First Amendment to the United States Constitution, even if Civil Code section 47(d) did not exist.  In Dorsey v. National Enquirer, for example, a federal court threw out a lawsuit against the National Enquirer for republishing the contents of an affidavit that had said that Dorsey was HIV positive, even those the affidavit was mistaken, on the ground that both the First Amendment and Civil Code section 47(d) protect the media from being sued for accurately reporting the contents of court records, even court records that were supposed to be confidential.

In a case called Nicholson v. McClatchy, the California Court of Appeal also held that a newspaper could not be sued for republishing the contents of a government record that was supposed to be kept confidential (the evaluation of a potential judge) because the media have a right under the First Amendment to ask questions of those who have a duty to keep certain information confidential and, if a person gives the media that information even if s/he was supposed to, the media cannot be held liable for obtaining or publishing it.  This result was dictated, the California Court of Appeal said, by prior decisions of the US Supreme Court, which held that the media cannot be held liable for publishing that a woman was the victim of a sexual assault even though state law required that such information be kept confidential.

Changing search warrant policy

Q: A criminal superior court has a new search warrant policy where the affiants or other law enforcement officer who is filing the search warrant redacts information from the warrant in order to reduce the work of the exhausted and overworked court clerks. Items redacted include vehicles searched, addresses searched, and persons being searched.  The clerk’s office has the redacted files for viewing.

A: Although your email does not pose a specific question, some general information about the public’s right of access to search warrant documents may be helpful to you.  The California courts have recognized that the public has a constitutional right to review court documents.  This means that court documents may not be sealed in whole or in part (a redaction is the equivalent of a partial sealing) without first satisfying the strict procedure for sealing court records mandated by the California Supreme Court in its 1999 decision in NBC Subsidiary and later codified in California Rules of Court 2.550-2.551.  Under these rules, court records may not be sealed as a matter of course; the court must specifically order that the records be sealed, and only after expressly finding that (1) that there is an “overriding interest” to support sealing, (2) there is a substantial probability the overriding interest will be prejudiced absent sealing, (3) the proposed sealing is narrowly tailored, and (4) there is no less restrictive means of achieving the overriding interest.

California law requires that once a search warrant has been executed, “all documents and records” relating to the warrant must be open to the public as a judicial record.  Penal Code section 1534(a).  Since the Legislature has determined that search warrant documents are public records after the warrant has been executed, the First Amendment and the Rules of Court mandate that you have a right to review unredacted versions of the documents relating to an executed search warrant unless the requirements for sealing articulated by NBC Subsidiary and the California Rules of Court have first been satisfied.

Recording a person without their knowledge

Q: We wish to record a speaker and would rather not alert the him that he is being videotaped and/or audiotaped.  He is more likely to make more derogatory comments if he is unaware.  In your opinion, are we breaking any laws or causing problems for using the audio and/or videotapes to prove our case to the City Attorneys involved or in court later if we do not request permission and go ahead to audio/videotape furtively?

A: The California Supreme Court has held that in a place “to which the general public does not have unfettered access,” the people there “may enjoy a limited, but legitimate, expectation that their conversations and other interactions will not be secretly videotaped …, even though those conversations may not have been completely private from the participants” in attendance. Sanders v. ABC, 20 Cal. 4th 907, 911, 915 (1999) (“a person may reasonably expect privacy against the electronic recording of a communication even though he or she had no reasonable expectation as to confidentiality of the communication’s contents”).

It is unclear whether the fact the non-profit charges to attend means it does not allow unfettered access to the general public.  Similarly, “[w]hether a reasonable expectation of privacy is violated by such recording depends on the exact nature of the conduct and all the surrounding circumstances,” id., and it is therefore difficult to predict how the courts would view the taping you propose.

If using hidden microphones and/or camera to tape without consent is unlawful under the circumstances, you would be unable to use the tape as evidence and you could be charged with a crime and sued.  Cal. Penal Code § 632.   The investigative firm may be concerned because it could also be sued, or charged with a crime, if the taping was unlawful.  See Ribas v. Clark, 38 Cal. 3d 355, 361-62 (1985) (third party who performs wiretap at the request of one party to a conversation, but without consent of the other, may be liable under related provisions of Penal Code § 631).

Q: The company I work for wants me to remove a bumper sticker(“fuck bush”) from my car. I was told that my car will be towed from the employee lot if I do not and may and can lead to job termination. Do they have the right to do so?

A: Although the First Amendment limits the restrictions that government employers can place on employee speech, private employers have much greater latitude to restrict employee speech.  Both the First Amendment and the free speech right of the California constitution protect against state — and not private — action.  See Golden Gateway Center v. Golden Gateway Tenants Ass’n, 26 Cal. 4th 1013, 1031 (2001).

In 2004, a California court rejected the claim of an employee that her termination by her private employer was a violation of “fundamental principles of public policy” such that she could recover damages from her employer in a lawsuit.  Grinzi v. San Diego Hospice Corp., 120 Cal. App. 4th 72, 79 (2004).  The court said that “the First Amendment free speech provision fails to establish public policy against terminations by private employers for speech-related activities because this provision applies only to government actions and expresses no public policy regarding terminations by private employers.”  Id. at 77.

Q: I am a public school teacher.  Our individual school site has an “all staff” conference whereby all staff member may post material.  My school is committed to bilingual education, Hispanic culture, etc.  I posted some articles on how poorly bilingual education performs compared to immersion, etc. that does not conform to the party line.  The principal has directed me, and only me, out of 100+ teachers to submit to him anything before I post it on the “all staff.” Is this legal?

A: Government regulation of employee speech does implicate First Amendment issues and is sometimes unconstitutional.  The question usually boils down to the “‘balance between 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.’”  Connick v. Myers, 461 U.S. 138, 140 (1983), quoting Pickering v. Board of Educ., 391 U.S. 563, 568 (1968) (opinion available at http://www.law.cornell.edu/supct/html/historics/USSC_CR_0461_0138_ZS.html).

Courts considering government employee speech issues first ask whether the speech at issue “addressed a matter of public concern.”  Kirchmann v. Lake Elsinore Unified School Dist., 57 Cal. App. 4th 595, 601 (1997) (opinion available at http://online.ceb.com/CalCases/CA4/57CA4t595.htm).  If the speech concerns a matter of public concern, “we must balance [the employee's] interest in making her statement against the interest of the [employer] in ‘”promoting the efficiency of the public services it performs through its employees.”‘”  Id., quoting Rankin v. McPherson, 483 U.S. 378, 384-85 (1987) (opinion available at http://www.law.cornell.edu/supct/html/historics/USSC_CR_0483_0378_ZS.html).

In other words, employers have some latitude to regulate employee speech, but the degree of latitude depends on the facts of the particular case, with particular focus on the connection between the speech and matters of public interest and the extent to which the regulation might be necessary for the functioning of the government office involved.
As a general matter, commenting on the efficacy of different types of educational programs would seem to be speech on a matter of public concern.  Although the balancing of a teacher’s interest in posting his comments on the comparative efficacy of educational programs against a school’s interest in promoting the efficiency of the public services it performs through its concerns would depend on a variety of facts, it is rather difficult to imagine how posts on such a subject to what I gather is a bulletin-board-like system administered by the school system would disrupt the workplace enough to justify such speech restrictions.

The situation you describe below may also implicate other speech issues.  Where the government opens up a limited forum for communication, it must regulate speech made in that forum in a content-neutral way.  Speech should not be restricted by a state actor based on the speaker’s viewpoint.  Moreover, restricting speech before it has been made is typically a prior restraint, which is very often inconsistent with the First Amendment.  See, e.g., Pines v. Tomson, 160 Cal. App. 3d 370 , 395 (1984) (“Any restraint on expression prior to publication bears ‘a heavy presumption against its constitutional validity’ under the First Amendment.”).

To reach a definitive answer, your question ultimately requires a complex and highly fact-specific analysis that is beyond the scope of what we can provide through this service.  However, there do seem to be some important First Amendment issues implicated, which may warrant discussion with an attorney.

Q: In local city council race, can the city restrict the placement of campaign signs to only private property?  I witnessed city code enforcement personnel removing challenger signs from construction fences.

A: The Court of Appeal in California decided in 1981 that a San Mateo ordinance prohibiting the posting of signs on public property was constitutional because the city had significant interests in prohibiting the signs, including traffic safety and aesthetic considerations, that were “wholly unrelated to suppression of expression and rationally connected to the restrictions imposed.”  Sussli v. City of San Mateo, 120 Cal. App. 3d 1, 7 (1981).  A similar case challenging a Los Angeles ordinance prohibiting the posting of signs on public property went all the way to the Supreme Court, which decided — like the Sussli court — that the city had demonstrated “interests sufficiently substantial to justify this content-neutral, impartially administered prohibition against the posting of [the candidate's] temporary signs on public property and that such an application of the ordinance does not create an unacceptable threat to” debate on public issues.  Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 817 (1984).  In other words, cities can prohibit the posting of signs on public property.

Note, though, that if the city were deliberately removing only one candidate’s sign from public property while leaving another’s intact, such conduct would no longer be “content-neutral” or “impartially administered” and would therefore be problematic.

Q: I live in a small coastal community and the issue for displaying political signs came up.  I do not believe under the First Amendment that they can prohibit private residence from displaying political signs. Am I correct?  Can they limit size and placement?

A: It is almost certainly true that a city or municipal ordinance prohibiting the display of political signs would violate the First Amendment, although reasonable, content-neutral restrictions regarding size and placement likely would be upheld if they served a sufficiently important government interest (such as preventing the obstruction of
views or distraction of motorists) and were narrowly tailored to serve that interest.  See City of Ladue v. Gilleo, 512 U.S. 43, 48, 55 (U.S. 1994).

However, a somewhat different issue is presented by the question you raise, i.e., the enforcement a private agreement to restrict speech. California law is not well-settled on this point, but the most recent authority suggests that restrictions and even prohibitions on political signs in private agreements such as CC&Rs may be enforceable, at least where speech is restricted by the owner.   In Golden Gateway Center v. Golden Gateway Tenants Assoc., 26 Cal. 4th 1013 (2001), a divided California Supreme Court held that the California Constitution does not protect the distribution of newsletters by a tenant’s association in a private apartment building.  This reasoning could be extended to restrictions on other activities that would normally be protected by the constitutional protection for free speech, such as the display of campaign signs.  However, only four of the Court’s seven justices joined the decision, and one-Chief Justice Ronald George-joined only the result.  Therefore, the rationale of the plurality’s decision (that the free speech protections of the California constitution generally do not apply to actions taken by private persons to limit speech) is not necessarily binding law.

Q: I’ve read up on Robins v. Pruneyard and Young v. Albertsons regarding restrictions that may or may not apply to the collection of petition signatures. With respect, especially, to the Albertsons decision, are their any other rulings regarding whether shopping centers and/or individual stores can discriminate based on content? Two
situations come to mind:

1. The Girl Scouts, Salvation Army at Christmas, local PTA, etc. are allowed to solicit customers coming and going but the center or business tries to prevent petition gatherers.

2. The store allows signature gatherers for statewide initiatives but then tries to prohibit signature gatherers for local municipal referendum, recall, or initiative measures.

Last, I’ve heard something about a 15′ limit — Businesses may force signature gatherers to stay at least 15′ from the door. Any truth to this, either in statute or a court decision re: “reasonable regulation”?

A: The general rule is that, if a shopping center falls under Pruneyard and must allow petitioning and related activity, the center cannot discriminate on the basis of content.  If a center allows some charitable groups to solicit donations, but then denies petitioning activity, that can be considered content discrimination.  See Wolin v. Port of New York Authority, 392 F.2d 83, 87 & n.4 (2d Cir. 1968) (Port Authority could not allow charitable groups to solicit funds in bus terminal but deny access to petitioners on ground political speech was controversial).  Thus, while a shopping center (even one subject to Pruneyard) may refuse to allow any groups to solicit funds, it must be consistent so the “ban applies alike to all religious, political, charitable and civic groups.”  International Soc. for Krishna Consciousness, Inc. v. New Jersey Sports & Exposition Authority, 691 F.2d 155, 159 (3d Cir. 1982), citied in H-CHH Associates v. Citizens for Representative Government, 193 Cal. App. 3d 1193, 1220-21 (1987) (allowing shopping center subject to Pruneyard to ban monetary solicitation as a reasonable time, place and manner regulation).

As for the 15-foot rule, we are not aware of a case specifically addressing such a rule, but the California courts have held that petitioners can be prohibited “from areas normally subject to congestion and ” ‘can be excluded entirely from areas where their presence would threaten personal danger or block the flow of . . . traffic, such as doorways and loading areas.’”   Union of Needletrades v. Superior Court, 56 Cal. App. 4th 996, 1009-10 (1997) (quoting H-CHH).  Depending on the layout of the center at issue, a 15-foot rule may very well be considered a reasonable time, place and manner regulation to prevent congestion of the entrance and exit, as long as the restriction is contained in written time, place and manner regulations and is consistently applied.

Q: A member of a watershed working group videotaped a tour of the public utilities commission’s reservoir with the knowledge and permission of the public utility commission employee who can be seen in the video.  I am being told indirectly that they want it taken down NOW, and suspect I’m about to be ordered to do so.

A: Although I cannot advise you with respect to your particular situation, I can give you some general information about audio and videotaping, and the use of a tape on a web site.

As a preliminary matter, your email indicates that the videotaping was not performed by you, but rather by a member of a watershed working group.  California Penal Code Section 632 (reproduced below) makes it unlawful to record a “confidential communication” that was obtained without the consent of all parties to the conversation.

However, section 632 prohibits only the act of taping, not the use or disclosure of a recording made in violation of that section.  For future reference, you should be aware that the California Supreme Court has held that a communication is confidential under Penal Code section 632 if a party to that conversation had an objectively reasonable expectation that the conversation was not being overheard or recorded.  Flanagan v. Flanagan, 27 Cal. 4th 766 (2002).  And section 632(c) defines the term “confidential communication” as a “communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering . . . or in any other circumstances in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”

Although section 632 addresses only the recording and not the use of a videotape, issues sometimes arise with respect to privacy.  In California, a person can be held liable for the publication of private facts when private information about a person is published and the information has no newsworthy value.  For liability to exist, there must be (1) public disclosure; (2) of a private fact; (3) that identifies the plaintiff; (4) the disclosure of which would be offensive to a reasonable person; and (5) the private fact is not newsworthy.  In general, a fact is less likely to be “private” if it occurs out in the open and can be observed by anyone who happens to be nearby (v. something that occurs in a private place, like a private home or a hospital room).  And if it can be established by the video itself or by other evidence that the plaintiff expressly or implicitly consented to having the video taken, that would be a defense to a claim for invasion of privacy.

Finally, it is not clear from your email who is asking you to take down the video.  If the request is coming from the member of the watershed working group that created the videotape — who presumably owns the copyright to that videotape — you may have copyright issues.  A full analysis of these issues and their applicability to your situation is beyond the scope of what we can offer as part of this hotline.

Q: My friend is being suspended from high school for the rest of the year and is having her senior year activities taken away from her. All this came about because she got into an confrontation with at teacher and later posted a blog ranting about the teacher and what happened. The school found out about the blog and is punishing her for it. They are saying that she was threatening the teacher because in it she said “someone should throw her into the ocean or fuck her.”  I know that this must be a clear violation of her first amendment rights but no one she’s talked to is willing to support her.

A: The United States Supreme Court has held that public school students do not “shed their constitutional right to freedom of speech or expression at the schoolhouse gate.”  See Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).  California law provides even greater protection for student speech. See California Education Code sections 48950; 48907; California Constitution, Section 2, Article 1.

However, this does not mean that all student speech is protected.  Neither the First Amendment nor California law gives a student the right to threaten others.  Lovell v. Poway Unified School District, 90 F3d 367, 371 (9th Cir. 1996).  Whether a blog entry like the one posted by your friend is protected speech or an unprotected threat depends on whether it is a “true threat.”  A statement is a “true threat” if a reasonable person making the statement would foresee that others would perceive the statement as a serious expression of intent to commit harm or assault. Lovell, 90 F3d at 372.  The person making the threat need not actually intend to harm the other person, and a statement can be a threat even if not directly communicated to the target of the threat.  Doe v. Pulaski County Special School Dist., 306 F.3d 616, 624 (8th Cir. 2002).

Free speech cases often turn on particular facts, so it is difficult to say if your friend’s statement would be considered a “true threat.”  However, several courts have held that statements on student blogs and websites similar to the statement posted by your friend are not true threats.  See Mahaffey v. Aldrich, 236 F. Supp. 2d 779, 785 (D. Mich. 2002); J.S. ex rel H.S. v. Bethlehem Area School District, 569 A.2d 638 (Pa. 2002); Emmett v. Kent School District, 92 F.Supp 1088 (W.D. Wash. 2000).

If your friend’s blog is not a “true threat”, the school still may be able to suspend her. A school may be able to punish a statement such as the one your friend made on her blog if the school can show that it caused a substantial disruption at school or substantially interfered with school discipline.  See Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).  However, the school probably cannot punish purely off-campus speech that has no connection to the school. See Emmett v. Kent School District, 92 F.Supp 1088 (W.D. Wash. 2000); Flaherty v. Keystone Oaks School District, 247 F.Supp. 2d 698 (2003).  The circumstances under which a student’s blog or social networking site constitute on-campus speech are uncertain.  It is possible that statements on a student’s private blog can be considered on-campus speech if the blog is created, accessed, or edited at school, shared with others at school, or if the blog is directed at the school or school officials. See J.S. ex rel H.S. v. Bethlehem Area School District, 569 A.2d 638 (Pa. 2002) (upholding suspension of a student for threatening content on the student’s website even though the content was not a “true threat”).

On the other hand, your friend’s blog may be protected under California law even if it is not protected under the First Amendment.  In general, California law provides greater free speech protections to students than does the First Amendment.  See Lopez v. Tulare Joint Union High Sch. Dist., 34 Cal. App. 4th 1302 (Cal. Ct. App. 1995).  For instance, California Education Code section 48950 prohibits a school from imposing discipline “on the basis of conduct that is speech or communication that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article 1 of the California Constitution”  (although the section does not protect speech that constitutes “harassment, threats, or intimidation”).  While we are not aware of any legal authority in which this section was applied to a situation like the one facing your friend, you should be aware of it.

Q: We are a group of people who want our public beach to be safe for pedestrians.  When we go onto the beach, we are threatened by the Off-Highway Vehicle (OHV) Division of California State Parks and Recreation who uses our beach as a highway to the Oceano Dunes Recreation Area in Oceano, California.  The OHV now says we have to have a permit, after we applied for a permit weeks ago and were told we don’t need one.  We were told last week if we stopped a vehicle that would otherwise endanger kids we will be arrested.  It appears that this Sunday if we go to the beach with our signs “Safe Beach Now,” they will stop us.  I am telling people to just walk to the surf without signs.  But I would like to know our rights.

A: Under the First Amendment and the equivalent provision in the California Constitution, the state is allowed to impose reasonable, content-neutral and narrowly-tailored “time, place and manner” (“TPM”) regulations on the exercise of free speech in areas that are open for such activity, which should include public beaches.

While requirement a permit can be a valid TPM, one of the requirements of TPM regulations is that they be content-neutral — i.e., that you are not treated differently than other organizations because OHV/Parks & Rec doesn’t like the content of your protest.

One of the main ways of ensuring the TPM regulations are content-neutral is to require that they be in writing.  The incident regarding the permit requirement — first you were told you didn’t need one, then that you did — suggests that OHV is trying to impose a restriction that is not in writing or, if it is in writing, that it is not being applied consistently.  That is typically not considered content-neutral because, if the “requirement” is not in writing, it gives too much discretion to OHV to decide to impose it only when they want to make it difficult for some organization to engage in speech that OHV doesn’t like.

You might want to ask to see the written regulations that OHV claims requires that you get a permit.  If they cannot or will not produce a copy for you to review, it is quite possible the restriction they are attempting to impose is unconstitutional.  If they arrest someone under an unconstitutional TPM regulation, it could subject OHV to a lawsuit for false arrest, especially if all your colleagues did is walk to the surf or even carry a sign.  If you try to stop a vehicle, however, that would be a different story.

That said, it’s hard to know whether a claim for false arrest would really hold up.  A judge down there might rule for OHV.  So it would be best to try to use the request to see the permit requirement as a way to reach some sort of an agreement with OHV.  Some supervisor there must understand that OHV may have a problem if they try to arrest someone for holding a sign that says “Safe Beach Now.”

If they do produce written requirements that require a permit, you might consider postponing your event long enough to give you time to get the permit.

Q: I am working on organizing a peaceful protest on a public beach.  The state park wants me to get a permit ($625) and insurance to have this protest. Have you ever worked with the state parks on this issue? Can I make them give me a permit based on the first amendment?

A: Under the First Amendment and the equivalent provision in the California Constitution, the state is allowed to impose reasonable, content-neutral and narrowly-tailored “time, place and manner” regulations on the exercise of free speech in areas that are open for such activity.  The question would be whether the permit fee and insurance requirements are reasonable.

The courts have held that a registration fee or deposit may be required where the permitting authority will likely incur additional costs from the exercise of free speech rights as long as that fee “bears a reasonable relationship to the costs likely to be incurred.”  H-CHH Associates v. Citizens for Representative Gov’t, 193 Cal. App. 3d 1193, 1212 (1987).  The question would be whether $648 would be too much.  More than 60 years ago, the U.S. Supreme Court upheld a permit fee of up to $300 per day.  Cox v. New Hampshire, 312 U.S. 569 (1941).  More recently, the California Court of Appeal upheld city permit fees that were “nearly 50 times higher” than the amount in Cox (i.e., nearly $15,000) where that had been the actual cost to the city of traffic control, clean up and the like.  Long Beach Lesbian & Gay Pride, Inc. v. City of Long Beach, 14 Cal. App. 4th 312 (1993).

However, if the park system cannot justify the $648 as being tied to the actual cost to the system of hosting the protest, or if the amount of the permit fee is not constant and can be adjusted in the discretion of park officials, it may well be unconstitutional.  Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) (striking down as unconstitutional a parade permit fee, the amount of which was set by the county administrator, subject to a $1,000 cap because it granted too much discretion to the administrator to decide how much to charge, and thus to charge more based on content the administrator disliked rather than for content-neutral reasons).

As for the insurance requirement, the California Court of Appeal and other courts have invalidated an insurance requirement imposed by Long Beach as a prerequisite to obtaining a parade permit, partly on the ground that the insurance requirement was not needed in light of the ability of the city to charge a permit fee to cover the cost to the city of the parade (at least absent evidence that the state park system has actually had to rely on the insurance in prior protests).  Long Beach Lesbian & Gay Pride, Inc. v. City of Long Beach, 14 Cal. App. 4th 312, 342 (1993).  As that case recognized, “Other courts that have reviewed parade insurance requirements have uniformly found them to overreach, in view of the overlapping utility and availability of other means of protection as referred to above, and the concomitant absence of a history of claims and hence need for expensive, high-limit coverage. (Eastern Conn. Citizens Action Group v. Powers (2d Cir. 1983) 723 F.2d 1050, 1056-1057; Invisible Empire, KKK v. Mayor et al. of Thurmont, supra, 700 F.Supp. at p. 285; Collin v. Smith (N.D.Ill. 1978) 447 F.Supp. 676, 685, affd. (7th Cir.)   578 F.2d 1197.)  Here too, where the cost of the insurance has closely threatened (until preliminarily enjoined) to prevent plaintiffs’ protected activity yet that coverage has never had to be called upon, [the]s insurance requirement  appears to be a relatively gratuitous burden, “substantially broader than necessary to achieve the government’s interest.” ( Ward v. Rock Against Racism, supra, 491 U.S. at p. 800 [105 L.Ed.2d at p. 681].)  Id.

Q: I intend to run a social networking site with a general focus on marijuana.  The site will allow open forum discussion, web logs & media uploads by its members.  Because marijuana is a controlled substance in the U.S. and I will be running the site from with in the U.S., could I encounter any legal difficulties directly related to freedom of speech?

A: The First Amendment (and the California Constitution) protect individuals against government action based on the individual’s truthful speech in many situations.  A social networking site focused on a drug that is illegal throughout most of the country could conceivably implicate various state or federal criminal laws, though, including what liability you might have for your users’ activity on the site.  For example, discussing intended future drug use could theoretically form the basis for a criminal search warrant or constitute aiding, abetting, or conspiracy to commit crimes associated with drug use.  A detailed analysis of the potential liability associated with such a site, however, is beyond the scope of what we can provide through this service.

Q: A recent art exhibit in the lobby of a city hall for the Chinese New Year was removed because it was considered inflammatory. The work in question juxtaposed a portrait of Mao Zedong and George Washington a la Andy Warhol. The other artists whose work appeared in the exhibit took down their work in protest of the removal of the Mao/Washington piece. Was this a violation of the artists’ first amendment rights?

A: Although we cannot advice you on whether removal of one of the art pieces constitutes a violation of the artist’s First Amendment rights, we can give you a general framework for analyzing regulation of speech activity on government property.

The United States Supreme Court in Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37 (1983), announced a three-part framework for determining how First Amendment interests are to be analyzed with respect to government property.  Regulation of speech activity on governmental property that has been traditionally open to the public for expressive activity, such as public streets and parks, is examined under strict scrutiny.  Id., at 45.  Regulation of speech on property that the government has expressly dedicated to speech activity is also examined under strict scrutiny.  Id.  But regulation of speech activity where the government has not dedicated its property to First Amendment activity is examined only for reasonableness.  Id., at 46.

The lobby of a city hall might fall under the third category, property that has not been dedicated to First Amendment activity.  Although the lobby is open to the public during business hours, “that fact alone does not establish that such areas must be treated as traditional public for a under First Amendment.”  United States v. Kikinda, 487 U.S. 720 (1990).

Moreover, although the government has permitted some speech activity by allowing the art exhibit to be placed in the lobby of the building and may have permitted other speech activities in the past, such limited and selective access does not transform the forum from a nonpublic to a public forum.  Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U.S. 788 (1985) (“Selective access does not transform government property into a public forum”).

Assuming a city hall lobby constitutes a nonpublic forum that has not been dedicated to First Amendment activity, regulation of speech there must meet the least stringent test, that of reasonableness.  That is, it must be reasonable and “not an effort to suppress expression merely because public officials oppose the speaker’s view.”  Perry, 460 U.S. at 46.  Indeed, “control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.”  Cornelius, 473 U.S. at 806.  “The Government’s decision to restrict access to a nonpublic forum need only be reasonable; it need not be the most reasonable or the only reasonable limitation.”  Id. at 808.  There might be a question as to whether removing the piece because it is considered “inflammatory” constitutes viewpoint discrimination in this situation.

Q: Can I protest in front of a school about school practices or policies? For example, have a banner or sign that read’s “[This] high school left my kid behind! and stand in the front of the school near where kids are dropped off or picked up so their parents are aware. Can I pass out flyers on the subject?

A: Sidewalks, streets, and parks are generally considered public fora.  See ACLU v. City of Las Vegas, 333 F.3d 1092, 1099 (9th Cir. 2003).  “Public fora have achieved a special status in our law; the government must bear an extraordinarily heavy burden to regulate speech in such locales.”  Grossman v. City of Portland, 33 F.3d 1200, 1204 (9th Cir. 1995).  In order to impose restrictions on speech in such public fora, the restrictions must be “justified without reference to the content of the regulated speech . . . narrowly tailored to serve a significant governmental interest, and . . . leave open ample alternative channels for communication of the information.”  Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989).  Speech activities like displaying signs on the sidewalk in front of the school should be generally protected activity.  Should school officials attempt to restrict your speech activity, the restrictions imposed should have to meet the above-stated test.

However, please note that if you decide to enter school grounds, the school principal or his or her designee may exclude you if there is a reasonable basis to believe that your actions (beyond just being on campus) “would be disruptive of, or would interfere with, classes or other activities of the public school program.”  Educ. Code § 32211(a); see also Penal Code § 627.4.

Q: Can I file for defamation against a co-worker who often call me gay, crook and maniac in front of my co-workers?

A: Generally speaking, under California law, slander is a false statement made to a third person that charges a person with crime, imputes him with having an infectious or loathsome disease, tends to injure him with respect to his business or trade (either by imputing to him general disqualification in those respects which the office or other occupation requires or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits), imputes to him impotence or lack of chastity, or by natural consequence of the statement causes actual damage.  Civil Code Section 46.

It is important to keep in mind that the First Amendment requires that the statement at issue be one of fact rather than one of opinion.  See, e.g., Gregory v. McDonnell Douglas Corp., 17 Cal. 3d 596, 600 (1976).

Whether the statements your co-worker has made would be considered statements of fact and whether they satisfy the requirements of Section 46 with respect to the effect they would have on listeners would likely depend on the context in which they were made.  Evaluating the strength of your potential claim is beyond the scope of what we can provide through this service, but you might be able to find an attorney to assist you through the California State Bar: http://www.calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=10182&id=1403.

Q: Do you know what information Yahoo or Microsoft give away if there is a subpoena asking the identity of email account?  Do they give away actual emails or just IP logon data and personal info from registration?  How would someone stop the discovery if he wanted to stay anonymous?

A: Unfortunately, I don’t know Microsoft and Yahoo’s policies in responding to subpoenas seeking the identity of a person with a particular email account.  If you have not already done so, you might check the privacy policies and/or terms of service on the web sites of both entities, which might provide this information and/or contain other information pertinent to your situation.

The steps you might take to prevent discovery of your identifying information would vary depending on the particular facts and circumstances of your situation, but might include a John Doe motion to intervene and motion to quash the subpoena/discovery request.

In the event you are interested in obtaining specific legal advice for your situation, you might try using CFAC’s lawyer referral program.  The following link on CFAC’s website contains information about the program and a form for you to fill out.
http://www.firstamendmentcoalition.org/lawyers-assistance-request-form/

You may also want to go on the website for the State Bar of California for information on lawyer referrals:
http://www.calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=10182.

Public Filming

Q: There was a film crew in my city filming a popular TV show in a restaurant and sidewalk in front of the restaurant. I took some pictures from the public sidewalk across the street.  None of my pictures were for anything but for my personal use–not commercial in any way.  One crew member said just not to use a flash.  Then 20 minutes later, another supposed crew person said I couldn’t take any pictures because they had a permit and they threatened to call the police and got pretty belligerent.  I told the guy that I was in a public place and not encroaching on any filming efforts.  A police car showed up but took no action as we were leaving.  I read in California film regulations that no permit is required for non-commercial private-only family filming, but can a permitted film crew like the one I described stop me from taking pictures from a public place
A: The general rule is that photographing or filming what occurs on public property is legal.  A public sidewalk is a “public forum” for purposes of the First Amendment, and any restrictions on expression in such an area must be “narrowly drawn to achieve a compelling state interest.”  Int’l Soc’y for Krishna Consciousness v. Lee, 505 U.S. 672, 678 (1992).  I am not aware of any authority for the proposition that if someone has a permit to use a certain public area, that entity could restrict your ability to take pictures in the public forum (absent a compelling state interest, which would generally not have to be something more compelling than helping an entity make a film).