The First Amendment Coalition and a Sacramento community group have filed suit against the Sacramento City Council for access to Council emails and other records concerning a  controversial redistricting plan for Council districts that was adopted last summer.

The suit, filed Friday by FAC and Eye on Sacramento, a local nonprofit, grows out of the Council’s refusal to disclose certain records requested by the organizations under the California Public Records Act. The withheld records include emails between Council members leading up to a contentious City Council meeting at which redistricting plans proposed by a citizens’ advisory committee–created by the Council–were rejected in favor of a voting map drawn up by members of the Council.

The plan adopted has been criticized for protecting the reelection prospects of incumbent Council members and for deviating significantly from the one-person, one-vote formula required under the federal Constitution. An editorial in the Sacramento Bee slammed the Council’s plan, and the secrecy surrounding  it,  “as a pathetically obvious political power play that looms as another black eye for this council.”

In withholding the records, the Council has claimed that they are subject to the “deliberative process privilege,” an exemption read into the Public Records Act in a 30-year-old state Supreme Court decision relating to records of the Governor. FAC believes, and will argue in this suit, that a privilege for government officials’ deliberations doesn’t apply to deliberative bodies–particularly deliberative bodies, like the Sacramento Council, that are also subject to California’s open-meeting law.

“City Councils, which are required by law to do all their decision-making in public meetings, can’t claim a secrecy ‘privilege’ for the same deliberations,” said Peter Scheer, FAC’s executive director. “In this case, the withheld emails may even show that Council members violated the Brown Act by discussing their districting map outside of a public meeting,” Scheer added.

FAC and Eye on Sacramento are represented in the case by Karl Olson, a partner at San Francisco law firm Ram, Olson, Cereghino & Kopczynski LLP .

Here’s a copy of the FAC lawsuit.

The First Amendment Coalition and a Sacramento community group have filed suit against the Sacramento City Council for access to Council emails and other records concerning a  controversial redistricting plan for Council districts that was adopted last summer.

The suit, filed Friday by FAC and Eye on Sacramento, a local nonprofit, grows out of the Council’s refusal to disclose certain records requested by the organizations under the California Public Records Act. The withheld records include emails between Council members leading up to a contentious City Council meeting at which redistricting plans proposed by a citizens’ advisory committee–created by the Council–were rejected in favor of a voting map drawn up by members of the Council.

The plan adopted has been criticized for protecting the reelection prospects of incumbent Council members and for deviating significantly from the one-person, one-vote formula required under the federal Constitution. An editorial in the Sacramento Bee slammed the Council’s plan, and the secrecy surrounding  it,  “as a pathetically obvious political power play that looms as another black eye for this council.”

In withholding the records, the Council has claimed that they are subject to the “deliberative process privilege,” an exemption read into the Public Records Act in a 30-year-old state Supreme Court decision relating to records of the Governor. FAC believes, and will argue in this suit, that a privilege for government officials’ deliberations doesn’t apply to deliberative bodies–particularly deliberative bodies, like the Sacramento Council, that are also subject to California’s open-meeting law.

“City Councils, which are required by law to do all their decision-making in public meetings, can’t claim a secrecy ‘privilege’ for the same deliberations,” said Peter Scheer, FAC’s executive director. “In this case, the withheld emails may even show that Council members violated the Brown Act by discussing their districting map outside of a public meeting,” Scheer added.

FAC and Eye on Sacramento are represented in the case by Karl Olson, a partner at San Francisco law firm Ram, Olson, Cereghino & Kopczynski LLP .

Here’s a copy of the FAC lawsuit.

–Peter Scheer

The First Amendment Coalition has filed an amicus brief in a US Supreme Court case, United States v. Alvarez,  that will test the limits of free speech protection for false speech.  FAC’s brief was written by lawyers Gary Bostwick, Jean-Paul Jassy and Kevin Vick of  LA law firm Bostwick & Jassy, LLP.

The Alvarez case concerns a local politician in Southern California who was prosecuted under an obscure federal law, the Stolen Valor Act, which makes it a crime to falsely claim to have been awarded the Congressional Medal of Honor. Alvarez’s conviction was overturned by the Ninth Circuit federal court of appeals on First Amendment grounds.

The Supreme Court’s prior decisions in the areas of libel and elsewhere have extended protection to some false speech as a prophylactic measure, needed to assure adequate First Amendment protection for true speech. The Justice Department contends that First Amendment protection for false speech should be narrowly limited to those areas.

FAC’s brief argues that the Court should resist the government’s invitation to carve out a new category of non-protected speech under the First Amendment. FAC also points out that the infamous Sedition Act of 1798, which criminalized “false and malicious writings” against the federal government, would survive First Amendment scrutiny under the test urged by the Justice Department.

Here’s the Court of Appeals decision in US v. Alvarez.

– PS

BY PETER SCHEER—Why is it that the First Amendment Coalition, like other organizations that defend freedom of speech, is so often aligned in support of seriously unsavory characters?

Just last week FAC filed an amicus brief in the US Supreme Court in support of a local politician and serial liar (no redundancy intended) who claimed to have served in the Marines (a lie) and to have been awarded the nation’s highest military honor for heroism in combat (another lie). He has been prosecuted under the federal “Stolen Valor Act” for the speech-crime of claiming falsely to have received the Congressional Medal of Honor. (United States v. Alvarez).

In still other recent Supreme Court appeals, FAC has filed First Amendment amicus briefs in support of:

–persons who make and sell videos of the torturing of small animals (United States v. Stevens);

–hate-filled homophobes who picket near funerals for US servicemen, carrying signs saying “Thank God for Dead Soldiers” (Snyder v. Phelps); and

–companies that sell–to children!—graphically-violent video games featuring, in the words of Supreme Court Justice Samuel Alito, “victims who are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces” (Brown v. Entertainment Merchants Association).

Of course, FAC also assists many perfectly normal folks–even journalists!–whom you wouldn’t hesitate to hire as babysitters for your kids. Nonetheless, advocacy in support of the free speech rights of all manner of extremists and outcasts is central to our mission.

FAC gets involved in these cases because freedom of speech is a principle, not a litigation tactic. If you invoke freedom of speech only to protect ideas and viewpoints with which you agree, you can’t claim  to adhere to the First Amendment as a matter of principle. Selectivity in the application of free speech rights–advocating protection of some speakers, and not others, based on their views–is fundamentally at odds with the idea of freedom of speech.

In a democracy, the need for free speech protection is greatest for ideas and speakers that are opposed by the political majority.  The more unpopular, the greater the need. Although democracy depends on First Amendment freedoms, the First Amendment also serves as a vital check on democracy’s excesses. These include the majority’s impulse to validate its own views by invalidating–through censorship–views that it fears or dislikes.

The temptation is always great to carve out exceptions to freedom of speech for expression that is so hateful and offensive as to have zero social value. After all, so-called “hate speech” is barred to varying degrees in most liberal democracies (including, for example,  France, Canada, Germany, Great Britain and Australia). The United States is the notable exception–and we must continue to be.

Hate speech needs constitutional protection not because bigoted rants, lies and snuff videos deserve an audience–they don’t–but because speech having no social value can’t be proscribed without also suppressing speech that does have social value. Even more than we dislike hate speech we fear a government that has the power to decide what speech will be heard and what speech will be silenced.

Constitutional safeguards for speech that really matters–political speech, informed criticism of official policies, artistic expression–are at their strongest when protection is also intact for speech that makes you want to cover your ears.

The time to really worry about personal freedom in America is when you can no longer hear the voices you hate.
———–

Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition.

BY PETER SCHEER—Successful technology firms pride themselves on their capacity to disrupt the established order. The reference is usually to a technological advance that poses an existential threat to an entrenched industry or way of doing business. Think of Apple Computer’s impact on the cellphone and music industries, Google on the sale and delivery of advertising, or Amazon on book publishing–to name just a few.

But in their recent protests against anti-piracy legislation pending in Congress–the SOPA  bill—high-tech firms demonstrated, for the first time, their awesome capacity for “creative destruction” of a political establishment that they see as hostile to their interests. Literally within hours of Wikipedia going dark and Google’s covering its logo with the black band of censorship, members of Congress were running for the exits, disavowing their previously pledged support for SOPA.

Legislators barely hesitated before reneging on literally decades of accumulated political debts to Hollywood interests, the principal backers of the anti-piracy bill. These politicians cowered before the emergence of a new political institution—more powerful even than the traditional media, the so-called “Fourth Estate,” in its heyday. Call this new institution, the corporate power brokers of Silicon Valley and other digital meccas across the country, the Fifth Estate. Pulling the plug on SOPA was the occasion for their political coming out.

Shrewdly, the Fifth Estate selected a political strategy that relied entirely on symbolic expression. The online anti-SOPA protests involved no threats of violence, no coercion, no overnight camping in public parks or blocking of street traffic during rush hour. Municipalities were not required to pay overtime to police. Tasers guns and pepper spray remained holstered. And there were no injuries.

The Fifth Estate’s tactic of symbolic protest was the essence of constitutionally protected expression.

In this context it is worth noting that the First Amendment rights on display in this debate were secured by the US Supreme Court’s controversial decision in Citizens United v. Federal Election Commission. That misunderstood case is reviled in some quarters for its affirmation of the First Amendment rights of corporations. Indeed, in the aftermath of the Citizens United decision, a cottage industry has emerged to advocate legislation (or, God forbid, constitutional amendments) to curb the influence of corporations in the political sphere.

Their good intentions notwithstanding, those who believe corporations have no free speech rights (or that they should have, at most, a second-rate version of the free speech protections for individuals), should realize that only the First Amendment stands in the way of governmental punishment–legislative, regulatory or otherwise–against Google and other Fifth Estate corporations for their inciting of public opinion against SOPA-type legislation.

Think of how many members of Congress, humiliated (or at least humbled) by the anti-SOPA blow-back on the internet, would love to not only punish the Fifth Estate for its political impudence, but to neuter it permanently–for example, by blocking corporate acquisitions,  unleashing antitrust and SEC investigations, or instigating IRS scrutiny.

One does not have to be a Ron Paul supporter to appreciate that, for corporations (like Google, Twitter, Facebook and Microsoft), there is nothing more intimidating than being in the cross-hairs of government law enforcement agencies, egged on by pissed-off members of Congress with power over the agencies’ budget appropriations.

Corporations, no less than individuals, need First Amendment protection for their criticism of government and advocacy of policies opposed by government. They need this protection for themselves, for their employees, and for their shareholders and customers.
—————
Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition (FAC). The views expressed here are his alone, not necessarily those of the FAC Board of Directors.

BY EDWARD WASSERMAN–A comment posted to London’s Guardian newspaper said it best: “Censorship, like everything else in the West, has been privatized.”  The writer, somebody called “edensasp,” was referring to news that Wikileaks—the online whistleblower that has been embarrassing governments and corporations worldwide by disclosing their secrets–was suspending operations.

Why? Had its leader, the mercurial Julian Assange, been indicted? Had the black choppers swooped in and taken him out? No, nothing that cinematic. It was the bankers. A handful of big money handlers decided they wouldn’t process donations to Wikileaks, it had exhausted its reserves, and it was going broke.

The fund cutoff started in December 2010. That’s when Visa, MasterCard, PayPal, Western Union, Amazon and Bank of America discovered their patriotic duty.

At the time, five of the world’s top news organizations—The Guardian, The New York Times, El Pais, Le Monde and Der Spiegel—had begun publishing articles based on a remarkable trove of U.S. State Department cables shared with them by Wikileaks. The organizations had spent months sifting from among the documents, eliminating those they thought might cause needless harm. They then launched a barrage of articles derived from candid reports from U.S. diplomats that exposed official lies, both our country’s and dozens of others’.

But official lies have their supporters too, and there was a huge fuss. Because the secret cables were American—even if the people whom the secrecy protected often were not—U.S. politicians led the charge against Wikileaks. Assange was denounced as “a high-tech terrorist,” law-makers demanded his head, and Attorney General Eric Holder launched a criminal investigation of his operation.

And so the money-handlers were stirred to action. Within days Wikileaks was under a financial stranglehold, and it now says its revenues dropped from $140,000 a month to less than a tenth that.

Why did the companies do it? PayPal, the flagship paymaster of the digital world, said it forbids payments to anything that “encourages” illegal activity, and MasterCard said its “rules prohibit customers from directly or indirectly engaging in or facilitating any action that is illegal.”

Really? “Indirectly facilitating” an illegal act? Think about that. It’s a formulation a second-year law student could tear apart as not just unenforceable, but unintelligible. Doesn’t selling gasoline “indirectly facilitate” speeding? How much of what we consider normal commerce would escape that catchall?  Shouldn’t Bank of America require you to apply for your next ATM withdrawal, just in case?

Besides, what was the illegal act that was facilitated? Nobody has suggested the publications that used the material acted illegally.

And don’t we normally punish after conviction, not before? (Nearly a year later, Wikileaks hasn’t even been charged.)

The explanation was hogwash, of course. It seems obvious the money-handlers’ actions were political, not legal. The financial industry isn’t particularly popular right now, and in the wake of the worst banking meltdown in generations Obama administration officials had made a special point of denouncing the consumer finance sector for its furtive charges and extortionate rates. With regulation looming, tossing a bone to the Justice Department had to make sense.

And they’ve gotten away with it, largely because of the news media’s own deep ambivalence about Wikileaks.  McClatchy’s Nancy Youssef recently reported that support for WikiLeaks was generally weak among U.S. journalists. A committee of the Overseas Press Club of America, she noted, had decided Assange was “not one of us,” the National Press Club wouldn’t comment on whether he should be charged criminally, and such renowned media champions as Floyd Abrams, who helped represent the New York Times in the Pentagon Papers case, and Lucy Dalglish, head of the Reporters Committee for Freedom of the Press, question whether Wikileaks deserves the protections journalists warrant.

Assange has helped arm his critics by releasing in September, without editorial review, the unpublished remnants of the 250,000-document State Department trove that the five news organizations had so carefully picked through last December.

Still, the logic under which critics deny Wikileaks standing as a journalism organization is, to me, baffling. At considerable risk, it acquires information of vast public significance and makes it publicly available. Its disclosures have made headlines worldwide, and have been credited with helping nourish pro-democracy forces with solid information about their own corrupt governments. That sounds like journalism.

Some say Wikileaks has been secretive and irresponsible. If so, it has plenty of company. Any number of perfectly legitimate news organizations resist scrutiny and can be irresponsible in the stories they mangle, overplay or ignore.

That’s regrettable, but the First Amendment doesn’t guarantee a responsible media. It guarantees a media free of censorship. And the principle is the same, regardless of whether the censors are government apparatchiks or private-sector toadies who decided, out of self-interest, to pin a deputy’s badge on their lapels.

Copyright Edward Wasserman 2011
———–
Edward Wasserman is the John S. and James L. Knight Foundation professor of journalism ethics at Washington and Lee University in Lexington, Va.

October 19, 2011—The Obama administration on Wednesday said that, using World Trade Organization rules, it was calling on the government of China to answer detailed questions about its censorship of the internet–in particular, the blocking of websites of US-based businesses seeking to tap the vast Chinese consumer market.

The announcement, which grows out of an initiative of a free speech nonprofit group, the First Amendment Coalition (FAC), is a significant step in investigating and challenging internet censorship as a violation of free trade rules. Such a challenge would likely include the claim that China’s blocking and disrupting of US-based websites–under censorship rules that are cloaked in secrecy, applied arbitrarily, and enforced without a semblance of due process–are an illegal trade barrier under WTO treaties.

The Office of the US Trade Representative, which made the announcement and represents the US before the WTO, highlighted the harm China’s censorship system caused to small and mid-size US businesses that do not have operations in China.  Because their main access to the Chinese market is through the internet,  the blocking and disruption of their websites effectively precludes their competing for Chinese consumers.

“We are pleased that the USTR is demanding that China shed light on its elaborate, but highly secret, system for censoring the internet,” said Peter Scheer, FAC’s executive director. FAC in 2007 launched its effort to persuade the USTR to act against China’s internet censorship. Earlier this year FAC proposed that USTR invoke a WTO rule to extract information from China, the step it announced Wednesday. “We appreciate USTR’s efforts on this important issue,” Scheer said.

Gilbert Kaplan, FAC’s lawyer and a partner in the Washington, DC office of King & Spalding, said “it’s time for the US government to just say no to China’s censorship of the internet, which has become more restrictive in recent years, causing untold competitive harm to US information and technology companies at a time when the US economy can least afford it.”

Below are the questions that the USTR announced it had posed to Chinese government authorities:
———–
“1. Websites of service suppliers based outside of China are sometimes inaccessible in China, which can prevent those companies from marketing products and supplying services to the Chinese market. The United States would like to better understand China’s rules governing website blocking so that service suppliers based outside of China may adopt appropriate policies to avoid encountering this problem.

a. Who or what ministry is responsible for determining if and when a foreign website should be blocked in China?

b. What are the guidelines and criteria for blocking access to foreign websites? How often are these guidelines and criteria changed or published? Where are these guidelines published? Are they made public in advance of their implementation? Which ministries are responsible for drafting them?

c. What is the process for implementing a restriction on a website? How does the relevant entity determine whether an entire website should be blocked or only services or content deemed illegal?

d. Is the blocking implemented directly by the government, or indirectly by Internet service providers (ISPs) and/or telecommunications companies?

e. If blocking is carried out by ISPs or telecommunications companies, are these actions typically implemented through written governmental orders? If so, which governmental organs are authorized to issue such orders?

f. How can a service supplier without a physical presence in China determine if access to their website is or will be blocked in China? To whom should such a supplier direct questions if there are any misunderstandings?

g. Can an affected service supplier appeal a decision to block access to their website? If so, what is the procedure for appealing, and where is that procedure published? Can a service supplier use the court system to appeal a decision to block access to their website? If so, has any such appeal ever been successful?

h. Is the same process used to prevent access to foreign and domestic websites providing similar services in China? If the process is different, please describe the differences.

2. The United States understands that the State Council established a State Internet Information Office (SIIO) in May 2011. The United States is interested in better understanding the functions of the office and whether it is the appropriate interlocutor for foreign businesses that have questions or concerns regarding website inaccessibility.

a. What are the responsibilities and authorities of the SIIO?

b. Will the SIIO handle licensing or other approval processes for Internet service providers or make decisions regarding filtering of foreign websites? If so, please describe which of these processes the SIIO will manage.

c. Should companies contact the SIIO or some other entity when they have questions regarding China’s Internet filtering laws, regulations and policies? If the SIIO is the appropriate contact, which office or individual should they contact? If not SIIO, which ministry and office should companies contact?

d. Which categories of objectionable conduct are managed by each ministry with responsibilities or authorities for managing Internet content?

3. Based on information provided by the SIIO earlier this year, the United States understands that foreign websites are sometimes inadvertently blocked when they share an IP address with a website which China has deemed harmful.

a. Can you explain how such inadvertent blockages occur?

b. Are there other ways that China can filter material deemed harmful to avoid such inadvertent website blockages?

c. Would Chinese authorities consider it reasonable to notify the owner of a web hosting service that one or more sites that the service hosts are being blocked in China, so that the web hosting service can ensure that other legitimate sites are not inadvertently blocked? Are Chinese authorities already doing this?

d. What steps should companies take when they become aware of such inadvertent blockages to resolve any issues and ensure their services are accessible in China?

4. The Measures for the Administration of Internet Information Services, issued by the State Council on September 25, 2000, describe nine categories of content which Internet information service providers may not disseminate. The Provisions on the Administration of Internet News Information Services, issued by the State Council and Ministry of Information Industry on September 25, 2005, add two additional categories of content which may not be transmitted. Given the broad nature of these categories, the United States is seeking greater clarity on the content that falls within them.

a. Are there any laws, regulations, policies or other guidance that establish criteria to determine when content fits into these eleven categories? If so, where can a service supplier access these measures?

b. Are government requests or orders to filter specific terms online ever communicated directly to Internet information service providers? If so, how are these directives communicated? Are these requests or orders made public? Does an Internet information service provider have the right to obtain a written order prior to implementing such a directive?

c. Are the same terms subject to filtering made available to Internet information service providers inside China and outside China?

5. According to the White Paper on the Internet in China, “telecommunication business operators and Internet information service providers shall establish Internet security management systems and utilize technical measures to prevent the transmission of all types of illegal information.”

a. How is illegal information defined in this instance?

b. Is a written governmental order required for either a private corporation or a relevant authority to block the transmission of illegal information?

c. What types of technical measures are service suppliers expected to use to prevent transmission of the illegal information?

d. Do authorities in China approve specific technical measures? If so, which ministry does this?

e. Are the technical measures employed by operators to block the transmission of illegal information applied automatically to domestic and foreign traffic? If not, how are they applied?

f. Does Internet content from outside of China go through a separate monitoring process for illegal information than Internet content created inside of China? If so, how do the two processes differ?”
———

For more information, contact:

Gilbert Kaplan
King & Spalding
Washington, DC
202-661-7981

Peter Scheer
First Amendment Coalition
San Rafael, CA

http://www.firstamendmentcoalition.org

415-460-5060

Gov. Jerry Brown has vetoed SB 914, a bill sponsored by the First Amendment Coalition that would have required police to get a warrant before searching through the smart phones and other electronic devices of people they arrest.

The bill would have overridden a recent California Supreme Court decision allowing warrantless searches of cellphones.  Interpreting federal law, the Court ruled that in a search “incident to arrest,” police can treat the files on a suspect’s cellphone the same as the contents of his pockets or a cigarette pack in his possession.

But that reasoning, of course, ignores the fact that cellphones contain sensitive and confidential files, both personal and professional, by the gigabyte. SB 14 was based on the idea that a search of a cellphone is equal in intrusiveness to a search of one’s office desk or bedroom. Just as police must have a warrant to search a desk or bedroom, so they should have to get a warrant  to search a cell phone.

In his veto message, Gov. Brown said, “the courts are better suited to resolve the complex and case-specific issues relating to constitutional search-and-seizure protections.”

FAC Executive Director Peter Scheer was critical of  Brown’s reasoning. “The courts have already addressed the specific issue of searches of cellphones following arrest. The California Supreme Court’s decision is the final word, not the beginning of a judicial debate.”

BY PETER SCHEER–Steve Jobs died at age 56, a young man. But one of the things that stands out about him is the longevity of his superstardom. Jimmy Carter was president when Jobs first appeared on the scene as the bearded personification of high-tech cool. From the early Apple PCs to the launch of the Mac, his involvement in Pixar, his return to a humbled Apple and its reinvention as a dominant force in the media world (iPod, iTunes, iPhone, iPad), Jobs spent more than 30 years at the very top of his game.

It’s as though the Beatles, instead of breaking up in 1969, had kept on writing and recording and performing new songs at the same level of creative intensity and productivity for three decades. Interestingly, one of the few people who comes to mind as possibly rivaling Jobs in this regard is his career-long nemesis, Bill Gates. That they were both children of California culture in the 60s and 70s is not a coincidence.

. . . I first realized Steve Jobs was not merely lucky, but a true—and uniquely American—genius when, with several small children in tow, I saw the first Toy Story movie in 1995. Jobs’ launch of Apple was impressive, to be sure, but Apple in the late 80s and early 90s was not so clearly superior in its technology or vision to the legions of other startups making first-generation personal computers.

Then came Pixar, which Jobs bought when the company had zero revenues (and lots of human capital). Its first full-length computer-animated film was so good-and such a leap, in every possible way, from everything that had come before, that there was no escaping that Jobs was a truly gifted corporate leader. With Pixar, lightning had struck a second time for Steve Jobs. It would strike for him again and again and again.

. . . The lionizing of Steve Jobs, one of the world’s richest men, is in sharp contrast to the political sport of  thrashing America’s super-rich: CEOs, hedge fund managers, investment bankers, venture capitalists (and most of the residents of Manhattan’s upper east side). As Jobs lay dying, New York’s  “Occupy Wall Street” demonstrations drew ever bigger crowds of participants and onlookers.

Jobs’ stature reflects America’s ambivalence about personal wealth. Jobs is spared the groundswell of populist anger because he is seen as deserving his fortune (over $6 billion based on his stock holdings alone). He is classed not with corporate chieftains and financiers for this purpose, but with professional athletes and Nobel Prize winners. Jobs’ oversized compensation is viewed as the just reward for a personal talent so great and so rare it is like a national asset.

Jobs’ winning streak at Apple, particularly during the last decade, was so stunning and consistent that only fools and masochists bet against him. And for a while it even appeared that, against all odds, Jobs had managed to beat a diagnosis of pancreatic cancer.

. . . Steve Jobs had the truly bizarre experience of reading his own obituaries—the first wave of obituaries that were published in August, following his resignation as Apple CEO. I think he would have been struck by the outpouring of tributes and affection: their volume and depth reflected more than just his importance in the business world or the history of computers.

Jobs would have seen that he had connected in some fundamental way with his customers who, by the millions, not only had opened their wallets to buy Apple’s cool, lifestyle-defining products, but also identified with Jobs’ personal narrative: the college dropout who followed his dream from his parents’ garage to the top of the Fortune 500, all the while staying true to some inner compass wired to a uniquely California culture prizing, above all else,  intuition, creativity, community and risk-taking.

Not a bad legacy. Not bad at all.

————

Peter Scheer, a lawyer and journalist, is executive director of FAC. This article, which also appeared in the San Francisco Chronicle and Huffington Post, reflects his views only, not those of the FAC Board of Directors.

Join the Challenge! We need to raise exactly $47,209 to meet the overall goal of $400,000. I know you care deeply about freedom of speech and the public’s right to know. These rights of democratic citizenship underlie all others because they enable the people to hold their government accountable. Find out how your contribution will help.

SB 914, a FAC-sponsored bill to prohibit warrantless searches of cell phones during an arrest, has been approved by the California Legislature. The legislation now goes to the Governor’s office, where, because of opposition by law enforcement, its fate is uncertain.

The Senate yesterday approved the bill, which was introduced by Senator Mark Leno (D-San Francisco), by a bipartisan 31-4 vote. It was approved by the Assembly in August.

Police ordinarily have authority, following an arrest, to conduct a search–without a warrant–of the person arrested and materials and containers in his possession–for example, a wallet, any weapons, or a cigarette pack. SB 914 alters this rule for “portable electronic devices” because of the volume and sensitivity of personal files and information that is typically stored on them.

Under SB 914, police could still search cellphones and similar devices, but only after obtaining a warrant. The legislation would reverse the outcome of a California Supreme Court decision, People v. Diaz,  issued earlier this year. -PS

Here is the full text of SB 914:

SECTION 1.  The Legislature finds and declares all of the
following:
(a) The right of privacy is fundamental in a free and civilized
society.
(b) The number of Californians utilizing and carrying portable
electronic devices is growing at a rapidly increasing rate. These
devices are capable of and encourage the storing of an almost
limitless amount of personal and private information. Commonly linked
to the Internet, these devices are used to access personal and
business information and databases that reside in computers and
servers located anywhere in the world. Users of portable electronic
devices have a reasonable and justifiable expectation of privacy in
the information these devices contain and can access through the
Internet.
(c) The California Supreme Court, in People v. Diaz, 51 Cal.4th 84
(2011), held that the information in these devices may be subject to
search incident to an arrest without a warrant or other judicial
supervision.
(d) The intrusion on the information privacy and freedom of
communication of any person arrested is of such enormity that it must
require arresting officers to obtain a warrant to search the
information contained in or accessed through an  arrested’s
arrested person’s  portable electronic device,
such as a cellular telephone.
(e) It is the intent of the Legislature in enacting Section 1542.5
of the Penal Code to reject as a matter of California statutory law
the rule under the Fourth Amendment to the United States Constitution
announced by the California Supreme Court in People v. Diaz. The
Legislature finds that once in the exclusive control of the police,
cellular telephones do not ordinarily pose a threat to officer
safety. The Legislature declares that concerns about destruction of
evidence on a cellular telephone can ordinarily be addressed through
simple evidence preservation methods and prompt application to a
magistrate for a search warrant and, therefore, do not justify a
blanket exception to the warrant requirement. Moreover, good forensic
evidence practice supports the use of search warrants to obtain
information contained in a cellular telephone seized incident to
arrest. Except as otherwise stated in this section, it is not the
intent of the Legislature to curtail law enforcement reliance on
standard   established  exceptions to the
warrant requirement.
(f) It is the intent of the Legislature, through the enactment of
Section 1542.5 of the Penal Code, to implement the provisions of
Sections 1 and 13 of Article 1 of the California Constitution.
SEC. 2.  Section 1542.5 is added to the Penal Code, to read:
1542.5.  (a) The information contained in a portable electronic
device shall not be subject to search by a law enforcement officer
incident to a lawful custodial arrest except pursuant to a warrant
issued by a duly authorized magistrate using the procedures
established by this chapter.
(b) As used in this section, “portable electronic device” means
any portable device that is capable of creating, receiving,
accessing, or storing electronic data or communications.
(c) Except as provided in subdivision (a), nothing in this section
curtails law enforcement reliance on established exceptions to the
warrant requirement.

A Democratic legislator, who has been feuding with party leaders over office budget issues, has proposed a bill that would replace the Legislature’s weak disclosure law with the more rigorous freedom-of-information rules that apply to the Governor and all state agencies. -PS

Read full story in LA Times

BY NICOLE WONG—Here’s the thing about censorship: in this globally connected world, censorship is never local.

So, whether you live in the SF Bay Area or not, whether you ride the BART rail system or not, the recent actions of local government officials affected us all.

Last Thursday, during the evening rush hour commute, BART shut down cell antennas in several of its San Francisco stations. According to BART’s official statement, silencing mobile devices was “one of many tactics” to prevent an on-site protest against the agency. BART officials claim that the protesters planned to “coordinate their disruptive activities and communicate about the location and number of the BART Police.” This supposedly justified the blackout of all cell phone activity within the BART stations.

But crowd control and communication control are two very different things, and it is dangerous for governments to confuse them. That is true for BART, as much as it is true for Hosni Mubarek in Egypt or David Cameron in the UK.

In the wake of a second BART demonstration yesterday, there is a great deal of debate about the balance between public safety and free expression. This debate is critically important. It is a fundamental piece of our democracy that distinguishes us from other more repressive places in the world.

And here is why what San Francisco and BART officials do next matters: the whole world is watching.

The “local” conversation about the police powers vested in BART, the applicability of the California Constitution or the primacy of the First Amendment right to free speech and assembly is only one part of the picture. Be sure that government officials in China, Vietnam, Turkey and Saudi Arabia are also watching this debate. Every time a Western democratic power chooses the censorship switch, it validates the censorship in other countries where the First Amendment has no purchase.

In order for us, as a democratic society, to maintain the moral authority to condemn repressive censorship and encourage the repressed to speak out against their governments, we must guard against the eroding of our own principles. Even if it involves the actions of just one local transit authority.

This is not a call for the further criticism of BART. If we are honest with each other, no one is seeking a world in which the police are prevented from acting swiftly and responsibly to protect people — certainly not unmanaged crowds within falling distance of electrified rails.

This is a call for BART to lead in a way that serves its patrons and provides an example to every other government authority with the power to shut down a communication network. There must be a framework and decision process for deciding which tools to use in order to control a crowd. In this country, and particularly in San Francisco, the communication “kill switch” should be a tool of last resort.

copyright Nicole Wong 2011

Nicole Wong, a former member of FAC’s Board of Directors, was a lawyer for Google responsible for (among other things) responding to foreign governments’ demands for removal of content from Google services.

COLUMBIA, Mo. (August 23, 2011) — While a lack of resources have made news organizations increasingly less inclined to file freedom of information lawsuits, citizens have a growing interest in government transparency and are becoming more active in asserting their right to government information.

The rise of citizen interest and the decline of newsroom aggressiveness are among the findings of an informal open government status study by the Media Law Resource Center (MLRC) and the National Freedom of Information Coalition (NFOIC).

Highlighting a trend identified in an earlier assessment, the companion surveys by the two groups show that news organizations, hampered primarily by a lack of resources, are increasingly less inclined to bring lawsuits to enforce compliance under state and federal freedom of information laws.

The online surveys, conducted between Aug. 9 and Aug. 15, are a reprise of a 2009 study, and their findings mirror some of the trends identified then. The 2009 study was part of the inspiration for the creation of the Knight FOI Fund, which provides funding to cover upfront expenses and fees for meritorious access and transparency lawsuits, and is supported by the John S. and James L. Knight Foundation.

The new findings include both good news and bad, said Kenneth F. Bunting, executive director of the National Freedom of Information Coalition.

“If ordinary citizens are becoming more aware of their access rights, and more assertive regarding them, it is indeed a reason to be gratified,” he said. “However, if news organizations are trending toward being less gung-ho in an area once regarded as a matter of responsibility and stewardship, there is the frightening potential that journalism could suffer, as could the health of our democracy.”

Both media lawyers and representatives of the NFOIC member coalitions said they had seen an increased number of open government violations in recent years. But the state coalitions’ views diverged from that of media attorneys, seeing a slight increase in government officials’ understanding and compliance with requests for records and information.

Sandra Baron, executive director of the Media Law Resource Center, noted some positive trends in the responses. FULL STORY

BY PETER SCHEER—Google’s $12.5 billion purchase of Motorola is a sign of serious problems for the US economy. Motorola’s strategic appeal to Google is its portfolio of thousands of patents covering mobile phone technologies. But the acquisition of these patents creates no real value for Google. They are in the nature of a massive  premium payment for insurance against suits by competitors and others for alleged patent infringement.

Google is at risk for such suits because the vagueness of patents, a lack of predictability about their  validity in many cases, and ambiguities in American patent law, combine to create massive uncertainty for Google about whether its next big innovation—Google+, voice recognition for the Android OS, Google Voice, video conference-calling, or whatever—will be blocked by a lawsuit claiming infringement of another company’s patent.

To minimize this uncertainty, Google will pay, must pay, billions of dollars to arm itself with patents that it can use to countersue against those who would sue Google. Needless to say, the assets used to buy this weaponry are assets that otherwise could be spent  productively on creating new businesses and hiring the thousands of employees needed to staff them.

In all of this, there is nothing unique about Google’s experience (apart from its scale, of course). The uncertainty facing Google about the threat of patent infringement claims is also facing thousands of other America companies, big and small. They must choose, like Google, to buy horribly expensive insurance–the word “protection,” with its intimations of organized crime, may be a more accurate description–or leave themselves exposed to legal claims that can be ruinous even if they meritless.

Multiply this uncertainty throughout the economy, and the potential impact on economic growth and job growth is huge. Politicians and economists, particularly of the Republican variety, have been quick to blame the US economy’s slow pace of recovery on government uncertainty–uncertainty about the impact on businesses of new federal initiatives (particularly, the Obama administration’s healthcare program), tax policy, and environmental regulations. They should be expressing similar alarm about the considerably less speculative costs (like, exactly $12,5 billion for a single corporate transaction) imposed on the economy by the growing threat of patent litigation.

This is a problem created by government. It can also be fixed by government.

———

Peter Scheer, a lawyer and journalist, is executive director of FAC. The opinions expressed here are his alone and do not necessarily reflect the views of the FAC Board of Directors.

BY PETER SCHEER—The economic forces that pummeled every American newspaper from the New York Times to the San Francisco Chronicle have barely disturbed Rupert Murdoch’s media properties. The Wall Street Journal, for one, has not only weathered the storm that decimated competitors’ newsrooms, but it has added editorial staff, news features and online resources.

This considerable achievement, however, did nothing to insulate News Corp from the firestorm of scandal involving its tabloid newspapers in Great Britain. A besieged Murdoch has had to shutter the News of the World in London, cancel  a strategic satellite-TV acquisition, jettison long-time News Corp editors and executives by the masthead, and hunker down with his high-powered lawyers to map out strategy for saving his company . . . and himself.

As this story unfolds, one should bear in mind that this is a media feeding frenzy of a media feeding frenzy. We are watching the usual excesses of British tabloid journalism, squared. Some perspective is in order: It’s summertime; breaking news is in short supply; a surfeit of reporters in London is chasing a shortage of stories in one of the world’s most overheated media markets.

And, most important, the prospect of Murdoch’s  downfall, which must be rated a distinct possibility at this point, is enough to create an orgy of schadenfreude among journalists and media executives everywhere.

This is not to excuse News Corp’s conduct. The most serious charges to have surfaced so far focus on the hacking of voicemail accounts belonging to public officials, celebrities, and private individuals. These actions are crimes (in the US as well as in England) and should be prosecuted. But as News Corp editors and reporters are placed under arrest, charged with felonies and compelled to testify about sources and stories, let’s pause for a moment before piling on

Breaking the law in pursuit of news is a crime. Journalists have no immunity to laws of general application. Reporters and editors in the US understand this and, in my experience, refrain from illegal measures for obtaining information. If American journalists are more scrupulous about legal rules than their British counterparts, that may be because First Amendment protections favoring the press give American journalists a stake in the legal system–something that British journalists, subject to arbitrary censorship and injunctions from hostile courts, do not share.

That said, some of America’s best journalists push the limits– obtaining information from sources who break the law–to produce important news stories that otherwise could not be written. Consider articles based on classified information, or that result from the breach of federal grand jury secrecy (for example, the Chronicle’s reporting that led to the prosecution of Barry Bonds), or are based on corporate trade secrets that have been taken by disgruntled employees. In these and other cases, journalists depend centrally on information supplied by sources who commit crimes, either in obtaining the information or in giving it to journalists (or both).

The  immunity of the journalist, despite the liability of the source, is a crucial distinction in US law and First Amendment jurisprudence. But outside journalism and legal circles, the distinction is not so obvious. Demagoguing politicians incensed by the hacking scandal are unlikely to appreciate the difference between voicemail-hacking committed by a journalist’s source, acting independently, and voicemail-hacking by the journalist himself.  Out of such confusion can emerge investigations and legislation posing grave threats to civil liberties.

News Corp’s British publications also stand accused of paying bribes to news sources. Although actual bribes should, of course, be prosecuted, some skepticism is in order here, too. “Checkbook journalism” has become a common practice in certain quarters of the US news media, especially television networks competing for exclusive on-camera interviews.  Only last week CNN confirmed to Howard Kurtz (in the Daily Beast) that it had paid for photos sent to Rep. Anthony Weiner by a woman to whom the priapic Congressman had sent one of his trademark digital greetings. A recent New York Times article detailed numerous cases of  US networks paying for access to sources, often under the guise of purchasing licensing rights.

Public outrage over questionable payments by London tabloids could easily morph into public demands for a legislative response targeting American media companies. But, while checkbook journalism is deplorable, and though some of its American practitioners might even welcome government intervention to curb it, any legislative solution would be fraught with risks to free speech.

The list of News Corp staffers who have resigned, including Les Hinton, head of Dow Jones & Co. (and publisher of the Wall Street Journal) and Rebekah Brooks, the head of News International (who was also arrested), gets longer by the day. They should not be written off  by the press as criminals—not yet, at any rate. What is needed is measured, thoughtful reporting and a dose of due process.

Let’s see what the evidence shows.

—

Peter Scheer, a lawyer and journalist, is Executive Director of the First Amendment Coalition (FAC). The views expressed here are his own, and do not necessarily reflect the views of the FAC Board of Directors.

BY PETER SCHEER—The Israeli Parliament on Monday passed legislation to bar public calls for a boycott against Israel or its West Bank settlements, according to the New York Times. The law’s supporters said it was necessary to push back against what they described as a strategy to delegitimize Israel in the eyes of the world.

Am I the only one to see the irony here? Suppressing calls for boycotts or other demonstrations, ostensibly to protect against challenges to a government’s legitimacy, is akin to shutting down a university in order to counter an assault on academic freedom, or canceling an election to thwart threats to democracy. Or, to paraphrase US policy proclamations during the Vietnam War, destroying a village in order to save it.

Israel, which is not only the oldest democracy in the Mideast, but, even following the Arab Spring revolutions, the freest Mideast country by far and the most protective of individual liberties, ought to know better than to engage in this sort of  legislative doublespeak.

The way to protect Israel’s legitimacy is by protecting speech and expressive (nonviolent) conduct that contests Israel’s legitimacy, whether from Israeli citizens,  Palestinians in the occupied territories, or neighboring countries with which Israel remains formally at war. Israel is strengthened by its tolerance of criticism.

* * * *

And closer to home . . . .

A native American newspaper in a remote area of northern California has learned the hard way that First Amendment’s safeguards do not necessarily apply on a tribal reservation.

The two-person staff of the Two Rivers Tribune in eastern Humboldt County, a weekly newspaper owned by the Hoopa Valley Tribe, was ordered by tribal authorities to cease publication “effective immediately.” The Hoopa Valley Tribal Council, while citing financial considerations, made clear that displeasure with the Tribune’s editorial policies figured prominently in the decision to shut down the newspaper.

Council chairman Leonard Masten, in a memo to the Tribune staff, said that he was “very disappointed” in recent articles published in the paper, apparently referring to an interview with a fugitive and news coverage of a ballot initiative to legalize marijuana. He said these articles were “not in the best interest of the tribe.”

Hopefully Masten and other Council members will come to their senses and realize that the Hoopa tribe’s members are best served by a publication that is independent of the tribe’s government. Even though tribal authorities, as the Tribune’s owners, may have the power to dictate what stories the paper publishes, their exercise of that power is an offense to the tribal members–the voters–who elected them and to whom they are, in theory, accountable.

Voters want a real newspaper, not a tribal propaganda organ.

BY PETER SCHEER—Ever since Wikileaks became a household word, traditional news media have had every reason to try to replicate its technology for receiving leaked documents, via the internet, on an anonymous and secure basis.

Traditional media may be at war with Julian Assange and disagree fundamentally with his methods in vetting and disseminating classified documents, but they can still see the appeal of a technical mechanism to frustrate eavesdropping on journalists and sources. If you’re in the investigative journalism business, anything that protects confidential sources, enhancing the security of their communications with reporters, is an obvious benefit.

Even more important is the media’s desire to neutralize Wikileaks’ advantage in the competition for access to sensitive government records. Wikileaks, on the strength of its promise of anonymity, has managed to insert itself as an intermediary between news sources and the news media, relegating the latter to a secondary role on some of the biggest stories of the past year. This change in status is a source of considerable resentment among affected news organizations, particularly the New York Times, whose editor lashed out at Assange in a recent Times’ magazine article.

So, will mainstream media be able to match Wikileaks’ leak technology? Of major US news organizations, the Wall Street Journal is the first to try. Unveiled last week, the Journal’s system for secure receipt of documents, called “SafeHouse,” is on a new website with its own domain. Like Wikileaks, SafeHouse enables users to upload documents directly to a secure server, bypassing email services. Access to the server is limited to the Journal’s editors, who use an encrypted connection to retrieve documents.

Although SafeHouse is a commendable effort, it is handicapped by limitations that do not affect Wikileaks. I am referring not to any technical shortcomings of the Journal’s service (which, in any case, I would not be competent to judge), but to the fact that the Journal, as a legitimate company with assets, employees and shareholders to worry about, is constrained by legal considerations that Wikileaks is more or less free to ignore.

Consider the Terms of Service for SafeHouse. Sources who submit documents must “agree not to use SafeHouse for any unlawful purpose” and to represent that they “have all the necessary legal rights to upload or submit such content and it will not violate any law or the rights of any person.”

Hmmm. That pretty much rules out all classified government documents (and even unclassified documents that a would-be source is not authorized to disclose). Also ruled out by the Terms of Service are leaks of any documents belonging to private corporations, since they would be copyrighted in nearly all cases (and in some instances would also constitute “trade secrets”).

The SafeHouse terms of service go on to warn that, unless the source and the Journal agree otherwise, the Journal has the “right to disclose any information about you to law enforcement authorities or to a requesting third party, without notice, in order to comply with any applicable laws and/or requests under legal process. . .”

Translation: If the Journal receives a subpoena demanding copies of documents that you submitted confidentially through SafeHouse, don’t expect Journal editors to pay fines or go to jail to keep them secret. Don’t even expect the Journal to give you a heads-up about a subpoena; it may turn over your documents and tell you after the fact (or not at all).

The SafeHouse disclaimers seem laughably out of place: OK for freelance articles submitted for publication, but not for a website whose purpose, after all, is to encourage submission of documents by persons who, if exposed, could be fired, sued or prosecuted. But while the legal fine print might have been phrased more felicitously, the Journal’s lawyers had no choice but to include these warnings in some form.

The Journal can’t ignore a subpoena or court order. Neither can the New York Times, Washington Post, Los Angeles Times, etc. Although they might choose to go to the mat in a particular case, they certainly can’t commit in advance to do so, for a source they don’t know, offering government records they’ve never seen. The best they can do (or, that the lawyers will let them do), is leave open the door to possible negotiation of different terms of service, at the news organization’s option, in appropriate case.

But those subleties will be lost on confidential sources working, say, for the NSA or Apple Computer. Wikileaks, on the other hand, needn’t deter them with legalese. Court orders against Wikileaks, for all practicable purposes, are unenforceable. Attempts to shut it down are of no avail because its content is “mirrored” on dozens of other websites and servers. If one iteration of Wikileaks is disabled by court order (or other government action), others pop up in its place.

Wikileaks is a rogue news outlet that is both stateless and virtual. Unfortunately for mainstream media, those characteristics give it a permanent leg-up in protecting confidential documents and sources.

=======

Peter Scheer, a lawyer and journalist, is Executive Director of the First Amendment Coalition. This commentary is his only, and does not necessarily reflect the views of the Coalition or its Board of Directors. The Commentary has also been published in the Huffington Post. You can follow Peter Scheer on Twitter.

A California appeals court ruled May 11 in favor of FAC and the Sacramento Bee in a case involving public access to information about government pensions. The third district Court of Appeal ruled that the California Public Records Act requires county governments–in this instance, Sacramento–to disclose, by employee name, pension amounts paid to retired county employees.

Both the Sacramento Bee and FAC sued the county after being denied the pension information.  San Francisco attorney Karl Olson, a member of FAC’s Board, represented both FAC and the Bee.

Although it has been clear for some time that retiree-specific pension information is available for government retirees receiving pensions through the CalPERS system, county governments–and their unions–have argued that county employee retirement systems have a different status, and must provide more confidentiality to retirees (based on a 1937 law, Gov. Code sec. 31450 et seq.). The new court decision exhaustively considers, and rejects, this argument.

Pending lawsuits against the San Diego and San Francisco county pension plans involve the same legal issues. Superior Court decisions mandating disclosure in both those cases are currently on appeal. The question of access to county government pension payments ultimately may have to be decided by the California Supreme Court.–PS

The text of the Court of Appeal decision is available here.

This is the Sacraamento Bee’s news story on the court victory:

Sacramento County pension system loses privacy ruling

Published Thursday, May. 12, 2011

An appeals court ruled Wednesday that Sacramento County’s retirement system must turn over pension data requested by The Bee.

Amid public outcry about government pensions, The Bee and the First Amendment Coalition went to court to force the Sacramento County Employees’ Retirement System, or SCERS, to reveal the pension benefits of retirees.

When Superior Court Judge Allen H. Sumner ruled against SCERS’ bid to keep the information private, the pension system petitioned the 3rd District Court of Appeal to overturn the lower court’s decision.

But a three-justice panel of the appellate court said Wednesday in a 49-page opinion that SCERS “must disclose names and corresponding pension benefit amounts of its members. This does not include the members’ home or email addresses, telephone numbers or Social Security numbers.”

Peter Scheer, executive director at the First Amendment Coalition, called the ruling “a very strong decision.”

“The court took seriously the county’s argument,” he said. “But also after an exhaustive analysis, rejected it in an unconditional, unqualified and very clear way.”

The length of the court’s decision suggests justices were anticipating a review by the California Supreme Court, he said.

In 2007, the California Supreme Court ruled in favor of disclosure of public employee salaries, suggesting the higher court would also rule similarly on pensions, Scheer said.

It’s not clear whether the county system will appeal Wednesday’s ruling.

Richard Stensrud, chief executive officer of the retirement association, said Wednesday afternoon that he had not had a chance to study the opinion or discuss it with counsel. He said he could not respond to questions until the association’s board discusses the matter next week.

Karl Olson, an attorney representing The Bee, said this is the first appeals court decision on the issue.

Previously, trial courts in Sacramento and six other counties have ruled in favor of releasing information about public retirement plans. San Diego and Sonoma counties also are appealing two of those decisions.

The dispute was over the release of the names of county pensioners. The retirement system argued that releasing the names violated the 1937 law that created pension systems in Sacramento and other counties.

The Bee and the First Amendment Coalition contended it’s difficult if not impossible without having names to determine cases of pension spiking or favorable treatment – such as nepotism – that helped boost retiree payouts.

“It’s part of our mission to ensure there’s public scrutiny of government spending,” said Joyce Terhaar, executive editor of The Bee. “We’ve been reporting for several years that local governments are facing higher pension costs even as they’re cutting public services. In all that reporting, the Sacramento County retirement system was the only system to refuse us key information. We believe this clearly should be available to the public and are glad the court agreed.”

The opinion says The Bee submitted declarations from journalists describing increased public interest in pensions – including such issues as cashed-out vacation time, overtime pay in the final year of employment, either of which could result in pension spiking.

In addition, issues of double and triple dipping were raised. The lower court had overruled SCERS’ objections to these declarations.

The appellate court pointed out that the California Supreme Court has held that “the public has a general right to know the names and salaries of public officials and employees under the Public Record Act.”

Sacramento County supervisors in July had urged SCERS to not appeal its case to the appellate court, voting unanimously for the retirement system to make the pension information public.

GO TO FULL STORY

© Copyright The Sacramento Bee.

Richard P. McKee, who died this week at age 62, was indefatigable in his advocacy of open government and participatory democracy in California. Co-founder of Calaware and a former Board member and Board President of this organization, Rich cast a big shadow in the world of people committed to shining light on government decision-making in California.  But he cast an even bigger shadow among city councils, school districts and boards of supervisors that had made the mistake of disregarding Rich’s demands that they abide by the letter and spirit of state open meeting laws.

Through his relentless campaign of challenges, demands and (when necessary) litigation, Rich forced a generation of recalcitrant government officials, especially in southern California,  to do more of their deliberating in public. And in the process he gave many, many citizens a real voice in their local government.  It is a fine legacy.

For more about Rich McKee, we recommend the obituary in today’s Los Angeles Times. Follow this link.

-PS

BY PETER  SCHEER–An inebriated John Galliano, sitting in a Paris bar, unleashes an anti-semitic rant (“I love Hitler”) that is captured on a cellphone camera and posted on the internet. Within days the Dior designer is not only fired from his job, but is given a trial date to face criminal charges for his offensive remarks.

In the same week, the U.S. Supreme Court extends First Amendment protection to the homophobic proclamations of a fringe religious group whose founder and members, picketing near a funeral for an American soldier killed in Iraq, hold signs stating, among other things, “Thank God for Dead Soldiers,” “God hates fags” and “You’re Going to Hell.” The Court, in Snyder v. Phelps, bars a suit against the religious group for emotional distress because the demonstrators’ message, although causing “emotional distress” to the dead soldier’s family, dealt with “matters of public concern.”

The contrast between these cases reflects fundamentally different views about the role of free speech in a democracy. France, hardly an intolerant or autocratic country, imposes criminal fines for racial epithets, Holocaust-denial, anti-immigrant advocacy and other forms of “hate speech.” And the French are not alone. To varying degrees, Germany, the Netherlands, New Zealand, South Africa and Canada–liberal democracies, all–enforce similar laws banning hate speech.

The United States is an outlier when it comes to freedom of expression. Although we share other countries’ repugnance for hate speech, particularly the race- and religion-baiting variety, the First Amendment reflects a uniquely strong aversion to government censorship of any kind. As interpreted in Supreme Court decisions going back nearly a century,  the First Amendment forbids government suppression of ideas, no matter how vile, deranged or offensive—as long as the speaker doesn’t cross the line separating speech and illegal action (or succeed in inciting others to engage in violent crimes).

Galliano, if he lived in New York, could not be prosecuted for giving vent to his bigoted views. (His defenestration from Dior, on the other hand, likely would stand.) In New York he would be a free man, although there are certain neighborhoods in Brooklyn and elsewhere that Galliano would be well-advised to avoid (to paraphrase Humphrey Bogart speaking to a Nazi officer in “Casablanca.”)

Let’s be frank, the speech of the religious extremists in the Snyder v. Phelps case, like Galliano’s tirade in a public bar, has absolutely zero social value. We nonetheless protect such speech, not out of an excess of tolerance, but because even more than hate speech we fear a government that has the power to decide what speech to protect and what speech to ban.

The Constitution’s protection of hateful speakers and their hateful speech is based on considerations that are fundamentally pragmatic. One is the insight that trying to block the spread of an idea is self-defeating because it serves only to give that idea legitimacy–why else would government wish to discredit it?–and, by making the idea illicit, to increase its potential audience. This hypothesis is supported by the experience of China and other autocratic governments in censoring the internet.

The First Amendment also reflects the view that the best way to neutralize a bad or dangerous idea is to force it to compete in an open “marketplace of ideas” where its defects and shortcomings will be exposed through debate. For example, blogger-critics of Galliano–whose background is Jewish and Gypsy–were quick to skewer him with the observation that his affection for Hitler would have been reciprocated, during World War II, with a one-way trip to Dachau. France’s piling on of criminal charges is hardly necessary to discredit Galliano’s views.

Still another consideration embedded in First Amendment cases is the prevention of self-censorship caused by uncertainty about what is, and isn’t, protected. The Court has sought to minimize this uncertainty by adopting rules, in the case of expression about public officials or issues of public importance, that are highly speech-protective–even to the point of protecting, in some circumstances, expression that is false or extremely hurtful.

To foreigners, America’s protection of hate speech is baffling because the rants of bigots and hate mongers are not worth protecting. Americans do not really disagree. Let’s be frank, the speech of the religious extremists in the Snyder v. Phelps case, like Galliano’s tirade in a public bar, has absolutely zero social value. We nonetheless protect such speech, not out of an excess of tolerance, but because even more than hate speech we fear a government that has the power to decide what speech to protect and what speech to ban.

Intolerance of censorship is a powerful First Amendment value. It is a value worth remembering, and honoring, during Sunshine Week.

Peter Scheer, a lawyer and journalist, is Executive Director of the First Amendment Coalition, a nonprofit organization dedicated to protecting freedom of speech and the public’s right to know. www.firstamendmentcoalition.org

First Amendment lawyer Duffy Carolan–who is also a long-time Board member of the First Amendment Coalition–will receive a special honor from the Society of Professional Journalists (NorCal Chapter) at an award ceremony on March 16.

Carolan, a lawyer in the San Francisco office of Davis Wright Tremaine LLP, is receiving the organization’s “Legal Counsel” award in recognition of 20 years of successfully defending media clients, individual journalists and others in free speech, libel, and freedom of information cases.

In a press release, SPJ said of Carolan:

“As an attorney first with Crosby, Heafy, Roach and May and since 1998 with Davis, Wright & Tremaine, Duffy has represented the Oakland Tribune, the Contra Costa Times, the Associated Press, the San Mateo County Times and many others.

Since 2007, Duffy has served pro bono as the lead attorney for the Chauncey Bailey Project. She currently serves on both the Board of Directors and the Executive Committee of the First Amendment Coalition.”

Read full press release here:

Society of Professional Journalists — Northern California.

Bright Imperial Limited of Hong Kong, which operates paid pornography sites with streaming X-rated video, filed suit in California against Redtube.com, a competing porn business that does not charge users for access. The suit claimed Redtube’s free porn sites were hurting Bright Imperial’s business and constitute “unfair competition” under California’s Unfair Practices Act.

As reported by Ars Technica, the complaint charged that:

“. . . ubiquitous distribution of free adult videos through redtube.com has had a massive negative impact on the business model of adult website proprietors. . . . Now that consumers have the ability to watch high quality adult videos for free on redtube.com, fewer are making the choice to pay other adult website proprietors for the same content.”

The California Appeals court dismissed the case under the state’s anti-SLAPP statute, which is designed to cut short lawsuits that infringe on free speech.-PS

-From February 2, 2011 edition of Ars Technica

-Full Story

The Recorder, San Francisco’s legal newspaper, is reporting that California Supreme Court Justice Carlos Moreno has submitted his resignation from the state’s highest court. Moreno, appointed in 1992, is considered one of the more liberal members of the Court. He is also the Court’s only Hispanic Justice.

Moreno, 62, succeeded Justice Stanley Mosk. He  was interviewed by Obama Administration lawyers for the U.S. Supreme Court vacancy that ultimately was filled by Justice Sonia Sotomayor.

The Recorder

A Superior Court judge has issued a TRO, temporarily barring the Long Beach police department from releasing the names of city police officers involved in police shootings. The LA Times had requested the names under the Public Records Act. Although the city had decided to release some (but not all) of the names, before it could do so the police union filed a lawsuit to block disclosure.

A hearing on whether to permit Long Beach to peroceed with release of the information is scheduled for January 18.

latimes.com.

Placer County Superior Court Judge Larry Gaddis yesterday denied local prosecutors’ request for a gag order in criminal proceedings against Alexander Piggee, the 23-year-old Stockton man suspected of arson in the Roseville Galleria fire two months ago.

The effect of the denial is that lawyers, police and potential witnesses are free to speak publicly about the case, if they wish. Also, the city of Roseville will have to disclose the fire department’s “after action” report concerning police and fire department responses to the mall fire. Some in the press have speculated that the report may be critical of various agencies’ decisions in responding to, and putting out, the fire.

The gag order had been opposed by the Sacramento Bee, which filed a formal opposition to the DA’s request and also participated in yesterday’s hearing.

See this news item at Recordnet.com.

BY PETER SCHEER—-The Obama administration has made no secret of its desire to unplug wikileaks, the whistleblower website infamous for data dumps of classified records. Of the few options available to the government, the best is one that probably hasn’t been considered in this context: enacting a federal Shield Law.

How would a Shield Law–a version of which has passed the House and awaits a vote by the full Senate—put Wikileaks out of business? The answer is that it would remove the need that Wikileaks fills. If that were to happen, wikileaks would receive few, if any, sensitive  documents leaked by sources inside US government agencies.

The purpose of a Shield Law is to enable journalists to protect the identity of their confidential sources—which, under current law, they can’t do. Although journalists, in dealings with a source, can promise confidentiality up to a point–-the point being when a federal judge orders a journalist to identify her source or go to jail—the risk of disclosure deters sources in many cases.

Journalists have had their hands tied in this way since 2005, when the Supreme Court declined to review federal court rulings ordering reporters Judith Miller and Matthew Cooper (then of the New York Times and Time Magazine, respectively) to reveal their confidential sources for information about the outing of CIA operative Valerie Plame.

The Supreme Court’s inaction fundamentally altered the relationship between journalists and  sources. Journalists could no longer credibly promise  anonymity to a source.  And whistle blowers came to realize that  federal judges enforcing  grand jury subpoenas could, and would, force journalists, despite their intentions to the contrary, to identify confidential sources.

Wikileaks emerged as a technological solution to this  hole in the fabric of legal rules implementing the First Amendment’s free press and free speech guarantees. Wikileaks is designed to foil subpoenas or other assertions of judicial power. Because the website is not tied to any single real-world venue and apparently was built with layers of redundancy, court injunctions issued against wikileaks, whether directed to its service providers (ISPs), lawyers or other entities, are unlikely to disable it.

More important, wikileaks claims to use technology that erases the fingerprints of  sources, rendering leaked documents untraceable. By contrast, the same documents leaked to the Washington Post, whether by means of email, “cloud”-based internet services or other electronic communications, would be vulnerable to interception and tracing. And if the documents, instead, were hand-delivered to the Post, its reporter could be subpoenaed and forced to testify.

Imagine, for a moment, that you are a government official in possession of an internal investigative report of official wrongdoing that has been suppressed because it would cause embarrassment to the administration. You wish to leak the report to the New York Times or the Los Angeles Times. The safest way to do that, today, is to leak the report to wikileaks with instructions for wikileaks to pass it on to one of those papers.

This, in essence, is what happened in wikileaks’ handling of the voluminous records it received concerning Iraq and Afghanistan. The source (or sources), rather than leaking to the New York Times directly, leaked to wikileaks. Wikileaks, in turn, provided the records to the New York Times (as well as the Guardian in London, Der Spiegel in Germany and other publications). The news organizations dealt only with wikileaks. They had no contact with, and presumably were never told the identity of, the sources.

Ironically, wikileaks’ surging notoriety, and the controversy surrounding its founder, Julian Assange, have only increased opposition in Congress to the Shield Law. But opponents, who are worried that a Shield Law could provide legal protection to wikileaks, miss the point. Wikileaks’ technology already gives it de facto immunity from American judicial process. The Shield law is irrelevant in that respect (although it does not exempt wikileaks, in fact).

But wikileaks’ continued viability does depend on traditional media’s vulnerability to the same judicial process.  Remove that vulnerability—through enactment of a Shield Law—and wikileaks’ utility will be greatly diminished. The resulting shift in leaked, sensitive documents from wikileaks to major news organizations, though hardly ideal from the standpoint of US government agencies, is still a huge improvement: legitimate news organizations are sensitive to security concerns and don’t engage in wholesale dumping of classified data on the internet.

Turning out the lights at Wikileaks’ is not the only reason or even the main reason to back the Shield Law, of course. However, it has the advantage of appealing across party lines in a Congress that is otherwise incapable of bipartisan legislation. And it provides a lawful means of protecting national security while also strengthening First Amendment rights.

Peter Scheer, a lawyer and journalist, is Executive Director of the First Amendment Coalition. The views expressed in this commentary are his alone.

BY PETER SCHEER—Although the anti-war movement of the 1960s has few heroes still standing,  Daniel Ellsberg, the former defense analyst who leaked a secret history of the Vietnam War that became known as the Pentagon Papers, is surely one. As such, Ellsberg’s full-throated support for  Wikileaks, delivered as it dumped on the internet nearly 400,000 classified documents about the Iraq War, must have come as a welcome endorsement for the rogue website.

Does Wikileaks deserve Ellsberg’s seal of approval? The answer depends on whether we are talking about the “good” Wikileaks or the “bad” Wikileaks, because the whistleblower website combines both personalities: smart enterprise journalism, on the one hand; a reckless disregard for harm to genuine national security interests, on the other.

The good Wikileaks provided the trove of Iraq documents–subject to an embargo—to The New York Times, The Guardian in London, Der Spiegel in Germany, Le Monde in Paris, and the English language version of Al-Jazeera.  The embargo assured that the chosen news media would have sufficient time, before publication, to analyze the voluminous records, to determine their authenticity, to place them in context, and to assess their importance as news.

By providing the records to only a few news outlets, each with exclusivity in its home market, and by insisting on a common deadline to protect each outlet from being preempted by the others, Wikileaks provided an incentive for the media organizations to invest in the story by assigning their top reporters and editors. This assured news coverage of exceptionally high quality hat the media would promote heavily to its customers.

Wikileaks’ strategy also assured that the news organizations had the time, if needed, to consult (on background) with US defense and intelligence officials for help in identifying the most sensitive information in the war logs–intelligence sources, persons cooperating with NATO forces, and military capabilities (if any)–so they could avoid unintended disclosures that might harm security.

The result has been a thoughtful and richly detailed first draft of history about the Iraq War that is very much in the tradition of the Pentagon Papers, as reported nearly 40 years ago in lengthy dispatches in the Times, the Washington Post, the Boston Globe and other publications receiving Ellsberg’s xeroxed stacks of records, each struggling to stay one step ahead of a Justice Department summons. Wikileaks’ founder, Julian Assange, has been brilliant in manipulating the media to publish  stories about the Iraq war that he wants.

That is the good Wikileaks. The bad Wikileaks, not satisfied with front-page stories in the New York Times and the other publications, and despite demands and threats from the US government, proceeded to dump virtually its entire set of 400,000 Iraq War documents on the open internet, where they are being painstakingly mined for information and insights by citizens, historians—and, yes, enemies of the United States.

There is no justification for wholesale unloading of classified information on this scale. While security risks can be managed (through redaction) in the online publishing of one or several classified documents, that is not true when releasing records numbering in the tens or hundreds of thousands.  Whatever Wikileaks’ motive—defiance of the Obama administration; demonstrating  its independence of traditional media; or providing the public with unmediated access to primary source materials about America’s longest war–the risk of harm to individuals and to US security interests is unacceptable.

Ellsberg understands this. In 1971, when he delivered the Pentagon Papers to major US newspapers,  Ellsberg did not give them everything he had. As he revealed at a First Amendment Coalition conference many years later, Ellsberg held back one volume of the Pentagon Papers containing the most sensitive, highly classified records.

Ellsberg’s restraint offers a lesson that Wikileaks needs to absorb the next time it is given classified records for wholesale release. If there is a next time.

—–

Peter Scheer, executive director of the First Amendment Coalition, is a lawyer and journalist. The views expressed here are his own.

A big wet First Amendment kiss-off to Jim Dear, Mayor of Carson, CA (population 92,255). In his capacity as chair of City Council meetings in the LA suburb, the Mayor is armed with something that all public officials must covet: a mute switch.  Just a press of the switch, and Mayor Dear is able to silence members of the public as they address the Council during public hearings.

Although California law permits time limits and other reasonable rules, administered evenhandedly, to manage public participation at public meetings, government officials may not bar or cut short particular speakers based on the content of their  remarks. In fact, there’s a word for the exercise of that sort of control over speech: censorship.

After receiving complaints about Mayor Dear’s hair-trigger operation of the mute switch at public hearings of City Council meetings, the LA DA’s Office conducted an investigation which focused on the silencing of speakers who presumed to address individual Council members and to criticize their performance.

After reviewing hours of  video-taped Council proceedings, the DA’s Office dismissed the argument, advanced by the Council’s lawyer, that such comments could be silenced because they dealt with matters outside the “subject matter jurisdiction” of the Council.  Criticism of individual members of the City Council is “fair political speech. . . ,”  which, “however uncomfortable or unpleasant, is constitutionally protected,” the DA concluded in a September 30 letter to all members of the Carson City Council.

We would add that if Mayor Dear persists in using the mute switch against members of the public, the public should consider deploying a different device against  Mayor Dear: “the hook.”-PS

SF Weekly’s corporate parent has been sued for “sex trafficking” by a teenage girl who was forced into prostitution at age 14. The plaintiff says her pimp solicited business for her through ads placed in the adult services section of Backstage.com, the national classifieds site of Village Voice Media, owner of SF Weekly, LA Weekly, the Village Voice and other alternative weekly newspapers.-PS

The parent company of the SF Weekly is being sued by a teenager who claims the company abetted sex trafficking on its classified ads website Backpage.com, the New York Daily News reports.

The teen’s lawsuit claims her pimp, who has pleaded guilty to prostitution charges, posted photos of the girl when she was 14 on Backpage.com, a national classified ad site owned by Village Voice Media, the corporate parent of SF Weekly, LA Weekly, and their New York affiliate, the Village Voice. The suit was filed in the U.S. District Court in the Eastern District of Missouri.

Village Voice Media is under pressure from 21 state attorneys general to close the adult-services section of Backpage.com. The effort is being led by Connecticut Attorney General Richard Blumenthal. Craigslist has been subject to similar demands by the same group of state prosecutors. Earlier this month Craigslist shut down its erotic services section.

As reported by the New York Daily News:

The now 15-year-old former runaway, who goes by M.A. in the lawsuit, claims she was forced into prostitution by her pimp (who has since pleaded guilty to prostitution charges in federal court) when she was 14 years old. The pimp, Latasha Jewell McFarland, took pornographic photographs of M.A. and advertised her as a paid escort on Village Voice Media’s Backpage.com in 2009 and 2010.

. . .Robert Pedroli, lawyer for the Missouri teen, told the Daily News that the company was an “active participant in a crime which they know is going on but they’re failing to investigate because they’re making money.”

According to a recent report by Classified Intelligence Report, BackPage.com will earn about $17.5 million online in sex ads this year. The website is the number two site for “adult services” ads in the U.S. after craigslist. Pedroli said his client is seeking $150,000 for each pornographic photo that was published. Pedroli said there were at least four ads.

Village Voice Media issued a press release slamming Pedroli, calling him an “attorney attempting to milk a tragedy.”

“The claim that we knowingly assisted McFarland in committing criminal acts is a lie fabricated by a trial lawyer looking for a payday,” according to the statement, which added  the pimp violated the website’s terms of use and that Backpage.com’s records even helped convict McFarland.

It also said that the company had previously testified in five underage cases.

“The responsibility, under the law, rests with the person supplying the post,” the statement read.

On Backpage.com, there are adult listings for escorts, phone sex and strippers.

Readers must agree to a disclaimer, which states they are 18 years of age or older and do not live in a community or jurisdiction where nude pictures or explicit material is prohibited. They must also agree to report any suspected exploitation of minors or human trafficking.

But Pedroli said by maintaining the forum, Village Voice Media is abetting and aiding sex trafficking. Pedroli said his client is “significantly damaged” from the ads.

======

Copyright 2010 New York Daily News

Governor Schwarzenegger has vetoed a bill that would have applied the state’s Public Records Act to fundraising foundations  affiliated with UC and CSU campuses. Although the bill would have restricted disclosure for anonymous donors to the universities, the Governor claimed those restrictions were not sufficient to satisfy some donors.-PS

Central Valley Business Times

A bill that would require the various foundations and other types of auxiliaries that are closely associated with California State University and the University of California to open their donation records to the public has been scuttled by Gov. Arnold Schwarzenegger.

The University of California and California State University claimed Senate Bill 330 would result in a “chilling effect” on private donations.

“For a governor who wanted to blow up the boxes and whose rhetoric is filled with platitudes of open government, it is a disgrace and completely hypocritical to then veto legislation to bring real transparency and accountability to our public universities,” says the bill’s author, state Sen. Leland Yee, D-San Francisco.

“The governor, like his ivory tower counterparts within the UC and CSU administrations, failed California taxpayers and students by vetoing this sunshine legislation. He has secured his legacy as governor – a failure when it came to open government,” he says.

“While the bill attempts to provide a veil of protection for donors requesting anonymity, as crafted, it will not provide sufficient protection for many who rightfully deserve a level of privacy as part of their giving,” Mr. Schwarzenegger says in his veto message Thursday night. “Often times, these generous private citizen donors do not want to be in the glare of publicity.”

The bill would have placed the institutions’ subsidiary organizations – known as “auxiliaries” – under the scope of the California Public Records Act. Under existing law that now will remain unchanged, the state’s public colleges and universities are able to hide billions of dollars within their auxiliary organizations and foundations, which are often staffed by public employees, Mr. Yee had argued.

Copyright 2010 Central Valley Business Times

FAC content publication policy

The First Amendment Coalition has posted on the internet more than 1,700 CalPERS documents relating to an East Palo Alto real estate investment in which CalPERS lost all of its $100 million investment.  The records–which include the partnership agreement, offering memorandum and email exchanges about the failed investment—were ordered released by the Superior Court in San Francisco.

The documents have been released in two sets, one on September 24 and the second on September 30. Follow the links below to view the documents.

–All documents released Sept. 24 (approximately 1175 pages):

Single File

–All documents released Sept. 30. These are four files (approximately 115 pages each):

File One

File Two

File Three

File Four

You can view the Court’s decision here:
http://bit.ly/bdqtjG

A First Amendment Kiss-off to Judge Judith Bartnoff. The Washington, DC Superior Court judge must have missed school the day her law school class learned about the First Amendment.

In a recent case involving a dispute between a law firm and its former client, the judge issued a TRO forbidding a legal newspaper, the National Law Journal, from publishing information about a Federal Trade Commission investigation of the client, even though the newspaper had obtained the information legally.

Such an order is a classic “prior restraint,” which ranks near the top of the hierarchy of First Amendment violations. To the objection that the TRO infringed free speech safeguards, Judge Bartnoff reportedly said: “If I am throwing 80 years of First Amendment jurisprudence on its head, so be it.”  The Law Journal’s emergency appeal–backed by an amicus brief on behalf of multiple news organizations–was cut short when lawyers for the client company, perhaps realizing that their efforts to suppress a news story had only increased public interest in it, requested that the TRO be withdrawn.

Some advice to judges who preside over cases that generate media interest: It’s OK to ask a journalist not to include something in an article or posting, as long as it’s clear that the choice remains with the journalist (or her employer). What a judge may not do, consistent with the First Amendment, is dictate to a reporter what she may, or may not, write.– ps

In keeping with the new normal of polarized politics, FAC has launched a new feature that views the world of First Amendment issues as consisting of good guys and bad guys.

The good guys, on whom we bestow a “First Amendment Kiss,” are people and institutions who, by their acts, words, or example, strengthen free speech safeguards, public access to government information and decision-making, and the accountability of elected officials.  The bad guys, whom we recognize with a “First Amendment Kiss-Off” award, are, well, the people and institutions who resist what the good guys are trying to do. To paraphrase Supreme Court Justice Potter Stewart’s comment about pornography, we know the bad guys when we see them.

FAC supporters are, by definition, good guys. As such, you are invited and encouraged to nominate recipients of the First Amendment Kiss and  Kiss-Off honors. New honorees are posted to FAC’s website. Please “follow us” on Twitter for those postings and for a daily stream of news items, original commentaries, our lawyers’ answers to questions posed by folks like you, as well as news about FAC’s litigation and other initiatives. –Peter Scheer

A First Amendment kiss-off**  to Craigslist, which is resisting the demands of seventeen state attorneys general (but not including California’s Jerry Brown) that it shut down the website’s “adult services” section because, claim the AGs, it continues to promote prostitution and child-trafficking despite the site owners’ introduction of vetting (by lawyers, no less!) of sexually-oriented listings.

Let’s be clear: Craigslist has every right to publish sexually-explicit personals and ads–even ads by prostitutes trolling for customers.  The ads are no different than the sleazy come-ons that for years have filled the back pages of alternative newspapers. Craigslist gets no lesser degree of First Amendment protection merely because its adult services ads, on one of the internet’s busiest sites, are more effective than the ads of print competitors.

But just because Craigslist has the right to post these ads–-providing a market for adult consensual transactions, yes, but also, inevitably, for exploitation of the worst kind–-doesn’t mean that it has to exercise that right. By choosing to stay in the sex ad business, Craigslist not only appears irresponsible, but it also creates the risk of a spasmodic backlash in state legislatures and Congress that could seriously threaten free speech on the internet.

Finally, please spare us the argument about how hard it is to distinguish between legitimate ads and ads hawking the services of prostitutes–like these listings that were easy to find in the August 31 adult services section:
———–

– SEXXY MIXXED CARAMEAL BARBIE! OUTCALL SPECIALS ALL DAY & NIGHT! – w4m – (sf bay area) pic

– ….. Hot …… *( INDEPENDENT )*……..*Blonde*……..*Babe*…… – w4m – (Rohnert Park, Santa Rosa, in*out) pic

– NEW______! * ! G E N T E L M E N’ S___#1___C H O I C E ! * !_______NEW – w4m – (dublin / pleasanton / livermore) pic

–~*/**/~*~*~*~*~*~*~ Gina ~*~*~*~* gReAt sErViCes ~~*~~*~~*~~*~~ – w4m – (sunnyvale)

✦NeW✦ hOtT✦ bArBiE✦ w4m – w4m – (SaNtA cLaRa✦SUnNyVaLe✦SaN jOsE) pic

————-

It’s time for Craigslist to get out of bed with businesses that sell sexual services. Founder Craig Newmark and CEO Jim Buckmaster will sleep better.-ps

* *A kiss is just a kiss, but a First Amendment Kiss is FAC’s honorific for those who, by their acts, words, or example, strengthen the claim for freedom of speech, for transparency in government, and for political accountability. Our First Amendment Kiss-Off is reserved for those persons and institutions who, whether out of distrust of citizens or undue deference to special interests, threaten to curb robust debate and exclude the public from the councils of government.  Please help us find deserving recipients of the First Amendment Kiss, and Kiss-off, awards. You can submit nominations here.

A big First Amendment Kiss** to the Los Angeles Times and reporters Jason Felch, Jason Song and Doug Smith for their recent stories about LA public schools. The Times applied statistical analysis to seven years of student test scores in order to measure teachers’ effectiveness in math and English instruction. Using an outside consultant to parse student test data obtained under the California Public Records Act, the Times’ created and published online a database of “value-added” ratings of 6,000 third-through-fifth grade teachers and 470 elementary schools.

The Times’ number-crunching of student test scores, tied to individual teachers, does what the LA Unified School District had refused to do–not because administrators didn’t want the information, but because of resistance by teachers unions and their political allies. In effect, the Times’ reporting bypassed the education establishment to provide directly to parents comparative information they can use to evaluate their kids’ teachers and to hold their schools and the education bureaucracy accountable.

In the culture war of attrition over education reform, this was a big development.

Not surprisingly, the Times stories have generated a lot of heat. The LA teachers union called for a boycott of the newspaper and said the planned publication of the teacher database was a “reckless and destructive move.” Academics friendly to the status quo attacked the Times’ statistical methodology–which focuses more on students’ improvement (or lack of it) than their absolute scores–as unreliable

Also weighing in: the American Federation of Teachers (urging the local union to be more flexible) and Obama administration Education Secretary Arne Duncan (saying the Times’ analysis is valuable both to parents and teachers). The LA school district, after some initial hesitation, announced it wants to use the Times’ analysis as part of the evaluation of teachers, a change that will require a renegotiation of the union contract.

The Times coverage, by creating and disclosing valuable information, strengthens the voice of the public interest in an institution long controlled by special interests. It is an example of  public service journalism at its best. –Peter Scheer

————-

* *A kiss is just a kiss, but a First Amendment Kiss is FAC’s honorific for those who, by their acts, words, or example, strengthen the claim for freedom of speech, for transparency in government, and for political accountability. Our First Amendment Kiss-Off is reserved for those persons and institutions who, whether out of distrust of citizens or undue deference to special interests, threaten to curb robust debate and exclude the public from the councils of government.  Please help us find deserving recipients of the First Amendment Kiss, and Kiss-off, awards. You can submit nominations here.

BY PETER SCHEER—If I were Ted Olson, the former US solicitor general who is leading the legal battle against Prop 8, I would be unhappy with Jerry Brown right now.

Olson’s hard-won victory before federal district court judge Vaughn Walker was meant to be the first stage of a legal strategy culminating in a US Supreme Court decision establishing–for the entire country–a constitutional right of gay marriage. But Judge Walker’s decision striking down Prop 8 may never be considered by the federal court of appeals, much less the Supreme Court. Worse, the obstacle to appellate review could result in the voiding of Judge Walker’s decision altogether, thus restoring the gay marriage ban in California.

How does this scenario involve Jerry Brown? As California’s Attorney General, Brown has the job of defending the state, and its laws, in court. Like a private lawyer representing a client, he is supposed to defend California whether or not he thinks the state’s legal position is correct. This is so not only because the state deserves a defense, but also because our judicial system, in order to function, requires legal advocacy on behalf of both sides to a dispute. When a judge hears from one side only (the favored approach in countries that tend also to have only one political party), the judge is likely to make lots of mistakes.

With an eye on higher political office, Brown declined to defend Prop 8 in Judge Walker’s courtroom. Instead, the defense of Prop 8 was left to a group of citizen activists involved in the Prop 8 electoral campaign. Brown’s absence may have helped his own political fortunes, but, ironically, his strategy of non-participation ultimately may play into the hands of Prop 8′s supporters.

Although the defenders of Prop 8 were ably represented in Judge Walker’s courtroom by conservative litigator Charles Cooper, they may lack legal “standing”–a constitutional requirement in federal suits–to appeal Judge Walker’s decision to the federal court of appeals and, ultimately, to the US Supreme Court. Judge Walker highlighted this issue in a recent order, and the defendants, in their brief to the court of appeals, focused on it.

Without digging too deeply into the intricacies of the federal constitutional doctrine of standing, suffice it to say that the standing issue in the Prop 8 case is not trivial. Suffice it also to say that, if Jerry Brown had participated in the case and presented even a weak, half-hearted defense of Prop 8 at trial, standing would, at this juncture, pose no obstacle to appeal to the court of appeals and the Supreme Court.

But it gets worse. The problem is not limited to obtaining appellate review of Judge Walker’s decision. If it turns out that the Prop 8 supporters lack standing to appeal, it may also be the case that they lacked standing to represent the state’s interests in their defense of Prop 8 in the District Court. So says UC Davis Law School professor law Vikram Amar, who is no friend of Prop 8, in an interview with Time magazine.

While I disagree with Amar on this point (because I think states should not have the power, through their absence, to veto federal constitutional challenges to state laws), these are, at best, unchartered legal waters. If it turns out that none of the parties before Judge Walker was a constitutionally adequate defendant, the judge’s entire decision may fall—which is to say, gay marriages in California would once again be illegal.

Although Jerry Brown is no doubt sincere in his view that Prop 8 violates the Constitution, his role as Attorney General is not to advocate his own personal views or to take positions that please his political base. Rather, his job is to defend California in all cases except where the state’s actions are patently indefensible. (And while it may be terrible public policy, Prop 8 is unquestionably defensible under existing constitutional doctrine). This aspect of the attorney general job description is not spelled out in any law. Nonetheless, it is necessary for the functioning of the judicial system.

Ted Olson’s legal strategy is gay Californians’ last best hope for judicial affirmation of their right to marry. Ironically, Jerry Brown’s pursuit of short-term political advantage jeopardizes that strategy.
—–
Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition. http://www.firstamendmentcoalition.org

BY PETER SCHEER–The New York Times’ front-page stories on the war in Afghanistan–based on a massive leak of classified US military cables and other documents–are not likely to change the course of the war. But they represent a sea change in the way journalists report on national security.

The records for the Times’ articles, which inevitably invite comparison to the “Pentagon Papers” of an earlier generation and an earlier war, were supplied to the Times not by a government source, but by wikileaks.org, a shadowy and stateless website specializing in publishing sensitive records leaked anonymously from the files of governments and corporations.

Why wikileaks?

If necessity is the mother of invention, the gestation for wikileaks began in Washington DC on June 17, 2005. That is the day the Supreme Court declined to hear appeals from court orders compelling journalists from Time Magazine and the New York Times to reveal the identity of a source–Lewis “Scooter” Libby, we later learned–whom the reporters had promised confidentiality.

The  Supreme Court’s inaction laid bare the vulnerability of American journalists to the coercive power of  federal judges who are determined to extract information for a grand jury or trial.  Most journalists can’t or won’t go to jail to protect a source. And those who would do so may find that their employer, typically a public corporation with an obligation to shareholders, doesn’t share their  commitment to civil disobedience.  Even without the intervention of courts, federal agencies conducting  national security investigations can gain access to reporters’ phone records, often without the reporters’ ever knowing about it.

Wikileaks, in short, is a response to journalists’ loss of control over their information.

Using technology both to erase leakers’ fingerprints and to place wikileaks and its files effectively beyond the reach of any one country’s judicial  process, wikileaks offers a degree of anonymity and security that, while imperfect, exceeds the capability of US media companies.

These advantages explain the unusual provenance of the Afghanistan stories. Although the source could have leaked the classified materials to a Times reporter directly, the reporter would have insisted on communicating with the source. For the Times, knowing the identity of a source is important for assessing the authenticity of leaked information and to determine a source’s motives for leaking. From the perspective of the source for the “Afghanistan Papers,” however, communicating with the Times would create an undue risk of exposure. The source therefore chose to give the records to wikileaks; wikileaks gave them to the Times.

The upshot is that the Times ran its stories apparently without knowing the identity of its source. That may be a first for a major Times article on national security. It won’t be the last time this happens.

Wikileaks, for its part, has been shrewd in its dealings with news organizations to disseminate the “Afghanistan Papers.” It could have published the documents initially on its website, as it has in the case of past leaks, and then invited the press to write about them. But  making the records universally available would diminish their value in the eyes of the Times and other  news organizations. No reporter wants to write the same story that 100 other reporters are writing. Reporters want special access.

Wikileaks provided the files to three news organizations: The Times, Der Spiegel in Germany and The Guardian in Britian. This special access gave each paper sufficient incentive to invest heavily in the story–assigning top reporters and editors to the daunting task of authenticating, analyzing, and making sense of thousands of cables. Also, the rivalry among the three organizations assured that all would run the stories prominently and that the Times in particular would be under competitive pressure to resist efforts by the Obama administration to persuade it to cancel or delay the articles.

This unusual collaboration worked. The stories in the Times, The Guardian and Der Spiegel shed new light on the role of Pakistani intelligence, the extent of civilian casualties,  Taliban military capabilities and other matters. Although wikileaks has been sharply criticized for posting raw files containing the names of some Afghani informants, the news organizations did not make that mistake.

As long as serious news organizations are unable to protect confidential sources and information, they will need wikileaks–just as wikileaks needs them.

———
Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition (FAC). In early 2008, FAC helped organize, and participated in, a successful legal challenge to a federal court injunction against wikileaks. Bank Julius Baer & Co. Ltd v. Wikileaks, 535 F. Supp. 2d 980 (ND Cal 2008).

FAC—Monday July 19—The First Amendment Coalition (FAC) today announced that it has sued CalPERS, the retirement system for California government workers, over access to records about the agency’s ill-fated investment in an East Palo Alto residential real estate development that has gone bust–at a loss to CalPERS of all of its $100 million stake in the controversial venture.

FAC, a nonprofit based in San Rafael, CA, filed suit Friday in San Francisco Superior Court, demanding access under the Public Records Act and Prop 59 to records shedding light on the factors influencing CalPERS’ financial commitment in 2006 to the Page Mill Properties II project. FAC’s initial record request was filed in January. Although CalPERS has turned over other records, it has withheld the offering memorandum and partnership agreement for the Page Mill deal, as well as internal emails and other relevant communications.

CalPERS’ Page Mill investment has been controversial, not only because of its losses, but also because of allegations by community groups that the project’s management sought to oust low-rent tenants in order to increase cash flow needed to finance the project’s heavy debt. CalPERS was a major investor in other real estate developments involving the displacement of low-rent tenants, including the massive $5.4 billion Peter Cooper Village and Stuyvesant Town apartment complex in lower Manahattan. CalPERS sunk $500 million into that venture, which has also collapsed.

“The public has an overriding interest in learning how CalPERS could have determined that Page Mill, despite the ouster of poor tenants, the high debt levels and other risks, was an appropriate investment for CalPERS’ assets,” said FAC executive director Peter Scheer. “Only by understanding how the investment was made can the public be confident that CalPERS has made sufficient changes to prevent this from happening again.”

CalPERS has come under increasing scrutiny due to heavy recent losses, which have triggered bills to state and local governments for bigger pension contributions. CalPERS’ performance in 2008 was one of the worst in the country among public pension plans (although, like most public pensions, it returned to profitability in 2009). Oversized real estate losses–nearly double the rate of loss on CalPERS’ investments overall–are a major reason for CalPERS’ financial woes.

CalPERS historically has been a conservative investor in real estate. Starting in 2002, however, CalPERS began a series of real estate deals involving increased leverage, large, concentrated investment positions, the use of recourse debt, and other factors that increased CalPERS’ expected returns. However, they also greatly magnified CalPERS’ risk.

“Socially responsible investors aim to do good and to do well,” said Karl Olson, the lawyer representing FAC in the CalPERS case. “In its disastrous Page Mill investment, CalPERS did bad–by funding the ouster of poor tenants from rent-regulated apartments–and did very badly.”

FAC is a section 501(C)(3) nonprofit organization dedicated to freedom of speech, freedom of information, and government accountability. FAC’s website is HERE.

This is the petition filed Friday to initiate the lawsuit against CalPERS.

Here is FAC’s brief in support of the petition.

CONTACTS:

Peter Scheer, FAC
415-886-7081 (direct)
pscheer@firstamendmentcoalition.org

Karl Olson, FAC counsel for CalPERS case
Ram & Olson
415-433-4949
kolson@ramolson.com
===========================

In an important legal victory, the Superior Court in Sacramento has ruled that the pension system for county government workers must make public retirees’ names, and their pension benefits, for all retirees receiving $100,000 or more per year. The decision is the result of a lawsuit filed jointly by the First Amendment Coalition and the Sacramento Bee.

Here is the court’s written opinion:

Download (PDF, 71.89KB)

From the Sacramento Bee:

Judge orders benefit disclosure by Sacramento County pension system

By Robert Lewisrlewis@sacbee.com
last updated: July 28, 2010 10:09:54 AM

A Sacramento Superior Court judge this week ruled that Sacramento County’s retirement system can’t keep former workers’ pensions secret.

The lawsuit, filed by The Bee and the First Amendment Coalition – a nonprofit, nonpartisan group dedicated to free speech – had sought the names, pensions and other related details for all retirees.

In ruling against the county system, Judge Allen Sumner wrote that the “the public interest in disclosing this information outweighs any interest in keeping it secret.”

Richard Stensrud, chief executive officer of the Sacramento County Employees’ Retirement System, said he will recommend an appeal to his board, which meets today.

“With all due respect, we disagree with the ruling and we believe it’s an erroneous interpretation of the law,” Stensrud said.

In the wake of legal opinions forcing several California counties to release pension data, other counties did so voluntarily. At the state level, pensions above $100,000 a year for both the state retirement system, CalPERS, and the California teachers system, CalSTRS, were posted online by an advocacy group.

The Bee in May 2009 had asked for only those former employees earning more than $100,000 a year in retirement as well, but amended that request last February to include all retirees.

Sacramento County’s retirement system, however, had refused, claiming information about individual retirees is confidential and maintaining that its own regulations required it to keep the information private.

The judge found the “individual retiree” exemption was limited to personal information, such as addresses. He referred to a state Supreme Court decision stating that while public employees may not be comfortable with having their compensation publicized, that is a reality of public employment.

Sumner also cited the current economic climate in ordering the information release.

“Sacramento County faces difficult budget decisions,” he wrote. “Its reduction of critical services has generated significant public debate. The public has a strong interest in knowing how government is spending their money, and a constitutional right to such information.”

Attorney Karl Olson, who represented The Bee, described the ruling as “well-written,” saying it “displays great sensitivity to the public’s right to know.”

“We think it’s clearly correct in light of the Supreme Court’s 2007 ruling that public employee salaries are public information,” Olson said. “Pensions are a huge issue for our cash-strapped state and local governments, and the records at issue here will shed important light on that issue.”

Coming atop similar decisions around the state, including in Stanislaus County, the ruling may dissuade other counties from fighting similar requests for openness, said Peter Scheer, the First Amendment Coalition’s executive director.

“This may be the nail that finally closes the coffin on the effort to prevent the public from seeing pension information for county government employees,” Scheer said.

Scheer added that an appeal would not only cost the Sacramento retirement system more money in legal fees but a ruling in a higher court could set a binding precedent.

“If that’s (their) inclination,” Scheer said, “I’d say bring it on.”
Copyright © 2010, The Modesto Bee, 1325 H St., Modesto, CA 95354
Phone: (209) 578-2000.