Acting globally and locally: From internet censorship in China to a TRO against Atherton, CA
By Peter Scheer
This is to update CFAC supporters on our latest efforts to stir up trouble on behalf of First Amendment freedoms. I’m pleased to report that CFAC has managed to create a whole lot of trouble, both globally and locally, in the last 2 months.
First globally: CFAC has initiated a proceeding that will attempt to use international trade laws to force the government of China to end its censorship of the internet. In a submission and presentation to the Office of the US Trade Representative, CFAC has petitioned for the filing of a complaint with the World Trade Organization, of which China became a member in 2001.
Our (concededly novel) theory: that China’s censorship of the internet, the most pervasive and systematic system of censorship in the world, violates China’s obligations under treaties it signed (the GATT, covering free trade in goods, and the GATS, covering services) in order to join the WTO. We contend China must end its censorship or risk limitations on its access to US markets.
Think of this as the biggest access-to-information and free speech case in history. If the Trade Representative agrees with CFAC’s petition and files a complaint with the WTO, and if the WTO rules against China–big “ifs,” to be sure–some 1.2 billion Chinese citizens will, for the first time, have unfiltered access to information about the outside world, via the internet.
CFAC is represented by the national law firm of King & Spalding, whose Washington, DC office specializes in trade matters, including several successful cases against China. CFAC is supported in this initiative by a consortium of organizations, including the UC Berkeley Graduate School of Journalism, the Center for Internet and Society at Stanford Law School, the National Freedom of Information Coalition, and the China Internet Project at UC Berkeley, among others.
Stay tuned. You’ll be hearing a lot more about this matter.
Don’t think for a minute that the China initiative has distracted us from battles closer to home. In the last month alone, CFAC has filed amicus briefs in crucial access cases in Orange County and San Mateo County; intervened successfully in a Hadley v. McCoy feud in San Diego; and even published (together with our partner, the California Newspaper Publishers’ Association) a comprehensive new legal guide, “The Right to Know: A Guide to Public Access and Media Law.”
In Calaware v. Orange Unified School District, CFAC came to the assistance of open-government organization Californians Aware, which had sued Orange Unified to contest the school board’s censure of a dissident board member for comments he made at a public meeting (as well as the board’s editing of the audio record of the meeting to delete the comments). The Superior Court not only rejected Calaware’s claims, but granted the school board’s motion to strike the case under California’s anti-SLAPP law. The result: Calaware, a small nonprofit, was ordered to pay the school board’s legal fees.
CFAC’s amicus brief, written by CFAC Board President James Chadwick and Board members Guylyn Cummins and Steve Barnett, urges the appeals court to reverse the judgment against Calaware because the anti-SLAPP law, we argue, can’t be used as a defense against suits alleging violations of California’s open-government laws: the Brown Act and the Public Records Act. We also argue that allowing the anti-SLAPP law to be used to cut short a First Amendment claim violates federal safeguards, applicable in state court as well as federal court, for consideration of alleged violations of free speech rights.
San Diego City Attorney Michael Aguirre doesn’t like the management at KPBS public television, and the folks at KPBS don’t much like Aguirre. That’s the nicest way to describe the long-running Hadley v. McCoy-style feud over Aquirre’s criticisms of the station’s local programming. Aguirre says KPBS, which receives state funds as an extension of the Cal State University system, doesn’t do enough local programming. Aguirre’s critics say his real beef is that he wants more programming that is favorable to him.
Last month Aguirre escalated the feud by having his office send KPBS public records requests demanding copies of internal documents discussing the station’s programming decisions. That step, in CFAC’s view, crossed the line between political squabbling (OK) and government interference with the editorial process (not OK).
Following the appearance of a news article mentioning our concerns, Aguirre called CFAC; he and I spoke at length about his public records requests. By the end of the conversation he was persuaded that the First Amendment issues were real, and he promised to rescind the PRA requests to the station. True to his word, Aguirre held a press conference that day and announced the withdrawal of the record requests, as described in this item from the San Diego Union Tribune.
The town of Atherton’s former Finance Director was the subject of an investigation. Atherton received a CPRA request for a report on the investigation, which the town decided to release. That decision was communicated to the Finance Director, who promptly filed suit against Atherton to block disclosure of the report on grounds of privacy.
CFAC believes strongly that government agencies should not be subject to suit when they do the right thing by deciding to release a requested document. We filed an amicus brief in this case to make an argument that would not only permit disclosure of the Atherton report, but, if generally accepted, would effectively prevent future suits to stop government agencies from voluntarily releasing public records.
In a brief filed last week, CFAC argued that government agencies have rights of freedom of speech, and that the disclosure of a written document is an exercise of that right. Since release of a requested record is constitutionally-protected speech, any court-issued injunction against disclosure is an invalid “prior restraint” on expression.
At a hearing on Friday, the Superior Court for San Mateo County gave Atherton a green light to disclose the investigative report. Although the judge did not issue an opinion, we think our brief, written by James Chadwick, had an impact.
–CFAC Legal Guide
Finally, CFAC has started selling its authoritative, new legal guide, The Right to Know: A Guide to Public Access and Media Law.
The Right to Know combines the best features of CFAC’s “Legal Notebook” and CNPA’s “Reporter’s Handbook.” It is the best of both books . . . the best of all books . . . a must-have, must-read, one-stop law guide on access and First Amendment law for journalists, bloggers, lawyers, citizens groups, activists and public officials.
The Right to Know is an incredible bargain:
-$25 for CFAC and CNPA members (very cheap)
-$30 for nonmembers (cheap)
–Order your copy online or by calling 916-288-6009
The Right to Know is written by CFAC Board President James Chadwick (partner at Sheppard Mullin Richter & Hampton) and by CFAC General Counsel Roger R. Myers (partner at Holme, Roberts & Owen).
Purchasers of The Right to Know also receive:
—access online to all court decisions cited in book (full text)
–access to new legal developments and updates online
Order your copy today. You’ll not only get a terrific legal resource, but you’ll help pay for all the important cases we do.
Peter Scheer, a lawyer and journalist, is executive director of the California First Amendment Coalition.