Q: The CA Constitution states a person has a right to safety, yet my fiancee was ticketed for just that. She was being peered at alone in her car for no reason known to her by a patrol car as she was driving along, and then the patrol car went in back of her to pull her over.
She yielded by turning on her hazards and driving slower. She looked for an open store. She thought she found one. It was closed, but she remained.
She told the officer she had been looking for a well lit area, and that this location wasn’t that well lit, could they please move to a more well lit area, in which the officer said he would place her on the ground and restrain her if she moved. He then gave her a $500 “Failure to Yield to an Emergency Vehicle” ticket for not pulling over immediately.
The Pro Tem Judge made a mockery of my fiancee, and we are appealing the case. We would like to post the tape of the Judge Pro Tem, which we purchased from the “Temporary Judge Program.” We know it’s not an official court recording, as it’s for quality assurance purposes. We would like to play part of the recording at that televised meeting.
A: I understand that you have two main questions. First, whether it would be permissible to post a video of the proceedings by the pro tem judge on-line and/or play it at a city council meeting. Second, whether you would be able to play the entirety of the video at the public meeting despite a per-speaker time limit by having several different individuals use their comment time to play portions of the video. Although we cannot provide specific legal advice through this service, I can give you some general guidance on both these issues that will hopefully be useful.
On the first issue, the general rule is that there is a very broad right to disseminate truthful information on a matter of public interest, provided that the disseminator did not obtain the information improperly and that doing so would not violate copyright protections or the terms of an agreement.
About 10 years ago, in a case called Bartnicki v. Vopper, 532 U.S. 514 (2001), the Supreme Court held that reports by news media of illegally intercepted telephone conversations, which the news media knew were illegally intercepted, were protected by the First Amendment — even though knowing use of intercepted calls is a federal crime — because the reports “were unquestionably [on] a matter of public concern, and [the media] were clearly engaged in debate about that concern.” Id. at 535.
In your situation, even though you are not a media entity, it seems clear that the video was lawfully obtained and that there is a public interest in playing it to inform the public debate in which you and your fiancee are engaged.
Conceivably, the agency that sold you the video purported to impose restrictions on how it could be used during your transaction. But it’s not clear that any such restrictions would stand up, given that the video seems to capture a public legal proceeding.
Moreover, even where there are issues of copyright or other content ownership, displaying the content in a public meeting to inform debate on a public issue would often provide a strong basis for a fair use or related First Amendment argument.
As for the second issue, it is not uncommon for individuals to divvy up content during the public comment period of a regular meeting of a city council or other legislative body of a local agency in California.
Though the Brown Act — California’s open meetings law — does not specifically address this issue, it does provide that regulations on public comments must be “reasonable” and directed toward ensuring that members of the public have an opportunity to address the body on items of interest to the public that are within the body’s subject matter jurisdiction. Gov’t Code § 54954.3.
In addition, this kind of meeting is considered to be a “limited public forum” for First Amendment purposes, and restrictions on speech in a limited public forum must be content-neutral. See, e.g, Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983); ACLU v. City of Las Vegas, 466 F.3d 784, 792 (9th Cir. 2006).
It’s hard to see how a city council could refuse to allow several different people to play different portions of the video without running afoul of the rule against content-based restrictions.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.