Trumping Trump: California’s Attack on the First Amendment

By DAVID SNYDER—California leaders have scrambled to position themselves at the vanguard of the resistance to President Trump, with Attorney General Xavier Becerra filing some 50 lawsuits against the Trump Administration, including—ironically as we shall see—at least one challenging the president’s failure to release records under federal open-records laws. The state Legislature—more than two-thirds Democratic—passed a “sanctuary state” bill limiting how much state and local law enforcement agencies can cooperate with federal immigration enforcement.

Not to be left behind, Governor Gavin Newsom has accused Trump of, among other things, “declaring a made-up ‘national emergency’ in order to seize power and subvert the constitution.”

If you are a Californian and you don’t like Trump and his policies, chances are you’ve found some relief in the state’s full-throated challenge to the President’s authoritarian tendencies.

Unless you favor press freedoms and the First Amendment. On that front, the Land of the #Resistance has felt, of late, like a proving ground for Trump’s “enemy of the American people” mantra against the press.  

First, there was Becerra’s deeply disturbing and only-slightly-veiled threat to prosecute journalists who lawfully received a confidential list of police officers who have been convicted of crimes.  When investigative journalists in the Bay Area received the list in January—after requesting it under the California Public Records Act—Becerra’s office sent a letter threatening those journalists with unspecified legal action. Mere possession of such records, the Attorney General noted, “is a misdemeanor.”  

The threat was as chilling as it was legally incorrect. U.S. Supreme Court has repeatedly held that journalists who receive or publish information of public interest are protected under the First Amendment to publish that information, even if it was obtained illegally in the first instance (which in the case of the Bay Area reporters, it was not). The fact that the highest law enforcement officer in the state didn’t seem to know this or, worse, knew it and decided to issue threats on state letterhead anyway, is stunning.

Next, came the bewildering arrest of several journalists at a peaceful protest in Sacramento following the District Attorney’s announcement that charges would not be filed against the officers involved in the shooting of Stefon Clark.  

And then Becerra once again.  Unlike the vast majority of law enforcement officials in the state, Becerra has steadfastly refused to release records required to be made public under Senate Bill 1421 — a landmark police transparency bill passed last year by the California legislature.  Although police unions tied the bill up in litigation for the first four months of 2019, they have given up the fight after facing a string of defeats in court. But not Becerra. Unlike the Attorney General’s high dudgeon when EPA Administrator Scott Pruitt refused to release records under the federal Freedom of Information Act—prompting Becerra to sue and insist that “Administrator Pruitt and the Trump Administration are not above the law,”—he refused to comply with SB 1421 until, last week, a court finally ordered him to do so as a result of a lawsuit brought by FAC and KQED.

But all of this was nothing compared to the disgrace San Francisco officials visited upon the First Amendment, and themselves, on May 10.  That morning, San Francisco police raided the home of freelance journalist Bryan Carmody, using a sledgehammer to bash the security gate to his apartment. Police kept Carmody in handcuffs while they searched his home, and then his office near San Francisco City Hall. They did so under the authority of two search warrants issued by two different San Francisco Superior Court judges.

It’s hard to overstate the apparent lawlessness of the police department’s actions here.  California law specifically bars the use of search warrants to obtain a reporter’s confidential sources and notes. Were these judges made aware of Carmody’s status as a journalist? Did the police department conceal that status? Did the judges authorize the search warrants even though they knew Carmody is a journalist? The public doesn’t know the answers to these questions yet because the police department’s application for search warrants remain under seal.  (FAC is fighting in court to change that.)  But none of these possibilities are good ones if you favor press freedoms.

The reason state law prohibits the use of search warrants is simple: the subject of a search warrant has no chance to contest it in court.  Unlike a subpoena, a search warrant by definition provides no notice to the person being searched, no opportunity to be heard by a judge. To the extent Carmody had any information protected by California’s journalist shield law, that information is now in the hands of the San Francisco Police Department.

While California can be proud to have one of the nation’s strongest journalist shield laws, it was rendered useless for most practical purposes the moment two judges signed off on the two Carmody warrants.

Unfortunately, the alarming disregard in California for press freedoms appears to be part of a trend nationally that follows no partisan lines. Reporters are being physically assaulted, subject to meritless litigation, and regularly criticized as peddling “fake news” by those who should know better.  

While California politicians find it politically convenient to bash Trump for his efforts to “subvert the constitution,” when it comes to protecting those rights on their own turf, they have proven far less than vigilant.

We all suffer when partisan or political allegiances overcome rights enshrined in the Bill of Rights. Journalists working in the Bay Area and beyond will now think twice before they seek out and accept material from confidential sources—or even before they request records, as is their right, under the California Public Records Act. A hesitant press is a press that can’t fulfill its constitutionally protected mission to hold the government to account.  

If California’s leaders mean it when they say they are protecting their state against constitutional violations, they should look in the mirror first.

David Snyder, a lawyer and former journalist, is executive director of the First Amendment Coalition.  His views do not necessarily reflect those of FAC’s Board of Directors.