Month: February 2008

He Could Make a Big Difference

By the time his term ends in January 2011, Arnold Schwarzenegger may well have experienced the worst fiscal environment of any California governor since the Great Depression—much of it bad luck, some of it his own doing.  But he can still make a positive, indeed historic mark in keeping with some of the most encouraging promises in his 2003 campaign to replace Gray Davis. To the degree that his ambitious platform proposed programs relying on any substantial new spending, the state’s budget deficit—now estimated at $16 billion for the coming fiscal year—is prohibitive.  It’s also widely sensed that the state is entering a recession, and perhaps even a stagflation, likely to drive down tax revenues for much of the remaining Schwarzenegger years. Nonetheless, in considering what the Governor can accomplish in a positive way, we should remember that in his 2003 campaign he pledged "to throw open the doors and windows of government," commenting in one speech, "There’s no such thing as democracy in the dark."    His “open government reform plan” included a commitment to add the Legislature (which had exempted itself) to a constitutional amendment mandating open government records and meetings of official bodies.  But that commitment was quietly dropped. The Governor also takes credit for giving the press access to his appointment calendars, but his office began to provide them—in edited form—only when it appeared that...

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Public Forum Law Week in Review: 2/25/08

(CalAware Weekly comprises this plus the previous three posts) Free Speech First Amendment Seminars Soon at UC Davis      The University of California, Davis has announced that some of today’s most prominent legal minds will lead discussions on the First Amendment, with all of its constitutional complexities and interpretations, at free campus events Feb. 26 and March 7. Racist Fliers Leave Vacaville Disgusted       The Reporter newspaper reports that two days after an onslaught of racist literature littered about 200 driveways in Vacaville, residents remained up in arms about the incident and police were struggling to determine whether the distribution, however offensive, was in fact a crime. Border, Airport Searches Raise Alarms     A legal analyst discusses the constitutional dimensions of the government’s routine searches at borders and airports of travelers’ laptops, cell phones, Blackberries and MP3 players—a practice that could violate both freedom of speech and freedom from unreasonable search. UCSF Medical Center Bars Union Leafleting     The UCLA Daily Bruin reports that University of California officials plan to appeal a temporary restraining order obtained by the American Federation of State, County and Municipal Employees barring the university from stopping union members from leafleting in certain areas at UC medical centers.  Judge Again Finds No Right to Anti-Gay T-Shirt       The Student Press Law Center reports that a federal judge has for the second time...

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The New York Times provides the most thorough early account of a federal judge in San Francisco recently ordering the disabling of a website devoted to disclosing leaked confidential documents, “in a move that legal experts said could present a major test of First Amendment rights in the Internet era.”  The best recent report on what information a Swiss bank wanted kept secret and who’s behind Wikileaks has been done by The Guardian  in England, where the website is based. For technical reasons the judge’s order did not and could not entirely block access to Wikileaks.  But the fact that the judge tried to do just that, and believed he had the authority to do so is astonishing, given that the very first case in the United States Supreme Court invoking the First Amendment as protection for the press and declaring the constitution’s repugnance for prior restraint involved—at least for its day—a very similar annihilating spirit. Near v. Minnesota, 283 U.S. 697 (1931), involved a state law that allowed officials to shut down (“abate”), as a “nuisance,” scandal-focused publications that offended those in private prominence or public power.  Minneapolis officials used the law to close a tabloid of just that character published by a man described by a historian of the incident as "anti-Catholic, anti-Semitic, anti-black and anti-labor." In the words of Justice Charles Evans Hughes for the Supreme...

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Protecting Advisors to the Student Press

California law provides students greater free speech and press protections from school censorship than does the First Amendment.  As interpreted by the U.S. Supreme Court, for example, high school student newspapers can be prevented by school administrators from publishing a story concerning teen pregnancy, for a variety of reasons (Hazelwood School District v. Kuhlmeier , 484 U.S. 260 (1988)).  The court conclued that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns. In contrast, California Education Code Section 48907 dictates that high school student journalists can almost never be disciplined for saying or writing things in news reports, editorials or other forms of of official school communication that would have free speech or press protection off campus; if they are,  they can sue the school district to have the discipline reversed (and their records cleared), and have the district pay their attorney’s fees reimbursed by the district.  Similar laws protect college and university students. In addition to protection from punishment after the fact, California makes the Hazelwood case of little moment by providing, in Education Code Section 48950, that student journalists cannot be prevented from printing in official school publications whatever they decide is appropriate news, comment or other expression, with the sole...

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If You See Something, Say Something

CalAware’s President Emeritus Rich McKee, a chemistry Professor at Pasadena City College, is not as active as he was several years ago in reminding local councils, boards and commissions in southern California about their open meeting obligations under the Brown Act.  Although not a lawyer, McKee made it his fond avocation to urge, threaten litigation if necessary, and ultimately represent himself in lawsuits to see that the Act was respected.  He was even successful in going to the Court of Appeal, resulting in published decisions establishing that meetings of the governing body of a Los Angeles area joint powers network of drug law enforcement units are subject to the open meeting laws, and that anyone in California has standing to sue any local agency in California for violations of the Brown Act—with no residency requirement.  Rich has not been as active so consistently to enforce the Brown Act in the last year or so, but he notes that a recent “issue with Whittier was the kind of thing that used to really irritate me, so I just had to do something.”  He forwarded to CalAware four documents which “in chronological order . . . are offered to illustrate the modest change you can make if you’re willing to engage secrecy, consciously or unconsciously used by local government, that removes public input from decision-making.” He refers to an initial news...

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