Thankfully, the U. S. Supreme Court says “no,” in a 5-4 decision filed April 29. The Court’s split decision will hopefully keep the most unseemly aspects of money-raising out of judicial races in a way that its controversial Citizens United decision doesn’t for other campaigns.

Chief Justice John Roberts’ decision focused on the unique aspects of judging, reasoning, “Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor — and without having personally asked anyone for money.”

State Senator Marty Block (D-San Diego) was joined by a group of veterans, community leaders and fellow legislators February 26 in Sacramento urging the homeowner to remove the swastika from his Sacramento home. The display takes up a large portion of the front of the home.

The calls for removal are well-meaning, but the First Amendment would surely prevent the legislators from forcing the homeowner to remove the hateful symbol.

The Court’s June 19 decision in Lane v. Franks reiterates that citizens don’t surrender First Amendment rights by accepting public employment and that First Amendment protection of a public employee’s speech requires balancing “the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”

Lane is an example of the aphorism that while bad facts make bad law, good facts make good law.; Lane headed a statewise program for underprivileged youth in Alabama. The program had financial difficulties. Lane fired a well-connected Alabama State Representative who vowed revenge. That employee was later indicted for mail fraud and Lane testified at her trial.

The narrow question in the case was whether the First Amendment protects a public employee who provides truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job reasponsibilities. The Supreme Court answered that question “yes.”

The high court’s pronouncement that speech about information related to or learned through public employment is protected marks a welcome development. The Court states, “public employees do not renounce their citizenship when they accept employment, and this Court has cautioned time and again that public employers may not condition employment on the relinquishment of constitutional rights.”

Eight years ago the Court had undermined whistleblower protection when it ruled in Garcetti v. Ceballos that when public employees make statements pursuant to their official duties, they aren’t speaking as citizens for First Amendment purposes. The Lane case doesn’t overrule Garcetti but it does say, “It would be antithetical to our jurisprudence to conclude that the very kind of speech necessary to prosecute corruption by public official — speech by public employees regarding information learned through their employment — may never form the basis for a First Amendment retaliation claim. Such a rule would place public employees who witness corruption in an impossible position, torn between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs.”

America needs watchdogs both outside and inside government. The Lane case is a good development for watchdogs within government.

Risen is the author of a book, “State of War: The Secret History of the CIA and the Bush Administration,” that detailed a CIA plan to sabotage Iran’s nuclear program. Prosecutors contend that a former CIA agent, Jeffrey Sterling, leaked information to Risen which was used in the book.

The Fourth Circuit’s decision rejects a First Amendment privilege for reporters not to testify in criminal cases, and also rejects a “qualified, federal common-law reporter’s privilege protecting confidential sources.” But the Court did recognize a qualified reporter’s privilege in civil cases, saying that the Fourth Circuit has “continued to recognize the important distinction between enforcing subpoenas issued to reporters in criminal proceedings and enforcing subpoenas issued to reporters in civil litigation. Subpoenas in criminal cases are driven by the quite different and compelling public interest in effective criminal investigation and prosecution, an interest that simply is not present in civil cases.”

The Court rejected a privilege for Risen, holding, “he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury — the illegal disclosure of classified, national security information by one who was entrusted by our government to protect national security, but who is charged with having endangered it instead.”

The U.S. Supreme Court’s decision not to hear the case is the latest in a number of decisions by the Supreme Court not to revisit its 1972 decision in Branzburg v. Hayes, 408 U. S. 665. For decades, many lower courts had relied upon Justice Lewis Powell’s concurring opinion in Branzburg to recognize some form of reporter’s privilege. Justice Powell’s concurring opinion stated, “The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources.”

More recently, however, lower courts have taken a more restrictive view of the high court’s Branzburg holding, epitomized by the Fourth Circuit’s statement that “Justice Powell’s concurrence in Branzburg simply does not allow for the recognition of a First Amendment reporter’s privilege in a criminal proceeding which can only be overcome if the government satisfies the heavy burdens of the three-part, compelling interest test.”

With the Supreme Court’s decision not to hear the Risen case, advocates of a reporter’s privilege have turned to Congress. The Newspaper Association of America has rged Senate leadership to bring Senate Bill 987 to the Senate floor for a vote. A national coalition of media companies and associations has endorsed that effort. SB 987 was passed by the Senate Judiciary Committee, 13-5, in September but has awaited a floor vote ever since.

In the meantime, supporters of a reporter’s privilege — which in my opinion is essential to the newsgathering abilities of the press and to uncovering government misconduct — wait in uncomfortable limbo, with their protection dependent upon whether subpoenas are issued in a criminal or civil cases, or whether they are issued in a state or federal case (nearly all states have a reporter’s privilege of some sort). It’s time for Congress or the Supreme Court to end that limbo.

The device du jour for sending incriminating or embarrassing messages has become the “personal” computer or smartphone.

Recent revelations of such incriminating or embarrassing e-mails by aides to Governor Chris Christie of New Jersey and Scott Walker of Wisconsin have shone a bright spotlight on the extent to which public officials are attempting to use “private” electronic devices to conduct public business, and to evade disclosure of their writings. The revelations also raise the issue of whether such e-mails and texts are covered by states’ public records laws.

In Wisconsin, newly-released e-mails showed that Gov. Walker’s aides did campaign business on government time. An investigation revealed that some of Mr. Walker’s aides while he was a county executive routinely used personal laptop computers, a non-county computer network, and private Yahoo and Google e-mail accounts to conduct campaign-related business while at work. His chief of staff forwarded a chain e-mail to undisclosed recipients that concluded, “I can handle being a black, disabled, one-armed, drug-addicted, Jewish homosexual on a pacemaker who is H.I.V.-positive, bald, orphaned, unemployed, lives in a slum, and has a Mexican boyfriend, but please, Oh dear God, please don’t tell me I’m a Democrat.”

Gov. Christie’s aides used various e-mail accounts while orchestrating lane closures in the George Washington Bridge scandal that has jeopardized Christie’s Presidential ambitions.

In California, a Court of Appeal in San Jose will hear arguments in a case March 11 which will decide whether officials’ e-mails on “personal” electronic devices are subject to disclosure under the state’s Public Records Act or Constitution.

San Jose officials, backed by the League of California Cities, argue that only records “prepared, owned, used or retained” by the city as a whole are subject to the Public Records Act. The plaintiff in the case, Ted Smith, backed by media outlets and open government groups, argues that the city can only act through its employees and officials, and that the content of the messages — not their location or the type of device on which a message is sent — should determine whether the messages are public.

The recent examples in New Jersey and Wisconsin — where top gubernatorial aides tried to hide wrongdoing by using personal smartphones and the like — underscores the importance of this case. Public officials shouldn’t be allowed to cover their tracks by the simple expedient of using their own smartphone to conduct shady government business or to electioneer at public expense.

The University of California Regents recently joined that issue squarely on the side of the billionaires, and against everyone else — including taxpayers — in a case involving the degree of transparency which should be allowed into the university’s venture capital investments.

In a recent court case, Regents of the University of California v. Superior Court, the Regents coddled two of the richest venture capital funds, Sequoia Capital and Kleiner Perkins Caulfield & Byers, by spending taxpayer money to hide the individual fund performance of UC’s investments in those two well-connected and fabulously-rich firms.

In the insular world of the Regents, if a billionaire venture capitalist says “jump,” the Regents ask “how high”? The Regents count themselves lucky if they can give the venture capital firms tens of millions of taxpayer dollars.

If the name Kleiner Perkins sounds familiar, it should. The firm’s co-founder, Tom Perkins, who is worth an estimated $8 billion, recently made news by comparing those who wonder about income inequality to Nazis. Perkins said in a letter to the Wall Street Journal, “I would call attention to the parallels of fascist Nazi Germany to its war on its ‘one percent,’ namely its Jews, to the progressive war on the American one percent, namely the ‘rich.'”

It’s easy to see why Mr. Perkins feels persecuted, since he’s down to his last $8 billion. And it’s easy to see why the UC Regents would spend taxpayer money to help out the Kleiner Perkins firm, given the firm’s dire financial situation. Of course, Kleiner Perkins may need to hold on to some of its money since it’s now fighting a gender discrimination suit brought by a former partner, Ellen Pao.

The Sequoia Capital firm is no less self-absorbed and self-righteous than Mr. Perkins. In an August 2003 letter to then-UC Treasurer David Russ (who’s now gone to the private sector), Sequoia’s Michael Moritz told UC that a Public Records Act case against UC had “impelled us to end our relationship.” In other words, Moritz said, he wouldn’t take UC’s money any more. “We are utterly resolute in our belief that it is not in the interests of Sequoia Capital’s other clients that we be hounded, badgered and stalked by entities wishing to either profit from or publicize our private and confidential information.” Most people receicing tens of millions of dollars from the government would be happy, but Mr. Moritz felt “hounded, badgered and stalked” if anyone wanted to know how the investment of taxpayer money had performed.

Moritz and Sequoia got over their hurt feelings, however, when the Great Recession of 2008 dried up sources of venture capital. Sequoia solicitied UC to invest in several funds in 2009, and UC responded by — you guessed it — giving more millions of dollars to Sequoia. But it won’t tell taxpayers how the latest Sequoia investments have performed.

The Regents say their investments in venture capital firms like Kleiner Perkins and Sequoia have been good for retirees and students. But without disclosing how individual venture capital funds have performed, there’s no way to test the Regents’ assertions. That was the ruling of a superior court in 2003, and the California Legislature followed by requiring, in 2005, that certain information about venture capital investments must be disclosed. The Regents are now trying to circumvent that law by refusing to obtain from Kleiner Perkins and Sequoia fund performance information that those venture firms don’t want to disclose. (Other venture firms are, as of this writing, still disclosing fund-by-fund performance information.)
The Regents’ position is bad public policy and bad business. A comprehensive 2012 report by the Ewing Marion Kauffman Foundation — itself an investor or limited partner in many venture firms — showed that the average venture capital firm fails to return investor capital after fees. The Kauffman Foundation study blasted the “complete lack of oversight and accountability” exercised by limited partner investors like the California Regents, called for increasing transparency and requiring firms like Kleiner Perkins and Sequoia to have more “skin in the game,” and said, “Eliminating the black box of VC firm economics is required if limited partners seek to make prudent and aligned VC investments. Limited partners have historically failed to secure even miminal information rights on issues that foster transparency and are material to aligning limited partner and general partner interests.”

California’s Regents would do well to heed those words, to insist on a modicum of transparency, and to stop spending taxpayer money defending the hurt feelings and protecting the egos of billionaires. Asking for transparency, and questioning whether venture capitalists are getting special treatment, isn’t Nazism. It’s democracy.

Not much, according to a January 17 court ruling from the federal Ninth Circuit Court of Appeals.

Ruling on what it called a “question of first impression” on the First Amendment protections afforded a blogger sued for defamation, the Court in Obsidian Finance Group v. Cox held that “liability for a defamatory blog post involving a matter of public concern cannot be imposed without proof of fault and actual damages.”

The Court’s ruling was not surprising. Although the Ninth Circuit had not directly addressed whether First Amendment defamation rules “apply equally to both the institutional press and individual speakers,” the Court observed that “every other circuit to consider the issue has held that the First Amendment defamation rules…apply equally to the institutional press and individual speakers.” Other courts have cited the difficulty of defining who belongs to the “media.”

The Court in Obsidian concluded, “The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story.” It said a First Amendment distinction between the institutional press and other speakers is “unworkable.”

While the Court’s ruling further blurs the lines between traditional and new media, it doesn’t completely erase those lines outside the defamation context. Many states, such as California, have newsperson’s “shield” laws which enable newspaper, radio and television reporters and editors to protect confidential sources and “unpublished information.” It is by no means certain that such laws protect the so-called “bloggers in pajamas,” and a proposed federal shield law is wrestling over that issue. So while the Ninth Circuit’s Obsidian ruling gives breathing space to bloggers concerned about being sued for what they say, it’s too early to herald the complete demise of all distinctions between bloggers and their brethren in the traditional media.

The Court also made a major First Amendment ruling, striking down the “Stolen Valor Act of 2005,” which makes it a crime to lie about having received the Congressional Medal of Honor. Justice Anthony Kennedy’s plurality opinion stated, “Fundamental constitutional principles require that laws enacted to honor the brave must be consistent with the precepts of the Constitution for which they fought….Statutes suppressing or restricting speech must be judged by the sometimes inconvenient principles of the First Amendment.”

Beyond the law at issue, the Court’s plurality opinion observed, “The Court has never endorsed the categorical rule the Government advances: that false statements receive no First Amendment protection. Our prior decisions have not confronted a measure, like the Stolen Valor Act, that targets falsity and nothing more.”

Does the Court’s decision mean that there is now a license to commit fraud and perjury? No. The plurality opinion — written by Justice Kennedy, and joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg and Sonia Sotomayor — listed fraud as a category of speech which has long been restricted, and took pains to say that perjury statutes are constitutional. “Sworn testimony is quite distinct from lies not spoken under oath and simply intended to puff up oneself,” Justice Kennedy’s opinion declared.

The Stolen Valor case, United States v. Alvarez, produced three separate opinions. Justice Kennedy’s plurality opinion applied strict scrutiny to the law, saying, “When content-based speech is in question…exacting scrutiny is required,” and holding that the law flunked that test because, “The Government has not shown, and cannot show, why counterspeech would not suffice to achieve its interest. The facts of this case indicate that the dynamics of free speech, of counterspeech, of refutation, can overcome the lie.” Justice Kennedy pointed out that Xavier Alvarez, the man who lied about having received a Congressional Medal of Honor, was perceived as a phony even before the FBI began investigating his false statements.

A concurring opinion written by Justice Stephen Breyer and joined by Justice Elena Kagan applied a lesser “intermediate scrutiny” to the law, agreed that it was unconstitutional, but left room for the government to come back with a narrower law. “The Government has provided no convincing explanation as to why a more finely tailored statute would not work,” Justice Breyer’s concurrence stated.

Meanwhile, Justice Samuel Alito, joined by Justices Antonin Scalia and Clarence Thomas, dissented, disagreeing with the assertion made in the other opinions that the government could protect its interest in honoring medal holders with an accurate, publicly available register of military awards. “Because a sufficiently comprehensive database is not practicable, lies about military awards cannot be remedied by what the plurality calls ‘counterspeech,'” Justice Alito’s dissent argued.

The decisions striking down the law, I think, are consistent with the Court’s First Amendment jurisprudence. They clarify that fraud and perjury are unprotected, but they avoid creating a new type of unprotected speech. In the end, they adhere to what the Court said in its landmark New York Times v. Sullivan decision: some false statements are inevitable if there is to be open and uninhibited debate about issues that matter. That is a principle worth fighting for.

Superior Court Judge James Chalfant held on November 15 that the Los Angeles Times is entitled to know not just the names and pensions of retired Los Angeles County employees, but also their start date, years of service at retirement, service years they “purchased,” benefit payment options, the formula used to calculate the benefits, and their gross medical benefits. His ruling became final on December 13.

The Los Angeles County Employees Retirement Association (“LACERA”) had, for two years, resisted turning over even the names of pension recipients. Finally, after three separate 2011 Court of Appeal decisions held that names and pension amounts must be disclosed, LACERA agreed to disclose the names of its pension recipients, but still balked at disclosing other information like years of service, pension formula and medical benefits received.

Judge Chalfant’s 14-page, single-spaced decision interpreted the three Court of Appeal decisions and found that the public had a right to know not only how much a public employee’s pension is, but also how it’s calculated. He agreed with newspaper reporters and taxpayer advocates who testified that without knowing how a pension is calculated, the public is unable to determine whether a pension has been “spiked” by adding perks to a last year’s salary, or “purchasing” service time. “A retiree member’s election of retirement options is a necessary component in the calculation of his or her retirement benefits in which the public has a legitimate interest,” Judge Chalfant ruled. “A retiree’s years of service at retirement, service years purchased, benefit payment options, and the formula used to calculate the benefit all must be disclosed…LACERA’s calculation of retirement benefits cannot be evaluated without this information.”

LACERA has stated it will not appeal Judge Chalfant’s ruling and that it will turn over the records by February 15.

Many of LACERA’s tens of thousands of retirees receive six-figure pensions, and at the state level California Governor Jerry Brown has called for raising the retirement age and trimming pension formulas to help the cash-strapped state balance its budget and avoid ever-deepening cuts to education and other services.

Judge Chalfant also ruled in a companion case brought by law enforcement unions that only two of the roughly 7,000 retired sheriff’s department employees represented by the unions were entitled to have their names withheld because of security concerns. The unions had brought their own lawsuit against the Times and LACERA, arguing that some of their members had safety reasons justifying withholding of their names. Judge Chalfant gave their lawsuit short shrift, issuing a tentative ruling rejecting all claims to withhold names, and eventually allowing one name to be withheld. The Times agreed that one other name could be withheld after the officer filed a declaration saying he is now in jail and other inmates might harm him if they saw his name in the Times.

In the last two and a half years, eight different California Superior Court judges, in heavily populated Los Angeles, Orange, San Diego, Sacramento and Contra Costa counties, and in Stanislaus, Sonoma and Ventura counties as well, have ruled in favor of pension transparency. Courts of Appeal in Sacramento, San Diego and San Francisco upheld the trial court rulings in Sacramento, San Diego and Sonoma counties. With Judge Chalfant’s ruling, it appears the transparency battle is over, and the advocates of openness have defeated the forces of secrecy.

(Full disclosure: the author of this blog, Karl Olson, represented the Times in the Los Angeles case, the Sacramento Bee in the Sacramento case, and newspapers in the Contra Costa and Stanislaus cases. He filed a friend-of-the-court brief in the San Diego appellate case.)

The case, U. S. v. Alvarez, involves the “Stolen Valor Act,” a 2005 law which makes it a crime to lie about having received a military medal of honor. The federal 9th Circuit Court of Appeals found the law unconstitutional but the Supreme Court on October 17 agreed to hear the case.

The 9th Circuit had held, “if the Act is constitutional…then there would be no constitutional bar to criminalizing lying about one’s height, weight, age or financial status on Match.com or Facebook, or falsely representing to one’s mother that one does not smoke, drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway. The sad fact is, most people lie about some aspect of their lives from time to time.” The ever-colorful Chief Judge Alex Kozinski commented that talking about oneself is “precisely when people are most likely to exaggerate, obfuscate, embellish, omit key facts or tell tell tales. Self-expression that risks prison if it strays from the monotonous reporting of strictly accurate facts about oneself is no expression at all.”

But 9th Circuit Judge Diarmuid O’Scannlain, who dissented from the court’s denial of rehearing, saw it differently, saying, “restrictions upon false speech do not receive strict scrutiny.” The 9th Circuit majority, however, held, “regulations of false factual speech must, like other content-based speech restrictions, be subjected to strict scrutiny unless the statute is narrowly crafted to target the type of false factual speech previously held proscribable because it is not protected by the First Amendment.”

No one argues that falsely claiming to have received a Medal of Honor is the highest and best form of free speech. But if the Supreme Court upholds the Stolen Valor Act it will likely expand the kinds of speech which are categorically exempted from First Amendment protection. This would create a slippery slope under which many forms of political speech might be subject to criminal sanctions if found to be untrue. After all, there is sometimes a fine line between the embellishments and half-truths which pervade political discourse, and the flat-out lies at issue in the Alvarez case. (Xavier Alvarez, a member of a water board in southern California, said in 2007 that he had been wounded as a Marine and had in 1987 received a Medal of Honor. He had never served in the military. The government prosecuted him and he conditionally pled guilty to violating the Stolen Valor Act, while reserving his rights to challenge its constitutionality. The Act imposes a penalty of up to a year in prison plus a fine; Alvarez was sentenced to three years probation and a $5,000 fine.)

Consider the issue of “job creation,” sure to be front and center in the 2012 elections. In the recent campaign for San Francisco Mayor, one candidate said he had “created” thousands of jobs. His “creation”? He voted for tax breaks for companies located downtown. On the Presidential level, Mitt Romney likes to talk about his record of “job creation.” If he is lying about his record — his venture capital firms laid people off after leveaged buyouts — should he go to jail? The point is, criminalizing lies is likely to pose serious threats to free speech.

Our first President, George Washington, famously said he could not tell a lie and fessed up to chopping down a cherry tree, but few of his successors or would-be officeholders have held themselves to that standard.

The 9th Circuit struck down the “Stolen Valor Act” at issue in the Alvarez case because it was subject to strict constitutional scrutiny and was not narrowly tailored to achieve a compelling government interest. If the Supreme Court in the Alvarez case finds the lie at issue categorically unprotected, it will do major harm to free speech doctrine in a case which seems to be a victimless crime. After all, despite protestations that lies about the Medal of Honor might undermine troop morale, the country survived for over 200 years without the Stolen Valor Act (which was enacted in 2005), and Alvarez’s lie was easily detected and “punished” where it should be, in the court of public opinion, when he was “outed” in the press.

The First Amendment protects, and should protect, not just true speech but occasional misstatements. As the Supreme Court held in the landmark New York Times v. Sullivan case, “erroneous statement is inevitable in free debate.” The Supreme Court should affirm the 9th Circuit’s holding that the “Stolen Valor Act” is unconstitutional.