First Amendment Lawyer Blog

Final Shot Fired in California Pension Transparency Battle?

Wed, 04 Jan 2012 16:11:23 -0800

A Los Angeles judge has issued what may be the last ruling in a years-long battle for pension transparency in California.

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.)

"Stolen Valor" Case Poses Free Speech Test

Tue, 27 Dec 2011 15:19:12 -0800

The U. S. Supreme Court will soon hear a case which could do major damage to First Amendment free speech protections.

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.

Did Brown Cell Out Privacy Rights?

Wed, 07 Dec 2011 16:51:14 -0800

California Governor Jerry Brown disappointed privacy advocates with his October 9 veto of a bill which would have required law enforcement officers to have a warrant before searching cell phones incident to an arrest.

The bill, Senate Bill 914, sailed through the Legislature with a 32-4 Senate vote and unanimous 70-0 support in the Assembly. It would have overturned a California Supreme Court decision, People v. Diaz(2011) 51 Cal. 4th 84, which held that a search of a defendant's cell phone incident to an arrest was lawful, even without a warrant, because a cell phone is like an article of clothing.

Dissenting Justice Kathryn Werdegar argued that, "The potential intrusion on informational privacy involved in a police search of a person's mobile phone, smartphone or handheld computer is unique among searches of an arrestee's person and effects," because a smartphone can contain hundreds of thousands of messages, photographs, videos, maps, contacts, financial records, memoranda and the like.

The Legislature agreed. SB 914 would have overturned the Diaz decision. The author, State Senator Mark Leno (D-San Francisco), said, "If you like to attend political rallies, parades, protests or sit-ins, you might want to consider leaving your cell phone at home in the event arrests are made. A recent California Supreme Court decision allows police to rummage through all of the private information on your smart phone as part of an arrest, including your text messages and e-mails." He said the court's decision raised many privacy concerns, and a bi-partisan majority of the Legislature agreed. Leno said cell phones "store a wealth of personal information," and that accessing information on a cell phone is "fundamentally different than searching an arrested person's wallet, cigarette pack or jeans pockets."

Governor Brown's veto message was sparse. The one-page veto stated, "The courts are better suited to resolve the complex and case-specific issues relating to constitutional search-and-seizures protections." The Governor -- who as Attorney General represented the state in the Diaz case -- didn't say much more about the decision, which was decided under federal (and not California) law. The majority opinion in Diaz, written by Justice Ming Chin, stated, "A warrantless search, incident to a lawful arrest, of a cell phone with limited storage capacity does not become constitutionally unreasonable simply because other cell phones may have a significantly greater storage capacity."

In my view, the dissent raised valid reasons why a warrant should be required to search cell phones, and Justice Werdegar acknowledged that "where the arresting officers have reason to fear imminent loss of evidence from the device, or some other exigency makes immediate retrieval of information advisable, warrantless examination and search of the device would be justified." The Legislature's overwhelming approval of SB 914 indicates strong support for requiring, under California law, warrants to search cell phones. Let's hope the Legislature takes another crack at this one -- I would not be at all surprised if the bill is introduced again, perhaps with some changes -- and finds a way to address Governor Brown's concerns.

Occupy Movement Raises Thorny First Amendment Issues

Wed, 23 Nov 2011 14:55:55 -0800

The Occupy movement is raising some thorny First Amendment issues.

Protesters have First Amendment rights to demonstrate and march, and they've raised important issues about the rising income inequality in this country.

On the other hand, governments traditionally have been able to impose so-called "time, place and manner" restrictions, so the issue becomes whether Occupy protesters have First Amendment rights to permanently occupy certain public places.

I had little sympathy for homeless people in San Francisco's Golden Gate Park who left syringes and human waste in the park and despoiled its natural beauty.

But I have more sympathy for those who've pitched tents in downtown spaces like San Francisco's Harry Bridges Plaza and Oakland's Frank Ogawa Plaza. For one thing, there's a clear speech message associated with their encampment. For another, they are occupying what seem like public spaces more suitable for public gatherings than enjoyment of natural beauty and the great outdoors.

Recently police have moved in and evicted Occupiers from places in which they've pitched tents in many cities. In some places, such as the University of California Davis, the police have stepped over the line, using pepper-spray on non-violent protesters who linked arms on the campus.

I don't doubt that the authorities can take steps to protect the public health. But special care must be taken to ensure that the exercise of pure political speech is not sacrificed in the process.

This is not the first time people have "occupied" places to send a message. As an advertisement in the New York Times from 1960 read, "In Montgomery, Alabama, after students sang 'My Country, 'Tis of Thee' on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission."

(That ad gave rise to a libel suit against the New York Times, and to the U. S. Supreme Court's famous New York Times v. Sullivan decision. The leader of the movement mentioned in the ad was, of course, Dr. Martin Luther King Jr.)

I am not saying that everyone in the Occupy movement is a saint, and I am not denying that there are some hangers-on and bad elements joining the Occupy crowd in some places. But I see important First Amendment values at stake here which should not lightly be sacrificed in the name of restoring order. When I see students rally at Sproul Plaza in Berkeley and students link arms at Davis, I go back to that 1960 newspaper ad, which read, "Decent-minded Americans cannot help but applaud the creative daring of the students and the quiet heroism of Dr. King." I go back to blacks "occupying" Southern lunch counters designated as "whites only," and people "occupying" buses. And I go back to the Supreme Court's opinion in the New York Times v. Sullivan case, which spoke of "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and siometimes unpleasantly sharp attacks on government and public officials." Or, in this case, the so-called "1 percent."

The Occupy movement is messy, and it's loud. But messy and loud protests are as American as apple pie, and any doubts about whether the Occupiers have a right to be where they are should be resolved in favor of the speaker.

Supreme Court Bludgeons California Video-Game Law

Sat, 15 Oct 2011 14:48:25 -0800

Is Mortal Kombat the highest form of free speech?

Maybe not. But it is protected by the First Amendment, according to a majority of the U. S. Supreme Court.

The Supreme Court's ruling on June 27 in Brown v. Entertainment Merchants Association struck down a California law restricting the sale or rental of violent video games to minors. It makes for interesting reading, and it produced several different opinions. Justice Antonin Scalia -- joined by Justices Kennedy, Ginsburg, Sotomayor and Kagan -- delivered a full-throated defense of violent video games, holding, "Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy, and restrictions upon them must survive strict scrutiny." He compared violent video games to Grimm's Fairy Tales, where the wicked queen, as punishment for trying to poison Snow White, "fell dead on the floor," and to Cinderella, where her evil stepsisters "have their eyes pecked out by doves."

The California law was dead on arrival, the Court said, because the state "acknowledges that it cannot show a direct causal link between violent video games and harm to minors."

Justice Samuel Alito and Chief Justice John Roberts weren't so sure. Alito wrote, "In the view of the Court, all those concerned about the effects of violent video games -- federal and state legislators, educators, social scientists, and parents -- are unduly fearful, for violent video games really present no serious problem. Spending hour upon hour controlling the actions of a character who guns down scores of innocent victims is not different in 'kind' from reading a description of violence in a work of literature. The Court is sure of this; I am not. There are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show."

Alito said, "Today's most advanced video games create realistic alternative worlds in which millions of players immerse themselves for hours on end. These games feature visual imagery and sounds that are strikingly realistic, and in the near future video-game graphics may be virtually indistinguishable from actual video footage." Alito and Roberts nevertheless agreed that the California law should be struck down, but only because the law was too vague.

Justice Clarence Thomas went off in a different direction, saying that the Founding Fathers "could not possibly have understood 'the freedom of speech' to include an unqualified right to speak to minors" without going through the minors' parents or guardians, and maintaining that the First Amendment challenge should be rejected on that basis.

Justice Stephen Breyer, meanwhile, would have upheld the law on its merits. He said that all the law does is prevent a child or adolescent from buying, without a parent's assistance, "a gruesomely violent video game of a kind that the industry itself tells us it wants to keep out of the hands of those under the age of 17." Breyer maintained that the law "imposes a restriction on speech that is modest at most."

This was a tough case, in my view. I have trouble accepting the notion that violent video games in which kids realistically simulate mass murder are no different from reading Cinderella or Grimm's Fairy Tales. As Justice Alito observed, "There are games in which a player can take on the identity and reenact the killings carried out by the perpetrators of the murders at Columbine High School and Virginia Tech." But at the same time, the law was correctly subjected to strict scrutiny, and the state was unable to show a "direct causal link between violent video games and harm to minors," as the majority held.

At the end of the day, the tie goes to the speaker, and as the majority held, because the state bears the risk of uncertainty, "ambiguous proof will not suffice." So parents who want to keep violent video games out of their kids' hands will have to take matters into their own hands, without the help of a well-intentioned -- but unconstitutional -- state law.

Transparency Not Always Convenient, But Important

Thu, 13 Oct 2011 17:44:47 -0800

There's an old saying: I may not agree with what you say, but I will defend to the death your right to say it.

Add to that: transparency may not always be convenient, but it's important to government.

This occurred to me recently in a case I am handling for the Los Angeles Times. The Times is suing the LA county retirement system for records of pensions paid to its tens of thousands of retirees. The system, LACERA, fought against disclosure for over a year and a half before finally relenting (in part) in the face of three court decisions ruling that the names and pension amounts of retirees must be disclosed.

Before anything was disclosed, a police union filed a lawsuit trying to block disclosure, claiming that some of its members might be "undercover retirees" who would be endangered by disclosure. Meanwhile, LACERA sent a letter to its members telling them it had to disclose their names and pension amounts. Its call center got jammed.

But not all retirees reflexively oppose disclosure, just as not all public employees oppose disclosure of their salaries. One LACERA retiree wrote a Times staffer saying that while she didn't like having her name and pension disclosed, she applauded the Times for fighting the battle. She said too many people in the media don't understand transparency laws like California's Brown Act and its Public Records Act.

There's a civics lesson here.

Amanda Knox convicted -- of defamation?

Wed, 05 Oct 2011 10:12:31 -0800

I
must confess I haven't been following the Amanda Knox saga closely. But something caught my eye in the story about her return to the States.

She was convicted -- not of murder, but of defamation -- by an Italian jury.

Some states in the U. S. may still have criminal libel laws on the books. But it's safe to say no appellate court here would do what an Italian appellate court did -- overturn her conviction for murder but uphold a criminal conviction for accusing the bar owner she worked for of committing the murder.

BART Touches Third Rail in Cell-Phone Shutdown

Wed, 07 Sep 2011 10:16:52 -0800

The Bay Area Rapid Transit system (BART) stepped into a touchy First Amendment issue when it shut off cell-phone service this summer in response to protests over a police action.

The decision sparked protests from First Amendment advocates and even criticism from BART board members who thought the agency overreacted to protesters.

BART argues that it has no obligation to provide cell-phone service at all in its underground tube and tunnels. But the protesters argued, with some justification, that once BART provides cell-phone access it shouldn't cut it off to prevent protesters and riders from communicating and peacefully assembling.

Some even likened BART's actions to those of deposted Egyptian leader Hosni Mubarak, who tried to cut off cell-phone and Internet access to prevent swelling protests in Cairo which eventually brought down his regime.

That comparison may same somewhat over the top, but it does seem that there are better ways to prevent protests from getting out of hand than to prevent peaceful BART riders from communicating with each other and their loved ones. The BART board is in the process of setting a policy on cell-phone use -- and one hopes the policy will be sensitive to First Amendment rights.

Third Victory for Pension Transparency

Wed, 07 Sep 2011 09:57:12 -0800

A San Francisco appellate court on August 26 handed a third victory to open government advocates wanting to know who's receiving county pensions.

The decision from California's First District Court of Appeal in Sonoma County Employees' Retirement Association v. Superior Court comes on the heels of earlier rulings from Courts of Appeal in Sacramento and San Diego and may signal the end of resistance from county pension organizations which have fought against the disclosure of pension amounts received by their members.

The San Francisco-based court held that state law shields retirees' birth date and age from disclosure, but not their name and the amount of their pension. Like the other appellate courts, the First District Court of Appeal relied upon the California Supreme Court's ruling (in a case I handled) that public employee salaries are public information, and said "the taxpaying public has substantially the same interest in [the retirement agency's] operations and payout levels as it does in the salaries of county employees."

Finally, the court tersely rejected the argument that retirees would be harmed by disclosure: "We find SCERA's claim that releasing information to the public about pension benefits will expose its retirees to annoyance and abuse too speculative to outweigh the public's interest in securing information about how public money is spent."

The latest decision should put to rest the issue of whether county retirees' pension amounts are disclosed. And it should shed light on pension payments which are draining the finances of state and local governments throughout the country, making it harder to balance budgets and provide services to residents. The three rulings won't balance budgets -- but they will enable taxpayers and open government advocates to know where public money is going.

California Pension Records Are Public, Courts Rule

Thu, 25 Aug 2011 14:17:20 -0800

Two California Courts of Appeal have shed light on a hot issue, ruling that county pension agencies must disclose the names and pension amounts of members receiving generous pension amounts.

Both courts, in rulings a month apart, rejected privacy arguments raised by by the agencies and the pension recipients, and both ruled that a state law providing for confidentiality of "individual records" did not allow the agencies to hide records of their payments to named pension recipients.

The rulings -- a May 11, 2011 decision from the Third District Court of Appeal in Sacramento (in a case I handled), and a June 28, 2011 decision from the Fourth District Court of Appeal in San Diego -- are welcome news for open government advocates and for taxpayers who foot the bill for the state's overly generous public pension benefits. In an era when private sector pensions have been eliminated or cut back, and public agencies are laying people off and cutting back services, many retired state and county employees are receiving six-figure annual pensions. Public safety employees in California generally are allowed to retire at age 50 with up to 90 percent of their last salary under a so-called "3 percent at 50" formula giving them 3 percent of their last salary for each year of service. To make matters worse, workers are often able to "spike" their pensions by working overtime in their last year or cashing out vacations and other perks just before they retire.

The court rulings relied in large part on a 2007 California Supreme Court decision holding that public employees' salaries are public. The Court of Appeal in Sacramento County Employees' Retirement Association v. Superior Court (2011) 195 Cal. App. 4th 440 remarked, "we do not view the fact of an individual's public retirement to be a personal matter or one likely to generate obloquy. The records will reveal that an individual was a county employee (whose salary amount was public record) and now is a retiree (whose pension amount is public record). SCERS's claim of severe unwelcome attention to retirees in particular is not compelling."

Likewise, the court in San Diego County Employees Retirement Association v. Superior Court observed that there was no evidence of adverse consequences from disclosure of public employee salaries, and no evidence of harm from prior disclosure of public employee pensions, even though the state's largest pension system, the California Public Employee Retirement System (CalPERS) has disclosed pensioners' names since 1985.

The rulings are welcome news and come at a time when many counties are grappling with how to pay for mounting pension expenses. San Francisco, for example, has two rival ballot measures on its November ballot which would tweak with the city's pension system and require workers to pay more toward their pensions. These court decisions won't affect existing pensions, but at least they will shed welcome light for citizens on where their tax dollars are going.

Sunlight Must Shine on Pensions

Mon, 20 Jul 2009 10:52:41 -0800

California is broke.

There's plenty of blame to go around, but one of the prime culprits is a lack of transparency. If people don't know how public money is being spent, it's hard to ensure that public money is being spent wisely.

One especially troublesome area is public employee pensions, especially for police and firefighters. Legislators who are wary of offending the powerful public safety lobbies, and voters deluged with glossy brochures of burning buildings and police in uniform, have handed public employee retirees pensions which far exceed those in the private sector. In San Francisco alone 709 retirees get pensions of over $100,000 a year. Most private sector workers don't earn that kind of money while still on the job. Other local agencies in the Golden State also have hundreds of workers in the six-figure pension club, and the state's pension fund, CalPERS, has nearly 5,000. This is happening while the state is trying to close a deficit of more than $20 billion.

Making matters worse, some public employee retirees recently fought a legal battle aimed at keeping the public from knowing the amount of their pensions. They unsuccessfully argued that the public which funds their lucrative pensions has no right to know how much they receive.

Several newspapers and a taxpayer group intervened in that case and convinced a judge that the pension payments are public information. Good thing: as public agencies across the country scratch and claw for money and cut services, it's more important than ever to know how public money is spent.

Public Disclosure Is Good Business for Investors

Sat, 18 Apr 2009 17:20:21 -0800

Why is transparency and openness important? Think about Bernard Madoff.

People invested millions in Madoff on the promise of 14 or 15 percent returns, even though they had no idea what he was investing in or how he was pulling it off. Likewise, poorly-regulated and opaque investment vehicles like securitized mortgages and auction-rate securities share a large part of the blame for the financial crisis gripping this country, and the world, over the past year.

One of the more outrageous spectacles of the past year has been banks and other financial institutions resisting disclosure of how they invested or spent federal bailout money. It's bad enough when some bureaucrat won't tell you how much was spent on fixing a pothole. It's worse when a megabank begs for billions and then won't tell you where the money is going.

The nation's largest public pension funds, like CalPERS, may be learning the hard way about the risks associated with secretive investments by self-proclaimed financial geniuses. The value of CalPERS' investments in hedge funds has fallen from $7.6 billion to $5.9 billion. This comes after CalPERS and other public pension funds fought unsuccessfully against public records disclosure of the performance of their investments in venture capital funds and other alternative investments, claiming that if the public found out about investment performance the public pension funds would be chased away from lucrative venture capital funds. Now the New York Times reports that big public pension funds "have grown uneasy over the costs and secrecy" associated with hedge funds. And one hedge fund executive pled guilty and is cooperating with an investigation of corruption at the New York state pension fund.

Transparency and openness aren't just good public policy. They are good investment policy for public pension funds which don't want to get caught doing business with shady people with conflicts of interest who peddle opaque and risky investments..

Federal Shield Law May Pass This Year -- Free Flow of Information Act, HR 985, Clears House Judiciary Committee

Mon, 06 Apr 2009 17:34:48 -0800

This may be the year the long-debated and much-needed federal shield law passes.

The so-called Free Flow of Information Act, HR 985, cleared the House Judiciary Committee March 25, and the committee's chairman, Rep. John Conyers, committed to "swift action" on the bill this year. Last year the federal shield law sailed through the House, 398-21, but stalled in the Senate at the end of the session in the face of opposition from the Bush Administration and its Justice Department. The shield law has bipartisan backing, with Senator Arlen Specter (R-Pa.), the ranking member of the Senate Judiciary Committee, having introduced S448, a similar measure.

Obama's Welcome Change on FOIA

Mon, 06 Apr 2009 14:52:34 -0800

In a welcome shift from its predecessor, President Obama's administration has issued new guidelines favoring disclosure and transparency in handling Freeom of Information Act guidelines.

Obama first signaled a shift on his first day in office when he issued a presidential memorandum calling on agencies to "usher in a new era of open government." Attorney General Eric Holder followed up on March 19 with new FOIA guidelines directing all executive branch departments and agencies to apply a presumption of openness when administering FOIA.

The devil will be in the details, of course, but the high-level endorsement of openness -- and the explicit reversal of the so-called Ashcroft Memorandum issued in President Bush's first year in office -- is important. Holder's memo tells federal bureaucrats that FOIA is the responsibility of everyone, and directs Chief FOIA Officers in each agency to report each year to the Department of Justice on their progress in improving FOIA administration.

Rights of Celebrities Can Collide With First Amendment

Wed, 01 Apr 2009 16:39:05 -0800

What do Dustin Hoffman, Joe Montana and Vanna White have in common?

All have been plaintiffs in high-profile cases testing whether a person's right to profit from celebrity overcomes a First Amendment right to talk about them or do a parody about them.

Joe Montana, the former San Francisco 49er quarterback, was thrown for a loss in a 1990s suit against a San Jose newspaper which reproduced, in poster form, actual newspaper pages containing his picture. Dustin Hoffman, too, lost a lawsuit which parodied the famous photo of him from the movie "Tootside," in which he appeared in drag. But Vanna White had better luck when she sued Samsung Electronics for running an ad using a robot which resembled her as the "Wheel of Fortune" spokesperson.

These cases show that when you use a famous person's likeness, you may get sued and the result of any lawsuit is not entirely predictable. A use which drives home a point, makes editorial comment on a celebrity, is predominantly a parody, or is newsworthy will generally be protected by the First Amendment and/or state law. A purely commercial use, on the other hand, is likely to expose the user to liability.

Bottom line here: you can generally comment on or criticize celebrities, but it's risky to use their name or likeness without permission for purely commercial purposes.