Free Speech Fight Energizing San Juan Capistrano Residents

Free Speech Rally in SJC
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A secret decision by San Juan Capistrano leaders to ban the distribution of newspapers at City Hall is sparking a backlash, both in court and potentially at the ballot box.

For years, the newspaper at the center of the controversy, now known as Community Common Sense, turned out a steady series of articles questioning financial decisions by city leaders, including a controversial $28-million land purchase from the Rancho Mission Viejo company in 2010.

In that deal the city’s negotiators were exempted from disclosing their financial interests, and much of the revenue from a horse riding park on the land now goes to a foundation run by one of those negotiators, said Kim Lefner, the paper’s publisher.

Lefner said city leaders have responded to the paper’s reporting by threatening its advertisers and event venues. “They don’t like it. They don’t like being exposed. They do back-room deals … and we write about it,” she said.

The city has long allowed newspapers to be placed at City Hall and its community center, but that changed when Community Common Sense started including its news racks.

“Within four days they called a closed-door session of the City Council,” said Lefner.

And with a secret vote, the council banned newspaper racks from city property. The city attorney went so far as to send a letter threatening criminal prosecution if the papers were restored.

(Click here to read the letter.)

Community Common Sense took their case to court and won a temporary order that their papers be allowed.

But the issue is far from over.

The paper’s latest show of support came this weekend, when more than 150 people turned out for a free speech rally at C. Russell Cook Park. Deborah Pauly, a Villa Park councilwoman who frequently challenges the conservative credentials of mainstream Republicans, hosted the event.

Residents waved American flags and the famed yellow “Don’t Tread on Me” banners that have become a symbol of the Tea Party movement as they listened to conservative speakers address the newspaper ban and other hot topics.

Many at the event said the paper plays an important role in holding elected leaders accountable.

“It’s an open and unbiased voice,” said Mission Viejo resident Joe Tully. “I think that it’s important to have unfettered and clear info.”

Beyond the free speech protests, organizers of an effort to recall Mayor Sam Allevato were out in force.

Allevato was among the council majority who voted for the newspaper ban, according to a later court declaration by Councilman Roy Byrnes. But perhaps just as important, residents are blaming Allevato for rising water rates and a controversial city-funded groundwater system.

The mayor has raised at least $67,000 to fight the recall, Lefner said.

Calls to Allevato and the other City Council members seeking comment weren’t returned on Monday.

Larry Gilbert, a columnist for the paper, said elected officials often use grassroots organizers to be elected, only to turn from their principals and overspend on city projects and events.

“If you don’t start questioning them, there’s no control,” Gilbert said.

Last August’s newspaper ban was approved on a 3-1 vote, with Byrnes dissenting and Councilman Derek Reeve abstaining, according to Byrnes’ court declaration.

Allevato and Councilmen Larry Kramer and John Taylor voted for it. The decision and vote tally were not disclosed publicly at that meeting, as is generally required by law.

City Attorney Hans Van Ligten of the law firm Rutan & Tucker denied there was any disclosable action. In late September, Van Ligten reiterated the city’s position, sending a letter to Community Common Sense threatening to prosecute the paper if it restores its papers to city property.

Then in October, Byrnes disclosed that the ban was approved in closed session, which apparently displeased the council majority. In early November, the city hired a retired judge to investigate whether Byrnes’ disclosure violated the Ralph M. Brown Act.

Meanwhile, open-government expert Terry Francke, told Patch that the real issue is the council majority’s discussion of a newspaper ban in secret.

“You can’t take an issue into closed litigation session unless there are presently existing — not merely potential or hypothetical — facts and circumstances making a lawsuit by a specific party about a specific issue likely,” Francke said.

And to reveal an illegal action is within council members’ rights, he added.

“Anyone present in a closed session where a discussion or action takes place in violation of the Brown Act has a right to report that fact publicly,” Francke said.

Also in October, the paper filed a First Amendment lawsuit against Van Ligten and the council majority. The officials “violate the constitutional right of every resident in SJC to access and read newspapers and news publications as they see fit,” according to the suit.

In December, Superior Court Judge James Di Cesare ordered the city to allow the news racks.

The opposing sides agreed to place the papers on the right of City Hall’s entryway and in the community center’s senior reading room, Patch reported. Just before Christmas Eve, the racks were restored.

This time, there was a note: “This newspaper has been placed at this location under court order.”

Then the city leaders tried to have the lawsuit dismissed, by arguing it was really the newspaper that was violating their First Amendment rights, not the other way around.

The council majority and city attorney filed an “anti-SLAPP” motion  against the paper, asserting that the council members’ actions were “constitutionally protected speech activity.”

Anti-SLAPP motions are supposed to protect people’s right to participate in government and civic affairs by providing a quick way to have lawsuits thrown out.

That approach drew more questions from Francke, who told Patch that such a use wasn’t envisioned by the law’s authors.

“Use of the anti-SLAPP motion not only to get citizens’ lawsuits against local government dismissed but to force the losing plaintiff to pay the government’s attorney fees is proliferating in a way that, in my opinion, the Legislature never contemplated,” Francke said.

The paper also questioned the city’s logic, describing the city’s position as being that “the majority of the council has a First Amendment right to essentially, ban the First Amendment.”

The anti-SLAPP motion is set to be heard in Orange County Superior Court on March 6.

You can reach Nick Gerda at ngerda@gmail.com, and follow him on Twitter: twitter.com/nicholasgerda.

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