Fullerton resident and blogger Joshua Ferguson is challenging an Orange County Superior Court judge’s order barring him and the blog, Friends for Fullerton’s Future, from publishing secret city hall documents arguing the gag order violates the First Amendment.
The blog, Friends for Fullerton’s Future, began publishing secret city hall documents in June, including details of secret deals about police misconduct as well as an administrative investigation detailing how former City Manager Joe Felz got a ride home from police after drinking and driving and getting into an accident in 2016.
“As the United States Supreme Court repeatedly has recognized, prior restraints constitute ‘the most serious and the least tolerable infringement on First Amendment rights,” reads the Oct. 31 filing by Ferguson.
The attorney for both Ferguson and the blog, Kelly Aviles, argues that prior restraint — like blocking the publication of secret city hall documents — is held to a strict standard because it infringes the core principles purpose of the First Amendment.
“The [Supreme] Court has declared that prior restraints may be justified, if at all, only in the most exceptional circumstances, such as to limit dissemination about troop movements in wartime,” reads Aviles’ court filing.
Aviles, a media lawyer, is also Voice of OC’s chief litigator.
The nation’s highest court also stated, during the 1971 publication by the New York Times of what later came to be called the Pentagon Papers case, that prior restraint would be allowable if the information would cause a nuclear war.
“To date, those circumstances have remained purely hypothetical; the Supreme Court without exception has invalidated prior restraints; even where substantial interests would be impaired by the publication sought to be enjoined,” Aviles argues.
Orange County Superior Court Judge Thomas Delaney ordered the blog Oct. 25 to stop publishing the documents after Fullerton city attorneys filed a temporary restraining order request the day before. The temporary restraining order comes on the heels of Ferguson’s lawsuit against the city for allegedly failing to produce police misconduct records in accordance with a new state law, SB 1421, which publicly opens up previously hidden records.
“I haven’t seen a blog in this situation that I can recall,” said David Snyder, executive director of the First Amendment Coalition.
“It sounds like there’s multiple issues here. One is what prompted the blog’s lawsuit and that is whether the city or government agencies are releasing records as required. Two is the obtaining by the blog of internal city files,” Snyder said.
The United States Supreme Court decision in the Pentagon Papers is the highest profile case of prior restraint stemming from publication of a secret Vietnam War study. President Richard Nixon tried to block the New York Times and other newspapers from publishing the classified study and the country’s highest court sided with the newspapers in 1971 and allowed publication of the study.
The 7,000-page study was leaked to the New York Times, the Washington Post and other newspapers earlier that year by Daniel Ellsberg, a military analyst for the RAND Corporation. It showed the history of U.S. involvement in Vietnam starting in World War II until 1968, when there were over half a million troops in Vietnam. It was also the deadliest year during the war, seeing nearly 17,000 servicemen killed.
“The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information. It is common knowledge that the First Amendment was adopted against the widespread use of the common law of seditious libel to punish the dissemination of material that is embarrassing to the powers-that-be,” wrote Justice William Douglas in his opinion on the Pentagon Papers case.
Douglas sided with the newspapers.
Ellsburg was indicted on espionage charges and faced over 100 years in prison. But the charges were ultimately dropped after government misconduct by some of Nixon’s aides surfaced, including a break-in at Ellsberg’s psychiatrist’s office to find material against him. The aides were also later held responsible for the break-in at the Watergate Hotel, creating the scandal that ultimately forced Nixon’s resignation.
Last year, a Los Angeles Superior Court blocked the Los Angeles Times from publishing courtroom photos of a man charged with murder after his defense attorney objected to filiming and photographing him. The judge also ordered the sketch artist to stop drawing.
Judge Gustavo Sztraicher reversed his decision the next day, after The Times and the Associated Press challenged his order.
Snyder said Delaney’s decision to bar publication of the secret city hall documents raises a serious First Amendment issue.
“[The order] says that they can’t publish or distribute information that they have in their possession, I think it becomes highly problematic in the First Amendment perspective,” Snyder said.
Ferguson and the blog caught the city’s attention June 11 when another contributor posted documents indicating a potential deal between the city and a police officer to bury records.
The blog published a draft agreement June 11 between the city and former Lt. Kathryn Hamel to halt at least one internal affairs investigation if she resigned from the department, in an effort to shield the records from a new state disclosure law that allows the public to see select police misconduct records.
“The City will revise its Notice of Intent to Discipline Hamel to remove allegations relating to dishonesty, deceit, untruthfulness, false or misleading statements, ethics or maliciousness. The Interim Police Chief will place a notice in the file indicating that, pursuant to settlement, all charges against Hamel … were never resolved or proven because there was no Skelly hearing or opportunity for appeal and, accordingly, are not sustained,” reads the draft agreement, which is also attached to Ferguson’s record lawsuit.
Fullerton attorneys allege Ferguson and other contributors at the blog had unauthorized access to its Dropbox account — a digital, cloud-based storage software — and illegally downloaded files that were awaiting the city attorney’s review for potential public release.
“Once they gained unauthorized access into folders within the City’s Dropbox account
containing privileged and confidential PST (Microsoft Outlook) files not produced to them, Defendants took, downloaded and copied thousands of documents from those privileged and confidential folders and files without permission. Defendants had reason to know the PST files were not intended for them since they were not produced directly to them and since the City did not produce PST files in response to their PRA (Public Records Act) requests,” reads Fullerton’s filing against Ferguson and the blog.
City attorneys also said Ferguson and blog contributors have been accessing the files since late 2017. Fullerton attorneys allege Ferguson and the blog violated state and federal law by accessing the files.
The city closed its Dropbox account over the summer.
But Aviles argues Ferguson didn’t hack Fullerton’s information.
“Yet, the conduct the City complains of is not criminal. Recent case law demonstrates that the City’s theory that accessing its publicly available Dropbox and files inadvertently made available to the public is ‘hacking’ or ‘stealing’ cannot stand scrutiny,” reads the appeal filing.
“…accessing the City’s publicly-accessible Dropbox account that it failed to secure by even the most basic protections – such as a password – could never be considered ‘hacking’ under the [law],” Aviles wrote.
Aviles also cited California Supreme court precedence in the filing.
“Not surprisingly, California courts have also uniformly struck down prior restraints, which the California Supreme Court has denounced as ‘the most severe method of intellectual suppression known in modern times,’” states the filing.
Snyder said the basis for the First Amendment was the colonists’ struggle with printing press licenses before the Revolutionary War.
“The colonists were familiar with licensing of printing presses. The crown had the ability to license printers … that meant if you pissed off the king or the queen, they would revoke your license and you can’t publish,” Snyder said. “One of the purposes of the First Amendment was to get the government out of the business of deciding who can or can’t publish.”
Snyder cited the Pentagon Papers case and said it set the highest legal bar for prior restraint in the country.
“What was at issue there was military secrets and national security,” Snyder said. “Even that wasn’t enough to justify an order to prevent publishing of that material.”
He also said it doesn’t matter if someone is a journalist, blogger or ordinary person.
“Whether the person is a ‘journalist’ or not is really not relevant for purposes of the prior restraint analysis,” Snyder said.
Spencer Custodio is a Voice of OC staff reporter. You can reach him at scustodio@voiceofoc.org. Follow him on Twitter @SpencerCustodio.