A national press freedom organization waded into the First Amendment fight in Fullerton after an Orange County Superior Court judge barred a Fullerton blog and two residents from publishing secret city hall documents.
Fullerton city attorneys allege Joshua Ferguson and David Curlee — both contributors to the Friends for Fullerton’s Future blog — illegally downloaded confidential documents that contain privileged information. The lawsuit comes within a week of Ferguson suing the city for failing to provide police misconduct records under the new statewide police records disclosure law, SB 1421.
“So this case is the first one, I’m aware of that a government agency has sought to use the [federal and state computer laws] in this manner. It doesn’t appear there is any hacking where we know it. It looks like an inadvertent disclosure case,” said Gabe Rottman, director of technology and press freedom for the Reporter’s Committee for Freedom of the Press.
The Reporter’s Committee — a Washington, D.C. First Amendment national advocacy group — filed an amicus brief on behalf of Ferguson with the 4th District Court of Appeal Tuesday. The brief is a court filing from a party not directly involved in a case, but has a strong interest in the matter and supports a side.
And at this Tuesday’s Council meeting, Dick Jones, head city attorney, disclosed that the Council voted Sept. 17 to sue Ferguson over the documents.
It was the first time the city publicly disclosed the closed session vote, as required by state law, despite the vote happening nearly two months ago.
“In an effort to clarify any Brown Act violations, the fact that City Council on Sept. 17, 2019, met on a motion made by Mayor (Jesus) Silva and seconded Mr. (Ahmad) Zahra, on a 5-0 vote, the City Council approved the filing of a writ to seek a temporary restraining order against the main defendants,” Jones said.
The bloggers, represented by media attorney Kelly Aviles, are appealing OC Superior Court Judge Thomas Delaney’s Oct. 25 order barring the blog from publishing secret city hall documents. The blog began publishing some documents in June, including details of a draft agreement between a former police officer and the city to shield potential misconduct records from disclosure law, along with an 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.
Aviles is also Voice of OC’s chief litigator.
Rottman said prior restraint orders, like Delaney’s publishing gag order, have never been upheld by the country’s highest court.
“Prior restraint like that has never been upheld by the (United States) Supreme Court,” he said.
City attorneys allege Ferguson and Curlee illegally accessed Fullerton’s Dropbox account — a cloud-based storage service — and downloaded the files.
Fullerton’s Council City also doubled-down on the lawsuit Tuesday’s closed session portion of the meeting.
But one council member, Bruce Whitaker, dissented on moving forward.
“The council did consider whether to continue to pursue that lawsuit on a motion made by Mayor Pro Tem (Jennifer) Fitzgerald and seconded by Mayor Silva on a 4-1 vote, with Mr. (Bruce) Whitaker voting no. The council approved that we continue to pursue that litigation as recommended by the City Council,” he said.
Deputy city attorney Kimberly Hall Barlow also gave a public update to the Council and residents at Tuesday’s meeting.
“The primary basis of the case is that, as our forensic analyst has demonstrated, the documents which were downloaded from the city’s Dropbox account without authorization were confidential and privileged documents,” Barlow said. “Documents that were taken include medical information about employees, personnel records, discussions with legal counsel regarding pending or anticipated litigation, litigation strategy. A number of other documents, including social security numbers and so on that are protected by law from disclosure.”
She said the documents were on the Dropbox account for city attorney review for pending public records requests.
But, those documents on Dropbox weren’t secure, Rottman said.
“If I’m reading the city’s filings correctly, I don’t think that the Dropbox page was protected by a password,” Rottman said. “I think it could be accessed by anybody who knew where to look. If the city was commingling documents that weren’t reviewed by an attorney yet … and it was inviting people to download (from the Dropbox account), that wouldn’t be hacking.”
Aviles said Fullerton’s lawsuit against Ferguson is an attempt to distract from potential legal liabilities Fullerton could face if private and healthcare information was inadvertently disclosed.
“But when you look at the actual facts of the case, they may have more potential exposure than we ever could. Don’t look at us, look over here at people we’re calling criminals. Don’t pay attention to the fact that we potentially illegally disclosed records,” Aviles said.
The Reporter’s Committee support filing states such a lawsuit against a blog and its contributors, using federal and state computer laws, is unprecedented.
“[The Reporter’s Committee] is not aware of any case where federal or state hacking laws have been misused so brazenly to target routine newsgathering activities—namely, the collection of government information available to any internet user,” reads the filing.
The Committee’s support filing related the hacking claim to trespassing.
“To analogize directly to trespass law, the City is effectively arguing that an invitee to one part of a field ‘should have known’ that moving to another part would transform them into a trespasser,” states the filing.
The support filing, written by Reporters Committee attorney Katie Townsend, also said Fullerton made the information public by storing it on Dropbox because it failed to secure it with a password.
“A public website, including the Dropbox account here, is not like a ‘house.’ When an entity chooses to make information available to the public on the internet, without a technical access restriction like a password, that information can legally be accessed by anyone. Were that not the case, websites could trigger criminal or civil liability by fiat, through changes in the terms of use of the website, which is exactly what the City is attempting to do here,” Townsend wrote.
The First Amendment Coalition — a Bay Area-based First Amendment advocacy group — is also watching the case closely.
David Snyder, executive director for the Coalition, previously told Voice of OC that the United States Supreme Court has never upheld a judge’s decision to block the publishing of documents.
“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.”
Like Snyder, Rottman also cited the 1971 Pentagon Papers case, which is the highest profile case of prior restraint that ultimately ended with the U.S. Supreme Court overturning a lower court’s decision and allowing The New York Times and Washington Post to continue publishing a secret study about the Vietnam War.
“Under clear case law they’re (prior restraint orders) only permitted in the most narrow circumstances,” Rottman said. “Even in the Pentagon Papers, the Supreme Court rejected a prior restraint, even under the government’s claim of harm to national security.”
Barlow said, during Fullerton’s Tuesday council meeting, that the lawsuit against Ferguson and the blog isn’t about the First Amendment, but about hacking.
“Because we are being told — criticized for violating the First Amendment rights of the blog. Certainly I have no intention and I know the Council has no intention of doing that at all,” Barlow said, adding the U.S. Supreme Court found the First Amendment protection doesn’t apply to people who received documents in a way that “violate valid criminal laws.”
“That’s what this case is about. It’s not about disclosing corruption. It is about stealing confidential documents not intended for the public,” Barlow said. “And our obligation under the law to protect the city’s employees under disclosure of that information.”
The Pentagon Papers case started when 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 that saw 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.
Meanwhile, Ferguson and the blog are still gagged; the 4th District Court of Appeal hasn’t responded to the emergency appeal as of Tuesday evening.
“We filed on Thursday (Oct. 31) and haven’t heard a peep from the Court of Appeal,” Aviles said. “So, everyday the unlawful prior restraint is hanging over their (Ferguson, Curlee and the blog) heads.”
Aviles also filed an anti-Strategic Lawsuit Against Public Participation (SLAPP) motion against the city for its lawsuit against Ferguson. SLAPP lawsuits are usually used to silence critics and dissenters.
“Despite Fullerton knowing about the Dropbox issues since June 2019 — when the blog began publishing secret city hall documents — the city didn’t file the lawsuit “until Mr. Ferguson filed a lawsuit alleging that the city had violated the CPRA (California Public Records Act) and had been improperly withholding records from the public about serious incidents of police uses of force and misconduct by both the police and city employees,” wrote Aviles in the anti-SLAPP motion.
Fullerton has since closed its Dropbox account.
In the anti-SLAPP motion, Aviles argues Fullerton’s lawsuit against Ferguson and Delaney’s gag order contend with established case law and she also cited the Pentagon Papers. She also argues the First Amendment protects the freedom to publish, regardless of how information was obtained.
“These principles hold firm regardless of whether the information is confidential or obtained illegally. In the landmark New York Times (Pentagon Papers) case, the Supreme Court rejected a prior restraint to prevent the newspaper’s publication of the Pentagon Papers, even though the Court acknowledged that it was a ‘classified study’ the disclosure of which was not authorized,” reads the anti-SLAPP motion.
Spencer Custodio is a Voice of OC staff reporter. You can reach him at scustodio@voiceofoc.org. Follow him on Twitter @SpencerCustodio.