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The Fourth District Court of Appeal blocked a publishing gag Thursday against a Fullerton blog and two of its bloggers, for the second time since the city has been trying to silence the blog for publishing secret city hall documents.
Fullerton residents Joshua Ferguson and David Curlee were initially barred from publishing any more documents on the blog Friends for Fullerton’s Future at a March 13 OC Superior Court hearing.
“We always expected that this would be the outcome,” said open government attorney Kelly Aviles, who represents Ferguson, Curlee and the blog.
Aviles is also Voice of OC’s public records litigator.
“So whatever victory the city thought it had, it was incredibly short sighted to think that it was going to hold up for any amount of time,” she said. “I think this demonstrates how concerned the court of appeal is with the prior restraint.”
Ferguson and Curlee are also appealing Superior Court Judge James Crandall’s ruling on the anti-Strategic Litigation Against Public Participation (SLAPP) motion.
The blog caught the city’s attention last June when it began posting documents from an internal police department investigation detailing how former City Manager Joe Felz got a ride home from Fullerton police officers after drinking and wrecking his car election night 2016. The investigation had statements from officers who were at the scene, including former officer Sgt. Rodger Jeffery Corbett, who’s facing a felony charge of falsifying a police report from the Felz crash.
Since then, Fullerton city attorneys allege Ferguson and Curlee stole the documents from its Dropbox account, a cloud-based file sharing and storage system.
The bloggers didn’t admit to any wrongdoing.
Aviles said the move now means the appellate court will be able to review the entire case.
“So the court now has the entire record in front of it,” Aviles said. “So the next step is for us to file our opening brief.”
Fullerton city attorneys filed a brief to the Fourth District Court of Appeal and cited a host of cases to show its lawsuit against the bloggers isn’t a SLAPP and doesn’t violate the First Amendment.
“Far from being a case of the government trying to intimidate or stifle blameless journalists, this lawsuit involves the legitimate efforts of the City of Fullerton to recover confidential and privileged documents that Petitioners stole from the City and refuse to return,” reads the brief.
“For several years, Petitioners Ferguson and Curlee have plundered the private Dropbox account of the City, using web services that masked their identity, and they have copied many thousands of documents without the knowledge, let alone permission, of the City,” states Fullerton’s filing.
The court of appeal will also get to examine conflicting declarations by experts on both sides.
Forensic computer expert John Bambanek said the city’s computer analyst potentially misrepresented evidence to the court.
“The court relied on the City’s ‘expert’ testimony when it granted the Temporary Restraining Order, but it has since been shown, by the city’s own declarations, the underlying facts are different than the City first suggested,” read’s Bambenek’s declaration.
Bambanek points to the exclusion of U.S. internet addresses and the “enrichment” of Dropbox logs, which is the cloud-based storage and sharing service Fullerton used to store records Ferguson and the blog allegedly stole.
He also said the city’s computer expert, Matthew Strebe, pointed to software designed to hide internet addresses from people, commonly referred to as VPNs and TORs. Strebe concluded the foreign addresses belong to Ferguson.
“Yet, the City has provided no direct evidence to substantiate this claim and is virtually impossible because the users were, by their very nature, anonymous. Given that the manner in which the City intentionally configured its Dropbox account, removing the normal password restrictions, the anonymous users could be anyone,” reads Bambenek’s declaration.
Local college professors who teach constitutional and media law have criticized the city for moving forward with the case they said violates Ferguson’s and Curlee’s First Amendment rights.
And First Amendment advocacy groups have also weighed in on the case and criticized the city.
The professors and free press advocacy groups have all related the lawsuit to the infamous Pentagon Papers case.
The Pentagon Papers case started when President Richard Nixon tried to block the New York Times and other newspapers from publishing a classified study about the Vietnam War and the United States Supreme Court sided with the newspapers in 1971 and allowed publishing 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 detailed 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 troops.
“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.