An Orange County judge today will consider in open court whether the City of Fullerton’s lawsuit against resident and blogger Joshua Ferguson is an attempt to silence him and the blog, stemming from the publication of secret city hall documents.
At the same time, Fullerton attorneys are again seeking to reinstate a publication gag on Ferguson and the blog, Friends For Fullerton’s Future. They allege Ferguson hacked the city’s Dropbox account — a filing sharing service — and stole the documents.
Local college professors, who teach media law and Constitutional law, said they don’t see how Fullerton’s case can ultimately succeed.
“There’s two ways of thinking about this. One of the questions is whether or not you can punish a blog or a paper post publication for someone who got information illegally,” said Rob Robinson, a California State University, Fullerton professor who teaches Constitutional law.
Robinson said courts may be able to prosecute a person who leaked documents, after publication, but previous Supreme Court rulings have put a high standard on publication gags — most notably the Pentagon Papers.
“But we’re talking about prior restraint — a gag — and I just don’t see any way they’re going to win,” Robinson said.
“I mean it would be really bad if a local government or state government could shut down embarrassing things from being published because you allege, without proof, that things were taken wrongly. That would have a chilling effect. Think about how many things leak in Washington,” he said.
Open government attorney Kelly Aviles, who represents Ferguson and the blog, filed an anti-Strategic Litigation Against Public Participation motion against the city last year. SLAPP lawsuits are usually used to silence critics and dissidents through drawn-out litigation, which can bury people under legal fees.
Aviles is also Voice of OC’s public records litigator.
Orange County Superior Court Judge James Crandall will consider whether Fullerton’s lawsuit against Ferguson is a SLAPP. If he does, the case would likely be dismissed.
CSUF media law professor and communications department chair Jason Shepard said the Ferguson case is a prime example of a SLAPP.
“Anti-SLAPP statutes are meant to protect the little guy from the powerful government and wealthy interests. In some ways, this is the archetype case for anti-SLAPP protections,” Shepard said.
He compared the Ferguson case to last year’s Bryan Carmody case in San Francisco, when police raided Carmody’s home — a freelance journalist — in an effort to identify a confidential source who leaked details to Carmody about the death of San Francisco’s District Attorney Jeff Adachi.
“I think coming off the heels of the Carmody case in San Francisco, we sometimes take for granted that press freedom is alive and well in America. To a large degree, it is. But the Carmody case in San Francisco and the Ferguson case in Fullerton illustrate that press freedoms need constant defending and that governments don’t always do the right thing when it comes to protecting the First Amendment,” Shepard said.
Carmody was recently awarded $369,000 for the City of San Francisco’s actions against him.
In the latest round of court filings, 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.
Kimberly Hall-Barlow, Fullerton’s litigator, didn’t return calls for comment.
The blog and Ferguson 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.
Robinson said it looks like Fullerton is embarrassed by the documents published.
“It’s really odd to me that they’re doubling and tripling down. It sounds like a government that’s been embarrassed,” Robinson said.
The Ferguson case is being heard in civil court, not criminal court, which CSUF criminal justice professor Gregory Brown said is a strategy by Fullerton to make Ferguson and the blog give up.
“These kind of cases, since it’s civil, this is just a way to make people capitulate — to turn over,” Brown said. “This is all about a power move.”
Brown also said Fullerton attorneys may try to use the civil case in an attempt to gather information to build a criminal one.
“As another strategy, they could be starting a civil case to find out what kind of information they can glean from the civil case to go to the criminal.” he said. “They’ll have all the transcripts and everything right there. And then, of course, if anything is disclosed in the civil case, they’ll take it to criminal court — no doubt about that.”
Like Shepard and Brown, Robinson also said the case could be a strategy to intimidate Ferguson.
“My sense is that if Fullerton has no evidence that he actually stole it, it does look like Fullerton is harassing him,” Robinson said.
Fullerton attorneys have also reduced the alleged number of documents they claim Ferguson stole.
In late October, city attorneys alleged Ferguson and other bloggers illegally downloaded 50 folders from Fullerton’s Dropbox account containing private employee information, including medical records and social security numbers.
But the list of files was more than cut in half to when Fullerton attorneys shortened the list to 19 files, according to documents filed by city attorneys to the court Nov. 19.
In November, Barlow, told Voice of OC the original list of 50 files was an erroneous list.
“The list that was originally included was all 50 of the folders and files that they had downloaded [Dropbox] so there was an error, that was a full list. It was supposed to be a shorter list,” Barlow said. The order doesn’t apply to anything they got through a valid public records request … Our interest is not in anything they got in responsive records.”
Robinson and Shepard were critical of the reduced list.
“The fact that they had to change their evidence a couple times isn’t great — even if it wasn’t done in bad faith. It doesn’t look good in that perspective,” Robinson said.
Shepard said the change-ups in declarations and the files list cast doubt on the accuracy of Fullerton’s allegations.
“Their claims seem to have changed and that makes you wonder what’s really true and not true,” Shepard said. “It’s a big deal for a city government to go to court to stop the publication of truthful information about matters of public concern. It’s embarrassing that the city of Fullerton did not have all of their ducks in a row when they started this case.”
Fullerton attorneys’ request for the publication gag was originally granted in October, but the Fourth District Court of Appeal blocked the order and is watching the case closely. Superior court judge Thomas Delaney granted the gag and the case has since been moved to Crandall’s court.
Despite the appellate court’s block on the publication gag, Fullerton attorneys are asking Crandall to block Ferguson and the blog from publishing.
“Which is why I think it is really important that people who are concerned about press freedom pay attention to this case,” Shepard said. “We have a government trying to obtain a prior restraint against a local media watchdog. The First Amendment stands as a high bar for prior restraints in these kinds of cases.”
Shepard, Robinson and the 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 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.
Spencer Custodio is a Voice of OC staff reporter. You can reach him at scustodio@voiceofoc.org. Follow him on Twitter @SpencerCustodio