California’s Fourth District Court of Appeal has barred Orange County’s Superior Court from issuing any more orders regarding a City of Fullerton’s lawsuit against two resident-bloggers while the appellate court considers the case.
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Joshua Ferguson and David Curlee were sued by the city after the blog, Friends for Fullerton’s Future, began publishing secret city hall documents.
The order, known as a writ of supersedeas, was issued last Thursday. The appellate court’s order came a week after it’s March 26 order blocking the publishing gag OC Superior Court Judge James Crandall issued March 13.
“What’s so interesting is the lower court has twice issued a prior restraint (publishing gag) and the appellate court has now twice overturned that order. So it seems to me that the appellate court is certainly skeptical of the city of Fullerton’s arguments and case,” said Jason Shepard, a media law professor at California State University, Fullerton.
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.
Ferguson and Curlee are also appealing Crandall’s anti-Strategic Lawsuit Against Public Participation (SLAPP) motion rejection.
The two are represented by open government attorney Kelly Aviles, who is also Voice of OC’s public records litigator.
SLAPP lawsuits are usually used to silence critics and dissidents through drawn-out litigation, which can bury people under legal fees. If a judge grants an anti-SLAPP motion, the entire case can be thrown out.
“On one hand, I see this as a textbook example of a SLAPP. It’s the government throwing a lot of resources behind attacking and criticizing citizen watchdogs. On the other hand, the city seems to be taking this very seriously and because of the city’s investigations into this leak, a court might find that its actions are not frivolous and therefore perhaps not a SLAPP — under the definitions of the law,” Shepard said.
Shepard, who’s also chairman of CSUF’s communications department, said it’s important to remember what the bloggers exposed.
“I think it’s important to not lose sight of what these bloggers exposed. These bloggers exposed serious misconduct on the part of government officials. And now they’re facing the wrath of government because of it,” Shepard said.
Kimberly Hall Barlow, Fullerton’s litigator in the case, has said the city has to protect confidential information like social security numbers and medical records and argued, in court, the bloggers may have that information.
But that should be a separate issue and not tied into a lawsuit seeking a publishing gag, Shepard said.
“The city has a responsibility to protect confidential and personally sensitive information, but that doesn’t mean that they can stop journalists from publishing non-personally sensitive information when it’s newsworthy and in the public interest,” he said. “If the city of Fullerton was putting confidential, personally sensitive information on a publicly accessible Dropbox folder, that should be a separate scandal in itself.”
The appellate court’s decision comes after Fullerton city attorneys filed a brief and cited a series of cases to show the lawsuit isn’t a SLAPP or a First Amendment violation.
“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.
But an analysis by the city’s forensic computer expert, Matthew Strebe, has been called into question by the bloggers’ expert, John Bambanek.
Bambanek points to the exclusion of U.S. internet addresses and the “enrichment” of Dropbox logs.
He also said Strebe identified people logged into the Dropbox account with 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.
Shepard said Fullerton’s entire case is troublesome to the First Amendment.
“The Supreme Court has ruled many times that journalists serve a special role in our democracy. And that includes citizen journalists and bloggers and local watchdogs. And absent some additional information about the actions of these bloggers, I think a prior restraint is a clear violation of the First Amendment,” he said.
Shepard, other media and constitutional law professors and First Amendment 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.
Spencer Custodio is a Voice of OC staff reporter. You can reach him at scustodio@voiceofoc.org. Follow him on Twitter @SpencerCustodio