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After city officials voted to ban criticism of them on public property, more than 100 citizen activists in Orange County, Calif., rallied to express outrage over what they characterize as an attack on their First Amendment rights.
Technically, what the city council of San Juan Capistrano, Calif., did was to vote behind closed doors to ban newspaper racks from city property.
The move, which shocked local journalists, came just four days after one publication, Community Common Sense, which often has been critical of the council majority, placed its news rack alongside others at city hall and the community center.
The council moved swiftly in response by banning all racks.
Councilman Derek Reeve, who is also a constitutional law attorney, told WND: “Even a first year law student knows that you don’t ban newspapers on government property. I don’t understand why the city attorney didn’t speak up. The council members were driven by hubris. There is no other logical explanation.”
Community Common Sense then filed a lawsuit to restore the news racks to city property.
Reeve noted, “I would have assumed that when hit with the lawsuit, they would admit they screwed up.”
However, he said, instead, the city raised the fight to the next level.
City officials took the novel step of filing an anti-SLAPP (Strategic Litigation Against Public Participation) motion, alleging that CCS violated the rights of the council majority.
The anti-SLAPP law aims to prevent plaintiffs from suing defendants with the goal not of winning the lawsuit but of silencing free speech and warning others not to cross the plaintiff. Targets could include a single homeowner or group opposing a major development project.
By filing the anti-SLAPP action, the city is claiming that the lawsuit brought by CCS is frivolous and that it is only an attempt to intimidate and stifle the free speech rights of the elected officials.
Kim Lefner, editor of Community Common Sense, told WND: “The anti-SLAPP suit against us is ridiculous. The city council is essentially trying to make the case that it has a First Amendment right to deny us our First Amendment rights. It is almost laughable.”
While city officials are claiming the case brought by CCS is without merit, CCS already won in an initial hearing in which a judge ordered the city to allow the newspaper vending machines again.
A number of states, including California, have passed anti-SLAPP laws to empower citizens. The act of elected officials SLAPPing citizens is what is raising eyebrows.
“The SLAPP suit is not designed to win in court, but a win is defined as successfully silencing opposition to the project. They are really powerful to that end as no one wants to be sued because you have to spend money defending oneself, so people clam up,” said Steve Kling, an attorney specializing in property law.
Wayne Tate, an attorney who is advising CCS, said: “They can’t undo what they did, and they should be held accountable for violating the First Amendment rights of my client, other news publishers and the residents of SJC who have the right to read and access news publications on public property.”
SLAPP laws allows the victim of a SLAPP to stop all action by the plaintiff by flipping the question on the plaintiff. The one doing the SLAPPing at that point has to defend why he is suing and prove that the suit is not a violation of the First Amendment rights of the defendant.
The anti-SLAPP suit against CCS is not the only intimidation the publication us getting from public officials.
Alvin Ehrig, a volunteer for CCS, claims he witnessed stacks of CCS newspapers being thrown in the trash by a volunteer worker at the San Juan Capistrano Senior Center. He approached a person in charge and informed her of the actions of the volunteer. In a sworn statement, Ehrig said, “She told me how much she hated [CCS] and that it had no place at the Senior Center.”
Other publications were left untouched and on display by the volunteers.
At a later date, Ehrig placed a stack of CCS newspapers next to other publications at the senior center.
His statement explained that shortly thereafter, Orange County sheriff’s detectives appeared at his home.
“They accused me of threatening a [San Juan Capistrano City] employee, which I adamantly denied.”
The detectives then warned him “not to put CCS newspapers on any city property.”
The detectives who appeared at Ehrig’s home are not the only officers who are in support of the city government’s newspaper ban.
The Orange County Sheriff’s Union has shown its support by making a $5,000 contribution to Councilman Sam Allevato to fight an effort to gather enough signatures to recall the councilman.
Allevato faces recall in response to several grievances, including his use of city funds to hire the attorney who filed the anti-SLAPP suit against CCS. Volunteers are currently collecting the required signatures to place the recall on the ballot.
The fact that the newspaper ban was passed in a closed session also has raised concern.
The Orange County Coalition for Freedom of Speech researched the way the newspapers were banned and found the process to be almost more upsetting than the ban itself.
The organization claims the council majority held a vote on the ban in violation of the “Brown Act,” which requires certain public actions to be held in public. It also was passed without prior notification required by law, the coalition says, and the council failed to properly inform the public after passage in open session.
Kevin Richardson of the South Orange County 912 organization told WND: “No matter where you are, you must make your voices heard. If we don’t all join together to stop this, other cities and other news publications will be next.”