California cops threaten local reporting watchdogs
Originally published in California Publisher, Spring 2020.
by Jason Shepard
Two legal battles over local reporting in California are a reminder that basic press freedoms can’t be taken for granted, especially as local news faces existential threats to its survival.
In San Francisco, freelance reporter Bryan Carmody had his home and office raided by local police and the FBI after he sold stories about the death of the city’s elected public defender. The raid was a breathtaking end-run around legal protections for journalists and their confidential sources.
And in Orange County, bloggers Joshua Ferguson and David Curlee are facing a publication gag to stop their blog, Friends for Fullerton’s Future, from reporting on documents about local police scandals. A superior court judge has twice upheld the sweeping prior restraint, but an appeals court has blocked it each time.
Both cases raise questions about press freedom in the digital age, especially as non-traditional journalists increasingly serve “the checking value” of the First Amendment.
In both cases, local watchdogs reported about documents that local government officials didn’t want disclosed.
The cases highlight a tension present in most watchdog reporting: while the government has legitimate reasons to keep secrets, journalists have a duty to expose them when it’s in the public interest.
Courts have ruled that the First Amendment does not require the government to make everything public. But courts have also ruled that once government documents spill out to journalists, the First Amendment doesn’t allow the genie to put back into the bottle.
Defending press freedoms at the local level is especially important as local news faces an existential crisis.
About 20 percent of all metro and community newspapers have closed or merged in the last 15 years, according to a study by the University of North Carolina.
More communities are becoming “news deserts” in which citizens are increasingly uninformed about the workings of their communities. A recent study by the Brookings Institution found that more than 60 million residents live in a county with no or only one local newspaper.
“A vibrant responsive democracy requires enlightened citizens, and without forceful local reporting they are kept in the dark,” says a recent report from PEN America titled “Losing the News: The Decimation of Local Journalism and the Search for Solutions.”
A city seeks a prior restraint
The Fullerton prior restraint case began on election night in November 2016.
At about 1:30 a.m. on Nov. 9, 2016, Fullerton city manager Joe Felz allegedly left election parties downtown and drove his car into a tree on his way home. Felz tried to flee with a flat tire and broken bumper and didn’t stop when an officer first tried to pull him over, according to reports.
After Felz identified himself as the city manager, Sgt. Rodger Jeffrey Corbett was called to the scene and took over the investigation. After consulting with the police chief at home, the sergeant made no arrest and drove the city manager home, reports say.
Felz was put on leave and retired six weeks later. Prosecutors eventually charged Felz with driving under the influence, and he pleaded guilty to reckless driving involving alcohol.
A local blog called Friends for Fullerton’s Future suggested the case was evidence of corruption in the police department and city politics, and it filed a complaint that led a broader investigation. The Orange County District Attorney’s office convened a grand jury investigation into the Fullerton Police Department, and prosecutors eventually charged Corbett with a felony count of falsifying a police report in the Felz case. Corbett’s criminal case is pending.
The blog also filed public records requests, including for police reports about police misconduct claims and body cam footage of the Felz incident. The city complied with some requests, releasing them using Dropbox.
But apparently the city didn’t practice good security measures on its Dropbox links. Allegedly, the bloggers found they could access dozens of other documents, including some released publicly.
After the blog began publishing stories from the documents, including about other cases alleging misconduct by the police, the city sued, seeking a court injunction prohibiting the blog from reporting the documents and seeking their return.
“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,” the city has argued in court filings.
Fullerton alleges that the bloggers broke the federal Computer Fraud and Abuse Act and California’s Comprehensive Computer Data Access and Fraud Act. Both laws criminalize computer hacking, while courts differ on how broadly they cover other “unauthorized” uses of computer systems.
Kelly Aviles, the blog’s lawyer, has argued the bloggers did not violate the computer laws because the files were made available to the public by the government’s actions.
Aviles argues the case does not meet the high bar for prior restraints set by the First Amendment.
The case has garnered significant coverage from the Voice of OC and editorial support from the Orange County Register.
“Instead of putting their taxpayers on the hook for a costly legal battle, Fullerton officials need to end this counterproductive lawsuit, own up to their own mistakes and stop using public resources to attack cherished First Amendment freedoms,” the Orange County Register wrote in an editorial.
The case is currently before the Fourth District Court of Appeal.
Police raid a journalist’s home
The San Francisco case began on Feb. 22, 2019, when the city’s elected public defender, Jeff Adachi, died unexpectedly.
Adachi had been an outspoken critic of police, and the circumstances of his death were initially suspicious. Medical reports later indicated Adachi, 59, died of a heart attack.
Bryan Carmody, a freelance stringer, obtained police reports of the death investigation and sold stories to three local TV stations. Family members and co-workers said the leaks impugned Adachi’s reputation by suggesting he was having an affair.
In April, San Francisco police asked Carmody to identify the leaker. California’s shield law protects journalists from compelled disclosure of confidential sources, and Carmody declined.
A month later, police and the FBI obtained search warrants for Carmody’s home and office. Police used a sledgehammer to break through Carmody’s front door, searched the home by gunpoint, and kept Carmody in handcuffs for six hours. Police demanded to know the identity of Carmody’s source, which he refused to provide.
The raid was unprecedented.
“No-knock, forced entry search warrants of a journalist in a leak hunt are exceedingly rare,” wrote the Reporters Committee for Freedom of the Press. “(We are) not aware of a similar case.”
The Reporters Committee, along with the First Amendment Coalition and the Northern California Chapter of the Society of Professional Journalists, intervened in court, seeking first to unseal the search warrant applications and returns and then to quash them.
Five different judges quashed all of the warrants, ruling police violated California’s shield law. San Francisco’s police chief apologized, and in March 2020, the city of San Francisco paid Carmody $369,000 to settle his legal claim.
“This was a shame to the city and county of San Francisco,” supervisor Aaron Peskin said in a statement. “I hope that we never in this town ever again suppress the rights of the free press.”
Conclusion
The First Amendment protects press freedom in part because it serves as a powerful antidote to corruption and abuses of power, scholar Vince Blasi wrote in “The Checking Value in First Amendment Theory” in 1977.
In scrutinizing local governments, journalists exemplify Blasi’s checking value theory. This notion has been regularly embraced by the U.S. Supreme Court.
Journalists act “as a powerful antidote to any abuses of power by government officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve,” the Court wrote in 1966 in Mills v. Alabama.
The Court first upheld the strong presumption of constitutionality of prior restraints in 1931, in the landmark decision Near v. Minnesota.
“(T)he primary need of a vigilant and courageous press, especially in great cities,” is needed to “scrutinize malfeasance and corruption” in government, wrote Chief Justice Hughes. “The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct.”
Jason M. Shepard, Ph.D., is chair of the Department of Communications at CSU Fullerton. His primary research expertise is in media law, and he teaches courses in journalism, and media law, history and ethics. Contact him at jshepard@fullerton.edu or Twitter at @jasonmshepard.
