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Court Shuts Down Police Union's Attempt To Bury Reporting On Sheriff's Dept.'s Hiring Of Bad Cops, Thieves And Sex Offenders (Legal Issues)

by Tim Cushing

from the shut-up,-they-motioned dept on Thursday, July 30th, 2015 @ 3:21PM

Late in 2013, the LA Times published information from applications processed by the Los Angeles Sheriff's Department that showed the agency was generally unconcerned by past misconduct and illegal behavior by applicants -- especially if those applicants were former police officers or prison guards. This is the government's other revolving door, one that ensures a bad cop won't stay jobless for long.

The local police union and members of the Sheriff's Department tried to get a court to agree to some prior restraint in hopes of preventing this information from being made public. According to the lawsuit, the documents were "stolen" and, as stolen property, the LA Times had no right to hold onto it, much less publish it.

Of course, this assertion is wrong on multiple levels, starting with the fact that it's not illegal for journalists to publish stolen documents. If it was, hundreds of journalists would be in jail. The law cited by the union only prevents law enforcement officers from stealing or disseminating this information. On top of that, while the lawsuit alleged the documents were stolen, no evidence was provided to back up this claim.

This attempt to prevent information of public interest from reaching the public was greeted with an anti-SLAPP motion from the LA Times. This was sustained by the lower court, which found the plaintiffs' arguments severely deficient.

The court noted the Doe declarations ALADS submitted “contain no personal details about the declarants that would relieve them of the obligation of identifying themselves, particularly when the declarations contain the hearsay statement of defendant Faturechi concerning when the article is going to be published and what it will contain -- the evidence most critical to the showing of irreparable harm or immediate danger that plaintiff must make to justify ex parte relief.” The court also observed, “The declarations are also very vague in their reference to the personal information that Faturechi told the declarants he would be publishing.” The court “decline[d] to issue a TRO imposing a prior restraint on defendants’ free speech based on the speculative hearsay testimony of anonymous witnesses.”

The court denied the application on the additional ground that ALADS -- by its own admission -- had known for weeks if not months that the Times had information from the OPS/LASD deputies’ files, that notwithstanding this knowledge it had not proceeded by noticed motion, and therefore that “any exigency appear[ed] to be of [ALADS’] own making . . . . ”
This, of course, led to an appeal.

The appeal, even if successful, would have been a lost cause. By the time it reached the California appeals court, the information had already been published. Once prior restraint was denied, the only thing left for the plaintiffs to do was find some way to punish the paper for its act of journalism.

The appeals court is similarly unmoved by the plaintiffs' post-publication arguments, which are pretty much mostly a repetition of its previous failed arguments, with the addition of the assertion that the LA Times shouldn't have been able to invoke anti-SLAPP laws because it was trafficking in "stolen" material. Again, the appeals court agrees with the finding of the lower court -- that the plaintiffs make a lot of accusations, but can't seem to be able to back them up.
ALADS asserts the trial court erred in finding the Times had met its burden on the first step of the analysis because the Times obtained the LASD files “through criminal means.” ALADS repeats the allegation from its complaint that the Times reporter “stole, received from someone else who stole, or otherwise unlawfully came into physical possession of the confidential background investigation files...” As the trial court correctly observed, ALADS has presented no admissible evidence that Faturechi or anyone else at the Times stole anything.
And even if the documents were indeed stolen, the LASD officers and police union can't seem to find anything that indicates a law was broken by the LA Times' publication of the material.
ALADS cites -- and miscites -- various statutes it contends are violated by Faturechi’s mere possession of the records. For example, ALADS asserts that section 6200 of the Government Code makes it a crime for “any person” to steal, remove, or secrete “official government documents.” But the statute does not say “any person.” It says “[e]very officer” who has custody of a record “deposited in any public office” shall not steal, remove, secrete, destroy, mutilate, deface, alter, or falsify the record or permit another person to do so. The section is entitled “Custodial officers; theft, destruction, alteration, falsification.” Similarly, ALADS claims Government Code section 3307.5 “makes it illegal, as a matter of law, for anyone” to release a photograph of a peace officer to the public. In fact, that statute concerns officers’ relationships with the agencies that employ them. It says officers shall not be “required as a condition of employment” to consent to the use of their photographs on the Internet.
The court also addresses the "privacy violation" arguments advanced by the police union and the anonymous Doe plaintiffs, finding them similarly weak.
The first problem with ALADS’ argument is that any privacy right in the information contained in deputies’ employment applications belongs to the deputies (and their employer, LASD), not to the deputies’ labor union. “It is well settled that the right of privacy is purely a personal one; it cannot be asserted by anyone other than the person whose privacy has been invaded, that is, plaintiff must plead and prove that his privacy has been invaded.”
Finally, the court takes on the union's claim that its attempted prior restraint wasn't really prior restraint.
[T]he injunction ALADS seeks would not be “content-neutral” at all. ALADS asks the court to enjoin the Times from publishing any article containing any information in 16 listed categories, including the names of any OPS/LASD deputies, their photographs, and their “non-public criminal history.”

In sum, ALADS has cited no case permitting the kind of injunction it seeks here, to restrain a newspaper from publishing news articles on a matter of public concern: the qualifications of applicants for jobs as law enforcement officers. ALADS has cited no case because there is no such case. For more than one hundred years, federal and state courts have refused to allow the subjects of potential news reports to stop journalists from publishing reports about them.
Which is all this actually is. The police union and the Doe officers, too concerned about their reputations to put their name on the lawsuit, wanted nothing more than to bury unflattering information. Neither the union nor the officers seemed to have any problem with former officers fired for misconduct or illegal behavior being allowed back into positions of authority and power, but they had a serious problem with the LA Times letting the public in on its dirty secrets. Fortunately, two consecutive courts refused to buy the plaintiffs' censorious, malformed arguments.



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Judge Bars Anti-Abortion Group From Releasing Video... Raising Serious First Amendment Questions (Free Speech)

by Mike Masnick

from the have-you-heard-of-prior-restraint dept on Thursday, July 30th, 2015 @ 1:55PM
What is it with judges and prior restraint lately? A judge in a Los Angeles Superior Court has issued a temporary restraining order blocking an anti-abortion group from releasing a video. And, yes, obviously, anything involving abortion is going to be controversial, no matter what your stance on the issue is -- and this also involves the same group that made plenty of headlines recently over some other videos involving Planned Parenthood. I'm hoping that folks here will pay attention to the First Amendment issue, rather than get into any sort of ideological argument over the parties involved or their campaigns because you're not going to convince anyone, no matter what side you're on, and you're likely to just piss everyone else off -- so leave those debates for other sites please.

Instead, the real question here is whether or not a court can actually do this. As per usual, Popehat has a good post detailing why this is most likely unconstitutional prior restraint, but might not be. Kinda. Sorta. Barely.

You can read the filing for the restraining order (h/t to Adam Steinbaugh who dug out the complaint), which comes from a life sciences company named StemExpress, and makes all sorts of claims, which can basically be summed up as "we thought our conversations were private!" And you can read the actual temporary restraining order, which is much more limited than what StemExpress requests.

It appears the crux of the argument is (1) that California is a two party consent state for recordings (which is stupid, but that's another issue for another day) and (2) the representatives for the faux company who were actually a part of this group that set up the meeting signed a non-disclosure agreement. The first part probably doesn't much matter for the question of the restraining order (it absolutely could lead to other legal issues and problems for the group that made the recording), as it's still a form of prior restraint. The second issue, however, is at least a bit more compelling because one could make an argument that the group that made the recording proactively waived their First Amendment rights in signing that agreement -- and thus the court was effectively enforcing the agreement that the parties had agreed to themselves.

Still, as Popehat notes, there is woefully little discussion of the First Amendment/prior restraint questions:

Remarkably, StemExpress' TRO application contains no prior restraint analysis whatsoever. Its sole concession to the First Amendment is an argument that (1) this isn't a First Amendment violation because it's an illegal recording, and (2) it's not a First Amendment violation because the defendants are free to speak or write about what happened at the meeting, they just can't release the recording. We don't have a transcript of the hearing, and we don't know what other arguments the court may have considered, but this is troubling.

In my opinion, StemExpress could have made a decent argument if it had focused on the apparent fact that CMP signed nondisclosure agreements and then violated them. First Amendment rights are broad, but can be deliberately waived. That's why confidentiality and nondisclosure agreements are often enforceable. While the state of the law isn't perfectly clear, there's a colorable argument that threatened breach of a nondisclosure agreement may be a basis for prior restraint if the underlying confidentiality interest is strong enough. It's not a bulletproof argument, but it's much better than ignoring the prior restraint issue entirely.

In sum: if the court based the prior restraint on a violation of California's secret-recording law, I think it probably violates the First Amendment. But the order might be sustainable because CMP engaged in the dubious practice of signing a pledge of confidentiality with the intent of breaking it.

Of course, Popehat also notes that if the group already gave the video to someone else -- such as a journalist -- the court can't block that group from releasing it, as that is definitely prior restraint.

In short, chances are that this video is going to get out no matter what eventually -- and to some extent, this lawsuit and request for a restraining order is only likely to draw more attention to the whole thing in the first place (and the fact that StemExpress doesn't want it to come out).

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New Zealand Prime Minister Admits Drug Prices Will Rise Under TPP -- Leaves Out The Part About More People Dying (Failures)

by Mike Masnick

from the gotta-help-out-those-corporate-interests dept on Thursday, July 30th, 2015 @ 12:33PM
As we're in the middle of crunch time for the final TPP negotiations, New Zealand's Prime Minister John Key has finally admitted what many experts have been saying for years -- that under the TPP, drug prices will undoubtedly rise, because it extends monopoly protections on important medicines. Key tries to play this off as no big deal, because it's the government paying for the medicine so the public won't notice (leaving aside the fact that it's their tax dollars). However, folks who actually understand basic economics note that, when the price goes up, access to drugs gets more difficult even in New Zealand, where it's noted that some key life saving drugs have not been made available because they're too expensive. One doctor in New Zealand talked about how other expensive drugs are not available:
He said 300 people died of malignant melanoma each year. Patients would benefit from using the new drug but it cost $100,000 to $200,000 annually for each person. In total that would cost the drug-buying agency Pharmac $30 million to $60 million a year.

Dr Fitzharris said that under TPP it was likely getting access to these new, more effective drugs would be delayed even further.

Medicines New Zealand says the most recent OECD report shows New Zealand comes last out of 20 countries when it comes to access to new medicines.
Back in the US, even a bunch of Congresscritters who voted in favor of giving the USTR fast track authority appear to be having a bit of buyer's remorse as they've asked the USTR to explain why it appears the current draft of the TPP will make drugs more expensive rather than less.
We are concerned that the TPP would fail this scrutiny if it does not meet or exceed the standards set under the May 10th Agreement, reached by House Democrats and the Bush White House in 2007, with respect to timely access to affordable medicines in developing countries.
And even the AARP has stepped in to point out that it appears the TPP is going to make it more difficult for the US elderly to afford drugs:
Specifically, AARP objects to intellectual property provisions in the draft TPP agreement that unduly restrict competition by delaying consumers’ access to lower-cost generic drugs. These anticompetitive provisions include extending brand drug patent protections through “evergreening” drug products that provide little to no new value and prolong high prescription drug costs for consumers, linking approval to market generic or biosimilar drugs to existing patents in a way that protects only brand drugs, and increasing data exclusivity periods for biologics that further delays access by other companies to develop generic versions of these extremely high-cost drugs. These provisions are all designed to ensure monopoly control by brand-name drug companies.
How can the USTR and the Obama administration continue to insist that the TPP is in the public interest when it's abundantly clear that it's in the pharmaceutical companies' interests instead?
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Google To French Regulators Looking To Expand 'Right To Be Forgotten' Globally: Forget About It (Free Speech)

by Mike Masnick

from the forget-you dept on Thursday, July 30th, 2015 @ 11:22AM
Earlier this summer we wrote about some ridiculous demands coming out of France, asking that Google expand the "right to be forgotten" globally. As you hopefully already know, last year, a European court came out with a troubling ruling that required Google into a sort of "right to be forgotten" situation, where links associated with someone's name that were magically deemed no longer relevant, needed to be "de-linked." Google reluctantly complied, and has since been busy de-linking many individuals from totally factual news stories about them. But, given that this was the law in Europe, it only did so in Europe.

That resulted in the complaint from France -- to which Google has now responded by saying it will not comply with a global right to be forgotten, because the results would be catastrophic for free speech and the open internet:
This is a troubling development that risks serious chilling effects on the web.

While the right to be forgotten may now be the law in Europe, it is not the law globally. Moreover, there are innumerable examples around the world where content that is declared illegal under the laws of one country, would be deemed legal in others: Thailand criminalizes some speech that is critical of its King, Turkey criminalizes some speech that is critical of Ataturk, and Russia outlaws some speech that is deemed to be “gay propaganda."

If the [French regulator's] proposed approach were to be embraced as the standard for Internet regulation, we would find ourselves in a race to the bottom. In the end, the Internet would only be as free as the world’s least free place.

We believe that no one country should have the authority to to control what content someone in a second country can access. We also believe this order is disproportionate and unnecessary, given that the overwhelming majority of French internet users—currently around 97%—access a European version of Google’s search engine like google.fr, rather than Google.com or any other version of Google.
I can't see into the future, but I'll take a wild guess and suggest that the French regulators aren't going to just back down following this response, no matter how reasonable and rational it is. European regulators continue to seem to think the internet can be twisted, censored and molded in their own interest, and don't seem to understand just how badly that will backfire. It's likely that this simple explanation will fall on deaf ears and there will soon be a big fight over this. Stay tuned.
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DA Claims He'll Charge Drone Operators Near Wildfires For Murder (Legal Issues)

by Mike Masnick

from the really-now? dept on Thursday, July 30th, 2015 @ 10:16AM
Should someone who flies a drone near a wildfire be charged with murder if someone dies in that fire? At least one California District Attorney is insisting he's going to bring such charges should that situation occur.

It's wildfire season out here in California, and the story of the summer seems to be about drones and wildfires. There have been a whole bunch of stories about private drones somehow interfering with firefighting aircraft. The stories are almost always extremely vague with very few details. It's entirely possible that these stories are completely accurate -- and I certainly don't deny that it's possible that a drone could interfere with firefighting aircraft in some manner. However, something about these stories really has the feel of your typical local news exaggeration/moral panic. The coverage is always by local TV news reporters. The details are slim, but the moral panic aspect is ratcheted up quite high.

And... soon after, politicians and grandstanding law enforcement get involved. I have no problem with something like an education campaign about the potential dangers of flying drones near wildfires and how they could hinder firefighting efforts. That seems perfectly reasonable. But politicians are not just looking to educate, they're offering a $75,000 bounty for identifying such drone operators and proposing a new law that would make flying a drone over a forest fire a federal offense with fines and up to five years in prison.

And... that's not all. In the press release from San Bernadino County that offers up that $75,000 bounty, the local District Attorney Mike Ramos says that he'll go after drone operators with murder charges if people die in a fire "due to" the drone operations:
District Attorney Mike Ramos warned drone operators that they could and would be prosecuted for murder if their drones led to the death of a fire-fighting flight crew or anyone on the ground.
Of course, determining that a drone "led to the death" of anyone seems like a pretty big stretch -- and as far as I can tell, in all of the hysteria of drones and wildfires in the last month or so, there have been no deaths at all. But it seems like a huge stretch to argue that flying a drone over a fire can lead to murder charges. In the past, murder charges related to fires have been focused on things like arsonists who deliberately set the fire, rather than those who were just looking to observe or film the fire, and through their own ignorance got in the way of firefighting efforts.

Again, this isn't to diminish the possibility of real risks and potential damages from drones interfering with firefighters, but so much of this reads like a typical local news moral panic, and tossing in the threat of murder charges for flying a personal drone to observe a wild fire seems to go beyond any sense of reason. It feels like law enforcement issuing a bogus threat to try to sound serious.

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