Attorney: Newspaper Violates Councilmen's Right to Free Speech

Originally published at 4:33 p.m. Jan. 27, 2014. 

It is not the city that violated the First Amendment rights of newspapers to place racks at San Juan Capistrano City Hall but a local watchdog newspaper that is violating the free speech rights of the majority councilmen and city attorney, say legal papers filed in the news rack lawsuit.

While Community Common Sense was able to secure a court order that cleared the path for the return of its news racks at City Hall and the Community Center in December, the underlying litigation presses on.

In papers filed last week, Assistant City Attorney Philip Kohn argues that City Attorney Hans Van Ligten and Councilmen Larry Kramer and John Taylor, along with Mayor Sam Allevato, should have their names removed from the lawsuit.

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“[People] have a right not to be dragged through the courts because [they] exercised [their] constitutional rights,” writes Philip Kohn, an assistant city attorney representing the councilmen and Van Ligten. Bracketed and highlighted parts included.

Kohn says voting in closed session to ban newspaper racks – even though he denies such a vote took place – is an act protected by the First Amendment.

“[A]ny of the City Councilmembers’ statements, including an alleged vote, that were made in closed session on Aug. 6, 2013 constitute protected speech,” Kohn writes.

The same is true with follow-up letters Van Ligten wrote to area newspapers in response to council direction, Kohn says.

The attorney for Common Sense, Wayne Tate, declined comment.

Without commenting directly in the matter, Terry Francke, general counsel for Californians Aware – which helps citizens understand the laws governing public forums – said groups like his have found similar, so-called anti-SLAPP arguments troublesome. SLAPP stands for strategic lawsuit against public participation.

“Use of the anti-SLAPP motion not only to get citizens’ lawsuits against local government dismissed but to force the losing plaintiff to pay the government’s attorney fees is proliferating in a way that, in my opinion, the Legislature never contemplated,” Francke said.

The Legislature did modify the law so that citizens bringing lawsuits against agencies for violating open meetings or public records laws wouldn’t have to pay legal fees if government officials persuaded a judge their constitutional rights were being violated.

The case at hand, however, is not suit claiming a violation of California’s open meeting laws or the Public Records Act.

The parties will be back in court on Feb. 27 to address a preliminary injunction to extend the life of the December order that allowed the return of the news racks.

Then, the hearing on whether the anti-SLAPP motion is successful is scheduled March 6. Even if successful, the lawsuit against the city as a named defendant  would continue, Kohn acknowledges in his legal papers.