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Attorney: Newspaper Violates Councilmen's Right to Free Speech

In a twist, a San Juan Capistrano assistant city attorney said council members' votes are protected under the First Amendment.

A Common Sense news rack in front of the San Juan Capistrano City Hall.  Patch photo credit: Penny Arévalo
A Common Sense news rack in front of the San Juan Capistrano City Hall. Patch photo credit: Penny Arévalo

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.

“[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.

Sunshine February 03, 2014 at 03:19 PM
As a matter of fact, Christie, Deborah Pauly was one of the caricature figures in that disgusting flyer. She was drawn in a circus ringmaster outfit, wielding a whip. Deborah will get to address and respond to that piece of trash mailed to all SJC residences. It's sad that people have to come together to support and defend our First Amendment. Who would think that three city councilmen (Allevato, Kramer, and Taylor) would violate it and ban newspapers??
Donna Fleming February 03, 2014 at 07:01 PM
Protection rackets have been around forever. Our mayor wants to protect us from the articles published in Capistrano Common Sense? Researching Protection Rackets, I found Regulatory Capture. Definition: Regulatory capture is a form of political corruption that occurs when a regulatory agency, created to act in the public interest, instead advances the commercial or special concerns of interest groups that dominate the industry or sector it is charged with regulating. Regulatory capture is a form of government failure; it creates an opening for manipulation of municipal companies, like the water company, that are financially injurious to the public. Our city council, who is supposed to act in the public interest has acted as a regulatory agency for the SJC City Water company, and supports special interest groups like the Open Space Commission. The Open Space Foundation is a non profit organization. Our mayor has a special interest in San Juan Cares an organization with special interests that benefit the Open Space Foundation and the City Water Company.
Sunshine February 03, 2014 at 09:55 PM
And all this benefits and has benefitted Sam's rich buddies in the Rancho Mission Viejo Development Company. That area would and could not have been developed without the support of the council majority in SJC who were looking out for their buddies and not the residents of SJC. That area is bigger than Rancho Santa Margarita and will impact our city in negative ways as it already has. Our water situation and our expensive parks in that area are a product of manipulation by the council majority to get RMV built.
Donna Fleming February 04, 2014 at 12:56 PM
Shelly...In response to your long commentary. http://www.youtube.com/watch?v=4php_B1LQiM

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