A proposed law being considered Thursday by the Fresno City Council would criminalize newsgathering by organizations like The Fresno Bee. It violates the First Amendment and should be rejected out of hand.
How might Fresno City Hall be running afoul of one of the nation’s most cherished laws? Here’s the background:
Councilmen Garry Bredefeld and Mike Karbassi, joined by Mayor Lee Brand, are proposing to make it illegal for “any person, including city officials and employees,” to disclose any information that comes under the banner of attorney-client privilege with anyone deemed “unauthorized.” Both current and even former city officials and employees would be covered by the ban.
Second, the ordinance would also make it illegal for anyone who gets such information to share it. Both violations would be misdemeanors and subject to penalties.
The Bee recently published a story about City Manager Wilma Quan threatening legal action against the city and demanding an investigation into a council member who she contends has created a hostile work environment. The story was based in part on privileged information The Bee obtained.
Karbassi said that story did not spur this new measure. Rather, he says it is needed to stop leaks and protect taxpayer money.
The measure is tailored in some respects after laws in San Francisco and Oakland, which both outlaw disclosure of confidential information. Those laws only deal with sources leaking the information.
On its face, that might seem reasonable. Serious matters get discussed in closed sessions, such as personnel disputes or lawsuits against the city.
But it does not take much study to realize the law would be an unconstitutional overreach. The First Amendment says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” (Italics added)
Even when news organizations act irresponsibly, the U.S. Supreme Court has upheld their right to publish or broadcast without being limited by government. In the case of Florida Star vs. BJF, the court ruled that the Star, a tabloid, was protected by the First Amendment even after it accidentally published the identity of a rape victim. That person sued the newspaper in a civil action, but was denied by the court when it sided with the paper under its First Amendment rights.
Under the logic of the proposed law, the Pentagon Papers would never have come to light and the nation would not have learned about how badly the Vietnam War effort was going. A whistleblower of his time, Defense Department analyst Daniel Ellsberg, thought Americans should know what was happening, and so did The New York Times, which published articles based on the information. The Times and Washington Post joined forces to argue the right to publish, and the Supreme Court ruled the publication was justified under the 1st Amendment.
While the Fresno law’s proponents might believe it is narrowly tailored to only things under attorney-client privilege or closed sessions, a question will be how it gets interpreted by future councils and city attorneys. For example, if a city attorney is copied on all the emails council members send, do those emails fall under the privilege? Emails can reveal details relevant to how well a council member is performing; if those are off-limits because of this law, the public loses a valuable source of information.
If council members get upset that one of their colleagues or a city official improperly leaked information to the press, there are other ways to make the point without bringing a misdemeanor offense. The council could reprimand or censure one of their own, ensuring the public spectacle becomes embarrassing for the offender. In the case of a City Hall employee, the normal disciplinary process should suffice.
The attorney-client privilege allows government to function more efficiently. But seeking to punish the press when it carries out its job is wrong. It is surprising that Karbassi, the newest member of the council who pledged openness during his recent campaign, would join in this effort. The majority of the council should reject this ordinance as written.