Freedom of Speech

A fundamental right so easy to applaud, so very difficult to protect

By Richard McKee

The freedom to express yourself in a public forum, without fear of government censorship, is protected by the First Amendment: “Congress shall make no law ... abridging the freedom of speech.” The Fourteenth Amendment extends this prohibition to the states as well.

As the U.S. Supreme Court has opined, “[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” (Police Department of Chicago v. Mosley (1972) 408 U.S. 92, 95.)

Even when the government creates a public forum for a particular purpose, “Once it has opened a limited forum, however, the State must respect the lawful boundaries it has itself set. The State may not exclude speech where its distinction is not "reasonable in light of the purpose served by the forum” . . . nor may it discriminate against speech on the basis of its viewpoint.” (Rosenberger v. Rector and Visitors of the University of Virginia (1995) 515 U.S. 819, 829.)

Nevertheless, today, government asserts that its own right to speech should trump the free speech rights of individuals. And surprisingly, the courts have agreed. (see Morse v. Frederick (2007) 127 S.Ct. 2618.)

A perfect example was found recently in California’s Orange Unified School District. Within its seven-member Board of Education was a dissident trustee, an oddball with conspiracy theories named Steve Rocco. But he was for openness, for the public being involved in every discussion, and as such he refused to attend the Board’s closed sessions.

At the end of one board meeting, after Rocco had learned that the superintendent had used a closed session to tell the board the he had reassigned a high school principal to a nonexistent position, Rocco told the audience that he would have fired the principal, who had received a great deal of public criticism at an earlier meeting, rather than have the public continue to pay him an administrator’s salary.

In response, the superintendent decided to remove Rocco’s comments from a video of the meeting that was distributed to local broadcast outlets for airing to the public. The video provided no notice that the meeting had been edited.

At the next meeting, a majority of the school board expressed its outrage at Rocco’s earlier comments, saying he had defamed the principal and violated both the Brown Act (the state’s open meeting law) and the principal's right to privacy under the California Constitution.

Of course, these were bogus assertions. Rocco’s comments were made during the board meeting, where his criticism of the principal’s performance and the superintendent’s decision are completely protected.

The board then censured Rocco for his negative comments. The board president told Rocco that the “disciplinary action” should be interpreted to mean: “Do not do it again in the future.”

Supported by Californians Aware, an open-government advocacy group, Rocco sued both the board and superintendent. He claimed that he had a right to address district issues at a public meeting and, as an elected official, had a duty to keep the public informed. He told the court that the school district had illegally interfered with his ability to communicate with his constituents: by censoring his comments from the meeting tape; by violating the Brown Act’s prohibition against board action to discourage his criticism; and by violating California’s constitutional protection affording public access to information about district business.

The courts ignored the Brown Act and the Constitution, instead ruling that Rocco’s lawsuit had interfered with the board’s First Amendment right to speak its mind by censuring him, as well as its right to control its own speech by editing the meeting video in any way it wanted. Finally, the court ordered Rocco and his co-plaintiffs to pay the district’s attorney fees, which amounted to about $80,000.

In essence, the court said a government agency can cut out any information from its publications that might cast its decisions in a bad light, and the agency can take any action it wants to discourage elected officials from criticizing administrative decisions.

America’s republican form of government – of, by, and for the people – presupposes that the public will be kept informed as to the issues its government faces and retains the right to instruct their representatives as to the best course of action.

When the courts endorse the government’s right to limit or control the information it provides to the public, they allow the government to control the outcome of decision-making (i.e., Iraq has weapons of mass destruction).

Justice Oliver Wendell Holmes first described the rational for protections meant to ensure an open marketplace of ideas: “The best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which [people’s] wishes safely can be carried out.” (Abrams v. United States (1919) 250 U.S. 616, dissenting opinion.)

By its opinion in Californians Aware v. Orange Unified School District, G038499 (Cal.App. 9/4/2008), the Fourth District Court of Appeals authorized school boards to distribute to the public: state test score summaries absent scores from under-performing schools, tapes of board meetings with all of the negative public comments deleted, and financial reports with evidence of any fraud removed.

The concern here is historically simple. Those holding power don’t always have our best interests at heart; and power is protected by controlling what information is released.

In a public forum, government speech should never trump individual speech rights. And government speech must never include the selective release of information meant to mislead the public.

The California Legislature should move quickly to enact new law that condemns the courts for ignoring the people’s constitutional right to an open government and freedom of expression, ensures the opinions of elected officials may not be abridged nor discouraged and keeps government from distorting information to gain approval from the people.

In formulating educated opinions on how its government should act, the people’s right to an open marketplace of ideas must be preserved.

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