Roundup: Broadcasters call suspension of ‘political attack’ rules stall tactic

Friday, October 6, 2000

Broadcasters asked a federal appeals court yesterday to throw out
rules that require them to give candidates a chance to respond to personal
attacks and political endorsements. The National Association of Broadcasters
and the Radio-Television News Directors Association filed the motion with the
U.S. Court of Appeals for the District of Columbia a day after the Federal
Communications Commission suspended the rules. The groups called the FCC's
action a stall tactic. The NAB and RTNDA had mounted a legal challenge to the
rules, and in August 1999, the appeals court returned the rules to the FCC for
further justification. A majority of the agency
voted Oct. 4 to put the rules on
hold for two months to collect information before deciding its next course
of action. The agency has asked broadcasters to provide information at the end
of the two months on the number of political editorials run compared with
previous election cycles and on complaints about personal attacks. But the NAB
and RTNDA say the commission has shifted its burden of justifying the rules to
broadcasters. “If the FCC judges that there have been too 'few' political
editorials … the FCC will take that as evidence that the rules do not chill
much speech,” the groups wrote. “If there are 'too many' editorials, then
presumably the FCC will either find a 'problem' warranting a right of reply, or
it will suggest that the 'test period' is tainted because broadcasters knew
they were under scrutiny.” The FCC declined to comment. Associated Press

California: Audit finds state agencies routinely ignore
public-records laws

An audit of government agencies in California shows that some, such as
police departments and school districts, denied people access to information
that is clearly defined in state statutes as public. The audit was conducted by
the California First Amendment Coalition and the Society of Professional
Journalists. University journalism students sought records at more than 130
local government agencies in the San Francisco Bay area and Southern
California. According to the audit, police departments denied oral requests 80%
of the time. Police were closely followed by cities, which rejected 79% of
requests, and school districts denied 72%. When oral requests were followed up
by written requests that cited the state's disclosure statutes, the audit shows
that police departments denied 64%, cities 60% and school districts 33%.
Students asked sheriffs departments for copies of reports to the attorney
general detailing the circumstances of deaths of people in custody; police
departments were asked for logs of 911 emergency calls; school districts were
asked for expulsion records; and cities were asked for copies of notices to
landlords for health or safety-related code violations that left their premises
considered “unfit for human occupation.” All of the documents asked for are
public under California's Public Records Act, according to the First Amendment
Coalition. Associated Press

Arkansas: State school association warns local districts on prayer

The Arkansas School Board Association is warning its members to not
ignore the U.S. Supreme Court ruling that outlaws officially sanctioned prayers
before school athletic events. Paul Blume, general counsel for the association,
told members attending a regional ASBA meeting last week that if they violated
the ruling, they could be sued. Because of a pair of U.S. Supreme Court
decisions — this year's and one in 1992 — the ASBA has advised
school boards “not to permit prayers over public address systems at athletic
events, graduation or other events which include a congregation of students on
the school's property.” Gary Kees, superintendent of the White Hall School
District, says students and patrons in the district would continue to pray
before athletic events until the district are challenged. Associated Press

Tennessee: Nashville newspaper sues state for execution

The Tennessean and reporter John Shiffman filed a
lawsuit on Sept. 27 in Davidson County Chancery Court to get the state to
release videotapes of the events preceding the execution of convicted killer
Robert Glen Coe. They say the tapes are public records, but correction
officials say the tapes are confidential under state law because they “identify
persons directly involved in the execution process.” The tapes show Coe being
taken from his cell in the “Death Watch” unit at Riverbend Maximum Security
Institution to his execution, according to a July 31 letter from Correction
Department spokesman Steve Hayes. The newspaper, which is seeking edited
versions that hide the identities of people involved, is publishing a series of
stories on events leading up to the execution. Coe, 44, was the first person
executed in Tennessee since 1960. He was killed by lethal injection April 19
for the 1979 kidnapping, rape and murder of 8-year-old Cary Ann Medlin.
Associated Press

California: News groups renew quest for sealed court

Now that Cary Stayner, a motel handyman, has been convicted of killing
a Yosemite naturalist, a coalition of news organizations has renewed its
request for sealed court documents in the case. The Associated Press, Chronicle
Publishing Co., McClatchy Newspapers, Inc, the Hearst Corp., and Knight Ridder
Inc. had been seeking access to a government proffer of evidence that
prosecutors proposed to use to prove Joie Armstrong was killed in “an
especially heinous, cruel and depraved manner,” one of the statutory
aggravating factors that support a death sentence. The group is arguing that
the grounds for keeping the proffer from public view — protecting the
defendant's right to a fair trial — became moot when Stayner pleaded
guilty. The overlapping federal and state jurisdictions will complicate the
First Amendment issues U.S. District Court Judge Anthony Ishii will have to
resolve when he hears arguments on the new media motion Oct. 23 in his Fresno
courtroom. Associated Press

Washington: WTO protesters sue Seattle police

Seattle has been hit by another lawsuit over arrests during the World
Trade Organization protests last fall, this time by a public interest law firm
from Washington, D.C. The case filed Oct. 2 on behalf of Jennifer Hudziec,
Stephanie Lane, Kenneth Hankin and Robert Hickey in U.S. District Court accuses
Mayor Paul Schell and police officials of violating the Constitution by
declaring a 25-block downtown area a “no-protest zone” Dec. 1 and 2. Trial
Lawyers for Public Justice asked that the case, which seeks unspecified
damages, be certified as a class action suit on behalf of about 600 people who
were arrested. The no-protest zone was proclaimed by Schell after protesters
clogged streets and blocked WTO delegates from attending meetings. More than 60
damage claims have been filed by protesters accusing the city of civil rights
abuses, and several have been converted into federal or state lawsuits.
Associated Press

Nevada: State high court affirms religious child-rearing

The Nevada Supreme Court has upheld a lower court decision allowing a
divorced southern Nevada couple to teach their children both Jewish and
Jehovah's Witness religious principles. Justices tossed out an appeal by Wendi
Lee Kaufman Dana, who with her former husband, Jeffrey David Kaufman, practiced
the Jewish faith during their marriage and reared their children as Jews. When
they divorced, the couple agreed to raise their children exclusively in the
Jewish faith. But after the divorce, Dana met her current husband, a Jehovah's
Witness, and then became a member of that faith. Her ex-husband then sued Dana,
charging that she failed to abide by the parenting plan. Kaufman also requested
visitation rights with the children on Jewish holidays. Dana countercharged
that Kaufman was restricting her from practicing her religious faith in
violation of the First Amendment. Family court in Las Vegas agreed on Kaufman's
visitation rights and also ruled that Dana could teach the children her
religion when they were with her. Dana appealed the family court decision to
the state Supreme Court, but justices said the new parenting plan generally
favored her because she can instruct the children in her religion on the days
that she has custody. Associated Press

Wyoming: Court asked to decide on public access to
concealed-weapons permits

Attorney General Gay Woodhouse has asked a state court to decide
whether concealed-weapons permits should be made available to the public. The
issue came up when the News-Record
in Gillette asked the Division of Criminal Investigation for the names of
concealed-weapons permit holders in Campbell County and the division refused to
release the information. Ann Franscell, publisher of the
News-Record, said the paper was
pursuing the information for a story it was doing on the growth in the number
of concealed-weapons permits since the law was loosened six years ago. Before
the law changed, applicants had to show cause for a permit. After the law
changed, it was up to law enforcement to show why applicants should not carry a
concealed weapon. Michael Krampner, attorney for the
News-Record in this case, said
Wyoming law presumes openness of government data. But DCI Director Tom Pagel
said keeping the permit holders' names confidential is not unusual. Gov. Jim
Geringer said because no one but law enforcement agencies were mentioned in the
law, a case could be made that no one else should have access to those records.
It is up to the courts to make the final decision, he said. Associated Press

Iowa: Sheriff argues against opening gun permit records

Open records on concealed weapons could put those gun owners at risk,
the Sioux County sheriff said in a letter to about 400 permit holders in
northwest Iowa. Sheriff Jim Schwiesow, who last year said he was prepared to
deputize gun owners in the event of Y2K chaos, asked concealed-weapons permit
holders in his county to lobby lawmakers for changes in state records laws. He
said the current law prohibits any right to privacy and allows information
about the permit to be released to anyone. Schwiesow's letter follows a
newspaper investigation that showed widespread disregard for open-records laws
by local law enforcement officials. Nearly 60% of county sheriff departments,
including Sioux County, denied access to the gun-permit information. The
sheriff said he isn't opposed to releasing a list of names and perhaps
addresses of those who have permits to carry weapons, but doesn't think other
personal information, such as weight and height, should be public. Kathleen
Richardson, executive secretary of the Iowa Freedom of Information Council,
called the sheriff's letter outrageous and said it's designed “to frighten the
people of Sioux County.” “The whole basis of the open-meeting and open-records
laws in Iowa are to promote a presumption of openness in government,” she said.
Associated Press

Kentucky: College students protest designated speech zone

A group of about 20 students gathered at a designated “free speech”
area at the University of Kentucky to demand that freedom of speech be allowed
everywhere on campus. The noon rally on Oct. 3 kicked off a Free Speech
Campaign led by the University of Kentucky Campus Progressive Coalition, which
represents several student activist groups. Currently, free speech is relegated
to an area of about 10,000 square feet on the 678-acre campus. Student
protesters say few people walk through the designated area on the north end of
the campus, which makes it difficult to reach students who want to express
issues and ideas. UK's Dean of Students Victor Hazard defends the institution's
right to establish a free-speech area, noting “crowd control is necessary to
prevent disruption.” But protesters say the practice is oppressive and they are
tired of being silenced. The 10-minute rally ended with protesters tying white
cloths across their mouths, and passing out literature. Associated Press

North Carolina: Federal court strikes down another portion of
state campaign law

The 4th U.S. Circuit Court of Appeals on Oct. 3 struck down another
portion of North Carolina's campaign-finance laws, saying the state cannot use
an advocacy group's intent in determining whether it is a political action
committee. The ruling essentially upholds a lower court decision that Farmers
for Fairness, a hog industry advocacy group, is not a political action
committee, which would have made it subject to spending restrictions and
disclosure rules. However, the court at that time did not address a portion of
the law that allows election officials to use statements by advocacy group
members to determine whether they are trying to influence an election, and are
therefore a political action committee. At issue are the ads run by advocacy
groups, from unions to religious organizations, leading up to elections, which
often mention specific candidates. In the Farmers for Fairness case, former
state Rep. Cindy Watson filed a complaint with state election officials over
ads the group ran. Watson, a Duplin County Republican who supported
restrictions on new corporate hog farms, claimed attack ads run by Farmers for
Fairness were aimed at defeating her and therefore were political ads. The
state Board of Elections sided with Watson, citing statements made by group
members in private referring to her defeat. Farmers for Fairness sued, claiming
the law was unconstitutional. On Oct. 3, the appeals court agreed. Associated

Utah: State appeals court affirms Salt Lake City's cruising

The state Court of Appeals on Sept. 28 unanimously ruled against a
former college professor who argued that Salt Lake City's ban on cruising was
unconstitutional. Ken Larsen, who represented himself in court, said he should
have been allowed a jury trial after he intentionally violated the cruising ban
and was ticketed. He claimed the ordinance is unconstitutional because it
restricts his right to free speech, travel and pursuit of happiness; and that
it denies equal protection to everyone because it ignores the subculture of
cruisers. City prosecutor T. Langdon Fisher said the court's ruling would allow
the ban to continue benefiting residents. In his ruling, Appeals Court Judge
Russell Bench found that none of Larsen's claims was strong enough to undermine
the ban. He wrote the ban does not impinge on free-speech rights because “the
expression of youthful rebellion that Larsen asserts [cruising ...] is not
sufficiently particularized, nor is it likely to be so understood by others,
for it to be classified as the type of speech protected by the First
Amendment.” Since the cruising ban, crime in the State Street core has dropped
dramatically, officials say, and residents say they can sleep at night.
Associated Press

Virginia: State appeals court upholds cross-burning ban

The state's law banning cross-burning does not violate the
constitutional right to freedom of expression, the Virginia Court of Appeals
ruled Oct. 3. The court unanimously upheld the convictions of two white
teen-agers, Jonathan S. O'Mara and Richard J. Elliott, who burned a cross on
the lawn of an interracial couple in Virginia Beach. O'Mara pleaded guilty to
attempted cross-burning and conspiracy to commit a felony and was sentenced to
45 days in jail. However, as part of his plea agreement he reserved the right
to appeal the constitutionality of the law against cross-burning. A jury
convicted Elliott of attempted cross-burning but acquitted him of a conspiracy
charge. He was sentenced to 90 days in jail. Elliott also challenged the law's
constitutionality on appeal. The appeals court said the U.S. Supreme Court has
carved out First Amendment exceptions for “fighting words” and expression that
could incite violence. Associated Press

Ohio: Firefighters sue over mandatory attendance at church

Six firefighters who were required to attend a church service as part
of a community awards ceremony sued the city Oct. 4 over First Amendment
issues. The lawsuit filed in U.S. District Court and assigned to Judge Kathleen
M. O'Malley claimed the fire chief's order violated the constitutional
provision of separation of church and state. The suit says Fire Chief Bryan
Sloan told the firefighters their attendance at Parma Heights Baptist Church
was mandatory for Civic Appreciation Day, during which the congregation was to
give awards to police officers and firefighters in this Cleveland suburb.
Several said they did not want to go, but they were told they would face
disciplinary action for insubordination if they did not, the firefighters said.
The firefighters object to being ordered to attend religious services as part
of their official responsibilities, said Raymond Vasvari, legal director of the
American Civil Liberties Union of Ohio. Associated Press

District of Columbia: High court declines to hear case of
child-porn journalist

The U.S. Supreme Court this week turned away the appeal of a
journalist convicted of trafficking in child pornography while he was allegedly
working on a story on the subject. Larry Matthews of Silver Spring, Md., has
never disputed that he traded about 160 pornographic pictures over the
Internet, but he said that it was part of his research as a freelance
journalist. Matthews, too, said he didn't know it was illegal to send and
receive child pornography. Matthews now faces 18 months in jail. Matthews
pleaded guilty to charges in July 1998, after a federal judge refused to allow
the former broadcaster to argue a First Amendment defense. The 4th U.S. Circuit
Court of Appeals unanimously upheld the lower court's decision. But
press advocates argued that the
court should have at least allowed Matthews to present the First Amendment as a

Lucy Dalglish, executive director of the Reporters Committee for
Freedom of the Press, expressed disappointment with the high court's decision,
saying it would discourage reporting on such illegal industries. Dalglish said
that journalists, particularly freelance ones, should make sure they have their
activities on such reporting well documented, so there isn't any confusion that
they are researching, not participating in the activity. Freedom Forum Online

California: Judge rejects prison guard's retaliation

Judge David Levi has dismissed a civil rights lawsuit filed by a
former prison guard who claimed he was retaliated against after exposing
gladiator-style fights at the facility. After an inmate was fatally shot in
April 1994, Lt. Steve Rigg of Corcoran State Prison and fellow whistleblower
Richard Caruso went to the FBI with allegations that led to a trial for eight
prison guards who were accused of violating the rights of inmates by allegedly
pitting them against each other. A jury acquitted the guards in June. Levi on
Oct. 3 found that Rigg failed to show any evidence that corrections officials
ignored his complaints and created a hostile work environment. Rigg said he
would appeal the decision. Caruso was awarded $1.7 million last year in a
similar civil rights suit charging retaliation at work. Caruso was able to
establish that an internal investigation of him was pursued by the corrections
department after he went to the FBI. Prison authorities granted Rigg a job
transfer to another state prison after he filed complaints about his work
environment at Corcoran. Associated Press

Montana: Commissioners agree to move Ten Commandments, Nativity

Custer County Commissioners have settled a lawsuit filed by the
American Civil Liberties Union of Montana by agreeing to relocate a display of
the Ten Commandments and not display a Nativity scene at the county courthouse.
The agreement says the granite monument displaying the Ten Commandments near
the courthouse entrance will be moved to the facility's west lawn and become
part of “The Evolution of Law” exhibit. The Nativity scene will be transferred
to a private entity. Dan Connors and Janet Kelley, two of the three
commissioners, signed the agreement. The Ten Commandments are engraved on a
large tablet and have been on the lawn year-round for at least 20 years,
Commissioner Duane Mathison said in refusing to sign the agreement. For the
last seven years, the Nativity scene has been displayed from late November
until just after Christmas. Also in the agreement, the county will fund
annually for two years a $150 scholarship for an area student who writes the
best essay on freedom of religion or a famous “lawgiver” in history. Associated

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