THE MESSENGER IS THE MESSAGE: The last person on the planet I want to defend is freelance writer Peter Lance. The last newspaper I’d lift a finger to help is the News-Press. But because Judge Brian Hill clearly overstepped his legal authority last week where the First Amendment rights of these two are concerned, I’m forced to hold my nose. Last Friday, Judge Hill called Lance and News-Press representatives into his courtroom and ordered them not to publish any articles revealing the contents of highly confidential court documents that had come into Lance’s possession. Lance got these documents through no connivance or duplicity. He didn’t hack anyone’s voice mail. Instead, Lance got his hands on these highly sensitive court records because the courts screwed up and gave them to him. Big brain fart. But it’s an even bigger brain fart when a judge issues a gag order on a newspaper. It’s also big news. Do we really want judges telling newspapers what they can and cannot publish? We all have to pick our poisons, and that’s not one I’m willing to swallow. And based on a number of Supreme Court rulings dating back 35 years, I don’t think I’ll have to anytime soon.
When the First Amendment collides with drunk driving and sealed documents
Thursday, July 21, 2011
My beef with the News-Press is well-known. Five years ago, the News-Press sued The Independent in an effort to compel me to reveal the names of News-Press employees who were talking to me about the growing discontent then erupting at the South Coast’s daily paper. On my planet, newspapers are supposed to protect the confidentiality of reporters’ sources at all costs. For the News-Press to have betrayed that principle was the journalistic equivalent of treason. I, for the record, never squawked. A few weeks ago, I wrote a critical column about the five-part series Lance wrote for the News-Press lambasting Santa Barbara Police Officer Kasi Beutel for a host of alleged ethical and legal transgressions in her pursuit of drunk drivers. I opined that Lance’s articles were so utterly one-sided they made readers feel sorry for the cop. I also opined that Lance should never have written the piece given his glaring conflict of interest. Lance had been popped by Beutel earlier this year for driving under the influence. This made it impossible for him to get “the other side,” no matter how many questions he emailed Beutel. As a matter of law, Beutel can’t answer any questions posed by Lance, the journalist, when she happens to be the chief complaining witness against Lance, the criminal defendant. On my planet, that’s just obvious. So obvious that when Lance first approached us to run the story, we turned him down cold. Lance — an intense, intelligent guy who otherwise purports to care about the First Amendment — responded to my column by threatening to sue for defamation.
On April 8, Judge George Eskin held a hearing in his chambers to determine whether Lance — acting as criminal defendant — could get his hands on Beutel’s personnel files to find out how many civilian complaints had been filed against her. It’s a common defense tactic, and for obvious reasons, such police records are intensely protected. By law, judicial deliberations on such motions must be sealed unless countless legal hurdles are first overcome. But somehow, the records of Eskin’s deliberations did not get sealed. In fact, these records were mistakenly handed to Lance. From the court’s perspective, that’s a big hairy deal. When word got out that Lance (the reporter) and the News-Press planned to publish those records as another installment, it got even hairier. That’s when Judge Hill issued his gag rule. To be accurate, Hill did not say Lance and the News-Press could never publish the documents, just that they’d need to secure permission through proper legal channels, whatever they are.
Based on my understanding, the documents showed that as of April 8, no citizen complaints had ever been filed against Beutel. None. Missing from the file, however, was a complaint submitted on April 7 — the day before — by activist and City Council candidate Cruzito Cruz. The cops say it takes a little time before a complaint makes it way from the front door to the Internal Affairs file. Sounds reasonable to me. It’s my understanding Lance and the News-Press intended to cite the omission of the Cruz complaint from Beutel’s personnel file as Exhibit A in their case that the Internal Affairs division is covering up for Beutel. Even for gruel, I’d say that’s mighty thin. Maybe they got more, maybe not. But that’s not the point. Nowhere in the Constitution does it say newspapers have to be fair, informed, balanced, or even competent. To encourage the free flow of ideas — not to mention spit — upon which our allegedly democratic society allegedly depends, even wing nuts, crackpots, blowhards, and bullies need to be afforded untrammeled rights of expression. That’s not just the theory, that’s the law.
The same legal principles that enabled the New York Times to publish the leaked Pentagon Papers — detailing decades of government deceit and incompetence used to steamroll the American people into a war in Vietnam that claimed more than 4 million lives — also enable the vicious whack-jobs at Westboro Baptist Church to crash the funerals of slain American troops and rant how God is punishing America for its homosexuality. When the government screws up and releases information it shouldn’t — even highly sensitive stuff no one should want to divulge — the Supreme Court has consistently ruled the government can’t stop newspapers from publishing it. Legally speaking, I’d say Judge Hill is holding onto the short end of a very greasy stick. If Hill is smart, he’ll figure out a way to let go now. Eventually, God willing, he will lose. But should he prolong the agony and fight this thing, Lance and the News-Press can wrap themselves in the flag of the First Amendment. They will become self-enraptured on the nobility of their cause and intoxicated with the importance that comes with government repression. In short order, they will become heroic, and a series of articles tainted by a troubling conflict of interest will become morally elevated in the ensuing brouhaha. Please, spare me. Spare us all. And Peter Lance, spare me your defamation threats. I’ve stood up for your First Amendment rights. Maybe you should return the favor.