October 14, 2005
Washington Appellate Court Rules Newspaper Has Right to Publish Names of Teachers Accused of Sexual Misconduct
In Bellevue John Does 1-11 v. Bellevue School District #405, the Washington Court of Appeal (Division 1) has granted the Seattle Times' 2002 request for the names of those teachers accused of sexual misconduct, pursuant to the state's Public Records Act. Although the school district concluded after an investigation that some of the teachers had been falsely accused, the paper argued that the public still had an interest in knowing the names of the teachers. The teachers, however, argued that their privacy would be invaded if their names were published since they had been exonerated, and they sued to prevent release of their names. According to the appellate court, "The privacy exemption in the Public Records Act permits withholding the teacher's identity only if the
accusation of misconduct is patently false."
The trial court concluded that "that teacher identities were a matter of legitimate public concern 'when the investigation of the allegations is inadequate, the allegations are deemed substantiated, or the employee is disciplined with what amounts to more than a letter of direction.'1 Using
this test, the court ultimately determined that 15 of the original plaintiffs ('prevailing John Does') were entitled to the protection of the privacy exemption. On April 25, 2003, the court ordered the districts to release the names and identifying information concerning the other 22 teachers. Three of these teachers ('appellant John Does') appeal the order of disclosure. The Times cross-appeals, seeking release of identifying information for the 15 prevailing John Does. Because the trial court's
rulings on matters essential to our decision were made on the basis of the documentary record rather than live testimony, our review is de novo."
While the appellate court listened with sympathy to the teachers' argument that release of such information is likely to lead to uproar in employer-employee relations, as well as increased litigation, should negative performance evaluations result, "we are not persuaded that
the negative impact of increased grievance litigation outweighs the public interest in disclosure articulated in Brouillet."
As to the allegations of sexual misconduct and the school district's subsequent investigations, the appellate court ruled that only in cases where the district had determined that the allegations were completely false could the identities be withheld. It made a careful distinction between those cases, and cases where the investigations determined simply that misconduct had simply not be "substantiated", and pointed out that the trial court had confused the two. "The problem
with the trial court's use of the Tacoma News analysis as a touchstone for withholding the names of the other John Does is that the court did not distinguish between 'unsubstantiated' and 'false'. The two terms do not mean the same thing. As these case files show, it is much easier to label
an accusation 'unsubstantiated' than to say with confidence that it is false. This is because 'unsubstantiated' often means only that an investigator, faced with conflicting accounts, is unable to reach a firm conclusion about what really happened and who is telling the truth.
Especially when the conduct reported is a fleeting touch, a comment seemingly off-color or directed at a student's physical appearance, or a habit of writing personal notes, it is possible that the accuser misunderstood the words, misinterpreted the intent, or even fabricated the
entire event. But it is also possible that the accuser was accurately reporting inappropriate conduct. Where that possibility exists, the public has a legitimate interest in knowing the name of the accused teacher. If a teacher's record includes a number of complaints found to be
'unsubstantiated', the pattern is more troubling than each individual complaint. Yet, if the teacher's name in each individual complaint is withheld from public disclosure, the public will not be able to see any troubling pattern that might emerge concerning that teacher....Accordingly we conclude that the name of a teacher who has been the target
of an unsubstantiated allegation of sexual misconduct one that is not
patently false is subject to public disclosure, notwithstanding Tacoma
News. When an allegation against a teacher is plainly false, as shown by
an adequate investigation, that teacher's name is not a matter of
legitimate public concern. Investigative files with identifying
information redacted will always be subject to disclosure.
We affirm the order of nondisclosure as to Federal Way John Doe 1, Seattle
John Doe 1, and Seattle John Doe 7. As to all the other prevailing John
Does, the order of nondisclosure is reversed."
Read the entire opinion here.
October 13, 2005
Pulitzer Prize Winning Investigative Reporter Jack White Dies
Jack White, the investigative journalist who broke the story about former President Richard Nixon's failure to pay back taxes, has died at his home on Cape Cod, at the age of 63. He won both a Pulitzer Prize and two Emmy Awards. The Nixon tax story prompted the former Chief Executive's famous "I'm no crook" comment. Read more here and here.
Judge Hogan Lifts Contempt Citation In Miller Case
U. S. District Judge Thomas Hogan has lifted the contempt finding he imposed on Judith Miller, now that she has testified before the federal grand jury. Read more here in a New York Times article by David Johnston.
October 12, 2005
Mexican Poet Faces Criminal Trial for Insulting the National Flag
In what some consider to be a grave setback to freedom of expression in Mexico, the poet Sergio Witz Rodriguez has lost an appeal in the Supreme Court of Mexico, and will now face criminal charges for violating Article 191 of the Federal Criminal Code, which forbids "insult" to national symbols. He published a poem called La Patria entre Mierda (The Country in Excrement). Read more here (in Spanish). PEN and International PEN have taken up his cause. Read more here.
Haworth Press OKs Same Sex Volume Previously Cancelled
Haworth Press, which had announced that it was cancelling the publication of a volume called Same-Sex Desire and Love in Greco-Roman Antiquity and in the Classical Tradition of the West because of objections to a controversial essay included in the collection (read an earlier post here) is now going ahead with the volume. However, it will not include the contribution that sparked the debate, Bruce Rind's Pederasty: An Integration of Cross-Cultural, Cross-Species, and Empirical Data. According to Haworth's website, "It is the intention of the Press to publish a future volume (title and publication date to be announced) which will examine the controversial issues surrounding research on adult-adolescent sexuality in a fully-framed context from as many perspectives as possible, including Dr. Rind's and those of his critics."
David Barnhizer on Free Speech, Bardot, Fallaci and Intimidation through Law
David Barnhizer, Cleveland-Marshall College of Law, has written a very interesting piece on what he calls the vilification of actress and activist Brigitte Bardot and writer Oriana Fallaci for their political views. Here is the abstract.
A process of thought and speech control relying on the strategic use of law has emerged in Europe and the U.S. Variants of the crimes of heresy, blasphemy and vilification are regaining force as effective means of suppressing dissent through criminal offense and civil sanction. New forms of these traditionally religious offenses are being used by governments and private interests that collectively have attained a degree of power that justifies placing them in the position of a secular or religious "church" - depending on the particular interests involved. Whether through the use of direct government power or informal but well-organized private collective action, these interests are intimidating critics into silence and punishing those who will not bow to their will. Both the Left and the Right use this strategy to seize power, stifle opposition and impose sanctions on anyone who does not bow to their preferences. Controls on speech are a core part of the strategy, and this is reaching disturbing levels in Western societies.
This brings us to the vilification of Brigitte Bardot and Oriana Fallaci. Brigitte Bardot wrote A Cry in the Silence to counter what she perceived as the cowardice of European society, particularly France, that produced an unwillingness even to consider what she felt were dangerous impacts of extensive immigration into France of millions of people whose values and traditions not only differed radically from those of French culture but often explicitly rejected that culture. She was criminally prosecuted, convicted and fined for her comments. Oriana Fallaci authored The Force of Reason and several other works as a clarion call following the 9/11 tragedy. Her intent was to warn about what she considered the dangers of Islam for European society. Fallaci was recently charged in Italy with the criminal offense of "vilification."
As the experiences of Brigitte Bardot and Oriana Fallaci indicate, the expanding limitations on what constitutes allowable discourse in the European Union and its members augurs forebodingly for freedom of expression. This is a dangerous time in Western society. It is a moment when the desire of governments to react to the threat of militant Islam produces responses that can destroy the essence of the Rule of Law. The problem is that it is easy to justify restrictions on speech due to the crisis psychology created by the fact we are in an unofficial state of quasi-martial law unfolding within an undeclared guerrilla war. My foundational principle is unsurprising and simple. No one and no institution should be insulated from political criticism in a democratic society. A free speech advocate remarked in admittedly crude terms that, "no one is [or should be] immune from being called an [expletive deleted]." This principle of allowing and encouraging free, open and even insensitive communication is nothing new in a democratic society where the constitutionally guaranteed freedoms of speech, association and religion are core values instilled in the structure of our law and deepest beliefs. Oddly - given the mounting state and private pressure against freedom of speech, thought and conscience - democratic society needs to recommit to these core values more than ever. Unfortunately, we have most likely passed the "point of no return" in the degree to which we have corrupted our social discourse through inhibition and intimidation. At a minimum we must confront the extent to which we have suppressed free speech in the name of admirable causes. We must recapture the willingness to be insulted and to "call a fool a fool" or even to be one.
His paper is available from SSRN here.
October 11, 2005
Japan's Approach to Cyberdefamation
Salil Mehra, Temple University School of Law, has published Criminalizing Cyberdefamation: Does Private Ordering Need Public Prosecutors? Here is the abstract.
This article sets forth two main points. First, it tries to explain why a modern constitutional democracy and industrialized society like Japan might choose criminal, in addition to civil, enforcement against online defamation. Second, it fits Japan's experience to the theory that generally, attempts to use social norms and reputation to regulate behavior in modern societies may fail if they do not track individual incentives and if they cannot handle technological change. Such innovation may provide an end run around private ordering; the appearance of widely-used, purportedly anonymous Internet message boards appears to have short-circuited the balance of reputation and social norms that characterizes Japanese society. State intervention, such as public prosecution, may be required to maintain the existing system of private ordering through reputation and social sanction.
The paper is available through SSRN here.
October 10, 2005
Jeff Jarvis on Blogging, Shield Laws and Secrets
From Across the Pond, An Assessment of Judith Miller's Saga
Julian Borger reports on the Judith Miller story for the Media Guardian. He begins, "All the elements for a grand moral drama were in place. A defiant journalist, frail from months in jail, stood before the cameras on a courtroom's steps proclaiming her readiness to sacrifice herself in the name of press freedom," but "most legal observers agree that the whole case has done nothing for the cause of journalistic privilege in the US." His comments place the last few months in perspective for UK readers and also give US readers an interesting slant. Read more here.
October 9, 2005
New Orleans Police Assaults Caught on Tape
More controversy in New Orleans as a tape shows an NOPD officer hitting a 64 year old man, Robert Davis, who was arrested for public intoxication. Then, while Associated Press Television News producer Rich Matthews and his crew attempted to document the incident, a New Orleans police officer told Matthews to stop, then assaulted him. The cameraman caught that incident on tape as well. Three officers will be placed on suspension and charged as a result and the incidents will be investigated, according to New Orleans Police Department officials. The AP's Mary Foster broke this story Sunday.
Ginzburg Denies Request To Lift Gag Order; Appeal Will Proceed In Second Circuit
On Friday Justice Ruth Bader Ginzburg rejected the request of the ACLU, its client "John Doe", and other parties in the Doe v. Gonzales "Patriot Act" case to lift a gag order preventing Doe from speaking about a National Security Letter s/he had received and is allowing the case to proceed in the 2nd Circuit. While Ginzburg said that Doe made "cogent" arguments in support of lifting the order, she also determined that the case was proceeding quickly through the court system. Read the opinion here. Read more about the case, including Judge Janet Hall's original ruling lifting the gag order, here. The library originally brought the proceeding after receiving an FBI demand for individual user information.