Last week, I reported on an ominous development in the California Capitol — an effort to criminalize a political point of view. Democratic leaders authored a bill that would have made it illegal for corporations and think tanks to “mislead” the public on climate change. To the officials who would police it, skepticism of climate change — or, perhaps, even disagreement with state policies to combat it — could lead a prosecutor or the attorney general to file an “unfair competition” lawsuit and potentially bankrupt groups that dissent.
The California Climate Science Truth and Accountability Act was shelved, but offered insight into the totalitarian mindset that’s taking hold among leaders of the nation’s most-populous state. That measure, S.B. 1161, cannot be written off as an aberration. Consider A.B. 2880, another bill that would let the state government sue political activists, ordinary citizens, and the media for publicizing information officials would rather keep under wraps. This bill has widespread support from Democrats and Republicans.
As with the climate-truth measure, A.B. 2880 does not challenge the First Amendment or the state’s Public Records Act directly. Legislators instead use other excuses to clamp down on speech. The Climate Thought Crimes bill cited “unfair” business competition. This latest bill uses federal copyright laws to do thin-skinned officials’ dirty work. After heated opposition from tech companies and open-government groups, the bill’s author late Wednesday reportedly offered some amendments that might fix the bill, but the fact that it got this far says much about the thinking in the Legislature.
Basically, the bill would allow government officials to claim ownership of the work they produce, and therefore restrict public access by exerting a copyright. It’s absurd, given public employees are supposed to work for the public; all the work they produce has been paid for by taxpayers for an ostensibly public purpose. This bill is yet another reminder that legislators and bureaucrats view themselves not as our servants, but as our masters.
The legislation “means state bureaucrats will be able to wrap their reports, research, emails and even videos of public meetings in onerous legal restrictions, backed by federal lawsuits and six-figure penalties,” according to the Electronic Frontier Foundation. The bill was amended to strip local governments from the right to impose copyrights, but a 2015 Inglewood case remains illustrative of what we’re dealing with here.
A resident posted publicly available videos of City Council meetings on YouTube, with his own commentary imposed over the images. The city said he was violating their copyright and claimed in a lawsuit that it caused “irreparable harm and damages.”
A federal judge rejected the lawsuit and required the city to pay $117,741 in legal fees. “First, the court determines that the city is barred as a matter of law from bringing a copyright claim based on the City Council videos,” the judge ruled. “Second, even if the city could assert a copyright claim, the accused Teixeira Videos constitute fair use as a matter of law.”
But consider what happens if the government does get the right to bring copyright claims. Even if “fair use” trumps such claims, the chilling effect could be brutal. Not many people can risk spending their life’s savings litigating these matters through the federal courts.
The bill now excludes local governments, but consider the mischief California’s state government can do. One need only recount some of its recent scandals to remind us of the incentive state bureaucrats have to quash access to information.
Consider the rebuilt eastern span of the Bay Bridge, which connects Oakland to San Francisco. The scandal-plagued project was completed last year, 10 years late and 2,500 percent over budget. A state Senate report alleged that “[o]fficials frequently told contractors and employees not to put concerns about quality into writing — ostensibly to avoid disclosure under the state Public Records Act,” according to the Sacramento Bee. In 2012, the state Department of Parks and Recreation was discovered to have amassed $54 million in a hidden fund. Scandal is a routine fact of life here.
So why does the Legislature want to give these agencies yet another tool to withhold information from the media and the general public — and to punish critics with chilling taxpayer-funded lawsuits?
Supporters of A.B. 2880 say it will help agencies manage intellectual property. They point to an admittedly outrageous situation that helped spark the effort. A company that had run hotels and other services at Yosemite National Park has claimed rights to the park’s iconic names (Ahwahnee and Wawona hotels, Badger Pass Ski Area, etc.). But a narrow effort to protect a few legitimate trademarks has morphed into a broad attack on the public domain.
The bill claims to protect access to the documents through the California Public Records Act, but it gives the government the ability to control what people do with many of those records. The Legislature expressed concern that “unscrupulous parties” will misuse public records, but doesn’t consider the more likely scenario: unscrupulous officials will exert a copyright privilege to quash the public’s right to know. The bill calls for most records to be released into the public domain, but it will still force bloggers and activists to self-censor.
“On one hand, the Public Records Act is designed to provide wide access to information and the purpose behind copyright is to prevent access and control information,” said Jim Ewert, general counsel of the California Newspaper Publishers Association. “They are on a collision course. It is impossible to find a way for them to coexist. If there’s anything embarrassing or even criminal, (government agencies) can use their copyright power to prevent the use of any information that they’ve lawfully obtained. That is undemocratic.”
State officials and open government certainly are on a collision course. It’s hard to believe these myriad attacks always are mere anomalies or the result of misguided good intentions. We see an endless stream of secrecy measures and few legislative efforts to protect a public-records system that already grants the government enormous loopholes.
As I write, the Legislature is trying to weaken a citizen initiative that would merely require all bills to be in print for 72 hours before a final vote — something that imperils the secretive way that legislators routinely gut, amend, and pass major bills without public vetting. And then there’s the same-old, same-old regarding government workers. Modest bills that would improve accountability and oversight are dying. Meanwhile, a noxious one, A.B. 2533, is moving forward; it would let police unions delay or even stifle the release of body-camera footage.
“The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.” Those are the oft-repeated words to the preamble to California’s open-meetings law. Anyone who still believes in such ideals is naïve. You’ll say what’s allowed and see what officials let you see, or you’ll be defending yourself in court. Expect things only to get worse.
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