FAP knows that a free press informs the people and serves as their mouthpiece; its value to our democracy cannot be overstated. Nevertheless, press freedoms are routinely challenged by the government’s denial of access to public records and proceedings, and the placement of restrictions on what may be published. Unfortunately, individual journalists and the general public are often unaware of their rights and without resources to turn back these challenges. Thus, the ideal of the free press is too often unfulfilled.
FAP confronts these challenges head on by:
- Legal representation and advice. FAP has been at the forefront of public records and publication defense litigation in California since its founding. FAP has assisted journalists, documentarians, and activists seeking information, for example, about insurance industry redlining and compliance with environmental and consumer protection laws. In September 2000, FAP collected one of the largest fee awards in California public records history for seven years of work done on behalf of the San Francisco Bay Guardian to obtain records of police complaints. FAP has also represented amici curiae in briefs to courts around the country. Recently FAP, on a pro bono basis, coordinated and co-authored the brief on behalf of the Newspaper Association of America, the Reporters’ Committee for Freedom of the Press, Online News Association and others urging the United States Court of Appeals for the Second Circuit to reverse a ruling that would allow for injunctions against and create liability for journalists who include certain links in online publications. FAP also defends clients against Strategic Lawsuits Against Public Participation (SLAPPs), that is in which publishers are sued for exercising their First Amendment rights to publish, speak and petition the government.
- Public education. FAP, in collaboration with the Society of Professional Journalists (SPJ) of Northern California, currently publishes three freedom of information pocket guides: Open Meetings Laws in California: The Brown Act, The California Public Records Act, and Access to Courts and Court Records in California. FAP also conducts free newsroom and public seminars on these same freedom of information issues. FAP conducts seminars on other cutting edge free press topics such as web activism and online defamation and will so begin preparation of additional publications such as a Web Activists’ First Amendment Guide.
- Advice hotlines. FAP operates e-mail and telephone advice hotlines that enable FAP to provide quick advice and referrals on First Amendment expression, government access and press issues to journalists, artists, activists, students and others.
The rights guaranteed by the First Amendment—to speak out, to publish pamphlets and websites, to peaceably assemble and protest, to petition the government—are indispensable tools for activists in the public interest community and artists whose works address social justice issues.
FAP facilitates the democratic process by providing educational resources on these fundamental constitutional rights to our colleagues in nonprofit advocacy and arts organizations. In this way, we support the effectiveness of the greater public interest community.
The goal of the Education Initiative is to ensure, through education, that activists and artists exercise their First Amendment rights to better promote their causes and protect themselves from those who endeavor to silence their voices.
Currently, the subject of the First Amendment rights of the Internet and Web activist requires special attention. The Internet has dramatically increased the ability of activists to disseminate advocacy materials and reach large audiences. At the same time, however, it has increased advocates’ exposure to challenges to their freedom of expression, the legal frontier of which is still being explored. By educating these online advocates about their civil liberties, FAP can embolden them to continue their work in the face of legal bullying and help them design their materials and activities to withstand harassing legal challenges.
Other issues that are currently in need of educational efforts include SLAPP defense, art censorship, minors’ free expression rights and access to public records.
In fulfilling the goals of the Education Initiative, FAP conducts the following activities:
- Seminars. FAP conducts free seminars and educational programs and coordinate panel discussions on timely issues for the nonprofit advocacy and arts communities, and the general public.
- Written and Web-based materials. FAP produces and distributes brief, easy to read and understand educational guides on Court Access, The Brown Act, The California Public Records Act and The California Shield Law. We have just begun preparation of our Web Activist’s First Amendment Guide. We disseminate as much of this material as possible via our website.
- Course curricula. The First Amendment Project is developing course curricula on timely First Amendment issues. We are currently developing a freedom of artistic expression curriculum for art students.
- Free Expression Network–West. The First Amendment Project convenes regular meetings of the Free Expression Network–West, a coalition of diverse organizations promoting freedom of expression. This coalition provides another forum for educational programs, panel discussions and seminars that focus on timely issues, provide all participants with tools to help them become more effective advocates, and promotes collaboration and resource sharing among participants.
The Legal Advocacy Project
Activist organizations and journalists play key roles in our democratic process. They act as a two-way conduit between government and the people it serves: informing the people of the operation of government and advocating the people’s concerns to the government. When there is the threat of litigation arising from these activities or a failure to allow proper access to government, and the flow of information is disrupted in either direction, the system suffers. Unfortunately, these individuals and organizations rarely have the financial resources to mount a legal defense or initiate a legal action. And their opponents know this.
By providing free and low-cost legal services to its colleagues in the nonprofit community and individual activists and journalists, FAP helps deflect the damage and disruption that accompanies such litigation. Although FAP provides legal representation for the broad range of free press and free expression issues, FAP’s legal activities are concentrated in three areas:
- Defending SLAPPs: meritless lawsuits designed to deter the defendant from exercising his or her First Amendment rights.
- Bringing freedom of information lawsuits under California’s public records and open meetings laws.
- Producing amicus curiae (“friend of the court”) briefs to courts across the country presenting otherwise unrepresented First Amendment issues.
FAP also provides litigation support to other attorneys who are willing to represent these clients, but are not well-versed in First Amendment issues.
The need for such services is great. FAP commonly lacks the capacity to take on all of the opportunities for representation presented to it. FAP’s clients typically have no other options. If they cannot afford to pay for legal services, they have to accede to their opponent’s tactics.
Likewise, activists and advocacy organizations often lack the resources to hire attorneys to write amicus curiae briefs. These briefs, submitted by those who are not parties to the lawsuit but with strong interests in its outcome, are commonly filed by large trade groups, commercial enterprises, and organizations with deep pockets to ensure that their interests are presented to the court. Those who cannot afford these briefs are often left out of the process and their voices go unheard.
- To provide free and low-cost legal services to journalists, nonprofit advocacy organizations, and individual activists in California whose First Amendment rights, and thus their abilities to be effective advocates, are threatened.
- To serve as a mainspring of legal resources to activists, journalists and artists nationwide.
- To produce amicus curiae briefs in courts throughout the country to ensure that the First Amendment rights of those without financial resources to otherwise appear are adequately presented.
- To meet objectives: Provide direct legal representation defending lawsuits arising from advocacy activity and in freedom of information matters.
- Monitor litigation nationwide and author amicus curiae briefs on cutting edge First Amendment topics.
- Maintain operation of telephone and computer-based hotlines to provide general advice to activists, journalists, and artists across the country.
- Initiate a First Amendment Fellowship.
FAP’s Legal Record
FAP has provided free and low-cost legal services to individuals, civic and advocacy organizations, journalists and media organizations since its founding in 1990. Over the past 10 years, FAP has been a pioneer in defending cases under California’s Anti-SLAPP law, is a respected authority on suits to obtain public records, and has assisted in numerous cases dealing with cutting edge First Amendment issues.
FAP has obtained dismissals of SLAPP lawsuits against, for example:
- A small trade newspaper sued for printing a letter to the editor critical of a large corporation;
- A single mother sued after she asked school authorities to investigate an abuse charge against a teacher;
- An environmental activist sued by the federal governmental agency when she opposed an incinerator project slated for a low-income neighborhood;
- An insurance industry watchdog sued for requesting records from the state that would prove the extent of racial redlining by the plaintiff company;
- A local environmental group sued by a developer for publicly opposing a major commercial development.
In the public records context, FAP has helped obtain:
- Records from a local utility district of the names of those using excessive amounts of water;
- Fire and dispatch tapes revealing errors in fire prevention efforts;
- Records of police misconduct.
And FAP has been involved in the following cutting edge First Amendment issues:
- FAP was a member of the legal team that successfully challenged the U.S. government’s encryption export restrictions as an unconstitutional restraint on expression.
- FAP currently represents an individual who was hit with a court order that he cease publication on an Internet bulletin board of a link to a computer code.
- FAP filed an action to help a federal criminal defendant attempt to obtain confidential government records that may have corroborated his defense.
In the past two years, FAP has co-authored amicus briefs addressing such diverse topics as the rights of legitimate arts organizations to present works that contain nudity, the reliability of social science research to justify minors’ access to certain media, and the rights of the on-line press to be free from legal liability for publishing links to other websites.
Freedom of Artistic Expression Initiative
Challenges to freedom of artistic expression, although not attracting the media attention that they did in the 1990s, continue to exert a powerful chilling effect against the creation and presentation of controversial and cutting edge artistic works. In current times, artists expressing political dissent or giving voice to marginalized cultural viewpoints are perhaps the most susceptible. The need for effective advocacy and policy research in this area is as pronounced now as it was during the heyday of the culture wars.
The First Amendment Project’s Freedom of Artistic Expression Initiative provides critical support for artists and their audiences facing such challenges.
The Initiative has five primary components:
- FAP directs civic dialogues on freedom of expression issues at museums, galleries, and community centers to advocate for artists’ rights and raise awareness about current First Amendment issues in the arts.
- FAP researches important legal aspects of cultural policy issues with the goal of publishing position papers for use by arts advocates.
- FAP serves as public advocates for freedom of artistic expression, both responding to challenges as they arise assisting artists and presenters in advance of such incidents.
- FAP operates the national Art Censorship Hotline (800-477-6233) , a toll-free phone line providing explanations of legal rights, advocacy advice, and references to other useful resources. This service, which was originally administered by the National Campaign for Freedom of Expression, has for over ten years served as an invaluable tool for artists caught in censorship controversies. Another valuable tool for artists facing censorship challenges is the handbook published by the National Campaign for Freedom of Expression.
- FAP produces educational materials and seminars to educate artists, their audiences, students and the general public about freedom of artistic expression.
This work is coordinated with the National Coalition Against Censorship’s national Arts Advocacy Project with whom we collaborate frequently.
Amicus Curiae Briefs
Activists and advocacy organizations often lack the resources to hire attorneys to write amicus curiae briefs. These briefs, submitted by those who are not parties to the lawsuit but with strong interests in its outcome, are commonly filed by large trade groups, commercial enterprises, and organizations with deep pockets to ensure that their interests are presented to the court. Those who cannot afford these briefs are often left out of the process and their voices go unheard.
The following are some of the amicus briefs that FAP has filed.
- American Amusement Machine Association, et al. v. Teri Kendrick: Brief Amici Curiae of Scholars and Authors in Support of Plaintiffs-Applellants
- People of the State of California v. George T.: Brief Amici Curiae of Authors and Organizations in Support of Defendent-Appellant
The Identity Project
The right to travel freely in their own country is a right that has been taken by Americans as their birthright. This right, guaranteed by our First Amendment right to freely assemble and exchange ideas, is being eroded by identity-based national security programs.
Demands on citizens to “show their ID” have spread from airports to all major forms of long distance domestic public transport. Some of these ID security programs check people against secret government lists. Some of these programs are simply tests of the traveler’s obedience. Dissent through public protest is in danger of being chilled by the fear of ending up on government lists. We are witnessing the advent of a national ID card, passed by Congress as the Real ID Act.
With private data aggregators being used for “national security” purposes, and the ability to use technology to consolidate a wealth of personal information on citizens and have it accessed by both governmental and private agencies, the right to be left alone is under serious threat.
FAP, through the Identity Project (IDP), shines a spotlight on this serious issue.
- Legal representation. IDP provides legal defense, advice and assistance to those who find their right to travel infringed-upon by government demands for identification.
- Education. IDP builds awareness on the First Amendment right of assembly and our fundamental right to travel; and educates on the the effect of ID requirements on these rights. Through the press and via websites, IDP publicizes ongoing legal cases and situations where “papers” are being demanded of citizens to travel.
- Knowledge base. IDP is in the process of building a central repository of information relating to identity-based domestic security programs.