Free Speech Prevails

Last week, the City of San Juan Capistrano lost its court battle against a newspaper, Community Common Sense. SJC council majority members didn’t like being criticized by CCS, so they banned the paper from public property. A judge says they can’t do that. A press release from CCS and an update from its editor reveal the sequence of missteps by the council majority.

Press Release

City Rejects Publication’s First Amendment Rights 

December 18, 2013, San Juan Capistrano, CA - In another assault on First Amendment protection of free speech in San Juan Capistrano, City Council members Sam Allevato, Larry Kramer and John Taylor voted yesterday to reject provisions of a deal that would have protected a local newspaper’s right to distribute their publication on city property.

The on-going dispute landed the city in OC Superior Court last week in an attempt to defend the city’s recently enacted ban of newspapers and publications from city property, including in front of City Hall and the Community Center.

Just four days after the Community Common Sense (“CCS”), a community newspaper often critical of the council majority, placed its news rack alongside others that had been located on city property for many years, the reaction from the council majority was swift. They voted behind closed doors to ban news racks from City Hall and the Community Center, and went a step further in banning CCS from all city property. The CCS received a follow up letter from SJC City Attorney Hans Van Ligten, stating in part;

“To be clear... CCS does not have the right to deposit newspapers, materials, or any type of publication at City Hall or on any other City property...[and if ] it continues to do so, will be subject to citation and criminal prosecution as appropriate.”

The City Attorney reiterated the threat at the end of the letter, including possible intervention by Sheriffs department personnel;

“To be clear... the City's position is that deposit of newspapers, newsletters, or any printed material by CCS at City Hall or on other City property is prohibited and will subject the [CCS] with the possibility of a citation, and/or criminal complaint for a violation of, amongst other things, the San Juan Capistrano Municipal Code.... There is no misunderstanding on the part of Sheriffs personnel and City employees. The understanding is that such conduct is illegal and will subject CCS and its members to legal repercussions.”

In an attempt to protect newspapers’ right to free speech on public property, the CCS took the matter to court. Laguna Hills attorney Wayne Tate applied for a Temporary Restraining Order in Orange County Superior Court on behalf of CCS to force the city to temporarily restore news racks and publications to city property until the case can be decided on a more permanent basis.

Shortly after the hearing began however, the city’s attorneys appeared to capitulate by offering to negotiate a settlement agreement. The CCS agreed, and offered three different proposals to the city, which included the following terms;

1. The City will restore news racks to city property pending the outcome of the permanent injunctive relief.

2. The City will agree to refrain from using an "anti-littering" ordinance against the CCS to prevent it from placing its news racks on city property, and

3. The City will agree to rescind the letter from City Attorney Hans Van Ligten in which he states that CCS is prohibited from placing its papers on any city property and threatens the CCS with, among other things, criminal prosecution if they do so.

The city council majority led by Mayor Sam Allevato, agreed only to “temporarily restore news racks to City Hall and the Community Center”, but refused to agree to refrain from using the anti-littering ordinance against the CCS’ placement of its news racks on city property, and refused to rescind the city attorney’s letter banning the CCS from “depositing materials of any kind on any other city property”, under threat of criminal prosecution.

Without the city agreeing to all three terms, CCS Editor Kim Lefner stated her belief that the city can and based on past behavior, quite likely would prohibit dissemination of the CCS on city property. “Their actions have repeatedly matched their words as articulated in the city attorney’s letter, so it would be foolish for us to trust that they will behave in an honorable manner without an enforceable agreement in place,” said Lefner.

CCS attorney Wayne Tate stated, “The CCS made a reasonable offer to the city. It’s unfortunate that the city elects to take this to court rather than to settle it in a fair and equitable manner.”

The matter goes back to court on Thursday, December 19.

To view the City Attorney’s letter and a copy of the Application for Temporary Restraining Order with all Declarations and Exhibits, click this link:  http://tinyurl.com/krnnrk8

As an update, the CCS editor issued a summary on December 20:

Hi friends & supporters of CCS -

In a win for the First Amendment and the residents of San Juan, Judge James DiCesare ordered newspapers back on city property yesterday [Dec. 19].

In response to the city council majority's ban of CCS (and by extension, other newspapers from city property), Judge DiCesare didn't mince words. He stated, "The people have the right to read and access newspapers on public property." 

During the first hearing last week, the city asked the judge if they could negotiate an agreement with us about where to place the news racks, rather than having the judge issue a Temporary Restraining Order. The judge agreed, and we met with the city attorney at City Hall and the Community Center this week to determine acceptable locations. The city wanted the news racks relocated a mere two feet from the original location at the Community Center, and on the other side of the door at City Hall. 

But the city council majority of Sam Allevato, Larry Kramer and John Taylor rejected CCS' proposal, which included the city rescinding their written threat to prosecute us criminally if we placed our papers "on any city property, and refraining from enforcing an anti-littering ordinance against us as they had also threatened in writing. The city said "NO" to both those terms which we believed telegraphed their true intentions. 

So we ended up back in court yesterday, where the judge ordered the city to restore the news racks to public property.

In an additional win for the residents, we are now allowed to also place ten copies of the CCS in the Seniors' Center, where city staff hostile to CCS have repeatedly thrown away our paper.

This order is only temporary - we go back to court February 27 at 1:30pm to request a more permanent injunction.

Our attorney Wayne Tate did an excellent job - he went above and beyond. Please feel free to send him a note of thanks for representing all of us. His email address is: WayneTate@OTBTlaw.com

Score one for the Residents and the First Amendment!

Kim