There are some rare occasions that give courts the power to block a media outlet from publishing information.
They include revealing troop movements during wartime, per a 1931 Supreme Court decision. They also include information that “that would set in motion a nuclear holocaust,” per the Supreme Court’s ruling on the publication of the Pentagon Papers.
Not on the list: publishing confidential city documents from attorneys to members of city council telling them how to do their jobs. That high threshold, which leans in favor of the First Amendment, is why Monterey County Weekly prevailed in court on Friday, Sept. 7.
Here's how the Weekly ended up in court in the first place: On Aug. 16, we published a story about former Greenfield city manager Jaime Fontes filing a claim against the city for wrongful termination, a necessary first step taken before he can file a lawsuit.
We received copies of documents that appear to support many of Fontes' claims, including that he was directed by the mayor to terminate a city employee, although the mayor lacks authority to make a hiring or firing decision of that nature. Fontes claimed he was then subjected to retaliation and fired.
The Weekly published the story and quoted the relevant documents, and posted them online. The issue: the documents in question, authored by the firm Lozano Smith—which is Greenfield's city attorney—are marked attorney-client privilege. That means they are meant to be kept confidential between those parties, and are exempt from the California Public Records Act.
The city of Greenfield sued, aiming to block publication of the documents, order their return and to identify the source of the information.
But the First Amendment falls squarely on the Weekly's side in a case like this, as attorney Kelly Aviles argued before Monterey County Superior Court Judge Susan Matcham on Friday.
"In terms of an injunction, you would have to reach a very high standard," Aviles said. "You are seeking to enjoin speech. They have not met that standard."
Aviles rattled off a list of examples in case law where the First Amendment has been determined to override other legal issues, such as privacy or an offensive anti-Semitic screed, and news outlets have been permitted by the courts to publish—even if many outlets would choose not to, for ethical and journalistic reasons.
"The publication of classified material; the identity of rape victims; doctor-patient privilege. If all of those are insufficient [to prevent publication], attorney-client privilege is certainly not an issue that overrides the First Amendment.
"This case is about public officials, their decision-making process and possibly creating liability [for the city]. The First Amendment exists to prevent exactly what’s happening here."
Matcham agreed. "I think the issue is whether attorney-client privilege—which I do think City Council had—whether the release of that information is compelling enough to override free speech.
"I do think release of attorney-client privileged [documents] is very harmful to the holders of that privilege, but the case law is clear that rights much stronger than attorney-client privilege have been found to not be sufficiently compelling. There really isn’t a lot of question."
Even attorneys for Lozano Smith had come around by the time of the hearing on Friday, and were more concerned about getting an injunction against Fontes—who they suspect is the leaker—than they were about an injunction against the Weekly.
"We have no dispute, no animosity toward the paper," said William Curley, calling into court by telephone on Sept. 7. "We understand they have very strong First Amendment rights, and we applaud them for doing what their requirements are to do under their rights and privileges."
That was in contrast to the lead-up to the hearing, starting with a phone call on Aug. 15 ordering us not to publish the story, followed by a cease-and-desist letter later that day, which included a threat to ask the District Attorney to investigation, then a lawsuit filed the next morning—with an ex parte hearing scheduled with urgency on the day of publication.
Instead, on Sept. 7, Curley and attorney Travis Cochran were focused on getting an injunction against Fontes, the other named defendant.
"Somebody unilaterally chose to violate and nullify those very compelling [attorney-client privilege] rights," Curley said. "Somebody dumped these on the doorstep of a paper, and the paper did as it does. We are not looking to punish the paper."
Fontes claims he is not the source of the leak, and his attorney, John Klopfenstein, offered to put Fontes on the stand under oath to testify to that.
But Matcham didn't even get that far into evidence as to whether or not he's the leaker, stumped on other legal concerns with the lawsuit. She declined to rule on the city's case against Fontes.
"I don’t think that allegation is framed in such a way that I can rule on it," she said. "It seems to me that you must have some sort of allegation of wrongful conduct that took place."
The Weekly has filed an anti-SLAPP motion—for Strategic Lawsuit Against Public Participation—in response to Greenfield's lawsuit. It's a motion that claims Greenfield's case is meant to intimidate and silence the press.
California's anti-SLAPP statute exists, according to the motion, because “The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances” and “that it is in the public interest to encourage continued participation in matters of public significance.”
A hearing on the Weekly's anti-SLAPP motion is set for Oct. 5 at 9am. If the paper wins the motion, Greenfield would be required to pay the Weekly's attorney's fees.