“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The photo above shows the church where I exercise my First Amendment right to worship as I am called to. On April 15, 2009, many of us gathered at the Georgia State Capitol under the protection of our right to assemble. Most weekdays in January through April we may petition the legislative branch of our state government. And on this blog, as well as other place online and off, we exercise our rights to free speech and to publish opinions and information that the government may not like.
(Before you say it, SOGTP, the Supreme Court held in Gitlow v . New York that the Fourteenth Amendment to the Constitution extends the protections of the First Amendment to the states. Love it or hate it, I don’t make the rules.)
Now, the Fulton County Daily Report is covering the actions of the City of Atlanta Law Department as it sought and received in Fulton County Superior Court a prior restraint (subscription required) against APN’s publication of the infamous memoranda.
On Aug. 9, Cardinale began reporting on his news site about a series of memos sent by city lawyers to council members, some drafted before he had filed his lawsuit and some after. Although Cardinale didn’t post copies of the memos on his site, his Aug. 9 story discussed in some detail an April 4 email Senior Assistant City Attorney Kristen Denius sent to Councilwoman Felicia Moore, copying city council members and staff and others in the city Law Department.
When they saw the memos quoted on Cardinale’s site, the city’s lawyers asked for their memos back. Cardinale, who said he received the memos from a confidential source, refused.
So on Aug. 12 they sent Baxter a motion for a temporary injunction to keep Cardinale from discussing or publishing the memos further, at least until the court could hold a hearing. The lawyers argued the memos could be damaging to the city’s attempts to settle a potential lawsuit by the state Law Department over related issues.
Baxter granted the temporary injunction but set the matter for a Monday hearing. According to Cardinale and Dow Lohnes lawyer Lesli N. Gaither, who sat in on the hearing on behalf of the Georgia First Amendment Foundation, the city quickly withdrew its request for a permanent injunction Monday, given the memos already had been posted over the weekend by Todd Rehm on the Georgia political blog Peach Pundit.
The city moved to hold Cardinale in contempt over the possibility that he had violated the temporary injunction by giving the memos to Peach Pundit. But Cardinale was able to show Baxter emails that proved he gave Rehm the memos before Baxter entered his order, and Baxter denied the contempt motion.
Allow me a moment to discuss the idea of “prior restraints”. A prior restraint is a form of government censorship that prevents someone from saying something the government doesn’t like or publishing information the government wishes to keep from the citizens. A prior restraint is considered particularly loathsome because it prevents an idea from being heard and either accepted or rejected, it prevents a citizen from sharing information and accepting whatever consequences might attend. It is inimical to the”marketplace of ideas,” an analogy to the free markets that we all cherish around here.
In New York Times Co. v. United States, the United States Supreme Court rejected the lower courts imposition of restraining orders preventing a newspaper from publishing government documents obtained in a questionable manner. This case, also known as The Pentagon Papers case, is frequently cited for the principle that prior restraints are usually unconstitutional.
In Nebraska Press Ass’n v. Stuart, the Supreme Court expanded on the Pentagon Papers case to state in that “prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment Rights.” A concurring opinion stated that prior restraints could issue against the media only if the government could show that such publication would present a “clear and present danger” in that case to a defendant’s Constitutional right to a fair trial. Another concurring opinion by Justice Lewis F. Powell articulated a nearly identical standard.
Given these clearly articulated standards for the government imposing a prior restraint, it should be only under the most extraordinary and exigent circumstances that an American government would seek to impose a prior restraint. Unfortunately, the Law Department of the City of Atlanta doesn’t seem to think so. In this case, what was at stake from the City’s perspective was its strategic position in a pending lawsuit that might be brought by Attorney General Sam Olens to force the City Council to abide by the Open Meetings Act.
But, you say, you guys are the press, are you? You’re not “legitimate media” to quote another government official or two.
Chief Justice Hughes, writing for the Supreme Court in Lovell v. City of Griffin, which originated in Georgia, stated that “[t]he press, in its historic connotation, comprehends every sort of publication which affords a vehicle of information and opinion.” That sounds like us.
Hollie Manheimer, Executive Director of the Georgia First Amendment Foundation, which filed an amicus brief against the prior restraint, told the Daily Report that “[t]here is more room for blogger and citizen action now, and we expect that role and activity to grow.”
How far was the City Law Department willing to go to defend their right to break the law?
The City Law Department is apparently so embarrassed at having their
ass hat handed to them by a non-lawyer that they are willing to attempt to harass and intimidate Cardinale. In my opinion, they are using armed guards to prevent Matthew Cardinale from exercising his First Amendment right to petition his government. Shame on them.
The City of Atlanta government appears to have pulled out all the stops in its assault on the First Amendment rights of one of its citizens. They’re also willing to harass and attempt to intimidate Peach Pundit, or at least its most annoying contributor.
In this Motion, the City requested to take depositions of APN’s Editor, Rehm of Peach Pundit, and an activist named Robert Schreiber, who sent the Peach Pundit blog post to the City.
Since Assistant City Attorney Kristen Denius seemed so interested in my facebook postings, I sent her a friend request so that she can view them herself, rather than enlisting Robert Taylor O’Neal. I’m disappointed that she hasn’t accepted.
Matthew Cardinale is well-known for singing and rapping in his comments to the Atlanta City Council. Since the City lawyers lost their motion, I suspect they’re no longer interested in deposing me. But just in case, I’ve given my lawyer instructions to pass on to them: they’re taken from another song you may have heard. (link not safe for work or around young kids)
I am admittedly an absolutist
complete nutjob with respect to the First Amendment, but it’s only because it protects so many of the most important things in our lives. If you’re a government official who deals with the press, you should acquaint yourself with the First Amendment and our rights under it.
“I would remind you that extremism in the defense of liberty is no vice! And let me remind you also that moderation in the pursuit of justice is no virtue.”
P.S. Matthew Cardinale and Atlanta Progressive News have spent a considerable sum defending the rights of all of us. Consider visiting their site and making a donation to offset their legal expenses; I have. I also highly recommend subscribing to their newsletter. Even though I disagree with his politics, I read every single edition as he covers topics neglected by the mainstream media.
P.P.S. The American Spectator used to publish a semi-humorous (if you appreciate droll humor) list of “enemies of the people”. I’m starting my own list.