Phoenix attorneys defend First Amendment
By Candace S. Hughes
Special to The Arizona Business Gazette Published 2006
When letters to the editor are challenged for being offensive or when cities refuse to turn over public records, it’s citizens of the United States who are harmed when the free flow of information is impeded, say Arizona reporters and First Amendment attorneys.
Dan Barr, 49, of Perkins Coie Brown and Bain and David Bodney, 51, of Steptoe and Johnson have been representing Arizona newspapers for more than 20 years in these types of cases.
Bodney, who also is counsel for The Arizona Republic, assisted The Tucson Citizen in a case for which Michael Chihak, publisher of the Citizen, received a Sunshine Award from the Valley of the Sun chapter of the Society of Professional Journalists.
A letter to the editor published more than two years ago resulted in two Muslims suing the paper for assault and for intentional infliction of emotional distress.
While a Pima County Superior Court judge quickly dismissed the assault claim, it took further work on Bodney’s part to remove the remaining part of the suit.
In a precedent-setting decision, the Arizona Supreme Court found in July 2005 that debate, even if the content is offensive, should be allowed as long as no named individual is in imminent danger of harm, Bodney said.
The letter asserted that Americans could respond to the deaths of American troops in Iraq by killing Muslims in mosques. Although the letter writer later explained that he was calling for this practice to take place in Iraq and not on American soil, Muslims in the Tucson area were concerned.
“The Arizona Supreme Court supported the First Amendment right of the public to engage in robust political speech and it established procedural safeguards for the dismissal of lawsuits that run afoul of a person’s First Amendment rights,” Bodney said.
“The court recognized that even offensive political speech deserves some measure of First Amendment protection and that not every insensitive remark contained in a letter to the editor should give rise to litigation,” he explained.
“There is a difference between falsely yelling fire in a crowded theater and publishing a letter to the editor in a newspaper,” Bodney said, noting that the newspaper also published more than 20 letters protesting the original letter that was considered to be offensive by the plaintiffs.
In the case involving the city of Williams, Barr assisted The Arizona Daily Sun in obtaining an employee’s personnel file.
Citing the fact that the community paid the price when the Williams City Council refused to reveal the contents of its police chief’s personnel file, the Arizona Press Club made the municipality the first runner-up for its Annual First Amendment Disservice Award.
“This year, two cases clearly stood out as worthy of our scorn. I’m sad to report that I have a connection to this year’s runner-up – the city of Williams,” said Laura Clymer press club president and Arizona Daily Sun city editor.
“When that city stonewalled us on public information, it was my newsroom and my community that paid the price. Last April, Williams Police Chief Frank Manson unexpectedly resigned his post after blasting the city for violating open meetings laws.
“But when my staff at the Arizona Daily Sun requested a copy of his severance agreement with the city, officials told the paper to take a hike.
“We did – to the Coconino County Superior Court, where we sued Williams. Seven months later, a judge heard arguments and took a look at the documents.
“His decision: the city had acted ‘arbitrarily and capriciously.’ The document was to be released. Fighting the city cost the Sun nearly $20,000 – a sum the judge has order Williams to repay us. Talk about a waste of money!”
The council paid the police chief a year’s salary to resign, keep quiet and turn over all his documents, the paper reported. And it took a lawsuit and requirement to pay attorney’s fees to get the records. “Unfortunately, money’s the only thing they understand,” Barr said.
In a case that went to the Arizona Court of Appeals, Barr won a decision that the public’s right to know was greater than confidentiality of an employee’s personnel file. The Coconino Superior Court has concurred in the case and ordered the city of Williams to pay $11,000 in attorney’s fees.
Barr’s work also prevailed in a similar case involving a personnel file for a Scottsdale police officer, and both cases won the SPJ Special Citation of Merit. Don Rowley, publisher of the Arizona Daily Sun and Karen A. Wittmer, publisher of the Scottsdale Tribune also received citations.
In giving the awards the SPJ citation stated: “In two cases within a year’s time, First Amendment attorney Dan Barr won victories for the public’s right to examine employment-related records of government workers.”
Mark Scarp, SPJ chapter president, said: “It’s important for the public as well as the journalistic community to know that without the right to access to such information, stories like this would not be told and the public would be more vulnerable to government interference and intrusion.”
“If you like your clients and it’s fun to work for them you get a lot more enjoyment out of what you do,” said Barr, who was an Arizona Republic reporter before going to law school.
Barr said he began receiving calls from friends who were reporters as soon as he graduated from law school and began a small media practice.
He now is part of the First Amendment Coalition and takes turns answering limited telephone inquiries without a fee if reporters have questions about closed meetings and public records.
Jodi Cleesattle, an attorney with Ross, Dixon & Bell in San Diego, said that reporters have become more aggressive in the last year in asking for records to be made public and for meetings to be opened.
Cleesattle, a former reporter for The Lancaster (Ohio) Eagle-Gazette, moderated the panel “Reporter’s Privilege Under Siege” at the Society of Professional Journalists 2005 convention.
“Often if the reporter puts in a request in the form of a letter or under the Freedom of Information Act it will open up the meeting,” she said. “But sometimes when this is refused attorneys must come in with a letter about why the council meeting can’t be closed.”
When personnel files are involved it often does require an attorney to explain why this is public information in the case of public employees, said Cleesattle. She added that it was important for an attorney to act early when a suit is filed such as The Tucson Citizen case so that fees can be minimized and the First Amendment also is used as a reason for the newspaper’s action.
“It’s a way of getting rid of a case very early in the litigation before costs pile up,” she explained.
Asking judges to pay attorney’s fees when the newspaper prevails in a case helps, Cleesattle remarked. “Often small newspapers don’t have the money to challenge government at every turn, but if they have the ability to get fees back it’s helpful.”