[env-trinity] First Amendment Project: barring public from filming a BDCP public meeting is illegal

Dan Bacher danielbacher at fishsniffer.com
Wed Sep 18 15:18:16 PDT 2013


Photo of the Sacramento River at the Isleton Bridge on the California  
Delta by Dan Bacher.

original image ( 5184x3456)

First Amendment Project: barring public from filming a BDCP public  
meeting is illegal

by Dan Bacher

Restore the Delta on September 16 released an expert legal opinion  
finding that attempts by Department of Water Resources (DWR) and Bay  
Delta Conservation Plan (BDCP) officials to bar anyone from  
videotaping at any “public meeting” are illegal - and violate the  
First Amendment.

The legal opinion from the First Amendment Project to Restore the  
Delta refutes DWR's assertion that barring Gene Beley of the Central  
Valley Business Times or other Delta residents from recording  
activities at the DWR “Office Hours” held in Delta communities is  

“The agency has no legal right to exclude members of the public who  
wish to record the public officials' answers to their questions,”  
said Barbara Barrigan-Parrilla, Executive Director of Restore the  
Delta. “The staff who are imposing such restrictions should be made  
to cite chapter and verse on what legal authority they have to  
prevent members of the public from recording that which is occurring  
in public where they have a right to be and what they can hear with  
their unaided ear.”

Nancy Vogel, Director of Public Affairs for the Department of Water  
Resources, responding to the release of the legal opinion, said,  
"We’re not barring anyone from our in-Delta office hours, and we  
don’t intend to get into a duel of legal opinions."

However, Barrigan-Parrilla pointed out that the BDCP website states  
that members of the public are not allowed to videotape these "Office  
Hours. "That's illegal," she said.

"In order to encourage full participation, video recording will not  
be permitted," the website states, in reference to the "Office  
Hours." (http://baydeltaconservationplan.com/Calendar/ViewEvent/ 

Jim Wheaton, Founder and Senior Counsel of the First Amendment  
Project and Lecturer in Journalism Law in the Graduate Schools of  
Journalism at Stanford and University of California, Berkeley  
disagrees strongly with the Brown administration's contention that  
BDCP and DWR officials can legally bar people from videotaping public  

“The general rule is that a person is free to record, by audio  
recording, video recording or photograph, anything that can be heard  
or seen with the unaided eye," Wheaton said.

"There are three general limitations on this: (1) the person doing  
the recording has to be in a place they have a right to be (i.e. a  
trespasser has no right to record), (2) the person doing the  
recording cannot use a means to get access to the sight or sound by,  
for example, climbing a tree to look over the fence, (c) the person  
being recorded does not have a reasonable (objective) expectation of  
privacy (e.g. in the gym locker room)," he stated.

“The only codification of this law is found in the California Penal  
Code, section 632. There is a common body of law that addresses the  
invasion of privacy tort called ‘intrusion,’ which deals with  
people getting access to places or information they don't have a  
right to. But that common law tort turns on exactly the same  
standard: did the person have an objectively reasonable expectation  
of privacy. (See, e.g. Shulman v. Group W Productions (1998) 18 Cal  
4th 200.)

"Hence the language and case law under the Penal Code are  
instructive. For what it's worth, the common law tort contains an  
extra element not found in the Penal Code, that the recording be  
‘highly offensive to a reasonable person.’ Hence we will use the  
more privacy-protective language of the Penal Code to analyze whether  
there is a ‘reasonable expectation’ against recording.

“‘Penal Code section 632(a)’ prohibits [e]very person who,  
intentionally and without the consent of all parties to a  
confidential communication, by means of any. . .recording  
device,. . .records the confidential communication. . .

“Section 632(c) defines ‘confidential communication.’ ‘The  
term 'confidential communication' includes any communication carried  
on in circumstances as may reasonably indicate that any party to the  
communication desires it to be confined to the parties thereto, but  
excludes a communication made in a public gathering or in any  
legislative, judicial, executive or administrative proceeding open to  
the public, or in any other circumstance in which the parties to the  
communication may reasonably expect that the communication may be  
overheard or recorded.’

“Illustrative of the concept is Fiddle v. Epstein (1993) 16 Cal.App. 
4th 1649, in which a meeting of a real estate broker with purchasers  
carried an expectation that the participants would repeat what was  
said to others; this defeated any idea that the meeting was intended  
to be confidential under the Privacy Act. (But cf. Shulman, supra 18  
Ca;.4th at 234-235, and Sanders v. American broadcast Co's. (1999) 20  
Cal.4th 907, 915 [distinguishing expectation of complete privacy in  
the content of the communication from expectation against it being  
recorded],” said Wheaton.

Wheaton continued, “The exclusion is telling for the situation here.  
The definition of what may not be recorded without consent expressly  
and categorically ‘excludes a communication made in a public  
gathering or in any legislative, judicial, executive or  
administrative proceeding open to the public. . .’ That appears to  
answer the question decisively.”

Wheaton concluded, “The meetings described are a ‘public  
gathering’ and an ‘executive proceeding. . . open to the  
public’, they are held in a public meeting room, they are with  
public officials, and there is no expectation that what the public  
officials say will remain confidential with the member of the public.  
Whether conducted, as a broad meeting with an audience, or with an  
audience of one, there is no objective expectation that these are  
‘confidential communications.’”

Reporter and Delta resident Gene Beley explained, “I had the  
permission of the Delta residents that I included in the videos that  
we used... just not the DWR employees or their consultants. Also, I  
am a Stockton resident and property owner."

"I began reporting on this issue when I felt there was not enough  
publicity for the Delta residents from mainstream media. Now, just  
when the mainstream media is becoming interested, it is crucial to  
allow TV cameras into these venues to shine the spotlight on this  
multi-billion twin canal project," said Beley.

Barbara Barrigan-Parrilla added, “Caltrans removed our campaign  
signs and refuses to answer our requests for citing the legal  
authority behind their determination that signs must be 14 feet from  
Highway 160. Now DWR is seeking to restrict the rights of Delta  
residents to document what transpires in public meetings."

"Clearly the Brown Administration is trying to silence the opposition  
to the peripheral tunnels project. But it won’t work. Because each  
time they try to take away the rights of Delta residents, more  
Californians realize how unjust the project is and begin to question  
what the Brown Administration is trying to hide," she affirmed.

The opinion was released as the Brown administration is fast-tracking  
the $54.1 billion Bay Delta Conservation Plan (BDCP), started under  
the Schwarzenegger administration, to build twin tunnels to export  
water to corporate agribusiness interests irrigating drainage- 
impaired land on the west side of the San Joaquin Valley. The  
peripheral tunnels under the Delta will hasten the extinction of  
Central Valley Chinook salmon and steelhead, Delta smelt, longfin  
smelt, green sturgeon and fish species, as well as posing an enormous  
threat to salmon and steelhead populations on the Trinity and Klamath  

To see Gene Beley’s video of the Brentwood DWR “Office Hours”  
meeting go to http://vimeo.com/73928299.

In recent years, many reporters have been harassed and arrested for  
exercising their First Amendment rights in a climate of increasing  
repression of Freedom of Speech by the state, federal and local  

For example, David Gurney, an independent film maker from Fort Bragg,  
sued officials from the Marine Life Protection Act (MLPA) Initiative  
and state agencies in Mendocino County Superior Court over his arrest  
for recording and speaking at a "work session" in Fort Bragg on April  
20, 2010. http://www.indybay.org/newsitems/2011/01/21/18669769.php.

In a controversial ruling in July 2012, a Ukiah Superior Court judge  
ruled in Gurney v. CA DFG et al – that California’s Marine Life  
Protection Act Initiative “North Coast Regional Stakeholders  
Group” "was not subject to California’s Bagley-Keene Open Meeting  
Act laws, nor the state or federal Constitution," according to Gurney.

According to Hon. David Nelson, neither the MLPA Initiative’s staff,  
its commercial contractors, nor the 34-member “North Coast Regional  
Stakeholders Group” (NCRSG) were bound by state laws that assure the  
public and the press the right to record public meetings. (http:// 

About Restore the Delta (RTD): Restore the Delta is a 10,000-member  
grassroots organization committed to making the Sacramento-San  
Joaquin Delta fishable, swimmable, drinkable, and farmable to benefit  
all of California. Restore the Delta works to improve water quality  
so that fisheries and farming can thrive together again in the  
Sacramento-San Joaquin Delta. For more information, go to: http:// 

Background: the Brown administration's terrible environmental record

The rush to build the peripheral tunnels under the Bay Delta  
Conservation Plan is not the only abysmal Schwarzenegger  
administration policy that the Brown administration has continued and  

Brown and Natural Resources Secretary John Laird continued the  
privately-funded Marine Life Protection Act (MLPA) Initiative started  
by Governor Schwarzenegger in 2004. The conflicts of interest,  
failure to comprehensively protect the ocean, shadowy private  
funding, incomplete and terminally flawed science and violation of  
the Yurok Tribe's traditional harvesting rights have made the MLPA  
Initiative to create so-called "marine proected areas into one of the  
worst examples of corporate greenwashing in California history.  

In a huge conflict of interest, Catherine Reheis-Boyd, President of  
the Western States Petroleum Association (WSPA), chaired the Marine  
Life Protection Act (MLPA) Initiative Blue Ribbon Task Force to  
create so-called "marine protected areas" in Southern California.  
Reheis-Boyd, the oil industry's lead lobbyist for fracking, offshore  
oil drilling, the construction of the Keystone XL Pipeline and the  
evisceration of environmental laws, also served on the MLPA task  
forces for the North Coast, North Central Coast and Central Coast.

The Brown administration also authorized the export of record water  
amounts of water from the Delta in 2011 – 6,520,000 acre-feet,  
217,000 acre feet more than the previous record of 6,303,000 acre  
feet set in 2005 under the Schwarzenegger administration.

Brown also presided over the "salvage" of a record 9 million  
Sacramento splittail and over 2 million other fish including Central  
Valley salmon, steelhead, striped bass, largemouth bass, threadfin  
shad, white catfish and sturgeon in 2011. (http:// 

Most recently, Brown's office said on September 11 that the Governor  
will sign Senator Fran Pavley's gutted fracking bill - legislation  
that creates a clear path to increased hydraulic fracturing in  
Monterey Shale deposits in California. The groundwater and surface  
water pollution resulting from increased fracking poses enormous risk  
to fish populations in the Central Valley and ocean, as well as to  
human health.

Calling the legislation "an important step forward," Brown spokesman  
Evan Westrup said the Governor "looks forward to signing it once it  
reaches his desk." (http://www.alternet.org/fracking/california- 

Other environmental policies of the Schwarzenegger administration  
that Brown and Laird have continued include engineering the collapse  
of six Delta fish populations by pumping massive quantities of water  
out of the Delta; presiding over the annual stranding of endangered  
coho salmon on the Scott and Shasta rivers; clear cutting forests in  
the Sierra Nevada; supporting legislation weakening the California  
Environmental Water Quality Act (CEQA); and embracing the corruption  
and conflicts of interests that infest California environmental  
processes and government bodies ranging from the Bay Delta  
Conservation Plan to the regional water boards.

There is nothing "green" about Governor Jerry Brown other than the  
tainted corporate money that he worships.

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