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