Public Records, Copyright, Fair Use and a Developer’s Belief that the Irvine City Council is Not Doing “What’s Right for the City”

Last week, we offered a post that TheLiberalOC might be sued for releasing a voice mail and a transcript of said voice mail from a consultant to FivePoint Communities that was left on Irvine Council member Lynn Schott’s private voice mail which was released to this blog as part of a public records request.

We sought counsel from lawyers, journalists, Think Tanks and from Terry Francke at CalAware, an expert on California Public Records.  There’s broad agreement that a public record is a public record and a claim of copyright privilege to prevent publication of this public record would not hold up under First Amendment protections and Fair Use.  Mr. Francke offered this comment last week:

“Dan, in 37 years of following media and intellectual property law I’ve never seen any cases or other authority suggesting that one has a copyright or any other IP protected interest in the messages one leaves in voicemail to a government official.  If this individual could cite any he would have.”  

I’m not a lawyer.  I have taken Communications Law classes and have read a number of books about changes in communications law with respect to changes in technology — social media, digital media, and updated legal rulings to stay current.  I have also read extensively on free speech, journalism ethics and opinion writing.  I’m faulted by many of OC’s other bloggers for the nature of comments allowed on this blog, but I generally leave comments alone.  Only four people have ever been banned here, and quite often I’m the subject of considerably negativity in comments which I allow.  I believe in free speech and open debate.  I also don’t censor or rewrite comments left by others — bad spelling and all — as other blogs do. And those comments here are owned by those who write them.

Back to the issue at hand.

Today, we’re posting the voice mail audio file and the transcript of the call after this memo from one of my lawyers.  This is not an in-the-weeds strategy of defense but a memo in layman’s terms to explain why we’re protected and why threats to sue have little merit:

QUESTIONS PRESENTED

Does an online publisher face liability for the publication of a voicemail received from a municipality in response to a request under the Public Records Act?

Does an online publisher face liability for the publication of text messages purportedly sent “Off The Record” when in fact no agreement regarding the messages was made?

Is an “Anti-SLAPP Motion” likely to be successful in response to a lawsuit brought against an online publisher for publication of either of the above?

BRIEF ANSWER

An online publisher is very unlikely to face liability for the publication of such a voicemail. Though it would be possible to bring a claim for invasion of privacy, publication of private facts, copyright infringement or various other causes of action, the facts here do not meet the required elements of these torts. Moreover, the First Amendment and California Law provide broad protection for publishers.

The publication of such text messages is unlikely to result in liability, for the same general reasons above. Additionally, the claim that messages are “Off The Record” does not give rise to any separate cause of action or basis for liability, instead it is primarily an issue of journalistic ethics.

If sued for publishing such voicemail or text messages, an online publisher would be able to mount a very strong defense based on California’s Anti-SLAPP Law. This procedural remedy is available in both Federal or State Court and in defense to any cause of action, including Copyright Infringement. If a Defendant brings a successful Anti-SLAPP Motion the Plaintiff is required to pay their attorney’s fees and costs.

FACTUAL SUMMARY

Dan Chmielewski is the publisher and Editor-in-Chief of The Liberal OC, a blog that runs articles related to politics in Orange County, California. Mr. Chmielewski filed a request under the California Public Records Act (PRA) with the city of Irvine on August 29, 2017 seeking information on various real estate development projects. In response, along with other documents and materials, he received a copy of a voicemail left on an Irvine city councilmember’s phone by Mr. Patrick Strader, a consultant for major real estate developer in Irvine. The content of the voicemail are irrespective to the analysis herein, except that they are relevant to the request made and relating to a matter of public concern.

Prior to publication of the voice mail or its contents, Mr. Chmielewski contacted Mr. Strader for comment. In response Mr. Strader sent a message claiming to be “OFF THE RECORD” and stating that consent for publication of the voicemail was not given. Mr. Strader claims that the voicemail is a private record, not a “public communication”, because he intended it to be so. Mr. Strader also claims that, since he owns the copyright to the voicemail, his consent is needed prior to reproduction, that publication would be an invasion of privacy, a violation of wiretap rules, and open The Liberal OC to liability under “several other torts”. After being reminded by Mr. Chmielewski that “Off the record” requires agreement from the journalist, Mr. Strader goes on to claim that Copyright infringement is not subject to a motion under California’s Anti-SLAPP law as it is a “Federal IP tort”.

ANALYSIS

In general, the First Amendment provides broad protections to publishers, including for publication of information which a party claims is “private”. Supreme Court decisions have extended that protection even to republication of an illegal intercepted communication, holding “privacy concerns give way when balanced against the interest in publishing matters of public importance.” Bartnicki v. Vopper, 532 US 512 (2001). As there is no allegation that Mr. Strader’s voicemail message was illegally obtained, there are considerably less privacy concerns presently.

The present matter perhaps more closely resembles President’s Trumps legal threats to New York Times following publication of his tax returns, except such tax returns are specifically designed as private by federal statute, 26 U.S.C. § 7213 (a), unlike voicemails. Legal experts almost unanimously agreed that President Trump’s legal threats were baseless, with some going as far to call them “preposterous”. 11 First Amendment experts comment on legality of NYT release of Trump’s tax returns, Concurring Opinions available at https://concurringopinions.com/archives/2016/10/fan-125-1-first-amendment-news-10-first-amendment-experts-comment-on-legality-of-nyt-release-of-trumps-tax-returns.html.

POTENTIAL CAUSES OF ACTIONS AGAINST THE LIBERAL OC

Invasion of Privacy – Public Disclosure of Private Facts

In California the elements of Invasion of Privacy – Public Disclosure of Private Facts are: (1) public disclosure; (2) of a private fact; (3) which would be highly to the reasonable person; (3) that the defendant knew or acted with extreme disregard to the offensive nature of publication, (4) which is not of legitimate public concern, and (5) was a substantial factor in causing harm to the Plaintiff. California Civil Jury Instructions (CACI) § 1801.

In the present matter, it is clear that many of these required elements are missing. Specifically, the voicemail and text messages in question are understood to be of a public concern, relating to development projects in the City of Irvine. Moreover, it is unclear how the publication of messages relating to city business left on the phone of city councilmember would be “highly offensive” to a reasonable person. See Gates v. Discovery Communications, Inc., 101 P.3d 552 (Cal. 2004). In fact, numerous laws make it clear that public policy in California is that such records are, in fact, public in nature and that access to them “is a fundamental and necessary right of every person in this state.” See CA Gov. Code § 6250 et seq.

Additionally, even if the publication of such a message was found to be highly offensive to a reasonable person, there is no evidence of actions with knowledge, or extreme disregard, of the offensive nature of publication. In fact, seeking comment from Mr. Strader and this legal opinion are efforts by The Liberal OC which demonstrate an intention to act with regard for any rights of Mr. Strader.

Intrusion into Private Affairs

It is believed that Mr. Strader is alluding to the tort for “Intrusion Into Private Affairs” when he threatened to sue The Liberal OC based for violation of “wiretap rules”. This tort, however, includes the elements that the Defendant intentionally intruded, in a manner highly offensive to a reasonable person, into an area where the Plaintiff had a reasonable expectation of privacy. CACI § 1800.

In the present case, there is no evidence of an intention to violate privacy. In fact, there is a request under the California Public Records Act. As noted above, access to public records is considered an essential right in California. It therefore cannot follow that exercising this essential right is an act “highly offensive to a reasonable person.”

Moreover, it is clear that the records produced are ones in which Mr. Strader did not have a reasonable expectation of privacy. Mr. Strader purposefully left a message for a city council member related to an issue of public concern, he was not covertly recorded.

The fact that Mr. Strader left the voice message on the private phone of the city councilmember, apparently in an attempt to hide the message from any requestor, does not create a reasonable expectation of privacy as the content of the message still pertain to municipal issues. In fact, Courts have decided that e-mails and text messages relating to local agency business on personal devices are public records. City of San Jose v. Superior Court, 2 Cal. 5th 608 (2017). Similarly, there is no precedent that putting “OFF THE RECORD” at the beginning of text messages sent to a journalist creates an expectation of privacy in those messages, especially as accepting information “Off the Record” is a matter of agreement within the news industry.

Copyright Infringement

An action for violation of Federal copyright laws requires a Plaintiff to demonstrate a ownership of a copyright and infringement of the material. It is the Plaintiff’s burden to demonstrate the required elements, though intent on the part of the publisher is not a required element as this is a “strict liability” tort. See 17 U.S.C. §§ 101 et seq. However, numerous defenses, including Fair Use, are available as defenses in the present matter. Id. at § 107.

In the present matter it is assumed that Mr. Strader owns a copyright in his voicemail and text messages. Republication of the messages would then be an act of copyright infringement, were it not for the statutory exemption for “Fair Use”.

In considering “Fair Use” courts examine four factors: (1) purpose and character of the use, (2) the nature of the work, (3) amount of publication in relation to work as a whole, and (4) any effect on the value of the work. Reproduction for the purposes of “criticism, comment, [and] news reporting” are specifically cited as examples of Fair Use. Id.

In the present matter, after reviewing the factors, it is exceptionally clear that The Liberal OC would have the Fair Use defense available in any action brought for copyright infringement. The purpose of the use is in news reporting, specifically cited in the statute as a “Fair use”. Id. The nature of the work itself, as one created incidentally and not for commercial purposes, also argues against a finding of copyright infringement. Finally, it does not appear that the “work”, the voicemail and text messages, have any commercial value that would be decreased should The Liberal OC publish.

POTENTIAL DEFENSE: CALIFORNIA’S ANTI-SLAPP STATUTE

California’s Anti-SLAPP (Strategic Lawsuit Against Public Policy) Law allows a defendant to file a special motion to strike a lawsuit filed against them for an “act in furtherance of their right of petition or free speech…” Cal. Civ. Proc. Code § 425.16. Specific acts protected by the Anti-SLAPP provisions include any publication “made in connection with an issue under consideration of review by a legislative.. body” or “made in a public forum in connection with an issue of public interest.” Id. at (e) (2,3). Under California law, a publicly accessible website is considered a public forum. See Barrett v. Rosenthal, 146 P.3d 510 (2006).

Since California’s Anti-SLAPP is considered procedural in nature, the filing of motion to strike under its provisions is also available in Federal District Court. United States v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999). As it looks at the purpose of filing a lawsuit, rather than any specific tort claims, an anti-SLAPP motion may be filed with regards to any cause of action.

In deciding at Anti-SLAPP motion, a court is instructed to weigh the free speech right of the defendant against the plaintiff’s probability of success. First the moving party must demonstrate that the cause of action arises from a protected activity. If they are successful in that regard, the nonmoving party then has a burden to demonstrate their probability of prevailing. Cal. Civ. Proc. Code § 425.16.

In the present matter, it seems almost a foregone conclusion that the Liberal OC would be able to demonstrate that any action against them arose out of an “act in furtherance of their right of.. free speech”. The information in question relates specifically to review of development by a local legislative body, the Irvine City Council, and any possible publication would be in a public forum, The Liberal OC website, and clearly relates to a public issue. See Damon v. Ocean Hills Journalism Club, 85 Cal. App. 4th 468 (2000) (holding governance of a homeowners’ association is a matter of public interest in the application of California Anti-SLAPP law).

Once The Liberal OC is able to demonstrate that a fundamental right of theirs is under attack, the burden would shift to Mr. Strader to demonstrate his likelihood to prevail on any causes of action. For the reasons identified in the prior section, it seems highly unlikely that he would be able to demonstrate a high chance of success.

Accordingly, we would expect The Liberal OC to prevail in a motion to strike against a lawsuit filed by Mr. Strader related to publication of the voice message and/or text messages. Per California’s Anti-SLAPP law, this would result in Mr. Strader responsibility for all of The Liberal OC’s reasonable attorney’s fees and costs associated with defending against such a lawsuit.

This isn’t posted so much as a legal strategy but details about what Mr. Strader, a lawyer himself, doesn’t get about how this journalism business works.

So here’s the Voice Mail in an audio file and the transcript is below.  The message was left for Irvine council member Lynn Schott on her personal cell phone:

Hey Lynn, Patrick Strader calling.  Wanted to let you know we have copies of all group scopes from (unintelligible) so not withstanding your comments about the back and forth, we were 100% correct. Don’t know what staff was talking about.  I also don’t know how you made the motion you did but would like to talk.

I’m getting the sense that you are going to not, you know, being in an open mood to dealing with us and that’s unfortunate considering that we have built everything that is out there. Opening, ah, we bargained for this in 2013 and, ah, it’s disappointing to see a lot of that try to be changed.   So obviously we need to recalibrate the relationship between you and FivePoints.  

Ah, I need to understand why it is that you are, ah, taking these action so, ah, give me a call back at your convenience, I, uh, you know want to work together otherwise it’s going to be a long couple of years here and it’s not our intention (unintelligible) we have nothing but the intentions of doing what’s right for the people (unintelligible).

I thought that your quoting back my testimony was totally unfair, uh, I have been called up by Mayor Wagner to talk specifically about the confidentiality agreements and how you quoting that (unintelligible) and having it read back made it look you guys were the ones worried about what’s right for the city and I just do not feel that that is the apparent given the previous years. We are the ones that are trying to save the amphitheater, we are the ones trying to build a cemetery, we are the ones trying to get a lot of stuff done out there, and I have not seen any evidence that that is the guiding principle on the city’s side, so please give me back.  Call me back, like I said, I do not wish to have this continue so we need to figure out a way to work together so talk to you soon. Bye.

….

“…made it look you guys were the ones worried about what’s right for the city…” seems to be the most damning line here from Strader.

….

I encourage you to listen to the audio file because a transcript doesn’t capture inflection and emotion that the voice mail provides.  The voice mail itself isn’t particularly damning other than, in my opinion, that Strader seems to want to get Lynn Schott in line with the developer’s goals and that he took offense to having his own words read back to him by someone he seeks to influence.  I find it hard to believe a developer cares more about what’s good for the city than an elected city council member; the developer cares about a bottom line and profit.  And they will certainly offer an incentive to attain profit.

The threat of a lawsuit for publishing said voice mail is far worse than anything in Strader’s message.  This is a public record regardless of where the message was left (On Schott’s private cell phone) and an attempt to muzzle the publication of the public record shows the depth to which the developer doesn’t want the public to know how it operates and what their interactions with city council members are like.

I have to wonder if they interact with every city council member with this sense of entitlement and arrogance.  Next time,. Mr. Strader (or Mr. Haddad) should just leave a voice mail saying, “Please call me back.”

Mr. Strader promised that, should this message be published, it will be an “expensive lesson.”

Expensive for whom?