Criticize the mayor, get sued

June 3, 2015

OPINION By PETER SCHEER

Inglewood CA doesn’t have much to commend it. To the various reasons not to live there–like high crime rates and bankrupt schools—the city government has added this threat: if you criticize the mayor or other officials, the city will hire lawyers to censor you.

That is the clear message to be drawn from Inglewood’s recently filed lawsuit in federal court against one Joseph Teixeira, a city resident. (City of Inglewood v. Teixeira.) Teixeira, who has a low opinion of Inglewood’s mayor, James Butts, shared his criticisms of the city’s chief executive in a series of videos. Posted to YouTube, they consist of Teixeira’s commentary interspersed with clips from the official recordings of Inglewood City Council meetings.

The  city’s lawsuit seeks damages, an injunction barring further airing of the videos on YouTube, plus payment by Teixeira of the city’s attorney’s fees—all for having the audacity to criticize his local government’s policies and leadership. Inglewood’s legal theory? That by incorporating into his YouTube videos segments of the official recordings (both video and audio) of council meetings, Teixeira infringed the city’s copyright. Seriously.

Now, copyright and freedom of speech coexist uneasily in the first amendment ecosystem,  as legal scholars have long noted. But putting that rather esoteric issue to one side, the real question here is more political than legal: How could Inglewood officials and their lawyers possibly have concluded that suing one of their more outspoken critics, in hopes of unplugging his unflattering videos, was an appropriate use of taxpayer dollars?

This is America, not Iran. Inglewood’s citizens are free to criticize government–openly, loudly, even offensively. (This is sometimes also referred to as “politics.”) Teixeira was exercising his birthright of U.S. citizenship, the most fundamental of rights in a democracy, enshrined in the first amendment to the Constitution. If that amendment means anything, it means that government is powerless to use the legal system to suppress political expression that the government dislikes.

Inglewood’s city council members, however, didn’t get the memo. And their attorneys apparently missed their law school classes on the first amendment.

Although Inglewood no doubt will argue that censorship was the furthest thing from city officials’ thinking—that the city sued Teixeira only to protect the value of Inglewood’s “intellectual property”—that is utter nonsense. The commercial value of the city-made videos of City Council meetings is zero. In fact, it’s hard to imagine video content with less audience appeal–and therefore less opportunity to sell ads or generate other revenue—than a bunch of council members sitting at a council meeting, alternately checking their email, checking the clock, and dozing off.

The only reasonable conclusion is that this lawsuit was cooked up to shut up Teixeira.

Back to the copyright issues for a moment . . . The city’s copyright claim must fail because the city council videos are public records subject to California’s Public Records Act. By enacting the PRA, the state waived copyrights to government-created records (except for the few that the Legislature specifically designates as copyrighted). Otherwise, the PRA would be meaningless, since local governments and agencies could assert copyright over any records they don’t want to disclose, regardless of the availability of PRA exemptions.

Copyrights, because they impose restrictions on expression, are in tension with the first amendment’s protection for free speech. We nonetheless have copyrights (in fact, they are mentioned in the Constitution) on the theory that they provide needed incentives for content creators–authors, artists, computer programmers and others. But this rationale makes little sense when a government entity, rather than a private individual or company, claims ownership of a copyright.

Copyright protection for recordings of Inglewood’s city council meetings won’t stimulate the making of more or better recordings; it will not cause the city to have more, or more productive, city council meetings. It serves no purpose other than to give city officials a club with which to suppress dissent.

Inglewood’s censorship suit deserves to be tossed out of court at the earliest opportunity. And Inglewood’s voters hopefully will make known their disapproval in the next election. Voting out the mayor and council members would be a powerful reminder that their job is to serve citizens, not sue them.

Teixeira’s videos are still available on YouTube here, here and here. This is a link to Inglewood’s lawsuit. Peter Scheer, a lawyer and journalist, is executive director of First Amendment Coalition. The views expressed here do not necessarily reflect the views of FAC’s Board of Directors.