Your Advocate: an editor's blog

How much do you value the public's right to know?

In Your Advocate: an editor's blog

Chris Cobler

By Chris Cobler
May 14, 2013 at 12:14 a.m.

Our democracy rests on an intricate set of checks and balances, brilliantly envisioned by our forefathers. 

Yet, our lawmakers too often want to chip away at democracy's cornerstone -- the public's right to know. Some of the offending legislation is well-intended, but some politicans fail to keep the First Amendment in the same pre-eminent position our founding fathers gave it. 

The Freedom of Information Foundation of Texas spends most of the Texas legislative session trying to inform, remind and admonish lawmakers about the public's right to know. 

On behalf of FOIFT, I played a small part Monday by testifying about two bills before the House Criminal Jurisprudence Committee. The FOIFT tracks dozens of bills. It would be wonderful if lawmakers proposing changes in government openness and transparency would check with our organization first, but instead the FOIFT director, its board members and other volunteers race around trying to keep up with the avalanche of bills, many of which end up doing more harm than good. 

Here are the talking points I brought with me from the FOIFT for the bills I testified against: 

SB 1798 Notes: Relating to the prosecution of the offense of obstruction or retaliation. Creates an offense if a person posts on a publicly accessible website the residence address or telephone number of an individual the actor knows is a public servant or a member of a public servant's family or household with the intent to cause harm or a threat of harm to the individual or a member of the individual's family or household in retaliation for or on account of the service or status of the individual as a public servant.

FOIFT's stance: We consider SB 1798 to be offensive to First Amendment doctrine. 

 -- The bill criminalizes the simple posting of information online. It does not criminalize actual harm or an actual threat of harm made against a public servant (which are already crimes), but rather criminalizes the posting of information (address and phone number of a public servant), on the internet, and makes it a felony to do so if there is an "intent" to cause harm.

 -- And what exactly constitutes the evidence of intent to harm under the bill? Under this bill, evidence of intent to harm exists if the public servant makes a written request to remove their information, and the poster does not do so within 48 hours. That's it. 

 -- This construction of "intent" will have the effect of chilling speech that law enforcement disagrees with, or would rather not have asserted in the public domain. However, the First Amendment protects all speech, with very few exceptions. 

 -- One such exception not falling within First Amendment doctrine are threats of violence directed at a person (Virginia v. Black, SCOTUS, 2003). However, SB 1798 goes well beyond this narrow exception to First Amendment doctrine and criminalizes speech that contains no threat of harm. It creates an implication that intent to harm exists if law enforcement asks to have it taken down and it isn't taken down. This is self-serving, and not consistent with First Amendment jurisprudence. 

 -- Even worse, this would be a felony, for simply posting a public servant's address and telephone number, even if there is an absence of actual intent to harm. 

 -- This bill appears to be in reaction to the malicious postings elsewhere by the hacker group known as Anonymous. Anonymous is doing all kinds of malicious things on the Internet. They've also targeted the U.S. State Department, among others. It's worth emphasizing that the general public is at risk, as well, from hackers. We certainly should look for safeguards from hackers. But our response cannot be to close down/close off government or crack down on all free speech on the web, which this bill seems to be doing. Thank you for your time and attention. 

SB 834 Notes: Relating to the confidentiality of certain grand juror information. This bill would close off the identity of grand jurors. 

FOIFT's position: Our concerns about SB 834 focus on its intent to keep secret the names of grand jurors. -- Shutting off this information to citizens does not serve the public good. Something as important as the makeup of grand juries should certainly not be kept out of public view. 

-- Currently, the home addresses, phone numbers, social security numbers and home telephone numbers of grand jurors are confidential under Texas law 

-- However, the names are available to the public. Citizens have the right to know who is selected for a grand jury. Checks and balances can be kept on the system by looking at the makeup of grand juries and determining whether there are conflicts of interest among those selected or any other questionable matters. 

-- Grand juries have broad powers to compel the production of documents and the testimony of witnesses. They meet in secrecy. Only about half of the states in the union use grand juries. Those that still do generally support the idea that they serve as a safeguard against prosecutorial overreach. 

-- However, that check and balance becomes unlikely if the public doesn't even know who is serving on the grand jury. What would stop a district attorney from hand-picking grand jurors who will rubber-stamp his decisions? Texas history, unfortunately, is filled with examples of DAs abusing their power. 

-- In my 30 years of newspaper experience, I've never heard of even one grand juror being subjected to any harm from his or her name being public. This bill seems to be a solution to a problem that doesn't exist. Instead, this legislation seriously damages the spirit of openness and transparency in Texas government. -- Our democracy rests upon the public's right to know, and that is why the Freedom of Information Foundation of Texas urges you to reject SB 834. Thank you for time and attention. 
Have you ever testified before the Legislature? It is an intimidating and time-consuming process. I'll post later on the question-and-answer sessions that followed my testimony.



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