Pacificana.Org - all things pacifican

The National Elections Supervisor has ruled on the question of candidate statements. The ruling is technically correct (Pacifica can't enjoin alleged libel against candidate statements) but then worngly applies this ruling by enforcing sanctions for alleged libel against candidates.

I want to point out the interesting aspect that the ruling includes a wrong statement of law that is immediately followed by a citation demonstrating how the statement of law is wrong.

The wrong statement of law is, "In previous Pacifica election cycles, the foundation counsel opined that libel is the only reason to ban statements."

In fact, libel is not a valid reason to ban statements. As I stated at length in my Open Letter to Dan Siegel http://www.pacifica.org/current-events/an-open-letter-to-the-pacifica-co... (also posted at NewPacifica as Message 80101 http://groups.yahoo.com/group/NewPacifica/message/80101 ) California Nonprofit Law explicitly states that a nonprofit is immune from liability for the contents of candidate statements and if a nonprofit corporation has concerns about immunity is should seek a court determination on the question.

The NES follows the wrong statement of law with the statement:

"Our ability as a membership organization to determine for ourselves whether candidate statements may contain libel is constrained by the precedent of Salzhandler v. Caputo (2nd Cir. 1963) which held that Union discipline for libel is invalid per se as an infringement of the union member's right to free speech.The remedy remaining to the aggrieved parties is to sue the offending parties for libel."

In fact, the case cited does not "constrain" an organization from its right to ban statements that may have libel it prevents them from thinking libel is a basis for censorship. Salzhandler held that the protection afforded by the LMRDA was so broad that even libelous speech was protected.

Since Salzhandler is a federal labor relations ruling, there is an even better case precedent in KQED v. Hall (135 Cal.App.3d 951) which refers specifically to California Nonprofit Law on the question of whether prior review by KQED radio station of the content of materials sent by one memer to other members was valid. The court that held a nonprofit corporation radio station was not allowed to review the contents of a member's communication to other member's becasue the staturoty scheme does not permit it and does permit a remedy if there is abuse of the right of communication. As the reader can see, this is the same result as the union case Salzhandler v. Caputo where the court said there is a proper remedy that does not involve censorship.

California Nonprofit Law provides the safe-harbor immunity that corresponds to this law and protects nonprofit corporations from third party claims of libel in candidate statements.

Here's what I wrote in my open letter:

In the process of adopting the Fair Campaign Provisions the question of abusive political debate.was raised and rejected as being against free speech and impossible to define. Your present arbitrary decision proves the wisdom of that choice. You admit that "distinguishing between reasonable criticism and 'personal attacks'" is "problematic" for the courts, yet you unilaterally and arbitrarily assert your own higher ability to do just that.

In fact, to keep nonprofits from even attempting to do what you have done, that is, to arbitrarily decide the organization might be liable for a candidate's statement and use that as justification for censorship, California specifically law protects nonprofits from any liability for candidates statements.

California Corporations Code states:

5525. (a) This section shall apply to corporations publishing or mailing materials on behalf of any nominee in connection with
procedures for the nomination and election of directors.
(b) Neither the corporation, nor its agents, officers, directors, or employees, may be held criminally liable, liable for any negligence (active or passive) or otherwise liable for damages to any person on account of any material which is supplied by a nominee for director and which it mails or publishes in procedures intended to comply with Section 5520 or pursuant to Section 5523 or 5524, but the nominee on whose behalf such material was published or mailed shall be liable and shall indemnify and hold the corporation, its agents, officers, directors and employees and each of them harmless from all demands, costs, including reasonable legal fees and expenses, claims, damages and causes of action arising out of such material or any such mailing or publication.
(c) Nothing in this section shall prevent a corporation or any of its agents, officers, directors, or employees from seeking a court order providing that the corporation need not mail or publish material tendered by or on behalf of a nominee under this article on the ground the material will expose the moving party to liability.

This section plainly protects Pacifica from any liability for any material supplied by a nominee for director. As such it would also apply to nominees for delegates where the publication is in furtherance of complying with Section 5520's fair election procedures requirement. Thus your claim that your action is defending Pacifica from complaints by other candidates is patently false. The law specifically immunizes Pacifica from these types of claims between competing candidates.

If Pacifica has a problem with any campaign materials or thinks that any liability may arise, then Section 5525 provides the remedy: seek a court order. The law says Pacifica and its agents and employees are not liable, but if there is doubt then Pacifica or its agents and employees who believe there may be liability may see a court review. You have subverted the statutory scheme by inserting your own view of potential liability for that of the due process provided by law for a court to determine if liability extends to anyone. This kind of usurpation of law is the definition of tyranny.

If one candidate has a complaint against another candidate for alleged defamation, that is a private action and has nothing to do with Pacifica. You know that political speech is the most protected speech under the First Amendment that there is. Therefore any assertion that Pacifica has a duty or obligation to infringe political speech has no basis in law.

Perhaps my style of language is not easy to grasp, but it should be clear that the legislative intent obliges nonprofits to publish campaign statements that contain alleged libel, that is, nonprofits may not use libel as an excuse to not publish because California law provides immunity. And if the nonprofit is still concerned, then it should seek a court order before not publishing the candidate statement.

So why the reference to foundation counsel's claim that Pacifca may ban statements for libel? Why then follow the wrong statement with a case that shows why it is wrong, yet say the case "constrains" against the implementation of the wrong interpretation when in fact the case show why the interpretaion was wrong in the first place?

Now as to the concluding ruling:

"All statements will be re-posted, but the 7 statements in question will have non-alpha characters inserted in the names of persons who claim they have been falsely accused to prevent search engine indexing of individuals."

First, this ruling has not been implemented. Instead as of this writing on 10/29/07 at 11:07 a.m., the Candidate Statements of Bob English, Stan Woods, Gerald Sanders, and Richard Phelps are not posted on the KPFA Candiates Statements webpage . By not posting these statements, Pacifica has treated these candidates with prejudice and has not provided the fair and reasonable election practices required by California law (Cal.Corp.Code Section 5520).

Second, the ruling that directs that certain names "will have non-alpha characters inserted" also sets these names apart from all other names in all the statements, such as names of endorsers. By doing this Pacifica has implied that it accepts the allegation of libel from the people whose names are altered. By taking sides with the people who claim they have been "falsely accused" Pacifica is prejudicing the election and not meeting the fair and reasonable requirement of law.

Again, there is absolutely no liability on the part of Pacifica for what one candidate says about another (Cal.Corp.Code Section 5525). That law entitles Pacifica to get a court order if it feels there is any liability. Altering the candidate statements of some candidates at the wish of other candidates is evidence of bias by Pacifica. It presumes there is some decision by Pacifica that the allegation are actually. If the complaining candidates believed they were libled, then they have a remedy with the courts against the party who libeled them. That is their only remedy. Pacifica is providing an wrongful "self help" remedy by treating the statements of some candidates differently than others.

Lastly, the so-called "Fair Campaign" rule that "No candidate may use Foundation or radio station resources to publicly attack another candidate, station staff or management, or the Foundation." is patently unenforceable and void for vagueness and being over broad. No one can provide a distinction between a wrongful "attack" and fair criticism. For that reason it should be removed immediately so as to not confuse people and create needless litigation as is being done now with KPFA on-air carts.

It bears repeating that the Salzhandler case (316 F.2d 445 ) that the NES cited, at 450-51, stated that libelous speech that may be the basis for a civil action may not be the basis for union discipline, because union "procedure is peculiarly unsuited for drawing the fine line between criticism and defamation." Of course KPFA's and Pacifica's procedures are not any better suited than a union for telling the difference between an "attack" and criticism.

KPFA is now censoring the on-air statements by candidates. This censorship comes under the same laws as written statements. If Pacifica is airing statements -- as it is required to do by its Bylaws -- then it may not censor the content of the ral statements any more than the content of the written statements.

Now the prior restraint of candidate statements in on-air statements is a violation of Free Speech rights in the First Amendment as well as a violation of the fair and reasonable election statutes of California law.

Gregory Wonderwheel