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Open Letter to Dan Siegel

Interim Executive Director, Pacifica Foundation
Re: KPFA Local Station board Election
October 26, 2007

Dear Mr.Siegel,

This is a reply to your "Open Letter to the Pacifica Community" dated October 24, 2007. (Attached below.)

Frankly by criticizing campaign statements and removing them form the website, I'm truly amazed that you would take a position so diametrically opposed to the First Amendment. As the Interim Executive Director of Pacifica Foundation with the grandest tradition of free speech in the United States, your anti-free speech attitude is shameful and demeaning to the Pacifica community and a stain on the Pacifica tradition.

You ask, "Is this type of rhetoric acceptable?" but you don't give even a single example of the rhetoric you are condemning. Thus you are not engaging in debate. You are attempting to stifle debate by presenting your opinion alone.

But more importantly is your attack on "rhetoric" itself! Your question -- "Is this type of rhetoric acceptable?" -- is the same question used to attack Pacifica for its broadcast of George Carlin's now famous and precedent setting rhetoric. When I read your attack on free speech I laughed wondering what would George Carlin say? I think he would say that you are acting just like the owners of America who believe they can define what rhetoric is or is not acceptable.

You confabulate the KPFA candidate statements with a WBAI candidate statement. For what purpose? There is no connection, and your including the two together in that way can only cause confusion in the Pacifica community.

You allege that the KPFA candidate statements "contain little more than personal attacks on their opponents." By offering your personal conclusion and by not offering a single example, you are unduly attempting to influence the election. The Pacifica Foundation's Fair Campaign Provisions provide:

"SECTION 6. FAIR CAMPAIGN PROVISIONS

No Foundation or radio station management or staff (paid or unpaid) may use or permit the use of radio station air time to endorse, campaign or recommend in favor of or against any candidate(s) for election as a Listener-Sponsor Delegate, nor may air time be made available to some Listener-Sponsor Delegate candidate(s) but not to others. All candidates for election as a Listener-Sponsor Delegate shall be given equal opportunity for equal air time, which air time shall include time for a statement by the candidate and a question and answer period with call-in listeners. No Foundation or radio station management or staff (paid or unpaid) may give any on-air endorsements to any candidate(s) for Listener-Sponsor Delegate. The Board of Directors may not, nor may any LSB nor any committee of the Board or of an LSB, as a body, endorse any candidate(s) for election as a Delegate. However, an individual Director or Delegate who is a Member in good standing may endorse or nominate candidate(s) in his/her individual capacity. In the event of any violation of these provisions for fair campaigning, the local elections supervisor and the national elections supervisor shall determine, in good faith and at their sole discretion, an appropriate remedy, up to and including disqualification of the candidate(s) and/or suspension from the air of the offending staff person(s) (paid or unpaid) for the remainder of the elections period. All candidates and staff members (paid and unpaid) shall sign a statement certifying that they have read and understood these fair campaign provisions." (Article 4, Section 6)

While, this provision specifically applies to "air time", the clear intent is that Foundation management is not to make use of radio station facilities to endorse in favor or against candidates. Your actions on the KPFA website and your letter do constitute endorsement against candidates in violation of the bylaws.

California law requires that a corporation provide fair and reasonable election procedures. It is not fair and reasonable to promise to allow website distribution of candidate statements and then revoke that promise at one station for arbitrary and capricious reasons while allowing the members at other stations to continue to have access to website candidate statements.

Now, you allege that campaigning against opponents by pointing out the opponents words and deeds is a "personal attack." This Orwellian definition of personal attack is simply a Republican tactic at preventing debate. Nothing in the campaign statements that you object to contained personal attack.

Providing information to listeners that they would not be able to get otherwise is not a personal attack. Providing the electors with the text of an email that advocates "dismantling the LSB" is not a personal attack. If anything is a personal attack it is your false characterization of political debate which falsely attacks the character of the candidates.

Criticizing the Interim General Manager, Lemlem Rijio, for not attending LSB meetings is not a personal attack.

Criticizing Sasha Lilly, the Interim Program Director, for telling programmers they couldn't encourage people to attend peace marches is not a personal attack.

Criticizing Sherry Gendleman, an LSB member and candidate for reelection, for being against elected boards and against program council empowerment is not a personal attack.

These are all fair political issues.

As a community and progressive organization that supports free speech we must ask ourselves whether your type of unilateral dictatorial censorship is acceptable. Pacifica has important challengers and it can only meet this challenge if robust political debate is allowed within the organization. You demonstrate the heights of cynicism to claim that stifling debate is good for the organization. You are attacking the civil rights of candidates to their political speech in the name of protecting civil rights in society. What hypocrisy!.

Free speech is established in our nation exactly to prevent petty tyrants from applying their personal definitions. What you label "toxic" debate is actually the first real debate in the new democratic structure of Pacifica. You may call the light of debate "toxic", but in this case it is only toxic to the infection that hides in the dark.

Raising the question of the "morale" of "hard-working and underpaid staff" is an indicator of your misguided views. The morale of the staff is not uniform. There are staff people who oppose the status quo. Their morale is destroyed by current control by the status-quo-conservatives within the organization. Those staff members who are so petulant as to need protecting from open debate among the listeners should either get a thicker skin or leave the organization. Staff have their input into the governing process by their election of their representatives. If the staff oppose the majority of listeners then it is the staff who will have to adapt. The Pacifica staff and programmers have traditionally ignored and demeaned any listeners who disagreed with them. This attitude is what is destructive and does not need to be enshrined by you.

Additionally, your actions are a blatant example of prejudice and favoritism since you are attempting to support and defend particular candidates against political criticism. Your duty was and is to remain neutral and to keep the appearance of impartiality in the election. You have violated this duty.

You claim that "Many people are now calling for administrative and legal responses to abusive candidate speech." Excuse me, there is no such option. First the speech has not been determined to be abusive by any means of due process. Second, there is no administrative or legal response to candidate's speech by the organization. Nothing in the Fair Campaign Provisions discusses any "abusive" speech other than the abuse of endorsements which is what you have abused.

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.

Your actions of broadcasting your management favoritism and preference and your blatant interference in and attempt to influence the election, have now put the legitimacy of the KPFA election into doubt. You have directly exposed the organization to a viable election challenge.

I can only hope the Pacifica Community repudiates your crass attempt to influence the outcome of the election and that the Pacifica Board of Directors directly repudiates your actions so that there will be not doubt that your petty tyranny is not taken at expressing the proud tradition of free speech at Pacifica..

Gregory Wonderwheel
Santa Rosa CA
http://wonderwheels.blogspot.com