Hits, misses on free speech

Throughout the paper today you’ll find our annual Top 10 lists — top news, top sports, top business and entertainment. It is that time of year. Time to reflect on the past and contemplate its lessons for the coming New Year.

In that spirit, we offer Nevada’s Top 10 First Amendment stories of 2009.

10. Everybody is an editor. In the space of a couple of days in late November, two incidents occurred in which people in authority decided the public needed no access to certain things.

A bailiff in Family Court blocked reporters and photographers from exiting a courtroom so a doctor who had treated the late pop singer Michael Jackson could avoid being questioned.

At the coroner’s office, a police officer directed a Citizens Area Transit bus to stop between a van unloading the body of a slain off-duty Las Vegas police officer and a group of press photographers gathered on a public sidewalk across the street.

9. Truth is a defense. In late August, a District Court judge granted the Review-Journal’s motion for summary judgment and tossed out a libel suit by former Family Court Judge Robert Lueck.

This involved a story on then District Court judge and now state Supreme Court Justice Nancy Siatta sealing litigation in which Lueck was accused of falling behind in child support payments. Siatta said at the time, “One of the worst things that can be said about campaigning is that we use things against one another. This is a situation where I don’t want to see this thing being used in the campaign for anybody’s sake.”

A judge found the articles in question were fair and accurate reports of public records.

8. The dead have privacy rights. Following the death of entertainer Danny Gans, the Review-Journal requested from the coroner the toxicology report. In June, the request was denied, citing at 1982 opinion by then-Attorney General Dick Bryan.

In the opinion, Bryan said the medical records of living persons are widely construed to be private and personal, and concludes that the privacy is carried to the grave.

7. Truth is not a defense. This past summer, Danny Tarkanian won a 5-year-old defamation suit against state Sen. Mike Schneider, who had to pay $150,000. Schneider had sent out mailers claiming Tarkanian worked for telemarketers who were later investigated. Tarkanian, as a lawyer, helped incorporate some investigated telemarketers.

6. Tap dancing around free speech. In March a federal judge closed the case on a 12-year-old legal battle, declaring Fremont Street a public place where First Amendment rights exist. In the summer, an ACLU intern started tap dancing under the canopy. A security guard told her she needed a permit. No such permits exist. ACLU files complaint.

5. Violate the law, get a mulligan. The attorney general ruled in November that the Henderson City Council violated the Open Meeting Law by using sectret ballots to vote for a new member. But the council was given a pass because they redid the vote later.

4. Rank hath its privileges. In May, the attorney general ruled that the Review-Journal had no right to access e-mail containing school budgeting information sent from Superintendent Walt Rulffes to school board members. We were told the e-mail “is shielded by executive privilege as it was both predecisional and deliberative.”

Never mind that the law says of public agencies, “It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.”

3. We will not tolerate intolerance. After months of squabbling, UNLV’s 14-page “Policy on Bias Incidents and Hate Crimes” was finally scrapped. The policy would have required the campus police to respond anytime someone’s feelings were hurt.

2. Voir dire is open, my dear. On Thursday the state Supreme Court ruled questionnaires used in trials are part of the public court record and should be available to the press and the public. In 2008 Judge Jackie Glass refused to release questionnaires filed out by potential jurors in the O.J. Simpson case. The Review-Journal and The Associated Press sued.

1. Prosecutors go fishing. In May the Review-Journal published a story about the federal trial of several people accused of tax fraud. Hundreds of people appended comments to the online version, a couple using strong language about the prosecution.

The Justice Department subpoenaed, demanding the “full name, date of birth, physical address, gender, ZIP code, password prompts, security questions, telephone numbers and other identifiers … the IP address” of everyone who posted comments.

The paper resisted but later gave what limited information we had on a couple of the more threatening comments. The ACLU continues to challenge the legality of such broad subpoenas.

Let’s hope we’ve learned from the errors and successes of 2009.

Thomas Mitchell is editor of the Review-Journal and writes about the role of the press, the First Amendment and access to public records and meetings. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com. Read his blog at lvrj.com/blogs/mitchell.

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