City of Atlanta Loses Bid for Secret Memo Injunction, Contempt
(APN) ATLANTA — In a victory against the City of Atlanta’s ongoing, multifaceted attack upon the First Amendment of the Constitution of the United States, the News Editor of Atlanta Progressive News–the present writer–prevailed in court against the City’s attempt to suppress APN’s publication of the City’s secret memos.
APN wrote about four internal City of Atlanta memos prepared by the City’s Law Department on August 09, 2011, quoting heavily from one memo and quoting less from the others.
The memos were prepared by the Law Department for Council Members, to advise them regarding several Open Meetings Act violations brought to their attention by APN.
APN’s Editor had filed an Open Meetings lawsuit against the City in May 2011, for its practice of holding seven closed-door Committee Briefings every two weeks.
The memos obtained by APN from a source at City Hall implicitly acknowledged the validity of several of APN’s claims, while appearing to help Council Members find new ways to get around the law in others.
The City requested that APN return the memos, but APN refused by way of an August 11 article.
In response, the City sought, and was granted a temporary restraining order against the present writer, on August 12 by Fulton County Superior Court Judge Jerry Baxter.
APN’s Editor appeared in court on Monday, August 15, 2011, to oppose the City’s request for a permanent restraining order.
The Georgia First Amendment Foundation also appeared in court in support of APN’s right to publish the memos as part of freedom of the press; they also provided an amicus brief.
The City withdrew their motion for a permanent injunction after they learned that Peach Pundit, a statewide, right-wing Conservative blog, had published the memos in full. Todd Rehm, a Republican consultant and strategist, had requested the memos from APN early on the morning of the 12th.
APN provided the memos to Peach Pundit several hours prior to the Judge’s granting of the preliminary restraining order.
“While Matthew is an ideological liberal progressive, and he and I disagree on many things, I agree 100 percent with the idea that Georgia governments must be held to the highest standard of conduct under both the state Open Records laws, and the First Amendment to the United States Constitution,” Rehm wrote.
“Simply put, these two laws work hand-in-glove to ensure that all citizens, liberal or conservative, have access to information about what their government is doing. They are fundamental to the ability of citizens to protect themselves against government corruption or overreaching. They are non-negotiable,” Rehm wrote.
“I believe that sharing these documents furthers the goals of the Open Meetings Act of protecting citizens’ right to access information about their government. I further believe that the First Amendment protects the media’s actions in disseminating such documents. So I’m sharing them with you.”
While the publication of the memos by Peach Pundit on the Internet made the issue of the restraining order moot, APN’s editor also made several arguments in a Plaintiff’s Brief in Support of Motion to Deny Further Injunctive Relief to Defendants:
II. PLAINTIFF’S FUNDAMENTAL RIGHT TO PUBLISH THESE MEMOS IN THE ATLANTA PROGRESSIVE NEWS IS PROTECTED BY THE FIRST AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES OF AMERICA.
APN’s Editor cited New York Times Co. v. United States, the 1971 case involving the Times’s publication of the Pentagon Papers.
The Supreme Court in this case ruled that the burden for the government to exercise prior restraint on a news organization from publishing certain materials was “grave and irreparable danger.”
The only danger in this case was that the City is embarrassed. But APN’s Editor argued that the City should be more embarrassed that they violated the Open Meetings Act.
III. ATTORNEY-CLIENT PRIVILEGE RELATED TO DEFENDANTS AND THEIR ATTORNEYS DOES NOT APPLY TO PLAINTIFF.
IV. DEFENDANTS’ ARGUMENT REGARDING HARM TO DEFENDANTS IS UNSUBSTANTIATED.
The City argued that the further publication of the memos would harm their ability to settle with the Georgia Attorney General’s office regarding their pending lawsuit. As previously reported by APN, the AG’s office threatened to sue the City of Atlanta themselves over violating the Open Meetings Act.
APN’s Editor responded that the memos should make settlement more likely, not less, seeing as how now the general public is aware that even the Law Department advised the Council to change their practices; and, moreover, the taxpayers should not continue to fund the City’s defense of illegal practices.
V. DEFENDANTS’ DISCUSSION REGARDING ADMISSIBILITY IN DISCOVERY AND OPEN RECORDS IS IRRELEVANT.
In addition to these five arguments, APN’s Editor also had to defend against the City’s Motion for Contempt and for An Order Concerning Discovery on the Motion for Contempt.
In this Motion, the City requested to take depositions of APN’s Editor, Rehm of Peach Pundit, and an activist named Robert Schreiber, who sent the Peach Pundit blog post to the City.
In its Motion, the City provided a screenshot of Rehm’s Facebook page, as well as a series of posts on Rehm’s Facebook wall, as emailed to the City by someone named Rob O’Neal.
However, APN’s Editor provided the Court with emails between APN’s Editor and Peach Pundit, which showed that APN provided the memos to Peach Pundit several hours before the judge issued a preliminary injunction.
Therefore, Judge Baxter decided to shelve the City’s motion for contempt.
APN’s Editor also filed all four memos as Exhibits in the Open Meetings case, so they are now on the record.
Overall, the City failed in their attempt to thrwart freedom of the press.
The City’s attack on the First Amendment began when the City Council took a secret vote in February 2010 over whether to limit public comment at Council Committees.
It continued as Council Members held closed-door Committee Briefings, Committee Chairs’ Briefings, and other ad hoc meetings to discuss substantive City policy in violation of the Open Meetings Act.
Both Georgia’s Open Records and Open Meetings Acts are grounded in the First Amendment.
The City of Atlanta’s attack now on freedom of the press is just another step in its efforts to undermine the Constitution. However, they have failed, thanks to APN, as well as Peach Pundit, Jack Jersawitz, and the Georgia First Amendment Foundation, who were critical to this victory.
The two Open Meetings cases are still pending: the secret vote case was granted review by the Georgia Supreme Court in October 2011, and the closed-door briefings case is currently in discovery.
The City continues to write in its Briefs about pursuing a settlement with the Attorney General in their pending lawsuit, but apparently not with APN’s Editor in the existing lawsuit.
Judge Baxter heard several cases this afternoon before getting to the matter involving the memos. APN observed Baxter was attentive and asking critical questions throughout each of the cases, and appeared to want to conclude matters as fast as possible, rather than allow them to linger.
(END / 2011)