Local Blogger abusing victim resources. | Lost Coast Outpost | Humboldt County

Internet Surfer asks Adrian Kamada, Stacey Eads, Michael Acosta

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Local Blogger abusing victim resources.

There is a local Blogger who blogs about court cases. Sometimes this blogger, while not directly naming a sexual assault victim, will identify a relative of the sexual assault victim in their blog. The blogger also posts screenshots from VINE, including watermarked “do not copy” mugshots of individuals who are booked in the Humboldt County jail. If elected DA, how will you deal with this blogger, or other individuals who misuse resources intended for victims and who provide identifying information about sexual assault victims on the internet.

— Internet Surfer

Response

Michael Acosta

     I hear your concern, and out of respect for the time it took you develop this important question, I put a couple hours of research into attempting to identify any violation of law in the conduct you have described, and, I regret to inform that I found none.  The new Vinelink website, quite surprisingly, didn’t have any significant disclaimer that advised me of any criminal nor civil liability before navigating to the offender information I sought.

     Article I, §28(b)(4) of the California Constitution (aka the Victims’ Bill of Rights or Marsy’s Law) gives victims the following right relevant to this topic:   

“(4) To prevent the disclosure of confidential information or records to the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, which could be used to locate or harass the victim or the victim’s family or which disclose confidential communications made in the course of medical or counseling treatment, or which are otherwise privileged or confidential by law.”

     This is a victims’ right to nondisclosure with a remedy against the government, which the press is normatively not a part of. Similarly, California rape shield laws found at Evidence Code §§1103 and 782 contain restrictions on the introduction of certain types of evidence by the defense in court in sexual assault cases, but they clearly don’t apply to the press either.

     Caselaw in the United States restricts prior restraints on the media, such that, generally, if the information was legally obtained (e.g. from the normal, authorized use of a government website or publicly available records) the press cannot be stopped from publishing it.  Any restraint on the publication of identifying information of adult victims, family members of victims, or related witnesses in sexual assault cases in the American free press is largely voluntary, and based on a media agency’s own policy or an individual journalist’s (or blogger’s) own sense of integrity.  The materiality of information identifying a specific victim, witness, or victim’s family member, to me, seems nominal and so to include the information in a mass publication would be reckless and in poor taste.  In other words, the newsworthiness of a defendant’s prosecution for allegedly committing a sexual assault doesn’t increase by publishing victim-related identifying information, so why publish it?  

     A comparative approach is found in the Revised Statutes of Canada §486.4, which authorizes a Court in a sexual assault case to make an order directing that any information that could identify the complainant or a witness not be published, broadcast, or transmitted.  The Canadian Supreme Court, in Regina v. Adams, held that the victim was the holder of such privilege, and that the privilege still applied even after criminal charges had been dismissed against the defendant.  Another section of  the R.S.C., allows for a court to clear the public from the courtroom, and/or permits the court to allow testimony from a victim or witness from behind a screen through which the public cannot see. [R.S.C. §486(1).]  So Canada is clearly a more victim-oriented country, while the United States leans towards the free press on these victims’ rights versus open court  issues.  It’s a difficult balance to strike.  Canada also has a juror identification ban that can be imposed by a court under certain circumstances, so prior restraints on the free press can be a dangerously slippery slope.

     So, to answer your question directly and just honestly, I wouldn’t do anything about this blogger who published what you have described, or any other journalist who distastefully, but not illegally, utilizes publicly available information in journalism about sexual assault cases for two reasons:

1) there is no violation of the law, and so no duty of the District Attorney to act, and 

2) such a conversation by an elected District Attorney with a blogger or other member of the free press would be civilly actionable against the entire County of Humboldt, under 42 USC §1983 (violation of civil rights under color of law), and First Amendment prior restraint law.

Case in point: 

     Once upon a time, not so long ago, and in a place not too far from here, there was a Trinity County Deputy Sheriff named Potts, who was assigned to the Narcotics Investigation Unit of the Trinity County Sheriff’s Department, and spent most of his time at work eradicating marijuana.  Now, Deputy Potts, in his off-duty time, fashioned himself a journalist, and so he wrote a column while off-duty for a local newspaper called the Trinity Journal, in which he tended to advocate for the legalization of marijuana, and also tended to cast doubt as to the merits of continuing the War on Drugs in general, from the perspective of an off-duty Narcotics Investigation Unit Deputy Sheriff.

     Well, just a few hundred yards away from where Deputy Potts felt comfortable exercising his First Amendment rights, a lawman named Harper, who was the elected DA at that time, was reading Deputy Potts’s interesting articles, and decided that it was his duty as a lawman to inform the good Deputy and his supervisor, the Sheriff, that it would be in everyone’s best interest if Potts would stop writing articles which had the effect of eroding public support for the DA’s marijuana eradication efforts.  Well, needless to say, Deputy Potts, didn’t like that. So he went looking for help and found this woman who worked for an organization called the A.C.L.U. who said she would file some papers in the federal court against the entire County of Trinity for violation of Deputy Potts’ right to speak freely. 

     Thankfully, the story has a happy ending, as the federal judge told Deputy Potts that he could keep writing those articles and the ACLU lady got paid for her time. Writing those articles eventually paid off and marijuana became legal.  And as for Harper, well, even though the federal judge told him he was not to try to stop Deputy Potts or any cop from posting thoughts about pot, it didn’t stop Harper from becoming a judge himself. 

     Reality is sometimes stranger than fiction.

[https://lostcoastoutpost.com/2012/nov/21/deputy-potts-pot-speech-protected/

https://bloximages.newyork1.vip.townnews.com/trinityjournal.com/content/tncms/assets/v3/editorial/e/45/e4503472-f18b-11e1-8d23-0019bb30f31a/503d90b08a19a.pdf.pdf

http://www.trinityjournal.com/news/local/article_a8b1e8e0-f189-11e1-9552-0019bb30f31a.html]

     Included below is a link to a page entitled “Reporting on Sexual Violence” with lots of good resources for the public and the local “free press” so that maybe we can reach a collective standard of integrity or a local consensus for voluntary restraint on the issue of identifying information in sexual assault cases, and I sincerely hope it is helpful. 

https://barcc.org/assets/pdf/Journalists-a_guide.pdf

Thank you for your thoughtful question.