SDOG is disappointed by yesterday’s ruling on the motions filed against it in its lawsuit to protect taxpayers from subsidizing a San Diego State University instructor’s private business. The ruling essentially prohibits watchdog organizations like SDOG from suing to invalidate a subsidy illegally given to a public employee just because the subsidy is used to support a private news business. The ruling fails to distinguish between lawsuits challenging the subsidized activity, which SDOG’s suit did not do, and lawsuits challenging how the illegal subsidy came to exist in the first place. The result is that any public employee who abuses his or her position to secretly obtain taxpayer support for his or her private business will be immune from suits just because the business activity involves arts, politics, or the news. The ruling will be appealed; you can read it here: 2015-09-08_Anti-SLAPP_Ruling.
SDOG sued when it learned that SDSU lecturer Lorie Hearn had negotiated a sweetheart deal for her private business to operate out of the KPBS studios at SDSU and was using the SDSU/KPBS logos to promote her business, all for about $1 per year. SDOG was not concerned with the nature of her business — she claims that it’s a news organization — but was concerned that, as a teacher at a public university, she had abused her position to get for herself what nobody else could get, to take advantage of an opportunity that nobody else knew about. If KPBS wanted to buy news content from Hearn’s private business and let her use the SDSU/KPBS facilities and logos to promote her business, state law and SDSU rules first required a public, competitive-bidding process; the payment of fair-market value to SDSU/KPBS; arms-length negotiations; and approval by the SDSU president personally. None of that happened.
Hearn claimed that the lawsuit was retaliatory because of certain “reporting” done by her business. However, one day before the court hearing on the motions, Hearn herself sent out a press release from a local journalism organization claiming that the lawsuit had nothing to do with any news reporting by Hearn’s business. SDOG agrees: The lawsuit is about the illegal conduct that preceded Hearn’s business getting a secret taxpayer subsidy.
SDOG believes strongly in transparency for public employees and institutions, and is equally supportive of good journalism. SDOG has enjoyed a very good relationship with reputable members of the San Diego journalism profession — sometimes giving information, sometimes receiving information, but always sharing it with an eye toward ensuring accuracy and accountability.
SDOG was never concerned about the “reporting” done by Hearn’s business. The inaccuracies, bias, and hypocrisy were obvious to almost everyone, as the overwhelmingly negative comments to the reports make clear. SDOG’s lawsuit was directed at Hearn’s abuse of her position as a lecturer at SDSU, not at the work product of her private business. The rightful judges of that work product are Hearn’s readers and listeners, and they have delivered their verdict.
SDOG is concerned that this ruling paves the way for any public employee to use his or her position to get secret, special treatment at taxpayer expense and escape being held accountable in court just because the employee’s private business is in a field protected by the First Amendment. For example, a political science professor with a consulting firm on the side could make his business a “think tank” within the university and use public resources to promote partisan politics, but then escape being held accountable because “politics” is protected by the First Amendment. Or a journalism instructor with a public-relations firm on the side could masquerade her business as a “news outlet” within the university and use public resources to reach an otherwise unreachable audience with “reporting” paid for by her clients, again without being held accountable because the First Amendment protects “the news.”
The same way common sense dictates that the First Amendment does not protect people from yelling “fire” in a theatre, it dictates that public employees not escape accountability when they use their positions to get special treatment for themselves — regardless of whether they’re engaged in an arts, news, or political business. The problem is not the business itself but the way in which the business came to be secretly subsidized in the first place by the public institution and taxpayers.
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