Citizen Sam’s free speech win
Nevada statutes used to fine a citizen for making an ethics complaint about Reno Mayor Jeff Griffin are found unconstitutional, U.S. Magistrate says
"…Even false statements about public officials are protected unless it can be shown that the statements were made ‘with actual malice'—that is, with the knowledge that it was false …”
—From the report and recommendation of U.S. Magistrate Valerie Cooke, filed Aug. 7 in U.S. District Court
Many call Reno resident Sam Dehné a gadfly. Local city council members, airport authorities and county commissioners would agree that he certainly fits the definitions: “a persistent irritating critic, a nuisance” and “one who acts as a provocative stimulus, a goad.”
But Dehné says he’d rather be called a “watchdog,” that is, “one who serves as a guardian or protector against waste, loss or illegal practices.”
“It’s a citizen’s duty—after family and job—to expose corruption in government,” Dehné says. “If he didn’t expose it, government would be even more corrupt, and that would be saying a lot.”
With representation by the American Civil Liberties Union, Dehné recently won a favorable U.S. Magistrate’s recommendation in a free speech case. Back in 1999, Dehné had written letters to the Nevada Ethics Commission asking for an opinion involving a possible conflict of interest involving Reno Mayor Jeff Griffin and Krys Bart, director of the Reno-Tahoe Airport. The complaint was dismissed. But to discourage Dehné, the commission decided to invoke two Nevada statutes and fine Dehné $5,000 for making “false statements.”
One statute, NRS 281.525, makes it a misdemeanor for any person to make a “false, deceptive or misleading” statement to induce the ethics commission to render an opinion. Another, NRS 281.551, allows the commission to impose penalties up to $5,000 to an individual who submits—"in bad faith, or with a vexatious purpose, an accusation or information that is false.”
“Vexatious!” Dehné recounts. “Nobody’s going to bring charges against a public official unless he’s vexed. They accused me of being vexatious. As if that’s something bad!”
In a report and recommendation filed last week, U.S. Magistrate Valerie Cooke wrote that these statutes impose “direct and significant restrictions on speech.”
“A statute that regulates speech critical of public officials and which implicitly requires the critic to guarantee the truth of every factual assertion made to the Commission on pain of statutorily imposed civil liability (and potential criminal liability) results in self-censorship and discourages public debate,” Cooke wrote in her recommendation to U.S. District Judge David Hagen, who is expected to rule in line with Cooke’s report.
“It’s really a sweeping First Amendment case,” says Rich Siegel, director of the ACLU in Northern Nevada. “I don’t know if Nevada has ever had a federal case where the right to criticize public officials was as adamantly affirmed.”
Dehné says he won’t celebrate until the final ruling is in. And though the ACLU wanted to approach the case as a free speech issue, he’d been hoping someone would help him prove that he didn’t lie.
“I don’t need to conjure things up,” he says. “Why would I load my gun with a blank when there’s so much ammunition just lying around?”
The ACLU saw its chance to prove something larger.
“It sure is curious that we live in a state where so many politicians argue for less government, yet seem so willing to trample on people’s First Amendment and other Constitutional rights,” said Gary Peck, director of the ACLU in Nevada. “One thing is certain. The ACLU will never find itself without enough business to keep it in court.”
From a transcript of a June 1999 Nevada Ethics Commission hearing:
CHAIRWOMAN [MARY] BOETSCH: The opinion requests before us today have to do with allegations that [Griffin and Bart] traveled together to Texas and had conversations wherein Mr. Griffin convinced Ms. Bart to not move the Air Guard so that the cargo area at the airport could be increased to benefit his personal interests. Now, what evidence do you have—listen to my question and don’t even think about interrupting me.
MR. DEHNÉ: I’m thinking about it.
CHAIRWOMAN BOETSCH: Get out. That’s it.
MR. DEHNÉ: Good for you. Grease those rubber stamps. Grease up those rubber stamps all over again.
CHAIRWOMAN BOETSCH: Mr. Dehné, if you don’t get out of this room right away, I will call the police and have you arrested.
MR. DEHNÉ: Oh, what a bunch of flapdoodle you people are. What a joke to good government. Embarrassment. Flat, outright embarrassment.
(Mr. Dehné left the hearing room.)
Lt. Col. Denis “Sam” Dehné, a retired Air Force pilot who later went to work for a private airline, says he hasn’t missed a Reno City Council or Airport Authority meeting since 1995. He also says he attends all Washoe County Commissioner meetings and Reno-Sparks Convention & Visitor Authority meetings. He doesn’t take a vacation. The 60-year-old probably has a better attendance record than any local politician.
He writes the content for and maintains an extensive Web site, The Reno Citizen, which he admits is “a little biased.” He carries a well-worn copy of the Nevada Open Meeting Law Manual under his arm, along with various other files and a copy of the Reno-Tahoe Airport cargo hub study.
He runs every day with his 75-pound bulldog, Dexter. He plays his guitar and sings, making about 15 volunteer performances a month. He says he sleeps precisely seven hours a night.
“If you go beyond that, your organs get dormant,” he says. “Really, they do.”
MS. BART: … Even the day I was present for my interview, a public interview in front of the Board of Trustees, Mr. Dehné gave public testimony demanding that I live under the flight path. … Ever since that day, he’s been to every board meeting. He has called me publicly all sorts of names. He has shouted at me, even more aggressively than he shouted at you today … He has shook his hand and shook his fist at me.
CHAIRWOMAN BOETSCH: Has he played his guitar for you?
MS. BART: Not yet. He has, in his Web site, called me the Airport Czar, the Airport Dictator and the Airport Carpetbagger …
CHAIRWOMAN BOETSCH: I think we get the gist of what you’re saying. I’m sure the Mayor can commiserate with you.
MR. GRIFFIN: … In the last 12 months, Mr. Dehné has appeared before me and attacked me personally 300 times. In addition to the complaints that he has lodged with this body, I have been personally sued. … I have had five Open Meeting Law violations filed with the Attorney General’s office. … It’s becoming a systematic use of a public body to abuse public officials.
Dehné decided to complain to the commission about what he viewed as Griffin’s intervention in airport affairs after he’d heard talk of the mayor traveling to Texas for meetings also attended by airport director Bart. A week after this trip, he says, the airport authority changed its plans and decided that Rewana Farms was the perfect place for a cargo hub.
“Griffin’s a cargo man,” Dehné says, referring to the mayor’s ownership of the foreign trade zone at that time. “It doesn’t take a rocket scientist to figure out that Griffin would benefit from it.”
“I don’t have any heavy duty evidence, but I had substantial questions enough to put together a request for an opinion, to say, ‘I think this has happened. I’m requesting your opinion.' … The bottom line is that the ethics commission was flat downright evil and perverted. They were doing what they were supposed to be protecting us against."