Issues to be considered 11/13/08 relating to proposed board censure of Ron Bird
11-14-08 Opinion by LARRY H. LAYTON
In the first instance, I must state I definitely do not agree with the statements espoused by Mr. Bird on the mailer and on the Vanguard document, both of which are referred to in the proposed resolution. I have set forth my opposition to those comments in our local papers. Having said that, it is far more important that we all (AADUSD, the Board, the students and the community) understand that there is an issue far more important here. That is the First Amendment of our United States Constitution involving freedom of expression. Wars have been fought and lives have been lost to protect such freedoms.
While our school district has policies binding the Board, those policies are subject to both the letter of the law of the First Amendment and the application of the letter of the law to specific situations.
It is the job of those judging to balance those freedom of expressions (speech, both oral and written, and association) against the rights and freedoms of others, such as the freedom to be free from being defamed or injured, an example being trampled if one yells “fire” when there is no fire in a crowded place.
In balancing those rights, there are certain rules we need to consider. The rules differ according to status, such as individual v. media, media v. individual, public official/figure v. media or individual. The rules differ when the reasons for the communications are in the political arena.
1st Rule to consider is malice
In the resolutions involving free speech v. not telling the truth, we must use a test to determine if Mr. Bird acted with the degree of “constitutional actual malice”, which differs from a lesser standard called merely “malice”, which means only an ill will or spite. The definition of that “Constitutional actual malice" includes only two choices:
1. He knew he was not telling the truth, which is also called a known falsehood. or
2. He made the statement with reckless disregard for the truth.
The reason we must use the higher standard of “constitutional actual malice” instead of the lesser standard of malice is because this case involves the political arena and because public officials and a governing body are involved.
2nd Rule, we must consider fact v. Opinion
When one merely states his opinion as opposed to stating what is a fact, that opinion is protected by the First Amendment and can not be the grounds for this censure.
Therefore, without expressing an opinion in this writing as to the application of the facts of the resolution to the above rules, I do set forth the issues:
1. Are the allegations in each bullet set forth in the resolution merely opinions and thus not grounds for censure or are they facts?
2. If any are determined to be facts, were they written knowing they were not true OR were they written with a reckless disregard for the truth?
The issues and law I submit to you for decision have been reviewed in:
1. Ghafur v. Bernstein (2005) 131 C.A.4th 1230, 32 C.R.3d 626 a case involving a charter school system and did discuss school districts, board members and others involved in education.
2. Nadel v. Regents of Univ. of Calif. (1994) 28 C.A.4th 1251, 34 C.R.2d 188, another case involving issues in the field of education
3. Numerous other landmark cases in the field such as New York Times v. Sullivan and Gertz v. Welch (citations omitted) [links added with permission].
Why do we have the above rules involving special rules for public officials, politics and governing bodies?
The rule reflects our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.