From left, Justices Gilbert Nares, Richard D. Huffman and William Dato of the California 4th District Court of Appeal listen to oral arguments by John McClendon, who represents San Diegans for Open Government. April 14, 2017. Brandon Quester, inewsource.
California 4th District Court of Appeal justices listen to oral arguments by John McClendon, who represented San Diegans for Open Government in its lawsuit against inewsource. (Brandon Quester/inewsource)

An appellate court justice questioned the motive behind a lawsuit against inewsource, saying it “has a bit of aroma about it of trying to retaliate or to prevent free speech.”

Justice Richard Huffman made the comment during oral arguments Friday in an appeal of a lawsuit filed by San Diegans for Open Government two years ago. The suit claimed conflicts of interest tainted the lease agreement between the investigative news organization, San Diego State University and KPBS. Under the agreement, the nonprofit inewsource shares office space and resources with public media outlet KPBS on the university’s campus in exchange for news stories.

inewsource and SDSU won the case in the lower court, arguing that the lawsuit was intended “to silence unpopular press about” Cory Briggs, the high-profile attorney whose legal work on behalf of San Diegans for Open Government has been the subject of a series of investigations by inewsource.

The news organization’s successful motion invoked a California law that allows meritless complaints to be tossed if they infringe upon free speech rights, including freedom of the press.

San Diegans for Open Government appealed the ruling, and its lawyer John McClendon attempted Friday to persuade three justices of the 4th District Court of Appeal to reverse the lower court.

“How far will we go,” McClendon asked, referring to the issue of arguing free speech in a contract case.

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At that point, Huffman commented that he was “focusing on the evidence and the lack of evidence” in this case and the “notion” that the circumstances of the contract between inewsource and the university suddenly required a “public interest quote unquote lawsuit.”

Huffman said, “The timing of it (the lawsuit), the nature of it, the absolute paucity of any evidence at all to show any kind of conflict of interest has a bit of aroma about it of trying to retaliate or to prevent free speech.”

Justice Gilbert Nares, a member of the three-judge panel hearing the appeal, said he shared Huffman’s concern.

When McClendon told the justices they had “gone too far,” Huffman bristled at the idea that they should consider the law and not the facts.

We should look at your information and belief pleading. That’s it, we’re done. It’s over, no matter what the facts are. And you get to continue to pound the media to shut ’em up,” he said.

The justices took the case under submission and are expected to rule within 90 days.

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Attorney Cory Briggs heads into court to argue a case against the city of San Diego. Despite multiple attempts by phone and email, Briggs has refused to answer inewsource's questions related to his practice since publishing its first story on the attorney in February. Photo by Sam Hodgson

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