California courts rule in favor of inewsource and San Diego State in lawsuit that tested free speech laws
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)

California courts rule in favor of inewsource and San Diego State in lawsuit that tested free speech laws

The California Supreme Court has dismissed a lawsuit challenging inewsource’s lease with San Diego State University, bringing to a close a four-year legal battle that inewsource’s editor contends was in retaliation for its investigations of attorney Cory Briggs, now running for San Diego city attorney.

“The lawsuit is over, dismissed and inewsource won the war,” said Lorie Hearn, executive director and editor of inewsource, in a written statement. “It’s been a long and expensive four years, fighting a lawsuit that was filed against us for exercising our responsibilities as investigative journalists.”

San Diegans for Open Government sued inewsource in 2015 after it published 10 stories about attorney Cory Briggs. The organization alleged conflicts of interest and problems with inewsource’s lease terms. Briggs, who is now running for San Diego city attorney, has close ties to San Diegans for Open Government. After a four-year legal battle, inewsource prevailed.

The suit was brought in 2015 by the nonprofit San Diegans for Open Government (SanDOG), which had argued inewsource’s contract for office space with SDSU unfairly benefitted Hearn, who at the time taught an investigative journalism class at the university. The 10-year-old inewsource is based in the KPBS newsroom, which is on the SDSU campus.

SanDOG filed the lawsuit as inewsource was publishing a series of investigations into the business practices of Briggs, a high-profile lawyer known for suing developers and local governments challenging compliance with environmental regulations.

SanDOG is a nonprofit that is “organized for the promotion of social welfare through advocacy for and education regarding responsible and equitable environmental development. SanDOG also has an interest, among other things, in open, transparent, government decision-making,” according to its stated mission on a Facebook page attached to the group. The organization has filed dozens of lawsuits against the city of San Diego.

inewsource’s investigations found that the Briggs Law Corp. oversees and pays for nearly every aspect of SanDOG’s operation. inewsource also found that until the lawsuit against the news organization, no lawyer other than Briggs had ever represented SanDOG.

In an email last week, Briggs said he was not involved with the lawsuit. He did not respond to a request for an interview. John McClendon, the attorney who represented SanDOG, also did not respond to interview requests.

From the San Diego Superior Court to the state appellate court, judges found the SDSU lease and inewsource’s newsgathering were intertwined, and therefore, the lawsuit attacked activity protected under the Constitution.

inewsource is a partner with KPBS, which is a department of SDSU, and its stories air on the public media station’s radio and TV channels in exchange for the use of office space.

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SanDOG had argued that because Hearn was employed by SDSU as a lecturer and working on a lease deal for inewsource it presented a conflict of interest, and that the lease contract for inewsource should have been subject to competitive bidding. In addition, SanDOG contended that inewsource misused the trademarks of KPBS and SDSU during the partnership.

The 4th District Court of Appeal found that San Diegans for Open Government’s challenge of inewsource’s lease contracts could not proceed because it targeted “protected activity” and free speech, and did not prove there was unfair negotiating.

The court wrote that SanDOG’s argument failed because the lease contracts are integral to the way inewsource gathers the news, and “the fact these contracts are for gathering and delivering news stories and not some other purpose matters.”

SanDOG “is not seeking to void a contract to make widgets or to construct a building,” the court said. “It is seeking to void contracts that directly affect the content of news stories the public receives.”

On Sept. 25, the California Supreme Court dismissed SanDOG’s request to hear the case.

KPBS General Manager Tom Karlo said in a written statement that he was pleased by the court’s findings.

“We also appreciate that we will be able to continue our partnership with inewsource,” he said.

SDSU and inewsource had challenged the suit by citing California’s anti-SLAPP statute. The code seeks to rein in “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech.” inewsource’s lawyers argued that the lawsuit was in retaliation for publishing investigations of Briggs.

Hearn, who was a senior editor at The San Diego Union-Tribune before founding inewsource, said the litigation cost inewsource $26,000 out-of-pocket and its insurance carriers more than $100,000 in payouts to the news organization’s lawyers to fight what she called a “spurious lawsuit.” The lawsuit created other burdens. Media insurance became more challenging to obtain and costs higher, Hearn said.

The trial court and appeals court said inewsource and the university are entitled to legal costs and fees, but SanDOG has indicated it has no funds. inewsource argued to the court that Briggs should be ordered to pay costs because SanDOG existed only “to file repeated suits with BLC (Briggs Law Corporation) as its counsel,” and it used the Briggs’ law firm “to pay fees and collect its settlements so it can be kept penniless.” Superior Court Judge Eddie Sturgeon denied a motion to order Briggs to pay the costs.

In an interview with KPBS in July, Briggs defended his private practice work, saying he’d bring the same vigor and integrity to the role of city attorney. He also described his role with SanDOG.

“I’ve been its attorney since the beginning. It’s filed a lot of lawsuits against government agencies to make sure that the public gets all of the information to which it’s entitled,” Briggs said.

When asked about the lawsuit brought by SanDOG against inewsource and SDSU, he said: “I have nothing to do with it.”

In 2015, when the lawsuit began, the San Diego chapter of the Society of Professional Journalists issued a statement critical of the litigation saying, “There is a right way and a wrong way to raise complaints about news coverage, and this is the wrong way.” At the same time, the Union-Tribune editorial board called the lawsuit, “an insult to the First Amendment.”

inewsource’s investigation of Cory Briggs

Since 2015, inewsource has written more than 35 stories about Cory Briggs, his lawsuits, his land transactions and his nonprofits.

These stories laid out in detail and with documentation:

  • The network of nonprofits affiliated with Briggs — including how many are composed of Briggs’ family or close associates and how more than half have had their nonprofit status revoked or suspended;
  • Briggs Law Corp.’s multimillion-dollar land deals that one white-collar criminologist interviewed said “are never done in honest business dealings”;
  • An appeals court decision referring to Briggs’ behavior as both “unethical” and “unprofessional.” A legal ethicist called Briggs’ conduct “playing with ethical fire”;
  • A law professor and fraud expert calling Briggs’ actions toward one of his former clients a “serious attorney ethics violation”;
  • Briggs’ wife’s conflicts-of-interest that resulted in San Diego taxpayers being awarded $143,382; and much more.

After 17 stories, San Diegans for Open Government — Briggs’ most litigious nonprofit — sued inewsource and San Diego State University (where inewsource is housed) in April 2015.

It did not challenge the accuracy of inewsource reports about Briggs. Instead, it challenged the terms of the contract inewsource and SDSU have for space. For the first time, the nonprofit was represented by an attorney other than one from the Briggs Law Corp.

inewsource won the case at the Superior Court. San Diegans for Open Government appealed and lost again at the appellate court level, with a three-judge panel agreeing that the lawsuit was an attempt to curtail free speech rights.

The California Supreme Court refused to hear the case in September.

By inewsource staff

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About Mary Plummer:

Mary Plummer
Mary Plummer is an investigative reporter at inewsource. To contact her with tips, suggestions or corrections, please email maryplummer[at]inewsource[dot]org.