Lawyers for Community Common Sense say the city’s latest move justifies violating the free speech of its newspaper and citizens

By Brian Park

Attorneys for a local newspaper that sued the city of San Juan Capistrano over a closed-session decision to remove news racks at city properties are challenging an attempt to remove three council members and the city attorney from the lawsuit.

Wayne P. Tate, the lawyer for Community Common Sense, filed papers last week challenging a motion filed by attorneys for the city who wish to strike the names of Mayor Sam Allevato, Councilmen Larry Kramer and John Taylor, and City Attorney Hans Van Ligten from the lawsuit.

“This argument, if sustained, will set the precedent that elected and appointed government officials are authorized to violate the First Amendment of the citizens they represent with virtual impunity,” Tate wrote.

The city’s motion, filed in January by Assistant City Attorney Philip Kohn, argues that the lawsuit threatens the four men’s freedom of speech and that their actions leading up to the news racks ban are protected by the First Amendment. Kohn supports his argument using the state’s anti-Strategic Lawsuit Against Public Participation law, or anti-SLAPP, which is intended to protect citizens from litigation that threatens to silence or intimidate them from public participation.

In his opposition, Tate called Kohn’s anti-SLAPP motion a “fallacious theory” and that it asserts that city officials “have a First Amendment right to violate the First Amendment rights of (Common Sense) and others.”

Last week, publishers for Common Sense announced that lawyers from the First Amendment Project, an Oakland-based nonprofit organization, will join Tate as co-counsel.

The anti-SLAPP motion is scheduled to be heard in Orange County Superior Court on March 6 by Judge James Di Cesare.

In December, Di Cesare issued an order for the city to temporarily allow news racks back at City Hall and the Community Center. News racks for Common Sense and The Dispatch have since returned.

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