Daily Archives: December 28, 2019

The least-recognized of the First Amendments five freedoms assembly and petition are facing perhaps the most immediate challenges, though freedoms of press, speech and religion dont escape unscathed.

At years end, First Amendment issues are as controversial and multi-faceted as anything in our fractured, divided society.

The least-recognized of the amendments five freedoms assembly and petition are facing perhaps the most immediate challenges, though freedoms of press, speech and religion dont escape unscathed.

Most immediately, a Black Lives Matter activist faces a lawsuit from a Baton Rouge, La., police officer who blamed the activist for injuries he suffered at a 2016 protest over the police killing of a black man. The suit doesnt claim the activist threw or even encouraged the throwing of a rock; rather, it seeks damages because the man led others to block a highway where the violent incident occurred.

A recent Washington Post story notes that Rep. Jim Banks (R-Ind.) plans to introduce legislation to hold protesters arrested during unpermitted demonstrations liable for police overtime and other fees around such demonstrations.

In more than a dozen states in recent years, from Oregon to Florida, lawmakers have faced proposals to increase penalties for obstructing streets and highways and to limit the financial liability of drivers whose cars injure protesters. In Arizona, a failed 2017 proposal rooted in that states racketeering laws would have permitted the arrest and seizure of homes and other assets of those whom simply plan a protest in which some act of violence occurs.

In a similar financial penalty vein, several major news operations face defamation lawsuits seeking massive damages over their coverage of news events claims certain to roil public debate once again about the role, credibility and performance of the nations free press. Critics also say such lawsuits even if unlikely to succeed are effectively attempts to chill reporting and intimidate corporate owners.

Prominent among those filing the lawsuits is Rep. Devin Nunes, (R-Calif.), who wants $435 million dollars from CNN for a report he says falsely linked him to events in the ongoing Ukraine-Biden investigation controversy. He also is seeking $150 million from The Fresno Bee over a report involving a workplace scandal at a winery in which Nunes has a stake, $75 million from Hearst over an Esquire article regarding a family farm in Iowa, with the claim the magazine has an axe to grind against him and a $250 million lawsuit against Twitter for what he says is its intentional effort to downplay conservative content as well as two parody accounts that mock him.

In the introduction to the most recent lawsuit, Nunes says CNN is the mother of fake news. It is the least trusted name. CNN is eroding the fabric of America, proselytizing, sowing distrust and disharmony. It must be held accountable.

Moving to another area of contention, campus free speech issues continue to vex collegiate communities, from complaints that conservative speech and views of faculty and staff are stifled, to a move by President Trump that he says will fight against anti-Semitism but that critics say is really intended to punish student or faculty advocacy for the BDS Movement boycotts, divestiture or sanctions aimed at ending international support for Israel.

Much like the campus controversies, interpretations of religious liberty regarding public policy continued to swirl through the year. As the Supreme Courts 2019-20 term began in October, at least eight cases touching on faith issues the most in recent years were scheduled to be heard. A number involved LGBTQ rights regarding employment or health benefits. While some cases do not directly involve religious organizations, the courts decisions would affect arguments over whether religious beliefs can negate claims of discrimination on the basis of sexual preference.

An expansion of First Amendment protection for commercial speech (which at one time did not exist in law) continues, as courts at least give serious consideration to a variety of business arguments. In several instances, corporate lawyers are arguing that to force companies to make certain disclosures about product content or sources is an unacceptable requirement that violates the First Amendment by forcing companies to speak.

Other cases involve claims of free speech protection for hospitals facing a Trump administration rule requiring disclosure of secret rates. Industry groups filed a lawsuit earlier this month, also claiming it is compelled speech in violation of the First Amendment.

New technology continues inexorably to challenge long-standing law. In a mix of free speech and public safety concerns, a Texas man was sentenced in February to eight years in prison for using a 3-D printer to construct a plastic handgun and ammunition in violation of a prior court order against owning of a firearm. Advocates for the so-called 3-D gun argue the computer instructions in such 3-D printing projects are speech and not subject to federal or state firearms regulations. Government officials say existing criminal law on issues such as possession and manufacturing should allow them to regulate or ban making or owning such weapons.

Government officials and social media critics continue to hammer operations such as Facebook and Twitter which are not government entities, but private concerns not governed by the First Amendment with regulatory threats over political advertising, hate speech and evidence of foreign election interference.

Threatened action ranges from using anti-trust legislation to break up the largest social media companies, to removal of what is known as Section 230 protection for companies (from the Communications Decency Act of 1996) that now permits them to avoid legal responsibility for content they simply carry, rather than material they create or significantly edit.

Opponents of watering down or removing Section 230 protection say either action would, in effect, end the web as we know it by shutting down the flow of information to the mere trickle of items or articles that could be independently verified by internet providers, or to bland factual accounts devoid of opinion or interpretation.

The year 2019 may well go down in First Amendment history as a turning point, in which those working to limit or control information avoided direct confrontations over First Amendment rights and turned to tactics designed to make it much more difficult, much too costly or even financially ruinous to exercise those rights.

Gene Policinski is president and chief operating officer of the Freedom Forum Institute. He can be reached at gpolicinski@freedomforum.org, or follow him on Twitter at @genefac.

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We're divided in new ways over First Amendment freedoms - Sunbury Daily Item

The problems galled local officials, who vented deep frustration that a utility they often work closely with kept failing them.

After all, they are the ones dealing with a shutoff's consequences. They must dispatch ambulances, run jails and water plants, direct traffic through darkened intersections, set up community shelters and much more.

"It's almost as if it's intentional disregard of all the warnings we gave them," said Napa County Supervisor Diane Dillon, whose district north of San Francisco has experienced nearly every shutoff.

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Sixteen million people --- more than the population of nearly any U.S. state --- depend on PG&E for power. The shutoffs were an inconvenience for some and extremely costly for others. For society's most frail, they brought questions of life and death.

Those who rely on medical devices in their homes were particularly vulnerable.

"PG&E did nothing to help us who depend on electricity to run our life support," recounted Grace Lin, a polio survivor who needs a ventilator to breathe and uses an electric wheelchair. "It's not like we could simply grind our teeth and tough it out by holding our breath."

Lin said she was confused by the notifications PG&E sent ahead of the first shutoff that affected her San Francisco Bay Area home on Oct. 9. The company website they referred to for updates was frozen. Lin considered herself lucky that she had the means to evacuate 20 miles away, to a quadriplegic friend's house that had electricity.

PG&E could identify "medical baseline" customers such as Lin based on billing records. Local officials working to identify everyone who might need help repeatedly asked PG&E to share its list, so no one was overlooked.

Regulators said PG&E promised it would release medical baseline addresses during a shutoff. Yet when each of the first four hit, PG&E insisted that locals sign a legal agreement not to disclose the addresses, causing delay and uncertainty that regulators said could risk lives.

On the eve of the first massive power outage, Malashenko of the utilities commission was urgently emailing company officials in frustration.

"This issue has been discussed many times over the last several months" yet "has once again become an issue with PG&E," she wrote on Oct. 8.

Malashenko said state officials also pushed PG&E to improve in other areas. Starting in April, they met at least weekly with PG&E, pointing out needed improvements and stressing that aspects of the utility's preparation was inadequate.

PG&E argued that the commission's own privacy rules meant it couldn't share the addresses without a non-disclosure agreement, spokesman Jeff Smith explained. Resolving the problem took an order that the commission's executive director sent three hours before the first massive blackouts began.

Other groups of vulnerable Californians endured shutoffs without the help they needed.

"A lot of them don't have support, a lot of them don't have family," Betty Briggs, 84, said of her elderly neighbors in the well-touristed Napa Valley town of Calistoga. "It makes it very difficult, and it puts them in danger."

Briggs can get around without help, but her husband requires 24-hour care due to dementia. He lives nearby at Cedars Care Home, where seven residents in their 80s and 90s experienced three shutoffs before mid-October.

The outages created anxiety for people reliant on routine, as well as practical problems.

Beds and wheelchair lifts require electricity. So does the heat and air conditioning. When the freezer got too warm, staff tossed 30 days of backup food.

Owner Irais Lopez still hasn't restocked fully.

"Now, we only buy small quantities," Lopez said, "because we don't know what will happen."

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At PG&E's high-rise headquarters in downtown San Francisco, the emergency operations center springs to life with each shutoff.

Employees in different colored vests that distinguish their expertise cluster around banks of computer monitors showing real-time updates. Maps track wind speed and direction, as well as which circuits are down. Conversation hums in the background.

This is where decisions are made and answers can be found --- and local officials said they felt they had little access to either.

Fed up with communication gaps, one hard-hit county requested a presence at PG&E headquarters during the September shutoff. Regulators required that the utility hold seats in its emergency operations center for local representatives, but a lawyer for Sonoma County instead spent her day in a conference room several locked doors away.

"There was just a lack of understanding on behalf of PG&E of why local government needs timely information," said Petra Bruggisser, a deputy county counsel.

PG&E already had a shaky reputation in its Northern and central California territory.

The company spent three years in bankruptcy starting in 2001, after California's attempt to deregulate its power market went awry.

Maintenance failures led to a natural gas pipeline blast near San Francisco in 2010 that killed eight people. PG&E was found criminally liable and paid a $1.6 billion fine.

In late 2017, its equipment was suspected of starting the Tubbs Fire that killed 22 people and destroyed more than 5,600 buildings.

The utility revealed in spring 2018 that it would start using power shutoffs when fire danger was high and extreme winds blew.

PG&E then began to explain what to expect, sending millions of emails to update its customer contact files, running advertising in multiple languages and holding hundreds of meetings with community leaders, public safety agencies and residents.

The California Public Utilities Commission started writing guidelines for how utilities should roll out "de-energization." The guidelines were published as a 176-page document in June.

By that point, PG&E had again filed for bankruptcy protection, crushed by liabilities for fires in 2017 and 2018, including the Camp Fire that nearly wiped out the town of Paradise and killed 85 people.

The utility now has a market value of about $6 billion --- a drop of $30 billion in just over two years --- and is working with the state and a federal judge to emerge from bankruptcy by June 30.

California Gov. Gavin Newsom said he expects PG&E's entire 14-member board of directors, including Johnson, its CEO, to step down before the state will approve the utility's plan to regain its financial footing.

"PG&E's recent management of the public safety power shutoffs did not restore public confidence," the Democratic governor warned the company in a Dec. 13 letter. "Instead, PG&E caused extreme uncertainty and harm for Californians who rely on power for their health care and their livelihood."

PG&E said Johnson was not available for an interview. The utility's point man on the shutoffs told AP that he believes Johnson, while testifying before lawmakers last month, was referring to its ability to kill and safely restore power to an extremely complex electrical grid.

Sumeet Singh, a vice president who oversees PG&E's community wildfire safety program, listed a litany of ways the utility is investing in fixes that he said will lessen the need for future shutoffs. Those include trimming more vegetation near power lines and burying some lines in areas most at risk of igniting.

Singh also acknowledged that the utility had some struggles during the early shutoffs but that it strove to improve and disputed any characterization that it did not succeed in some ways. He cited how quickly the utility restored power as one improvement, along with the timeliness and accuracy of customer notifications.

"Did we hit the mark on every single improvement? No. Do we have more work to do? Yes," Singh said.

Power shutoffs are likely to be a feature of life in California for years to come. PG&E must invest billions in infrastructure upgrades, and communities are spreading into lands once populated by trees and brush.

Regulators promise to be watching closely.

"If we have an outcome that doesn't meet the public expectation and what we need to run as a state," said Malashenko of the utilities commission, "that means that we need to rethink our approach and try something different and drive to a better outcome."

In November, the commission launched an investigation into whether it should sanction PG&E for violating shutoff protocols.

PG&E said it will need to improve how it reacts after it shuts off the power.

"I think we thought the big event was turning off the power," Johnson told lawmakers. "And I think we focused on that as the main event instead of the impact of that, right, on the people it affected."

(KR)

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PG&E's History of Blackouts Troubling - DTN The Progressive Farmer