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RICHARD HONGISTO

Richard Hongisto was an enigma: a maverick cop who became a politician, a jailer who became a First Amendment hero, a police chief who became a First Amendment villain. He helped in trying to open the doors of government. Later he acted like a petty tyrant and clumsily tried to suppress criticism that stung him. He lurched from friend of a free press to destroyer of newspapers.

Hongisto worked as a San Francisco police officer in the turbulent 1960s. He was the only white officer to testify in federal court on behalf of the plaintiffs in a lawsuit alleging discrimination against African Americans on the police force. In 1971, he ran for Sheriff against the longtime incumbent and won an upset victory. As sheriff, he recruited minority deputies, appointed the first openly gay deputy, and tried to improve jail conditions. In charge of the San Francisco jails, he opened the doors to the press. In 1972, for example, he allowed local public television station KQED to do a 90-minute live television program from inside the jail. It vividly showed squalid jail conditions and included on-the-spot interviews with both prisoners and guards.

In 1974, state and federal prison officials won a case in the U.S. Supreme Court, Pell v. Procunier. The Court upheld prison rules prohibiting the press from singling out individual prisoners for interviews. The rationale of the prohibition was to prevent prisoners from using the media to become “big wheels,” who could build their own power base by commanding attention inside and out and threaten the officials’ control of the prisons. The rule in California had been inspired by trying to contain charismatic prisoners like George Jackson and other militants, whom journalists like Eve Pell wished to interview.

The close 5–4 decision in Pell was written by Justice Potter Stewart. He emphasized that the press had reasonably good access to prisons like San Quentin; reporters were able to enter, look around, bring cameras, and interview randomly encountered prisoners. The only restriction was the no-interview-of-specific-prisoners rule. Stewart said no attempt was made to conceal prison conditions and found the officials’ concern about celebrity prisoners to be reasonable. He wrote: “News-men have no constitutional right of access to prisons beyond that afforded the general public [and no] special access to information not shared by members of the public generally.”

Justice Lewis Powell, a recent appointee of President Richard Nixon, surprisingly dissented. In Powell’s view, the press acts as the “eyes and ears” of the public, who can’t go to prisons and check out conditions and depend on reporters to inform them about what is going on in these taxpayer-supported institutions. Powell reasoned that the blunderbuss rule prohibiting all specific prisoner interviews was too broad, and a narrower rule limiting interviews in individual cases in which there was actual danger to prison security would be more consistent with the First Amendment.

Justice Stewart’s majority opinion contained two significant ambiguities, perhaps reflective of his own ambivalence about the role of the press. First, it was unclear whether the result turned on the fact that the press had good access to the prisons in question, and therefore the no-interview restriction was inconsequential, or whether the press in fact had no constitutional right of access to prisons at all, and therefore had to accept whatever access the officials chose to give. Second, it was unclear whether the result turned on the fact that the press was seeking special access not available to the general public, or whether neither press nor public has any First Amendment right to enter and observe a prison.

Less than a year after the Pell decision, I received a call from Mel Wax, the news director at KQED and the anchor of its then daily news program. KQED had been following stories about the Alameda County jail at Santa Rita. In 1972, a federal judge had found conditions there “shocking and debasing” and a violation of the Eighth Amendment’s ban on cruel and unusual punishment. In March, 1975, KQED’s Newsroom program reported on the suicide of a prisoner in the maximum-security part of the jail previously condemned by the federal judge. KQED also reported statements by a jail psychiatrist that the oppressive conditions were partly responsible for prisoners’ mental problems. The psychiatrist was fired after he appeared on the news program.

Wax told me that he had just called the sheriff of Alameda County, Tom Houchins, and asked permission to send a reporter and cameraperson to the jail. Houchins responded that his policy was no press access to the jail. None. Wax asked me if under the First Amendment the sheriff’s no-press policy was constitutional. I was familiar with the Pell decision and with its ambiguities. I told Wax that completely barring the press seemed unreasonable, at least where there was no risk to jail security. Wax decided to sue the sheriff. I decided to call Dick Hongisto. We brought a civil rights action for KQED in federal court in San Francisco.

Hongisto promised to be an ideal expert witness: a seasoned law enforcement officer and an articulate and intelligent jailer who had a completely open door for the press. He could, and did, testify that allowing reporters to pursue stories in the jail caused no security problems and actually helped him as sheriff to garner public and taxpayer support for improving conditions. He testified before Judge Oliver Carter about having permitted the live KQED broadcast from the jail. Asked whether any security problems were caused, he said, “None whatsoever.” He volunteered, “I’ve routinely, many times, had reporters stay in our institution overnight.” On “many, many” occasions, he testified, he had allowed television, radio, and newspaper reporters—and judges too—in the four jails that he was in charge of, without any disruption of jail routine or risk to security. He also testified that closed institutions like jails and prisons “routinely end up being places that are extraordinarily abusive to people,” and exposing conditions, through the press, motivated county supervisors to meet their responsibilities to provide adequate funding.

Judge Carter heard testimony from Hongisto, Sheriff Houchins, and several other witnesses at a hearing on our motion for a preliminary injunction. We sought an order that would require Houchins to allow KQED and other press representatives to enter the Santa Rita jail to cover the news. Conscious of Justice Stewart’s “no greater access” statement in Pell, I made the fateful decision to join as plaintiffs in the case two local chapters of the NAACP. Their members were representative of the general public who were concerned about how their tax dollars were being spent and whether a new jail was needed; and they depended on the press to inform them about conditions there. The idea was that both press and public were seeking access to what was going on in the jail. My idea backfired, but not until the case reached the U.S. Supreme Court.

Sheriff Houchins’s lawyer was career county counsel Kelvin Booty. He, too, had read Pell, and the defense was that the sheriff would provide the press with precisely the same access as the general public. Before we sued, that was no access. When we sued, the Sheriff initiated a series of six monthly guided tours of Santa Rita. The tours were open to both press and public, on an equal basis. The first tour was conducted, inadvertently I am sure, on Bastille Day, July 14, 1975. It was oversubscribed, as was the entire series of tours that year, almost immediately. People on the tour were not allowed to bring cameras or recording equipment, or to talk to any prisoners. Indeed, the prisoners were hustled out of sight during the tours, so what the tourists saw was basically architecture. The antiseptic tours did not include the maximum-security part of the jail where most of the problems had arisen. And, of course, having tours on a monthly, scheduled basis gave the press no chance to report on any breaking news event. Sheriff Houchins’s position was consistent to a fault: the press had no greater right of access to his jail than the general public.

Judge Carter, doubtless reassured by Dick Hongisto’s helpful testimony that press access presented no security problems, rejected Sheriff Houchins’s doctrinaire stance. He issued a preliminary injunction requiring Houchins to allow press access “at reasonable times and on reasonable notice” except when a genuine security emergency might arise. Reporters could use cameras and recording equipment and could interview randomly encountered prisoners. This arrangement seemed like a reasonable accommodation of the competing values: satisfying the interest of both the press and the public in jail conditions, and ensuring the Sheriff ‘s need for jail security.

To my surprise, the Sheriff appealed. The Court of Appeals granted a stay of Judge Carter’s order. We asked that the appeal be expedited so that the case would not languish on the court’s docket for years. The court heard argument and unanimously ruled in KQED’s favor. Unfortunately, the three judges on the appellate panel could not agree on a single theory for why the First Amendment required access of the kind ordered by Judge Carter. They seemed to be baffled by the Pell ambiguities and unsure how far they could go in recognizing a brand new First Amendment right: a right of access to government facilities and information.

Again to my surprise, the Sheriff petitioned the Supreme Court for review. Justice William Rehnquist granted a stay of our injunction. The case was set for argument before a shorthanded court. Justices Thurgood Marshall and Harry Blackmun did not sit on the case. Marshall recused himself because the NAACP parties were in the case. Having been general counsel for the national NAACP back in the 1930s and 1940s, Marshall routinely recused himself in cases in which NAACP parties appeared, however tangentially. My decision to include the NAACP chapters to demonstrate that both the public and the press supported access had lost us what was almost certainly a crucial vote. How Justice Blackmun would lean at this stage in his tenure on the Court could not be known. He did not participate because he had prostate surgery shortly before the argument.

At stake in the argument of Houchins v. KQED was a quite fundamental First Amendment issue that the Court had never been asked to resolve: whether there was any such thing as a First Amendment right of access. Counting heads on the Court, I thought we would certainly get Justice William Brennan’s vote; he was always a First Amendment stalwart. I was hopeful, based on his dissent in Pell, that Justice Powell might go along. Justice John Paul Stevens, President Gerald Ford’s only appointee to the Court, was new and had no track record on First Amendment issues. But as a court of appeals judge, he had seemed appropriately skeptical of prison officials’ excuses for denying prisoners’ rights, and he seemed persuadable. On the other hand, Chief Justice Warren Burger had never been friendly to press arguments, seemed mistrustful of the press, and virtually always gave the government the benefit of the doubt. William Rehnquist was very conservative and had not yet given any hint of interest in First Amendment freedoms. Byron White was nominally a Democrat and had been appointed by President John F. Kennedy but had always been suspicious of press claims, as exhibited by his Branzburg opinion. That left Potter Stewart as the man in the middle. He was the author of Pell and the “Or of the Press” speech, he was frequently a swing vote on the Court, and the case could not be won without him.

Kelvin Booty argued first for the Sheriff. Early on, Justice Stevens asked Booty whether he contended that “the whole problem could be solved by having zero access to public and press both.” Booty answered that he did not. My heart sank when Stewart interjected, “Why don’t you? It’s a perfectly logical position to take.” Booty responded, “Yes, it is a logical position, Your Honors, but it isn’t our position.... I’m not convinced, and, considering the body that I’m speaking to, I’m not convinced that that’s what the Court held in Pell.” Stewart’s rejoinder seemed surreal: “What the Court held in Pell was, as I understood in writing it, that the press had no right of access superior to that of the general public.” This did not bode well for bringing Stewart into our camp.

In preparing my argument, I got help from New York Times columnist Anthony Lewis, who had covered the Court for the Times and was teaching a First Amendment course at Harvard Law School, where I was a lecturer at the time. He strongly cautioned me against arguing that the press has rights that the public does not have, but I didn’t think I had any alternative. Plainly, the general public can’t investigate jails; allowing reporters in was the only way to keep the sheriff—and, more broadly, the government—from concealing conditions and information from the public. Lewis brought his class down to Washington for the argument, and we had a post-argument seminar in one of the Court’s ornate conference rooms. Lewis’s column that week said: “Any editor or reporter who thinks the press is a beloved institution should have been in the Supreme Court chamber the other day. A press claim being argued under the First Amendment drew from the bench extraordinarily open expressions of scorn and hostility.” I told the class I felt as though I had been standing before the Court in my pajamas.

Chief Justice Burger interrupted the first sentence out of my mouth. As Lewis reported, hostile questions were accompanied by critical observations: “Members of the Court were especially skeptical of the idea that the press should have greater rights of access ... than the general public. Justice Byron R. White referred half a dozen times, in sarcastic tones, to ‘special privileges’ for the press.” Justice Rehnquist raised the specter of opening the floodgates to federal constitutional claims every time a government official said no to the press. I tried to calm that concern by referring to Dick Hongisto’s testimony that other jails were completely open and that Sheriff Houchins’s no-press policy was not justified. That contention provoked Chief Justice Burger to jump in: “Let’s say the president wants to have cabinet meetings open to the media, with television and so on. Does that mean that the courts have to open their conferences because someone else does it?” I said it did not, adding: “The only feasible way the public at large will know what’s going on in this jail is if reporters are allowed in. A handful of people can go on the tours. But reporters, acting as agents for the public at large—the eyes and ears of the public at large—can go in and without any disruption to jail routine—because it’s done in all the other prisons and jails in the area—can meet this public need without interfering with any purpose, valid purpose, of the sheriff.”

So far, I had not heard from Justice Stewart. Presently he ventured that perhaps “equal” access could be “provided in a different kind of way,” recognizing the special needs of the press. This sounded hopeful. But then he continued: “Well, how far does your argument go? There are many areas wouldn’t you agree to which the public does not, in fact, have access, let’s say to the Oval Office in the White House ... [and] to that extent, the public doesn’t know what goes on there.... We’re talking not about policy or prudential considerations or wisdom or lack of it. We’re talking about what is required by the First and Fourteenth Amendments.” When I reminded him that Sheriff Houchins completely excluded both press and public, Stewart’s tone turned sharp: “Why does the mere fact that the public does not have access thereby confer a right upon the press to access? That’s a brand new doctrine that I’ve never heard of. [Members of the press are excluded] from many areas of governmental life. They’re excluded from the war room over in the CIA” as well as from deliberations of both courts and commissions.

I tried to distinguish those situations by pointing out that the information discussed in the CIA and in judicial deliberations could properly be considered confidential, while “what’s going on in this jail is information that has no claim to confidentiality.” I also noted that jails are different kinds of governmental institutions, imprisoning citizens “with an opportunity for overreaching the liberties of the people confined and very little opportunity for that to come to public knowledge unless reporters are permitted in.”

Stewart was unconvinced: “There may be other reasons that the public is not given access aside from confidentiality: reasons of security, of discipline, of the very fact that a jail is a jail.” I said the Sheriff had not claimed any such interest, driving Stewart to dig in his heels: “He doesn’t have to. It’s you who are attacking what he has done. It’s you saying what he has done is unconstitutional, violative of the U.S. Constitution. He doesn’t have to justify it. You have to invalidate it.”

It wasn’t quite over. Justice Rehnquist asked me whether a reporter could get a jail story by visiting a prisoner during the Sunday visiting hour. I said, “Yes, but you could not see the scene. You have no idea what the conditions look like. Should the press take the prisoner’s word for what it looks like and what happened without checking it out? I think not. And certainly my client thinks not.”

REHNQUIST: Should the press take the president’s press secretary’s word for what the president’s views are without going into the Oval Office and checking him out?

TURNER: Well, that’s the way they do business over there.

This bad answer to a sarcastic question reanimated Stewart.

STEWART: You’re dealing here with a constitutional issue.

TURNER: The President of the United States cannot be required to meet the press by any constitutional ...

BURGER: What about a United States senator? There are normally a hundred of them.

TURNER: I don’t think any court could order a senator to sit down and meet with the press.

BURGER: Four hundred thirty-five members of the House?

TURNER: We’re not saying that the sheriff has to come out and meet the press or open his files or tell us when anything happened. He just can’t shut the door to us on the ground that all that’s required is equality even if that equality is zero.

On June 26, 1978, the Court handed down its decision. The Court split 3–3–1. Chief Justice Burger wrote an opinion for himself, Rehnquist, and White in which he resoundingly resolved both of the ambiguities left by Stewart’s Pell decision: “Neither the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government’s control.... The media have no special right of access to the Alameda County Jail different from or greater than that accorded the public generally.” In other words, no one has a First Amendment right of access not only to a jail but to any “government information,” and the press has no greater access than the public.

Justice Stevens dissented, in an opinion joined by Justices Brennan and Powell. He reasoned: “Without some protection for the acquisition of information about the operation of public institutions such as prisons by the public at large, the process of self-governance contemplated by the framers would be stripped of its substance.... Information gathering is entitled to some measure of constitutional protection.” He said that it was important to allow “a democratic community access to knowledge about how its servants were treating some of its members who have been committed to their custody,” and he concluded that “an official prison policy of concealing such knowledge from the public by arbitrarily cutting off the flow of information at its source abridges the freedom of speech and of the press.”

Justice Stewart was stuck in the middle. He concurred in the judgment that the injunction against the sheriff was unwarranted but thought KQED was entitled to some relief. Unfortunately, he agreed with the Chief Justice that the First Amendment does not guarantee either the public or the press access to government information, and does not give the press any superior right. “The Constitution does no more than assure the public and press equal access once government has opened its doors.” However, he said, “The concept of equal access must be accorded more flexibility in order to accommodate the practical distinctions between the press and the general public.” He went on to refer to the special status of the press recognized in his “Or of the Press” speech, noted that to do its constitutionally recognized job the press had special needs, and concluded that “terms of access that are reasonably imposed on individual members of the public may, if they impede effective reporting without sufficient justification, be unreasonable as applied to journalists.” In other words, reporters are entitled to greater rights than members of the public. Specifically, Stewart said, reporters should be allowed in the jail when newsworthy events occurred (not just on scheduled tours), and they should be able to use cameras and recording equipment. But since Stewart’s theory was that the press was not entitled to access to sources of information not available to the public, reporters could be excluded from the maximum-security part of the jail and could be prohibited from interviewing prisoners. Stewart said he would not preclude the possibility of some injunctive relief for KQED along these lines, but it would “depend on the extent of access then permitted the public.”

The old chestnut about Supreme Court advocacy, attributed to former attorney general and Supreme Court Justice Robert Jackson, is that every argument in the Court turns out to be three arguments: the one prepared weeks in advance that is carefully outlined, logical, coherent, and complete; the actual one before the Court, during which the advocate stumbles, is interrupted and incoherent, feels frustrated, and never gets to most of the points in the outline; and finally, the one that comes to the lawyer after going to bed that night, the one that takes a Justice’s question and brilliantly turns it into a triumph for the client’s cause. I must confess that I have never, in the decades since the KQED argument, figured out what that third, clinching argument would have been.

I did not realize until much later how close we came to establishing a First Amendment right of access to government facilities and information. For his book Freedom of the Press, Professor Bernard Schwartz got access to the private papers of retired justices, including their notes of the conference when they voted on the KQED case. It turned out that the Court’s initial vote on the case was 4–3 in KQED’s favor. The writing of the majority opinion was assigned to Justice Stevens, and his draft was very close to the opinion he eventually filed as a dissent. At some point Justice Stewart, who had voted with Stevens’s majority, got cold feet and wrote a note to Stevens taking the position expressed in his concurrence, and Stevens lost his majority. The opinion drafted as a dissent by the Chief Justice became the majority opinion. And an important constitutional principle was lost.

By the time the case was returned to the court in San Francisco, Sheriff Houchins had come to appreciate the value of the public tours. They were good public relations. He decided to keep them. This position allowed us, relying on Justice Stewart’s fence-straddling concurrence, to settle the case basically along the lines Stewart identified. Because the public was allowed to enter the jail, so were reporters. And, to do the “effective” job referred to by Stewart, they could come whenever a news event occurred and bring the tools of their trade; however, access to the maximum-security part of the jail and interviews with prisoners would not be allowed. This relief, contained in a consent order, was better than nothing. But the loss of a great First Amendment principle still hurt.

Oddly, just two years after the KQED decision, the Court decided that there was a First Amendment right of access after all. In 1980, the Court decided the first of four cases in which newspapers contended that they had a right of access to criminal trial proceedings. In an opinion by Chief Justice Burger that did not even mention the KQED precedent, the Court determined that in light of the long history of openness of criminal trials and the important practical values served by openness, both press and public had a constitutional right of access. The decision was greeted with a touch of irony in Justice Stevens’s concurring opinion:

This is a watershed case.... Never before has [the Court] squarely held that the acquisition of newsworthy matter is entitled to any constitutional protection whatsoever.... It is somewhat ironic that the Court should find more reason to recognize a right of access today than it did in Houchins. For Houchins involved the plight of a segment of society least able to protect itself, an attack on a longstanding policy of concealment, and an absence of any legitimate justification for abridging public access to information about how government operates.

The lack of a more general right of access to government facilities and information puts the United States behind many other democracies. Scandinavian countries in particular give prominent place in their constitutions to freedom of information. Sweden’s constitution, for example, enshrines what is basically a freedom of information act as an article in its constitution. Under the Supreme Court’s interpretation of our constitution, however, government transparency is merely a matter of grace. Officials need not answer questions from citizens or reporters, or allow anyone in the door to look around. Even the right to see documents under the Freedom of Information Act is riddled with exceptions. This situation allows for the kind of excessive secrecy that characterized the administration of George W. Bush and Dick Cheney. For example, shortly after 9/11 hundreds of immigrants, mostly Muslim, were rounded up and threatened with deportation. The administration closed deportation hearings to both press and public, and the immigration court dockets were sealed so that no one could even know if a hearing was scheduled. This regime of secrecy prompted a federal judge to remark: “Democracy dies behind closed doors.”

Dick Hongisto did not end his career as sheriff. He went on to become the chief of police in Cleveland, under progressive mayor Dennis Kucinich. They did not get along, and Hongisto lasted only three months. He then was chosen by the governor of New York to run the state prisons, but the legislature refused to confirm the appointment. Returning to San Francisco, Hongisto was elected to the city’s board of supervisors. In 1992, Mayor Frank Jordan named him Chief of Police.

Hongisto could not have been thinking about lofty First Amendment principles when he picked up the telephone on May 7, 1992, and called Sgt. Gary Delagnes. The week before, after the Rodney King police brutality verdict in Los Angeles, widespread, noisy, and volatile demonstrations broke out in San Francisco. Somewhat uncharacteristically, Hongisto forcefully acted to contain and suppress them. He had the police cordon off an entire neighborhood in the Mission district, and hundreds of people, demonstrators and bystanders, were caught in the net and arrested. Instead of merely citing and releasing those arrested, as would customarily be done, Hongisto arranged for hundreds of them to be taken by bus not to a San Francisco jail but, ironically, to the Alameda County jail at Santa Rita (by then, a new jail, but still not a nice place). They were held in custody for up to 30 hours, preventing them from returning to San Francisco and rejoining the demonstrations.

Hongisto’s actions provided the cover story for the May 7, 1992, issue of the San Francisco Bay Times, a gay and lesbian weekly newspaper. On the cover was a photograph of Hongisto with a silly grin on his face pasted over the body of someone dressed as a police officer holding a giant baton emerging from his groin as though masturbating. The headline screamed “Dick’s Cool New Tool: Martial Law.” The article in the paper was highly critical of Hongisto’s aggressive police actions. It said that “ex-liberal police chief Hongisto declared martial law,” and that his policies represented not only “wholesale suspension of the First Amendment, but also a total abrogation of much of the Constitution.” Hongisto had always been supportive of the gay community, and the Bay Times cover story must have hurt.

At a police commission meeting the night before, Sergeant Delagnes appeared and in Hongisto’s presence vigorously defended Hongisto’s actions. When Hongisto called Delagnes the next evening with a copy of the Bay Times in his hand, he knew that at the time Delagnes was assigned to the vice squad, worked in plainclothes, drove an unmarked police vehicle, and was on duty until 3:00 a.m. He knew that the Bay Times was a free newspaper, distributed in news racks in the Castro neighborhood and elsewhere in the city. He asked Delagnes if he thought they could get “these things out of the racks” and said he would “like to see as many of these off the street as [he could].” Hongisto told Delagnes that he was “very offended” by the cover, that it “bordered on pornography,” and the depiction was “somehow beyond the First Amendment.”

Since Delagnes was not familiar with the Bay Times, Hongisto told him he would leave a copy of the paper on the windshield of his official car while he was attending a meeting. Delagnes fetched the paper, and as he and a fellow officer drove around they read aloud from the critical Hongisto article. While still on duty, Delagnes went to a transvestite bar, asked the owner if he had any copies of the paper, and took the entire bundle from him. Then he drove through the Castro district and observed the location of Bay Times news racks.

Near the end of his shift that night and still on duty, Delagnes recruited two other officers and they went out in the dead of night and emptied as many Bay Times news racks as they could find, loading the newspapers into the trunk of the police car. One of them pretended to be filling the racks so as to avoid suspicion. Delagnes later testified that he took the papers because he was “repulsed” by the cover: “I thought it was just vile.” He was especially concerned because the cover could be seen through the window in the news racks and one of them was “right around the corner from a Catholic church.” He added, “The First Amendment is fine and dandy but you know, you got all these kids walking by and they’re looking at this stuff and this stuff is really trash.” He wanted to get as many papers as he could so they would not be “exposed to the public.” The officers confiscated about 3,000 copies and took them to one officer’s garage, where they left them. Delagnes and another officer left for Lake Tahoe for the weekend.

The plot unraveled the next Monday when Delagnes told his supervisor what the officers had done. The supervisor, Art Gerrans, called Delagnes back to get the details and secretly tape-recorded the conversation in which Delagnes richly incriminated himself. The matter quickly escalated to the mayor’s office. A speedy police commission investigation resulted in Hongisto being fired after only six weeks as chief.

When the newspapers disappeared from the racks, and before anyone knew who took them, Kim Corsaro, the editor and publisher of the Bay Times, was naturally upset. The newspapers had been stolen from the heart of her distribution area. There was “no visible sign of the paper in the Castro.” She hired a private investigator to find out who was stealing the newspapers and a security service to protect company property and personnel, and she tried to refill the emptied racks. She was also distressed when she learned the next week that it was the police who, instead of protecting her business against thieves, were themselves the thieves. She determined to sue Hongisto, the officers, and the city for violating her constitutional rights. I agreed to represent her and the newspaper company. We sued in federal court.

Having fired Hongisto, the City of San Francisco tried to disown him and refused to represent him, claiming that he had not been acting within the scope of his employment. City government officials also contended that the city was not liable to the Bay Times as Hongisto’s employer, because he was not a “policymaker” for the city. The city’s defense lawyers proceeded to subject Corsaro and the Bay Times to scorched earth litigation tactics: 115 written interrogatories, 131 document requests, several depositions, 2 separate motions to dismiss, 4 separate motions for summary judgment, and a motion to compel Corsaro to testify about prepublication internal editorial discussions about the cover of the seized newspaper.

When I took Hongisto’s deposition before trial, I encountered a different Richard Hongisto than the effusive, forthright witness I had questioned in the KQED case. He was tight-lipped, defensive, and suffered convenient memory lapses on key points. He gave rote “I don’t recall” answers to the most basic questions. For example, he did not “recall” how he happened to get the copy of the newspaper with his picture on the cover, when he received it, what his first reaction was, whom he talked with on the telephone immediately before and after his call to Delagnes, what he did that evening, what he talked about with the mayor who called and told him the papers had been stolen, and whether he told the officers they should not admit their guilt after they were caught. These lapses would not seem credible to the jury.

The entire shenanigan was so outlandish that there were no First Amendment subtleties. Clearly, government officers were not allowed to confiscate newspapers because they disapproved of the content. Constitutionally, the Bay Times depiction of Hongisto was no different from political cartoons that are offensive to their targets but indisputably protected by the First Amendment. And seizing the newspaper was the crudest kind of “prior restraint,” a classic violation of the First Amendment. Despite the relative simplicity of the constitutional issues, the defendants conceded nothing.

When the case finally got to trial, even Hongisto’s lawyer admitted to the jury in his opening statement that Hongisto thought it was “unfair” for him to be targeted and that he was “hurt” and “embarrassed” by the newspaper’s “political lampoon.” Hongisto and the officers did contend that because the papers were free, taking them did not violate anyone’s rights. But the Supreme Court had made it clear ever since the Lovell case in 1938 (establishing the right of a Jehovah’s Witness to distribute literature) that First Amendment protection does not depend on whether a publication is sold rather than given away. If it were otherwise, police could confiscate a pamphleteer’s political or religious handouts because they are given away on a street corner; or if the government disapproved of a radio or television broadcast, it could jam the frequency because the programming is provided free to listeners and viewers.

Hongisto and the officers tried to convince the jury with a new defense: that Hongisto wanted the papers collected and then “distributed” to the police rank and file so they could see what he was up against in those trying times. This was of course a pretext. Copies of the paper could legitimately have been brought to the attention of police officers in many obvious ways, and no one suggested any intent to distribute them to the force until after the thieves were caught. When Delagnes told his supervisor what the officers had done, he was caught on tape crowing that he was ready to call Hongisto and announce “Mission accomplished!” even though not a single newspaper had been “distributed” to any police officer. He reported that Hongisto had asked him to “get these things out of the racks,” and Delagnes proudly said they “cleaned them out,” then laughed heartily.

The jury rejected the police story, returned a verdict in favor of Corsaro and the Bay Times, and awarded $35,600 in damages. The city had to indemnify the officers and Hongisto because they were acting within the scope of their employment. No one got rich. But important First Amendment principles were vindicated. It was not Dick Hongisto’s finest hour. He fell victim to the not uncommon phenomenon of losing your commitment to the freedoms of speech and press when you are the target.