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 AJR  Columns :    THE PRESS & THE LAW    

From AJR,   April 2000  issue

Gag Her with an Injunction   

An Alaska school super- intendent asks a court to silence his arch-critic.


By Jane Kirtley
Jane Kirtley (kirtl001@tc.umn.edu) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.     

Bob Christal, the school superintendent for Anchorage, Alaska, must have been as mad as a Kodiak bear who's being attacked by a swarm of mosquitoes. A one-term member of the Anchorage School Board named Theresa Obermeyer had been bad-mouthing him for years, starting shortly after she lost her bid for re-election in 1994.

Obermeyer accused Christal of committing a variety of unethical and criminal acts, including perjury and bribery, in connection with a school construction project. She complained, loudly, at School Board meetings. She reiterated her allegations in letters sent in 1994 and 1995 to the Anchorage Assembly, the mayor and the local newspaper, and then filed a formal complaint with the Professional Teaching Practices Commission. None of these assertions was found to have any merit by those who considered them.

But Obermeyer didn't stop there. In August 1997, she sent a letter repeating her charges to board members of the National School Boards Association.

In Alaska, it is one thing to rant and rave in your own community. Everybody knows Obermeyer, it seems, and most take her with a grain of salt. But when a local decides to take a dispute "Outside," it's tantamount to a declaration of war.

In January 1998, the School Board president sent Obermeyer a warning letter, advising her that if she didn't restrain herself from making what the board considered to be false and unfounded accusations, it would support legal action to stop her. Most people would have shut up at that point, but not Obermeyer. Last August, she sent another letter to the Anchorage Assembly and others. In December, Christal filed a defamation suit against her in Superior Court in Anchorage.

But it wasn't an ordinary suit. Christal's complaint does not seek any money damages beyond attorneys' fees and court costs. All he wants is a declaration from the court that Obermeyer's statements are defamatory and were uttered with actual malice. And he'd like a permanent injunction to stop her from saying or writing them ever again.

There's one other twist to this story: Christal's lawsuit was bankrolled with public funds, authorized by the School Board during a closed meeting. The Anchorage Daily News quoted School Board President Peggy Robinson saying the government agency felt it had to do something to stop what it regards as Obermeyer's harassment of Christal and her undermining of the school district.

Let's stipulate, for the sake of argument, that Obermeyer's accusations are baseless. Let's further stipulate that she's caused Christal and the school district a lot of embarrassment. Should she be officially declared a liar by an Alaska court and then gagged, at public expense?

Government officials have been trying to hush up bothersome gadflys since before the establishment of the Republic. Remember John Peter Zenger, the courageous German immigrant who enraged William Cosby, the Crown-appointed governor of the New York colony, by publishing anonymous attacks on him? He spent months in jail before being acquitted of criminal libel in August 1735 by a jury that refused to condemn him for criticizing the government.

But Christal isn't asking the government to prosecute Obermeyer for criminal libel. He simply wants her to be forbidden to publish on this issue and to face contempt of court if she doesn't abide by that order. Sounds a bit like Near vs. Minnesota. In that case, the Hennepin County attorney used a state statute permitting the government to close down "malicious, scandalous and defamatory" periodicals to stop publication of a Minneapolis newspaper called the Saturday Press. The attorney argued the paper was spreading lies about the police chief, claiming he was derelict in his duties and in the pocket of local gangsters.

In 1931, the U.S. Supreme Court struck down that statute, ruling that prior restraints on publication violate the First Amendment. The character and conduct of public officials is fair game for citizen commentary, Chief Justice Charles Evans Hughes wrote, and the remedy for false speech rests in a libel action, not an injunction. (Whether Christal would have any hope of prevailing in a conventional libel suit in light of the heavy burdens imposed on him and other public officials in New York Times vs. Sullivan is another question.)

In any event, a week after a story about the lawsuit appeared in the Daily News, Christal announced that he had decided to pay his own bill to pursue his case against Obermeyer. It seems the board's decision to underwrite the case didn't sit well with some of the citizenry.

Sort of like those New York jurors in 1735.