Representing the City of Fullerton in court, attorney Kim Barlow argued that city staff said they had tried “very hard” to protect files uploaded to a city Dropbox account, with no password protection, that later turned up on the FFFF blog.

Matthew Leslie

On Thursday, March 12 in Santa Ana Orange County Superior Court Judge James L. Crandall rejected a motion to dismiss the City of Fullerton’s lawsuit against bloggers from the Friends for Fullerton’s Future (FFFF) blog over alleged illegal downloading of files from a city Dropbox folder. Judge Crandall also issued a preliminary injunction prohibiting the blog from publishing any more of the files in question. A similar injunction, issued last year by a different judge, was later thrown out by the 4th District Court of Appeal.

During the same session, the court also denied the FFFF blog’s motion to dismiss the City of Fullerton’s civil case, which names bloggers Joshua Ferguson and David Curlee as defendants. FFFF counsel considers the case to be a “SLAPP,” or Strategic Lawsuit Against Public Participation. Judge Crandall allowed the case to move forward because it appeared to him that there was illegal activity involved in the accessing of the city files, and that the city could prevail in the case.

The city contends that Mr. Ferguson was sent a link to specific files in a city Dropbox folder, but that FFFF bloggers illegally accessed and downloaded other files also found there, including files containing private information about city employees. Last year the blog published stories about the city’s questionable handling of the drunk driving incident involving now former City Manager Joe Felz and one about what appeared to be a deliberate attempt by the city to circumvent new police reporting laws.

The case has raised concerns about restricting 1st Amendment guarantees of free speech by intimidating reporters by suing them and by filing for injunctions against publishing materials that might be embarrassing to municipalities. Courts have generally held that prohibiting news organizations from publishing information constitutes prior restraint.

Despite acknowledging that  some of the documents were “of significant public interest,” Judge Crandall reasoned in his Tentative Ruling that the injunction would not constitute prior restraint because it would be a “content-neutral restriction on defendants based not on their speech, but on their own prior unlawful conduct,” evidently finding credibility in the city’s contention that its civil case is based on the theft of city materials, in the form of its files, and not an attempt to silence critics. “We are trying to get our property back,” argued City of Fullerton’s counsel Kim Barlow, insisting that she wouldn’t be there if the case was about free speech.

During the evidentiary hearing to determine whether or not to allow the case to move forward, FFFF attorney Kelly Aviles argued that accessing files in the city’s Dropbox folders without authorization did not constitute an illegal act, and that, in any case, the city had no proof that the bloggers named in the lawsuit were responsible for downloading the files because the IP addresses detected were anonymous and could not be tied to either Mr. Ferguson or Mr. Curlee.

Ms. Aviles also argued that, although the city claims that the files were private, they posted them to the Dropbox account without any barriers to their access, noting that user folders set up on Dropbox are, by default, private, but that city staff had chosen to make them public by proactively removing any barriers to access. Ms. Barlow, in turn,  cited the 2017 Equifax file breach that exposed private information about millions of people, arguing that inadequate security on a website did not mean that accessing information there did not constitute criminal activity.

Judge Crandall likened the situation to theft from a house whose front door had been left open, but Ms. Aviles countered that routine application of theft laws did not apply the same way to the press. Earlier in the hearing, Ms. Aviles differentiated between files found on a city computer and those found in folders hosted by Dropbox, which exists on the inherently public medium of the internet, reasoning that the files found on the internet are public, whether their location has been specifically advertised or not. Because no password was required to access them, FFFF’s attorney contends that the files were not private, despite the city claiming that they were. (At one point Judge Crandall expressed frustration with internet passwords, relating his trouble using them to access his own court files, and stated that he calls his grandson when he has trouble doing so).

Ultimately, Judge Crandall refused to grant a stay to the preliminary injunction and denied FFFF’s anti-SLAPP motion, allowing his published Tentative Ruling to stand. He set a trial date in January, 2021. Ms. Aviles indicated of behalf of Mr. Ferguson and Mr. Curlee that she would appeal the judge’s rulings before that time.