Let’s get one thing straight: the US female leaders at the centre of the controversy over the lawsuit against a Democratic state assemblyman want the motion to stop the defamation suit made by the plaintiff tossed out. This is legitimate and understandable. No evidence has been supplied to support the allegations of misconduct. The problem is that the lawyer for several women suing the assemblyman for harassment – who are also seeking monetary damages – wants to obtain the documents used by the AOC to issue the subpoena.
With this request, brought by firm Cohen Milstein Sellers & Toll, their client may well achieve several of her goals: she will presumably be able to demonstrate that the AOC wasn’t simply acting in good faith in doing its legal duty, a free speech case will be made that the AOC was wrong, and she may just secure her client a temporary injunction to stop the defamation suit in its tracks. I have reached the same conclusion. I think it is extraordinary that the AOC has been asked to do the bidding of a third party when it is, after all, an independent organisation created by the state of California to administer and enforce the state’s open records law.
To be clear, none of this means that no sexual harassment took place in California. We just don’t know to what extent it was occurring. This case has many twists ahead. What is clear from the first day of the news conference is that some of these allegations involve accusations of a much higher degree of conduct – inappropriate jokes, comments and physical contact. However, in the end, California state representatives are merely political appointees and third parties cannot be seen to be press officers or intermediaries between state employee and state office. It is as if a court – let’s say a district court – decided that a lawyer should have possession of the ballots from the disputed California supreme court election (which had been seized by the judges themselves).
And there’s the rub. All political parties or parties that are part of the democratic process should and do vigorously assert their free speech rights. But when the same rights can be used in such an obvious way to undermine the very meaning of the free speech right, then we cannot hold this tactic to the same standards as other examples of advocacy we would have found acceptable. We have a responsibility to consider whether this exercise of free speech is an appropriate use of the state’s resources.
This case is now before a judge. California is a very large, diverse and powerful state with many of the nation’s sharpest legal minds. I am confident that at some point the judge is going to figure out the wise way to deal with this case and send it back to the appropriate legal forum. The judge will then examine the documents held by the AOC. She will decide which to provide and which to withhold. She will examine the original emails, and she will find out exactly what is being said.
At the end of the day, the AOC has a right to receive those documents. And when that happens, and at the end of a day in which California state representatives have been portrayed as unscrupulous, unethical and untrustworthy to millions of voters, it should cause us all to reflect on what AOC should do next time this happens. If only every one of those congressmen had done what was necessary to show their face.