When the Paris offices of French satirical magazine Charlie Hebdo were attacked in 2015 by radical Islamic gunmen who objected to the publication of cartoons depicting the Prophet Muhammad in various unflattering ways, 12 people were killed, including eight journalists, and it set off a global debate on free speech, blasphemy, and religion.
In response to the violent attack on the magazine, rallies in support of free speech in solidarity with the magazine’s slain journalists broke out in Paris and several other European cities.
The slogan “Je Suis Charlie”, French for “I am Charlie”, became the rallying cry for the media and citizens who stood in support of our collective rights of expression, and the media’s right to publish controversial commentaries, cartoons, and criticisms of government.
The argument was that journalists in all media could become targets of violence or suppression if we don’t condemn retribution carried out against them simply for performing their work as reporters, political cartoonists, or commentators.
Of course, not all countries guarantee the same level of freedoms of expression, but, especially here in the US, we should all be concerned with retaliation or intimidation carried out against journalists, whether physical or even economic.
Here in San Diego, there’s a brewing controversy involving the exercise of police powers against a reporter who was working to chronicle and expose public corruption and malfeasance, but ended up sidelined with a damaged reputation and, worse, the knowledge that he could have changed the course of local history had he been allowed to continue his work without fear of retaliation and retribution by the same government officials he was writing about.
Local NBC journalist Dorian Hargrove was the first to report on the controversy surrounding the City of San Diego’s disastrous acquisition of the 101 Ash Street building in downtown.
Hargrove published a news story on September 3, 2020, nearly four years after the City Council voted to purchase the 19-story tower through a $128 million, 20-year lease-to-own deal.
A leaked version of a June 15, 2020, legal memo written by the City’s outside lawyers made its way to Hargrove, who then based his story on the memo that found San Diego City Attorney Mara Elliott failed to perform adequate due diligence before signing the controversial lease deal.
One footnote in the memo, known as Footnote 15, detailed that the lawyers thought interviewing former City Councilman Todd Gloria, who had supported the lease deal in 2016 when he was on the Council, would be “informative” as to why the City structured the deal the way they did, but that Elliott’s office did not make Gloria available.
Elliott, who was in a tough re-election campaign, and Gloria, who was running for Mayor in a close election, both condemned the memo’s footnote as “fabricated” and denied the comments were accurate. Both also demanded an investigation into who spread the so-called fabricated footnote in, what they called, an attempt to swing the elections.
Assistant City Attorney John Hemmerling, the head of Elliott’s Criminal Division, even sent Hargrove a letter informing him that they had “initiated a criminal investigation” and that it would be “a violation of state and federal electronic communications acts” if the memo was “received or sent via electronic method.”
Although no one from Elliott’s office or the City ever provided any proof that any part of the memo Hargrove referenced in this story was “fabricated”, the public pressure put on NBC finally led them to retract the part of his story that used the memo’s footnote as source material.
Hargrove was then sidelined by NBC, and restricted from reporting on City Hall stories for the remainder of the election cycle. The damage to his reputation was done.
But, the threats of prosecution and the vehement denouncements from the Elliott and Gloria also served to chill other media outlets from pursuing the 101 Ash memo story.
No one wanted to be the next Dorian Hargrove.
During candidate endorsement interviews at the San Diego Union-Tribune’s Editorial Board in August 2020, Elliott was asked if Footnote 15 ever existed in any draft or earlier version. She said that nothing like it ever existed. Full stop. No wiggle room. Then, taking Elliott at her word, endorsed Elliott and Gloria over their respective challengers.
Elliott’s tactics worked to quell the nascent scandal through the election, and she cruised to re-election and helped elect Gloria as Mayor without having to face more serious questions about 101 Ash Street. The attacks on Hargrove threw cold water on what should have become a full-blown investigation during a consequential campaign season.
During the past year since Hargrove’s first reporting and since the elections, more evidence has surfaced, including an earlier version of the memo which asked the same questions articulated in Footnote 15: Why did the City use the more expensive method of a lease through a middleman company instead of buying the building directly?
For that matter, in the year since Elliott was re-elected and Gloria was elected Mayor, why haven’t either one of the City’s only citywide elected officials initiated an investigation to find the suspected “leaker” or to find out where the “fabricated” footnote came from?
What happened to all the hand-wringing and consternation over the footnote?
The issue of Footnote 15 was dead for months until La Prensa San Diego recently obtained and published both the June 15, 2020, memo with the footnote, as well as an April 7, 2020, version that asked Elliott to answer nine questions and provide eleven sets of documents to help those lawyers answer the same basic question; why a lease instead of a purchase?
La Prensa San Diego has published the two iterations of the legal memo without any condemnation or denials from Elliott or Gloria. Not a peep. It seems much more likely now that Footnote 15 did in fact exist, and claims that it was “fabricated” were used to discredit Hargrove and stall damaging media coverage.
But, here is what we should all be up in arms about and moved to immediate action right now!
Hargrove recently filed a federal civil rights case against the City, Elliott, and Hemmerling, claiming they violated his Constitutional rights of free speech by targeting him for his critical coverage and exerted pressure on NBC which led directly to his suspension and the subsequent damage to his reputation and career.
In a surprising response to the lawsuit, Elliott claims she did not actually suspend or fire Hargrove -his bosses at NBC did- so she didn’t violate his rights.
And even if she did, she argues, she is immune from prosecution or legal liability in the performance of her job as a public official.
So, basically, Elliott is arguing she is free to harass, intimidate, and threaten criminal and civil actions against a news outlet – with or without any evidence- in order to pressure them to restrain or even fire a journalist who is writing stories that could affect the outcome of her and others’ elections, and she claims she has immunity from such acts as a public official.
This week, the federal judge hearing Hargrove’s lawsuit signaled she is leaning toward dismissing the lawsuit at a court hearing on December 16, seemingly agreeing that Elliott did not directly fire Hargrove or specifically direct NBC to take their actions, so, therefore, the defendants did not violate Hargrove’s civil rights.
While technically true, it was only the pressure from Elliott under color of authority, and therefore NBC’s fear of engaging in protracted litigation or criminal charges, that led to Hargrove’s benching.
If this ruling dismisses Hargrove’s case, all journalists could be vulnerable to such attacks from powerful public officials, especially those with police powers to bring misdemeanor and felony charges -like political City Attorneys, District Attorneys, State Attorneys General, even the US Attorney General- who may want to silence critics. They would be free to harass, intimidate, and threaten us with no repercussions.
These tactics could also be used to pressure social media platforms to suspend journalists, sponsors from supporting news outlets, or investors from participating in emerging news ventures.
This is government power being used in the most cynical and dangerous way; to muzzle journalists exposing political abuses of power, corruption, and malfeasance. This is a bright line that cannot be crossed.
We are all, just like Dorian Hargrove, potentially just one criticism away from finding ourselves in the crosshairs of powerful forces aimed at silencing us. We become sitting ducks just waiting to get picked off, one by one.
We become a police state. A third-world country. A strongman -or woman- society.
The protections of the First Amendment are powerful, but not sacrosanct. Legal arguments can be made, like the one’s Elliott is claiming, that could fall through fine cracks in the legal framework of our rights and put us at risk.
Dorian’s situation is not unique. We should all think of ourselves to be just as vulnerable as Dorian, and must fight to preserve and protect his and our precious rights.
We must stand up, together, to protect ourselves, each other, and the truth.
I am Dorian. You are Dorian. We are all Dorian.
Castañares is the Publisher and Editor-at-Large of La Prensa San Diego. He is the 2021 winner of the prestigious Ruben Salazar National Award for Excellence in Journalism in Print presented by the California Chicano News Media Association, the oldest Hispanic journalism organization in the United States. He can be reached directly at firstname.lastname@example.org.