State settles with Culinary over question of free speech

Wednesday, Feb. 9, 2000 | 10:06 a.m.

CARSON CITY -- The state Board of Examiners Tuesday agreed to pay a $30,267 settlement to Culinary Local 226, which accused Attorney General Frankie Sue Del Papa of violating its right of free speech.

An attorney general's office spokesman said Del Papa did not want to pursue an appeal to the U.S. Supreme Court.

Del Papa had threatened criminal charges against the Las Vegas union, which had circulated handbills criticizing the management and financial performance of the Commercial Bank of Nevada. The handbills said such things as "Commercial Bank Loses Money Again."

Del Papa cited a law that makes it a misdemeanor to make or circulate statements derogatory to the financial condition of a bank.

The union stopped but then filed suit in federal court in Las Vegas, complaining Del Papa violated the organization's right to free speech. U.S. District Judge Lloyd George granted a temporary restraining order against Del Papa from going through with her threat.

But then George dismissed the suit after Del Papa said she didn't have the authority to prosecute the union and that such authority is vested with local district attorneys.

The 9th U.S. Circuit Court of Appeals, in a 2-1 decision, revived the union's suit, saying, "... the attorney general undisputedly threatened the union with enforcement of NRS 668.105 and fervently continued to do so until after the District Court granted the union's request for a temporary restraining order.

"We do not agree with the state that the attorney general's subsequent disavowal of her authority can be construed to eliminate either the 'credibility' the 'genuineness' or the 'effectiveness' of her threat," the appeals court said in its decision last December.

The majority decision by the appeals court, written by Judges James Browning and Otto Skopil, did not reach the issue whether the Nevada law might be unconstitutional because it violates a person's right to free speech. That would have to be developed more at the District Court level, they said. The majority said, however, that the statements in the handbills by the union were true.

Judge Melvin Burnetti, a Nevada appointee to the court, wrote the dissent, siding with Del Papa that she didn't have the authority to bring criminal charges. Therefore the suit should be dismissed.

Burnetti pointed out that while the union stopped distributing the handbills after it received Del Papa's first letter, it started handing out another handbill two weeks later.

The record does not demonstrate that the attorney general's March 14 letter actually "chilled" Local 226's exercise of its First Amendment rights with respect to distributing handbills, Burnetti wrote.

Del Papa decided that rather than appeal the decision of the appeals court to the U.S. Supreme Court, the case should be settled for the $30,267.

Del Papa, one of the three members on the Examiners Board, called for an examination of all state laws.