Legal Defense Fund
LDF in action
About the Legal Defense Fund
The Society's Legal Defense Fund is a unique account that can be tapped for providing journalists with legal or direct financial assistance. Application to the fund is approved by either a small committee or the national board, depending on the level of assistance sought. The committee works throughout the year raising funds for LDF. Learn more about the fund, including how you can request an LDF grant, here.
January 2018: Central Dauphin School District v. Hawkins
SPJ joined this amicus brief in support of a reporter and TV station in a Pennsylvania public records case (under the Right to Know Law). The records at issue are surveillance videos shot on a school bus. The trial court ruled in favor of disclosure, but the School District has appealed. The amicus brief focuses on the School Districts argument that FERPA would sanction the school if it discloses the video. This is incorrect, the brief argues, because FERPA liability does not attach if the disclosure follows a court order, as it does here. It is important to clarify this point so FERPA will not be used to bar legitimate state public records requests. This brief provides helpful information to the Court about FERPA and interpretations of this statute.
Read the full brief here.
January 2018: Sander & The First Amendment Coalition v. State Bar of California et al
SPJ joined this amicus brief that concerns public records request by Richard Sander, an economist and law professor, and the First Amendment Coalition to the California State Bar for records concerning state bar applicants. The requests ask for race, law school, law school GPA, LSAT law school aptitude test score, bar passage and proposed methods for redacting the records to protect applicants privacy. This case was discussed in 2013 during a California Supreme Court decision. The court said the common law right of access to public records applies to the requested records. The court also sent the case back to determine how records could be produced without identifying applicants. During the second round, four protocols of making the records anonymous were presented, but the court denied them because the disclosure of the requested records requires the creation of a new record, which the State Bar is not required to do. This brief argues that the Superior Court made a mistake saying that making the records anonymous would create a new record. If affirmed, it would prevent disclosure of many government records that journalists rely on to report issues of significant public interest and concern. This brief also argues that the Superior Court gave insufficient weight to public interest in disclosure when balancing the public and private interests in nondisclosure.
Read the full brief here.
January 2018: National Conference of Black Mayors v. Chico Community Publishing
SPJ joined the amicus brief in National Conference of Black Mayors v. Chico Community Publishing, a reverse California Public Records Act case. This brief concerns the ability of the Sacramento News & Review to recover its attorneys' fees in a reverse-CPRA lawsuit. The News & Review made a CPRA request for emails from Sacramento Mayor Kevin Johnson and his staff. Johnson and the National Conference of Black Mayors (an organization headed by Johnson) filed this action to prevent the release of some of the emails, claiming they were exempt from disclosure because of attorney-client privilege. The brief argues that reverse-CPRA lawsuits are contrary to the CPRA and should not be permitted, because they have negative effects on the public's right to know. However, the brief also argues that if such suits are permitted, prevailing requesters must be awarded their attorneys' fees and costs to vindicate the public's right of access and against frivolous claims of exemptions.
Read the full brief here.
January 2018: United States v. Microsoft
SPJ joined this amicus brief in support of Microsoft in the Supreme Court case U.S. v. Microsoft, in which the government is seeking to obtain emails and other electronic communications that Microsoft stores in the cloud on servers in Ireland. There are a number of issues in this case that may affect journalists, including the fact that journalists are users of cloud-based platforms and government access to such information could undermine relationships with sources and compromise journalists independence. The amicus brief addresses these issues and provides helpful context to the court on the ramifications for news media.
Read the full brief here.
January 2018: Courthouse News Service v. Yamasaki
SPJ joined the original filing of this amicus brief at the preliminary phase last year, but the brief was filed again at a different stage. It reinforces that timely access to court records promotes and fosters timely news reporting, which benefits public knowledge and understanding of cases. Prompt access to newsworthy civil complaints is constitutionally required and it also serves the public interest. The brief also argues that the business model and for-profit status of Courthouse News Service is irrelevant to the First Amendment rights discussed in the case. Reporters seeking records with a goal of earning money for their reporting is irrelevant to whether the constitutional right of access applies.
Read the full brief here.
December 2017: Lozman v. City of Riviera Beach
Fane Lozman tried to speak during the public comment section of a City of Riviera Beach Council meeting, but the presiding council member ordered his arrest. Lozman is seeking damages because the City violated his First Amendment rights when it retaliated against him for having filed a lawsuit and having publicly criticized the government. The main question this case tries to answer is: Does the existence of probable cause defeat a First Amendment retaliatory-arrest claim as a matter of law? While this isn't a press case, the situation is like many cases where journalists are arrested for performing regular newsgathering functions. Lozman v. City of Riviera Beach is an important opportunity to share press concerns in this matter.
Read the complete petition here.
November 2017: Montgomery v. Risen
The United States Court of Appeals for the District of Columbia Circuit upheld the dismissal in the libel suit brought against New York Times reporter James Risen over his claims about reckless spending by the military. Dennis Montgomery, software designer and former medical technician, claimed to have created software that could decode terrorists' communications in broadcast signals, which Risen labeled a "hoax." The court found that the statements were either hyperbolic or were not shown to be false, particularly because the plaintiff could not produce the software or any evidence of its effectiveness.
October 2017: Virgin Islands Daily News $5,000 Legal Defense Fund request
The Virgin Islands Daily News asked for SPJs financial help with pursuing public records against the Government of the Virgin Islands in the U.S. Virgin Islands courts. The newspaper sought records relating to a government audit of a loan program by the local Economic Development Authority. The audit found that the Authority failed to engage in sufficient management and oversight of the $10 million loan portfolio resulting in an 84% delinquency rate for the loans. The Daily News requested a current list of the loans administered by the Authority, including the names of the borrowers and the amount, purpose and status of each of the loans. The Authority denied the request based on an opinion by the territorys attorney general Claude Walker who determined that the information sought amounted to trade secrets which would give unfair advantage to competitors and yield no benefit to the public. A positive ruling could have impact beyond the U.S. Virgin Islands, as many states have similar trade secret exceptions and quasi-governmental Authorities. The Virgin Islands Daily News was granted $5,000 from the Society of Professional Journalists Legal Defense Fund.
View all supporting documents here.
October 2017: SPJ urges Secretary of the Treasury Steven Mnuchin to repost 2012 tax study
The Society of Professional Journalists joined other media organizations in signing a letter to U.S. Secretary of the Treasury Steven Mnuchin asking him to repost the 2012 paper, Distributing the Corporate Income Tax: Revised U.S. Treasury Methodology, to the Treasury Department website immediately. The paper was removed because it was a dated staff analysis, according to a Treasury spokeswoman. The letter argues that if the Treasury wants to update or publish contrary analysis, it should do so without removing an older version, like they did in 2011 and 2016. The letter states: America is about to undergo a major and consequential debate over tax policy. The least the Treasury Department can do is make available to the public the analysis on tax policy that taxpayers have paid for.
Read the full letter here. [citizen.org]
October 2017: National Security Letter Statute - Reporters Committee for Freedom of the Press Amicus Brief
The Society of Professional Journalists joined the Reporters Committee for Freedom of the Press in a court brief regarding the National Security Letter statute, which grants the FBI power to demand customer records from communication service providers. The concern is that the NSL statute gives the FBI broad authority to gag recipients of NSL letters and bar them from disclosing any details of the NSL letters they receive. NSL recipients challenged the statutes constitutionality by stating it violates the First Amendment. Normally, courts must show solid evidence of necessity, but this panels decision required only some reasonable likelihood of harm. This brief focuses on challenging the legal standard that the court applied in upholding the gag order provisions of the NSL statute. The First Amendment demands a strict standard for prior restraints, which are presumptively unconstitutional.
Read the full brief here.
October 2017: Friedman v. Bloomberg
Dan Friedman, a former hedge fund employee, sued said hedge fund and Bloomberg for libel over statements the hedge fund made to Bloomberg after it was sued by Friedman for wrongful termination. The Society of Professional Journalists joined the amicus brief which supports Bloombergs petition for a rehearing of the case. In the petition, Bloomberg argues the allegedly defamatory statement is protected by New Yorks fair report privilege. The fair report privilege shields journalists from liability for news reports on judicial proceedings and other official or government records, hearings and proceedings provided that the report is fair and accurate. The main issue here is if the fair report privilege should apply to defendants statements that havent been officially filed with the court responding to the plaintiffs allegations. The fair report privilege is one of the most important privileges for reporting on official government actions, whether in the courts or otherwise.
Read the full brief here.
September 2017: Inauguration Protests Protective Order
In June, the government filed a motion for a protective order to stop the informational sharing of Inauguration Day protest videos, photos and other documents produced during the discovery process in criminal actions against certain protestors. The court also entered a protective order that prohibits the defendants and their counsel from using discovery material for anything other than the criminal case. In August, eight defendants filed a motion to reconsider. This brief argues in favor of reconsidering because the public has a strong interest in information about the Inauguration Day protests. The documents, including video, were gathered by authorities in connection with alleged crimes committed by protesters in a public space. As the brief argues, there are limited (if any) privacy rights at stake and strong public policy reasons for disclosure.
Read the full brief here.
September 2017: Gawker Bankruptcy
Gizmodo Media LLC, which acquired the assets of Gawker (except Gawker.com) requested the Society of Professional Journalists submit another legal brief in the Gawker bankruptcy proceedings. Ryan Goldberg, a journalist for Gizmodo who previously worked for Gawker, has been sued for libel in state court, along with Gizmodo, over an article that Gawker published well before the bankruptcy. Gizmodo and the reporter have asked for relief from the bankruptcy court judge and the amicus brief supports that request. The Society of Professional Journalists took a leading position in a legal brief in December in support of obtaining third party releases for Gawker journalists who would be losing their indemnification rights from the company after the bankruptcy.
Read the full brief here.
September 2017: Dan Heyman $5,000 Legal Defense Fund request
Journalist Dan Heyman was arrested in May in the West Virginia State Capitol building for trying to ask Tom Price, then U.S. Secretary of Health and Human Services, a question. Heyman and his employer, Public News Service, reached out to the Society of Professional Journalists for help. SPJ worked with PNS to line up First Amendment counsel on a pro bono basis, and advised that Heyman could apply to the SPJ Legal Defense Fund for support in paying his local criminal attorney. The charges have been dropped and the case is over. Tim DiPiero, Heymans local attorney, was granted $5,000 by the LDF to cover his fees. DiPiero waived the remainder of his fee, which totaled about $18,000. DiPiero, along with the law firm of Wilmer Hale which worked on a pro bono basis, was instrumental in securing a complete and unconditional dismissal of the charges.
View all supporting documents here.
September 2017: University Daily Kansan, University of Kansas, $2,000 Legal Defense Fund request
The University Daily Kansan, the University of Kansas student newspaper, requested sexual harassment records from the University of Kansas through the Kansas Open Records Act. The request asked for records sufficient to indicate the location, date and time of any occurrence of sexual harassment reported to [KU] between May 1, 2012 [and the present] including any such incidents that were reported by a student. In return, KU denied the request claiming it went overboard. The Daily Kansan is planning to press its case in court and seeks funds to pay for its legal counsel. The Daily Kansan was granted $2,000 by the Society of Professional Journalists Legal Defense Fund to support litigation by the newspaper to enforce its public records request under KORA.
View all supporting documents here.
September 2017: Kel McClanahan/Jeff Stein FOIA lawsuit with federal Washington, D.C., court
Kel McClanahan has filed a FOIA action in federal court in Washington, D.C., on behalf of journalist Jeff Stein regarding the processes for granting security clearances to Trump political appointees. The appeal is related to eight government agencies denying information on the processes. It is an effort to enforce open government, which cuts across political lines. This case has the potential to not only drive significant disclosure of information that should be of widespread interest to journalists and the public, but also to set favorable legal precedents. Stein and McClanahan were granted $5,000 from the Society of Professional Journalists Legal Defense Fund.
View all supporting documents here.
September 2017: The College Heights Herald, Western Kentucky University, $5,000 grant from Legal Defense Fund
The College Heights Herald, Western Kentucky Universitys student newspaper, requested public records concerning sexual misconduct by faculty and staff. Based on the Heralds requests, the Kentucky Attorney General ordered WKU to produce the documents in private to the AGs office for its review. To prevent this from happening, WKU sued the student newspaper. Essentially, the case addresses whether the federal Family Educational Rights and Privacy Act designed to protect student privacy of educational records prevents disclosure of records relating to faculty and staff members who resigned over sexual harassment allegations. As of Sept. 11, the Herald has more than $15,000 in legal fees and the Student Press Law Center had raised $6,764 in the legal defense fund. The Herald was granted $5,000 from the Society of Professional Journalists Legal Defense Fund.
View additional details here [wkuherald.com] and view all supporting documents here.
September 2017: WPTA-TV $5,000 grant from Legal Defense Fund
WPTA-TV in Fort Wayne, Indiana, is fighting a ruling by a judge who issued an order prohibiting the station from airing the audio recording of a sentencing hearing. The law requires the court to provide access to the audio tape, which the court has acknowledged, but it nonetheless has issued a prior restraint preventing broadcast of the tape on the air. The judge believes local court rules requires him to order the station not to broadcast records that were legally and legitimately obtained from the court file. This is effectively a prior restraint and sets a terrible (and potentially far-reaching) precedent that WPTA-TV is challenging on appeal. The Society of Professional Journalists Legal Defense Fund has made a grant of $5,000 in support of the appeal.
View all supporting documents here.
September 2017: Giuffre v. Maxwell
The underlying lawsuit which has been settled and dismissed is a defamation lawsuit brought by one of the alleged victims of sex trafficking by financier Jeffrey Epstein. This case was sealed, and all attempts to request and motion for the case to be unsealed by Alan Dershowitz and Michael Cernovich have been denied by the district court. The extremely broad sealing of this case undermines the First Amendment and common law rights of access. No countervailing or compelling interest overcomes the rights of access in this case.
Read the full brief here.
September 2017: Adelman brief
The First Amendment protects photos and videos because they are inherently expressive, regardless of whether a specific message is associated with a photo or video. This includes, but isn't limited to, photos and videos of EMS or police personnel. SPJ, the National Press Photographers Association and the Electronic Frontier Foundation have asked this Court to hold that the First Amendment protects the right to record on-duty EMS workers and other first responders, and to further hold that Sophia Cope was exercising her right.
Read the full brief here.
August 2017: PETA v. Stein
Animal welfare organizations are challenging the North Carolina ag gag statute, which prohibits employers from capturing or removing information, or recording images or sounds when on the employers premises for anything non-work-related. This brief argues that information and documentation provided by sources to the press is essential to investigative journalism.
Read the full brief here.
August 2017: Carpenter v. United States
This case concerns the governments ability to get long-term location-tracking information from service providers. The decision under review states the government isnt required to get a warrant before accessing cell-location information. The main question here is, is the warrantless seizure and search of phone records (revealing location and movements of cell phone users) over the course of 127 days permitted by the Fourth Amendment? Reporters Committee for Freedom of the Press states theres a historical link between the Fourth and First Amendments protection of the free press, gaining records without a warrant chills the exercise of the First Amendment (including newsgathering) and the Fourth Amendment protections should be applied when the government wants access to records. Ultimately, this threatens First Amendment rights.
Read the full brief here.
August 2017: The Koala v. Khosla, college press freedom case in 9th Circuit Court of Appeals
Student newspapers often face retaliation and censorship attempts, even though they serve integral roles on college campuses, and have been for centuries. Student newspapers provide training and allow students to serve as watchdogs for their campuses. The most common form of censorship in college media is threats to publications funding, which often supplements the publications advertising revenue. If the current court ruling is allowed to stand, it will give college officials the license to continue censoring student publications by cutting funding, and license widespread discrimination of the student press.
Read the full brief and motion.
July 2017: CNS v Planet brief
Access to court records are critically important as a newsgathering tool for journalists everywhere, and timely access to civil filings promotes and fosters timely news reporting. That's why SPJ is joining the Reporters Committee for Freedom of the Press in an amicus brief supporting Courthouse News Service in its lawsuit over gaining timely access to newly-filed civil complaints in the Orange County Superior Court. CNS' business model and for-profit status is irrelevant to the First Amendment values at stake and shouldn't be a part of the analysis.
Read the full brief here.
April 2017: Removal of Speech Online Hassell v. Bird
SPJ joins the Reporters Committee for Freedom of the Press and other organizations in support of Yelp, Inc. in Hassel v. Bird. Yelp is seeking the reversal of a California Court of Appeals decision that requires Yelp to remove third-party content posted on the site that is considered defamation. SPJ and other media organizations argue in this brief that forums and comment sections benefit the public by enhancing accuracy of reporting and relationships between readers and reporters. The brief also argues that requiring Yelp to remove speech is not the best remedy for defamation concerns and is also prohibited by Section 230, designed to protect public discussion.
Read the full brief here.
April 2017: Publicity Porco v. Lifetime
SPJ again supports the Lifetime network as it appeals a prior courts decision concerning newsworthiness. The brief asks the New York Court of Appeals to overturn the appellate courts decision concerning the dramatization of a murder case on Lifetime network. Originally, the case was dismissed under the newsworthiness exception to a privacy statute, allowing for use of a persons name or likeness without risk of liability. That dismissal was overturned on the grounds that the dramatization was substantially fictional and, therefore, not newsworthy. SPJ and other organizations argue in the brief that new forms of reporting and storytelling may not look like reporting, but should not be dismissed as false or fictional.
Read the full brief here.
April 2017: Access Courthouse News Service v. Yamasaki
SPJ joins the Reporters Committee for Freedom of the Press in support of the Courthouse News Service and its request for timely access to newly-filed civil complaints. The brief reinforces that timely access to court records promotes and fosters timely news reporting, which benefits public knowledge and understanding of cases. It also argues that the business model and for-profit status of CNS is irrelevant to the First Amendment rights discussed in the case.
Read the full brief here.
April 2017: Defamation Montgomery v. Risen
This brief appeals a prior decision made about statements in James Risens book, Pay Any Price: Greed, Power and Endless War. Dennis Montgomery filed a suit claiming certain statements against him are defamation. The brief argues that Montgomery qualifies as a limited purpose public figure due to his role in an important government military contract and the heightened importance of national security reporting to inform the public. In the brief, it also states that most of the statements claimed to be defamatory are pure opinion or hyperbole, which are protected under the First Amendment.
Read the full brief here.
April 2017: Public Access University of Arizona
The LDF Committee received a request for an additional $2,500 to assist journalists seeking disclosure of records and information concerning candidates to replace the President of the University of Arizona.
March 2017: Open Courts Weaver v. Massachusetts
SPJ joins the Reporters Committee for Freedom of the Press and other media organizations in defending the publics right of access in court proceedings. The case concerns the court being closed due to overcrowding and the publics right of access to jury selection. Opening jury selection to the public helps to ensure a fair trial and the integrity of the criminal justice system. Closing these proceedings due to courtroom capacity removes an aspect of transparency and accountability in the judicial system, and violates both the First and Sixth Amendments.
Read the full brief here.
March 2017: FOIA Abdur-Rashid and Hasmi v. NYPD
This brief supports a review of a prior courts decision and urges the court to reject the use of a Glomar response refusal to confirm or deny that requested records exist by the New York Police Department. The Reporters Committee for Freedom of the Press, SPJ and other organizations highlight the effect that permitting this use of the Glomar response under state law would have on New Yorks Freedom of Information Law, the overuse of the Glomar response federally and the importance of the FOIL to help news media keep the public informed about NYPD and government conduct.
Read the full brief here.
March 2017: Prior Restraint Isaac Avilucea
The committee supported Trentonian reporter Isaac Avilucea with $5,000 toward his legal fees as he fought a New Jersey judges standing emergency order forbidding him and his paper from publishing a child custody report he received from the childs mother. Avilucea is defending himself, separately from the paper. Restraining orders usually are quickly withdrawn because of the presumptively unconstitutional nature of prior restraints. But the judge in this case entered the order in October 2016 and, even after two hearings, did not reverse or withdraw it. This extended time frame, with multiple hearings, including an evidentiary hearing, is unusual. Also, because the State has claimed that Avilucea unlawfully obtained the child custody report, he may be subject to criminal penalties, which arguably could necessitate separate counsel from the paper which employs him.
Read a press release here and a blog from the SPJ New Jersey chapter here.
March 2017: Public Records Arizona Daily Star & Arizona Daily Wildcat vs. University of Arizona
The committee voted to support two newspapers in a public records dispute with the University of Arizona over its failure to publicly disclose the candidates under consideration to become the schools next president. Reporters for the Arizona Daily Star (a Tucson paper owned jointly by Lee Enterprises and Gannett) and the Arizona Daily Wildcat (the student newspaper for UA) filed public records requests for the candidates names. UA said no to both despite a 1991 Supreme Court of Arizona ruling that required Arizona State to disclose the names of the presidential candidates under consideration at that time. The committee granted up to $2,500 to support an attorneys preparation of a letter to the Universitys General Counsel and, if necessary, to draft and file a lawsuit over this common issue of a good public information law on the books not being followed by those supposed to carry it out.
March 2017: Right to Record Police Higginbotham v. City of New York
This case argues on behalf of the constitutional right of the press to record police activity in public. SPJ joins the National Press Photographers Association and other media organizations supporting Doug Higginbotham, a photojournalist, who was arrested while shooting video of a 2011 Occupy demonstration from on top of a phone booth. His charges for disorderly conduct were dismissed, but the brief for Higginbothams case against the arresting officers asks the court to expressly recognize the First Amendment right to record police activity in public.
Read the full brief here.
February 2017: Reminder of Paperwork Reduction Act to Office of Management and Budget
SPJ joined a letter sent to the Office of Management and Budget (OMB) reminding the office about the Paperwork Reduction Act, which requires federal agencies to notify the public before removing information online. The letter was sent after reports surfaced that information was being removed from federal agency websites. The letter reiterated the law and why the information is important to the public.
Read the letter here.
January 2017: Letter to New Hampshire House Executive Department and Administrative Committee regarding drone legislation
SPJ joined a letter sent to New Hampshire lawmakers in regards to HB97 which went over the use of drones. The letter expressed concerns about the bill posing a risk to innovative use of drones to gather and disseminate information.
December 2016: Indemnification Rights Gawker bankruptcy case
The SPJ LDF Committee took the lead in an amicus affecting the rights of individual journalists losing legal protection as Gawker sought bankruptcy. As is standard at most media companies, Gawkers employment contracts included indemnification clauses requiring Gawker to provide a legal defense to its journalists if they got sued while doing their jobs. Under Gawkers proposed Chapter 11 Liquidation Plan, these former employees would lose their indemnification rights; they would have to bear the cost of their own legal defense. The amicus brief argued that if reporters and editors cant rely on the durability of their indemnification agreements, theyll be chilled by the potential for crippling personal liability and therefore less likely to engage in the ground-breaking journalism the First Amendment endorses. The brief also held that its inequitable for Gawker to enjoy the protections of bankruptcy laws as a company while leaving individual journalists exposed.
Read the full brief here and SPJs press release here.
December 2016: Republication Liability Eramo v. Rolling Stone
SPJ joins the Reporters Committee for Freedom of the Press and other organizations in regard to the Rolling Stone defamation case. The brief argues that the editors note appended to the story A Rape on Campus is not a republication of the original information that was later shown inaccurate. In defamation cases, determining that the article was republished would increase the liability of the company due to an actual malice standard. It was determined the company had not acted with actual malice in the original publication of the article.
Editors notes have long served the public good by clarifying when new information comes to light. If the tradition of editors notes were to increase liability for publishers, it could discourage publishers from clarifying or correcting information in the future.
Read the full brief here.
December 2016: First Amendment Retaliation / Citizen Journalists Buehler v. City of Austin
SPJ joins the National Press Photographers Association and other media organizations in the support of Antonio Buehler. Buehler was arrested in 2012 for recording the activities of police officers conducting a DUI stop and the charges were later acquitted. In 2014, he sued the Austin Police Department for false arrest, which was dismissed by the Fifth Circuit court. SPJ and other organizations are supporting his petition to the Supreme Court to review that decision, urging it to consider whether his arrest was a retaliation against his recording, an activity protected by the First Amendment.
Read the full brief here.
December 2016: FOIA Detroit Free Press v. U.S. Marshalls Service
SPJ signed onto an amicus brief from the Reporters Committee for Freedom of the Press to support the Detroit Free Press after it filed a FOIA request for mugshots of people indicted on federal criminal charges. The U.S. Marshals Service withheld the photos under exemption 7(c) of FOIA. SPJ originally joined an amicus brief filed by the Reporters Committee when the case reached the U.S. Court of Appeals for the Sixth Circuit, arguing that the mugshots should be released. The Appeals Court disagreed with this position. The Free Press appealed to the U.S. Supreme Court, and were joining the Reporters Committee in this new amicus. The brief argues the people who have been indicted have no privacy interest in their booking photos to trigger a FOIA exemption, and that public access to mugshots serves the public interest in letting journalists report on law enforcement.
Read the full brief here.
November 2016: Public Records Kenneth Jakes v. Sumner County Board of Education
The LDF Committee has approved a request from the Tennessee Coalition for Open Government for $4,000, which will help offset legal fees in an important public records case. The Coalition is submitting an amicus brief in the case of Kenneth Jakes v. Sumner County Board of Education. The case involves a public records request that a Tennessee resident submitted via email to his local board of education. The board denied the request under the theory that public records requests may be made only in person or via a written request mailed through the U.S. Postal Service. The resident sued, arguing that the relevant question is whether the board actually received the request, not what form the request took. The trial court ruled in favor of the resident and found that the school board violated the Tennessee Public Records Act. But the school board, with the support of state government agencies, is now appealing that ruling, and it is litigating the appeal aggressively.
The case is seen by many in Tennessee as an important test case that will create a precedent beyond its narrow facts. If the school board ultimately prevails on appeal, it will open the door for agencies to implement all sorts of other policies, beyond the bounds of the Public Records Act that impede or delay access to public records.
Read the brief here.
November 2016: Right to Record Police Fields v. City of Philadelphia
This brief involves a Philadelphia case attempting to stop private citizens from photographing and recording police on the grounds that unless they are criticizing the police, it is not protected under the First Amendment. Precedent set by the U.S. Department of Justice and the Supreme Court shows that in public places, under reasonable restrictions, the First Amendment protects the right to record or photograph the police regardless of purpose.
Eyewitness news provided by private citizens is an important source of news to journalists, and not allowing citizens to do gather photo and video removes an important source of information to the public, the brief argues. The ability to support or contradict official reports of events through eyewitness photo and video often plays an important role in monitoring the function of the government and therefore is of significant importance to the general public.
Read the full brief here.
September 2016: Public Records Scheeler v. Atlantic County Municipal Join Insurance Fund
The committee joined the Reporters Committee for Freedom of the Press to support the rights of all people, be they citizens or residents of New Jersey or not, to access information under the New Jersey Open Public Records Act. In this case, the state argued that despite the language in the statute authorizing any person to make records requests, the law should apply only to New Jersey citizens. The amicus brief we joined argued that this interpretation would harm the medias ability to report. Many New Jersey citizens get their news from press outlets based in New York and Pennsylvania and the brief points to specific stories that have been done using the N.J. Open Public Records Act by out-of-state entities like USA Today, ProPublica, Politico, the Washington Post, and the Wall Street Journal.
Read the full brief here.
September 2016: FOIA Schwartz v. Drug Enforcement Agency
SPJs Legal Defense Fund committee joined the Reporters Committee for Freedom of the Press to support a FOIA lawsuit filed by reporter Matthias Schwartz. Schwartzs suit challenged the DEAs refusal to release video of a raid led by the DEA in Honduras in May 2012 that involved deadly force against civilians.
September 2016: Access Porco v. Lifetime
The committee weighed in on New Yorks so-called right of publicity statute. A prisoner sued the Lifetime television network over a dramatized account of the murder of his father and bludgeoning of his mother crimes for which he was convicted. The amicus brief makes clear that right of publicity claims cannot be used to stifle reporting of newsworthy events or matters of public interest, including docudrama, which we held is covered under the First Amendment.
Read the full brief here.
August 2016: SPJ joins letter expressing concerns with proposed Deaths in Custody Reporting Act
SPJ joined 66 other groups in signing a letter to express concerns with the proposed implementation of the Deaths In Custody Reporting Act (DICRA), stating it departs from DICRA provisions that require states receiving federal funding to report deaths in custody to the federal government. The provisions indicate that the Bureau of Justice Statistics will rely upon publicly available information (open-source review) for its Arrest-Related Deaths (ARD) program, but relying on media accounts and statistics is an inadequate method of collecting data to determine the circumstances under which people die while in law enforcement custody; it does not indicate how federal law enforcement agencies will comply with DICRA, although the law is clear in its application to federal law enforcement including immigration officials; and does not indicate what the penalties will be for non-compliance. The letter also reiterates the request that the Office of Justice Programs (OJP) condition federal criminal justice grants on data collection and reporting on police-civilian encounters.
Read the full letter here, and a blog post by SPJ President-elect Lynn Walsh here.
August 2016: SPJ supports Microsoft in government surveillance case Microsoft v. U.S. Department of Justice
SPJ joined the Reporters Committee for Freedom of the Press in signing a brief in the case, Microsoft v. U.S. Department of Justice, which affects the ability of the media to report on government surveillance of private digital information stored in the cloud. Under the Electronic Communications Privacy Act, the government can obtain a court order requiring digital service providers (like Microsoft) to turn over electronically stored information about a customer, such as the customers emails, cell phone records, or web history. One section of the act, 18 U.S.C. § 2705(b), also allows the government to obtain a gag order preventing the service provider from telling the customer (or anyone else) that the government is monitoring the information.
These gag orders operate as a prior restraint on speech and stymie the ability of journalists to learn about (and report on) government surveillance. Microsoft is challenging the gag orders in federal court. The brief supports Microsoft and provides the perspective of the media. It argues that these gag orders interfere with the medias right to receive information on an important issue from a willing speaker. It also argues that the orders undermine the well-established right of access to warrant materials.
Read the full brief here.
August 24, 2016: Access to Police Records Grabell v. NYPD
The Committee joined the Reporters Committee for Freedom of the Press in a case involving application of the New York Freedom of Information law. A ProPublica reporter sought documents relating to the use of NYPD surveillance vehicles known as Z-backscatter x-ray vans. We signed onto an amicus brief last year when the case was before an intermediate appellate court; that court ruled that most of the records did not have to be released. We support the reporters effort to get an appeal to New Yorks highest court, joining the Reporters Committees amicus brief. We all are arguing (1) that much of the information concerning the Z-backscatter is already publicly available, in contradiction of a key NYPD affidavit, and (2) the importance to the press and the public of access to law enforcement records.
August 17, 2016: Reporters Privilege/ Shield Law
The Committee joined the Reporters Committee for Freedom of the Press in a case involving a New York Times reporter whom a judge tried to compel to disclose nonconfidential but unpublished information obtained during the newsgathering process. We support reporter Frenchie Robles bid to overturn the New York Supreme Courts decision that would require her to turn over her unpublished notes and to testify about a jailhouse interview with a murder defendant. Robles is challenging the Supreme Courts interpretation of the New York Shield Law, which she and we claim protects reporters from being forced to testify against their sources.
July 28, 2016: Reporters Privilege
We joined RCFP again in an amicus brief related to the military court martial of Bowe Bergdahl, the U.S. soldier who was held captive in Afghanistan. Journalist and filmmaker Mark Boal interviewed Bergdahl after his release, and portions of those interviews were played on season two of the Serial podcast. The military is now planning to subpoena Boal for his notes and recordings as part of its court martial proceedings. Boal is fighting the subpoena, and the amicus brief supports his efforts to invoke the reporters privilege. The brief argues that Boal deserves the protection of the privilege whether he is working in documentary film or in traditional journalism. It also argues that Boal should be allowed to seek protection from a federal district court (=rather than having to proceed through the military justice system.
July 28, 2016: NYPD Bodycam Policy
The Committee joined RCFP in submitting comments on the New York Police Departments draft policy on its bodycam videos. The proposal acknowledged that the videos are subject to New Yorks Freedom of Information Law (FOIL) but we found areas in which the policy could be strengthened. One example: we want the policy to clarify that if only a portion of a video is exempt from FOIL, the rest of the video should be redacted and released. Our comments emphasized the importance of proactive disclosures of footage showing serious use of force by police.
July 13, 2016: FOIA State Department Emails
We signed onto a letter from the Associated Press and Reporters Committee asking a federal judge to reconsider his decision in a FOIA lawsuit against the U.S. State Department. The advocacy group Judicial Watch Inc. sought State Department records related to Huma Abedin, the adviser to Hillary Clinton. The case was dismissed in 2014 but reopened in 2015 after reports surfaced of Clintons use of a private email account to conduct governmental business while Secretary of State. Judicial Watch has taken depositions of various State Department officials regarding the agencys handling of FOIA requests that potentially implicated Clintons and Abedins emails. The presiding judge issued an order preventing the videos of the depositions from being released to the public. Our letter explains the enormous public interest in the depositions and argues that audiovisual copies of depositions should be unsealed and available for public inspection when those depositions relate to high-ranking officials duties on a matter of public concern.
July 5, 2016: Global Injunction
This highly unusual, potentially precedent-setting non-media case caught our interest because the concept of global injunction could be used against the media, not just Google as in this case. We joined the Reporters Committee in a motion to intervene in s case in which a Canadian court ordered Google to de-list some web sites worldwide. Equustek Solutions Inc. v. Morgan Jack involves the theft of trade secrets in the networking device market. As part of the proceedings, a British Columbia court issued an injunction requiring Google to de-list from its search database any of the websites that were used by the defendants to sell their products. The court found that an injunction applying only to Canada would not sufficiently protect the plaintiff, Equustek, so the court made the scope of the injunction global. The case is now pending before the Canada Supreme Court. We argued that a court should not be allowed to impose a single nations standards on Internet-published speech around the globe.
June 27, 2016: Gag Law
We joined the Reporters Committee in a constitutional challenge to Idahos ag gag law, which criminalizes audio and video recording at agricultural facilities. This overbroad law can be read to cover any type of growing or planting operation, even on public property. The Animal Legal Defense Fund, which seeks to expose abuses in agricultural operations, brought a lawsuit arguing that the statute is unconstitutional under the First Amendment because it is a content-based restriction on speech. A federal trial court ruled in favor of the ALDF, and the case is now on appeal before the U.S. Court of Appeals for the Ninth Circuit. Our brief urges the appellate court to uphold the lower courts finding that the statute violates the First Amendment, as the law interferes with not only activists like the ALDF, but also with investigative journalism and newsgathering.
June 9, 2016: National Security Letters
We signed onto an amicus from from the Reporters Committee in Freedom of the Press Foundation v. U.S. Department of Justice. The nonprofit Foundation made a FOIA request seeking information about the governments use of administrative subpoenas known as national security letters and exigent letters. The FBI has used these types of letters to get telephone records of journalists for instance, in the course of leak investigations. The foundation wanted to see the policies and procedures governing how the FBI uses such letters to obtain journalists communications. The government has argued that these policies and procedures may be withheld under four different FOIA exemptions. The case is pending in the U.S. District Court for the Northern District of California. The amicus brief provides background on the recent amendments to DOJs News Media Guidelines, which constrain the FBIs ability to target journalists using formal subpoenas and search warrants. The brief also emphasizes that, because national security letters lack safeguards that typically protect First Amendment rights, transparency about how the FBI uses this form of legal process is essential.
May 30, 2016: Anti-SLAPP
SPJ joined dozens of news organizations in an amicus brief in Tobinick v Novella, a federal defamation suit between two doctors after one posted articles to a medical blog disputing the others claims about treatments for Alzheimers disease. The judge dismissed most of the suit under Californias SLAPP Act, applying state Anti-Slapp statues to a federal case. We urged the U.S. Court of Appeals now hearing the case to uphold that decision saying the Anti-SLAPP Act should apply to safeguard against lawsuits challenging protected speech.
May 30, 2016: Public Records
We also joined an amicus in Friedman v. Rice, a public records case under the New York Freedom of Information Law. An intermediate appellate court concluded that non-testifying witness statements given to law enforcement are categorically exempt from disclosure under the laws exemption for confidential sources. The case is now on appeal to the New York Court of Appeals. The amicus brief highlights the medias interest in this issue and argues that the lower courts interpretation of the confidential source exemption is inconsistent with U.S. Supreme Court precedent and the decisions in other New York cases.
May 7, 2016: Libel / Actual Malice - Kelley v. Wren
We filed a brief to the South Carolina Supreme Court in a libel suit against The Sun News, a newspaper that published a series of reports about suspicious campaign contributions funneled through limited-liability companies. In one article, the journalist reported on a meeting in which a lobbyist delivered $84,000 in campaign contributions to a candidate for governor. The lobbyist sued, arguing that the sentence implied he had personally made the contributions, which would have been illegal. The journalist testified he merely intended that the lobbyist was present at the meeting. Other articles in the series made clear that the lobbyist did not physically hand over the contributions and did not break the law. Nonetheless, the jury found in favor of the lobbyist, and a state appellate court recently affirmed the verdict. Our brief to the Supreme Court argues that the lower court disregarded the well-established law that requires a public-figure plaintiff to show clear and convincing evidence that the defendant subjectively harbored serious doubts about what he was publishing. We hold that if the lower court ruling is allowed to stand, it will create confusion in South Carolina defamation law and chill journalism.
May 2, 2016: Public Records / License Plate Scanners
We joined 12 other media organizations in an amicus brief in a California case, American Civil Liberties Union of Southern California v. Superior Court. A state appeals court ruled that data collected by Automated License Plate Reader (ALPR) systems which police use to automatically scan license plates of all nearby cars, then cross-reference to the plates of stolen cars, should not be disclosed under the California Public Records Act. The court cited an exemption for law enforcement investigatory records. We argued in a brief to the California Supreme Court that ALPR records do not qualify as investigatory because they are not gathered for use in connection with any specific criminal investigation. Our brief holds that journalists rely on public records requests to report on law enforcement agencies, and any ruling that expands the exemption for investigatory records would hamper press access to public information.
April 25, 2016: Public Records
In our biggest award this year, the Societys full board agreed with the LDF to award $10,000 to support The Lens, a nonprofit publication fighting the city of New Orleans over access to a database tracking public purchases. Despite Louisianas public records law that mandates government agencies provide access to public documents within three days if those documents are currently in use, the city has waited until public records requesters filed suit to produce requested documents on the eve of the court hearing, knowing most citizens and newspapers cant sue every time they request public records. The Lens sued the city to deter this strategy. In March, a judge ordered the city to produce the full database and rejected the citys contention that producing it might release private information but the city is appealing the judges ruling on the database. The declaratory judgment condemning the citys practice of unresponsiveness is pending before a trial court.
February 29, 2016: Right of Publicity - Maloney v. T3Media
The committee joined the Reporters Committee in a lawsuit brought by college basketball players against a company that operated an online photo library containing thousands of photos of NCAA athletes and sporting events. The company allowed members of the public to purchase non-exclusive licenses of the photos. By purchasing these licenses, members of the public could download copies of the photos for their personal use.
College athletes who appeared in the photos sued in California, arguing that the display and licensing of the photos violated their right of publicity, which allows individuals to control the commercial use of their name and likeness. The trial court dismissed the case, but did not address any First Amendment issues. It is now on appeal before the U.S. Court of Appeals for the Ninth Circuit.
The amicus brief argued that Californias publicity statute is a content-based restriction on speech and must be interpreted narrowly so that it does not interfere with expressive conduct or the medias ability to report the news. In essence, if courts allow individuals to exercise unbridled control over the use of their images, the right of publicity will be transformed into a right of censorship.
January 27, 2016: Public Records - Gilleran v. Township of Bloomfield
The committee signed onto a Reporters Committee amicus brief involving a request under the New Jersey Open Public Records Act for access to surveillance footage from a pole-mounted, stationary camera.
The town government argued the video footage should be subject to a blanket exemption from the open records act because it captured comings-and-going at the town hall, where there is also a police station. These arguments could implicate public access to police recordings including dash cams and body cams. The trial court and an appellate court both rejected the towns arguments and found that the footage had to be released. This brief urged the New Jersey Supreme Court to affirm that ruling.
January 26, 2016: Sunshine Law State of Florida
The committee and SPJ as a whole signed onto a Reporters Committee letter to the Florida legislature objecting to two bills that would alter Floridas Sunshine Law. The bills would no longer make mandatory the reimbursement of attorneys fees when a public-records requester is successful in litigation against a government agency.
House Bill 1021 and Senate Bill 1220 would convert the current mandatory fee-shifting provision in Florida's Sunshine Law into a permissive fee-shifting provision.
December 24, 2015 Actual Malice - Angel v. Winograd
The committee voted to join a Reporters Committee for Freedom of the Press amicus brief to fight back against a court ruling that would severely constrain the ability of the press to effectively expose government deception and would be inconsistent with the long-held standard for actual malice established in 1964 by New York Times Co. v. Sullivan.
Tawni Angel, the owner of a business that used to operate a petting zoo and pony rides in Santa Monica, California, sued Marcy Winograd, a local animal-rights activist who had led protests against Angels business. Winograd filed an anti-SLAPP (Strategic Lawsuits Against Public Participation) motion asking the trial court to dismiss the case, but the court allowed it to proceed. The judge said there was evidence Winograd spoke with actual malice when she criticized Angels business.
The brief contended that the trial court misapplied the actual malice standard, which requires a public-figure plaintiff suing for defamation to show that the defendant knowingly made false statements or recklessly disregarded the truth.
The trial court concluded that Winograd spoke with actual malice merely because her statements contradicted the findings of local animal-control officers. That failed to take into account Winograds good-faith, subjective belief based on her own personal observations that the animal-control officers were wrong. This interpretation of actual malice would hamper the practice of journalists, subjecting who expresses disagreement with a government officials findings to a possible defamation lawsuit.
The ruling is currently on appeal to the California Court of Appeal, and the amicus brief reiterates the proper actual malice test.
December 17, 2015: Actual Malice: Angel v. Winograd
We joined the Reporters Committee in an amicus speaking out in a defamation lawsuit in California. Tawni Angel, the owner of a business that used to operate a petting zoo and pony rides in Santa Monica sued Marcy Winograd, a local animal-rights activist who led protests against Angels business. Winograd filed an anti-SLAPP motion, asking the trial court to dismiss the case, but the court allowed it to proceed, ruling that there was sufficient evidence that Winograd spoke with actual malice when she criticized Angels business.
We held that the trial court misapplied the actual malice standard, which says public-figure plaintiffs suing for defamation must show that the defendant knowingly made false statements or recklessly disregarded the truth. Here, the trial court concluded that Winograd spoke with actual malice merely because her statements were inconsistent with the findings of local animal-control officers. That ruling failed to take into account Winograds good-faith, subjective belief based on her own personal observations that the animal-control officers were wrong.
The ruling is currently on appeal to the California Court of Appeal, and the amicus brief explains that the interpretation of actual malice adopted by the trial court would hamper the practice of journalism, because under the trial courts reasoning, anyone who expresses disagreement with a government officials findings could be subject to a defamation lawsuit. This could severely constrain the ability of the press to effectively expose deception in the government and preserve the even greater values of freedom of expression and the right of the people to know.
November 10, 2015: Restrictive press credentials: Open letter to Entertainers
The committee joined various media groups, including the Newspaper Association of America and the National Press Photographers Association in signing an open letter to entertainers after some onerous credentialing requirements imposed on journalists covering their shows.
Janet Jackson recently set a list of conditions for journalists covering her current world tour, including the right to pre-approve all photos before they are published, a demand that she be the legal co-owner of any photos taken, along with restricting photos to 30 seconds during the first and second songs only. Other celebrities and sports teams also have imposed similar restrictions, which fly in the face of the important principle that photojournalists are the sole owners of their own intellectual property. The issue is particularly important for freelancers, who may often feel that they have no choice but to sign these credentialing agreements. The open letter calls for an end to these practices.
November 10, 2015: FOIA: Hamdan v. Department of Justice
The committee joined the Reporters Committee for Freedom of the Press in the case of a U.S. citizen and resident of Lebanon who made a FOIA request after being detained and tortured by the United Arab Emirates. Naji Jawdat Hamdan requested documents from the FBI related to any U.S. role in his detention. A federal court in California granted summary judgment to the government, and an Appeals panel affirmed the ruling. The ACLU, representing Hamdan, is seeking a rehearing by the full Court of Appeals.
The amicus brief says the court rubber-stamped the FBIs claim that the records are classified and exempt from FOIA based on national security concerns. We hold that courts are supposed to closely scrutinize agencies classification claims to avoid over-classification. The brief aims to avoid setting a bad precedent.
October 13, 2015: Public Records: Request for support from ProPublica
The LDF Committee joined The Reporters Committee for Freedom of the Press in supporting the case of ProPublica journalist Michael Grabell. He requested public records from the New York City Police Department about its purchase of a controversial police vehicle known as the Z-backscatter van. The van is an unmarked vehicle that uses an x-ray device to detect drugs or bomb-making equipment inside buildings or other vehicles. It emits high levels of radiation and also raises privacy concerns. The NYPD denied Grabells entire request, saying any disclosure would jeopardize criminal investigations. In December 2014, a New York trial court rejected the NYPDs argument and ordered the department to produce records about the van. The department is now appealing that order.
The committee is urging the appellate court to affirm the trial courts decision. We hold that much reporting already is widely available about the backscatter vans, undermining the NYPDs argument that absolute secrecy is necessary. Equally important, the New York Freedom of Information Law supports press reporting on issues of public concern such as this case, in which the backscatter x-ray technology could pose serious health risks to the public.
September 29, 2015: Public Records: North Jersey Media Group v. Township of Lyndhurst
The committee unanimously approved joining an amicus brief with the Reporters Committee for Freedom of the Press, the American Civil Liberties Union of New Jersey and the New Jersey Press Association in the public records case North Jersey Media Group v. Township of Lyndhurst.
The New Jersey Supreme Court is hearing a lower court appeal that allowed police to withhold records relating to the fatal shooting by an officer of 23-year-old Kashad Ashford in September 2014. The LDF held that access to law enforcement records is paramount and that a government agencys press release is not acceptable as a substitute for records.
The high court will rule on the scope of the criminal investigatory records exception and the ongoing investigations exemption of New Jerseys OPRA. The LDF holds that the press or public must have the opportunity to examine the underlying government records in order to fulfill the state laws mandate for transparency in government.
In this case, the States press release and written reports by law enforcement officials presented inconsistent accounts of what led to this fatal shooting. Without access to the records, its impossible to resolve these inconsistencies to determine if the police had a reasonable belief of imminent danger and acted appropriately.
September 12, 2015: Gag Order: State of Texas ex rel. Abelino Reyna
The committee unanimously approved joining an amicus brief with the Reporters Committee for Freedom of the Press in the case of State of Texas ex rel. Abelino Reyna,
The state of Texas filed criminal charges against Matthew Clendennen,
one of the many motorcyclists arrested in May after a deadly shootout between rival biker gangs in Waco. The judge handling Clendennens trial issued a broad gag order that barred anyone involved in his criminal case from discussing it with the media. The order is so broad it even prevents witnesses or law enforcement officials from making statements to the media that are already part of the public record. The judge claimed he was trying to prevent pre-trial publicity.
Clendennen challenged the gag order. LDF agrees with the Reporters Committee that gag orders cause harm by restricting the flow of accurate, newsworthy information about matters of immense public interest. We also hold that the Texas constitution requires gag orders in criminal trials to be examined under a rigorous legal standard unmet in this case. The Texas Court of Criminal Appeals is now deciding whether to vacate the order or leave it intact. The decision will likely establish the legal standard that will apply to all gag orders in criminal cases under Texas law.
August 27, 2015: North Jersey Media Group v Township of Lyndhurst
The committee joined an amicus brief (with the Reporters Committee, the ACLU of New Jersey, and the New Jersey Press Association) that is to be filed in the New Jersey Supreme Court in North Jersey Media Group v. Township of Lyndhurst, a public records case. The case is on appeal from a lower court ruling allowing the government to withhold the records.
August 27, 2015: Letter regarding right to be forgotten
The committee signed on to a letter written by the Reporter Committee to CNIL, the French administrative agency that regulates data privacy. CNIL issued an order in May requiring Google to enforce the EUs newly recognized right to be forgotten across all Google domain names (not just its European domains such as google.fr and google.uk). Under the order, if a French citizen asks Google to remove a search result pursuant to the right to be forgotten, Google will have to delist that result from all versions of its search engine around the globe. Although the right to be forgotten and the EUs delisting requirements do not apply directly to news organizations, journalists have cause to be concerned about the extraterritorial application of laws and privacy regulations that inhibit the free flow of information. If France prevails here, other nations could follow suit and attempt to impose globally their own domestic restraints on internet speech, all in the name of protecting their own citizens.
August 17, 2015: Ferguson Letter from Media
The committee also signed on to a letter written by the Reporters Committee to the prosecutor in Ferguson, Missouri to object to the recent decision to pursue criminal charges against several journalists who were arrested during the Ferguson protests last summer. The journalists were detained during the protests merely for videotaping the police or otherwise doing their jobs, and prosecutors have decided to press charges a year later. The letter emphasizes the important First Amendment issues at stake and reminds the prosecutors office that reporters have a right to record the police. It urges the prosecutors office to drop the charges against the journalists.
August 17, 2015: Competitive Enterprise Institute v. Office of Science and Technology Policy
The committee joined an amicus request from the Reporters Committee for Freedom of the Press on behalf of numerous media organizations. The case involves a FOIA request to the OSTP, an executive branch agency that advises the president on science issues. It turns out that the requested records were stored in the personal e-mail account of the OSTPs director. The OSTP refused to turn over the records, and the trial court upheld that refusal. The court found that an agencys refusal to release e-mails from a personal e-mail account did not meet the definition of a withholding in violation of FOIA. That ruling poses obvious dangers to the right of access under FOIA, and the case is on appeal to the U.S. Court of Appeals for the D.C. Circuit.
August 10, 2015: Journalist Request vs. Local Police Department
The committee denied an emergency request for $10,000 for a court hearing scheduled the next day. The request came from a New Jersey journalist who claimed he is being harassed by a local police department. Charlie Kratovil claimed he was arrested on another charge in retaliation for his critical reporting as editor of online newspaper New Brunswick (NJ) Today. The committee voted to deny his emergency request for a court date about which he knew months ahead, as it made any evaluation of the underlying facts difficult, but we encouraged him to resubmit his request after the case was resolved for potential reimbursement of actual court costs and legal fees.
July 21, 2015: NYPD Freedom of Information Glomar challenge
The committee joined an amicus request from the Reporters Committee supporting a New York City imam who filed a request under New Yorks Freedom of Information Law for all NYPD records pertaining to surveillance of his mosque. The NYPD would not supply any records, invoking a legal doctrine from the federal FOIA known as the Glomar doctrine. This doctrine originally allowed federal agencies to refuse to confirm or deny the existence of records involving covert military operations in order to protect national security. Federal agencies increasingly have been using the doctrine to refuse to respond to many other, non-military types of FOIA requests. However, this is the first Glomar-type response at the state level. If the courts uphold the NYPDs Glomar denial, it would weaken New Yorks freedom-of-information law and could set a precedent for other states to begin allowing their own agencies to refuse to confirm or deny the existence of government records. The amicus brief to New York appeals court challenges a trial court finding that the NYPDs response was proper.
March 18, 2015: NFOIC Partnership
The committee commented per President Dana Neuts' request on a proposed partnership between SPJ and the National Freedom of Information Coalition in litigating for access to public records. As authored by former president Dave Cuillier, "Both organizations will seek out worthy cases and, when agreed upon, team up to provide court fees through NFOIC and attorney fees through SPJ, as well as joint publicity to highlight the need for government transparency and set strong case law nationally... Together, NFOIC and SPJ can be more effective by combining efforts to support important access cases through cooperation and coordination."
February 19, 2015: Krakauer v. State of Montana
The committee joined the Student Press Law Center in an amicus brief over an open records case before the Montana Supreme Court. The case involves access to campus disciplinary appeal records in a sex assault case involving a University of Montana football player in 2012. Author Jon Krakauer, working on a book about sexual assaults at universities, was looking for records from the hearing that found the player "responsible." The university chancellor overturned the disciplinary decision. Krakauer won at trial a limited application of the Family Education Rights and Privacy Act but he U.S. Department of Education filed a brief supporting the university that student disciplinary files are always protected from disclosure by FERPA. In this amicus, SPJ, SPLC and the Reporters Committee for Freedom of the Press argue for the lower courts limited interpretation of FERPA.
February 3, 2015: U.S. v. Blankenship
The committee voted to join the Reporters Committee for Freedom of the press in an amicus brief supporting the Associated Press, NPR, the Wall Street Journal, the Charleston Gazette and Friends of West Virginia Public Broadcasting. The news organizations intervened to challenge the sealing of information in a West Virginia criminal trial after a deadly mine disaster in 2010 . Ex-Massey Energy CEO Don Blankenship was charged with conspiracy to violate federal mine safety and health standards at the Upper Big Branch mine. The district court sealed records and issued a gag order. The news organizations appealed to the U.S. Court of Appeals for the Fourth Circuit. A federal judge is delaying Blankenships trial until April 20.
January 16, 2015: North Wind newspaper at Northern Michigan University
The LDF committee stood at the ready to help a collegiate newspaper (referred by Frank LoMonte of the Student Press Law Center) held hostage by a FOIA request, asked to front $150 of a bill for what should have been free public documents from their university. The editor and adviser (Cheryl Reed) at the North Wind newspaper at Northern Michigan University had requested emails of six university administrators. NMU administrators sent a bill of $613 to the campus newspaper even though the request is covered under the state Freedom of Information Act. The students pared their request but still faced a $300 tab. The university's student media board denied funding because "they're not convinced the reporters are pursuing a meritorious story." Coincidentally, one of the members of that board who voted down the expense is also one of the administrators whose emails were FOIA'd. SPJ was ready to write the check when the school's president backed down, waived all fees and released the requested documents at no charge.
October 15, 2014: National Council of Teachers Quality Inc. v. Curators of the University of Missouri
The LDF Committee joined the SPLC in an amicus request before the Missouri Supreme Court to appeal a decision by a lower Missouri Court of Appeals that denied an education watchdog groups public records request to the University of Missouri seeking access to class syllabi. The Court of Appeals held that the records request was properly denied on copyright grounds, saying the Copyright Act prohibits the University from making copies of these or any other public records protected by copyright. The court ruled the act of duplication is itself an infringement. The amicus argues that this is a dangerous precedent for FOI laws. If allowed to stand, any email, letter or memo could be equally subject to an assertion of copyright protection. This could severely hamper the work of data journalists seeking to analyze large databases.
July 16, 2014
The committee stood up for two favorite causes: open records and the rights of student journalists. SPJ FOI summer intern David Schick applied as a University of Georgia Grady College of Journalism student seeking budget deficit records that led to layoffs at Georgia Perimeter College. He filed two Open Records Act requests but the university system released only some documents, denying others due to an open investigation. He filed suit challenging this claim as well as excessive fees. The case went to trial in April. The committee awarded $5,000 for Davids pro bono attorney and are awaiting the judges decision.
May 6, 2014
The committee spent $750 to join an amicus brief that would uphold the recognition of the use of hyperlinks as part of a fair report privilege under libel law and would apply state anti-SLAPP statutes in federal court. This suit would counter several recent rulings that denied usage of state law, allowing some libel plaintiffs to circumvent SLAPP statutes by filing in federal court.
May 5, 2014
The committee fought back the government deciding what information is newsworthy after the Prison Legal News requested documents from the Federal Bureau of Prisons. BOP redacted key details citing privacy exemptions, and the judge upheld privacy over public interest because there was no well-publicized scandal involving BOP personnel. The committee joined the Reporters Committee amicus at no cost, holding that newsworthiness is not a test for whether a document is public.
May 1, 2014
The committee joined another Reporters Committee amicus in a case involving Don Scholz, the founding member of the band Boston. He sued the Boston Herald for publishing articles in which band-mate Brad Delps ex-wife alleged band tension caused Delp to commit suicide. The state trial court ruled these statements to be opinion and dismissed the case but Scholz appealed to the Massachusetts Supreme Judicial Court, which has ruled against the Herald on libel matters in the past.
April 7, 2014
The committee awarded the Greater Charlotte Pro SPJ Chapter $5,000 to challenge closed door meetings the Charlotte City Council held to incentivize the Carolina Panthers to stay in town. In late 2012 and early 2013 council held closed sessions to approve sales tax increases for stadium renovations. The meetings were held without the publics knowledge and with police posted to keep citizens out, even though the stadium is on public land and the deal involved taxes. Especially egregious, SPJ sued Charlotte city officials in the 1970s under similar circumstances. Ultimately, the judge dismissed the suit in summary judgment but the committee believes the fight to be just and worthy.
January 9, 2014
The committee joined the Reporters Committee to oppose an extensive sealing of motions in a class-action suit against Google regarding the scanning of Gmail messages and then targeting ads based on that scanning. Google claims scanning email content is authorized under exceptions to the federal Wiretap Act. Plaintiffs are arguing it violates not only the federal act but also state wiretapping and eavesdropping statutes. The case impacts millions of Gmail users but also could set boundaries for online service providers use of their customer data. SPJ's involvement targets the sealing of court records. Both sides moved and the judge granted motions to seal vast amounts of information in this case. SPJ's motion argues these to be unsealed as a violation of the First Amendment right of access in a topic of significant import to the public regarding privacy rights and the workings of a giant technology company. SPJ's attorney advised that sealing of information with very little reasoned analysis has long been an issue in tech-related cases.
January 4, 2014
The committee approved the maximum $5,000 in a case impacting student access to campus police reports. Students at Otterbein historically got access to campus incident reports from the local police department. But once Otterbeins security force became its own police department in 2011, it began denying access on grounds that a university police department is a private institution, not subject to the Ohio Public Records Act. Students now only can access the log required under the Clery Act, often out of date or lacking crucial information. The restrictions have limited reporting on the student magazine and website on important stories including sex assaults on campus.
November 12, 2013
The committee joined the Reporters Committee in a libel case brought by University of Virginia professor Michael Mann against the National Review and the Competitive Enterprise Institute. Michael Mann is a climate scientist known for his controversial work on global warming. A July 2012 National Review blog post questioned Manns research methods and made a colorful, and perhaps unfortunate, analogy to Jerry Sandusky. CEI heavily excerpted the National Review blog post. Mann sued both. They moved to dismiss under the new D.C. anti-SLAPP statute. The committee approved funds for the sole issue that courts should allow appeals when they deny SLAPP motions as a double check to protect the First Amendment; otherwise, SLAPP suits could be allowed to proceed through trial even if the trial court gets it wrong, which defeats the purpose of a SLAPP statute.
October 25, 2013
SPJ joined the Reporters Committee in U.S. v. Apel, pending in the U.S. Supreme Court. Not a typical press case, this issue involved restrictions on access by protestors to a public thoroughfare, in this case in an area outside Vandenberg Air Force Base that had been designated as a forum for speech since 1989. Although the Court is focused on the question of whether the military exerts exclusive control of the area, the underlying First Amendment issue of places to which the public and the media have access is of critical importance to newsgathering. A decision giving the government more discretion to limit First Amendment activities in areas traditionally open to the public even in the face of a statute would, obviously, have a negative impact on the media.
September 12, 2013
The committee joined an amicus request from the National Press Photographers Association and the Reporters Committee in Leigh v. Jewell, pending in the U.S. Court of Appeals for the Ninth Circuit. The case in a nutshell involved access for reporters to photograph wild horse roundups on land owned by the U.S. Bureau of Land Management. A lower court found a presumption of access was overcome by safety concerns. The amicus brief argues that journalists are perfectly capable of protecting themselves and that the roundups newsworthiness overcomes any safety concerns. The committee signed on, saying that keeping the government honest about rights of access, no matter the situation, is important.
June 28, 2013
The WikiLeaks story that has provided so much fodder for SPJ discussion over the past three years lead to a third amicus request the committee approved on June 28, as the Pfc. Bradley Manning court martial began. The brief argued for access to court documents filed in the case, an issue in any military tribunal. The brief argued that the First Amendment provides a right of access to documents in courts martial.
June 3, 2013
The committee approved another Reporters Committee request June 3 to join a letter to Attorney General Eric Holder suggesting ways to improve DOJ guidelines. The changes include adding a statement of principles, providing notice to news organizations/journalists and giving them a chance to be heard if their records are requested from a third party (telephone company or internet service provider), and broadening of all newsgathering materials that could be requested (not just phone records) and all methods that could be used to request them (not just subpoenas).
April 22, 2013
The committee approved an amicus request from the Reporters Committee in a FOIA case before the Second Circuit of the U.S. Court of Appeals. The case supports an appeal by the New York Times and the ACLU (New York Times v. DOJ) for government to release memos about the use of lethal force against American citizens and the targeted killings of suspected terrorists. The memos were classified but, among other arguments, the Times and ACLU said so many high-level officials, including President Obama, had made public statements about the program, they should be declassified. The amicus brief highlighted the exponential growth in classification decisions made by the Executive Branch in the past decade. It pointed out that theres no external oversight of the classification process and questions federal courts ability to scrutinize classification requests from the Executive Branch, weakening information obtainable under FOIA.
March 7, 2013
The committee joined an amicus brief with a coalition of groups including the Florida Institute of Justice, the Florida Press Association, the First Amendment Foundation and the Reporters Committee to challenge Florida prison regulations that prohibit prisoners from possessing certain publications, now interpreted to include Prison Legal News.
The rules prohibit any publication that contains ads for certain calling and pen pal services, the purchase of products or services with stamps, and any prisoner employment. States get broad discretion from courts in how they run prisons so courts traditionally have supported their interpretations of what is allowed.
Prison Legal News argued the regulations were being used to prevent distribution of their publication to prisoners and that these restrictions violate the prisoners First Amendment rights. The amicus brief adds that the regulations are arbitrary and do not achieve a legitimate objective.
December 17, 2012
The committee signed on to another Reporters Committee amicus brief to support nationwide access to public records.
In McBurney v. Young, SPJ asked the U.S. Supreme Court to reverse an appeals court decision restricting access to public records. Under the Virginia Freedom of Information Act, only state residents have access to public information. The same is true in Alabama, Arkansas, New Hampshire, New Jersey and Tennessee.
Even with an exemption for media in Virginia, SPJ argued that the VFOIA is unconstitutional. The exemption does not cover international outlets or online media that serve Virginia residents. The brief argued that this law prevents all out-of-state media from obtaining public records, thereby restricting the medias ability to report on matters of public importance.
October 29, 2012
The committee joined another Reporters Committee amicus request to challenge the rubber-stamping by courts of Executive Branch requests to classify documents under the "national security" blanket.
The issue at the heart of Center for International Environmental Law v. U.S. Office of the Trade Representative, involved whether a D.C. trial court erred when it ordered the release of a document withheld under Exemption 1 of the Freedom of Information Act. That exemption allows the government and courts to withhold national security/classified information.
The only document at issue was a one-page position paper created during trade talks among dozens of Western nations more than a decade ago that spelled out rules that would have changed free trade and investment laws. The document was shared with 33 other countries, and the rules were never adopted.
The Department of Justice argued that the document is classified and that releasing it would damage foreign relations because the United States would betray the trust of other countries with whom it promised to keep the documents confidential. The trial court disagreed and ordered the document released. The DOJ appealed to the D. C. U.S. Court of Appeals.
The government argued that courts should not be permitted to second-guess classification claims made by the Executive Branch because courts lack expertise to make those determinations. The amicus brief SPJ joined countered that that courts regularly scrutinize agency classification decisions, and that courts should retain their independent role rather than simply defer to the Executive Branch.
October 15, 2012
The committee joined an amicus request from the Reporters Committee for Freedom of the Press in a Federal Circuit access case, Apple v. Samsung, to support access to discovery documents in cases where trade secrecy is claimed.
Reuters had intervened in this case to ask that many of the discovery documents be unsealed. The trial judge ordered that many financial documents be released. Both Apple and Samsung appealed that order. Reuters chose not to pursue the appeal so the First Amendment Coalition stepped in to intervene.
When the federal court denied that request, the FAC filed an amicus brief countering the companies arguments against the unsealing of the documents. The Reporters Committee also drafted a more general brief stressing the importance of access in cases like this and opposing the blanket secrecy often allowed any time alleged trade secrets are involved. The LDF Committee joined to support this effort.
Oct. 25, 2011
SPJ joined an amicus brief supporting Project Vote/Voting for America, Inc. advocating openness of voter registration applications. At issue is whether the state of Virginia can withhold voter registration information from the public simply because the state included a promise of privacy on the applications.
As the U.S. District Court for the Eastern District of Virginia found, the information on voter registration applications is public information, excluding social security numbers, and cannot be withheld from the public. However, the court also ruled that the state must only release future voter registration information, keeping all prior applications private. The amicus brief argues against this part of the decision.
The National Voter Registration Act requires states to make available to the public all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters. Journalists have long depended on access to voter registration records as a way to monitor the accuracy and honesty of the information state officials use to determine who will be allowed to vote.
U.S. courts have set a precedent in favor of releasing voter registration information on the grounds that public disclosure ... promotes transparency and accountability in the electoral process to an extent other measures cannot, as cited in Doe v. Reed, 2010. Furthermore, the state of Virginias claim that voter information is private has also been refuted by a number of U.S. courts.
July 22, 2011
SPJ joined an amicus brief challenging a complaint filed by the owner of the Washington Redskins, alleging that he was defamed in a Washington City Paper cover story titled The Cranky Redskin Fans Guide to Dan Snyder. Owner Dan Snyder filed the case, Snyder v. Creative Loafing Inc., against the Washington, D.C. weekly Washington City Paper and reporter Dave McKenna for publishing an article revealing information about, among other topics, Snyders past legal and public relations problems.
The amicus brief argues that Snyders case is a SLAPP suit, or strategic litigation against public participation. In a SLAPP suit, the plaintiff does not seek to win in the lawsuit, but rather aims to put relentless legal and financial pressure on the defendant in order to prevent future negative news coverage.
If the defendants show that the suit is a SLAPP suit, the plaintiff must prove a likelihood of prevailing on the merits of the case. The City Paper and McKenna have argued that the claim will not succeed because the allegedly defamatory statements are substantially true or protected opinion. The case is pending in the Superior Court of the District of Columbia.
July 1, 2011
SPJ joined an amicus brief challenging a subpoena against Wall Street Journal reporter Jesse Eisinger involving the New York shield law for journalists. Eisinger authored and co-authored a series of Wall Street Journal articles about Belgian speech technology company Lernout & Hauspie, most notably one that included the results of the news outlets investigation revealing that L&H either lied or misrepresented its Asian customer revenues. After publication, L&H's stock dropped 19 percent, the SEC launched an investigation, and L&H ultimately declared bankruptcy.
The plaintiffs in the case are a Massachusetts couple who have sued Goldman Sachs for a breach of fiduciary duty arising from Goldman's role as "exclusive financial advisor" to the couple's company, Dragon Systems, and its merger with L&H.
The plaintiffs said in their suit that they need the testimony of Eisinger to confirm the details published in the WSJ articles about what the reporter "did to uncover the problems with L&H's reported Asian revenues" to prove that Goldman could have done the same.
Authored by the Reporters Committee for Freedom of the Press, the amicus brief argues that forcing Eisinger to testify would substantially weaken the protections available for journalists under the New York shield law. The law protects reporters from revealing privileged information and sources, even when compelled by subpoena.
April 25, 2011
SPJ joined an amicus brief supporting the ACLU of Illinois, challenging the constitutionality of a federal court ruling that claims the First Amendment does not guarantee the right to publicly record police officers engaged in their duties. Under the Illinois Eavesdropping Act, a citizen or journalist using a cell phone or video camera to record police conduct, even if on a public street, could be subject to criminal prosecution.
The brief argues that the Illinois statute is unconstitutional because there is a well-established First Amendment right to gather information in the public domain. The brief cites numerous examples within the past few years where the law would cause potentially harmful implications on newsgathering.
March 25, 2011
SPJ joined an amicus brief in support of a case challenging the constitutionality of the Virginia Freedom of Information Act. Mark McBurney and Roger Hurlbert, both non-residents of Virginia, made records requests under VFOIA. The current statute denies open records access to anyone who is not a resident of Virginia.
McBurney, who relocated from Virginia to Rhode Island, twice sought VFOIA documents after the states Department of Child Support Enforcement admitted mishandling his child support case. The department denied both requests, citing that he was no longer a Virginia resident. Hurlbert, a California resident, made a VFOIA request to the Henrico County Assessors Office for real estate tax assessment records for his clients. The request was denied because of his non-residency status.
The U.S. District Court for the Eastern District of Virginia denied the case motion for summary judgment filed by McBurney and Hurlbert, which argued that the VFOIA provision requiring in-state residence was unconstitutional. The case is now pending in the U.S. Court of Appeals for the Fourth Circuit.
Jan. 20, 2011
SPJ joined an amicus brief supporting a TV station in Hattiesburg, Miss., fighting to lift a court order preventing it from airing a videotape of alleged abuse at a youth detention facility. WDAM, an NBC affiliate, petitioned the Mississippi Supreme Court to allow it to broadcast video it acquired of alleged abuse at the states Forrest County Juvenile Detention Center. The video depicts approximately six juveniles in a physical exchange with detention center staff. Prior to airing the footage, WDAM acknowledged to Forrest County Youth Court prosecutors that the station obtained the video.
The prosecution was quickly granted a court injunction on Dec. 30 by the court to prohibit WDAM, or any other individual or news outlet from disclosing, publishing or broadcasting the tape, even though WDAM agreed to blur the juveniles faces. The court ruled that WDAM failed to provide evidence of a need in showing the video. The court also concluded that the tapes were obtained unlawfully and that the prior restraint was needed to protect the inmates privacy.
An amicus brief, authored by law firm Covington & Burling LLP on behalf of a coalition of media companies and non-profits, asserts that the order is an unconstitutional prior restraint on the stations ability to publish truthful information of public significance. Also, it reflects WDAMs argument that the court failed to present evidence that this action will protect confidentiality and serve rehabilitative purposes.
Update Jan. 28, 2011: The Mississippi Supreme Court dismissed an injunction on WDAM, allowing the station to air the footage. &151; Mediabistro
Jan. 14, 2011
SPJ joined an amicus brief seeking to uphold strict Maryland requirements for defamation claims in a case that, if reversed, could increase the number of defamation claims against journalists.
Stephen Norman was the owner, operator and an attorney for Sussex LLC, a title insurance company and defendant in a June 2007 class action lawsuit that was later re-filed in a federal trial court. The lawsuit alleged that the Metropolitan Money Store and several other companies and real estate professionals engaged in mortgage fraud.
An attorney in the lawsuit, Scott Borison, created a website that listed the parties in the case and provided links to their law firms and pleadings in the case. Although Normans name was only mentioned in one of those pleadings as a victim rather than perpetrator, he filed a defamation claim in Maryland state court, claiming that Borison and the other class action lawyers defamed him by talking to the press about the suit and posting court documents online.
The state appellate court affirmed a lower trial courts ruling, holding that allegedly defamatory statements about a company are not of and concerning the owners or shareholders of that company. The court also affirmed that the statements were protected by a privilege that extends to papers filed and comments made during litigation and are public record.
The amicus brief, authored by the Reporters Committee for Freedom of the Press, argues that the lower court was correct in dismissing the claims and that the underlying policy rationale requires a finding that attorneys are privileged to provide journalists with copies of legal filings as well as accurate summaries and comments on the documents.
Update April 27, 2011: The Supreme Court of Maryland affirmed the appellate courts judgment that Borisons website did not constitute defamation. Justia
Dec. 20, 2010
SPJ joined an amicus brief seeking to uphold a Pennsylvania libel statute and protect journalists from defamation claims years after online publication. In 2009, Arthur Wolk, a prominent aviation lawyer and pilot, Googled his name and stumbled on a 2007 blog posting on Overlawyered.com that criticized his handling of a case in Georgia. Wolk filed a complaint for defamation against the sites publisher, Walter Olson.
Wolk argued to apply Pennsylvanias discovery rule, which in some cases allows a plaintiff to bring a lawsuit within one year of when a defamatory statement is discovered rather than when it is published. A federal trial court, applying the long-standing libel claim statute, granted a motion by Olson to dismiss the libel suit. The court held that it would not apply the discovery rule over the statute of limitations in a mass-media defamation case involving a blog, which is included as a form of mass media.
The amicus brief, authored by the Reporters Committee for Freedom of the Press, argues that blogs deserve the same protection given to other mass media that are not subject to the discovery rule. The brief also argues that the public policy behind the First Amendment calls for very limited statutes of limitation and suggests against the use of the discovery rule to defamation actions arising from mass media publications.
Update July 28, 2011: Wolk filed a new lawsuit against 42 parties, including the defendants in Wolk v. Olson. &151; Courthouse News Service
Dec. 13, 2010
SPJ joined an amicus brief urging the New Jersey Supreme Court not to improperly narrow the definition of a journalist under the shield law. The case concerns Shellee Hale, a blogger who was sued by management software company Too Much Media after she posted defamatory comments about suspected security breaches at the company.
A trial court ruled that Hale could not invoke the states shield law to protect the identity of her sources because Hale had no affiliation with a legitimate news publication and her message board postings bore no similarity to traditional forms of journalism. An appellate court upheld the ruling.
The appellate court decision established restrictive criteria that limit who qualifies as a journalist. In addition, the appellate court implied that a trial court must conduct a hearing to determine whether a person invoking the shield law is more than a self-proclaimed journalist. The amicus brief argues that the state must interpret the shield law broadly enough to include online content providers who have the intent when gathering information to disseminate it and contribute to the free exchange of ideas.
The brief also argues that the appellate court made a mistake in deciding that a person who invokes the reporters privilege is then subject to a full preliminary hearing to determine eligibility for the protection.
Update June 7, 2011: The Supreme Court of New Jersey held that Hales activities did not constitute journalism, and thus did not satisfy the statute. &151; Citizen Media Law Project
Nov. 19, 2010
SPJ joined an amicus brief supporting the Federal Communications Commissions fight for full disclosure of AT&T documents. At issue in the case FCC v. AT&T is whether a corporation can assert a personal privacy right under Exemption 7(c) of the Freedom of Information Act as grounds for withholding documents from the public. The provision exempts document disclosures in law enforcement records that would constitute an invasion of personal privacy.
CompTel, a trade association for communications service providers, filed a public records request with the FCC in 2005, seeking documents related to an FCC probe into whether AT&T had overcharged the agency for work on a technology education project. AT&T fought the request, arguing that releasing the documents violated Exemption 7(c) of the Act.
The FCC rejected AT&Ts argument and agreed to release the documents, finding that a corporation has no personal privacy as a matter of law. In September 2009, the U.S. Court of Appeals for the Third Circuit reversed the FCC disclosure order and ruled that AT&T, a corporation, has a personal privacy right under the exemption.
The brief, authored by the Reporters Committee for Freedom of the Press, argues that the exemption has never been interpreted as extending rights to corporations and should be applied solely to individuals to protect personal details unrelated to business conduct. The brief also argues that giving corporations new rights under the exemption would impede journalists ability to act as watchdogs.
Update March 1, 2010: The U.S. Supreme Court ruled that the protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. &151; SCOTUS blog
Sept. 17, 2010
SPJ joined an amicus brief in support of the Entertainment Merchants Association, a non-profit international trade group seeking to strike down a California law that could place an additional restriction on free speech. The case, Entertainment Merchants Association v. Schwarzenegger, regards a 2005 California law enforcing restrictions and labeling requirements on the sale or rental of "violent video games" to minors under 18.
Drafted by the Reporters Committee for Freedom of the Press, the amicus brief urges the Court to embrace a broad interpretation of First Amendment protections trumpeted in U.S. v. Stevens. It further argues that the Court should not eliminate First Amendment protection for violent speech just because new media has brought it to the forefront of the publics mind. Finally, the brief explains the negative implications of a violent speech exception for journalists.
SPJs support of EMAs effort demonstrates journalists concern over the impact a more limited First Amendment will have on their ability to report on the news.
Update June 27, 2011: The U.S. Supreme Court struck down the 2005 law banning video games with violent images and themes, saying that the states attempt to create a new category of First Amendment regulation for minors was unprecedented and mistaken. &151; Media Coalition
April 30, 2010
SPJs Legal Defense Fund granted journalist Christopher Elliott $2,500 to assist him in a libel suit. A travel agency, Palm Coast Travel, took issue with a post related to the states investigation, which Elliott wrote in March 2009 on his website, elliott.org.
Elliotts post originally stated that the State of Florida had filed a Notice of Intent to Issue a Cease and Desist Order against three travel agencies, including Palm Coast Travel, for selling unauthorized insurance policies. Elliott quoted a spokeswoman for Floridas Department of Financial Services about the case. However, the official misinformed Elliott, which was evident by the press release the state disseminated shortly thereafter. The release clarified that the travel agencies would be ordered to stop selling insurance as opposed to stop transacting business, as Elliott was originally told. He modified his original post the following day with a clarification and the statement, Ive updated the post to reflect that new information, and I apologize for any resulting confusion.
Despite the clarification, Palm Coast Travel sued Elliott. The SPJ Legal Defense Fund Committee and the SPJ Board of Directors voted to support Elliott, who is National Geographic Travelers ombudsman, is a syndicated columnist through Tribune Media Services, and is a columnist for MSNBC.com and The Washington Post.
Update June 26, 2010: The case was settled when Elliott apologized on his blog, and Palm Coast Travels president accepted. &151; Citizen Media Law Project
April 22, 2010
SPJ joined an amicus brief written by the Reporters Committee for Freedom of the Press that supports the Shepherdstown (W. Va.) Observer in its battle to attain records of petition signatures that should be public. County Clerk Jennifer Maghan decided not to release names of the petitioners who were calling for a referendum of a new zoning ordinance for the county, based her decision on the privacy concerns of the signatories to the petition.
The Jefferson County Circuit Court upheld her determination, and the Observer turned to the Supreme Court of Appeals of West Virginia to challenge the decision, arguing that the petitioners signatures should be public under the West Virginia Freedom of Information Act.
SPJ joined the Reporters Committee in filing the brief that supports the Observer, which contests that the states preparation and retention of the records makes them subject to the West Virginia FOIA.
Update Sept. 28, 2010: The West Virginia Supreme Court ruled that the signatures must be released because a referendum petition is a public record when filed with a public body. &151; First Amendment Center
March 10, 2010
SPJ joined an amicus brief written by the Yale Supreme Court Clinic supporting the Prison Legal News appeal of a court order that denied the group access to trial information. The brief supports Prison Legal News, an independent magazine, which is arguing to a federal appellate court that it should receive access to trial exhibits that were once part of the public court record.
The brief argues that withholding trial documents because they had been returned to the prosecutor rather than remained in the courts public file is inconsistent with the presumptive right of access to judicial documents. Also, it argues that restricting information because a prosecutor requested the documents back from the clerk constitutes de facto sealing of court records and could open the doors to similar requests in an effort to bar the media from public information.
Update Aug. 10, 2011: The U.S. Court of Appeals for the 10th Circuit ruled in favor of the government, finding that the use of the videos was limited disclosure, which does not automatically trigger general release under FOIA. The case has been appealed to the U.S. Supreme Court. &151; Prison Legal News
Jan. 11, 2010
SPJ joined an amicus brief with the Student Press Law Center, the College Media Advisers, Inc. and the Association for Education in Journalism and Mass Communication, urging an Illinois trial court to reject a state prosecutors subpoena of former Northwestern University journalism students under the states shield law.
The former students researched and reported the conviction of Anthony McKinney, who has been in prison for more than 30 years for murder, for the Innocence Project at Northwestern University. When the evidence provided by the students work convinced a Chicago judge to give McKinney another hearing, the Cook County states attorney subpoenaed information that included the students grades and e-mail communications.
The amicus brief asserts that when the student journalists were conducting their newsgathering for the project, they were reporters as defined by the Illinois Reporters Privilege Act. As such, the students are entitled to the Acts protections.
Update Sept. 12, 2011: A Chicago judge ordered the professor and his students to hand over more than 500 emails, ruling that the students were acting as investigators for the case, not as journalists. NPR
May 1, 2009
SPJ joined an amicus brief supporting the Associated Press in an effort to obtain records that could shed light on a conflict of interest for a former state Supreme Court chief justice. The requested records are emails between former Justice Elliott Maynard and Donald Blankenship, the CEO of a major coal company. The company, Massey Energy, was the subject of a suit pending before the state Supreme Court at the same time as the justice and Blankenship were exchanging e-mails and vacationed together in Monaco.
Justice Maynard ruled in favor of Massey Energy, but recused himself in a later appeal. He subsequently lost re-election. After learning of the contact between Justice Maynard and Blankenship, the AP requested e-mails through the states Freedom of Information Act. Although it received about half the requested documents, access to other e-mails was denied after the court ruled the remaining e-mails were not subject to state open records laws.
Update Nov. 13, 2009: The Virginia State Supreme Court ruled that public officials and public employees do not need to reveal personal email messages. Blankenship and Maynard were not required to hand over their email messages. &151; The New York Times
March 11, 2009
SPJ joined an amicus brief in a case surrounding the claim of former Staples, Inc. employee Alan Noonan, who was fired for allegedly falsifying expense reports. After Noonans dismissal, an executive sent an e-mail to approximately 1,500 employees explaining the circumstances of the termination and reminding employees of company policy for reporting expenses.
Noonan filed suit in a Massachusetts district court, claiming the e-mail was libelous and undertaken with intent to tarnish his reputation. Although the district court ruled in favor of Staples, reasoning that the charges set forth in the e-mail were indeed true and therefore not libelous, a three-judge panel of the U.S. Court of Appeals for the 1st Circuit overturned the district court ruling on rehearing in February 2009. The appeals court, guided by a century-old Massachusetts statute, found that state law allows Noonan to recover, even though the contents of the e-mail were true, if a jury finds that Staples acted with ill will or malice by informing employees of Noonans misfeasance.
The amicus brief supports Staples right to report the truth.
Update Oct. 12, 2009: The 1st Circuit remanded the case to the lower court, where Staples was found to have no malice. The verdict was returned to the companys favor. &151; MediaLaw
Aug. 3, 2009
The Legal Defense Fund Committee voted to give $1,000 to the Collegiate Times, the student newspaper at Virginia Tech, to support its cost of an open records lawsuit the newspaper filed in West Virginia. The award was granted Aug. 3, 2009.
SPJ President Dave Aeikens, SPJ President-Elect Kevin Smith, Freedom on Information Committee Chairman Dave Cuillier and Acting LDF Chairwoman Holly Fisher voted in favor of granting the request. Chairwoman Julie Kay was traveling out of the country and unavailable.
Kelly Furnas, the editorial adviser of The Collegiate Times, made the request for $1,000. The paper sued the West Virginia State Police for records related to the 10-year-old disappearance of a Virginia Tech student. Their request was denied under an exemption in West Virginia's open records law that allows police to deny release of records that are considered part of an ongoing investigation if they believe disclosure could harm the investigation. The newspaper does not believe the investigation would be harmed, and in fact, could help the investigation by making more information available to the public and possibly prompt new witnesses or details to emerge.
Jan. 8, 2009
SPJ voted unanimously to sign on to an amicus brief written by the Reporters Committee for Freedom of the Press. The case, State of Nebraska v. Kinyoun, which is pending in the Nebraska Supreme Court, involves the intersection of the state open records law and HIPAA.
The amicus brief supports a county historical society in Nebraska that is seeking the names, dates of death, and patient numbers of more than 900 people buried on the grounds of a state mental hospital. All were patients at the hospital. The burials occurred between 1909 and 1959, and were in graves marked only with a patient number (there are no names on the graves.)
The historical society's request for the names and other key information was denied on the grounds that revealing the names of the deceased would reveal medical information about them (i.e., that they were in a mental hospital), thus invading their privacy. The trial court held that the names could not be released because of HIPAA and issued an opinion misapplying HIPAA.
This case has taken on greater importance than usual because only six reported decisions interpreting Nebraska's open records law and even fewer interpreting HIPAA and any state open records law. Every other state and federal court that has addressed this issue has said that where a state open records law allows the release of medical/death information, HIPAA will not prevent that release. This decision puts Nebraska out of sync with the rest of the country and HHS guidance on HIPAA.
The brief addresses the misapplication of HIPAA, the idea that death records are public in Nebraska, and the strong public interest in access to these names.
Nov. 24, 2008
The Legal Defense Fund joined an open-records case being fought by the Milwaukee Journal Sentinel and the Lakeland Times, at the request of the ReporterÂ’s Committee for Freedom of the Press. The case began after the Milwaukee Journal Sentinel requested from the state the names of union-represented state employees who lost the privilege of driving state-owned vehicles because of traffic violations. The lower court denied the newspaper access based on a collective bargaining agreement between the Wisconsin State Employees Unions and the state. The agreement states that the Employer [here the state] will not release information relating to the names Â… of employees covered by this Agreement to labor unions, labor organizations, local unions or the pressÂ…. The Lakeland Times also requested and was denied information from the state that included the names of Department of Natural Resources employees covered by the same agreement. Prior to the agreement, the information was available under the Wisconsin Open Records Law. The case is now on appeal.
The amicus brief argues that denying access to the information not only is an impermissible attempt to amend the open records law by contract, it violates the U.S. Constitution because the press is singled out in the agreement and treated differently that the public, which is prohibited under the First Amendment, and because the term press is impermissibly vague. Moreover, it argues that release of the names is in the public interest.
Oct. 23, 2008
The Legal Defense Fund jumped to the defense of Chicago freelance photographer Michael Anzaldi with a $1,000 grant, matched by the Chicago Deadline Club. In a case SPJ found particularly eggregious, Anzaldi was arrested and charged with resisting arrest and obstructing a police officer. Anzaldi was covering an incident in which an off-duty Chicago police officer shot and killed a man who allegedly tried to rob the officer on the South Side of Chicago.
Anzaldi says he was the first photographer on the scene and was shooting both video and still photographs from a yard across the street (with the property owner's permission). A CPD spokeswoman arrived and recognized Anzaldi. She requested that he stop filming and he complied. However, as the minutes wore on, the victim's family members or friends showed up on the scene and Anzaldi continued to take photographs. It was then, Anzaldi said, that the spokeswoman approached him and asked for his credentials. He told her that he did not have the credentials or other ID on him, but that both were in his car with his wallet and cell phone. Officers arrested him and confiscated his equipment.
Anzaldi was held for nine hours and charged before being released. His video camera and tape have not been returned. His still camera was returned when he was released, but the memory card was erased.
The official story from the CPD is that Anzaldi was arrested because he crossed police tape (which, incidentally, is permitted by the Chicago Municipal Code if a person has CPD credentials). Regardless, Anzaldi says he never crossed the tape and a Chicago judge dismissed the charges in January 2009.
Oct. 9, 2008
SPJ joined an amicus brief in the case Doe v. CARS, a case that no one even knew existed even though it had been going on for seven years. Doe v. CARS was an employment discrimination case. "Jane Doe" claims she was fired because she aborted a fetus with severe genetic problems.
The case has been going on for seven years, but it was kept completely secret until May 2008, when the Third Circuit issued an order saying the case could go forward. In two sentences at the end of the published, precedential opinion, the Third Circuit also affirmed a blanket sealing order so that the appellate opinion and two later orders remain the only public acknowledgment of the caseÂ’s existence. When The Legal Intelligencer moved to intervene and challenge the closure, the Circuit refused to allow them to intervene.
The Legal Intelligencer recently filed a petition for certiorari asking the U.S. Supreme Court to hear the case. The Reporters Committee for Freedom of the Press drafted an amicus brief to their petition arguing that the Supreme Court should extend its previous holding on access to court hearings and records, which found a presumptive right of access to criminal cases, to civil cases like this one. The brief also asks the Court to clarify that a newspaper must at least be allowed to intervene in order to challenge closure. The journalism groups are arguing that the Third CircuitÂ’s decision to completely seal the case with no discussion or factual findings highlights the need for the Court to recognize, once and for all, the constitutional right of access to civil proceedings and records.
Sept. 25, 2008
SPJ joined an amicus brief to help the Orange County Register, which is owned by Freedom Communications, fight off a prior restraint that was entered against it. SPJ was asked to do so by the The California Newspaper PublishersÂ’ Association and the California First Amendment Coalition.
Freedom Communications was a defendant in a multi-million dollar class action lawsuit brought by its newspaper carriers. The trial judge entered an order forbidding The Register from reporting on what any witness says at the trial.
The order begins as a standard witness sequestration order. For example, it forbids the presence of non-expert witnesses in the courtroom during the testimony of other witnesses and prohibits witnesses and the parties from discussing one witnessÂ’s testimony with another. However, the judge then added a gag provision forbidding the parties (and thus The Register) from reporting any non-expert witnessÂ’s testimony during the trial, reasoning that such reporting might taint the other witnessesÂ’ testimony. He did not explain how this case is different from any other in that regard, or how his order could possibly effectuate its stated purpose given that other media are not similarly gagged.
Sept. 8, 2008
The Legal Defense Fund approved a $1,000 grant to Brian Barnes, a storm chaser who was arrested after he pulled to the side of the road while chasing twisters in Texas. He is a regular, established freelancer who, while not on specific assignment, is a reliable contributor to news organizations.
Feb. 20, 2008
During the past few months the LDF Committee has granted two LDF requests for a total of $3,000. SPJ also, through the LDF Committee or with the LDF Committees assistance, has signed on to three amicus briefs, lent its names to comments/letters on three occasions and advised SPJs leadership. One LDF grant request was rejected. Read the full report here.
July 25, 2008
SPJ awarded a $200 grant to Justin McLaughlin of West Virginia University. McLaughlin is pursuing the applications from the West Virginia University Innocence Project, arguing that they are public under state law.
Feb. 7, 2007
The LDF committee voted to provide amicus support for Griffis vs Pinal County. It involves the suspension of Stanley Griffis from his job as county manager after he used public dollars to buy $21,000 worth of sniper rifles, ammunition and other related gear without approval. Phoenix Newspapers, which owns The Arizona Republic, is seeking 90 e-mail records from the time when state officials were investigating Griffis for this conduct.
Nov. 2, 2006
The LDF committee voted to provide amicus support and $1,000 for two San Francisco Chronicle reporters who were subpoenaed to appear before a federal grand jury. The two reporters have been pressed to reveal the identities of sources who leaked grand jury testimony concerning a highly publicized case concerning the use of steroids by professional athletes.
Sept. 27, 2006
The LDF committee approved a $500 grant to help pay for an amicus brief supporting The Boston Herald, which was sued by a judge after the newspaper reported the judge's controversial comments as recounted by other court officials who heard them.
Aug. 23, 2006
SPJ's national board of directors awarded the largest LDF grant ever given. The money went to Josh Wolf, a California blogger and freelance journalist who was imprisoned because he refused to provide the federal government with his unused video of a 2005 San Francisco riot. The $30,000 grant is to be used to pay Wolf's legal fees. SPJ President David Carlson negotiated with the law firm representing Wolf and helped broker a great deal for Wolf: SPJ would provide $31,000 of Wolf's legal expenses if the firm capped its fees at $60,000.
June 28, 2006
LDF provided a California TV freelance photographer $1,000 toward his fight to keep his tapes from the government. More
June 28, 2006
LDF gave $1,000 to the State News, the student paper at Michigan State University to support the paper's efforts to get the university to release an incident report on a campus assault.
June 6, 2006
LDF awarded $1,000 to the Salt Lake City Deseret Morning News to defray legal costs associated with filing a brief in the Utah Supreme Court. The case, Desert Morning News v. Salt Lake County, involves the papers right to obtain government records, which county government had sealed.
Marcia Rice, a former county clerks office employee, filed a complaint and lawsuit in 2003 alleging that a chief deputy clerk sexually harassed her in the workplace while the county clerk knew of the situation, but did nothing.
At issue is whether independent investigative reports into allegations of misconduct by high ranking government officials are public records under the Government Records Access Management Act.
After more than 100 hours of investigation, and at the expense of more than $11,000 in tax payer funds, two private attorneys released their report to the district attorney. The district attorney provided a summary to the victim, but refused to release the full report.
A district judge has ruled that the records are private, protected and public disclosure would have a chilling effect upon witnesses and victims participation in future investigations.
May 11, 2006
LDF committee votes to sign onto a letter from news organizations asking the governor of Arkansas to stop selectively excluding certain media from his press conferences.
April 28, 2006
SPJ agrees to support the Shield Law legislation authored by U.S. Sen. Arlen Specter of Pennsylvania. The bill provides a qualified privilege for confidential sources and information in both criminal and civil contexts.
April 19, 2006
LDF committee votes to join an effort to oppose a gag effort in the case of Lewis "Scooter" Libby, the former chief of staff to vice president Dick Cheney.
Jan. 27, 2006
LDF approved $250 for an amicus brief supporting the New York Times in its lawsuit brought by Stephen Hatfill, a man under suspicion of mailing anthrax.
Oct. 24, 2005
LDF committee agrees to lend moral support to the National Press Photographers Association of New Jersey in its efforts to retain the rights to shoot photos in the subway system.
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