SPJ Legal Defense Fund Roundup – August 2016
September 29, 2016
Lynn Walsh, SPJ National President, 614-859-6194, Lynn.K.Walsh@gmail.com
Rachel Semple, SPJ Communications Coordinator, 317-920-4785, firstname.lastname@example.org
INDIANAPOLIS – As a free press and free speech advocate, SPJ’s Legal Defense Fund Committee initiates and joins amicus briefs to support First Amendment and open records cases.
The following are amicus briefs and other action the LDF Committee took in August:
Global injunction of single nation should not be imposed on Internet-published speech worldwide
The case Equustek Solutions Inc. v. Morgan Jack involves the theft of trade secrets in the networking device market. A British Columbia court issued an injunction requiring Google to remove from its search database any websites used by Morgan Jack to sell its products.
The court found that an injunction applying only to Canada would not sufficiently protect Equustek so it made the injunction global. The case is now pending before the Canada Supreme Court.
SPJ and the group of organizations involved are concerned that a precedent for global injunction could be used against the media as well as against Google. A court should not be allowed to impose a single nation’s standards on Internet-published speech around the globe.
The full brief will be filed at a later date.
SPJ supports documentary filmmaker’s protection of notes, recordings
SPJ joined the Reporters Committee for Freedom of the Press and other groups in filing a legal 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 reporter’s 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).
Read the full amicus brief here.
SPJ urges strengthening of NYPD body cam policy
The New York Police Department has released a draft policy on police bodycam videos. The policy acknowledges that such videos are subject to New York’s Freedom of Information Law (FOIL), which is positive. SPJ joined the Reporters Committee for Freedom of the Press in submitting comments on areas in which the policy could be strengthened. For instance, the policy should clarify that, if only a portion of a video is exempt from FOIL, the video should be redacted and the non-exempt portion should be released (rather than the entire video being withheld). The brief also emphasizes the importance of proactive disclosures of footage showing serious use of force by police.
Read the full amicus brief here.
SPJ joins 56 other groups in support of New York Times reporter’s subpoena fight
SPJ joined 56 other news organizations in filing an amicus brief with the New York Supreme Court Appellate Division, in support of New York Times reporter Frances Robles in her effort to fight a subpoena to testify about a jailhouse interview and turn over her notes. The amicus brief argued that the trial court that ordered her to testify did not give sufficient consideration to the protections in the New York Shield Law, which only allows subpoenas against journalists for non-confidential information when the information is highly relevant, meaning the case should "rise or fall" with the evidence. The brief argued that reporter's relations with their sources will be jeopardized if such information, and particularly information from jailhouse interviews with criminal defendants, is compelled without meeting that high standard.
Read the full amicus brief here.
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 (then president-elect) Lynn Walsh here.
SPJ supports reporter’s appeal in New York x-ray vans case
SPJ joined the Reporters Committee for Freedom of the Press regarding the application of the New York Freedom of Information Law. In the case of Grabell v. NYPD, a ProPublica reporter requested documents relating to the use of NYPD surveillance vehicles known as “Z-backscatter x-ray vans.” SPJ signed onto an amicus brief last year when the case was before an intermediate appellate court. Unfortunately, that court ruled that most of the records at issue did not have to be released.
The reporter is now seeking to appeal to the New York Court of Appeals (the state’s highest court). The brief emphasizes: (1) the nature and extent of information that is already publicly available concerning the “Z-backscatter” technology, particularly as it contradicts a key affidavit that was filed by the NYPD, and (2) the importance to the press and the public of access to law enforcement records.
SPJ supports Microsoft in government surveillance case
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 customer’s 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 media’s 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 entire amicus brief here.
SPJ promotes the free flow of information vital to informing citizens; works to inspire and educate the next generation of journalists; and fights to protect First Amendment guarantees of freedom of speech and press. The First Amendment also guarantees the press and the public a right of access to criminal trials, including pretrial proceedings, and documents submitted in connection with them.
The LDF Committee also oversees the Legal Defense Fund, a unique account that can be used to provide journalists with legal or direct financial assistance.
SPJ promotes the free flow of information vital to informing citizens; works to inspire and educate the next generation of journalists; and fights to protect First Amendment guarantees of freedom of speech and press. Support excellent journalism and fight for your right to know. Become a member, give to the Legal Defense Fund, or give to the Sigma Delta Chi Foundation.