ONA’s Legal Affairs Committee works with the Board of Directors to formulate the organization’s position on legal issues that impact our members and the digital journalism community. The committee reviews lawsuits with an eye toward joining, either as a party or as an amicus (or “friend of the court”), as well as proposed briefs and legislation that may affect how journalists do their jobs.
See below for an ongoing list of the committee’s work on behalf of ONA members and the journalism community. Items are listed by the original date of first action and updates are provided below each.
Committee members are:
- Joshua Hatch, Chair, Vice-President
- Jim Brady, Board member
- Mandy Jenkins, Board member
- David Ardia, Assistant Professor of Law, University of North Carolina at Chapel Hill
May 26, 2015
ONA joined a coalition of media organizations in strong support of the SPEAK FREE Act of 2015 (H.R. 2304), bipartisan legislation introduced by Rep. Blake Farenthold and Rep. Anna Eshoo that extends First Amendment protections to every citizen on the internet while bolstering the information economy that thrives on open public discourse and civic participation. The legislation will allow federal courts to determine whether a lawsuit targeting speech is a Strategic Lawsuit Against Public Participation (SLAPP) and dismiss any bogus claims if the defendant can show that the suit would not succeed on the merits. It also includes important fee-shifting provisions that protect defendants who prevail on an anti-SLAPP motion from having to pay the staggering legal fees that have bankrupted countless defendants forced to defend themselves against meritless lawsuits.
May 14, 2015
ONA joined 28 other media organizations in a brief in support of an attempt by a coalition of public interest groups to gain access to information from the Staten Island grand jury investigation into the police choking death of Eric Garner. The brief supports an appeal from a trial court decision refusing any access to the grand jury materials and argues that the trial judge erred by failing to recognize the great current public interest in knowing how allegations of lethal police misconduct are being investigated and dismissing that interest as mere “journalistic curiosity.”
April 7, 2015
OAN joined a brief challenging nondisclosure requirements in an FBI National Security Letter (NSL) compelling an ISP to produce records of customer communications. Like similar provisions in the vast majority of NSL’s issued by the FBI, the nondisclosure requirements act as a permanent gag order that forbids the recipient from ever revealing even the types of records being collected. The brief examines how these NSL gag orders violate the right of the press and the public to receive important information on matters of overwhelming public interest and also emphasizes how the nondisclosure requirements endanger confidential news sources and prevent reporting on the extent to which the NSLs may violate constitutional and statutory limits on the seizure of private communications.
Feb. 26, 2015
ONA joined an amicus brief that seeks reversal of extraordinarily broad gag and sealing orders imposed by a federal judge in the prosecution of CEO Donald Blankenship in connection with the death of 29 coal miners the 2010 Upper Big Branch mine disaster. The orders concluded that to preserve Blankenship’s fair trial rights, it was necessary to prohibit the parties, attorneys, witnesses, families of victims and others from making any statements to any member of the media, and to restrict all access to court filings made in the case. The brief argues that the orders violate the First Amendment on a variety of grounds, including that they rely on mere speculation about the potential harm that news coverage might cause, and that they are so broad they effectively prohibit anyone with personal knowledge of the explosion from speaking to the media.
Update: March 9, 2015
The Fourth Circuit has vacated the sealing and gag order and sent the case back to the trial court.
Feb. 2, 2015
ONA joined an amicus brief in support of attempts by the Detroit Free Press to gain access to U.S. Marshals Service mugshots under the Freedom of Information Act. The trial court initially ruled in favor of the Free Press based on binding precedent in the Sixth Circuit. The DOJ has appealed, and is asking the Sixth Circuit to overrule its current precedent and to hold that mugshots are protected from disclosure under FOIA’s privacy exemption. The brief argues that there is no legitimate privacy interest in photographs of persons who have been arrested, indicted and have appeared in open court; and if there was, that interest would be outweighed by the public interest in disclosure.
ONA and 20 other media organizations joined an amicus brief supporting an appeal by television station KBMT in the Texas Supreme Court. KBMT is challenging an appellate court’s ruling that the station could be held liable for broadcasting a report on the contents of public records relating to disciplinary actions taken against a pediatrician for having sexual contact with a patient. In most American jurisdictions, the fair report privilege allows members of the press to report on the contents of public records without independently verifying the accuracy of their contents. However, a Texas appeals court held that KBMT could face libel claims because it failed to independently uncover and report a fact not disclosed in the official records – that the patient in question was an adult. The brief argues that the appeals court decision would undermine the Texas fair report privilege and chill reporting on matters of public concern.
December 15, 2014
ONA, along with 27 other media organizations, joined a brief filed in the Second Circuit in support of Microsoft’s appeal of a district court order upholding a U.S. warrant requiring the production of customer emails stored on Microsoft cloud servers in Ireland. The brief focuses on the negative impact allowing such warrants would have on protection of confidential sources and news-gathering in general, and also argues that allowing the U.S. to unilaterally seize emails held anywhere in the world could be expected to embolden foreign governments to do the same, making it easier for them to collect information on journalists who publish politically sensitive stories.
December 5, 2014
ONA joined a brief in the case of Davis v. Cox., involving an attempt to have Washington State’s anti-SLAPP law ruled unconstitutional. The plaintiffs argue that its provisions allowing early dismissal of SLAPP suits violate their right to petition and right of access to courts. The amicus brief argues that the law does not violate any of plaintiffs’ rights, particularly because there is no right to bring the kind of frivolous suits the anti-SLAPP law is designed to protect against.
December 2, 2014
ONA joined with 50 other media organizations in an application to appear as a friend of the court concerning Emma F., a case involving a prior restraint order against the Connecticut Law Tribune enjoining a reporter from publishing information obtained in open court and from juvenile court records in a custody dispute. ONA is asking the court to vacate the injunction.
December 1, 2014
ONA joined a coalition of media groups in addressing concerns regarding the U.S. Forest Service proposal to incorporate a directive into the Forest Service Handbook to finalize guidance for the evaluation of proposals for still photography and commercial filming on National Forest System Lands. The coalition is concerned that, as written, the final directive will still allow for uncertainty in the permitting process which, in turn, leads to abridgements of the First Amendment rights of the public and the press.
November 7, 2014
ONA joined a brief drafted by the Reporters Committee for Freedom of the Press in regard to Courthouse News Service v. Planet, a case before the Ninth Circuit that challenges a California court’s practice of denying public access to civil complaints for days or weeks after filing. A lower court’s decision held that there is no right of access to civil complaints when filed, and that the right attaches only when the complaint is first subject to a hearing to which the public has a First Amendment access right.
Update: June 26, 2015
The Ninth Circuit overturned the district court’s ruling and ordered that the case be sent back for reconsideration by a different judge, making it clear that the original judge had shown an unacceptable lack of appreciation for the First Amendment interests at stake. The decision contains strong language regarding the right of access to records in civil cases.
September 30, 2014
ONA joined an amicus brief and signed onto a coalition letter, both drafted by the Reporters Committee for Freedom of the Press: The brief is in Smith v. Obama, a case before the Ninth Circuit that raises Fourth Amendment challenges to the federal government’s bulk collection of telephone records. The brief focuses on the consequences these mass data collection efforts can have on journalists. The letter is a joint letter to the Department of Justice (DOJ) from 44 news organizations calling for the inclusion of the treatment of journalists in the DOJ’s planned investigation into police misconduct during the unrest in Ferguson, Mo.
August 29, 2014
ONA and 24 other organizations signed a letter drafted by the Reporters Committee for Freedom of the Press to the members of the Privacy and Civil Liberties Oversight Board (PCLOB), calling for the board to examine the ways national security surveillance programs are collecting and using newsgathering materials. Earlier this year, when the PLCOB issued its report on the Patriot Act Section 2015 program and the operation of the FISA court, it cited a previous RCFP coalition letter addressing metadata collection issues.
August 11, 2014
ONA joined the Reporters Committee for Freedom of the Press and other media organizations in filing four briefs. Summaries of these cases are available on RCFP’s briefs page:
National Review v. Mann argues that an order denying a special motion to dismiss under the DC anti-SLAPP statute is immediately appealable to the DC Court of Appeals. The brief also argues that in determining whether an allegedly defamatory statement is protected opinion under the First Amendment, courts must consider the full context in which the statement was published.
North Jersey Media Group v. Bergen County Prosecutor’s Office challenges a New Jersey appellate decision allowing police to respond to public records requests by neither confirming nor denying the existence of responsive records.
Yelp v. Hadeed Carpet Cleaning was filed in the Virginia Supreme Court, and challenges an interpretation of a state statute that allows disclosure of the identities of anonymous online review posters based on mere suspicions that they may not have been real customers.
Jewel v. NSA was filed in federal district court in California and supports AT&T customers who have challenged the NSA’s wholesale surveillance of customer communications.
July 8, 2014
In a letter to President Obama, ONA and nearly three dozen other news media organizations urged the administration to be more transparent in how it deals with journalists. Specifically, the letter expressed frustration that “public agencies have increasingly prohibited staff from communicating with journalists unless they go through public affairs offices or through political appointees.”
The letter calls on the administration to reverse these policies and that the president “issue a clear directive telling federal employees they’re not only free to answer questions from reporters and the public, but actually encouraged to do so.”
Update: On June 23, The Standing Committee at the Senate Gallery denied SCOTUSblog’s appeal for receiving credentials.
May 22, 2014
ONA joined a letter drafted by the Reporters Committee in defense of SCOTUSblog’s application for Senate credentials, and urging the U.S. Senate Daily Press Gallery to reconsider its denial. “We encourage this committee to recognize SCOTUSblog as a qualifying news organization that is staffed by professionals engaged in the practice of journalism,” the letter states. “We hope the upcoming meeting will be a chance for parties to come together and reach a resolution that respects the spirit of the Gallery’s guidelines, promotes the inclusion of alternatively structured news outlets, and continues to make the provision to the public of high-quality daily journalism about the activities of the Senate its highest goal.”
May 7, 2014
In another SLAPP-related case, ONA and 16 other news media organizations and trade associations filed a brief urging the U.S. Court of Appeals for the Second Circuit to affirm a lower court’s ruling dismissing a lawsuit filed by Sheldon Adelson against David Harris, Mark Stanley, and the National Jewish Democratic Council. The suit was brought after a petitions was spread calling Adelson’s money, which was being used to support Republican candidates in the 2012 election, “dirty” or “tainted.” The suit was dismissed under anti-SLAPP (Strategic Lawsuits Against Public Participation) provisions, since the “defendants’ statements provided their audience with direct access to the source material summarized via hyperlinks.”
Most importantly, the brief says the decision “reflects the modern reality that readers of Internet publications view hyperlinks as an integral part of the overall context of online content.”
April 28, 2014
ONA joined with 15 other media organizations in filing an amicus brief to the U.S. District Court in Idahoarguing the constitutionality of the so-called “Ag gag” law whereby audio and video recording at agricultural production facilities could become illegal.
“The intention is obviously to stop activists who wish to record animal abuse or other improprieties in the food production industry,” the brief states, adding that “as a result, those who seek to inform the public about abuses are more likely to be prosecuted simply because they sought to document the actions they are revealing. Because unsubstantiated allegations can lead to libel suits and charges of interference with business ￼￼￼￼￼operations, it seems particularly disconcerting that the state would seek to criminalize the act of gathering documentary evidence of a violation.”
Update: In December 2014, ONA joined the same coalition of amici in supporting a motion seeking a ruling that would strike down the statute, arguing that the Idaho law infringes First Amendment rights, including the right to inform the public about important matters such as food safety.
April 22, 2014
ONA and 28 other media organizations submitted an amicus brief to the D.C. Court of Appeals in the case of Competitive Enterprise Institute and National Review v. Michael Mann. Defendants in the case argued that the case should be dismissed under D.C. anti-SLAPP statute. That motion was denied by the D.C. Superior Court. This brief urges the Appeals Court to find that denials of anti-SLAPP motions are immediately appealable.
“This decision would be consistent with at least three federal circuits and two state high courts,” the brief states, “which have found that anti-SLAPP statutes are meant to confer immunity and that the right not to be exposed to the costs and delays of litigation will be irreparably lost denials of motions to dismiss under the anti-SLAPP law are not immediately appealable.”
April 2, 2014
ONA and 30 other news media organizations and trade associations have filed a brief and a motion of leave in the U.S. Court of Appeals to support a DC Circuit Court’s findings that the District of Columbia’s anti-SLAPP statute apply in the case of Abbas v. Foreign Policy. The brief argues that this case is a “paradigmatic example of the type of suit that anti-SLAPP laws are designed to discourage: where legal process is wielded as a weapon to punish political debate and criticism over matters of significant public moment.”
March 10, 2014
Along with 13 other media organization, ONA joined a brief written by the National Press Photographers Association in the Supreme Court cases Riley v. California and United States v. Wurie regarding warrantless searches of cell phones. As the brief says, “the case centers on whether the Fourth Amendment permits police officers to search the digital contents of an arrestee’s cell phone.” In the brief, we argue that this such a search would also violate a person’s First and Fifth Amendments and should not be allowed.
“It is essential for the Court to make clear that a search warrant is required in cases like these,” we wrote, “to prevent changing technology from eroding our most basic rights.
Update: On June 25, the Supreme Court ruled against warrantless searches of cell phones, as we argued in our brief.
Feb. 19, 2014
Along with 24 other media organizations, ONA joined a brief arguing that Google not be allowed to seal all court documents relating to a class-action civil suit against the search engine giant. Users of Google’s gmail service are accusing the company of violating wiretap laws. In responding to the suit, Google has asked the U.S. District Court for Northern California to seal all documents. The lawyers bringing the suit did not argue against the motion, so ONA and our media colleagues are doing so.
“Neither party has presented sufficiently specific or compelling reasons to hide documents from public view,” we argue in the brief. “Instead, the parties have asked the Court to reflexively seal thousands of pages of documents in a case that could impact the privacy rights of millions of Americans.”
Update 1: On March 3, Google responded to our brief, arguing that “no valid reason” for denying Google’s motion to seal and that “Google’s pending motions have already been approved for sealing by the Court.”
Update 2: On March 7, amici filed a reply to Google’s response. In that reply, amici argue that “Google’s Response does not alter the fact that the parties have failed to show compelling reasons to seal materials relating to class certification, or even good cause to do so. The strong presumption of public access to court records should apply, and the Court should deny the parties’ motions to seal in their entirety.”
Update 3: On March 31, amici filed a brief arguing against a motion made by Google to redact portions of a transcript of a public hearing. The hearing, held Feb. 27, was held in open court. Transcripts of the hearing were made available to the public. In its request, Google asks the court to re-seal information that was discussed in open court. Amici’s filing points out that “courts have repeatedly rejected after-the-fact attempts to redact information disclosed at public hearings.”
Update 4: On Aug. 6, Judge Koh granted our motion to intervene and ordered the unsealing of most of the documents we were seeking. While we did not get everything we requested, Judge Koh held that a party like Google must offer “compelling reasons” for the sealing of documents filed in support of or opposition to class certification. This is the highest standard established by the Ninth Circuit and it will apply, at least in Judge Koh’s court, in all future class action cases. Judge Koh also held that the transcript of the class certification hearing held in open court, which Google had sought to redact, cannot be redacted retroactively. Both of these points of law are major victories for press access.
Jan. 13, 2014
ONA was one of 69 international media organizations that wrote a letter to the European Court of Human Rights regarding the liability of an online news portal for third-party defamatory comments posted by readers on the portal’s website.
The case arose over material about a ferry company which was published in 2006 on Delfi, one of Estonia’s largest internet news sites. The ferry company’s major shareholder sued Delfi and obtained judgment from an Estonian court, which said the comments were defamatory and that Delfi was responsible for them. Delfi’s appeal was rejected by Estonia’s Supreme Court. The company then turned to the European Court of Human rights, which on first review, upheld the Estonian decision.
Our letter is directed at the Grand Chamber of the European Court of Human Rights, urging it to reverse the previous decisions.
Update: On Feb. 18, the Grand Chamber panel agreed to refer the case to the Grand Chamber for a re-hearing.
Jan. 10, 2014
ONA and 26 other media organizations submitted an amicus brief to the U.S. Court of Appeals for the Seventh Circuit arguing that Washington state’s anti-SLAPP (Strategic Lawsuits Against Public Participation) statute should apply in federal court. A U.S. District Court had refused to apply the law in a suit, prompting an appeal. This brief is in support of that appeal. As the brief states:
Washington’s anti-SLAPP law facilitates speech on matters of public concern that lies at the heart of the First Amendment. Failing to apply the law in federal court would significantly weaken its impact and limit the utility of this important weapon against censorship by means of meritless litigation.
Nov. 26, 2013
ONA joined with 25 other news organizations in an amicus brief to the U.S. Foreign Intelligence Surveillance (FISA) Court in support of motions to the court to release its records. The brief argues that “the right of access to court proceedings and documents belongs to the general public and can be vindicated by any member of the public,” and that “all members of the public share an equal right of access to the courts.”
Regarding national security, the brief makes clear that “the need for openness is especially important in light of the recent revelations about the programs [the FISA] Court has sanctioned and the government’s expansion of surveillance beyond what [the] Court has indicated it intended.”
Nov. 21, 2013
ONA joined with 34 other news organizations in a letter to White House Press Secretary Jay Carney to protest the way the White House has limited news media photographers and video journalists from covering public events involving the President,instead releasing White House photographs of such events. The letter identifies several recent examples of this practice, including the President’s July 10 meeting with members of the Congressional Hispanic Caucus and an Oct. 11 meeting with Pakistani human rights activist Malala Yousafzai.
As the letter says:
The right of journalists to gather the news is most critical when covering government officials acting in their official capacities. Previous administrations have recognized this, and have granted press access to visually cover precisely these types of events, thus creating government transparency. It is clear that the restrictions imposed by your office on photographers undercut the President’s stated desire to continue and broaden that tradition. To exclude the press from these functions is a major break from how previous administrations have worked with the press.
Nov. 19, 2013
ONA and 13 other news media organizations filed an amicus brief in U.S. District Court seeking to halt the NSA’s wholesale collection of phone call metadata. The brief argues that the program violates the First Amendment, section 215 of the Patriot Act, and that it represents the “corrosive effect that mass call tracking has on the ability of the media to report on matters of public interest.”
Update: On Dec. 27, the U.S. District Court for the Southern District of New York ruled that the bulk collection of telephony data is lawful. The full opinion can be read here.
Nov. 13, 2013
ONA and 19 other media organizations filed an amicus brief in the D.C. Court of Appeals urging the court hear an appeal regarding an anti-SLAPP (Strategic Lawsuit Against Public Participation) denial. The brief argues that denials of anti-SLAPP motions are immediately appealable, since anti-SLAPP lawsuits “are meant to confer immunity and that the right not be exposed the costs and delays of litigation will be irreparably lost if not immediately appealable.”
Sept. 18, 2013
In an open letter to members, ONA outlined the work we’ve done in helping to shape the Free Flow of Information Act recently passed by the Senate Judiciary Committee. In addition to highlighting our efforts, the letter also explains why we believe FFIA is a positive development for journalists and will serve our members well.
Sept. 9, 2013
In a letter to the Senate Judiciary Committee, ONA and 71 other media organizations expressed support for a federal shield law, known in Congress as the Free Flow of Information Act (S. 987). As we wrote in the letter:
We believe that the Free Flow of Information Act sets forth reasonable standards to guide federal judges in assessing requests to compel journalists and their service providers to reveal information that could harm confidential sources and the newsgathering process.
ONA helped to shape the bill by ensuring protection extends as broadly as possible and not just to “traditional” journalists working for legacy media organizations. It is critical that coverage applies to all journalists bringing vital information to the public, no matter their employer, the technology they use, or the job title they hold. Similarly, all journalistic organizations, be they newspapers, wire services, TV stations, blogs, or entities not yet imagined, deserve the same protection.
We will continue to track FFIA as it wends its way through Congress to make sure its protections extend to all journalists.
Update: On Sept. 12, the Senate Judiciary Committee passed the bill. The House has yet to take up a similar measure.
Sept. 6, 2013
ONA took two actions on behalf of members today. In the first, ONA and 21 other media organizations filed comments with the department of Health and Human Services (HHS) that Medicare physician billing data must be posted online. Since 1979, such data has been unavailable through FOIA because of concerns that doctor personal privacy rights would be violated. However, in 2012, Dow Jones & Company challenged that rule, prompting HHS to seek comment on whether doctors should have a privacy right in Medicare payment data and, if not, what form and means of disclosure HHS should make the records available.
The comments, drafted by the Reporters Committee for Freedom of the Press (RCFP), argue that, “as with other similar federal spending, the idea that doctors accepting billions of dollars in Medicare and Medicaid benefits have a privacy interest in related billing records is simply an outdated view. Given the scope of federal health programs and the potential for abuse, the public is naturally curious about how the government is administering and monitoring such programs.
Additionally, as RCFP argued, “online disclosure is essential because of:
- the exponential growth in Medicare claims and the concurrent potential for fraud, waste and abuse
- the administration’s overall push for proactive release of datasets frequently sought by the public
- the potential backlog of Freedom of Information Act requests if the data is not put online
- and the public interest reporting that flows from the ability to crunch this kind of data.
“Journalists play an important role in informing the public about what is happening with complex issues, such as health care, and we’ve seen some incredible, award-winning investigative reporting on the issue,” said Reporters Committee FOI Director Mark Caramanica. “Electronic access to these granular Medicare payment datasets would adhere to the spirit and letter of FOIA and administration transparency policy without violating the privacy of physicians or patients.”
In the second action, ONA joined an amicus brief with the U.S. Supreme Court arguing that a decision by the Colorado Supreme Court in a defamation suit be overturned. At issue is whether falsity must be considered in defamation. ONA and the 15 other news organizations argue that is must. As the brief, written by the Reporters Committee for Freedom of the Press (RCFP), notes, “Were other courts to follow the lead of the Colorado Supreme Court by upholding crippling defamation verdicts for substantially true speech, the crucial ‘breathing space’ for speech matters of public concern that allows amici to function would dissipate, casting a chill over speech at the heart of the First Amendment.”
The case in question is Air Wisconsin v. Hoeper, in which pilot William Hoeper’s co-workers made statements to the Transportation Safety Administration expressing concern about Hoeper’s behavior, employment status, access to a firearm and the fact that he was about to board a commercial airliner. As RCFP explains:
The Aviation and Transportation Security Act, passed by Congress in the days following the Sept. 11 terrorist attacks, applied the “actual malice” standard for airline workers reporting suspicious activity to the TSA. The Colorado trial court and state Supreme Court, however, made no determination of the statement’s falsity and allowed a $1.4 million defamation suit filed by Hoeper to stand.
The brief argued that, “in this case, the Colorado Supreme Court impermissibly removed falsity from the actual malice equation.” It denied ATSA immunity by finding that the airline employees acted with actual malice, while expressly declining to determine whether the statements at issue were materially false as a matter of law.
“The court’s ruling that a statement can be found to have been made with actual malice without regard for whether it is substantially true is inconsistent with a long line of legal precedent,” said Reporters Committee Legal Defense Director Gregg P. Leslie.
Sept. 4, 2013
The NSA’s broad gathering of phone records is threatening journalists’ abilities to gather news and protect confidential sources and must be ended, according to a friend-of-the-court brief filed by the Reporters Committee for Freedom of the Press and joined by ONA and 17 other news media organizations.
The brief is in support of a motion by the American Civil Liberties Union to halt the National Security Agency’s wholesale collection of telephone metadata. Our brief focuses on the program’s severe impact on the ability of journalists to work with confidential sources:
“There is a long history in this country of news media reporting that has exposed abuses of official power, and when that power is brought to bear in a way that directly threatens the ability of journalists to gather news and to promise confidentiality to their sources, it is ultimately the public that suffers. Many of the most significant stories in the history of American journalism have relied heavily on confidential sources.”
The brief comes as journalists are working with the U.S. Justice Department to establish guidelines for investigating leaks and subpoenaing journalists. But that cooperation could be for naught if the NSA program is left as is. As Reporters Committee Executive Director Bruce Brown explained, “In the face of such an overbroad telephone tracking program, that cooperation is almost rendered pointless if the government can smother routine newsgathering with ever-present surveillance.”
Aug. 21, 2013
ONA, along with 44 other news media organizations, has joined a letter drafted by the Reporters Committee for Freedom of the Press asking U.S. Attorney General Eric Holder to withdraw a Department of Justice subpoena issued to reporter James Risen, compelling him to testify in a criminal case investigating the leaks of government secrets.
The letter comes after the Justice Department issued a new policy on media subpoenas, which Holder announced in a report to the president on July 12. The coalition wrote the letter in support of a request by Risen’s attorneys to the DOJ to abandon the subpoena. Pursuing Risen’s testimony, his lawyers and the coalition argues, is inconsistent with the new Justice Department policy.
The coalition wrote that “the new Department policy authorizes a subpoena to a member of the news media only ‘as a last resort, after all reasonable alternative investigative steps have been taken, and when the information sought is essential to a successful investigation or prosecution.’ At this stage in the case, the question before the Department is more one of policy than law, and from that perspective the court proceedings below support withdrawal of the subpoena despite the outcome in the Fourth Circuit.”
As the RCFP notes in its press release, Holder’s “Report on Review of News Media Policies,” promising stronger protections for journalists, came out a week before the U.S. Court of Appeals in Richmond (4th Cir.) ruled that Risen must testify in the trial of Jeffrey Sterling, a former C.I.A. officer and alleged leaker.
“We know that the Attorney General worked very hard to ensure that the revised DOJ guidelines would acknowledge that subpoenaing a reporter about confidential sources is truly a last resort,” said Reporters Committee Legal Defense Director Gregg P. Leslie. “We certainly hope that the Justice Department will abide by these standards and withdraw the Risen subpoena.”
June 21, 2013
We joined a letter drafted by the Reporters Committee for Freedom of the Press that called for revising the guidelines the Department of Justice follows regarding the issuance of subpoenas involving journalists. The letter outlined several proposals for updating the guidelines, including:
- Adding a statement of principles as an introduction to the guidelines
- Providing journalists notice and an opportunity to be heard
- Expanding the guidelines to include forms of newsgathering materials and covering all methods the Department uses to obtain such information
- Generating an annual report regarding media-related demands by the Department
- Establishing an annual meeting between journalists and the Department
Update: On July 12, the Justice Department revised its guidelines governing investigations and other law enforcement matters that involve journalists. As our colleagues at the Reporters Committee for Freedom of the Press said:
The proposal announced by the Attorney General today adopts several improvements to the existing guidelines, and would provide additional protections to working journalists. We continue to believe that a an impartial judge should be involved when there is a demand for a reporter’s records, because so many important rights hinge on the ability to test the government’s need for records before they are seized. We endorse the Attorney General’s call on Congress to pass legislation to facilitate judicial review of all demands for press records. We commend the Attorney General for taking seriously the concerns of the press, and we look forward to reviewing the actual language of the proposed new regulation when it is available.
June 6, 2013
In addition to the June 3 letter ONA joined (see below), ONA also joined an amicus brief written by the Reporters Committee for Freedom of the Press asking the U.S. District Court to make available various records regarding the trial of Bradley Manning. Documents not made available include pretrial rulings and even the court’s docket. And nearly 85 documents that were available online through the U.S. Army’s Freedom of Information Act Electronic Reading Room were removed.
The letter argues that this lack of transparency violates the First Amendment right of access, and is antithetical to any notion of accountability and oversight.
Update: On June 19, the court denied the injunction. The ruling came after the government released many of the requested records and said it would release additional records on a “rolling basis.” In the ruling, the court determined that since the government was now releasing documents, an injunction was no longer necessary.
June 3, 2013
A coalition of more than 20 major media organizations, including ONA, wrote a letter to the U.S. Army Military District Court of Washington to request press passes for independent stenographers to create transcripts from the trial of Bradley Manning.
The court has refused to release official transcripts, so more than $58,000 was raised to pay for the two stenographers through a crowdfunding campaign. Various media organizations requested at least 350 press passes, of which 70 were granted. The two stenographers were not among those who received passes.
Update: The court-martial has since made available additional seats in the press gallery for privately retained stenographers to create contemporaneous, unofficial transcripts of the open sessions of the trial proceedings. Daily transcripts are now being posted online.
Read the letter in its entirety.
May 16, 2013
ONA, along with other media companies and organizations, joined an amicus brief in support of journalist Jana Winter, who says a New York trial court erred in issuing a subpoena for her testimony concerning confidential sources used in her reporting on the James Holmes Aurora, Colo., theater-shooting case.
The brief, filed in the Appellate Division of the New York Supreme Court, supports Winter’s argument that the New York trial court should not have issued the subpoena because Colorado recognizes only a qualified reporters’ privilege, whereas New York has a long history of protecting reporters against compelled testimony concerning confidential sources. Our argument concentrates on New York’s tradition of protecting reporters against compelled testimony concerning their sources and the public policy arguments against enforcement of a Colorado subpoena against a New York journalist.
At issue is the question of whether the New York trial court should have considered the differences between New York’s and Colorado’s reporters’ privilege laws before issuing the subpoena and whether a New York court has an obligation to protect reporters in New York against subpoenas for testimony in jurisdictions that are less protective of reporters.
Update, Aug, 20, 2013: The Appellate Division of the Supreme Court of New York ruled, 3-2, that New York law does not protect Winter from the Colorado subpoena. Fox News has announced that it will appeal to the New York Court of Appeals, the highest court in New York.
Update 2, Dec. 10, 2013: The New York Court of Appeals quashed the subpoena that would have required Jana Winter to testify in Colorado about the identity of a confidential source. As Fox News reported, “the ruling spares Winter from appearing before Arapahoe County District Court Judge Carlos Samour Jr. on Jan. 3, where she would have been ordered to reveal who told her about a chilling notebook gunman James Holmes sent to his psychiatrist before the shooting in July 2012. Winter’s exclusive story on July 25, 2012, was picked up by news outlets around the world. Winter had steadfastly vowed that she would go to jail rather than reveal her sources for the story.”
The court wrote in its ruling that “it would violate New York public policy for a New York court to issue a subpoena directing a New York reporter to appear at a judicial proceeding in another state where there is a substantial likelihood that she will be directed to disclose the names of confidential sources or face being held in contempt of court.”
Update 3, May 28, 2013: The U.S. Supreme Court upheld the New York Court of Appeals’ decision, meaning Winter could not be compelled to testify in Colorado, as she’s covered by New York’s shield law.
May 14, 2013
ONA joined with the Reporters Committee for Freedom of the Press and 50 other media organizations in issuing a letter to the Department of Justice (DOJ) regarding its subpoenaing of telephone records belonging to The Associated Press.
The DOJ’s actions — gathering two months of records for more than 20 telephone lines, both from major AP bureaus and the home and cell phones of individual AP journalists — is a startling and potentially dangerous overreach of its powers, powers that are strictly limited under the DOJ’s own guidelines for issuing subpoenas to the news media for testimony and evidence.
The range of media organizations that have signed on to the letter and the speed with which we have reacted gives some sense of how strongly ONA — and the journalism community at large — feels about the DOJ’s intrusion and its potential impact on our work in the service of the public. As outlined in the letter, ONA has requested a swift response from the DOJ on a variety of related issues.
April 22, 2013
The Online News Association joined a friend-of-the-court brief written by the Reporters Committee for Freedom of the Press. The brief addresses a U.S. Court of Appeals case concerning the role of the court in reviewing national security exemptions to FOIA requests.
“The judiciary has a congressionally mandated responsibility to serve as a check on Executive Branch overclassification and, as such, should review and order the disclosure of memos detailing federal policy on drone strikes against U.S. citizens,” RCFP, ONA and 36 other media organizations wrote in the brief.
As RCFP explained, in New York Times v. Dept. of Justice which is now before the U.S. Court of Appeals (2nd Cir.), The New York Times and American Civil Liberties Union are seeking to overturn a District Court ruling for summary judgment in favor of the government that deferred to the Executive Branch’s decision regarding classification. The Times and the ACLU have requested copies of memos from the Department of Justice Office of Legal Counsel explaining the legal issues involved in the use of drones against U.S. citizens.
The full brief is available here.
March 4, 2013
ONA Board President Jim Brady attended a meeting with NCAA officials and representatives of five other national media groups to discuss issues raised in our Feb. 13 letter. The group agreed on the following:
- The NCAA agreed to set up a call with our organizations after the upcoming basketball tournament to discuss the establishment of a permanent working group to address outstanding media issues.
- The NCAA will include media groups in future discussions with the Division I men’s basketball committee regarding the seating of working journalists at the tournament.
- Editors will be invited to upcoming meetings with the NCAA and conference officials and have the opportunity to introduce discussion on injury reporting standards.
- NCAA officials said there would be no numerical restrictions on social media posting during its tournament events.
- NCAA officials will contact the Pac-12 Conference to inform the league that there is no longer a policy limiting by number live tweets during college basketball or football games.
- The NCAA said there would be no change to existing policies on photo positions at the basketball tournament.
Representing the media organizations were: Tim Franklin, co-chair of ASNE’s FOI Committee; Gerry Ahern, president of APSE; John Cherwa, chair of APSE’s Legal Affairs Committee; David Bralow, counsel for NAA; Kevin Goldberg, counsel for ASNE; Sonny Albarado, president of SPJ; Jim Brady, president of ONA; and Mike Borland, president of NPPA.
Representing the NCAA were: Bob Williams, vice president of ommunications; Erik Christianson, managing director of external affairs, and Scott Bearby, general counsel.
The Sunshine in Government Initiative, of which ONA is a supporting member, continues to advocate for open access on behalf of our members. Recent SGI activity includes:
- Supporting the House Oversight and Government Reform Committee, which sent a bipartisan letter to the Justice Department’s Office of Information Policy (OIP) asking pointed questions about agency backlogs, delays in responding to FOIA requests, and the Justice Department’s efforts to encourage agency compliance with FOIA. The purpose of the letter was to get OIP on record with specific commitments, however the deadline for OIP to respond, Feb. 22, was missed. We’ll provide an update when OIP responds.
- To elevate interest in FOIA issues generally and draw attention to “FOIAonline” (the so-called FOIA Portal), SGI research analyst Chris Green is heading up an effort to encourage people to contact agencies and ask if the agency plans to move the FOIAonline system. Read about the calls, and follow the efforts on Twitter at #FOIAsurvey.
- SGI’s Rick Blum appeared on Fox News regarding White House transparency after the White House press corps complained about the lack of access to Obama during a long golfing weekend. Blum noted several ways the administration’s stated commitment to transparency has limits.
ONA joined 9 media organizations, including the American Society of News Editors, in sending a letter to NCAA President Mark Emmert raising concerns about the actions NCAA member institutions have taken to restrict journalists from fully covering local teams. There are issues regarding access to facilities, players and coaches, as well as restrictions on the publication of blog posts and use of social media, including Twitter and Facebook. As Tim Franklin and Andy Alexander of ASNE wrote, “the letter reiterates our view that the NCAA and the media should be partners in sports coverage with an eye toward producing stories of maximum interest and information to the public. We have used strong language that we feel is absolutely necessary to get the NCAA’s attention.” For six months, the NCAA has rebuffed efforts on the part of Franklin to discuss these matters, and it’s our hope that this letter will finally spur NCAA president Mark Emmert to work with us and our media brethren.
Jan. 30, 2013
ONA joined 37 media organizations in sending a letter to U.S. Attorney General Eric H. Holder Jr., asking him to rescind a recently enacted Marshals Service policy blocking the release of federal criminal booking photographs.
The letter, drafted by the Reporters Committee for Freedom of the Press (RCFP), argued that “the new policy stifles the public’s lawful access to booking photographs under FOIA without legal justification.”
As RCFP explains, the letter was prompted by a Dec. 12 Marshals Service memo stating that it would no longer comply with Freedom of Information Act requests for booking photographs as required under appellate court precedent in the U.S. Court of Appeals in Cincinnati (Sixth Circuit).
Jan. 2, 2013
ONA joined a Reporters Committee for Freedom of the Press “friend-of-the court brief,” filed with the U.S. Supreme Court, concerning a Virginia law restricting Freedom of Information Act requests to state residents. Although the law includes a narrow exemption for media organizations that circulate or broadcast in the state — with no mention of digital media — ONA joined with 52 other media organizations to argue for overturning the law.
The challenge to Virginia’s FOIA law comes in the form of McBurney v. Young. The RCFP brief asks the justices to reverse a Fourth Circuit decision upholding the law’s limits on access to public records. In the brief, RCFP argued that the law harms “the media’s ability to report on regionally and nationally significant stories and provide the public with complete and comprehensive information about the country as a whole.”
Citizenship references similar to Virginia’s exist in public records statutes in Alabama, Arkansas, New Hampshire, New Jersey and Tennessee. “If this Court fails to void VFOIA’s citizenship provision, it would be in effect allowing states to continue practices of preventing all out-of-state media from obtaining public records, effectively shutting out companies and persons who cannot be considered citizens of those states,” RCFP argued in the brief. “Affirmance could also embolden other states to adopt similarly restrictive legislation, further inhibiting the national press corps’ ability to report on matters of public importance at the local and regional level.”
Update: On April 29, the Supreme Court unanimously upheld the Virginia statute.
Oct. 31, 2012
ONA joined an amicus brief filed by the Reporters Committee for Freedom of the Press regarding judicial review of FOIA classification. The case, Center for International Environmental Law v. Office of the United States Trade Representative, is before the D.C. Circuit court. Essentially, the government is arguing that a court cannot overrule an agency’s classification determination with regard to a FOIA request. The brief we joined makes the argument that FOIA statutes explicitly assign courts that very role. You can read the brief here.
Update: On June 7, 2013, the U.S. Court of Appeals handed down a decision that, as the Reporters Committee for Freedom of the Press said, determined “that the U.S. Office of the Trade Representative had properly withheld a one-page document under FOIA’s Exemption 1, which allows agencies to withhold classified documents.”
The decision, written by Judge A. Raymond Randolph, said “courts are ‘in an extremely poor position to second-guess’ agencies who claim the disclosure of classified information would harm national security or foreign policy. But, Randolph wrote, ‘that is just what the district court did in rejecting the agency’s justification for withholding the white paper.’”
Sept. 20, 2012
ONA held a day-long “Law School for Journalists” workshop at the annual conference. High-profile media lawyers taught classes on copyright and fair use; newsroom and newsgathering law; the business-side legal issues that arise in running a digital news operation (data collection and privacy, advertising compliance, spam regulation, trademarks and domains names, etc.); access and FOIA; the legal issues involved in forming a digital news business; and even a class on international legal issues.
June 14, 2012
ONA signed on to a letter drafted by The Reporters Committee for Freedom of the Press asking the U.S. Supreme Court to allow live audio and video coverage of the announcement of its decision in the three cases involving proposed federal health-care legislation. More than four dozen other media organizations also signed on to the letter sent to Chief Justice John Roberts.
The full text of the letter can be found here.
April 3, 2012
ONA joined the Sunshine in Government Initiative (SGI), a coalition of media groups committed to promoting policies to make the government accessible, accountable and open.
ONA sees its participation as a way to support freedom of information and to keep members up to date on critical issues of government transparency that impact their daily work, from access to information, publishing data and issues of privacy. Benefits for ONA’s members include tools to help support Freedom of Information requests; early warnings, in-depth analyses and reports on FOI-related legislation, and frequent summaries of issues relating to access to public information.
SGI strongly supports strengthening the federal Freedom of Information Act (FOIA) and urged Congress to pass the 2007 FOIA amendments, which created the Office of Government Information Services to mediate disputes between requesters and agencies. SGI has fought back against proposals to write FOIA exemptions into laws. With more than 250 such laws on the books, SGI monitors new legislation, analyzes any impact on transparency, raises awareness of the overuse of exemptions and works to narrow or defeat unnecessary new exemptions and limit their use.
So far in 2012, SGI succeeded in helping Congress understand how the news media handles reporting based on unauthorized disclosures of classified information, allowed the public easy access to over 600 stories based on the federal Freedom of Information Act, and stood up to efforts to hide specific information from the public by putting it beyond its reach under FOIA.
Current SGI members include: The American Society of News Editors, The Associated Press, Association of Alternatives Newsmedia, National Newspaper Association, Newspaper Association of America, Radio Television Digital News Association, Reporters Committee for Freedom of the Press and Society of Professional Journalists.
March 2, 2012
Co-signed a letter written by the Reporters Committee for Freedom of the Press urging the U.S. Department of Defense to put in place regulations providing for timely access to court records during the court martial of Pfc. Bradley Manning. Manning has been accused of giving thousands of classified documents to the website WikiLeaks.
Jan. 20, 2012
ONA joined an amicus brief filed by the Reporters Committee for Freedom of the Press in the case of U.S. v. Xavier Alvarez.
In this case, a member of a California municipal water board falsely claimed in 2006 that he had received the Medal of Honor. The member, Xavier Alvarez, was then convicted of violating the Stolen Valor Act, which makes it a federal offense to falsely claim to have received certain military decorations. The conviction was later overturned by the Ninth Circuit.
The Justice Department has appealed the ruling to the U.S. Supreme Court. ONA joined the brief arguing that the U.S. government cannot be the arbiter of what is true. Furthermore, the brief argues that more speech is the solution to situations such as this, as shown by the press publishing the truth and outing Alvarez.
A government brief that responds, in part, to our amicus brief, can be read here.
On June 28, 2012, the U.S. Supreme Court struck down the Stolen Valor Act. In so doing, Justice Anthony Kennedy, writing for the Court, referred to the above amicus brief to show how public exposure can expose liars and actually enhance respect for the honors. The decision can be found here.
“As Lamar Smith continues to live in his fantasy world that there’s no real opposition to SOPA, more and more groups keep coming out against it. The latest is a big one — and a big surprise. The Online News Association has officially come out against both SOPA and PIPA. The letter is thorough, detailed and comprehensive about why the bills are problematic, focusing mainly on SOPA. And it’s unequivocal in its condemnation of the bill.”
Sept. 22, 2011
ONA, in partnership with Harvard’s Berkman Center for Internet & Society and the UNC Center for Media Law and Policy, presented Law School for Digital Journalists as part of the Pre-Conference day at ONA’s 2011 Conference & Awards Banquet in Boston.
July 1, 2011
ONA joined an amicus brief filed by The Reporters Committee for Freedom of the Press in the case of Baker v. Goldman Sachs.
The brief stems from a civil case in which Janet and James Baker accuse Goldman Sachs of breach of fiduciary duty. The Bakers merged their company, Dragon Systems, with a Belgian firm named L&H, only to allege, after the deal closed, financial fraud at L&H.
As part of the Baker’s suit against Goldman Sachs, who handled the merger, the Bakers sought the testimony of Jesse Eisinger, a Wall Street Journal reporter. Eisinger co-authored a series of articles about L&H that raised questions about L&H and noted possible fraud involving the company.
The Bakers issued a subpoena to depose Eisinger to establish how he, a journalist, uncovered the misconduct the Bakers’ say Goldman Sachs should have uncovered. Eisinger moved to quash the subpoena because “it seeks the fruits of newsgathering that are protected from these routine discovery demands by New York state law, the New York Constitution, and the First Amendment.” ONA joined a brief in support of this argument. Eisinger ultimately won and the subpoena was quashed.
On Feb. 15, 2012, the Court of Appeals for the Second Circuit affirmed the order of the trial court in Baker v. Goldman Sachs quashing the subpoena issued to WSJ reporter Jesse Eisinger. That opinion can be found here.
Jan. 31, 2011
ONA joined an amicus brief filed by the Citizen Media Law Project at Harvard Law School in the case of Simon Glik v. John Cunniffe.
Simon Glik was arrested in 2007 for using his cell phone to record police officers arresting a man on the Boston Common. The charges against Glik, which included violation of Massachusetts’s wiretap statute (based on recording audio of the incident) and two other state-law offenses, were ultimately dismissed. Glik then brought suit claiming that his arrest for recording the officers violated his rights under the First and Fourth Amendments. The complaint also brought state law claims against the individual officers for malicious prosecution and violation of the Massachusetts Civil Rights Act.
ONA joined an amicus brief in support of Glik filed by the Citizen Media Law Project, although it was not accepted by the court for reasons unknown.
Jan. 21-22, 2011
ONA conducted training session on “What You Need to Know about Internet Law” at ONA Camp in Honolulu, Hawaii.
Oct. 29, 2010
ONA presented legal panel at ONA 2010 in Washington D.C., featuring Jon Hart, Dow Lohnes LLC, ONA General Counsel; Ken Richieri, The New York Times Company General Counsel; Sherrese Smith, Legal Advisor to FCC Chairman Julius Genachowski; Lucy Dalglish, Executive Director of the Reporters Committee for Freedom of the Press; and Mark Stephens, Partner, Finers Stephens Innocent
Oct. 12, 2010
ONA joined 14 other media companies and organizations in an amicus brief filed in the United Staes Court of Appeals for the Seventh Circuit in the case of WIAA v. Gannett.
In 2005, Gannett decided to stream online four Wisconsin Interscholastic Athletic Association (WIAA) tournament games without getting consent from the WIAA, which controls streaming rights to the games. Gannett argued that as a state actor, the WIAA could not enter into exclusive arrangements that would limit Gannett’s First Amendment rights to cover a public event.
The brief supported Gannett’s position, although was not accepted by the court for reasons unknown. The court ruled in WIAA’s favor.
Aug. 4, 2010
Conducted training session on “What You Need to Know about Internet Law” at ONA Camp in Hollywood, California.
June 5, 2010
ONA conducted training session on “What You Need to Know about Internet Law” at ONA Camp in Birmingham, Alabama.
Feb. 16, 2010
ONA joined other organizations in a letter calling for an end to the policy of many federal agencies forbidding employees from talking to reporters without getting permission or clearance through the public relations office.
Feb. 10, 2009
Conducted training session in Boca Raton, Florida, on Internet law issues.
Nov. 12, 2009
Conducted training session in Richmond, Va., on Internet law issues.
Oct. 22, 2009
Conducted training session in Ann Arbor, Mich., on Internet law issues.
Oct. 2, 2009
Presented legal panel at ONA 2009 conference in San Francisco, featuring Andy Mar (Senior Attorney, Microsoft), Fred von Lohmann (Senior Attorney, Electronic Frontier Foundation), and Nicole Wong (Deputy General Counsel, Google).
Entered into a partnership with the Online Medial Legal Network to provide pro bono assistance to digital content creators.
Joined a coalition of media organizations in supporting the Federal Anti-SLAPP Project’s efforts to enact a federal anti-SLAPP statute.
April 2, 2009
Conducted training session on “legal issues for online publishers” at Internet News Reporting Workshop sponsored by Virginia Press Association.
March 24, 2009
Joined an amicus brief filed by the Citizen Media Law Project in the case of Donald Maxon and Janet Maxon v. Ottawa Publishing Co. LLC.
In this case, the Maxons sought to force an Ottawa Publishing Co. website (mywebtimes.com) to provide identifying information about people who, the Maxons claimed, had posted defamatory comments on the site.
The trial court sided with Ottawa Publishing, ruling that the Maxons had failed to make a sufficient showing to overcome the right of the posters to post anonymously the Maxons appealed. ONA joined an amicus brief filed in support of Ottawa Publishing in the Illinois Court of Appeals.
The appeals court reversed the lower court’s ruling.
For more on this case, refer to this Citizen’s Media Law Project description.
Jan. 23, 2009
Sent a letter to President Obama regarding the issuance of the Presidential Memorandum on the Transparency and Open Government, Presidential Memorandum on the Freedom of Information Act and Executive Order on Presidential Records.
Nov. 7, 2008
Joined an amicus brief in the case of Dugas v. Robbins.
In 2008, Peter Robbins wrote a blog post in which he complained that maintenance at a local harbor was being delayed by unnecessary legal challenges to a proposed dredging project. Robbins wrote that the challenges were costing taxpayers money and putting boaters in danger of running aground.
Two residents, named in Robbins’ post, sued for defamation. Robbins then filed a motion to dismiss the suit under the Massachusetts anti-SLAPP law. We joined the amicus brief that supported application of the anti-SLAPP law.
For more on this case, refer to this Citizens Media Law Project description.
Sept. 13, 2008
Presented legal panel at ONA 2008 in Washington, D.C., featuring Barbara Wall (Deputy General Counsel, Gannett) and Sherrese Smith (General Counsel, WashingtonPost.com).
July 21, 2008
Joined an amicus brief filed by Reporters Without Borders in the case of CBS Broadcasting Inc. v. Navy-Marine Corps Court of Criminal Appeals. As stated by RSF, “the brief argued that a judge’s in camera review of news-gathering materials as directed by the appeals court raised First Amendment issues and should only happen under necessary conditions, which had not been reached.”
June 6, 2008
Conducted training session on “legal issues for online media” at ONA regional conference at Philadelphia Inquirer.