Legal Affairs Action

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 update on the committee’s recent and past work on behalf of ONA members.

As of January 2013, this committee is made up of:

• Joshua Hatch, Chair
• Jon Hart, General Counsel
• Jim Brady, Board President
• Mandy Jenkins, Board member
• David Ardia, Assistant Professor of Law, University of North Carolina at Chapel Hill

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May 16, 2013

ONA, along with other media companies and organizations, joined an amicus brief in support of journalist Jana Winter’s claim that 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.

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.

March 1, 2013

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.

Feb. 13, 2013

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.”

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.

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.

Jan. 5, 2012
Published ONA’s position opposing the proposed SOPA legislation. Techdirt summed up our letter saying:

“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).

October-November, 2009
Entered into a partnership with the Online Medial Legal Network to provide pro bono assistance to digital content creators.

August 2009
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.