Legal updates: 2012

By on December 28, 2012

Below is a summary of legal updates from 2012:

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.

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.”

Alison Schary

Alison Schary is ONA's general counsel. In her role at Davis Wright Tremaine, she represents and counsels clients on a wide range of issues in media and intellectual property law, including libel, privacy, copyright, newsgathering and First Amendment matters. Alison regularly defends clients against claims for defamation, privacy and newsgathering torts, and she has experience representing both plaintiffs and defendants in intellectual property matters. Alison also advises newspaper, magazine, website, television and book-publishing clients on pre-publication and pre-broadcast legal issues.