Legal updates: Jan–June 2013

By on June 28, 2013

Below is a summary of legal updates from the first half of 2013:

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.

For more, read the entire brief and RCFP’s full release.

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.

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.”

Update: On April 29, the Supreme Court unanimously upheld the Virginia statute.

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.