Legal updates: July–Dec 2013

By on December 28, 2013

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

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.”

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.