Legal updates: Jan–June 2014

By on June 28, 2014

Below is a summary of legal updates from the first half of 2014:

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.”

Update: On June 23, The Standing Committee at the Senate Gallery denied SCOTUSblog’s appeal for receiving credentials. 

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.

For more, read the co-signed letter and the accompanying court filing.

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.

Read the full brief, as well as the motion for leave to file, outlining the arguments made in the brief.

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.