Legal updates: July–Dec 2014

By on December 28, 2014

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

December 15, 2014
ONA, along with 27 other media organizations, joined a brief filed in the Second Circuit in support of Microsoft’s appeal of a district court order upholding a U.S. warrant requiring the production of customer emails stored on Microsoft cloud servers in Ireland. The brief focuses on the negative impact allowing such warrants would have on protection of confidential sources and news-gathering in general, and also argues that allowing the U.S. to unilaterally seize emails held anywhere in the world could be expected to embolden foreign governments to do the same, making it easier for them to collect information on journalists who publish politically sensitive stories.

December 5, 2014
ONA joined a brief in the case of Davis v. Cox., involving an attempt to have Washington State’s anti-SLAPP law ruled unconstitutional. The plaintiffs argue that its provisions allowing early dismissal of SLAPP suits violate their right to petition and right of access to courts. The amicus brief argues that the law does not violate any of plaintiffs’ rights, particularly because there is no right to bring the kind of frivolous suits the anti-SLAPP law is designed to protect against.

Update: July 7, 2015
Following the June decision of the Washington Supreme Court to strike down the state’s anti-SLAPP law, RCW 4.24.525, ONA and media coalitions expressed support for Draft Bill S-3276.1, aimed at reenacting and amending the law. It appears unlikely that the Washington State Legislature will introduce a new bill this session; it is expected to do so in 2016.

December 2, 2014
ONA joined with 50 other media organizations in an application to appear as a friend of the court concerning Emma F., a case involving a prior restraint order against the Connecticut Law Tribune enjoining a reporter from publishing information obtained in open court and from juvenile court records in a custody dispute. ONA is asking the court to vacate the injunction.

December 1, 2014
ONA joined a coalition of media groups in addressing concerns regarding the U.S. Forest Service proposal to incorporate a directive into the Forest Service Handbook to finalize guidance for the evaluation of proposals for still photography and commercial filming on National Forest System Lands. The coalition is concerned that, as written, the final directive will still allow for uncertainty in the permitting process which, in turn, leads to abridgements of the First Amendment rights of the public and the press.

November 7, 2014
ONA joined a brief drafted by the Reporters Committee for Freedom of the Press in regard to Courthouse News Service v. Planet, a case before the Ninth Circuit that challenges a California court’s practice of denying public access to civil complaints for days or weeks after filing. A lower court’s decision held that there is no right of access to civil complaints when filed, and that the right attaches only when the complaint is first subject to a hearing to which the public has a First Amendment access right.

Update: June 26, 2015
The Ninth Circuit overturned the district court’s ruling and ordered that the case be sent back for reconsideration by a different judge, making it clear that the original judge had shown an unacceptable lack of appreciation for the First Amendment interests at stake. The decision contains strong language regarding the right of access to records in civil cases.

September 30, 2014
ONA joined an amicus brief and signed onto a coalition letter, both drafted by the Reporters Committee for Freedom of the Press: The brief is in Smith v. Obama, a case before the Ninth Circuit that raises Fourth Amendment challenges to the federal government’s bulk collection of telephone records. The brief focuses on the consequences these mass data collection efforts can have on journalists. The letter is a joint letter to the Department of Justice (DOJ) from 44 news organizations calling for the inclusion of the treatment of journalists in the DOJ’s planned investigation into police misconduct during the unrest in Ferguson, Mo.

August 29, 2014
ONA and 24 other organizations signed a letter drafted by the Reporters Committee for Freedom of the Press to the members of the Privacy and Civil Liberties Oversight Board (PCLOB), calling for the board to examine the ways national security surveillance programs are collecting and using newsgathering materials.  Earlier this year, when the PLCOB issued its report on the Patriot Act Section 2015 program and the operation of the FISA court, it cited a previous RCFP coalition letter addressing metadata collection issues.

August 11, 2014
ONA joined the Reporters Committee for Freedom of the Press and other media organizations in filing four briefs. Summaries of these cases are available on RCFP’s briefs page:

National Review v. Mann argues that an order denying a special motion to dismiss under the DC anti-SLAPP statute is immediately appealable to the DC Court of Appeals. The brief also argues that in determining whether an allegedly defamatory statement is protected opinion under the First Amendment, courts must consider the full context in which the statement was published.

North Jersey Media Group v. Bergen County Prosecutor’s Office challenges a New Jersey appellate decision allowing police to respond to public records requests by neither confirming nor denying the existence of responsive records.

Yelp v. Hadeed Carpet Cleaning was filed in the Virginia Supreme Court, and challenges an interpretation of a state statute that allows disclosure of the identities of anonymous online review posters based on mere suspicions that they may not have been real customers.

Jewel v. NSA was filed in federal district court in California and supports AT&T customers who have challenged the NSA’s wholesale surveillance of customer communications.

July 8, 2014
In a letter to President Obama, ONA and nearly three dozen other news media organizations urged the administration to be more transparent in how it deals with journalists. Specifically, the letter expressed frustration that “public agencies have increasingly prohibited staff from communicating with journalists unless they go through public affairs offices or through political appointees.”

The letter calls on the administration to reverse these policies and that the president “issue a clear directive telling federal employees they’re not only free to answer questions from reporters and the public, but actually encouraged to do so.”

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.