Legal updates: 2015

By on December 28, 2015

Below is a summary of legal updates from 2015:

Nov. 12, 2015
As performers have become increasingly vocal about protecting their intellectual property rights, far too many are using onerous credentialing restrictions to exploit the photographers and videographers who report on them. ONA joined 10 media organizations in issuing an open letter to performers and management to open up conversation on reasonable credentialing and ownership.

ONA joined a coalition of media groups organized by the Reporters Committee for Freedom of the Press (RCFP) opposing the FBI’s withholding of documents regarding the United States’ involvement in mistreatment of a United States citizen abroad (Hamdan vs. U.S. Department of Justice). The brief noted particular concern about the proper role of the courts in scrutinizing Executive Branch assertions about classification decisions, and in facilitating public access to government information under the Freedom of Information Act (FOIA).

Oct. 8, 2015
ONA joined a coalition of media organizations in an amicus effort organized by the RCFP, opposing the New York Police Department’s appeal from a decision ordering it to release records relating to the use of backscatter X-ray vans to a ProPublica reporter, Michael Grabell. The brief focuses on the reporting and other publicly available information about the technology at issue and will emphasize the public interest in access to these types of law enforcement records under New York’s Freedom of Information law. (See update, May 10, 2016.)

Sept. 14, 2015
ONA joined the RCFP and a coalition of media organizations in a brief asking the Texas Court of Criminal Appeals to uphold the successful challenge of a gag order in the appellate court, arguing that it violated the First Amendment and the Texas constitution. Texas prosecutors had obtained a broad gag order in a criminal case against Matthew Clendennen, one of more than 100 motorcycle riders arrested after a May shootout outside a restaurant in Waco, Texas, preventing all attorneys, their staff, law enforcement and witnesses from talking to the media. The brief argues that the intermediate appellate court was correct in vacating the gag order as unconstitutional because it is overbroad and vague.

Update: June 15, 2016
The Texas Court of Criminal Appeals issued a unanimous ruling in In re State of Texas ex rel. Abelino Reyno (formerly In re Clendennen), lifting the stay of the court’s ruling that lifted the gag order imposed on Clendennen by the trial court presiding over his criminal case.

ONA joined the RCFP and a coalition of media organizations in a letter to CNIL, the French privacy regulator, objecting to its order that Google enforce the “right to be forgotten or “right to delist” across all of its servers, not just those with European top-level domain names or extensions. The news media has every reason to be concerned about the extraterritorial application of laws and privacy regulations that diminish speech protections and our letter asks CNIL to reconsider its policy on global delisting.

Aug. 18, 2015
ONA joined a media coalition in signing on to a RCFP letter objecting in the strongest terms to St. Louis County’s recent decisions to pursue criminal charges against a number of journalists arrested or detained last summer during the protests in Ferguson, Mo. The letter stated: “The best way for Ferguson to show that it will respect the First Amendment rights of journalists covering the continuing controversy there is to rescind these charges immediately.”

Aug. 17, 2015
ONA joined a brief filed by the RCFP regarding Competitive Enterprise Institute (CEI)’s appeal of a district court decision that held that emails sent or received by a government employee using his or her personal email account are not covered by FOIA, even if those emails relate to the person’s official duties. Given the widespread use of personal email accounts at all levels of government, such a holding would eviscerate FOIA.

July 28, 2015
ONA joined a coalition of media organizations in Abdur Rashid v. New York City Police Department, which involves a request under New York’s Freedom of Information Law by Imam Talib Abdur-Rashid for records regarding NYPD surveillance of himself and his mosque. In what appears to be the first decision to do so in New York, the court allowed the NYPD to issue a “Glomar” response to the plaintiff’s open records request, permitting the government to simply refuse to confirm or deny whether responsive records exist. (The “Glomar” doctrine was developed during the Cold War to shield national security information from disclosure under the federal FOIA.) Our brief argues that New York’s open records law does not permit Glomar responses and that doing so would substantially undercut the law’s effectiveness.

July 9, 2015
ONA joined a coalition of media organizations in a follow-up letter to the Obama administration, urging the President to publicly affirm his commitment to transparency, to issue an executive order prohibiting restrictive public information policies, and to engage in a public discussion on neutral ground, perhaps at the National Archives, so that Americans can be assured their government is dedicated to the free flow of information for democracy to effectively work.

June 9, 2015
ONA joined a brief in support of an attempt by a coalition of public interest groups to gain access to information from the Staten Island grand jury investigation into the police choking death of Eric Garner. The brief argues that the trial judge erred by failing to recognize the great current public interest in knowing how allegations of lethal police misconduct are being investigated and dismissing that interest as mere “journalistic curiosity.”

May 26, 2015

ONA joined a coalition of media organizations in strong support of the SPEAK FREE Act of 2015 (H.R. 2304), bipartisan legislation introduced by Rep. Blake Farenthold and Rep. Anna Eshoo that extends First Amendment protections to every citizen on the internet while bolstering the information economy that thrives on open public discourse and civic participation. The legislation will allow federal courts to determine whether a lawsuit targeting speech is a Strategic Lawsuit Against Public Participation (SLAPP) and dismiss any bogus claims if the defendant can show that the suit would not succeed on the merits. It also includes important fee-shifting provisions that protect defendants who prevail on an anti-SLAPP motion from having to pay the staggering legal fees that have bankrupted countless defendants forced to defend themselves against meritless lawsuits.

May 14, 2015

ONA joined 28 other media organizations in a brief in support of an attempt by a coalition of public interest groups to gain access to information from the Staten Island grand jury investigation into the police choking death of Eric Garner. The brief supports an appeal from a trial court decision refusing any access to the grand jury materials and argues that the trial judge erred by failing to recognize the great current public interest in knowing how allegations of lethal police misconduct are being investigated and dismissing that interest as mere “journalistic curiosity.”

April 7, 2015

ONA joined a brief challenging nondisclosure requirements in an FBI National Security Letter (NSL) compelling an ISP to produce records of customer communications. Like similar provisions in the vast majority of NSL’s issued by the FBI, the nondisclosure requirements act as a permanent gag order that forbids the recipient from ever revealing even the types of records being collected. The brief examines how these NSL gag orders violate the right of the press and the public to receive important information on matters of overwhelming public interest and also emphasizes how the nondisclosure requirements endanger confidential news sources and prevent reporting on the extent to which the NSLs may violate constitutional and statutory limits on the seizure of private communications.

Feb. 26, 2015

ONA joined an amicus brief that seeks reversal of extraordinarily broad gag and sealing orders imposed by a federal judge in the prosecution of CEO Donald Blankenship in connection with the death of 29 coal miners the 2010 Upper Big Branch mine disaster. The orders concluded that to preserve Blankenship’s fair trial rights, it was necessary to prohibit the parties, attorneys, witnesses, families of victims and others from making any statements to any member of the media, and to restrict all access to court filings made in the case. The brief argues that the orders violate the First Amendment on a variety of grounds, including that they rely on mere speculation about the potential harm that news coverage might cause, and that they are so broad they effectively prohibit anyone with personal knowledge of the explosion from speaking to the media.

Update: March 9, 2015
The Fourth Circuit has vacated the sealing and gag order and sent the case back to the trial court.

Feb. 2, 2015

ONA joined an amicus brief in support of attempts by the Detroit Free Press to gain access to U.S. Marshals Service mugshots under the Freedom of Information Act. The trial court initially ruled in favor of the Free Press based on binding precedent in the Sixth Circuit. The DOJ has appealed, and is asking the Sixth Circuit to overrule its current precedent and to hold that mugshots are protected from disclosure under FOIA’s privacy exemption. The brief argues that there is no legitimate privacy interest in photographs of persons who have been arrested, indicted and have appeared in open court; and if there was, that interest would be outweighed by the public interest in disclosure.

ONA and 20 other media organizations joined an amicus brief supporting an appeal by television station KBMT in the Texas Supreme Court. KBMT is challenging an appellate court’s ruling that the station could be held liable for broadcasting a report on the contents of public records relating to disciplinary actions taken against a pediatrician for having sexual contact with a patient. In most American jurisdictions, the fair report privilege allows members of the press to report on the contents of public records without independently verifying the accuracy of their contents. However, a Texas appeals court held that KBMT could face libel claims because it failed to independently uncover and report a fact not disclosed in the official records – that the patient in question was an adult. The brief argues that the appeals court decision would undermine the Texas fair report privilege and chill reporting on matters of public concern.

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.