Legal updates: Jan–June 2016

By on June 28, 2016

Below is a summary of legal updates from the first half of 2016:

June 27, 2016

ONA joined a challenge to Idaho’s “ag gag” law, which restricts a broad range of activities related to agricultural facilities and could restrict activity even from public property. The suit, ALDF v. Wasden, was brought by the Animal Legal Defense Fund and others but our brief stresses that this law would also interfere with news gathering, both directly and by punishing the whistleblowers and other sources journalists rely on.

June 14, 2016
Adapted from an NPR post: A federal appeals court fully upheld the Open Internet rules, regulations backing the principle of net neutrality: phone and cable companies should treat all of the traffic on their networks equally — no blocking or slowing their competitors, and no fast lanes for companies that can pay more. The U.S. Court of Appeals for the D.C. Circuit delivered a slam-dunk victory to the Federal Communications Commission (FCC) as it rejected the petition filed by telecom, cable and wireless industry associations alongside AT&T, CenturyLink and several smaller providers. ONA had strongly supported net neutrality in a June 2014 letter to the FCC.

June 13, 2016
The media associations in the Sunshine in Government Initiative applaud the House’s unanimous vote to approve the FOIA Improvement Act of 2016 (S. 337). After years of work on this set of reforms to the federal Freedom of Information Act (FOIA), ONA is proud to see strengthened disclosure under FOIA. The reforms will go to President Obama’s desk for his signature just days before transparency advocates celebrate the 50th anniversary of President Lyndon Johnson’s signing of the original FOIA into law on July 4, 1966.

June 10, 2016

ONA joined a brief filed by RCFP in support of the plaintiff’s motion for summary judgment in Freedom of the Press Foundation v. Dep’t of Justice, pending in the Northern District of California. The foundation is challenging the government’s basis for withholding the rules, guidelines, policies and procedures governing the FBI’s use of National Security Letter (NSLs) and letters to obtain journalists’ communications records under FOIA. Our brief provides background that amendments to the DOJ’s News Media Guidelines regarding obtaining information from members of the news media (and arresting, questioning, or charging members of the news media) do not mention NSLs, exigent letters, or other forms of process that the media coalition sought to include in the policy when we started meeting with DOJ two years ago. Because NSLs lack safeguards that typically protect First Amendment rights, transparency about how the FBI uses this form of legal process to obtain records belonging to journalists and news media organizations is critical. And because the FBI has previously abused exigent letter process to obtain journalists’ records, it is all the more important that the agency now produce the rules it follows when it targets journalists using these forms of process.

June 6, 2016
ONA joined the RCFP and 19 other media organizations in a brief filed in the New York Court of Appeals in support of the appellant in Friedman v. Rice. Jesse Friedman was denied access to witness statements provided to local law enforcement under the confidential source exemption in New York’s Freedom of Information Law (FOIL). Our brief argues that the Second Department of the Appellate Division erred in concluding that non-testifying witness statements are categorically exempt under FOIL. Not only are blanket exemptions contrary to FOIL but the holding is contrary to those of the other Departments in the Appellate Division and the United States Supreme Court. Access to witness statements is also crucially important for the press to keep the public informed about the activities of law enforcement agencies.

May 31, 2016
ONA joined a brief filed in an 11th Circuit Court appeal, Tobinick v. Novella, a suit brought by Edward Tobinick, a doctor who sued another doctor, Steven Novella, over two articles posted to the medical blog “Science-Based Medicine” disputing Tobinick’s claimed treatments for Alzheimer’s disease. Most claims were dismissed by the Florida District Court judge last year under the California anti-SLAPP statute, a holding we’d like to see upheld. Our brief primarily addresses the applicability of anti-SLAPP statutes in federal court.

May 18, 2016
ONA joined a coalition of media organizations in a brief supporting Bloomberg BNA in its appeal to the D.C. Circuit from denial of its summary judgment motion in Von Kahl v. Bureau of National Affairs, Inc. The plaintiff, Yorie Von Kahl, is currently serving a life sentence in federal prison for the killing of two U.S. Marshals. He alleges that he was defamed by a BNA news digest reporting on his petition to the U.S. Supreme Court. Despite finding that Von Kahl was a public figure, the district court held that the mere fact of discrepancies between the court documents and what BNA reported was sufficient to bring to trial. The district court’s holding is at odds with decades of federal precedent and, if allowed to stand, would erode First Amendment protections for media defendants reporting on public figures. The district and appellate courts took the unusual step of allowing BNA to challenge this ruling before engaging in a trial.

May 17, 2016
ONA joined a brief supporting Gannett’s petition for a rehearing in Yershov v. Gannett, where the First Circuit Court of Appeals held that USA Today could be subject to liability under the Video Privacy Protection Act (VPPA) because its mobile app provided anonymized user data to Adobe for purposes of serving targeted online advertising to viewers. Unlike previous courts hearing similar cases, the First Circuit provided extremely broad definitions for the terms “subscriber” and “personally identifiable information,” opening the door to increased litigation against publishers providing online video content. If the decision stands, it would impose a significant limitation on publishers’ ability to support free online content through advertising without fear of potential class-action liability.

May 10, 2016

ONA joined a coalition of media organizations in a brief to the New York Supreme Court in an appeal filed by the New York Police Department (NYPD) from a New York Freedom of Information Law (FOIL) ruling in favor of ProPublica reporter Michael Grabell. The lower court had ordered the NYPD to release the records requested by Grabell, which related to the department’s use of backscatter x-ray vans for surveillance. The appellate court largely sided with the NYPD, denying his request for attorney’s fees and costs. The court did, however, uphold the trial court’s directive that the NYPD must disclose certain health and safety records sought by Grabell’s petition. (See original brief, Oct. 8, 2015.)

UPDATE: Sept. 2, 2016
ONA joined a coalition of media organizations supporting ProPublica reporter Michael Grabell in his motion for leave to appeal to New York’s highest court from the denial of his freedom-of-information request seeking records related to the New York Police Department’s use of Z-backscatter X-ray vans. The district court had granted Grabell’s petition initially, but the appellate division (First Department) largely reversed that decision. He is now seeking review from the New York Court of Appeals.

May 4, 2016
ONA joined a coalition of media organizations in a brief filed with the California Supreme Court in a case involving access to data from law enforcement Automated License Plate Reader (ALPR) systems under California’s Public Records Act. The lower court construed an exemption in the Act for “investigatory” records broadly, exempting from disclosure records maintained in a police database even if they were not gathered for or used in connection with a specific investigation. The brief emphasized the negative impact on public-interest reporting that would result from such an overly broad exemption.

March 30, 2016
ONA joined a brief filed by the Los Angeles Times, AP and Bloomberg supporting a California district court’s decision to unseal video of a police shooting used in a civil rights suit, Mendez v. City of Gardena. The City is now arguing that in such cases in the future, there should be an automatic stay. In our brief, which the Reporters Committee for Freedom of the Press prepared with the help of the University of Virginia School of Law First Amendment Clinic, we are supporting the intervenors’ argument that the court correctly denied the stay because the balancing of interests justified immediate release.

April 28, 2016
ONA joined as a signatory to comments submitted by the Reporters Committee for Freedom of the Press to the Canadian Privacy Commissioner, arguing against the adoption of a “right to be forgotten” in Canada because it would be at odds with Canadian and international standards of free expression and would lead to online censorship worldwide.

March 8, 2016
With the 50th anniversary of FOIA approaching, ONA joined a coalition of media groups urging every U.S. Senator to support legislation (FOIA Improvement Act of 2015 — S. 337) that establishes a presumption of openness in law, encourage agencies to use public-friendly technology, and makes other changes to the way agencies respond to requests for information from the public. (March 16 update: The bill was approved by the Senate, with amendments.)

March 4, 2016
a public letter in support of Apple’s fight against the request that it create a special version of its operating system to allow the FBI to bypass security and encryption features to unlock the San Bernardino shooter’s iPhone. The letter questioned the wisdom and the legality of demanding Apple create what amounts to a master key making it possible to unlock any of its devices and what that ultimately means for freedom of the press. (Update: The FBI recently announced that its putting its request on hold as it found other means to unlock the phone.)

Feb. 24, 2016
ONA joined a coalition of media organizations in supporting a group of appellants, which include Wikimedia, PEN American Center and The Nation, who have challenged the NSA’s “upstream surveillance” program. The case, Wikimedia v. NSA, is a challenge to Section 702 of the FISA Amendments Act of 2008, the authority that permits the government to intercept the content of communications between non-U.S. persons located abroad. “Upstream” surveillance is the program under which the NSA taps directly into the internet “backbone to acquire information to, from, or “about” targets. Upstream collection can sweep up internet communications that merely mention targeted selectors. The plaintiffs claim that upstream surveillance violates their First and Fourth Amendment rights. The District Court dismissed the case on standing grounds. Our brief draws on recent surveys to argue that upstream surveillance has created a chilling effect within the press that is sufficient to create standing. We also argue that the Court should consider First Amendment rights when assessing the program’s reasonableness under the Fourth Amendment.

Feb. 26, 2016
ONA joined a coalition of media organizations in support of a “right of publicity” suit brought by college basketball players against a photography service, T3Media, that sells images of their team, among many other athletes and competitions, through a licensing arrangement with the NCAA. ONA is joining the argument that the state publicity statute is a content-based restrictions on speech, which if broadly applied will interfere with the way news organizations disseminate information to the public.

Feb. 3, 2016
ONA joined the Reporters Committee for Freedom of the Press and 24 organizations in a letter to Florida lawmakers urging them to reject two bills that would “substantially weaken Florida’s Public Records Law” and run the risk of incurring prohibitive costs to gain access to public records.

Jan. 20, 2016
ONA joined a brief in the New Jersey Supreme Court in an Open Public Records Act (OPRA) case involving access to surveillance footage from stationary camera. The defendants are asking for a blanket exemption since the video included comings and goings at a nearby police station. Their arguments also would include public access to police recordings from dash cams and body cams. The trial court and the appellate division both rejected the defendants’ arguments, and we are urging the Supreme Court to affirm.

Jan. 11, 2016
Earlier in the year, ONA joined the Sunshine in Government Coalition in requesting the U.S. Congress approve the FOIA Oversight and Implementation Act of 2015 (H.R. 653), which strengthens the crucial Freedom of Information Act. This bipartisan legislation was approved and takes significant steps to address many challenges that requesters, including the media, face when using FOIA.

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.