Legal updates: July–Dec 2016

By on December 28, 2016

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

Nov. 16, 2016

ONA joined a coalition of media organizations in a letter to President-elect Trump requesting his commitment to the historic tradition of a protective press pool for the sake of transparency: “This isn’t about access for the press itself; it’s about access for Americans in diverse communities across the country.”

Nov. 4, 2016

ONA joined a coalition of media organizations in a brief intervening in and supporting Google’s appeal of a penalty imposed by the French privacy authority Conseil d’Etat (CNIL) over the “right to be forgotten.” CNIL had ordered Google to delist information worldwide, not just at EU-specific domains. Our brief argues that extraterritorial application of the French order violates international law and interferes with the fundamental rights and freedoms of the press, as well as the right of members of the public worldwide to receive information – and allowing the French authorities to impose their law worldwide would lead other countries to do the same, restricting access to information for all.

Nov. 1, 2016

ONA joined a coalition of media organizations in an amicus brief to the Third Circuit Court of Appeals concerning the right to record police officers. In a case brought by the Pennsylvania ACLU, the lower court ruled that bystanders do not have a First Amendment right to record police officers unless they are actively engaged in “expressive conduct” such as verbally criticizing police, rather than simply observing. Numerous briefs were filed in support of the civil rights plaintiffs, including a brief by the DOJ Civil Rights Division supporting the right of individuals to record police. Our brief focused on the importance of user-generated video content gathered by citizens recording police to the media’s ability to report on matters of public interest.

Oct. 28, 2016

ONA joined a coalition of media organization’s supporting an individual who intervened in a case brought by the federal government against HSBC, seeking access to reports on HSBC’s compliance with the terms of the deferred prosecution agreement entered into between the government and the bank. The district court ruled that the reports should be unsealed and the government and HSBC appealed. Our brief stresses the importance of access to these reports to inform the public about the government’s handling of a major financial controversy, and further stresses that limited redactions – not wholesale sealing – is the appropriate way to address any compelling confidentiality concerns.

Oct. 6, 2016

ONA joined a coalition of media organizations in a brief supporting Lifetime in a case brought by a prisoner over the broadcaster’s docudrama about the murder of his father and bludgeoning of his mother, crimes for which he was convicted. The plaintiff had originally sought a temporary restraining order preventing Lifetime from airing the docudrama, which was overturned by the appellate court and later dismissed. The plaintiff is appealing the dismissal, and our brief supports Lifetime in asking the appellate court to affirm that dismissal, citing the long tradition of First Amendment protection for docudramas and movies based on or inspired by real people or events. The appeal is currently pending.

Sept. 27, 2016

As the world’s largest organization of digital journalists, ONA was greatly disappointed to learn of the U.S. Food and Drug Administration’s (FDA) attempts to control and punish reporters by not allowing them to report independently when discussing FDA announcements under embargo. The FDA’s “close-hold embargo” essentially means that the government agency can dictate who reporters can and can’t interview in advance of a story, even outside of the agency. The Obama administration has consistently stymied press rights, with the end result being the withholding of news and information from the public. We strongly condemn this latest example of the administration’s attempt to restrict a free press. The American public deserve access to public officials and crucial information about issues affecting their health.

Sept. 15, 2016

ONA joined a coalition of media organizations in a brief supporting Greenpeace in its SLAPP motion and motion to dismiss a suit brought against it by Resolute Forest Products, a timber company based in Canada. Resolute’s complaint consisted of 11 counts, five of which were claims under the Racketeer Influence and Corrupt Organizations Act (RICO), which was originally passed to prosecute organized crime. Resolute claims that Greenpeace misrepresents and sensationalizes facts about Resolute’s business to induce donations and uses false claims to “extort” Resolute’s customers as part of its advocacy campaigns. The amicus brief characterizes this lawsuit as a quintessential SLAPP, with the purpose of silencing Greenpeace’s speech and campaign activities. The brief also underscores that the use of civil RICO claims –- which come with the threat of treble damages and attorney fees –- to target speech is an improper attempt at an end-run around the protections of the First Amendment.

Sept. 9, 2016

ONA joined a coalition of media organizations in a brief challenging an argument that only New Jersey citizens should have standing to submit requests under that state’s freedom of information law. The brief focuses on the negative impact such a narrow interpretation would have on news coverage, particularly given that many New Jersey citizens receive their news from outlets based in neighboring states, such as New York and Pennsylvania The brief also highlights major stories of national importance that were written by out-of-state journalists using documents obtained under New Jersey’s freedom of information law, including data journalism based on a national survey of police-involved shootings and investigative reports about Donald Trump’s business dealings and tax filings.

Sept. 2, 2016

ONA joined a coalition of media organizations supporting Microsoft’s challenge to the Department of Justice’s use of gag orders under 18 U.S.C. 2705(b), which prevent the recipients of government requests for customers’ electronically stored communications from disclosing the existence of those requests. We support Microsoft in its opposition to the government’s motion to dismiss the case. The brief argued that by preventing companies like Microsoft from disclosing information about requests for information under 18 U.S.C. 2703, the gag orders threaten the media’s First Amendment right to receive important, newsworthy information on matters of public concern; improperly restrict the right of access to search warrant materials, and threaten the integrity of confidential relationships with sources.

Aug. 19, 2016

ONA joined a coalition of media organizations in an amicus brief supporting the appeal of a New York Times reporter, Frances Robles, from an order requiring her to testify and provide notes from her interviews with the murder suspect in the “Baby Hope” case (People v. Juarez). The brief stresses the importance of the qualified privilege under New York’s shield law for non-confidential information, especially in the context of protecting jailhouse interviews.

Aug. 15, 2016

ONA joined a brief in Luongo v. CCRB, an appeal concerning a request for access under New York’s Freedom of Information Law (FOIL) to a summary of substantiated complaints made to the Civilian Complaint Review Board (CCRB) against New York Police Department Officer Daniel Pantaleo, who placed Eric Garner in a fatal chokehold in 2013. The trial court ordered the release of the summary, and the CCRB and Pantaleo have appealed, arguing that the summary is a “personnel record” exempt from disclosure under Section 50-a of the New York Civil Rights Law. The amicus brief stresses that the “personnel record” exemption in this case should be narrowly interpreted.

July 29, 2016

ONA joined the RCFP and other media organizations in submitting comments to the New York City Police Department (NYPD) on its draft bodycam policy. While NYPD acknowledges that bodycam videos are records subject to New York’s Freedom of Information Law (FOIL), our comments are largely directed at clearly identifying the need for FOIL officers to redact videos if only a portion falls within the scope of a FOIL exemption. We also emphasized the importance of discretionary and proactive disclosures of video showing serious use of force by law enforcement, and minimizing processing fees charged to requesters for the videos.

July 18, 2016

Citing strong public interest, ONA joined RCFP and the Associated Press in a July 15 letter to Judge Sullivan of the D.C. District Court, who is presiding over the Judicial Watch FOIA lawsuit against the State Department concerning former Secretary Hillary Clinton’s use of a nongovernmental email account/server. Judicial Watch’s motion seeking Clinton’s deposition and any video access to it was taken into submission.

July 14, 2016

The Second Circuit issued an important decision in the Microsoft Cloud case, which has been pending for a year and a half, holding that the government cannot use Stored Communications Act warrants to access material stored on servers outside the United States. ONA joined a media amicus brief in this case that we submitted in December 2014 (see entry below.)

ONA joined a letter from RCFP to Cleveland officials objecting to the ban on use of gas masks during the Republican National Convention there, asking them not to enforce it against credentialed journalists. (Philadelphia police said they would not use tear gas during the Democratic National Convention in the city.) See the DNC hotline, providing 24-hour legal aid to journalists covering the convention.

July 8, 2016

ONA joined a brief supporting Google in its fight in Canadian court against de-listing from its search certain web sites worldwide. We are concerned the concept of a global injunction could be used against the global media as well as against Google. These same core principles prompted our opposition to the decision by the French data protection authority to require Google to de-list search results under the EU’s “right to be forgotten” regulations not only in France, but anywhere in the world.

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.