Amicus Briefs Digest, Sept. 2017

Callaghan v. West Virginia Judicial Investigation Commission: FAC authored an amicus brief urging the United States Supreme Court to review and reverse a decision by the West Virginia Supreme Court imposing draconian penalties on a candidate for judicial office for statements he made during a political campaign. The Philadelphia firm of Schnader Harrison prepared FAC’s amicus brief, which is in support of Callaghan’s petition for review by the Court. The core argument is that political speech must receive the highest level of protection under the First Amendment, and that the West Virginia Court’s decision did not afford political speech the required level of protection. We will likely not know for months whether SCOTUS will take up the case, though given the math on these things, chances are slim. You can read more about this case here.CNS v. Planet: FAC signed on to this amicus brief in this case involving prompt access to complaints filed in Ventura County Superior Court. The case is now before the Ninth Circuit, after the District Court held there is a First Amendment right of timely access to civil complaints that attaches at the time the complaint was filed. (Ventura County Superior Court appealed, and they contend that public access is not required until the complaint is “processed.”) The amicus, authored by Reporters Committee for Freedom of the Press, argues that prompt access to civil complaints benefits the public by fostering timely and accurate news reporting and promoting public understanding of cases on the courts’ dockets, that there is a First Amendment right of access to civil complaints that attaches upon filing, and that a news media organization’s for-profit status is irrelevant to the First Amendment right of access.

Pasadena Police Officers Ass’n v. Los Angeles Times: FAC joined this amicus brief, authored by CNPA and Reporters Committee, which argues that so-called “reverse-CPRA” actions are contrary to California law and undermine the purpose of the California Public Records Act. However, the brief argues, assuming that reverse-CPRA actions are permissible under California law, they must conform to the CPRA’s mandatory fee shifting scheme—i.e., records requesters who gain access to those records after filing a CPRA lawsuit are entitled to recover all of their reasonable attorneys fees and costs. In the underlying case, a court denied attorneys’ fees to the LA Times, even though the Times won access to the records it sought.

Monterey County police scanners: FAC joined a letter by a coalition of Central Coast news outlets urging police and fire officials in the Monterey County area to continue to provide media access to police scanners even after a planned shift to an encrypted scanner system. The authorities claim that providing such access is impractical and could not be limited to “just” media outlets without opening it up to all the public. We argued that police scanners have been open to the public for as long as they’ve been around, with few downsides and many benefits, and that there are reasonable and common sense ways of providing access to the media without providing access to all (though access to all would be best).

Koala v. Khosla: The Student Press Law Center authored this Ninth Circuit amicus brief, which FAC joined and which argues that UC San Diego’s decision to terminate funding for all student media organizations, apparently as a result of public outrage about gutter-level “shock humor” in a single student publication, is a violation of the First Amendment rights of student journalists at the school. 

The brief argues that the school’s decision to terminate funding to all student publications cannot be a permissible “end run” around the First Amendment’s protections against viewpoint discrimination, at least where there is plentiful evidence that the true objective was to punish the viewpoints expressed in the “shock humor” publication.

National Lawyers Guild v. City of Hayward: FAC joined this amicus brief in the California Court of Appeal, authored by Reporters Committee. In an argument that perhaps only a lawyer could love (but which is actually quite important), the brief argues that the government may not charge all costs for collecting and assembling electronic records, but rather are limited to the “costs of duplication” they are permitted to charge for non-electronic records under the CPRA.

The plain language of the CPRA appears to allow agencies to charge requesters for a broader range of work to locate and produce electronic records than hard copies; this brief argues that the $3,000 charged to the National Lawyers Guild for electronic records was improper and, indeed outrageous.

PETA v. Stein: Reporters Committee authored this brief, which FAC joined and which supports a challenge to North Carolina’s “ag gag” law, which allows an employer to sue an employee who, for reasons other than those related to his employment, enters a nonpublic area of the employer’s premises and captures or removes information or records, images or sounds. The law also creates a civil cause of action against anyone who leaves an unattended camera or surveillance device on the employer’s premises. The amicus brief argues that information provided by sources to the press is essential to investigative journalism and that under the broad standing requirements established by the U.S. Supreme Court in First Amendment cases, Plaintiffs have established standing based on the Act’s chilling effect.

Carpenter v. United States: This amicus brief was filed in the United States Supreme Court by Reporters Committee; FAC signed on. The underlying case concerns the government’s ability to obtain long-term location-tracking information (“cell site location information” or “CSLI”) from phone service providers. The lower court held that the government did not need to obtain a warrant to get CSLI data. The amicus brief argues:

1) there is a historical link between the Fourth Amendment and the First Amendment’s protection of the free press; (2) warrantless acquisition of CSLI records chills the exercise of First Amendment rights, including newsgathering; (3) Fourth Amendment protections should be rigorously applied when the government seeks to obtain CSLI because First Amendment interests are at stake; and (4) the Sixth Circuit’s application of the third-party doctrine (in essence, the idea that if private information is provided to ANY third party—for example, your bank—you no longer have a reasonable expectation of privacy in that information and, thus, the Fourth Amendment’s warrant requirement does not apply) to CSLI threatens the exercise of First Amendment rights.

National Veterans Legal Services Program v. United States: Reporters Committee authored this amicus, to which FAC signed on. The underlying action, in federal district court in Washington DC, is a class action lawsuit alleging that PACER, the means by which the public and press get access to papers filed in federal courts around the country, is charging more than permitted by the statute authorizing PACER fees. The amicus brief emphasizes the importance of ready access to court records to the news media’s ability to inform the public of matters of public concern, argues that statutory limitations on the cost of PACER records are consistent with the First Amendment, and argues that costs in excess of those allowed by statute hinders the news media and public’s ability to access court records.