Amici Briefs Digest, Dec. 2017

Here are amicus briefs and/or letters FAC has joined since the last report:


FAC Joined Amicus Briefs

Guiffre v. Maxwell: FAC signed on to this amicus brief by the Reporters Committee for Freedom of the Press.  It asks the Second Circuit Court of Appeals to overturn an extremely overbroad sealing order that purports to require secrecy of records filed with the court as part of discovery motions in a defamation lawsuit brought by one of the alleged victims of sex trafficking committed by financier Jeffrey Epstein.

In re National Security Letter: FAC signed on to this Reporters Committee amicus brief in the Ninth Circuit Court of Appeals.  It argues that the federal statute that authorizes National Security Letters –commonly used to obtain customer records from electronic communication service providers — is unconstitutional because it requires a prior restraint in violation of the First Amendment.  The statute, 18 U.S.C. §§ 2709, 3511, allows the government to impose gag orders on internet companies that receive NSL’s, preventing them from publicly stating even that they were subjected to an NSL.

In the underlying case, various recipients of NSL’s argued that the statute authorizing NSL’s, 18 U.S.C. §§ 2709, 3511, violates the First Amendment.  The trial court denied the petitioners’ claims and the Ninth Circuit affirmed, holding that the statute does not violate the constitutional ban on prior restraints.  The petitioners sought a re-hearing, and the amicus supports that effort.

Van Zant v. Pyle:  FAC signed on to this Reporters Committee amicus brief in the Second Circuit Court of Appeals.  It argues that an injunction imposed by the trial court, banning the release of a fictionalized film about the plane crash that killed members of the band Lynyrd Skynyrd  is an unconstitutional prior restraint.  In the underlying case, the trial court permanently enjoined distribution of the film by Cleopatra Films, holding that a previous settlement agreement prevented Cleopatra from releasing the film.

The amicus argues that the First Amendment protects films, including fictionalizations like Cleopatra’s movie, that the injunction entered by the district court is a prior restraint, which is forbidden in all but the rarest of circumstances, and that even assuming Cleopatra is bound by the settlement agreement and violated it, the proper remedy is an action for damages, not a prior restraint.

People v. Juarez (in re Robles): This Reporters Committee amicus brief in the New York Court of Appeals supports New York Times reporter Frances Robles’ motion to quash a subpoena requiring her to testify and provide interview notes about her interview with the suspect in the “Baby Hope” murder case.

The trial court denied Robles’ motion to quash, the intermediate appellate court reversed, and state appealed that decision to the New York Court of Appeals. The case is especially important because it may lead to a ruling from the New York high court defining the extent of the New York Shield Law’s protection for nonconfidential information.

The amicus stresses the importance of the New York Shield Law’s privilege for non-confidential information. It argues that privilege for non-confidential information can be overcome only if the party seeking the information demonstrates that his or her case “virtually rises or falls” based on the information sought.

Courthouse News Service v. Yamasaki: This amicus brief, authored by Reporters Committee, is before the Ninth Circuit Court of Appeal.  It arises out of an effort by Courthouse News Service to require the Orange County Superior Court to provide the public prompt access to newly filed complaints.  Courthouse News sought an injunction requiring Orange County to provide prompt access. 

The trial court denied the injunction and Courthouse News appealed. RCFP’s amicus brief argues that the First Amendment creates a right of timely access to civil complaints that requires access to be contemporaneous with their filing, that timely access to civil complaints benefits the public, and that CNS’s profit motive and readership are irrelevant to the determination of the First Amendment right of access. (There is a similar pending case, Courthouse News v. Planet, regarding the Ventura County  Superior Court, as to which FAC joined an amicus earlier this year.)

Waymo v. Uber This is not an amicus brief.  FAC joined a coalition of media entities including the New York Times, AP, Reuters, Vox, BANG, BuzzFeed, Gizmodo, Hearst, opposing the attempted closure of significant portions of the upcoming trial between Waymo and Uber.  While some of what Waymo wants to exclude the public from is legitimately confidential (e.g., actual trade secrets), what they are asking for sweeps far more broadly than that.  The media coalition urged the court to take up closure requests on a case-by-case basis, consistent with the First Amendment.

Trump Taxes: FAC joined a coalition letter spearheaded by the Electronic Privacy Information Center (EPIC) urging Congress’ Joint Committee on Taxation and the IRS Commissioner to release Trump’s taxes to the public under 26 USC § 6103(k)(3).

 Under § 6103(k)(3), an individual’s taxes can only be released in limited circumstances. The letter argues that in light of Trump’s refusal to publish his tax returns (unlike every other major party presidential candidate for the past 40 years), his repeated misstatements about the IRS, the questions raised about Trump’s financial ties to Russia, and the Russian interference in the 2016 Presidential election, there has never been a more appropriate moment for his tax returns to be released.

Expansion of FISA record collection: FAC joined a letter authored by the ACLU and Open the Government to oppose the expansion of government authority to collect records under section 702 of the Foreign Intelligence Surveillance Act (FISA). 

A bill now before Congress would expand the warrantless communications collection programs carried out under Section 702 and other surveillance authorities.

The legislation would preclude any opportunity for much needed transparency and accountability reforms.  It would do so under an expedited time frame, thus potentially eluding meaningful public oversight and substantially expanding the government’s ability to collect information about Americans.