Amici Briefs Digest – March 2018

Here are amicus briefs and/or letters FAC has either authored or joined since Dec. 2018:

FAC Authored Amicus Briefs

Brazil v. Newark Unified:

On February 2, FAC filed an amicus brief that we co-authored with the ACLU in a trial court proceeding.  This was a fairly unusual move for FAC.  We have generally steered clear of trial-court amicus briefs for a number of reasons, including (a) trial court rulings have limited or no impact beyond the parties to the case; and (b) they are logistically difficult, with short time frames and unclear rules about whether and how they can be be filed.

The circumstances in this case, however, warranted unusual effort.  In a nutshell, the school district is seeking nearly $500,000 in attorneys fees from an individual requester — truly remarkable and frightening, not least for the requester herself.  So, we joined with the ACLU of Northern California to file an amicus arguing that the school district has no legitimate legal basis for seeking any fees, much less the half million they are claiming they’re entitled to.


FAC joined Amicus Briefs

United States Supreme Court

Lozman v. Riviera Beach:  This SCOTUS case addresses the issue of whether the mere existence of probable cause to arrest an individual defeats that individual’s ability to bring a First Amendment retaliation lawsuit against the government–i.e., a lawsuit alleging that the government retaliated against the individual for exercising free-expression rights protected under the First Amendment.  FAC joined an amicus by the National Press Photographers Association arguing, in sum, that probable cause to make an arrest does not defeat such a claim.

United States v. Microsoft:  The federal government contends that a search warrant issued by the U.S. government requires Microsoft to collect and provide to the government communications stored not in the U.S. but on servers in Ireland.  Microsoft contends that if the government wants records stored in Ireland, it has to go through Irish courts to obtain those records–that a U.S. search warrant does give the government authority to require a U.S. entity to reach across international borders.  FAC joined an amicus authored by Reporters Committee, which argues that if the Supreme Court adopts the government’s approach, it will allow government agents to enlist private entities–such as journalists and their employers–to collect information stored on servers located outside the United States so that they can be provided to the U.S. government.  The amicus argues that this would set a dangerous precedent, encouraging foreign governments with weaker free-press protections than the United States to seek information from journalists in this country.

Ninth Circuit Court of Appeals

–Addison v. City of Baker:  This amicus brief, authored by RCFP,  supports the claims of a former journalist who alleges that the police chief of Baker City, Oregon retaliated against the reporter for unfavorable coverage, in violation of the First Amendment.  The police chief argues he is entitled to “qualified immunity” from a First Amendment retaliation claim; this amicus brief argues that First Amendment retaliation claims are critical to journalists, who are at higher risk of retaliation by government officials because their reporting may be critical of government.  The brief also argues that the lower court correctly determined that the police chief is not entitled to qualified immunity because a campaign of harassment in retaliation for speech violates the Constitution and the right to be free from such retaliatory harassment is clearly established.

California Supreme Court

 Wilson v. CNN: FAC joined multiple media organizations in this amicus brief, which argues the California Supreme Court should overturn a Court of Appeal decision that interprets California’s anti-SLAPP statute too narrowly, thus offering insufficient protection to speech-related activity that should be protected under California law.  Brief background: a former CNN producer sued the network alleging various claims stemming from CNN’s investigation into the producer’s alleged plagiarism, and the network’s decision to fire that producer.  CNN filed an anti-SLAPP motion to dismiss the producer’s lawsuit, asserting that CNN’s investigation into alleged plagiarism, and CNN’s enforcement of its ethical standards, constituted matters of “public interest” within meaning of the anti-SLAPP statute.  The trial court denied CNN’s anti-SLAPP motion, finding that the lawsuit did not sufficiently concern an issue of “public interest.”  The Court of Appeal affirmed the trial court, and this amicus brief urges the high court to interpret the anti-SLAPP statute’s “public interest” requirement more broadly.

FX v. DeHavilland:  In this case, a now-forgotten (but still alive) Hollywood star named Olivia De Havilland sued the FX network for a “based on real events” depiction of Bette Davis that included a portrayal of De Havilland.  She argued that the network violated her “right of publicity,” i.e., her right to be paid for use of her image or likeness. FX argued in the trial court that the First Amendment protects “expressive works” like the film at issue from claims by real people that they should be paid for the use of their likeness or image.  The trial court disagreed, allowing the case to proceed.

FX appealed, and this amicus brief argues that the First Amendment bars claims like De Havilland’s — that if the Court were to adopt “the trial court’s restrictive view of the First Amendment, Amici and other content producers and distributors would be limited in their ability to disseminate information of tremendous public interest. An affirmance by this Court risks a significant increase in lawsuits brought in California against all manner of creators and distributors of expressive works, because every person who is referenced in a film or television program – or who claims to have been the inspiration for a fictional character – could use the threat of expensive litigation to demand payment.”

California Court of Appeal

NCBM v. Chico Community Publishing:  This case concerns the ability of the Sacramento News & Review (SN&R) to recover its attorneys’ fees in a reverse-CPRA lawsuit.  SN&R made a CPRA request for emails from Sacramento Mayor Kevin Johnson and his staff. Johnson and the National Conference of Black Mayors (an organization headed by Johnson) filed a reverse-CPRA action to prevent the release of some of the emails, claiming they were exempt from disclosure because of attorney-client privilege. The trial court eventually ordered the release many of the records that Johnson and NCBM claimed were privileged. SN&R then moved for its attorneys’ fees, and the trial court denied the motion.

RCFP’s amicus brief argues that reverse-CPRA lawsuits are contrary to the CPRA and should not be permitted, highlighting the negative effects of these suits on the public’s right to know. However, the brief argues that if such suits are permitted, prevailing requesters must be awarded their attorneys’ fees and costs under the CPRA’s mandatory fee-shifting provision to fulfill the CPRA’s incentives for requesters to vindicate the public’s right of access and against frivolous claims of exemptions.