Amici Briefs Digest – Sept. 2018

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

FAC Authored Amici

ACLU 9th Circuit Appeal.  On August 3, we filed an amicus brief in support of the ACLU of Northern California’s appeal of an adverse Privacy Act ruling against their clients, two editors of the website  Our amicus brief argues, in essence, that the lower court’s ruling would open the door to the FBI broadly collecting information about journalists for the mere act of publishing — just the kind of surveillance prohibited under the Privacy Act.  FAC was represented here by Cooley LLP.  

FAC Joined Amici v. DoubleVerfiyFAC joined this amicus brief in the California Supreme Court in support of DoubleVerify.  The brief, authored by Tom Burke et al. at Davis Wright Tremaine, argues that California’s anti-SLAPP statute applied to protect statements made by DoubleVerify, which reports copyright infringement and adult content to advertisers. FilmOn sued DoubleVerify, alleging it was defamed by reports stating that FilmOn had produced copyright infringing and/or adult content.  DoubleVerify moved to strike the complaint under California’s anti-SLAPP statute.  The trial court granted the motion, the Court of Appeal affirmed, and appealed to the California Supreme Court, where the amicus FAC joined was filed.

The central issue in this case is whether speech that is somehow connected to a commercial transaction is “commercial speech” and thus less protected under the First Amendment.  The amicus brief argues that the answer is “no,” and that, thus, the anti-SLAPP statute applies.

Higginbotham v. City of New YorkThis amicus brief, filed in the Second Circuit U.S. Court of Appeals by the National Press Photographers’ Association, argued that an action for First Amendment retaliatory arrest brought by a news cameraman should not have been dismissed by the trial court.

Higginbotham, a freelance cameraman working for TV New Zealand, climbed atop a phone both to get above the crowds surrounding Zucotti Park in Manhattan during the Occupy Wall Street protests.  Police ordered him down; he refused and was arrested.  He sued New York City on several claims, including that he his arrest constituted retaliation for the exercise of a right protected under the First Amendment — namely, the right to observe public police activity.  The trial court dismissed his claims, finding in part that because the police had “probable cause” to arrest Higginbotham, his claims should be dismissed.

The crux of the amicus brief is that “probable cause” to arrest provides no basis to dismiss First Amendment retaliatory arrest claims in this context.

Los Angeles Times Prior Restraint —On July 14, a federal court in Los Angeles issued an order requiring the LA Times to remove anything from an article it had published that referred to the contents of a sealed plea agreement, and preventing future publication of such information.  This order constituted w a classic “prior restraint” — an order preventing speech or publication before it occurs, verboten under the First Amendment. 

The Times had obtained a copy of the plea agreement from PACER where it was (inadvertently) publicly available.  The underlying case involved a corrupt police officer who had tipped off the Mexican Mafia about an upcoming operation. FAC joined an amicus letter prepared by Reporters Committee and filed in the Ninth Circuit U.S. Court of Appeals that outlined the clear law in this area, and showed how the trial court’s order was clearly unconstitutional.  Fortunately, the court voluntarily vacated the order a couple days later.

Perry v. HollingsworthThis amicus brief, filed in the Ninth Circuit by Reporters Committee in support of KQED, argues that the videotapes of the Proposition 8 trial re gay marriage should be unsealed.  They have been under seal since 2010.  KQED moved to unseal the videotapes that were made of the Proposition 8 trial in the Northern District of California in 2010.

The 9th Circuit had previously held in 2012 that the tapes should remain sealed for the time being. KQED argued that changed circumstances justified the unsealing now. The original defenders of Prop 8 opposed the unsealing.

The trial court granted KQED’s motion in part, holding that the videotapes should not be unsealed now, but that they should be released in August 2020, absent a further order from the Court that compelling reasons exist to continue sealing them.  Proponents appealed. 

The amicus brief argues that public release of the videotapes would serve the values of openness that are at the heart of the First Amendment and common law rights of access, that the news media frequently uses video and audio recordings, which provide more information than a cold transcript, to better inform the public, and that concerns about the potential for misleading editing of the tapes should not factor into the court’s analysis.

Rudkin v. Roger Beasly ImportsThis amicus brief, filed by Reporters Committee in the Fifth Circuit U.S. Court of Appeals, argues that Texas’ anti-SLAPP statute should apply in federal court.  The federal courts of appeal are split on whether state anti-SLAPP statutes apply in federal court, with the Ninth and First Circuits saying yes, and the D.C. Circuit saying no. 

Eventually, the Supreme Court will have to take up the question.  The issue is important for many reasons, but the main one is that if state anti-SLAPP statutes do not apply in federal court, plaintiffs who want to file abusive and meritless defamation (or similar) claims in a particular state can just go to federal court in that state, and avoid all the protections to media and others that anti-SLAPP statutes provide.  This “forum shopping” in some ways nullifies the protections of the statutes.