No Summer Break for AAN’s Advocacy Efforts

While many people went on vacation at some point in June, July or August, AAN’s Free Speech Committee did not. Before and after (and, technically, during) the Convention we continued to pursue ways to represent AAN members’ First Amendment and FOI interests (we simply weren’t content to rest on our laurels after the FOIA Improvement Act was signed into law on June 30).  In all, we have signed on to 4 different amicus briefs (all drafted by the Reporters Committee for Freedom of the Press) in recent weeks.  They include:

1. Freedom of the Press Foundation v.  Department of Justice

This case arises out of a FOIA request filed by the Freedom of the Press Foundation with the FBI which sought the release of FBI records regarding the FBI’s use of “National Security Letters” (NSLs) and other methods to obtain the toll billing records of journalists (an NSL is a purely administrative subpoena issued under the Electronic Privacy Communications Act without the requirement of prior court approval).

These requests are an attempt to oversee the Department of Justice’s revised guidelines regarding the use of subpoenas to obtain information from or about the media.  The DOJ first instituted such guidelines – which are voluntary in nature – in 1970.  Revelations in 2013 that the DOJ had secretly subpoenaed the telephone records of more than 100 journalists working for the Associated Press resulted in media and public outcry to the point that the DOJ met with representatives of major companies and press organizations to discuss revisions to the voluntary guidelines. After a few meetings, discussions and mutual revisions, new guidelines were issued in 2014.  However, almost as soon as those new guidelines regarding subpoenas to and about the media were issued, the DOJ noted that they believe NSLs are not equal to subpoenas and, as a result, the new procedures in place to limit the arbitrary use of subpoenas where media are involved don’t apply to NSLs (which, to be fair, are only themselves supposed to be issued in cases involving threats to national security.)

The FOIA request was denied, with the FBI stating that its internal policies and procedures regulating the use of NSLs to obtain journalists communication records are exempt from disclosure under FOIA.  The Freedom of the Press Foundation appealed. That appeal was, predictably, denied. That’s when this lawsuit was filed.

The amicus brief explains the overall importance of the DOJ guidelines as a means of restraining the government’s investigative and prosecutorial powers to avoid infringing on newsgathering.  Unfortunately, the guidelines do not address NSLs or Foreign Surveillance Intelligence Act (FISA) warrants or applications.

The brief recounts the subpoenas issued for the phone records of the AP reporters and s similar search warrant issued for the Emails of Fox News reporter James Rosen, who was identified as a “co-conspirator’ in a leak investigation, solely for the purpose of obtaining those Emails.  Only when these warrants were revealed did the President and Attorney General review the DOJ’s guidelines. But this reform process did not address NSLs or FISA warrants.  It also notes that we know little about the DOJ’s procedures with regard to NSLs and FISA warrants but what we do know – via an appendix released in 2011 – seems to indicate that some procedures exist. Unfortunately, any limitations on their abuse are entirely self-imposed – but we don’t know how or when the DOJ would impose those limitations (if at all).

Finally, we explain why this is a big deal. Data available from the DOJ’s Office of Inspector General indicates that hundreds of thousands of NSLs have been issued in the past decade (44,000 per year on average). However, only a few of the recipients – approximately 3% at most —  have been allowed to discuss their NSLs publicly.  Indeed, the DOJ has shown a willingness to circumvent their own Guidelines, which are voluntary in nature.  The brief reviews recorded instances in which the DOJ used NSLs or “exigent letters” to get around the subpoena requirement.

This all has a real impact on the media.  It was well documented after the AP and James Rosen situations came to light that sources were hesitant to talk to Rosen or to AP reporters, even on stories that weren’t about national security.  That chilling effect likely still exists and will continue to exist in the future if we remain in the dark about when and how the DOJ might use NSLs.

2. Animal Legal Defense Fund v. Wasden

This is our second bite at the apple in this case and we’re hoping it goes as well as the first time.  Idaho passed an  “ag-gag” statute in 2014. It provides a criminal penalty of up to 1 year in jail and $ 5000.00 in fines for activities that  investigative journalists might engage in when covering industrial farms such.  The Animal Legal Defense Fund (ALDF) immediately challenged the law in a United States District Court in Idaho. That court ruled for the ALDF, declaring the Idaho law unconstitutional. The state has now appealed to the Ninth Circuit.

Our brief argues that the Idaho law infringes on the First Amendment rights of those who want to inform the public about food safety by criminalizing the press and others who want to engage in oversight on matters of public concern. The press has a long history of protecting the public by overseeing the safety of our food supply and exposing hazardous conditions that might harm us, starting with Upton Sinclair’s The Jungle, which led to the passage of the Food and Drug Act. But the brief identifies other articles from the 1960s and into recent years which have also exposed, through published articles and video, significant dangers to public health.

The brief extensively recounts how Humane Society video – shot in a way that would violate this law – led to the recall of more than 143 million pounds of beef (the largest recall in US history).   This law would certainly prevent future successes by chilling investigative journalists’ work:  “Idaho’s statute should be struck down because the government must encourage — not discourage — third-party oversight of the food industry and the government regulation that has been so influential in providing safer food to the nation.”

Beyond the impact on food safety, the Idaho law threatens the First Amendment generally. State legislators either didn’t understand constitutional law or didn’t care. As the brief notes:  “During a committee hearing, an Idaho Senator compared those seeking to uncover issues within the agriculture industry to terrorists, saying the bill was ‘the way you combat your enemies,’ while an Idaho Representative labeled them as ‘extreme activists who want to contrive issues simply to bring in the donations.’”  But, in painting activists like this, they are also preventing journalists from reporting on matters of public concern:   the safety of employees and the public food supply, the treatment of animals, and the impact of the agriculture industry on the environment.  This speech gets the highest level of protection under the First Amendment and journalists, as representatives of the public, must be protected.

As a matter of law, the Idaho statute is a content-based restriction of speech that, as a result, must survive a “strict scrutiny” review.  Content-based laws or regulations are those which target the speech based upon the message itself.  The Idaho law targets “conduct of an agricultural production facility’s operations.”  As a content based restriction on speech, the Idaho law must (1) serve a compelling government interest and (2) be narrowly tailored to protect that interest.  The interest proffered by Idaho lawmakers is the protection “against unwarranted intrusions on legitimate property interests.” However, the federal government has already determined that some invasions on personal property are warranted where food safety is involved. After all, government inspectors are allowed on these operations at any time. More importantly, there are already  state and/or federal laws against trespass, conversion, fraud, and defamation, among others. Further, this law is not narrowly tailored to protect landowners.  It is simply a blanket order on all image and audio recording of agricultural operations that is overly broad and sweeps in a number of protected activities

This case is a big deal for two reasons. First, these “ag-gag” laws have become a bit of a trend recently.  Idaho became the 7th state to pass such a law (and, at the time, was the first in 2 years to pass one). But they are being considered around the country and greatly inhibit newsgathering surrounding agricultural and even industrial farming areas that are a big part of our food source and our economy generally.  More importantly, the Ninth Circuit’s ruling could impact newsgathering  overall. While this case was brought by an animal activist organization which seeks to continue its oversight practices, we don’t want the court to limit currently permitted practices used by investigative journalists.

3. Boal v. United States

Mark Boal, a journalist and award winning filmmaker interviewed Bowe Bergdahl, the U.S. Solider held captive by the Taliban, after Bergdahl’s return to the US.  Portions of these interviews were included in season two of the popular “Serial” podcast on NPR.   Bergdahl is now being court martialed by the military for alleged desertion and the military has indicated that it will issue a  subpoena to Mark Boal, demanding that he produce his notes and recordings related to the Bergdahl interviews as part of the court martial proceedings. Mark Boal proactively attacked the subpoena. Rather than waiting for it to be issued by the military court, he hired attorneys to file a lawsuit in the United States District Court for the Central District of California with the goal of obtaining a declaratory judgment from the court which provides injunctive relief in the form of preventing the subpoena from being issued.

Our brief supports that effort, arguing that courts, including the United States Court of Appeals for the Ninth Circuit (which covers all of California) have recognized the negative impact of forcing the press to breach a promise of confidentiality to a source.  Mark Boal clearly qualifies as a “journalist” for purposes of invoking the reporter’s privilege.  The 9th Circuit is not alone in rejecting the contention that only members of the traditional, “mainstream” media can qualify as a “journalist.”  The District Court should address these issues now to avoid irreparable harm to Boal later. Boal should not be subjected to protracted proceedings before a military tribunal followed by possible enforcement proceedings back in civilian court when this court can simply decide this issue right now.

4. Hassell v. Bird

Dawn Hassell, an attorney, filed a complaint against Ava Bird alleging that Bird wrote 1 of 2 defamatory Yelp review of Hassell and the Hassell Law Group, P.C.  Hassell demanded compensatory and punitive damages from Bird.  Bird did not respond to the complaint and the court entered a default judgment against Bird.  Hassell then moved for the court to take action against Bird, at which point she also requested for the first time that the court:

Make an order compelling Defendant and Yelp to remove the defamatory statements, including all posts, immediately.  If for any reason Defendant does not remove them all by the Court-ordered deadline (which is likely given Defendant’s refusal to answer the complaint), the Court should order Yelp to remove all 3 of them.

Hassell never actually served this on Yelp.  She didn’t even notify Yelp about it.  But the court granted the requested injunction anyway.  About 2 months later Yelp received by mail a letter enclosing the court’s notice of entry of judgment or order which threatened Yelp with contempt proceedings if Yelp didn’t comply with the order.  Yelp contacted Hassell and explained that, as a non-party who didn’t an opportunity to be heard (because it never even received a notice).  Yelp further explained that Section 230 of the Communications Decency Act precludes enforcement of the judgment or any action against Yelp based on the statements made by Bird (or any other user).

Yelp moved to vacate the judgment.  The trial court denied this motion, holding that injunctions may apply to non-parties who are aiding and abetting an enjoined person to violate an injunction without violating due process requirements.  However, it did not address Yelp’s claim to immunity under Section 230.

A California Intermediate Court of Appeals upheld the trial court.  Of relevance to us, the court rejected Yelp’s argument that the first Amendment protects Yelp’s right to distribute Bird’s speech because Yelp wasn’t acting as a publisher but instead was simply acting as an administrator or distributor.  The court also rejected Yelp’s argument that the injunction was an unconstitutional prior restraint because it’s not levied against Yelp but against Bird.  Finally, the court held that Section 230 did not protect Yelp from Hassell’s injunction because Hassell didn’t sue Yelp or even give it advance notice of her claims. That alone meant that this isn’t a Section 230 case – it can only be a Section 230 case if Yelp were directly sued.

Yelp has now asked the California Supreme Court to hear the case (like the United States Supreme Court, the California Supreme Court engages in permissive, not mandatory, review of lower court decisions).  We joined an “amicus letter” in support of Yelp which explains to the court why the Intermediate Court of Appeals decision threatens online speech, especially speech taking place in discussion forums (such as the comments section of a news website).  An aggrieved person’s recourse shouldn’t be against the site owner (who has a vested interest in maintaining decorum and preventing defamation or other illegal speech); it should be against the speaker. A court order requiring the website owner to censor speech is very dangerous.

We further note that, since 1996, courts have understood that Section 230 broadly immunizes online service providers – including websites —  from tort claims based on 3rd party content.  Contrary to the lower courts’ holding, permanent injunctions on speech function as prior restraints and, in fact, are the most serious and least tolerable infringements on the First Amendment.  It doesn’t matter that Yelp was not a party to the case, this is still a prior restraint because the injunction prohibits future speech and imposes a penalty for contempt for violating a prohibition.

Finally, we argue that the lower courts failed to provide Yelp sufficient notice prior to imposing this prior restraint which is contrary to the usual doctrine that requires an adversarial hearing before the government can demand removal of speech.  This is true even for distributors of First Amendment content (such as a bookstore or library).  By demanding that Yelp erase the posts at issue, the court is essentially seizing the speech from circulation without offering Yelp an opportunity to contest the order.

Contact AAN Legal Counsel Kevin M. Goldberg at goldberg[at] or 703-812-0462 if you have any questions about these issues or other legal issues.