AAN remains active on free speech issues across all branches of government but there has been a particular flurry of activity within the judiciary in the past few weeks. We’ve joined three amicus briefs filed in California (2) and the District of Columbia (1) in cases involving defamation (2) and access to court records (1); all of the briefs were drafted by the Reporters Committee for Freedom of the Press.
Montgomery v. Risen
This case involves a defamation claim brought against New York Times reporter James Risen, albeit for statements written by Risen in his book Pay Any Price: Greed, Power, and Endless War. The statements in question were written about Dennis Montgomery, who was a government contractor developing anti-terrorist technologies after the September 11 attacks. In the course of a book which generally criticizes the U.S governments wasteful and ineffective spending after 9/11, Risen cites Montgomery’s work on a program that claimed to track hidden messages in Al-Jazeera broadcasts, discrediting Montgomery’s claims about that software and describing Montgomery specifically as “someone who has been accused of being a con artist” and stating that Montgomery’s technology is “one of the most elaborate and dangerous hoaxes in American history.” Montgomery filed a suit against Risen and Houghton Mifflin Harcourt Publishing. The District Court below granted summary judgement in favor of Risen.
Our brief argues:
Speech about public figures enjoys greater constitutional protection than speech about private persons. A person qualifies as a “public figure” if he or she occupies a position of “such persuasive power and influence that they are deemed public figures for all purposes.” However, a defamation plaintiff can also become a “limited purpose private figure if they have “thrust themselves to the forefront of particular public controversies. The distinction is an important one, because a public figure has a higher burden to victory than a private figure, most notably because any public figure plaintiff must show that the defendant acted with the requisite level of fault, i.e., actual malice.
Courts have uniformly found that government contractors qualify as limited purpose public figures because willfully intervening in a government activity suggests a certain level of publicity regarding that activity. This is even more certain when the prospective limited purpose public figure is involved in military and national security matters, which is at the zenith of public concern. Despite the fact that Montgomery claims he is not a limited purpose public figure because he had not “sought or acquired any position of public power,” the District Court rightfully classified him as such given his “special prominence” in the debate around these issues and the alleged defamation was germane to Montgomery’s participation in the controversial program – which is the only context in which Risen discussed Montgomery. As the brief states, “[b]y voluntarily engaging in a government activity that was likely to receive widespread media attention, Montgomery chose to become a limited-purpose public figure.” Holding otherwise would chill speech about private contractors who are increasingly responsible for governmental affairs (which is likely to exponentially increase in coming years).
The protections for pure opinion and, especially, opinion in the form of hyperbole are also important. The Supreme Court has been very clear in protecting opinion-based speech in the political arena, including statements of this type (calling someone a “con man”). The statements made about Montgomery by Risen in this book are classic opinion and should be protected as such.
What we’re really worried about here is maintaining the status quo in the face of a possibly adverse ruling from the United States Court of Appeals for the D.C. Circuit, which many refer to as the “second highest court in the land.” It will certainly be useful for reporters to know that the definition of a “limited purpose public figure” is broad enough to encompass anyone who works on high level government matters, even if those individuals-turned-plaintiffs are not themselves either (1) government officials or (2) well-known to the public generally (the usual criteria where the higher standard of actual malice is applied). As the introduction to the brief notes: “Faithful application of the public figure doctrine is especially important where an individual has taken on vital responsibilities over government activities involving national security.” It will also be helpful to have the court reaffirm a broad definition of what constitutes opinion, especially when it takes the form of hyperbole, to give leeway to those who wish to write critical commentary.
Courthouse News Service v Yamasaki
This is a case currently pending before a federal District Court. The Courthouse News Service filed a lawsuit against Defendant David Yamasaki in his official capacity as Court Executive Officer/Clerk of the Orange County Superior Court (OCSC) claiming that OCSC unconstitutionally delays access to newly e-filed civil complaints. It subsequently filed a motion for preliminary injunction to enjoin OCSC “from denying CNS’s right of timely access to new unlimited complaints.”
If the overall issue regarding access to e-filed court documents sounds familiar, it is because we joined a similar brief filed in March 2016 in a different county in California (that case was Courthouse News Service v. Planet, and involved Ventura County). The United States District Court for the Central District of California ruled in our favor there. This case was filed to effect the same result in Orange County, which technically is not obligated to follow that earlier ruling.
This brief argues:
The First Amendment right of access extends to “timely access to newly filed complaints” and attaches contemporaneously with receipt of new complaints by a court as the loss of First Amendment freedom, even for minimal periods of time, creates an irreparable injury. From a journalists perspective, timeliness is essential to the very decision of whether to publish or not publish a story. The United States Supreme Court and federal courts of appeal have both recognized the importance of timely access to documents; the ante has only been upped in the digital era.
Prompt access to civil complaints facilitates accurate news reporting. As stories are constantly being updated, it is important to be accurate from the start: “Same-day reporting on newly filed cases will be more authoritative and accurate if the complaints themselves are available for inspection, copying, and reference by members of the news media.” This is enhanced by referencing, quoting from or, ideally, linking to court documents.
The public has a right to be fully informed on matters pending before state courts and which may demand court resources for the near future as a means of overseeing the court system, the administration of justice and the allocation of public resources.
The fact that a news organization is a “for-profit” entity should have no bearing on the need for timely access to civil complaints. The key question should not be one of “for profit/not-for-profit” but instead “whether the place and process have historically been open to the press and general public” and “whether public access plays a significant positive role in the functioning of the particular process in question” (the standard currently employed by the Supreme Court with regard to court access generally).
There is an obvious importance to having immediate access to court records and we have viewed California as a standard bearer on this issue and, given the earlier opinion on the same matter, there is concern that there court be different rules applied in different state courts throughout California. We want this requirement of immediate access applied as broadly as possible, both in California and elsewhere.
Hassell v. Bird
This is another case which isn’t exactly new. In fact, we joined an “amicus letter” in which we asked the California Supreme Court to review a lower court decision. The California Supreme Court agreed, and here we are.
The brief is filed in support of Yelp, even though that company wasn’t a party to the original defamation case filed by an attorney (Dawn Hassell) against a Yelper (Ava Bird) who posted 2 allegedly defamatory reviews of Hassell’s services. 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, nor did she notify Yelp about the filing. But the court granted the requested injunction anyway and threatened Yelp with contempt proceedings if Yelp didn’t comply with the order. 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. 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 overall thrust of our brief focuses on the effect that affirming the lower court’s decision would have on CDA Section 230 and, by extension, the effect on journalism. As stated in the introductory section:
If the Court of Appeal’s decision is permitted to stand, Internet platforms that provide space for comment and discussion, like many news media websites, could be compelled to remove third-party speech to the detriment of the platform, and the quality and integrity of the public discourse that takes place there.
The initial section of the brief explains how forums and comment sections on news media websites can offer additional ideas and perspectives beyond those provided in the original article. The brief provides examples of instances in which commenters served as fact checkers noting, as well, that even the possibility that a reader may fact check a story will force journalists to be more accurate in their reporting. The conversations that occur in a story’s comment section may shape future reporting, providing feedback on subjects readers would like the media to address and specific leads to pursue. As the brief states: “Some journalists routinely rely on online engagement with readers to develop stories, crowdsourcing research by looking to readers for quotes, photographs, and contact details.” In addition, reader feedback on an issue may itself become a story, especially in terms of gauging public reaction to a news event. The publication of a story “may only be ‘the beginning of a conversation’ between journalists and members of the public.”
We also explain how the Court of Appeals’ decision threatens this conversation. Section 230 was intended to encourage the free exchange of ideas on the Internet while maintaining the exercise of editorial judgment by the information content provider. The lower court decision, by raising the specter of contempt proceedings and punishment against Yelp in the event that Yelp refuses to comply with a court order to remove a comment is inconsistent with Section 230’s promotion of free speech, especially as it is not practicable to actively monitor the high volume of comments received every day. Media entities are simply likely to disable comments altogether.
This is a very important case with future implications for all media. The entire freedom enjoyed by information content providers like websites, including news sites who allow comments, is threatened because the lower court decision is so incredibly wrong. If allowed to stand – and if it is copied elsewhere – a news site could be forced by a court to remove comments anytime a judgment is entered against a commenter (even if the commenter – as is likely going to be the case quite often – doesn’t challenge the lawsuit filed against him or her). The site doesn’t even have to be given notice in advance or the opportunity to stand up for itself. It’s a complete end run around Section 230 of the Communications Decency Act. We really need the California Supreme Court to overturn the decision.