We’ve joined three amicus briefs in the past few weeks (and there are at least three more in the works). But, for our purposes, none is more important than Arkansas Times v. Waldrip.  This is the Times’ challenge to Arkansas’ “Anti-BDS” law, which requires any state contractor sign a certification that it will not boycott Israel or take “other actions” in support of a boycott.  As a newspaper who takes advertising from government entities, the Times qualifies as a “state contractor” and could potentially lose the right to contract with (get advertising from) the state if it doesn’t agree to the certification.  The Times refused to sign the certification and then went to court to have the law declared unconstitutional. A United States District Court for the  Eastern District of Arkansas sided with the state. The Arkansas Times has appealed to the United States Court of Appeals for the Eighth Circuit.

Our brief was drafted by the Reporters Committee for Freedom of the press and signed by a total of 16 media organizations and companies. It explains how the District Court’s ruling that a boycott of Israel is “neither speech nor expressive conduct” tramples on the paper’s editorial independence (note that this brief does NOT opine for or against a boycott of Israel).  First, whether it signs or doesn’t sign, a publication it is forced to take a position for or against Israel rather than remain neutral. Second, the threat of enforcement of this vague law is likely to chill speech. Third, federal law is clear that cancellation of state advertising in direct retaliation for the editorial decisions of a newspaper violates the First Amendment.  It also argues that the state law is probably a “content-based” – and, in fact, “viewpoint-based” — regulation of speech (in that it not only restricts speech based on its overall message but chooses a particular side in a debate). That makes it instantly constitutionally suspect.  But, even if it were a facially neutral economic regulation, it would be unconstitutional as well.

We also joined an amicus brief filed in support of ProPublica, after that news outlet was hit with a clearly unconstitutional prior restraint. The Presiding Judge of the Cook County Juvenile Court issued an order in mid-March issued a broad order prohibiting ProPublica – or any other media – from identifying families involved in a child welfare case.  All media were blocked from even attending the proceedings.  Our “brief” is actually an amicus letter – again drafted by the Reporters Committee for Freedom of the Press (and this time joined by 39 organizations and companies, including AAN).  It noted that the Supreme Court has held that closure of proceedings is only allowed after an on-the-record hearing followed by findings of fact (none of which happened here).  By closing these proceedings, the court has prevented reporting on an important matter of public concern — specifically, the systematic mistreatment of children in the Illinois child welfare system.

Finally, in Blades v. United States, we take on a procedure employed in District of Columbia courts but often replicated elsewhere: the use of a “hushing” system to prevent the public and press in a courtroom from hearing “sidebar” conversations between the judge and trial participants. In this case it was used to block all conversations between the judge and potential jurors during voir dire without regard to the specific question involved and without any prior notice of its use or opportunity for anyone to object. The defendant in the case challenged this broad use of the “husher” on appeal as a violation of his First and Sixth Amendment rights.  Our brief , drafted by – you guessed it – the Reporters Committee for Freedom of the Press – was filed with the District of Columbia Court of Appeals and once again argues that there is a presumption in favor of open trials (including voir dire prior to trial) that can only be overcome in very limited circumstances. Specifically, the government must demonstrate a compelling interest in closing the proceedings (or, in this case, using the “husher”) and, the measure must be narrowly tailored to protect interest without otherwise infringing free speech.  Use of the “husher” fails this test because there was no prior notice given as to the need for its use and it was certainly employed too broadly.