How We Spent Our Summer “Vacation” by the AAN Free Speech Committee

You may notice right off the bat that the word “Vacation” is in quotes. That’s because the Free Speech Committee didn’t take any time off from our work in protecting and promoting the rights of AAN members.

Perhaps you’ve already read about 100+ organization letter we joined which asked Attorney General Jeff Sessions to withdraw the Department of Justice’s request for an incredibly over-broad amount of information about users of and even visitors to the website.  That was but one high profile matter we were dealing with this summer.  In addition to organizing the popular Free Speech Keynote at the Convention (and a well-received FOIA Workshop to boot), we signed letters seeking mandatory access to information held by private prisons and information compiled by the Congressional Budget Office, as well as briefs supporting application of state Anti-SLAPP laws in federal court, the rights of student journalists, undercover whistleblowers, and the ability to be free from mobile phone tracking. We also spoke out against “reverse FOIA” lawsuits designed to harass requesters into withdrawing their records requests.

Here is a bit more information on all of these efforts.

We hope you were able to join us in D.C. in July, and if you were there, we certainly hope you enjoyed the FREE SPEECH KEYNOTE on Friday afternoon.  The discussion on “Threats to Press Freedom” was extremely well-attended, informative and engaged those in attendance.  If you weren’t there, don’t worry, you can listen to the audio via the It’s All Journalism podcast.

We signed on to a few LETTERS supporting good legislative ideas or opposing bad bills:

  • The Private Prison Information Sharing Act of 2017 will require federal government agencies to comply with FOIA requests relating to private prisons, jails, or detention facilities that detain or incarcerate for the federal government, in the same way that those agencies must comply with such requests relating to federally run facilities. It’s important legislation because currently over 20 percent of federal prison, jail, and detention beds are located in privately run facilities, with the private companies asserting they are not subject to FOIA. We joined dozens of organizations on a letter drafted by OpentheGovernment which supports this legislation, arguing that the legislation is necessary because:  (1) private prison companies received federal funding and provide the same service as government agencies; (2) the DOJ has found that private prisons are less safe and secure than government-run facilities; and (3) private prisons actively seek to avoid oversight by blocking requests for that information these private companies have submitted to the government.
  • We were part of a broad alliance of 15 organizations who signed a letter in support of the “CBO Show Your Work Act”, a bill which will make available to members of Congress and the public (via the CBO website): (1) the fiscal models, policy models and data preparation routines used in estimating costs and other effects of legislation, (2) any updates of these models or data preparation; (3) for costs and other fiscal effects, the actual data, programs, models and detailed computations used in preparing those estimates – enough to let outsiders replicate the cost projections on their own.

We joined our usual fair share of AMICUS BRIEFS:

  • We were one of 25 media organizations and companies to join an amicus brief filed in Carbone v. CNN. This case stems from a defamation lawsuit filed against CNN by the former CEO of St. Mary’s Medical Center (located in West Palm Beach, FL).  That CEO, Davide Carbone, alleges 25 broadcasts, online news articles and social media posts intentionally manipulated statistics to fabricate claims that the infant mortality rate for open heart surgery at St. Mary’s is three times the national average.  Carbone filed a lawsuit in the United States District Court for the Northern District of Georgia.  CNN invoked the newly-enacted Georgia Anti-SLAPP law in moving to dismiss the lawsuit.  The court ruled against CNN, holding that an Anti-SLAPP law is not a substantive law protecting the First Amendment right to free speech but instead more of a procedural rule telling courts how to operate; thus, a state Anti-SLAPP law cannot be used in federal court. Our amicus brief, filed in support of CNN’s appeal of that ruling to the United States Court of Appeals for the 11th Circuit seeks to stem a mini-trend that has started among courts disfavoring use of state Anti-SLAPP laws in federal courts.  Given that there are already Anti-SLAPP laws in approximately 30 states and there seems to be more momentum for passage of new state Anti-SLAPP laws (or improvements on the weaker versions of current laws) than there is toward passage of a federal Anti-SLAPP law at the moment, it is important to make the state laws as broad as possible.
  • We were proud to be one of 9 organizations supporting The Koala, a student-funded magazine at the University California-San Diego. Outraged by The Koala’s content — which, admittedly can be described as juvenile shock humor purposefully calculated to push the boundaries of good taste – the university entirely canceled all funding for all student media organizations. The publication disagreed and, represented by the American Civil Liberties Union, sued in federal court in California.  Unfortunately, the United States District Court for the Southern District of California disagreed, ruling for the University. The Koala appealed to the United States Court of Appeals for the Ninth Circuit. As our brief states:

It is not hard at all to envision what will result if this Court adopts the view that forum-closure decisions are immune to challenge. Forums, both physical and virtual, will become now-you-see-it, now-you-don’t zones in which the opportunity to speak will magically disappear when a disfavored speaker or publisher shows up on the scene, and then magically reappear for use by a speaker who shares the college’s views. Since there is no stopping point to the District Court’s ruling, a forum can be created and then un-created on a daily basis – all without redress for the excluded speaker.

  • PETA v. Stein is a challenge to North Carolina Gen. Stat. 99A-2, a law in the style of a classic “ag-gag” statute that, in fact, goes way beyond agriculture.  It actually creates a civil cause of action for any employer against any employee who enters a non-public area of the employers premises if the employee enter that area for any reason other than a bona fide intent of seeking or holding employment or doing business, if that employee then captures or removes information or records images or sound.  So any employee at any type of company that seeks to be a whistleblower exposes himself or herself to a civil action; because the law applies to any person who places an unattended camera or surveillance device on the employer’s premises, it would apply to undercover journalists as well – actually it would apply to any journalist. The case is now before the United States Court of Appeals for the Fourth Circuit, where we joined 25 other organizations on a brief filed by the Reporters Committee for Freedom of the Press which explains how this law will chill investigative journalism and whistleblowing, why these plaintiffs do have standing to bring this lawsuit, and why the law’s imposition of joint liability for “[a]ny person who intentionally directs, assists, compensates, or induces another person to violate it” is particularly dangerous for journalists, who could  be joined as a defendant in a lawsuit if it is alleged that a news publication had any hand in an employee engaging in whistleblowing.
  • We went all the way to the top in Carpenter v. United States, joining 19 other organizations on a brief filed in advance of oral argument before the United States Supreme Court this fall.  At issue here is  whether the government has the ability obtain long-term tracking information from phone service providers. Our brief argues (1) there is a historical connection between the Fourth Amendment right to be free from unreasonable search and seizure and the First Amendment rights to free speech and free press; (2) the advent of new technologies has only made this connection stronger, given that the government can now track the movements and other activities of a reporter in the same way it tracked these criminal defendants; and (3) access to this data can reveal a lot about the stories a journalist is working on before those stories are published – including where the journalist went acquire information and who he/she talked to.
  • AAN was one of 16 organizations joining a brief addressing an interpretation of California’s public records law.  PPOA v. City of Pasadena stems from California Public Records Act request filed by the Los Angeles Times for a report about the Pasadena Police Department’s investigation into an officer-involved shooting.  The Pasadena Police Officers’ Association (PPOA) proactively filed suit to keep the report secret (the technical term is a “reverse-CPRA lawsuit” and, if it sounds familiar, it is the same tactic employed by former Sacramento Mayor Kevin Johnson against our own Sacramento News and Review).   The Times was actually successful in compelling disclosure of much of the report (with limited redactions), the Times then asked for attorneys’ fees and costs from PPOA and the City of Pasadena. Our brief argues (1) the entire idea of a “reverse-CPRA” lawsuit runs counter to the statutory and constitutional guarantees of access in California; and (2) assuming that these reverse-CPRA actions are legitimate under California law, they must comply with the law’s “fee shifting” provisions which provide for a mandatory recovery of attorney’s fees by successful plaintiffs.

We’re sure you’ll agree that this was one hot summer. But don’t worry, just because the weather may start to get cooler, we don’t intend to go into hibernation.

Kevin Goldberg, Legal Counsel for AAN
on behalf of the Free Speech Committee