Amicus Briefs and Letters 2017

To Maine Supreme Judicial Court Re: Task Force on Transparency and Privacy in Court Records (Dec. 15, 2017)

NEFAC is concerned with recommendations that, if adopted, would limit online public access to judicial documents. Providing online access to only attorneys and litigants, as is being recommended, undermines the ability of all Maine residents to learn about their government and to keep its judicial system accountable. As we wrote to the Judicial Branch Transparency and Privacy Task Force on Sept. 27, “the public does not benefit from a secret court system, operating in obscurity, with meaningful access limited only to persons deemed worthy of finding out what’s going on. In the long run, secrecy is corrosive to the justice system.”

Comments Re: Maine Judicial Branch Task Force on Transparency and Privacy in Court Records (Dec. 15, 2017)

As Maine moves toward an electronic case management system, its courts have a tremendous opportunity to enhance their relationship with the public by providing Internet access to judicial records. And, as a legal matter, providing electronic access equivalent to access available at the courthouse is the most authentic means of complying with the public’s established First Amendment and common law rights of access.

Comments on Proposed Revisions to the R.I. Dept. of Admin. Rules on Public Records (Nov. 16, 2017)

While particular provisions of the statute require a balancing of interests in determining the availability of certain information, there remains a presumption of openness. . . . That needs to be emphasized, and it is something that this section of the Rules fails to capture. It is “unwarranted” invasions of privacy that portions of APRA are designed to protect, not privacy in general.

Del Gallo v. Walsh (D.Mass. 2017)

The categorical exclusion of journalists from the enormous buffer zone around the Parkman Bandstand on August 19, 2017, violated the First Amendment to the U.S. Constitution. This exclusion impermissibly prevented journalists from hearing what the rally participants were saying and from interviewing individuals about the reasons for their participation. Accordingly, any preliminary relief ordered by the Court in this case should, at a minimum, contain provisions ensuring broad press access to the rally that has reportedly been planned for November 18.

To East Greenwich (R.I.) Town Council President Re: Open Meeting Law Violations (Nov. 14, 2017)

In Judge McGuirl’s decision, she cited as precedent two major Supreme Court of Rhode Island cases interpreting this provision in the OMA . . . Judge McGuirl’s decision admonished your Town Council for posting an agenda item that was more deficient than the notice in the precedential Tanner case. Tonight’s agenda item, we submit, is even less compliant with the statute.

To Boston City Officials Re: Access to Public Demonstrations on Common (Oct. 24, 2017)

A coalition of First Amendment advocates demanded increased press access to public demonstrations on the Boston Common and asked city officials to revise policies that excluded journalists from a controversial rally in August. With another rally scheduled on Nov. 18, the groups, including NEFAC, encouraged city officials to make “significant changes” to comply with the First Amendment while ensuring public safety.

To City of Biddeford Officials Re: Delivery of Unsolicited Printed or Written Materials (Oct. 16, 2017)

NEFAC is deeply troubled by a recently passed ordinance that limits the delivery of unsolicited printed or written materials. . . . This ordinance raises serious First Amendment concerns given its restrictions on the press and your constituents; the financial burden it places on newspapers and the City of Biddeford; and the impropriety of the intensive government involvement in private business operations this new ordinance demands.

Courthouse News Service v. Yamasaki (9th Cir. 2017)

As the U.S. District Court for the Central District of California (the “district court”) concluded, the First Amendment right of access requires timely access to civil complaints. . . . Immediate access to such public records is constitutionally required. Every federal appellate court to consider the issue has held that the First Amendment right of access applies in the civil context. And, because any delay can result in a complete denial of meaningful access, the First Amendment requires contemporaneous access to civil complaints.

To Maine Transparency Task Force Re: Online Access to Court Records (Sept. 27, 2017)

The public does not benefit from a secret court system, operating in obscurity, with meaningful access limited only to persons deemed worthy of finding out what’s going on. In the long run, secrecy is corrosive to the justice system. . . . Our position is that any already public record, available to anyone now at the clerk’s office in paper copy, should also be public in digital form after the court system moves to an online case management system.

Giuffre v. Maxwell (2d Cir. 2017)

This case concerns an order by the Southern District of New York that permitted the parties to file vast numbers of judicial records under seal or redacted in their entirety as a matter of course and without any judicial oversight. Amici write to emphasize their concern with the breadth of the sealing permitted by the district court in this case, which is contrary to both the common law and First Amendment presumptions of access.

To Chairman Dooley Re: Rules on Recording Devices in Vt. Courts (Sept. 18, 2017)

In summary, we believe the public has a right to audio and video record what occurs during open court proceedings. Citizens — media and non-media alike — should be allowed to record so long as that recording isn’t disruptive or outweighed by substantial interests. In addition, we believe such recording should be allowed without burdensome registration requirements and without the threat of equipment confiscation by the court.

To U.S. Attorney General Jeff Sessions Re: Request for Data on Protesters (Aug. 24, 2017)

Carpenter v. United States (U.S. 2017)

This case concerns the constitutionality of the warrantless acquisition by law enforcement of historical cellular telephone data revealing a comprehensive picture of an individual’s location and movements. . . . Because the Fourth Amendment’s prohibition against “unreasonable searches and seizures” plays a vital role in protecting First Amendment rights, the question presented is one of particular importance to journalists and news organizations. Absent meaningful Fourth Amendment protection for records like those at issue in this case, activities protected by the First Amendment — including newsgathering, speech, expression, and association — will be chilled.

To U.S. Congress Re: Private Prisons Information Act of 2017 (Aug. 3, 2017)

Private prison companies that receive federal funding provide the same service as government agencies, but, by asserting their status as private entities, claim that they are not subject to public records laws such as the FOIA. As a result, the public is largely in the dark with regard to the functioning of the many of this country’s private prisons, and the industry operates with a lack of oversight and accountability mechanisms. This dynamic hinders the ability of the government and public to ensure private prison companies are living up to their contractual obligations and not wasting taxpayer dollars.

To R.I. Gov. Gina Raimondo Re: House Bill 6323 (July 17, 2017)

This piece of legislation amends the Rhode Island Open Meetings Act (herein OMA) in two important ways. First, it excludes from the calculation of time required for advanced notice of meetings both weekends and holidays. Second, it requires municipal public bodies to post their minutes online, as is currently required of state public bodies. These are both significant improvements that advance the public interest and promote transparency in government.

To R.I. Gov. Gina Raimondo Re: Student Press House Bill 5550 (July 17, 2017)

House Bill 5550 invites the discussion of substantive public issues into the newsroom and into the school day, where students can practice the civic-engagement skills preparing them for a lifetime of participatory citizenship. We urge your support for this commonsense legislation that will establish Rhode Island as a leader in journalism education at a time when journalism is sorely in need of champions.

Courthouse News Service v. Planet (9th Cir. 2017)

The press and the public have a right to learn about the matters consuming judicial resources and occupying space on the dockets of the public court system. Civil complaints are the foundational documents in a case and reveal a wealth of information about how citizens use the judicial branch, how the law exposes citizens to suit or provides remedies, and how effectively the judiciary functions. Prompt access to civil complaints ensures that the public learns about important cases while they are still newsworthy, promotes accuracy in reporting, and leads to more meaningful public debate about those cases.

To R.I. Gov. Gina Raimondo Re: “Revenge Porn” Bills (June 30, 2017)

Later today, Senate Judiciary Committee is scheduled to vote on a “revenge porn” bill. On the table are a bill proposed by the Attorney General identical to the one you vetoed last year, the constitutional alternative you submitted, or, we understand, a “compromise” bill based on one introduced by Governor Baker in Massachusetts. On behalf of the ACLU of Rhode lsland, the Rhode lsland Press Association, and the New England First Amendment Coalition, we are writing to urge you to stay the course and call for passage of your legislation.

To Massachusetts Supreme Judicial Court Re: Anti-SLAPP Statute (June 7, 2017)

The court announced a new standard for deciding whether an action should be dismissed under the anti-SLAPP statute and did so without the benefit of briefing — either by parties or amici curiae — about the benefits, drawbacks and potential unintended consequences of the new standard. . . . The kinds of parties most likely to be burdened by the costs of the new standard are those most in need of protection. They include low-income tenants who report building code violations; columnists or bloggers who write about corporate malfeasance; consumers who report unscrupulous business practices; and digital activists organizing collective action on social media.

Toensing v. Attorney General of Vermont (Vt. 2017)

The Amici urge the Court to apply the Vermont Public Records Act as the Legislature intended and the plain text requires, consistent with its own past ruling on the definition of “public document,” and that the Court require the Attorney General ‘s Office (“AGO”) and all state agencies to produce all responsive documents under the Public Records Act, even if they are located at a private email address or text.

To Rhode Island Senate Committee on Judiciary Re: “Revenge Porn” Legislation (May 9, 2017)

If passed, S.0401 will have a chilling effect on Rhode Island news organizations and their reporting. While the privacy interests this bill seeks to address are legitimate and in need of protection, S.0401 lacks necessary First Amendment safeguards. The legislation places the burden on news publishers to prove their reporting is in the public interest, a burden that will undoubtedly lead to self-censorship. Senate Bill 0765, in contrast, removes that burden and more narrowly focuses on the intended targets of both bills — those publishing so-called “re-venge pornography” — and not those publishing the news.

To Maine State House Facilities Committee Re: Recordings of Legislative Hearings (April 25, 2017)

Keeping legislative committee meetings open for public review is critical for an informed citizenry to maintain trust in its government. Any attempt to limit access to testimony about matters of public concern is a dangerous precedent toward government secrecy, regardless of whether the deliberations and testimony were yesterday or five years ago. Audio recordings of committee proceedings are of essential current-day and historic value and we ask you to make the files readily available, in the public interest.

To Maine Committee on Judiciary Re: Advance Payment of Costs for Public Records Requests (April 24, 2017)

L.D. 1432 would allow a custodian to require advance payment for all costs of producing a record – no matter how small – before that record is provided. While this may seem like a practical way for agencies to recoup their costs and prevent non-payment of fees, there is already a sufficient safeguard for agency budgets: § 408-A (10). This provision of FOAA allows custodians to require advance payment for requests made by individuals who have previously failed to pay a fee or are requesting records that will cost more than $100 to produce. Under § 408-A (10), advance payment can be required even before any time is expended on the search and retrieval process.

Higginbotham v. City of New York (2nd Cir. 2017)

[T]his court should embrace the opportunity to provide judicial assurance that the right to photograph and record police activity in public places is enshrined in the First Amendment. In addition, since the First Amendment guarantees the freedom to document police activity, this court should give that guarantee teeth by holding that the constitutional right to record police is “clearly established.” Otherwise, officers in this circuit will continue to argue . . . that the doctrine of qualified immunity provides blanket protection against lawsuits challenging arrests aimed at thwarting the lawful recording of police activity.

Statement in Support of Freedom of the Press (March 2, 2017)

As organizations committed to the First Amendment right of freedom of speech and the press, we are alarmed by the efforts of the President and his administration to demonize and marginalize the media and to undermine their ability to inform the public about official actions and policies.

To N.H. Rep. Carol McGuire Re: “An Act Relative to the Use of Drones” (Jan. 25, 2017)

We believe the proposed bill poses a serious risk to innovative use of drones to gather and disseminate information and images on matters of public concern as well as the public’s right to receive news, as guaranteed by the First Amendment to the U.S. Constitution and Article 22 of the New Hampshire Constitution.

To Maine Supreme Judicial Court Re: Maine Rule of Probate Procedure 92.12 (Jan. 25, 2017)

NEFAC is concerned about the proposed amendments to Maine Rule of Probate Procedure 92.12 and the effect they would have on the public’s ability to monitor the state’s probate courts. Common law and the First Amendment require transparency in the judicial system. Such transparency helps the public understand how courts work and allows the public to more easily monitor their operation. The breadth of these proposed amendments, however, severely limits that understanding and oversight. In addition, no compelling reason has been presented by the court to justify these changes.

Steinmetz v. Coyle (1st Circ. 2017)

Anti-SLAPP laws “provide journalists, publishers, sources, and others with an effective means of disposing of lawsuits brought to chill protected speech and petitioning activities. Every day, news organizations exercise freedom of press and speech rights by venturing into the thick of public controversy to ensure sure citizens are fully informed about their world and to promote public discourse. As such, the ability of the news media to disseminate information is an essential element of the First Amendment right to petition the government.”

Testimony to Providence City Council Re: Opt-In Mass Delivery Ordinance (Jan. 3, 2017)

In short, we believe the ordinance unfairly targets certain First Amendment-protected speech without adequately addressing the littering problem it intends to solve. While well-intended, this type of ordinance has been ruled unconstitutional in municipalities across the country, and Providence need look no further than other cities in Rhode Island for examples of more reasonable alternatives. . . . Ordinance 11096, however, singles out for-profit newspapers and similar communications while reserving the right to leave literature (and presumably to some, litter) to other interests, including non-profit newspapers. A charity or political candidate can (appropriately, in our view) leave donation solicitations at a private residence under this ordinance, but a newspaper providing coverage of local affairs is prohibited from leaving a copy in the driveway.