Amicus Briefs, Letters and Statements

NEFAC files and signs onto amicus briefs, letters and statements addressing important First Amendment issues. This is a listing of those documents, as well as others that may be of interest to you. While our main focus is on freedom of information concerns, we will consider supporting any amicus brief that addresses the First Amendment. If you would like to have NEFAC sign onto your brief, or to have us file one on behalf of your cause, please email our executive director for more information. Briefs, letters and statements from previous years can be viewed here: 2016201520142013 | 2012 | 2011

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, “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.