Amicus Briefs, Letters 2018

Boston Globe Media Partners v. Dep’t of Public Health (Mass. 2018)

The letter and spirit of the PRL is to “give the public broad access to governmental records.” Amici agree with Plaintiff-Appellant’s position that the Records are not subject to withholding under Exemption (a), but write specifically to address the application of Exemption (c). The Department reads this precisely backwards. It argues that because the records are broad, the public should not be given access. The Department does not dispute that the Records are rightly available to the public at an individual level. Aggregating non-intimate, publicly-available individual records does not inherently transform the compilation into highly intimate or embarrassing information.

Giuffre v. Maxwell (2nd Cir. 2018)

“People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” For this reason, the public’s First Amendment and common law rights of access to judicial proceedings and records play a critical, fundamental part in ensuring public confidence in the judicial system. And public access, which is necessary to both the fairness of the judicial system and the public’s perception of its fairness, cannot be curtailed except where necessitated by compelling interests.

Statement on White House Revoking Credential of CNN Reporter (Nov. 8, 2018)

While the Trump Administration has previously excluded journalists from press briefings — an action that poses constitutional questions in its own right — officials have never revoked a press credential in retaliation for a reporter’s coverage or questioning. This type of punishment is a violation of the First Amendment and a shot across the bow at other reporters who may now reconsider their own questioning in fear of similar consequences. It also sets a dangerous precedent for reporters covering state and local government.

Statement on Limited Media Access at Brown University Event (Nov. 5, 2018)

The New England First Amendment Coalition calls on Brown University and U.S. Sen. Elizabeth Warren, D-Mass., to find a way to remove the audio, video and photographic restrictions planned for the Nov. 7 event. While Brown is a private university, Senator Warren is a public official, and the interest in what a potential presidential candidate says the day after Election Day is obvious.

The Colorado Independent v. Dist. Court for the 18th Judicial District of Colorado (U.S. 2018)

The Colorado Supreme Court’s holding that there is no qualified First Amendment right of access to judicial records in criminal proceedings undermines the press’s vital role in informing the public about the workings of the criminal justice system. Among other things, access to court records gives the news media the tools necessary for daily reporting about the criminal justice system, as well allows journalists, writers, and documentarians to shed light on past cases that inform the public about the history of our nation’s courts and development of important jurisprudence.

Prison Legal News v. Secretary, Fla. Dept. of Corrections (U.S. 2018)

This brief reiterates the concerns of the institutional media that the rule violates the First Amendment for the reasons stated in the petition and suggests that an additional question should be accepted for review, namely: Does a state prison rule which relies on vague standards to screen incoming mail facially violate the First and Fourteenth Amendments?

Statement on Removal of Student Press Article at Burlington High School (Sept. 13, 2018)

The Vermont Press Association and New England First Amendment Coalition condemns the Burlington School District and its High School administration for ignoring an important Vermont education law enacted to ensure First Amendment protections for journalism students and teacher/advisers.

To Special Legislative Commission Re: Mass. Public Records Law (Sept. 12, 2018)

No matter how strongly the public records statute may be written, it still only covers a small fraction of the documents produced by state government. It’s an embarrassment that Massachusetts — whose own constitution explicitly requires government accountability to the people — is the only state in the country where the public lacks a right to records in the Governor’s Office, the judiciary and the legislature. Accountability simply cannot exist where there is secrecy.

To U.S. Senate Judiciary Staff Re: Endorsement of the Private Prisons Information Act (July 2018)

The Private Prison Information Act (S.1728) would strengthen accountability and oversight by requiring non-Federal prison, correctional, and detention facilities holding Federal prisoners or detainees under a contract with the Federal Government to make the same information available to the public as is required of Federal prisons and correctional facilities by FOIA.

Reaffirming Our Commitment to Journalism After Shooting at Capital Gazette Newspaper (July 3, 2018)

The New England First Amendment Coalition mourns the loss of five staff members at the Capital Gazette community newspaper near Annapolis, Maryland, who were killed by a gunman last week in a senseless act of violence. We convey our utmost sympathies to the newspaper’s staff and to the families and friends of the victims. “Like countless other organizations and right-minded Americans, NEFAC unequivocally condemns all mass shootings,” wrote Justin Silverman, the coalition’s executive director, in a blog post today. “But as guardians of the First Amendment, we are especially saddened and concerned by this most recent tragedy because those targeted were journalists. In a very real sense, this hits home for us.”

To R.I. Gov. Raimondo Re: Request to Veto Revenge Porn Bills (May 31, 2018)

Two years ago, you courageously vetoed a “revenge porn” bill promoted by the Attorney General that our organizations had argued raised serious First Amendment concerns. The legislation criminalized a wide array of speech that involved neither revenge or porn. In response, last year and this year, you proposed alternative legislation that we believe addressed those constitutional concerns while providing strong protections to those who were the true victims of malicious conduct. However, in its place and on its way to your desk is a “compromise” bill, based on Massachusetts legislation, that suffers many of the same constitutional infirmities as the 2016 legislation you vetoed. Because it will chill freedom of speech, especially for the media, and will likely result in a court challenge leaving no protection for victims of this conduct, our organizations – representing both the public and the media – once again urge you to veto this legislation.

Legal Memo in Support of Request for Veto of 18-H 7452 and 18-S 2581

H.B. 7452 and S.B. 2581 would make it a crime to distribute a nude image of an identifiable person if the publisher created or obtained the image under circumstances in which a reasonable person would know or understand that the image was to remain private; the image was distributed without the consent of the person in the image; and the publisher did so with knowledge or reckless disregard that the person in the image would suffer “harm.”

In Re 38 Studios Grand Jury (R.I. 2018)

This appeal addresses whether the people of Rhode Island are entitled to the full record regarding the 38 Studios debacle… As the court in the latter case explained: “The basic plot is well-known: 38 Studios, LLC (38 Studios) was induced to move its business to the Ocean State in exchange for a massive financial accommodation; less than two years later, 38 Studios went bankrupt.” The 38 Studios saga touches on all levels of Rhode Island government and involves actions by the Governor, the Economic Development Corporation (EDC), the General Assembly, and the Attorney General, among others.

LMG Rhode Island Holdings, Inc. v. Rhode Island Superior Court (R.I. Super. 2018)

A comparison of analogous federal and state case law shows the Rhode Island Supreme Court would follow federal law and hold that the media and the public generally have a right of access to jurors after the jury has rendered its verdict. This right of access includes the jury list which consists of information that, historically, has been publicly available. The Superior Court’s April 6th bench order appears to bar even members of the public not present from discussing the trial with jurors.

Reply of Amici Curiae to Defendant’s Objection

Defendant’s Objection boils down to two points. First, the card containing the names of the jurors actually seated for the trial is an “administrative” record so it is not subject to a constitutional or common law right of access as a “judicial” record. Second, the Providence Journal’s motion for access to the jurors has been mooted by Justice Vogel’s April 26th letter to the jurors and her May 7th order vacating her April 6th bench order.

To Judge Keough Re: LMG Rhode Island Holdings v. Rhode Island Superior Ct. (April 30, 2018)

Regarding two orders from the Superior Court for Providence County that are being challenged in the above-captioned case. The first, as we understand it, is a post-trial order barring the press and public from contacting and interviewing the jurors who convicted a Pawtucket father of second-degree murder of his 10-year-old daughter … The second, we are informed, bars The Providence Journal (and, presumably, other media and the public) from obtaining a copy of the jury list in the DePina case.

Courthouse News Service v. Brown (7th Cir. 2018)

Amici write to emphasize the importance of the contemporaneous nature of the public’s First Amendment right of access to newly filed civil complaints. Not only does the Constitution create a right of access to civil complaints that attaches upon the court’s receipt for filing, as Plaintiff-Appellee CNS argues, but there is a substantial public interest in contemporaneous access to newly filed civil complaints.

Memorandum in Support of Unsealing Documents in Estate of Chakalos v. Carman (April 10, 2018)

The courts of New Hampshire have always considered their records to be public, absent some overriding consideration or special circumstance and held that the burden of proving the overriding consideration or special compelling circumstance rests with the party seeking nondisclosure.

To Judge Burroughs Re: Students for Fair Admissions v. Harvard (April 6, 2018)

The Coalition’s concern is not whether Harvard’s admission process violates federal civil rights law, but instead that judicial records shedding light on this dispute—which is of exceptional public importance and community interest—remain open to the public. The presumption in favor of access to judicial records sets a high bar before any part of a summary judgment filing may be sealed.

To R.I. House Committee on the Judiciary Re: House Bill 7452 (April 3, 2018)

While an “intent to harm” standard is not included in House Bill 7452, it is included in House Bill 7718, which is supported by Gov. Raimondo and more effectively addresses potential First Amendment conflicts. We strongly encourage your committee to consider the governor’s bill and to support the “intent to harm” standard it wisely includes.

To R.I. Senate Committee on the Judiciary Re: Senate Bill 2450 (March 27, 2018)

During the last two years, we have expressed our concern with legislative attempts to criminalize so-called revenge pornography that also infringe upon the First Amendment rights of Rhode Islanders. Most recently, we joined with the ACLU of Rhode Island, the Rhode Island Press Association and the Media Coalition to emphasize the need for an “intent to harm” standard in any legislation considered by your committee. While an “intent to harm” standard is not included in Senate Bill 2450, it is included in Senate Bill 2581, which is supported by Gov. Raimondo and more effectively addresses potential First Amendment conflicts. We strongly encourage your committee to consider the governor’s bill and to support the “intent to harm” standard it wisely includes.

NEFAC Opposes Efforts By N.H. Prosecutors to Obtain Reporter’s Interview Notes (March 23, 2018)

While reporting for Foster’s Daily Democrat – a publication owned by Seacoast Media Group – journalist Brian Early met with Joshua Flynn, an inmate at the Strafford County House of Corrections who is awaiting trial on sexual assault charges. To help possibly strengthen their case against Flynn, state prosecutors filed a motion to compel on Jan. 29 seeking from Early any unpublished information collected during the interview.

To Vt. Sen. Jeanette White Re: House Bill 700 (March 20, 2018)

To U.S. Congress and White House: A Condemnation of Threats to Openness (March 11, 2018)

Those in the highest levels of government have moved far beyond previous efforts to evade transparency, engaging in an unprecedented, systemic endeavor to undermine the basic norms of disclosure, accountability and truthfulness. The Trump Administration has undermined the role of the press, and uses misinformation to thwart the public’s understanding of its actions. Furthermore, the oversight function of Congress has been weakened, if not trivialized, by partisanship. By devaluing openness and accountability, those in power today are diminishing the public trust in government and eroding the foundations of our democracy.

U.S. v. Chin (1st Cir. 2018)

The district court erred by ordering disclosure of information too limited for the public to identify the jurors in a tried-to-verdict criminal case and by delaying public disclosure of any juror information for much longer than necessary — until after sentencing. The court’s order restricting disclosure to names and hometowns provides too little information in many instances to identify a juror because hundreds of people share the same names in large communities within the district. The court should have allowed disclosure of juror names and full addresses immediately after the return of the verdict.

To R.I. Gov. Raimondo Re: The ‘Revenge Porn’ Bills (Jan. 18, 2018)

Our organizations are writing about the so-called revenge porn bills that were introduced last year and that we expect will be reintroduced this session. As you know, in 2017 the Attorney General reintroduced his version of the legislation that you had vetoed in 2016 (S-401), and you submitted your own bill, S-765, which sought to address the serious constitutional defects in the AG’s bill.

Comments Re: R.I. Dept. of Safety Regulations on APRA Proposal (Jan. 18, 2018)

This testimony is submitted on behalf of ACCESS/Rhode Island, a coalition of non-profit organizations and First Amendment advocates such as the New England First Amendment Coalition, all dedicated to ensuring government at all levels is accessible to the public.