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:
To U.S. Supreme Court Re: Live Audio Access (Sept. 16, 2020)
Telephonic access during COVID-19 has convincingly demonstrated the public’s appetite to observe the operations of the Court and has shown that the Court can balance increased access with the integrity of its proceedings. Accordingly, continued live audio for oral arguments and the addition of live audio for opinion announcements will each promote transparency, accountability, and public confidence in the judicial system.
To N.H. Commission on Law Enforcement Accountability (Aug. 19, 2020)
Transparency and accountability of law enforcement is perhaps more important today then ever. One needs only to turn on the television or computer to learn that communities across this nation innately distrust their local, state and federal governments, and, in particular, the police forces tasked to protect and serve those communities. Such distrust is clearly born from the lack of accountability and transparency, perceived or actual, from law enforcement agencies.
Alasaad v. Wolf (1st Cir. Aug. 7, 2020)
Personal electronic devices have become extensions of the human mind. Cell phones and laptops store enormous volumes of individuals’ expressive materials: their draft work product, private thoughts, associations and professional relationships, and digital records of their whereabouts and communications with others. Suspicionless searches of these devices at the border raise constitutional questions that analog-era precedents cannot answer. Because of the scale and sensitivity of the information stored on these devices, government searches of them pose a grave threat to the First Amendment freedoms of the press, speech, and association.
To Conn. State Judiciary Committee (July 17, 2020)
With those in Connecticut now discussing how law enforcement can best be structured and overseen by the public, this is an opportune time to make meaningful changes to our police departments. By making the changes listed above, citizens can more easily build trust with and oversee their law enforcement officers. Police departments throughout the state will also be equipped to better protect the rights of the public and more effectively serve their communities.
To Vt. Sen. Government Operations Committee (June 18, 2020)
During the last several weeks, the issue of police brutality has risen in our national conscience and there now seems to be the political appetite to make necessary reforms to law enforcement policy. This is an opportunity for leaders such as yourselves to help make both local and state police departments as well as county sheriffs offices more accountable for their actions and to prevent instances of misconduct that have been plaguing communities throughout the nation.
To Denver Officials Re: Attacks and Arrests of Journalists (June 16, 2020)
Officers on the ground must understand that gathering news and recording police activities are not crimes, and that journalists who are complying with reasonable law enforcement directions when covering civil unrest are protected by the First Amendment. In incidents documented in Denver, the journalists were clearly identified as such and indisputably in compliance with the law.
Statement on Law Enforcement Transparency and Accountability (June 12, 2020)
Many of our nation’s cities have experienced unrest and violence in response to the death of George Floyd at the hands of a Minneapolis police officer with a long record of public complaints. “Business as usual” in the oversight of law enforcement is not a satisfactory response to urgent and well-founded concerns that police officers are able to avoid consequences for wrongdoing, abetted by a tight regime of official secrecy. Change must happen.
Law enforcement officers do not have legal immunity when they violate clearly established rights under the First Amendment. The right of the press to document police activity is foundational to our democracy and has long been recognized and protected by the courts. Beyond, however, the Constitution and the law, any targeting of reporters for doing their jobs—keeping the public informed during an extraordinary period of civil unrest—is beyond the pale in a free society.
As members of the news media and organizations that protect the rights of journalists to gather and report news, the undersigned write to ask that you take immediate, concrete steps to end the series of police arrests and attacks on credentialed and clearly identifiable journalists in your city in recent days. Police have arrested, detained, and threatened journalists, and have physically assaulted them with rubber bullets, pepper spray, tear gas, batons, and fists. In every case that we are aware of, there are strong indications that officers knew the journalist was a member of the press.
Two and a half months ago, in response to the Covid-19 pandemic, you issued an executive order, 20-05, suspending certain provisions of the Access to Public Records Act. . . . [Y]ou have twice extended it (EO 20-25, EO 20-34). In light of the message of indifference that this action is communicating to public bodies about, and the toll it is taking on, the public’s right to know, we ask that you immediately rescind the extension of this provision contained in EO 20-34 or, at a minimum, formally commit to letting it expire on June 14th.
To Maine Governor Janet Mills: Release Town COVID-19 Case Data (April 27, 2020)
The growing consensus and best practice is to make information on the prevalence of COVID-19 available to the public by municipality or zip code, not just at the (less helpful and less informative) county level. Access to more granular information about the prevalence of COVID-19 would be in the public interest and would advance Maine’s public health mission. . . . Access to more information on numbers of COVID-19 cases by specific location would have direct public health benefits, by allowing the public to better prepare and take precautions. It would also serve to enhance public confidence in Maine’s response by replacing rumors and suspicion with solid data.
We are writing to ensure that news organizations will be categorized as “essential” if and when you deem it necessary to close nonessential businesses to help contain the coronavirus. In print, on the air and online, journalists play a crucial, constitutionally protected role in providing information to communities during a time of crisis. Misinformation about the coronavirus is pervasive, and journalists are well equipped to dispel rumors through relevant and accurate reporting. News organizations and all workers supporting them are a lifeline for citizens whose health and safety relies on timely information.
Statement Re: Transparency During Coronavirus Pandemic (March 20, 2020)
Government bodies should not opportunistically take advantage of the public’s inability to attend large gatherings to make critical decisions affecting the public’s interest if those decisions can reasonably be postponed. Just as citizens are being asked to defer nonessential travel and errands, so should government agencies defer noncritical policy-making decisions until full and meaningful public involvement can be guaranteed.
To U.S. Senate Re: Press Access During Impeachment Trial (Jan. 16, 2020)
Absent an articulable security rationale, Senate leaders, the Senate Sergeant at Arms, and the United States Capitol Police have an obligation to preserve and promote the public’s right to know. Reporters must have the ability to respond quickly to rapid developments and need reasonable access to lawmakers who wish to speak to the press. The reported restrictions on the use of electronic devices and on the ability of reporters to question lawmakers as they move about the Capitol, as well as the additional security screening, will hinder reporting without an obvious benefit for Senate security.
To N.H. House Judiciary Committee Re: Bill 1157 (Jan. 15, 2020)
NEFAC strongly opposes House Bill 1157. The legislation is unwise, undemocratic and unconstitutional. The bill is a violation of the right to freedom of the press guaranteed by the New Hampshire and United States constitutions. It fails to consider the strict protections afforded by the First Amendment and undermines the editorial judgment of news publishers throughout the state. The bill is such an outlier that there appears to be no similar legislation proposed anywhere in the country during the last two years.
Karem v. Trump (D.C. Cir. 2020)
The government seeks to renew a settled question for this Court of fundamental importance to the rights of the press and public under the First and Fifth Amendments: Whether a White House press secretary may suspend the press credentials of a journalist based on vague, ad hoc standards never previously articulated, thereby depriving that journalist of access to White House facilities and impairing his ability to report on the President of the United States.