Perkins Coie LLP v. U.S. Dept. of Justice (April 9, 2025)
The President seeks the simultaneous power to wield the legal system against those who oppose his policies or reveal his administration’s unlawful or unethical acts — who, in many cases, have been members of the press — and then deny them access to the system built to defend their rights. The President could thus “permit one side to have a monopoly in expressing its views,” which is the “antithesis of constitutional guarantees.”
Briefs also filed in Jenner & Block LLP v. U.S. Dept. of Justice and Wilmer Hale LLP v. Executive Office of the President.
Maine Lobster v. Monterey Bay Aquarium Foundation (D. Me. 2025)
By allowing Plaintiffs’ claims to proceed, the decision contravenes the rule against group libel. It also introduces a new overly restrictive approach to the constitutional protection for statements that disclose the predicate facts for a defendant’s conclusions, a development particularly concerning where the content involves scientific research and related public policy. Because the protections against group libel and for opinion enable public interest journalism, the decision raises significant concerns for the press, and without immediate appellate review, risks chilling swaths of reporting and commentary.
Commonwealth of Massachusetts v. Karen Read (Jan. 30, 2025)
As journalistic organizations dedicated to protecting against threats-both old and new to First Amendment interests, they seek only to explain why the compelled disclosure of a reporter’s notes concerning confidential communications with a source that never were published (either in whole or in part) poses a grave threat to the free flow of information to the public.
Trustees of Boston University and Boston Globe Media Partners v. Clerk-Magistrate of the Cambridge District Court (Mass. 2024)
This sex-for-hire matter has attracted wide public attention and media coverage. The matter, unlike neighbor disputes and other minor matters of low public interest typically before a clerk-magistrate, cries out for open proceedings and open access to named individuals and evidence submitted during the hearing. This matter is of significant public importance and interest. . . . The press’s ability to keep the public informed is premised in large part on open access to the court system, and on its ability to examine and report on submitted judicial documents. Non-disclosure to the public would inhibit the public’s understanding of the process and serve to dimmish or undermine the credibility, authority, and integrity of the Clerk-Magistrate’s decision.
Mack v. Office of the District Attorney of the Bristol District (Mass. 2023)
The District Attorney appeals the Superior Court’s judgment and asks this Court to misconstrue the Policing Reform Law to drastically restrict the misconduct-investigation carveout in direct contravention of the statute’s text and purpose. The Legislature explicitly determined that the need for transparency and accountability in policing override privacy concerns when it comes to “records related to a law enforcement misconduct investigation.” G.L. c. 4, § 7, cl. 26(c). Should the Court accept the District Attorney’s interpretation, it would rewrite the statute and sanction shielding records the Policing Reform Law was designed to bring into public view. Such an interpretation would have dangerous repercussions in the Commonwealth, particularly for its minority citizens who are disproportionately victims of unjustified use of force by police.
Columbia Plaza Associates v. Northeastern University (Mass. 2023)
The Court should re-orient its anti-SLAPP caselaw to more faithfully track the language of the statute itself, and the legislative purposes revealed in that text. Such a recalibration will expedite the resolution of these cases and protect those who wish to petition the government from crippling legal fees and the fear of liability, as the Legislature intended.
Human Rights Def. Ctr. v. Me. Cnty. Comm’rs Ass’n Self-Funded Risk Mgmt. Pool (Maine 2023)
At the heart of this case is a question of utmost interest to the public: how much money did Kennebec County and its insurer, the Maine County Commissioners Association Risk Management Pool (the “Risk Pool”) pay a Black man who alleged he had been beaten and pepper sprayed by a white guard at the Kennebec County jail? The answer should have been reasonably easy to find out— it is undisputed that information relating to settlement agreements between individuals and public entities is subject to disclosure under the Maine Freedom of Access Act (FOAA). But instead, what began as a straightforward FOAA request resulted in over a year-and-a-half of time- and resource-consuming advocacy that ultimately revealed an overarching scheme of secrecy that unlawfully shields settlement amounts from the public. . . . By intentionally omitting settlement sums from documents stating the terms of the settlement and by evading FOAA requests for that information, the Risk Pool has engaged in a bad faith attempt to withhold public records. Given this bad faith, requiring the Risk Pool to pay reasonable attorney’s fees to HRDC is necessary to deter the Risk Pool and other similar public entities from violating the FOAA, and to compensate HRDC for the time it spent litigating this appeal.
Berge v. School Comm. of Gloucester (1st Cir. 2023)
Both the Supreme Court and this Court have repeatedly made clear that “state action to punish the publication of truthful information seldom can satisfy constitutional standards. [T]he press,” including citizen journalists, “must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.” When information involves a matter of public concern, the First Amendment protects publishers from both prior restraint and subsequent punishment, absent a demonstrated need to vindicate a state interest of the “highest order.”
Courthouse News Service v. Smith and Commonwealth of Virginia (4th Cir. 2023)
As members of the news media and of organizations that defend the First Amendment and newsgathering rights of the press, amici have a strong interest in ensuring that the public’s presumptive right to inspect judicial records under the First Amendment is not infringed and that unconstitutional, speaker-based restrictions on the exercise of First Amendment rights are not imposed.
Moore v. United States of America (U.S. 2022)
The technology at issue in this case poses an untenable threat to confidential association, and with it the freedom to gather news. Too many lower courts have acquiesced in a framework that would give the government discretion to surveil citizens in the most constitutionally sensitive of locations without a quantum of suspicion—to keep, among other predictable targets, inquisitive reporters and suspected sources under constant supervision. The press could not, under that scrutiny, provide the vigorous check on government that the Constitution recognizes and protects.
Spofford v. New Hampshire Public Radio (Super. Ct. 2022)
The First Amendment and Part I, Article 22 of the New Hampshire Constitution impose stringent requirements on those who seek to use tort law to punish or inhibit the free exchange of information and ideas, including through the press. To afford the “breathing space essential” to the “fruitful exercise” of First Amendment rights, the United States Supreme Court has held that plaintiffs who “are properly classed as public figures . . . may recover for injury to reputation only on clear and convincing proof that [a] defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth.”
U.S. v. Brand, et. al. (D. Mass. 2022)
Compelling reporters to testify about their communications with sources — even on-the-record, nonconfidential conversations — harms the newsgathering and reporting process, to the ultimate detriment of the public. It embroils reporters in time-consuming litigation and diverts news organizations’ already scarce resources away from newsgathering and reporting — burdens that weigh especially heavily on journalists who regularly investigate and report on matters that could involve potential criminal activity, and thus whose interviews and other work product could regularly be the target of federal prosecutors.
ACLU of New Hampshire v. N.H. Dept. of Safety, Div. Of State Police (N.H. 2022)
The public’s right to know “what the government is up to” is central and essential to democracy and to the proper administration of justice. Transparency and accountability lead to trust between the citizenry and the government. The need for such trust is critical when the governmental actors are authorized to effectuate arrests and to use force when necessary. The release of the requested materials in this case will ensure that the citizens of New Hampshire are able to fully assess the conduct of a serving police officer and of the thoroughness, timeliness and fairness of those entrusted with the responsibility of overseeing police officers.
Richards v. Azzi and Union Leader Corp. (N.H. 2022)
This Court should not permit Mr. Richards to expand defamation law to chill criticism that he may not like. Mr. Azzi’s views, like Mr. Richards’ own, are part of the marketplace of ideas. Mr. Richards’ lawsuit, were it to survive and proceed to discovery, would not only chill robust debate on matters of public concern, but also would potentially cause media outlets, out of a fear of vexatious litigation, to self-censor the vital fora that they create for members of the public to debate important issues of the day.
Doe v. Volokh (1st Circ. 2022)
This case presents a critical question: whether civil litigants may pursue their cases anonymously because they allege, without proof, that their lawsuit will damage their reputation. This Court may, and should, exercise jurisdiction pursuant to the collateral order doctrine to review the district court’s ruling in this matter. Permitting Doe to litigate this case pseudonymously will hinder the news media’s ability to fully inform the public about ongoing judicial proceedings of substantial public concern. Our nation’s long tradition of open courts facilitates accountability for judges and participants in litigation, public trust in the judicial process, and accurate fact-finding. Pseudonymity is a form of court closure; it withholds from the press and public valuable information about cases pending before courts — specifically, the names of the parties.
Shane v. Regan (Mass. App. Ct. 2022)
This case is of particular importance because it poses the risk that persons who disseminate accurate information will be subject to lawsuits and damages awards not because of factual errors, but because of an assessment of their underlying motives in publishing the truth. The harm caused by such a rule would be compounded by the vagaries of determining what is or is not a matter of private concern that permits inquiry into the motives of a person who speaks the truth.
Egbert v. Boule (U.S. 2022)
Since 1971, this Court has recognized a damages remedy when federal officials violate the Constitution’s “search-and-seizure” guarantees in the “common and recurrent sphere of law enforcement.” And for just as long, the federal courts have recognized “that the irresistible logic of Bivens leads to the conclusion that damages are recoverable in a federal action under the Constitution for violations of First Amendment rights” as well. . . . Petitioner asks this Court to tear down the deterrent that has tempered retaliation in diverse jurisdictions for decades now — arguing not only that Respondent’s claim should fail, but that damages should never be available when federal officials violate the First Amendment. Petitioner is wrong in particular and wrong as a general matter.
Project Veritas v. New York Times Co. (N.Y. App. 2022)
For two months the New York Times (“the Times”) has been restrained by court order — under threat of contempt — from disseminating or reporting on newsworthy material that is unrelated to the underlying defamation case in which the restraint was imposed, will play no role in that case, and was obtained through everyday newsgathering entirely outside of the discovery process. In its Decision below, the lower court further ordered the Times to relinquish possession of this material, destroy any electronic copies, and refrain from disseminating the material to any person. As such, the Decision is not just an unconstitutional prior restraint on speech, it also threatens to convert the judiciary’s authority to manage discovery into a potent means to suppress public interest newsgathering and reporting.
Edgar v. Haines (U.S. 2021)
Black-letter law holds that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” Few protections for a free press and an informed public are more fundamental. Still, the government supervises the publications of a vast class of current and former employees in just that way — notionally screening their contributions to public life for classified information, but in practice exercising a discretion so standardless it threatens any speech “embarrassing to the powers-that-be.”
Courthouse News Service v. Glessner (1st Cir. 2021)
The First Amendment guarantees a qualified right of access to judicial proceedings and documents rooted in the recognition that the public’s understanding and oversight of the judicial process are essential to our system of self-governance. Access to newly filed civil complaints, in particular, is important because a complaint is the litigation’s foundational document; it sets a lawsuit in motion and triggers the judicial process.
Project Veritas v. New York Times Co. (N.Y. 2021)
The restrictions on publication and newsgathering contemplated by the Order — as well as the interim restrictions currently imposed by it — violate the First Amendment’s prohibition on prior restraints. The restrictions described in the Order would censor the Times’ reporting on information that plays no part in the instant litigation; it was not obtained through, or in connection with — or to secure an advantage in — any litigation. This result, in addition to being foreclosed by the First Amendment, would have grave ramifications for journalists’ ability to gather and report newsworthy information in the public interest.
Toggle v. United States (U.S. 2021)
To stake out an “observation nest” near a constitutionally sensitive location—a newspaper office, a home, a church—is an old trick of security agencies hoping to out reporters’ sources and cut the flow of newsworthy information to the public. . . . Experience teaches us that a “too permeating police surveillance” will predictably intrude on the newsgathering process — exposing stories pursued, journalistic methods employed, and the identifies of sources consulted. And because in-person meetings play a crucial role in reporter-source relationships, location tracking, in particular, has long been a tool employed by officials hoping to investigate and ultimately chill disclosures to the media.
Lanier v. President and Fellows of Harvard College (Mass. 2021)
At issue in this case is whether the subject of a photograph has a property interest in that photograph and, if so, what rights that interest may confer. Insofar as photography is a fundamental form and element of news reporting, this appeal addresses issues of direct interest to all members of the news media in Massachusetts and to all those who have an interest in protecting the First Amendment rights of reporters and citizens. Any ruling by this Court granting ownership rights in a photograph to the subject of that photograph would severely inhibit the ability of the news media to cover the news using its own still and video photography, as well as to report on events depicted in photographs taken by others.
Fraiser v. Evans (U.S. 2021)
The contours of the right to document police conduct have been “clear” for the better part of a century. Once a right exercised principally by the press as “surrogates for the public,” it is now routinely effectuated by bystanders with a smartphone as well. And whether a given watchdog is press or not, for decades courts have recognized that individuals “have a right to be in public places and on public property to gather information,” so long as the work of watching public business does not cause “unreasonable interference with official investigation . . . or the carrying out of other duties.” In other words, “routine newspaper reporting techniques” are entitled to as much protection as any other First Amendment activity, subject — like any other First Amendment activity — to reasonable “time, place, and manner restrictions” but not to whim, caprice, or animus.
Provenza v. Town of Canaan (N.H. 2021)
The public’s right to know “what the government is up to” is central and essential to democracy and to the proper administration of justice. Transparency and accountability lead to trust between the citizenry and the government. The need for such trust is critical when the governmental actors are authorized to effectuate arrests and to use force when necessary. The release of the unredacted materials currently under seal in this case will ensure that the citizens of New Hampshire are able to fully assess the conduct of a serving police officer and of the thoroughness and fairness of those entrusted with the responsibility of overseeing police officers.
Centro de Periodismo Investigativo v. Financial Oversight and Management Board (1st Circ. 2021)
This case concerns whether Puerto Rico’s Oversight Board is, as it contends, exempt from compliance with the constitutional and statutory rights of access to government records and information afforded the press and public under Puerto Rico law. Congress created the Board in 2016, to address Puerto Rico’s ongoing financial crisis. The district court properly held that because the Board is part of the Puerto Rico government, that territory’s disclosure laws ensure that the Board’s records are subject to public inspection. In fact, given the Board’s considerable power and control over Puerto Rico’s budget, this access is particularly important to ensure the Board’s accountability to the people of Puerto Rico.
Thurlow v. Zakia Coriaty Nelson & Ross Nelson (Me. 2021)
Strategic lawsuits against public participation, or “SLAPPs,” are meritless legal claims that chill the exercise of First Amendment rights. While SLAPPs lack merit, defendants are often forced to spend substantial amounts of time and financial resources defending against them; and the mere threat of expensive, protracted litigation, alone, can discourage civil discourse. . . . As members and representatives of the news media, amici are frequently the targets of SLAPPs designed to punish and deter constitutionally protected newsgathering and reporting activities. Amici thus write to emphasize the benefits of robust anti-SLAPP protections, which safeguard the right to engage in speech on matters of public interest without fear of being subjected to the expense, harassment, and disruption of meritless litigation.
ACLU v. United States (U.S. 2021)
As news media organizations, publishers, and organizations dedicated to protecting the First Amendment interests of journalists, amici have a strong interest in this case. The decisions of the Foreign Intelligence Surveillance Court (“FISC”) and the Foreign Intelligence Surveillance Court of Review (“FISCR”) holding that they lack jurisdiction to hear right-of-access motions effectively close the courthouse door on members of the press seeking to assert a First Amendment right of access to significant judicial decisions that delineate the boundaries of the federal government’s authority in the sphere of foreign intelligence surveillance.
Lepore v. United States (1st Cir. 2021)
This appeal arises from a district court order granting a request from Petitioner-Appellee Jill Lepore — a professor of American history at Harvard and a staff writer for The New Yorker — for access to the records of those Boston grand juries charged with investigating disclosure of the Pentagon Papers.
Human Rights Defense Center v. Correct Care Solutions LLC, et. al. (Vt. 2021)
NEFAC and fellow amici argue the following issues: (1) Whether the statutorily mandated liberal reading of the Public Records Act requires that private entities stepping into the government’s shoes to perform essential government functions be subject to the Act’s provisions and (2) Whether a private provider of medical services for individuals incarcerated by the State is providing an essential government function and should therefore be subject to the Public Records Act.
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.
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.
Martin v. Rollins (1st Circ. 2019)
The Statute criminalizes the “interception of any wire or oral communication,” Mass. Gen. Laws ch. 272, § 99(C)(1), with “interception” defined as “to secretly hear, secretly record, or aid another to secretly hear or secretly record through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication.” . . . If the decision of the district court is reversed, the Statute would therefore apply to any recording made absent the express consent or objective awareness of all individuals captured in the recording. This would include, for example, recordings made by the news media concerning law enforcement activity conducted in public spaces in which there is no reasonable expectation of privacy “regardless of whether the official being recorded has a significant privacy interest and regardless of whether there is any First Amendment interest in gathering the information in question.”
Butcher v. University of Massachusetts (Sept. 9, 2019)
Amici submit this brief to express their substantial concern with the Appeals Court’s opinion below, which advances a misguided and unduly restrictive interpretation of the “fair report” privilege long recognized under Massachusetts law. The privilege is of fundamental importance to amici because it provides that news organizations who “fairly and accurately report certain types of official or governmental action [are] immune from liability for claims arising out of such reports.”
Gubarev v. Buzzfeed (11th Cir. 2019)
The issue presented in this appeal concerns the scope of the privilege for fair and true reports of official proceedings under New York Civil Rights Law § 74. … A resolution of this issue in Plaintiffs’ favor would significantly affect the ability of the journalists on whose behalf amici advocate to report on significant official proceedings, notwithstanding that they do so accurately and fairly. Failure to recognize the proper scope of this privilege would stifle journalists’ ability to report on matters of the greatest importance by threatening them with liability for republishing newsworthy documents that are the subject of important governmental investigations. The ultimate loser of any such ruling would be the public.
Food Marketing Inst. v. Argus Leader Media (March 25, 2019)
Petitioner argues that the plain text of Exemption 4, 5 U.S.C. § 552(b)(4), permits government agencies to withhold records requested under FOIA if a third party claims that the information is either kept private, or, alternatively, that disclosure might lead to “negative publicity” or “could” result in some financial harm. Petitioner’s purported textual argument, however, is irreconcilable with recent amendments to FOIA that impose a “foreseeable harm” requirement that must be satisfied before agency records can be withheld.
Courthouse News Service v. Yamasaki (Jan. 29, 2019)
The First Amendment requires contemporaneous access to civil complaints upon their filing … In today’s news cycle, where stories build upon each other and are updated by the minute online, it is important that the first news stories about a lawsuit be accurate and complete, with as much information as possible derived from official, primary sources.
Doyle v. Burlington Police Dept. (Jan. 28, 2019)
Without this access, citizens must rely on the statements of public officials to learn what their government is doing … While the process of providing public records for inspection entails some monetary costs, the Vermont Legislature has time and again made the policy choice to have taxpayers bear the burden of those costs rather than shift expenses to the individual requester.
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.
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?
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.
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.
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.
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.
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.
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.
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.
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.
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.”
Detroit Free Press v. U.S. Dept. of Justice (Dec. 23, 2016)
Does the Freedom of Information Act require disclosure of booking photos of publicly named, federal indictees who have already appeared in open court?
In Re Gawker Media, LLC (Dec. 5, 2016)
The liquidation plan in this proceeding contains third-party release and injunction provisions that serve fundamental First Amendment interests and avoid exposing individual journalists to unanticipated and inequitable personal liability. . . . Journalists everywhere rely on such indemnification guarantees as a critical protection that allows them to engage in the sort of intrepid newsgathering and publishing that the First Amendment endorses.
Boal v. United States of America (9th Cir. 2016)
The compelled disclosure of a journalist’s unpublished work product or confidential materials has a destructive effect upon the news media’s ability to gather news and report on matters of public concern. Accordingly, the Ninth Circuit has recognized a reporter’s privilege against such compelled disclosure in both criminal and civil proceedings alike. . . . Moreover, in this case, any proceeding to enforce the military subpoena against Boal, who is a civilian, would have to be brought in federal district court; accordingly, in the interest of judicial efficiency and to protect Boal’s First Amendment rights, this Court should grant Boal the relief he seeks in the instant proceeding.
Rideout v. Gardner (1st Cir. 2016)
New Hampshire amended its ballot disclosure laws specifically to prevent a person from taking a photograph of a marked ballot and sharing it on social media because, in the words of one representative, the legislature was worried that “showing your ballot on social media could cause undue influence.” What the legislator called “undue influence,” the Supreme Court has called “the essence of First Amendment expression.” A growing percentage of citizens use precisely this form of expression as a way to spur others to vote, and to support a particular candidate. This is not a problem that should be avoided. It is a modern expression of the longstanding hallmark of our democracy, that “debate on the qualifications of candidates [is] integral to the operation of the system of government established by our Constitution.”
Courthouse News Service v. Michael Planet (C.D. Cal. 2016)
As representatives and members of the media, amici frequently seek access to civil proceedings and related court records in order to gather and report news of public concern, and thus have a strong interest in ensuring that such access is, as compelled by the First Amendment, timely afforded. . . . Amici strongly agree with Plaintiff’s argument that Defendant violates the public’s First Amendment right of access to judicial records when it fails to afford prompt, no later than same-day access to newly filed unlimited civil complaints.
Pinkham v. Maine Dept. of Transportation (Me. 2016)
The central issue is whether the Court should construe Section 63 to foreclose a litigant from getting from the Department information necessary to enforce legal rights in court. To answer this question requires consideration of the principle that courts and litigants should have access to all relevant information, and that such access promotes informed decisions by the courts and public confidence in the justice system. Absent a countervailing interest sufficient to eclipse this important principle — and an unmistakable legislative intent to recognize such an interest — exceptions to the Freedom of Access Act, 1 M.R.S, § 4oo-414, should not be construed to create statutory privileges preventing litigants from accessing government records in court proceedings.
Commonwealth v. Melissa Lucas (Mass. 2015)
The statute in issue does not and cannot pass muster under either Article 16 . . . or the First Amendment to the United States Constitution. The statute impermissibly restricts the free speech rights of speakers in the Commonwealth, much like similar statutes in Minnesota, Ohio, and Washington struck by courts in recent years. Regulating false speech in the realm of elections, where free speech rights have their highest import, impermissibly allows the government to become the arbiter of political and social discussion.
Detroit Free Press v. U.S. Dept. of Justice (6th Cir. 2015)
Since their inception, mugshots have been open to public inspection. Neither constitutional nor common law recognizes a privacy interest in photographs of persons who have been arrested and indicted, and appeared in open court. … Even if the public availability of booking photographs somehow implicated privacy interests, their significant contribution to public understanding of government activity would still require disclose pursuant to the FOIA.
Courthouse News v. Planet (9th Cir. 2014)
“The news media and organizations that advocate for the free press and for the freedom of information have a strong interest in the policies governing the right of access to court documents. Complaints initiate lawsuits and are therefore particularly newsworthy at the time they are filed. Having access to complaints is an important component of reporting on the legal system and the judicial branch.”
MaineToday Media, Inc. v. State of Maine (Me. 2013)
“The State’s attempt to eliminate public access to any and all 911 transcripts (and other documents) that it places in an investigative file is contrary to the proper reading of the laws in question, the purposes of FOAA, the presumptions in favor of access, and public policy.”
Center for Constitutional Rights v. United States of America (Armed Forces App. 2012)
“The First Amendment and this Court’s jurisprudence support recognition of a qualified right of public access to judicial documents in courts-martial. … The right of access to court records springs from the well-established recognition that open judicial proceedings provide accountability and oversight.”
O’Connell v. George W. Prescott Pub. Co., LLC. (Mass. 2011)
“The public has a right to view materials filed in support of search warrant applications after they have been returned to the court. This right is historical under common law, reflects First Amendment rights, and is presumptive under Massachusetts G.L. c. 276 §2B.”
Union Leader Corp. v. New Hampshire Retirement System (N.H. 2011)
“The Superior Court correctly ruled that RSA 91-A:4,I-a requires disclosure of the names of the 500 Retirement System members who received the highest annual pensions in 2009 and the amount of those pensions. Because the statute favors disclosures, the Court construes it broadly. The statute requires to be ‘available for public inspection’ ‘[a]ll records of payments’ to ‘an employee of any public body’ upon ‘retirement of the employee.’ Records of payments in 2009 to the 500 retirees fall squarely within the statute’s clearly-stated scope.”