Amicus Briefs and Letters 2021

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.”

To Select Committee to Investigate the January 6th Attack on the U.S. Capitol (Dec. 22, 2021)

The undersigned members of the news media and advocates for press freedom write to express our profound concern with reports that the Select Committee has issued a subpoena for the telephone toll records of a photojournalist, Amy Harris. The events of January 6th were an attack on democracy, and it would be incongruous were a Congressional investigation into 1/6 to itself endanger the independence of the press. We respectfully urge the Select Committee to withdraw the subpoena.

To Gov. Daniel McKee Re: Open Meetings and Continued COVID-19 Concerns (Dec. 21, 2021)

As urgent as our request was in September for reinstatement of an OMA executive order, it has taken on heightened importance in light of what appears to be the even more contagious nature of the Omicron variant and the havoc it is beginning to wreak on our state’s healthcare and other systems. We therefore vigorously reiterate our call for a return to a hybrid/remote public meeting process via executive order.

To Mass. State Legislators Re: An Act to Modernize Participation in Public Meetings (Dec. 20, 2021)

Our organizations testified in strong support of An Act to Modernize Participation in Public Meetings. We now write to offer a few suggestions to strengthen it, and to ask that you advance this important legislation early in the new year.

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.

State of New Hampshire v. Marsach (Oct. 8, 2021)

Certain court records are understandably confidential, i.e. juvenile cases, adoption and parental rights cases, certain guardianship cases, grand jury records and other matters that are confidential by statute. This case is clearly distinguishable. The records now sealed in this criminal case all apparently relate to the conduct of governmental actors and agents during the performance of their official and public duties. All members of the public have the right to know how well, or not well, their agents and servants are doing in providing the public services paid for with taxpayers’ funds. Nowhere within the field of governmental accountability is the light of public scrutiny more critical than when it shines within our courts of law.

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.

To Maine Center for Disease Control and Prevention Re: Press Briefings (Oct. 14, 2021)

Last week the Maine Center for Disease Control and Prevention decided to bar both the Maine People’s Alliance and the Maine Policy Institute from its press briefing. It justified the decision by calling representatives of the organizations “advocacy journalists.” While we are pleased that the CDC later reversed this decision, our coalition is still deeply concerned about the potential for similar decisions to be made again in the future. . . . Though the CDC said both MPA and MPI will be able to participate in this week’s COVID-19 briefing, there is no assurance that these organizations — or any organization officials unilaterally deem to be “advocacy journalists” — will continue to have access after this week.

To Mass. Senate and House Committees Re: ARPA Funding (Sept. 28, 2021)

We write to urge you to use a portion of American Rescue Plan Act money to make a transformational investment in our democracy in response to needs revealed by the COVID-19 pandemic. Specifically, we request that you dedicate funds to create a grant program to improve the technological capacity of our cities and towns to conduct accessible public meetings — by enabling residents to join a meeting and contribute to the proceedings both in person and remotely.

To Office of R.I. Attorney General Re: Police Body-Worn Cameras (Sept. 24, 2021)

Attached are the suggestions of Access Rhode Island, a coalition of open government advocates that includes our organization. On matters of transparency, the comments provided therein reflect the positions of NEFAC. Outside the scope of government transparency, we have additional concerns about the use of body-worn cameras to deter or chill First Amendment-protected activity. Any policy that is created by your respective office should have sufficient safeguards in place for citizens exercising their constitutional rights.

To R.I. Gov. Daniel McKee Re: Remote Meetings for Government Bodies (Sept. 23, 2021)

In light of the current status of the pandemic, we therefore urge you to reinstate the executive order allowing for remote meetings and requiring livestreaming and remote public participation. Since these emergency executive orders last only thirty days, the decision whether to reissue them will occur on a regular basis and can take into account, as decisions regarding the previous orders did, their continued necessity based on the progress in countering the latest wave of the pandemic.

To U.S. Supreme Court Re: Continued Access to Live Audio Streaming of Oral Arguments (Sept. 8, 2021)

Providing live audio access to cases during the ongoing COVID-19 pandemic has convincingly demonstrated the public’s appetite to observe the operations of the Court. It has also shown that the Court can balance increased public access with the integrity of its proceedings. Equitable access to the Court as an institution is imperative for all Americans. . . . The demonstrated public interest in these audio broadcasts confirms that the time has come for regular, live access to the Court’s proceedings.

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.

To R.I. House State Government and Elections Committee Chairman Evan P. Shanley Re: 21-H 5891A “An Act Relating to State Affairs and Government — Open Meetings” (June 14, 2021)

While we welcome the opportunity to expand public access to government through remote meeting technology, our coalition strongly opposes many of the changes proposed by 21-H 5891A. This legislation includes amendments to the Open Meeting Law that will ultimately make meetings less open and transparent. Please reject this bill and consider a sunset provision of one year for any similar legislation that amends our current law to address remote meetings. This is new territory for the state and a shorter sunset provision will allow us to more efficiently evaluate and improve any changes made to the Open Meeting Law.

To R.I. Rep. Marszalkowski and Sen. Euer Re: H 5891 and S 0804 (June 10, 2021)

We write to express our concerns about H 5891 and S 0804, and the proposed SubA’s to those bills, that would amend the state’s Open Meetings Act. As we testified at the hearings on these bills, our groups are committed to working toward a solution that maintains the advantages of online public meetings, while protecting the public interest. . . . Our position is that members of public bodies should return to participating in person. We recognize that there is a strong desire for some public bodies to allow members to participate remotely, but for purposes of accountability we believe public bodies, particularly elected bodies, should be meeting in person.

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.

Despite two concerns regarding the waiver process that will be explained below, our coalition supports Senate Bill 2082 and House Bill 3152. As other states throughout the region reassess their respective open meeting laws relative to COVID-19, this legislation is a common-sense measure that will stand as a model to be followed. The legislation will make permanent one of the few silver linings of the ongoing pandemic: remote access to public meetings and the increased engagement between citizens and gov- ernment that results. By continuing to require in-person public access, the legislation also preserves the benefits of meeting with representatives face-to-face and being physically present during proceedings.

To Members of the N.H. Senate Re: HB 125 (May 27, 2021)

In our view, HB 125 is a dangerous and unjustified infringement upon the public’s right to know what the government is up to, and upon the right and responsibility of the media to report the news to the public. Distribution of post-arrest photos of suspects, or “mugshots,” is a practice that has been routine in New Hampshire for many years. This practice has been vital to the goal of keeping the public apprised of the activities of law enforcement and ensuring that the police remain accountable to the public.

Courthouse News Service v. Gabel (D. Vt. 2021)

When a new complaint is withheld, the public has no way of knowing that a new civil proceeding has been initiated. Even if they find out about it, through docket information or directly from parties to the case, without access to the complaint itself, the public has no reliable and accurate way to ascertain the factual and legal claims in the new civil action.

To Chair Coyne and Members of the R.I. Senate Judiciary Committee Re: SB 671 (May 17, 2021)

We write to oppose Senate Bill 671 (heard by your committee last week) which would make secret police officer city and town residency information. At a time when citizens throughout the state — and country — are demanding more transparency and accountability within police departments, this legislation will needlessly keep citizens uninformed about the officers patrolling their streets.

To Maine Attorney General Frey Re: LD 130 (May 17, 2021)

The Maine Transportation Committee earlier this month voted to advance LD 130, legislation that would give the Secretary of State broad power to ban or recall vanity plates deemed, among other things, “vulgar.” While the state is not obligated to provide a vanity plate program, once it opens a forum to citizen speech it should not discriminate against constitutionally-protected expression even if vulgar or otherwise offensive.

Testimony Before Vt. Senate Institutions Committee Re: Public Access to State House (May 6, 2021)

This is a matter of accountability. Only with in-person hearings can the public’s voice be fully heard. Despite the benefits of technology, remote access software allows public officials to more easily limit citizen speech and avoid contentious issues.

To U.S. Attorney General Garland Re: Policing and First Amendment Rights (April 29, 2021)

As members of the news media and organizations that protect the right to gather the news, we write in response to the announcement that the Department of Justice has launched investigations of the Minneapolis and Louisville Metro Police Departments. We urge you to make the treatment of the press an essential part of those and any future inquiries the Department may pursue.

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.

To Maine Committee on the Judiciary Re: LD 293 (April 23, 2021)

LD 923 is a violation of the right to freedom of the press guaranteed by the U.S. Constitution. It fails to consider the strict protections afforded by the First Amendment and undermines the editorial judgment of news publishers throughout the state. The legislation also concerns matters of newsroom ethics and discretion that an increasing number of publishers throughout the country — and here in Maine — are already addressing.

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.

Testimony Re: New Hampshire House Bill 584 (Feb. 26, 2021)

House Bill 584 is “blatantly unconstitutional,” explained attorney and NEFAC Executive Committee member Gregory V. Sullivan. “It’s blackletter law in the United States.” The bill requires media outlets to publish follow-up reports on the outcomes of civil, criminal or ethical proceedings before a governmental body when asked to do so by members of the public. It also prohibits the continued publication of mugshot photos when those pictured are acquitted, enter a plea of no contest or receive other favorable outcomes in court.

To N.H. House Criminal Justice and Public Safety Committee Re: HB 471 (Feb. 10, 2021)

The New Hampshire Chiefs of Police specifically expressed concern that an officer would be forced to argue for a hearing to be closed in public and would, therefore, have to publicly disclose the information in which confidentiality is sought. This concern is unfounded.

Testimony Re: New Hampshire House Bill 471 (Feb. 6, 2021)

The public’s interest in police misconduct is always at an extremely high level. An individual officer’s expectation of privacy regarding the performance of his or her official duties cannot reasonably be expected to outweigh the presumption of openness mandated by constitutional and statutory law. As Justice Schulman of the Superior Court wrote in the case of Union Leader Corporation, et al v. Town of Salem, “bad things happen in the dark when the ultimate watchdogs of accountability — i.e. the voters and taxpayers — are viewed as alien rather than integral to the process of policing the police.”

To N.H. Senate Judiciary Committee Re: Amendment to SB 39 (Jan. 25, 2021)

Like SB39, Attorney Broth’s amendment, if enacted, would be harmful to government accountability, as well as undermine our Right-to-Know Law’s presumption in favor of transparency. All public employees work for us, not themselves. In this historic moment of discussion on government and police transparency, we should be making government records more available, not less. Rather than consider this problematic amendment—which was not subjected to a public hearing — we believe that SB39 should be voted inexpedient to legislate by the Senate.

Testimony Re: New Hampshire Senate Bill 39 (Jan. 19, 2021)

Senate Bill 39 appears to be an attempt to reverse the recent decisions of the Supreme Courtby effectively reinstating the environment of secrecy that prevailed prior to that decision, but only as applied to police officers. Not only were these casescorrectly decided, buttheyreaffirmed the public policy in favor of open government enshrined in the Right-to-KnowLaw since its enactment in the 1960s.

To R.I. Gov. Gina Raimondo Re: Media Availability (Jan. 19, 2021)

Our organizations are concerned about your lack of availability to the press since Dec. 22 when you were named as a nominee for Commerce Secretary in President-Elect Joseph Biden’s Ad-ministration. On behalf of NEFAC and NENPA, we implore you to resume full press briefings and to allow direct questioning from the many local journalists serving our communities each day. We represent these journalists, their news organizations, and all other concerned citizens throughout the state who have the right to know how public officials are acting on their behalf. This right to know is especially important during the current public health crisis when the state is governed, in part, by executive order and Rhode Island residents look to you for leadership and reassurance. While your nomination to President-Elect Biden’s Cabinet is a great honor that carries with it certain responsibilities, these must not be prioritized over your duties as governor. Making yourself available for questioning by journalists — who serve as a proxy to the public — is one of those duties.