Amicus Briefs and Letters 2022

As you know, Massachusetts stands nearly alone in retaining one significant obstacle to government transparency – a blanket exemption from the public records law that has been claimed by the governor’s office during the last several administrations. As you prepare to take office as governor, you have an historic opportunity to remedy this situation.

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.”

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.

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.

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.

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.

As we stated earlier this month and in our Sept. 24, 2021, letter to your offices, the use of body- worn cameras by law enforcement has significant government transparency and First Amendment implications. We’re glad to see that some of our previous suggestions were incorporated into the latest draft of rules and regulations. Still, there are several areas where additional improvement can be made to protect the public’s right to know and First Amendment freedoms.

We recently became aware of an incident during an August 1 Select Board hearing about vandalism to LGBTQ pride flags. During the meeting, Select Board member Mary Catherine Graziano directed all members of the press to refrain from publishing the names of those who spoke at the hearing and indicated that the identity of those speakers would not be included in the meeting minutes.1 While we appreciate the sensitivity of the issues being discussed at the hearing, Graziano’s directive is nevertheless concerning as both an open meeting law and First Amendment matter.

We’re concerned about the way some county courts in the state have been using Vermont Supreme Court Administrative Order 49 to limit press access to judicial proceedings. Order 49 allows courts in the state to make temporary changes to their rules and operations in response to COVID-19 safety concerns. The order, first issued in 2020, was recently extended to August 31. While we question the necessity of the order given that other branches of the government are no longer following similar safety protocols, our primary concern is how a small number of county court judges are using the order as justification to restrict the access of broadcast journalists to their court rooms.

Specifically, we respectfully propose three modifications to proposed Rule 34.7: first, the undersigned recommend adding language to proposed Rule 34.7 that states the strong presumption in favor of access to judicial records; second, we recommend clarifying the standard the Court will use in evaluating motions to seal; and third, we propose that Rule 34.7 require parties to state, in their sealing motion, the period of time they seek to have the material maintained under seal. These proposed changes draw directly from this Court’s precedents and rules adopted by the federal courts of appeals.

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.

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.

We understand the need for personal privacy, particularly from government intrusion, but we have grave concerns that the language contained here is overly broad and will implicate First Amendment-protected activities and entitlements under the Freedom of Access Act. Logistically, it will also create havoc for businesses and organizations that collect and use personal information.