Amicus Briefs, Letters and Statements

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:

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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.