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On October 26, the Alliance joined a brief in Banks v. Hoffman, filed in the District of Columbia Court of Appeals. The case involves three retired military psychologists suing the American Psychological Association (“APA”) and Sidley Austin LLP alleging they were falsely accused of promoting torture in a report about the Bush Administration’s use of “enhanced” interrogation techniques in the aftermath of the 9/11 terrorist attacks. The Superior Court granted the defendants’ special motions to dismiss under D.C.’s Anti-SLAPP Act. The Court of Appeals then reversed the Superior Court’s dismissal and invalidated the discovery-limiting provision of the D.C. Anti-SLAPP Act. The amicus brief, filed by RCFP, argues that the appeals court should grant the petition for rehearing and reverse the panel’s decision invalidating the discovery-limiting provision. It also argues that the panel erred in reversing the Superior Court’s finding that the plaintiffs were public officials for purposes of defamation law and its holding that a hyperlink without more was not a republication. Both holdings could have significant impact for news and magazine media that rely on these key statutory protections and principles for free speech. Read more.

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On October 10th, the Supreme Court declined to revisit the landmark First Amendment decision in New York Times v. Sullivan, which provides vital First Amendment protections to journalists and the public. The case, Don Blankenship v. NBC Universal et al., requesting the precedent be revisited, concerns a former coal baron who was convicted of a federal conspiracy offense and who sued a number of news outlets for their erroneous reporting that he was a convicted felon, even though his offense was classified as a misdemeanor. Lower courts ruled against him, finding that the outlets did not make the statements with actual malice, but the attorneys for the plaintiff urged the Supreme Court to reconsider the decision and overturn NYT v. Sullivan. The Supreme Court declined to take up the case, however Justice Thomas wrote in a concurrence “[i]n an appropriate case, however, we should reconsider New York Times and our other decisions displacing state defamation law”.

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On October 5th, the Alliance joined an application, submitted to the DC Circuit Court, requesting audiovisual access to the United States v. Donald J. Trump trial related to the January 6th events, currently scheduled for March 2024. The Alliance also joined a media coalition letter, led by Ballard Spahr, to the Judicial Conference of the Administrative Office of the United State Courts urging a change to Rule 53 to allow audiovisual access to the trial and other criminal proceedings. The application and letter outline how this criminal trial against a former President is historic and unprecedented, and the public and the media have a right to access the trial. Audiovisual coverage is necessary to provide accurate, timely, and meaningful access to the media and the public, and the per se ban on audiovisual access is unconstitutional. To only allow the few members of the press and public who can get a seat in the courtroom to observe the trial does not satisfy the First Amendment. The Alliance will continue to support efforts to allow greater access for journalists and the public to observe trials, especially those with historic significance.

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On September 7, the Alliance joined a brief in Citizens for Fauquier County v. Town of Warrenton, filed in the Virginia Court of Appeals. The case is a public records case, in which the town of Warrenton denied a records request for the disclosure of records about recent changes to Virginia zoning laws amid an application by Amazon to use land in the town for a data center. The Town claimed executive privilege under the “working papers and correspondence” exemption in Virginia’s FOIA statute. Citizens for Fauquier County (“CFC”), a non-profit environmental organization, sued to compel the Town to release the requested records, which the lower court denied, and CFC appealed. The brief, filed by RCFP, argues that the exemption should be narrowly interpreted to be consistent with the goal of Virginia’s FOIA statute and that courts should not apply the exemption without conducting fact-finding, to ensure journalists and others have adequate and much-needed access to public records. Read more.

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On September 19, the Alliance joined a brief in United Healthcare v. Eighth Judicial District Court of the State of Nevada, filed in the Nevada Supreme Court. The case involves access to trial exhibits and transcripts following a high-profile trial and jury verdict against United Healthcare Insurance Company for underpaying out-of-network medical providers. Post-trial, United Healthcare sought to seal or redact many of the trial exhibits and transcript from the trial – records that had been introduced in open court and entered into the public record. The trial court denied the sealing request and United Healthcare appealed. The brief, filed by RCFP, argues that the Nevada Supreme Court should affirm the lower court’s decision, as there is a presumptive right of access to court records, and this cannot be overcome when those records have already been made public at trial. The case is important in preserving the right to access court records by journalists and the public. Read more.

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On August 11, 2023, a small-town newspaper in Kansas, the Marion County Record, was raided by law enforcement. Police came into the paper’s offices and the home of its co-owner and seized the paper’s electronic devices and files. The raid quickly made national and international headlines, sending shock waves throughout the free press community. Why had police raided the premises? Was the raid legal?  What does this mean for our free and independent press? These questions and more swirled around this unusual event.

The News/Media Alliance quickly condemned the raid, along with numerous other organizations, in a letter led by Reporters Committee for Freedom of the Press (RCFP). In the days and weeks following the raid, we know the answers to many questions, but some remain unanswered, such as: What lasting impact will the raid have on the independence of the free press in this country?

As reported, the raid was conducted in response to a local restaurant owner’s claim that a reporter at the paper had allegedly committed identify theft in accessing her driving record. In fact, we now know the reporter accessed public records on a public website in order to verify a tip she received from a confidential source. Five days after the raid, after much public outcry, the warrant was withdrawn and the paper’s equipment returned. While some may read this and think, “No harm, no foul,” unfortunately this couldn’t be further from the truth.

Here are three reasons why this raid is no small-fry matter, and why every American should be alarmed:

1)       The Press Rely on Protection of the Law to Keep Government Accountable

The press has long operated as an unofficial watchdog of government, uncovering misconduct and corruption through investigative journalism, and keeping the public informed of government actions. Journalists are only able to do this, however, if they can rely on laws designed to protect them from government overreach or abuse of power. Most states have press shield laws (something still needed on the Federal level), such as the Kansas Shield Law, which should have protected the Marion County Record from a raid, providing for a subpoena instead of a raid. The raid broke several norms, and the broad seizure of equipment caused the paper to almost shut down its operations. A reporter at the paper has filed a lawsuit against the police chief, claiming her First Amendment rights were violated, and alleging the raid was intended to ‘punish the journalists for investigating and reporting news stories.’

2)      Police Raids Have a Chilling Effect on Journalists and Sources

If the government can infringe upon the rights of the free press, raid their premises and search through confidential source materials, this can have rippling effects – chilling not only the investigative work of journalists, but also deterring sources from coming forward. In the words of Eric Meyer, owner of the Marion County Record, “it would be the end of people ever being able to send anything anonymously to a newspaper.” Our democracy relies heavily upon the freedom of the press. Without it, America begins to resemble countries like Russia or North Korea, where the government routinely raids news organizations, intimidates reporters, and exposes confidential sources precisely to silence the press and anyone who helps uncover truths.

3)      The Human Impact of this Event Cannot Be Understated

Tragically, the paper’s co-owner, 98-year-old Joan Meyer, collapsed and died just one day after her home was searched as part of the raid. The coroner determined that the stress of the search was a contributing factor to her death. Her son and now sole owner Eric Meyer said in an interview, “So the last 24 hours of a 98-year-old woman’s life was devoted to pain and anguish, and a feeling that all her life didn’t matter.” Beyond this personal and unnecessary tragedy, a raid on a news organization breeds mistrust in the press and law enforcement and can splinter communities, especially in small towns such as Marion County.

The impact this raid will have on American journalism going forward is yet to be seen. That will largely depend on how strongly the community at large condemns such raids and what if any accountability arises from it. The News/Media Alliance continues to stand in support of the Marion County Record and all journalists in pursuit of the protection of their First Amendment Rights.

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On September 13, the Alliance joined a letter with 62 other media organizations urging the Supreme Court to make permanent its practice of providing the public with access to a live audio feed of oral arguments before the Court. The letter, led by RCFP, outlines the strong arguments for making access to the live audio feed permanent. The practice, which was started by the Court in response to the onset of the COVID-19 pandemic in 2020, has greatly increased access to the Court’s proceedings, not only to the public but to journalists across the country. With the feed, the press can report on arguments before the Court more accurately and in real time. This information significantly benefits the public in enhancing their understanding of the functioning of the Court and the broader role that the Court plays in our legal system and democracy. The Alliance supports open access to Supreme Court proceedings and urges the Court to make the live audio feed a permanent practice in support of ongoing transparency. Read more.

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On September 7th, New Jersey Governor Phil Murphy signed into law S.2802/A.4393, to provide anti-SLAPP protections against lawsuits known as SLAPPs (short for strategic lawsuits against public participation) designed to chill free speech. New Jersey becomes the 33rd state to adopt such a statute, which will allow courts in New Jersey to dismiss meritless lawsuits designed to silence criticism or speech on issues of public interest.

The New Jersey law is based on the Uniform Public Expression Protection Act (UPEPA), a model statute that has been adopted by four states and provides some of the strongest protections against meritless claims. These protections are vital to ensuring that journalists can freely report on matters important to the public and perform their function as unofficial watchdogs of government action. Anti-SLAPP laws also protect the general public from being intimated into silence when criticizing public officials or other powerful figures.

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