ASNE's legal updates from Kevin Goldberg

• By: ASNE staff
• On: 05/08/2014 11:16:03
• In: FOI

In the past two weeks, ASNE has filed as amicus or a party in three different cases working their way through courts around the country. Although these cases address different issues, each will directly protect or advance the interests of journalists.

We were one of nine media organizations and companies that are supporting the efforts of Prison Legal News (PLN) to access information from the federal Bureau of Prisons (BOP) regarding all documents related to claims filed against BOP and settlements related to those claims. PLN requested this information and received some, but the agency also redacted key details about who filed some of the complaints and who was accused. (Most of the redacted information involved names, job titles, dates of service and similar facts.) A United States District Court upheld the redactions, finding that the privacy interests at stake outweighed the public interest. Among the interesting justifications for the holding was the idea that because there was no well-publicized scandal involving BOP personnel, there was less public interest in these complaints. 

Our brief argues that no FOIA exemption applies to the information at issue, and even if a privacy interest exists, any slight privacy interests are clearly outweighed by the public interest in learning about these complaints and settlements. The District Court's requirement that something be "well-publicized" before there is a public interest cuts the exemption off at the knees. It likely would prevent anything from ever becoming a scandal, for one thing, as many reporters file FOIA requests on a "hunch" that something big might be found. Furthermore, there is almost always a public interest when public officials commit torts against private individuals.

We joined 26 media organizations and companies on an amicus brief in Scholz v. Herald. Don Scholz, a founding member of the '70s and '80s era band "Boston," is suing not only the Boston Herald, but also the ex-wife of a former bandmate, Brad Delp. Delp committed suicide in 2007. After his death, several articles were written in the Herald quoting Delp's ex-wife who claimed that Delp's suicide could be traced to tension with Scholz -- specifically, the fact that he was "upset over the lingering bad feelings from the ugly breakup of the band Boston over 20 years ago'' and was "driven to ­despair'' by changes in the band. Scholz took this to mean that Delp's ex-wife and the Herald were blaming him for Delp's suicide. A lower court judge ruled that the statements in question were not assertions of fact, as required in defamation lawsuit. The judge decided that it was ultimately impossible to determine what caused Delp to commit suicide, so basically no assertions regarding his death could be factual in nature. That's really the issue before the Massachusetts Supreme Court: Were these statements about Delp's suicide assertions of fact? Could they ever be assertions of fact? 

Our brief explains to the court why libel claims should go forward where expressions of opinion are involved. Issues of public controversy can rarely be reduced to black-and-white statements of good and bad, right and wrong, and true and false. Given that "offering analysis and conjecture is a core function of journalism that must be preserved to ensure a robust public discourse," journalists can't do their jobs well if they have to fear that every last conjecture could be the basis of a defamation claim.

Finally, ASNE was one of five organizations that moved to intervene in a case in the U.S. District Court for the Eastern District of Wisconsin for purposes of unsealing records in the underlying case of O'Keefe v. Schmitz. Eric O'Keefe is a member of the Wisconsin Club for Growth, a conservative organization in the state. He has been swept up in criminal investigations started by local government officials regarding potentially illegal interactions between current Wisconsin Gov. Scott Walker and outside political groups. O'Keefe contends that the investigations are politically motivated and filed a lawsuit last month arguing that the investigations are malicious and were started in bad faith, chilling his right to political speech under the First Amendment. More relevant to our concerns, he also argues that a gag order preventing him from speaking about the investigation violates the First Amendment. Our intervention really focuses on the second part: Not only is O'Keefe prohibited from speaking about the case, but also several documents in the case have been sealed pursuant to the same "John Doe" law that allows the local officials to gag O'Keefe during the investigation.