ASNE joins 3 amicus briefs filed in the last week of January

ASNE continues to remain active on the amicus front. We joined three briefs filed in cases which may have an impact on ASNE members around the country, all of which are extensions of cases in which we have previously been involved. 
Nat'l Veterans Legal Servs. Program v. US stems from a class action lawsuit against the federal government seeking declaratory relief and reimbursement of funds paid for access to electronic federal court records through the PACER system. The United States District Court for the District of Columbia ruled for the plaintiffs in part and for the defendants in part. It rejected the plaintiffs' argument that the E-Government Act of 2002 limits PACER fees to the total cost of operating PACER (which is actually quite marginal). But it also rejected the government's argument that PACER fees can be used to fund any expense that involves the "dissemination of information through electronic means." It further held that the government is liable for certain costs that post-date the passage of the E-Government Act. Both sides have appealed to the United States Court of Appeals for the Federal Circuit, which will now determine the manner by which the government can set fees for access to federal court documents. Our brief, drafted by the Reporters Committee for Freedom of the Press and joined by 28 media organizations and companies, argues (1) the public and press benefit from the news media's access to electronic court records, (2) excessive fees for accessing records in PACER are particularly troublesome for journalists as newsrooms are cutting their budgets, and (3) the E-Government Act of 2002's limitation of PACER fees to the cost of dissemination of these records is consistent with the presumption of access (based on the 1st Amendment and common law) to court records; limiting fees charged to the costs of dissemination (which, again, is marginal) constitutes a reasonable charge that helps promote public access.

Courthouse News Service v. Yamasaki involves a lawsuit filed against Defendant David Yamasaki in his official capacity as Court Executive Officer/Clerk of the Orange County Superior Court (OCSC) claiming that its OCSC unconstitutionally delays access to newly e-filed civil complaints. It subsequently filed a motion for preliminary injunction to enjoin OCSC "from denying CNS's right of timely access to new unlimited complaints." The case wound its way through the federal courts in California where it now resides in the United States Court of Appeals for the Ninth Circuit, after a federal district court entered a judgment for Yamasaki, holding that the delays in access should be analyzed under a time, place, and manner analysis and that, under that analysis, the delays in access did not violate the First Amendment. Our brief, drafted by the Reporters Committee for Freedom of the Press, argues that the First Amendment right to free speech would lose "much meaning" without the right of access to public proceedings. Any right of access is, admittedly, a qualified right. But rather than reviewing that right under a more relaxed and government-friendly "time, place, manner" standard, it should be reviewed under a "strict scrutiny" standard. Under that standard, access could only be denied or otherwise limited if there exists "an overriding governmental interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest" (a rather difficult burden for the government). In any event, with the way news travels, any delay violates even the time, place, manner analysis. First, the court has not "left open alternative channels" for access, as required under even that lower standard; delays are effectively denials. In addition, the need for a delay is not tied to any significant government interest. It won't protect the privacy of any party, given that the information will soon be public anyway.

Mann v. Competitive Enterprise Institute may have an even more tortured procedural history than Courthouse News Service v. Yamasaki. University of Virginia Professor Michael Mann sued the defendants National Review, Inc., Mark Steyn (a Canadian Born conservative commentator), the Competitive Enterprise Institute and Rand Simberg (a CEI consultant) for defamation after they criticized his research methods and data in various blog posts. The defendants moved to dismiss the complaint under the D.C. Anti-SLAPP statute. The District of Columbia Superior Court denied the motions to dismiss under the Anti-SLAPP statute. The case was immediately appealed to the D.C. Court of Appeals (the highest "state" court in the District of Columbia) which agreed to hear this "interlocutory appeal" but dismissed the appeal on a technicality. The case went back to the lower court, which again denied the motions to dismiss, whereupon it went back to the appellate court which ruled in favor of Mann (and then did so again on rehearing). The defendants are now seeking rehearing from the full D.C. Court of Appeals. We joined more than a dozen other organizations and media companies on an "amicus letter" which suggests rehearing is proper because "the panel's decision on the merits of plaintiff's defamation claim, including as amended by the Court, may have unintended and undesirable consequences in future cases implicating the exercise of amici's right to freedom of speech and of the press."