ASNE joins amicus briefs tackling unusual issues

• By: ASNE staff
• On: 12/16/2010 09:38:00
• In: Amicus briefs

ASNE recently joined two amicus briefs drafted by the Reporters Committee for Freedom of the Press in decidedly different cases. The first was filed in the U.S. Supreme Court and tackles an issue that has recently drawn a great deal of public controversy: Does a corporation have personal privacy rights? The second, filed in the U.S. Court of Appeals for the 3rd Circuit, takes on a purely procedural rule affecting the filing of defamation lawsuits. Each will greatly impact ASNE members.

In FCC v. AT&T, the Federal Communications Commission released information under the Freedom of Information Act over the objection of AT&T. The telecom giant noted that the government is required to withhold records that are part of an ongoing law enforcement investigation if those records would violate an individual's personal privacy. AT&T argues that corporations are equal to individuals for purposes of this FOIA exemption, and that the FCC's release of the information violated their privacy rights.

The 3rd Circuit disagreed with AT&T. Our brief, joined by 23 other media companies and organizations, urges the Supreme Court to uphold that ruling and require the information to be released to the public. It makes two major arguments against extension of the personal privacy right to corporations:

1. There is absolutely no history of this exemption being invoked to protect anyone other than real live people. The brief notes that it is generally applied to protect "intimate personal details such as marital status, legitimacy of children, identity of fathers of children, medical condition, welfare payments, alcoholic consumption, family fights, and reputation." In addition, there is another FOIA exemption that already protects private corporate details such as trade secrets.
2. Extending personal privacy rights to corporations would have a negative impact on news coverage of corporate activities. The brief makes this point clear by highlighting important stories that were based on government probes of corporations, with a special emphasis on investigations involving public safety.

The second case, Wolk v. Olson, is being argued in the same federal appeals court that ruled for the FCC in the case above. Twenty media organizations and companies joined the brief to argue for a strict construction of Pennsylvania's Statute of Limitations, a law requiring that a defamation lawsuit be filed within one year of publication. The plaintiff, allegedly defamed by a legal blog, claims that publication in this instance occurred instead when he discovered the allegedly defamatory article.

In arguing that "publication means publication," our brief notes that Pennsylvania courts have repeatedly denied the plaintiff's view, unless there is a unique circumstance that prevents discovery of the offending content by reasonable means. Furthermore, the brief argues, there is nothing unique about publication on the Internet; most courts clearly consider blogs to be part of the media. The brief strongly disagrees with the plaintiff's contention that bloggers "do not even remotely resemble journalists in the mass media," noting that mainstream media organizations increasingly rely on staff blogs and freelance bloggers for content. It also cautions that the courts should not be in the business of making judgments as to the quality of content. Finally, the brief reminds the court that free speech requires that the burden of discovering a defamatory publication rests with the plaintiff, to ensure a predictable limit on potential claims.

FCC v. AT&T will be argued before the Supreme Court on Jan. 19, 2011. No hearing date has been set by the 3rd Circuit in Wolk v. Olson.

Kevin M. Goldberg is legal counsel for ASNE and special counsel with Fletcher, Heald & Hildreth, PLC.

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