Tuesday, June 29, 2021

MFIA Files Amicus Brief in Newsgathering Case

Stained glass window depiction of "Justice": person with scales

The First Amendment’s Press Clause offers protection for people engaged in newsgathering in addition to, and independent from, those protections everyone receives from the Speech Clause. That’s what the Media Freedom and Information Access Clinic (MFIA) argued in an amicus brief filed last semester on behalf of 13 First Amendment scholars and practitioners.

The underlying lawsuit arose from the Black Lives Matter protests in Portland, Oregon last summer. Journalists covering the protests alleged that federal authorities targeted them with tear gas, pepper spray, and other less-lethal munitions to prevent them from observing and reporting on the government’s response to protests. The district court in Portland issued an injunction barring officers from arresting or using force against any journalists. 

By targeting journalists, police made it impossible for them to gather the news and, by extension, prevented the public from receiving relevant information about its government’s actions. While the district court relied on precedent based on the First Amendment’s Speech Clause in support of its injunction, the Clinic’s brief argued that the Press Clause provides independent support. By preventing journalists from observing their activities, officers impermissibly infringed the First Amendment-protected right to gather the news.

The brief argued that the history of the Press Clause demonstrated that the clause provides independent protections for newsgatherers. The journalists covering Portland’s protests were engaged in exactly the type of oversight activity that the Framing generation intended the Press Clause to protect: reporting on the government’s response to citizens’ exercise of their rights to assemble, speak, and petition.

“If the press — and, by extension, the public — can’t watch what the police do to protestors, the public will lose an important way of holding the government accountable for its abuses of power,” said MFIA’s Craig Newmark Legal Fellow, Michael Linhorst. “Protecting journalists and ensuring the public gets access to such important information is exactly what the clinic was created to do.”

The brief, which the clinic filed in the Ninth Circuit after the government appealed the District Court’s preliminary injunction, was written for 13 amici. They included Sonja R. West, Brumby Distinguished Professor in First Amendment Law at the University of Georgia School of Law; Floyd Abrams, Visiting Lecturer at Yale Law School; RonNell Andersen Jones, Teitelbaum Chair and Professor of Law at the University of Utah S.J. Quinney College of Law; Emily Bazelon, Lecturer in Law and Truman Capote Fellow at Yale Law School; Mike Godwin, Visiting Fellow at the Information Society Project at Yale Law School; and Nikolas Guggenberger, Lecturer in Law and Executive Director of the Information Society Project at Yale Law School.

“Our clients cannot do their jobs if they fear police reprisals, said Sara Worth '21. “We hope that the court of appeals will take this important opportunity to affirm that the Press Clause safeguards the right to gather and report the news.”

The Media Freedom and Information Access Clinic (MFIA) is a law student clinic dedicated to increasing government transparency, defending the essential work of newsgatherers, and protecting freedom of expression by providing pro bono legal services, pursuing impact litigation, and developing policy initiatives. 

By Leah Ferentinos