During the past few weeks, as the Brett Kavanaugh Supreme Court confirmation and the 2018 midterm elections seem to have sucked the air out of the room, RTDNA has been working quietly, yet forcefully, in the courts to protect your ability to serve your communities by seeking and reporting the truth.
In the Supreme Court of the United States
RTDNA and its Voice of the First Amendment Task Force have signed on to an amicus (friend of the court) brief in Nieves, et al., v. Bartlett, a case from Alaska that, while not directly involving journalists, could have a significant impact on our ability to do our jobs. The question is whether a law enforcement officer’s perception of probable cause outweighs an individual’s First Amendment rights.
In April 2014, Russell Bartlett was attending the annual Arctic Man event – a famous snowmobile race and party – in a remote part of Alaska. When he was first encountered one evening by an Alaska State Trooper, he refused to answer questions. Later that night, when he saw a trooper questioning his teenage cousin about alleged underage drinking, Bartlett intervened, claiming the trooper had no right to speak to the young man without a parent or guardian present.
After a short encounter, one trooper, Luis Nieves, arrested Bartlett for disorderly conduct and put him in the back seat of a squad car. At that point Nieves allegedly told Bartlett, “Bet you wish you would have talked to me now.” Nieves disputes he said it.
Lower courts ruled that in order for Bartlett to prevail in a case of First Amendment retaliatory arrest, he must prove that law enforcement had no probable cause to arrest him. The 9th U.S. Circuit Court of Appeals, however, overturned the lower courts’ rulings. Now the nation’s highest court must decide.
As RTDNA, the National Press Photographers Association and 29 other amici state in our brief, “The question presented in this case is of particular importance to the press, whose institutional role is to serve as a watchdog and check on government. If probable cause bars claims for retaliatory arrests, the government will be given unbridled discretion that can be used to chill and intimidate journalists.”
The Supreme Court is expected to rule on the matter during its current term, which ends in June.
In the Supreme Court of Ohio
The case of Aaron Anderson, et al., v. WBNS-TV could have an even more direct chilling impact on newsrooms.
In January 2016, the Columbus Division of Police released to the local news media a bulletin requesting the public’s assistance in solving a 2015 robbery case in which a child’s skateboard had been stolen at gunpoint. The bulletin contained photographs of Aaron Anderson, a private citizen, and a handful of his relatives and described them as “suspects.”
WBNS-TV, Columbus, broadcast information from the bulletin, including the Andersons’ photos, during one of its newscasts. Shortly after the report aired, the Andersons went to the Columbus police department and were subsequently cleared of any involvement. Police notified local news outlets, and WBNS-TV promptly removed the Andersons’ images from its website and Facebook page.
The Andersons later filed suit against WBNS-TV alleging, among other things, defamation of character – even though WBNS-TV’s initial report was based on information from what its staff deemed to be a reliable source, the local police department. A lower court sided with the station, but the Andersons appealed. A state appeals court overturned the ruling and imposed on journalists a “stronger duty” to exercise “extraordinary care” when determining whether information it posts online or on social media is true.
To put it another way, unless the appeals court ruling is overturned, journalists in Ohio may no longer rely merely on information from official government agencies. They will have to investigate crimes and other matters independently before publishing on digital platforms.
RTDNA, the Ohio Association of Broadcasters and the four other amici in this case state in our brief, “As reporters work to balance the public’s need to know emergent information quickly with the time it takes to accurately report the news, they should not be required to conduct unnecessarily drawn-out investigations and second-guess trusted sources such as public officials before publishing online. The Court of Appeals’ ‘stronger duty’ standard threats to slow public access to what is, at times, life-saving breaking news.”
In the Delaware Court of Chancery
In March of this year, RTDNA’s Voice of the First Amendment task force reported on how the Delaware Court of Chancery, which hears many of the nation’s most significant business disputes – because of the large number of companies that incorporate in Delaware due to its favorable tax laws – has unilaterally and summarily exempted itself from state judicial administrative rules allowing cameras in the courtroom.
Court Chancellor Andre Bouchard excepted the court from the rule in 2016, saying it needed further review. That review has been ongoing, although moving exceptionally slowly, ever since.
Enter the case of John Schnatter v. Papa John’s International, Inc. Schnatter, after leaving his positions as chairman and pitchman earlier this year for allegedly using the N-word during a conference call, is suing Papa John’s seeking to inspect company documents related to his ouster.A Chancery Court proceeding was scheduled for October 1, and Courtroom View Network, which videotapes hearings and trials of public interest in several jurisdictions across the country, sought to place a single, unobtrusive camera in the courtroom. Chancellor Bouchard, as he has done consistently since ordering the administrative rule review, declined without explanation.
That prompted this statement to RTDNA from CVN National Editor David Siegel:
RTDNA could not agree more. We will continue to monitor news media access to the Court of Chancery and advocate for the resumption of video coverage of hearings and trials that occur before it.
In San Diego County Superior Court
In another case brought to our attention by CVN, a San Diego Jury late last month found in favor of the national retailer Big Lots in a slip-and-fall lawsuit brought by a woman who claimed she was injured when she lost her footing on the dirty floor of one of the company’s stores.
Judge Randa Trapp originally allowed CVN to live stream and videotape the trial, Diana Higgins v. Big Lots Stores, Inc., over the objection of Big Lots’ attorneys. However, when CVN posted a story on its website mid-trial, the company’s lawyers again objected to the presence of CVN’s camera and this time, the judge agreed, ordering CVN to remove its camera. Big Lots’ sole objection to video coverage of the trial was that it might adversely impact its business interests.
CVN’s Siegel issued this statement to RTDNA:
In the Court of Appeals of Georgia
RTDNA is offering its support to a brief filed on behalf of the Institute for Justice, which is challenging a lower-court ruling stating, essentially, that the Georgia House of Representatives and Georgia Senate are exempt from the state’s open records law.
Obviously, the lower-court ruling in that case runs counter to Georgia citizens’ right, and need, to know what their elected representatives are doing in the statehouse on their behalf, and subverts the very concept and intention of the open records law.
As the appeal brief in Institute for Justice v. Reilly, et. al states, “One wonders what Appelleess are so keen to hide.”
These are but a few of the court cases in which RTDNA has intervened on behalf of press freedom and the public’s need to know. If you are involved in a case now, or know of one in your area, where you think RTDNA could be of assistance, please let us know at email@example.com.