Briefs & Comments

The New York Times Company and the American Civil Liberties Union sought records under the federal Freedom of Information Act detailing the U.S. government’s policies for when it can conduct drone strikes and when it can kill a U.S. citizen. In particular, the Times and the ACLU sought memos prepared by the Office of Legal Counsel, which provides legal advice to the President. After the government refused to release the records, the Times and the ACLU sued.

Photographer Paul Raef was charged with violating California Vehicle Code Section 40008, which provides enhanced penalties to drivers who violate one of the state's reckless driving laws with the intent to capture a visual image or sound recording for a commercial purpose. A trial court judge dismissed the charges in Nov. 2012, concluding that Section 40008 targets First Amendment-protected activity and is not narrowly tailored to serve the government's interest.

The Reporters Committee wrote to the chairman and ranking member of the Senate Judiciary Committee asking them to question Attorney General Eric Holder about the Department of Justice's policy of releasing booking photographs under FOIA. The Marshals Service had unilaterally determined not to honor such requests despite a federal appellate court's longstanding decision that the photographs do not implicate individual privacy.

In December 2012, the U.S. Marshals Service announced a new policy that blocks the public release of federal booking photographs pursuant to federal Freedom of Information Act cases. The Reporters Committee's letter, joined by 37 other media organizations, asks the Department of Justice to rescind the new policy, as it violates established case law in the United States Court of Appeals for the Sixth Circuit that entitles individuals to obtain mug shots under FOIA for indicted defendants who have made a public court appearance and whose criminal proceeding is ongoing. 

Under a recent Delaware law, sitting Chancery Court judges may serve as arbitrators in secret arbitration cases between corporations. The Delaware Coalition for Open Government (DCOG) sued the Chancery Court judges to block the scheme, arguing that it violated First Amendment rights of public access to judicial proceedings. The U.S. District Court in Delaware struck down the law as unconstitutional, holding that the secret arbitration scheme was tantamount to a civil trial and public rights of access applied.

Boston College researchers Ed Moloney and Anthony McIntyre are appealing a First Circuit appellate court decision dismissing their challenge of a subpoena seeking confidential interviews the pair conducted with members of the Irish Republican Army and other members of paramilitary and political organizations involved in the "Troubles" in Northern Ireland. The First Circuit concluded that while the scholars had standing to raise a constitutional challenge the subpoenas, they failed to state a First Amendment claim entitling them to relief. We urge the U.S.

Book author and blogger Robert David Johnson is appealing a U.S. Magistrate Judge's opinion denying his request to quash a subpoena from Duke University seeking confidential, non-published communications between himself and several former Duke lacrosse players and their attorneys. Johnson began writing a blog concerning the fallout from a spring 2006 incident in which a stripper hired to perform at an off-campus house party accused several of the players of rape. Duke is facing civil suits from the former players.