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Uniformed Fire Officers Association v. De Blasio (Second Circuit)

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  1. Prior Restraint

Amicus brief filed by the Reporters Committee for Freedom of the Press and 32 media organizations

Court: U.S. Court of Appeals for the Second Circuit

Date Filed: Aug. 13, 2020

Update: On Aug. 20, 2020, the U.S. Court of Appeals for the Second Circuit issued an order denying the unions’ motion for a stay pending appeal and terminating its previous order staying the district court’s order.

Background: In June, New York lawmakers repealed Section 50-a of the state’s Civil Rights Law, a provision used to shield police misconduct records from public scrutiny. Following the repeal of Section 50-a, the New York Civil Liberties Union obtained through a state Freedom of Information Law request a database of previously unavailable police misconduct records, which the organization planned to publish on July 23, 2020.

A day before publication, however, a district court overseeing a lawsuit brought by fire and police unions challenging the release of certain police misconduct records entered a temporary restraining order enjoining the NYCLU and the city of New York from publishing any records previously shielded by Section 50-a, including the database. The district court later removed the NYCLU from the scope of the temporary restraining order, a decision that the unions have since appealed.

Pending the resolution of that appeal, the unions have asked the U.S. Court of Appeals for the Second Circuit for a stay of the modification that removed the NYCLU from the temporary restraining order, preventing the organization from publishing its database of the police misconduct records.

Our Position: The Second Circuit should deny the unions’ request for a stay.

  • If the Court orders the stay requested by the unions, it would be an unconstitutional prior restraint.
  • Prior restraints are permissible only under the rarest, most extreme circumstances, and the party seeking a prior restraint must satisfy a heavy burden to justify such a restriction on speech.
  • Delayed disclosure of the records at issue causes irreparable harm.

Quote: “The … data at issue contains records that are of significant public interest, and the publication of that information will not result in the exceedingly rare harm sufficient to justify an ongoing prior restraint on its publication by the NYCLU.”

Related: Reporters Committee attorneys filed a separate friend-of-the-court brief in this case, urging the District Court for the Southern District of New York to reject the police union’s request for a preliminary injunction that would prevent the publication of “non-final” and “unsubstantiated” allegations of police misconduct. The brief argues that the district court should deny the preliminary injunction sought by the police unions because journalists and news organizations need timely access to these records in order to engage in analysis and reporting on law enforcement in New York.

Before New York lawmakers voted to repeal Section 50-a, the Reporters Committee had long advocated against the secrecy provision. In the wake of protests against police brutality earlier this summer, the Reporters Committee sent a letter to New York lawmakers urging them to repeal Section 50-a. Last year, the Reporters Committee submitted testimony to the New York Senate Standing Committee on Codes, arguing that 50-a “has been repeatedly invoked to override the presumption of government transparency that is fundamental to New York’s democratic system of government.” The testimony followed an op-ed Reporters Committee Legal Director Katie Townsend published in the New York Daily News, lamenting that the law “has morphed into a virtually impenetrable wall of secrecy.”

Back in 2016, the Reporters Committee led a coalition of media organizations in an unsuccessful fight to access the shielded disciplinary records for the white New York City police officer who killed 27-year-old Eric Garner with a fatal chokehold.

The Reporters Committee frequently opposes prior restraint orders, which have garnered significant public attention this summer with the government’s attempts to block high-profile books concerning President Trump. To read more about prior restraint and the Reporters Committee’s fight against the orders, check out our website’s prior restraint page.