District court's denial of discovery in AT&T and Time Warner merger case was improper, Reporters Committee argues

Evan Popp | September 28, 2018
Ruling could prevent news outlets from defending themselves if current or future administrations target them in retaliation for coverage
 
The Reporters Committee for Freedom of the Press is arguing that a district court erred in denying AT&T's request for records of communication between the White House and the Department of Justice in an effort to determine if the president tried to influence the Justice Department to challenge the company's merger with Time Warner. In a friend-of-the-court brief submitted Thursday, the Reporters Committee explains that the district court's decision will make it "exceedingly challenging, if not impossible" for news organizations to obtain discovery in future cases where "this administration, or any other, selectively enforces antitrust or other complex regulations or laws to punish negative — or coerce positive — news coverage."
 
The brief notes that this is the first time in 40 years that the Justice Department has brought to trial a challenge to a merger between non-competitors. According to the brief, the president's well-documented denigration of CNN, which was then owned by Time Warner, should have been enough to obtain discovery into communications between the White House and Justice Department to determine if the challenge to the merger was politically motivated. The district court's ruling, the Reporters Committee argues, prevents access to information that could help the court determine whether the Trump administration improperly interfered. 
 
The brief also explains that the misuse of antitrust laws to try to influence specific media organizations into producing more favorable coverage is not unprecedented. President Lyndon Johnson used a bank merger to coerce more flattering coverage from the Houston Chronicle, while President Richard Nixon initiated antitrust actions against ABC, CBS and NBC during the height of the Watergate crisis. 
 
The Reporters Committee takes no position on the merger but, given the negative implications that the district court's ruling could have on the exercise of First Amendment rights, is asking the U.S. Court of Appeals for the District of Columbia Circuit to "clarify the standard for discovery in selective enforcement cases that implicate the 'suppress[ion of] protected expression.'"
 
The full brief is available here.