6. Amicus briefs
Amicus briefs are not routinely filed but may be accepted by the courts if they are relevant. The relevancy of a particular amicus brief is determined on a case-by-case basis. “The United States or its officer or agency, or a state may file an amicus-curiae brief without the consent of the parties or leave of court. Any other amicus curiae may file a brief only by leave of court or if the brief states that all parties have consented to its filing.” Fed. R. App. Proc. 29(a). See also 1st Cir. Local Rule 29 (a)(2).
The First Circuit requires a party seeking to submit an amicus brief to file a motion, accompanied by the proposed brief, which sets forth his interest in the matter, the reason why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case. The motion must be filed no later than 7 days after the principal brief of the party being supported is filed, or, if neither side is being supported, no later than 7 days after the appellant’s or petitioner’s principal brief is filed. (Fed. R. App. Proc. 29(a)(6)). See also 1st Cir. Local Rule 29(a).
Courts in the Second Circuit accept amicus briefs at both the district court and the appellate levels. The decision whether to do so is entirely within the court's discretion. The following are some organizations that have filed amicus briefs in cases involving media privilege:
Reporters Committee for Freedom of the Press 1156 15th St. NW, Suite 1020, Washington D.C. 20005 (202) 795-9300 www.rcfp.org American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004 (212) 344-3005 www.aclu.org Electronic Frontier Foundation 454 Shotwell Street San Francisco, CA 94110 (415) 435-9333 www.eff.org
Federal courts generally accept amicus briefs where the "friend of the court" has something meaningful to add to the parties' briefing. In the Third Circuit, numerous state and national press associations and media companies routinely file amicus briefs at the appellate level and, in significant or difficult cases, at the trial court level. Among the organizations in the Third Circuit that a reporter confronted with a subpoena might want to contact in this regard:
Reporters Committee for Freedom of the Press
New Jersey Press Association
P.O. Box 358
Titusville, NJ 08560
Main: (609) 406-0600
Legal hotline: (973) 596-4861
New Jersey Broadcasters Association
2608 Lakewood Road, Suite 3
Point Pleasant, NJ 08742
Pennsylvania Association of Broadcasters
208 North 3rd Street, Suite 105
Harrisburg, PA 17101
Pennsylvania NewsMedia Association
3899 North Front Street
Harrisburg, PA 17110
Main: (717) 703-3000
Legal hotline: (717) 703-3080
Maryland-Delaware-DC Press Association
P.O. Box 26214
Baltimore, MD 21210
The filing of amicus briefs is governed by Federal Rule of Appellate Procedure 29, which permits an amicus to submit a brief by leave of court or if the brief states that all parties have consented to its filing. The Court of Appeals for the Fourth Circuit appears to accept amicus briefs as a routine matter; they are also often accepted at the district court level, such as in Food Lion, where the court was reviewing the orders of a magistrate judge.
The Fifth Circuit may accept amicus briefs. 5th Cir. L.R. 29, 31.2. In Selcraig, the court responded specifically to the assertions made by the amicus curiae regarding the reporter's privilege. In re Selcraig, 705 F.2d 789, 795 (5th Cir. 1983). Those wishing to file an amicus brief in the Fifth Circuit must file a motion within seven days after the filing of the principal brief whose position the amicus brief will support. 5th Cir. L.R. 29(a)(6). Similarly, in some instances amicus briefs may be filed in district courts with the permission of the presiding judge. See, e.g., N.D. Tex. L.R. 7.2(b).
There are no special rules regarding amicus briefs and motions to quash subpoenas.
Courts in the Seventh Circuit employ a “relative hardship” standard in determining whether to quash a subpoena. Beverly v. Watson, No. 14-cv-4970, 2016 U.S. Dist. LEXIS 87725, *18 (N.D. Ill. July 7, 2016) (Finnegan, Mag.) (standard is “relative hardship” or whether burden of production would outweigh benefit); Wilson v. O'Brien, 2009 U.S. Dist. LEXIS 22967, *19, 2009 WL 763785 (“reasonable under the circumstances”); Mosely v. City of Chicago, 252 F.R.D. 421, 427 (N.D. Ill. 2008) (in Seventh Circuit, subpoenas directed to journalists and media, like those to any non-party, need only be "reasonable in the circumstances”). A subpoenaing party seeking to compel the disclosure of information from a journalist gathered in the course of newsgathering must show that the evidence is highly probative of issues relevant to the case and that it does not have the evidence, or it is otherwise unavailable to them. Bond v. Utreras, No. 04 C 2617, 2006 WL 1806387 at *6, (N.D. Ill. June 27, 2006). In Patterson v. Burge, No. 03 C 4433, 2005 WL 43240 (N.D. Ill. Jan. 6, 2005), the court held the party enforcing a subpoena must showing materiality and that they do not have the information sought and it is not available from other sources. Id. at *2 - *3. See also Neal v. City of Harvey, Ill., 173 F.R.D. 231, 233 (N.D. Ill. 1993) (subpoenaing party must show: "(1) that the information is not available from a non-journalistic source; and (2) that it is highly relevant and material to the case at bar."). See Builders Assoc. of Greater Chicago v. County of Cook, No. 96 C 1121, 1998 WL 111702, at *5 (N.D. Ill. Mar. 12, 1998).
The Ninth Circuit routinely accepts amicus briefs. In In re Grand Jury Proceedings (Scarce v. United States), the Ninth Circuit accepted an amicus brief from the American Civil Liberties Union Foundation of Washington. 5 F.3d 397, 399 n.1 (9th Cir. 1993), cert. denied, 510 U.S. 1041 (1994). In Shoen II, briefs were accepted by the Ninth Circuit on behalf of various amici, including Arizona Newspapers Association; Radio-Television News Directors Association; and Association of American Publishers. Shoen II, 48 F.3d at 416. Likewise, in In re Grand Jury Subpoena (Wolf v. United States), 201 Fed. App’x 430 (9th Cir. 2006), the Ninth Circuit accepted and addressed amici’s arguments in favor of applying a constitutional and common-law reporter’s privilege in that case. See id. at 433. The district court in In re Grand Jury Subpoenas to Fainaru-Wada & Williams, 438 F. Supp. 2d 1111 (N.D. Cal. 2006), also considered an amicus brief filed by twenty-six media companies and non-profit organizations on behalf of the journalists in that case. Id. at 1112 n.1.
Alabama courts routinely accept amicus briefs, although they are more prevalent at the appellate than at the trial court level. There is no particular organization that regularly files amicus briefs opposing the subpoenaing of reporters in Alabama. Parites can contact the Alabama Press Association in Birmingham for support at (205) 871-7737.
Amicus briefs are routinely accepted by the courts, although they are rarely filed at the trial court level. If a subpoena issue were to be presented to an appellate court as a point on appeal, it is possible that the Alaska Press Club, the Alaska Newspaper Association, or another press organization might wish to file an amicus brief. It is very unlikely that a press organization, other than one directly involved as the recipient of a subpoena or employer of the recipient, would become involved as an amicus at the trial court level for a number of reasons, primarily including the expense of doing so, the lack of precedential value of a superior court ruling, and the multiplicity of non-related issues.
Amicus curiae briefs are allowed in appeals to the Arkansas Supreme Court and the Arkansas Court of Appeals with the permission of the respective court. Rules of Ark. Sup. Ct. and Ct. App. 4-6. Motions requesting permission should state the reasons why the brief is necessary. Id. Amici attorneys are not allowed to present oral arguments, nor are they allowed to petition for rehearings in their own names. Id. Briefs supporting the appellant's position or which are neutral are due when the appellant's brief is due; those supporting the appellee's position are due when the appellee's brief is due. It is customary to file the motion for leave to file an amicus brief when the amicus brief is filed.
Amicus briefs typically are not filed in California’s Superior Courts, although no law prevents amicus support at that level, and trial courts usually will accept such briefs for filing. They routinely are accepted in matters pending before the Courts of Appeal and the Supreme Court. California Rules of Court 8.200, 8.500(g) and 8.520(f) provide the procedure for submitting an amicus brief.
Three organizations in California regularly serve as amici on reporter’s privilege issues. The First Amendment Coalition can be reached at firstamendmentcoalition.org. FAC’s address is 534 Fourth Street, Suite B, San Rafael, California 94901, and its telephone number is (415) 460-5060. CalAware can be reached at calaware.org. Its address is 2218 Homewood Way, Carmichael, California 95608, and its telephone number is (916) 487-7000. The California News Publishers Association can be reached at cnpa.com. CNPA’s address is 2701 K Street, Sacramento, California 95816, and its telephone number is (916) 288-6000.
Amicus briefs are permitted at the appellate level. There is no prohibition against submitting an amicus brief to the trial court; however, filing an amicus brief at the trial court level is unusual.
There are media organizations in Colorado that would support an amicus brief opposing the subpoenaing of a newsperson. They include the Colorado Press Association, 303-571-5117; and the individual newspapers, television stations and radio stations throughout the state.
District of Columbia
Pursuant to Rule 29(a) of the Rules of the D.C. Court of Appeals, a brief of an amicus curiae may be filed only with leave of court or if accompanied by written consent of all parties. The motion for leave must be accompanied by the proposed brief, identify the interests of the applicant, and state the reasons why a brief of an amicus curiae is desirable and why the matters asserted are relevant to the disposition of the case.
Florida courts at all levels accept amicus briefs. Potential amici in reporter's privilege cases include the Florida First Amendment Foundation (317 E. Park Ave., Suite 101, Tallahassee, Florida 32301; Phone: 800-337-3518 or 850-222-3518) and the Florida Press Association (336 E. College Ave., Suite 201, Tallahassee, FL 32308; Phone: 850-283-5255).
Georgia's trial and appellate courts readily accept amicus briefs. See generally Georgia Supreme Court Rule 23; Georgia Court of Appeals Rule 26.
State organizations that regularly oppose the issuance of subpoenas to reporters include the Georgia Press Association (http://gapress.org/) and the Georgia First Amendment Foundation (http://gfaf.org/).
Amici appearances in Idaho appellate courts are governed by Rule 8 of the Idaho Appellate Rules, by which the appeal court may allow an amicus in its direction. There is no similar rule in the trial court rules, but amici appearances are nonetheless allowed upon motion in some instances. Ordinarily, the court--whether at the trial level or at the appellate level--is asked to grant express permission to file an amicus brief. In that request, the potential amicus should make out a substantive case for the purpose of an amicus brief, the nature of the position to be taken by the amicus in the case and the time period sought for the purpose of completing and filing such a brief.
Amicus briefs may be filed only by leave of the court, or at the courts request. Ill. Sup. Ct. R. 345(a). Illinois Supreme Court Rules 341-344 set forth the rules for the format and appearance of amicus briefs. Amicus curiae are not allowed time for oral argument. Ill. Sup. Ct. R. 345(c).
Amicus participation is unusual in Iowa district courts but would probably be allowed. State court rules do not directly address such participation.
The Iowa Rules of Appellate Procedure allow amicus participation. The amici must file the brief within seven days after the brief of the party the amici is supporting is filed. Iowa R. App. P. 6.906(1). The court may extend this timeframe upon a showing of good cause. Id.
Organizations from whom the Court likely would accept such briefs include: Iowa Freedom of Information Council; Iowa Newspaper Association; Iowa Broadcasters Association; Iowa Broadcast News Association; local SDX/SPJ Chapters; and the Reporters Committee for Freedom of the Press.
Amicus briefs are rarely filed at the trial court level and there is no procedure for doing so. At the appellate level, they may be filed at the discretion of the court. In the Court of Appeals and Supreme Court, an amicus brief must be tendered with a motion for leave to file the brief and filing fee no later than 15 days after the appellant’s brief is filed. Ky. R. Civ. P. 76.12(7).
All levels of courts can accept amicus briefs, but it is extremely rare at the district court level. At the appellate level, the Louisiana Press Association is most likely to file or join an amicus brief in support of a reporter's privilege being invoked. Will Chapman is executive director and Mike Rood is general manager, and can be reached at 404 Europa Street, Baton Rouge, LA 70802, 225-344-9309.
The trial court has discretion to accept amicus briefs, although such briefs are very rare at the trial level in Maine. The Maine Supreme Court generally accepts amicus briefs; it allowed a half dozen broadcasters and publishers to appear by amicus brief in In re Letellier, 578 A.2d 722, 17 Media L. Rep. 2169 (Me. 1990).
There is no rule or case law either permitting or prohibiting the filing of amicus briefs at the district or circuit court levels.
Amicus briefs are explicitly permitted at the appellate level -- Md. R. App. Rev., Ct. App. & Ct. Special App. 8-511(a) -- An amicus brief may be filed with written consent of all parties to the appeal; by the Attorney General in any appeal in which the State has an interest; upon request by the court; or upon the court’s grant of a motion filed pursuant to section (b) of this Rule.
Michigan courts are generous in their granting of the right to allow supporting organizations to file briefs as amicus curiae. See City of Grand Rapids v. Consumers’ Power Co., 216 Mich. 409, 415, 185 N.W. 852 (1921) (stating that the court is desirous of amicus curiae). Reporters should contact:
Michigan Press Association
827 N. Washington
Lansing, MI 48906
Michigan Association of Broadcasters
819 N. Washington
Lansing, MI 48906
Reporters Committee for Freedom of the Press
1156 15th St. NW, Suite 1020
Washington, D.C. 20005
Amicus participation is unusual in Minnesota district courts. State court rules do not directly address such participation.
At the appellate level, amicus participation is routinely approved, following application for leave to participate under Minn. R. Civ. App. P. 129 (requests for leave generally must be filed within fifteen days after the filing of the notice of appeal).
Amici in cases involving the reporters' privilege have included individual news organizations, the Society of Professional Journalists (www.mnspj.org), the Minnesota Newspaper Association (www.mnnewspapernet.org), and the Minnesota Broadcasters Association (www.minnesotabroadcasters.com).
The Mississippi Court of Appeals and the Mississippi Supreme Court accept, although not routinely, amicus briefs under Rule 29 of the Mississippi Rules of Appellate Procedure, which states:
(a) Grounds for Filing.
A brief of an amicus curiae may be filed only by leave of the appropriate appellate court, except that leave shall not be required when the brief is presented by the state and sponsored by the Attorney General or by a guardian ad litem who is not otherwise a party to the appeal. A motion for leave shall demonstrate that (1) amicus has an interest in some other case involving a similar question; or (2) counsel for a party is inadequate or the brief insufficient; or (3) there are matters of fact or law that may otherwise escape the court's attention; or (4) the amicus has substantial legitimate interests that will likely be affected by the outcome of the case and which interests will not be adequately protected by those already parties to the case.
(b) How and When Filed.
A motion for leave to file an amicus brief shall be filed no later than seven (7) days after filing of the initial brief of the party whose position the amicus brief will support. The motion must be accompanied by the proposed brief of amicus curiae which shall be a concise statement not to exceed 15 pages. The party filing the motion shall also file with the motion a brief stating why the motion satisfies the requirements of Rule 29(a).
(c) Response to Motion.
An opposing party who does not object to the motion for leave may respond to the amicus brief in the opposing party's response or reply brief pursuant to Rule 28(c) or 28(d). An opposing party who objects to the motion for leave shall file a response in opposition within seven (7) days pursuant to Rule 27 stating why the requirements of Rule 29(a) have not been met. For the purpose of Rule 31(a), the time for filing the next brief will run from the date the appropriate court enters an order on the motion for leave.
(d) Oral Argument.
A motion of amicus curiae to participate in oral argument will be granted only for extraordinary reasons.
There are no organizations that regularly file amicus briefs opposing the subpoenaing of reporters.
Generally, courts in Missouri do not look with favor upon amicus briefs at the lower court (circuit court) level. However, amicus briefs are accepted by the courts of appeal and by the state supreme court. The Missouri Press Association is a frequent provider of amicus briefs at those levels and welcomes a contact in regard to cases that involve these issues. The association is located at 802 Locust St., Columbia, Mo., and can be reached at 573-449-4167. The author of this chapter is counsel for the association and also may be contacted about such matters.
Nevada courts routinely accept amicus briefs in the district courts and Nevada Supreme Court. Richard Karpel, ExecutiveDirector of the Nevada Press Association can be contacted at 775-885-0866. The Nevada Press Association is located at 102 N. Curry St., Carson City, Nevada 89703; fax number: 775-885-8233.
New Mexico appellate courts routinely accept amicus briefs, but the practice is far less common at the district-court level. In the past, the New Mexico Press Association (P.O. Box 95198, Albuquerque, N.M. 87199; 505-275-1241) and the New Mexico Broadcasters Association (2333 Wisconsin St. NE, Albuquerque, N.M. 87110; 505-881-4444) have occasionally weighed in with amicus briefs on issues of concern to the press.
Amicus briefs are not typically filed at the trial court level, but they are accepted in matters pending before the appellate division courts and the New York Court of Appeals. Amicus curiae status may be sought by motion at the discretion of the appellate court. The New York Court of Appeals is the only appellate court to promulgate a rule specifying the criteria for granting a motion for leave to file an amicus brief. See 22 NYCRR § 500.11(e). In addition, only the second department has a court rule concerning how to seek leave to file an amicus brief. See 22 NYCRR § 670.11.
For assistance responding to a subpoena or for amicus support, contact the Reporters Committee.
Amicus briefs are sometimes submitted by interested parties and organizations at the trial court level. They are more typically filed at the appellate court level with the Court of Appeals or the Supreme Court. Organizations which have filed amicus briefs in actions involving media companies include:
Reporters Committee for Freedom of the Press
1156 15th St. NW, Suite 1020
Washington, D.C. 20005
North Carolina Association of Broadcasters
150 Fayetteville Street, Suite 1270 (27601)
Post Office Box 627
Raleigh, NC 27602
Phone: (919) 821-7300
Fax: (919) 834-8880
Lisa Reynolds, Executive Director
North Carolina Press Association
5171 Glenwood Avenue, Suite 486
Raleigh, NC 27612
Phone: (919) 516-8000
Fax: (919) 516-8005
Phil Lucey, Executive Director
Courts at all levels have been known to accept amicus briefs. We do not routinely ask for amicus assistance but would consider doing so in the extraordinary case. If an amicus brief were appropriate, we would naturally consider the Reporters Committee for Freedom of the Press, Radio Television Digital News Association, Investigative Reporters & Editors, The Oklahoma Press Association, the Oklahoma Association of Broadcasters, and other media.
Amicus briefs are not typically filed in Oregon trial courts, but may be in Oregon's appellate courts, pursuant to Oregon Rule of Appellate Procedure 8.15. Statewide interested parties include the Oregon Newspaper Publishers Association (contact information at http://orenews.com), and the Oregon Association of Broadcasters (contact information at https://www.theoab.org).
There is no Pennsylvania civil or criminal rule of procedure concerning the filing of amici curiae briefs at the trial court level. Counsel should consult the local rules for any limitations.
Pennsylvania appellate courts generally accept amicus briefs. Pennsylvania Rule of Appellate Procedure 531 provides that any non-party may submit an amicus curiae brief, without permission of the court, by the deadline for submission of the brief by the party whose position the amicus curiae supports. Oral argument by amici is by permission only. Pa. R. App. P. 531(b).
For possible amicus curiae support, the news media should contact the Reporters Committee (800.336.4243) and Melissa Melewsky, Media Law Counsel, Pennsylvania NewsMedia Association, 3899 North Front Street, Harrisburg, PA 17110; (717) 703-3048.
Briefs of amicus curiae may be filed with written consent of all parties, or upon leave of the Supreme Court on a motion which identifies the interest of the applicant and the reasons why a brief is desirable. R.I. Supreme Court Rule of Appellate Procedure 16(f).
The Reporters Committee for Freedom of the Press may file amicus briefs in cases involving significant media law issues before a state's appellate courts.
Amicus briefs are rare but not unknown at the trial court level. Rule 213 of the South Carolina Rules of Appellate Procedure describes the mechanism for seeking leave of the court to file an amicus brief. In the only appellate case involving the South Carolina shield law an amici brief was filed on behalf of the Reporters Committee for Freedom of the Press and the South Carolina Press Association. The most likely organization to petition for leave to participate as an amicus is the South Carolina Press Association, P.O. Box 11429, Columbia, S.C. 29211, 803/750-9561.
There is no general rule regarding the acceptance of amicus briefs in cases involving reporter's privilege issues, although at least some trial judges have been amenable to amicus participation. Two groups that have previously been involved in such cases as amici are the Utah Headliners Chapter of the Society of Professional Journalists and the Utah Press Association.
Vermont superior courts do not routinely accept amicus briefs. An amicus brief in the Vermont Supreme Court may be filed only if accompanied by the written consent of all parties, or by leave of the trial court granted on motion, or at the request of the Supreme Court. See V.R.A.P. 29. The motion for leave to file the amicus brief must identify the interest of the applicant and state the reasons why the brief would be desirable. See id.
Wisconsin courts at all levels routinely accept amicus briefs. Procedural rules for filing an amicus brief in the appellate courts are set forth in Wis. Stat. § 809.19(7). In appeals, nonparties must request permission to file an amicus brief, identify their interest in the case, and state why a brief filed by that person is desirable. The motion must be filed no later than 14 days after the respondent's brief is filed, and the brief must be filed within the time specified by the court.