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When it comes to prior restraints, courts shouldn’t ‘Just Do It’
When journalists at The Oregonian started reporting on a sexual harassment lawsuit against Nike, they knew that sealed documents in the case could provide vital information. Little did they know that going to court to get them could mean undercutting their First Amendment rights.
A recent decision from a federal appellate court related to the Oregonian’s quest for access means that journalists who intervene in court cases to try to unseal court records could subject themselves to “prior restraints,” or judicial orders barring them from reporting news related to the case.
That’s why Freedom of the Press Foundation (FPF) joined a coalition of media companies and press freedom groups to file an amicus brief supporting the Oregonian’s request that the full appeals court reconsider this unprecedented decision.
Fight for access to Nike lawsuit records
In 2022, The Oregonian moved to unseal certain documents from a lawsuit brought by four former female employees at Nike who claimed the sportswear company fostered a “culture of unequal compensation and sexual harassment.” Of central interest to the news outlet were the individuals named in internal company documents about allegations of discrimination and harassment.
Around the same time, an Oregonian journalist met with the lawyer for the plaintiffs as part of their reporting on the case. During the meeting, the lawyer inadvertently sent the reporter confidential documents from the lawsuit.
It can’t be right that journalists who go to court to vindicate the public’s First Amendment right of access to court records have fewer First Amendment protections than journalists who don’t.
Typically, when journalists receive secret documents, they want to report on them—and the First Amendment protects their right to do so. But in this case, the court ordered The Oregonian to return or destroy the documents and prohibited it from publishing any information obtained from them.
The Oregonian objected, but a panel of judges from the U.S. Court of Appeals for the 9th Circuit ruled that the news outlet could be required to return or destroy the documents. The appeals court said that The Oregonian became a party to the case when it intervened in the lawsuit to seek the unsealing of the records and, as a result, it could be restricted from publishing them without violating the First Amendment rights it would enjoy as a nonparty news outlet.
Losing First Amendment rights by exercising them
The Court of Appeals’ decision is yet another example of courts ignoring key precedent on prior restraints. The Supreme Court has made clear time and again that prior restraints can be justified in only the most extreme circumstances.
If the court didn’t approve of a prior restraint on publication of the Pentagon Papers — which the government claims contained national security secrets — it seems obvious that it wouldn’t approve of a prior restraint on documents describing sexual harassment complaints at a shoe company.
But perhaps even more worrying than the court’s ignorance of prior restraint precedent is its position that The Oregonian forfeits its First Amendment right to publish the documents because it intervened in the lawsuit to vindicate another First Amendment right — the right of access to judicial documents.
Journalists move to unseal court records all the time. While the First Amendment gives every member of the public the right to access court records and proceedings, the Supreme Court has specifically noted the special role journalists play in exercising that right and using it to inform the public.
But as the attorneys from Davis Wright Tremaine wrote in the amicus brief we joined, the appeals court’s decision “effectively penalizes news outlets that intervene to unseal court records while also gathering information on the same topic through other reporting methods.”
To understand why this punishes journalists, imagine if The Oregonian had never intervened in the Nike lawsuit to try to unseal documents. If everything else still played out the same — its reporter met with a lawyer and the lawyer inadvertently sent the reporter sealed court records—there would be no question that the reporter would have a First Amendment right to publish those documents.
But if the appeals court’s decision stands, journalists who go to court to unseal documents won’t have the same First Amendment right to publish documents they independently obtain through interviews, public records requests, or even anonymous leaks.
That’s a problem because, as our brief explains, many important news stories, from the Miami Herald’s reporting on the Jeffrey Epstein case to The Boston Globe’s Spotlight investigation of child sexual abuse by the Catholic Church, relied on both unsealing court records and shoe-leather reporting.
It can’t be right that journalists who go to court to vindicate the public’s First Amendment right of access to court records have fewer First Amendment protections than journalists who don’t. The full Court of Appeals must reconsider this case and right this backward decision.
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Pooling public records resources for journalists
This is the first in a series of profiles of independent journalists who use public records to hold local governments accountable. The second, about Hannah Bassett's investigation of Medicaid fraud in Arizona, is here.
Lisa Pickoff-White fell in love with — and experienced the hurdles of — records reporting as a journalism graduate student at the University of California, Berkeley, where she participated in a project to investigate and report on the 2007 murder of Oakland Post editor Chauncey Bailey.
The effort brought together newsrooms to finish Bailey’s reporting on violence and fraud in a San Francisco bakery, which the investigation revealed had long-standing ties with local politicians and police.
“That experience really opened up my eyes to both records reporting and data journalism,” Pickoff-White said. “I realized there was this whole other side of journalism that, even though I had been working in it, that I didn't even really know anything about, and it was something that I was excited to pursue. I immediately was like, ‘This is grueling, difficult work, but it’s work I really want to do.’”
Now, 15 years later, that training continues to pay off, as Pickoff-White’s California Reporting Project sends out more than 700 public records requests to law enforcement agencies each year. In fact, since its inception in 2018, the project has surpassed 3,500 records requests. Pickoff-White, the project’s director, doesn't plan on slowing down.
“One of the things that draws me to journalism is those known unknowns,” Pickoff-White said. “Like, making visible what is hard to see. Being able to connect the dots. I think systems reporting is one of the things that I love about reporting and records research. It allows you to take people’s lived experiences, back it up with data and say, this is occurring and it is occurring more than once, and to give people some context on why it might be occurring as well.”
Systems reporting "allows you to take people’s lived experiences, back it up with data and say, this is occurring and it is occurring more than once, and to give people some context."
Lisa Pickoff-WhiteThe California Reporting Project was born after the state’s Right to Know Act was enacted in 2018, allowing the public to request police reports and reports related to law enforcement’s use of violence and other kinds of misconduct. Hosted by UC Berkeley’s Investigative Reporting Program, the project is a collaborative database with records shared from reporters at 40 news organizations across the state.
“One of the real successes of this project is we’ve already published more than 100 stories out of these records,” Pickoff-White said. “Ever since we started sending requests on January 1, 2019, people have had access to these records and have been able to report out of them. And that’s really important to me, because these are public records.”
With newsrooms increasingly cash-strapped, the cost and time it takes to make and appeal public records requests can be prohibitive. The reporting project’s database collects records obtained from records requests. It also monitors pending requests. That way, reporters can avoid duplicating efforts and instead rely on materials other requesters obtain to use for their own coverage.
“It’s really time-consuming and hard and can cost a lot to make a record request,” Pickoff-White said. “I really encourage other reporters to come together to collaborate on this, because together, we’re stronger. If you could find a way to work with people to invest in the time up front pays dividends in the end.”
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