Fair warning, all ye who interfere with newsgathering: The Reporters Committee for Freedom of the Press is getting ready to sue you.
The organization has hired its first litigation director, Katie Townsend, to bring lawsuits around the country in cases that affect access to information for the press and public.
Although the RCFP has provided legal assistance to journalists for nearly 45 years—developing media law guides, filing amicus briefs, issuing statements, answering questions, making referrals to outside counsel—not since the 1980s has the RCFP itself been active as a litigant. It is re-entering that arena now to help fill a void created as news outlets, strapped for resources, have retreated from some legal battles.
“It’s in our blood,” said Bruce Brown, the group’s executive director. “This type of work is part of our history and mission, and now we’re doing all we can to enhance it—to use our expertise to ensure that journalists can gather and report the news without interference.”
The new position was created by rededicating funds that once supported a freedom of information director, who left the RCFP in 2013. To make the most of its resources, the organization will use several models to manage its litigation: handling cases in-house from start to finish; coordinating cases and dividing the labor with partners, such as law firms, law school clinics, or groups like the ACLU; and referring cases to outside counsel, the group’s favored approach for the past 25 years.
Townsend, the new litigation director, will be the quarterback, identifying potential cases, deciding how to bring them, and seeing them through to resolution. She joins the RCFP from the firm Gibson, Dunn and Crutcher, where she was an associate working on issues ranging from access to records and proceedings to prior restraints, for clients in both traditional and digital media.
“I couldn’t be more excited,” Townsend said. “We’re going to work hard to establish good precedents for journalists and the public at large—being both cautious and ambitious in the cases we bring, to build on the work we did a few decades ago.”
That work includes two cases decided by the US Supreme Court. In a 1989 case, the court held that the FBI had justifiably refused, under a Freedom of Information Act exemption, to disclose arrest-record compilations for a living person. And in a 1980 ruling, the justices found that records from Henry Kissinger’s time as Secretary of State and National Security Advisor were properly withheld under the Freedom of Information Act.
Neither case went the RCFP’s way, obviously, but they were part of an important string of cases in the 1970s and 1980s asserting and testing the rights of journalists and the public to monitor government activities. And going forward, that’s where the RCFP plans to focus its energy and resources: access and freedom of information issues.
As plaintiff, litigating is a luxury
It’s a timely focus. Hard data are tough to come by, but at least three surveys over the last five years have shown a perceived drop in the number of lawsuits initiated by the press to enforce state and federal access laws and freedom of information laws.
In other words, it appears that bringing a case as a plaintiff—as opposed to defending one by necessity as a defendant—is a luxury many news organizations increasingly can’t afford.
“The big idea for all of us at the Reporters Committee is to help the industry by litigating cases that media organizations would bring if they had more resources,” Brown said. “It’s a pragmatic response to what we know is happening in the industry.”
He said the RCFP would do both trial and appellate work, and that Townsend will consult news organizations and media lawyers to identify cases in which there’s something more at stake than the immediate outcome—something presenting, as Brown put it, “potential long-term benefits for journalists.”
Indeed, the RCFP has already initiated litigation in one such case, along with other media and transparency groups. Represented by pro bono counsel, the group last week asked a federal appeals court to unseal documents filed as part of a lawsuit to halt the “John Doe” investigation of alleged misconduct by Wisconsin Gov. Scott Walker’s campaign.
“That case is perfect for us,” Brown said. “At issue is the right to observe the courts, and the significance of that issue plainly goes beyond the direct participants in the case.”
It takes a village…
The RCFP is not alone in its mission to fill holes in the news industry’s ability to litigate. Several other organizations provide legal assistance to journalists and news outlets, and a few have been expanding those efforts. (Disclosure: As a practicing media attorney, I have or have had affiliations with many of these groups.) For example:
- The National Freedom of Information Coalition administers the Knight FOI Fund, created in 2010 to support open government litigation.
- The Society of Professional Journalists administers the Legal Defense Fund, which does the same. In addition, the SPJ board voted Sept. 4 to create a separate Endowed Legal Defense Fund to grow the association’s capabilities to lobby, litigate, and educate on press freedom issues.
- The Student Press Law Center provides free legal advice to student journalists, and it operates a referral network of lawyers willing to represent students for free.
- The National Press Photographers Association occasionally files access lawsuits on behalf of members, and otherwise its general counsel helps to connect members with outside counsel.
- Broad-based civil liberties groups, such as the ACLU and the Electronic Frontier Foundation, lately have dedicated a big chunk of their resources to freedom of information litigation.
That’s just a sample of the organizations working in this space. As Townsend pointed out, many of them already have collaborated on amicus briefs—and the RCFP will continue doing so, she said.
In the past, the organization has drafted its own amicus briefs, it has supported partners drafting them, and it has recruited law firms to do the drafting while the RCFP built a coalition around the brief—varied experience Townsend can draw upon in litigation to help the RCFP use its network and resources.
“We’ve supported the ACLU and EFF in surveillance matters, and journalists are still, perhaps more than ever, getting caught up in the surveillance web,” Townsend said. “We expect more partnership opportunities in general, and in particular we expect more in the surveillance area—to enable the press and public to be informed about those activities.”
She added, “We’ve all relied on the press for decades to protect certain public rights, and it’s incumbent upon us to help the press during its hard times. We hope to build a network of people, organizations, committed to that idea—to work with us and help us identify good cases.”
Which leaves me with just one question, as a media lawyer myself:
Where do I sign up?
Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.