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December 2021

MediaLawLetter November-December 2021

Losing ground on access to juror information ... and what we can do about it; Court enjoins Texas social media “censorship” law; SCT asked to review prepub rules for govt. memoirs; ProPublica gets billionaire’s search warrant materials; Privacy and the criminal process in England; Holiday greetings from MLRC and more.
in this issue

From the Executive Director’s Desk: Santa’s Gift List for Media Players Naughty and Nice

George Freeman

MLRC executive director dons his santa cap and gives newsmakers what they're owed.


Public’s Right of Access to Juror Information Loses More Ground … and What We Can Do About It

Steve Zansberg

A recent spate of high-profile cases, across the country, demonstrate that many judges, in both state and federal courts, are of the view that there is no presumption of public access to the names of seated jurors, not only at the outset of a trial, but even post-verdict.

D.C. Circuit Orders Release of Additional Mueller Report Information

Matt Topic

At issue in the appeal were the names, investigated facts, and explanation of Mueller’s declination decisions for two groups of people: those investigated for campaign finance and computer intrusion offenses, and those investigated for making false statements to the government in the course of the investigation.

National Nonprofit’s Emails Filed Under Seal Are ‘Plainly Judicial Records’ and Must Be Unsealed

Shannon Jankowski

Affirming its well-established precedent on access to judicial records, the Eleventh Circuit recently upheld a district court’s order unsealing internal communications obtained during discovery and filed in connection with a motion for a preliminary injunction.

Ninth Circuit: Searching a Database Is Not Creation of New Record

Shawn Musgrave

Reveal from The Center for Investigative Reporting (“CIR”) succeeded once again in challenging the government’s withholding of firearms data. But in its amended opinion, the Ninth Circuit cabined its prior holdings somewhat, including as to how to apply the OPEN FOIA Act.


Court Enjoins Texas Social Media “Censorship” Law

Avery Westerlund

Judge Pitman granted a preliminary injunction to prevent the Texas Attorney General from enforcing HB 20, which prohibits large social media platforms from “censoring” content based on “viewpoint.”


Former Lawyer Gets “SLAPPED” for Frivolous Suit Over Updated Article

Giselle M. Girones

A Florida judge has ruled in favor of Frontier Media Group, awarding attorneys’ fees under Florida’s anti-SLAPP law in a defamation claim that arose out of an updated version of a 2017 article the Plaintiff had previously sued about and lost.

West Virginia Court Applies Bartnicki and Affirms Dismissal of Wiretap Claims Against Fourteen Media Companies

Chad R. Bowman and Kaitlin M. Gurney

On appeal, plaintiffs offered a novel – if not bizarre – theory that their classroom conduct was only a matter of public concern within the state of West Virginia and thus Bartnicki did not protect the national media defendants.

Knight Institute and ACLU Ask Supreme Court to Revise Intelligence Agencies’ Systems of Prepublication Review

William Hughes

In their present form, agency prepublication review regimes are sprawling and vague, and they lack the substantive and procedural safeguards the Supreme Court has ordinarily required of licensing schemes.


Year of Secret Litigation Ends with Complete Media Victory in South Dakota

Jeremy Kutner

The high court held that a state statute prohibiting the sealing of certain warrant information meant what it said, finding that the question “is not a close one.” But the path to the ruling was far from typical.

D.C. Federal Court Vindicates Key Arguments for Quashing Subpoenas to the Media in Associated Press Case

Matthew E. Kelley and Leslie Minora

A federal judge has granted a motion to quash by an Associated Press reporter on the basis of reporters’ privilege, rejecting several often-heard arguments from the proponent of the subpoena.

Federal Court Rejects City of Phoenix’s Subpoena of Video from Television Reporter Who Exposed Police Misconduct

Kennison Lay

The judge concluded the city had not satisfied its burden to overcome the station’s qualified First Amendment journalist’s privilege.

ZXC v. Bloomberg – Privacy and the Criminal Process in England

David Barker, Caroline Henzell and Lottie Peach

The case will decide the issue of whether, and to what extent, a person who has not been charged with an offence can have a reasonable expectation of privacy in relation to information that relates to a criminal investigation into their activities.


MLRC Annual Meeting 2021

News from MLRC’s annual open board meeting, held November 10, 2021 at Gotham Hall in New York City.


Defense Counsel Section Annual Meeting 2021

MLRC’s Committee Chairs and representatives then presented their accomplishments in 2020 and plans for 2021.