TikTok and the First Amendment

Should the government be able to shut down a social media site because a foreign power can view the usage logs? The Trump administration seems to think so. But the First Amendment Clinic teamed up with the Electronic Frontier Foundation to argue that the First Amendment implications of such a shutdown have to be considered in a suit brought by a TikTok employee over his Fifth Amendment right to equal protection under the law.

An attempt to win a temporary restraining order preventing the shutdown of the site was tabled after prosecutors promised they would not impose the harsh criminal penalties allowed under the order against employees who simply accepted a paycheck from the company. The amicus brief written by the clinic argued that the threat to the First Amendment interests of TikTok users means that there must be a heightened standard of review for the constitutional claims put forth by the employee.

But the suit, which was not the same as the one brought by the company itself over the order, may end up being dismissed entirely as Oracle and Walmart continue efforts to take a majority stake in the company.

Challenging the secrecy in parental rights hearings

There are, of course, good reasons to protect the privacy of children who get swept up in the judicial system. But too much privacy can be a bad thing, particularly when it means that parents who are in court trying to keep custody of their own children are left too frightened by the courts’ admonishments about secrecy to speak out about what they see as unfair and sometimes indefensible practices by other players in the system, including the state agency whose charge is to protect children.

The Clinic is representing a reporter in Cochise County who is challenging the restrictions that keep parents and others from talking to him. David Morgan, a local online reporter who regularly covers courts in the county, has intervened in two cases to contest the broad admonitions that silent participants. AZ Central has picked up the story.

Opening up the Border Patrol

The First Amendment Clinic has been working with The Intercept to obtain documents from the Border Patrol about efforts to target humanitarian aid volunteers.

The following selection of articles illustrates the news media’s continuing efforts to provide the public with information about the federal government’s response to the ongoing crisis at the southern border and its surveillance and prosecution of the volunteers who work to bring down the death toll.

‘Mass disaster’ grows at the U.S.-Mexico border, but Washington doesn’t seem to care, Rob O’Dell, Daniel González and Jill Castellano, azcentral.com/The Desert Sun/USA TODAY NETWORK, Dec. 14, 2017

Journalists, lawyers, and activists working on the border face coordinated harassment from U.S. and Mexican authorities, Ryan Devereaux, The Intercept, Feb. 8, 2019

US Border Patrol uses desert as ‘weapon’ to kill thousands of migrants, report says, Rory Carroll, The Guardian, Dec. 7, 2016

4 No More Deaths volunteers found guilty of entering refuge, abandoning property, Nicole Ludden, Cronkite News/Arizona PBS, Jan. 17, 2019

Federal prosecutors drop charges against 4 No More Deaths volunteers, Paul Ingram, Tucson Sentinel, Feb. 21, 2019

19,444 gallons of water in the desert: how volunteers save lives at the US border, Carrot Quinn, The Guardian, Feb. 9, 2017

Nine humanitarian activists face federal charges after leaving water for migrants in the Arizona desert, Ryan Devereaux, The Intercept, Jan. 23, 2018

They left food and water for migrants in the desert. Now they might go to prison, Kristine Phillips, The Washington Post, Jan. 20, 2019

US-Mexico border migrant deaths rose in 2017 even as crossings fell, UN says, Agence France-Presse, Feb. 6, 2018

Why Do Border Deaths Persist When the Number of Border Crossings Is Falling?, George Joseph, ProPublica, Sep. 21, 2017

Border crossers, and the desert that claims them, Daniel Gonzalez, USA Today, 2018

A recent update from No More Deaths:
Military style raid: border patrol detains 30+ people receiving care at humanitarian aid station

Top image: Water supply in the Sonora desert by mark6mauno, licensed under CC BY 2.0. “Some groups have positioned water supplies in the desert where Mexicans walking into the U.S. can find water. Each supply spot is marked by a yellow & blue flag.”

Annual Report for 2019-2020

Fifteen students from the ASU Sandra Day O’Connor College of Law participated in the clinic in the 2019-2020 academic year. They took on a wide variety of cases aimed at improving public and media access to courts and government information and other First Amendment issues.

Access to courts and sealed documents

The clinic has taken on several cases involving court closures in Cochise County in southern Arizona, just north of the Mexican border. Students argued several motions to unseal documents, including grand jury testimony.

We worked with the Arizona Capitol Times to obtain the search warrant materials in the criminal case against state assessor Paul Petersen, who was charged with running an illegal adoption ring. The search and seizure warrants executed before and after his Arizona arrest were sealed, and the judge failed to make written findings justifying the sealing. Prosecutors agreed to unseal the warrants after discussions with our students after we filed a motion to unseal. The Capitol Times then reported that women were brought to the U.S. from brothels in the Marshall Islands.

Libel suits

We acted as local counsel to a Georgia law firm in a libel suit filed in Arizona against a Georgia newsletter editor. The students filed a motion to dismiss challenging the court’s personal jurisdiction over the defendant.

We were involved in two other libel suits as an amicus. The first involved a store owner who was sued after he spoke out at a City Council meeting about his treatment by his commercial landlord. Our amicus brief, on behalf of the ACLU of Arizona, was filed before the state court of appeals, which upheld the trial court’s dismissal of the case under the Anti-SLAPP law. The Arizona Anti-SLAPP law is very narrow compared to most other state’s laws, but the one situation to which it does apply is speech before a government body.

The other case involved a New York resident who was sued by his New York landlord’s law firm over a negative review of the firm on a website based in Scottsdale, Ariz. We prepared an amicus brief in support of his motion to dismiss for lack of personal jurisdiction.

In addition, we are conducting the official pre-publication legal review of a book about The Maricopa County Sheriff’s Office and the long-running civil rights suit over, among other things, the controversial practices involving unwarranted stops by deputies of drivers who look Hispanic so that they could perform immigration checks.

Students are also engaged in pre-publication review of the journalism projects produced by the Howard Center at the Cronkite School of Communications here, which have been published in print and online by the Arizona Republic, Arizona PBS, and the Associated Press. The biggest project involved an investigation into practices of agents from Homeland Security Investigations, a division of Immigration and Customs Enforcement, who were involved in several shootings around the country that received little attention.

Reporter subpoenas

We represented a reporter who was subpoenaed to testify in a murder trial. Students drafted a letter to the prosecutor advising her of the reporter’s rights under state law, and the subpoena was withdrawn. The murder trial has been delayed several times, and the journalist may be called again.

Prior restraints and interference with speech

A reporter covering a divorce proceeding involving two attorneys, one of whom was a candidate for a county judge position, was told that if he remained in the courtroom he could not report on a case. The judge then issued an order barring all reporting on the case and contact with the parties. Our students filed a motion objecting to the order and restrictions, and were allowed to argue it before the judge, who agreed with us and rescinded the order as an unconstitutional restraint on the reporter’s speech.

A reporter who received grand jury transcripts in a murder case and posted them to his web site as part of a report regarding alleged corruption of the grand jury process in the county was sued by the county prosecutors to take them down. We filed an amicus brief on behalf of the ACLU of Arizona arguing that any such take-down order would be unconstitutional. The appellate court upheld the lower court’s denial of the request.

Public records

The clinic has also taken on several state public records and federal FOIA matters, when we feel the issue involved is of significant public interest. Projects include:

  • Helping the Howard Center for Investigative Journalism at the Cronkite School investigate shootings by federal agents with Homeland Security Investigations, a division of Immigration and Customs Enforcement, both through ICE records and the reports of the local police departments who have investigated the shootings.
  • Seeking records on the long-running civil rights suit against former Sheriff Joe Arpaio. While the lawsuit and its subsequent judicially ordered investigations have gone on for more than 16 years and cost the County more than $150 million, few meaningful records of the investigations had been released. We represent two local reporters demanding release of the records, and have obtained more than 80 gigabytes of data so far.
  • Obtaining a 600-page consultant’s report on a power company’s controversial rate hike for a local reporter with the NBC station. His initial request for the report resulted in 600 blacked-out pages. Our students wrote a demand letter arguing the case for release for the complete document, and the state Corporation Commission finally released the unredacted report. The NBC report acknowledged the clinic’s help.
  • Working with Perilous Chronicle, a news site that reports on prison riots around the country. We have so far worked with the editor on about a dozen records requests around the country.
  • Representing an author in her effort to obtain historic police records from the City of Phoenix. After a great deal of negotiations with the city by the students, we were able to obtain images of all the log book pages.
  • Working with two nonprofit journalists seeking to gain access to records about abuses in assisted-living facilities. The state law should allow access to de-identified records for purposes of evaluating the regulator system, but state agencies have been broadly denying access to the records.
  • Writing an amicus brief in a case before the Ninth Circuit regarding the “consultant corollary,” which would allow federal agencies to apply the intra-agency work product exemption to any information created by outside contractors, which would help the agencies avoid scrutiny of their decisions.