Friends of the First Amendment: Amicus briefs filled in anti-bullying, juror transparency, and open Internet cases

In 1967, the Beatles reminded us of a mantra true in both life and law: You get by with a little help from your friends.

In the legal realm, the parties to litigation often lean on allies to craft and file briefs in an effort to convince a court a particular side should prevail. These briefs are called “amicus curiae” briefs or friend-of-the-court briefs. The briefs, submitted by interested organizations, provide supplementary arguments to the court in an attempt to ensure that particular interests are protected. In addition to amicus briefs, amicus letters can be submitted in some states asking a court to review a lower court opinion.

Many organizations, such as the Reporters Committee for Freedom of the Press (my current employer), the American Civil Liberties Union, and the Electronic Frontier Foundation, frequently intervene on behalf of parties to advocate for the First Amendment rights of journalists and the public.

For example, in Elonis v. United States, a First Amendment case before the United States Supreme Court during the 2015 term, a number of amicus briefs were filed, including briefs from the Reporters Committee for Freedom of the Press, Student Press Law Center, Center for Individual Rights, and People for Ethical Treatment of Animals (PETA), among others. Click here to read the Reporters Committee’s amicus brief in Elonis.

Amicus briefs are not only written to the United States Supreme Court (although these garner the most attention). Interested parties can file friend-of-the-court briefs in appellate courts (appeals courts) and district courts (trial courts) at both the state and federal level.

Recently, there have been a number of amicus briefs filed advocating for the First Amendment:

Electronic Frontier Foundation

  • CaseState v. Bishop
  • Court: North Carolina Supreme Court
  • Argument: North Carolina’s anti-bullying statute violates the First Amendment. 1. The law clearly restricts speech, not just conduct. 2. The law is a content-based restriction on speech because it restricts particular kinds of communication.

The Reporters Committee for Freedom of the Press

  • Case: State ex. rel. BuzzFeed v. Cunningham
  • Court: Supreme Court of Missouri
  • Argument: The jury list in the high profile criminal case of Michael L. Johnson, accused of recklessly transmitting the HIV virus, should be unsealed. Jury lists are presumptively open under the First Amendment and their closure can be justified only upon a showing of a compelling governmental interest. The Reporters Committee further argued that providing the press with access to jury lists increases public confidence by ensuring that the judicial process is conducted in the open and by exposing potential corruption.

15 First Amendment and cyberlaw scholars

  • Case: United States Telecom Association v. Federal Communications Commission and United States of America
  • Court: United States Court of Appeals for the District of Columbia Circuit
  • Argument: Defending the FCC’s Open Internet Rules on First Amendment grounds.

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