S.D. newspaper seeks transparency in federal food subsidies through SCOTUS-bound FOIA suit

Amicus brief in FMI v. Argus Leader

On April 22, the U.S. Supreme Court will hear oral argument in a Freedom Of Information Act (FOIA), 5 U.S.C. § 552 (LII), case concerning the federal open records law exemption for sensitive competitive information.  Textually, the American access-to-information (ATI) statute, para. (b)(4) ("exemption 4"), exempts from disclosure "trade secrets and commercial or financial information obtained from a person [or legal personality] and privileged or confidential."  State ATI laws have comparable provisions, and interpretation of the federal law is sometimes influential on state courts interpreting similar language. 

Plaintiff below, Respondent Argus Leader Media publishes the Argus Leader, the largest-circulation newspaper in South Dakota, based in Sioux Falls, and a member of the USA Today newspaper network.  In investigation of federal food subsidies, the Leader invoked the FOIA to find out how much taxpayer money is paid by the U.S. Department of Agriculture (USDA) to individual food retailers.  The USDA refused on a number of grounds, including exemption 4.  Joining the USDA in resisting disclosure is a trade association of food retailers, Petitioner Food Marketing Institute (FMI).

The Eighth Circuit, per U.S. Circuit Judge Jane L. Kelly, upheld the trial court's ruling in favor of the newspaper.  Argus Leader Media v. USDA, 889 F.3d 914 (8th Cir. 2018).  The court wrote: 

Applying the law to the facts, we find no basis for reversal. The trial evidence showed that the grocery industry is highly competitive, but is already rich with publically-available data that market participants (and prospective market entrants) use to model their competitors' sales. The evidence shows that releasing the contested data is likely to make these statistical models marginally more accurate. But the evidence does not support a finding that this marginal improvement in accuracy is likely to cause substantial competitive harm. The USDA's evidence showed only that more accurate information would allow grocery retailers to make better business decisions.

On appeal (No. 18-481: SCOTUSblog, Oyez), the parties dispute how to interpret exemption 4.  The Eighth Circuit followed the lead of the U.S. Supreme Court to define "confidential" as risking "substantial competitive harm."  Even within that test, lower courts have divided over the requisite degree of certainty to bring the exemption into play, from the reasonable possibility of advantage to a competitor to a near certainty that economic loss will result. FMI would instead prefer that the Court embrace a much broader exemption: what FMI calls the "ordinary meaning" of the word "confidential," that is, simply, exempting from disclosure information that a company has not disclosed.

I signed on in support of Argus Leader Media to an Amicus Brief of FOIA and First Amendment Scholars, organized by the First Amendment Clinic at Cornell Law School, by students under the leadership of faculty including Assistant Director Cortelyou C. Kenney, and for my part via FOIA expert Professor Margaret Kwoka at the University of Denver Sturm College of Law.  The brief asserts:

Petitioner [FMI] argues for sweeping changes to FOIA’s test for disclosure of confidential commercial information under Exemption 4 used by all Courts of Appeals for the past forty-four years, beginning with National Parks in 1974. Acknowledging that FOIA does not define the term “confidential,” the National Parks court held that the statute requires disclosure— notwithstanding a claim that the withheld records are confidential commercial information—absent a showing of either (1) impairment of the government’s ability to obtain necessary information in the future; or, as relevant here, (2) infliction of substantial competitive harm to the information submitter. 498 F.2d 765, 770 (D.C. Cir. 1974). That test has withstood the test of time. Any change should come from Congress, rather than this Court, because of the unusual context of FOIA, and the unusual context of this case.

Saliently, to my mind, the brief demonstrates congressional approval of the "substantial harm" test, and the FOIA ought not be reinterpreted contrary to its laudable aim of transparency.

As I have written recently in another context, the greatest threat around the world today to transparency and accountability might come from the private sector as surely as from the public sector.  There should be no question as to the need to maximize transparency where the two meet.  While FMI lobbies Congress and works through a Food PAC and "political education fund," certainly taxpayers are entitled to know what public subsidies are being delivered to FMI constituents.

Other signatories on the brief are: Ashutosh A. Bhagwat, Martin Luther King, Jr. Professor of Law, University of California, Davis School of Law; Michael C. Dorf, Robert S. Stevens Professor of Law,
Cornell Law School; Heidi Kitrosser, Professor of Law, University of Minnesota Law School; Seth F. Kreimer, Kenneth W. Gemmill Professor, University of Pennsylvania School of Law; Margaret B. Kwoka, Associate Professor with Tenure, University of Denver Sturm College of Law; James O’Reilly, Retired Professor, University of Cincinnati College of Law; and Nelson Tebbe, Professor of Law, Cornell Law School.

UMass Law Review hosts vibrant media law symposium

Today, as advertised, the UMass Law Review hosted a symposium on media law. The program videos are all on Facebook Live.  Check my Twitter feed for hot links to speakers' handles.  Three panels were organized by media "platform," from politics to digital to entertainment, raising issues from the investigative journalism to data breach law to streaming music copyright.  The program concluded with a keynote address by Richard P. Flaggert, a DLA Piper media attorney.  Here are some highlights:

After a thoughtful welcome by UMass Law Dean Eric Mitnick, UMass Law Professor Jeremiah Ho started the program with a discussion of why media matter.  The problem of law and policy, he said, is the gulf between "what matters" and "what excites us," with the media business model tending to cater to the latter.  Professor Ho is a co-adviser of the UMass Law Review.

  

Kicking off the first panel of the day, Rep. Christopher Markey, New Bedford, Mass., attorney, Commonwealth legislator, and UMass Law alumnus, gave the political perspective.  Money has distorted news from being an educational tool to being entertainment, he explained.  People must be media literate to elicit truth from what they see, hear, and read.  Recalling his years as a district attorney, Markey said that attorneys and judges were "better" when a beat reporter was sitting in the courtroom, that journalism "makes government better."  But those beat reporters are no longer there.

Jillian Fennimore provided her perspective from inside the busy office of Massachusetts Attorney General Maura Healey.  A journalism graduate of the University of New Hampshire with many years experience in media, Fennimore explained the challenge of making the work of the state's law office intelligible and meaningful to citizens, whether the subject matter is investigation of the opioid crisis, antitrust enforcement, or protection of a consumer whose vacuum cleaner broke.  AG Healey cares about all of these things because she understands that these are things people care about, Fennimore said.  My Torts II class has been looking at the impact of the Healey opioid investigation on the crisis and litigation nationwide.

Peter Ubertaccio, a dean and political scientist at Stonehill College, gave an academic perspective on news and media law.  Those of us of a certain age remember the local TV news anchors of our youth, he observed.  That is not true for our children.  Journalism today is "atomized," lacking the "rhythm" of television before the information age, even if the internet is "democratiz[ing]."  There is more content available through more conduits than ever before, Ubertaccio explained, yet there is less availability of accurate information.  We are entering a golden age of television entertainment while at the same time entering a dark age of information, he said.  Incidentally, yes, I remember my anchors.  And I was privileged to have worked with Baltimore's great Al Sanders for a short time before he passed away.

A star of the first panel was Dee DeQuattro, UMass Law alumna, staff attorney for Operation Stand Down Rhode Island, and creator of the Boots on the Ground Heroes Memorial.  DeQuattro talked about her experiences in radio and television, most recently as an assignment manager for ABC6 News in Providence, Rhode Island, then her transition to a public relations and later legal capacity for the veterans organization, Operation Stand Down.  DeQuattro went to journalism school to hold power accountable in the tradition of Woodward and Bernstein, she said.  But "news doesn't work that way anymore," as bottom-line focused detracted from serious political reporting.  After covering the Boston Marathon bombing, she went to law school.  She still uses her familiarity with news media, driven by money savings and visual imagery, to manage public affairs in her nonprofit work.

Law Review co-adviser Professor Dwight Duncan moderated the second panel, on digital media.  Professor Andrew Beckerman-Rodau of Suffolk Law School and the Intellectual Property Center opened with a comprehensive overview of data protection, including data breach and Big Data analytics, in American law today.

Attorney Hollie Lussier of Bristol County Savings Bank told the audience about the large role data protection and privacy play in legal practice today, especially in the financial sector.  She warned attorneys to consider insurance liability limits, as $100,000, she said, won't cut it.  She cited a recent case of a "small" data breach that nevertheless generated a $140 million loss.  The breach could have been prevented, she said, with a $10,000 "penetration test."  Making matters more hazardous, she explained, many insurance policies will not cover consequential damages, which make up most of that mega-million loss.

Rhode Island attorney and legislator Stephen Ucci concurred on the importance of data protection to contemporary practice.  He referenced a recent in case in which only 300 records were exposed.  Despite seemingly straightforward facts, the exposure of data has different implications for each data subject, he explained; moreover, breach across state borders implicates the laws of 50 states as well as federal laws, such as the Gramm–Leach–Bliley Act.  The complexity of even a small case is thus multiplied.  Ucci discussed the data breach legislation adopted by Rhode Island in 2015 and plans to beef up education and implementation in the near future.

UMass Law Professor Dustin Marlan moderated the third panel, on the subject of entertainment law.  Attorney and educator Richard Kent Berger started off the afternoon program talking about music copyright.  He explained the significance of the Music Modernization Act of 2018 and related legislation and pending proposals.  Royalties are now owed for digital streaming, and some pre-1972 musical works that had lost copyright protection have had their authors' royalty rights restored.  The law also revamped the approach to orphan works and afford them greater protection against loss of copyright.  Previously large content providers such as Google's YouTube were able to use a notice process on a massive scale to shake potentially orphaned works free of their copyright protection.

Seattle University Law Professor Bryan Adamson, a mass media scholar, talked about the importance of framing in media, especially in news reporting, and especially in coverage of protest movements. Media frames tend to perpetuate social stability, he explained, and as a result, tend to perpetuate racial hegemony.  The portrayals viewers see might not fairly represent the facts, and, as a result, he said, rather than contributing to the public dialog, media narratives might "derail" meaningful discussion of sensitive topics such as race and social and economic equality.

Rhode Island attorney Richard E. Kühn talked about the importance of social media to attorneys.  Social media are part of contemporary legal practice across the board, he explained, touching on areas including lawyer advertising, client counseling, evidentiary investigation and spoliation, and trial practice and voir dire.  He recited recent case rulings demonstrating that failure to take social media into account, for example in evidentiary investigation, may result in a finding of legal malpractice.

DLA Piper attorney Richard P. Flaggert (not speaking on behalf of clients or the firm) gave the keynote address of the symposium, discussing contemporary media law practice.  Flaggert, who is licensed in California, Massachusetts, and England and Wales, started off by reminding that Shakespeare's "kill all the lawyers" lines was an admonition against unethical or incompetent practice, not actually an indictment of the professional.

He then spoke about two key doctrinal developments in media law practice.  First, he discussed the potential impact on free speech and commerce of the newly adopted EU Copyright Directive, in particular the article 11 "link tax" and the article 13 "upload filter measure."  Both threaten a chilling effect, he explained.  The former purports to give copyright protection to even a "snippet"—the actual word, undefined in the law—of content, putting at risk a range of content from Google news aggregation to "your blog."  Meanwhile article 13 imposes the burden of protecting against copyright infringement on ISPs, abandoning reliance on the notice-and-takedown approach of the U.S. Digital Millennium Copyright Act.  As a result, even "your blog" content might be tied up for weeks or longer as ISPs mull over whether you have violated copyright, likely prompting prophylactic censorship.  I note: not unlike Europe's approach to the right to be forgotten, now miring Google in a new administrative bureaucracy, not to mention the risk of Goliath gate-keeping under non-transparent private-sector control.  

Second, Flaggert talked about the problem of copyright and live fan captures of sporting events and the like.  As technology improves and recording devices become harder to detect and control, event providers such as sporting authorities will have a more difficult time policing the difference between the odd fan photo and the HD-streaming pirate.  The French solution has been to regulate, Flaggert explained, giving near absolute control to providers, a strategy of obviously problematic dimension.  Meanwhile in the United States, no body of intellectual property law, such as federal copyright or state common law, seems up to addressing the problem.  Event providers are confounded at the choice between loss of control of their intellectual property and alienation of their fan base with its abiding affection for social media.  Meanwhile the problem poses a threat to our fine-line precedents and the delicate balance between INS v. AP IP rights and the "hot news" doctrine, which has kept the peace for decades.

The village idiot moderated the first panel. Here
he is about to laugh at one of his own bad jokes.

Once a lawyer who represented ESPN before it ceded its design to bring Premier League coverage to America, I asked Flaggert 1:1 whether NBC, with its unsatisfying and impossibly expensive array of cannibalized Premiere League coverage for U.S. viewers, intends to be destroying soccer in America, or is just doing so indifferently.  He shared his frustration with access to Liverpool matches.  I'm not sure why one would necessarily want to see Liverpool, unless they were playing directly against ManC.  But I appreciate his empathy.

A big congratulations to the UMass Law Review, especially editor Casey Shannon, for executing a superb symposium, with my sincere thanks for bringing these talents to our campus.

Terra Nullius: Named for legal doctrine, novel dives deeply into human identity

I'm not easily moved by fiction, so I don't make recommendations lightly.  And you need to read this book.

Terra Nullius by Claire G. Coleman (Amazon) has been a hit in Australia and thankfully was picked up for U.S. circulation by a small, Massachusetts-based publishing house, Small Beer Press.  The book has been shortlisted or nominated for a bunch of prestigious awards and won the Norma K. Hemming for exploration of themes of race in speculative fiction.  The book is a product of the Queensland "black&write!" indigenous writing fellowship.  Coleman identifies with the Noongar people of the southwestern coastal region of Australia.  A poet and writer, this is her debut novel, and she wrote it while exploring indigenous lands in a caravan.

The "speculative fiction" element of Terra Nullius is not immediately obvious in the telling of the story.  I won't spoil it here, and I urge you to avoid spoilers so that you can experience it yourself.  Even so, being married to a librarian, who recommended this book to me, I knew something of the novel's secret.  I was gripped early nonetheless, and the reveal was still richly enchanting.  For a while I had to ponder, why did Coleman tell the story this way?  But I got it, and the author interview in my Small Beer Press edition confirmed: Coleman's narrative delivers empathy for the indigenous experience in a way that I have never before witnessed.

There are countless parallels between Coleman's take on indigenous life and British colonization and the experiences of other marginalized groups, including Africans amid European colonization and First Nations in the United States.  The title, "terra nullius," refers to the Latin term and legal doctrine meaning "nobody's land."  Specifically the term was employed by the British to legally rationalize claim to Australia, as if the continent had been uninhabited.  The term turns up in American law, too, to justify claims to this continent and the displacement of native peoples.  Coleman states that she has not yet been to the United States, but would welcome the chance to compare notes on our reservations.  I would love to witness that conversation.  In ironic coincidence, I read Terra Nullius while exploring the reputed landing sites of Christopher Columbus on the Samaná Peninsula of la República Dominicana.  There are scarcely few more apt places on earth to consume this book.

While the focus might be on the indigenous perspective, this novel, in its sum, speaks even more ambitiously to the whole of our human experience.  It demands that we interrogate who we are as a species; that we ask whether confrontation and violence—might makes right—are intrinsic to our human identity, or a choice that we make, something we can change.  It comes clear that our survival may well depend on the answer.

Dirty talk at SUNY Oswego

I had a profound privilege the week before last to visit and speak at SUNY Oswego.  I am indebted to the Political Science Department and the Pi Sigma Alpha (PSA) chapter there, especially Dr. Helen Knowles and PSA chapter officers Nicholas Stubba and Kristen Igo.  Oswego is a charming town, and the warmth of the people at SUNY more than made up for the lake effect snow.

Pi Sigma Alpha, the political science honor society, inducted a new class of members from among juniors and seniors, based on their coursework and academic achievement.  The students' faculty in the Political Science Department and friends and family joined the ceremony.  I made remarks on the subject of PSA's 1920 founding and similarities and differences in our contemporary political landscape as we approach the organization's 100th anniversary.

The evening after the induction, SUNY Oswego kindly hosted me to present my research on "dirty language" and censorship.  In the talk, titled "WTF? Proliferating Profanity Under a Conservative FCC," I examined indecency doctrine in FCC television and radio regulation, especially in the three most recent presidential administrations.  The talk was held in a beautiful conference room of the Marano Campus Center, with windows overlooking the campus ice hockey rink (above).  Faculty and students from various departments attended, including a journalism student reporter for the campus newspaper, The Oswegonian.

In the course of the visit, I had ample time to meet, and be impressed by, dedicated SUNY Oswego students, who don't let a little lake-effect snow keep them from class.  Here I am with Dr. Knowles and her civil liberties class.  They are lucky to have a seminar led by Dr. Knowles, an expert on various topics in civil rights, especially the jurisprudence of Justice Kennedy and the Lochner-era history of economic due process. She is the author of The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty (2009, updated 2018) and co-editor (with Steven B. Lichtman) of Judging Free Speech: First Amendment Jurisprudence of Supreme Court Justices. She is at work currently on four more books, all under contract: Making Minimum Wage: Elsie Parrish v. The West Coast Hotel Company (U. Okla. Press), Lights, Camera, Execution! Cinematic Portrayals of Capital Punishment (co-authored with Bruce E. Altschuler and Jaclyn Schildkraut, Lexington Books), Free Speech Theory: Understanding the Controversies (co-edited with Brandon T. Metroka, Peter Lang), and The Cascadian Hotel (co-authored with Darlene L. Spargo, Arcadia Publishing).

Particular thanks to Mr. Stubba, who indulged my desire to brave the bitter wind and see Lake Ontario from the shoreline.  Watch how the ice undulates on the waves!

Duncan proposes unanimity requirement for U.S. Supreme Court to override Congress

UMass Law Professor Dwight Duncan

My colleague Professor Dwight Duncan has published an article in constitutional law,  A Modest Proposal on Supreme Court Unanimity to Constitutionally Invalidate Laws, 33:1 BYU J. Pub. L. 1.  Here is the introduction, footnotes omitted:

There is a problem in our constitutional history: the problem of split Supreme Court decisions invalidating democratically enacted laws. From Dred Scott to Lochner to Roe v. Wade to Citizens United, and even the recent Second Amendment decisions of Heller and McDonald, these patently fallible decisions on controversial political and social issues have divided the nation, politicized the Court, poisoned the Supreme Court nomination process and thwarted the political branches and democratic governance. Requiring Supreme Court unanimity to overturn legislation on constitutional grounds would therefore be morally and politically desirable. Why that is so is the subject of this article. I leave for another occasion the legal and practical questions of how to implement such a unanimity requirement.

While the audacity of this idea is perhaps remarkable, flying as it does in the face of our
unbroken history of Supreme Court cases decided by majority vote of the Justices, I would ask the readers’ indulgence or suspension of disbelief for long enough to at least consider my argument. Since I have no power to implement this idea, which depends solely on the cogency of the reasons which support it – and I invite discussion and contestation of the idea – the proposal can truly, if somewhat ironically, be called "modest."

Here in its final form, this article hit my desk just as Democratic presidential candidate Beto O'Rourke appears on the news evincing receptivity to some form of Supreme Court packing, and in a season just after the dramatic unfolding of the Kavanaugh hearings.  Duncan has been working on his modest proposal for a while longer than these events have been on TV, and his modest proposal has stood the test of peer reviews by many (me included).  I have been privileged to hear Professor Duncan speak on this subject more than once, and I have learned something new every time.  This article marks a worthwhile addition to the discussion of our Court, and the recollection that neither its composition nor its procedural customs are fixed in constitutional stone.

Upcoming at UMass Dartmouth/Law: 1L talks public radio and Hurricane Maria; UMass Law Review hosts media law symposium

Two events coming up at UMass Dartmouth and UMass Law!

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First on Tuesday, March 26, at 4 p.m. in the Grand Reading Room of the Carney Library at UMass Dartmouth, Ricardo Serrano, a first-year UMass Law student from Puerto Rico, will participate in a program of the UMass Dartmouth English Department on the critical role of public radio amid natural disaster and in times of human need—specifically the role of the University of Puerto Rico-Mayagüez student-run radio station during Hurricane Maria.  Serrano was president of the radio station at the time of the hurricane and creator of the Radio Colegial podcast Fatiga Mental.  No advance registration is required.  From UMass Dartmouth Public Affairs:

The power of non-profit radio to sustain a community will be discussed by a panel hosted by the English Department and The Public’s Radio on Tuesday, March 26, at 4 p.m. in the Grand Reading Room. Panelists include Ricardo Serrano, a UMass Law student who ran the University of Puerto Rico radio station during Hurricane Maria in 2017; Professor Lisa Maya Knauer (Sociology/Anthropology), who studies the impact of community radio in Guatemala; Professor Richard Peltz-Steele (Law); and Sally Eisele, News Editor at The Public's Radio. Full-time Lecturer Caitlin Amaral (English), a former award-winning writer and producer for WGBH Interactive in Boston, will moderate the conversation.

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Next, from 9 a.m. on Thursday, March 28, in the Moot Court Room of the UMass Law School, the UMass Law hosts the symposium, Navigating a New Reality: A Multi-Platform Look at Media and the Law.  With compelling speakers from legal education and law practice all day long, the program will conclude in the afternoon with a keynote address from media attorney Richard P. Flaggert, a partner at DLA Piper.  From DLA Piper:

A dual-qualified (US/UK) attorney and solicitor, Richard Flaggert focuses his global practice on entertainment, media, and communications matters, as well as counselling clients in intellectual property transactional matters, brand strategy and integrity, enforcement of trademark and copyright assets worldwide, prosecution and risk analysis, licensing, false advertising and new media matters.

Ric regularly negotiates and provides advice relating to talent, sponsorship, advertising, entertainment, publishing and other media issues for professional sports and sports/esports franchise and facility owners, sports media, consumer products, and technology clients. He also counsels clients with respect to licensing, and rights acquisition.

Ric regularly provides counsel to programming networks and other rights holders across a full spectrum of legal and strategic business matters, including domestic and international affiliate distribution agreements, licensing, digital, multiplatform and satellite distribution, new media, Internet, and emerging technologies, as well as FCC and other regulatory matters.

Richard is a member of various outside counsel teams, providing day-to-day oversight of branding, media, broadcasting and entertainment matters, and directs strategy for several global franchises, including at ESPN. 

Advance registration free, but requested, at umasslawreview.org.

RI SPCA officer speaks at UMass Law

Warzycha on RISPCA website

Joe Warzycha, humane law enforcement officer with the Rhode Island Society for the Prevention of Cruelty to Animals (RISPCA), talked to students at UMass Law on Thursday, March 21, about the legal framework underlying animal protection.  In 2018, Rhode Island (my home state) substantially beefed up its animal protection law (see changes summarized at Potter League for Animals), putting Little Rhodey in the "top tier" of Animal Legal Defense Fund ratings by state. Warzycha will soon be taking over leadership of the RISPCA, which is a private, nonprofit entity imbued with the legal authority to investigate and prosecute animal cruelty cases.  Warzycha is a U.S. Marine veteran and former police officer in East Providence, R.I.  He was invited to UMass Law by the Student Animal Legal Defense Fund, a member organization of the Animal Legal Defense Fund, and SALDF officers Kayla Venckauskas, '19, and Barnaby McLaughlin, '19.  The RISPCA is financially self sustaining and depends on tax-deductible charitable donations.

SALDF at UMass Law