Government’s interjection into the ongoing debate about what constitutes “real” media took another turn this week, when advocates for a nonprofit seeking to assert its 1st Amendment protections appealed to the District of Columbia Circuit Court of Appeals to overturn a lower court’s narrow interpretation of what constitutes journalism.
The case stems from the Federal Trade Commission’s (FTC) denial of a request from Cause of Action, a nonprofit government watchdog, to waive fees on Freedom of Information Act (FOIA) requests it had filed in 2012. The FTC ruled Cause of Action is not a traditional media outlet and, therefore, must pay FOIA fees for the honor of being treated like one.
Cause of Action appealed the decision in U.S. District Court in Washington, D.C., but the court denied the group’s appeal last year. Now the group has taken its case to the appeals court, where a group of news organizations and civil liberties organizations filed an amicus brief siding with Cause of Action on Tuesday.
“Despite the best efforts of Congress to emphasize how important it is to broadly define ‘representative of the news media’ for the purposes of a FOIA fee waiver, courts and government agencies have continued to apply inappropriately narrow definitions,” the brief asserts. “This court should ensure that the standard applied aligns with what Congress intended and what best serves FOIA’s goals of government transparency and accountability.”
Among those siding with Cause of Action are several traditional news organizations — including The Washington Post and, remarkably, National Public Radio, Inc. In filing the brief, those entities defended the open-ended intent of the 1st Amendment to preserve freedom of speech for all, as well as for the Amendment’s implicit limitations on government abrogating that freedom:
This case centers on a question that strikes at one of the central accountability principles of democratic government: how far government agencies and the courts can go in defining what is “news” and of “public interest,” and thus merits disclosure without hefty fees to the requester. As advocates for the media and the media’s ability to gather information from the government and disseminate information to the public, amici [“friends” of the plaintiff] have a strong interest in ensuring that both established and new media outlets can obtain fee waivers for public records. Amici also have a strong interest in ensuring that the needs of the public, and not the interests of the government, determine what is “in the public interest,” and that even yet-unpublicized issues can be brought to light in service of that interest.
If the District Court’s denial of Cause of Action’s fee waiver requests is allowed to stand, it could make it much more difficult for new media to obtain public records without being forced to pay prohibitively high fees. This case thus has implications beyond the outcome for the parties directly involved, and could make it difficult for the news media to fully report on the workings of government for the benefit of the public.
In addition to the potential threat to organized media operating within or near the periphery of mainstream journalism, the case has even more profound implications for newsgathering blogs and citizen reporters whose recognition inherently falls far beneath the government’s radar.
If the FTC’s decision is allowed to stand, it will represent a major victory in the state’s ongoing effort to squelch the voices of independent journalists, by pricing public information — information that’s supposed to be free to all — out of the reach of all but the most affluent newsgatherers.