UCI IP, Arts & Tech Clinic

Intellectual Property, Arts, & Technology Clinic

Fighting for journalists … and the public

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By Nick Schou, UCI

UCI Law’s Press Freedom Project plays a critical role in keeping independent investigative reporting alive

Fighting for journalists … and the public

Susan Seager founded the Press Freedom Project with fellow UCI law professor Jack Lerner in 2018. Steve Zylius / UCI

There’s no disguising the fact that print journalism in America is experiencing a major crisis. Since 2006, newspaper employment has fallen by around 70 percent, and the total number of editorial staffers in local newsrooms across the U.S. has dropped by 58 percent to just 31,000. The biggest victim of this precipitous decline? Investigative reporting, which requires greater financial resources and institutional support than any other form of journalism.

In Southern California, although the Los Angeles Times and Orange County Register continue to publish impactful investigative projects, the disappearance of alternative weekly papers such as OC Weekly and LA Weekly (the latter of which still exists but produces only cultural coverage) has left a major gap in the kind of hard-hitting investigative work that previously held our public institutions accountable.

All of which explains why, in today’s volatile media climate, UCI’s Press Freedom Project is playing a critical role in keeping independent investigative reporting alive in California. The project began as a collaboration between Jack Lerner, a UCI clinical professor of law who specializes in intellectual property and copyright law, and Susan Seager, a UCI adjunct professor of law with a long background as a media defense lawyer and First Amendment advocate with powerhouse national law firm Davis Wright Tremaine.

In 2018, the Press Freedom Project won a $225,000 startup grant from the Legal Clinic Fund for Local News, which is housed at The Miami Foundation to support law school clinics across the country that provide free legal services to independent and local journalists. This September, thanks to its string of legal victories, the UCI project was awarded another similarly sized grant from the fund that will allow it to continue its work.

The Press Freedom Project took shape when Lerner met Seager at a legal conference in 2016, and they discussed the concept of working together to advance investigative reporting. Lerner lobbied Seager to consider taking a major pay cut by leaving private practice and joining UCI as a lecturer to help teach future media lawyers. In 2018, she took the job. Says Lerner, “We immediately began taking on cases where journalists were being threatened with lawsuits or otherwise stymied by the public agencies they were investigating.”

The first Press Freedom Project court case, he recalls, involved T.J. Esposito, a Latino independent journalist in Bakersfield who had uncovered corruption there and had been subjected to a draconian gag order issued against him by the Kern County District Attorney’s Office. “We went to Bakersfield to get his gag order lifted,” Lerner says. “We were successful and began to take on other interesting projects, and in 2019 we were able to obtain funding for Susan to join the clinic full time.”

Since then, Seager has been supervising students and expanding the project to include a broader variety of cases, particularly those pitting journalists against law enforcement agencies. One major victory involved the filing of several motions to unseal hundreds of pages of juvenile court records on behalf of independent journalist Garrett Therolf at the UC Berkeley Graduate School of Journalism’s Investigative Reporting Program, who used the materials for his co-produced 2020 Netflix TV documentary series, “The Trials of Gabriel Fernandez,” exposing the failure of the Los Angeles County child welfare system to protect children from fatal abuse.

In 2021, a group of UCI law students led by Seager accepted a case on behalf of the nonprofit Human Rights Defense Center, publisher of Prison Legal News, which had filed a Freedom of Information Act request that was being routinely denied. The Press Freedom Project sued Los Angeles County, forcing it to hand over a decade’s worth of records summarizing payments to victims of police brutality by the L.A. County Sheriff’s Department and misconduct by the District Attorney’s Office.

This September, the Press Freedom Project won a $90,000 settlement on behalf of Long Beach-based independent photojournalist Pablo Unzueta, who had been arrested by L.A. County Sheriff’s Department deputies six blocks away from a Sept. 8, 2020, protest against brutality by the department. “The deputies falsely arrested him for supposedly failing to disperse even though he was nowhere near where the order was given,” Seager says. “They took his camera and cellphone, searched them, strip-searched and jailed him, and returned the camera weeks later with all the photos gone.”

Recently, the project won disclosure of police body cam footage and other records from the city of Santa Ana, which L.A.-based freelance journalist Ben Camacho used to write a Knock LA article revealing that some Santa Ana police officers had formed a gang with shared skull tattoos. Clinic students are fighting in court to get other police records from the L.A. Police Department and L.A. County Sheriff’s Department after those agencies refused to turn them over to project clients Knock LA and First Amendment Coalition.

Seager is perhaps most excited about the impact the Press Freedom Project has had on the young UCI students who have been part of it. “This current generation isn’t so sure the press deserves protection,” she says. “They are cynical about the mainstream media for good reason. But I think I’m teaching them about the importance of an independent press and that the press needs good lawyers to fight for the public.”

Governor Newsom Signs AB 2799, the Nation’s First “Rap on Trial” Legislation

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Governor Newsom has signed AB 2799, the Decriminalizing Creative Expression Act! This is the nation’s first legislation aimed at reining in the harmful practice of using rap lyrics in criminal proceedings. It will go a long way from preventing prosecutors from using rap lyrics to inject racial bias into criminal trials. Members of the IPAT Clinic were pleased to help members of the state Assembly and their staff understand this issue and to help educate other policymakers, legislators and the public about it.

Rap on Trial—New Developments and Ongoing Work

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Since we published the Rap on Trial Legal Guide in June 2021, the issue of rap lyrics in criminal trials has taken on national prominence. The Guide has been downloaded and shared widely, and attorneys have been using it successfully in court cases across the nation. Together with Professors Jack Lerner and Charis Kubrin, we have presented workshops to hundreds of attorneys around the country and talked with quite a few journalists reporting on this issue. And today we published the Rap on Trial Legal Guide version 1.1, reformatted and revised to greatly improve accessibility.

But the most exciting development of all is the interest legislators in Sacramento, Albany, and Washington, DC have taken in this issue.

In New York, the state Senate passed Senate Bill 7527, which adds a new section to the New York Evidence Code that prohibits prosecutors from using creative expression as criminal evidence against a person without clear and convincing proof that there is a literal, factual nexus between the creative expression and the facts of the case.

In California, Assemblymember Jones-Sawyer has introduced Assembly Bill 2799, which establishes a presumption that the probative value of creative expression is minimal unless that expression meets specified conditions. Critically, the bill would require California courts to consider evidence about unique aspects of the genre of creative expression, as well as experimental or social science research demonstrating that the introduction of a particular type of expression explicitly or implicitly introduces racial bias into the proceedings.

And in Washington, DC, Representatives Hank Johnson and Jamaal Bowman have introduced the Restoring Artistic Protection Act of 2022, which amends the Federal Rules of Evidence to establish a presumption that a defendant’s creative or artistic expression is not admissible as evidence in a criminal case. To overcome this presumption, prosecutors will have to demonstrate, by clear and convincing evidence, each of the following 4 points: the expression was meant to be taken literally or alternatively; the expression specifically refers to the alleged crime(s); the expression specifically refers to relevant fact s that are in dispute; and the expression is the only evidence available to demonstrate such facts.

For too long, prosecutors have been allowed to exploit rap lyrics to make an end-run around rules that are supposed to prevent character evidence, racial bias, and unfair prejudice. These bills will establish important protections for artists in all genres, and will help keep racial bias and prejudice out of the courtroom.

Today Clinic Director Jack Lerner will be talking with Representative Hank Johnson about the new federal bill on Twitter Spaces, along with Todd Dupler from the Grammy Foundation. Tune in at 2:00pm PDT / 5:00pm EDT!

 

 

UC Irvine Law School Press Freedom Project Sues Police for Illegal Arrests of Journalists

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UCI law school students filed a civil rights lawsuit on behalf of two journalists that accuses the Los Angeles Police Department of violating the journalists’ First Amendment rights by arresting the journalists for simply doing their jobs.

Law students Brian Fiumara and Zoe Vikstrom co-authored the lawsuit filed in U.S. District Court in Los Angeles on May 9, 2022 on behalf of clinic clients Jon Peltz and Kate Gallagher, reporters for the independent news website Knock LA. The students to press freedom work in the law school’s clinical program.

The two journalists were arrested on March 21, 2021 for allegedly failing to obey police orders to leave the area near Echo Park Lake in Los Angeles before police began evicting unhoused persons from their tents along the lake.  The city attorney, however, declined to file charges against them.

“Kate and Jon were arrested while standing on a public sidewalk, peacefully filming police and reporting to the public about a public protest and police actions, which is activity completely protected by the First Amendment,” said UC Irvine law school Professor Susan E. Seager, who directs the Press Freedom practice in the law school’s Intellectual Property, Arts, and Technology Clinic.

“The LAPD treated Jon and Kate like criminals because Knock LA is not part of the establishment press. But the First Amendment – and the LAPD’s own policy – do not require reporters to work for the mainstream media to be protected by the First Amendment,” Professor Seager said.

The lawsuit seeks monetary damages and training for police officers dealing with the press at protests.

Police detained other reporters from more well-known media outlets, including a Los Angeles Times reporter, but let those reporters go and did not arrest them, the newspaper reported.

Since 2020, police have assaulted journalists across the country more than 600 times and made more than 200 arrests of journalists – with most of the arrests in 2021 and 2022 coming during coverage of police evicting unhoused people from their encampments, the lawsuit said.

Mr. Peltz said officers were hostile to the press at the scene. “It was clear that we were arrested because the LAPD did not want anyone – especially the media – to observe their egregious and unlawful conduct at Echo Park Lake.  The department behaved with brazen lawlessness to silence voices critical of the department,” Mr. Peltz said.

“A free press is crucial for holding public agencies like the LAPD accountable. The police should not be allowed to arrest journalists for reporting on a protest against their department’s own conduct,” Ms. Gallagher said.

On the night of the arrests, Los Angeles police officers issued a dispersal order to protesters and reporters on a public sidewalk about 150 feet from the lake, but the officers then immediately trapped and arrested protesters, the two Knock LA reporters and other independent journalists, and would not allow any of them to leave, the lawsuit said.

The lawsuit alleges that the LAPD has “a longstanding policy, custom and practice of obstructing, targeting, and retaliating against members of the press for exercising their First Amendment rights to gather news regarding police officer activity in public places, particularly during protests against police brutality.”

The Press Freedom clinic provides free legal services to independent journalists, independent news organizations, and press advocacy organizations.

Knock LA is a non-profit, independent news website focusing on local law enforcement misconduct and government corruption since 2017. The website published last year a 15-part series about the history of violent gangs of deputies within the Los Angeles Sheriff’s Department,  and both the LAPD and Sheriff’s Department have released documents showing that the departments keep track of Knock LA’s reporting about their agencies.

The clinic is co-counsel with UC Irvine law school grad Shaleen Shanbhag, who is a partner at the civil rights law firm Hadsell Stormer in Pasadena, California.

 

 

 

Independent filmmakers file amicus brief in constitutional challenge to copyright laws

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The IPAT Clinic has filed an amicus brief in federal court in Washington, DC in a closely-watched constitutional challenge to an obscure but important part of copyright law. The Clinic filed on behalf of long-time clients Kartemquin Films and the International Documentary Association, in Green v. United States Department of Justice, a case challenging the constitutionality of Section 1201 of the Digital Millennium Copyright Act. Section 1201 makes it illegal to break encryption on digital media, even when that encryption is thwarting important expressive conduct like criticism, commentary, research, and the like—deeply compromising filmmakers’ ability to make fair use.

Our clients depend on fair use to make commentary, criticism, instruction, add context, and report on current events by utilizing portions of digitized movies and other digitized content. But fair use is of little consequence if filmmakers cannot access the high-quality digital material they seek to use in the first place. Today the vast majority of film and video clips covered by fair use are locked behind encryption. Even though breaking encryption is necessary for nearly all filmmakers who wish to make fair use, the DMCA makes that a crime. 

Since the IPAT Clinic’s founding, we have worked with independent and documentary filmmakers to try and mitigate the harms that have resulted from this law. Starting in 2008, filmmakers have participated in rulemaking proceedings at the Library of Congress every three years seeking exemptions that would allow filmmakers to break encryption for fair use purposes. And filmmakers have spoken eloquently about the problems with the DMCA both at the Library of Congress and in publications like Vice Magazine. 

While independent filmmakers have been successful in getting exemptions that make a difference for their practice, the exemptions are deeply flawed and inconsistent, and the entire process is a burden on the public. The Section 1201 rulemaking requires filmmakers to undertake hundreds of hours of complex legal work and fact-gathering, which would be impossible without pro bono counsel. 

 

A slide from a U.S. Copyright Office demonstrating the numerous steps involved in the rulemaking process required to exercise fair use; the slide provides support for a key point in our brief, which is that the rulemaking is too complicated to work as a “fail-safe” that squares Section 1201 with the First Amendment. (The slide actually leaves out some steps, including initial petitions and petitions for renewal.)

 

Enter Green v. DOJ, In 2016, a group of researchers filed a constitutional challenge to the DMCA arguing that Section 1201 violates the First Amendment, and the rulemaking process Congress created does not remedy the law’s constitutional defects. The case is now before the U.S. Court of Appeals for the District of Columbia.  

Since 2008, Kartemquin and IDA have been at the forefront of a large coalition of groups representing thousands of independent filmmakers across the nation in DMCA rulemakings. In last week’s amicus brief, we shared our experiences with Section 1201, explaining that it impermissibly constricts filmmakers’ fair use rights by making it a crime to access encrypted digital content even when the underlying use is perfectly legal. We also described what the rulemaking has been like for filmmakers. The process has been hugely burdensome, and while the exemptions filmmakers have achieved have been useful, they are inconsistent, difficult to understand, and even more difficult to use. For this reason, with the IPAT Clinic’s help Kartemquin Films and the International Documentary Association have filed an amicus brief in the Green appeal.

“Section 1201 results in a significant burden on the documentary field,” said Kartemquin Films Founder and Artistic Director Gordon Quinn.  “Every three years we have to seek an exemption to this rule in order to ensure that we can continue making our films which contextualize, critique and comment on previous works to support the stories we tell. We are hopeful that the court in this case will relieve this burden as we continue to exercise our right to fair use.”

The Supreme Court has said on several occasions that fair use is a “built-in First Amendment accommodation,” a safety valve that allows copyright to coexist with freedom of expression. As we expressed in the brief, this why Section 1201 raises serious constitutional issues: it makes fair use impossible in many circumstances. If Congress chooses to amend copyright it is free to do so—but not when if it restricts fair use. 

UCI law students Luciano Alvarado, LaBreonna Bland, Alyx Bogus, Roxanne Markus, and Alexandra Stockton worked tirelessly on this project. “Researching and following the progression of the DMCA rulemaking was honestly shocking from a modern perspective,” said Alyx Bogus ’23. “This law, drafted and passed before Netflix, YouTube, or even Blu-ray discs existed, quickly became out of date as the internet and digital content evolved. In an increasingly digital landscape, it is critical that creators be able to obtain and use materials pursuant to fair use to preserve Copyright’s constitutional purpose of promoting the progress of science and the arts.”

Here is the brief.