Unicorn Riot’s lead attorney, Chris Prozcko at Sapientia Law Group, noted the crucial work of fellow attorney Ryan Simatic as well as persuasive amici briefs from the Reporters Committee for Freedom of the Press, the Forum for Constitutional Rights and Tony Webster, all of whom brought important press freedom factors the court had to consider. Prozcko wrote:
“Free Press Victory in Minnesota Court of Appeals – [the Minnesota Free Flow of Information Act. or MFFIA] applies despite alleged unlawful conduct, exceptions must apply before district courts can order privilege logs from third parties.
The Minnesota Court of Appeals issued the attached opinion in Energy Transfer LP v. Greenpeace International, addressing the application of the Minnesota Free Flow of Information Act when asserted in response to a third-party subpoena. We represent Unicorn Riot, a non-traditional media collective that resisted subpoenas from a conglomerate of companies that constructed and own the Dakota Access Pipeline seeking newsgathering materials to support tort claims against several activist organizations and demonstrators. The district court determined that the MFFIA protected Unicorn Riot but nonetheless ordered it 1) to produce a privilege log of all documents responsive to the subpoenas, and 2) to produce responsive materials to the court upon request for in camera review. Energy Transfer appealed the MFFIA determination, and Unicorn Riot appealed the privilege log requirement.
This morning [May 6], the Court of Appeals handed down a resounding win for the free press. As to the first issue, the court rejected Energy Transfer’s argument that the MFFIA does not protect information acquired during or related to a purported newsgatherer’s unlawful conduct and affirmed that the state shield law protects Unicorn Riot’s newsgathering materials related to the DAPL protests. The Court of Appeals also held that it was error for the district court to order Unicorn Riot to produce a privilege log and to produce privileged records for in camera review upon request without first determining that an exception to the shield law applies.
Special thanks go to Ryan Simatic for his invaluable efforts on this appeal, as well as the amici that supported Unicorn Riot’s position–specifically the Reporters Committee for Freedom of the Press, the Forum for Constitutional Rights, and Tony Webster. Their efforts ensured that the court had a wide-angle perspective on the issues before it and the importance of press protections.
Chalk up another one for the good guys.” Christopher Proczko, Sapienta Law Group, May 6, 2024
Back in 2021, Alleen Brown and Sam Richards at The Intercept described the Energy Transfer legal project as a “series of expensive conspiracy lawsuits against a disparate range of actors, [through which] the pipeline company has sought to paint the Standing Rock movement as the product of a vast misinformation-driven conspiracy to damage Energy Transfer.”
Trevor Timm at the Freedom of the Press Foundation described the subpoena as “a menacing attempt to intimidate a news outlet whose only ‘crime’ is being critical of the company. It should be thrown out immediately.” While some issues are still to be adjudicated, the lower court’s privilege log order has now been thrown out.
This ruling comes amid challenging times for the media industry as a whole: layoffs are mounting across the industry, while litigation and funding woes are pressuring media organizations to retreat from challenging coverage. The Fifth Circuit issued a “disastrous ruling” in Villarreal v. City of Laredo, Texas, which drastically eroded press freedom.
Support among philanthropists for nonprofit media is fading along with mounting media distribution problems, although some are joining larger networks in hopes of turning things around. At least in Minnesota, power players won’t be able to use certain legal avenues to harass media organizations and try to grab their newsgathering materials anymore, thanks to this new ruling favoring Unicorn Riot.
Consider lending your monetary support to help our small media org recoup some of the $50,000 we spent on this court battle for press freedoms.
