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Attorney General TJ Donovan. Photo by Anne Galloway/VTDigger

VTDigger is filing the amicus brief in an appeal to the Supreme Court of Vermont. Other news outlets and transparency groups have signed on, including the New England First Amendment Coalition, the Caledonian Record, Seven Days and the Vermont Press Association. An amicus, or friend of the court brief, is a filing made by a party that is not a litigant but has significant interest in the outcome of a case.

VTDigger, other news outlets and transparency groups argue that the courts ruling undermines the Vermont Public Records Act by placing private accounts beyond scrutiny even if they contain records related to public business.

The purpose of Vermonts public records law is to ensure government officials dont conduct public business in secrecy, except in certain circumstances that are spelled out by the law.

Without open access to government records, journalists ability to gather information is constrained, and reporters are forced to rely on the good graces of interested officials, according to the brief.

The brief was filed in support of an appeal of a February ruling by Superior Court Judge Robert Mello.

Mello found that the Vermont Public Records Act does not allow for the public scrutiny of the private emails of state officials even if those officials are conducting government business on personal accounts.

Vermont Attorney General William Sorrell speaks Thursday about alleged fraud in a string of development projects in the Northeast Kingdom funded with immigrant investors money. Looking on is Gov. Peter Shumlin. Photo by Erin Mansfield/VTDigger

The case was brought by Brady Toensing, vice chair of the Vermont Republican Party, who sued for records from the private email account of former Vermont Attorney General Bill Sorrell and nine employees in his office.

Toensings request is part of a multi-year battle to obtain records related to Sorrells communications with lobbyists and others.

Mello wrote in his ruling that, while the definition of a public record in statute is undoubtedly broad its scope does not extend so far as to mandate the search of state officials or employees private email or text messaging accounts upon request.

In an amicus brief filed Friday, attorney Timothy Cornell, of Cornell Dolan, P.C., representing the Vermont Journalism Trust, argued that the decision will create a huge loophole that enables public officials to conceal public records simply by communicating on a private email server.

This will cripple journalists ability to gather information and hold the government accountable, Cornell continued. If a document is produced in the course of agency business, it is a public record, regardless of how it is created, how it is communicated, or where it is stored.

The amicus brief goes on to say that the interpretation of the Public Records Act made by the Superior Court does great violence to the overall aim of the law and avoids the real question: Was the document under consideration produced or acquired in the course of agency business? Absent that analysis, a state official can now put a record entirely out of the publics reach simply by using a private third party email channel or text message.

Mellos ruling acknowledges this possibility but suggests it is up to the Legislature to remedy the situation.

To be sure, the idea that state officials and employees can avoid valid public records requests merely by conducting work-related communications on private e-mail and text messaging accounts is a serious and, frankly, disturbing concern, Mello writes.

Through its decision today the court does not seek to diminish that concern, but only to point out that it is a matter for the Legislature, not the courts, to decide, Mello says.

The Vermont Journalism Trust argues that the courts ruling is based on a flawed interpretation of the public records statute.

The Attorney Generals office has said it does not believe state employees should be using private accounts for public business, but has argued that Toensings request violates the privacy rights of state employees.

Judge Mello concurred.

New Vermont Attorney General TJ Donovan has said requesters should provide evidence showing that public records exist on a state employees private accounts before they can be searched.

The amicus brief argues that there is no exemption in the Public Records Act related to privacy concerns.

Toensing says Donovans interpretation would create an incentive for officials to use private accounts to avoid scrutiny by placing an evidentiary burden on those requesting public records.

While the case is pending, Secretary of State Jim Condos has said his office will continue to advise state agencies and departments that public business conducted on private accounts is subject to open records requests. Condos has said the Vermont Attorney Generals arguments are alarming.

The Supreme Court of Vermont recently granted Toensings motion for an expedited hearing in the case, and arguments are scheduled to be heard on June 7.

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VTDigger, newspapers and First Amendment group back appeal of private email ruling - vtdigger.org

The Bill of Rights surely ranks as one of the most difficult documents for us, as Americans, to contend with.

Theres enough in that list of 10 rights to make each of us a little uncomfortable, depending on your political persuasion.

Me? I get hung up on the Second Amendment. I dislike guns and I have seen how much damage they can unleash on families and communities. Just ask the parents at Sandy Hook.

But its there and like it or not we, as a community, have to follow the law as interpreted by the U.S. Supreme Court no matter how wrong-headed we think the opinion is. If I respect the Constitution, I respect the rule of law.

Then theres the Fourth Amendment protection against unlawful searches of your property and person. It provides great protection for me and my family if the police come pounding on my door and want to search my house without a warrant.

But it also means that even if my neighbor is the nastiest drug dealer in the city, the police cannot crash through their door without cause or a warrant. And if the police dont play by the rules? The evidence might get tossed out of court and that nasty drug dealer goes free.

Then theres the Fifth Amendment right against self-incrimination, which led to the high court establishing the Miranda warning. You hear that in every TV cop show and again, if the police dont read defendants their rights at the time of arrest, a criminals statement just might get thrown out of court, even if it means a guilty person goes free.

Uncomfortable. But the law.

Perhaps the most vexing of all the amendments in the Bill of Rights is the first one you know, the one about free speech, a free press, freedom to worship or not, and the right to assemble.

I personally hope to never have to listen to the likes of white supremacist Richard Spencer talking about making white privilege great again as he did recently at Auburn University in Alabama. But as long as he wasnt inciting violence yes, there are restrictions that can be placed on speech he had a right to speak.

It should have been the same with Ann Coulter in Berkeley, Calif., where her speech was stopped because of a threat of violence. Whether you agree with her is beside the point. She and her followers have a right to free speech just as those who disagree with her have a right to protest peacefully.

That pesky First Amendment.

Indianas legislators showed this past legislative session that while they may love First Amendment protections for themselves, when it comes to high school journalists not so much. After pressure from principals, superintendents and the Department of Education, they refused to extend First Amendment protections to high school journalists and their advisers.

Order and control trumped the First Amendment.

Whats most disheartening about the failure of this piece of legislation is the way it undermines a real opportunity for students to learn from first-hand experience how the Constitution works.

What better civics education is there than to learn about our constitutionally protected freedoms than by living them?

Will there be mistakes? Yes, of course. Thats the price of a free press. And just as there are limits on speech there are limits on the press you deliberately print falsehoods and you can get sued.

Should that fear of students running amuck with their pens and notebooks override the chance to let them live the values we claim to extol in the Constitution? No, it shouldnt.

Some of our lawmakers would be much more comfortable allowing guns in school for protection, of course than would want a free and open student press.

Yes, the First Amendment is pesky and hard. And just because something is hard doesnt mean we quash it. Thats not how our democracy works.

Janet Williams is editor of TheStatehouseFile.com, a news website powered by Franklin College journalism students. She can be reached at jwilliams4@franklincollege.edu.

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WILLIAMS: Living the First Amendment is hard work | Opinion ... - Evening News and Tribune

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Department Of Labor's Fiduciary Rule Is Vulnerable On First Amendment Grounds Forbes Promulgated in April 2016, the Department of Labor's (DOL) highly controversial Fiduciary Rule drastically expands the universe of retirement investment advisors and employees who are deemed to be fiduciaries under federal law. Abandoning 40 years of ... Fiduciary Rule Violates First Amendment, Law Firm Argues ...Bloomberg BNA Financial Advisor IQ - Fiduciary Rule Slammed as First Amendment ...Financial Advisor IQ (registration) all 13 news articles »

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Department Of Labor's Fiduciary Rule Is Vulnerable On First Amendment Grounds - Forbes

A reporter in West Virginia was arrested Tuesday night for literally doing his job.

Dan Heyman, a veteran reporter with Public News Service, was covering a visit to the state capitol by Health and Human Services Secretary Tom Price and senior Trump advisor Kellyanne Conway. As they walked through the building, Heyman pressed the two on whether domestic violence would be considered a preexisting condition under the American Health Care Act passed by the House last week.

Suddenly, he was pulled aside by Capitol police, handcuffed, and hauled off to jail. He was charged with a misdemeanor for willful disruption of governmental processes and only released when his employer posted a $5,000 bond. He is still awaiting a preliminary hearing.

At some point I think they decided I was just too persistent in asking this question and trying to do my job, and they arrested me, Heyman said after he was released.

A criminal complaint alleges that Heyman was causing a disturbance by yelling questions. What it doesnt note was that Heyman was actually targeted for reporting on matters critical to the public interest not in a closed meeting or the inside of a working office, but in the hallways of a government building.

The law under which Heyman was charged can carry a fine of up to $100 and a jail sentence of up to six months.

At a time of eroding trust in our government institutions, an independent free press is more critical than ever to ensure that the people running our country are held to account. This makes Heymans arrest all the more distressing.

What happened in West Virginia didnt happen in a vacuum. The president has been attempting to undermine the press on a regular basis and resists transparency at every turn. He has smeared the media as the enemy of the people. On the campaign trail, he revoked the credentials of some of the most prestigious news outlets in the country because he didnt like their coverage. Reporters have been the victims of physical violence and the target of mockery. Others have been arrested and charged with felonies for covering protests.

Against this backdrop, it should come as no surprise that a reporter was arrested for trying to ask a question to a member of Trumps cabinet. But it can never be accepted as normal.

In the 1971 Supreme Court ruling on the famous Pentagon Papers case, Justice Hugo Black wrote, The press was to serve the governed, not the governors. Indeed, when our public representatives whether the Trump administration or the West Virginia Capitol police forget that they work for us, we need journalists to remind them. Without a free press, public officials have a much easier time evading accountability, shielding misconduct, and pushing through dangerous policies without public scrutiny. Even Thomas Jefferson, who had a quarrelsome relationship with the press, knew that our liberty depends on the freedom of the press.

We need journalists to be able to challenge and question public officials, loudly and persistently. For the government to stand in the way is a frontal assault on the First Amendment and the functioning of our democracy. Those who dont want transparency in the literal halls of government have no business putting themselves in the political spotlight.

If our elected officials insist on continuing to violate one of our countrys core values, we will see them in court in defense of Dan Heyman and of any other journalist serving the publics right to know.

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Arresting a Reporter for Asking Questions Is an Unacceptable Assault on the First Amendment - ACLU (blog)

Last year, some students at Carmel High School were allowed to put up an anti-abortion sign. This year, a different group of students were told they could not hang a pro-abortion rights sign.

That is discrimination based on viewpoint, and that is a clear violation of the First Amendment. Naturally it's time to bring in the American Civil Liberties Union of Indiana and take the school system to court, by God!

OF COURSE THE story is a tad more complicated than that, and the episode should serve as a warning for school districts inclined to stray from their mission under the false impression that they must accommodate every student demand for this or that "right."

A school is not a microcosm of the country, with students counted as citizens and school officials standing in for "the government." A school is a structured learning environment in which anything not aimed at imparting knowledge must be put aside. True, students don't leave their rights at the schoolhouse door, but the rights they have are not the same as a citizen's in dealing with government.

If schools choose to ignore that reality, they owe it to students to have very clear rules that are widely disseminated and understood. This is what Carmel failed to do.

The school at first took down the anti-abortion sign last year. But it put it back up for 10 days after the conservative legal group Liberty Counsel threatened legal action, arguing that the school had allowed other ideological messages on signs, including a donkey on a sign for a student club for Democrats and the use of a rainbow and the word pride on signs for a group supporting lesbian, gay, bisexual and transgender students. The anti-abortion sign said "3,000 Lives Are Ended Each Day" and featured the word "abortion" changed to say "adoption."

THE SCHOOL SAYS groups may post signs only if they advertise group meetings. Lawyers for the school district say the new sign did not include the group's name or meeting details, which the sign last year did. But the ACLU, like the Liberty Counsel before, is citing all the previous ideological signs allowed.

Judge Tanya Walton Pratt of the U.S. District Court for the Southern District of Indiana says the controversy over the new sign "opens a can of worms, doesn't it?"

Indeed, it does. And it's not the students who are at fault.

The Fort Wayne News-Sentinel

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EDITORIAL: Another fine First Amendment mess - Goshen News