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If you’ve ever had the good fortune of doing legal research, you’ve likely had an encounter with PACER. PACER, or Public Access to Court Electronic Records, is the electronic service that provides access to court records. These records are pivotal for journalists providing accurate and quality news. PACER provides original, verifiable sources that answer journalists’ questions or help them understand the right questions to ask on important issues.

During Sunshine Week and every day, journalists need easy access to verifiable sources more than ever to report the truth about government activity to the public.

But unfortunately, PACER is far from perfect. Anyone who has used PACER can testify to its antiquated design, clunky search functions, and difficult-to-navigate software. There are also separate databases for different courts, meaning there is no uniform way to file, track or save information about a case.

Perhaps even worse than providing a below-average product, PACER charges fees for every search and document download, at a rate of $0.10 per page. While 10 cents may not seem like much, some searches garner many pages of search results, and court filings are known for their length. Though PACER’s fees are capped at $3.00 per document, these fees add up.

The electronic system is entitled to charge these fees by statute, but the fees are to be imposed “only to the extent necessary,” and must be “reasonable.” But with PACER bringing in about $142 million annually in revenue, it seems these fees are neither “necessary” nor “reasonable.”

Now, a Bill is moving through Congress to address the problems with PACER. The Open Courts Act of 2021, or Free PACER Bill, will not only eliminate the fees currently associated with PACER, but it will also modernize the antiquated search engine. While PACER is now clunky, dated and hard to use, the Act will ensure an updated, reliable, streamlined site to file, read and monitor court documents and dockets.

The Bill has garnered bipartisan support. Senator Rob Portman (R-OH) said, “PACER was intended to create a level playing field for small-time litigants, small business, civil society, journalists, and citizens who care about transparency in government. However, with its frustrating interface and fees, PACER has done the opposite. The American people should have easy access to the court records of their country, and this bipartisan, consensus legislation will fix the problem once and for all by putting in place a free, streamlined system with an emphasis on security, accessibility, affordability, and performance.”

Similarly, Senator Ron Wyden (D-OR) voiced his support, saying, “For far too long, unnecessary paywalls have kept the American people from freely accessing public court records. The Open Courts Act will deliver a long-overdue upgrade to PACER, totaling a savings of more than a hundred million dollars a year in operating costs. Federal courts will then be able to remove burdensome paywalls and provide the public, including researchers and journalists, with free access to public court documents.”

It is far past time that Americans had easy and unencumbered access to these public documents, and Congress should take action now by passing the Open Courts Act of 2021.

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The Washington Post slogan, “Democracy Dies in Darkness,” originating from a Sixth Circuit Judge and then adopted by Post Watergate reporter Bob Woodward, encapsulates the need for accountability and quality journalism to maintain our freedom. Unfortunately, many people seek to punish accountability journalism. This “punishment” can sometimes take the form of costly and frivolous lawsuits called SLAPP (Strategic Lawsuits Against Public Participation) suits. State anti-SLAPP laws give defendants an early motion to dismiss meritless claims, but unfortunately, the laws vary significantly among states and there is no federal anti-SLAPP law. However, there is currently federal legislation under consideration that would help discourage these frivolous lawsuits.

SLAPP suits are lawsuits designed to punish speech that is protected by the First Amendment. For example, a local news outlet published a public official’s public, derogatory comments about a local resident, and the public official sued the news publisher for defamation. In that case, the newspaper was quoting exactly what the public official said—fully within their First Amendment rights—but since the public official found this unfavorable, he sued the paper. In this and other similar cases, without legislative action, many news publishers are forced to incur costly litigation expenses with no guarantee they will recover attorney’s fees when they win the case.

Looking at the state anti-SLAPP laws, some states have strong anti-SLAPP laws, while others have very narrow ones. For example, while the state of Washington’s anti-SLAPP law has a provision that guarantees reasonable attorney’s fees for defendants who successfully use the law, Maryland’s law has no such provision. Not only can this be very costly for innocent defendants, it creates a large incentive for plaintiffs to “forum shop,” picking a jurisdiction with laws that favor their side of the case in which to bring their lawsuit.

Even more, with no federal anti-SLAPP law, the applicability of state anti-SLAPP laws in federal court is chaos. For example, Texas’ anti-SLAPP law does not apply in the Fifth Circuit (of which Texas is a member), but it does apply in the Ninth Circuit. With 31 state anti-SLAPP laws and 13 circuits, inconsistent rulings and forum shopping have reached new heights.

SLAPP could be avoided if there were uniformity on the state and federal level, and the Uniform Law Commission (ULC) has sought to do just that. Through in-depth research studying various states’ laws, including those that have been struck down, the ULC carefully crafted a model anti-SLAPP law, the Uniform Public Expression Protection Act (UPEPA), which will effectively protect First Amendment actors such as journalists.

Unlike narrow anti-SLAPP laws, the UPEPA applies broadly in order to protect all First Amendment activity. The law applies not only to communication related to governmental proceedings, but also any exercise of the right of freedom of speech or of the press, the right to assemble or petition, and the right of association.

Additionally, if a defendant succeeds on their anti-SLAPP motion, UPEPA grants them costs, reasonable attorney’s fees, and reasonable litigation expenses related to the motion. But anti-SLAPP laws do not give defendants a free pass—they serve as an accountability mechanism and there’s no guarantee that a defendant will win on their anti-SLAPP motion. If the defendant loses the motion, the plaintiff can recover fees if the court finds that the motion was frivolous or filed solely with intent to delay the proceeding. In this way, there’s accountability for both parties.

Accountability and consistency are pivotal for preserving free speech and a free press. Without consistency, predatory plaintiffs will continue to forum shop and seek to punish First Amendment activity for personal gain. Local news publications, private citizens and First Amendment activity will suffer as they are forced to participate in time-consuming and costly lawsuits. By passing the UPEPA on the state and federal level, there would be consistency, accountability, and security in the safety of First Amendment protections—thus assuring more truth is brought into public light.

For a more in depth survey of state anti-SLAPP laws, see the recent study by the Institute for Free Speech.

The post With State Anti-SLAPP Laws in Chaos, New Uniform Legislation Would Offer Consistent Protection for Publishers of Free Speech appeared first on News/Media Alliance.

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Senators Ron Wyden (D-OR), Cory Booker (D-NJ), Jeff Merkley (D-OR), Jon Ossoff (D-GA), and Chris Van Hollen (D-MD) today sent a letter to Attorney General Merrick Garland about codifying specific protections for journalists. The Senators urged the DOJ to protect the critical First Amendment rights of journalists covering demonstrations, protests, and other protected activities—protections that the Ninth Circuit has already affirmed. The letter further requests that the DOJ withdraw its appeal of a U.S. District Court injunction that protects journalists and legal observers’ rights to cover protests. “Protecting the rights established by the First Amendment is crucial to our democracy’s functioning. The federal government must reaffirm its commitment to the First Amendment, not combat or weaken such protections.”

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The News Media Alliance and National Newspaper Association (NNA) filed Comments with the Postal Regulatory Commission about its proposed modifications to its performance measurement systems. The Comments point out that the measurement system needs improvement, specifically in seeking greater transparency and inclusion of all periodicals in its measurements and reporting. The Alliance and NNA urge the Commission “to improve the reporting on all mail performance by inquiring about the scope of current reporting on mail that is not covered by the measurement system.” Otherwise, the incomplete and overly optimistic reporting does not paint the full picture.

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On September 15, the United States Postal Service (USPS) filed “Schedule and Predictable Rate Changes.” The schedule lays out planned rate increases over the next three years but is not binding on the USPS. The next increase is scheduled for July 10, 2022. The case challenging the increase is still ongoing in the DC Circuit. Read more.

Related: Postal Rates to Increase August 29

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