Nonprofit Coalition Asks Courts to Prevent Coercive Federal Investigation Tactics

Defending Rights & Dissent joins seventeen nonprofit organizations, led by The Intercept’s Press Freedom Defense Fund, in filing an amicus brief today urging the U.S. Court of Appeals for the D.C. Circuit to prevent the Federal Trade Commission from conducting a retaliatory investigation into Media Matters for America, brought after Media Matters published critical reporting about allies of the Trump administration.

The brief, authored by Albert Sellars LLP, notes that this sort of coercive tactic — where a federal agency will launch a pretextual investigation, keep it open as a way to coerce compliance, and resist any effort to have a court review the lawfulness of the agency’s actions — has become a troublingly common form of government intimidation under the current administration. From the Justice Department to the Federal Communications Commission, court intervention has been one of the few tools that organizations have to prevent federal overreach. The amicus brief asks the appellate court to uphold a preliminary injunction. Without judicial remedy, such investigations are an acute danger to the nonprofit organizations that Americans rely on for information on matters of public concern. The brief argues that courts must intervene to prevent such investigations from chilling coverage of issues that might be adverse to those currently in power:

As the federal government uses its investigative powers in ways that appear untethered from its power to enforce, all evidence points to one tactic that has consistently protected those at risk—promptly going to court. This is the essential role of Article III courts, and why they must act to halt the “existing and continuing First Amendment harms” that flow from retaliatory investigations aimed at speech suppression. But such protections cannot exist if the government decides when—or worse yet, whether—courts can scrutinize its conduct in the first place. And without those protections, nonprofit media, research, and advocacy organizations in particular will be chilled from producing the types of information needed for an “informed public[,] ‘a structural necessity in a real democracy.’”

Download the brief or read it below: