The Upper 7s: Nonprofit Law Defends Nonprofit News

 

The Montana Attorney General is trying to censor a nonprofit news story but the Upper Sevens, a nonprofit law firm, ain't having it.  

We've talked quite a bit about attorneys general lately.  It's pretty clear that a lot of AGs determine which cases to pursue based on their politics.  And on how big a headline the case will command.  The lazy-eyed Republican Cowboy is the best example.  But Democratic AGs sometimes do the same thing.  We've also blogged about nonprofit news lately because nonprofit news wants to be taken seriously.  It wants to be news in every way, including political endorsements. And when not making endorsements (when it figures out how to do so consistent with tax law), nonprofit news just wants to report the news. But we haven't seen a story about AGs and nonprofit news all at the same time.  And I am not sure we've ever talked about nonprofit law firms all that much either. Here's a story that combines all three.

Up in Big Sky Country, AG Austin Knudson is being ignorant and something less than strategic in the fights he's picking.  He must know so because his webpage announces his support of Tik Tok bans and his fights against the Biden administration but doesn't say a word about a bald-faced attempt to act as editor in chief of The Daily Montanan, an exempt newspaper.  Here is some of the press release that explains what's going on:

On August 24, 2024, the Daily Montanan responded to a frivolous cease-and-desist letter from the Attorney General’s office, which demanded that the news outlet delete a recently published article.  The article included a copy of a survey that the Montana Highway Patrol conducted to assess its “organizational climate” and highlighted employees’ concerns over claims of favoritism, distrust, mismanagement, and cronyism among leadership. The Daily Montanan received a copy of the anonymized survey from a confidential source and made no changes to it before publication.  Both the Montana Constitution’s right to know and the First Amendment of the U.S. Constitution protect the Daily Montanan from any attempt by the Attorney General’s office to prevent disclosure of the survey—an obviously public document.   On August 29, 2024, Upper Seven Law responded to the Attorney General on the Daily Montanan’s behalf, in turn demanding that his office rescind its cease-and-desist and refusing to remove the article. 

The attorneys at Upper Seven Law wrote the press release, I'm sure.  I can tell by looking at them that they are all vegans. My daughter has that same "let's be happy and not eat bacon or hamburgers" look.  Here is what one of their private foundation funders said about them:

Upper Seven Law is a Montana-based nonprofit law firm dedicated to holding the powerful accountable.  Based on the belief that creativity and innovation in law are essential to advancing social justice and public interest objectives, they take smart risks and invest the time necessary to build foundations for long-term accountability work.  Since June 2021, they have invalidated four unconstitutional state laws, preliminarily enjoined two more, caused the redistricting of Montana’s Public Service Commission districts, prevented the Governor from hiding documents from Montanans, and vindicated diverse human and civil rights.

The AG must have thought vegans are pushovers or don't pay attention.  He thought wrong because Upper Seven -- what a great name -- is having none of that.  First, though, here is what the AG  actually had the gumption to say:  

On behalf of the Montana Department of Justice (DOJ), this serves as a formal cease and desist demand to immediately remove the confidential document titled “Montana Highway Patrol Organizational Climate Assessment” from your website located at https://dailymontanan.com/wp-content/uploads/2024/08/MHP-full-report-small.pdf, as well as all quotes in the article from the individual comments portion of that document.

The version of the Climate Assessment you published contains sensitive and private information in the form of confidential individual Montana Highway Patrol employee comments and employee identities that was illegitimately obtained without consent. As is stated in the Daily Montanan’s article, “participants . . . were granted anonymity in the survey.” Publication of this document and quotes from individual comments contained in it constitutes a blatant violation of employee privacy rights and confidentiality expectations. The privacy concerns with respect to the individual comments clearly outweigh the merits of public disclosure. See Mont. Const. art. II, §§ 9-10; Missoula Cnty. Pub. Sch. v. Bitterroot Star, 2015 MT 95, 378 Mont. 451, 345 P.3d 1035; Billings Gazette v. City of Billings, 2013 MT 334, 372 Mont. 409, 313 P.3d 129; Admin. R. Mont. 2.21.6615.

The Upper Sevens don't look too far removed from Con Law I class so they must have had a good laugh about this.  I did too but its serious when an AG threatens legal action against nonprofits for reporting the news, sheltering migrants out of religious convictions, or for advocating ideas the AG doesn't much like. Hell, even if the Montana  AG slept through Con Law he would know you can't stop publication of the The Pentagon Papers if he had seen Tom Hanks and Meryl Streep in The Post. The vegans went to class and saw the movie, trust me.  Here is part of what they said in response:

This letter responds to the cease-and-desist demand the Department of Justice sent to the Daily Montanan on August 21, 2024. The demand refers to an article published August 16, 2024, regarding a Montana Highway Patrol (“MHP”) report detailing anonymous employee responses to a climate assessment survey (“the Survey”), and commands the Daily Montanan to immediately take down the Survey. The demand appears to attempt to silence and intimidate reporters. The Survey is a government document, generated using tax dollars, possessed by a government agency, and necessarily subject to the right to know. The article is prototypical investigative journalism protected by the First Amendment. The Attorney General’s apparent desire to suppress unflattering commentary regarding his management of MHP does not justify legal threats that jeopardize the free press in Montana.

I'm not sure the Daily Montanan's Editor is a vegan.  He may have had a few burgers in his day.  And he spells his first name wrong.  Here is what he said just this morning as he announced that the Montanan would not be unpublishing the report the AG doesn't like:

When we obtained a copy of the survey, we published it. If you don’t believe anything I am saying [about bad morale in the MHP office], go ahead, read it for yourself. But Knudsen doesn’t want you to read it. He’s threatening to sue the Daily Montanan for not removing it from our website (it remains there still). If he didn’t want to bring attention to the nearly 400-page document, threatening to sue for its removal seems like a guarantee that people will want to read it. You know, that ol’ thing about the forbidden fruit.

It says a lot about Knudsen’s administration that he would work so hard to stop the publication of an unflattering, even damning report, rather than just do the hard work of restoring confidence from the people the rest of us rely on for public safety. Moreover, Knudsen doesn’t appear very familiar with how his department is spending money because the survey’s entire purpose was to make it so that it could be shared anonymously — and shared widely. The survey was conducted with public funds, about a public agency, and involves public employees. All of those things would certainly seem to trigger certain provisions in the Montana Constitution, the same document that he has sworn to uphold and defend.

And privacy interests, which he cited in his letter to us? Hard to do it when there are no names attached to comments. 

The Montana Attorney General’s Office routinely offers silence when it comes to questions from the press, the Daily Montanan included. The staff there seem to be too busy, too self-important to answer the press or the public, but not so busy that they can’t threaten to sue journalists. What may be even more hard to figure is why Austin Knudsen believes that threatening us will stop us. And given how many times Knudsen has lost and his seeming lack of understanding of the Montana Constitution, I like our chances.

Whether they are vegans or not, I would advise the AG to leave these nonprofit lawyers and reporters alone.   

darryll k. jones