In December of 2022, a Minnesota district court judge issued an order in ongoing litigation between Energy Transfer, LP and Greenpeace International related to 2016-era protests aimed at shutting down the Dakota Access Pipeline. The order pertained to subpoenas served on the media activist organization Unicorn Riot, which had live-streamed much of the pipeline protest activity. Through its subpoenas, Energy Transfer sought the production of video recordings and related documents. Unicorn Riot refused to produce the materials, by asserting “shield law” protections under Minnesota’s Free Flow of Information Act (MFFIA).
The December 16 district court order held that Unicorn Riot was “news media” covered by the MFFIA, and that Energy Transfer had failed to show that document production could be achieved via a statutory exception to that law. (“Plaintiff has failed to show by clear and convincing evidence that the statutory exception applies.”)
Energy Transfer then appealed to the Minnesota Court of Appeals. FCR, along with journalist Tony Webster and the Reporters’ Committee for Freedom of the Press, all submitted participation requests to file amicus briefs. FCR’s amicus participation request can be found here, and it focused on defending the court’s holding that Unicorn Riot constituted “news media’ under the MFFIA.
On March 21, 2023, the Minnesota Court of Appeals turned away the appeal by Energy Transfer on the grounds that it was premature, but noted that “[a]ppellants may seek relief of the December 16, 2022 order” at some future point.
UPDATE 1: After developments in the underlying case, the Minnesota Court of Appeals took up Energy Transfer’s appeal, and FCR filed its amicus brief. FCR’s brief focused on ensuring that the MFFIA was read broadly enough to cover non-traditional media — including the live-streaming and web-based publication methods used by Unicorn Riot.
The internet, with its global reach, can provide non-traditional content-creators with audiences that rival those of “legacy” media outlets, given the right set of circumstances. And beyond the internet, a whole host of lower-grade technologies co-exist with traditional media networks — everything from Xerox paper-based “zines” to low-wattage, unlicensed radio stations.
These platforms are used by all manner of journalistic and editorial entities — entities that gather, curate, and edit information for presentation to audiences large and small. And in doing so, those persons fall within the plain language scope of the MFFIA — meaning that they are afforded its “shield law” protections, unless a statutory exception applies.
The Minnesota Legislature passed the MFFIA in the late 1970s in response to the journalistic needs of newspapers, broadcast entities, and other media outlets. After the Watergate scandal (which the press had a key role in uncovering), lawmakers across the nation recognized the importance of media independence through the enactment of journalist “shield laws” like the MFFIA.
The Unicorn Riot case presented the first opportunity for the Minnesota Court of Appeals to address whether the MFFIA applied to non-traditional media. Although this was not the central question for the Court’s review, the issue hung in the background, since briefing by Energy Transfer characterized members of Unicorn Riot as “purported newsgatherers” to which the MFFIA “does not apply.”
By filing a brief in the Unicorn Riot case, FCR sought to ensure that the MFFIA’s protections extend to all journalistic voices participating in today’s media landscape.
UPDATE 2: On May 6, 2024, the Minnesota Court of Appeals issued its decision in the Unicorn Riot case, and held that “the protection of the Minnesota Free Flow of Information Act (MFFIA) … [is] not limited only to newsgathering information obtained by means of lawful, nontortious conduct” and that a “court may not require [a] third party to produce a privilege log or submit information for in camera inspection that is privileged under the MFFIA and does not fall within a statutory exception.”
Since the court’s ruling encompassed Unicorn Riot, it effectively recognized that the MFFIA’s broad language covers both traditional and non-traditional publishers alike.
UPDATE 3: On June 5, 2024, Energy Transfer LP appealed the decision of the Minnesota Court of Appeals to the Minnesota Supreme Court.
UPDATE 4: On August 6, 2024, the Minnesota Supreme Court granted review of the Minnesota Court of Appeals decision in the Unicorn Riot case.
UPDATE 5: On August 20, 2024, FCR submitted a request for leave to file an amicus brief in the Minnesota Supreme Court’s review of the Energy Transfer, LP v. Greenpeace International case.
UPDATE 6: On August 29th, the Minnesota Supreme Court granted FCR leave to file and amicus brief in the Energy Transfer, LC v. Greenpeace International case.
