ST. PAUL — Justices of the Minnesota Supreme Court on Tuesday appeared skeptical of an energy company’s desire to obtain unpublished information gathered by a news organization.
Energy Transfer LP is suing Greenpeace International over protesters’ attempts in 2016 to stop the Dakota Access Pipeline, a thousand-mile underground channel built to transport crude oil.
Unicorn Riot, a Minnesota-based news organization, embedded itself with protesters and provided some of the only inside news at the time, including livestreams of police and protesters clashing and news stories documenting the effort.
Energy LP contends that Unicorn Riot has evidence in its underlying lawsuit against Greenpeace and is entitled to that information — but a state court and the Minnesota Court of Appeals both said Unicorn Riot is protected by the Minnesota Free Flow of Information Act, a 1973 law meant to protect the information journalists gather.
On appeal to the state’s high court, attorney Richard Snyder of Fredrikson & Byron, who represents Energy Transfer, said that protection should not extend to reporters’ unlawful activities.
“There’s evidence in the record, for sure, that Unicorn Riot was trespassing on the property,” Snyder said Tuesday. “It was standing side-by-side with the protesters as they breached the fence line and went on to the property and threatened workers.”
While several reporters with Unicorn Riot were arrested during the protests, those charges were eventually dropped.
Snyder asked the justices to remand the case and order the trial court to consider Unicorn Riot’s conduct during the protest as an exception to the Free Flow act.
As written, the law allows for two exceptions: one for criminal charges and another for a civil defamation claim.
In light of the dropped charges, exceptions and the fact that Energy Transfer is not suing Unicorn Riot, the justices seemed reluctant to side with the energy company.
“Mr. Snyder, the statute seems pretty straightforward,” Associate Justice Sarah Hennesy said. “Why isn’t this an issue for the Legislature? It sounds like you’re asking us to legislate.”
Snyder replied that the court should define the scope. “Yes, there could be some legislation on this, and maybe that’s going to be ultimately necessary. But absent that, this court does have the authority,” he said.
It’s not relevant, he argued, that officials dropped the criminal charges against Unicorn Riot’s journalists.
“There’s discretion on whether people are prosecuted all the time but it doesn’t change the fact that there’s some underlying conduct here that invaded the rights of my clients,” Snyder said.
However, the trial court found that Unicorn Riot’s actions were akin to journalists embedding with a military unit.
“Does that not answer the question for us?” McKeig asked.
Associate Justice Karl Procaccini also appeared skeptical of Snyder’s arguments.
“So, we assume you’re right, and that Unicorn Riot invaded the rights of your client. To me, the remedy for that invasion is a tort lawsuit,” he said. “It’s a trespass lawsuit to remedy whatever damage was caused by that tortious conduct.”
Energy Transfer has attempted to paint Unicorn Riot’s reporting as being outside the mainstream, calling the media organization far-left several times in its brief. Snyder made several comments Tuesday, too, attempting to distinguish between traditional newsgathering by established media organizations and the efforts of citizen journalists.
In the United States, there is no governing body that credentials journalists, and courts generally have applied the same reporter safety nets for traditional news media and alternative news outlets like Unicorn Riot. Prosecutors have been reluctant to charge reporters for crimes like trespassing while they’re engaging in newsgathering activities.
According to its website, Unicorn Riot is a decentralized media organization that seeks to illuminate alternative perspectives. Many of its stories focus on injustices related to policing, racism and capitalism.
Matthew Segal of the ACLU represented Unicron Riot on Tuesday. He argued that a ruling in favor of Energy Transfer would amount to an unwritten test for an unwritten exception.
“That’s not statutory interpretation, it’s statutory drafting,” he said.
Energy Transfer misunderstands what the Minnesota Free Flow of Information Act is, Segal told the court.
“All it does is promote the free flow of information by protecting unpublished news gathering materials, except in rare cases,” Segal said. “Those circumstances simply are not present when a civil plaintiff goes fishing for unpublished materials gathered by a third-party journalist.”