Brief Urges Minnesota Supreme Court to Reject Attempt to Compel Disclosure of Reporters’ Communications in Major Case for Press Freedom

ST. PAUL, Minn. — The American Civil Liberties Union and the ACLU of Minnesota, together with the law firm Simatic & Biersdorf, PA, filed a brief in the Minnesota Supreme Court today on behalf of nonprofit media organization Unicorn Riot, which seeks to quash a subpoena from oil company Energy Transfer stemming from the 2016 Dakota Access Pipeline (DAPL) protests. The brief asserts that the First Amendment and the Minnesota Free Flow of Information Act (MFFIA) protect Unicorn Riot from Energy Transfer’s attempts to subpoena sensitive communications, recordings, and other unreleased newsgathering materials from DAPL protests.

“The First Amendment and Minnesota’s shield law protect journalists from attempts to use the courts to compel the disclosure of sensitive newsgathering information. A free press and the free flow of information to the public both depend on journalists’ ability to capture content and tell stories without fear of costly litigation that puts their unpublished materials at risk,” said Matthew Segal, senior staff attorney with the ACLU’s State Supreme Court Initiative.

Unicorn Riot journalists reported on the ground from the Dakota Access Pipeline protests, gathering and publishing first-hand accounts. In 2019, pipeline operator Energy Transfer sued individuals and entities that were allegedly involved with the protests.

In 2021, as part of the lawsuit, Energy Transfer issued subpoenas to Unicorn Riot and one of its member journalists seeking vast disclosures of unpublished materials. Unicorn Riot refused to surrender its material, and in 2022 – roughly six years after the protests – Energy Transfer moved to compel disclosure in Minnesota. In its motion papers, Energy Transfer alleged that Unicorn Riot had trespassed on its property while covering the protests. The Minnesota Court of Appeals earlier this year held that the Minnesota Free Flow of Information Act prohibits the compelled disclosure of newsgathering materials. Energy Transfer sought review at the Minnesota Supreme Court, which agreed to hear the case.

​​“This case is about more than just our small media organization. It represents the broader fight for the right to gather and disseminate information freely, without corporate interference — an essential cornerstone of press freedom,” said Unicorn Riot.

The brief highlights that Energy Transfer seeks to conjure an unwritten exception to the MFFIA. The brief explains that the MFFIA contains only two exceptions to the law that would allow compelled disclosure — one for certain criminal cases and one for certain defamation cases — and because neither exception applies here, the Minnesota Supreme Court should uphold the court of appeal’s reading of the law.

The purpose of the Minnesota Free Flow of Information Act, the brief continues “is to promote newsgathering and publication, and that purpose would be severely undermined if the statutory shield were to evaporate whenever, in the course of newsgathering, a reporter allegedly trespasses, speeds, jaywalks, or double-parks.”

“Protecting journalists and their sources makes all of us better informed and better members of our community,” said ACLU-MN Staff Attorney Alicia Granse.

The brief is online here: https://www.aclu.org/documents/energy-transfer-lp-v-unicorn-riot-respondents-brief