The New Mexican, Inc. v. Public Service Company of New Mexico

Amicus brief filed by the Reporters Committee for Freedom of the Press and 24 media organizations

Court: New Mexico Supreme Court

Date Filed: March 16, 2020

Update: On April 9, 2020, the New Mexico Supreme Court issued an order denying the New Mexican’s writ petition. On appeal, the Reporters Committee and 20 news media organizations filed a similar friend-of-the-court brief with the New Mexico Court of Appeals in support of the newspaper on April 27, 2021. On Sept. 7, 2022, the appeals court affirmed the district court’s decision.

Background: In 2015, The New Mexican newspaper filed a request under the New Mexico Inspection of Public Records Act with the state’s Public Regulation Commission. In fulfilling the request, the Commission inadvertently disclosed files it believed to be confidential. Once the PRC realized this it attempted to get the documents back.

The newspaper refused to return the documents, and the PRC sought an injunction against the New Mexican to prevent it from publishing them. The Public Service Company of New Mexico and BHP Billiton New Mexico Coal, Inc., two private companies whose information was contained in the documents, also joined the case on the side of the PRC, but the district court sided with The New Mexican, saying the prior restraint would violate the First Amendment.

The New Mexican ultimately published the documents and filed a counterclaim against PNM and BHP, as well as the PRC, seeking damages and attorneys’ fees. Among other claims, the newspaper’s attorneys argued that the suit violated the First and Fourteenth Amendments of the U.S. Constitution, the state public records law, and the New Mexico Constitution. The New Mexican separately settled with PRC.

The district judge dismissed the newspaper’s claims against the remaining companies, citing the Noerr-Pennington doctrine, originally an antitrust doctrine that has since been extended to protect various forms of petitioning the government, including filing litigation. In response, The New Mexican filed an emergency writ petition asking the New Mexico Supreme Court to consider its case.

Our Position: The New Mexico Supreme Court should accept the case and reverse the lower court’s dismissal of the New Mexican’s claims.

• The companies’ request for a prior restraint against The New Mexican is not legitimate petitioning activity shielded by the Noerr-Pennington doctrine, which is designed to protect First Amendment rights, not immunize attacks on those rights. Notably, the doctrine does not apply to “sham” lawsuits, which are those that are 1) “objectively baseless,” meaning that “no reasonable litigant could realistically expect success on the merits” and 2) brought with a subjectively improper motive.
• The district court’s dismissal of The New Mexican’s counterclaims will inhibit news reporting on matters of public concern, and open news organizations up to additional “sham” lawsuits intended to stifle their work.

Quote: “[T]he district court’s application of the Noerr-Pennington doctrine in this case leaves The New Mexican — and potentially all news organizations in New Mexico — exposed to chilling lawsuits with no recourse. Media outlets are frequently the target of meritless lawsuits, including attempts to obtain unconstitutional prior restraints. Even when the attempt to obtain a prior restraint fails, these lawsuits take up news organizations’ time and impose significant costs on them.”

Related: In November, Reporters Committee attorneys filed a friend-of-the-court brief in City of Fullerton v. Friends for Fullerton’s Future, a case in which city officials accused a local blogger of “hacking” to access privileged records that the city mistakenly shared with the journalist in response to a public records request. The city sought to keep the blog from publishing information from the sensitive documents, a move Reporters Committee attorneys called an “extraordinary prior restraint.”