Freedom Of (All) The Press?

Impact of “Shelter in Place” Orders on Media Companies

Written by Aaron M. Wais and Craig C. Bradley

In today’s age, people consume their news in myriad ways: from more traditional means such as watching the nightly news to reading a wide variety of media websites.  Many of these organizations require people on the ground to report and deliver the news, and also thrive on the ability to collaborate in-person so as to deliver the news in a timely and compelling way.  Yet, as local governments across the country issue “shelter in place” (SIP) orders, media companies are left to determine whether these orders allow them to keep operating as they have, or if such collaboration will have to move into Slack chats, video conferences, and conference calls and whether other essential parts of their business will have to shutter for the time being.  And because SIP orders have been issued by city, county, and state governments, there exists a patchwork of requirements and enforcement mechanisms that must be analyzed and adhered to.

The good news is that most SIP orders issued so far have included news and media organizations as “essential” businesses, which may continue operating as normal, in recognition of the need for robust and timely dissemination of information related to the COVID-19 pandemic.  However, unlike many other “essential” businesses listed in SIP orders, such as healthcare companies and gas stations, the media industry is not so easily defined.  For example, numerous prominent media outlets outside of what may be considered traditional news-gathering have been publishing COVID-19-related content online — are these companies at risk of being noncompliant with a SIP order if they continue to operate as-is?

SIP orders have tended to define media companies broadly.  For example, orders issued in Northern California and Florida define such companies as: “Newspapers, television, radio, and other media services”.  Los Angeles “Safer at Home” order adds “podcasts” to that list.  New York, the most recent state to announce a SIP order, counts “media” among the “essential services” not subject to a restrictive “remain at home” mandate.  New York also provides a process for businesses not listed in official guidelines to request they be certified as “essential.”

California’s state-wide “Stay Home” order incorporates restrictions from the Federal Government’s “Critical Infrastructure” guidelines.  That SIP order requires that residents stay at home unless, among other exceptions, their job necessitates leaving and falls under one of the “sectors” defined in the federal guidelines.  But these guidelines do not actually list specific categories of businesses, and make no mention of news or media companies.  A Department of Homeland Security memo, issued by the Cybersecurity and Infrastructure Security Agency (CISA) the same day as California’s SIP order, presumptively fills this grey area and clarifies what types of companies qualify within each “sector.”  Notably, unlike the guidelines referenced in the California SIP order, the CISA memo is addressed specifically to the COVID-19 pandemic and not disasters more generally.  The CISA memo lists “workers who support radio, television, and media service” as “essential.”  Presumably the federal guidelines and CISA memo may also influence future SIP orders.  Our more in depth discussion of the overlap of the Los Angeles and California SIP orders can be found here.

There is no precedent for these types of SIP orders and governments and companies are wrestling with their interpretation on the fly.  The SIP orders appear to define “media services” so broadly that they encompass entities even beyond traditional news companies.  Given the underlying rationale for SIP orders, though, it would be prudent for media companies without any news reporting functionality to proceed cautiously and seek legal advice when weighing whether to maintain the status quo.  The varying language of SIP orders, the discretion of enforcement agencies, and the rapidly evolving situation on the ground, means there will likely continue to be uncertainty over the next several weeks.

Importantly, businesses deemed “non-essential” under SIP orders generally may keep operating under restrictions limiting the number of employees reporting to work.  Under the Santa Clara County SIP order, for example, such companies are limited to “minimum basic operations” at their facilities, which includes the ability for employees to facilitate other employees working from home.  This may be more helpful to some media companies than others that regularly conduct off-site operations not easily done outside of their offices or employees’ homes.

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