June 19, 2014


Ms. Carolyn Henderson Allen
Dean of Libraries
University of Arkansas
365 N. McIllroy Avenue
Fayetteville, AR 72701-4002

Re: Washington Free Beacon
Dear Dean Henderson Allen:
Covington & Burling represents the Washington Free Beacon,
and I write in response to your June 17, 2014 letter, in which you demand
that my client remove audio recordings from its website and state that you
are suspending the right of Free Beacon’s journalists to conduct research in
your public library. At the outset, I find it stunning that you would seek to
censor the dissemination of lawfully acquired information that is clearly in
the public interest, given the historic role that libraries long have played in
fostering free expression and the broad dissemination of information. In
addition to being entirely inaccurate as a matter of both law and fact, your
letter is a clear assault on the First Amendment principles that are
fundamental to libraries and to journalism.
Your letter fails to provide a single reason why the Free Beacon
cannot continue to publish this information. Your staff provided the
recordings to the Free Beacon without any condition, apprised the Free
Beacon of no “policies” limiting their dissemination, and required no
agreement to be signed prior to receiving them. You now assert that the Free
Beacon violated the “policies of Special Collections,” yet you fail to quote or
cite these “policies,” or explain how they bind my client. You mention a
“permission to publish form,” but the Free Beacon never signed this form, nor
has it ever agreed to sign it. Your staff unconditionally provided the audio
recordings to the Free Beacon and the Free Beacon did not agree to any
restrictions on their use. Therefore, the Free Beacon was free to publish this
information, and continues to be free to do so.

Ms. Carolyn Henderson Allen
June 19, 2014


Your claim that the Free Beacon violated “the University’s
intellectual property rights” is equally perplexing. You have not
demonstrated or even asserted that the University owns the copyright in
these recordings. And even if the University did own the copyright, the Free
Beacon’s use of the materials undoubtedly would constitute fair use. As you
know, the newsworthiness of information greatly increases the likelihood
that its republication constitutes fair use. It is hard to conceive of
information that is more newsworthy than details about the career one of the
nation’s most prominent political figures. Additionally, when determining
whether a publication constitutes fair use, courts heavily weigh the effect of
the use on the market for the copyrighted work. To our knowledge, there is
no “market” for this material, as university libraries do not typically sell
access to their collections. Any reference to a claim based on your
“intellectual property” is patently frivolous.
Your demand that the Free Beacon “[i]mmediately remove the
audio recordings” from its website is entirely unprecedented and particularly
troubling. Post-publication restraints on the press are among the most
pernicious intrusions on free speech. In addition to lacking absolutely any
legal basis, your demand flies in the face of the values that we expect from
our libraries. As the American Library Association states, it has “long been a
core value of the ALA and of librarians to preserve, protect, and defend
people’s First Amendment right to freedom of expression and the corollary
right to receive and consider ideas, information, and images.” I urge you to
set aside whatever motivations caused you to write this letter, and to adhere
to the ALA’s commitment to free expression and access to information.
Your purported suspension of my client’s journalists from your
public library for the sole reason that they published audio recordings is
similarly invalid and highly inappropriate. You cite absolutely no policy that
gives you the unilateral authority to exclude journalists from a public library
based on the content of the material that they publish. In addition to clearly
violating the First Amendment, this suspension is contrary to Arkansas state
law. The Arkansas Freedom of Information Act requires any “agency wholly
or partially supported by public funds or expending public funds” to provide
its records to the public. Ark. Code Ann. § 25-19-103(5)(A). The right applies
to both written and in-person requests for documents. Ark. Code Ann. § 25-
19-105(a)(2)(B). The open records statute does not contain an exemption for
journalists who publish information that seems to upset public officials. My
client fully intends to continue to conduct research at your library, as your
“suspension” of my client’s journalists clearly violates the First Amendment
and the state’s records laws.

Ms. Carolyn Henderson Allen
June 19, 2014


In short, I strongly urge you to reconsider your erroneous and
damaging conclusions about my client’s right to free speech, and your
decision to illegally prohibit the Free Beacon from accessing public records
solely because you disagree with the material that the Free Beacon
Please direct any further correspondence about this matter to
the undersigned.
Very truly yours,

Kurt Wimmer

cc: Mr. Matthew Continetti
Scott Varady, Esq.
G. David Gearhart, Chancellor
Sharon Gaber, Provost and Vice Chancellor for Academic Affairs
Tim Nutt, Head, Special Collections

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