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University legal clinics, professors form national network to advance free speech and government transparency

WASHINGTON – The Reporters Committee for Freedom of the Press and Yale Law School’s Media Freedom and Information Access Clinic announced today the launch of the Free Expression Legal Network, a coalition of law school clinicians and academic non-clinicians who provide pro bono legal support for public interest journalism.

“Reporters today face many obstacles in covering public officials and public issues, just as they are confronted with a dramatic resources crunch,” said Bruce Brown, executive director of the Reporters Committee and co-chair of the FELN steering committee. “Law school clinics, academics, nonprofits, and funders are stepping up to meet this growing need for pro bono legal services. We are excited by the response of this community to these challenges.”

At its launch, FELN includes 22 law school clinics that provide students hands-on experience representing journalists and documentary filmmakers, among others. The network also includes two dozen law professors who frequently write and research in the areas of free expression, media law and government transparency.  The clinicians and professors are joining in a network to promote collaboration and to better meet this challenging environment for transparency and free expression. 

FELN members have handled a diverse array of cases in recent years. For example, members represented a nonprofit news organization seeking public records about officials’ actions surrounding a securities fraud scandal; successfully challenged an unconstitutional gag order against a local journalist in Bakersfield, California, in a closely watched case involving the indictment of a local politician; advised filmmakers on a documentary about San Diego’s LGBTQ history; conducted trainings on how to use government open records laws;and submitted an amicus brief in a case in which the court was preparing to sentence a government employee who disclosed classified information of significant public interest to a journalist.

“FELN will allow new clinics to lean on the expertise of more established programs, while helping members collaborate on projects and defend the constitutional rights of free speech and a free press,” said David A. Schulz, co-director of Yale Law School’s Media Freedom and Information Access Clinic and co-chair of the FELN steering committee. “The network will strive to be an integral element in the continued protection of an informed citizenry and the free flow of information that is essential to a government accountable to the people.”

The network grew out of discussions between the Reporters Committee, a national nonprofit offering free legal services and resources to journalists, and the Yale MFIA clinic. Other members of the steering committee include Mark Jackson, director of the Cornell Law School First Amendment Clinic; Patrick Kabat, adjunct professor at Cleveland-Marshall College of Law; Heidi Kitrosser, the Robins Kaplan Professor of Law at the University of Minnesota Law School; and Jonathan Manes, director of the Civil Liberties and Transparency Clinic at the University at Buffalo School of Law.

The Reporters Committee provides day-to-day support for FELN and Reporters Committee lawyers direct the First Amendment Clinic at the University of Virginia Law School.

Yale’s MFIA Clinic organizes an annual conference on free press and government accountability, where FELN members share teaching and practical tips and learn from other experts in the field. This year’s “Access and Accountability Conference” will be Oct. 4–5 in New Haven, Connecticut.

More information about the network is available at FreeExpression.law.

The full list of members is as follows:

Albany Family Violence Litigation Clinic

Albany Health Law Clinic

Albany Immigration Law Clinic

American University Glushko-Samuelson IP Law Clinic

ASU First Amendment Clinic

BU/MIT Technology Law Clinic

Buffalo Civil Liberties & Transparency Clinic

California Western New Media Rights

Case Western Reserve Intellectual Property Venture Clinic

Cornell First Amendment Clinic

Duke First Amendment Clinic

Harvard Cyberlaw Clinic

Michigan State University First Amendment Law Clinic

NYU Technology Law & Policy Clinic

UC-Berkeley Samuelson Law, Technology & Public Policy Clinic

UCI Intellectual Property, Arts, and Technology Clinic

UCLA Documentary Film Legal Clinic

UCLA Scott & Cyan Banister First Amendment Clinic

University of Virginia First Amendment Clinic

Vanderbilt First Amendment Clinic

Washington University First Amendment Clinic

Yale Media Freedom & Information Access Clinic

A link to the formal press release is here. 

Yale MFIA Clinic to host conference on accountability and the Trump presidency

The Media Freedom and Information Access (MFIA) Clinic at Yale Law School will host its annual Access and Accountability Conference on October 4–5, 2019. This year’s conference will once again bring law school clinicians from around the country together with investigative journalists, academics, practicing lawyers, and law students to explore some of today’s most urgent transparency and accountability issues.

The conference will focus on the laws, policies, and actions that obstruct the ability of journalists and others to ferret out the news needed to hold governments accountable, and to develop litigation strategies and legislative responses to overcome them.

On October 4, expert panels will discuss impediments to investigative newsgathering, law enforcement accountability, algorithmic transparency, and public understanding of issues surrounding national security and the surveillance state. The day will also feature a debate on whether the Freedom of Information Act is serving democracy well, and offer competing views on how governmental institutions and historic practices designed to ensure public accountability are functioning in an era of technological change, “fake news,” and the Trump presidency.

The second day will take a deep dive into accountability issues that might effectively be addressed by law school clinics. The day will begin with a keynote address by Reuters reporter Dan Levine on “The Grim Impact of Judicial Secrecy.” Levine will report the findings of a year-long Reuters investigation into the practices of sealing records and issuing protective orders in federal courts, and the impact of these practices on public health and safety. Breakout panels will consider specific legal strategies to promote access to health and safety information routinely barred from public inspection in civil litigation. Subsequent panels will address steps that law school clinics can take to leverage their resources in aid of local journalists, and actions that might improve access to records under the Freedom of Information Act, including litigation strategies and the development of facts needed to promote a legislative response.

The conference will conclude with a presentation on the launch of the Free Expression Legal Network (FELN), a newly created network of law school clinics, academics, and practitioners (including nonprofits) across the country that seeks to promote and protect free speech, free press, and the flow of information. The network will focus on government accountability, transparency, and freedom of expression to encourage an informed and engaged citizenry. The discussion will highlight the services FELN provides to local journalists and news organizations that lack access to legal resources.

To learn more about the conference visit the registration page.

Harvard Cyberlaw Clinic files amicus brief arguing for broader access to government databases

The Harvard Cyberlaw Clinic filed an amicus brief (pdf) in March in the United States Court of Appeals for the Ninth Circuit on behalf of a group of data journalists and media organizations, advocating for a different approach to Freedom of Information Act (FOIA) requests relating to databases. The brief supports the Center for Investigative Reporting in an appeal arising out of a FOIA request submitted by CIR to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).

CIR requested data from ATF’s firearm trace database, seeking records about firearms that were originally owned by law enforcement. In its denial of the FOIA request, ATF cited the Tiahrt Amendment, a rider contained in annual appropriations acts from 2003 to 2012. The Tiahrt Amendment prohibits disclosure of firearm trace information in response to FOIA requests, but allows the release of “statistical aggregate data.” Unfortunately, some courts have held that agencies are not required to release aggregate data that they have not already compiled because it constitutes production of a “new record,” which is not required under FOIA.

The lower court ruled in favor of ATF,  finding that CIR’s request would require ATF to create a new record. A Ninth Circuit decision on this case has the potential to shape FOIA jurisprudence relating to databases, which will have wide-reaching effects since more and more records are being stored in database format.

The Cyberlaw Clinic’s amicus brief focused on whether searching, filtering, sorting, and other forms of database manipulation constitute the creation of a new record. Amici explain how databases like the one used by ATF are structured, and how a database can be queried to yield information in various arrangements. While courts have previously analyzed databases as analogues to massive filing cabinets storing thousands of records, amici show that a database is like no filing cabinet that has ever existed. In fact, databases may have more in common with the famed Room of Requirement at Hogwarts than with how documents were stored on paper.

The amici include sixteen individual data journalists and professors of journalism, and five media-related organizations. All of them have a significant interest in a strong right of access to records held in government databases based on their extensive experience with government transparency processes, including FOIA, and with the technical aspects of working with structured data, including databases.

The media-related organizations are:

  • Investigative Reporters and Editors, a grassroots nonprofit organization dedicated to improving the quality of investigative reporting.
  • The Media Law Resource Center, a non-profit professional association for content providers in all media, and for their defense lawyers, providing a wide range of resources on media law and policy issues.
  • MuckRock, a journalism and government transparency non-profit that has helped thousands of requesters around the United States better file, share, and understand Freedom of Information requests.
  • Freedom of the Press Foundation, a non-profit organization that supports and defends public interest journalism focused on transparency and accountability.
  • The Reporters Committee for Freedom of the Press, an unincorporated nonprofit association whose attorneys provide pro bono legal representation, amicus curiae support, and other legal resources to protect First Amendment freedoms and the newsgathering rights of journalists

The individual journalists include Matt Carroll, Meredith Broussard, Dhrumil Mehta, Cheryl Phillips, Dan Keating, Lucia Walinchus, and Zita Arocha.

By focusing on real-world uses of databases, amici show that there is no practical difference between accessing full records from a database and compiling a list of entries. Amici then point out that the content-index distinction has led to murky jurisprudence in the past and continuing to apply this distinction to databases would require arbitrary line-drawing and lead to absurd results. In the database context, almost any presentation of the data is a record that already exists, and agencies should be required to produce records accordingly.

The Cyberlaw Clinic is honored to have represented these amici and hopes the Ninth Circuit Court of Appeals will seriously consider their input. The brief was written by Clinical Instructor Mason Kortz, Clinical Instructional Fellow Kendra Albert, and Spring 2019 clinical students Alena Farber, Ariel Hoffman, and LeHeng Li.

This post originally appeared on the Cyberlaw Clinic’s blog on March 29, 2019. As of August 2019, the case is still pending.

Yale MFIA Clinic’s stand against ‘secret law’ unseals court opinion

The Media Freedom and Information Access Clinic (MFIA) at Yale Law School has prevailed in an important skirmish in the ongoing battle against “secret law.”

Acting on behalf of New York Times national security reporter Charlie Savage, MFIA convinced the United States Court of Appeals in Washington, D.C., to make public previously sealed portions of an opinion issued last year in a case filled with many unusual twists and turns.

The issue involved the classified portions of a May 2018 judicial opinion in Doe v. Mattis that the court sealed from public inspection. The redactions were so extensive that it was impossible to determine the court’s basis for rejecting the government’s theories about executive branch power in the case. MFIA argued that providing a ruling while withholding the court’s legal reasoning violates the public’s First Amendment right of access to judicial records.

The reliance on redactions to remove classified facts created a form of secret law because it concealed the legal rule the court used to determine their reasoning in the case, says MFIA legal fellow Charles Crain.

“How can you have a society where people don’t know what the law is?” asked Crain. “The very notion of ‘secret law’ is repugnant to our constitutional form of government and is prohibited by the First Amendment.”

Times reporter Savage had covered the case extensively as it unfolded, and found the court’s redactions troubling. Doe v. Mattis has potentially far-reaching implications for the Fifth Amendment rights of Americans who have dual-citizenship status with another country. The case involved a dual U.S./Saudi citizen who was captured while allegedly fighting for ISIS in a Syrian combat zone and was turned over to the U.S. government, which held him in an Iraqi detention facility for over a year with no charges brought against him.

The case presented many thorny legal issues, including whether the U.S. government could forcibly hand over a U.S. citizen to the custody of another country against his will. The effort by the American Civil Liberties Union (ACLU) to defend the rights of the citizen/detainee, initially referred to as John Doe, itself raised legal issues because the detainee had not asked for their representation. The broader implications of the case concerned the extent of the U.S. government’s national security powers. It raised the question of whether a U.S. citizen caught on the battlefield of a foreign war, for which U.S. involvement had never been approved by Congress, could nonetheless be deemed an enemy combatant. Would he be subject to wartime military punishment, or must he instead be processed through the criminal justice system?

The ACLU initially filed a habeas corpus lawsuit in Washington, D.C. on the detainee’s behalf. After winning court approval to proceed, the government was prevented from transferring the detainee to a Saudi prison. The Court of Appeals agreed with the ACLU that a citizen could not be forcibly handed over to a foreign government against his will with no criminal charges against him pending there.

The Court of Appeals opinion, however, was so heavily redacted that it was entirely unclear why the government’s claim of authority to force the detainee’s transfer was rejected. When most of the classified facts about Doe became public — including his dual U.S./Saudi citizenship, that his real name is Abdulrahman Ahmad Alsheikh, and his eventual release to the nation of Bahrain – MFIA moved to unseal the court’s opinion to prevent the creation of “secret law.”

According to Times reporter Savage, there is real value in revealing the court’s reasoning in this case. Portions of the government’s argument to the appellate court contended that U.S. citizens with dual citizenship have fewer rights than sole-U.S. citizens in certain contexts, and knowing why the court rejected this position may have important implications for future cases. The Doe v. Mattis opinion also may shape the government’s own understanding of its wartime powers. The legal basis for resolving such important issues should not be concealed from the public.

Savage credits “the vision and hard work of the MFIA clinic at Yale Law School” with this success in the fight against secret law.

By Leah Ferentinos

UVA Law School relaunches First Amendment Clinic

Charlottesville, Va. – The Board of Trustees of the Thomas Jefferson Center for the Protection of Free Expression has decided to donate the Center’s assets of over $1 million to relaunch the First Amendment Clinic at the University of Virginia School of Law. The clinic will be taught by attorneys at the Reporters Committee for Freedom of the Press, a national non-profit based in Washington, D.C., that provides free legal services to journalists. The Thomas Jefferson Center’s other activities will be concluded.

The Thomas Jefferson Center is a non-profit, nonpartisan institution in Charlottesville. Its founding director was the late Robert M. O’Neil, former UVA President, Law School professor and longtime director of the First Amendment Clinic. The UVA First Amendment Clinic is one of the oldest of its kind in the country and had been on a brief hiatus.

Bruce W. Sanford, chair of the Thomas Jefferson Center’s Board and a prominent First Amendment lawyer at Baker Hostetler in Washington, D.C., said, “The relaunching of a well- funded First Amendment Clinic operated by UVA Law School and taught by the Reporters Committee continues the Thomas Jefferson Center’s longstanding relationship with both organizations and promises to provide a lasting legacy for the Center’s mission and work.”

“From its inception, the Thomas Jefferson Center’s mission was to advance First Amendment advocacy,” said Mr. Sanford. “Our Board believed that a growing engine of that advocacy is clinical education, and that it was time to focus the use of the Center’s assets on a revived First Amendment Clinic at UVA Law, powerfully strengthened by a partnership with the Reporters Committee.”

UVA Law School Dean Risa Goluboff said the school has long been an important center of First Amendment scholarship and clinical education.

“The First Amendment Clinic will teach the next generation of lawyers and advocates to advance these crucial values, and we are grateful to the Thomas Jefferson Center for its support,” she said.

Bruce Brown, executive director of the Reporters Committee and co-director of the Clinic from 2010 to 2017, said, “We are excited to provide crucial needs-based legal help to journalists and documentarians throughout the region. At the same time, we are grateful to the board of the Thomas Jefferson Center for creating new opportunities for us around First Amendment scholarship and educational programming by tying us even more tightly to UVA Law School.”

Read UVA Law School’s release.

Founded in 1989 with endowing gifts from Thomas E. Worrell, Jr., his family and other donors, the Thomas Jefferson Center’s programmatic activities were devised by its founding director, Professor O’Neil. They included a wide range of initiatives aimed at deepening public understanding of First Amendment values. For instance, the Thomas Jefferson Center administered the annual Jefferson Muzzles awards, bestowed on government officials and others who had tried to stifle free expression; another award named after the late Justice William F. Brennan, Jr. for distinguished service to the First Amendment; and a partnership with the Ford Foundation called “Difficult Dialogues” about free speech on campus.

The Reporters Committee for Freedom of the Press was founded by leading journalists and media lawyers in 1970 when the nation’s news media faced an unprecedented wave of government subpoenas forcing reporters to name confidential sources. Today, its attorneys provide pro bono legal representation, file “friend-of-the-court” briefs in major media law cases, and produce other legal resources to protect First Amendment freedoms and the newsgathering rights of journalists.