Cornell First Amendment Clinic’s appellate win for The Batavian secures right to access family court proceeding

In a major win for court transparency in a New York appellate court, the Cornell Law School First Amendment Clinic recently secured the release of the transcript of an improperly closed attorney disqualification hearing that had taken place in Genesee County Family Court. The decision affirms the principle that family court proceedings are presumptively open to the press and the public.

The Clinic first sought access to the transcript nearly two years ago after local news outlet The Batavian was denied access to the family court to cover the disqualification hearing of a prosecuting attorney, who was a newly elected judge. The family court then denied The Batavian’s motion to intervene and obtain the transcript based on its view that the underlying family court neglect proceedings were confidential.

In reversing the lower court’s decision, the Appellate Division, Fourth Department reaffirmed that New York courts, “both civil and criminal, are presumptively open to the public” and that “[t]his fundamental [presumption] of public access to judicial proceedings extends equally to matters heard in Family Court.”

The Appellate Court also took issue with the lower court’s determination that the disqualification motion was no longer newsworthy simply because the prosecuting attorney who was the subject of the hearing had already been elected to a judgeship by the time the motion was heard.  The Court found that the family court “improperly ignored both the continued importance of appellant’s role in reporting accusations of ethical violations or conflicts of interest on the part of a judge and the principle that, here, it was within the province of [the news outlet] to determine whether the hearing on the disqualification motion remained newsworthy.”

“I couldn’t be happier with this decision,” said Howard Owens, publisher of The Batavian.

“It’s long been my belief that local journalists have an obligation to stand up for transparency in government and the right to public access to public business. This ruling affirms that all courts in New York are open to the public and can’t be closed to the public without a hearing and factual findings within the perimeters of the law.”

“We are thrilled by the complete victory for our client,” said Cornell Law School First Amendment Clinic student Ashley Stamegna, who delivered the oral argument to the Fourth Department in December. “Without judicial transparency we cannot ensure that justice is being done in our courts of law. The Fourth Department’s opinion reaffirms the New York courts’ commitment to providing the transparency that both the law and the public require.”

Clinic Director Mark Jackson said, “The decision affirms in clear terms two essential principles: first, a court can’t simply shut off a particular court, here family court, from access to the public and the press, as a matter of law. Second, the determination of what is ‘newsworthy’ belongs squarely with editors, not judges.”

“I’m grateful to the Cornell First Amendment Clinic for taking up this case,” said Owens. “Mark Jackson and Heather Murray recognized the principles involved in this case and all of the students — notably Ashley Stamegna — who did the hard work of researching case law, writing briefs, and presenting arguments, were dedicated to the First Amendment issues at stake.”

The Cornell First Amendment Clinic team at the appellate level included lead attorney Heather Murray, Mark Jackson, Jared Carter and students Timothy Birchfield, Christopher Johnson, and Ashley Stamegna. Murray and Cortelyou Kenney argued at the lower court with summer fellow Samuel Aber assisting with briefing.

First Amendment clinics secure access to prison for author to interview civil rights leader

The First Amendment Clinics at Arizona State University’s Sandra Day O’Connor College of Law and Cornell Law School secured access last week to in-person interviews with the incarcerated civil rights leader Jamil Al-Amin, formerly H. Rap Brown, on behalf of scholar and journalist Dr. Arun Kundnani.

Prior to the Clinics’ involvement, Dr. Kundnani had made three separate unsuccessful interview requests to the former warden of the Federal Correctional Complex, Tucson, where Mr. Al-Amin is housed.  The former warden denied access to Mr. Al-Amin in part based on his determination that an interview with the nearly-blind septuagenarian would purportedly re-elevate his status at the prison and disturb the good order of the institution.

Mr. Al-Amin played an important role in the civil rights movement as the chair of the Student Nonviolent Coordinating Committee. Decades later he was convicted of murder and sentenced to life in prison without the possibility of parole after two deputies were shot near his grocery store and one died. Mr. Al-Amin and his supporters continue to maintain his innocence.

Dr. Kundnani sought interviews with Mr. Al-Amin to complete his research for a book chronicling Mr. Al-Amin’s life. Without access to Mr. Al-Amin, there would have been a substantial risk that major events pertaining to his civil rights work, including his activities during a nineteen-month period when he operated in secret, would never be recorded.

After the Clinics demanded access on First Amendment grounds and promised to pursue legal action if the renewed request was denied, a new warden granted Dr. Kundnani telephone and video interview access to Mr. Al-Amin this spring and in-person access this summer.

“I cannot convey how grateful I am for the work the Clinics did to make this happen,” Dr. Kundnani said. “The interviews were fantastically useful, and I feel like, with the earlier phone calls, I’ve now had sufficient access with Jamil Al-Amin to do justice to his story.”

Dr. Kundnani is the author of The End of Tolerance: Racism in 21st Century Britain and The Muslims are Coming! Islamophobia, Extremism, and the Domestic War on Terror.  His book on Mr. Al-Amin aims to explore the life of the former chair of the Student Nonviolent Coordinating Committee, including his activism, convictions, and the governmental institutions that surveilled him.

“We are thrilled that our Clinic students could assist Dr. Kundnani in his work on one of the great untold stories of the civil rights era,” Heather Murray, Managing Attorney of the Cornell Clinic’s Local Journalism Project, said. “Too often prison officials around the country deny requests to prisoner interviews arbitrarily. We are pleased that Warden Catricia Howard chose to reverse the prior denials after we renewed Dr. Kundnani’s request.”

“Cases like this concerning matters of great public interest and concern demonstrate why access to prisoners is so important,” ASU Clinic Director Gregg Leslie said. “And journalists need access not only to interview prominent prisoners, but also to cover, for example, the conditions of confinement during COVID-19 outbreaks and the effectiveness of their rehabilitative programs. Dr. Kundnani’s story about Mr. Al-Amin’s life will be an important work that never should have been thwarted because previous prison officials were not willing to let a prisoner talk.”

Cornell students Salvadore J. Diaz, Steven Marzagalli, and Jamie Smith and ASU students Parker Jackson and Priyal Thakker worked on this effort. Former Cornell Clinic Associate Director Cortelyou Kenney and former ASU Fellow Laura Layton supervised the students’ work alongside Leslie and Murray.

Cornell Clinic files lawsuit in support of Vermont Journalism Trust’s efforts to obtain records

Suit challenges broad ‘litigation exemption’ of state’s public records law

MONTPELIER — Represented by Cornell Law School’s First Amendment Clinic and the ACLU, the Vermont Journalism Trust filed a public records lawsuit October 29 to obtain additional records related to the still unresolved EB-5 scandal. The State of Vermont is again withholding EB-5 records, citing the “litigation exemption” under Vermont’s Public Records Act — an exemption state agencies have relied on repeatedly to prevent public disclosure.  

Heather Murray, Managing Attorney of the Local Journalism Project, Cornell First Amendment Clinic: “Today’s suit aims to bolster VTDigger’s excellent investigative reporting on this major financial fraud by challenging the State’s broad interpretation of the litigation exemption, which may be shielding from the public valuable information about how much the State knew about this fraud prior to taking action.” Associate Clinic Director Cortelyou Kenney and law students Haylei John, Michael Mills, and Brian Marte provided critical assistance in preparing the complaint. 

Since 2012, the Vermont Journalism Trust, operating as VTDigger, has reported on the State’s oversight of the EB-5 Immigrant Investor Visa Program, a federal program designed to create jobs and stimulate foreign capital investment in low-income regions. In August of 2020, VTDigger requested documents from the Agency of Commerce and Community Development (“ACCD”), which operated the Vermont EB-5 Regional Center, to understand why the State continued to endorse the solicitation of investors for EB-5 projects despite increasing evidence of fraud. ACCD denied that request on September 29, resulting in this lawsuit.

Lia Ernst, senior staff attorney, ACLU of Vermont: “The EB-5 scandal shows the need for more transparent and accountable government, and that is exactly what Vermont’s public records law is designed to promote. When the government misapplies that law to keep the public in the dark, our state and our democracy suffer.”

The EB-5 program allows foreign entrepreneurs who make specified financial investments in the United States to apply for lawful permanent resident status. In April 2016, the State and the federal Securities Exchange Commission filed civil suits against several individuals and corporate entities alleged to have misused, in a “Ponzi-like” scheme, more than $200 million of these investor funds marked for projects in Vermont.

Timothy Cornell of Cornell Dolan, P.C., counsel for the Vermont Journalism Trust: “The State of Vermont continues to hide secrets behind narrow exemptions, frustrating the intent and purpose of the state’s public records law. The EB-5 scandal demonstrates the need to reject broad exemptions to public disclosure and do more to increase transparency in government.” This lawsuit is the latest in a series of cases brought by Vermont Journalism Trust in its ongoing investigation of the EB-5 scandal. In 2019, Mr. Cornell, the Cornell First Amendment Clinic, and Tarrant, Gillies, Richardson & Shems LLP represented the Vermont Journalism Trust in similar litigation that resulted in the release of documents the State had previously withheld.  In 2016, the ACLU & Mr. Cornell represented the Vermont Journalism Trust in public records litigation after the State withheld other EB-5 records, claiming that they fell within an exemption for records that “are relevant to litigation to which the public agency is a party of record.” That lawsuit was settled in 2017, after the state finally agreed to release the records. 

Read the complaint here.

Lubell joins Cornell clinic to support local journalists in NYC region

The Cornell Law School First Amendment Clinic has hired Ava Lubell to its newly created position of local journalism attorney for the New York metropolitan area.

In that position, Lubell will provide free legal services to local media outlets and journalists in the New York City region to aid them in their important newsgathering functions and to defend them against attempts to interfere with or suppress their free-speech rights. Lubell will perform her services as part of the Ithaca-based clinic’s innovative Local Journalism Project.

The position is funded by a grant by the Charles H. Revson Foundation, which has been an active player in strengthening local journalism that serves the public interest.

“I believe this is a first for a law school clinic,” says Clinic Director Mark Jackson. “By hiring an attorney of Ava’s caliber in a satellite position in New York City we are at one and the same time expanding our geographic scope and increasing our ability to handle an even greater number of matters for journalists across New York and other states.”

Previously, Lubell was the general counsel for Quartz and before that she served as general manager and general counsel of Slate. She is a graduate of Brown University and New York University School of Law.

“So much important work is being done by local journalists to bring vital information to their readers about matters affecting the safety, health, education, and financial well-being of their communities,” says Lubell. “These are difficult times for local news outlets. I want to use my experience in newsrooms to help these journalists get their jobs done.”

Through its Local Journalism Project, the First Amendment Clinic has represented numerous news outlets in recent years, including VT Digger, Vermont’s largest not-for-profit news platform, in its efforts to obtain vital documents related to a major fraud committed in that state. The clinic is currently defending the Geneva Believer, a news site in Geneva, New York, against a defamation lawsuit brought by a local construction company, and recently won a ruling in that case denying the company’s application to have all reporting about it removed from the site. The clinic also recently filed a lawsuit on behalf of the investigative news site Documented in its effort to obtain wage-theft information from the New York State Department of Labor.

In addition to its work on behalf of local journalists, the clinic co-counseled last month with the attorneys at the New York Times in a lawsuit compelling the Centers for Disease Control and Prevention to produce documents that could shed light on the disparate impact of the COVID-19 pandemic on people of color.

“We have been delighted with the work of the First Amendment Clinic, particularly on behalf of local news outlets that don’t have access to legal resources,” says Eduardo M. Peñalver, the Allan R. Tessler Dean and Professor of Law. “It will be a tremendous service to local journalism if the clinic can duplicate that success in areas of New York City that need it most.”

Cornell First Amendment Clinic files suit seeking wage theft documents

Cornell Law School’s First Amendment Clinic filed a lawsuit in state court on Monday seeking wage theft-related records from the New York State Department of Labor on behalf of immigration-focused nonprofit news site Documented

Documented plans to use the requested documents to create an interactive database of companies in New York that have stolen wages from employees. That database would be accessible both to low-wage workers at particular risk of experiencing wage theft and to those who support a living wage to determine which companies to avoid working for or patronizing.

Wage theft is a widespread problem in New York. In recent years, unscrupulous employers stole an estimated $965 million annually from New York employees, according to an Economic Policy Institute report

“It is crucial that records identifying employers’ bad actions be made public in a timely manner both to hold employers accountable and to further the Department of Labor’s aim of protecting workers,” said Heather Murray, Managing Attorney of the Clinic’s Local Journalism Project.

Murray pointed out that the federal Department of Labor already publicly posts the type of wage theft information that Documented is seeking, including whether violations were found, the back wage amount, the number of employees due back wages and the civil monetary penalties assessed.

Documented filed the original request under the state’s Freedom of Information Law in December 2019. The suit challenges the improper delay and constructive denial of access to the requested wage and hour records.

A copy of the Petition is available here, and the supporting Brief can be accessed here.

The Clinic is engaged in a variety of cases and projects advancing the interests of free speech and freedom of the press. Its recently launched Local Journalism Project addresses the increasing void in legal representation facing newsgatherers and media outlets that would otherwise be precluded from engaging in expensive litigation to defend their rights and ability to do their jobs. The Clinic’s work extends across disciplines, impacting journalists, researchers, human rights advocates, political advocates and other individuals targeted based on their expression.

Court denies temporary restraining order in First Amendment win for local news outlet

Cornell Clinic and Greenberg Traurig team up to defend The Geneva Believer

Cornell Law School’s First Amendment Clinic and co-counsel Greenberg Traurig, LLP scored a victory last Thursday for citizen journalist Jim Meaney and his blog The Geneva Believer. A New York judge denied a construction company’s extraordinary request for a temporary restraining order requiring 10 articles be removed from the local government-focused blog.

In its decision, the trial court expressly affirmed that a take down order would violate the First Amendment. 

“Fighting for the right of citizen journalist Jim Meaney to report on a matter of significant public concern—how a local government conducts its business dealings—is the most recent example of the crucial work that our Local Journalism Project is doing to defend local newsgatherers,” said First Amendment Clinic Director Mark Jackson. “Rulings like this one benefit all reporters by protecting them from efforts to stifle speech at the heart of the First Amendment’s protections.” 

Mr. Meaney is represented by Cornell Clinic Associate Director Cortelyou Kenney, Jackson and teaching fellow Tyler Valeska, along with co-counsel Michael Grygiel of Greenberg Traurig. Cornell Clinic student members Corby Burger, Michael Mapp and Rob Ward also contributed to the successful opposition to the TRO.

The Geneva Believer covers local government issues in Geneva, New York. In several articles, Mr. Meaney raised questions about construction contracts that Massa Construction Inc. had with the City of Geneva, including potential conflicts of interest of certain city council members. After Mr. Meaney received a cease-and-desist letter from Massa accusing him of defaming the company, he reached out to the Cornell Clinic for help. Before the Clinic could even respond, Massa filed a defamation complaint against Meaney in state court.

When the Clinic and Grygiel requested Massa withdraw the suit on the bases of defective pleading and New York’s anti-SLAPP protections, Massa filed an amended complaint and a motion for a temporary restraining order.

“The trial court’s decision reaffirms longstanding Supreme Court precedent recognizing that orders such as the one requested by Massa are a classic example of an unconstitutional prior restraint,” Grygiel said. “Unless the case is voluntarily dismissed, we will be filing a motion to dismiss the complaint in the coming weeks. New York’s anti-SLAPP law protects people like Mr. Meaney from the chilling effect of suits brought to restrict or censor their reporting and commentary.” Grygiel co-chairs Greenberg’s National Media and Entertainment Litigation Group.

Massa has filed a notice of appeal of the trial court’s decision to the Appellate Division.

The Cornell First Amendment Clinic is engaged in a variety of cases and projects advancing the interests of free speech and freedom of the press. Its recently launched Local Journalism Project addresses the increasing void in legal representation facing newsgatherers and media outlets that would otherwise be precluded from engaging in expensive litigation to defend their rights and ability to do their jobs. The Clinic’s work extends across disciplines, impacting journalists, researchers, human rights advocates, political advocates and other individuals targeted based on their expression.

RELATED: Cornell clinic represents citizen journalist sued for defamation

Cornell clinic represents citizen journalist sued for defamation

The First Amendment Clinic at Cornell Law School has stepped in to help a local citizen journalist fight a defamation lawsuit and proposed take-down order related to his watchdog coverage of local government.

Jim Meaney runs The Geneva Believer, a blog focused on the workings of his city government of Geneva, New York. He received a cease and desist letter in February accusing Mr. Meaney of defaming a construction company, Massa Construction, which had received millions of dollars of construction contracts from the City of Geneva.

The blog had raised several questions regarding these contracts, including whether there were conflicts of interest of City Council members, including one who is a Massa employee.

Upon receiving the cease and desist letter, Mr. Meaney reached out to the Cornell clinic for help. After reviewing the articles, the clinic concluded a suit violated New York’s anti-SLAPP statute. But before Cornell could respond, Massa filed a complaint for defamation in New York state court.

When the clinic, along with co-counsel Michael Grygiel of Greenberg Traurig, requested Massa withdraw the suit on the bases of defective pleading and New York’s anti-SLAPP protections, Massa doubled down and filed an amended complaint and a motion for a temporary restraining order ex parte, seeking a permanent take down of 10 articles.

The Court denied Massa’s extreme request after the clinic and Greenberg submitted a letter arguing that the TRO constituted a prior restraint, and it calendared a hearing for March 25. The clinic and Greenberg filed an opposition on March 20, and the Court has moved the hearing to May 6 in light of the situation surrounding COVID-19.

The clinic very much looks forward to Mr. Meaney’s day in court. One of the clinic’s principal arguments is that the suit violates the First Amendment because the articles indiscriminately challenged by Massa report truthfully and accurately on a matter of legitimate public concern—the city’s business dealings implicating how it spends taxpayer funds on contractors. 

The full brief filed on behalf of Mr. Meaney can be found here.

Clinic coalition leads effort to limit Supreme Court’s ruling in Food Marketing Institute

The U.S. Supreme Court’s 2019 decision Food Marketing Institute v. Argus Leader (FMI) dramatically changed the landscape of the Freedom of Information Act’s (FOIA) Exemption 4 for “confidential” “commercial or financial” “information.” But a coalition of transparency clinics — led by Cornell Law School’s First Amendment Clinic in tandem with Yale’s Media Freedom & Information Access Clinic as well as co-counsel from Vinson & Elkins’s Tom Leatherbury — is pushing back in a case in the Southern District of New York.

These clinics represent science journalist Charles Seife, who argued in summary judgment papers in September and December in front of Judge Furman that 2016 FOIA amendments limit the scope of the Food Marketing Institute decision, and that even under the Supreme Court’s new test, Seife should prevail in his efforts to obtain critical information related to the efficacy of an important FDA-approved drug.

The coalition argues that the textualist approach employed by the court in FMI applies equally to a new standard, enacted by Congress in 2016, known as the “foreseeable harm” requirement — an issue not considered in FMI, which involved a 2011 FOIA request prior to the effective date of these amendments. This standard requires agencies to reasonably foresee a harm from disclosure of the sought-after information before blocking its release.

In Seife’s case, neither the government (specifically, the FDA and HHS) nor the private intervenor-defendant (a drug company known as Sarepta Therapeutics) meaningfully engaged on the issue of whether there was a finding of foreseeable harm in this case, arguing instead that FMI decided issues related to the foreseeable harm standard even though they were never presented to the Supreme Court.

Seife also makes other important arguments:  That the 2016 amendments baked into FOIA a public interest in “knowing what the government is up to” as well as a rigorous and meaningful standard for the new FMI test that does not simply allow the government to state that information is “confidential” to render it so.

The case is now fully submitted to Judge Furman, and the clinics are awaiting a decision.

“I’m incredibly grateful to the team for fighting so long and hard on this case,” Seife said. “Journalists, especially freelancers, often don’t have the resources to fight in court for information withheld by the government. In this case, however, Yale and Cornell and Vinson & Elkins have made it possible to push for documents that are important for the public to understand not just what the government is doing behind the scenes when it approves drugs, but also crucial to understanding the safety and effectiveness of new medications.”

Read more from the clinics’ filings in the case:

Photo by Joe Ravi is licensed under CC-BY-SA 3.0.