Author: Ian Kalish

SMU First Amendment Clinic argues for disclosure of district attorney emails

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Picture of SMU First Amendment Clinic students, from left, Alex Guerrero, Andrew Killian and Emma Lynch, who represent The Marshall Project in requesting disclosure of information in Ogg v. Paxton.

Above: SMU First Amendment Clinic students, from left, Alex Guerrero, Andrew Killian and Emma Lynch represent The Marshall Project in requesting disclosure of information in Ogg v. Paxton.

A team of students in the First Amendment Clinic at the SMU Dedman School of Law were “in” district court in Texas on April 8 for a summary judgment hearing in Ogg v. Paxton. 

The Clinic represents The Marshall Project in requesting disclosure of information contained in emails called “The Informal” generated by the Harris County District Attorney’s Office. The Texas Attorney General’s Office ruled that the information should be disclosed, and the District Attorney filed a lawsuit to try to stop the release of the information. The Marshall Project intervened.

The 419th Judicial District Court of Travis County, with the Honorable Catherine Mauzy presiding, heard approximately 50 minutes of argument on all parties’ motions for summary judgment and on The Marshall Project’s evidentiary objections. Andrew Killian, a third-year student in the First Amendment Clinic, argued the evidentiary objections.

The Court took the case under advisement.

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

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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 survey of FELN clinic members highlights subject matter focus, funding, biggest challenges

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The number of law school clinics working on free speech, free press or government transparency issues (or a combination thereof) has continued to grow since FELN officially launched in 2019. The network — formed to help members collaborate and share resources to expand their impact — now numbers 32 clinics or similar organizations, plus two dozen law professors who do research and pro bono work in the space.

To better understand that membership, FELN circulated its first full clinics survey in the final three months of 2021. The information below represents the responses to that survey, on topics ranging from substantive focus to diversity initiatives to funding. A copy of the survey is available here.

As of publication, 23 of the 32 clinic members have responded. Most respondents are structured as traditional clinics at law schools, though two are other university-affiliated organizations that work on matters with law students. We will use “clinics” as shorthand below for all respondents.

The full list of FELN members, with links to their websites, is available on the right-hand side of FELN’s homepage.

Clinic information

Total responses: 23

Year clinic was founded

Many FELN clinics are relatively new, with 10 that launched in 2018 or later:

The oldest clinic in the network is UVA, which launched in 1996. (It took a brief hiatus in 2017 before relaunching in 2019 in a partnership between UVA and the Reporters Committee.) Among the other respondents, the oldest clinics are generally tech-focused (Harvard, 1999; Berkeley, 2001; American, 2001; Colorado, 2007), and Yale’s access clinic, which started in 2009.

Substantive focus and clients

Primary substantive focus

FELN membership is not limited to those clinics working exclusively on free speech, free press or transparency issues; it also includes clinics that focus on other topics where their work overlaps with these issues. Among the respondents, their primary focus was:

  • First Amendment: 11 (48%)
  • IP/Technology: 6 (26%)
  • Government Transparency: 2 (9%)
  • Other: 4 (17%)

Geography

  • 14 clinics (61%) accept clients nationwide, though some might only do so for certain types of matters or might put a priority on a specific state or region
  • 9 clinics (39%) accept clients from only one or two states

Docket

Some clinics handle a variety of types of matters, while others focus predominantly on only one or two types. The following graph reflects the number of clinics working on each type of matter as related to free speech, free press or public records during the Fall 2021 semester. It then indicates the median percentage those matters take up on those clinics’ dockets.

Clinic Structure and Funding

Length

  • 8 clinics (35%) require a full-year commitment
  • 8 clinics (35%) are for one semester/quarter with an option to continue
  • 6 clinics (26%) are for one semester/quarter

Number of credits per semester

Most respondents default to offering students either 4 credits per semester (9, 41%), 5 credits (4, 18%) or 6 credits (5, 23%). The remainder default to either 3 or 7 credits (2, 9% each).

More than half (12, 60%) do not give students any flexibility in the number of credits they receive. For those clinics that do provide flexibility, the credit offerings range from 1 to 8 credits, though 2 to 6 credits are more common than 1, 7 or 8 credits.

Number of students

The number of students enrolled per semester ranges from 6 to 30, with a median of 10. With some exceptions, generally the newer clinics have fewer students and the older clinics (which also are primarily tech-focused clinics) have more students.

Student selection

  • 12 clinics (52%) select students based on an application specific to the clinic
  • 7 clinics (30%) do not select particular students; students enroll without the clinic staff’s input
  • 4 clinics (17%) select students based on a general application shared among multiple clinics

Pedagogical components

(respondents could select multiple)

  • Weekly or biweekly class/seminar: 23 (100%)
  • Bootcamp-style session at the beginning of the year or semester: 14 (61%)
  • Weekly (or otherwise regular) case team meetings: 22 (96%)
  • Individual one-on-one meetings with students: 18 (78%)

Outside funding

Three-quarters of clinics (18, 78%) indicated they receive at least some outside funding. Among that group, it goes toward:

  • Staff salary: 17 (94%)
  • Staff supplements (conference travel, etc.): 12 (67%)
  • Litigation/case related costs: 13 (72%)
  • Communications/marketing: 8 (44%)
  • Administrative support (including administrator salaries): 8 (44%)

University funding

Almost three-quarters of clinics (16, 70%) indicated they receive at least some funding directly from the university. Among that group, it goes toward:

  • Staff salary: 12 (75%)
  • Staff supplements (conference travel, etc.): 10 (63%)
  • Litigation/case related costs: 7 (44%)
  • Communications/marketing: 9 (56%)
  • Administrative support (including administrator salaries): 13 (81%)

Staffing and Funding

More than half of clinics have a teaching staff of either 1 or 2 staff members. The remaining clinics have a staff of either 3, 5 or 6, with ICAP at Georgetown as the outlier with 10 or more.

A minority of clinics have at least one tenured or tenure-track staff (5, 22%) or at least one clinical faculty with similar status (9, 39%). Conversely, three-fourths (17, 74%) have at least one lecturer, instructor, adjunct professor or staff in a similar position that is not tenured or tenure-track. Roughly half have at least one legal fellow (11, 48%).

The funding picture for teaching staff positions is a mixed bag. More than a third of clinics’ positions are funded entirely by term-limited or outside “soft” funds (9, 39%), less than a third of clinics’ positions are funded entirely by the university (7, 30%), and the remaining clinics’ positions are funded by a combination of both. In all, almost 60% of the 60+ positions at the 23 clinics are funded by term-limited or outside “soft” funds.

See more staffing breakdowns at the end of this post.

Capacity, Diversity and FELN

Capacity to support journalists

With the varied focus of FELN clinics as discussed above, not all of them specifically market themselves to journalists. Even still, most clinics said they have had to turn away at least one journalist or news organization due to a lack of capacity in the past year, and more than a third indicated they have done so with some frequency:

  • At least once per week: 2 (9%)
  • Two or three times per month: 4 (17%)
  • Monthly or bimonthly: 3 (13%)
  • Rarely, perhaps one to five times per year: 9 (39%)
  • Never, we actively seek out journalists and news organizations for additional matters: 1 (4%)
  • Did not answer/other: 4 (17%)

Biggest challenges

The most commonly identified challenge facing clinics this academic year is COVID-19, which still brings a lot of issues ranging from practice logistics to enrollment levels to childcare for staff. The other two commonly identified challenges were (1) bandwidth — not having enough staff to meet all potential needs and/or current staff members being stretched thin; and (2) fundraising — needing to raise money to maintain current staffing levels.

Efforts to promote diversity in staff hiring, student admission and/or case selection

The approaches by clinics to promote diversity vary widely. In staff hiring and student admissions, some respondents noted that they were limited to or relied upon the resources of their university (and some clinics do not play any role in selecting their students). Some clinics do affirmative outreach to affinity groups and underrepresented communities both on campus and within the legal profession, which helps create a more diverse pipeline of students and hires. Multiple clinics also participate in the Initiative for a Representative First Amendment, which was launched by the Harvard Cyberlaw Clinic and provides financial and career support for law students from underrepresented backgrounds and places them in an internship with a clinic.

When it comes to case selection, many clinics maintain relationships with community organizations and networks supporting underrepresented communities and journalists. Some examples include partnering with affinity journalism groups to provide legal training, hiring a consultant to promote services to diverse journalists, and proactively taking matters that promote the interests of underrepresented communities.

Client referral

96% indicated they would be interested in receiving referrals of potential clients or matters from FELN or other FELN members.

Conclusion

This survey is informative about the clinics landscape, and FELN will use the results as it continues to develop its programming and member resources in 2022. We also hope to make this an annual survey, so if there are additional things you would like to learn from the next survey, please let us know.

***

Additional Responses

Tenured or tenure-track faculty

  • 0 employees: 18 (78%)
  • 1 employee: 4 (17%)
  • 2 employees: 0
  • 3 employees: 1 (4%)

Clinical faculty with protection similar to tenure (or on track for such protection)

  • 0 employees: 14 (61%)
  • 1 employee: 8 (35%)
  • 2 employees: 0
  • 3 employees: 1 (4%)

Lecturer, instructor, adjunct professor, or similar position without security of position

  • 0 employees: 6 (26%)
  • 1 employee: 6 (26%)
  • 2 employees: 8 (35%)
  • 3 employees: 3 (13%)

Staff attorneys

  • 0 employees: 14 (61%)
  • 1 employee: 4 (17%)
  • 2 employees: 3 (13%)
  • 3 employees: 0
  • 4 employees: 1 (4%)
  • 5 employees: 0
  • 6 employees: 0
  • 7 employees: 0
  • 8 employees: 1 (4%)

Legal fellows

  • 0 employees: 12 (52%)
  • 1 employee: 9 (39%)
  • 2 employees: 2 (9%)

Number funded by university or other “hard” money

  • 0 employees: 9 (41%)
  • 1 employee: 7 (32%)
  • 2 employees: 3 (14%)
  • 3 employees: 2 (9%)
  • 4 employees: 0
  • 5 employees: 0
  • 6 employees: 1 (5%)

Number funded by term-limited funds or outside “soft” funds

  • 0 employees: 7 (32%)
  • 1 employee: 7 (32%)
  • 2 employees: 4 (18%)
  • 3 employees: 2 (9%)
  • 4 employees: 0
  • 5 employees: 1 (5%)
  • 6 employees: 0
  • 7 employees: 0
  • 8 employees: 0
  • 9 employees: 0
  • 10 or more employees: 1 (5%)

UC Irvine law students win release of records detailing payouts to victims of law enforcement misconduct

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Note: A version of this post originally appeared on the UC Irvine Intellectual Property, Arts, and Technology Clinic website.

Students at the UC Irvine School of Law won release of hundreds of documents that will shed light on the county’s payments of millions of dollars to victims who sued the Los Angeles Sheriff’s Department and District Attorney’s Office for misconduct over nearly a decade.

“This is a huge win for the public,” said UCI Adjunct Clinical Law Professor Susan E. Seager in an announcement of the settlement. Professor Seager supervised the law students who sued the county for the documents and reached a settlement requiring release of the documents. “For the first time, the public will be able to see a huge database of documents revealing the names of deputies, prosecutors, and investigators who have been sued in court for breaking the law and the county paid the victims millions of dollars.”

“The documents should also provide details on the allegations against the employees and findings by a jury or judge,” Seager said.

The law school clinic informed the court of the settlement in a court filing Dec. 8.

UCI law students worked on the case for over two years on behalf of their client, the nonprofit Human Rights Defense Center, publisher of Prison Legal News. The students sued the county in Los Angeles County Superior Court earlier this year, claiming the county’s refusal to release the documents violated the California Public Records Act.

UCI law student Dane Brody led the school’s litigation team, with support from students Jenna Cowan and Thomasin Bernhardt, negotiating the settlement with the county’s outside lawyers and attending several virtual court hearings with Professor Seager.

“Having the opportunity to represent HRDC and negotiate with the county throughout the semester to obtain a favorable settlement agreement has been one of the most memorable and rewarding experiences during my time at UC Irvine School of Law,” Dane said. “The work I have done with the clinic has really allowed me to step into the shoes of a practicing attorney, and I look forward to carrying on a robust pro bono practice in my own career in the future.”

The students provided free legal services to the publisher of Prison Legal News, as well as for other independent and nonprofit journalist organizations and open government groups, as part of their work in the Press Freedom and Transparency practice in the law school’s Intellectual Property, Arts, and Technology law clinic.

Human Rights Defense Center Executive Director Paul Wright said the settlement will give the public crucial information about these payouts. “Taxpayers have a right to know what police and jail abuse is costing them in terms of money as well as the human cost,” Wright said. “We hope that making the information publicly available will inform the public on where their tax dollars are going and the need for progressive change in both policing and jail management alike.”

From 2019 to 2021, UC Irvine law students Madeline Knutson, Myles West, Roxanne Markus, Hedyeh Tirgardoon, and Bria Watson sent numerous letters asking the county to voluntarily release the documents under the Public Records Act, conducted negotiations, and performed other work on the case. After the county repeatedly refused to release the documents, law student Sabrina Victor and Benjamin Whittle drafted the lawsuit and the clinic filed it on April 29, 2021.

The lawsuit, Human Rights Defense Center v. County of Los Angeles, Los Angeles Superior Court Case No. 21STCP01342, alleged that the county violated the state’s Public Records Act by refusing to turn over a decade of its settlement agreements resolving administrative claims and lawsuits against the Sheriff’s Department and District Attorney’s Office. The lawsuit said that the county was required to turn over copies of the claims, lawsuits, jury verdicts, and court judgments for each settled case under the Public Records Act. Under the settlement, the county will release nearly all the documents sought by the Human Rights Defense Center, dating from 2013 to present. The organization had been asking for the records for the past 10 years without success until the law clinic stepped in.

The county told the law students that it would be an “undue burden” for the county to locate all the documents, and that they should go to court and look up the hundreds of lawsuits. But the lawsuit argued that the public has a right to get copies of the documents already collected by the county. Seager said that the settlement agreements are not typically filed in court and could only be obtained from the county.

At the first hearing on the case on August 5, 2021, Los Angeles Superior Court Judge James Chalfant told the county that it didn’t have a very strong undue burden defense, and the two sides immediately began settlement talks, Seager said.

Judge Chalfant signed an order last week stating that he will maintain jurisdiction over the case until the county finishes releasing the documents, which is expected to take nine months.

“It’s a shame that we had sue the county to get these documents,” Seager said. “We call on the Los Angeles County Board of Supervisors to start posting all county settlement agreements and related court documents involving the Sheriff’s Department and DA on a public website to put government transparency into practice.”

The county admitted no wrongdoing, but agreed that the Human Rights Defense Center is the “prevailing party,” which means that the county is required to reimburse the Human Rights Defense Center’s and the UCI law clinic for their attorney’s fees and costs after all the documents are produced. The amount of the attorney’s fees and costs has not been settled.

Prison Legal News, which is distributed to prisoners across the nation to provide education about prisoners’ legal rights, plans to publish the settlement agreements and related documents online so that the public can have easy access.

The documents will be made publicly available on two Human Rights Defense Center websites: www.prisonlegalnews.org and www.criminallegalnews.org.

FELN newsletter highlights work of law school clinics, others

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The Free Expression Legal Network shares the latest news about its members in its bimonthly newsletter, which highlights the important work of law school clinics, law professors and others in the areas of free speech, free press and government accountability.

Each newsletter shares students’ victories, clinic happenings, general trends within the network and more. Join the more than 200 subscribers by clicking here, or submit potential news items by emailing Josh Moore at jmoore (at) rcfp (dot) org.

FELN is a nationwide coalition of law school clinics, academics and practitioners focused on promoting and protecting free speech, free press and the free flow of information to an informed and engaged citizenry. Its membership includes more than 30 law school clinics that provide practical legal experience to more than 300 students, plus more than two dozen non-clinician law school faculty who research and work in this space.

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

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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.

Virtual conference focuses on access and accountability Oct. 1-2

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10/20/21 Update: Videos of the conference sessions are available here.

Hard to believe, but this year’s Access and Accountability Conference is just around the corner, and it is shaping up as an event you won’t want to miss.  Thoughtful academics, skilled practitioners and experienced journalists once again will be tackling some of the most significant impediments to government accountability today, with a particular focus on reforms that may be possible with the new administration taking hold in Washington.

Among the many important discussions that will occur:

  • Professor Margaret Kwoka will present the results of her soon-to-be published research into the root problems with FOIA, and UCLA’s Michael Karanicolas will lead a discussion on how the FOIA regime might be radically over-hauled, drawing on successful approaches being employed internationally and at a hand-full of U.S. states.
  • The value of libel litigation as a pro-democracy/accountability tool will be debated by leading libel experts, including counsel for both the plaintiff and the defendants in the pending $2.7 billion Smartmatic lawsuit against Fox News.
  • A panel including Berkeley Law School Dean Erwin Chemerinsky will consider the extent to which there has been a norm shift among law students in thinking about free speech and the teaching challenges presented by changing attitudes.

There will also be deep dives into the right to protest and law enforcement’s response to protestors, the rights of journalists and who is entitled to claim them, the rights of whistleblowers in the national security context, and much more.  Be sure to check out the full conference agenda below.

REGISTER FOR AAC 2021 HERE:

https://www.eventbrite.com/e/access-and-accountability-2021-tickets-166964773131

This conference hosted by the Media Freedom & Information Access Clinic at Yale Law School and is made possible by generous support received from the Democracy Fund, the Legal Clinics Fund and the John S. and James L. Knight Foundation.

AGENDA

Access & Accountability 2021: Time to Seize the Day?

This annual conference brings together law school clinicians, investigative journalists, practicing lawyers, academics, and activists to focus on some of the key impediments to government accountability and openness. The goal is to foster conversation and problem solving.  More concretely, the conference informs the work of law school clinics and allied NGO’s, opening new vistas for legal action, policy work, and other advocacy. The first day of the conference convenes multi-disciplinary/multi-professional experts to explore some of the most pressing current issues; the second day is an incubator of ideas, opportunities for collaboration, best practices and success stories for law school clinics.

Friday, October 1

(all times eastern)

9:00
WELCOME by Floyd Abrams

9:15
KEYNOTE: TIME TO FIX FOIA?
Professor Margaret Kwoka, Moritz College of Law, Ohio State University

9:45
THINKING BIG ABOUT FIXING FOIA
The past five years have witnessed escalating challenges to Congressional, and ultimately public, oversight of the executive, as well as unprecedented abuses by this branch. With a new administration that views institutional renewal as a core part of its mandate, there may be a unique opportunity to advance major reform to America’s transparency structures, particularly FOIA, whose failures have been documented for years. This panel will identify some of the key deficiencies in the current means for obtaining information from the federal government and engage in some out of the box thinking about FOIA reforms that might meaningfully improve government transparency and accountability, particularly in support of better oversight to promote institutional compliance and a culture of openness.
Moderator: Michael Karanicolas, UCLA Institute for Law and Technology
Panelists:
– Margaret Kwoka, Moritz College of Law
– Adam Marshall, Reporters Committee for Freedom of the Press
– Toby Mendel, Centre for Law and Democracy
– Colleen Murphy, Connecticut Freedom of Information Commission

11:00
BREAK

11:15
RIGHTS OF THE PRESS CLAUSE
The Attorney General’s commitment never to seek the identities of journalists’ sources, legal objections to police targeting of journalists during BLM protests, defenses being raise by some charged with January 6 crimes that they were functioning as journalists, and criticism of techniques used by Project Veritas, all raise two fundamental questions: Who is a journalist for purposes of the First Amendment, and what rights does the Press Clause grant to a journalist? This panel will search for answers and will consider how best to define and enforce the rights of the Press Clause through litigation.
Moderator: RonNell Anderson Jones, S.J. Quincy College of Law, University of Utah
Panelists:
– Emily Bell, TOW Center, Columbia J. School
– Bruce Brown, Reporters Committee for Freedom of the Press
– Adam Goldman, New York Times
– Jane Kirtley, Hubbard School of Journalism, University of Minnesota
– Mickey Osterreicher, National Press Photographers Association

12:30
BREAK

1:00
LAW ENFORCEMENT ACCOUNTABILITY
The panel will focus on the right to protest and law enforcement’s response to protestors, including direct interference with and abuse of protestors, surveillance of protestors and activist movements, and legislative efforts to limit and target public protests. Panelists will discuss legal strategies and ongoing litigation challenging such practices under the First and Fourth Amendments as well as federal, state and local transparency laws that apply to law enforcement agencies.
Moderator: Jonathan Manes, Roderick & Solange MacArthur Justice Center
Panelists:
– Tabatha Abu El-Haj, Drexel Kline School of Law
– Nora Benavides, Free Press [invited]
– Vanessa del Valle, Northwestern University Pritzker School of Law
– Saira Hussain, Electronic Frontier Foundation

2:15
BREAK

2:30
NATIONAL SECURITY ACCOUNTABILITY
In his Pentagon Papers concurrence, Justice Stewart famously observed that, in the realm of national security, “the absence of the governmental checks and balances present in other areas of our national life” makes an informed citizenry “the only effective restraint upon executive policy and power.” Since 9/11, an exponential growth in the amount of information classified by the executive, use of the Espionage Act to prosecute whistleblowers, invocation of the state secrets privilege, the deference given by courts to the executive’s assessment of national security harm, and the creation of military commissions to prosecute terrorists, have all served to limit the ability of informed public opinion to restrain executive power. This panel will analyze some of the key impediments to meaningful oversight of our national security apparatus today, consider ways to address them, and assess the prospects for reform.
Moderator: Jameel Jaffer, Knight First Amendment Institute at Columbia University
Panelists:
– Laura Donohue, Georgetown Law School
– Heidi Kitrosser, University of Minnesota School of Law
– Ellen Nakashima, Washington Post
– Stephen Vladeck, University of Texas School of Law
– Andrew Weissmann, New York University School of Law

3:45
BREAK

4:00
DEFAMATION AS AN ACCOUNTABILITY TOOL
A shared understanding of basic facts is essential for democracy to function, yet some activists seem to be intentionally creating and disseminating disinformation that ricochets through partisan echo chambers. These efforts have been highly successful—some 90% of Republicans and Democrats now disagree about the truth or falsity of certain basic facts. This panel will explore the extent to which the problem of disinformation is exacerbated in the age of social media by First Amendment doctrine that relies primarily on counter-speech as the cure for false speech, whether libel litigation provides a useful tool for addressing political disinformation, and other steps that might help restore some common agreement on the relevant facts.
Moderator: Lee Levine, Ballard Spahr LLP (Ret.)
Panelists:
– Floyd Abrams, Cahill Gordon & Reindel LLP
– Thomas Claire, Claire Locke LLP
– Erin Murphy, Kirkland & Elis LLP
– John Langford, Protect Democracy
– Lyrissa Lidsky, University of Missouri School of Law

Saturday, October 2

9:00
COLLABORATION COLLOQUIES – projects worthy of cross-clinic collaboration

Supporting Local Journalism (9:00)
There is a compelling need to reinvigorate local journalism for democracy to thrive. This panel will review various approaches being taken at law school clinics and elsewhere to provide the types of legal services needed to sustain robust investigative journalism, and lead an open discussion exploring additional ways that law school clinics might be a part of the solution to this pressing problem.
Discussants: Bruce Brown (Reporters Committee for Freedom of Expression), Josh Burday, Loevy & Loevy; Heather Murray (Cornell); Susan Seager (UC Irvine); Stephen Stich (MFIA)

Fighting “Censorship by PIO” (9:45)
Governments have increasingly imposed gag rules on their employees, barring staff from talking to journalists and providing information only through a public information office. With their careers on the line, employees have little incentive to litigate their speech rights, leaving the public blind to what the government is doing beyond the information officially approved for release through press officers. This panel will discuss the legal theories for mounting a journalist’s challenge to such gag rules, the procedural hurdles such a case would face, and the legal research and factual development that has already been done on this issue. It will explore opportunities for collaboration among clinics in bringing one or more test cases.
Discussants: Kathryn Foxhall (Society of Professional Journalists);
Gregg Leslie (Arizona State University), Michael Linhorst (MFIA),
Frank LoMonte (Brechner Center)

10:35
BREAK

10:45
DIRECTOR’S DIALOGUE: First Amendment, Friend or Foe?
This panel will take up some of the challenges in teaching students who are not reflexively in the flow of free speech. It will consider the extent to which there has been a norm shift among law students in thinking about free speech and consider the teaching challenges presented by changing attitudes. For example, the presence of disinformation on social media platforms has led to calls for greater government regulation of online speech. Violent marches by right-wing groups, such as Unite The Right in Charlottesville, have led some students to question the availability of robust free speech protections for racist and sexist speech. Panelists will discuss their own experiences as students and teachers of First Amendment law, with the goal of providing actional advice for clinical faculty to engage with First Amendment issues.
Moderator: Catherine Crump, UC Berkeley
Panelists:
– Erwin Chemerinsky UC Berkeley
– Meenu Krishnan, Davis Wright Tremaine LLP [in formation]

11:50
BREAK

12:00
SUCCESS STORIES
Samantha Hamilton (2021 grad), University of Georgia
Samantha will describe a project called MLOG (Media Law & Open Government) in which a dedicated group of students provides non-litigation advocacy on a pop-up basis to citizens and journalists across Georgia. Its successes include shaking loose documents for journalists, getting functioning livestreaming in place for public meetings, and getting people unblocked from govt social media accounts who were censored for their critical comments. The project functions like a mini-clinic, where the members meet each week all together but the students divide the projects up among them based on interest. The project accepts matters on a rolling basis throughout the semester.

Ben Whittle (3L), UC Irvine School of Law
Ben will describe his successful efforts on behalf of a freelance journalist seeking to unseal juvenile court files across California in cases involving fatal parental abuse of children who were supposed to be under the protection of local child services agencies and the juvenile court. His efforts contributed to a front-page LA Times story and the Netflix docuseries, “The Trials of Gabriel Fernandez.”.

Celine Moussazadeh Rohr (3L), NYU School of Law
Celine worked on a FOIA-based investigation of the FDA and NIH that uncovered information that apparently spurred the FDA to take a first-ever enforcement action to ensure public access to a drug manufacturer’s clinical trial data. She will explain the strategy of explicitly identifying the FOIA requests as a precursor to potential APA litigation as a way of getting the attention of the FOIA offices at both agencies.

1:15
OPEN FELN STEERING COMMITTEE MEETING

Cornell law student plays key role in blogger’s defamation defense

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Note: A version of this post originally appeared on the Cornell University website.

A decision in a defamation case argued primarily by a Cornell Law School student is one of the first in New York state court to address a legal question spurred by recent legislative changes strengthening free speech protections.

On May 10, a New York Supreme Court judge in Ontario County dismissed a construction company’s defamation lawsuit against James Meaney of Geneva, New York, publisher of the Geneva Believer watchdog blog, who was defended by the Law School’s First Amendment Clinic and co-counsel Michael Grygiel of Greenberg Traurig LLP.

Judge Brian Dennis agreed that amendments approved in November to New York’s so-called “anti-SLAPP” statutes, which seek to deter use of the courts to silence criticism in public matters, should apply to the case retroactively. But he also found that the previous version of the statute would have applied as well, and that Massa Construction Inc. could not meet its statutory burden to show that its claims had a substantial basis in law and fact. Dennis ruled that Meaney’s challenged articles were comprised of true facts and constitutionally protected opinions, rejecting Massa’s theory of defamation by implication and holding that satirical images in the articles were non-actionable.

During a virtual hearing on Dec. 9, 2020, third-year law student Rob Ward led the defense team’s argument for why the amended anti-SLAPP laws – short for Strategic Lawsuits Against Public Participation – should apply retroactively.

State and federal judges have recently reached that conclusion in unrelated cases, but at the time of the hearing no courts had weighed in on the matter.

Ward pointed to legislative history revealing state lawmakers’ intent to clarify the original purpose of statutes enacted in 1992, which was for the statute to apply more broadly than courts have previously interpreted it, and for the amendments to take effect immediately.

“New York has a long history of being at the forefront of expansive definitions of free expression,” Ward said. “This decision helps build on that tradition and will help protect journalists and other citizens trying to make their voices heard in their communities.”

The victory was the First Amendment Clinic’s second on Meaney’s behalf since Massa filed its defamation claim in January 2020. Last June, the same court on First Amendment grounds denied Massa’s request for a temporary restraining order demanding Meaney take down articles reporting on the company’s ties to the Geneva city council, which according to Meaney’s reporting has awarded Massa more than $4 million in contracts since 2010.

Meaney’s articles highlighted potential conflicts of interest involving a city council member who was also a Massa employee, and a former council member whose son worked part-time for both the company and the city. He reported on missing bid records – revealed by his Freedom of Information Law requests – and questioned the rationale for certain projects.

The First Amendment Clinic said the defamation case lacked merit broadly, including the fact that Meaney’s reporting – based on public meetings and public records – was accurate. The company claimed the allegedly defamatory statements implied wrongdoing and corruption – a disfavored legal theory, according to First Amendment Fellow Tyler Valeska.

Meaney’s reporting on and criticism of the city’s spending “is protected at the core of the First Amendment and the New York Constitution as speech on a matter of public concern,” the defense team argued in requesting the case be dismissed.

Valeska was thrilled with the comprehensive victory. He emphasized the court’s conclusion that Meaney would have been protected even under the narrower prior version of New York’s anti-SLAPP law. And he noted. that the amended laws, applied retroactively, made the case a slam dunk. Application of the anti-SLAPP law increased Massa’s burden of proof, facilitated the case’s early dismissal and entitled Meaney to collect attorney’s fees.

The case was part of the First Amendment Clinic’s Local Journalism Project, which supports newsgatherers and media outlets lacking the resources to defend themselves against expensive, potentially frivolous litigation. Associate Director Cortelyou Kenney and a group of students including Michael Mapp were also part of the clinic team handling the case.

“The clinic believes that such threats have a dangerous chilling effect on local journalism and must be fought to ensure that the public receives newsworthy information,” said Mark Jackson, the clinic’s director and adjunct professor of law.

For Ward, helping to shape a novel aspect of state law was a rewarding opportunity, one that is relatively rare for a law student.

“I was grateful to play a role in defending this journalist who, if the clinic weren’t here, might have had to stop publishing,” Ward said. “Getting to not only write on his behalf but to argue before a judge on his behalf was an amazing experience.”

Ward said the skills and courtroom experience gained during his three semesters in the clinic will serve him well in a career that will start in tax law, and that First Amendment issues will remain a passion. Meaney’s challenges in Geneva, a city of 13,000, resonated personally with the native of Broadalbin, New York, a town of 5,000 about an hour northwest of Albany in Fulton County.

“This case hit close to home,” he said. “It was really appealing to me to work with someone who cares about his upstate New York community and is trying to report on it and make it a better place.”

Irvine IPAT Clinic files $100,000 civil rights claim over arrest of journalist

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Note: A version of this post originally appeared on the UC Irvine IPAT Clinic’s website. For a previous post about the Clinic’s work in securing the release of the journalist’s cellphone, see here.

The UC Irvine Intellectual Property, Arts, and Technology (IPAT) Clinic filed a $100,000 civil rights claim on March 12 against Los Angeles County, alleging that the Los Angeles County Sheriff’s Department violated a student journalist’s First and Fourth Amendment rights by wrongfully arresting him at a Black Lives Matter protest, confiscating his equipment, and losing his camera memory card containing two years of work.

“We know that the Sheriff’s Department conducted an internal investigation of Pablo Unzueta’s September 8, 2020 arrest after we wrote a letter to Los Angeles County Sheriff Alex Villanueva,” said Professor Susan E. Seager, who directs the Clinic’s Press Freedom and Transparency team. “But the department refused to tell us its findings.”

“The Sheriff’s Department’s arrest, detention, and confiscation of Pablo’s cell phone, camera, and camera memory card violated Pablo’s First Amendment right to report about the news and his Fourth Amendment right to be free from wrongful arrest, excessive force, and seizure of his property,” Seager said.

Unzueta is one of 130 journalists arrested or detained by law enforcement in the United States during 2020, according to the U.S. Press Freedom tracker website.

California law — Penal Code section 409.5(d) — allows “duly authorized” journalists to enter areas closed by police during riots or civil disturbances, but local law enforcement largely ignore the law, Seager said.

Unzueta, a Cal State Long Beach student editor and freelance photojournalist, was arrested while photographing and filming a protest over the killing of a Black cyclist by sheriff’s deputies in South Los Angeles. Unzueta said deputies ignored him when he identified himself as a journalist and arrested him for allegedly failing to disperse after the deputies declared the protest an unlawful assembly. The Los Angeles District Attorney’s Office said that it was not filing criminal charges against any protestors or journalists arrested during the September 8 protest.

Unzueta said deputies took his iPhone and Nikon D800 digital camera during his arrest and did not return his devices after booking and releasing him. Deputies later returned the camera, but not the memory card. It took three months for the department to release Unzueta’s cell phone. Seager said that a department captain told her that he interviewed nearly a dozen deputies about Unzueta’s arrest and no deputies reported seeing the journalist’s camera memory card. Unzueta says that the memory card contains his freelance photos that had been used by the Voice of OC and Washington Post.

Unzueta said that deputies handcuffed him, threw him into the bed of a truck filled with pepper spray balls that exploded upon impact, appeared to film him and other arrestees with the deputies’ personal cell phones, and called him a homophobic slur.

An independent report released this week concluded that the sheriff’s department’s municipal counterpart — the Los Angeles Police Department — severely mishandled Black Lives Matter protests during 2020.

“The entire process was very draining and it took a lot of grit and patience,” said Unzueta. “This case could never have been resolved if it weren’t for the Student Press Law Center and the UCI Law IPAT Clinic, who represent and protect the rights of journalists like myself.”

Unzueta was also represented by Professor Katie Tinto, Director of UCI Law’s Criminal Justice Clinic, who was contacted by the Student Law Press Center to represent Unzueta during a criminal court appearance. Tinto won the release of Unzueta’s camera.

California law requires people seeking damages from state and local government agencies to file an administrative claim with the government agency before going to court.

Irvine IPAT Clinic wins release of student journalist’s cellphone seized by deputies

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Note: A version of this post originally appeared on the Irvine IPAT Clinic’s website.

The Intellectual Property, Arts, and Technology (IPAT) Clinic at UC Irvine School of Law scored a victory on December 18 when the Los Angeles County Sheriff’s Department released a student journalist’s iPhone that had been seized by deputies and held for three months. The Clinic’s Press Freedom and Transparency team, directed by Adjunct Professor Susan E. Seager, won the return of the cellphone to Pablo Unzueta, a Cal State Long Beach student editor and freelance journalist.

Deputies seized Unzueta’s iPhone and camera on September 8, 2020, when they arrested him while he was covering a protest over the killing of a Black cyclist by sheriff’s deputies in South Los Angeles. Deputies ignored Unzueta when he identified himself as a journalist and arrested him for allegedly failing to disperse after the deputies declared the protest an unlawful assembly. The Los Angeles District Attorney’s Office said that it was not filing criminal charges against any protestors or journalists arrested during the protest.

“The Sheriff’s Department’s arrest of Pablo and seizure of his camera and cellphone violated Pablo’s First and Fourth Amendment rights,” Professor Seager said. “The seizure of his devices also violated California laws and a federal laws protecting the confidentiality of journalists’ notes and unpublished materials.”

During his arrest, Unzueta said deputies took his iPhone and Nikon D800 digital camera. Deputies returned the camera, but not the memory card. It took three months for the department to release the cellphone. The Clinic is still trying to get the camera memory card back. Unzueta says that the memory card contains two years of work, including freelance photos used by the Voice of OC and Washington Post.

The Clinic wrote a letter to Los Angeles County Sheriff Alex Villanueva stating that Unzueta’s arrest and seizure of his camera and cellphone violated his First and Fourth Amendment rights and California statutes protecting journalists. The sheriff’s department’s inspector general, Max Huntsman, has ordered an internal investigation into the arrest of Unzueta and the seizure of his devices.

Unzueta said that deputies handcuffed him, threw him into the bed of a truck filled with pepper spray balls that exploded upon impact, appeared to film him and other arrestees with the deputies’ personal cellphones, and called him a homophobic slur.

“The entire process was very draining and it took a lot of grit and patience,” said Unzueta. “This case could never have been resolved if it weren’t for the Student Press Law Center and the UCI Law IPAT Clinic, who represent and protect the rights of journalists like myself.”

Unzueta was also represented by Professor Katie Tinto, Director of UCI Law’s Criminal Justice Clinic, who was contacted by the Student Law Press Center to represent Unzueta during a criminal court appearance. Tinto won the release of Unzueta’s camera.