Author: Ian Kalish

Resources for journalists covering protests

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Note: This post was updated with additional resources on June 16, 2020.

With civil unrest occurring across the country, the Free Expression Legal Network is sharing a few resources for journalists — or for those FELN members who may be assisting journalists right now.

The U.S. Press Freedom Tracker is investigating reports of more than 250 press freedom incidents, as of June 4, as reporters across the country have covered protests in response to a white Minneapolis police officer killing George Floyd, a Black man, on May 25.

Some resources to help journalists cover and stay safe at protests:

Reporters Committee attorneys are also monitoring its legal hotline for journalists, in case reporters have questions about their legal rights at protests, or need help finding an attorney. There are three ways to reach the hotline: (1) online at rcfp.org/hotline, (2) by phone at 800-336-4243, or (3) by email at hotline -at- rcfp.org. The Student Press Law Center also has a hotline for student journalists.

MFIA Clinic prepares amicus brief in Maryland First Amendment case

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Note: A version of this post originally appeared on the Media Freedom & Information Access Clinic website.

The Floyd Abrams Institute for Freedom of Expression at Yale Law School recently filed an amicus brief in the United States Court of Appeals for the Fourth Circuit to support a First Amendment challenge to a Maryland law that prohibits the broadcasting of audio transcripts that the state’s courts routinely make of criminal proceedings.

Section 1-201 of Maryland’s Criminal Procedure Code states that individuals may not “record or broadcast” criminal proceedings. Adopted at the advent of portable television camera technology, the law sought to prevent the televising of ongoing trials. It does not prohibit the Maryland judiciary from making audio transcripts of criminal proceedings, and these are routinely made available for inspection in the public court files. Maryland, however, has recently taken steps to enforce the decades-old law against journalists who have used the publicly available recordings in documentaries and podcasts, including the acclaimed podcast “Serial.”

The Abrams Institute brief, prepared by the Media Freedom & Information Access (MFIA) Clinic at Yale Law School, asserts that a blanket ban on the broadcasting of audio recordings — “made by Maryland trial courts, maintained in public court files, and expressly made available to the public by court rules” — violates a First Amendment right of access that attaches to judicial proceedings and records.

The brief states that the district court failed to enforce the access right based on its misreading of a 1978 Supreme Court ruling in Nixon v. Warner Communications that declined a record company’s request for copies of Oval Office recordings made by President Richard M. Nixon that were used in the criminal prosecution of several of his top aides. The district court read Warner Communications to hold that audio recordings in the official record of a criminal prosecution are subject only to a common law access right, which the Maryland legislature had properly restricted through its broadcast ban.

The brief explains that Warner Communications is not so broad. The Supreme Court concluded that the common-law right of access to the specific judicial records at issue had been abrogated when Congress passed the Presidential Recordings Act shortly after Nixon resigned from office, but the court did not squarely reject a First Amendment right of access to judicial records. That opinion holds more narrowly that the First Amendment confers no access rights on the press “greater than those of any other member of the public.”

Just two years later, in Richmond Newspapers, Inc. v. Virginia (1980), the Court held for the first time that the First Amendment’s express protections — free speech, freedom of the press, and the right to petition the government — carry with them an implied right of public access to certain government proceedings and records. The Supreme Court subsequently held, twice, that this constitutional access right applies to transcripts of proceedings in criminal prosecutions. The amicus brief contends that this constitutional protection extends to Maryland’s audio recordings.

The brief further explains that the Maryland law was intended “to bar cameras from the courtroom and prohibit electronic media coverage of ongoing proceedings.” While protecting the integrity of court proceedings and defendants’ fair trial rights are compelling governmental interests that may justify a ban on broadcasting ongoing proceedings, they do not justify a blanket ban against the dissemination of audio recordings of long-completed prosecutions. At a minimum, the brief contends that the First Amendment requires a case-by-case review before the state can prohibit the broadcasting of an audio transcript of a completed proceeding.

The amicus brief reinforces the primary legal argument advanced by the documentarians pursuing the appeal, who contend that the law constitutes an impermissible restriction on their right to publish true newsworthy information. As the MFIA brief explains, “[t]he affront to the First Amendment is compounded here because Maryland is not prohibiting the publication of just any true newsworthy information,” but rather, “Maryland is prohibiting the dissemination of judicial records that are themselves subject to an affirmative right of public access — a qualified First Amendment right to inspect, copy, and disseminate Maryland’s audio recordings.”

Irvine’s Press Freedom and Transparency students assist investigative journalist for Netflix series

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Above Photo: Prof. Susan Seager, IPAT client Garrett Therolf and IPAT student Betty Kim at a screening of The Trials of Gabriel Fernandez.

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

A new Netflix docuseries, The Trials of Gabriel Fernandez, was made possible in part by the work of UC Irvine School of Law students. The students have worked for more than a year to unseal court records for series co-producer Garrett Therolf, a staff writer at UC Berkeley’s Investigative Reporting Program.

Therolf used the court records in the Netflix series to bring national attention to the repeated failure of the Los Angeles County Department of Children and Family Services to protect chronically abused children from being killed by their parents and caregivers.

The law students won disclosure of confidential juvenile court records for two child abuse victims, Anthony Avalos and Noah Cuatro, whose deaths are investigated by Therolf in the final episode of the Netflix series.

The docuseries, directed by Brian Knappenberger, was released on Netflix on February 26, 2020. The docuseries was Netflix’s most popular original series during its launch, according to the Los Angeles Times.

The students work under the supervision of Susan Seager, who directs the Press Freedom and Transparency practice in the Intellectual Property, Arts, and Technology Clinic at UC Irvine School of Law.

David Barstow, former New York Times investigative reporter who is now head of investigative reporting at the UC Berkeley Graduate School of Journalism, said, “This clinic is a godsend to journalism in California. Without access to public records, reporters too often can’t get to the truth and citizens too often are left in the dark. We have come to think of Susan and her amazing law school students as our SWAT team, always at the ready to leap into the never-ending battle for transparent, accountable government.”

“Susan’s team has been our indispensable partner as we pry loose details about systemic failures that harm, and sometimes kill, abused and neglected children,” Therolf said. “The agencies that serve these children are often built on the concept of secrecy, and we would be dead in the water without the UC Irvine Law clinic’s tireless work to shine a light on them.”

The final episode of the Netflix series focuses on the court files obtained by the law students, which show how Noah Cuatro, age four was allegedly killed by his parents in July 2019 and how Anthony Avalos, age 10, was allegedly killed by his parents in June 2018.

The students’ work for Therolf is not over. The students continue to seek juvenile court records for Therolf to reveal how other children were fatally abused while under the care of the Los Angeles County Department of Children and Family Services.

Second-year student Emily Horak is working to obtain more juvenile court records about Noah Cuatro. “It was a great experience to represent Therolf in juvenile court,” she said. “When requesting the records, our team felt the urgency of the matter. Maybe the insight from the records could prevent the death of another innocent child.”

Hedyeh Tirgardoon, a second-year student, is in the process of filing a motion to unseal confidential juvenile court records about two sisters who were allegedly killed by their mother. “Working with zealous advocate Garrett Therolf allows our clinic to be the voice for these children and for all children who are victims of alleged neglect and abuse. We refuse to turn a blind eye,” she said. “By holding government agencies accountable for their failure to protect children under their care, we hope to usher in a new era of transparency, responsibility, and protection to prevent atrocities like the deaths of Noah Cuatro, Anthony Avalos, and Gabriel Fernandez. Their deaths were preventable. It is as simple as that.”

In February, Betty Kim, also a second-year student, filed a motion in the Los Angeles Superior Court criminal division asking a judge to unseal the secret transcript of the grand jury that indicted Noah Cuatro’s parents for allegedly torturing, sexually abusing, and killing Noah. The motion is pending.

“Advocating in court on behalf of a journalist reinforced for me the longstanding importance of the First Amendment, as well as the press’s fundamental role to obtain and deliver prompt news to the public,” second-year law student Kim said.

In addition to Tirgardoon, Horak, and Kim, the law students who have worked for Therolf include Emily Asgari, Sachli Balazadeh-Nayeri, Nia Bush, Amy Chi, Cassie Doutt, Shanxi Feng, Henry Glitz, Kennedy Holmes, Jacob Karim, and Anthony Mendez.  The law clinic provides free legal services to independent journalists, documentary filmmakers, open government advocates, and start-up businesses, among others.

“The students have done a fantastic job representing Garrett and winning court orders releasing secret government files,” Seager said.

The Netflix series focuses on the criminal trials of Gabriel Fernandez’s mother, Pearl Fernandez, and her boyfriend, Isauro Aguirre. Both were charged with torturing and killing Fernandez’s eight-year-old son, Gabriel. Aguirre was convicted and sentenced to death, while Fernandez pleaded guilty and agreed to life in prison without the possibility of parole.

To win court orders releasing the juvenile court records, the students employed a California law (Welfare & Institutions Code Section 827(a)(2)) that requires juvenile courts to disclose confidential court records about fatally abused children when the children are under the jurisdiction of the juvenile court at time of death.

To seek the grand jury transcript, the students are relying on California Penal Code Section 938.1(b), which provides that post-indictment state grand jury transcripts “shall” be unsealed unless the defendant can show a “reasonable likelihood” that 12 unbiased jurors cannot be found. The clinic has filed a motion asking a Los Angeles Superior Court judge to unseal the secret grand jury transcript in the murder case against Noah Cuatro’s parents, who were indicted for allegedly torturing, sexually abusing, and killing Noah.

The law students have worked on the following cases for Therolf:

In re Anthony Avalos. Anthony Avalos was 10 years old when he was rushed to the hospital and pronounced dead in June 21, 2018 with a fatal skull fracture and signs of neglect and abuse. In 2019, students filed a petition on behalf of Therolf in Los Angeles Superior Court’s juvenile division, seeking disclosure of Anthony’s confidential juvenile case file to find out the circumstances of his death while under the protection of the Los Angeles County Department of Children and Family Services. On July 24, 2019, the court issued an order unsealing Anthony’s file. On September 3, 2019, Therolf published an expose about Anthony’s death on the front page of the Los Angeles Times. Anthony’s case is discussed in the sixth episode of the Netflix docuseries, The Trials of Gabriel Fernandez.

In re Olivia Apai. Olivia Apai was 10 months old when she died on June 24, 2019. The Los Angeles County Department of Family and Child Services said in a press release that she died of suspected maltreatment while in the custody of a parent or legal guardian. Students filed a petition to unseal Olivia’s juvenile case file on behalf of Therolf in Los Angeles Superior Court’s juvenile court division. On January 23, 2020, the court issued an order granting Therolf’s petition and ordering release of her juvenile case file.

In re Noah Cuatro. Noah Cuatro was four years old when he was allegedly killed by his parents, Jose Maria Cuatro Jr. and Ursula Elaine Juarez, on July 6, 2019. In September 2019, students filed a petition with the Los Angeles Superior Court juvenile division on behalf of Therolf, seeking disclosure of Noah’s juvenile case file. In March 2020, the court indicated that it had granted Therolf’s petition and ordered disclosure of Noah’s file, but the court has not released its order or the file as of this writing. Noah’s case was discussed in the sixth episode of the Netflix docuseries, The Trials of Gabriel Fernandez.

People v. Juarez. In February 2020,students filed a motion in Los Angeles Superior Court’s criminal division, asking the court to unseal the transcript of the grand jury proceedings that resulted in the murder and torture indictment of Noah Cuatro’s parents, Jose Maria Cuatro Jr. and Ursula Elaine Juarez. The motion is pending. Noah’s case was discussed in the sixth episode of the Netflix docuseries, The Trials of Gabriel Fernandez.

In re Camille Hickman and In re Jaliya Hickman. Seven-year-old Jaliya Hickman and her sister, one-year-old Camille Brewster Hickman, died on October 19, 2017. Their tiny unclothed bodies were dusted with a white powder when they were found near a liquor store in San Pedro. In March 2019, students filed a petition in the Los Angeles Superior Court’s juvenile division on behalf of Therolf, seeking disclosure of the Hickman sisters’ juvenile case files. On July 24, 2019, the court issued an order granting the release of their juvenile case files to Therolf. Students are filing a second petition asking the court to release more of the file.

Newsletter: Clinics quickly pivot to online in response to COVID-19

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This is the March 27, 2020, edition of the newsletter of the Free Expression Legal Network. It includes updates from our coalition of law school clinics and law professors working on free speech, free press and government accountability. Sign up to receive the newsletter here.

The world is a much different place since our last FELN newsletter. With universities shifting online and courts canceling or restricting in-person hearings in just a matter of weeks in response to the coronavirus, teleconferences and Zoom video conferences are suddenly ubiquitous.

Nicole Ligon, supervising attorney at the Duke First Amendment Clinic, said she has tried to keep the Duke clinic’s class as “normal” and engaging as possible since it went online using Zoom last week. She has also looked for ways to take advantage of the remote settings. “For a discussion on food libel and commercial speech,” Ligon said, “we had everyone pull a real food item with an interesting label from their pantry and used those labels in our discussion.”
 
Still, as Gautam Hans, director of the Vanderbilt First Amendment Clinic, tweeted after his clinic’s first online class, the effect on clinics is different than that on other, doctrinal classes. “[T]here is something about the learning process of working on cases that can’t be replicated in other parts of law school,” Hans said. “And, it turns out, it can’t really be replicated on Zoom. No surprise.”

Technological and pedagogical resources

 For those new to using Zoom, UC-Irvine Intellectual Property, Arts and Technology Clinic director Jack Lerner tweeted some tips, such as joining meetings 10 minutes early to work out any issues. Zoom has its own coronavirus resources, and The Volokh Conspiracy has a webinar on using Zoom for law school classes. And the Chronicle of Higher Education reminds us that, while we can expect some turbulence, “good teaching is good teaching.”

The Duke clinic’s first client meeting via Zoom went well, Ligon said, with plenty of advanced planning. First, the student handling the matter prepared an outline of his questions for the client, which Ligon said helped ensure “no one had an urge to speak over anyone out of concern that a question or topic wouldn’t be addressed.” Clinic staff then met with the student over Zoom about 30 minutes early to test the technology, run through the student’s questions, and discuss goals for the meeting. Finally, following the meeting, they debriefed via Zoom as well.

Outside of video conferencing, clinicians also have had to grapple with what other expectations and procedures must change, and how best to clearly communicate those changes to students and clients. To help, the Association of American Law Schools’ Section on Clinical Legal Education is compiling policies and other planning materials that clinicians have prepared in response to COVID-19.

Legal resources

 Clients may also have legal questions arising from the public health crisis. The Reporters Committee is regularly updating its resources on how the pandemic is affecting reporters and public access, particularly in regards to emergency orders, public meetings and records, and court access. The Media Law Resource Center has also compiled sample letters and other resources.

FELN and our community are here to help

 If FELN can be of any assistance to you during these times, please don’t hesitate to reach out to Josh Moore at jmoore (at) rcfp (dot) org. If you want to ask your fellow FELN members a question about how they are handling a particular aspect, email the FELN listserv or FELN non-clinician listserv. We wish you all the best during this unprecedented time.

Recently on FreeExpression.law

The Buffalo Civil Liberties & Transparency Clinic was successful in the trial court against the Erie County Sheriff on behalf of the National Lawyers Guild Buffalo Chapter for access to the records of Buffalo’s local jails concerning suicide attempts by inmates. The resulting records revealed that the sheriff mischaracterized suicide attempts in the jails as “inmate disturbances” or “manipulative gestures.” [Read more]

The First Amendment Clinic at Cornell Law School represents a local citizen journalist in his efforts to fight a defamation lawsuit and proposed take-down order related to his watchdog coverage of local government in Geneva, New York. [Read more]

Funding Opportunity

The Legal Clinic Fund is accepting proposals for a second round of funding. The Fund, launched last year and supported by a group of foundations, provides grants to clinics “that seek to advance and defend First Amendment rights, media freedom, and transparency in their communities and nationally.” [Read more]

Proposals are due May 8
Note: The original April 3 deadline has been extended

On the Docket

>> Duke’s First Amendment Clinic filed an amicus brief in the Court of Appeals in Washington state in a case concerning whether an independent journalist with a YouTube channel is a member of the “news media” under Washington’s Public Records Act, which incorporates the definition from the state’s Media Shield Law. The brief argued that the shield law should be broadly construed to include new types of news outlets like those posting on YouTube.

>> The UCLA Documentary Film Legal Clinic’s students received a round of applause at the Sundance Film Festival for their work supporting The Cost of Silence, a documentary about the 2010 Deepwater Horizon oil spill. The film’s director called out the students during a Q&A session following its premiere. 

>> Students at the BU/MIT Technology Law Clinicadvised two MIT PhD students on their research that exposed vulnerabilities in a smartphone application several states were using to conduct absentee voting. The clinic helped the researchers disclose the findings to the Department of Homeland Security and to the public. [Read the research paper and New York Times coverage]  

>> The NYU Technology Law & Policy Clinicfiled an amicus brief in the Second Circuit in The Andy Warhol Foundation v. Goldsmith. The brief, filed on behalf of two artists in support of the Warhol Foundation, explained why fair use in copyright law should protect—and, indeed, does already protect—a broad range of artistic and cultural practices that includes critique and recontextualization.

>> Duke’s First Amendment Clinic and the UVA First Amendment Clinic filed separate amicus briefs in the First Circuit supporting a Maine high school student who was suspended for allegedly disrupting school by posting a note in the restroom alerting people to the school’s problem of sexual violence. Duke’s brief, on behalf of the clinic and a young woman, detailed why the First Amendment protects the student’s on-campus speech and highlighted the suspension’s potential impact on future reporting of sexual assault. UVA’s brief, on behalf of the Maine Press Association, focused on additional punishment the student appeared to receive for speaking to the news media, and it argued that off-campus speech to the press should be entitled to full First Amendment protection.

Collaboration Corner

Ruling expands public’s access to results of clinical trials studying drugs and medical devices

In a lawsuit brought by the Yale Media Freedom and Information Access Clinic and NYU Technology Law & Policy Clinic on behalf of two researchers, the Southern District of New York recently held that the FDA, NIH and HHS misinterpreted a 2007 law requiring the sponsors of clinical trials to disclose the results of those of FDA-approved products to the public. The court’s order requires the government to collect and post to the ClinicalTrials.gov website about a decade’s worth of trial results — making data from potentially hundreds of clinical trials available for the first time.

Share your collaborations with us, or let us help you find a partner on a worthwhile matter. Email Josh Moore at jmoore (at) rcfp (dot) org for more information.

In the News

>> The Philadelphia Inquirer and WHYY covered a victory of Georgetown’s Institute for Constitutional Advocacy in which a federal district court found a First Amendment right to audio-record bail hearings in Philadelphia. Several students in ICAP’s practicum contributed to the lawsuit, in which ICAP represented nonprofit Philadelphia Bail Fund, since it was filed last summer.

>> The Buffalo News, WGRC-TV and the Niagara-Wheatfield Tribune wrote about the Buffalo Civil Liberties and Transparency Clinic filing a lawsuit against Niagara County on behalf of the Buffalo Niagara Coalition for Open Government. The lawsuit challenges a county law that kept private the annual financial disclosure statements filed by county government officials before 2019.

>> Law360 and WESA-FM reported on arguments by students at the University of Virginia First Amendment Clinic in an open records matter in Pennsylvania state court on behalf of newspaper The Caucus. The Allegheny County District Attorney’s Office appealed a Pennsylvania Office of Open Records decision that it had to disclose technical information about its network of more than 1,000 security cameras in and around Pittsburgh.

>> The Arizona Capitol Times wrote extensively about information the Arizona State First Amendment Clinic helped the newspaper get unsealed in the criminal case of Paul Petersen, a former Maricopa County (Arizona) official who faces felony charges in multiples states for allegedly running an illegal adoption service.

FELN Jobs Board

 A number of positions are listed on the FELN Jobs Board. 

Around the Network

>> The University of Georgia School of Law has appointed Clare R. Norins as the first director of its First Amendment Clinic, which will launch this fall. Norins told Law.com that she has three primary goals for the new clinic at UGA:

  • Defend and advance the First Amendment through direct representation and advocacy;
  • Provide law students with real-world experience to become leaders on First Amendment issues; and
  • Serve as a resource for organizations, journalists, public employees, and the public on issues of free expression and open access to public information.

>> Ian Kalish serves as a fellow at the Duke First Amendment Clinic this academic year. Kalish assists in litigating cases and helping build out the clinic’s Campus Speech Database that tracks free speech conflicts in colleges and universities nationwide.

>> In a Medium post, Harvard Cyberlaw Clinic’s Kendra Albert did a Q&A on their path from clinic student to clinical instructor, in honor of the Cyberlaw Clinic’s 20th anniversary. The experiences Albert held on to as a student are the same they try to give their students:

“[T]he projects that resonated with me the most when I was working in the Clinic were the ones where it’s like, ‘Okay, this real client needs this real thing involving trademark or so on and so forth.’ That’s something I take into my work with students now — the unique opportunity of clinics is to take things out of the research, academic thinking and to, ‘Okay, this client needs this real thing.’”

FELN Repository

New resource

Lecture on Prepublication Review: Fabio Bertoni, general counsel at The New Yorker, and Carolyn Foley, VP and associate general counsel at Penguin Random House, recently spoke over lunch with Reporters Committee attorneys on their approach to vetting reporting projects prior to publication. They agreed to let us share this discussion with FELN members and your students.

+ Contribute: Share your current syllabi, other internal documents, court documents, etc. that might be helpful for other members by emailing jmoore (at) rcfp (dot) org. That’s also how you can get the password to the member-only folders.

Scholarship

>> Rutgers’ Ellen P. Goodman, along with Karen Kornbluh, released a new report, “Safeguarding Digital Democracy,” that finds the U.S. information ecosystem is “woefully vulnerable” to the spread of disinformation on the Internet. The report, from the Digital Innovation and Democracy Institute at the German Marshall Fund, suggests a roadmap both for immediate policy actions and for further research and collaborations. It also looks at how prevalent disinformation related to the coronavirus is right now.

>> New Media Rights Executive Director Art Neill and Staff Attorney Erika Lee recently published an article in the University of Texas Intellectual Property Law Journal. The article, “Fixing Copyright Registration For Online Video Creators: The Case for Group Registration of Published Videos,” explores options for modernizing copyright registration, including group registration of videos.

Thanks for reading

 >> Share your news, or let us know your ideas, feedback or questions about this newsletter: jmoore (at) rcfp (dot) org

>> Sign up for the newsletter here.

This newsletter was compiled by Josh Moore at the Reporters Committee for Freedom of the Press.

Cornell clinic represents citizen journalist sued for defamation

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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.

Buffalo transparency clinic wins access to local jails’ records on suicide attempts

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The University at Buffalo School of Law Civil Liberties and Transparency Clinic, a Free Expression Legal Network member, successfully sued the Erie County Sheriff recently on behalf of the National Lawyers Guild Buffalo Chapter for access to the records of Buffalo’s local jails concerning suicide attempts by inmates.

The resulting records revealed that the sheriff, who runs the county’s jails, mischaracterized suicide attempts in the jails as “inmate disturbances” or “manipulative gestures.” This means that the jails failed to properly report suicide attempts to the state’s oversight commission, and the National Lawyers Guild argues it could frustrate attempts to prevent future suicides.

The clinic and the National Lawyers Guild won a near complete victory in the litigation, brought under New York’s Freedom of Information Law, in the trial court last fall. Among other things, the Court ordered the jail to turn over reports documenting incidents in the jails, internal policies and procedures, and relevant emails. As a result of the sheriff’s refusal to voluntarily release any documents, the clinic also won $27,000 in attorney’s fees.

The Sheriff’s Office has paid the attorney’s fees and produced many of the documents that were ordered released. It is appealing the lower court’s ruling, however, with respect to any emails.

The National Lawyers Guild argues that this appeal prevents it and the public from determining the full scope of the mischaracterization of suicide attempts in Buffalo’s jails. This issue is especially urgent because there has been a string of more than two dozen suicide deaths at the local jails in recent years, as The Buffalo News has written. More broadly, the jails have been cited as among the “worst offenders” for violations of state law by the state oversight commission.

A local reporter, Matt Spina, has covered the local jails for years. He assisted in this litigation by providing background on the jails’ past records practices and explaining the importance of the documents to the court. In an affidavit, Spina noted that it is “difficult or impossible to properly report stories” concerning local jails without the types of documents this lawsuit uncovered. The Buffalo News continues to publish stories about the litigation and also wrote an editorial strongly supporting the lawsuit and condemning the sheriff for appealing the order.

The clinic continues to represent the National Lawyers Guild in the appeal.

Clinics help transparency advocates win victory for public access to clinical trial data

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Note: A version of this post originally appeared on Yale Law School’s website.

A ruling from a federal judge on February 24, 2020, will dramatically expand the public’s right to access results of clinical trials studying drugs and medical devices. The ruling is the latest development in a lawsuit brought by the Yale Media Freedom and Information Access (MFIA) and NYU Technology Law & Policy (TLP) Clinics on behalf of Charles Seife and Dr. Peter Lurie, with the support of the Yale Collaboration for Research Integrity and Transparency (CRIT).

Judge Naomi Reice Buchwald of the Southern District of New York held that the Food and Drug Administration (FDA), National Institutes of Health (NIH), and Department of Health and Human Services (HHS) have misinterpreted a 2007 law that requires drug companies, universities, and other sponsors of clinical trials to disclose the results of clinical trials of FDA-approved products to the public via the ClinicalTrials.gov website.

The court’s order requires the government to collect and post about a decade’s worth of trial results that should be public under the 2007 law — making data from potentially hundreds of clinical trials available for the first time. “This is an extraordinary victory for patients and clinical trial researchers,” said Joseph Ross, Professor of Medicine and Public Health and faculty co-director of Yale CRIT. “The government now has a clear legal obligation to enforce these reporting requirements, and by doing so it will promote more fully-informed decision-making by patients and their clinicians.”  

Background on ClinicalTrials.gov and the need for clinical trial data

High-quality medical care requires high-quality evidence. But sponsors of clinical trials that investigate the safety and efficacy of medical products don’t always publish their results where doctors and patients can find them, according to the clinic. Instead, sponsors may “cherry-pick” data by publishing favorable clinical trial results and keeping secret unfavorable results.

“Recognizing this problem, Congress enacted the Food and Drug Administration Amendments Act (FDAAA) to ensure a flow of clinical trial evidence to patients, clinicians, and researchers through the public ClinicalTrials.gov website,” said Christopher Morten, supervising attorney at the TLP Clinic. “Yet NIH and HHS promulgated a rule and an interpretation of FDAAA that created an illegal ‘loophole.’” As MFIA student Simon Brewer explained, “the loophole purported to exempt many clinical trials of FDA-approved products completed between 2007 and 2017 from any obligation to ever report their results to ClinicalTrials.gov.” 

Seife emphasized the importance of the law: “The FDA is in charge of making sure that drugs on the market are safe and effective, but without access to data about those drugs, it’s nearly impossible to understand whether the agency is doing its job properly. ClinicalTrials.gov is a key source of this data.”

The MFIA-TLP lawsuit on behalf of Seife and Lurie

Seife and Lurie are two leading researchers on clinical trials whose research has been hindered by the absence of information on ClinicalTrials.gov. Seife is an investigative journalist at NYU whose work focuses on science and technology. Lurie is a family physician, president of the Center for Science in the Public Interest, and a former associate commissioner of the FDA.

In December 2018, MFIA filed suit on Seife and Lurie’s behalf. The suit sought to close the loophole and requested a declaration that NIH’s and HHS’s interpretation of FDAAA was inconsistent with the statute. Brewer argued Seife and Lurie’s case in court on February 11, 2020.

Judge Buchwald’s decision, issued on February 24, was a victory for Seife and Lurie on their loophole claim. The court concluded that “FDAAA unambiguously requires responsible parties [i.e., trial sponsors] to submit, and defendants to include on ClinicalTrials.gov,” results for loophole trials and therefore that “HHS’s contrary interpretation . . . is unlawful and must be set aside.”

“Judge Buchwald’s decision will help ensure that these government agencies and the drug and device industries are jointly held to account, and that the promise of the clinicaltrials.gov database be finally fulfilled,” said Lurie. “True transparency requires that all results of clinical trials be truthfully reported, be they positive, negative, or somewhere in between — and even in cases where the study sponsors or FDA would prefer not to disclose.”

The court also held that it could not grant relief on a separate claim, which asked for an order requiring NIH to post public notices of noncompliance whenever sponsors fail to submit results. Seife and Lurie are considering a potential appeal of this claim with their legal team.

Besides Brewer and Morten, Seife and Lurie’s legal team also included John Langford ’14, Adam Pan ’18, Jennifer Pinsof, and David Schulz ’78 of MFIA and Jason Schultz of the TLP Clinic. The lawsuit was conceived and supported throughout by CRIT members, including Alex Egilman, Gregg Gonsalves, Amy Kapczynski ’03, Harlan Krumholz, Shweta Kumar, Margaret McCarthy, Jennifer Miller, Joe Ross, and Joshua Wallach, and was further supported by Merith Basey of Universities Allied for Essential Medicines.

MFIA is a student clinic at Yale Law School dedicated to increasing government transparency and advancing the public’s right of access to information. TLP is a student clinic at NYU School of Law focused on issues at the intersection of technology, law, and social justice. The Collaboration for Research Integrity and Transparency (CRIT) is an interdisciplinary initiative launched in 2016 to enhance the quality and transparency of the research base for medical products. CRIT has received funding from Arnold Ventures. The lawsuit does not represent the institutional views of Yale University or NYU.  

UPDATE: Legal Clinic Fund proposals due May 8

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Editor’s Note: This post was updated on March 23, 2020, to reflect that the deadline has been extended to May 8.

A group of foundations announced that the Legal Clinic Fund is accepting proposals for a second round of funding for law school clinics.

The Legal Clinic Fund, launched last year, supports clinics “that seek to advance and defend First Amendment rights, media freedom, and transparency in their communities and nationally.” It provides grants for clinics’ growth, capacity building and experimentation to help ensure that journalists across the country have access to needed legal support.  

Proposals are due by the end of the day on May 8, with notifications of the awards planned for June. The original deadline of April 3 was extended as universities across the nation shifted to online and remote education to slow the spread of the novel coronavirus.

The fund is supported by The Abrams Foundation, Democracy Fund, Heising-Simons Foundation and The Klarman Family Foundation. The Miami Foundation serves as fiscal sponsor.

In 2019, the fund announced its first four recipients:

  • The University at Buffalo Civil Liberties & Transparency Clinic to expand its work with journalists, newsrooms and nonprofits in Western New York and the surrounding regions
  • Harvard Law School’s Cyberlaw Clinic to launch the Initiative for a Representative First Amendment (IfRFA), which provides financial support and career opportunities for law students from backgrounds traditionally underrepresented in First Amendment law
  • The Intellectual Property, Arts, and Technology Clinic at University of California Irvine to increase its capacity to support independent journalists, documentary filmmakers, bloggers, media advocacy groups and others, with a particular focus on California
  • Cornell Law School’s First Amendment Clinic to expand its Local Journalism Project, which serves local and regional newsgatherers in New York, Vermont, Pennsylvania and nearby states


More information about the application process and fund guidelines is available on the fund’s webpage.

All questions should be directed to Lindsey Linzer from The Miami Foundation at LLinzer@miamifoundation.org.

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

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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.

Applications open for IfRFA summer fellowship program

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The Initiative for a Representative First Amendment (IfRFA) is current accepting applications for fellowships to work on free expression issues at a law school clinic in summer 2020.

First- and second-year law school students who self-identify as a person from a background underrepresented in First Amendment law are eligible for the program, which also includes a seminar that will reflect on students’ experiences. IfRFA, based at the Harvard Cyberlaw Clinic and directed by Kendra Albert, aims to provide career opportunities and financial support to students from these underrepresented backgrounds.

Applications are due Jan. 10, with fellowship decisions made in February. IfRFA will help place fellows with First Amendment or free expression clinics once they are selected.

More information about the program and the application requirements are available at: www.ifrfa.org.

IfRFA is funded by the Legal Clinics Fund.

Screenshot via the IfRFA website