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Cornell Clinic Analysis: Trump White House NDAs are likely unconstitutional

Note: A version of this post originally appeared on Cornell University’s Cornell Chronicle website.

The nondisclosure agreements (NDAs) that President Donald Trump has required many White House employees to sign — unlike any previous administration — are likely unconstitutional, according to an analysis by Cornell Law School’s First Amendment Clinic.

A civil lawsuit filed Oct. 12 by the Department of Justice — against Stephanie Winston Wolkoff, a former unpaid aide to First Lady Melania Trump and author of a tell-all book — marks the administration’s first attempt to enforce one of the NDAs.

The case exposes an overbroad agreement that infringes on the First Amendment rights of both government employees and the press, representing “a grave affront to our system of free expression,” according to the clinic’s report, “Nondisclosure Agreements in the Trump White House,” released Oct. 20.

“The First Amendment enshrines a collective commitment to vibrant public debate on issues of governance,” the report states. “Allowing the White House to stymie damaging revelations for political purposes would subvert the standard of transparency to which we hold our democratically elected officials.”

First Amendment Fellow Tyler Valeska is the lead author of the analysis with Law School student co-authors Michael Mills, Melissa Muse and Anna Whistler.

Said Valeska: “We think the White House NDAs are unconstitutional in the vast majority of applications.”

Now commonplace in the private sector, corporate NDAs became widespread in Silicon Valley in the 1970s as a means to protect intellectual property, according to the report. They are often employed by political campaigns, including Trump’s and Hillary Clinton’s in 2016, and Trump has used them extensively in his businesses and personal life.

But contrary to public statements by some of his advisers, the researchers say, Trump is the first president to implement private sector-style secrecy agreements for White House staff, reportedly ranging from senior aides to interns.

“President Trump’s White House NDAs differ immensely from the practices of previous administrations,” they wrote.

Since the Eisenhower administration, “executive privilege” has protected deliberations between presidents and senior advisers to ensure candid discussion of sensitive matters.

Government employees and contractors granted access to classified information must sign Standard Form 312, agreeing not to disclose that information without authorization in the interest of national security.

But the Trump White House NDAs – instituted in 2017 in reaction to leaks – appear to go much further, the researchers say, banning disclosure of all “nonpublic, privileged and/or confidential information,” including any information about Trump’s businesses or family. They also apply indefinitely.

When classified material isn’t at issue, First Amendment jurisprudence generally prohibits prior restraints on speech and government discrimination against speech based on its content or viewpoint. Any such infringements must pass strict legal scrutiny, according to the analysis.

That means the White House NDAs must serve a compelling government interest and be narrowly tailored. Instead, the authors say, the NDAs are “remarkably broad” in scope and the government has “no substantial interest” in hiding information embarrassing to the president.

“A former government official challenging the constitutionality of a White House NDA would have a strong case,” the report states.

Prohibiting government employees’ speech about nonclassified information also infringes on the rights of the press to gather information and receive it from willing sources, the authors argue.

“This is basic First Amendment theory, that for democracy to function properly you need to know what your government is doing in order to inform opinions about whether or not they’re doing it well,” Valeska said. “The primary way that we get that information is through the press via government sources.”

The Wolkoff case, the authors concluded, represents a “line in the sand,” with the Justice Department presenting weak legal arguments that the courts and future administrations should reject.

“Should the government prevail, the speech rights of wide swaths of future executive branch employees would be jeopardized,” the report says. “And the free flow of information that drives our democracy would be severely inhibited.”

University at Buffalo clinic prevails in Niagara County public records case

Note: A version of this post originally appeared on the University at Buffalo School of Law website.

BUFFALO, N.Y. — Represented by the Civil Rights & Transparency Clinic at the University at Buffalo School of Law, the New York Coalition for Open Government won a lawsuit against Niagara County that requires the release of years of financial disclosures of county officials.

On Sept. 10, 2020, Supreme Court Justice Frank Caruso invalidated Niagara County’s local laws that blocked potential financial conflicts from disclosure by elected officials since 1996.

Judge Caruso ordered the county to release all financial disclosures from Niagara County legislators since 2013. These documents contain information about elected officials’ businesses, investments, property and outside employment. Subject to public view for the first time in 24 years, the ruling allows the press and public to assess whether legislators have financial conflicts that may influence their decision-making.

“Niagara County legislators withheld these documents because they valued their own privacy over the public’s right to know. We’re pleased with the court’s ruling that validates our client’s long-held position that these were public documents that could not be kept secret,” said Michael Higgins, assistant director of the Civil Rights & Transparency Clinic, who argued the motion.

“We’re committed to bringing cases that law firms may not be able to accept,” said Heather Abraham, the clinic’s director. “For years, Niagara County was able to conceal potential financial conflicts of its elected officials, all because the average person does not have the time and money to challenge these laws in court. Our litigation realigns the power imbalance between the government and public citizens. We will continue to fight to promote government transparency in our region.”

The Civil Rights & Transparency Clinic is a litigation clinic at the University at Buffalo School of Law. Its mission is to advance justice through litigation and policy advocacy that protects civil rights and civil liberties, and makes government more transparent.

The clinic’s mission is supported by the Legal Clinic Fund, a collaborative fund that supports the growth and sustainability of legal clinics across the United States that seek to advance and defend first amendment rights, media freedom, and transparency in their communities and nationally. The fund is generously supported by Democracy Fund, Heising-Simons Foundation, and The Klarman Family Foundation. The Miami Foundation serves as fiscal sponsor for the fund.

Law enforcement and COVID to be focus of virtual Access and Accountability Conference

The Access and Accountability Conference will convene virtually Oct. 23-24, with attendees exploring the impact of the pandemic on access to information and what we can learn from recent experiences about how to improve FOIA and transparency.

The annual conference, hosted by the Media Freedom & Information Access Clinic at Yale Law School, brings together Free Expression Legal Network members — both law school clinicians and academics — as well as investigative journalists, practicing lawyers, 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 NGOs, 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.

The conference provides a valuable opportunity for FELN members to brainstorm issues and strategies with leading scholars and practitioners, and for clinicians to share their success stories and develop plans for future collaborations. It is made possible by generous support from the Democracy Fund and the John S. and James L. Knight Foundation.

The unique structure of the conference has produced some terrific conversations in past years, and current events suggest that this year’s conference will be more enlightening, motivating and rewarding than ever. Attendees this year will take up the lessons to be learned from the current moment, with a particular focus on law enforcement accountability, executive branch accountability, and the transparency failures of the COVID pandemic.

Register for the conference here.

A tentative list of conference sessions is provided below.

Friday, Oct. 23

  • What the pandemic has taught about transparency
    • FOIA successes and failures
    • Zoom justice and the future of court access
  • Newsgathering in troubled times
  • Law enforcement accountability
  • Surveillance and security
  • Executive branch accountability

Saturday, Oct. 24

  • Collaboration colloquies
    • Supporting local journalism
    • Creating Precedent before the Facebook Oversight Board
  • Nuts and bolts: Litigating abuses of power
  • Success stories of law school clinics
  • Open meeting of the FELN steering committee

Lubell joins Cornell clinic to support local journalists in NYC region

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

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

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

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

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

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

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

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

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

UGA clinic files amicus brief arguing ‘false information’ law chills journalists

Note: A version of this post originally appeared on the University of Georgia First Amendment Clinic’s website.

On August 13, the University of Georgia First Amendment Clinic, in collaboration with PEN American Center, Inc., filed an amicus brief in Puerto Rico’s federal district court arguing that a recently enacted “false information” law chills journalists from reporting on public emergencies and burdens the public’s First Amendment interest in receiving information from the press.

Amicus Brief – Filed 08.13.20

Puerto Rico’s law, passed in April and amended in July, imposes six months’ jail time and/or a $5,000 fine for disseminating knowingly false information in the context of a “warning or false alarm” or if it creates “imminent risk” of harm. As the law does not define these terms and includes no safe harbor provisions, it creates a credible threat of prosecution for reporters and news media working to inform the public about rapidly evolving situations during state-declared emergencies. Internationally, statutes which criminalize false
or misleading news have become tools for suppressing legitimate reporting and citizen dissent. Puerto Rico’s law similarly provides a powerful tool for punishing news reporting and other speech that the government disfavors.

“Such broad discretion on the part of government to retaliate against its critics is particularly chilling to members of the press and their publishers who serve the essential role of shining light on state action, including governmental ineptitude, corruption or abuse,” the brief reads. Because of this law, “journalists, publishers, and their sources wishing to avoid arrest or prosecution will necessarily refrain from contributing to the public debate on any number of matters of public concern during a state-declared emergency or disaster, including criticizing the government or speaking counter to government narratives.”

The brief further argues that the chilling effect of the law “impedes the ability of the press to perform its ‘essential role’ of informing the public . . . This, in turn, inhibits the free flow of information upon which the public relies in exercising their own First Amendment rights and significantly hinders their ability to hold their government accountable or to bring about lawful change.”

The government defendants opposed the filing of the amicus brief but were overruled by the Puerto Rico district court, which accepted the brief for consideration.

Opposition to Amicus Brief
Amici’s Reply in Support of Brief

Clinic Fellow Samantha Hamilton and law student Jeffrey Murphy contributed to the brief written by Clinic Director Clare Norins and PEN America’s Nora Benavidez, and filed by local counsel in Puerto Rico.

Aided by MFIA Clinic, FBI agent’s book on enhanced interrogation rereleased

Note: A version of this post originally appeared on the Yale Law School’s Media Freedom and Information Access Clinic’s website.

A book by former FBI agent Ali Soufan was rereleased recently and now includes his eyewitness account of the CIA’s harsh interrogation of Guantanamo detainee Abu Zubaydah and the program’s failure in garnering useful information.

Retitled The Black Banners (Declassified): How Torture Derailed the War on Terror After 9/11, Soufan’s book was originally released in 2011, but the CIA made its publisher, W.W. Norton & Company, remove most of its discussion of the CIA’s torture of Zubaydah. The withheld material has now largely been restored thanks to the creative litigation efforts of the Media Freedom & Information Access (MFIA) Clinic and Yale Law School students David Froomkin ’22 and Katrin Marquez ’20. 

MFIA’s client was not, in fact, Soufan himself. Acting on behalf of award-winning documentarian Alex Gibney and former New York Times reporter Ray Bonner, MFIA succeeded in compelling the CIA to lift the restrictions it imposed on Soufan by asserting that the CIA was violating their rights to receive information that Soufan was otherwise willing to share. Gibney and Bonner are currently working on a documentary about Zubaydah and the CIA’s enhanced interrogation program, and wanted to interview Soufan, but he would not talk as long as the CIA restrictions remained in place on that topic.

Soufan was the lead FBI interrogator who questioned suspected al Qaeda leader Zubaydah after he was first taken into U.S. custody. Soufan had questioned many other notorious terrorism suspects over the course of his years with the bureau. He recalls in his book that he managed to obtain useful information from Zubaydah using standard FBI questioning techniques before the CIA took over the interrogation. Soufan has long contended that the CIA’s subsequent use of enhanced interrogation techniques produced no actionable intelligence from Zubaydah.

After leaving the FBI, Soufan wrote a book about his experiences fighting the war on terror but was effectively silenced from telling the whole story by the CIA. For the past nine years, the CIA insisted that nearly the entire chapter about the interrogation of Abu Zubaydah, as well as other sections of the book, could not be published because they disclosed classified information. The book was released to the public with blacked out sections over all of the material to which the CIA objected.

Subsequently, much of what Soufan had written about was made public by a declassified 2014 Senate study on the CIA’s extremely harsh interrogation techniques. Many aspects of these topics were also already published in multiple CIA-approved books written by high ranking CIA officials who were at the helm of orchestrating the enhanced interrogation program. These CIA-approved books included many details about Zubaydah and the enhanced interrogation program that had been removed from Soufan’s book. Yet the CIA still declined to allow Soufan to speak.

The MFIA clinic took on the case after Gibney and Bonner contacted Soufan in connection with their documentary. Frustrated that the CIA was pursuing what Soufan has called a “disinformation campaign” to mislead the public and lawmakers into believing that torture works — Soufan wanted to tell Gibney and Bonner what he observed. But because of the CIA’s classification of his book, he was unable to speak to them, on or off camera.

To address this roadblock, the MFIA clinic went to court on behalf of Gibney and Bonner, asserting that the CIA’s effective gag order on Soufan was infringing upon the journalists’ First Amendment rights. The lawsuit was filed in late 2018 in the Southern District of New York. In response, the government agreed to review Soufan’s book anew, and to reconsider the classification status of the removed material. Through this process of review and negotiations, the CIA agreed to remove most of the redactions, allowing Soufan to describe publicly what he observed during these enhanced interrogations for the first time. This week the largely unsealed book is finally being published in its entirety.

Gibney and Bonner expect to complete their documentary for release next year. Gibney greeted news of the release of Soufan’s unredacted book by tweeting, “This is an important day.” As Bonner explained, “thanks to the Yale Law students, Ali Soufan can now give a full interview and we now have reams of useful documents that you [the MFIA Clinic staff and its law students] were able to get us through FOIA.”

In announcing the release of the unredacted book, Soufan expressed his gratitude for “the amazing team at Yale Law School,” and ultimately told the New York Times that, “if you fight for the truth hard enough, eventually you will win.”

Cornell First Amendment Clinic files suit seeking wage theft documents

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

RELATED: Cornell clinic represents citizen journalist sued for defamation

Cyberlaw Clinic files amicus brief on behalf of journalists supporting firearms database transparency

Note: A version of this post originally appeared on the Cyberlaw Clinic’s blog.

The Harvard Cyberlaw Clinic filed an amicus brief (pdf) last week in the United States Court of Appeals for the Second Circuit on behalf of a group of data journalists and media organizations, advocating for greater access to government records stored in databases under the Freedom of Information Act (FOIA).

The brief supports the plaintiff-appellee Everytown for Gun Safety Support Fund (Everytown) in an appeal arising out of a FOIA request submitted by Everytown to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). This is the second brief the Clinic has filed on this topic, the first being filed in Spring 2019 in the case CIR v. DOJ.

The ATF hosts a database known as the Firearms Trace System, or FTS. The FTS contains data about the source and movement of firearms recovered by federal, state and local law enforcement. Everytown requested records containing data on successful traces for firearms used in suicides and suicide attempts, aggregated along several axes including state and time period. Everytown specifically requested aggregate data because the ATF’s history of relying on the Tiahrt Amendment, a rider contained in annual appropriations acts from 2003 to 2012 that prohibits disclosure of firearm trace information to non-law enforcement requesters, but allows the release of “statistical aggregate data.”

The ATF did invoke the Tiahrt Amendment, but also claimed that it was not obligated to release aggregate records because doing so would constitute creation of a new record, which is not required of agencies under the FOIA. The ATF outline a detailed process that involved not only locating and producing the responsive records, but also cleaning up the data, filling in missing data points, and producing data visualizations. The ATF argued that these steps exceed what was required under the FOIA.

The District Court for the Southern District of New York found in favor of Everytown, ruling both that the Tiahrt Amendment did not constitute a proper basis for a FOIA exemption and that production of the requested data did not require creation of new records. The ATF then appealed to the Second Circuit.

The amicus brief submitted by the Clinic focuses on the new records question, arguing that access to aggregate data in a database does not require creation of a new record because it uses the same functions as access to individual data points–a task the ATF recognizes is required under the FOIA. The brief provides a brief explainer on the nature of databases and notes that, contrary to the ATF’s argument, there is no technical difference between searching for “raw” data or “aggregate” data. It goes on to argue that there should, therefore, be no legal difference between the two.

The brief also addresses the ATF’s attempt to inflate the time required to respond the Everytown’s request by including data clean up and visualization work, neither of which would be conducted in response to a typical FOIA request. Finally, the brief points out the negative consequences of the ATF’s restrictive view of the FOIA, which would require requesters, agencies and courts alike to have detailed technical knowledge of agency databases in order to make, process and review FOIA requests.

Amici on the brief include:

  • MuckRock, a journalism and government transparency nonprofit that has helped thousands of requesters around the United States better file, share and understand freedom of information requests;
  • The Reporters Committee for Freedom of the Press, an unincorporated nonprofit association whose attorneys provide pro bono legal representation, amicus curiae support and other legal resources to protect First Amendment freedoms and the newsgathering rights of journalists;
  • Dana Amihere, data editor at Southern California Public Radio (KPCC/LAist);
  • Meredith Broussard, an associate professor at the NYU Arthur L. Carter Journalism Institute and author of “Artificial Unintelligence: How Computers Misunderstand the World”;
  • Stephen K. Doig, a senior faculty member of the Walter Cronkite School of Journalism at Arizona State University; and
  • Jeff South, a retired professor from Virginia Commonwealth University who specializes in data journalism.

The Cyberlaw Clinic is honored to have represented these amici and hopes the Second Circuit Court of Appeals will take into account their expertise. The brief was written by Spring 2020 clinical students Sarah Alawi, Stephany Bai and Lauren Yonkoski with supervision from Clinical Instructor Mason Kortz.

Resources for journalists covering protests

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.