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

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

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

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

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

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

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

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

Read more from the clinics’ filings in the case:

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

Applications open for IfRFA summer fellowship program

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

New Media Rights helps bring the story of farm workers advocate Maria Moreno to PBS

A version of this post originally appeared on New Media Rights’ blog on December 3, 2019.

New Media Rights attorneys and California Western School of Law students recently worked on “Adios Amor,” a powerful documentary by Jane Greenberg and Laurie Coyle that debuted on PBS this fall.

In “Adios Amor,” the discovery of lost photographs sparks the search for a hero that history forgot—Maria Moreno, a migrant mother driven to speak out by the hunger of her 12 children. Years before Cesar Chavez and Dolores Huerta launched the United Farm Workers, Maria picked up the only weapon she had—her voice—and became an outspoken leader in an era when women were relegated to the background. The first farm worker woman in America to be hired as a union organizer, Maria’s story was silenced and her legacy buried—until now.

Documentaries often need a variety of legal services, from hiring a crew, to copyright, fair use and licensing, to distribution agreements. New Media Rights works with a variety of documentary and fictional video creators to overcome the legal hurdles to making their productions a reality.

“We are grateful to New Media Rights for their review and Fair Use opinion letter of our documentary film,” said Laurie Coyle, director/producer, and Jane Greenberg, co-producer. “The clinic stuck with the review despite our extended timeline. Staff was extremely knowledgeable, thorough and professional and saved us money. Our E&O underwriter accepted the review without question. We would gladly work with New Media Rights on future projects and highly recommend the clinic.”

New Media Rights Executive Director Art Neill said his organization and students were “proud to have helped on the legal side to ensure that Maria Moreno’s story reaches the public. The film tells a largely unheard but important story about a mother and advocate who played an important role in advancing farmer workers’ rights.”

New Media Rights student fellow Alexandra Inman, currently a third-year student at California Western School of Law, worked with Neill on this project.

“As someone who aspires to work in entertainment law, it is a great experience to work through a fair use review for a documentary filmmaker,” Inman said. “It’s wonderful to practice on something that is often discussed in an interview in entertainment law and is not a common experience for a law student. Working alongside a filmmaker as they are turning their ideas into a final product to be enjoyed by a broad audience is an exhilarating experience that encourages practice of many of the client engagement skills we learn throughout law school while actively advocating for the creative ideas of our client.”

Photo via the “Adios Amor” Facebook page.

Newsletter: Three new First Amendment clinics launching next year

Editor’s Note: This post was updated on Nov. 27, 2019, to add two additional news items.

Welcome to the inaugural newsletter from the Free Expression Legal Network, a coalition of law school clinics, law professors and others working on free speech, free press and government accountability issues. This newsletter will highlight the important work done by our members and others in this space. We’ll be experimenting with content and timing over the next few months, so please let us know what you think.

Sign up for our monthly newsletter here.

Three new First Amendment clinics launching next year

Law schools at Tulane University, the University of Georgia and Southern Methodist University have recently announced they will add First Amendment clinics next year, thanks to grants from the Stanton Foundation.

The clinics will allow students to represent clients in matters related to the First Amendment rights of speech, press, petition and assembly. Tulane and UGA will be hiring directors, while SMU has appointed Tom Leatherbury as director of its clinic. [Read more]

Tulane, UGA and SMU will join a number of clinics launched recently to work on First Amendment issues. Stanton, for example, has also helped start First Amendment clinics at the University of Washington at St. LouisArizona State UniversityCornell UniversityDuke University, and Vanderbilt University, all within the past couple years. The University of Virginia also re-launched its First Amendment Clinic this year in partnership with the Reporters Committee, and George Mason University started a Free Speech Clinic in 2018.

With these 10 new, relaunched or soon-to-launch clinics since 2018, there are now more than a dozen clinics focused exclusively on First Amendment and/or government transparency issues. There are also more than a dozen other clinics, focused on tech law, intellectual property or other subjects, doing significant work in this space.

Enter the Free Expression Legal Network, which helps many of these clinics collaborate and share resources and other tools. The FELN website highlights some of the clinics’ work, and we’ll use this newsletter to do that too.

+ See also: FELN’s public launch sparked coverage by Law.com on the increasing number of these law school clinics
+ ICYMI: FELN formally launched in September with 22 clinic members and more than two dozen law professors

Recently on FreeExpression.law

UC-Irvine’s Intellectual Property, Arts, and Technology Clinic won disclosure of child services records earlier this year, revealing how social workers failed to protect a 10-year-old Los Angeles boy from years of alleged physical abuse, eventually ending with his death and murder charges being filed against his mother and her boyfriend. [Read more]

The Harvard Cyberlaw Clinic announced the Initiative for a Representative First Amendment, a fellowship program for legal practitioners and practitioners-in-training who exist at the intersection of multiple marginalized identities. The Initiative will provide stipends for fellows to work at legal clinics specializing in First Amendment or freedom of expression work. [Read more]

+ See also: Harvard’s initiative is one of four grants made during the first round of the Legal Clinics Fund

The Cornell First Amendment Clinic also received support from the Fund to expand its Local Journalism Project, which provides pro bono representations to investigative journalists and news outlets that cannot otherwise afford representation. So far, the clinic has represented a New York newspaper alleging First Amendment retaliation for publishing critical editorials of its local government’s decision to disband the paid fire department, and also uncovered potential violations of open meetings laws by this same government. It has also helped a freelance journalist separately obtain documents related to rape kit testing. The clinic will hire a full-time staff attorney to help teach students as well as oversee cases as part of the Project.

American University’s Glushko-Samuelson Intellectual Property Law Clinic recently provided intellectual property counseling on the PBS documentary film “Look Who’s Driving,” about self-driving vehicles. [Read more]

In the News

>> As VTDigger reports, the Cornell First Amendment Clinic’s ongoing representation of the Vermont news outlet helped uncover missing documents related to the nation’s largest EB-5 scandal. (EB-5 is a federal program that allows foreign investors to obtain green cards in the United States in exchange for investing a minimum of $500,000 for the creation of 10 jobs in economically impoverished areas.) The State of Vermont admitted it could not find emails from one of the top officials who oversaw the state’s administration of the EB-5 program, and was unable to explain what happened to these emails. In part due to Cornell’s efforts on VTDigger’s behalf, the state conducted an audit of its email system and uncovered a missing external hard drive with additional documents, which it produced.

>> The St. Louis American writes that the First Amendment Clinic at Washington University represents a woman who alleges that a police officer violated her First Amendment rights when he took her cellphone while she was videoing an arrest.

>> KPNX-12 News in Phoenix reports on documents from the Arizona Public Service, which the ASU First Amendment Clinic helped them obtain. The internal customer survey results contradict the public utility’s claims that most customers were satisfied with the company.

>> The Associated Press notes that the ASU First Amendment Clinic also helped the AP gain access to the 2017 findings of a court-appointed investigator re-examining misconduct investigations by the office of former Maricopa County Sheriff Joe Arpaio. The AP reports that the documents show, among other things, that Arpaio’s aides ignored a court’s order to stop immigration sweeps that targeted Latinos.

>> Courthouse News Service writes that the University of Virginia First Amendment Clinic argued on behalf of the Virginia Press Association that a $50 million defamation by implication lawsuit by actor Johnny Depp against his former wife could have a chilling effect on the state’s news organizations. The proposed amicus brief was also covered by the Associated Press.

>> The Richmond Times-Dispatch explains that the Yale Media Freedom & Information Access Clinic represents the newspaper and other news media organizations in suing the Virginia Department of Corrections to allow citizens and journalists to witness executions in the state from start to finish. The lawsuit was also covered by the Associated Press.

FELN Job Board

A number of positions, including clinical staff, fellowships and a summer associate position, are listed on the FELN Jobs Board. Contact each organization directly with questions or to confirm the position is still open.

If you have a job posting of interest to clinicians or students, email it to jmoore (at) rcfp.org.

Other Recent Work

The Intellectual Property, Arts, and Technology Clinic at UC-Irvine is representing the First Amendment Coalition in a motion to unseal records in the criminal case against a man charged in the stabbing death of a teenager at a Bay Area Rapid Transit station in Oakland.

In Dr. Seuss Enterprises v. ComicMix LLC, a Ninth Circuit case concerning copyright fair use, Berkeley’s Samuelson Law, Technology & Public Policy Clinic filed an amicus brief, and the Harvard Cyberlaw Clinic filed an amicus brief as well.

Yale’s Media Freedom and Information Access Clinic filed a lawsuit challenging a Texas statute making it a crime for journalists and others to use drones for newsgathering and similar activities. The suit is on behalf of the National Press Photographers Association, the Texas Press Association and an independent journalist.

Duke’s First Amendment Clinic filed an amicus brief asking the U.S. Supreme Court to take up Butler v. Board of County Commissioners for San Miguel County, which involves the First Amendment’s application to government employee speech.

+ See also: The First Amendment Clinic at Washington University also filed an amicus brief in Butler on behalf of a group of First Amendment scholars, many of which are non-clinician members of FELN.

The University of Virginia’s First Amendment Clinic filed an amicus brief on behalf of the Reporters Committee in support of a motion to dismiss by Daniel Hale, a former Air Force service member being prosecuted for allegedly leaking classified documents about the “targeted killing” drone program.

FELN Repository

New resource

History of the First Amendment Lecture: Gabe Rottman, director of the Technology and Press Freedom Project at the Reporters Committee who also teaches the First Amendment Clinic at the University of Virginia School of Law, recently gave an hour-long lunchtime lecture (to both lawyers and non-lawyers) on the history of the First Amendment. This lecture is now available for FELN members to download and share with students in whatever way that may be useful. 

Syllabi

Over the summer, we added additional syllabi to the repository as well. A number of members used these examples while they were creating or modifying their syllabi for this academic year.

+ Contribute: Take a moment to share your current syllabi (and any other internal documents, court documents, etc.) by emailing jmoore (at) rcfp.org. That’s also how you can get the password to the member-only folders.

At the Supreme Court

A number of clinics recently filed amicus briefs at the U.S. Supreme Court in Georgia v. Public.Resource.org, which asks whether annotations in the Official Code of Georgia Annotated are copyrightable. The Supreme Court will hear oral arguments Dec. 2.

  • Berkeley’s Samuelson Law, Technology & Public Policy Clinic, on behalf of major library associations [Brief]
  • Colorado’s Samuelson-Glushko Tech Law & Policy Clinic, on behalf of disability advocates [Brief]
  • Harvard Cyberlaw Clinic, on behalf of the Caselaw Access Project, a team of legal researchers, software developers and law librarians [Brief]
  • Stanford’s IP and Innovation Clinic, on behalf of next-generation legal research platforms and databases [Brief]
  • USC’s IP & Tech Law Clinic, on behalf of 39 law students, 24 solo and small-firm practitioners of law, and 38 legal educators, including some FELN members [Brief]
  • Vanderbilt’s First Amendment Clinic, on behalf of the Tennessee Coalition for Open Government and the Florida-based Human Rights Defense Center [Brief]

Share your news with us

🗞️ Keep us in the loop on what your clinic is working on so we can share it on FreeExpression.law or in this newsletter (deadline for next month’s newsletter is Dec. 12): jmoore (at) rcfp.org

💬 We would love to hear your ideas, feedback or questions about this newsletter: jmoore (at) rcfp.org

👥 Think someone else would enjoy this newsletter? Forward it to a colleague. They can sign up here.

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

Tulane, UGA, SMU to add First Amendment clinics in 2020

The number of First Amendment clinics across the country continues to grow, with three law schools recently announcing clinics that will launch in fall 2020.

The Stanton Foundation provided grants to establish new clinics at Tulane University, the University of Georgia and Southern Methodist University. Each of the clinics will allow students to represent clients in matters related to the First Amendment rights of speech, press, petition and assembly.

The First Amendment Clinic at Tulane Law School will hire a new director to lead the clinic, according to the school’s announcement. It will also be advised by a panel of Tulane faculty, including Amy Gajda, Stephen Griffin, Catherine Hancock, Lucia Blacksher Ranier and Keith Werhan.

“In the classroom and through the clinic, Tulane will prepare future generations of lawyers and civic leaders committed to defending First Amendment values critical to our democracy,” Dean David Meyer said.

The University of Georgia School of Law’s First Amendment Clinic has also begun searching for a director, according to the school’s press release.

“The law school community is excited about this partnership, which will not only support the First Amendment, but also give our law students the chance to protect the rights of individuals and to raise civic awareness in communities throughout the Southeast as they learn how to navigate cases and assist clients so they will be effective lawyers after graduation,” Dean Peter B. “Bo” Rutledge said.

At Southern Methodist University, the Dedman School of Law appointed First Amendment attorney Tom Leatherbury as the new First Amendment Clinic’s first director, according to the university’s release. The school will hire a full-time fellow to handle day-to-day administration.

“This Clinic will make its mark across the state and the nation, using best practices of clinical legal education to strengthen First Amendment values and to improve access to justice,” Leatherbury said.

The Stanton Foundation, which also supports First Amendment clinics at a number of other universities across the country, was created by Frank Stanton, the long-time president of CBS.

For links to the job postings associated with the new clinics, visit FELN’s Jobs Board.

American’s IP Clinic advises PBS documentary ‘Look Who’s Driving’

Students at American University’s Glushko-Samuelson Intellectual Property Law Clinic recently provided intellectual property counseling on the documentary film “Look Who’s Driving,” which debuted on PBS on October 23.

The 53-minute film by Kikim Media aired on PBS’s science program NOVA. It explores how self-driving cars function, how they may change the way we live and whether they are safe.

The clinic’s blog post on the documentary notes that its “work on this film is part of its long-standing effort helping documentary filmmakers follow best fair use practices.”

Photo via PBS International

Harvard Cyberlaw Clinic announces launch of new First Amendment fellowship program

This post originally appeared on the Cyberlaw Clinic’s blog on October 15, 2019. Read about other grant recipients of the Legal Clinic Fund here.

The Harvard Cyberlaw Clinic, in partnership with the Berkman Klein Center for Internet & Society at Harvard Law School, is proud to announce the launch of the Initiative for a Representative First Amendment (IfRFA) in the fall of 2019.  Directed by Kendra Albert, a Clinical Instructor with the Cyberlaw Clinic and Lecturer on Law at Harvard Law School, IfRFA aims to expand the study of First Amendment, free speech, and freedom of expression issues to include the active participation of legal practitioners and practitioners-in-training who exist at the intersection of multiple marginalized identities. The Initiative seeks to cultivate a broader and more diverse community of freedom of expression practitioners, allowing for heightened engagement on a wide range of free expression issues.

IfRFA’s creation was also guided by the principle that the onus of diversity and representation should not fall exclusively on the shoulders of the underrepresented, and that more effort needs to be made on the part of elite institutions to challenge existing patterns of systemic bias. In the words of Initiative Director Kendra Albert, “It’s on those of us already in First Amendment practice to create opportunities for a new generation of law students to see how the issues that matter to them are affected by the First Amendment. The Cyberlaw Clinic is proud to host such an important initiative, and we’re grateful to our clinical community and funders for supporting it.”

This fall, IfRFA will begin accepting applications from students at law schools throughout the United States to select a small group of qualified Fellows for placement at legal clinics specializing in First Amendment or freedom of expression work. Fellows will be given stipends to both perform clinic work as well as the opportunity to participate in facilitated discussions about emerging and ongoing issues in free speech law. The provision of stipends aims to further democratize the application process by relieving prospective participants of the burden of choosing between joining IfRFA or a well-paying job. Once live, the application for the fellowship program will be open to 1L students until early spring of next year, with the in-person programming kicking off in earnest in the summer of 2020.

Tackling challenges to freedom of expression requires the inclusion of First Amendment practitioners who vary in terms of race, gender identity, sexual orientation, religion, and ability. Designed to bolster the voices and impact of law students of color and LGBTQ law students,  IfRFA endeavors to make free speech practitioners as diverse as the populations affected by freedom of expression issues. The Initiative also aims to widen the scope of issues free speech practitioners can investigate along with arguments and evidence they can marshal. 

The Initiative is being advised by G.S. Hans, Assistant Clinical Professor of Law at Vanderbilt Law School, and Christopher Bavitz, the WilmerHale Clinical Professor of Law at Harvard Law School. It has been financially supported by the Legal Clinics Fund, a fund established by Democracy FundHeising-Simons Foundation, and the Klarman Family Foundation.

Information about IfRFA’s application requirements and deadlines will be made available upon the fellowship’s official launch in the fall. To stay up-to-date with IfRFA, join the fellowship program’s mailing list here.

UC Irvine’s IPAT Clinic wins disclosure of child services records

This post originally appeared on the IPAT Clinic’s website on September 16, 2019.

Students from the UCI Intellectual Property, Arts, and Technology Clinic won disclosure of government records earlier this year, revealing how social workers failed to protect a 10-year-old Los Angeles boy from years of alleged physical abuse, eventually ending with his death and murder charges being filed against his mother and her boyfriend.

The clinic’s client, journalist Garrett Therolf, published a lengthy story about the boy, Anthony Avalos, in the Los Angeles Times on September 4 based in part on the documents obtained by UCI students.

Students Cassie Doutt, Shanxi Feng, and Emily Asgari filed a petition with the Los Angeles Superior Court’s juvenile court division in March 2019 on behalf of Therolf, a staff writer at the UC Berkeley Investigative Reporting Program, asking the court to unseal records from the LA Department of Children and Family Services detailing years of alleged abuse of young Anthony.  In July, a judge ordered most of the records unsealed, and Garrett was provided the documents in late August.

The students are part of the IPAT Clinic’s Press Freedom and Transparency practice, headed by UCI Staff Attorney Susan E. Seager, providing pro bono legal services to journalists, documentary filmmakers, and others.

Photo by Mathieu Marquer is licensed under CC BY 2.0

ASU First Amendment Clinic wins argument to unseal documents in high-profile trial

This post originally appeared on Arizona State University’s ASU Now site on August 26, 2019.

The trial of Scott Warren took center stage this summer in the nation’s passionate debate over immigration. Warren, a humanitarian aid worker with the group “No More Deaths,” was facing felony charges — and up to 20 years in prison — for aiding immigrants in the southern Arizona community of Ajo. That assistance included providing water and other basic assistance and, according to the federal authorities, helping them avoid detection. To government prosecutors, he was a felon aiding and abetting in illegal immigration. To his defenders, he was simply a compassionate Samaritan following a moral calling to help those in desperate need.

But despite the national spotlight and intense media scrutiny, little was known about the investigation that had led to Warren being charged in the first place. A journalist with The Intercept had hit a roadblock trying to gain access to sealed court documents, and on June 11, jurors were unable to agree on a verdict and the case ended in a mistrial. For the First Amendment Clinic at the Sandra Day O’Connor College of Law at Arizona State University, it was the perfect case.

Answering the call

The clinic was launched in fall 2018 with the mission of helping to protect and advance freedom of the press and train future lawyers on First Amendment issues. When Executive Director Gregg Leslie received the call for help from a longtime associate at The Intercept, there was no hesitation.

“It was the perfect opportunity for us, so we jumped at the chance,” said Leslie, himself a former journalist.

The case was not only unfolding in Arizona, in federal court in Tucson, but Warren had been a faculty associate in ASU’s School of Geographical Sciences and Urban Planning. Faculty associates are hired on a course-by-course basis.

The work began, with neither the clinic nor The Intercept knowing exactly what they might uncover.

“When we talked about these documents, all we knew is that something was attached to a motion to dismiss, and that it involved conversations, probably, among Border Patrol agents,” Leslie said, adding that when somebody is prosecuted for a crime in federal court, there should be little to no secrecy surrounding the details of the investigation.

“There were allegations that the Border Patrol was trying to go after somebody because he was providing water and other assistance to people who might otherwise die as they were crossing a desert,” Leslie said, underscoring the passion that surrounded the case. “And, of course, the point other people would make is that that crossing into the U.S. without documentation is itself illegal, and that’s why the government is going after them. But Scott Warren had this fundamental belief that he could not stand by and watch people die in the desert. So if he was being targeted for that belief, and he was being prosecuted, it was important to know exactly what the Border Patrol did and didn’t do leading up to the arrest.”

The trial was approaching when the summer semester began. Ryan Bailey, one of the clinic’s summer students, would soon be playing a key role.

Students can be provisionally licensed to argue in state court if they’ve taken two semesters of law school. But an extra semester is required for federal cases. Ryan was the only student who fit that criteria.

Other students worked with Bailey on the briefing and all the research that went into it, but if they were granted oral argument on the motion to unseal the documents, he would have to be the one to argue before U.S. District Judge Raner Collins.

Bailey welcomed the challenge.

“I hadn’t taken a First Amendment class, so I was learning and having to apply what I was learning at the same time,” he said. “Thank goodness for Professor Leslie, though. He’s amazing and can always answer any question.”

The argument to unseal

In federal criminal cases, the Brady Rule and the Jencks Act govern most discovery issues. Under the Brady Rule, prosecutors are required to turn over potentially exonerating evidence to the defense at trial. And the Jencks Act covers incriminating evidence, requiring that prosecutors turn over verbatim statements or reports made by witnesses — but that is only required to be turned over after the witnesses have testified.

To speed things up, evidence is often shared in advance, as was the case in the Warren trial. And at the prosecution’s insistence, the two sides entered into a nondisclosure agreement to keep that evidence sealed; otherwise, the prosecution was going to be less forthcoming with disclosures.

But as Leslie points out, the First Amendment guarantees the public the right to access the information, and the government must provide a compelling reason to seal such documents. A nondisclosure agreement doesn’t supersede the public’s First Amendment rights. But it’s not uncommon for attorneys, and sometimes judges, to be mistaken on the issue.

“That comes up in a lot of cases in a slightly less formal context where a party will turn over this material to the other party and expect it to be kept confidential, and they incorrectly assume the right to confidentiality” Leslie said, noting that magistrate judges, not Collins, had been involved in the initial decision to seal the documents. “So in that sense, it wasn’t that surprising that the prosecution in this case made that argument. But it’s problematic.”

Leslie says every case is different, so there’s no textbook approach for the clinic’s students to follow.

“You have to do research, begin to formulate your arguments, then do more research and build a strategy as you go,” he said. “There is no real lesson plan to follow in a clinical case like this.”

Oral arguments were made before Collins on July 9. Bailey had been in a federal courtroom before, as an extern for U.S. Magistrate Judge Deborah Fine, but never in a situation like this.

“Normally when you’re in federal court, there’s a couple of people on defense, a couple people on the plaintiff side, some of the court people, and that’s it,” he said. “But for this, it was a pretty full courtroom. I knew my argument backward and forward and I knew the cases, but still, it was a little bit nerve-wracking.”

The prosecution’s argument was simple: The two sides had entered into a nondisclosure agreement, so the documents should remain sealed. Bailey countered that without a compelling reason to keep those documents sealed, the two sides did not have the right to strike an agreement to keep that information from the public.

Bailey thought he was on solid legal ground and that the prosecution had not made much of a counter-argument.

“I was pretty confident,” he said. “You never know how things will go, but I was confident that we were on the right side of the argument.”

Collins made his ruling three days later, on July 12, agreeing with Bailey that the government’s request to maintain the nondisclosure agreement could not be reconciled with the public’s right to know.

It was a big win for the media, as the Arizona Republic, the New York Times, the Washington Post, CNN and the Associated Press had also signed on as clients of the clinic in the pursuit of the sealed documents. And it was a big win for the First Amendment Clinic and Bailey, the third-year law student practicing with a provisional license.

“It was pretty amazing,” Bailey said. “I was smiling ear to ear. I called my parents. I don’t think these opportunities happen very often for law students, especially in federal court.”

The documents were made public on July 19, outlining the more than eight-month investigation that led to Warren’s arrest. The Intercept and other media outlets published detailed accounts of the investigation, allowing the public to see how and why Warren was arrested, and how the federal government allocated its resources.

And that, Leslie says, demonstrates how critical public access is to a free and democratic society.

“We’re talking about an incredible power of the law enforcement apparatus, with the courts able to deprive people of their liberty,” he said. “And they’re doing it in the name of the people. So if that’s happening, it’s essential that anything that the government relies on in depriving someone of their liberty be public so that we know exactly how the government is acting in our name.”

And if there is no oversight or accountability, he said, corruption will follow.

“We just know that,” he said. “We know that from how human institutions work. Special interests will be favored or certain interests will be favored over others, and we won’t get to know about it. So you really need constant public oversight, to keep the government accountable. And that’s essentially what these cases are about.”

Thankful to be at ASU Law

For Bailey, it was the latest twist in an academic journey that initially took him to Arizona Summit, a downtown Phoenix law school that lost its accreditation with the American Bar Association in July 2018 and closed shortly thereafter. Upon transferring to ASU Law, he was astounded by the contrast.

“It’s beyond comparison,” he said. “Just so many more opportunities. Especially opportunities like this, the First Amendment clinic and the externships. You learn about the law in the classroom, but you need to learn how to apply it as well. And without those kinds of opportunities, you’re really not prepared to be an attorney.”

Leslie said that in addition to giving students like Bailey the knowledge and experience to be successful, the clinic has an expansive mission to protect all elements of the First Amendment.

“We want to be involved in anything affecting the First Amendment, whether it’s this kind of public accountability, through open-records requests, defending libel cases or defending protesters,” he said. “It’s a broad mandate, but it essentially all comes down to the fact that we want people to feel free to exercise their First Amendment rights.”

Bailey said he can’t recommend ASU Law, or the First Amendment Clinic, highly enough.

“ASU Law is one of the best programs in the country,” he said. “The professors are very knowledgeable, and you’re surrounded by smart students who challenge you. So you just learn more in that environment. And as far as the First Amendment Clinic, I was able to get a comprehensive experience, with all the research, writing and talking to clients. I never imagined that I’d be arguing something in federal court.”

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

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

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

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

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

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

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

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

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

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

The full list of members is as follows:

Albany Family Violence Litigation Clinic

Albany Health Law Clinic

Albany Immigration Law Clinic

American University Glushko-Samuelson IP Law Clinic

ASU First Amendment Clinic

BU/MIT Technology Law Clinic

Buffalo Civil Liberties & Transparency Clinic

California Western New Media Rights

Case Western Reserve Intellectual Property Venture Clinic

Cornell First Amendment Clinic

Duke First Amendment Clinic

Harvard Cyberlaw Clinic

Michigan State University First Amendment Law Clinic

NYU Technology Law & Policy Clinic

UC-Berkeley Samuelson Law, Technology & Public Policy Clinic

UCI Intellectual Property, Arts, and Technology Clinic

UCLA Documentary Film Legal Clinic

UCLA Scott & Cyan Banister First Amendment Clinic

University of Virginia First Amendment Clinic

Vanderbilt First Amendment Clinic

Washington University First Amendment Clinic

Yale Media Freedom & Information Access Clinic

A link to the formal press release is here.