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

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

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

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

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

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

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

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

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

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

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

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

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

Among the many important discussions that will occur:

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

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

REGISTER FOR AAC 2021 HERE:

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

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

AGENDA

Access & Accountability 2021: Time to Seize the Day?

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

Friday, October 1

(all times eastern)

9:00
WELCOME by Floyd Abrams

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

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

11:00
BREAK

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

12:30
BREAK

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

2:15
BREAK

2:30
NATIONAL SECURITY ACCOUNTABILITY

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

3:45
BREAK

4:00
DEFAMATION AS AN ACCOUNTABILITY TOOL

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

Saturday, October 2

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

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

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

10:35
BREAK

10:45
DIRECTOR’S DIALOGUE: First Amendment, Friend or Foe?

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

11:50
BREAK

12:00
SUCCESS STORIES

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

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

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

1:15
OPEN FELN STEERING COMMITTEE MEETING

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read the complaint here.

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.”