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.

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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. 

Yale MFIA Clinic to host conference on accountability and the Trump presidency

The Media Freedom and Information Access (MFIA) Clinic at Yale Law School will host its annual Access and Accountability Conference on October 4–5, 2019. This year’s conference will once again bring law school clinicians from around the country together with investigative journalists, academics, practicing lawyers, and law students to explore some of today’s most urgent transparency and accountability issues.

The conference will focus on the laws, policies, and actions that obstruct the ability of journalists and others to ferret out the news needed to hold governments accountable, and to develop litigation strategies and legislative responses to overcome them.

On October 4, expert panels will discuss impediments to investigative newsgathering, law enforcement accountability, algorithmic transparency, and public understanding of issues surrounding national security and the surveillance state. The day will also feature a debate on whether the Freedom of Information Act is serving democracy well, and offer competing views on how governmental institutions and historic practices designed to ensure public accountability are functioning in an era of technological change, “fake news,” and the Trump presidency.

The second day will take a deep dive into accountability issues that might effectively be addressed by law school clinics. The day will begin with a keynote address by Reuters reporter Dan Levine on “The Grim Impact of Judicial Secrecy.” Levine will report the findings of a year-long Reuters investigation into the practices of sealing records and issuing protective orders in federal courts, and the impact of these practices on public health and safety. Breakout panels will consider specific legal strategies to promote access to health and safety information routinely barred from public inspection in civil litigation. Subsequent panels will address steps that law school clinics can take to leverage their resources in aid of local journalists, and actions that might improve access to records under the Freedom of Information Act, including litigation strategies and the development of facts needed to promote a legislative response.

The conference will conclude with a presentation on the launch of the Free Expression Legal Network (FELN), a newly created network of law school clinics, academics, and practitioners (including nonprofits) across the country that seeks to promote and protect free speech, free press, and the flow of information. The network will focus on government accountability, transparency, and freedom of expression to encourage an informed and engaged citizenry. The discussion will highlight the services FELN provides to local journalists and news organizations that lack access to legal resources.

To learn more about the conference visit the registration page.

Harvard Cyberlaw Clinic files amicus brief arguing for broader access to government databases

The Harvard Cyberlaw Clinic filed an amicus brief (pdf) in March in the United States Court of Appeals for the Ninth Circuit on behalf of a group of data journalists and media organizations, advocating for a different approach to Freedom of Information Act (FOIA) requests relating to databases. The brief supports the Center for Investigative Reporting in an appeal arising out of a FOIA request submitted by CIR to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).

CIR requested data from ATF’s firearm trace database, seeking records about firearms that were originally owned by law enforcement. In its denial of the FOIA request, ATF cited the Tiahrt Amendment, a rider contained in annual appropriations acts from 2003 to 2012. The Tiahrt Amendment prohibits disclosure of firearm trace information in response to FOIA requests, but allows the release of “statistical aggregate data.” Unfortunately, some courts have held that agencies are not required to release aggregate data that they have not already compiled because it constitutes production of a “new record,” which is not required under FOIA.

The lower court ruled in favor of ATF,  finding that CIR’s request would require ATF to create a new record. A Ninth Circuit decision on this case has the potential to shape FOIA jurisprudence relating to databases, which will have wide-reaching effects since more and more records are being stored in database format.

The Cyberlaw Clinic’s amicus brief focused on whether searching, filtering, sorting, and other forms of database manipulation constitute the creation of a new record. Amici explain how databases like the one used by ATF are structured, and how a database can be queried to yield information in various arrangements. While courts have previously analyzed databases as analogues to massive filing cabinets storing thousands of records, amici show that a database is like no filing cabinet that has ever existed. In fact, databases may have more in common with the famed Room of Requirement at Hogwarts than with how documents were stored on paper.

The amici include sixteen individual data journalists and professors of journalism, and five media-related organizations. All of them have a significant interest in a strong right of access to records held in government databases based on their extensive experience with government transparency processes, including FOIA, and with the technical aspects of working with structured data, including databases.

The media-related organizations are:

  • Investigative Reporters and Editors, a grassroots nonprofit organization dedicated to improving the quality of investigative reporting.
  • The Media Law Resource Center, a non-profit professional association for content providers in all media, and for their defense lawyers, providing a wide range of resources on media law and policy issues.
  • MuckRock, a journalism and government transparency non-profit that has helped thousands of requesters around the United States better file, share, and understand Freedom of Information requests.
  • Freedom of the Press Foundation, a non-profit organization that supports and defends public interest journalism focused on transparency and accountability.
  • 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

The individual journalists include Matt Carroll, Meredith Broussard, Dhrumil Mehta, Cheryl Phillips, Dan Keating, Lucia Walinchus, and Zita Arocha.

By focusing on real-world uses of databases, amici show that there is no practical difference between accessing full records from a database and compiling a list of entries. Amici then point out that the content-index distinction has led to murky jurisprudence in the past and continuing to apply this distinction to databases would require arbitrary line-drawing and lead to absurd results. In the database context, almost any presentation of the data is a record that already exists, and agencies should be required to produce records accordingly.

The Cyberlaw Clinic is honored to have represented these amici and hopes the Ninth Circuit Court of Appeals will seriously consider their input. The brief was written by Clinical Instructor Mason Kortz, Clinical Instructional Fellow Kendra Albert, and Spring 2019 clinical students Alena Farber, Ariel Hoffman, and LeHeng Li.

This post originally appeared on the Cyberlaw Clinic’s blog on March 29, 2019. As of August 2019, the case is still pending.

Yale MFIA Clinic’s stand against ‘secret law’ unseals court opinion

The Media Freedom and Information Access Clinic (MFIA) at Yale Law School has prevailed in an important skirmish in the ongoing battle against “secret law.”

Acting on behalf of New York Times national security reporter Charlie Savage, MFIA convinced the United States Court of Appeals in Washington, D.C., to make public previously sealed portions of an opinion issued last year in a case filled with many unusual twists and turns.

The issue involved the classified portions of a May 2018 judicial opinion in Doe v. Mattis that the court sealed from public inspection. The redactions were so extensive that it was impossible to determine the court’s basis for rejecting the government’s theories about executive branch power in the case. MFIA argued that providing a ruling while withholding the court’s legal reasoning violates the public’s First Amendment right of access to judicial records.

The reliance on redactions to remove classified facts created a form of secret law because it concealed the legal rule the court used to determine their reasoning in the case, says MFIA legal fellow Charles Crain.

“How can you have a society where people don’t know what the law is?” asked Crain. “The very notion of ‘secret law’ is repugnant to our constitutional form of government and is prohibited by the First Amendment.”

Times reporter Savage had covered the case extensively as it unfolded, and found the court’s redactions troubling. Doe v. Mattis has potentially far-reaching implications for the Fifth Amendment rights of Americans who have dual-citizenship status with another country. The case involved a dual U.S./Saudi citizen who was captured while allegedly fighting for ISIS in a Syrian combat zone and was turned over to the U.S. government, which held him in an Iraqi detention facility for over a year with no charges brought against him.

The case presented many thorny legal issues, including whether the U.S. government could forcibly hand over a U.S. citizen to the custody of another country against his will. The effort by the American Civil Liberties Union (ACLU) to defend the rights of the citizen/detainee, initially referred to as John Doe, itself raised legal issues because the detainee had not asked for their representation. The broader implications of the case concerned the extent of the U.S. government’s national security powers. It raised the question of whether a U.S. citizen caught on the battlefield of a foreign war, for which U.S. involvement had never been approved by Congress, could nonetheless be deemed an enemy combatant. Would he be subject to wartime military punishment, or must he instead be processed through the criminal justice system?

The ACLU initially filed a habeas corpus lawsuit in Washington, D.C. on the detainee’s behalf. After winning court approval to proceed, the government was prevented from transferring the detainee to a Saudi prison. The Court of Appeals agreed with the ACLU that a citizen could not be forcibly handed over to a foreign government against his will with no criminal charges against him pending there.

The Court of Appeals opinion, however, was so heavily redacted that it was entirely unclear why the government’s claim of authority to force the detainee’s transfer was rejected. When most of the classified facts about Doe became public — including his dual U.S./Saudi citizenship, that his real name is Abdulrahman Ahmad Alsheikh, and his eventual release to the nation of Bahrain – MFIA moved to unseal the court’s opinion to prevent the creation of “secret law.”

According to Times reporter Savage, there is real value in revealing the court’s reasoning in this case. Portions of the government’s argument to the appellate court contended that U.S. citizens with dual citizenship have fewer rights than sole-U.S. citizens in certain contexts, and knowing why the court rejected this position may have important implications for future cases. The Doe v. Mattis opinion also may shape the government’s own understanding of its wartime powers. The legal basis for resolving such important issues should not be concealed from the public.

Savage credits “the vision and hard work of the MFIA clinic at Yale Law School” with this success in the fight against secret law.

By Leah Ferentinos