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

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

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

Amicus Brief – Filed 08.13.20

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cornell First Amendment Clinic files suit seeking wage theft documents

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

RELATED: Cornell clinic represents citizen journalist sued for defamation

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

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

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

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

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

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

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

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

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

Amici on the brief include:

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

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

Resources for journalists covering protests

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

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

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

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

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

MFIA Clinic prepares amicus brief in Maryland First Amendment case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Technological and pedagogical resources

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

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

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

Legal resources

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

FELN and our community are here to help

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

Recently on FreeExpression.law

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

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

Funding Opportunity

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

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

On the Docket

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

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

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

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

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

Collaboration Corner

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

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

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

In the News

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

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

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

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

FELN Jobs Board

 A number of positions are listed on the FELN Jobs Board

Around the Network

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

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

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

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

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

FELN Repository

New resource

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

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

Scholarship

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

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

Thanks for reading

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

>> Sign up for the newsletter here.

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

Cornell clinic represents citizen journalist sued for defamation

The First Amendment Clinic at Cornell Law School has stepped in to help a local citizen journalist fight a defamation lawsuit and proposed take-down order related to his watchdog coverage of local government.

Jim Meaney runs The Geneva Believer, a blog focused on the workings of his city government of Geneva, New York. He received a cease and desist letter in February accusing Mr. Meaney of defaming a construction company, Massa Construction, which had received millions of dollars of construction contracts from the City of Geneva.

The blog had raised several questions regarding these contracts, including whether there were conflicts of interest of City Council members, including one who is a Massa employee.

Upon receiving the cease and desist letter, Mr. Meaney reached out to the Cornell clinic for help. After reviewing the articles, the clinic concluded a suit violated New York’s anti-SLAPP statute. But before Cornell could respond, Massa filed a complaint for defamation in New York state court.

When the clinic, along with co-counsel Michael Grygiel of Greenberg Traurig, requested Massa withdraw the suit on the bases of defective pleading and New York’s anti-SLAPP protections, Massa doubled down and filed an amended complaint and a motion for a temporary restraining order ex parte, seeking a permanent take down of 10 articles.

The Court denied Massa’s extreme request after the clinic and Greenberg submitted a letter arguing that the TRO constituted a prior restraint, and it calendared a hearing for March 25. The clinic and Greenberg filed an opposition on March 20, and the Court has moved the hearing to May 6 in light of the situation surrounding COVID-19.

The clinic very much looks forward to Mr. Meaney’s day in court. One of the clinic’s principal arguments is that the suit violates the First Amendment because the articles indiscriminately challenged by Massa report truthfully and accurately on a matter of legitimate public concern—the city’s business dealings implicating how it spends taxpayer funds on contractors. 

The full brief filed on behalf of Mr. Meaney can be found here.