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.

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

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

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

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

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

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

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

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

Read more from the clinics’ filings in the case:

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