First Amendment Clinic Cases
ACLU v. Department of Homeland Security
First Amendment Clinic, Reporters Committee for Freedom of the Pres File FOIA Amicus Brief in Support of ACLU against DHS in 9th Circuit Court of Appeals
December 21, 2018 - Cornell Law School’s First Amendment Clinic and the Reporters Committee for Freedom of the Press today filed an amicus brief in support of the American Civil Liberties Union’s Freedom of Information Act suit against the Department of Homeland Security. The case, ACLU v. Department of Homeland Security, will be argued before the U.S. Court of Appeals for the Ninth Circuit.
At stake is whether DHS can withhold names of border patrol agents accused of verbal, physical, and sexual abuse of children in immigration detention centers. There are hundreds of allegations of abuse.
“Disclosure of the names…will allow Amici to report on how the federal government is administering its immigration policies,” states the brief. “In particular, Amici are committed to covering how the DHS and its components have handled allegations of child abuse, thereby arming the public with information that allows them to hold the government accountable for failing to protect one of the nation’s most vulnerable groups: unaccompanied immigrant children.”
George El-Khoury, a third-year student at Cornell Law School, drafted the brief, with supervision from Cortelyou Kenney, Assistant Director of Cornell Law School’s First Amendment Clinic. The Clinic collaborated with the Reporters Committee.
El-Khoury said, “FOIA’s mandate is clear: The government must disclose information unless it can prove that one of the limited exemptions to FOIA applies. The government has failed to do so and has tried to put the burden on the ACLU.”
The recently launched First Amendment Clinic will enable Cornell Law students to work on real cases involving free speech and freedom of the press. Through its caseload and curriculum, the clinic will train diverse, young lawyers in the skills needed to become effective advocates in the field.
The Reporters Committee for Freedom of the Press was founded by journalists and media lawyers in 1970 when the nation’s news media faced an unprecedented wave of government subpoenas forcing reporters to name confidential sources. Today it provides pro bono legal representation, amicus curiae support, and other legal resources to protect First Amendment freedoms and the newsgathering rights of journalists.
Seife v. FDA
Cornell’s First Amendment Clinic represents plaintiff and veteran investigative journalist Charles Seife as co-counsel with Yale Law School’s Media Freedom and Information Access Clinic and Vinson & Elkins LLP in a case involving the Freedom of Information Act Exemption 4 where Seife is seeking access to safety and efficacy clinical trial data contained in documents known as “Clinical Study Reports” for that were used by the FDA in the controversial approval of a drug to treat Duchenne Muscular Dystrophy marketed as Exondys 51. Specifically, this case presents a novel legal question in the Second Circuit: Whether information that defendants claim constitutes “confidential commercial information” (or CCI) can be released upon a showing that there is a significant public interest in release of the information. Here, there are several public interests. First, there is an interest in “shed[ding] light on the FDA’s performance of its statutory duties under Exemption 4, particularly given the substantial concerns that exist of possible scientific misconduct and agency malfeasance” that arose in the approval process. See Seife Reply Br. at 2. Second, “the withheld data also hold the key to public health questions about the effectiveness of the drug and potentially fatal side effects from using it, . . . so disclosure will valuably inform doctor-patient decision-making about a drug whose list price can exceed $1,000,000 per patient per year.” See Seife Opening Br. at 3-4. Secondarily, the case presents other questions about the rigor of evidence drug companies must put forward to establish the information they seek to withhold is likely to cause substantial competitive harm to the drug manufacturer and whether in light of all the information that has been made public about the drug in question here, that standard is met.