The First Amendment Clinic is engaged in a variety of cases and projects advancing the interests of free speech and freedom of the press, often resulting in victories for local journalists and media outlets. Below are some recent stories that highlight the Clinic's work.
October 29, 2020
ACLU and Cornell Law School’s First Amendment Clinic File Lawsuit
Challenge to broad “litigation exemption” of Vermont public records law
Represented by Cornell Law School’s First Amendment Clinic and the ACLU, the Vermont Journalism Trust filed a public records lawsuit today to obtain additional records related to the still unresolved EB-5 scandal. The State of Vermont is again withholding EB-5 records, citing the “litigation exemption” under Vermont’s Public Records Act – an exemption state agencies have relied on repeatedly to prevent public disclosure.
Heather Murray, managing attorney of the Local Journalism Project, Cornell First Amendment Clinic: “Today’s suit aims to bolster VTDigger’s excellent investigative reporting on this major financial fraud by challenging the State’s broad interpretation of the litigation exemption, which may be shielding from the public valuable information about how much the State knew about this fraud prior to taking action.” Associate Clinic Director Cortelyou Kenney and law students Haylei John, Michael Mills, and Brian Marte provided critical assistance in preparing the Complaint.
Since 2012, the Vermont Journalism Trust, operating as VTDigger, has reported on the State’s oversight of the EB-5 Immigrant Investor Visa Program, a federal program designed to create jobs and stimulate foreign capital investment in low-income regions. In August of 2020, VTDigger requested documents from the Agency of Commerce and Community Development (“ACCD”), which operated the Vermont EB-5 Regional Center, to understand why the State continued to endorse the solicitation of investors for EB-5 projects despite increasing evidence of fraud. ACCD denied that request on September 29, resulting in this lawsuit.
Lia Ernst, senior staff attorney, ACLU of Vermont: “The EB-5 scandal shows the need for more transparent and accountable government, and that is exactly what Vermont’s public records law is designed to promote. When the government misapplies that law to keep the public in the dark, our state and our democracy suffer.”
The EB-5 program allows foreign entrepreneurs who make specified financial investments in the United States to apply for lawful permanent resident status. In April 2016, the State and the federal Securities Exchange Commission filed civil suits against several individuals and corporate entities alleged to have misused, in a “Ponzi-like” scheme, more than $200 million of these investor funds marked for projects in Vermont.
Timothy Cornell of Cornell Dolan, P.C., counsel for the Vermont Journalism Trust: “The State of Vermont continues to hide secrets behind narrow exemptions, frustrating the intent and purpose of the state’s public records law. The EB-5 scandal demonstrates the need to reject broad exemptions to public disclosure and do more to increase transparency in government.”
This lawsuit is the latest in a series of cases brought by Vermont Journalism Trust in its ongoing investigation of the EB-5 scandal. In 2019, Mr. Cornell, the Cornell First Amendment Clinic, and Tarrant, Gillies, Richardson & Shems LLP represented the Vermont Journalism Trust in similar litigation that resulted in the release of documents the State had previously withheld. In 2016, the ACLU and Mr. Cornell represented the Vermont Journalism Trust in public records litigation after the State withheld other EB-5 records, claiming that they fell within an exemption for records that “are relevant to litigation to which the public agency is a party of record.” That lawsuit was settled in 2017, after the state finally agreed to release the records.
October 20, 2020
The nondisclosure agreements (NDAs) that President Donald Trump has required many White House employees to sign – unlike any previous administration – are likely unconstitutional, according to an analysis by Cornell Law School’s First Amendment Clinic.
A civil lawsuit filed Oct. 12 by the Department of Justice – against Stephanie Winston Wolkoff, a former unpaid aide to First Lady Melania Trump and author of a tell-all book – marks the administration’s first attempt to enforce one of the NDAs.
The case exposes an overbroad agreement that infringes on the First Amendment rights of both government employees and the press, representing “a grave affront to our system of free expression,” according to the clinic’s report, “Nondisclosure Agreements in the Trump White House,” released Oct. 20.
“The First Amendment enshrines a collective commitment to vibrant public debate on issues of governance,” the report states. “Allowing the White House to stymie damaging revelations for political purposes would subvert the standard of transparency to which we hold our democratically elected officials.”
First Amendment Fellow Tyler Valeska is the lead author of the analysis with Law School student co-authors Michael Mills, Melissa Muse and Anna Whistler.
Said Valeska: “We think the White House NDAs are unconstitutional in the vast majority of applications.”
Now commonplace in the private sector, corporate NDAs became widespread in Silicon Valley in the 1970s as a means to protect intellectual property, according to the report. They are often employed by political campaigns, including Trump’s and Hillary Clinton’s in 2016, and Trump has used them extensively in his businesses and personal life.
But contrary to public statements by some of his advisers, the researchers say, Trump is the first president to implement private sector-style secrecy agreements for White House staff, reportedly ranging from senior aides to interns.
“President Trump’s White House NDAs differ immensely from the practices of previous administrations,” they wrote.
Since the Eisenhower administration, “executive privilege” has protected deliberations between presidents and senior advisers to ensure candid discussion of sensitive matters.
Government employees and contractors granted access to classified information must sign Standard Form 312, agreeing not to disclose that information without authorization in the interest of national security.
But the Trump White House NDAs – instituted in 2017 in reaction to leaks – appear to go much further, the researchers say, banning disclosure of all “nonpublic, privileged and/or confidential information,” including any information about Trump’s businesses or family. They also apply indefinitely.
When classified material isn’t at issue, First Amendment jurisprudence generally prohibits prior restraints on speech and government discrimination against speech based on its content or viewpoint. Any such infringements must pass strict legal scrutiny, according to the analysis.
That means the White House NDAs must serve a compelling government interest and be narrowly tailored. Instead, the authors say, the NDAs are “remarkably broad” in scope and the government has “no substantial interest” in hiding information embarrassing to the president.
“A former government official challenging the constitutionality of a White House NDA would have a strong case,” the report states.
Prohibiting government employees’ speech about nonclassified information also infringes on the rights of the press to gather information and receive it from willing sources, the authors argue.
“This is basic First Amendment theory, that for democracy to function properly you need to know what your government is doing in order to inform opinions about whether or not they’re doing it well,” Valeska said. “The primary way that we get that information is through the press via government sources.”
The Wolkoff case, the authors concluded, represents a “line in the sand,” with the Justice Department presenting weak legal arguments that the courts and future administrations should reject.
“Should the government prevail, the speech rights of wide swaths of future executive branch employees would be jeopardized,” the report says. “And the free flow of information that drives our democracy would be severely inhibited.”
Article by James Dean, Cornell Chronicle
July 7, 2020
First Amendment Clinic Law clinic helps NYTimes win access to COVID-19 data on race
Lawsuit against CDC yields new information about pandemic's effects
A Cornell Law School clinic focused on freedom of the press has played a crucial role in revealing how Black and Latino people have been disproportionally affected by the coronavirus.
The First Amendment Clinic, working on behalf of its client, The New York Times, helped secure the release of previously unseen data that provides the most detailed look yet at nearly 1.5 million American coronavirus patients.
Using this data from the Centers for Disease Control and Prevention (CDC), the Times published a front-page story in its July 6 edition that examines the significant racial inequities in infection rates in more than half the U.S. population – the most extensive survey to date.
The data, from 974 counties across the country, shows that Black and Latino people have been even more disproportionately affected by the coronavirus than previously known, regardless of age or geographic location. A similar disparity affects Native American people in certain parts of the country. Asian American people are also disproportionately impacted.
“This is a great success for information access on an issue of vital public importance at a time of public crisis,” said Cortelyou Kenney, associate director of the clinic. “But there is little to celebrate here. The data shows in stark terms what we already expected: that there is a troubling disparity in the impact this disease has had on people of color.
“The Times report, and the documents that underly it, demonstrate the urgent need for a robust public effort to protect our most vulnerable communities,” Kenney said.
The clinic and the Times filed a Freedom of Information Act request on April 14 seeking the quick release of demographic data on infected patients from the CDC. When the agency failed to respond within the 10-day statutorily-mandated time frame, the Times – with the clinic as co-counsel – filed suit May 13 in the Southern District of New York demanding the documents. The agency agreed to release the data in June as part of early litigation negotiations.
However, the report indicates significant gaps in the data, which may require more litigation or negotiation, Kenney said
“This is exactly the type of work the First Amendment Clinic looks to do for media outlets large and small,” said Mark Jackson, the clinic’s director. “Helping great journalists gain access and information to enable them to report on issues of vital concern to their readers is at the heart of our mission.”
Along with Kenney and Jackson, the clinic team includes teaching fellow Tyler Valeska and students Daniel Geller, Michael Mills, Alyssa Morones, Melissa Muse, Rob Ward and Anna Whistler. Students Sam Aber and Joel Sati also provided assistance to the effort.
The clinic is engaged in a variety of cases and projects advancing access to information and the interests of free speech, freedom of the press and transparency. Its work extends across disciplines, impacting journalists, researchers, human rights advocates, political advocates and others targeted because of their protected expression.
June 16, 2020
Trial Court Denies TRO in First Amendment Win for Local Geneva 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 that ten articles be removed from the local government-focused blog.
In a June 11, 2020 order denying the TRO, 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,” said Grygiel. “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.