First Amendment Clinic

Cornell Law School’s First Amendment Clinic filed an amicus brief in the U.S. Supreme Court yesterday on behalf of a coalition of FOIA and First Amendment scholars in support of preserving FOIA’s definitive test for disclosure for information alleged to be “confidential commercial information.” The petitioner, Food Marketing Institute, has suggested a drastic departure from the current understanding of this provision of FOIA in clear contravention of Congress’s endorsement of the prevailing standard.

At stake is the public’s right to valuable information pertaining to public health, the environment, and the government regulation of industry as a broader matter, and beyond this case, the clear congressional mandate in favor of transparency.

“FOIA has been the subject of active interest from Congress,” states the brief. “Through a series of twelve overhauls, Congress has made plain that it has an unwavering and increasing commitment to transparency, and an unhesitating willingness to cast aside Executive or judicial actions that set back this purpose.” It concludes that the “Court should affirm the judgment of the Eighth Circuit Court of Appeals, dismiss the writ as improvidently granted, or clarify that its opinion does not reach the 2016 FOIA Improvements Act.”

Cortelyou Kenney, Assistant Director of Cornell Law School’s First Amendment Clinic, who spearheaded the filing along with Professor Michael Dorf, said, “Congress is keenly aware of the National Parks test and has repeatedly rejected calls to alter or replace it since the test was first conceived in 1974. This Court’s sitting Justices have expressed the need to defer to Congress in the arena of FOIA, and the Court should not change course now.”

The recently launched First Amendment Clinic enables Cornell Law school students to work on real cases involving free speech and freedom of the press. Through its caseload and curriculum, the clinic trains diverse, young lawyers in the skills needed to become effective advocates in the field.

The brief can be accessed here.

A link previewing oral argument in the case can be accessed here.

The Clinic represents a New York-based nonprofit news site in expected FOIL litigation over the constructive denial of access to New York State agency records that, if released, would further a project to aid immigrant communities.  The Clinic also represented this client in its recent administrative appeal of the constructive denial to the state agency.

The Clinic recently filed a motion to intervene and unseal in a New York family court proceeding on behalf of local online news outlet The Batavian. The news outlet is seeking access to a hearing transcript after it was shut out from attending the hearing and denied an opportunity to be heard regarding its constitutional, common law and statutory rights of access.

On December 21, 2018, Cornell Law School’s First Amendment Clinic and the Reporters Committee for Freedom of the Press 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.

The brief can be accessed here.