Author: Mark Jackson

First Amendment Clinic releases report on First Amendment implications of Trump White House NDAs

Analysis: Trump White House NDAs  are Likely Unconstitutional

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

The Cornell Law School First Amendment Clinic has hired Ava Lubell to its newly created position of local journalism attorney for the New York metropolitan area.

In that position, Lubell will provide free legal services to local media outlets and journalists in the New York City region to aid them in their important newsgathering functions and to defend them against attempts to interfere with or suppress their free-speech rights. Lubell will perform her services as part of the Ithaca-based clinic’s innovative Local Journalism Project.

The position is funded by a grant by the Charles H. Revson Foundation, which has been an active player in strengthening local journalism that serves the public interest.

“I believe this is a first for a law school clinic,” says Clinic Director Mark Jackson. “By hiring an attorney of Ava’s caliber in a satellite position in New York City we are at one and the same time expanding our geographic scope and increasing our ability to handle an even greater number of matters for journalists across New York and other states.”

Previously, Lubell was the general counsel for Quartz and before that she served as general manager and general counsel of Slate. She is a graduate of Brown University and New York University School of Law.

“So much important work is being done by local journalists to bring vital information to their readers about matters affecting the safety, health, education, and financial well-being of their communities,” says Lubell. “These are difficult times for local news outlets. I want to use my experience in newsrooms to help these journalists get their jobs done.”

Through its Local Journalism Project, the First Amendment Clinic has represented numerous news outlets in recent years, including VT Digger, Vermont’s largest not-for-profit news platform, in its efforts to obtain vital documents related to a major fraud committed in that state. The clinic is currently defending the Geneva Believer, a news site in Geneva, New York, against a defamation lawsuit brought by a local construction company, and recently won a ruling in that case denying the company’s application to have all reporting about it removed from the site. The clinic also recently filed a lawsuit on behalf of the investigative news site Documented in its effort to obtain wage-theft information from the New York State Department of Labor.

In addition to its work on behalf of local journalists, the clinic co-counseled last month with the attorneys at the New York Times in a lawsuit compelling the Centers for Disease Control and Prevention to produce documents that could shed light on the disparate impact of the COVID-19 pandemic on people of color.

“We have been delighted with the work of the First Amendment Clinic, particularly on behalf of local news outlets that don’t have access to legal resources,” says Eduardo M. Peñalver, the Allan R. Tessler Dean and Professor of Law. “It will be a tremendous service to local journalism if the clinic can duplicate that success in areas of New York City that need it most.”

Watch the keynotes:

Fundamentals of the First Amendment: Speech, Press, and Assembly

The First Amendment to the US Constitution protects free speech, freedom of the press, and the freedom of assembly. (It also protects free exercise of religion and bars the establishment of religion, which will be the subject of a different presentation). Although the First Amendment allows “no law” infringing the rights it protects, that prohibition cannot be taken literally. While the US protects free expression to a greater extent than any other constitutional democracy, some limits are allowed. Case law deems some categories of speech (such as obscenity and so-called fighting words) unprotected, while even protected speech may be limited by content-neutral time, place, or manner restrictions. Meanwhile, despite warranting its own clause, case law gives no special protection to the institutional press. This introduction to the very large body of free expression case law provides a useful framework for analyzing classic as well as contemporary conflicts.

The Religion Clauses in the Age of the Pandemic

Professor Nelson Tebbe will first give an overview of current law under the Free Exercise Clause and the Establishment Clause of the First Amendment, as well as under related religious freedom statutes such as the Religious Freedom Restoration Act. He will then apply these rules to current disputes arising under the COVID pandemic, including claims for religious exemptions from stay at home orders and the permissibility of PPP funding for houses of worship and clergy salaries.

The Freedom of Information Act in the Age of the Pandemic

The Freedom of Information Act is a statute used to gain access to information from government agencies that is not ordinarily accessible to the public. While an important law during the best of times—and one that has been used to shed light on “what the government is up to”—during the age of the pandemic it is all the more crucial. Using the First Amendment Clinic’s case with the New York Times that obtained millions of records of CDC data to expose racism in the pandemic, this talk will walk viewers through the basics of FOIA, and why from a public health perspective the statute is more important than ever. It will also discuss some of the limits of FOIA to obtain public information, as well as the limits of litigation to resolve fast-moving disputes for the nation’s Fourth Estate.

An Introduction to Defamation Law

This presentation provides a primer on the basics of defamation law. Since the Supreme Court’s seminal 1964 decision in New York Times v. Sullivan, courts and commentators have interpreted the First Amendment as providing expansive protections for speakers—particularly the press—so that debate on issues of public importance is “uninhibited, robust, and wide-open.” We’ll walk through the current doctrinal frameworks for evaluating defamation claims, discuss the competing values underlying these frameworks, and explore modern developments in defamation law—including the current threat to Sullivan itself. This presentation is meant to be interactive: using hypotheticals and examples from the Clinic’s cases, attendees will have the opportunity to apply newly-learned principles of defamation law to concrete examples in real time.

A public records lawsuit between the State of Vermont and a watchdog news site, VTDigger.org, settled when the State agreed to disclose documents related to the nation’s largest EB-5 public corruption scandal.  The scandal involved an over $200 million Ponzi-like scheme at a regional center run by the State of Vermont as part of a federal scheme that allows foreign individuals to secure permanent legal resident visas in exchange for investments in development projects.

The lawsuit, Vermont Journalism Trust vs. State of Vermont, Docket No: 6-1-19 Wncv, concerned public records requests VTDigger had made under the Vermont Public Records Act for documents submitted during the same time period that the owner of one of the program’s development projects, the Jay Peak resort, was accused of defrauding foreign investors. Specifically, VTDigger believed the documents would reveal what Vermont and high-ranking politicians within the state knew about the Ponzi scheme, and when they knew it.

The state withheld the requested forms, claiming they were exempt from disclosure under the Public Records Act because the forms were relevant to two distinct lawsuits related to the Ponzi scheme—one suit brought by the State of Vermont against the fraudsters and one brought by the foreign investors, many of whom had not received repayment nor Green Cards, against the state.

With the assistance of the Cornell Law School First Amendment Clinic, VTDigger filed a lawsuit against the state in January, seeking disclosure of the withheld documents.

On March 8, the parties announced a settlement in which the State agreed to turn over the requested forms and “additional Jay Peak records” the State had previous withheld from VTDigger.

The settlement agreement brings VTDigger one step closer to uncovering the truth behind the securities fraud scandal and providing transparency for the public. Law students Corina Gallardo, Rafa Agundez, and Fernanda Merouco contributed to the case, providing vital legal research and strategy.

Further information on the lawsuit, including the complaint, can be found here.

Cornell Law School’s First Amendment Clinic filed a lawsuit in state court on July 6, 2020, 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,” says Heather Murray, managing attorney of the clinic’s Local Journalism Project.

Murray points 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 Freedom of Information Law request in December 2019. The suit challenges the improper delay and constructive denial of access to the requested wage and hour records.

Documented is represented by Murray; Cortelyou Kenney, associate director of the clinic; and Mark Jackson, director of the clinic. Student interns Sam Aber and Joel Sati also assisted in preparing the petition and the supporting brief.

The 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.

Heather Murray ’13 has been named to the newly created position of managing attorney of the Local Journalism Project, an initiative of Cornell Law School’s First Amendment Clinic. As managing attorney, Murray will oversee all of the legal work that the clinic does on behalf of local media outlets in New York, Pennsylvania, Vermont, and surrounding areas.

The position was made possible by generous grants from both The Knight Foundation and the Legal Clinic Fund, a collaborative fund supported by the Abrams Foundation, Democracy Fund, the Heising-Simons Foundation, and the Klarman Family Foundation.

Murray joins the clinic after practicing as a litigator in the New York offices of international law firms Seyfarth Shaw and Cadwalader, Wickersham & Taft. Prior to pursuing a legal career, Murray was a journalist working for news outlets in Westchester and New York City.

“We created the Local Journalism Project within the clinic to give even more focus and attention to our work on behalf of local media outlets,” said Mark H. Jackson, director of the First Amendment Clinic. “Bringing Heather on to oversee this work will take this initiative to another level and allow us to take on even more critical matters for our clients who are doing such essential work.”

Through its Local Journalism Project, the First Amendment Clinic has represented numerous news outlets in recent years, including VT Digger, Vermont’s largest not-for-profit news platform, in its efforts to obtain vital documents related to a major fraud committed in that state. Most recently, it was retained by the Geneva Believer, a news site in Geneva, New York, to defend it against a defamation lawsuit brought by a local construction company. The clinic recently won a ruling denying the company’s application to remove all of the news site’s prior reporting about the company.

“I am honored to come home to Cornell to join its First Amendment Clinic nearly a decade after I first worked alongside clinical professors as a student,” said Murray. “I know only too well the very real challenges facing local journalists trying to cover the actions of local and state governments, especially in these difficult economic times. I am looking forward to furthering the First Amendment clinic’s critical work in providing access to pro bono legal services to these journalists, who oftentimes have limited resources to devote to legal representation.”

Murray joins a growing staff at the First Amendment Clinic, which includes Cortelyou Kenney, associate director; and Tyler Valeska, a fellow. The clinic is engaged in a variety of cases and projects advancing the interests of free speech and freedom of the press. Its work extends across disciplines, impacting journalists, researchers, human rights advocates, political advocates, and other individuals targeted based on their expression. The clinic is in the process of hiring a New York City-based local journalism attorney, a satellite position that will enable the clinic to represent more local journalists in the New York metropolitan area.

Knight Foundation is a national foundation with strong local roots. It invests in journalism, in the arts, and in the success of cities where brothers John S. And James L. Knight once published newspapers. Its goal is to foster informed and engaged communities, which it believes are essential for a healthy democracy. It believes in freedom of expression and in the values expressed in the First Amendment to the U.S. Constitution.

The Legal Clinic Fund is a collaborative fund to support the growth and sustainability of legal clinics across the United States that seek to advance and defend First Amendment rights, media freedom, and transparency in their communities and nationally. The fund is generously supported by the Abrams Foundation, Democracy Fund, Heising-Simons Foundation, and The Klarman Family Foundation. The Miami Foundation serves as fiscal sponsor for the Fund.

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 Timespublished 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.

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.