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Clinic Files Lawsuit Against Idaho for Book Censorship Law

Cornell’s First Amendment Clinic filed a groundbreaking lawsuit in federal court in Idaho against the Idaho attorney general, county prosecutors, and others challenging the state’s law restricting public and school libraries from making constitutionally protected literary works available to minors. The Clinic is representing the Donnelly, Idaho Public Library District, public school librarian Christie Nichols, two parents, two students, the Big Five publishers, Sourcebooks, bestselling authors Malinda Lo, David Levithan, and Dashka Slater, and the Authors Guild. Under the law, classics like Kurt Vonnegut’s Slaughterhouse-Five and Toni Morrison’s The Bluest Eye have been stripped from bookshelves, alongside award-winning young adult best-sellers like Jandy Nelson’s I’ll Give You the Sun and Stephen Chbosky’s The Perks of Being A Wallflower.

The complaint against the bill known as HB 710 alleges that the law is vague, overbroad, and viewpoint discriminatory in violation of the First and Fourteenth Amendments. The Clinic argues that HB 710 targets works that are purportedly “harmful to minors” according to vague and overbroad definitions provided by the statute. HB 710 also fails to incorporate the Supreme Court’s holding in Miller v. California, 413 U.S. 15 (1973), which defines “obscenity” in accordance with the First Amendment.

The complaint points to the law’s problematic definition of “minors,” which includes all individuals under the age of 18. According to the complaint, this broad grouping fails to recognize that certain works of literature that may be deemed inappropriate for the youngest of minors may be appropriate and of significant value to the oldest of minors.

The complaint also alleges that HB 710 expressly targets works that contain “any act of homosexuality,” including non-sexual acts like handholding and hugging between two characters of the same gender. According to the complaint, such a blatant restriction constitutes a violation of the First Amendment and the and Fourteenth Amendment’s Equal Protection Clause.

The complaint also targets a unique feature of HB 710 that permits both state law enforcement and private citizens to bring legal challenges against schools and libraries that fail to restrict minors’ access to materials deemed “harmful to minors.” Private citizens that file complaints against such schools or libraries receive a $250 award if they are successful in their challenge.

With numerous government officials and ordinary people deputized to enforce HB 710, public libraries and schools statewide have undertaken drastic self-censorship measures to protect themselves from liability. The threat of a possible lawsuit prompted one plaintiff, the Donnelly Library, to transition to adults-only. The Donnelly Library is a one-room library serving a small rural town; it is functionally unable to cordon off all books that could potentially be considered “harmful to minors” under the vague, overbroad definition provided by the state. Another plaintiff has been instructed by school district officials to remove nearly 40 books from her school’s library to preemptively avoid book challenges and lawsuits. In Eagle, Idaho, book challenges brought by a private citizen have likewise prompted the city’s public library to re-shelve twenty books and remove three from circulation, so they are unavailable to minors without signed parental permission.

While the ongoing harm of HB 710 is being felt by libraries and the communities they serve, authors and publishers who produce many of the books that have been or are at risk for restriction have also suffered, unable to bring their messages to their target audiences in Idaho.

According to Michael Grygiel, an adjunct professor with the Clinic, “HB 710 is an affront to the Constitution and is causing libraries and librarians to self-censor by removing classic works of literature from library shelves across Idaho to protect themselves from liability under the law’s vague and overbroad provisions. This type of self-censorship is inimical to First Amendment liberties and has suffocated the rights of Idaho students to read age-appropriate books of their choosing. It is a privilege to represent the publishers, authors, libraries, parents, and students who have joined this lawsuit to challenge HB 710 and stand up for the First Amendment rights of all Idaho citizens.”

Already, major media outlets like the Wall Street Journal and the Guardian have covered the case, attesting to its significance and the growing threat of book censorship laws nationwide.

According to Grygiel, the plaintiffs will move to enjoin enforcement of the law and put an end to this effort by the state to silence voices they disapprove of in violation of the Constitution.

Clinic students Celina Rivernider ’26, Paul Janes ’26, Alex Strohl ’25, and Johanna Li ‘26 worked on the case. The case was supervised over the summer by former Stanton Fellow Christina Neitzey Hernsdorf and continues under the supervision of Stanton Fellow Daniela del Rosario Wertheimer and adjunct professor Michael Grygiel. Deborah Ferguson serves as local counsel for the matter.

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Clinic Represents First Amendment Scholars to Protect Student Speech Rights in Sixth Circuit Appeal

The First Amendment Clinic filed a brief of amici curiae in December in D.A. v. Tri County Area Schools in the Sixth Circuit supporting two middle school students who were punished for their in-school political speech. Represented by the Foundation for Individual Rights and Expression (“FIRE”), the students sued their Michigan school district for forcing them to remove sweatshirts reading “Let’s Go Brandon,” a phrase that has become a rallying cry for some conservative voices across the country.

The District Court for the Western District of Michigan, holding that school administrators had “reasonably interpreted” the phrase as “profane”, determined that the school’s action against the students did not violate the students’ First Amendment rights. The students appealed to the Sixth Circuit Court of Appeals, where a decision is now pending. 

The Clinic represented a group of First Amendment legal scholars—Erwin Chemerinsky, Clay Calvert, Roy Gutterman, Mary-Rose Papandrea, and Joseph A. Tomain—in arguing that the Western District of Michigan failed to apply the proper constitutional standard in rendering its decision. Specifically, the brief argues that by deferring to the school’s interpretation of a popular political phrase as “profane,” the district court improperly ignored the test established by the Supreme Court in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).

In Tinker, the Court held that a school may only prohibit student expression in the school environment that communicates a political message when the expression creates a “substantial disruption of or material interference with school activities.” The scholars’ brief pointed out that school administrators in D.A. v. Tri County Area Schools acknowledged that the students’ “Let’s Go Brandon” sweatshirts caused no such disruption, so the school could not have satisfied the Tinker test even if it had been properly applied.

The scholars also made the case that other Supreme Court precedents limiting student free speech rights were inapplicable in this instance due to “Let’s Go Brandon’s” non-profane, political nature.

Under the supervision of Adjunct Professor Michael Grygiel and Stanton Fellow Daniela del Rosario Wertheimer, Clinic students Lexie Kapilian ‘26, Alex Strohl ‘25, and Robert Plafker ’25 worked to develop and write the amici brief over the course of the fall 2024 semester.

According to Grygiel, “It is particularly essential in today’s polarized climate that the free speech rights of public school students are protected when their expression does not result in a disruption to the school environment.  Our students’ work underscored the basic First Amendment principle that when political beliefs – regardless of where they fall on the political spectrum – are communicated without using profanity, they are protected.”

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Clinic and RCFP Unseal Settlement Records of Prison Healthcare Contractor in Wrongful Death Suit

Settlement records that our Clinic and co-counsel Paula Knudsen Burke at the Reporters Committee for Freedom of the Press have successfully unsealed on behalf of the Bucks County Courier Times demonstrate that prison healthcare contractor PrimeCare Medical and Bucks County have paid out $3.8 million to settle wrongful death claims involving allegations of inadequate healthcare at the Doylestown jail in recent years.

These records should never have been sealed in the first place because the public has a right to know what the government is doing with the public’s money and about any shortcomings in the healthcare provided to some of Pennsylvania’s most vulnerable citizens.

Read more about our unsealing efforts here.

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Clinic Publishes Op-Ed on Judicial Transparency

Clinic Director Mark Jackson and Local Journalism Project Managing Attorney Heather Murray recently published an Op-Ed in the Albany Times Union to amplify the efforts of journalist Janon Fisher to shed light on the judicial appointment process in NYC. While the trial court in the Clinic’s public records suit ruled that candidate applications for appointed judgeships must be released to the public with minimal redactions to shield private information, an appellate court late last year made it harder to hold power to account by overturning the lower court. Mr. Fisher has sought leave to appeal to the New York Court of Appeals with the Clinic’s assistance. The Court takes up only a small percentage of the requests to hear cases like ours, but we’re hopeful that ours will be one of them.

Thanks to the fantastic Clinic team that has contributed to work on this case thus far starting way back in 2021, including Ava LubellChristina NeitzeyConnor Flannery (who argued before both the trial court and the Appellate Division), Nyssa KruseSvetlana (Aika) Riguera, and Sun Shen.

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Clinic Alum Argues to Unseal Settlement Records in Pennsylvania Wrongful Death Suit

Cornell First Amendment Clinic alum Connor Flannery ’23 argued in the Court of Common Pleas, Dauphin County, on February 26, 2023, seeking access to sealed settlement agreements on behalf of local journalism client The Patriot News/PennLive. The Clinic’s client seeks access to the settlement agreements in a wrongful death suit to shed further light on an issue of great public concern involving a young mother killed by an oncoming train as she was exiting a boat ramp in Halifax, Pennsylvania. Also pictured are Mr. Flannery’s supervising attorneys Heather Murray, Managing Attorney of the Cornell Local Journalism Project, Paula Knudsen Burke, Local Legal Initiative Attorney for the Reporters Committee for Freedom of the Press, and Diane Siegel Danoff, a partner at Dechert LLP.

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Clinic Kicks Off Another Semester with Spring 2024 Bootcamp

The Cornell Law School First Amendment Clinic kicked off the Spring 2024 semester with another informative and inspiring Bootcamp. This Bootcamp treated five new Clinic students and ten returning students to three days of learning and discussion. Speakers included speaker Daniel Novack, Vice President, Associate General Counsel at Penguin Random House, on ongoing legal challenges to book-banning legislation; a panel of some of our stellar local journalism clients and co-counsel, including Teresa Bonner at Penn Live, Jo Ciavaglia at Bucks County Courier Times, Janon Fisher at Newsday, Paula Knudsen Burke at Reporters Committee for Freedom of the Press and clinic alum Connor Flannery; Prof. James Grimmelmann on the ever-changing landscape of Internet-related First Amendment issues; and a panel of returning students Cam Misner, Sabrina Palacios and Matt Hornung on ways to get the most out of one’s clinic experience.

We are grateful to all our speakers for making this Bootcamp special, and we look forward to the semester ahead.

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Clinic Represents New York Newspaper in First Amendment Retaliation Suit

The Clinic filed a lawsuit in the U.S. District Court for the Northern District of New York in December 2023 against Delaware County on behalf of Catskills-based newspaper The Reporter. The suit claims that county officials violated the paper’s constitutional rights in de-designating it as an official paper and in issuing what has amounted to an illegal gag order for county employees. Read The Times Union coverage of the suit here and Cornell Law School’s coverage of the suit here.

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Clinic Secures Access to Dangerous Driving Records for News Outlet Streetsblog

After filing suit months ago against the NYC DOT on behalf of news outlet Streetsblog to seek access to basic information that is key to assessing the City’s pilot program aimed at curbing dangerous driving, the DOT produced documents to our client on Thanksgiving eve. Thanks to Clinic alumna Yifei Yang for her excellent work on this matter in preparing the Petition and accompanying brief.

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Fall 2023 First Amendment Clinic Bootcamp

What a great start-of-the-semester Bootcamp on Saturday, August 19, 2023, for our incoming students in the Cornell Law School First Amendment Clinic!

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Our students were treated to talks by the likes of Anne Galloway, Tim Cornell, Clinic Local Journalism Project Managing Attorney Heather Murray and recent alumnus Andrew Gelfand on the state of local news and their joint litigation work for pioneering non-profit news site VTDigger; returning Clinic students Patrick George, Cameron Misner, and Dominic Muscarella discussing with moderator, Clinic Fellow Christina Neitzey, how to excel in the Clinic environment; the incomparable Robbie Kaplan of Kaplan Hecker & Fink speaking to our students from the frontlines of the First Amendment; Professor Michael Dorf and Clinic Associate Director/Associate Clinical Professor Gautam Hans discussing the implications of the Supreme Court ruling in 303 Creative, and Co-chair of Greenberg Traurig’s National Media and Entertainment Litigation Group Michael Grygiel on the litigation twists and turns leading to very recent Federal Court decision dismissing the Nicholas Sandmann libel suit against Gannett and several other media organizations.

We are so grateful to all our clients, co-counsels, friends, Clinic alumni and returning students for taking the time and helping to make the day such a smashing success!

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Clinic Files Lawsuit Challenging Gag Order as Unconstitutional

NEWFANE, NY – On June 21, 2023, Cornell Law School’s First Amendment Clinic filed a lawsuit in Niagara County Supreme Court on behalf of Tracy Murphy, animal rights activist and founder of Asha’s Farm Sanctuary in Newfane New York.  The suit, an Article 78 petition, challenges a gag order Newfane Town Court Justice Bruce Barnes imposed on Murphy restricting her First Amendment rights while she awaits trial on a misdemeanor larceny charge stemming from a dispute over the ownership of two cows.

The gag order imposes a blanket ban on Murphy’s use of any form of social media – which the order defines to “specifically include Facebook and public billboards, etc.” – while the criminal case against her is pending.  Murphy’s suit challenges the gag order on several grounds, including that the gag order is an unconstitutional prior restraint of speech in violation of the First Amendment, that the order is unconstitutionally vague and overbroad, and that the order violates New York bail laws.

“The ability to interact with others on social media – whether that be through ‘liking’ posts, commenting, or perusing timelines – is critical to the exercise of First Amendment rights in the modern day,” said First Amendment Clinic Summer Fellow Eman Naga.  “By blocking Murphy’s ability to use social media and express her views publicly, the gag order effectively strips Murphy of her voice.  It also sets a dangerous precedent for other criminal defendants to be unlawfully silenced, too – regardless of whether they share Ms. Murphy’s views about animal rights.”

“Asha’s Farm Sanctuary is founded on spreading hope and love,” stated Murphy.  “The gag order is inhibiting my ability to do just that, as well as my ability to fundraise for the Sanctuary and advocate for myself and the animals I care so deeply about helping.”

“The Supreme Court has made very clear that blanket gag orders like the one Ms. Murphy challenges are unacceptable under the First Amendment,” said Christina Neitzey, Stanton Fellow at the First Amendment Clinic and counsel for Murphy.  “Courts cannot pick and choose who gets to enjoy free speech rights based on factors like politics and personal lifestyle differences.  For the First Amendment to mean anything, we must all have these rights—vegans and ranchers alike.”

Murphy is represented in this suit by Neitzey, assisted by Clinic Summer Fellows Naga and Karem Lizbeth Herrera.  The matter is pending in Niagara County Supreme Court as Murphy v. Barnes, Index No. E180218/2023.

Murphy is represented in the parallel criminal matter by Chris Carraway with the Animal Activist Legal Defense Project at the University of Denver Sturm College of Law, Wayne Hsiung of Direct Action Everywhere, and Bonnie Klapper, former federal prosecutor and current member of the Direct Action Everywhere Legal Team.  Murphy’s criminal defense team previously challenged the same gag order before Justice Barnes, as well as an earlier version of the gag order Town of Somerset Justice Pamela Rider imposed at Murphy’s arraignment.

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Contact: Christina Neitzey, cn266@cornell.edu, 607-255-4196