Category: Impact Litigation

The Clinic pursues strategic litigation to advance or defend important First Amendment principles on the state and federal level and has represented a range of individuals and organizations, including private citizens, advocacy organizations, and prominent news outlets.

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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

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Impact Litigation News Policy & Advocacy Work

Clinic Secures Reversal of School District Policy that Silenced Committee Members

In March 2023, New York’s Pittsford Central School District reversed a policy which mandated that all members of District committees “remain positive and supportive of the District and Committee at all times and in all settings.”  The change came after an Inclusivity Advisory Committee member raised First Amendment concerns about the policy and retained the Cornell Law School First Amendment Clinic to advise on the matter. The Clinic sent the District a letter on the member’s behalf detailing these concerns and urging the District to immediately remove the provision from its Committee Member Code of Conduct.

After being appointed to the District’s Inclusivity Advisory Committee last fall, the committee member declined to sign the mandatory Committee Member Code of Conduct.  The individual, a District parent, felt the “remain positive” provision may prevent committee members from advocating for historically excluded students and families and from providing constructive criticism of committee and District actions.  The District informed the individual that committee members must sign the Code of Conduct in its entirety or be replaced.

Effective July 1st, 2023, the District states that it will remove the entire “remain positive” provision from the Code of Conduct and replace it with a narrower provision that asks committee members to “advocate and work productively with the District, both within and outside of committee meetings, in order to solve problems as they arise.”  In the meantime, the District allowed the Clinic’s client to sign a version of the Code of Conduct with the “remain positive” provision deleted and the new provision inserted.  As a result, they will remain a member of the Inclusivity Advisory Committee without fear of being removed from the committee for exercising their First Amendment rights.

“With this change,” they stated, “other committee members and I will feel more welcome to share meaningful critiques of the District and speak up on behalf of marginalized students, without fear of removal.  I am grateful that the District has agreed to update the Code of Conduct and that I will be able to continue my work on the Inclusivity Advisory Committee.”

“School committees such as the Pittsford Schools’ Inclusivity Advisory Committee serve vital roles in improving and enhancing schools,” stated Christina Neitzey, Stanton Fellow in the First Amendment Clinic.  “But to effect real change, committee members must be able to voice concerns and criticisms as they arise, without fear of removal.  We are pleased that the District was responsive to our client’s concerns and made this change.”

“This decision marks an important step toward greater inclusion in the Pittsford Schools,” added Clinic student Alison Draikiwicz, who assisted in drafting the demand letter.  “Without this restriction on committee member speech, committee members will be freer to work meaningfully with the District, acknowledge issues within the District, and advocate for positive change.”

Although the District allowed the Clinic’s client to sign a version of the Committee Code of Conduct omitting the “remain positive” provision, the District did not respond to the Clinic’s inquiry about any plans on the District’s behalf to inform other current committee members that they are not bound by the “remain positive” provision between the present time and July 1, 2023, when the revised Code will take effect.

The First Amendment Clinic team was led by Clinic students Alison Draikiwicz, Cameron Misner, and Yifei Yang, and supervised by the Clinic’s Stanton Fellow Christina Neitzey.

Contact: Christina Neitzey, cn266@cornell.edu, (910) 620-5282

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Clinic Wins Dismissal of Libel Suit Against Rutgers University Professor

WASHINGTON, D.C. – A federal judge yesterday dismissed in full a defamation and conspiracy lawsuit the Hindu American Foundation (“HAF”) brought last year against Rutgers University Associate Professor and human rights activist Audrey Truschke and four other activists.  The Cornell Law School First Amendment Clinic and co-counsel Davis Wright Tremaine LLP represented Dr. Truschke in this matter.

HAF’s claims against Dr. Truschke centered around several April 2021 Twitter posts in which she criticized HAF and Hindu nationalist ideology.  Among these tweets, Dr. Truschke reposted two articles from Al Jazeera Media Network’s AlJazeera.com concerning the awarding of federal COVID relief funds to organizations including HAF, which the articles characterized as “Hindu right-wing groups.”  HAF subsequently brought claims for defamation and civil conspiracy against Dr. Truschke and four other individuals quoted in the Al Jazeera articles.

In late 2021, Professor Truschke filed a motion to dismiss HAF’s suit, arguing that HAF fails to state a claim against Professor Truschke, and that Professor Truschke is not subject to personal jurisdiction in the District of Columbia.  The other defendants also filed motions to dismiss.

In a 28-page opinion issued Tuesday, Judge Amit Mehta agreed, granting all of the defendants’ motions and dismissing the case.  The court dismissed HAF’s suit against Professor Truschke on two independent grounds.  The court found that HAF could not show Professor Truschke is subject to personal jurisdiction in the District of Columbia, requiring dismissal.  The court also found that HAF failed to plead a libel or conspiracy claim against Truschke or any of her co-defendants – independently requiring dismissal of HAF’s suit.

“At its core, fighting this lawsuit was about protecting academic freedom, political debate, and critical inquiry,” said Christina Neitzey, Stanton Fellow in the Cornell First Amendment Clinic.  “We are thrilled with this victory and hopeful that it dissuades HAF and others from seeking to use the courts to silence scholars and activists with whom they disagree in the future.”

Eric Feder, Counsel at Davis Wright Tremaine, stated, “We’re pleased that the court recognized that a lawsuit against a New Jersey college professor had no business being filed in a Washington, D.C. court, but, more importantly, that the case had no merit in the first place.  The court’s opinion reinforces the important principle that academic and political debates are a vital cornerstone of our democracy and should not form the basis of a defamation suit.”

“The Cornell First Amendment Clinic and Davis Wright Tremaine have provided amazing legal representation throughout this lengthy process, and I am deeply grateful to everyone who worked tirelessly on this case,” stated Professor Truschke.  “While this process was inevitably stressful, a silver lining has been working with some rather promising law students at Cornell.  I’m grateful that I was able to secure pro bono counsel in this litigation as well as continue my research and publishing agendas throughout.  But I worry about others in my situation who could spend their life savings defending against similar meritless lawsuits and would be compelled to bow to anti-intellectual pressure to halt their research.  I hope that one outcome of this dismissal is dissuading further bad-faith litigation that seeks to infringe on academic freedom and civil society.”

Professor Truschke was represented by Feder and Neitzey, along with First Amendment Clinic Director Mark H. Jackson, former Clinic Adjunct Professor Jared Carter, and former teaching fellow Tyler Valeska.  Former Clinic students Kathryn Rider and Tim Birchfield, as well as former Clinic intern Taylor Kay, assisted in drafting the briefs in support of Professor Truschke’s motion to dismiss.

About the Cornell Law First Amendment Clinic: The Cornell Law First Amendment Clinic represents journalists and citizens on a pro bono basis to advance the interests of free expression. Law students collaborate with faculty to represent clients in legal research, negotiations, and litigation.

The case is Hindu American Foundation v. Sunita Viswanath, et al., Civil No. 21-cv-01268 (APM), in the United States District Court for the District of Columbia.

Read the court’s full opinion here.

Contact:

Christina Neitzey, cn266@cornell.edu, (910) 620-5282

Eric Feder, EricFeder@dwt.com, (202) 973-4273