Category: News

Days after filing an amicus brief in federal court on behalf of the Vermont Journalism Trust concerning the largest financial fraud in Vermont’s history, Cornell Law School’s First Amendment Clinic, Cornell Dolan, and the ACLU of Vermont won access to documents that had previously been sealed by the court. These documents may shine a light on the critical question of when the State of Vermont became aware of the fraud and what actions the state took in the months before the fraud became public.

The amicus brief supported a motion to unseal filed by former Jay Peak Resort President Bill Stenger after he reached a plea agreement with the federal government concerning his alleged role in an EB-5 visa investment scheme. After that fraudulent scheme was discovered, a federal agency shut down the Vermont EB-5 Regional Center that oversaw EB-5 projects, immigrant investors lost their funds and a clear path to U.S. citizenship, and Vermont residents lost out on promised job opportunities.

The State of Vermont initially opposed making the documents public, claiming that “privileges apply to them,” but, shortly after the Vermont Journalism Trust filed its amicus brief, the state agreed that the documents should be unsealed. The court ordered the unsealing of the documents on September 23, 2021. The Vermont Journalism Trust argued in its brief that these documents were of significant public interest and must be unsealed because the First Amendment and common law rights of access applied to them.

Heather Murray

“We recognize the tremendous importance of the release of these documents to the public,” says Heather Murray, managing attorney of the Local Journalism Project at the Cornell First Amendment Clinic. “Our clinic is thrilled that we could assist VTDigger in its excellent investigative reporting on this major financial fraud.”

Associate Clinic Director Jared Carter and law students Alyssa Ertel, Andrew Gelfand, Lauren Kazen, and Victoria Martin provided critical assistance in preparing the brief.

Since 2012, the Vermont Journalism Trust, operating as VTDigger, has been reporting on the state’s lax 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.

“The EB-5 scandal shows the need for more transparency and government accountability, and that is exactly why we’ve been fighting for access to these and other EB-5 documents for the past several years,” says Lia Ernst, legal director of the ACLU of Vermont.

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.

“This is the fourth case we’ve been involved in seeking access to EB-5 records that shed light on the government’s oversight of these projects and its actions once it became aware of the fraud,” says Timothy Cornell of Cornell Dolan. “Today marks a significant victory in the pursuit of truth for both our client and the public, but these actions should not be necessary for the public to learn what their government did.”

The Cornell Law School First Amendment Clinic is excited to announce that it has initiated a pilot program with Cornell Law School’s Entrepreneurship Clinic – a very popular clinic at Cornell which provides corporate services to emerging enterprises.

For this pilot, the First Amendment Clinic has brought to the Cornell Entrepreneurship Clinic two of its representative media clients in need of more “foundational” legal services ─ one based in New York City and the other in Phoenix, Arizona, each with different legal challenges.  The concept is that these two clients will be represented by a team of students from both clinics, supervised by the Director of the Entrepreneurship Clinic (Celia Bigoness) and the Managing Attorney of the First Amendment Clinic’s Local Journalism Project (Heather Murray) and the First Amendment Clinic’s NYC-based Local Journalism Attorney (Ava Lubell).    

The purpose of this program is to meet our clients precisely where their needs are and to provide to them a more fulsome representation, more in line with the type of work an in-house lawyer would perform for a media outlet.  The program is also intended to provide our students with a more holistic perspective of a media lawyer who is asked to perform all manner of legal services for their clients. 

According to Clinic Director Mark Jackson: “our view is that in order to be an effective media attorney, a lawyer needs to be acquainted and adept at both litigation and corporate skills.” Jackson added “a good litigator understands their clients’ commercial needs and that a good corporate attorney understands the newsgathering challenges of their clients.”

By Tyler Valeska May 21, 2021 Cornell Chronicle

Scoring a victory for transparency on behalf of a coalition of media outlets, Cornell Law School’s First Amendment Clinic has won the release of more than 20 previously sealed court documents that shed light on the federal prosecution of a former Pennsylvania state legislator.

With co-counsel at the Reporters Committee for Freedom of the Press, the clinic was representing some of the state’s largest media outlets, including The Philadelphia Inquirer, LNP Media Group and Spotlight PA.

They were seeking records from a case involving then-state representative Leslie Acosta, who in early 2016 was indicted in a scheme to defraud a mental health clinic in one of Philadelphia’s poorest neighborhoods, prior to holding elected office.

As Acosta prepared for reelection that year, the indictment and her eventual guilty plea remained sealed, so Pennsylvania voters didn’t know their representative had admitted to criminal fraud.

The court unsealed the guilty plea two months before the election, long past the filing deadline for challengers. Running unopposed, Acosta won by default despite her ineligibility to hold office once sentenced, then resigned weeks later under bipartisan pressure, requiring a special election to replace her.

“Transparency is especially important for issues relating to misconduct of elected officials,” said Tyler Valeska, First Amendment Fellow and supervising attorney in the case. “This case is an extreme example of why: The secrecy of these documents likely swung an election result. It shows that a free flow of information is the lifeblood of our democracy.”

A U.S. District Court judge in the Eastern District of Pennsylvania had sealed the case documents at the request of Acosta’s attorney, who claimed it was necessary to prevent prejudicing the trial of one of Acosta’s co-conspirators, Valeska said. But even after all cases involving the scheme concluded – and despite significant public interest in Acosta’s criminal prosecution – many of the documents remained unavailable to the public.

In its motion to unseal them, filed in February, Valeska said the First Amendment Clinic argued that First Amendment and common law rights of access entitled the public to the sealed documents. Third-year law students Hayden Rutledge and Julia Gebhardt led the effort with supervision from Valeska and Cortelyou Kenney, visiting assistant clinical professor and the clinic’s associate director. The team also included co-counsel Paula Knudsen Burke, a Pennsylvania-based Local Legal Initiative attorney for the Reporters Committee.

Attorneys for the government and Acosta largely did not oppose the motion, Valeska said.

The court in April ordered the release of 21 of the 23 documents at issue in their entirety, and on May 18 the other two documents with only minor redactions. Access to the documents will allow the public to fill in missing pieces concerning Acosta’s prosecution, Valeska said.

“The good news is that these records have been unsealed, and Pennsylvania voters and taxpayers will finally be able to learn more about how the government prosecuted a corrupt politician’s crimes,” Burke said. “The bad news is that it took a team of lawyers and law students fighting on behalf of a consortium of newspapers to ensure that documents that should be public are in fact accessible to everyone.”

The case is part of an ongoing collaboration between the First Amendment Clinic and the Reporters Committee, and one of several cases the clinic is currently handling in Pennsylvania.

By  James Dean | Cornell Chronicle

 May 14, 2021

A decision in a defamation case argued primarily by a Cornell Law School student is one of the first in New York state court to address a legal question spurred by recent legislative changes strengthening free speech protections.

On May 10, a New York Supreme Court judge in Ontario County dismissed a construction company’s lawsuit against James Meaney of Geneva, New York, publisher of the Geneva Believer watchdog blog, who was defended by the Law School’s First Amendment Clinic and co-counsel Michael Grygiel of Greenberg Traurig LLP.

Judge Brian Dennis agreed that amendments approved in November to New York’s so-called “anti-SLAPP” statutes, which seek to deter use of the courts to silence criticism in public matters, should apply to the case retroactively. But he also found that the previous version of the statute would have applied as well, and that Massa Construction Inc. could not meet its statutory burden to show that its claims had a substantial basis in law and fact. Dennis ruled that Meaney’s challenged articles were comprised of true facts and constitutionally protected opinions, rejecting Massa’s theory of defamation by implication and holding that satirical images in the articles were non-actionable.

During a virtual hearing on Dec. 9, 2020, third-year law student Rob Ward led the defense team’s argument for why the amended anti-SLAPP laws – short for Strategic Lawsuits Against Public Participation – should apply retroactively.

State and federal judges have recently reached that conclusion in unrelated cases, but at the time of the hearing no courts had weighed in on the matter.

Ward pointed to legislative history revealing state lawmakers’ intent to clarify the original purpose of statutes enacted in 1992, which was for the statute to apply more broadly than courts have previously interpreted it, and for the amendments to take effect immediately.

“New York has a long history of being at the forefront of expansive definitions of free expression,” Ward said. “This decision helps build on that tradition and will help protect journalists and other citizens trying to make their voices heard in their communities.”

The victory was the First Amendment Clinic’s second on Meaney’s behalf since Massa filed its defamation claim in January 2020. Last June, the same court on First Amendment grounds denied Massa’s request for a temporary restraining order demanding Meaney take down articles reporting on the company’s ties to the Geneva city council, which according to Meaney’s reporting has awarded Massa more than $4 million in contracts since 2010.

Meaney’s articles highlighted potential conflicts of interest involving a city council member who was also a Massa employee, and a former council member whose son worked part-time for both the company and the city. He reported on missing bid records – revealed by his Freedom of Information Law requests – and questioned the rationale for certain projects.

The First Amendment Clinic said the defamation case lacked merit broadly, including the fact that Meaney’s reporting – based on public meetings and public records – was accurate. The company claimed the allegedly defamatory statements implied wrongdoing and corruption – a disfavored legal theory, according to First Amendment Fellow Tyler Valeska.

Meaney’s reporting on and criticism of the city’s spending “is protected at the core of the First Amendment and the New York Constitution as speech on a matter of public concern,” the defense team argued in requesting the case be dismissed.

Valeska was thrilled with the comprehensive victory. He emphasized the court’s conclusion that Meaney would have been protected even under the narrower prior version of New York’s anti-SLAPP law. And he noted that the amended laws, applied retroactively, made the case a slam dunk. Application of the anti-SLAPP law increased Massa’s burden of proof, facilitated the case’s early dismissal and entitled Meaney to collect attorney’s fees.

The case was part of the First Amendment Clinic’s Local Journalism Project, which supports newsgatherers and media outlets lacking the resources to defend themselves against expensive, potentially frivolous litigation. Associate Director Cortelyou Kenney and a group of students including Michael Mapp were also part of the clinic team handling the case.

“The clinic believes that such threats have a dangerous chilling effect on local journalism and must be fought to ensure that the public receives newsworthy information,” said Mark Jackson, the clinic’s director and adjunct professor of law.

For Ward, helping to shape a novel aspect of state law was a rewarding opportunity, one that is relatively rare for a law student.

“I was grateful to play a role in defending this journalist who, if the clinic weren’t here, might have had to stop publishing,” Ward said. “Getting to not only write on his behalf but to argue before a judge on his behalf was an amazing experience.”

Ward said the skills and courtroom experience gained during his three semesters in the clinic will serve him well in a career that will start in tax law, and that First Amendment issues will remain a passion. Meaney’s challenges in Geneva, a city of 13,000, resonated personally with the native of Broadalbin, New York, a town of 5,000 about an hour northwest of Albany in Fulton County.

“This case hit close to home,” he said. “It was really appealing to me to work with someone who cares about his upstate New York community and is trying to report on it and make it a better place.”

Cornell Law School’s First Amendment Clinic filed a lawsuit in state court on April 27, 2021, on behalf of accountability news site The City, and its city hall reporter, Yoav Gonen, seeking records from the New York City Department of Education’s  (DOE) controversial Yeshiva school inquiry.

The records detail the school-specific findings of a five year investigation by the DOE into whether twenty-eight schools in Brooklyn are adhering to the state’s substantial equivalence requirements. Under the substantial equivalence law, nonpublic schools must provide an education at least as good as that provided to public school students in the same district.

The DOE has published a summary report of its findings but refuses to allow the public to review the school-specific assessments for 26 schools that do not meet the substantial equivalence threshold. The DOE simultaneously claims that the investigation is ongoing and that determined that curricula require improvement.

The City published a lengthy article on the suit, quoting its editor-in-chief, Jere Hester.  “The public has a right to know whether students are getting the education they deserve under the law. The city Department of Education’s excuse that the investigation is ongoing after nearly six years fails the smell test.”

The underlying investigation has been a source of significant controversy and media attention and has generated a separate investigation by the Department of Investigation (DOI) into whether the Mayor’s office engaged in “political horse-trading” that interfered with the progress of the inquiry. The DOI found that horse-trading had occurred, but did not interfere with the conclusion of the investigation.

“Yoav and The City are doing a fantastic set of accountability journalism to keep New Yorkers informed” says Ava Lubell, Local Journalism Attorney and part of the clinic’s Local Journalism Project. “If you’re not reading their coverage, you should be! The DOE is engaged in a set of linguistic gymnastics here,” added Lubell. “Merely terming something an investigation does make it one. The investigation is over and it’s time that the public learned of its findings. The City can use these records to tell so many different stories about the DOE, local politics, and more.”

The City is represented by Lubell and Heather Murray, managing attorney of the Clinic’s Local Journalism Project.

The First Amendment Clinic is engaged in a variety of cases and projects advancing the interests of free speech and freedom of the press. The 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.