Congratulations to Clinic Fellow Tyler Valeska for his publication of of “A Press Clause Right to Cover Protests” in Wash U Law’s Journal of Law & Policy. Read it here.

Congratulations to Clinic Fellow Tyler Valeska for his publication of of “A Press Clause Right to Cover Protests” in Wash U Law’s Journal of Law & Policy. Read it here.
On June 21, 2021, Clinic Director Mark Jackson addressed the community on the passing of Ambassador William vanden Heuval:
All:
I am writing with the sad news that the clinic’s most generous individual donor, Ambassador William vanden Heuvel, passed away last week.
I am including a link to his obituary from The New York Times, and encourage you to read it, because it describes how one Cornell Law School graduate went on to lead a public life of true purpose and import. And what a life!
I have always felt humbled and honored by his support for, and interest in, the work that we do. In his honor, I plan to feature on our website going forward this line from a piece he wrote for the Columbia Journalism Review: “The right to know in a democracy frequently depends on the demand to know by the media.”
Let’s all commit — no matter what careers we choose to pursue — to lead a life of honor, commitment, purpose and dignity.
My very best,
Mark
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.
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.
After the Clinic sent a letter to the Batavia City School District Board of Education to offer guidance on a proposed policy concerning public expression at Board meetings, the Board adopted a revised policy at its January 25, 2021 meeting that took into account the Clinic’s concerns.
The proposed policy initially prohibited public discussion of individual district personnel and students, which the Clinic pointed out would prevent members of the public from exercising their right to criticize public officials. The policy also originally stated that libelous statements and statements advocating racial, religious or other forms of prejudice would not be tolerated. The Clinic successfully advocated for revised language because speech cannot be restrained in anticipation of libel and the proposed language regarding other forms of prejudice was overly vague.
“The Board’s decision to make revisions to the proposed policy prior to its adoption is a great example of elected officials making decisions with input from the public,” Heather Murray, Managing Attorney of the Clinic’s Local Journalism Project, said. “Providing the opportunity for members of the public to address school board members on matters of public concern is critical to maintaining trust during this unprecedented time for us all.”
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.