Building Democracy: The Law School Leads Cornell’s Fight for Freedom of Expression

by Kenny Berkowitz

Toward the end of August, as students returned to campus, President Martha E. Pollack launched Cornell’s first university- wide theme. Announcing “The Indispensable Condition: Freedom of Expression at Cornell,” she talked about academia’s commitment to the free exchange of ideas and to the perceived tension between free speech and diversity, equity, and inclusion (DEI).

The Indispensable Condition: Freedom of Expression at Cornell,” a moderated conversation between Professor Jameel Jaffer of Columbia University and Professor Eugene Volokh of the University of California at Los Angeles. Myron Taylor Hall, Landis Auditorium

She talked about conservatives who argue DEI is inherently a violation of free expression, and she talked about liberals who argue protecting biased speech makes DEI virtually impossible. Then, threading the narrow path in between, Pollack talked about Cornell’s commitment to both as an essential part of discovering new knowledge, engaging across difference, and providing students with the skills to effectively participate in the world around them—a set of goals that are essential at an institution that promises to deliver any study to any person.

As a community of scholars, we need not shy away from the challenges of holding values that are sometimes in tension with one another. Our response should be to seek solutions.”

Martha E. Pollack

“As a community of scholars, we need not shy away from the challenges of holding values that are sometimes in tension with one another,” said Pollack. “Our response should be to seek solutions.”

Karen Levy, whose research focuses on the intersection of law and technology, speaks about the regulation of AI at the Fundamentals of Freedom of Expression forum.

At the Law School, where Cornell kicked off its theme, that’s exactly what’s happening. “Free speech is a fundamental building block of our democracy,” says Jens David Ohlin, Allan R. Tessler Dean and Professor of Law. “We’re not just talking abstractly about free expression. We’re concretely defending it as central to our academic mission, as a core value in the functioning of a university and its search for truth.

Panelists Nelson Tebbe (left) and Michael Dorf (above) speak at the university’s Fundamentals of Freedom of Expression forum.

“Freedom of expression is a fragile consensus that requires constant renewal,” he continues. “With each generation, we have to make the case for why the First Amendment is central. We can’t simply assume everyone understands why it’s necessary—we need to ensure a culture of openness, resilience, and civil dialogue. The First Amendment is not just for conservatives, or liberals, or centrists. It’s not just for people on the furthest edges of the spectrum or people whose views can’t be labelled in simple terms. Everyone needs that protection, inside and outside the academy, and that’s the message we’re here to teach.”

Putting those words into action, the Law School’s First Amendment Clinic celebrated its fifth anniversary last spring. Over the years, the clinic’s students have handled cases for mainstream newspapers like The New York Times and small-town outlets like The Batavian and The Geneva Believer. They’ve defended police advisory board members who’ve been dismissed for comments on social media and college professors who’ve been sued for defamation. They’ve negotiated settlements, submitted amicus briefs, argued appeals in court, and set important precedent under both state and federal freedom of information laws.

Audience members listen during the Fundamentals of Freedom of Expression, hosted by Cornell Law School on September 7.

“I’m proud to see how we’ve moved the needle,” says Mark H. Jackson ’85, who founded the clinic in 2018 after a career representing newspaper, magazine, and book publishers, motion picture studios, and television stations, ultimately retiring as executive vice president and general counsel of Dow Jones in 2015. “In five years, we’ve developed a national reputation. We’re representing clients who are expressing their opinions, no matter how unpopular, citizens who are trying to participate in government and are being thwarted by local officials, and news outlets performing their vital function in getting information to the public. We have been successful in ensuring those voices are being heard.

“At the same time, we’re training students to hone their litigation skills,” he continues, “whether that means taking depositions, drafting documents, filing motions, negotiating agreements, or delivering oral arguments in court.

That’s the beauty of the clinic. Students are gaining real-world experience while they’re still in law school, and they’re taking on more and more responsibility as they go. That’s how I define success.”

Over the course of years, when journalists in Vermont were barred from seeing information about the largest financial fraud in state history, the clinic filed multiple lawsuits on their behalf. (The released documents shed light on a Ponzi scheme that misused more than $200 million dollars of investor funds.) When a scholar who writes about race and class was prohibited from interviewing a federal prisoner in Arizona, the clinic negotiated in-person access. (The conversations with Jamil Abdullah al-Amin, a Muslim cleric formerly known as H. Rap Brown, inform the recently published What is Antiracism?) When The Batavian was excluded from Genesee County Family Court, and then blocked from seeing a transcript, the clinic argued for access in appellate court. (The lower court’s ruling was overturned, access was granted, and precedent was set. “The decision affirms in clear terms two essential principles,” posted Jackson. “First, a court can’t simply shut off a particular court—here family court—from access to the public and the press, as a matter of law; and second, the determination of what is ‘newsworthy’ belongs squarely with editors, not judges.”)

In Massa Construction v. Meaney, the clinic defended a citizen journalist who was being sued for defamation after questioning the bidding process between a general contractor and the city council. (The court found no false statements in Meaney’s reporting, granted his motion for summary judgment, and awarded attorney’s fees. The plaintiff appealed, but the case settled before oral arguments.) In Hindu American Foundation v. Sunita Viswanath, the clinic defended a Rutgers University professor who’d been sued for libel for social media posts that commented and linked to Al Jazeera articles critical of groups with apparent ties to the Hindu nationalist movement. (The case was dismissed, and the professor has continued to write about South Asian politics.) In Reilly v. York County, the clinic and the Reporters Committee for Freedom of the Press filed a motion to intervene and unseal settlement records concerning the wrongful death of a prisoner in county jail. (The court ultimately released settlement records that revealed a total payment of $200,000 to the prisoner’s estate, not just the $5,000 the County paid out that had initially been made public.)

The clinic, which Ohlin describes as “a mighty and powerful First Amendment law firm,” represented a school district committee member in Pittsford, New York, who objected to a code of conduct that required members to “remain positive and supportive of the District and Committee at all times and in all settings.” (After receiving a demand letter from the clinic, the district agreed to replace the clause with the narrower “work productively with the District.”) They represented a citizen in Westchester, New York, who been blocked from the county’s Facebook page for voicing a series of conservative opinions about local elections. (The clinic successfully argued the site was a designated public forum, and the county reinstated his access.) They represented The New York Times, filing FOIA requests for demographic information about the spread of COVID-19. (“We got that data turned over really quickly,” says Jackson, and the Times published a groundbreaking story about the coronavirus’s disproportionate impact among Asian Americans, Blacks, Latinos, and Native Americans.)

Occasionally, clinic faculty affirmatively reach out to potential clients, as the clinic did with the Times, but more often, potential clients make the initial contacts, which are discussed in weekly meetings by the four clinical faculty members: Jackson; Associate Director Gautam Hans, who is also a member of the theme year’s planning committee; Heather Murray ’13, managing attorney of the Local Journalism Project; and Stanton Fellow Christina Neitzey. The clinic typically has about 15 students—this fall, there are four new and ten returning—dividing the work in pairs or small teams and handling between eight and twelve cases at any one time, always under the supervision of the four supervising attorneys.

“We really want students to have the individualized attention that teaches them how to work with clients, who almost always wouldn’t otherwise be able to afford representation,” says Hans, Associate Clinical Professor of Law. “Students start each case with some background, often a file prepared by a previous team, and they’re expected to develop a strategy. How are they going to plan for a meeting with the client? How are they going to deal with opposing counsel? What are the strengths of the case? What are the weaknesses?

“That really forces students to go through the learning process themselves,” he continues. “To grow, and to make their own decisions. That’s the model we use. When they start, they might feel like they’re in the deep end of the pool, and they’re not sureif they can swim. But we’re always close by, holding out a life preserver, and even if they feel a little shaky at the beginning of the semester, they’re going to feel confident before the end.”

For Maria Kearns-Galeano ’23, who never planned to become a litigator, that first semester in the clinic changed her mind. Joining as a 2L, she started with transactional work, collaborating with the Entrepreneurship Clinic on independent contractor and licensing agreements for a small media outlet. Then, when a conservative community member in Westchester, New York, approached the clinic for help, she and Connor Flannery ’23 wrote a demand letter that persuaded the County to restore his access to its public Facebook page. “It was a small case,” says Kearns-Galeano, “but very fulfilling to restore his rights in real time.

Next, she authored a brief with Alyse Horan ’23 to support a Texas journalist seeking all autopsy records kept by multiple Texas counties—a case that hasn’t yet been decided—and joined an appeal seeking to prevent the Pennsylvania State Police from charging a journalist thousands of dollars to release the raw data fueling a PSP public database. (The case, which the PSP withdrew after turning over the data, returned to Commonwealth Court in October for the clinic’s oral argument about attorney’s fees.)

“I like litigation a lot more than I first realized,” says Kearns- Galeano, who was drawn to law school after a master’s degree in journalism and a stint in broadcast news. “Having that clinical experience helped me understand the life of a case. It’s very hard to put theory into practice unless you’re actually doing the work, and it’s important to have supervising attorneys who are so experienced, who can walk you through from start to finish. If there’s a change that needs to be made in a brief, they take time to explain why and to think through it together. It was a great experience.”

As her supervisor in the Local Journalism Project, Murray emphasizes the importance of choosing cases that benefit both clients and the students working on them, building ongoing attorney-client relationships, and supporting 2Ls and 3Ls through each stage in the process. “What we’re largely doing is teaching students how to litigate and how to effectively counsel their clients,” says Murray, who joined the clinic in April 2020 after working as a journalist and a litigator in New York City. “They’re taking the leading roles, but we’re here to supervise, provide feedback, and prepare them to go wherever the case leads. We take them through several moots in advance of an argument, we review the briefs, prep them for client calls, meet with them every week to talk about their cases, and guide them every step of the way.”

Murray’s social media pages are filled with wins, sending kudos to Yifei Yang ’23 for a lawsuit seeking data related to New York City’s Dangerous Vehicle Abatement Program. To Patrick George ’24 and Juzhi Zheng ’23 for a motion to unseal the settlement in a prison suicide. To Steven Marzagalli ’22 for an enforcement action on behalf of pipeline protesters. To Tim Birchfield ’22 and Ashley Stamegna ’22 for an amicus brief to the U.S. Supreme Court. To Andrew Gelfand ’23 for oral argument in the Vermont Supreme Court, and to Stamegna for oral argument in the Appellate Division, Fourth Department of New York State Supreme Court.

With the semester just begun, other suits are still in process. Students are suing for access to judicial questionnaires in New York City, defending Black Lives Matter activists in Oklahoma City, challenging a gag order against an animal rights’ advocate in Newfane, New York, and helping advise libraries nationally on responses to book banning efforts. Over this next year, the clinic is hoping to expand its services into Ohio, hire a fifth full-time attorney, and continue to do what it does best.

“We’re teaching students to be lawyers—that’s why they came to law school,” says Neitzey, who joined the clinic after two years as a litigation associate at Morrison & Foerster and two years at Cleary Gottlieb. “But more than that, we’re teaching them to be thoughtful lawyers. To be client-centered lawyers. To be sensitive to the goals of their clients, and to treat that whole person, not just their legal needs. To care about free speech and the First Amendment. And to graduate with minds that are more open than when they first arrived.”

Founded with a seed grant from The Stanton Foundation, the First Amendment Clinic has received additional generous support from The John S. and James L. Knight Foundation, The Charles H. Revson Foundation, and the Legal Clinic Fund, a collaborative fund supported by The Abrams Foundation, Democracy Fund, Heising-Simons Foundation, and The Klarman Family Foundation. The Miami Foundation serves as fiscal sponsor for the Legal Clinic Fund. The late Ambassador William J. vanden Heuvel ’52, provided additional generous support, and The Stanton Foundation continues to provide additional support for the clinic’s ongoing work.