Law students defend First Amendment in digital age

In an age of “new media”—from the blogosphere, to Facebook, to Twitter—notions of what constitutes journalism are changing, and therefore what speech is protected by the First Amendment is constantly being called into question. The news-gatherer is living in a new world where precedent is sparse. Furthermore, the worldwide economic crisis has prohibited many mainstream media outlets from dedicating funding to these emerging legal issues and from pursuing information access litigation to ensure the quality of their reporting. In short, the media is too fluid and too broke to do what it should be doing.

A bleak picture, right? Well, a group of Yalies, members of the Media Freedom and Information Access Practicum (MFIA), an initiative of the Yale Law School, are attempting to do something about it. This small group of Yale Law students has made serious inroads into protecting the media, combating government secrecy, and preserving a healthy democracy.

Founded in February 2010 by four Yale Law School students (Patrick Kabat, LAW ’09, Margot Kaminski, LAW ’10, Nabiha Syed, LAW ’10, and Adrienna Wong, LAW ’10), the MFIA Practicum aims to support an active investigative role for news organizations and to defend the public’s right to access information, ensuring a well-informed public sphere. The practicum, composed entirely of students and recent graduates, works under the supervision of Jack Balkin, director of the Information Society Project at the Yale Law School, and celebrated media lawyers David Schulz of Levine, Sullivan, Koch, and Schulz, and Daniel Klau of Pepe & Hazard.

What began as a small group of four students doing an “independent study,” evolved into a 10-person team that meets weekly and actively participates in the legal world. After receiving a case referral from the supervising attorneys, the four founders decide whether or not the group has the resources to handle it. If they do decide to take it, one of the four directors leads the project and recruits available members to work on it.

With the ability to spend the time and money that media companies are unwilling to put forth in today’s strained economy, MFIA is already working with well-known media outlets like the New York Times and the Hearst Company. Consequentially, the practicum has had no trouble establishing such relationships.

“Everybody’s interests are the same. It’s not like we are pitching something to them and have to convince them. They love it,” Kabat explains. “Free legal representation to get the documents they need to do sexy stories? It’s not a hard sell.” Since MFIA represents principles and not clients, it can represent these principles across client interests, and it does not have the constraints of a marketed media outlet. The practicum rarely encounters the conflict of interests that comes with strong ties to a specific client.

Despite being supervised by experienced lawyers, the students handle the bulk of the work—a task that is both time-consuming and challenging. “We tried to make it clear from the outset that this was going to be a huge time commitment,” says Kabat. “There will be times when you get a call Thursday night, and you need to finish something over the weekend, and it will take 18 hours per day.” Also, the work of the practicum does not always fall within the students’ comfort zone. “The responsibility is interesting—we are making decisions about what we think the most important issues are,” Kabat says. “It’s novel from a law student’s perspective to be making those decisions.”

The docket of the practicum is impressively lengthy and diverse, considering its short history. It has worked on cases in support of core newsgathering functions; projects defending press entitlements; lobbying for policy that better serves the public’s interest in effective newsgathering; and outreach to journalists.

The first successful project of the practicum was securing access to the moribund Varick Immigration Detention Facility on behalf of a reporter from The Nation. In a matter of days, the practicum achieved what would have taken months through normal legal conduits. By increasing the swiftness of legal proceedings, MFIA succeeded in a time-sensitive case that otherwise would have become irrelevant. Such rapidity is necessary in journalism, a field where timeliness is everything.

In a Doe subpoena case, the students worked to defend anonymous speech online after Illinois courts threatened to unmasked an anonymous online writer who criticized a political candidate in the comment section of the local newspaper’s website.

“What we’re doing is protecting that space online, where conversation relevant to newsgathering happens,” Kaminski says. “Newspapers don’t necessarily have incentives or resources to protect the comment section; it’s an added legal cost for them.” In addition to increasing the effectiveness of newsgathering, the practicum protects media outlets and journalists that are often overlooked.

One of the group’s most recent projects concerns the increasingly prolific “fusion centers”—centers started as a joint project by the Department of Homeland Security and the U.S. Department of Justice to facilitate information sharing at the federal level. According to the Department of Homeland Security website, as of July 2009 there were 72 fusion centers throughout the United States with 36 field representatives deployed, and the federal government had supplied more than 254 million dollars to support the centers. Although the federal government has acknowledged their existence, their purpose, and their locations, fusion centers—and, specifically, their surveillance practices—remain largely opaque. In decoding the fusion center, MFIA hopes to provide journalists with the documents and resources necessary to expose them, which take too much time and money for journalists to obtain themselves. Such a breakthrough could have national legal and journalistic significance.

In addition to active legal work, MFIA Practicum aims to educate journalists about their legal rights and to promote a better-informed public in general. In their YouTube Know-Your-Rights Campaign, the practicum’s members present and explain legal issues pertinent to journalism in three-to-five minute videos. The videos provide a universal, one-stop resource, containing useful information for both the amateur citizen journalist and the seasoned professional.

“Journalists will only bring cases if they think that they have an entitlement,” says Kabat. “If they don’t know what their rights are, they are not going to come to us; they are not going to fight.”

Other examples of this education initiative are LAMPPost, MFIA’s media freedom blog, and a Freedom of Information Act (FOIA) Bootcamp. The blog identifies legal news relevant to media practitioners (such as the status of bills that would increase government transparency); publishes analyses by the practicum’s students; and records updates on MFIA’s ongoing work. The Bootcamp included experts on federal FOIA and officials from the Connecticut Freedom of Information Commission to educate students on issues of government transparency. Through these initiatives, MFIA hopes to educate both legal practitioners and the general public about the relationship of between the media and the government.

When asked about the future of MFIA, Kabat and Kaminski were understandably optimistic. Kabat explained, “There’s been an enormous demonstration of need for what we’re doing—so we’re swamped. People call us far more often than we can actually take cases.” According to Kabat, the practicum is a unique organization and, as the many cases it receives illustrates, MFIA fills a true need. While there are many organizations interested in press law, such as the Berkman Center at Harvard, which puts lawyers in touch with clients, few litigate. On the other hand, the practicum actually provides legal services in the interest of newsgathering and makes sure that the conditions of newsgathering are still active. In the future, MFIA hopes to build an archiving system so that it can release documents itself. It also hopes to become a fully accredited clinic, which would enable activity in new jurisdictions and give it the infrastructure to handle more cases.

In a time when the divide between old and new media is growing wider and wider, the MFIA Practicum’s mission to ensure that the press, both old and new, contributes to a well-informed public sphere is more relevant than ever. According to Kaminksi, the three main reasons to start a clinic are helping people who are impoverished; giving students an education; and defending public principles. In giving journalists the resources they cannot afford, offering law students invaluable real-world legal experience, and defending public principles that are essential to basic democratic function in the United States, the MFIA Practicum seems to fulfill and even surpass these goals.

2 Responses

  1. This was an awesome article. Thank you for reporting on this.

  2. […] Patrick Kabat and Nabiha Syed who researched and wrote the successful appellate brief. They graduated Yale Law […]

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