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Access & Accountability 2022
Friday, October 14
SOCIAL CHANGE & SOCIAL MEDIA: IDENTIFYING AND ADRESSING EVOLVING THREATS TO GOVERNMENT ACCOUNTABILITY
8:00 REGISTRATION & CHECK-IN Coffee and light breakfast
8:45 WELCOME by Floyd Abrams
9:00 PRESERVING PUBLIC JUSTICE
Over the past several years civil disputes have been functionally privatized in many areas. The routine use of blanket protective orders and sealing orders in tort cases and the movement of many disputes from the public courts to private ADR platforms deprives the public of access to significant health and safety information developed in litigation. This panel will consider the impact of these developments on the public interest and explore ways that journalists and their lawyers can work to preserve public access to important information that is unattainable outside of litigation.
- Moderator: Meenakshi Krishnan, Davis Wright Tremaine LLP
- Panelists: Dustin Benham, Texas Tech School of Law
Judith Resnik, Yale Law School
Roy Shapira, Radzyner Law School, Reichman University
Lisa Zycherman, Reporters Committee for Freedom of the Press
10:10 FOIA MEETS THE POLICE STATE
The need for effective reform of FOI and Open Records laws is undeniable. The laws were developed in an era of file cabinets and carbon copies, and they fail to harness the ability of digital technologies to make government more transparent, responsive, and efficient. This panel will explore the nature of the problem through the lens of law enforcement accountability. How do current state and federal FOI regimes limit the transparency needed for meaningful oversight of law enforcement agencies? What do these shortcomings tell us about appropriate avenues for effective reform? And what steps can effectively be pursued by law school clinics and open government advocacy groups?
- Moderator: Jonathan Manes, Roderick & Solange MacArthur Justice Center
- Panelists: Christina Koningisor, Quincy College of Law, University of Utah
Margaret Kwoka, Moritz College of Law, University of Ohio
Freddy Martinez, Open the Gov
David McCraw, New York Times
Trina Reynolds-Tyler, Invisible Institute
11:25 EXPOSING DOMESTIC SURVEILLANCE
Law enforcement agencies today collect, aggregate, and share personal data at a level unimaginable in the past. This data can be used with awe inspiring technologies, like facial recognition and real time GPS tracking. It is used by state and federal agencies engaged in all manner of law enforcement activities--from state/federal fusion centers, to federal immigration control, to state enforcement of restrictions on access to abortion services. The panel will address steps needed to understand the extent of data aggregation and sharing going on now and consider appropriate responses to ensure the protection of individual rights and civil liberties.
- Moderator: Catherine Crump. UC Berkeley School of Law
- Panelists: Alejandro Carabello, Harvard Cyberlaw Clinic
Chris Gelardi, Investigative Journalist
Farhang Heydari, NYU Policing Project
Nina Wang, Georgetown Center on Privacy & Technology
1:30 DEFINING THE RIGHTS OF “THE PRESS”
Former Supreme Court Justice Anthony Kennedy once described investigative journalists the “auditors” of democracy. Yet some special protections are needed if investigative journalists are to fulfill that role and hold the powerful to account. The existence of substantial, unanswered questions about the scope of the protections uniquely extended to the press requires reporters and their sources to operate in a gray zone, where the legal rules are murky and the potential for criminal liability uncertain. This panel will address some key questions about the rights and protections afforded to newsgatherers and consider steps that might be taken to ensure that robust investigative journalism can flourish. Questions to be addressed include: What is the scope of constitutional protection extended to journalists when they publish newsworthy information whose confidentiality is protected by law? When can the government force a news organization to disclose its sources? Can government officials refuse to give information to journalists whose work they dislike? And, who is “the press” anyway? James O’Keefe and Project Veritas? Breitbart News? Julian Assange?
- Moderator: Lee Levine, Ballard Spahr LLP (Ret.)
- Panelists: RonNell Anderson Jones, Quincy College of Law, University of Utah
Toni Locy, Washington & Lee University
Richard Tofel, President (Ret.), Pro Publica
Erik Ugland, Diederich College of Communication, Marquette University
Ben Wizner, American Civil Liberties Union
2:50 RETHINKING IC TRANSPARENCY
The scourge of overclassification continues to stifle meaningful transparency for the Intelligence Community, and yet a variety of efforts to lift some counterproductive veils of secrecy have fallen flat. Judicial deference and timidity have rendered FOIA’s national security disclosure obligation feckless; multiple lawsuits attacking the secrecy of the FISA court achieved little; a challenge to the lifetime requirement for prepublication review imposed on all who ever held a security clearance was rejected in the courts; and, the Supreme Court just reinforced a state secrets doctrine the government has been invoking with greater frequency. This panel will assess the state of current affairs and identify steps that might enable meaningful public oversight of the Intelligence Community.
- Moderator: Jameel Jaffer, Knight First Amendment Institute at Columbia University
- Panelists: Elizabeth Goitein, NYU Brennan Center for Justice
Ashley Gorski, American Civil Liberties Union
Heidi Kitrosser, Northwestern University, Pritzker School of Law
Robert Litt, Morrison & Foerster
Charlie Savage, New York Times
4:15 PREVENTING PROSCRIBED SPEECH
Recent months have witnessed an alarming growth in efforts to prescribe “permissible” speech and to proscribe “impermissible speech” in many public and quasi-public forums. Protests over the teaching of critical race theory, Florida’s “don’t say gay” law, anti-boycott bills, censorship at public libraries, and even book burnings, reflect a rising tide of demands to limit speech on sensitive or disfavored topics. This panel will assess the interests at stake when speech on certain topics is restricted in certain spheres, and the potential legal theories to challenge these restrictions. It will review the status of ongoing litigation and identify opportunities for clinics to engage in this debate.
- Moderator: Thomas Leatherbury, SMU Dedman School of Law
- Panelists: Suhad Babaa, Just Vision
Genevieve Bonades Torres, Lawyers Committee for Civil Rights
Suzanne Nossel, PEN America
Robert Post, Yale Law School
John Quinn, Kaplan, Hecker & Fink LLP
5:30 Special Screening
Following the final panel of the day there will be a screening of the 2021 documentary, BOYCOTT, which chronicles a wave of anti-boycott legislation enacted over the past few decades and the First Amendment litigation it engendered. The film’s executive producer, Suhad Babaa will introduce the film and answer questions following the showing.
Saturday, October 15
THE ROLE OF LAW SCHOOL CLINICS IN ADDRESSING THE CRISIS IN LOCAL JOURNALISM
Investigative journalism is essential for meaningful accountability, at all levels of government. The well-documented decline in local journalism has limited public oversight of state and local agencies, depressed public engagement in local politics, and undermined the strength of our democracy. These sessions will take stock of the significant efforts by law school clinics to address this crisis by providing independent journalists and local news organizations with legal services needed to function effectively. They will assess how these clinical programs are doing, how they could be more effective, and whether law school clinics are a viable part of a longer-term response to the decline in local journalism.
9:00 SUCCESS STORIES
Students from the First Amendment clinics at Duke, UC-Irvine, University of Virginia, and Yale will present some of the matters they have handled for local journalists over the past year.
Moderator: Stephen Stich, Media Freedom & Information Access Clinic,
10:00 INTRODUCTORY COMMENTS by Jim Brady, VP/ Journalism, Knight Foundation
10:15 PANEL 1: METRICS AND MAPPING
A facilitated discussion identifying what law school clinics and pro bono lawyers are doing to support local journalism and assessing the value and impact of this work. Among the topics to be covered:
• What services are law school clinics and pro bono legal services organizations currently providing to journalists?
• How can we quantify the value of these services through metrics that will aid in the search for sustainable funding sources?
• What common metrics can we agree to collect as a group that will demonstrate to funders our impact as a key sector in journalism?
• What other services could be provided to journalists by law students and by nonprofit legal services organizations?
- Facilitators: David Bralow, Press Freedom Defense Fund
- Bruce Brown, Reporters Committee for Freedom of the Press
11:45 PANEL 2: BUILDING A BETTER NETWORK
Efforts by law school clinics and pro bono organizations to support local journalism can only succeed if they can provide services the journalists need when they need it, on a sustainable basis. This session will explore ways to build bridges between the journalists in need of help and the clinics and pro bono organizations trying to scale to meet that demand. Among the topics to be covered:
• How do pro bono lawyers develop cases and connect with journalists?
• What can we do as a group to improve the intake and referral process for our journalist clients when both the supply and the demand are often dispersed around the country in small, under-resourced organizations?
• What new concepts are being tried out in the pro bono space and how can these new programs increase the capacity in the system to deliver free legal support?
• How can we prepare for a convening next year with journalists, funders, newsroom incubators, and others to propose ideas to integrate more effectively our legal network with the networks of nonprofit and local newsrooms?
- Facilitators: Mark Jackson, Cornell First Amendment Clinic
- Alex Papachristou, Lawyers for Reporters
- Sima Sarrafan, Microsoft
1:15 OPEN FELN STEERING COMMITTEE MEETING (with boxed lunch)
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AAC2022 is hosted by the Abrams Institute for Freedom of Expression and the Media Freedom & Information Access Clinic at Yale Law School, programs of the Information Society Project.
This Conference is made possible by generous support received from:
JOHN S. AND JAMES L. KNIGHT FOUNDATION DEMOCRACY FUND LEGAL CLINICS FUND
2022 Conference Planning Committee
David Bralow, Press Freedom Defense Fund
Bruce Brown, Reporters Committee for Freedom of the Press
Catherine Crump, UC Berkeley, School of Law
Lisa Hoppenjans, Washington University in St. Louis, School of Law
Heidi Kitrosser, Northwestern University, Pritzker School of Law
Thomas Leatherbury, SMU, Dedman School of law
Jonathan Manes, Roderick & Solange MacArthur Justice Center
David Schulz, Yale Law School