MFIA’s Tenth Year: Victories, New Beginnings, and Evolution

The Spring 2019 semester marked the start of the Media Freedom & Information Access (MFIA) Clinic’s tenth year providing pro bono legal services to defend press freedom and promote government accountability. Over the past academic year, MFIA achieved a number of important successes, even as the scope of its work continued to grow and evolve.

The Clinic began the year with about three dozen ongoing matters, handled by a staff of four attorneys working with about two dozen students each term. The Clinic had partial or complete success in 11 matters litigated to judgment, while losing just two cases. Among its noteworthy victories:

  • MFIA obtained a court order requiring public disclosure for the first time of Alabama’s secret lethal injection execution protocol and sustained that order on the State’s appeal to the Eleventh Circuit;
  • MFIA won one of the first judicial decisions in the country strictly construing 2016 Amendments to the Freedom of Information Act (FOIA) to impose additional new burdens on agencies seeking to withhold information;
  • MFIA won dismissal of a lawsuit for false light invasion of privacy that had threatened to bankrupt an independent news site dedicated to reporting on Norwalk, Connecticut city government;
  • MFIA’s lawsuit on behalf of documentarian Alex Gibney and journalist Ray Bonner prevailed in getting the CIA to lift in substantial part a gag order it had effectively imposed on an FBI agent who had written about the CIA’s torture of Guantanamo detainee Abu Zubaydah; and
  • MFIA and the ACLU of Southern California obtained the agreement of the City of Los Angeles to invest in a major overhaul of the open records procedures and technology used by the Los Angeles Police Department to settle a lawsuit alleging a pattern and practice of non-compliance with statutory disclosure mandates;

The Clinic also drafted five amicus briefs this year, three filed in the U.S. Supreme Court, one in the U.S. Court of Appeals for the Third Circuit, and one in New York State’s highest court. MFIA students argued matters in the Eleventh Circuit Court of Appeals, the federal district courts in New York and Connecticut, the state courts of New York and Connecticut, and before Connecticut’s Freedom of Information Commission.

This year the Clinic represented 29 different journalists, 31 news organizations, 12 NGOs, and 9 scholars from across the country in cases falling within its core mission — cases that presented significant issues of government transparency, held the promise of achieving a structural reform of the rules limiting government accountability, or required a defense of journalists’ newsgathering activities or publications.

Launch of DocProject

Last year also saw MFIA branch out in another new direction, to address an important unmet need. Although society increasingly obtains its news and information through visual images, video journalists and independent filmmakers have limited access to legal assistance. To address this need, MFIA created DocProject. Working under the guidance of experience media lawyers, MFIA students now provide filmmakers with pro bono legal research and advice from the earliest stages of their projects through rough-cuts. DocProject students help filmmakers with varying degrees of experience develop strategies to reduce potential liability from their newsgathering activities — including source protection, trespass, intrusion, and other privacy concerns. They also assist filmmakers’ in obtaining access to information and advise on libel, privacy, intellectual property, and other content concerns.

Looking ahead

MFIA will be carrying 34 matters on its docket heading into the final term of its tenth year. This docket includes a number of potentially significant lawsuits, including:

  • A lawsuit contending that President Trump violates the rights of journalists when he uses his official powers to retaliate against reporting he disfavors;
  • A lawsuit advancing the novel claim that the First Amendment access right precludes secret arrests and requires contemporaneous disclosure of the names of individuals when they are taken into custody;
  • A lawsuit contending that the regulation of drones by certain state laws violates the rights of newsgatherers;
  • A lawsuit on behalf of historian Jill Lepore seeking the unsealing of the records of a grand jury convened in Boston to investigate the disclosure of the Pentagon Papers by Daniel Ellsberg; and
  • A lawsuit challenging Virginia’s lethal injection execution protocol that seeks to establish in the Fourth Circuit the legal principle that the First Amendment access right applies to executions.

Visit MFIA’s website for more information about the Clinic’s activities and its current docket.

By Leah Ferentinos