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ECBAWM Wins First Amendment Challenge in the Second Circuit

ECBAWM successfully defended a government official’s First Amendment right to strongly criticize the National Rifle Association and other pro-gun groups. The victory came when the Second Circuit Court of Appeals reversed a trial court decision and dismissed all claims against former New York Department of Financial Services Superintendent Maria Vullo brought by the National Rifle Association of America.

In a 3-0 decision, the Second Circuit held that the NRA failed to plausibly allege that Ms. Vullo violated its First Amendment rights and that Ms. Vullo was entitled to qualified immunity in her role as DFS Superintendent. The court held that Ms. Vullo was “simply executing her duties as DFS Superintendent and engaging in legitimate enforcement action” when she prosecuted insurance companies’ violations of New York’s insurance law related to the NRA’s CarryGuard product. Ms. Vullo also “was doing her job in good faith” when she advised financial institutions to evaluate the reputational risks of affiliating with the NRA in the wake of the tragic Parkland shooting.

“The ruling validates the work done by a superb public servant who did her job with integrity and passion,” said ECBAWM partner Andrew G. Celli, Jr., who argued the appeal on behalf of former Superintendent Vullo. Ms. Vullo also lauded the Second Circuit’s decision. “For four years, the NRA has proceeded with this baseless case while I remained steadfast in my position,” she said. ECBAWM partner Debra L. Greenberger and associate Marissa R. Benavides also represented Ms. Vullo in the appeal and underlying litigation.

Read the decision

Press
“2nd Circuit rejects NRA claims against ex-NY state official,” Associated Press
“NRA free speech lawsuit against New York regulator is dismissed,” Reuters
“NRA Loses First Amendment Suit Against N.Y. Insurance Regulator,” Bloomberg Law
“2nd Circ. Overturns NRA’s Free Speech Win,” Law360.com

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ECBAWM Defeats Motion by White Nationalists to Silence Civil Rights Group Supporting Charlottesville Lawsuit

Following the hateful, violent, white nationalist rally in Charlottesville, Virginia in August 2017, a group of community members who were injured filed a federal lawsuit against the hate groups and leaders who organized the violence, seeking compensatory and injunctive relief. Integrity First for America (IFA), a non-profit civil rights organization, is supporting the litigation, including security costs for plaintiffs and their counsel. The court in this case just rejected defendants’ attempt to silence IFA and plaintiffs, after ECBAWM filed an opposition on IFA’s behalf.

Three defendants in the case filed a motion asking the court to issue an order forbidding the plaintiffs and their counsel from making any extrajudicial public statements about this case. They also asked the court to include IFA — which is not a party to the case — in the gag order, specifically forbidding IFA from carrying out its core, constitutionally protected mission, which is to advocate around and raise funds to pay for security and logistics for the plaintiffs and their trial team. The petitioners offered no evidence or legal authority in support of their position, despite the fact that they asked the court for a prior restraint on the First Amendment rights of plaintiffs, their counsel, and a non-party.

On behalf of Integrity First for America, ECBAWM filed a memorandum of law in opposition to petitioners’ motion. As explained in the filing, “Petitioners are not concerned about the impact of pre-trial publicity on the venire pool; rather, they are seeking to use the powers of this Court to prevent IFA from raising money, which will be used to keep Plaintiffs and their lawyers safe and to support the trial in Charlottesville later this month.”

The court has now agreed with ECBAWM and denied defendants’ motion to silence IFA in its entirety.

ECBAWM attorneys Andrew G. Celli, Jr. and Noel León, along with Matthew W. Evans of Gravitt Law Group PLC, represent IFA.

For more information on Integrity First for America and the Charlottesville lawsuit it’s supporting, please visit www.IntegrityFirstForAmerica.org or contact press@integrityfirstforamerica.org.

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ECBAWM Partners with The Intercept on FOIA Project

ECBAWM recently partnered with non-profit investigative news organization The Intercept to compel access to public records under the Freedom of Information Act (FOIA). The project was born out of the need Intercept’s global journalists have for access to documents and their frustration with red tape and delays. When journalists are unable to timely access government records, stories are unable to be written and the public’s ability to be informed is jeopardized.

To date, ECBAWM has filed three lawsuits against the federal government on behalf of The Intercept, seeking to compel the National Institutes of Health to release information about a potential conflict of interest involving an American doctor who is part of the World Health Organization’s investigation into what caused the coronavirus pandemic, seeking the release of information relating to force-feeding procedures on a detainee at a border immigration facility by U.S. Immigration and Customs Enforcement officers, and seeking information that the U.S. Department of State has refused to release about a citizen journalism group covering abuses during the Syrian civil war.

“There’s nothing like an Article III federal judge with life tenure, looking down from the bench at lawyers and saying ‘you have to do this’ to make things happen,” said ECBAWM partner Andrew G. Celli, Jr.

Through litigation, ECBAWM aims to ensure that government records are provided to reporters when they need them, while also helping the courts understand the need for timely access.

“In each of these cases, the hope is that there’s broader change and that the agencies start being more responsive,” said ECBAWM partner Debra L. Greenberger. “But there’s also the specific result in the cases, which is we get to know information that we want to know.”

You can read more about ECBAWM’s work with The Intercept in Law360’s interview with Celli and Greenberger.

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ECBAWM Clients Challenge Campaign to Send Armed Guards to Minnesota Polls

Free Speech for People, Emery Celli Brinckerhoff Abady Ward & Maazel LLP, and Lathrop GPM LLP, filed a federal lawsuit today on behalf of plaintiffs The Council on American-Islamic Relations of Minnesota and the League of Women Voters of Minnesota against a private mercenary contractor, Atlas Aegis, for voter intimidation in Minnesota. The complaint alleges that Atlas Aegis’s plan to hire and deploy armed ex-soldiers to polling sites in the state constitutes illegal voter intimidation under the Voting Rights Act of 1965.

Press Release
More coverage of the lawsuit can be found on The Minnesota Reformer, Talking Points Memo, and Minneapolis Star Tribune.

ECBAWM attorneys Jonathan S. AbadyMatthew D. Brinckerhoff, O. Andrew F. Wilson, Debra L. Greenberger, and Vivake Prasad represent the plaintiffs, together with Free Speech For People and Lathrop GPM LLP.

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New York Court Strikes Down Unlawful Airbnb Tickets

On May 8, 2020, a New York state court ruled that ECBAWM client Stanley “Skip” Karol may rent out a portion of his Brooklyn home through Airbnb. The court directed the City to return the thousands of dollars in fines it had levied against Mr. Karol and to “[l]eave the poor guy alone.” The City had ticketed Mr. Karol for renting out his basement through Airbnb. ECBAWM attorneys filed a case challenging the legality of those tickets, and the Court ruled in Mr. Karol’s favor.

Reporting on the decision appears in the New York Daily News and in Politico.

Mr. Karol is represented by ECBAWM attorneys Andrew G. Celli, Debra L. Greenberger, and Andrew K. Jondahl.

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ECBAWM Wins Unsealing of Court Records in First Amendment Ruling

On July 3, 2019, after nearly three years of litigation, ECBAWM won a significant constitutional victory when the Second Circuit Court of Appeals ordered the unsealing of court records in Giuffre v. Maxwell. The firm appeared on behalf of Harvard Law professor Alan Dershowitz, an intervenor in the case, and it successfully argued that the wholesale sealing of records by the district judge violated the First Amendment’s “presumption of openness” for judicial documents; the presumption, the court reaffirmed, is essential to ensuring transparency and public oversight of the courts.

ECBAWM’s application for unsealing was followed by related applications filed by The Miami Herald and another media outlet, both of which were also granted.

Professor Dershowitz was represented by Andrew G. Celli, Jr. and David Lebowitz.

“Dershowitz Wins Unsealing of Epstein-Related Defamation Case,” BigLawBusiness
“Appeals court orders unsealing of records in sex-tinged case,” AP

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On Behalf of Dame Products, ECBAWM Sues MTA Over Discriminatory Censorship of Sex Toy Advertisements

As reported on CNN, ECBAWM filed suit against the MTA on June 18, 2019, alleging that it violated the First Amendment rights of Dame Products, a company that designs and manufactures innovative tools for women’s sexual pleasure and wellness.

Dame submitted proposed advertisements for its toys to the MTA in July 2018. At first, the MTA approved certain advertisements and provided Dame with creative feedback over the course of six months. Then, the MTA suddenly changed course and refused to display Dame’s advertisements on subways and other MTA property, even though the MTA already displays numerous ads for erectile dysfunction medication, condoms, and other products geared towards men. The Complaint details how the MTA’s decision to ban Dame’s advertisement amounts to unconstitutional censorship and reflects the MTA’s sexist views of women’s sexual health.

Dame is represented by ECBAWM attorneys Richard Emery and Emma L. Freeman.

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Court Rules City Could Be Liable for DA’s Illegal Wiretapping of Colleague

On March 1, 2019, ECBAWM won a significant victory on behalf of Stephanie Rosenfeld, a victim of a months-long illegal wiretap scheme perpetrated by an Assistant District Attorney in Brooklyn. Rejecting the City of New York’s efforts to absolve itself of any responsibility for the misconduct of one of its employees, the Court ruled that the City could be held liable for the unlawful wiretapping scheme under the Wiretap Act, the Stored Communications Act, the U.S. Constitution, and state law. The case is now proceeding to discovery against the City of New York, the Assistant District Attorney who conducted the illegal wiretaps, and other officials within the Brooklyn DA’s office.

Richard D. Emery, Sam Shapiro, and Jessica Clarke represent Ms. Rosenfeld.

Article

Columbia Sociologist Lauds ECBAWM in Sociological Forum

Sociologist Shamus Khan, Chair and Professor of Sociology at Columbia University, praises the work of ECBAWM in a forthcoming article in Sociological Forum magazine. The article, entitled “The Subpoena of Ethnographic Data,” describes the ethical and legal challenges faced when Prof. Khan, a renowned scholar of gender, sexuality, and cultural elites, received a document subpoena seeking the production of ethnographic data. The data in question was collected by Prof. Khan at St. Paul’s School, an elite prep school which Khan profiled in his ground-breaking book Privilege: The Making of an Adolescent Elite at St. Paul’s School. The subpoena arose from a civil suit brought by a young woman who, as a student at St. Paul’s, alleged that she had been sexually assaulted by another student. The case gained national attention and the accused young man was found guilty of statutory rape. The subpoena sought, among other things, copies of Prof. Khan’s contemporaneous field notes of observations he had made of students, faculty, and administrators while living on the campus of St. Paul’s in 2004-2005. Describing ECBAWM as a “powerful law firm” and thanking ECBAWM partner Andrew G. Celli, Jr. for “his counsel,” the article details the firm’s successful effort to force the withdrawal of the subpoena. The firm invoked case law that extends the First-Amendment-based “journalist’s privilege” to academic researchers like Prof. Khan. In addition to Mr. Celli, firm associate David Lebowitz handled the matter for Prof. Khan.

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