In this occasional feature, FIRE interviews members of our Faculty Network to discuss their research, teaching, and advocacy on free expression at their institutions. This month, we talked with Andrew Geronimo, director of the First Amendment Clinic at Case Western Reserve University School of Law. Geronimo, also a graduate of CWRU Law, has been on the law school’s faculty since 2017, and became the First Amendment Clinic’s director upon its founding in 2020.
Interviews are conducted via email and are lightly edited for length and clarity.
Before we dive into the interview, could you let readers know a bit about your background, including what you were doing before your work with the First Amendment Clinic, and also how your role directing the clinic came about?
I’ve been a lawyer for just over 11 years, and have had quite a circuitous path to where I am today. I’m from the Cleveland area, went to college at Fort Lewis College in Durango, Colorado, and graduated from Case Western Reserve University School of Law in 2010.
I was very interested in free speech issues in law school, particularly around new technologies, but I started my career at my local bar association doing attorney discipline work — prosecuting cases of attorneys who ignored their clients’ cases or stole their money. After that, I joined an international law firm as a staff attorney working litigation support (read: reviewing and redacting documents) in connection with a court trustee’s unwinding of the Madoff Ponzi scheme. Seeking more courtroom experience and a general desire to get “closer to the action,” I joined two regional law firms, handling all kinds of litigation — government- and plaintiff-side civil rights, business disputes, real estate litigation, premises liability/insurance defense work.
From a teaching perspective, the First Amendment Clinic aims to teach our students how to litigate a civil lawsuit competently and ethically.
I joined the CWRU Law faculty in 2017 as the Stanton Foundation First Amendment fellow, working with an adjunct professor on some media/entertainment law matters, and eventually running a clinic on my own for a semester. Because of staffing and funding issues, I transitioned to the Director of the Intellectual Property Venture Clinic, which counsels early-stage startups about IP and business formation issues, but always tried to stay involved in litigation, particularly First Amendment litigation. During that period, I continued handling litigation matters, including bringing an art censorship case against a public university (a case FIRE also covered), and continued to represent a person incarcerated in an Ohio prison to obtain access to religious accommodations, among other cases.
In Summer 2020, we at CWRU were delighted to re-connect with the Stanton Foundation, which agreed to fund our clinic for 5 years, and we’ve been extremely active ever since.
Not all of our readers are lawyers or went to law school, so before we get into the specifics of the First Amendment Clinic’s work, could you give readers some context on clinical work more generally and its role in rounding out a legal education?
Although law school has traditionally been lecture-based and fairly theoretical (think The Paper Chase or Legally Blonde), there has been an increasing emphasis on experiential education over the last few decades: not just preparing students with the theoretical background and substantive knowledge to practice law, but giving students opportunities to represent real clients on real matters. Practicing lawyers often joke about how unprepared law school graduates are for practice, and law schools have (in my view) been very responsive to giving students a variety of opportunities to gain exposure to “real-life” experience.
We want to embody the speech guarantees in the First Amendment to enable a more robust and informed public discourse.
Law school is generally three years, and in some states, like Ohio, students (usually in their final year) can practice in a limited capacity, under supervision, on matters for indigent clients or in the public interest. There are all kinds of clinics — litigation clinics where students represent clients in court and administrative proceedings, transactional clinics where students help people memorialize legal obligations, administrative/legislative clinics that participate in statutory rulemaking, and issue- and client-focused clinics that focus on certain issues (housing, health, technology, intellectual property) or assist certain populations (children, victims of crime, veterans, formerly incarcerated, etc.).
Now let’s talk about the First Amendment Clinic’s work. What is its mission and mandate? How do cases come its way for consideration? And what does your work as director entail in the context of the clinic’s work?
The First Amendment Clinic is a litigation clinic focused on matters related to free speech and newsgathering. From a teaching perspective, the First Amendment Clinic aims to teach our students how to litigate a civil lawsuit competently and ethically: navigating the applicable law and procedure, client communication, time management, legal research and writing, communications with opposing counsel, filing things in court, discovery practice, etc. Because of our subject matter, we also teach some substance around civil rights law: how you sue the government, what remedies are available, and what hurdles exist to bringing those lawsuits to enforce constitutional rights.
We’ve taken a very broad view of our work: We want to embody the speech guarantees in the First Amendment to enable a more robust and informed public discourse. And these issues come up in a number of ways — from a journalist’s perspective, they might request records on a story they might want to write, be threatened with defamation or other liability for reporting on the topic, or be impermissibly excluded from a newsworthy public location. While we’re limited in the number of cases we can take, we’re prepared to do everything from asserting a First Amendment right as a plaintiff in a civil rights lawsuit, to raising the First Amendment as a defense to civil liability, to helping people determine their rights to gather and publish information about newsworthy events.
Since Summer 2020, we’ve:
- Completed a four-day civil rights trial on religious freedom issues in the U.S. District Court for the Northern District of Ohio (we’re a speech clinic: the religious freedom case is one that is near and dear to me, but one I inherited from my colleague who was promoted to academic dean);
- Argued a free speech case about the scope of the “fighting words” exception to the First Amendment in the U.S. Court of Appeals for the Sixth Circuit;
- Represented an erstwhile anonymous Facebook commenter in connection with a defamation lawsuit brought by a government employee over statements questioning the propriety of her employment after being hired as clerk of city council where her father is an elected councilman; and
- advised clients on public records issues and sued numerous public agencies for access to governmental records under the Ohio Public Records Act, resulting in the publishing of a series of stories about officer uses of force in the Cleveland Division of Police.
Lawyers and judges should be attuned to all the ways the First Amendment limits government action.
Lawyers and judges should be attuned to all the ways the First Amendment limits government action.
We also cover material in an attempt to prepare to respond immediately to prior restraints and other imminent threats of censorship by seeking an injunction.
It is a delicate balance because student work necessarily requires more oversight and time to allow students to incorporate feedback and give supervisors ample time to review work product, and otherwise prepare students to take primary responsibility for representing a client.
As Director, I am the supervising attorney who is ultimately responsible for the work of all of our students. We couldn’t be doing all the work we’re doing without the help of our fantastic fellow — Sara Coulter, who graduated from Ohio State University Moritz College of Law in 2017 — who has been immersing herself in First Amendment litigation since joining us in June from the Ohio Attorney General’s office. As director, I also identify cases that would both provide valuable learning experiences for our students and advance free speech, engage clients, help resolve any ethical issues, promote our work, engage in a community of academics and in the community generally. Many of our clients are folks we’ve helped over the years, or who have otherwise heard of our work (we’re active on social media).
I recall that when we first touched base about doing this interview, you mentioned that the clinic was very busy getting a litigation challenge ready for filing. No shortage of work at your clinic!
It has been quite a whirlwind! At that time, we were both preparing for trial in federal court on a prison religious rights case, preparing to file a motion asking an Ohio court to dismiss a defamation case filed against anonymous Facebook users for criticizing government officials, and preparing to argue an appeal about the scope of the First Amendment’s “fighting words” exception in the context of qualified immunity.
Case Western’s First Amendment clinic is one of several that have been made possible with the support of the Stanton Foundation, which I’m happy to note also supports FIRE’s Faculty Legal Defense Fund. In that light, I wonder if you might be able to put your work in the wider context of trying to increase law students’ opportunities to get a glimpse of First Amendment law as a potential career option. I don’t think you can make too many First Amendment lawyers, but is there a worry that we’re making too few? Have you seen bigger forces or trends affecting the pipeline?
We’re so grateful for the Stanton Foundation’s support (and for their support for the Faculty Legal Defense Fund — because clinics are involved in curricular work at institutions, it’s a less-than-ideal situation to enforce free speech rights at those institutions, or other academia broadly).
My view is that we definitely have too few lawyers who are cognizant of the constitutional issues in regulating speech. Lawyers and judges should be attuned to all the ways the First Amendment limits government action: by limiting civil or criminal liability for protected speech, or by affirmatively discriminating or retaliating against a particular viewpoint as a government actor.
Certainly, in my practice as a general litigator, there were instances of free speech issues where the First Amendment was never raised at all.
We don’t just train attorneys who will go on to become “First Amendment” attorneys. Students who go on to be prosecutors, or criminal defense attorneys, or other government attorneys, or intellectual property attorneys, etc., can help protect speech rights by learning about First Amendment principles. Certainly, in my practice as a general litigator, there were instances of free speech issues where the First Amendment was never raised at all: where defamation lawsuits were threatened to chill speech, or parties and judges agreed to seal a public docket without recognizing the public’s right of access.
There is also a hesitancy among law students about the principles underlying our commitment to free speech — in light of the advances in technology, or the current political climate, or any number of other factors. At the simplest, we’re trying to train lawyers to competently and ethically represent a client, with hopes that even if they don’t ultimately focus on the First Amendment, their familiarity with First Amendment concepts will improve speech rights across the board.
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