Cornell Law School First Amendment Clinic Puts Team Latimer on Blast over Westchester County Facebook Comment Blocking

WESTCHESTER, NY (May 12, 2022) — The Cornell Law School First Amendment Clinic has released a letter sharply critical of the administration of Westchester County Executive George Latimer for what it claims are misrepresentations of the interactions between the FAC and the Latimer administration.

In a letter sent earlier today (see below for full text of letter), citing our previous Substack article on May 3,  FAC Associate Director Jared Carter had strong words for Westchester County Attorney John M. Nonna and Westchester County Communications Director Catherine Cioffi.

This letter is in response to your May 10th, 2022, email regarding the Westchester County Facebook Policy and our representation of Mr. Joseph Dalli concerning the same. Your May 10th correspondence makes several points that we believe do not accurately portray our recent interactions and the County's actions regarding its Facebook Policy.

Joseph Dalli is a civil servant employed by Westchester County.

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Drawing from the FAC’s May 12 letter, Carter detailed the timeline of those interactions:

• On April 13th, 2022, that the Cornell Clinic sent a demand letter to Westchester County officials on behalf of Mr. Dalli demanding that the County "unblock" Mr. Dalli from the County's official Facebook page and explaining the ways in which the County's actions and Policy violated the First Amendment.
• In response to the Clinic's demand letter, Westchester County unblocked Mr. Dalli.
• On April 19th, the County also agreed that it would amend its Facebook policy and adopt a new policy (the "April 19th Policy") regarding citizen posts on the County's official Facebook page. Despite this representation by the County, as of April 28, 2022, the County still had not changed its Facebook policy. As a result, the Clinic sent a second letter to the County highlighting this fact and noting further concerns with the April 19th Policy.
• Far from adopting an updated policy consistent with First Amendment principles, by this time, the County had taken the opposite approach: blocking allcommunity comments and posts.
• On May 3, 2022, after the Clinic once again contacted Nonna concerning the County's failure to adopt a new policy and blocking all comments and posts, Nonna indicated that the County was considering several options regarding management of its official Facebook page. Nonna indicated that the County intended to take one of two approaches. The County would either prohibit all comments on the County Facebook page – which is what the County had already begun doing – or it would adopt the April 19th Policy.
• On May 4th, 2022, the Clinic sent a follow-up letter concerning the two approaches. In this letter, the FAC indicated that the first approach Nonna presented was unacceptable because it would result in significantly less speech. The FAC indicated that, while the April 19th Policy was better because it allowed for more speech, the County must apply any new policy in a manner consistent with the First Amendment.

After weeks of blocking all citizens from engaging on the County Facebook page, a May 3rd, 2022, Substack article by journalist Robert Cox quoted Communications Director Catherine Cioffi as stating that the County was "currently working with different first amendment clinics…” and that “legal is working with the Cornell Law School First Amendment Clinic and the Brennan Center at NYU Law School" on this matter.

Carter put Nonna and Cioffi on full blast:

The Clinic was not "working with you" on your policy. We were representing our client, Mr. Dalli, and his First Amendment interests in demanding that the County amend its policy and apply it consistent with the First Amendment. On May 10th, 2022, we emailed the County to express our concerns about how the County portrayed the relationship between the County and the Clinic in the May 3rd article. Nevertheless, on May 10th, 2022, after we had voiced our concerns with how you were representing our involvement in the development of your Facebook policy, the County announced via its Facebook page that it had decided in April "to explore how best to use social media," and that the County's Law Department "engaged with the Cornell First Amendment Clinic to explore legal options and receive guidance on the best way to move forward with social media."

Carter said the Nonna-Cioffi narrative of the County's interactions with the Cornell First Amendment Clinic is “misleading” and “inconsistent with the facts”.

The County represented it had it independently decided to explore its social media policy in April when it was actually responding to a demand letter fromThe Cornell Law School First Amendment Clinic.

Carter disputed the County's public statements both in the May 3rd Substack article by journalist Robert Cox and the May 10th Facebook post (above) to imply that “the County and the Clinic were in some way collaborating on developing the policy and that it had been the County that had sua sponte reached out to Cornell to initiate policy changes. This ignores the reality of the fact that it was the Clinic and Mr. Dalli who had made the demand for change consistent with the First Amendment.”

“Further, the May 3rd article and the May 10th Facebook post, imply that the Clinic and Mr. Dalli agreed to or endorsed the policy the County has now apparently adopted. We have not and do not. In fact, the new policy allows for the very blocking or banning of Westchester County residents from the Facebook page that was at the heart of Mr. Dalli and the Clinic's concerns with the original Facebook policy. It is also worth noting that your proposed April 19th Policy did not include the ability to "ban" people from the County Facebook Page (a feature the May 10th Policy re-introduces). Banning individuals is certainly not consistent with open government or First Amendment principles.

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Carter acknowledged the FAC, in representing Mr. Dalli and his First Amendment rights, did engage with the County in a good faith effort to resolve the dispute and did express that a policy allowing for public discourse was better than the County disabling all comments entirely.

Carter dismissed assertions by County officials that the FAC had “become a pawn in a political dispute.”

This is not about politics. This about the First Amendment. And, as an organization, we will defend the rights of residents, regardless of their political viewpoints, to comment and criticize the government on matters of public concern. This is our solemn duty and one from which we will not be deterred from by allegations of political manipulation.

Carter vowed to continue to monitor the County’s application of its new Facebook policy and “act as necessary to preserve and protect the sacred First Amendment rights that are at the heart of our democracy.”

This unfortunate decision ran counter to Westchester County's stated policy of openness and cut off Westchester County citizens from a valuable forum for discussing issues of public concern with each other and their elected leaders.

Messages left with the Brennan Center at NYU Law School seeking to clarify their role in the matter were not returned.

Westchester County Communications Director Catherine Cioffi did respond to repeated requests for comment indicating she would have something to but missed several deadlines. This story will be updated with any subsequent statement issued by the Latimer administration.

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FULL LETTER: The Cornell Law School First Amendment Clinic to Westchester County: