ACLU Backs NYU Law Students Subpoenaed After Criticizing School Trustee

By Danielle Tcholakian on April 25, 2014 5:34pm 

 Leo Gertner, left, and Luke Herrine, right, at a rally outside NYU Law the day their attorney filed a motion to quash their subpoenas.
Leo Gertner, left, and Luke Herrine, right, at a rally outside NYU Law the day their attorney filed a motion to quash their subpoenas.
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DNAinfo/Danielle Tcholakian

GREENWICH VILLAGE — The American Civil Liberties Union is throwing its weight behind two New York University Law School students who were subpoenaed after they publicly criticized a school trustee's labor practices.

The ACLU's New Jersey chapter filed a court brief Friday echoing widespread concern among NYU students, faculty and alumni that the subpoena of the students' personal emails violated the students' First Amendment rights and would have a "chilling effect" on free speech on campus. 

"The NYU students in this case have the right to express themselves and were engaging in lawful and constitutionally protected speech," said Ed Barocas, legal director for the ACLU of New Jersey. "This subpoena would force the students to turn over their private emails, which would have a chilling effect on free speech and freedom of association."

The subpoenas are part of a yearslong federal lawsuit filed in New Jersey in October 2012 by CareOne Management, a home health aide company owned by NYU Law School trustee Daniel Straus, against their employees' union, United Healthcare Workers East SEIU 1199. 

CareOne is accusing the healthcare workers of taking illegal actions against Straus, including inciting NYU students to protest his position on the Board of Trustees.

The two law students, Leo Gertner and Luke Herrine, are fighting the subpoena, which came from Straus' company.

On Friday afternoon, Gertner and Herrine's attorney, John Cuti, who is being paid by NYU to represent the students, filed a motion to quash the subpoenas. The ACLU of New Jersey immediately filed an amicus brief to support the motion.

In court papers, Cuti said the subpoenas are "unreasonable dragnets that search for swaths of documents that have no relation to this case, such as communications between law students about the governance of their school and even bank records showing [Gertner's] paychecks from his three years of unrelated employment at SEIU prior to law school."

Cuti, an alumnus of NYU Law, said that his firm, Cuti Hecker Wang, "is proud to represent Luke and Leo."

He declined to comment further, saying, "We think the brief speaks for itself."

The ACLU of New Jersey's supportive brief was filed with input from NYU Law professor Burt Neuborne.

"If students fear that private communications concerning powerful figures in the education community may be the subject of compulsory disclosure to the target of their criticism, criticism will simply dry up," the ACLU's brief states.

"While the squelching of such criticism would, no doubt, please the targets, such a process of government-assisted suppression of criticism, especially criticism in an academic environment committed to free thought, is wholly antithetical to the First Amendment."

Gertner and Herrine's involvement in the case is that they were among several law students who circulated a letter requesting a meeting with the dean of NYU Law School to discuss concerns about Straus' labor practices and the lawsuit against the union.

Within weeks of circulating the letter, Herrine and Gertner were served subpoenas at their homes, demanding their private email correspondence.

Last week, a handful of students gathered more than 500 signatures from faculty, students and alumni on a petition calling on Straus to have his company's attorneys withdraw the subpoenas. They also urged Straus to apologize for ever allowing the subpoenas to be issued in the first place.The students mailed the petition to Straus' home and work address last week. They said they have yet to get a response.

A spokeswoman for CareOne said the students are not the target of the lawsuit and that Straus, despite owning health care company, has nothing to do with the company's legal decisions. The company also defended the subpoenas.

"As law students know, discovery is a fundamental tenet of our judicial mission," said Deborah Maxson, the spokeswoman.

CareOne has to respond to the motion to quash by May 5, though they can request an extension.

The judge's decision on the motion is slated for May 19.

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