Freedom of the Press

Chicago journalist Jim DeRogatis is no criminal, but in 2008 he invoked the Fifth Amendment to avoid testifying at music superstar R. Kelly’s trial. It’s a strategy that more journalists unfortunately may need to consider.

Years earlier, someone sent an unmarked VHS tape depicting Kelly abusing a young girl to DeRogatis. His reporting led to Kelly’s indictment and trial. (The musician was acquitted but is currently in prison for related convictions over a decade later.)

Subpoenaed to testify, DeRogatis, then with the Chicago Sun-Times, invoked Illinois’ reporter’s privilege law. Judge Vincent Gaughan ordered him to take the stand anyway.

But his lawyers (I was a clerk at the firm representing him) realized DeRogatis had potentially, albeit involuntarily, possessed a video containing child sexual abuse material, or CSAM. That is, of course, illegal. Gaughan had no choice but to acknowledge that the prospect that DeRogatis could be prosecuted, however remote, entitled him to invoke his Fifth Amendment protection against self-incrimination.

At the time, DeRogatis’ strategy might’ve been a stretch in non-CSAM cases. Newsgathering is generally safeguarded by the First Amendment. Most journalists need not worry about prosecution.

But things have changed, even if the constitution hasn’t. Here’s a non-exhaustive list of some ways officials around the country have tried to criminalize routine newsgathering in recent years.

• Prosecutors in Kansas claimed that using a government website violated state computer crime and identity theft laws.
• Prosecutors in Alabama charged journalists for reporting on a grand jury proceeding.
• A city attorney in San Francisco, California, accused a journalist of breaking the law by reporting on a tech executive’s sealed arrest report.
• A state senator in Arizona got a restraining order against a journalist who knocked on her door.
• A Tampa, Florida, fire chief called police on a journalist for asking for public records.
• A Chicago suburb ticketed a reporter for calling government officials too often.
• A Texas citizen journalist was arrested for asking police officers questions.
• Another Texas citizen journalist was arrested for filming police in public.
• The Los Angeles County Sheriff’s Department pushed for prosecuting a journalist who reported on a leaked list of problem deputies.
• Missouri’s governor sought to prosecute a journalist who alerted the state of a security vulnerability on its website.
• A California city sued a blog under computer crime laws for accessing a publicly available Dropbox.
• An Ohio journalist was charged for publishing a source’s recording of a court proceeding.
• Two North Carolina journalists were arrested for reporting on police operations after a park curfew.
• The federal government argued that publishers could be charged with possessing and transporting stolen property for acquiring documents a source stole.
• The Biden administration extracted a guilty plea from WikiLeaks founder Julian Assange under the Espionage Act for obtaining and publishing government documents from a source.
• It also prosecuted journalist Tim Burke under computer fraud and wiretapping laws for downloading publicly available materials on the internet. The case remains pending.
• The current interim U.S. attorney for the District of Columbia, Ed Martin, has suggested he believes naming federal employees or impeding government work to be illegal.
• President Donald Trump said in a nationally televised address that he thinks reporting he views as biased against him is against the law.
• Masked federal agents abducted a graduate student from Tufts University in Massachusetts, and the government revoked her student visa. Her friends think it’s because she cowrote a pro-Palestine op-ed.

If officials keep telling us they see journalism as criminal, journalists should believe them and exercise their rights accordingly. It’ll understandably leave a bad taste in journalists’ mouths to plead the Fifth, but doing so isn’t an admission that you’re guilty — only that the government might think so.

If nothing else, it’ll make quite a statement about the state of press freedom for journalists to have to plead the Fifth like criminals. And in light of the cases listed above, there are hardly any circumstances under which a journalist asked to testify about sources or newsgathering methods doesn’t have a legitimate concern about self-incrimination.

Published documents from the internet against someone’s wishes? Met a confidential source in the park after dark? Obtained names of government workers? Possessed and transported source documents? Your fear of being prosecuted may be every bit as legitimate as DeRogatis’, and arguably more so, since you can point to examples, not just hypotheticals.

If officials keep telling us they see journalism as criminal, journalists should believe them and exercise their rights accordingly.

This approach isn’t foolproof, particularly when journalists are subpoenaed by the government. Prosecutors can offer journalists immunity, mooting self-incrimination concerns. That’s what the Obama administration did when it wanted then-New York Times journalist James Risen to testify.

But prosecutors don’t always offer immunity, which may require approval from higher-ups and create administrative headaches. And in Trump’s made-for-TV administration, the optics of granting immunity to “enemies of the people” may be so unappealing that they’d rather forgo the testimony.

Plus, many subpoenas to journalists aren’t issued by the government. Some are issued by defense lawyers, others by private litigants in civil lawsuits. The government is unlikely to offer immunity under these circumstances. And agencies like U.S. Immigration and Customs Enforcement, known to issue its own administrative subpoenas to journalists, don’t have the authority to grant immunity on their own.

Even before the recent wave of anti-press criminal theories, journalists like the Detroit Free Press’ David Ashenfelter were able to successfully plead the Fifth in non-CSAM cases. He was subpoenaed in a federal Privacy Act lawsuit over his reporting on a terrorism investigation. After the court declined to apply the reporter’s privilege, he invoked his right against self-incrimination because he could, conceivably, be prosecuted for receiving confidential Justice Department materials.

And almost 20 years ago, Peter Scheer wrote that journalists should consider the Fifth in light of then-Attorney General Alberto Gonzales’ comments in an ABC News interview that journalists could be prosecuted for publishing government secrets.

That prospect is far more realistic now, after the Assange plea deal. We’re no longer talking about TV interviews, but an actual conviction.

I’m not your attorney. I’m not telling you what to do or how. Every case is different. But if you’re subpoenaed and a judge rejects the reporter’s privilege, consider asking your lawyer if the Fifth is an option.

It’s a shame that journalists need to even think about this kind of thing, but protecting sources is paramount, now more than ever.

FOR IMMEDIATE RELEASE:

Earlier today, Freedom of the Press Foundation (FPF) published an opinion piece about how India’s revocation of an American journalist’s overseas citizenship to punish him for his reporting was a “not-so-farfetched” cautionary tale for the United States. Turns out that was an understatement. 

The Trump administration has detained Rumeysa Ozturk, a Tufts University graduate student from Turkey. She was previously identified by a pro-Israel group called Canary Mission as having engaged in “anti-Israel activism.” The sole “offense” that Canary Mission flagged was an op-ed Ozturk cowrote criticizing Israel’s war in Gaza.

The following statement can be attributed to Seth Stern, director of advocacy of Freedom of the Press Foundation (FPF): 

“If reports that Ozturk’s arrest was over an op-ed are accurate, it is absolutely appalling. No one would have ever believed, even during President Donald Trump’s first term, that masked federal agents would abduct students from American universities for criticizing U.S. allies in student newspapers. Anyone with any regard whatsoever for the Constitution should recognize how fundamentally at odds this is with our values and should be deeply repulsed as an American, regardless of political leanings. Canary Mission is aptly named — it may serve as the canary in the coal mine for the First Amendment.” 

Video of the arrest is available here. 

The news from Tufts follows recent reports of Columbia University investigating an op-ed writer in response to pressure from the Trump administration, and journalism professors being forced to warn non-citizen students against criticizing Israel in articles or social media posts. 

Please contact us if you would like further comment.

Free speech advocates are rightly outraged by the Trump administration’s arrest — no, abduction — of Columbia graduate Mahmoud Khalil. But it’s shortsighted to view the threat as limited to college students, immigrants, or pro-Palestinian activists.

Yes, it’s fair to say that the people most similarly situated to Khalil are the ones at the highest immediate risk. But authoritarianism is a slippery slope. President Donald Trump fantasized on social media last week about throwing people who protest Tesla into Salvadorian prisons, without regard for their citizenship status.

Raphael Satter, an American journalist who covers cybersecurity for Reuters, likely has a clearer view than most about where this could all be headed. Until his reporting led to its revocation, Satter also held overseas citizen of India status — a special multipurpose visa designation for certain people of Indian origin or those married to an Indian national.

In 2023, Satter reported on Indian tech executive Rajat Khare and his company Appin’s alleged hack-for-hire business. The revelations in Satter’s reporting prompted a global censorship campaign driven by Khare and his lawyers and facilitated by Indian courts. Through lawsuits and legal threats, they managed to have Satter’s article and other reports about Khare largely removed from the internet.

Reuters recently reposted Satter’s article after a judge lifted an order to delete it. But that wasn’t the end of the story. On the same day that censorship order was first issued, India revoked Satter’s overseas citizenship, stating in a letter that the revocation was the result of Satter “practicing journalism without proper permission,” which had been “maliciously creating adverse and biased opinion against Indian institutions in the international arena.”

Satter recently filed his own lawsuit to restore his status. He told The Guardian that the revocation of his OCI had “effectively cut me off from members of my family and a country I hold in great affection and respect.”

One thing that’s remarkable about Satter’s case is that his article didn’t criticize (or even mention) Indian Prime Minister Narendra Modi and his administration. Nor did it contradict the administration’s position on a major international issue, in contrast with Khalil’s disagreement with the Trump administration’s vision of obliterating Gaza to build resorts.

Once a government claims the power to use residency status as a cudgel to regulate speech, things escalate quickly and unpredictably.

Instead, it was critical of a corporation and business executive — one who, as far as we know, doesn’t even have close ties to the Modi administration. Most of the events Satter reported on occurred over a decade ago, before Modi came to power in 2014. Khare apparently lives in Switzerland these days.

But a journalist suggesting the mere existence of corporate crime in India was enough for the government to retaliate against him for making it look bad. It goes to show that once a government claims the power to use residency status as a cudgel to regulate speech, things escalate quickly and unpredictably.

Sure, India under Modi is, in many ways, further along on the path toward authoritarianism than the United States. The Modi administration censors its critics in ways that Trump perhaps can’t — at least not yet.

But it would be naive to think we’re that far behind. Case in point: in response to financial pressure from Trump, Columbia is reportedly (and inexcusably) investigating an op-ed writer who criticized Israel. As Chip Gibbons recently detailed in Jacobin, Khalil’s case is just the latest chapter in a long history of abuse of immigration laws to stifle dissent.

And Columbia’s journalism school is already telling non-American student journalists that they’re at risk of deportation for reporting on the Israel-Gaza war or related protests. Professors have been unfairly criticized for acknowledging this reality, but Satter’s case shows how right they are.

The administration publicly justifies its actions against Khalil by citing alleged support for terrorism, but tellingly, the authority the administration is actually using to deport him is not derived from anti-terrorism laws — which there is no evidence he violated.

Instead, it’s citing an amorphous immigration provision that Trump can invoke (unless the courts or Congress stop him) whenever he concocts “foreign policy” concerns. To Trump, that means disagreeing with him on foreign policy, as journalists are prone to do.

Journalists from around the world report from perspectives that American journalists can’t, and reach communities that American journalists don’t. To state the obvious, the ability to live here allows them to do a better job of that.

And in some cases, their work here could guarantee them a prison sentence, or worse, if they’re deported — that’s the situation Voice of America reporters from Russia and other antidemocratic regimes may find themselves in if Trump’s efforts to dismantle the agency are allowed to stand.

In the past, Americans could shake their heads when they read stories like Satter’s and assure themselves that, whatever problems we may have, that kind of thing won’t happen here. No more.

Satter’s case is a not-so-farfetched cautionary tale — if a few years down the line we’re expelling journalists who offend Trump or his oligarchs, we can’t say we weren’t warned.

This is the third in our series of Q&As with people who have firsthand experience with the Texas Citizens Participation Act. Read the first Q&A with Carol Hemphill here and the second Q&A with Charles Ornstein here.

The nonprofit consumer advocacy organization Public Citizen understands how important strong laws against frivolous lawsuits targeting free speech, known as strategic lawsuits against public participation, are when it comes to supporting people’s right to alert others about problematic business practices.

That’s why the Public Citizen Litigation Group has represented several Texas consumers sued over their speech. The state’s anti-SLAPP law, the Texas Citizens Participation Act, has been critical to those defenses.

For instance, the group successfully used the TCPA to defend Robert and Michelle Duchouquette, who were sued by the Dallas pet-sitting company Prestigious Pets for $1 million after posting a negative review of the company’s services on Yelp. Prestigious Pets had tried to silence the Duchouquettes using a nondisparagement clause inserted into the fine-print of the pet-sitting contract.

In another case, the group used the TCPA to ward off a legal claim against Michelle Lanum, a woman who was sued for criticizing a medical study she participated in on social media. The plaintiff dropped the case after Lanum’s lawyers informed her it would defend Lanum using the TCPA — which provides for the mandatory award of attorneys fees to SLAPP victims who win their case in court.

Now, however, the Texas legislature is changing the TCPA to make it more expensive for SLAPP victims to defend themselves and more difficult to recover their attorneys fees. We spoke to Public Citizen Litigation Group attorney Paul Levy about why the TCPA matters to consumers and what impact these changes could have on free speech. The interview has been lightly edited for length and clarity.

You’ve defended several people sued in SLAPPs in Texas using the Texas Citizens Participation Act. Can you explain how the law helps protect freedom of speech?

It does a few things. First of all, it provides an easy way out from non-meritorious claims, by putting the burden on somebody who has brought a claim to show that they have not only allegations but evidence to support their allegations, and giving the defendant an opportunity to show that it has valid defenses to claims that would make them untenable.

It also not only saves the courts from having to spend their time on frivolous matters, but much of the damage that frivolous or weak claims impose on free speech is the intimidating effect of making people spend their time and their good money on litigation, distracting them from what else is going on in their lives.

This is particularly problematic for people whose speech doesn't bring them any money, but who have just spoken out on a matter of public concern or public interest. If they have to spend a lot of money to defend what they've said, they've already lost in many ways. And the prospect of having to make these defenses shuts people up and deprives the public of the benefit of their speech.

And the final thing that these anti-SLAPP laws do is provide some financial recompense to the people who've had to defend their speech, and it encourages lawyers to take up these cases — just as, for example, the consumer laws provide a guaranteed source of an attorney fee award if lawyers are willing to bring consumer protection cases or wage and hour cases or discrimination cases.

In the same way, the anti-SLAPP laws in Texas and California — and the other jurisdictions that have good anti-SLAPP laws — have encouraged the creation of a bar that's ready to defend free speech. And that's a really important function.

Could you talk about the common types of SLAPP victims in your experience? Who is the type of person who gets SLAPPed and why?

It's somebody, for example, who's posted a comment on a review site about an experience they've had with a local merchant. The Prestigious Pets case is a perfect example of that. These are people who had a bad experience with a pet-sitting firm and got sued for a substantial amount of money for having dared to express negative comments — and really fairly mild negative comments — about this pet-sitting organization. They defeated the case and they were able to get their lawyers paid because they were able to use the anti-SLAPP law.

Another example is when people speak out about political figures. Political figures often have good access to lawyers, and they can bring these cases without much of a sweat because lawyers may owe them a lot and want to bring the cases, but when constituents speak out about public figures, they need assurance that they'll be able to defend themselves when they're sued.

I want to talk about some of the changes that are being proposed to the TCPA right now. The law currently provides for a pause on trial court proceedings when a motion to dismiss a lawsuit under the TCPA is denied and goes up on appeal. But there's a new bill that would remove that automatic stay of proceedings during certain appeals. What do you think the impact of that change would be?

That change would make the TCPA much less effective in achieving its purposes.

Much of the burden of weak or frivolous litigation over speech on a matter of public concern is the mere expense and time that a defendant has to spend dealing with a case. If the real facts in the case are such that the case would not likely succeed anyway, what the stay does is save the defendant from that expense, at least in the circumstances where they've got a valid argument that the case ought to be dismissed under the anti-SLAPP law.

Much of the burden of weak or frivolous litigation over speech on a matter of public concern is the mere expense and time that a defendant has to spend dealing with a case.

There are disincentives for filing frivolous motions to dismiss under anti-SLAPP laws, in that there can be an award of attorney fees for filing one. TCPA has such a rule and most anti-SLAPP laws do.

Another new bill would change the TCPA to make the award of attorneys fees to a SLAPP victim who wins discretionary. There have been two common criticisms of that proposal: One is that the mandatory fees discourage SLAPPs from being filed in the first place and discretionary fees wouldn't. The second is that the mandatory fees makes it easier for SLAPP victims to find a lawyer to defend them. Do you agree with either criticism?

Yeah, I think both. A lawyer in private practice has to figure out, “How am I going to make money from defending this case?” Much litigation on behalf of middle class people and working people is financed because the lawyer knows that if in the lawyer's evaluation of the case, it can produce a pot of money as damages, the lawyer can get a contingent fee out of the damages.

But for defendants, that possibility is not available. What you're trying to do as a defendant is avoid an award of damages and not obtain an award of damages. And so what the mandatory attorney fee provision does is create an incentive for lawyers to take cases for people who otherwise couldn't afford to defend themselves.

What the mandatory attorney fee provision does is create an incentive for lawyers to take cases for people who otherwise couldn't afford to defend themselves.

Deterrence doesn't work if the plaintiff is Elon Musk, doesn’t work if the plaintiff is George Soros. It's a nonpartisan thing. People for whom money is really no object aren't deterred by anti-SLAPP laws.

But most anti-SLAPP plaintiffs are small or middle-size businesses or folks who are wealthy enough to afford a lawyer charging by the hour or able to get lawyers because their influence makes them attractive clients, but for whom an award of $20,000 or $30,000 in attorney fees against them would be a major hit. So if there's an anti-SLAPP law that's effective and has a mandatory award of attorney fees, they have to take that into consideration in deciding whether to bring the case.

And I have no doubt, for example, that in the case involving Michelle Lanum, the threat that we sent to the plaintiff's lawyer that we would file an anti-SLAPP motion if he didn't quickly dismiss the case had a significant impact on his decision to dismiss the case and therefore save Lanum from having to defend herself in litigation over her criticism of a device that, to me, looked to be a prime example of medical quackery.

I've seen that work time and time again. It basically forces the plaintiff's lawyer into the position of having to explain to his client what the costs of a loss would be. That it's not only that you'll be out whatever fees you paid me but you might have to pay fees to the other side in addition.

What does it mean for freedom of speech if the Texas legislature makes it easier for regular people to be sued for exercising their freedom of speech, for example by posting a negative review of a business or speaking out against wrongdoing or falsehoods?

I believe in the marketplace of ideas. I think generally speaking, lots of nonsense gets spouted these days and it's often hard to sort the nonsense from the stuff that's worth seeing. But it's my view that more speech is better and that the best way to counter speech that you don't like is to speak out against it and explain your point of view instead of suing to stop it.

The public generally benefits from getting more facts on which they can make judgments about what businesses they ought to patronize, what goods they ought to purchase, what political figures they ought to support or what parties they ought to support, what sports they ought to play, and other topics of public concern.

The public benefits from getting more information and litigation that suppresses speech in an unwarranted fashion therefore hurts the public and it also hurts business. When one business sues to prevent valid criticism of its business activities, of its services, it actually gets an unfair benefit in its competition with other businesses that are operating on the up and up and selling useful goods and providing good services.

So in all these ways, litigation against speech is harmful to the public.

Max Frankel, a New York Times reporter and editor who helped push for the publication of the Pentagon Papers, died Sunday at the age of 94.

A Pulitzer Prize-winning journalist, Frankel was well known for his decades of reporting. But it’s another piece of writing, not initially published in a newspaper, that holds a special place in First Amendment history.

An affidavit by Frankel filed in New York Times Co. v. United States, better known as the Pentagon Papers case, has become one of the most important public documents laying out the realities of national security reporting and Washington’s unspoken rules around government secrecy and leaks.

Initially drafted as a memo to the Times’ lawyers, Frankel’s arguments schooled lawyers, the courts, and anyone who believed government secrets should always be off limits to the press.

“What Frankel wrote became one of the most important documents in history of press freedom,” said James Goodale, who was the general counsel for the Times during the Pentagon Papers case. “Not only did it sway our outside lawyers to defend the case in court, but we turned it into sworn statement which helped sway the district court judge to rule in our favor.”

Frankel wrote: “Without the use of ‘secrets’ … there could be no adequate diplomatic, military and political reporting of the kind our people take for granted, either abroad or in Washington and there could be no mature system of communication between the Government and the people.”

Importantly, Frankel explained how government officials routinely reveal “secrets” to the press for their own purposes:

“Presidents make ‘secret’ decisions only to reveal them for the purposes of frightening an adversary nation, wooing a friendly electorate, protecting their reputations. The military services conduct ‘secret’ research in weaponry only to reveal it for the purpose of enhancing their budgets, appearing superior or inferior to a foreign army, gaining the vote of a congressman or the favor of a contractor. The Navy uses secret information to run down the weaponry of the Air Force. The Army passes on secret information to prove its superiority to the Marine Corps. High officials of the Government reveal secrets in the search for support of their policies, or to help sabotage the plans and policies of rival departments. Middle-rank officials of government reveal secrets so as to attract the attention of their superiors or to lobby against the orders of those superiors.”

Of course, what Frankel was defending was not the publication of secrets leaked purposefully by government officials, but rather the publication of a classified study of the Vietnam War leaked without authorization by whistleblower Daniel Ellsberg. But Frankel and other reporters knew that if they relied only on the official leaks, the public would only be getting part of the story — the part that benefited the government.

They also knew that classification wasn’t all it was cracked up to be. As Frankel explained in his affidavit, classification decisions aren’t always based on the national interest. He wrote that:

“the Government and its officials regularly and routinely misuse and abuse the ‘classification’ of information, either by imposing secrecy where none is justified or by retaining it long after the justification has become invalid, for simple reasons of political or bureaucratic convenience. To hide mistakes of judgment, to protect reputations of individuals, to cover up the loss and waste of funds, almost everything in government is kept secret for a time.”

The manipulation of classification decisions and strategic leaks to the press remain commonplace in Washington today, more than fifty years after Frankel laid it all out. Officials from both parties routinely make public secret information when it serves their purposes, from former CIA director David Petraeus, who leaked classified information to his biographer and received just a slap on the wrist, to President Donald Trump himself.

But what may be changing is the courage of news outlets and other institutions to stand up to government officials, as The New York Times, The Washington Post, and numerous other newspapers did when they published the Pentagon Papers and exposed the government’s lies about the Vietnam War.

It’s not easy to challenge government authority today, especially when the President and his cronies have made no secret of their desire to throw publishers, reporters, and sources in jail. But it also wasn’t easy for journalists and news outlets to challenge President Richard Nixon, who, until Trump, was perhaps the most anti-press president in our history.

Still, Frankel and others who worked on the publication of the Pentagon Papers chose to stick out their necks and stick up for press freedom. The result was the Supreme Court’s decision repudiating government prior restraints on the press in almost all circumstances, perhaps the most important press freedom decision today.

Unfortunately, there’s no guarantee that the Supreme Court today will be as willing to defend the First Amendment and the free press. But that makes it all the more important that reporters defend press freedom to the public and explain why it matters loudly and repeatedly.

Defending press freedom must mean defending the right to publish government secrets, even when the government objects. It also means defending the brave whistleblowers who make sure that the government doesn’t get to control what the public knows.

Enough time has passed that we’re losing some of the journalists and whistleblowers who fought for press freedom during the Nixon era. Today, we must look to their examples, and their words, to make the case that it’s necessary and right for the press to publish government secrets that inform the public.

Dear Friend of Press Freedom,

It’s Sunshine Week. The forecast for press freedom, unfortunately, isn’t great, but we’re working rain or shine to fight threats new and old. And this week we helped drive significant progress in making public interest journalism more accessible. Read on for the latest.

Public records are for the public

The news business isn’t just any business — it serves a vital role in our democracy. But media outlets can’t serve that role if they’re bankrupt. As a result, news readers often find themselves blocked by paywalls from reading important stories about government business.

Fortunately, Wired magazine has a solution — in partnership with Freedom of the Press Foundation (FPF), it’s going to stop paywalling articles that are primarily based on public records obtained through the Freedom of Information Act. We commend Wired for tipping the balance between public interest and business toward the former. We hope others will follow its lead (and shoutout to outlets like 404 Media that also make their FOIA-based reporting available for free). And we hope readers will reward these outlets’ sacrifice. Subscribe to Wired here and 404 here.

Catch us on NPR while you still can

NPR, itself very much in the crosshairs of the Trump administration, included FPF Executive Director Trevor Timm in a conversation about the future of freedom of the press. “Trump is the most acute and urgent example of a president restricting press freedom,” he said. “It’s imperative that it becomes a front-and-center issue.”

Listen to the conversation, also featuring Brian Stelter from CNN’s “Reliable Sources” and April Ryan, Washington Bureau Chief for Black Press USA.

Tech companies must safeguard journalists’ communications

Last week, Director of National Intelligence Tulsi Gabbard announced on social platform X that the government is “aggressively pursuing recent leakers from within the Intelligence Community and will hold them accountable.” Gabbard’s post cited leaks to several news outlets as examples.

The first Trump administration taught us that tech companies often must be the first to oppose government attempts to access journalists’ communications with sources. Some did during Trump 1.0 but, with tech executives cozying up to Trump, we fear things may be different this time. Read more here from FPF Senior Advocacy Adviser Caitlin Vogus.

The harsh realities of prison journalism

Many point to places like Hungary and Russia for examples of where America might be headed when it comes to free speech. But we shouldn’t forget we already have two million people living under a censorship regime right at home.

Stern and prison reform activist Theodore Amey wrote for Columbia Journalism Review about the many challenges — like violent retaliation, arbitrary transfers, and seizures of equipment — facing journalists behind bars. “When the public entrusts and pays for correctional agencies to care for those who are incarcerated, it deserves to know what’s going on,” they explain.

You can’t ask DOGE anything, but you can ask us

After months of speculation about how the Elon Musk-led Department of Government Efficiency would be subject to transparency rules, a judge recently found, over DOGE’s objections, that the agency is “likely covered” by the Freedom of Information Act.

This would mean that DOGE cannot hide its records through the Presidential Records Act as it had previously hoped. To break down this recent development, our Daniel Ellsberg chair on government secrecy, Lauren Harper, engaged with Reddit’s r/IAmA community members in a Q&A session. You can read an edited version on our website or view the full thread here.

You can read more from Harper about the decision — and DOGE’s outrageous position that it’ll need years to comply with records requests — here. She also joined The Dissenter podcast to talk about the Trump administration’s intensifying abuses of secrecy and wrote an op-ed for Sunshine Week about the importance of FOIA and the need to improve it.

What we’re reading

Conservative groups urge FCC to end probe into ‘60 Minutes’ Harris interview (Reuters). Right-leaning organizations are telling the Federal Communications Commission that Chair Brendan Carr’s “regulatory overreach” would “advance precedent that can be weaponized by future FCCs.” They’re right, but Carr already knows that and abuses his power anyway.

We asked every Mass. lawmaker whether they should be subject to public records law. Only a handful responded (Boston Globe). “Transparency is just not a priority — and it needs to be and the public should demand nothing less," said New England First Amendment Coalition Executive Director Justin Silverman.

The last days at Voice of America (Columbia Journalism Review). Former VOA press freedom reporter Liam Scott wrote about the last days before Trump’s executive order to gut the broadcaster and put its employees on administrative leave.

A statement from Columbia Journalism School faculty defending press freedom (Columbia Journalism School). An important statement from the Columbia Journalism School faculty on how critical it is to defend press freedom on campus.

Media shield law bill passes Idaho Legislature with unanimous support (KIFI-TV). Red and blue states alike recognize the need for journalist-source confidentiality. Every state and the federal government needs a shield bill. Those that already have them should strengthen and modernize them.

How to share sensitive leaks with the press

The first (publicly known) leak investigations by the Trump administration are here.

On March 14, 2025, Director of National Intelligence Tulsi Gabbard announced on X that the government is “aggressively pursuing recent leakers from within the Intelligence Community and will hold them accountable.” Gabbard’s post cited leaks to the Huffington Post, The Washington Post, NBC, and the news site The Record as examples.

There’s no indication yet that the investigations have swept up journalists. But the first Trump administration targeted reporters in an attempt to uncover sources as part of leak investigations, and news outlets have been bracing themselves for a repeat.

One lesson to be learned from the first Trump administration? Tech companies often must be the first to push back against government attempts to access journalists’ communications with their sources.

Leak investigations in Trump 1.0

To understand why, it’s important to remember the investigations initiated during President Donald Trump’s first term, and briefly continued under the Biden administration, that targeted reporters from The New York Times, The Washington Post, and CNN.

In 2020, the Department of Justice sought telephone and email records from reporters at each outlet in an attempt to identify their sources. But they didn’t demand those records from the journalists themselves — instead, they secretly demanded them from their telephone and email service providers.

The DOJ could do that because of the Stored Communications Act, a law that allows the government to issue a subpoena or get a search warrant or court order demanding access to certain stored communications records held by third party service providers. In some circumstances, the SCA also allows the DOJ to obtain a nondisclosure order that bars the provider from telling anyone about the demand, including the person whose records are being sought.

Tech companies should declare now that they’ll oppose all legal demands for journalists’ electronic communications records in court and fight gag orders.

Of course, if the provider doesn’t have any records, it also won’t have anything to secretly turn over. That’s why we always recommend that journalists engaged in sensitive communications consider using end-to-end encrypted services like Signal, which also doesn’t collect or retain metadata about communications.

But when a provider does have relevant records of journalists’ sensitive electronic information — such as who they’re emailing and when — the SCA allows the DOJ to get a court order requiring that they be turned over to the government without the journalist knowing it’s happening or having the chance to object in advance.

As a result, the only entity that may be able to object to an overbroad or illegal order is the provider, that is, the tech company that holds the records. Thankfully, at least some of the service providers who received the DOJ’s demands for reporters’ records in 2020 objected on behalf of their customers.

For instance, Google, which ran The New York Times’ email system and received the court order targeting four Times reporters, resisted the demand and insisted that the Times be informed, as required by its contract with the news outlet. After the Times’ lawyers then objected to the order, the DOJ withdrew it. As a result, the government didn’t obtain any email records from the Times’ reporters.

DOJ guidelines on media subpoenas may not stand in the way

Following the revelation that the first Trump administration had sought records from news outlets, the DOJ strengthened its internal guidelines to bar prosecutors from secretly seeking journalists’ records in most cases. But journalists and tech companies shouldn’t assume that means that the current DOJ can’t or won’t come after reporters’ electronic records.

For one thing, the DOJ’s guidelines aren’t enforceable in court, and the DOJ already didn’t follow parts of the old version of its internal rules when it demanded records of the Times, Post, and CNN reporters. The current DOJ could simply ignore the guidelines or repeal them.

The DOJ could also abuse an exception in the guidelines that allows the government to seek legal demands for a journalist’s records when the journalist is “not acting within the scope of newsgathering” and is the subject of an investigation and suspected of committing an offense.

When applied correctly, this exception is extremely narrow. But there’s every reason to believe that Trump’s DOJ would stretch the exception beyond recognition to go after reporters’ records. After all, Trump has declared that engaging in journalism is itself a crime, claiming in a recent speech at the DOJ that what the media does is illegal because it writes bad things about him.

Tech companies must stand up for journalists

All of this means that tech companies must be ready to fight back against legal demands from the DOJ seeking records of journalists who are their customers and oppose gag orders preventing them from telling journalists about the demands. But will they?

We hope the answer is yes, but we fear otherwise. Chief executives from Meta, Amazon, Google, and, of course, X, are cozying up to Trump and trying anything they can to curry favor with him. At least some of them may decide that it’s better to just quietly comply with DOJ demands for journalists’ records rather than fight back.

But we’d love to be proven wrong, and there’s an easy way to start. Tech companies should declare now that they’ll oppose all legal demands for journalists’ electronic communications records in court and fight gag orders barring them from telling reporters and news outlets when their records are being sought. If the DOJ knows that these companies will aggressively fight back, it may think twice about using them to surveil journalists in secret.

Better yet, if companies don’t want to be put in the position of having journalists’ or others’ data to turn over in the first place, they should expand end-to-end encryption and collect and store as little information as possible about all users’ communications. That may mean less data for them to mine for profit. But the benefits for privacy and freedom would be priceless.

After months of speculation about how the Elon Musk-led Department of Government Efficiency would be subject to transparency rules, a judge recently found that the agency is “likely covered” by the Freedom of Information Act and will likely have to make its records available to the public by request.

This would mean that DOGE cannot hide its records through the Presidential Records Act — which prohibits records requests of presidential materials for at least five years after a president leaves office.

This is all good news, but it’s not a guarantee DOGE’s records will soon see the light of day.

To break down this recent development, our Daniel Ellsberg chair on government secrecy, Lauren Harper, engaged with Reddit’s r/IAmA community members on March 18 in a Q&A session.

The following select questions from various Reddit users, and Harper’s answers, have been edited for brevity and clarity. You can view the full thread here.

Can I get some more context on the use of the word “likely” covered by FOIA in the judge’s ruling? That appears to leave a lot of legal wiggle room.

There is definitely a lot of wiggle room. U.S. District Judge Christopher Cooper’s ruling was preliminary, so it might not stick.

There are some things to consider in terms of whether DOGE goes from “likely” to “definitely” covered. It will depend on if the government appeals the ruling (I’m sure that it will but it has not yet), and the outcome of two other FOIA lawsuits that are challenging DOGE’s status as a FOIA entity.

So if DOGE is illegally destroying documents, a court tells them they’re illegally destroying documents, and they just keep doing it because in the worst case scenario they get a pardon. What’s the point of any further litigation? It feels like the Republicans are using their hands in soccer and we're still just trying to use our feet.

I think the question of “what do we do if the Trump administration and DOGE don’t comply with court orders” is a good one — but we are not at the point where the government is completely ignoring court orders.

As it stands, I think the FOIA litigation serves a few purposes. It generates a lot of attention and reporting, and public awareness and outrage does have an impact. It also serves to educate members of Congress who are looking for ways to be responsive to public outrage and can get them to prod the agencies more directly.

You are absolutely right that much of this is playing defense. There needs to be a way to be proactive, so agencies don’t take it upon themselves to ignore FOIA requests or destroy records.

Do you honestly think DOGE is maintaining records as the law demands? Are records being created in a repository of record? Is there a person(s) who are responsible for managing those records as the law demands? As a former records manager, I’m guessing they aren’t.

I do not think DOGE is following proper procedures. My big concern at the moment is that DOGE, beyond possibly destroying records, may be establishing memorandums of understanding with all the federal agencies it accesses that basically say, “your records are our records now.” This might mean other agencies can’t release their own records in response to FOIA.

I think this is additionally complicated by the fact that it has fired much of the senior leadership at the National Archives. If the lights aren’t on at the National Archives, we are going to have a records-keeping crisis across the entire government.

Are there repercussions if DOGE destroys or alters the data it is accessing? How are they able to access some of these databases without the proper clearances? Will this be considered a spillage?

Yes. In theory, there are repercussions for the unlawful destruction of federal records. You can read more about what those are here.

The million dollar question with this, as well as with FOIA compliance, is whether anybody at the Department of Justice would stand up to DOGE. Considering that the Trump administration just fired the head of the DOJ’s information policy office, there’s good reason to worry the DOJ will stay silent.

Regarding the clearance issue: We simply don’t know the status of many DOGE employees’ clearances. That said, the president has the ultimate discretion about when to grant security clearances, and Trump has granted security clearances over the objections of the FBI in the past.

In terms of access to these databases, I think DOGE is relying on 1) intimidation, and 2) cooperation from sympathetic agency heads. We’ve seen more than once that when officials protest granting DOGE access, they are fired.

Has there ever been a person (Musk) or agency setup that they run (DOGE) involved with the U.S. government in such a way before? If so, what’s the closest example? If not, what are the ramifications going forward to setting precedent?

DOGE is unique in most ways I can think of, but I think the closest examples of how DOGE should be run in terms of transparency can be found elsewhere within the Executive Office of the President, which is where DOGE is located.

DOGE is also VERY unique in terms of how it operates within other federal agencies and the access that it has been granted. An outstanding question is: What is DOGE doing with the records it’s accessed at places like the Office of Personnel Management (where it installed its own servers) and the U.S. Agency for International Development? Is DOGE making copies of agency records, taking records entirely off of agency servers, or something else?

It’s also worth noting that while Musk is obviously the force behind DOGE, he’s not the administrator. This makes his role in the government even murkier.

I’ve never made a FOIA request before, and in doing so, specifically, for information on DOGE, do you see any possible blowback to the requester? After all, we are dealing with an entity (DOGE) that is highly sophisticated in its information gathering. Can my request come back to haunt me (i.e. through doxxing me, or something worse)?

I would encourage people not to be afraid. You have the right to request information under FOIA, and plenty of people do it. That said, there are instances where people do get nervous filing FOIA requests (with places like ICE and the FBI, for example) because you have to include personal information including an address.

If this is a situation you find yourself in, let your conscience be your guide. All of the FOIA officials in the federal government who I have ever met are on the side of the requester, for the most part. They are doing their job, they know the rules, and they follow them.

Read the full thread on Reddit and check out our explainer video about this recent ruling below.

The news business isn’t just any business — it serves a vital role in our democracy, recognized by the First Amendment. But media outlets can’t serve that role if they’re bankrupt. And as a result, news readers often find themselves blocked by paywalls from reading important stories about government business.

That experience is particularly frustrating for readers who are unable to access the groundbreaking investigative reports outlets like Wired magazine have been publishing, particularly over the first couple months of the Trump administration. Fortunately, Wired has a solution — it’s going to stop paywalling articles that are primarily based on public records obtained through the Freedom of Information Act.

This approach makes a lot of sense from the standpoint of civil duty. They’re called public records for a reason, after all. And access to public documents is more important than ever at this moment, with government websites and records disappearing, Elon Musk’s Department of Government Efficiency doing its best to operate outside the public’s view, and the National Archives in disarray.

But some may argue that, from a business standpoint, not charging for stories primarily relying on public records automatically means fewer subscriptions and therefore less revenue. We disagree. Sure, the FOIA process is time- and labor-intensive. Reporters face stonewalling, baseless denials, lengthy appeals processes, and countless other obstacles and delays. Investigative reports based on public records are among the most expensive stories to produce and share with the public.

And yes, publishers rely on subscriptions to cover those costs — which will only increase as a result of anti-press attacks by the Trump administration. But while some readers might not subscribe to outlets that give away some of their best journalism for free, it’s just as possible that readers will recognize this sacrifice and reward these outlets with more traffic and subscriptions in the long run.

We commend Wired for tipping the balance that all for-profit media outlets must strike between public interest and business more toward the public interest. We hope others will follow its lead (and shoutout to outlets like 404 Media that also make their FOIA-based reporting available for free).

We also hope those who stand to benefit from these outlets’ leadership (that’s you, reader) will do their part and subscribe if you can afford it. They’re not asking for an arm and a leg. Wired is offering digital subscriptions for $10 annually at the moment. You probably spent that on a mediocre sandwich this year.

The Fourth Estate needs to step up and invest in serving the public during these unprecedented times. And the public needs to return the favor and support quality journalism, so that hopefully one day we can do away with those annoying paywalls altogether.

Editor’s note: Katie Drummond, global editorial director of Wired, is a board member at Freedom of the Press Foundation (FPF).

Dear Friend of Press Freedom,

We’re glad you're here. Here are some of the issues we’ve been working on this week, from Indiana to Idaho.

Florida bill incentivizes self-censorship

Journalists and press freedom advocates were rightly appalled last month when a single judge in small-town Mississippi ordered one newspaper to remove one allegedly defamatory editorial from its website. 

But now, Florida’s legislature is pushing countless news outlets across the Sunshine State to do the same thing by denying legal defenses to outlets that resist censorship demands. Read more here.

Indiana authorities must drop charges against photojournalist 

Prosecutors in Lake County, Indiana, might not intend to give the Trump administration an assist by pursuing charges against photojournalist Matthew Kaplan. They may think when police officers in Gary broke up a Jan. 18 protest of the incoming administration’s immigration policies, journalists like Kaplan were required to leave too. 

But they’re wrong — journalists have a constitutional right to document police conduct during protests and their aftermath. And the prosecutors’ error (assuming it was one) is a gift to President Donald Trump and his anti-press and anti-immigration agendas. Freedom of the Press Foundation (FPF) Director of Advocacy Seth Stern explained why they need to drop the case in an op-ed in the Post-Tribune.

Don’t weaken Texas anti-SLAPP law 

In 2018, Dr. O.H. “Bud” Frazier sued ProPublica’s Charles Ornstein and another reporter, Mike Hixenbaugh, over an article on both Dr. Frazier’s medical breakthroughs and accusations that he violated federal research rules and skirted ethical guidelines.

To defend themselves, the journalists and their outlets turned to the Texas Citizens Participation Act, a law to discourage frivolous defamation suits. FPF Senior Advocacy Adviser Caitlin Vogus talked to Ornstein for the second in a series of Q&As with people who have firsthand experience with the TCPA and understand why proposals to weaken it are so misguided.

A deep dive on the Pentagon Papers

Lies were the foundation of U.S. policy in Vietnam. Four successive presidential administrations deceived the public, members of Congress, and those who served in the U.S. military about the costs of the war and the likelihood of success.

The decades of deception began unraveling with the historic leak of the Pentagon Papers in 1971 by our late co-founder, Daniel Ellsberg. Our Daniel Ellsberg chair on government secrecy, Lauren Harper, compiled FPF’s thoughts and resources on the Pentagon Papers here.

What we’re reading

US journalist sues Indian government after losing his overseas citizenship (The Guardian). It’s one thing to retaliate against a pro-Palestinian activist with a green card, but even a wannabe authoritarian would never mess with a citizen just for reporting on corporate crime, … right?

Idaho joins states with anti-SLAPP laws, aimed at combatting frivolous lawsuits (Idaho Capital Sun). Good news: Idaho’s anti-SLAPP bill has been signed into law. Every state and the federal government need a strong anti-SLAPP law.

Miami Beach mayor moves to end O Cinema lease after screening of Israeli-Palestinian film (Miami Herald). If Mayor Steven Meiner thinks a theater screening a documentary he disagrees with is “not consistent with the values of our City” then those values are not consistent with the First Amendment.

Musk’s team must produce documents to comply with open records laws, judge says (The New York Times). The same billionaire who said during campaign season that the Freedom of Information Act shouldn’t be needed because all government records should be public now says his quasi-governmental “efficiency” team isn’t subject to FOIA and, if it is, it needs three years to produce records.

USAID official orders staff to destroy classified documents (Bloomberg). FPF’s Harper explained that Marco Rubio is simultaneously 1) the acting head of an agency unlawfully destroying records (U.S. Agency for International Development), 2) the head of the agency that’s supposed to be preserving USAID’s records (State Department), and 3) the acting head of the agency that’s supposed to investigate unlawful records destruction (National Archives and Records Administration). That seems like a conflict. …

Facing Trump’s threats, Columbia investigates students critical of Israel (The Associated Press). Columbia has a journalism school, a First Amendment institute, and a journalism magazine. But instead of listening to any of them before investigating an op-ed writer, administrators listened to Trump and their own cowardly hearts.

How to share sensitive leaks with the press

Journalists and press freedom advocates were rightly appalled last month when a single judge in small-town Mississippi ordered one newspaper to remove one allegedly defamatory editorial from its website. But now, Florida’s legislature is pushing countless news outlets across the Sunshine State to do the same thing.

Florida’s Senate Bill 752 would amend the state’s retraction statute, which limits defamation damages if a news outlet publishes a correction or retraction, to also require outlets to permanently remove entire articles containing even a single alleged fallacy from websites they control. Outlets that fail to do so would also lose the right to assert crucial legal defenses.

It’s the latest in a series of plaintiff-friendly libel bills in Florida. But while the prior bills failed to gain traction after pushback from across the political spectrum, SB 572 was voted favorably out of Florida’s Senate Judiciary Committee on Wednesday morning.

The news isn’t all bad. Just before the vote, the bill was amended to scrap previous language requiring outlets wanting to qualify for the retraction statute’s benefits to delete articles not only from their websites but the entire internet — a technical impossibility.

That “simply cannot be done,” Bobby Block, executive director of Florida’s First Amendment Foundation, explained in written testimony opposing the prior version of the bill, which he submitted in advance of Wednesday’s hearing. “Even China with its massive state-run censorship efforts cannot fully scrub content from the internet.”

While the amendment made the bill somewhat less awful, lawmakers should’ve done away with the legislation altogether. Elected officials should not be incentivizing the press to self-censor online.

And if the Florida bill passes, expect copycat bills elsewhere. Even if that doesn’t happen, Florida law can be applied against any news outlet that is subject to the jurisdiction of Florida courts, whenever it’s based. All a plaintiff needs to do is claim they were harmed because someone in Florida read the article online.

Increased damages and loss of legal defenses

Under the bill, when news outlets comply with the removal provision, plaintiffs suing them are limited to “actual damages” – money they can prove they lost because of the defamation. When outlets don’t comply, everything is on the table, including awards of punitive damages that are often exponentially higher than actual damages.

Failure to remove online articles would also cost outlets their “fair reporting privilege,” which protects them from liability when they publish fair and accurate reports from official sources. That privilege recognizes that journalists must be free to report false statements by public officials or at official proceedings because the public needs an accurate account of what government officials are doing and saying, even when they lie.

Lowering the bar for defamation claims serves only to empower trial lawyers at the expense of press freedom.

Outlets would lose the privilege not only when they fail to remove articles adjudicated to be false but when they don’t act after receiving “notice of facts that would cause a reasonable person to conclude that such statement was false.” Plus, leaving the article online would extend the statute of limitations for plaintiffs looking to sue the outlet over the article.

It’s a safe bet cash-strapped news publishers aren’t going to bet their company that a judge or jury will agree that their decisions to keep articles online are “reasonable,” and will err on the side of removing even defensible content.

First Amendment problems

There are significant First Amendment problems with SB 752. As we saw in Mississippi, the government can’t require news outlets to remove articles. That’s called a “prior restraint,” which the Supreme Court considers the “most serious” of First Amendment violations.

SB 752 doesn’t require news outlets to take down articles, but conditioning benefits (such as the availability of legal defenses and limitations on damages) on doing so violates the spirit, and arguably the letter, of the prohibition on prior restraints.

Constitutionality aside, there is no need for entire articles to be removed from the internet because of one allegedly false statement when there are tried and true non-censorial fixes, like corrections and retractions, that preserve the public benefit of the article’s accurate content.

Let’s say a news report exposed a fraudster who swindled Floridians out of $50 million — except it turned out the number was closer to $35 million. Or a report said a suspected serial killer was investigated for twelve murders when he was actually connected to “only” eight. Do Floridians want the whole of that reporting to disappear from the internet?

The problem extends beyond high-profile crimes. Private citizens frequently demand that newspapers remove a police blotter entry about, say, their DUI or domestic violence arrest. When those demands are reasonable, newspapers can (and regularly do) voluntarily comply. That’s up to them and their constitutionally protected editorial discretion.

But the demands often are not reasonable. With SB 752, newspapers are more likely to heed a baseless takedown demand rather than risk a legal battle over something of relatively low interest to readers. But what happens five years later when the subject of the disappeared blotter entry runs for city council?

An ineffective remedy

The bill manages to be both overbroad and ineffective. Once news is reported, the bell can’t be unrung. Articles are archived, cached, screenshotted, reposted, and republished by everyone from legitimate wire services to bots. From the Internet Archive’s collection of television news to TikTok influencers reading the newspaper, there are innumerable ways news spreads online.

While the internet makes erasure of news impossible, it also makes corrections far more effective than they used to be. Whereas in the old days, corrections buried in subsequent newspaper editions were easily overlooked, news outlets can now prominently display them as part of the original erroneous article. But that assumes the original article still exists.

By pushing publishers to permanently delete entire articles, the bill leaves no place for news outlets to append a correction or retraction to the original piece. People who read an article and don’t know it was later deleted will not be able to find the correction and will have no reason to doubt the accuracy of what they read.

And let’s not forget the “Streisand Effect,” the phenomenon once experienced by the famous singer where legal actions to suppress news end up amplifying it instead. The first time a news outlet censors itself to comply with the law, journalists and press freedom organizations are going to write about it. We sure will.

We saw that dynamic play out in the aforementioned Mississippi case. The judge’s unconstitutional order created a media firestorm, calling far more attention to the editorial than it otherwise would have received, and other newspapers stepped up to republish the original editorial as a show of solidarity. Eventually, the judge and city were forced to back down, and the newspaper put the editorial back on its website.

What happened to tort reform?

As Block of the First Amendment Foundation wrote in his testimony for Wednesday’s hearing, SB 752 “would embolden unscrupulous lawyers and flood the courts with frivolous lawsuits. … Lowering the bar for defamation claims serves only to empower trial lawyers at the expense of press freedom.”

Florida, like many other states, has laws on the books to combat strategic lawsuits against public participation, or SLAPPs — abusive lawsuits filed by the wealthy and powerful to harass their critics with the threat of legal fees. So why pass legislation that would have the opposite effect? SB 752 would incentivize baseless accusations of defamation in hopes of getting articles taken down, by plaintiffs who know they won’t ultimately prevail in court.

James Lake, a partner at the Tampa law firm Thomas and LoCicero who focuses on media law, stated in his testimony to Florida’s conservative legislature that, as a registered Republican, he is proud of Florida’s progress on reducing frivolous litigation in state courts. But SB 752 would “undermine the benefit tort reform has done,” he told the committee.

It’s almost as if the Floridians who want to weaken defamation defenses and encourage censorship only like tort reform when it stops people from suing them — not so much when it stands in the way of their suing their critics into silence.

This is the second in our series of Q&As with people who have firsthand experience with the Texas Citizens Participation Act. Read the first Q&A with Carol Hemphill here.

ProPublica’s Charles Ornstein knows a thing or two about why laws protecting reporters from meritless lawsuits are so important.

In 2018, Dr. O.H. “Bud” Frazier sued Ornstein and another reporter, Mike Hixenbaugh, over an article they wrote reporting both on Frazier’s medical breakthroughs, and on accusations that he violated federal research rules and skirted ethical guidelines.

To defend themselves, the journalists and their outlets turned to the Texas Citizens Participation Act, a law that protects defendants from meritless lawsuits based on speech, known as strategic lawsuits against public participation, or SLAPPs. In 2024, the case was dismissed under the TCPA.

Ornstein has written about the impact of the lawsuit before. But as the Texas legislature considers proposals to change the TCPA in ways that would make it more expensive for SLAPP victims to defend themselves and more difficult to recover their attorneys fees, we wanted to revisit the case and get Ornstein’s take on why these parts of the law matter. Here’s what he had to say.

The lawsuit brought by Dr. Frazier against you took six years and two appeals to resolve. You’ve written about how the litigation wore on you. What were some of the impacts on you, personally, and professionally?

Being sued is a really nerve-wracking process. Every time we were sent a legal document, I felt a huge pit in my stomach. I also quickly learned that the simple fact of being a defendant has a ripple effect. When my wife and I applied for a mortgage, I answered truthfully that I was a defendant in a lawsuit. And even though ProPublica agreed that they would cover any liability within the scope of my employment, I was denied the mortgage and had to scramble to find another lender willing to “take the risk” of having me as a client.

More than that, the way I was portrayed in the legal papers filed by Dr. Frazier bore no resemblance to the careful journalist I have spent my whole career trying to be. Much of my reporting was based on official legal documents, correspondence involving a hospital’s board, federal records and on-the-record interviews. And yet I was portrayed as a callous journalist without regard for facts. It was a vindication when the court ruled that our story was a true representation of the proceedings.

The trial court twice denied motions to dismiss the case under the TCPA. You appealed, and the Court of Appeals said the trial court got it wrong both times and ultimately ordered that the case be dismissed. Under the TCPA, the trial court proceedings were stayed during your appeals. Why is the stay of trial court proceedings important to defendants like you?

The stay is crucial because it freezes the legal process known as discovery. During discovery, Dr. Frazier could have sought to depose us or try to obtain our reporting materials, including sensitive information about our sources. We might have had to fight over any agreements involving anonymity. For journalists, the ability to keep our sources confidential is a key reason people feel comfortable talking to us. If a plaintiff can force a journalist to identify a source before a final decision has been made on the TCPA motion, sensitive information could be disclosed unnecessarily. That’s not only unfair to journalists, it’s also unfair to whistleblowers and those who want to make their workplaces better and safer by trusting journalists with their stories. And remember the stay is not permanent. If the higher courts determine the lawsuit has a sound basis, discovery can begin. Also, it’s worth noting that our records were under a legal hold, meaning we couldn’t destroy them. So there was no risk that the records wouldn’t be there if discovery did begin.

If a plaintiff can force a journalist to identify a source before a final decision has been made on the TCPA motion, sensitive information could be disclosed unnecessarily.

A new proposed bill would remove the automatic stay of proceedings during certain appeals of the denial of a TCPA motion, meaning that discovery and other trial proceedings could go forward while the case is on appeal. How would you and your co-defendants have been impacted if you had to continue your case in the trial court even as you were appealing it to the Court of Appeals?

As mentioned above, the idea of simultaneously being deposed and producing records while also trying to work on legal pleadings to prove the case was baseless would have been a lot for us and our lawyers. It also could have had a chilling effect on sources. The trial court judges in our case made clear errors of law in their rulings. In one instance, the judge adopted findings of fact written by the plaintiff even though we had established some of the evidence cited was mischaracterized by the plaintiff.

How much does a lawsuit like the one brought against you cost to defend, and why is it important that defendants who win a TCPA motion be able to recover the money they spend defending themselves?

These cases are so expensive. News organizations like ProPublica must take them incredibly seriously. Even with libel insurance, which we have, no news organization wants to lose a suit involving stories that are true and which were reported with integrity. Even if you win, they can cause premiums to go up, making it even more expensive to publish journalism in the public interest, as we do.

Recouping some of the funds it takes to defend against baseless suits to offset attorneys costs can be so important to cash-strapped newsrooms, and it hopefully acts as a deterrent for those who think that the mere threat of a lawsuit can head off a story they may not like. It’s fair to say that lawsuits like this cost many hundreds of thousands of dollars because, remember, it went up and down the Texas court system twice before being finally dismissed.

A new proposed bill would change the TCPA to make the award of attorneys fees to a winning defendant discretionary instead of mandatory. As someone who successfully used the TCPA to defend yourself but also had a trial court that ruled against you twice, do you have concerns about giving trial courts the option of denying fees to prevailing defendants?

Of course I do because, remember, the trial courts in our case erred twice in not throwing the case out under TCPA. The appeals court finally did that. If a lawsuit is determined to be baseless, the plaintiff should be required to pay for the attorney fees. (As I mentioned above, this can be extremely expensive as these cases can drag on for many years, even with the anti-SLAPP law.) If the whole goal is to reduce frivolous suits, then a finding that a suit was frivolous should automatically result in an award of attorney’s fees.

If the whole goal is to reduce frivolous suits, then a finding that a suit was frivolous should automatically result in an award of attorney’s fees.

Do you think that weakening or repealing anti-SLAPP laws like the TCPA threatens journalism and free speech, and if so, why?

There’s a misperception that only journalists want anti-SLAPP laws. That’s not true. Businesses and others whose public participation can be seen as a threat want them, too. Speaking the truth should not subject you to drummed-up lawsuits, endless legal proceedings, and legal fees that, without an organization like ProPublica behind me, could have bankrupted me. Truthful articles like ours should be celebrated, not threatened, and weakening laws like TCPA sends the absolute wrong message.

Prosecutors in Lake County, Indiana, might not intend to advance the Trump administration’s agenda by pursuing charges against photojournalist Matthew Kaplan.

They may think that when Gary police officers broke up a Jan. 18 protest of the incoming administration’s immigration policies, journalists like Kaplan were obligated to leave too.

But they’re wrong about the law — journalists have a constitutional right to document police conduct during protests and their aftermath. And their error (assuming it is one) is a gift to Trump and his anti-press and anti-immigration agendas. They need to reverse course and drop the case.

Freedom of the Press Foundation (FPF) Director of Advocacy Seth Stern explains in an op-ed in the Post-Tribune.

Dear Friend of Press Freedom, 

As March roars in like a lion, we’re here to help you navigate the threats stalking journalists and the press. Here’s the latest.

Hands off Texas’ anti-SLAPP law

The Texas Citizens Participation Act strongly protects journalists and others in Texas who face meritless lawsuits based on speech, known as SLAPPs. But new bills in the statehouse could change that.  

To understand how these proposals would harm Texans’ First Amendment rights if passed, we spoke to Carol Hemphill, who was SLAPPed in Texas for posting a negative online review, and the lawyer who represented her, JT Morris. 

“The public needs to be assured that they are free to speak out about potentially harmful situations without fear of serious financial repercussions,” Hemphill told us. Read our full Q&A here.

Sunsetting Section 230 would stifle free speech

With the largest social media operators in the U.S. either directly intertwined with President Donald Trump’s administration or kissing the presidential ring, you’d think Trump’s opposition would support alternative platforms. Democrats wouldn’t make it so expensive to run a social media platform that only those loyal to Trump can stay in business. Right?

Wrong. As Freedom of the Press Foundation (FPF) Advocacy Director Seth Stern explains in the Chicago Sun-Times, a proposal by Democratic Sen. Dick Durbin to sunset Section 230 of the Communications Decency Act would do just that. Repealing Section 230, Stern writes, “will only empower the worst offenders and bankrupt their competition.” Read the full op-ed here.

‘Fox & Friends’ no friend to press freedom

Lawrence Jones and his co-hosts at “Fox & Friends” recently suggested that police “go after” Pablo Manríquez, the editor of Migrant Insider, a Washington, D.C.-based newsletter that covers migrant policy and politics. 

Manríquez’s alleged crime? Receiving a tip from a source and breaking the news about planned raids by Immigration and Customs Enforcement in northern Virginia.

We wrote about how the First Amendment protects reporting about ICE by Manríquez and other journalists — and why “Fox & Friends” may come to regret supporting prosecutions of journalists. Read the whole thing here.

Make surveillance information public

Director of National Intelligence Tulsi Gabbard has pledged to “uphold Americans’ Fourth Amendment rights while maintaining vital national security tools” like Section 702 of the Foreign Intelligence Surveillance Act. 

She can start by ensuring that Congress and the American people have information they need to assess the impact of Section 702. That’s why FPF joined a coalition letter led by the American Civil Liberties Union asking Gabbard to publish an estimate of the number of U.S. persons whose communications are collected under Section 702 surveillance and to declassify information about the terrifying spy draft amendment to Section 702 made in the last Congress. Read the full letter here.

What we’re reading

Prosecutors drop case against Stanford student journalist (Columbia Journalism Review). We’re glad charges were dropped following the unjust arrest of this student journalist, but it should have been blindingly obvious from the beginning that he did nothing more than report the news.

Why it matters who asks the questions (The Atlantic). Imagine a world where only sycophants can question the president, and any journalists who dare to ask hard questions get kicked out of the room. That’s the path America is on. 

‘A clear attempt to intimidate the press’ (WBUR-FM). Once again, legendary First Amendment lawyer James Goodale says it best: “If you can't stand the heat, get out of the kitchen. . . . [I]f you're gonna be in the First Amendment business, you gotta stand up and fight.”

Shell-shocked at CBS (Status). News outlets can't effectively expose corruption when they’re part of it. How can the public trust CBS journalists to cover the same administration that their bosses are bribing?

No entry (Columbia Journalism Review). The pre-ceasefire excuse for barring foreign journalists was that they’d somehow interfere with military operations (as opposed to Palestinian journalists who the IDF seemingly feels free to kill at will). So what’s the excuse now?

Voice of America journalists face investigations for Trump comments (The New York Times). Investigating journalists for accurately reporting comments critical of the Dear Leader is something we used to expect from North Korea, Iran, and Russia — not the United States.

Secret arrests, hidden jail rosters, shrouded records: Immigration court lacks the transparency of other courts, experts say (Cleveland.com). If it sounds un-American, that's because it is.

Requester’s Voice: The Invisible Institute’s Jamie Kalven (MuckRock). “Transparency shouldn’t be just a reluctant concession to the public. It should be a principle of governance.”

Come see us in Chicago

Join FPF and other great organizations in Chicago on March 13 from 6 p.m. to 9 p.m. Central Standard Time for an important forum on safeguarding journalism and supporting Chicago area journalists in protecting the integrity of their work. RSVP through an attending organization to register. 

How to share sensitive leaks with the press

Lawrence Jones and his co-hosts at “Fox & Friends” recently suggested that police should “go after” journalists, managing to be both completely wrong on the law and incredibly shortsighted.

On Monday, Jones and co-hosts Steve Doocy, Ainsley Earhardt, and Brian Kilmeade argued that police should target Pablo Manríquez, whose Washington, D.C.-based newsletter, Migrant Insider, covers migrant policy and politics.

Manríquez’s alleged crime? Receiving a tip from a source and breaking the news about planned raids by Immigration and Customs Enforcement in northern Virginia.

“Are there consequences for this guy?” asked Earhardt, referring to Manríquez. “I mean, do the police go after him now?”

“They need to,” Jones replied. He also blasted Manríquez, claiming he’s not a journalist and arguing that reporting on ICE’s plans was unjustified because arrests of certain migrants had been signed off on by a judge.

Maybe it’s been so long since “Fox & Friends” have practiced journalism that they’ve forgotten what it looks like. Just to clear things up: Finding out information about official activity and publishing it is textbook journalism. And it’s protected by the First Amendment.

One of the entire reasons we have a First Amendment is to protect the publication of truthful information of public concern. Journalists can’t be held liable for lawfully obtaining information on a matter of public concern from a source and publishing it, even if the source acted illegally.

This protection applies whether a journalist is reporting on ICE raids or revealing the secrets of the “deep state.” You’d think the hosts of “Fox & Friends,” with their skepticism of the government (at least when Democrats are in charge) would appreciate why we need the First Amendment to prevent the police from “going after” journalists who report information that the government dislikes.

Jones and his co-hosts, for instance, presumably would want the First Amendment to protect them if they reported on a tip that the FBI was spying on a former adviser to the president, even if it had been approved by a court. (Turns out courts can be misled or mistaken on this kind of thing.)

And everyone should want the First Amendment to protect journalism about the police. Officers sometimes abuse their power or simply make mistakes. Journalism about police is sometimes the only reason bad officers or rotten systems are held to account and reformed. The ability to report on, scrutinize, and criticize police activity is part of what distinguishes American democracy from a police state.

When it comes to ICE, the public has a legitimate interest in understanding how the government is enforcing immigration laws. Legal immigrants and American citizens may need to take steps to protect themselves from being swept up in raids. Even migrants in the United States illegally have legal rights they can exercise during ICE operations.

Manríquez isn’t the only journalist who’s been unfairly attacked for reporting on ICE. White House border czar Tom Homan has also condemned reporting about Denver, Colorado-area ICE raids, and FCC Chair Brendan Carr announced he would investigate a California radio station that reported on an ongoing ICE raid in San Jose.

The core objection in each of these cases is that this journalism allegedly helps illegal immigrants evade ICE or endangers ICE officers. That’s exactly what “Fox & Friends” argued about Manríquez. Similarly, Homan blamed “the limited number of arrests” in the Denver area “on the fact that news of the raids had publicly leaked.”

But the Constitution protects reporting about police activity in public, even if public scrutiny makes it harder for law enforcement to arrest someone. Everyone has a First Amendment right to observe and even record and publish evidence of police activity in public. Some courts have even held that the First Amendment protects warning others about police operations, like holding a “Cops Ahead” sign to alert motorists to a distracted-driving law enforcement operation.

There’s also no evidence that any of this reporting has endangered ICE officers. It’s common for government officials and pro-police groups to claim that journalism about police could lead to officers being harmed, but when you take a closer look at these claims, they often fall apart.

Perhaps the real reason the government and its supporters don’t want independent journalists reporting on ICE raids is because they want just one official narrative, fed by stunt ride-alongs, fake press releases, and officials’ X posts.

But the public deserves — and the First Amendment protects — more when it comes to information about what the government is up to. Anyone calling for official reprisals against journalists for reporting the news is no friend to Americans, or to the free press.

This is the first in our series of Q&As with people who have firsthand experience with the Texas Citizens Participation Act. Read the second Q&A with ProPublica’s Charles Ornstein here.

When Carol Hemphill noticed signs that her adult brother was being neglected by the assisted living facility in Texas where he lived, she turned to the internet to warn others. Hemphill posted honest, negative online reviews of the facility. In response, she was slapped with a potentially financially ruinous lawsuit.

Thankfully, a law that protects Texans from frivolous lawsuits attacking freedom of speech, the Texas Citizens Participation Act, came to the rescue. Under the TCPA, the lawsuit was dismissed and Hemphill was even awarded her attorneys fees.

But new proposals by Texas lawmakers risk gutting the strong protections the TCPA provides to defendants like Hemphill — as well as journalists — who face meritless lawsuits based on speech, known as SLAPPs. One proposal would repeal the part of the law that pauses discovery and trial during appeals of a TCPA motion so defendants don’t need to keep spending money on lawyers. The other would get rid of the mandatory award of attorneys fees to a SLAPP victim who wins a TCPA motion.

To understand how these bills could impact Texans who exercise their freedom of speech, we spoke to Hemphill and JT Morris, who represented Hemphill while in private practice and is now at the Foundation for Individual Rights and Expression.

Carol, what was your first reaction when you were sued for defamation over the online review you posted of your brother’s assisted care facility? What were you most worried about?

Hemphill: I was completely blindsided and shocked when I was served with the lawsuit. In the ensuing weeks, my emotions ran the gamut from infuriation over the callousness of the owner’s action to an overwhelming fear of what it could mean to my family. In good faith, I posted an honest and even mild review, given what I could have said. I believed I had an obligation to advocate for my brother and the seniors I loved and worked with. My intention was to protect the most vulnerable from what I believed was a very bad situation. I had absolutely no idea that one could be sued for such a thing!

As this wasn’t something I could just ignore, my initial concern was to find an attorney. Where do I begin? What kind of attorney? I was fortunate to know someone who told me about the new TCPA and then pointed me in the direction of the most amazing First Amendment attorney. My next concern was how will I pay for this? The possibility that under the TCPA I could recover my attorney fees and court costs was somewhat reassuring and allowed me to move forward.

The possibility that under the TCPA I could recover my attorney fees and court costs was somewhat reassuring and allowed me to move forward.

JT, how did you come to represent Carol, and why did you want to take her case?

Morris: There’s not much that gets me more fired up than someone trying to bully another person into silence. And after hearing Carol tell her story, I was pretty fired up! No one should get sued for speaking out to the community about wrongdoing at a place that many were entrusting to care for their loved ones. Knowing we could lean on the TCPA made it even easier to fight for Carol’s freedom of speech, because we knew Carol would recover her legal fees.

How did the process of defending yourself from this lawsuit impact you and your family, Carol?

Hemphill: I have tremendous faith and a community of friends and family that have seen me through every adversity, but this nearly broke me.

The perpetual uncertainties, lies, and bullying were so debilitating that I actually had to seek medication. Working, taking care of a family, and navigating the care of a loved one in assisted living are stressful on their own, but the lawsuit added another layer of anxiety that made life and relationships difficult.

Financial concerns were tremendous. We were fortunate to have retirement funds to draw from, but the hope that these funds would one day be returned allowed us to continue.

I would not wish this experience on anyone, and the number one goal of the TCPA should be as a deterrent to those who seek to silence legitimate speech. We survived this and have a renewed faith in the judicial system, but the time, expense, and stress involved in fighting a lawsuit were monumental. At the time, a dear friend of mine made me a T-shirt that read, “Those who tried to bury me didn’t realize I was a seed.”

In addition to defending Carol, you’ve also defended other SLAPP victims, JT. Does her case fit a typical profile of a SLAPP? What other kinds of SLAPPs are common?

Morris: Carol’s case was a textbook SLAPP: A deep-pocketed business that serves the community sues a concerned citizen over honest, good-faith criticism. Like all SLAPPs, it faced no shot in court, but that wasn’t the point — the point was to intimidate Carol (and others) into silence under the pain of how much fighting back would cost.

Like all SLAPPs, it faced no shot in court, but that wasn’t the point — the point was to intimidate Carol (and others) into silence under the pain of how much fighting back would cost.

From local politicians suing their critics to the president suing the press and pollsters for unflattering coverage, that goal of intimidation through litigation is the common thread for SLAPPs. And it’s why strong anti-SLAPP laws, like the TCPA, are so important for protecting Americans’ expressive freedoms.

Carol, why was it important for you to be able to recoup your attorneys fees and costs after you won your anti-SLAPP motion?

Hemphill: Early in the process, the owner (of the assisted living facility) made me an offer. If I gave him $5,000 for unnamed damages and took down the review, he would drop the lawsuit. It was clear that the lawsuit was simply a means to an end — to get me to withdraw the review.

The decision to reject the offer was made easier with the assurance of being awarded attorney fees. I knew that the review was honest and necessary, and I don’t respond well to bullying, so the TCPA allowed me to proceed. Were it not for the TCPA, I believe that I and others would probably have relented at this point, and the public would not have access to important decision-making information.

The owner of the facility appealed this all the way to the Texas Supreme Court (losing at each step), impacting nearly two years of our life at a cost of over $55,000. Those funds came from our retirement account, and as we are older, it would have drastically affected our finances were we not to have them reimbursed.

The public needs to be assured that they are free to speak out about potentially harmful situations without fear of serious financial repercussions. For those seeking to silence consumers, the mandatory satisfaction of attorney fees and court costs surely have been an effective deterrent.

JT, a new proposed bill would change the TCPA to make the award of attorneys fees to a winning defendant discretionary instead of mandatory. What could be the impacts of that bill if it passes?

Morris: It would render the TCPA toothless. Ensuring that those who win dismissal under the TCPA can recover their attorneys fees achieves two very important things. First, it makes potential SLAPP filers think twice before suing. And second, it makes certain that those sued for exercising their First Amendment rights don’t face the impossible choice between self-censorship and blowing their life savings on legal fees.

The Constitution — not one’s finances — guarantees the freedom to speak out about issues affecting their community and government. Making TCPA fee-shifting discretionary would undermine that freedom for many Texans.

Another new bill would remove the automatic stay of proceedings during certain appeals of the denial of a TCPA motion. JT, how would that change affect SLAPP victims and the legal system?

Morris: Right now, a SLAPP victim can appeal a denial of their TCPA motion to dismiss without having to also fight in the trial court. That’s a good thing: Appeals courts regularly overturn those denials, and it would defeat the TCPA’s purpose if a SLAPP victim has to defend their freedom of speech in two courts at the same time. But this new bill would force SLAPP victims to do just that in several situations. For most Texans, the cost and stress of fighting in two courts at once would be overwhelming, leading to self-censorship — which is exactly what SLAPP filers want.

For most Texans, the cost and stress of fighting in two courts at once would be overwhelming, leading to self-censorship.

Finally, Carol, as someone who used the TCPA successfully to defend your right to free speech, what do you want the public to understand the most about the law and the experience of being SLAPPed?

Hemphill: The experience of being SLAPPed is a nightmare that no one should have to experience. It is an extreme tactic used by business owners and others to attempt to silence consumers. Since this ordeal, I have never left another review — ever! This is a shame. Every day we rely on the honest evaluations that free speech allows. Whether it is the review of a product on Amazon, or a more critical determination as to where to move a disabled loved one, reviews and firsthand information are important tools that the public use in their decision-making.

It is imperative that the consumer protections the TCPA affords remain in place if the public is to get an honest representation of a product or business. The TCPA sends a very clear message to bullies who would use the judicial system to exact revenge and silence consumers.

Sen. Dick Durbin’s effort to repeal the law that protects online platforms from legal liability for users’ posts seems to be well-intentioned. Durbin thinks it’ll help combat child sexual abuse materials, fentanyl, and other undoubtedly awful things.

But as Freedom of the Press Foundation (FPF) Director or Advocacy Seth Stern writes for the Chicago Sun-Times, “the road to censorship is paved with good intentions.”

Stern writes that “Every parent, myself included, worries about social media. But repealing Section 230 will only empower the worst offenders and bankrupt their competition. Using a cudgel where a scalpel is needed is Trump’s game. Democrats can do better.”

You can read the op-ed here.

Dear Friend of Press Freedom, 

With so much of importance going on, it’s hard to know what to lead a press freedom newsletter with. Here’s the latest, in no particular order. 

Hostile takeover of press pool drowns First Amendment

What began as a petty (but blatantly unconstitutional) spat with The Associated Press over what it calls the Gulf of Mexico escalated into a hostile takeover by the Trump administration of the White House press pool. Breaking with decades of precedent, the administration, not the White House Correspondents’ Association, will select which reporters get access to the president. 

Among the first cuts were the AP and Reuters, two leading wire services. We spoke to Freedom of the Press Foundation (FPF) Vice President of Editorial Kirstin McCudden about the consequences for news outlets and readers of losing access to stories from wire services.

As FPF Advocacy Director Seth Stern told DW’s The Day, Trump “wants news outlets to be dependent on his whims and favors … It allows the White House to dangle access over journalists’ heads and punish those who don’t toe the line.”

Senate must not confirm Ed Martin as DC’s top prosecutor

We helped lead a coalition of rights groups in a letter asking senators to reject the nomination of Ed Martin for U.S. attorney for the District of Columbia. 

As interim U.S. attorney, Martin has weaponized his office to threaten critics of Elon Musk in disregard of the First Amendment, Justice Department policy, and rules of professional conduct for prosecutors.

Stern said that Martin, who sees prosecutors as “Trump’s lawyers,” would use his office as “a vehicle for selective, anti-speech prosecutions and petty retribution rather than the pursuit of justice.” 

The National Archives and the Trump administration

Our Daniel Ellsberg Chair on Government Secrecy Lauren Harper joined NPR’s 1A to discuss the Trump administration’s attacks on the National Archives and the history it preserves.

She explained that the archive “plays a key role in ensuring that the public has access to information about government activities,” adding that “We cannot meaningfully engage in self-government when we don’t know what the government is doing.”

Media uproar forces Mississippi city to back down from its assault on press freedom  

We wrote last week about Clarksdale, Mississippi’s frivolous defamation lawsuit against The Clarksdale Press Register, capped off by a ridiculous court order that the paper delete an editorial. 

As Stern told NPR, “It should take five minutes of legal research to figure out that this ruling was unconstitutional.” After NPR, The Washington Post, The Daily Beast and plenty of others called attention to the story — and the Foundation for Individual Rights and Expression agreed to represent the Press Register —  the city and judge finally did their homework and dropped the case. 

Press Register publisher Wyatt Emmerich said it best: “Let this be a lesson: if you try to silence one voice in America, a hundred more will take up the call.” 

What we’re reading

Anthony Brown’s bill may have ‘chilling effect’ on government transparency, critics say (Fox Baltimore). A Maryland bill would make it easier for the state to ignore public records requests and sue requesters. It shouldn’t become law. FPF’s Lauren Harper explained why to Fox Baltimore.

How Donald Trump is bending America’s news media (Newsweek). FPF’s Seth Stern told Newsweek that “Just because we've got a thin-skinned president doesn’t mean we need to have a thin-skinned press. Journalists, hopefully, got into the profession because they wanted to … rise to moments like these.”

DOGE tries to expand use of pseudo-secrets (The Classifieds). After the Department of Government Efficiency took over the U.S. Agency for International Development, agency emails started automatically including a “sensitive but unclassified” warning. This will create an untold number of needless pseudo-secrets and make it harder to get public records. 

Trump’s control of press pool, ban of AP clearly aim to drown free speech (Chicago Sun-Times). If you’re on an editorial board and haven’t spoken out about these authoritarian antics, look at your last five editorials. Are they all about something more important than the First Amendment’s survival? If not, what are you waiting for?

Alderman’s office kicks reporter out of meeting on controversial bar reopening (Block Club Chicago). Good for Francia Garcia Hernandez and Block ClubChicago for fighting back with ink. Journalists often don’t want to make themselves the story, but they’re not — politicians are the ones doing that.

Nevada Supreme Court sides with RJ in jail surveillance video case (Las Vegas Review-Journal). Of course the press can publish pictures of prison guards. We don’t have secret police in the United States — including behind bars.

Biden Justice Department downplayed U.K. demand for Apple ‘back door’ (The Washington Post). Turns out the Biden Justice Department misled Congress about a secret United Kingdom order requiring Apple to break encryption. How many times will agencies lie about surveillance powers before Congress holds them accountable?

TX lawmakers could strip you of free speech and make you pay big legal fees (Austin American-Statesman). Texans of all political stripes should oppose efforts to make it easier for the powerful to harass their critics with frivolous lawsuits.

Idaho House unanimously passes media shield law bill protecting journalists’ sources (Idaho Capital Sun). Red and blue states alike recognize the need for journalist-source confidentiality. Let’s hope Idaho’s shield bill gets across the finish line.

How to share sensitive leaks with the press

Much has been said about the blatant unconstitutionality of the Trump administration’s retaliation against The Associated Press and White House Correspondents’ Association. It’s un-American for presidents to claim the right to put words in journalists’ mouths, and a press pool that is handpicked by the government is by definition not a free press.

But the egregiousness of Trump’s power play has taken attention away from its practical implications. Specifically, the exclusion of the AP and Reuters — two of the three wire services previously included in the White House press pool — is guaranteed to harm local news outlets nationwide and the Americans who rely on them to stay informed. Outlets that serve Trump supporters won’t be exempt from the consequences.

To unpack the recent changes and discuss the impact of Trump’s recent antics, the deputy director of audience for Freedom of the Press Foundation (FPF), Ahmed Zidan, sat down on Feb. 26 with Kirstin McCudden, the managing editor of the U.S. Press Freedom Tracker, a project of FPF. McCudden knows the importance of wire services to the media ecosystem firsthand from her career working for local papers all over the United States.

Can you get us up to speed? What’s going on?

During a briefing on Feb. 25, White House press secretary Karoline Leavitt announced that the Trump administration would now decide which media outlets get to participate in the “presidential reporting pool,” a group of reporters who cover the president and White House.

That night, following the announcement, the White House replaced the Huffington Post and Reuters, a news wire agency. This follows the Trump administration’s ban earlier this month of The Associated Press, another news wire agency, from White House events, because it would not refer to the Gulf of Mexico as Gulf of America, and the Associated Press’s lawsuit in response to that ban, which legal experts everywhere say violated the First Amendment.

What is a pool reporter exactly?

A pool reporter serves the public, historically, not the president. Not every outlet in the world can be at the White House at once. One, many many outlets can’t afford to have a Washington, D.C., bureau, and two, there are logistical realities — the Oval Office, Air Force One, and the press briefing room aren’t that large.

For decades, the White House Correspondents’ Association and its members have determined who is part of the pool rotation — to sit in one of the 13 seats on Air Force One, for example. And that pool reporter has an obligation to share — even before publishing for their own outlet — the historical record of whatever event or important discussion they witnessed.

How significant is it for two news wire agencies — The Associated Press and Reuters — to be absent from the pool?

There’s a lot about this change that’s disconcerting. The president is now choosing who is covering him. But as a journalist who has worked in newspapers and outlets from Texas to Florida to Missouri, I can tell you that the loss of the AP and Reuters from the pool will fundamentally change what news we’re all getting on a day-to-day basis. The AP and Reuters are news wire services, two of the three wire services that were part of the pool. Bloomberg News is the third. Wire agencies act like a subscription service for news — they’re responsible for gathering news and distributing it.

Media outlets of all sizes — from The New York Times to the Corpus Christi Caller-Times -– where I once worked — can rely on wire services to help round out their content. To drive that point home, AP, Reuters, and Bloomberg released a joint statement today underlying this fact: “Much of the White House coverage people see in their local news outlets, wherever they are in the world, comes from the wires.”

This loss “harms the spread of reliable information.” And reliable information is key here.

"People across the country, of all political interests, are going to very soon find themselves less informed as a result of the absence of AP and Reuters from the presidential pool."

Some would rather their favorite news outlet step into AP’s shoes — is that possible?

It’s understandable but simply, no, not overnight. These news wire services have a distribution system and long-standing contractual agreements with tens of thousands of media outlets globally. Even if you prefer that your local outlet picks from Breitbart rather than Reuters, there is no distribution system in place today.

Much of the White House coverage people see in their local news outlets, wherever they are in the world, comes from the wires. Excluding the AP, Reuters, and others from the pool will make it harder for local papers to operate. It could lead to even more closures and news deserts.

What do you say to people who say “Why should I care about The Associated Press or Reuters, as long as I just get my national news from X or other social media platforms?”

Social media may be a good place to find hot takes and commentary, but we all need the facts to originate from a trusted source. Even Trump isn’t suggesting news outlets shouldn’t have a role in informing the public about the White House — he just wants to choose which ones, and his choices don’t include leading wire services.

I think it’s important to pause and understand the role the AP and Reuters, these wire agencies, play in the media ecosystem. The loss — that we now have a president dictating who can ask him questions — can’t be overstated. People across the country, of all political interests, are going to very soon find themselves less informed as a result of this.

Do you have anything else to add?

People should take the time to understand what the press pool is. It’s OK to not have thought about it before this week because it is a system that has worked. Look at your local outlets and see where that news is coming from and think about the impact that this change will have on your own media ecosystem.

FOR IMMEDIATE RELEASE:

On Thursday, a coalition of civil society groups asked senators to reject the nomination of Edward R. Martin Jr. to be the permanent U.S. attorney for the District of Columbia. In just over a month as the interim U.S. attorney, Martin has weaponized his office to threaten critics of Elon Musk in willful disregard of the First Amendment and U.S. Justice Department policy, as well as of binding rules of professional conduct for prosecutors.

The letter — which was spearheaded by Demand Progress and Freedom of the Press Foundation (FPF) — calls on senators to honor their duty to the Constitution’s advice and consent clause by rejecting Martin’s nomination to be U.S. attorney for the District of Columbia.

Seth Stern, director of advocacy at FPF, said: “We don’t need to guess whether Ed Martin will abuse the U.S. attorney’s office if confirmed. He’s a political operative who has made clear that he intends to use it as a vehicle for selective, anti-speech prosecutions and petty retribution rather than the pursuit of justice. Even putting aside his ethical deficiencies, his failure to understand or care about the basic First Amendment freedom to criticize government officials harshly and by name demonstrates his incompetence to lead such an important office — as does the fact that he’s reportedly never been a prosecutor before.”

“In just one month, Ed Martin has corrupted the office of the U.S. attorney for D.C. into Elon Musk’s personal hit squad,” added Emily Peterson-Cassin, director of corporate power at Demand Progress. “Martin has incinerated any sense of duty or impartiality by shamelessly currying favor with the world’s richest man by targeting his perceived enemies. Senators must reject his nomination and stop him from using the full weight of his office to illegally silence critics of Elon Musk and DOGE.”

Last week, Martin, who calls himself President Donald Trump’s lawyer, launched “Operation Whirlwind,” an initiative targeting Democratic lawmakers who have criticized Musk and the so-called Department of Government Efficiency. Martin deliberately misframes obviously hyperbolic statements about political consequences as threats of violence. Ignoring his duty of impartiality, he has nothing to say about far more aggressive rhetoric from individuals aligned with Musk, including Trump. That’s consistent with his history of advocating for Jan. 6 rioters whose conduct was exponentially more threatening than the rhetoric he now seeks to criminalize.

Earlier this month, after Musk said that a user on X who listed the names of DOGE staffers identified in a news report “committed a crime,” Martin sent a letter asking Musk to “utilize” Martin’s office to protect DOGE. He followed up with a second letter saying that he will investigate individuals and groups referred to him by Musk. Not only has Martin threatened criminal investigation of Americans who he believes have merely acted “unethically” and not even violated any criminal laws, he has publicly vowed to use the U.S. attorney’s office to “chase them to the end of the Earth.”

Misusing the U.S. attorney’s office to silence and punish people for simply using their free speech rights to criticize Musk and DOGE violates constitutional free speech protections and Attorney General Pam Bondi’s own policies on prosecution charging decisions, as well as the professional rules of conduct of the District of Columbia Bar and the Missouri Bar.

You can read the groups’ letter here or below.

Please contact us if you would like further comment.