Freedom of the Press

A secret surveillance program that allows law enforcement agencies to monitor trillions of phone records without a warrant could be used to target journalists and sources. Woman talking on her mobile phone on outdoor by wuestenigel is licensed under CC BY 2.0.

A secret U.S. surveillance program revealed by Wired last week allows federal, state, and local law enforcement agencies to monitor trillions of phone records of Americans without a warrant. It’s a chilling reminder that Congress must take steps to rein in government spying powers. But instead, it is slow-walking reform. Indeed, some lawmakers are currently considering simply reauthorizing a controversial law that’s been abused to surveil Americans, including journalists.

The Wired report discusses Data Analytical Services, previously known as Hemisphere. With the cooperation of AT&T, DAS lets law enforcement agencies obtain phone records of both a specific target and of everyone they’ve communicated with. That means that even someone never suspected of a crime could be monitored.

DAS data can reveal highly sensitive and personal information, including names and addresses of subscribers, phone numbers, and the dates, times, durations, and locations of the calls. All of this can reveal callers’ location information and associations. For example, DAS data could be used to determine whether someone has spoken to a journalist on the phone, for how long, and on what dates, as well as the same information for everyone else that journalist has spoken to. (DAS data does not reveal the contents of communications.)

DAS is ostensibly aimed at drug trafficking, but journalists reporting on the drug trade — and their sources — shouldn’t be surveilled without a warrant. In addition, DAS isn’t limited to drug crimes. Law enforcement agencies can search the data for any reason, and police have requested DAS data for cases unrelated to drugs in the past.

It doesn’t take a huge leap to imagine that a power-hungry local police department determined to “investigate” journalists for newsgathering on a wide variety of topics could request DAS data to reveal reporters’ sources.

Other loopholes need to be closed

Wired’s reporting on DAS should be a wake-up call to every member of Congress that they need to put up guardrails to limit the government’s spying powers. But DAS isn’t the only massive loophole that allows the government to conduct mass warrantless surveillance on Americans.

We’ve written before about how Section 702 of the Foreign Surveillance Intelligence Act, or FISA, allows intelligence agencies to conduct “backdoor searches” to access the communications of Americans (including journalists) without a warrant, as long as they’re talking to someone outside the U.S. The sunset of Section 702 at the end of the year is a prime opportunity to end warrantless surveillance of Americans’ communications.

In addition, Congress must end other government spying powers like the “data broker loophole,” which lets law enforcement agencies simply buy data that they would otherwise need a warrant to obtain.

Surveillance reform bill on the table

The Government Surveillance Reform Act — a bill sponsored by Sens. Ron Wyden and Mike Lee and Reps. Warren Davidson and Zoe Lofgren — would address these concerns. Among other things, it would prohibit backdoor searches of Americans’ communications in criminal investigations without a warrant, with a few limited exceptions, and close the data broker loophole.

Instead, the Biden administration is pushing Congress to reauthorize Section 702 without significant reforms. FBI Director Christopher Wray has claimed that internal controls have increased agents’ compliance with the law, making legislative reforms unnecessary.

Yet it would be a mistake to reauthorize Section 702 without significant restrictions. The government has demonstrated that it can’t be trusted to police its own surveillance powers. Even after the internal controls touted by Wray were put into place, the FBI’s own audit found that there were 8,000 warrantless FBI searches last year that were out of compliance with FISA.

To buy themselves more time, some lawmakers are considering adding a short-term reauthorization of Section 702 to the National Defense Authorization Act, which Congress must pass by the end of the year. This, too, would be a mistake. To ram Section 702 reauthorization through Congress with the NDAA is unnecessary and risks encouraging further extensions of the law, as a coalition of civil society organizations including Freedom of the Press Foundation (FPF) have warned.

Congress shouldn’t need more evidence that government surveillance needs to be restricted, nor any more time to gather it. Congress must act now to reform Section 702 and close other surveillance loopholes to protect the civil liberties and privacy of millions of Americans — including journalists and their sources.

In 2023, Freedom of the Press Foundation (FPF) continued its mission of protecting and defending journalists, whistleblowers, and the fundamental rights of free speech. Here, we bring you five stories that showcase FPF's unwavering commitment to safeguarding journalists and their sources.

1. SecureDrop and the Vulkan Files: Unveiling Russian cyber espionage

The source interface for SecureDrop. This is what the anonymous whistleblower used to share leaked documents with reporters.

(SecureDrop Demo)

By design, FPF cannot access whistleblower submissions on any news outlet’s SecureDrop. This means that it is extremely rare for us to know what news stories come through the open source whistleblowing platform.

However, this year on the Lawfare podcast, we learned that an anonymous whistleblower used SecureDrop to provide over 5,000 pages of documents on Russia's intelligence agencies, including the notorious hacking group Sandworm, which was allegedly responsible for the two shutdowns of Ukraine's electrical grid, the disruption of the 2018 Winter Olympics and the catastrophic 2017 NotPetya cyberattack.

"I am angry about the invasion of Ukraine and the terrible things that are happening there,” said the anonymous whistleblower, "I hope you can use this information to show what is happening behind closed doors." The whistleblower declined to identify themselves, declaring the need to vanish “like a ghost” for security reasons. We’re glad SecureDrop was able to make that happen.

2. U.S. Press Freedom Tracker: The data backbone for advocacy across the country

Data visualization of all incidents documented by the U.S. Press Freedom Tracker from 2017 to Nov 16, 2023.

(U.S. Press Freedom Tracker)

When we established the U.S. Press Freedom Tracker in partnership with the Committee to Protect Journalists in 2017, no one knew what the data would reveal, since no one else was keeping tabs on when journalism was impeded. Now, six years later, the Tracker is relied on by organizations like the Reporter’s Committee for Freedom of the Press for its annual year-in-review analyses and by Reporters Without Borders for its ranking of America in the World Press Freedom Index.

The Tracker was also integral to the Knight First Amendment Institute’s report, “Covering Democracy: Protests, Police, and the Press,” which focused on the treatment of journalists during protests, a pattern our Tracker team has highlighted and analyzed in the past. Since 2020, the Tracker has documented over 700 assaults of journalists covering demonstrations — law enforcement is believed to be responsible for 77% of those.

Thanks in large part to the Tracker, we can understand these patterns and are better equipped to proactively address and minimize future threats. With ongoing civil unrest and an impending Presidential election, these insights are increasingly crucial, allowing us to provide journalists with the knowledge and tools to navigate potential risks.

3. Raid on Marion County Record: Leading national conversations on press freedom

Caitlin Vogus, FPF’s deputy advocacy director, joins Marion County Record editor Eric Meyer to talk with Chris Cuomo about the newsroom raid and its significance on press freedom.

(News Nation)

On Aug. 11, the entire police force of Marion County, Kansas, descended upon the Marion County Record newsroom, seizing equipment from reporters, and raiding the home of the editor, Eric Meyer, and Joan Meyer, his mother and newspaper co-owner (who passed away the next day). The raids, ostensibly related to computer abuse allegations, garnered swift action from FPF and were quickly documented by the U.S. Press Freedom Tracker with continuous updates for weeks.

FPF organized an urgent meeting among press freedom allies to strategize, share on-the-ground updates, and spotlight the work of a legal defense fund to help the Record. FPF's condemnation resonated across media giants like The New York Times, The Guardian, Fox News, and others, emphasizing the violation of the First Amendment, human decency, and federal law -– the Privacy Protection Act of 1980 — that bans newsroom searches except in limited circumstances that were clearly inapplicable in Marion.

FPF also led national discussions on NewsNation with Chris Cuomo, alongside editor Meyer, as well as on the Scripps News Morning Rush, The Lawfare Podcast, and the News in Context podcast. Due to the enormous outcry, the judge who approved the warrant, Laura Viar, is now the subject of a judicial ethics complaint, while journalists investigate her background and potential conflicts.

4. Installing tiplines: Securing source communication for newsrooms

After working with FPF’s Digital Security Training team, PublicSource, a nonprofit newsroom in Pittsburgh, now offers a Signal tipline for sources and whistleblowers.

(PublicSource)

Tiplines are vital avenues for whistleblowers to contact journalists and inform the public. However, in order to ensure the privacy and safety of sources, tiplines must be fortified with robust security measures, stringent confidentiality protocols, and user-friendly interfaces.

Setting up such tiplines can be a daunting task for many media organizations. PublicSource, a local nonprofit newsroom based in Pittsburgh, encountered such hurdles when establishing its own pathway for source communication. So, PublicSource reached out to our Digital Security Training team for help establishing secure communication channels using Signal, a widely recognized app that uses encrypted messaging.

The integration of Signal into the PublicSource newsroom came with a unique set of challenges and required a nuanced understanding of factors, from regional constraints to budget considerations. The Digital Security Training team’s write-up on this project serves as a valuable case study other newsrooms can look to, highlighting the importance of collaborative efforts and proactive adaptation to ensure the success of newsroom tiplines.

5. PRESS Act: Protecting journalists from exposing sources

The screenshot shows the top section of the PRESS Act bill, displaying its initial details.

(Congress.gov)

Journalists shouldn’t have to choose between protecting their confidential sources or going to prison — but right now, many do. This is why FPF has tirelessly campaigned for a reporter’s shield law known as the PRESS Act that would prohibit the government from spying on journalists or threatening them with prison if they don’t burn their sources.

In late 2022, FPF called on select leaders to support the bill via the Chicago Sun-Times, The Salt Lake Tribune, and an appeal by longtime FPF board member John Cusack. These calls to action, along with coalition letters and direct collaboration, got the bill farther than anyone expected and secured key support from major players including Sen. Ron Wyden, Sen. Mike Lee, and Sen. Dick Durbin (who credited us and called our work some of the best advocacy efforts he’d ever seen). As a result, the PRESS Act passed unanimously in the House. Sadly, it was killed last minute at the end of the year thanks to a nonsensical objection from a single senator.

The PRESS Act has since been reintroduced this year and we’ve continued to push it forward. Today, it maintains bipartisan support, with Sen. Lindsey Graham reportedly being added as a co-sponsor. This incredible progress shows the opportunity for systemic change through collaborative effort and strategy.

Lawmakers recently reconvened in the New Jersey State House, pictured here, for a lame-duck session. Hobbling the Open Public Records Act may be on the legislative agenda. New Jersey State House by Peter Miller is licensed under CC BY-NC-ND 2.0.

Journalists in New Jersey have long used the state’s public records law to shed light on everything from misspent taxpayer money and petty acts of political retribution to deadly uses of force by police. But a new plan to hobble New Jersey’s Open Public Records Act, or OPRA, threatens access to the public records that make this reporting possible.

Democratic lawmakers in New Jersey, meeting during the legislature’s lame duck session, reportedly are considering using the guise of “reforming” OPRA in order to gut it. While the proposed legislation isn’t public (never a good sign), it’s believed that the reforms will include measures that:

• Add exemptions to OPRA that allow additional records to be withheld from public disclosure. OPRA already has 27 exemptions.
• Prevent records requesters from directly challenging denial of access in Superior Court. Instead, requesters will first have to appeal denials to the Government Records Council, which — according to the state’s own report — fails to quickly resolve records disputes.
• Eliminate the requirement that a public agency that wrongfully denies access to a public record pay a requester’s legal fees if they have to hire a lawyer to win access to the records. This “fee-shifting” requirement encourages attorneys to take on legitimate OPRA cases and enforce the law, because they’re likely to be paid.

These changes will decrease transparency in New Jersey and undermine the public’s right to know — and journalists’ ability to expose — what their government officials are up to.

That’s why Freedom of the Press Foundation (FPF) joined more than 60 other organizations — led by the New Jersey Working Families Party, the ACLU of New Jersey, and League of Women Voters of New Jersey — in a letter urging the New Jersey legislature to stop its efforts to push through OPRA changes during the lame-duck session.

It’s disappointing but perhaps not surprising that lawmakers are trying to ram through changes to OPRA. Public records laws often reveal authorities’ politically unpopular decisions, embarrassing conduct, or even criminal wrongdoing. Of course, elected officials know it would be unpopular to criticize public records laws for being a thorn in their sides, so they rely on other reasons to justify trying to eviscerate them.

In New Jersey, some lawmakers have argued that commercial requesters are abusing OPRA to gather information at an unfairly high cost to taxpayers. Yet they haven’t offered specifics about just how much these allegedly “abusive” requests are costing. Given the state’s history of making ridiculous accusations about overly burdensome requests, it’s more than fair to ask lawmakers to justify their claims with some evidence.

It’s also not clear how the potential changes to OPRA that lawmakers are said to be considering would stop abusive requests from commercial entities or save the government money, other than by making it harder for all requesters to access records. Even if commercial requesters are costing the state money, that’s no reason to limit access and transparency for everyone. Lawmakers should also consider the money saved when journalists use public records to expose government waste, fraud, and abuse.

In addition, there are better solutions to burdensome commercial requests, like posting frequently requested records publicly online, improving technology used to maintain and search for records, or even charging commercial requesters (which should not include the press).

OPRA reforms that actually benefit the public wouldn’t have to be rushed through, behind the scenes, in a lame-duck session. If lawmakers are truly interested in improving the law, not weakening it, they should work openly and cooperatively with journalists, public interest groups, and members of the public to enact real reform in the next regular session. Otherwise, only secrecy is served.

"Vice President Joe Biden visit to Israel March 2016" by U.S. Embassy Jerusalem is licensed under CC BY 2.0.

The Israel-Gaza war is the deadliest conflict for journalists in modern memory, with 48 journalists killed to date, according to the Committee to Protect Journalists. Israel has said it can’t guarantee journalists’ safety and has not committed to any concrete steps to try to protect them.

Nonetheless, journalists from the U.S. and elsewhere are demanding access to the Gaza Strip so they can help local journalists document history. Reliable reporting is essential to counter government propaganda and social media disinformation coming from all sides of the conflict.

Meanwhile, the Biden administration has said little to nothing about the deadly attacks on journalists covering Gaza or the limitations on outside access.

It’s time for that to change. The administration needs to do everything it can to ensure that Americans have the information they need to decide whether they think our government’s support and funding for the war is a good idea (so far, they don’t). It needs to exert maximum pressure on its ally to protect press freedom and to allow transparency and accountability.

Here are 10 questions American journalists can ask U.S. officials — at White House or State Department press briefings, interviews, or wherever else the opportunity presents — about the threats facing journalists in Gaza.

1. What has President Biden said to Israeli Prime Minister Benjamin Netanyahu about the unprecedented killing of journalists during this war and what steps does Biden expect Israel to take to protect journalists?

2. Is Biden aware of reports that the Israeli Defense Forces has told news outlets it cannot guarantee the safety of journalists? What’s his response?

3. What steps does the United States take to protect journalists when it is at war? Does Biden believe that Israel’s military can and should take similar steps, given the funding, weaponry, and other assistance the United States provides to Israel?

4. Will Biden commit to conditioning further military aid to Israel on its respecting core democratic values like freedom of the press, including by not targeting journalists in attacks, undertaking reasonable efforts to keep journalists safe, and allowing international journalists access to Gaza without requiring them to embed with the IDF?

5. What is Biden’s reaction to the Reporters Without Borders’ investigation of the death of Reuters journalist Issam Abdallah in Lebanon, which concluded, based on the information available, that the IDF targeted Abdallah?

6. Will Biden consider the case of Shireen Abu Akleh in evaluating the credibility of denials by Israel that it targets or fails to protect journalists? (Abuh Akleh, a Palestinian American journalist, was killed in the West Bank last year. Israel initially blamed Palestinian militants but, after numerous investigations contradicted that claim, admitted its troops likely killed her).

7. Eleven major news outlets recently sent a letter to the Israeli and Egyptian governments asking for access to Gaza so they can counter disinformation and propaganda with reliable reporting. Will Biden urge Israeli and Egyptian officials to grant this request?

8. In the 2024 presidential election, Biden will need to make his case to a skeptical American public that his support for Israel’s war in Gaza is justified. How can he make that argument to Americans and expect them to believe it if U.S. media is not able to report firsthand on the war?

9. Recently, an organization called HonestReporting issued a report baselessly speculating that U.S. news outlets had advance notice of the Oct. 7 attack by Hamas on Israel. Netanyahu cited it to condemn the news outlets, and Sen. Tom Cotton said outlets should be investigated for aiding terrorism. Will Biden publicly defend U.S. news outlets against these accusations?

10. The United States has repeatedly condemned Russia’s efforts to degrade or block internet access in Ukraine as part of its war there, noting the need “for sharing and learning information, including about the war.” Does the president feel similarly about Israeli-imposed blackouts and other attacks on the internet infrastructure in Gaza? And what is he doing to stop further blackouts?

Calumet City, Illinois authorities recently hit Daily Southtown reporter Hank Sanders with a flurry of citations for asking too many questions. Mayor Thaddeus Jones, pictured here, reportedly also sought an order barring Sanders from city hall. The city dropped the citations after the ordeal made national headlines.

Photo via Calumet City Office of the Mayor.

Last month’s absurd citations of a Chicago area reporter for asking officials too many questions would’ve been easy to overlook as a fluke — if not for the arrests of Alabama journalists for reporting news earlier that month. And that’s not to mention the August police raid of the Marion County Record in Kansas, among other alarming press freedom violations this year.

Freedom of the Press Foundation (FPF) Director of Advocacy Seth Stern wrote in an op-ed for the Chicago Sun-Times that the press needs to use newsprint to fight back when officials attempt to retaliate against it for doing its jobs.

It’s no time for fence-sitting when a leading presidential candidate wants to investigate news outlets for treason and imprison reporters and a sitting U.S. senator is baselessly urging terrorism investigations of news outlets.

Fighting back with ink isn’t just about journalists. It’s about everyone who relies on a free press to stay informed.

You can read the full op-ed here.

Alsu Kurmasheva, an American journalist working for Radio Free Europe/Radio Liberty, has been wrongfully detained in Russia.

Deník N/Ludvík Hradilek, courtesy of Radio Free Europe/Radio Liberty

Russia is adding to its shameful tally of imprisoned American journalists with its detention of Alsu Kurmasheva, a reporter for Radio Free Europe/Radio Liberty. And there are simple steps the Biden administration can take -– but inexplicably hasn’t yet — to help her get home.

Kurmasheva, a dual U.S.-Russian citizen, was first prevented from leaving Russia in June, and she’s been imprisoned there since October. Russian authorities accuse her of failing to self-register under its “foreign agents” law. Kurmasheva is the second American journalist imprisoned in Russia this year, following the bogus espionage charges brought against Wall Street Journal reporter Evan Gershkovich in March.

Shortly after Russian security services arrested Gershkovich, the State Department appropriately designated him as “wrongfully detained.” That opened the door to additional U.S. resources dedicated to bringing Gershkovich home, including the involvement of the Office of the Special Presidential Envoy for Hostage Affairs.

Secretary of State Anthony Blinken should also designate Kurmasheva as wrongfully detained, and quickly, just as he did Gershkovich. Kurmasheva’s case meets the criteria set under federal law that the State Department uses to determine a wrongful detention of a U.S. national by a foreign government, but it has yet to act.

The spurious charge against Kurmasheva shows that Russian authorities are retaliating against her for being an American and a journalist. The “foreign agents” law is infamous for its use to crack down on independent journalism and civil society.

Kurmasheva is also known for her reporting on the Tatar people — an ethnic minority in Russia that is under increasing scrutiny and pressure from the Russian government — and is likely being targeted for this and other reporting the Russian government dislikes. And, of course, the Russian government is no fan of Radio Free Europe/Radio Liberty, which Russia has also labeled a “foreign agent” and forced out of the country.

President Joe Biden and U.S. lawmakers should also publicly condemn Kurmasheva’s imprisonment and demand her immediate release. Biden has said that he’s “serious” about bringing home Americans held illegally in Russia and elsewhere, and he’s specifically commented on Gershkovich’s detention. But he has yet to publicly mention Kurmasheva’s case.

The president must make clear that this issue has his attention, and that the U.S. government won’t stand idly by while Russia repeatedly locks up American journalists.

In Congress, Rep. Michael McCaul, the chair of the House Foreign Affairs Committee, has spoken out, as have several other lawmakers, but others have been silent. What are they waiting for?

Two so far this year is already far too many American journalists wrongfully detained in Russia. If the U.S. has any hope of keeping that number from growing in the future, it must use every method at its disposal to secure the release of both Kurmasheva and Gershkovich.

More than 50 organizations have demanded transparency over the FBI's May raid of journalist Tim Burke's home newsroom.

Courtesy of Tim Burke

The FBI raided Florida journalist Tim Burke’s home newsroom in May following publication of outtakes — which Burke says he obtained online through a publicly accessible URL — from Tucker Carlson’s interview with rapper and fashion superstar Ye, formerly known as Kanye West.

Following the raid, more than 50 press freedom organizations sent a letter to the Department of Justice demanding transparency about how the government believes Burke’s newsgathering broke federal computer hacking laws, and whether the DOJ followed the law and its own guidelines in authorizing the search on Burke’s home newsroom.

As Burke continues to fight for the return of his data and equipment, such as computers and hard drives, Freedom of the Press Foundation Deputy Director of Advocacy Caitlin Vogus spoke about the case and its connection to other recent press freedom threats on the National Press Club’s Update-1 podcast.

Vogus explained:

“[T]his is a really important issue for journalists working around the country. They need to know, especially if they’re freelancers, that the DOJ is going to apply the Privacy Protection Act and its own policies when it comes to investigations of journalists. And they need to know whether what they are doing in their online investigations could be considered to violate federal law in the eyes of the government.”

Listen to the full episode here.

U.S. Sen. Tom Cotton, a man with so much irrational hatred for the free press that he must have something awful to hide from it, baselessly called for an investigation of major news outlets for supporting terrorism. "Tom Cotton" by Gage Skidmore is licensed under CC BY-SA 2.0.

The Israeli government’s invasion of Gaza is already the deadliest event for journalists in decades, and now a malicious disinformation campaign has put the lives of even more journalists at severe risk, with zero evidence of wrongdoing by any news outlet.

A group calling itself HonestReporting, which claims to “combat ideological prejudice in journalism and the media, as it impacts Israel,” published a report insinuating that freelance photojournalists who took pictures during Hamas’ Oct. 7 attack on Israel were complicit with Hamas. HonestReporting has since backpedaled, admitting it had no proof.

Photojournalists risk their lives to document history. It’s absurd to suggest that photographing atrocities makes them complicit, or that they’re morally obligated to put their cameras down to fight terrorists armed with machine guns.

And it’s equally preposterous to suggest, as both Israeli and American officials have, that news outlets are responsible for all hypothetical misconduct by any freelancer from whom they buy a photograph.

The Jerusalem Post — where HonestReporting’s Executive Director Gil Hofman used to work — ran a headline that the journalists had “reportedly joined Hamas massacre.” And Israel’s embattled Prime Minister, Benjamin Netanyahu, seized on the spurious report to call the photojournalists “accomplices in crimes against humanity” and condemn the media outlets that published their work.

Others went even further. Former Israeli Minister of Defense Benny Gantz said journalists who photographed the attack “are no different than terrorists and should be treated as such.” Danny Danon, a member of Israel’s parliament and its former representative to the United Nations, said on X, formerly Twitter, that Israel's internal security agency would add the photojournalists named in HonestReporting’s report to its kill list. Presumably, there will be others.

But no one, apparently, stopped for a minute to check if the allegations were even remotely true.

In the U.S., Sen. Tom Cotton, a man with so much irrational hatred for the free press that he must have something awful to hide from it, sent a letter to the DOJ calling for an investigation of whether the Associated Press, CNN, The New York Times and Reuters “committed federal crimes by supporting Hamas terrorists.”

News outlets from the Times to the AP were forced to issue statements proclaiming that they didn’t have advance knowledge of the Hamas attacks.

And then HonestReporting essentially said never mind. Oops. After some backlash on social media, the group later told the AP it was simply “raising questions.” Hofman admitted there was no evidence to back up the insinuation that photojournalists had advance notice of the attacks or somehow collaborated with Hamas. Oh, and he also conceded: “We don’t claim to be a news organization.”

But the potentially lethal damage has already been done. It’s a virtual certainty that, despite HonestReporting’s about-face, its nonsense report will be cited to justify past and future attacks against journalists in what’s already by far the deadliest war for the press in modern memory.

If it hasn’t already been crystal clear, the Israeli government absolutely must now do everything in its power to undo the harm HonestReporting has caused and protect journalists covering the war, whether they are embedded with the IDF or not.

And the Biden administration has an obligation to pressure its close partner to protect press freedom in every way it possibly can. The amount of journalists killed in this conflict shocks the conscience, and turning a blind eye to this fact goes against every value and right the U.S. claims to hold dear.

Former President Donald Trump isn’t camera shy. His trials should be televised so the public can watch them and observe our justice system at work.

United States Department of Energy

Journalists have spilled plenty of ink over the legal cases against former President Donald Trump. But because TV cameras have so far been largely shut out of the proceedings, video from those cases is rare.

American courts have long said that transparency helps public trust in them, something that Trump and his legal team are actively working to undermine. Televising or livestreaming Trump’s trials — so that as many members of the public as possible can watch and judge for themselves the evidence against the former president — would help protect the judicial system itself.

Unfortunately, many courts remain skeptical of televising courtroom proceedings. With the exception of one state case, most of the proceedings against Trump likely won’t be televised. Here’s the current status of TV cameras in the courtroom in each of the cases involving Trump:

Georgia election racketeering case

Judge Scott McAfee, who’s overseeing the state election racketeering case against Trump and others in Georgia, is the only judge so far to announce that he will allow at least certain parts of this trial against the former president to be televised.

Georgia law specifically allows for trials to be recorded with the approval of the judge and sets out strict criteria a judge must find are met in order to deny a request to record.

David E. Hudson, general counsel for the Georgia Press Association, told The New York Times that in his more than 40 years of experience representing the press, he could not recall one trial that had been closed to cameras. And yet the sky hasn’t fallen and justice is still being done in Georgia. Imagine that.

New York civil fraud case and criminal cases

Trump is a defendant in two cases in New York state courts, one a civil financial fraud trial that is already underway and another a criminal trial set to begin in March 2024 on charges related to the alleged payment of hush money to adult film actor Stormy Daniels.

None of Trump’s civil trial has been televised, including Trump’s recent testimony, because of New York’s strict law prohibiting cameras in the courtroom. However, Judge Arthur Engoron did permit recording in the courtroom for a brief period before the start of opening statements in the fraud trial.

In the criminal case, Judge Juan Merchan denied the media’s request to allow TV cameras in the courtroom when Trump was arraigned.

While Trump’s New York cases aren’t going to be televised or streamed, a long-standing effort to change the New York law prohibiting recording of courtroom proceedings may be picking up steam. Earlier this year, a state lawmaker introduced a bill that would permit audio-visual recording and livestreaming of trial and appellate proceedings in New York. The bill can be taken up again when the legislature reconvenes in January.

Washington, D.C., election obstruction case

In October, a coalition of media organizations asked the Judicial Conference of the United States to revise a decades-old rule that prohibits broadcasting (its term) criminal trials. It asked the Conference to authorize judges to permit all federal criminal trials to be broadcast or, alternatively, make an exception allowing it for Trump’s trial in Washington for federal election subversion — as well as a second federal trial in Florida (more on that below). The request was denied.

The Judicial Conference, the policymaking body for the federal courts, said it would study the issue of broadcasting of criminal trials, essentially kicking the can down the road (again). The Conference has been “studying” cameras in the courtroom for more than 30 years. It even rejected a recommendation from one of its previous studies that urged it to allow civil proceedings to be broadcast.

Not all hope for cameras in the courtroom is lost, however. A coalition of media organizations and, separately, NBC News have also asked Judge Tanya Chutkan to allow cameras to broadcast or record Trump’s election obstruction trial.

Trump has officially taken no position on the request, though his lawyers have repeatedly called for his trials to be televised. Despite the fact that President Joe Biden’s administration has regularly stated its support for press freedom and transparency, the government has opposed the news media’s request, saying that the rules prohibit it.

The news outlets note that the courthouse itself has cameras that send a live feed of the trial to an overflow room, which could also be used to livestream the trial to the public. NBC News also argued that, if the court isn’t going to allow live broadcast, it should at least allow the trial to be recorded for historical posterity.

The news outlets have until mid-November to file briefs responding to the government, after which Judge Chutkan could hold a hearing to consider the issue before ruling.

Florida classified documents case

In Trump’s criminal trial in federal court in Florida over his handling of classified documents, the court has shown some early hostility to cameras and other access measures requested by the press during pretrial proceedings.

A judge first denied a media coalition’s request to permit video recording or pictures during Trump’s arraignment, including in the corridor outside the courtroom. The court’s chief judge also banned all electronic devices from the courtroom during the arraignment, making it much harder for reporters to take notes and send real-time written reports.

Later, Judge Aileen Cannon denied a request from the press — which neither Trump nor the government opposed — to use electronic devices during Trump’s arraignment on new charges.

While there’s been no media request to televise Trump’s actual trial yet, the court’s initial rulings on cameras and press access more generally leave us pessimistic about the odds of cameras in the courtroom for Trump’s Florida trial.

Congress should step in

The press undoubtedly faces an uphill battle in convincing the federal courts in Washington, D.C., and Florida to allow Trump’s trials to be televised or livestreamed. But Congress could and should step in. The Sunshine in the Courtroom Act of 2023, a bipartisan bill that would allow cameras in federal courts, has gained support from some lawmakers following Trump’s indictments.

Experience from states that allow cameras in the courtroom shows the benefits of televising or streaming criminal trials. If the Judicial Conference and federal courts won’t act to allow cameras in courts, even in historic trials of a former president, Congress must.

Texas Department of Criminal Justice Austin.jpg" by Larry D. Moore is licensed under CC BY-SA 4.0.

I sat at a table with the senior warden of my prison. He was livid that I had written a disturbing essay for The Marshall Project about mentally ill prisoners in solitary confinement. He threatened to fire me from the prison newspaper staff, with bogus disciplinary cases, as well as to force a prison transfer.

My editor took me out into the adjoining hallway for a heart-to-heart chat. “You can't write negative things about the prison,” he warned me. Those double barbed wire perimeter fences that surround this place are there not to keep prisoners in, he added, but to keep the general public out.

That chat completely transformed my entire journalistic perspective — before the warden completely transformed my prison life. My editor instilled within me a better understanding of the importance of my journalistic voice and how steep of a price I would have to pay if I elected to provide the general public with access to daily prison occurrences.

With publication, comes retaliation

That meeting was years ago. Since then, I’ve published a few more essays, and I have been subjected to a range of retaliation by prison staff. The administration has written bogus disciplinary infractions against me numerous times, including when I wrote a letter to the editor of a local newspaper, The Huntsville Item, praising a former warden who placed a high priority on treating prison employees and prisoners equally.

My personal property, including my manual typewriter, have been arbitrarily confiscated and never returned in retaliation for articles written for local human rights organizations that criticized ineffective prison practices. After my participation in an ABC News story highlighting the prison agency’s failed COVID-19 policies, I was tossed into solitary confinement for 23 months. Recently, a group of rogue prison guards showed up unceremoniously to my cell and viciously assaulted me with chemical agents as a result of my continuous coverage of a mass hunger strike by prisoners held in solitary confinement.

Since prisoners are not rendered much in regard to autonomy and worldly possessions, the thought of losing what little you have to mean-spirited and unforgiving prison officials is enough to discourage any prisoner from speaking truth to power.

My story — just like the countless other acts of intimidation and retaliation tactics that incarcerated journalists throughout the country are subjected to by prison officials — will probably not end up in your news feed. But these retaliatory practices are relentless in our nation's jails and prisons.

Incarcerated journalists do not have newsroom support and are oftentimes left to fend for themselves after reporting on inhumane conditions and corrupt practices. A combination of prison officials' unchecked autonomy on what information leaves the prison and the failure of the journalist community to erect institutions to protect their incarcerated colleagues, have contributed significantly to the routine targets and attacks.

Emerging awareness, support

The issue has been getting more attention. A recent article in Shadowproof about the retaliation against incarcerated journalists outlines an array of difficult hurdles that incarcerated writers face on a daily basis, with little to no free-world assistance or legal protections. Prison Policy Initiative also published a report detailing the ways prisons suppress journalism from the inside.

And there are organizations that have emerged to support journalists inside prison walls. Empowerment Avenue facilitates and supports incarcerated journalist/outside journalist partnerships to establish frameworks that remove barriers incarcerated journalists face and to hold systems accountable.

PEN America created its Prison Writing Program in 1971, after the infamous Attica prison riots, to empower incarcerated writers. In 2022, it released the book, “The Sentences That Create Us.” In it, current and former incarcerated writers highlighted the significance of the incarcerated writer to the profession of journalism, as well as the myriad of cruel tactics that prison administrators have utilized to suppress their voices.

For example, Thomas Whitaker, an incarcerated writer in Texas, wrote about how incarcerated writers have an obligation to report on prison conditions because no one else will. Whitaker warns the incarcerated writer should expect prison administrators to completely "mess up your life." In addition to attracting negative attention from wardens, he wrote that an incarcerated writer should expect to be written bogus disciplinary cases, subjected to countless unnecessary and senseless cell searches, and to prolonged stays in solitary confinement.

Since prisoners are not rendered much in regard to autonomy and worldly possessions, the thought of losing what little you have to mean-spirited and unforgiving prison officials is enough to discourage any prisoner from speaking truth to power. Replacing necessary material like expensive typewriters, and grammar and resource guides, along with having all your outgoing/incoming mail and visits highly censored, makes it extremely difficult to write quality articles.

How to help the incarcerated journalist

We need even more institutions like PEN America's Prison Writing Program to assist and protect their incarcerated fellow writers. I’ve seen the positive impact of this work firsthand. With The Marshall Project, we documented the inedible, non-nutritious food the prison was serving during the COVID-19 pandemic. After the story published, prison officials in Texas completely transformed the food-service operations and introduced more wholesome hot meals that included fresh fruit and real, instead of powdered, milk.

I often receive correspondence from journalists who have read my work. They want to know what could be done to help my journalism career. My response is simple: Advocate for the inclusion of incarcerated writers in your newsroom and writer’s groups; volunteer for progressive organizations like PEN America or Empowerment Avenue; mentor an incarcerated writer; and assist and report on their First Amendment freedom of speech violations with the same intensity that you would your free-world colleagues.

The incarcerated voice is paramount in the world of journalism. Without it, the world in general is left with a significant information void — what transpires behind the double-razor wire fence that surrounds each prison.

Jeremy Busby is a writer and activist incarcerated in Texas. He is currently seeking assistance with a civil rights lawsuit against Texas prison officials for numerous violations of his First and Eighth Amendment rights in retaliation for his journalism. The lawsuit is pending in the U.S. District Court for the Northern District of Texas, Wichita Falls Division, Civil Action No. 7:23-cv-024-O. He is a former staff writer for the Texas Prison Newspaper and can be reached directly through the Securus e-message system, Jeremy Busby #00881193 Texas.

An Alabama journalist is charged with “print[ing] an article containing grand jury information” while his publisher is charged with approving the article. As a term of their bail, they're both censored from reporting on criminal investigations.

FOR IMMEDIATE RELEASE

Court documents reveal that an Alabama newspaper publisher and reporter were ordered to refrain from “communication” about any criminal investigations as a condition of being released on bail. They were arrested last week for the “crime” of reporting on a grand jury investigation of a school board’s handling of COVID funds.

“It’s hard to believe that officials honestly think the First Amendment entitles them to arrest journalists for reporting news and then censor them as a condition of release,” said Freedom of the Press Foundation (FPF) Director of Advocacy Seth Stern. “There’s a pattern here that indicates an intentional abuse of power to retaliate against the press.”

The bail terms imposed on Atmore News publisher Sherry Digmon and reporter Don Fletcher essentially prohibit the paper from reporting on crime — an obviously core function of local journalism. As Stern explained, “The bail terms would be unconstitutional even if they only restricted the journalists from further reporting on the grand jury investigation of the school district, especially when there was no legal or constitutional basis to punish that reporting in the first place.”

But the order broadly prohibits all reporting on “ongoing criminal investigations,” regardless of whether they have anything to do with the charges against Digmon and Fletcher. According to Stern, “That overbreadth turns an already flagrantly unconstitutional gag order into a fundamentally un-American attempt at retaliatory censorship to silence the free press. Everyone involved should be ashamed of themselves.”

It’s also noteworthy that Escambia County District Attorney Stephen Billy, in what he must have believed was somehow a defense of his decision to bring charges against the journalists, complained that he believed the Atmore News’s coverage of him was unfair. Tellingly, a non-journalist who was also arrested for allegedly violating the grand jury secrecy law was not similarly gagged as a condition of bail.

Digmon and Fletcher were first arrested Friday (FPF’s statement on the arrests is available here). The complaint against Fletcher accuses him of “print[ing] an article containing grand jury information” while Digmon stands accused of “approv[ing] an article containing grand jury information and allow[ing] the article to be printed in the Atmore News.”

But Alabama’s grand jury secrecy statute only prohibits grand jurors, witnesses, and others directly involved in grand jury proceedings from disclosing information about a grand jury. It does not prohibit journalists from reporting information provided by sources, presumably because the legislators who drafted the law knew that would be unconstitutional.

As FPF Deputy Director of Advocacy Caitlin Vogus has explained, “The First Amendment protects journalists who publish information they lawfully obtain from sources,” even if the sources are alleged to have broken the law.

Nonetheless, after illegally arresting the journalists on felony charges for constitutionally protected news reporting, Escambia County authorities have now effectively silenced them as well, through their censorious and unconstitutional bail terms.

Atmore News journalist Don Fletcher and publisher Sherry Digmon were arrested after reporting on an investigation of a school board's handling of COVID funds.

Escambia County Sheriff's Office

FOR IMMEDIATE RELEASE

An Alabama newspaper publisher and reporter were arrested last week and charged under a grand jury secrecy statute for the “crime” of reporting on a grand jury subpoena provided by a source.

And today, the publisher, Sherry Digmon, was arrested again — this time for soliciting ads from the local school district while serving on the Board of Education.

“Arresting journalists for reporting the news is blatantly unconstitutional,” said Freedom of the Press Foundation (FPF) Director of Advocacy Seth Stern. “Grand jury secrecy rules bind grand jurors and witnesses, not journalists. The district attorney should blame himself for failing to maintain the secrecy of grand jury proceedings, not jail journalists for doing their jobs.”

“The First Amendment protects journalists who publish information they lawfully obtain from sources,” said FPF Deputy Director of Advocacy Caitlin Vogus. “We don’t arrest journalists in this country for reporting news that authorities would prefer to keep secret.”

Stern added, “Authorities should drop the charges immediately. But that’s not enough. The journalists should sue and those responsible should be investigated and disciplined. The officials involved either knew the arrests were unconstitutional and proceeded anyway or don't realize their actions are completely indefensible under the First Amendment. Either way, they have no business holding public office in the United States.”

Digmon was arrested along with journalist Don Fletcher over reporting by the Atmore News in Escambia County, Alabama, about an investigation into a local Board of Education’s handling of COVID funds. (Digmon also serves on the school board.)

The Atmore News story reported that District Attorney Stephen Billy had issued a grand jury subpoena for checks labeled as COVID payments. That, according to Billy, violated state law.

The problem is that Alabama’s grand jury secrecy statute prohibits grand jurors, witnesses and others directly involved in grand jury proceedings from disclosing information about a grand jury. It does not — and under the First Amendment, cannot — codify a prior restraint that bars the press from disclosing grand jury information it obtains from a source.

The Alabama statute also includes a provision barring grand jury outsiders from, for example, threatening or bribing grand jury participants for information. But according to Stern, “Any attempt to distort that vague provision to criminalize routine journalism would constitute an inexcusable abuse of power in clear violation of the First Amendment.”

And it does not appear that Digmon and Fletcher’s arrests were related to any alleged interactions with grand jury participants. Fox 10 News says court documents indicate Fletcher was arrested for printing grand jury information, and 1819 News reports that Digmon was charged for allowing Fletcher's article to be published. The Atmore Advance reports that Billy himself admitted the arrests stem from the article's publication and quotes him complaining about purported inaccuracies in Fletcher's reporting of his comments at a board meeting.

As for today’s arrest of Digmon over soliciting ads from the school, Stern commented, “It seems highly suspicious that prosecutors first objected to the school district’s presumably long-standing practice of advertising in a local paper immediately after the paper published content that angered the district attorney.” FPF will continue monitoring that story as it develops.

Authorities who have retaliated against journalists with unconstitutional arrests and criminal investigations have faced legal and other consequences in the past.

In 2013, Phoenix New Times journalists received a $3.75 million settlement following their wrongful arrest by Sheriff Joe Arpaio’s deputies for publishing grand jury information. In that case it turned out that the supposed grand jury hadn’t actually convened. A federal appellate court commented that “It is hard to conceive of a more direct assault on the First Amendment than public officials ordering the immediate arrests of their critics."

Earlier this year, a raid of the Marion County Record in Marion, Kansas, over alleged newsgathering crimes received national attention. The chief of police who orchestrated the unconstitutional raid was ultimately forced to resign.

Do not enter! Access to the Google antitrust trial in federal district court in Washington, D.C., pictured above, has been severely restricted. Thanks to the efforts of journalists and news outlets, that’s starting to change. Washington DC - USA - panoramio (10) by Paulo JC Nogueira is licensed under CC BY-SA 3.0 DEED.

On Monday, Google CEO Sundar Pichai testified as the star defense witness in the landmark antitrust trial against his company. And surprisingly — for this trial, at least — the public could actually watch his testimony.

That shouldn’t be unusual. American trials are supposed to be open to the public. The Google antitrust trial, however, has been marred by an unusual level of secrecy.

But now, eight weeks into this historic trial, it appears that the parties and the court may have finally learned some lessons about transparency. Better late than never — and thanks to the work of journalists and news outlets — public access to trial testimony, exhibits, and transcripts in the Google antitrust trial is improving.

Top secret testimony

One of journalists’ main complaints at the beginning of the trial was the amount of secret witness testimony. By mid-October, for example, witnesses testified at least partially in secret on seven days of the trial. At one point, “the Court excluded the public from the courtroom for the entire day,” according to a legal motion filed by The New York Times and other news outlets.

The media coalition also complained that the court wasn’t giving the press and the public enough notice of courtroom closures and the chance to object.

In response to the motion, Judge Amit Mehta instituted a new procedure that requires the parties to notify the court the night before if they believe testimony will need to be given in secret the next day. If the court gets such a notice, it will notify the public on the trial docket and hear objections to sealing in the morning.

Since then, there’s been just one notice posted on the public docket that sealed testimony is expected. It could be a coincidence — or it could be that requiring the parties to actually think about whether secrecy is needed and to announce plans for secret testimony in advance successfully discourages unnecessary sealing of witnesses’ testimony.

Undisclosed exhibits

The lack of access to trial exhibits has also frustrated journalists. While the government initially posted some of the exhibits online, it stopped after Mehta chastised it. Then, with Mehta’s approval, the government began posting exhibits again, but only selectively and sporadically.

Enter the media coalition again. Its motion asked Mehta to require all the parties to give the public access to trial exhibits in full and to make them available as soon as possible after they’re used in court.

In response, Mehta created another new process going forward that lets the press request exhibits from the parties, to be provided within two to four business days, depending on whether they contain any confidential information. Mehta’s order also set deadlines for the parties to provide copies of exhibits previously used and not yet available to the public.

Still, some transparency issues with exhibits persist. For example, attorney Megan Gray, who has been closely watching the trial, told me that some of the exhibits Pichai reviewed while on the stand weren’t shown to the public during his testimony, and it's not clear if the exhibits will be redacted when they’re entered into evidence.

Out-of-reach transcripts

In the absence of any video or audio livestream of the trial, journalists who couldn’t attend in public were left to rely on the written transcripts to understand what happened each day. But daily transcripts are incredibly expensive. One courtwatcher estimated that transcript costs would be “in the tens of thousands of dollars” by the end of the trial. That puts them out of reach for many journalists and members of the public who want to follow the trial.

Early in the trial, some journalists and observers considered the possibility of sharing transcripts or even posting them publicly but were hesitant due to vague rumors that they were somehow prohibited from posting them online. (When I called the court reporter’s supervisor’s office, the person who answered the phone wasn’t able to tell me whether any rule prohibited the posting of trial transcripts online.)

Now, in a victory for transparency, the investigative news outlet The Capitol Forum has begun posting the daily trial transcripts on its website. Teddy Downey, executive editor, told me the outlet began posting the transcripts to increase public knowledge about the trial. “The media can’t be there all the time, and ordinary citizens can’t reasonably be expected to attend,” Downey said. “This was the only way we could ensure there was broad public access to the trial proceedings.”

The transcripts provide a wealth of information for reporters or others who want to follow the day-by-day developments but can’t be in the courtroom in person. While a livestream of the trial would be better (and there’s no reason for court rules that forbid it), access to daily transcripts is the next best thing.

Fight for your right of access

These changes have significantly increased public access to the Google antitrust trial. But they probably never would have happened without public pressure on the court and legal filings demanding greater access.

As this case shows, the public and the press’s right of access to our justice system can’t be taken for granted. When courtroom doors are closed, journalists and news outlets must push them back open.

“Food Lion - Clarksville, VA” by Virginia Retail is licensed under CC BY 2.0 DEED.

If you’ve gone to journalism school in the last quarter century you’ve likely heard of the Food Lion case. A federal appellate court found that journalists who got jobs at Food Lion grocery stores to investigate food safety violations breached a duty of loyalty by misleading Food Lion and trespassed by entering employee areas they accessed under false pretenses.

Often presented to young journalists as a cautionary tale, the landmark case significantly slowed the once relatively common practice of “undercover” journalism. Lawyers who thought that the subjects of news reports could not recover damages in court as long as the facts reported were true, now saw a new risk: punitive damages based on newsgathering methods, as opposed to the content of the reporting.

As a result, hidden-camera and other surreptitious investigations were largely abandoned by many mainstream outlets and are now often associated with fringe (and often disreputable) platforms.

Appellate court says never mind

But this year, the Fourth Circuit — the same appellate court that decided Food Lion — all but overruled itself. The change of mind came in a case in which the People for the Ethical Treatment of Animals, or PETA, and others challenged a North Carolina “ag-gag” law against undercover investigations at agricultural facilities.

The appellate court agreed that the law could not be weaponized against constitutionally protected newsgathering. Freedom of the Press Foundation joined a brief by the Reporters Committee for Freedom of the Press supporting PETA’s position.

The government argued that the ag-gag law was passed to codify the Fourth Circuit’s decision in the Food Lion case. But the appellate court said that’s irrelevant because, in hindsight, Food Lion was wrong. As the North Carolina Supreme Court had already recognized, the journalists acting as food-counter clerks did not breach a duty of loyalty to the grocery chain and, therefore, could not have trespassed, because Food Lion let them in.

And this month, the Supreme Court declined to review the case. That leaves Food Lion seriously weakened if not dead altogether.

Food Lion’s significance was always overstated. While a jury verdict awarding Food Lion over $5.5 million in damages made headlines, the judge cut the damages to $315,000 and then the appellate court cut the total to a whopping $2.

One of the reasons lawmakers in North Carolina wanted to codify the case was so future Food Lions could recover real money. If Food Lion began as a $2 case, few would have given it much thought. But by the time the appellate court cut the damages (and by the time the North Carolina Supreme Court said that the Fourth Circuit got it wrong), the harm was already done by the publicity around the initial verdict.

There’s no telling how many stories the public missed out on as a result of the changes to journalism — both legal and cultural — brought about by Food Lion. We’re a long way from the days when a news outlet might go as far as to open a fake tavern so they could report firsthand on city officials’ shakedown attempts.

Don’t rush to put your hidden cameras back on

To be clear, we’re not suggesting that journalists everywhere start submitting false job applications and wearing hidden cameras. Please, talk to a lawyer before you do anything like that.

The PETA case clarified that the ABC journalists didn’t owe Food Lion a duty of loyalty when working as food-counter clerks, but the court might have viewed the issue differently if, for example, they’d falsely applied for a more senior role. There have been other cases decided and laws passed since Food Lion that may affect journalists’ rights in different jurisdictions. State laws on recording conversations without consent can also vary widely.

Unfortunately, cases involving unsympathetic outlets, which have taken the lead on undercover investigations since Food Lion, tend to yield bad outcomes. Last year, a federal jury in Washington, D.C. found Project Veritas liable after its operatives used fake names and backstories to obtain internships with Democratic consulting firms.

And the Ninth Circuit Court of Appeals held last year that the First Amendment did not protect anti-abortion activists who gained access to Planned Parenthood personnel by posing as exhibitors from a fake company. The Supreme Court also declined to review that decision, which relied on a questionable attempt to distinguish damages allegedly caused by the activists’ deceptive conduct itself from those caused by their subsequent publications.

And there may be ethical issues with surreptitious newsgathering even when it’s legal. The Society of Professional Journalists’ Code of Ethics advises journalists to “Avoid undercover or other surreptitious methods of gathering information unless traditional, open methods will not yield information vital to the public (emphasis added).”

But do consider if there’s a place for stealth journalism

But we do think it’s worth noting that journalists have been limiting their reporting techniques for decades based, at least in part, on an incorrect ruling that has essentially been rescinded.

And the PETA case isn’t the only recent crack in the supposed black-and-white rule that journalists can be punished under “generally applicable” laws. The Department of Justice recently admitted that protest dispersal orders need to accommodate journalists so they can report on the aftermath of a dispersal. The NYPD similarly agreed in a settlement to stop dispersing journalists covering protests.

Perhaps this is indicative of a broader acceptance that, especially with petty offenses like trespass, the public good of enforcing generally applicable laws needs to be weighed against the public harm of silencing journalists.

These days, everyone from political campaigns to sports leagues to government agencies is sealing off people and spaces to which the press used to have access, and the press’s response has often been limited to complaining in editorials. Perhaps it’s time for the press to — carefully and in close consultation with legal counsel — think creatively about ways to get in through the back door when newsmakers won’t let them in the front.

A recent decision from a D.C. appeals court requires reporter Catherine Herridge to face a contempt order before she can appeal a decision rejecting her claim of reporter’s privilege. “201215-D-BN624-0040” by Lisa Ferdinando is licensed under CC BY 2.0 DEED.

Reporters must risk fines or even jail time before they can appeal orders requiring them to name a confidential source, according to a recent decision from a federal appeals court in Washington, D.C.

The decision came as part of an order rejecting former Fox News and current CBS News reporter Catherine Herridge’s attempt to appeal a troubling lower court order requiring her to name a confidential source for her reporting about Yanping Chen, a Chinese American scientist. Chen is seeking Herridge’s source as part of her lawsuit against the FBI for violating the federal Privacy Act by allegedly leaking information about her.

The court said Herridge’s appeal was premature because she hadn’t yet been found in contempt of court for defying the order. (The Reporters Committee for Freedom of the Press has the complete legal lowdown on what the appeals court ordered.)

That may sound like a procedural technicality, but it’s dangerous. Requiring reporters to face contempt before they can appeal may discourage them from insisting on their First Amendment right to protect confidential sources by taking their objection to a higher court.

‘Friendly contempt’ a roll of the dice

Journalists are already under great pressure any time they face a legal demand to reveal a confidential source or other newsgathering material. If they can’t appeal an order requiring them to name a source without facing a potentially large fine or long jail sentence, some may think twice about continuing to resist.

This is especially true for freelancers or other journalists who don’t have the backing of a big news organization and may be on the hook for their own legal fees. As a result, some reporters may comply with orders to reveal sources even in cases they would have won on appeal.

It’s true that courts will often issue a “friendly contempt” order — imposing only a nominal fine — or put a contempt order on hold to allow the journalist to appeal. But reporters shouldn’t have to roll the dice and hope that the judge they’re before will be “friendly” to the press. There are plenty of judges with no love lost for the media, and no guarantee that their contempt order will be friendly.

For example, when Judge Vincent Gaughan ordered Chicago journalist Jim DeRogatis to testify in the 2008 criminal trial of singer R. Kelly on child pornography charges — despite DeRogatis’ invocation of a reporter’s privilege — DeRogatis tried to appeal before he was held in contempt. But an Illinois appellate court rejected his appeal, suggesting that DeRogatis should have sought a friendly contempt order first. (Freedom of the Press Foundation Director of Advocacy Seth Stern was one of the attorneys who worked on the appeal of the reporter's privilege ruling in the Kelly case.)

The only problem? Gaughan was known for his obvious disdain for the press and his battles with the news media over the almost complete secrecy with which he conducted some of Chicago’s biggest cases. He also had a reputation for losing his temper and had actually jailed spectators for contempt during the Kelly trial. (Gaughan later jailed a reporter in another case.) He’d also previously threatened to jail DeRogatis.

It’s not hard to see why DeRogatis may have doubted how “friendly” a contempt order from Gaughan would have been. (DeRogatis ultimately invoked the Fifth Amendment and was not forced to answer questions in the trial.)

Unfortunately, Gaughan is not the only judge who’s expressed or acted on anti-press sentiments. When reporters are ordered to name a confidential source, they shouldn’t have to take a chance that a judge will throw the book at them in order to appeal.

Contempt requirement completely unnecessary

Requiring a reporter to face contempt before they can appeal is also completely unnecessary. Contempt is meant to encourage someone to comply with a court order. If a reporter has made clear that she intends to appeal an order to reveal a confidential source, there’s no reason to actually impose a fine or jail sentence on her to try to force compliance with the order before the appeals process plays out.

Contempt orders serve no purpose in cases where a journalist invokes reporter’s privilege, and may actively undermine the exercise of First Amendment rights.

But the rule requiring a contempt order before an appeal isn’t inevitable. Some states take the more sensible approach of allowing reporters to appeal orders requiring them to testify or produce documents without waiting to be held in contempt. There’s no reason not to do the same in federal court.

After journalist Mike Elk sued the NewsGuild, the country's largest union for news professionals, in a Pennsylvania court, the NewsGuild issued discovery requests that may cause significant and unnecessary harm to the reporter's privilege. Court of Common Pleas - Allegheny County Courthouse, Pittsburgh by Tony Webster is licensed under CC BY 2.0.

When prosecutors and litigants seek to unmask journalists’ confidential sources, it’s unfortunate, but not exactly surprising. They’re going to prioritize any advantage they can gain in court over protecting press freedom. But no one expects to see journalists demanding that other journalists out their sources.

That’s why it raised eyebrows when the NewsGuild, the country’s largest journalists’ union, recently asked a judge to force a reporter to do just that.

The demand arose from a lawsuit by journalist Mike Elk against the NewsGuild and its officials in Pennsylvania. Elk claims, among other things, that the union defamed him after he notified it of sexual harassment allegations against a former official.

The NewsGuild, which denies Elk’s allegations, demanded Elk’s communications with the sources who told him about the harassment claims. It also sought his email conversations with former New York Times columnist Ben Smith, who reported an alleged disparaging statement by union officials about Elk, which Elk cites in his lawsuit. When Elk didn’t comply, the union filed a motion asking the judge to order him to produce his source communications notwithstanding the reporter’s privilege. Poynter reports that Elk objected last week.

A dangerous precedent

The NewsGuild is taking the position that because Elk brought the lawsuit he “waives his privilege where his sources have information that goes to the heart of the NewsGuild’s defense.” If that becomes the law, reporters would have to choose between pursuing their own legal rights and protecting their sources. Journalists shouldn’t need to check their right of access to the courts at the newsroom door.

If the union persists, every lawyer seeking journalists’ sources will argue that “Even the NewsGuild agrees.” And sources will be less likely to talk to journalists if they know the reporter’s privilege goes out the window if the journalist ever decides to sue someone. Notably, neither of the 1970s cases the NewsGuild relies on are from Pennsylvania courts. That means the NewsGuild may be risking making new law in Pennsylvania that is adverse to its own members.

Of course, the NewsGuild is entitled to aggressively defend itself against Elk’s claims. It contends they’re meritless and for all we know they may be right. But it also needs to keep in mind its raison d'être. The NewsGuild itself has rightly condemned defendants’ efforts to out sources, even when the offender (Starbucks) specialized in selling coffee, not protecting the press. The NewsGuild called Starbucks’ discovery “dangerous,” even though its requests were directed to employees and union organizers, not journalists. It proclaimed that “journalists’ communications with sources must be protected.”

Union officials have said Elk requested journalists’ communications first. That claim seems to reference broadly worded discovery requests from Elk that don’t expressly carve out privileged communications. But there’s a world of difference between issuing catchall discovery requests (every lawyer does that) and specifically asking a court to order a journalist to reveal sources.

If Elk’s requests were too broad, the NewsGuild could have objected to them to the extent they called for privileged records. Elk has not filed any motion specifically seeking source communications, and even if he had, that’s no excuse for the NewsGuild to overstep too.

To be fair, Elk did file a defamation claim, and defamation lawsuits themselves can threaten press freedom. We’re not endorsing Elk’s decision to file that claim. We wish he hadn’t. But a union has a greater responsibility to protect the interests of the entire press than does a single journalist.

It’s also unclear what the NewsGuild hopes to learn through broad discovery into Elk’s source communications. What light could those records shed on whether the union and its officials, for example, made defamatory statements about him or breached a confidentiality agreement? Smith’s reporting identifies his source for the remarks Elk claims defamed him, so we’re unsure what Elk’s own communications with Smith could add.

A fishing expedition is not worth sacrificing journalists’ rights. If there are specific communications that the NewsGuild believes are nonprivileged and vital to its defenses, then it can amend its requests to narrowly target those records without asking the court to adopt a broad exception to the reporter’s privilege. That would at least limit the risk of the union setting precedent that is harmful to its members.

Expand the reporter’s privilege instead

If even a journalists’ union will compromise its press freedom principles to gain an edge in court, we certainly can’t trust government lawyers (or ordinary litigators with no particular attachment to press freedom) to restrain themselves from doing so.

In both criminal and civil cases, a lawyer’s job is to leave no stone unturned. They can be expected to keep demanding source materials unless either the law or their client tells them not to.

That’s why we’ve long advocated for an expansive reporter’s privilege at both the state and federal level. And so has the NewsGuild (which, notwithstanding this incident, has done plenty of great work defending journalists). As the NewsGuild itself once put it: “The ‘reporter’s privilege’ greatly enhances journalists’ ability to inform the people. Infringements on this privilege will harm the public.”

We hope the NewsGuild still sees it that way and reconsiders this dangerous path. If not, we hope NewsGuild members will urge union leadership to reverse course.

Strong encryption is key to protecting newsgathering. "x-email-encrypted" by Electronic Frontier Foundation is licensed under CC BY 2.0.

Saturday is Global Encryption Day, a worldwide effort to protect end-to-end encryption and defeat proposals that try to undermine it, such as bills in the U.S. that are ostensibly aimed at protecting children online, but could end up making the internet massively less safe for everyone by discouraging end-to-end encryption.

End-to-end encryption is critically important to journalists’ ability to protect confidential sources and newsgathering materials. That’s why Freedom of the Press Foundation (FPF) is so concerned about proposed legislation that would discourage platforms from offering it. Earlier this month, FPF, the ACLU, and Americans for Prosperity organized a panel of experts from the worlds of business, domestic violence prevention, and journalism to talk to congressional staff about why encryption matters to so many different people.

One of those experts was Susan McGregor, associate research scholar at Columbia University’s Data Science Institute and co-chair of its Center for Data, Media & Society. In recognition of Global Encryption Day, we asked McGregor to answer a few questions via email about how and why encryption matters to journalists.

What are some examples of reporting that encryption helped with or made possible?

The truth is that encryption supports all kinds of reporting. While national security reporting like the Panama Papers is something that I've studied in depth and often gets a lot of attention, the reality is that encryption is at least as important for essential accountability reporting at the local and regional levels as well. Whether it’s reporters covering local and state elections, agricultural and labor practices, or smaller newsrooms setting up tiplines, encryption — and the technologies that employ it effectively — are critical to securing journalists' communications with sources and each other.

So then it’s not just reporters on the national security beat using encryption?

No, not at all. In addition to being important for protecting the information that journalists are provided by all types of sources, encryption is key to making sure that information and communications within news organizations are kept safe as well. Unfortunately, there are a growing number of examples of aggressive tactics being used against news organizations doing important local investigations, and encryption is crucial for allowing them to protect their work.

Some argue we should have a “backdoor” that lets law enforcement access end-to-end encrypted messages in emergencies or for criminal investigations that meet a certain threshold.

What is sometimes described as a "backdoor" for law enforcement is really just another word for “key.” In important ways, encryption “locks” information; “keys” are used to “unlock” that information. The problem with having multiple keys is that it’s possible for any one of them to fall into the wrong hands more easily. Though it would be great if we could trust that these extra keys would only be accessible to the “right” people at the “right” time, the reality is that even very valuable keys of this type have been stolen in the past. And of course, if the people you're investigating have access to that key, it’s going to be an even bigger problem.

If encryption is weakened or eliminated, are there other ways for journalists and confidential sources to protect themselves from surveillance?

While there are ways to protect journalist-source communications without encryption, the result would be even less effective reporting at the local and regional levels, because the effort and cost of reporting safely would go up dramatically, and many important stories simply wouldn’t be possible. The truth is that you can’t really use any digital technologies securely without encryption, so losing strong encryption would basically eliminate effective reporting on technology products and companies, for one. But even where one could theoretically replace digital tools with analog alternatives, the scope of what newsrooms could cover safely would still be reduced dramatically.

What alternatives should lawmakers consider for protecting children and others online without weakening or outlawing encryption?

Let's be clear: Encryption is necessary for protecting everyone who has or will have an online life, including — if not especially — children. Without encryption, it would be impossible for anyone to have truly private digital communications of any kind. Given the current rapid advances in AI, essentially any image or video, no matter how innocuous, can be manipulated into something harmful or exploitative — and without encryption, bad actors will have unfettered access to basically any digital image or video in existence. For anyone concerned about protecting children's safety and development, that is a terrifying prospect. Lawmakers truly concerned about protecting children need to focus their efforts on supporting methods for identifying harms to and providing support for children before they are harmed in the first place, not on approaches that wait for evidence of that harm to make it to the internet or anywhere else.

President Biden and Australian Prime Minister Anthony Albanese are expected to discuss Julian Assange's prosecution during next week's Australian state visit. Hopefully Biden and his administration will think seriously about the threat the prosecution poses to all journalists. "Julian Assange August 2014" by David G Silvers. is licensed under CC BY-SA 2.0.

Every time we talk about Julian Assange’s prosecution we hear the same thing from his critics: Assange is “not a journalist” and therefore his case has nothing to do with press freedom.

Sometimes they say it’s because he did not contextualize the documents Wikileaks published, or because of his radical political views, or because they think he’s a “hacker.” Other times it’s because of unsubstantiated claims the disclosures put American lives at risk. Still other times it’s due to allegations that — years after the events at issue in Assange’s indictment — he collaborated with Russia to help Donald Trump get elected.

Let’s assume all of that is true (it’s not). None of it is relevant under the main law being used to prosecute him, the Espionage Act. Here’s why the Assange prosecution endangers press freedom and puts all journalists at risk, even if you don’t think Assange is one himself.

The charges are about newsgathering, not Russia, Trump, and the DNC

First, we should get this out of the way: Assange’s indictment has absolutely nothing to do with the 2016 election.

The words “Russia,” “Trump,” “Clinton,” and “the 2016 election” are never mentioned. The Espionage Act charges against Assange are entirely about his obtaining and publishing documents in 2010 — more than six years earlier — from whistleblower Chelsea Manning. Those documents include war logs from Afghanistan and Iraq, State Department cables, and files on Guantanamo Bay prisoners. The government decided against indicting Assange in connection with the 2016 publication of DNC emails due to lack of evidence.

In other words, the charges are about journalistic newsgathering, not alleged Russian collusion. They’re a threat to journalists who have never talked to a Russian.

94% of the charges are about acts of journalism, not ‘hacking’

The Justice Department and Assange’s critics have taken great pains to portray Assange as a hacker rather than a journalist. Here’s what they usually leave out: The Espionage Act counts – which are 17 out of the 18 charges in the indictment – have nothing to do with hacking or a “conspiracy” to hack anything.

The government does not allege in those charges that Assange helped Manning “hack” any of the documents Manning sent to WikiLeaks. Instead, they accuse him of speaking with Manning over encrypted channels, asking her questions, convincing her to give him documents, receiving documents, holding on to them, and then publishing those documents. In other words, acts journalists engage in every day.

If Assange is convicted under any of those 17 charges it will create a standalone precedent against routine newsgathering. Convicting journalists in the future for similar activities would not require the government to also prove “hacking.”

The Espionage Act doesn’t exempt conventional journalists

The Espionage Act is a shockingly broad law that essentially criminalizes “willfully retaining” or “communicating” national defense documents to those not authorized to receive them. Whether Assange followed journalistic standards is irrelevant because the law, at least on its face, criminalizes this conduct from everyone: journalists and non-journalists alike. And despite its name, it does not require any accusations of “espionage.”

The indictment accuses Assange of illegally “inducing” or “abetting” Manning into giving him defense documents by speaking with her and asking questions. Under that theory, reporters at The Washington Post face exactly the same risk as Assange when they speak to sources, convince them to hand over documents, and ask questions. They can masterfully analyze and contextualize source documents and still be indicted for the same reasons Assange is charged with for publishing them without comment on Wikileaks.org.

That is exactly why the Obama administration decided against indicting Assange before the Trump and Biden administrations changed course. They hated WikiLeaks more than anyone, but reportedly cited “the New York Times problem” in declining to prosecute. There was no way to charge WikiLeaks without opening the door for prosecution of the nation’s most recognizable newspaper.

The only reason conventional journalists have not yet been tried under the act is because, so far, officials have opted not to go down that road — whether out of principle or fear of backlash. There have been plenty of close calls. Officials from the Nixon, Ford, Reagan, and George W. Bush administrations all considered prosecuting journalists under the act. Nixon even convened a grand jury to indict The New York Times and its reporter over the Pentagon Papers.

Ultimately, none of them pulled the trigger. But it would be foolish to assume future presidents also won’t, especially when Trump — who leads in some swing state polls — is openly threatening to jail some journalists and investigate others for “treason.” Convicting Assange would give Trump the perfect legal excuse to pursue his anti-press ambitions.

The Espionage Act is not concerned with the public good vs. ‘harm’

Many believe Assange deserves what’s coming to him because he allegedly put troops in harm’s way, despite the long history of similar government claims proving baseless. That, they claim, distinguishes him from more “responsible” journalists.

First of all, journalists cannot be required to prove their publications don’t create risks or endanger anyone in order to be protected by the First Amendment. That kind of thinking opens the door to mass censorship based on government claims of nebulous dangers.

But it wouldn’t matter if Assange definitively proves Wikileaks did not endanger or harm anyone. The government could even say in its opening statement at trial that Assange is a journalistic hero who courageously exposed heinous war crimes — and a jury could still convict him.

That’s because under the Espionage Act, neither good intentions nor positive outcomes are a defense, or even a mitigating factor. That means other journalists who publish government secrets can’t take any comfort in the fact they’re not alleged to have endangered anyone’s life (and who’s to say they won’t be falsely accused of exactly that).

It’s about journalism, not journalists

The bottom line is that the First Amendment protects acts of journalism, not just people with “journalist” on their LinkedIn profiles. The actions Assange is charged with — seeking out, obtaining, and publishing government secrets — are undisputedly journalistic acts. If you’re not convinced, ask the world’s leading newspapers.

No matter how much you might dislike Assange, his conviction would enable future administrations to target the journalists you do like. Even if your favorite journalists never end up being charged, the mere possibility will force them to tread cautiously when investigating government secrets.

As much as many may want to see Assange punished, the price of trying and convicting him is an existential threat to press freedom. It’s not worth it.

At a time when disinformation is running rampant, KOSA will cause social media platforms to remove real journalism. "Texting Congress 1" by afagen is licensed under CC BY-NC-SA 2.0.

Lawmakers in both parties and the White House are pushing the Kids Online Safety Act, or KOSA, a bill that would require online platforms to mitigate harms like anxiety and depression to minors as a solution to the alleged dangers the internet poses to teens. But more than 90 LGBTQ+, human rights, and civil liberties organizations already oppose KOSA, arguing it will make kids less safe.

It will also make kids — and everyone else — less informed, as Freedom of the Press Foundation (FPF) Deputy Advocacy Director Caitlin Vogus explains in Tech Policy Press:

Many news outlets reach people through social media, and half of Americans say that they use social media sites as a source of news at least sometimes. But if KOSA passes, platforms will strip news from their services as they try to comply with the law.

Some platforms may intentionally remove news content, which they may consider both depressing and anxiety-producing. But even if they don’t remove the news on purpose, platforms will inevitably end up taking it down by accident as they try to moderate other content. Content moderation tools are blunt instruments that don’t understand context or nuance. Platforms will erroneously flag and remove news reports about suicide, eating disorders, illegal drugs, and other topics KOSA covers.

Read more in Tech Policy Press about how KOSA will cause platforms to overremove news content and censor important information that kids need to know.

A federal court in North Carolina that entered a blatantly unconstitutional gag order on the press in February may have just done it again. federal courthouse, asheville, north carolina by Aimee Dars Ellis is licensed under CC BY-NC-SA 2.0.

A federal court in Asheville, North Carolina, may have entered one of the most egregiously unconstitutional gag orders against the press we’ve ever seen — for the second time. The order arguably purports to bar the entire media from reporting about a University of North Carolina student who was expelled over sexual abuse allegations.

We say “may” because, as discussed below, the order is ambiguous as to whether it intends to silence the press or whether only UNC is gagged. But even if the court did mean to exclude the press from the order, and inadvertently failed to say so, the effect is the same: a constitutionally intolerable chilling effect on journalists’ ability to report news without fear of punishment.

The February gag order

The student, litigating under “Jacob Doe,” is suing UNC over its handling of the abuse allegations against him. In February, a judge granted his request for a temporary restraining order that required UNC to not only refrain from discussing the case itself but to inform media outlets that they’re barred from reporting anything about Doe, including the university disciplinary proceedings against him.

Freedom of the Press Foundation (FPF) joined the ACLU of North Carolina and UCLA First Amendment law professor Eugene Volokh in filing a brief opposing the unconstitutional order. As we’ve explained time and again, the Supreme Court has made clear that prior restraints on publication, if ever permissible, require an extraordinary emergency. The court has never upheld a prior restraint on the press, even when the government claimed national security risks.

And of course, judges have no jurisdiction to order unnamed media outlets that aren’t parties to any matter before them to do anything, let alone stop the presses. Whichever outlets were “prohibited from publishing” were never afforded any hearing or opportunity to assert their rights.

At the time, the student surprised everyone by agreeing to drop the gag order just days after it was entered. We all thought that was the end of that. But then …

The October gag order

According to court documents, someone recently filed a public records request with UNC that put Doe at risk of being publicly identified. Doe responded with a motion for a restraining order virtually identical to the February one — including the gag on the media.

FPF again joined the ACLU of NC in filing a brief on Monday opposing the motion and pointing out the numerous constitutional and jurisdictional problems with broad judicial censorship of nonparty media outlets. But on Wednesday, the court granted the motion.

This time, the conclusion of the court’s order only expressly silences UNC. But the order also says it grants the student’s motion without qualification and without any carve-out for the press. And the court further says its reasoning is the same as in February, implying an intention to achieve the same result.

Journalists — like the rest of us — will be left scratching their heads in trying to figure out the court’s intentions. Does the gag order only prevent UNC from releasing information about Doe, or does it apply to the press? The journalists at FPF’s U.S. Press Freedom Tracker, for example, read the order as a prior restraint on the press, and we agree that that’s the most reasonable reading.

Every judge knows how to grant only part of a motion (i.e., “Plaintiff’s motion is granted in part and denied in part.”). When a judge omits language to that effect, despite having likely used it dozens of times in their career, it’s logical to assume the omission was intentional.

What’s next?

So what are journalists to do, now that there may be a court order purporting to bar them from reporting the news?

While it may be courageous for journalists to just ignore unconstitutional censorship orders (as some have in similar situations), it’s likely journalists will think twice before reporting on the case and risking punishment. Even if they know that judges have no power to hold unnamed, nonparty reporters in contempt, how can they trust a court that so drastically overstepped constitutional boundaries at least once, and possibly twice?

To avoid self-censorship by the press, the court should, at the very least, clarify its order so that journalists know whether or not it intended to silence them. If it didn’t, the clarification would eliminate the chilling effect, and if it did, it would allow journalists and press freedom groups to pursue legal challenges.

But the court would be better off reversing course altogether and withdrawing the order, which is improper even if it was intended to only gag UNC. The law requires UNC to comply with North Carolina’s public records laws unless the exceptions written into the law apply. Judges have no power to create their own exceptions to open records laws passed by elected lawmakers by ordering government agencies not to comply with them.

And this needs to happen fast. Normally temporary restraining orders like this one remain in effect for a short time (14 days under North Carolina law), pending a full hearing on whether to make them permanent. But the judge assigned to Doe’s case (the one who entered the unconstitutional February order) is away through at least the end of October, and the judge who issued the new gag order in his stead says it will remain in effect until he’s back.

That’s unacceptable in a case with such serious First Amendment ramifications. As the Supreme Court has explained, "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."