Freedom of the Press

Dear Friend of Press Freedom, 

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

Hands off Texas’ anti-SLAPP law

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

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

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

Sunsetting Section 230 would stifle free speech

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

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

‘Fox & Friends’ no friend to press freedom

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

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

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

Make surveillance information public

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

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

What we’re reading

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

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

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

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

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

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

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

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

Come see us in Chicago

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

How to share sensitive leaks with the press

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dear Friend of Press Freedom, 

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

Hostile takeover of press pool drowns First Amendment

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

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

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

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

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

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

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

The National Archives and the Trump administration

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

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

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

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

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

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

What we’re reading

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

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

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

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

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

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

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

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

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

How to share sensitive leaks with the press

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

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

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

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

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

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

What is a pool reporter exactly?

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

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

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

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

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

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

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

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

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

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

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

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

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

Do you have anything else to add?

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

FOR IMMEDIATE RELEASE:

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

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

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

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

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

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

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

You can read the groups’ letter here or below.

Please contact us if you would like further comment.

Dear Friend of Press Freedom, 

Press freedom is under threat, from the steps of the National Archives to the banks of the Mississippi — and it doesn’t stop there. Read the latest below.

Inexcusable censorship in Mississippi 

This week a judge granted the city of Clarksdale, Mississippi’s request to order The Clarksdale Press Register to delete an editorial raising questions about transparency within the city’s government. The order blatantly ignores the constitutional prohibition on “prior restraints” censoring the press.

Freedom of the Press Foundation (FPF) Director of Advocacy Seth Stern said in response, “It’s hard to imagine a more unconstitutional order than one compelling a newspaper to take down an editorial critical of the government. And it’s particularly ironic when the editorial in question is about government secrecy undermining the public trust. If anyone previously trusted the secretive officials involved in this censorship campaign, they shouldn’t now.” Read our statement here, and more reporting here and here. 

Trump hides migrant detention away at Gitmo

Thanks to dogged reporting, we know that as of last week, the U.S. had sent scores of migrants to its military base at Guantánamo Bay, Cuba, holding some in the same facility as terrorism suspects. Now, the government has abruptly cleared out the migrants held at Gitmo, at least for the time being. 

Much remains unknown about the Gitmo migrant operation. As FPF Senior Advocacy Adviser Caitlin Vogus wrote in The Daily Beast, “Sending deportees to Gitmo doesn’t just signal that the Trump administration is cracking down on immigration — it’s cracking down on the public’s right to know, too.” 

Journalists: Post public records without paywalls

We’ve all probably had this experience: a news story discusses a government record, but there’s no link to the document to be found. 

This used to be a minor annoyance. But the stakes are higher now, as government websites and records disappear, agencies fold haphazardly, lawless oligarchs shield their shady quasi-governmental operations from view, and the future of the National Archives is uncertain.

We called on all news publishers to do what outlets like 404 Media already do: remove paywalls for public records-based reporting or, at the very least, the public records themselves. 

Hostile takeover at National Archives erodes our right to know

The Trump administration pushed out the acting archivist for the National Archives and Records Administration earlier this week, temporarily replacing NARA’s professional leadership with Secretary of State Marco Rubio at the helm and Jim Byron, the CEO of the Nixon Foundation, as his senior adviser.

Upheaval at NARA could degrade government recordkeeping and deprive the public of access to our most important records. Our Daniel Ellsberg Chair on Government Secrecy Lauren Harper lists five important questions the public should ask about the Archives. 

Five things to know about SecureDrop

Over the past month, FPF has received significant interest in newsrooms setting up SecureDrop, our open source whistleblower submission system. To help newsrooms better understand what makes SecureDrop special and what it takes to operate it, we published a guide highlighting five things to know.

What we’re reading

CBS lawyers say they will seek Donald Trump’s personal financial information if president’s ‘60 Minutes’ lawsuit proceeds to discovery phase (Deadline). It’s mind-boggling that news outlets would even consider settling President Donald Trump’s frivolous lawsuits and pass up a chance to take discovery from a sitting president.

Paramount executives ask: Could they be sued for settling Trump’s $20 billion CBS lawsuit? (The Wall Street Journal). Something’s very wrong when liability risk is what’s stopping news broadcasters from bribing the public officials their journalists cover.

Burying the CIA's Assange secrets (The Dissenter). “Burying secrets so deep and for so long that the public does not find them is typically the CIA’s objective when they invoke the state secrets privilege.”

‘Good luck with that.’ Trump administration terminates privacy officials at agency overseeing government hiring and firing (CNN). We may reach a point where the government not only can’t respond to Freedom of Information Act requests but doesn’t know what records exist or where they are.

Trump called the press ‘the enemy of the people’. Now it’s time to defend ourselves (The Guardian). “If vital media institutions are to survive this administration, it will be because essential media, on all sides, stand up clearly and unequivocally for the right to report the news,” writes Committee to Protect Journalists CEO Jodie Ginsberg.

New declassification task force may be more bark than bite (The Classifieds). Harper’s latest newsletter explains why the House of Representatives’ “task force on the declassification of federal secrets” leaves much to be desired. 

Countering persistent threats: Freedom of the Press Foundation’s 2024 Impact Report

We’re excited to share FPF’s 2024 Impact Report, cataloguing our work to defend press freedom and promote transparency. Last year, we made improvements to SecureDrop, recorded the 2,000th incident in the U.S. Press Freedom Tracker, trained thousands of journalists in digital security, and engaged in frontline advocacy defending press freedom. Read the full report for more.  

Here’s how to share sensitive leaks with the press.

FOR IMMEDIATE RELEASE:

A judge yesterday granted the City of Clarksdale, Mississippi’s request to order a newspaper, The Clarksdale Press Register, to delete an editorial criticizing city officials. The order blatantly disregards the constitutional prohibition on “prior restraints” censoring the press.

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

It's hard to imagine a more unconstitutional order than one compelling a newspaper to take down an editorial critical of the government. And it's particularly ironic when the editorial in question is about government secrecy undermining the public trust. If anyone previously trusted the secretive officials involved in this censorship campaign, they shouldn't now.

“The underlying lawsuit here appears frivolous for any number of reasons. But even in constitutionally permissible defamation lawsuits, it's been well-established law for decades that the remedy for plaintiffs is monetary damages, not censorship orders.

“This case should not be viewed in isolation — it's part of a nationwide increase in baseless censorship orders, known as ‘prior restraints.’ But this one is uniquely egregious. City Attorney Melvin D. Miller II and all other lawyers involved in asking a court to silence the press should face real consequences, as should Judge Crystal Wise Martin, who rubber-stamped their request. Judge Martin shouldn’t be adjudicating parking tickets, let alone First Amendment cases.

Please contact us if you would like further comment.

Thanks to dogged reporting and unnamed sources, we know that as of last week, the Trump administration has sent nearly 100 migrants to the U.S. military base at Guantánamo Bay, Cuba, where at least some are being held in the same military detention facility as terrorism suspects.

Yet much remains unknown by the press and the public about the migrant operation at Gitmo. As Freedom of the Press Foundation Senior Advocacy Adviser Caitlin Vogus wrote in The Daily Beast, the government’s detentions at Gitmo are happening largely out of sight of the American people — seemingly by design.

Vogus wrote:

“We shouldn’t have to rely on reporters’ tenacity and commitment to the fourth estate to gain basic information about what the government is up to. Sending deportees to Gitmo doesn’t just signal that the Trump administration is cracking down on immigration—it’s cracking down on the public’s right to know, too.”

Read the whole op-ed here.

We’ve all probably had this experience at some point: a news story discusses a government document the reporter has managed to obtain and that we’d like to read as well. But, after scouring the article for a link to said document, it becomes clear that it’s not there.

This used to be a minor annoyance. Why not let people see public source material for themselves? No matter how thorough journalists may be, they often don’t have room to tell us all the document might. Plus, as law professor Sarah Fackrell noted, reporters might miss something about a court filing a lawyer would pick up on, something about a public health document a doctor might catch, and so on.

But the stakes are higher now, as government websites and records disappear, agencies are haphazardly folded, lawless oligarchs shield their shady quasi-governmental operations from view, and the future of the National Archives is uncertain.

It’s on all of us to preserve the public domain. Everyone should be getting into the habit of archiving any government record they access online so it’s not lost. But the press should help lead the charge. Or, at the very least, when they obtain government documents, they should let news readers share the wealth.

That means news stories should include links to public documents (hosted somewhere other than government sites from which they might disappear). It also means not paywalling them.

Ideally, we’d like to see news outlets not paywall any government records-based reporting (if a small independent outlet like 404 Media can do it, others can too). It’s a problem that misinformation is free and real news isn’t. But if that’s not economically feasible, at least let people access the records themselves for free. They’re public records, after all.

News isn’t just any business, it’s a constitutionally protected public service. And the moment calls for the Fourth Estate to do whatever it can to preserve transparency.

News outlets could even take it a step further: proactively post all newsworthy public records they find during their reporting, whether online, through the Freedom of Information Act, or otherwise. We’re not asking them to forfeit scoops: They can wait till they’ve either reported on the records or decided they’re not going to anytime soon.

We get it: News outlets expend significant resources in pursuit of government records, sometimes litigating FOIA cases for years before finally getting what they’re after. Why should people get to piggyback off those efforts for free?

Well, because news isn’t just any business, it’s a constitutionally protected public service. And the moment calls for the Fourth Estate to do whatever it can to preserve transparency.

But beyond that, what’s to say that sharing public records is bad for business? What’s more likely to entice someone to subscribe: brief previews of articles that offer no assurance that the rest is worth reading, let alone paying for? Or the clearly newsworthy — but often dense — records the articles explain?

Most people don’t want to read, synthesize, and contextualize public records themselves — they rely on journalists for that. If journalists show them what records they’re digging up, they might gain respect for the work reporters do and want to know what they have to say about them.

Over the next few years, a lot of people and industries will have to put aside assumptions and norms from a bygone era and do what’s needed to preserve American democracy (or at least a record of what once was). Sharing public records with the public is one low-cost, low-risk strategy for journalists to do their part. Who knows, it might even be profitable.

Dear Friend of Press Freedom, 

Happy Valentine’s Day. Here are the topics we’re keeping in our hearts this week.

First Amendment law legend: ‘Fight back’

James Goodale, former vice chairman and general counsel of The New York Times, has seen it all when it comes to press freedom. He was involved in all four cases that the Times took to the Supreme Court and led its resistance to the Nixon administration’s war on the press, most notably in the historic Pentagon Papers case.

We sat down with Goodale to discuss the Trump administration’s multipronged attacks on journalism, particularly by extracting settlement payments from media outlets. Read more here. 

Hypocrisy as deep as the Gulf of Mexico

The same Trump administration that issued an executive order on its first day to restore free speech spent the week barring The Associated Press from executive order signings because it writes “Gulf of Mexico” despite Trump’s “Gulf of America” stunt.

We told The Washington Post that “punishing journalists for not using words the government likes is an egregious violation of the First Amendment. Trump’s team knows that, notwithstanding their ridiculous justifications, and clearly doesn’t care.”

That being said, we also told the Post, we hope “news outlets Trump punishes by restricting their access to briefings, signings and the like will take the opportunity to double down on hard-hitting investigations that don’t require access to ceremonies and spin sessions.”

National Archives under threat 

We helped lead a bipartisan coalition protesting both the unwarranted firing of the archivist of the United States, Colleen Shogan, and the possibility she may be replaced by someone unqualified to lead the National Archives and Records Administration.

NARA plays a key role in making sure agencies preserve records. The public needs to know now more than ever that it has qualified leadership. Otherwise, the government will have an easier time keeping secrets. Read more here.

UK spy order imperils First Amendment

New revelations by the Post about a secret spying order in the U.K. should alarm journalists everywhere. The Post reported that the U.K. government obtained a secret order requiring Apple to create a “backdoor” that allows security officials to retrieve all content uploaded to the cloud by any Apple user worldwide. 

The order “requires blanket capability to view fully encrypted material.” As others have pointed out, once the U.K. claims this authority, it will be a hop, skip, and a jump to other countries doing the same. It’s not hard to imagine what Russia, China, or the Trump administration would do with this vast spying power. Read more here.

Privacy policy update

We’ve updated FPF’s privacy policy to include a new data processing provider and to refresh our website hosting information. See the updated policy for details. 

What we’re reading 

How Elon Musk and the right are trying to recast reporting as ‘doxxing’ (The New York Times). “If living in the U.S. in 2025 means you can expect a criminal investigation for criticizing the government, we’re all in a whole lot of trouble,” said Will Creeley of the Foundation for Individual Rights and Expression.

When ICE raids go awry, reporting gets blamed (Columbia Journalism Review). Reporting on what Immigration and Customs Enforcement officers do  in public isn’t “leaking.” The government loves to claim there’s no privacy in public when it wants to surveil you, but not when it wants to spend your money on ICE raids. 

Casino mogul Wynn asks US Supreme Court to revisit Times v. Sullivan defamation rule (Reuters). We can’t imagine how lowering the bar for defamation claims could ever come back to bite conservative media. You’d think an ex-casino boss would be a smarter gambler.

FCC investigating San Francisco radio station over coverage of ICE raids (CNN). We told CNN that government regulators “don’t get to decide what news the public is interested in hearing about.” 

2024 is deadliest year for journalists in CPJ history; almost 70% killed by Israel (Committee to Protect Journalists). “At least 124 journalists and media workers were killed last year, nearly two-thirds of them Palestinians killed by Israel.”

Judge: Presidents may be immune from prosecution but not transparency (The Dissenter). A federal judge ruled that the FBI’s reasons for hiding information about its classified documents case against Trump no longer apply. 

A plea for institutional modesty (Columbia Journalism Review). “You are not the first chairman to use the Federal Communications Commission as a pulpit ... But there is one thing you should keep in mind: you don’t have as much power as you may think,” Robert Corn-Revere of FIRE, and former FCC chief counsel tells FCC Chair Brendan Carr.

Trump accused of leading a ‘multipronged’ attack on US media (Al Jazeera). CBS claiming it was legally compelled to turn over outtakes of its Kamala Harris interview “is a head-scratcher,” we told Al Jazeera. “There is a legal system where you can resist unconstitutional demands from the government.”

Bill would give Wyoming strongest laws in country to fight frivolous defamation lawsuits (Cowboy State Daily). Even the reddest states’ legislatures understand there’s nothing partisan about protections against anti-speech lawfare.

Here’s how to share sensitive leaks with the press.

New revelations by The Washington Post about a secret spying order in the U.K. should ring alarm bells for journalists everywhere.

On Friday, the Post reported that the U.K. government obtained a secret order requiring Apple to create a “back door” that allows security officials to retrieve all content uploaded to the cloud by any Apple user worldwide. The order doesn’t just require Apple to turn over data from a specific account for a specific criminal case; rather, it “requires blanket capability to view fully encrypted material.”

The target of the order is reportedly Apple’s Advanced Data Protection setting, which uses end-to-end encryption to protect certain data stored in a user’s iCloud account, including notes, photos, and iMessage backups.

If you’re a journalist who follows digital security tips from Freedom of the Press Foundation (FPF), Advanced Data Protection should sound familiar. FPF and other experts frequently recommend that journalists enable it to protect against data breaches, hacking, and government orders demanding journalists’ data. Because Advanced Data Protection end-to-end encrypts more data stored in iCloud, Apple simply doesn’t have access to it and cannot turn it over when governments come knocking or criminals break down the doors.

Why would journalists in the U.K. need to worry about legal orders for their iCloud data? Perhaps because of the U.K.’s excessively harsh secrecy laws that have been used to target the press. Politicians are constantly trying to expand those laws in ways that would criminalize whistleblowing and journalism. Not to mention the fact that the U.K. has illegally spied on journalists to try to uncover their confidential sources in the recent past.

And it’s not just U.K. journalists who need to be concerned. As others have pointed out, once the U.K. claims this power, it will be a hop, skip, and a jump to other countries — including authoritarian ones or ones on their way there — demanding similar powers. It’s not hard to imagine what Russia, China, or the Trump administration would do with a built-in back door that allows them to spy on the encrypted iCloud backups of journalists, dissidents, and government critics.

The U.K. could also use these powers to target journalists in other countries. According to news reports, the U.K. government could issue demands for the data of any iCloud user, not just U.K. citizens, and Apple would be legally prohibited from telling the targeted user about the order.

In theory, then, the U.K. could compel Apple to turn over the iCloud data of journalists living and working in other countries with stronger protections for freedom of the press. The journalists may not know their data has been demanded, so they wouldn’t be able to fight back in court.

It’s not hard to imagine what Russia, China, or the Trump administration would do with a built-in back door that allows them to spy on the encrypted iCloud backups of journalists

That will leave journalists in the U.K. and around the world much less able to protect their confidential data, including the identities of confidential sources. That’s a huge problem for the public’s right to know. Sources who need anonymity won’t be as likely to come forward if they know that governments can glean their identities by spying on journalists.

Case in point: This very news story. We only know about the secret U.K. surveillance order because unnamed sources spoke to journalist Joseph Menn at The Washington Post. U.K. law makes it a crime to reveal it.

If the U.K. government could go digging through Menn’s encrypted iCloud data (or other encrypted services, should the U.K. expand its back door demands) to try to find out his sources’ identities so it can criminally prosecute them, those people will be much less likely to blow the whistle.

Legal demands for data aren’t the only concern for journalists as a result of the U.K.’s order. Bad actors may also try to take advantage of any back door built for the U.K. government by targeting it for hacking. That’s exactly what China did to the legal back door built into the U.S. telecommunications system, which inspired the FBI to encourage Americans to (surprise!) use encryption. The result is a loss of security for journalists and everyone else who relies on Advanced Data Protection.

But foreign governments and hackers may not even need to come in the back door as a result of the U.K. order. Apple is reportedly likely to stop offering Advanced Data Protection in the U.K. rather than comply with the order and break its promise to users that their iCloud data is secure. That’s the right move, and it’s admirable that Apple is refusing to lie to its U.K. users. But it also means that the U.K. government may just have ensured that its own citizens don’t have access to the most secure way to store their iCloud data.

All of this to say, the U.K. is in cloud cuckoo land if it really believes this order will make its citizens safer. The U.K.’s demand that Apple break iCloud encryption by adding a back door is a gift to hackers and dictators around the world, at the expense of U.K. citizens and journalists everywhere.

James Goodale, former vice chairman and general counsel of The New York Times, has seen it all when it comes to press freedom. He was involved in all four cases that the Times took to the Supreme Court — ranging from libel law to reporter’s privilege — and led the paper’s fight against the Nixon administration’s war on press freedom, most notably in the historic Pentagon Papers case.

We recently sat down with Goodale to discuss the Trump administration and its multipronged effort to stifle the rights of journalists, particularly by extracting settlement payments from media outlets baselessly sued by Donald Trump. This interview has been edited for brevity and clarity.

Even before it handed over its “60 Minutes” transcript to the Federal Communications Commission, there’s been talk that CBS will settle Trump’s $10 billion lawsuit. What does it mean for the media and press freedom if CBS decides to settle the suit?

If CBS decides to settle, it will be an absolute disaster for the press. It would be one more domino falling down, handing Trump an undeserved victory against the press. I wrote an article for CJR about ABC cowardly setting its case in which George Stephanopoulos said “rape” instead of “sexual abuse,” but since then, Facebook has settled Trump’s even more outlandish suit, and for what? CBS should be standing up and fighting Trump. If I’m them, I’m not letting Trump make me look foolish. Because if it happens, there will be no end. Trump will bring lawsuits against every part of the media, and it will put pressure on everyone else to settle.

Let me make clear that the lawsuit is a bunch of nonsense. Trump’s legal theory doesn’t exist anywhere in the law, and so not only is the settlement bad in terms of putting the onus on everyone else to settle, but the entire premise of the lawsuit is ridiculous. News outlets are allowed to edit interviews! Hard to believe it even has to be said.

To your point, it’s not a traditional libel suit like in ABC’s case. They are using this fairly novel and dubious theory essentially saying that interview editing violates consumer protection laws. Have you ever seen anything like that in your time as general counsel of The New York Times?

The suit is from Mars. To my knowledge, I’ve never seen a suit brought like this one where editing is being criticized as constituting consumer fraud. It has no basis in law as far as I’m concerned, and what’s going to happen — if, in fact, the case is settled — is there will be more consumer fraud cases every time the media edits an interview, not only with Trump, but other politicians. And the First Amendment will suffer.

“The suit is from Mars.”

You wrote in your CJR article about how you led the efforts by the press to push back against the Nixon administration in the early 1970s, when it was subpoenaing journalists, using government agencies to retaliate against news outlets, and even trying to censor them in the Pentagon Papers case. What was your response back then and what’s changed?

Well, first of all, the response by the press as we speak has been pathetic. There’s no spokesperson for the press who is out there leading the charge and coordinating a united front with all the news outlets on the same page.

Back in the Nixon administration, I first took that on, but there were others who willingly stood up and fought. CBS is actually a great example. Its president at the time was a gentleman named Frank Stanton. Congress was trying to subpoena outtakes from a CBS news interview. Stanton told Congress he would not under any circumstances turn over outtakes of any of its shows. Now compare that with what CBS is doing now. It has taken all its material and delivered them to the FCC without so much as a peep, and made no claims of confidentiality with respect to the editing process.

Now you asked me what happened way back then. If that happened, I would’ve been screaming and shouting from the rooftops, but thankfully I didn’t have to. Frank Stanton stood up and was able to effectively persuade Congress to revoke the request for the subpoena.

Now what’s changed is that we have a master of media, Trump, who despite everything you can say about him, is still an absolute genius with respect to attracting attention to himself. So someone has got to stand up to him who also attracts attention. If not, there’s no end of the damage he can cause.

“The giant corporations should make it their business to defend the First Amendment, or stay the heck out of the news business altogether.”

When you look at ABC and CBS — maybe this was somewhat of the case back then, but it is surely more of the case now — they aren’t owned by companies that just own media outlets. They are gigantic conglomerates in which news organizations are a small piece of the pie. And they seem to be making decisions based solely on their larger corporate interests. What’s the impact on the First Amendment when they have relatively little economic interest in defending freedom?

Well, the economy obviously is changing all the time and has changed a lot since my days way back then. But the way they should look at it is: The interest in the First Amendment is an economic issue at its core. It’s for free expression, which touches on everything they do. Ultimately, you can’t have a media company, or any company, that doesn’t have an ability to express itself freely. To look at it purely in dollars and cents will be the end of our protections as an industry that holds the powerful to account. The giant corporations should make it their business to defend the First Amendment, or stay the heck out of the news business altogether.

Dear Friend of Press Freedom,

We’re taking action against alarming attempts to stifle the press from state and federal adversaries. And don’t forget: we have tools and advice for how to safely share leaks with the press. Read the latest here.

Prosecutor puts DOGE ahead of First Amendment

Freedom of the Press Foundation (FPF) and a coalition of rights groups sent a letter to interim U.S. Attorney for the District of Columbia Edward R. Martin Jr. demanding he clarify statements suggesting he would prosecute critics of Elon Musk and his Department of Government Efficiency. 

“There’s nothing more central to the First Amendment than the press and public’s right to criticize those carrying out controversial government work, harshly and by name,” we said in a statement. “A sitting U.S. attorney threatening to prosecute this constitutionally protected conduct is highly alarming — even un-American.” Read the statement and letter here.

Judges: Stop facilitating Trump’s extortionate settlements 

Companies like ABC and Meta aren’t the only ones to blame for capitulating to President Donald Trump by settling his SLAPP suits. So are the judges who bless these extortionate agreements. Judges don’t have to rubber-stamp settlements when there are glaring indicators of impropriety.

“It violates public policy — embodied by the First Amendment — for the courts to facilitate bribes paid by media publishers to presidents,” writes FPF Advocacy Director Seth Stern. “All of this is out in the open, and judges should not bury their heads in the sand when asked to sign off on it.” Read more here. 

Freelance journalists are journalists 

The Utah Legislature recently changed its press credential rules to exclude “blogs, independent, or other freelance journalists,” and one journalist alleges in a new lawsuit that the change was made to retaliate against him specifically.

The timing seems to support that claim, but even if he’s wrong about the legislature’s motives, the new rules show a troubling disregard for press freedom. “The Legislature should be celebrating the enhanced coverage that independent journalists bring to the statehouse and finding ways to accommodate them,” writes FPF Senior Advocacy Adviser Caitlin Vogus in The Salt Lake Tribune. 

USAID’s records must survive — even if the agency doesn’t

In a dubious legal move, the Trump administration is trying to shutter the U.S. Agency for International Development. But the widespread coverage of USAID’s future misses something important: the status of its records and the processing of its Freedom of Information Act requests.

These should not be secondary concerns. Our Daniel Ellsberg Chair on Government Secrecy Lauren Harper has the full story. And for more secrecy news, subscribe to Harper’s newsletter, The Classifieds.

What we’re reading

This is not a moment to settle with Trump (The New York Times). “Courage is contagious, but cowardice and cravenness can be, too. Soon it may be unusual and even more perilous for a news organization to protest when it is accused by the president of reportorial recklessness, however outlandish the charge might be,” Jameel Jaffer writes.

FCC launches investigation into KCBS after host reveals details of ICE agents in area (Barrett Media). The Federal Communications Commission cannot deem constitutionally protected journalism outside the "public interest" whenever it wants to censor the press. It’s an even more slippery slope with an unprincipled partisan hack like Brendan Carr in charge.

Judge tosses SF lawsuit that spurred Streisand Effect for tech exec’s arrest (Gazetteer San Francisco). While news giants with armies of expensive lawyers capitulate to the powerful, independent journalists represented by rights organizations and law professors fight back and win. Congratulations to Jack Poulson.

Protecting free speech in Texas: We need to stop SB 336 (Electronic Frontier Foundation).  Texas needs a strong anti-SLAPP law. If you live there, call or email your state representatives or the senators on the Senate Committee on State Affairs today and urge them to vote “no” on SB 336. It would weaken protections against anti-speech lawsuits by billionaires and politicians.

Justice Dept. says it will not bring charges in investigation of Project Veritas (The New York Times). The theory that publishers could be prosecuted for possessing or transporting documents their sources stole was constitutionally problematic. It's good this case won't set a bad First Amendment precedent, although we very much doubt that's why the Trump DOJ dropped it.

CIA analyst’s plea deal adds further intrigue to Espionage Act prosecution (The Dissenter). Plea deals requiring defendants to let the intelligence community supervise their communications with the press seem rather problematic under the First Amendment, no matter who the defendant is. 

Fox sues LinkedIn co-founder Hoffman for litigation funding info (Bloomberg Law). We’re for full transparency when it comes to billionaires funding defamation cases against media outlets, no matter who the billionaire is or who the media outlet is.

How to share sensitive leaks with the press

We’re just going to leave this one here for the foreseeable future. 

Lawmakers in Utah are facing a new First Amendment lawsuit after denying longtime Utah journalist Bryan Schott press credentials to cover the statehouse. Represented by the Institute for Free Speech, Schott and his news outlet Utah Political Watch claim that the move is retaliation for his critical coverage of state lawmakers.

But that’s not all. As Freedom of the Press Foundation (FPF) Senior Advocacy Adviser Caitlin Vogus writes in The Salt Lake Tribune, the legislature has gone a step further and banned all independent and freelance journalists from receiving press credentials.

Vogus writes:

“Maybe lawmakers don’t believe freelancers who publish online are journalists. But the Supreme Court disagrees. So does Utah Sen. Mike Lee, who last Congress co-sponsored a federal shield law that would have protected freelance and independent journalists from being forced to reveal their sources. Utah’s own reporter-source shield law also covers independent reporters.

“More importantly, excluding independent journalists reduces Utahns’ access to information. These days, people across the political spectrum get their news through social media, podcasts, newsletters and even blogs. But Utah’s new policy would bar everyone from Joe Rogan to Paul Krugman from receiving a press credential.”

Read the whole op-ed here.

Plenty of commentators — myself included — have scolded ABC and Meta for settling Donald Trump’s frivolous lawsuits to curry favor with the president, with CBS reportedly considering doing so. The criticism is deserved. How are journalists supposed to cover Trump’s rampant corruption when their employers participate in it?

But they’re not the only ones to blame for capitulating to Trump. So are the judges who bless these extortionate agreements. Judges, after all, don’t have to blindly sign off on litigants’ settlement agreements when there are glaring indicators of impropriety. Settlement agreements, like any other contract, can be voided if they are contrary to public policy.

Judges are entitled — maybe even obligated to — to inquire about, scrutinize, and ultimately reject settlements when there’s reason to believe they were procured via fraud, duress, collusion, or coercion, among other reasons.

Judges exercise these powers sparingly for multiple reasons, some good (not wanting to substitute their judgment for that of private parties) and some bad (not wanting to pass up an opportunity to clear a case from their docket). And they’re particularly reluctant to interfere in cases involving sophisticated parties with ample resources and high-quality legal representation. Disputes between billionaire presidents and gigantic corporations would ordinarily fit that bill.

But these are not ordinary times. In the case of CBS, for example, it’s been widely reported that the network is considering settling in hopes the Trump administration will look favorably upon its parent company’s merger plans. That’s despite the obviously frivolous nature of Trump’s legal theory that CBS violated consumer protection law by editing an interview for time.

Not only that, but CBS just produced a transcript of the interview that definitively shows there was nothing nefarious about the edits (it should be obvious but maybe it bears emphasizing: News outlets have the First Amendment right to edit interviews as they see fit). Since when do multibillion-dollar corporations settle cases when the only relevant piece of evidence exonerates them?

Or take Meta’s settlement, which came after its founder Mark Zuckerberg’s MAGA makeover and Trump ass-kissing tour. The $25 million settlement — for suspending Trump’s Facebook account after his role in the Jan. 6, 2021, insurrection — makes no sense as anything but a protection racket, given that the Supreme Court upheld social media platforms’ First Amendment rights to moderate content just last year. The Wall Street Journal also reported that Trump had made clear to Zuckerberg that he needs to pay up if he wants to be brought into the tent.

If a compromised Supreme Court can come up with a way to place presidents above the law, scrupulous trial judges can find a way not to facilitate bribery and extortion.

ABC’s settlement is the least egregious of the three (and that’s saying something). Even though the case was very defensible as a matter of defamation law, ABC’s characterization of the sexual abuse verdict against Trump as “rape” was arguably not entirely accurate. But $15 million? On what planet does one lose that much money because people believed they were a rapist as opposed to just a regular ho-hum sexual abuser? Not to mention that the money went to a potential slush fund, not necessarily a presidential library as many reported.

All of these settlements raise glaring red flags that courts should not acquiesce, especially when the Fourth Estate is involved.

It violates public policy — embodied by the First Amendment — for the courts to facilitate bribes paid by media publishers to presidents (especially when the purpose of the bribe is to ease the path to media consolidation that itself may be contrary to the public interest). All of this is out in the open, and judges should not bury their heads in the sand when asked to sign off on it.

In fact, judges don’t even have to let these cases get to a point where they’d need to scrutinize settlements — they can dismiss them outright as a sanction against the attorneys who bring them. They can also impose monetary sanctions to discourage further abuses.

Court rules, like Rule 11 of the Federal Rules of Civil Procedure and its state counterparts, allow judges to sanction lawyers who pursue legally baseless lawsuits, especially for improper purposes (like extorting defendants into paying the president to clear mergers). They can do this either at the request of a party to the case or on their own initiative.

Again, judges rarely exercise these powers, purportedly to avoid discouraging litigants from pursuing their rights or asserting novel legal theories. Lawyers frequently advise clients victimized by frivolous lawsuits not to bother seeking sanctions — not only is it seen as a waste of time and money, but some judges consider such requests irritating or distasteful. Essentially, they see lawyers as members of a fraternity that shouldn’t rat each other out.

But judges shouldn’t hide behind procedures and norms while the Constitution they’re sworn to uphold burns in their courtrooms.

I know I’m making this sound simpler than it is. This isn’t an exhaustive legal treatise. Judges have law clerks who can help them fully understand the scope of their powers to safeguard democracy in this moment. But they need to at least try.

If a compromised Supreme Court can come up with a way to place presidents above the law, scrupulous trial judges can find a way not to facilitate bribery and extortion.

FOR IMMEDIATE RELEASE:

On Tuesday, a coalition of civil society groups sent a letter to interim U.S. Attorney for the District of Columbia Edward R. Martin, Jr. and congressional leaders, demanding that Martin clarify public statements suggesting he would use his public office to threaten critics of Elon Musk and the new Department of Government Efficiency, and also to reaffirm his duty to uphold the First Amendment during any DOGE-related investigations.

On Sunday, a Wired report listed the names of six DOGE staffers who may be rooting through sensitive government systems and data. The following day, Musk responded to a user on the social media platform X, who also listed the staffers’ names, by saying, “You have committed a crime.” The user was suspended from the platform, which is owned by Musk. That same day, Martin tweeted a letter asking Musk to “utilize” him and his staff to protect DOGE and promising to pursue legal action against anyone who impedes the agency’s work.

“There‘s nothing more central to the First Amendment than the press and public‘s right to criticize those carrying out controversial government work, harshly and by name,” said Seth Stern, director of advocacy at Freedom of the Press Foundation (FPF). “A sitting U.S. attorney threatening to prosecute this constitutionally protected conduct is highly alarming — even un-American. So are his threats against those who may protest DOGE. If Martin does not understand why such threats are so problematic, he should not be serving in such an important position in our government. He should clarify that he did not intend to threaten to prosecute people who named DOGE employees and that, going forward, he will not assert dubious legal positions to curry favor with Musk or President Trump.”

“It would be deeply alarming for Martin to turn the office of the U.S. Attorney for the District of Columbia into a DOGE defense squad,” said Emily Peterson-Cassin, corporate power director at Demand Progress Education Fund. “A public servant should not abdicate their First Amendment duties and use their office to target and intimidate journalists and peaceful protesters at the behest of the world’s richest man. Martin has already shown willingness to retaliate against public servants by firing January 6th prosecutors, so we need straight answers. Does Ed Martin follow the Constitution or Elon Musk?”

The groups’ letter reminds Martin that it is not a crime to identify or criticize individuals openly conducting government work. The letter also demands that Martin specifically identify the kinds of “targeting” of DOGE staff he was referring to in his letter to Musk, commit to not go after journalists and others who legally identify and discuss government workers by name, and also acknowledge that criticisms of DOGE and peaceful protests of the agency are protected by the First Amendment.

The letter was spearheaded by Demand Progress Education Fund and FPF, and has been signed by more than thirty groups.

You can read the letter here or below. Please contact FPF or Demand Progress if you'd like further comment.

We’ve said before that by extracting a guilty plea to Espionage Act violations from WikiLeaks publisher Julian Assange, the Biden administration set up its successor to punish journalists who expose government secrets. But President Donald Trump’s also got oligarchs to protect.

Not to worry — former President Joe Biden handed him a road map to censoring corporate secrets too, by prosecuting Florida journalist Tim Burke under computer crime laws for exposing Fox News outtakes of Ye’s unaired, antisemitic rant to Tucker Carlson.

Our Director of Advocacy Seth Stern explains in Lawfare that Burke’s prosecution under the Computer Fraud and Abuse Act and federal wiretap laws “could create new precedent that opens the floodgates for the second Trump administration to prosecute any digital journalist who publishes news that authorities would rather keep secret by simply asserting that they ‘exceeded their authorization’ by finding what others failed to hide.”

If any whistleblowers were considering leaking documents that expose malfeasance by the Trump administration, they can’t be blamed for thinking twice after Thursday’s confirmation hearing for Director of National Intelligence nominee Tulsi Gabbard.

It’s been nearly 12 years since Edward Snowden and journalists at The Guardian and The Washington Post exposed the National Security Agency’s illegal mass surveillance of Americans. Watching Thursday’s hearing, you’d be forgiven for thinking it’s been 12 minutes.

Over and over and over for nearly three hours, instead of focusing on the plenty of legitimate reasons to be skeptical of Gabbard’s nomination, senators interrogated her about Snowden (who is a member of our board of directors) and his decade-plus-old leaks. When they weren’t grilling her about Snowden, they demanded she explain her recently rescinded opposition to Section 702 of FISA, as though it’s scandalous to have once questioned domestic spying powers that a court found unconstitutional just last week.

Did they ask Gabbard how she would ensure intelligence agencies follow the Constitution and the law when it comes to surveillance? No. Did they question her about whether she believed it’s appropriate for the government to mislead the Supreme Court about its surveillance practices? Nope. Maybe they asked if she would promise not to lie to Congress when asked about the NSA collecting data on Americans? Wrong again!

Instead, senators were laser focused on demanding that Gabbard label Snowden a “traitor.” They never specified what sort of treason they believe he engaged in by working with award-winning journalists to tell Americans their government was illegally spying on them. Nor did they show any curiosity whatsoever about how Gabbard would limit the illegality that future “traitors” might expose.

A dangerous time for Democrats to attack whistleblowers

In addition to repeated questioning about Snowden by Republican senators, Democratic Sens. Mark Warner and Michael Bennet homed in on Gabbard’s position on Snowden.

“Do you believe, as the chairman of this committee believes, as the vast majority of members of our intelligence agencies believe, that Edward Snowden was a traitor to America?” asked Bennet, ignoring the fact that most Americans, no matter their party, gender, income, education, age, and income, considered Snowden a whistleblower shortly after his revelations.

Bennet then spun into an outraged rant after Gabbard refused to answer with a simple “yes or no.” “This is not a moment for social media,” he declared, then launching into a performance clearly designed to go viral on social media. By Thursday night, he’d posted a clip of his repeated badgering of Gabbard about Snowden to his account on the social platform X.

Meanwhile, Warner spent his questioning time proclaiming that Snowden “isn’t a whistleblower” and deserves to “rot in jail.” He asked Gabbard if she stood by her comments calling Snowden a “brave whistleblower” and then talked over her as she tried to answer the question.

It’s long been a national embarrassment that Congress is more interested in punishing those who expose wrongdoing than it is in fixing it. They’re not mad at Snowden for harming America, they’re mad at him for interfering with their illegal spying program.

Now, Democratic senators have added treason charges, which are punishable by death in America, to the list of things that whistleblowers will have to worry about under the Trump administration.

But for Democratic senators, in particular, to be attacking whistleblowing at this moment in time is not just embarrassing. It’s downright dangerous.

Democratic senators are sitting idly by as President Donald Trump issues wildly illegal orders and dismantles internal whistleblowing mechanisms left and right. More and more information is classified, often to protect the government from embarrassment. Will Democrats be so quick to condemn people for leaking information to the press and the public about crimes and wrongdoing by the Trump administration?

Or maybe they won’t have to condemn leakers during the Trump years because fewer will come forward, thanks to Democrats’ reckless comments about Snowden and insistence that internal whistleblowing is the only acceptable path, even as Trump dismantles the systems that enable it. People will surely think twice about revealing information over the next four years when even the Democrats in Congress are sending the message that they don’t support whistleblowers.

After all, whistleblowers who give national defense information to the press already face extremely high risks of prosecution under the Espionage Act, a broken law that, despite its name, has often been used to punish conduct that has nothing to do with spying.

Under the Espionage Act, whistleblowing and treason are treated the same — there is no opportunity for a leaker to explain that they leaked documents out of conscience and not to aid America’s enemies. That means while Snowden has to listen to grandstanding senators call him a traitor in the court of public opinion, he’d never have the opportunity to explain why he’s not one to a court of law.

Some lawmakers — including Gabbard when she was in Congress — have suggested reforming the law to limit it to actual espionage. Sen. Susan Collins — supposedly one of the “moderate” Republicans willing to rein in Trump — attacked Gabbard for that position during her confirmation hearing as well.

Now, Democratic senators have added treason charges, which are punishable by death in America, to the list of things that whistleblowers will have to worry about under the Trump administration. Well done.

Dear Friend of Press Freedom,

Here’s what we’re working on this week. 

Trump attacks oversight, Dems attack whistleblowers 

After Trump’s mass firing of inspectors general to silence internal whistleblowing, our Daniel Ellsberg Chair on Government Secrecy, Lauren Harper, explained that whistleblowers would be left with no choice but to go to the press. She wrote that Congress should reform the Espionage Act so they can do so without fear of retribution. 

Senate Democrats had a different response. They attacked Tulsi Gabbard — Trump’s pick for director of national intelligence — for refusing to call whistleblower and Freedom of the Press Foundation (FPF) board member Edward Snowden a traitor, cutting her off when she attempted to explain that his revelations exposed illegal surveillance under a domestic spying law that a court found unconstitutional just last week. Our Senior Advocacy Adviser Caitlin Vogus wrote about why now is a particularly dangerous time to signal hostility to whistleblowers. 

We also joined Defending Rights & Dissent and others in an open letter explaining that, while there are legitimate reasons to oppose Gabbard’s nomination, her past criticism of domestic surveillance isn’t one of them. 

A perfect setup to punish journalism

And speaking of Democrats shooting themselves in the foot …

We’ve said before that by extracting a guilty plea to Espionage Act violations from WikiLeaks publisher Julian Assange, the Biden administration set up its successor to punish journalists who expose government secrets. But President Donald Trump’s also got oligarchs to protect. 

Not to worry — former President Joe Biden handed him a roadmap to censoring corporate secrets too, by prosecuting Florida journalist Tim Burke under computer crime laws for exposing Fox News outtakes of Ye’s unaired, antisemitic rant to Tucker Carlson. Our Director of Advocacy Seth Stern explains in Lawfare. 

Our executive director, Trevor Timm, also went on The Daily Beast’s podcast “The New Abnormal” to talk more about the Biden administration’s press freedom failures. 

Patel would mark a new low for FBI

In a 2023 podcast interview, Kash Patel threatened to “come after the people in the media” and target them “criminally or civilly.” We joined a letter calling on senators to ask Patel about his plans to prosecute journalists at his confirmation hearing for FBI director, among other things.

Press-specific issues didn’t get the attention we would’ve liked at the hearing, but Patel did try to walk back his comments about weaponizing the FBI against Trump’s perceived enemies. We don’t believe him, and we oppose his confirmation as FBI director — as should anyone who values press freedom. We said in a statement that “Senators who vote for Patel’s confirmation will be to blame if and when he supersizes the FBI’s sordid history of targeting journalists, protesters, academics, and activists.” Read more here. 

What we’re reading 

F.C.C. chair orders investigation into NPR and PBS sponsorships (The New York Times). We told the Times that FCC Chair Brendan Carr’s claim that NPR and PBS broke sponsorship disclosure rules is an obvious pretext to attack their funding and independence. Carr was appointed to do Trump's censorial bidding. All his moves should be viewed through that lens.

Baseless SLAPP suits threaten the speech rights of all Americans (The Dispatch). “Consumer fraud statutes have no place in American politics or in regulating the news. But it has become an increasingly popular tactic to use such laws in misguided efforts to police political speech.”

Idaho Senate widely passes anti-SLAPP bill that aims to curtail frivolous lawsuits (Idaho Capital Sun). Idaho state Sen. Brian Lenney is right. SLAPPs “are not designed to win. They’re designed to intimidate, to distract, to bankrupt or to punish a person for exercising free speech.” Every state and the federal government needs a strong anti-SLAPP law.

Brendan Carr, Trump’s ‘free speech’ warrior, wastes no time violating Trump’s new free speech executive order (Techdirt). Hypocrite and FCC Chair Carr revived several frivolous complaints against news networks that his predecessor dismissed — but not the one against Fox News. Techdirt has more on Carr’s "deceptive editing" of the FCC's case docket to carry his boss's political water.

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