Freedom of the Press

Independent photojournalist Josh Pacheco, seen here being arrested in Chicago during a protest of the Democratic National Convention in August, is one of several journalists facing charges for failing to comply with dispersal orders that should have never been issued.

Even when police can disperse protesters who break the law, they can’t disperse journalists along with them. And it follows that they can’t arrest journalists for not complying with orders to disperse that were illegal in the first place.

That shouldn’t be news. Appellate courts have said it. The Department of Justice said it in its reprimand of the Minneapolis Police Department for its crackdowns following George Floyd’s murder. But, as we saw at the Democratic National Convention in Chicago, police departments haven’t gotten the message.

That’s why it’s so important that the DOJ is now saying it louder, in a new guidance containing recommendations from the department and the Police Executive Research Forum for police-press interactions at mass demonstrations. We should note that our friends at the Reporters Committee for Freedom of the Press were instrumental in making this happen.

Here’s some key language:

“In the case of mass demonstrations, there may be situations—such as dispersal orders or curfews—where the police may reasonably limit public access. In these circumstances, to ensure that these limitations are narrowly tailored, the police may need to exempt reporters from these restrictions, and under those circumstances, they will need to determine who they consider to be members of the media. Because this can be challenging in chaotic moments, it is recommended that police err on the side of inclusiveness, defining as “media” both credentialed press from established media outlets and noncredentialed individuals who are acting as reporters in their function and behavior.”

That seems clear enough. And it’s the perfect opportunity for prosecutors with open cases against journalists for failing to disperse to drop them.

Here are a few prosecutors who should jump at the opportunity to do the right thing. We’ll send them a copy of this article to make sure they’re on notice. Readers, feel free to do the same.

Cook County, Illinois, State’s Attorney Kim Foxx: According to the U.S. Press Freedom Tracker, a project of Freedom of the Press Foundation (FPF), cases remain pending against at least three journalists arrested during the DNC in August — Sinna Nasseri, Olga Fedorova, and Josh Pacheco.

None of these journalists are accused of doing anything illegal except not obeying police orders to disperse. The Chicago Police Department knew that was not a reason to arrest journalists — we warned them in the newspaper and on the radio. They were so confident they knew what they were doing that they declined offers from the National Press Photographers Association to train them on exactly these kinds of issues.

But they didn’t know what they were doing. In fact, CPD Deputy Director of News Affairs and Communications Tom Ahern went as far as to threaten to revoke journalists’ press credentials if they didn’t comply with his illegal orders. He even ripped credentials off reporters’ necks.

Foxx shouldn’t wait a minute longer to end this embarrassing ordeal and drop charges against any journalist arrested for doing their jobs at the DNC. And Ahern should resign. His conduct was inexcusable (check out the conversation we hosted last month with independent journalists who saw it firsthand, including Fedorova).

Multnomah County, Oregon, District Attorney Mike Schmidt: Journalist Alissa Azar was arrested while covering a pro-Palestinian protest at Portland State University on May 2, 2024. She’s accused of nothing other than not dispersing, and video of the arrest appears to confirm she wasn’t breaking any laws (note that this arrest has nothing to do with Azar’s recent conviction over an entirely separate incident in 2021).

We wrote a letter to Schmidt, joined by other leading press freedom organizations, but heard nothing. Schmidt should not need the DOJ to tell him the case should be dropped — the 9th Circuit Court of Appeals, which has jurisdiction over Oregon, has made clear that police can’t include law-abiding journalists in dispersal orders. Schmidt has also seen other Oregon officials get embarrassed and sued after pursuing unconstitutional cases against journalists. It might be too late to avoid a similar outcome but the DOJ guidance gives him a chance to at least mitigate the damage by dismissing the charges.

Ulster County, New York, District Attorney Emmanuel Nneji: Journalist John Camera was arrested on May 2 while covering a protest at the State University of New York at New Paltz. The protest escalated, and he was arrested by state troopers, along with 132 others, when he allegedly did not disperse on command.

One of the troopers told the Tracker he expected the charge to be dropped — so why bring it in the first place? These kinds of catch and release arrests serve no purpose except to censor journalists by removing them from the scene of the news they were covering.

That calls to mind another important recommendation included in the DOJ report: “Once the journalist has established they were acting as a journalist and were inadvertently or improperly detained, officers should be directed to quickly release the individual without charge.”

St. Lawrence County, New York, District Attorney Gary Pasqua: Isaac White, a reporter for Indian Time, was arrested while covering a demonstration on New York’s Barnhart Island this May. Even though he’s accused of nothing but failing to follow an illegal dispersal order, he’s facing charges of both trespassing and conspiracy, along with numerous protesters who were arrested along with him. To the best of our knowledge, his alleged “conspiring” doesn’t involve anything more than being present at the protest.

White told the Tracker that when police ordered him to disperse they didn’t tell him where he could go to keep doing his job. That’s a common problem. The DOJ report explains that, in the exceedingly rare event that police can constitutionally disperse a journalist because there’s no other way to mitigate some kind of public safety threat (and we’re aware of none in White’s case), they’re obligated to provide an alternate location from which the journalist can report.

And that doesn’t mean they can send journalists to the cheap seats — it has to be somewhere they can see and hear what’s going on.

Buncombe County, North Carolina, District Attorney Todd Williams: Asheville journalists Matilda Bliss and Veronica Coit are appealing their conviction for violating a park curfew to document police evicting a homeless encampment at a public park.

We’ve repeatedly noted the absurdity of Wiliams’ position that journalists can be barred from covering obviously newsworthy events, in plain sight and on public land, just because it’s dark out. And now the DOJ has agreed — law-abiding journalists cannot be subjected to curfews when attempting to do their jobs.

Williams’ office stubbornly pursued the misdemeanor case through a jury trial, costing local taxpayers significant money to punish the press. And there is evidence of retaliation against Bliss and Coit specifically that, under recent Supreme Court precedent, could subject the city and its officials to legal liability. That’s the last thing Asheville needs after Hurricane Helene.

Alameda County, California, District Attorney Pamela Price: Journalist Yesica Prado was arrested while reporting on a homeless encampment cleanup operation in Oakland, California, in September.

She questioned officers who had ordered her to report from behind a fence where she couldn’t see, and then was threatened with arrest — and use of force — for being in a “safe work zone.” Officers then followed through on the threat.

As a coalition of press freedom organizations, including FPF, explained in a joint statement, the First Amendment (not to mention California law) does not permit declaring a large area where news is happening a “work zone” or “crime scene” in order to expel the press.

It’s no different from dispersal orders or curfews — even when these designations can properly be invoked for public safety reasons, journalists should be exempted or, if absolutely necessary, given a viable alternative place to report from.

Prosecutors: Now’s the perfect time to drop these charges. You can even save face by claiming you changed course in response to the DOJ’s new guidance (although, just between us, you should have known they were unconstitutional from the outset).

Note: While the new DOJ guidance includes a disclaimer that some of its content may not represent the official position of the DOJ, it’s safe to assume that the discussion of not dispersing journalists does, given that the DOJ has taken identical positions in official reports.

Florida Gov. Ron DeSantis at a September press conference.

FOR IMMEDIATE RELEASE:

Oct. 9, 2024 — Florida Gov. Ron DeSantis’ administration sent a letter threatening television stations that air ads supporting abortion rights with criminal liability under the state’s “sanitary nuisance” law, which could include up to 60 days in jail.

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

“This is the latest proof that there is no limit to how low DeSantis will stoop to censor free speech and punish dissent. It comes on the heels of his efforts to rewrite defamation law to make it easier for the rich and powerful to bankrupt their critics, his Stop WOKE Act stunt, and other similarly unconstitutional nonsense.

“A governor who is confident in his policies and secure in his leadership would welcome debate and correct statements he believes are misleading rather than trying to weaponize trash disposal laws against the free press. But DeSantis is not that governor. His administration’s conduct would be silly if it weren’t such a transparent bully tactic.

“Floridians care about the First Amendment, which is why DeSantis’ outrageous censorship campaigns keep failing. We hope the news outlets he targets will not only ignore him but loudly shame him.”

Even frequent requesters like the Heritage Foundation are not at fault if the government can’t effectively search and review large amounts of records.

The Heritage Foundation sends a lot of Freedom of Information Act requests about progressive issues, from climate change to policies on diversity, equity, and inclusion, and it’s causing a stir.

A recent ProPublica article detailed the FOIA campaign, which is allegedly part of Project 2025’s effort to identify agency officials for potential firing.

ProPublica, which obtained the information for its article through its own FOIA requests, suggests that the hundreds of Heritage Foundation requests may intimidate public officials and prevent FOIA offices from effectively responding to “legitimate” requests by clogging the FOIA queues.

Reporting how the Heritage Foundation may use FOIA responses to gut the federal workforce is a worthy endeavor. Implying that FOIAs are illegitimate when the goal is partisan is a slippery slope that could give other agencies an excuse to deny requests they don’t like.

Most importantly, it is not the requesters' fault, even if they are frequent requesters, that the government can’t effectively search and review large amounts of records.

A few key points:

• Federal employees’ records that detail their work should be fair game for FOIA requests.
• Many of the requests would have been unnecessary if agencies proactively posted information like they are supposed to.
• Even a large FOIA project like the Heritage Foundation’s is not the reason the entire federal government’s FOIA backlog increases every year.

Implying that FOIAs are illegitimate when the goal is partisan is a slippery slope that could give other agencies an excuse to deny requests they don’t like.

Maligning the records seeker

Blaming FOIA requesters for the worsening of the FOIA processing landscape is not new.

Jason Leopold, a national security reporter and prolific FOIA requester, was once called a “FOIA terrorist” for the number of FOIA requests he filed. He’s been repeatedly cited by agencies as an example of why they can’t process other requests and there need to be more limits around requesters.

MuckRock, a nonprofit that makes it easier for citizens and freelance journalists to file requests, has been similarly maligned by agency FOIA officials.

And while “bad faith requesters” do exist, my colleague Caitlin Vogus recently wrote that the best way to counter them “is to correct the record with more information.”

Most agencies don’t respond by releasing more information, and instead continue to ignore requirements for proactive posting.

FOIA clearly states that agencies: 1) must publish items of public interest before anyone files a FOIA for the information, and 2) must publicly post records that are frequently requested. Most agencies struggle to consistently meet these requirements, if they meet them at all.

The monthly calendars of high-level officials requested by the Heritage Foundation are an example of records that should already have been public. Top officials’ calendars are often requested — by all sorts of organizations and individuals. If agencies had proactively posted the calendars, this would have saved them from processing hundreds of Heritage Foundation FOIAs.

Flooding the FOIA office?

One of the criticisms hurled at the Heritage Foundation — and journalists like Leopold — is that their requests are so voluminous that agencies can’t respond to other requesters.

It’s true that agencies struggle to respond to FOIA requests. Every year, the Justice Department reports that the government-wide FOIA backlog has increased.

It’s also true that large, complex requests take longer to process than simple requests. But large requests are allowed as long as it’s clear what the requester is asking for.

The more important question to ask is why can’t agencies effectively process requests for large amounts of information.

There are several reasons:

• Records are still reviewed manually even though it is impossible for human reviewers to keep up with exponentially increasing digital records.
• Many FOIA offices don’t conduct records searches because they don’t have access to the records, instead asking the person whose records are being sought or an IT department to do it. This causes delays if non-FOIA officials don’t prioritize the search, and means a FOIA officer doesn’t always know how other officials are conducting a search.
• Most FOIA funding is tight and comes from other parts of an agency’s budget. This impacts software purchases and decisions integral to the FOIA process. For example, agencies usually pay for third-party software to redact documents. Software vendors charge agencies based on the amount of documents they store during the review process. This means that agencies pay more money to process larger requests. If a FOIA office doesn’t have enough funding, this expense could be an incentive to deny large requests outright.
• These factors help contribute to a culture of secrecy over disclosure, with FOIA offices spending time and resources needlessly denying FOIAs and/or applying unnecessary exemptions.

Now what?

FOIA offices are underwater, that’s clear. The solution is equally clear. Agencies should post more information proactively and be allocated the funding necessary to invest in commonsense search and review tools.

FOIA requesters and journalists who write about FOIA problems play an important role, too — keeping the pressure on agencies to improve rather than blaming other requesters.

House Speaker Mike Johnson speaks to reporters on Sept. 25, the same day he posted on social media threatening nonprofits with revocation of their tax-exempt status.

For months now, pandering U.S. lawmakers have their sights set on silencing nonprofit organizations — potentially including media outlets and press freedom groups.

They haven’t gotten their way yet but the fight’s not over. Freedom of the Press Foundation (FPF) has repeatedly joined plenty of other organizations to publicly shame these anti-speech officials for their cynical attempts to weaponize the IRS against opinions they don’t like.

And the resistance seems to be working — at least so far.

Bill to censor nonprofits stalls twice

Earlier this year, the House passed a bill that would allow the secretary of the Treasury to revoke nonprofits’ tax-exempt status, without due process and using secret evidence, by deeming them supporters of terrorists.

We wrote for The Intercept last spring about the implications for nonprofit media, especially in light of recent letters from lawmakers baselessly accusing outlets that are critical of Israel of supporting terror. Others wrote about the potential for the powers contemplated by the bill to be abused against environmental organizations, student groups, and others.

The Council on American-Islamic Relations led a letter signed by 135 organizations (including FPF) objecting to the bill in May. The ACLU also sent its own letter. And the bill died in the Senate soon after, when efforts to attach it to the Federal Aviation Administration’s reauthorization legislation failed (no, we don’t know what the bill had to do with aviation).

It returned in September. This time, lawmakers tried attaching it to legislation granting tax benefits to American hostages and held a hearing on Sept. 11, effectively daring anyone to question a purported anti-terrorism bill on that day.

That backfired when The Washington Post called out their willingness to undermine the chances of the hostage bill for the sake of censoring nonprofits. It also further galvanized the opposition among nonprofits, with the ACLU sending another letter to House leadership, signed by over 120 organizations, again including FPF. The bill again stalled.

Censorial lawmakers resort to Plan B

Unable to legislate new power to silence nonprofits, lawmakers are claiming they already can under existing authority, citing decades-old IRS guidance on nonprofits that support criminality.

Republican House Ways and Means Committee Chair Jason Smith sent a letter on Sept. 24, baselessly demanding the IRS revoke the nonprofit tax-exempt status of 15 organizations that advocate for Palestinian human rights. Speaker of the House Mike Johnson tweeted the letter the next day, tagging many of the organizations and further threatening them on behalf of House Republicans.

The organizations named in the letter weren’t news outlets, but given that Smith didn’t cite any supposedly illegal activities besides encouraging dissent (the theory, presumably, is that the organizations are on the hook for any lawlessness that takes place at a protest they promote), it’s not hard to imagine similar arguments against news outlets that platform similar views.

We once again joined the Council on American-Islamic Relations and 100 other groups to admonish Smith and Johnson for their disregard of the First Amendment. Calling their tactics “reminiscent of the McCarthy era,” the letter notes that their “bad-faith referral to the IRS is not based on any legitimate concerns of criminal conduct by these organizations. Instead, it stems from your personal discomfort with their constitutionally protected activities.”

It goes on to note the hypocrisy behind the call for censorship, as Republicans in Congress have been quick to accuse the IRS and other federal agencies of unfairly investigating First Amendment activity — but only when they like the message of those speaking.

The groups’ letter also warns against further attempts to advance this flawed legislation or similar bills, which would “undermine fundamental due process protections and would empower the government to target civil rights, humanitarian, journalistic, and advocacy organizations based on their political positions.”

Although efforts to push back against these outrageous assaults on nonprofits seem to have been successful so far, it’s clear they have staying power. And while the Smith letter was Republican-led, Democrats joined in pushing the legislation through the House — meaning this nonsense will likely persist no matter how the November election goes.

Any nonprofits, media outlets, or free speech advocates that haven’t spoken up yet should not let the next opportunity pass them by.

A man holds a poster of murdered journalist Jamal Khashoggi. The Biden administration has still not released its full file on the killing of the U.S.-based Saudi columnist.

Washington Post journalist Jamal Khashoggi was brutally murdered by the Saudi Arabian government inside its consulate in Istanbul, Turkey, six years ago this week. The U.S. government has declassified some information on the murder, including its belief that Saudi Arabia's Crown Prince and Prime Minister Mohammad bin Salman approved the order to “capture or kill” Khashoggi.

But too much remains hidden, and this secrecy both prevents accountability and serves to endanger other journalists.

In an op-ed for The Daily Beast, Lauren Harper, the Daniel Ellsberg Chair on Government Secrecy for Freedom of the Press Foundation (FPF), urged the Biden administration to declassify more intelligence on Khashoggi’s murder before leaving the White House. Key documents that should be released include records showing whether or not the intelligence community met its “duty to warn” Khashoggi that his life was in danger.

Declassification would prioritize the public’s right to know over America’s relationship with an autocratic ruler, and would show the U.S. won’t tolerate threats to the press.

You can read the full op-ed here.

Fort Bend County, Texas, Sheriff Eric Fagan at a news conference in January.

Last year, an Alabama reporter and newspaper publisher were illegally arrested for reporting on a local criminal investigation and then forced to agree not to report on ongoing criminal investigations as a condition of their bail.

It was one of the most egregious press freedom violations of 2023 — a year that was full of them. We hoped that, after all the bad press Atmore authorities received (and the failure of their frivolous prosecution), others would learn their lesson and not try to extort journalists into waiving their constitutional rights.

And then the sheriff’s department of Fort Bend County, Texas, came along to crush that dream.

Want your illegally seized equipment? Sign this illegal release

Back in December 2021, deputies illegally arrested Texas citizen journalist Justin Pulliam for filming them conducting a mental health check. They also seized his phone and equipment, in clear violation of the Privacy Protection Act of 1980, which prohibits seizures of journalists’ materials except when investigating a crime unrelated to newsgathering.

The charges against Pulliam were dropped in May, but Pulliam told the U.S. Press Freedom Tracker — a project of Freedom of the Press Foundation (FPF) — that the phone and equipment illegally seized from him when he was arrested has yet to be returned. The reason? The authorities, Pulliam says, demanded he sign a waiver releasing them from liability before they would give him back his property.

The law on this is clear — government officials can’t force people to waive their First Amendment rights in order to receive a benefit from the government. And getting your own stuff back after an illegal arrest can hardly even be considered a benefit.

The officers involved shouldn’t be released from liability — they should be released from their jobs.

I wrote about this rule in August for The Hill, focusing on the Securities and Exchange Commission’s unconstitutional “gag rule” whereby the commission forces people it settles cases with to promise not to publicly dispute the allegations against them.

To drive home the dangers of allowing a rule like that to stand, I posed a hypothetical: What if instead of wealthy investment firms, the government went after ordinary citizens? “Want to get out of that traffic ticket without taking off work to go to court? You’ll need to keep quiet about those racial profiling claims.”

The hypothetical was meant to be far-fetched — but apparently it wasn’t. And it’s not the only time the sheriff has violated Pulliam’s constitutional rights.

Citizen journalists are journalists

The government is always resourceful when it comes to limiting its definition of “journalist” to exclude people it doesn’t like.

Officials said Julian Assange wasn’t a journalist because he didn’t redact documents. In Tim Burke’s case, it was because he also worked as a consultant. They’ve even taken the position that documentary filmmakers like Trevor Aaronson occupy some lower tier of journalism with diminished legal rights. Those are just some of many examples.

Add Pulliam to the list. In July 2021 — a few months before his aforementioned arrest — the same sheriff’s department excluded him from a news conference in Richmond, Texas, claiming he was not a member of the media, despite regularly reporting on local government and police on YouTube and Facebook.

Pulliam sued (good for The Institute for Justice for taking the case), and last week a judge ruled in his favor, granting him partial summary judgment and finding that the sheriff — and its departmental policy excluding social media journalists from its definition of “media” — violated his constitutional rights.

The Tracker reported that Magistrate Judge Andrew Edison – whose opinion was adopted by the lead judge on the case — called Pulliam’s journalism “unequivocally” protected by the First Amendment, regardless of his platform.

Long before social media existed, appellate courts said that 'what makes journalism journalism is not its format but its content.'

The judge said the unconstitutionality was obvious enough that officials were not entitled to qualified immunity, which protects government officials from liability when the legal rights they violate are not “clearly established.”

Unfortunately, the denial of qualified immunity is a high bar to reach. An appellate court, for instance, recently held that officers were immune from liability for the unconstitutional arrest of another Texas citizen journalist, Priscilla Villarreal, under an archaic law criminalizing solicitation of information from the government. I previously wrote about the need for the Supreme Court to right that wrong.

To state the obvious, Edison is correct. Long before social media existed, appellate courts said that “what makes journalism journalism is not its format but its content.”

And the House of Representatives endorsed Edison’s reasoning by unanimously passing the PRESS Act — the federal reporter’s shield bill that uses a functional definition of “journalist” to protect from government surveillance anyone who regularly gathers, writes, or reports the news, whether for a Substack blog, The New York Times, or YouTube.

That bill enjoys bipartisan support in the Senate but, as Roll Call recently reported, it’s being held up by outlier objections. (Side note: Tell your senator to support the PRESS Act here.)

A trifecta of First Amendment violations

It’s great news that Edison recognized that qualified immunity should not be a get-out-of-jail-free card for officials who blatantly violate journalists’ rights. But that’s only one of the sheriff’s three strikes when it comes to Pulliam’s First Amendment rights.

Strike two? The December 2021 arrest that was also covered in Pulliam’s lawsuit. The judge did not grant him summary judgment on his retaliation claim, but he can still prevail. The court acknowledged that, as we’ve written, the recent Supreme Court decision in Gonzalez v. Trevino rightly eased the burden of proving First Amendment retaliation. That case wasn’t decided yet when Pulliam briefed his summary judgment motion but he’ll have the chance to raise it at trial.

And the final, third strike: The equipment seizure, which is flagrantly unconstitutional, with or without the Gonzalez case. The attempt to twist Pulliam’s arm into signing away his legal right to sue the sheriff’s department only goes to prove that the department knew what it did was wrong and should have no claim to immunity.

The officers involved shouldn’t be released from liability — they should be released from their jobs. And if Pulliam ever does sign a release, it shouldn’t be for his own equipment. It should be for a fat settlement check.

President Carter, center, meets with Egyptian president Anwar Sadat, left, and Israeli Prime Minister Menachem Begin at Camp David in 1978.

President Jimmy Carter turns 100 today. A fitting birthday present would be for the CIA to fully declassify its records on the 1978 Camp David Accords.

Camp David, one of the highlights of the Carter administration, established the framework for a peace deal between Israel and Egypt. Releasing the full record would not only commemorate Carter’s foreign policy legacy, it would add important context for policymakers as escalation continues between Israel and its neighbors.

Yet many of these documents are still overclassified.

A February 1977 National Security Council memorandum on “Arab and Israeli Reactions to US Steps in the Middle East” is a prime example of ongoing, excessive, needless secrecy. Large portions of the text are redacted, and the exemptions used to hide the information — and which should be cited — are missing.

An October 1977 memorandum on “Peace Negotiations and Israeli Coalition Politics” is similarly overclassified, as are many of the other 250 records in the collection.

It is not possible that all of this information, now almost 50 years old, must still be secret. The passage of time and the public interest in the records clearly outweigh whatever meager arguments might still exist for secrecy.

The CIA’s secrecy is even more galling when other agencies have released important Carter-era records.

The State Department this spring finally published its Foreign Relations of the United States collection on national security policymaking during the Carter administration. The FRUS is arguably the United States’ largest ongoing transparency initiative and serves as the official record of U.S. foreign policy.

The State Department is congressionally mandated to publish FRUS volumes 30 years after the events they document take place, but is regularly unable to do so because the CIA and Defense Department drag their heels in releasing information — which is why it took over 40 years for the Carter set to be published.

Historians have also worked hard to get the government to declassify Carter-era records. The indefatigable archivists at the nonprofit National Security Archive (where I previously worked) recently published a collection of 2,500 declassified high-level Carter policymaking records, covering everything from the Soviet invasion of Afghanistan to the Iran hostage crisis.

The efforts of historians and journalists are hampered not only by the CIA’s classification decisions but also by the National Archives and Records Administration’s inability to provide digital access to the Carter Presidential Library records.

As of today, NARA has only digitized 0.063% of its entire collection of Carter documents. Some of this digitization delay could be solved by giving NARA more money and better technology, but the agency also needs to reassess its priorities. Otherwise, the records from the Carter Library will be lost to future generations.

President Carter has said he wants to live long enough to vote in the 2024 election. We should hope for that, but we should also demand that the CIA and other agencies make his administration’s records available to the public.

WikiLeaks founder Julian Assange addresses the Council of Europe in Strasbourg, France, on Oct. 1, 2024.

The U.S. government’s prosecution of Julian Assange ended earlier this year, but plenty of questions about its decade plus pursuit of the WikiLeaks founder remain unanswered.

A new Freedom of Information Act lawsuit – filed against the FBI and Department of Justice by our friends at Defending Rights and Dissent – seeks answers.

We hosted a recent conversation via X Spaces with DRAD’s policy director, Chip Gibbons, and Kevin Gosztola, author of “Guilty of Journalism: The Political Case Against Julian Assange” and editor of The Dissenter. The two discussed the need to force transparency on a dark chapter in the history of press freedom in America.

Gibbons explained that as part of Assange’s plea deal, the U.S. committed to not bringing any further charges against him for past conduct – meaning that exemptions to the Freedom of Information Act for ongoing investigations should no longer apply. And yet, the government has not complied with DRAD’s longstanding document requests.

Nobody expects an easy path forward in piercing through the layers of secrecy the government will likely invoke to deny transparency. But Gibbons hopes to obtain records that will shed some light on why the U.S. decided to put the First Amendment at risk to prosecute Assange. Assange testified today before Parliamentary Assembly of the Council of Europe that his plea deal required him to plead “guilty to journalism.”

Gibbons said he wants to give the public a behind-the-scenes view into why former President Donald Trump’s administration, and subsequently President Joe Biden’s, changed course after the Obama administration declined to prosecute Assange, preferring to use the Espionage Act against whistleblowers instead.

“I do believe there is this hard-line career intelligence faction in the FBI and the CIA and the NSA too, who have always wanted to go after Assange. … The Obama administration took this perspective of sort of maximum war on government insiders, but don't touch the government outsiders, and I know the FBI was clearly dissatisfied,” Gibbons explained.

He also wants to know why prosecutors decided to forgo other potential charges to pursue an Espionage Act theory based on WikiLeaks’ 2010 publications of documents from whistleblower Chelsea Manning. A case based on a computer hacking theory would likely not have encountered similar resistance from the press freedom community, which viewed criminalization of publishing government secrets as an existential threat to investigative journalism.

And a case based on other WikiLeaks publications – like the Vault 7 leaks – may not have provoked the same outrage from anti-war and human rights organizations as a prosecution arising from documents that exposed U.S. war crimes.

“I would be very curious to know why the decision was made in 2019 to revive the 2010 Chelsea Manning case and not the other, less politically toxic cases. … They sort of picked their politically weakest case, which I would presume was because they thought it was legally the strongest,” Gibbons said.

Gosztola added that the documents being withheld could also shed light on everything from the role of discredited informants and the FBI’s tactics in seeking witnesses to testify against Assange to what the FBI took from the Ecuadorian embassy after Assange was expelled in 2019.

Both speakers called for reform of the Espionage Act — which allows prosecution of whistleblowers and publishers of classified documents without distinguishing those who do so out of conscience to expose wrongdoing from foreign spies. Gibbons was the lead author of amendments to the act proposed by Rep. Rashida Tlaib.

Gosztola said he doesn’t trust the U.S. government’s assurances that it won’t apply to so-called “conventional” journalists the Espionage Act theory under which it charged Assange. He said the Assange case demonstrates the “willingness of the Justice Department to cross this line” and prosecute publishers, not just leakers, of government secrets.

And he said independent journalists like himself would suffer most — not just from actual Espionage Act prosecutions but from the chilling effect that comes from the prospect of one. “Someone like myself who works independently, I don't have a lawyer on hand. … So I do consider the choices that I'm making when I engage in newsgathering. I do consider what I'm going to pursue as a journalist,” he said.

The conversation was an hour-and-a-half-long deep dive into the Assange case and the secrecy surrounding it. We can’t possibly capture it all in a blog post, but you can listen to it, or read a transcript (albeit an imperfect AI-generated one) here.

Wisconsin is one of seventeen states without a law that protects journalists and other speakers from frivolous lawsuits meant to chill speech. At least one local newspaper is paying the price.

A small nonprofit newspaper in Wisconsin recently won a legal victory against a frivolous defamation lawsuit. But sometimes winning isn’t enough.

The case against the Wausau Pilot & Review is a prime example of how resentful subjects of reporting can weaponize the legal system to attack the First Amendment. Without strong laws that protect against meritless lawsuits that chill speech, known as strategic lawsuits against public participation, or SLAPPs, even journalists who win can lose.

Lawsuit thrown out, but at what cost?

Last week, a state appeals court threw out a defamation lawsuit against the Pilot & Review brought by Cory Tomczyk, a local businessman turned state senator. Tomcyzk sued the newspaper after it published a report that he had used an anti-gay slur at a county meeting.

A trial court dismissed Tomcyzk’s suit last year, but he appealed. Now, the appeals court has thrown the case out again, concluding that Tomcyzk hadn’t met the legal standard to make his case.

The Pilot & Review and its reporters should be celebrating this First Amendment victory. But because Wisconsin doesn’t have an anti-SLAPP law, their win may actually turn into a loss.

The Pilot & Review has spent nearly $200,000 on legal bills so far, according to its editor Shereen Siewert. That’s almost as much as the newspaper spends each year to run its newsroom. And Tomcyzk could appeal again, forcing the newspaper to rack up more expenses.

Those costs have a real impact on local journalism. Siewert told Wisconsin Public Radio that the newspaper “had to put hiring on hold” because of the lawsuit. The New York Times reported last year that legal expenses could put the newspaper out of business.

Anti-SLAPP laws needed in all 50 states

Thankfully the Pilot & Review has scraped by, in part because of donations. But no news outlet should have to rely on the kindness of strangers to survive a defamation lawsuit that it wins.

The costs of SLAPPs can be staggering. For instance, in 2022, the Center for Investigative Reporting received a more than $1.92 million settlement to cover its legal fees from a SLAPP plaintiff.

In California and many states, the news media and other speakers are protected by anti-SLAPP laws. But not in Wisconsin or 16 other states.

Anti-SLAPP laws give people who are sued for exercising their First Amendment rights tools to fight back. They often allow for cases to be dismissed early, before costs rise, and give winning defendants the right to recoup their legal fees. As a result, SLAPP victims are less likely to be intimidated into silence.

Anti-SLAPP laws don’t just protect the speakers. They also protect the public’s right to know. When journalists and whistleblowers have confidence that they won’t be crushed by legal costs for reporting or speaking out, more information about important issues like corruption, corporate wrongdoing, and crime makes it to the public.

That’s why we need every state — and the federal government — to pass strong anti-SLAPP protections.

Protect local nonprofit journalism with anti-SLAPP laws

Anti-SLAPP laws are particularly important for nonprofit news outlets, like the Pilot & Review, which are increasingly filling the gap in a news media ecosystem that’s been devastated by the closure of newsroom after newsroom.

Nonprofit newsrooms that operate on shoestring budgets and lack in-house legal help are especially vulnerable to SLAPPs. In 2023, the Institute for Nonprofit News reported a medium revenue of about $477,000 for its members, an amount that could be quickly exhausted by just a single SLAPP.

But even relatively larger nonprofit news outlets can be harmed by SLAPPs. ProPublica Managing Editor Charles Ornstein recently wrote about the toll of a six-year libel battle based on his reporting. The case is just one of six in which ProPublica and its journalists have been unsuccessfully sued for defamation since the news outlet was founded.

ProPublica spent hundreds of thousands of dollars to defend itself in the case based on Ornstein’s reporting, through multiple rounds of appeals. Its journalists spent “dozens of hours gathering materials and working with lawyers” that could have otherwise been spent on reporting. Ornstein was even denied a mortgage because he disclosed he was a defendant in a lawsuit.

The case was eventually thrown out under Texas’s anti-SLAPP law. But future SLAPP victims in Texas might not get the same protections. State lawmakers have repeatedly targeted the law, and this week they’ll hold a hearing that may be a step toward gutting it.

That would be a step backward, and one that could devastate Texans’ right to know about what’s happening in their communities.

Texas, Wisconsin, and every state and the federal government need strong anti-SLAPP laws that protect First Amendment rights. Without them, wealthy and powerful people and corporations will continue to use the legal system to attack the reporting that holds them to account, and journalists who face SLAPPs will be in a no-win situation.

The CIA’s internal report on its prepublication review process, “Protecting Secrets,” was released through a Freedom of Information Act request. SCREENSHOT

A new directive aims to streamline the prepublication review process for former intelligence community employees looking to write about their time in government.

In theory, prepublication review ensures current and former officials don’t publish information that damages national security. In practice, it routinely infringes on First Amendment rights. The process has served partisan agendas, withheld public information, and stifled debate.

Attempting to fix the process is a good thing — but the new reforms don’t address a fundamental problem: The government classifies more and more information every year, often needlessly.

Until agencies reduce the number of secrets they generate, prepublication review will continue to be an unwieldy, quixotic effort.

What is prepublication review?

Prepublication review requires a wide range of former officials to submit written works to the government for vetting before publication. The process began with a small number of CIA officials in the 1950s and now covers employees across the intelligence agencies, as well as components of the departments of State, Justice, Defense, and Homeland Security.

When the government considers everything a secret, the task of identifying secrets in manuscripts becomes extraordinarily time-consuming. It delays or prevents publication of unclassified material, information that is already public, and information that embarrasses the government.

The tenuous legality of the review is based in the nondisclosure agreements agency employees must sign, but the requirements on who must submit what varies between agencies and are often difficult to find. (A Freedom of Information Act request from the ACLU and Knight First Amendment Institute found the CIA deliberately kept submission requirements secret.)

The Supreme Court has not considered the constitutionality of the prepublication review process since the 1980s and declined to do so as recently as 2022. And anyone who does not submit their manuscript for review runs the risk of the government seizing the proceeds from their book after it's published, having their security clearance revoked, and possibly being prosecuted.

Here are just a few examples of how flawed the system is:

• Prepublication review of former National Security Advisor John Bolton’s memoir was mired in delays and political interference from the Trump White House and Justice Department.
• The CIA ordered former FBI agent Ali Soufan to cut significant portions of his book, “The Black Banners,” even information that had already been disclosed in congressional hearings, public records, and prior books.
• Former Defense Secretary Mark Esper sued his old agency over delays reviewing his manuscript, stating that, “Significant text is being improperly withheld … under the guise of classification.”
• The Naval Criminal Investigative Service’s Mark Fallon had to remove information “already in the public record and some seemingly intended only to protect the government from embarrassment” from his book.

Double standards

The system is overwhelmed by the amount of material submitted. As of 2015, the CIA alone was reviewing 184,000 pages a year. The sheer volume creates delays, which is a feature — not a bug. Delays discourage authors with deadlines to meet from appealing redactions.

And overclassification compounds the delay — not only do reviewers need to read thousands of pages of manuscripts, they need to cross-reference them with millions of often needless classification decisions.

Not everyone faces delays, though. While it may take years for some authors to get manuscripts back, it only took the State Department two months to return former Secretary Hillary Rodham Clinton’s. There was so much pressure for a quick turnaround that State’s prepublication review board warned: “If you are tardy in your response, you may get a high-level Department official call.”

What is in the new prepublication review directive?

The Brennan Center for Justice’s Elizabeth Goitein and former National Security Council official John P. Fitzpatrick have an excellent summary of the key items in the new directive in Just Security. Key improvements include:

• Requiring agencies to publish information on the prepublication review process on front-facing websites.
• Building and maintaining searchable datasets to track prepublication review requests and metrics.
• Mandating that agencies build appeals processes for denied material and appoint a prepublication review liaison.

They also note a number of limitations. The new guidelines:

• Only apply to members of the intelligence community, not other agencies that conduct prepublication reviews.
• Do not require a uniform appeals process across the intelligence community.
• Mandate no firm deadlines for agencies to complete reviews.
• Continue to allow agencies to withhold unclassified material that may be protected under other federal law or regulation, including exemptions to the inapplicable FOIA. That rationale is used to withhold everything from information pertaining to defense contractors to watermelon growing under FOIA’s Exemption 3.

These are missed opportunities. But the overarching problem is the directive’s failure to address the crisis of overclassification and the knee-jerk secrecy that permeates the government.

Until agencies face meaningful consequences for inappropriately withholding information, the prepublication review process will remain broken.

Hurricane Helene slammed Valdosta, Georgia, this morning. But NOAA hasn’t released the most accurate forecasting predictions for the storm. It keeps these and other models secret on spurious grounds of “confidential business information.”

As Hurricane Helene batters the Southeast, leaving at least six dead and millions without power, it leaves no doubt we are in the middle of an especially dangerous hurricane season. So why won’t the government’s weather forecaster release its most accurate predictions?

The National Oceanic and Atmospheric Administration says it can't disclose potentially lifesaving data because of stipulations in a 2020 agreement it signed with a private vendor, whose proprietary prediction analysis technique is incorporated into the NOAA-developed forecast model.

This secrecy wrongly places commercial interests above public safety.

NOAA’s misguided approach became clear this week, thanks to The Washington Post’s reporting on its Freedom of Information Act request to NOAA about why the agency is endangering families planning for deadly hurricanes. In response, NOAA released the terms of the agreement with the vendor, RenaissanceRe Risk Sciences, which specifies that forecasts using its prediction analysis are “trade secrets and confidential information” that must be withheld from the public until 2025.

It’s hard to imagine that, with all the bargaining leverage the federal government holds, it could not have negotiated a way to release the model’s final predictions without revealing trade secrets. NOAA should publish the agreement with RenaissanceRe Risk Sciences so the public can see what information the agency bargained away, to the detriment of its safety.

The PR nightmare that RenaissanceRe Risk Sciences is likely (hopefully) enduring following the Post's reporting is a perfect opportunity for agency lawyers to right this wrong and renegotiate so that people don't die in hurricanes in the name of corporate secrecy.

Exemption 4, Supreme Court worsen the problem

The contract’s dangerous language mirrors FOIA’s Exemption 4, which allows agencies to withhold trade secrets and confidential business information that have been submitted to the government. This exemption has been abused to hide information on the Supplemental Nutrition Assistance Program (more commonly known as food stamps), federal contractor diversity data, and privately run federal prisons.

The Supreme Court made matters worse by further expanding the interpretation of “confidential business information” in a controversial 2019 ruling. Justice Department guidance now gives federal agencies permission to call almost anything they receive from private industry confidential, as long as the government does not explicitly say it will publish the information when it receives it.

Placing business interests over public disclosure cannot be the precedent for public-private industry partnerships, and certainly not for projects that have the ability to save lives. It also goes against the United States’ commitment to open data and making taxpayer-funded research available to the public.

Withholding information on hurricanes also makes the work of other federal agencies, like the Federal Emergency Management Agency, more difficult. If people are not given the most accurate information to escape a natural disaster, it increases the likelihood they will need to rely on FEMA assistance to replace what they could not evacuate.

Going forward, it should not preemptively agree to withhold vital information from the public. NOAA should immediately reverse course and make its best hurricane predictions available, citing the clear and immediate harm members of the public will face if they do not have access to the data.

Israeli troops raid Al Jazeera's bureau in the West Bank on September 25, 2024.

We’ve said before that Israel’s assaults on Al Jazeera provide a real-time illustration of the dangers of the U.S.'s TikTok ban legislation and the power it gifts the government to muzzle its critics by invoking vague security threats.

Now Israel has escalated its efforts to silence Al Jazeera, raiding its newsroom in the West Bank and ordering it closed for 45 days. At the same time, the U.S. has expanded its targeting of foreign-owned platforms beyond TikTok, taking aim at Russian state media outlet RT with investigations and sanctions.

TikTok is not the same as RT — the latter is a state-owned media outlet that broadcasts Russian propaganda every day, while the former is a privately owned social media platform that China might or might not use to propagandize Americans.

But all three of these crackdowns — on TikTok, Al Jazeera, and RT — share two things in common. One, their proponents justify censorship by citing national security concerns stemming from the platforms’ alleged collaboration with adversaries, whether China, Hamas, or the Kremlin. Two, they cite no specifics, apparently hoping people will take for granted that their governments are cracking down on dissent with their interests in mind.

Israel sets a low bar

Any credibility Israel had when it comes to Al Jazeera (and it had very little) has unraveled since it first banned the network in May.

Its raid on The Associated Press the following month, based on the AP having sold pictures to Al Jazeera (as well as to thousands of other clients), clearly had nothing to do with Hamas or any other supposed national security concerns unique to Al Jazeera.

And any excuse for Israel’s latest raid on Al Jazeera’s Ramallah office was undermined when soldiers tore down the newsroom’s images of perhaps its best-known reporter, Shireen Abu Akleh. She’s the Al Jazeera journalist Israel previously apologized for killing in 2022 (although it still denies targeting her, despite investigations suggesting otherwise).

And it’s not as if Israel has limited its attacks on the press to Qatari-funded outlets like Al Jazeera. Its communications minister even tried sanctioning Israel’s own oldest newspaper, Haaretz, for criticizing the same war that Israelis themselves now protest en masse.

U.S. intentions in doubt

The U.S. has not raised any serious concerns about its close ally’s actions with respect to Al Jazeera (or any of its other press freedom violations, for that matter, from killing journalists to excluding them from the Gaza Strip). In fact, U.S. officials have themselves reportedly pressured Al Jazeera to soften its coverage of Israel.

So why should Americans believe that their government’s plans to ban TikTok, or, for that matter, to sanction RT, are any better intentioned or better supported by the facts?

On paper, the legislation authorizing the TikTok ban is, in many ways, worse than the Israeli law authorizing the Al Jazeera ban — at least Israel’s law requires the prime minister to obtain approval from the security cabinet or the government before any specific outlet is banned.

And our government has hardly articulated any stronger justification for banning TikTok than Israel has for banning Al Jazeera. The focus has been on things TikTok hypothetically could do — spy on or propagandize Americans — rather than anything it actually does.

But censorship in the name of national security, if it’s ever permitted at all, requires a concrete, imminent and severe threat — not the mere prospect of one. The government has not alleged — let alone proven — a threat from TikTok anywhere near as serious as the parade of horribles it claimed would unfold if the Pentagon Papers were released. Of course, the Supreme Court rejected those claims, the papers were published, and the sky didn’t fall.

The right to consume propaganda

The same goes for RT. We’re certainly not here to defend RT’s journalistic integrity (or lack thereof). But the First Amendment protects Americans’ right to consume foreign propaganda if they so choose. And that right is not dependent on whether the propaganda comes from an adversary or an ally.

As the Supreme Court said in 1945 — not a time when our government was unconcerned about foreign propaganda — the First Amendment “rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.”

Lauren Harper, our Daniel Ellsberg chair on government secrecy, wrote last week that the government has selectively declassified its conclusions about the threats posed by RT but not the underlying documents that might (or might not) substantiate them, and might (or might not) mitigate First Amendment concerns about sanctioning a news outlet for its content.

Why should Americans take officials at their word that the investigation is about anything more sinister than the network’s spreading of Kremlin propaganda?

They shouldn’t, especially when the same government asking for their trust says nothing as its ally abuses similar authority in plain sight to retaliate against journalists who criticize it.

A new decision by a federal court of appeals on Section 230 isn’t just nonsense; it could seriously undermine free speech online, including by journalists.

If it sounds backward to use the First Amendment to undermine a law meant to protect free speech, that’s because it is.

Yet that’s just what’s been done in a recent decision on Section 230 of the Communications Decency Act — the federal law that shields online services from legal liability for posts made by their users. A federal court of appeals used the First Amendment itself to sweep away many of the law’s protections for online content, including posts by journalists.

In late August, the court held that Section 230 doesn’t apply to claims based on platforms’ recommendation algorithms. Its decision allowed a case against TikTok to go forward, based on its algorithm recommending a “blackout challenge” video to a child who later died attempting it.

Distorting the First Amendment

The court of appeals claimed it was being guided by the Supreme Court, despite the fact that the justices have never weighed in on Section 230’s applicability to recommendation algorithms and even went so far as to sidestep the question last year.

Nevertheless, the appeals court said that a different Supreme Court decision holding that the First Amendment protects platforms’ choices about whether and how to display online content means Section 230 doesn’t protect them from being sued for those very choices.

Many have pointed out how nonsensical the court’s reasoning is, especially because Congress passed Section 230 to ensure First Amendment rights were protected online.

It’s possible the decision will be reversed, but if not, its practical effects could have dire consequences for journalists and everyone else who uses the internet.

To appreciate why, you need to understand two things: First, how much online speech the court of appeals’ decision applies to, and second, how platforms will likely respond to the court’s ruling.

Inevitable censorship of news

On the first point, the court of appeals’ decision seems to apply to everything posted on social media, because it’s all been sorted by some kind of algorithm. Platforms have to make choices about what content to display and how to display it, and they use algorithms to do it. If Section 230 doesn’t apply to content that platforms recommend, it’s hard to see what content it applies to at all.

Platforms can’t avoid this result by shutting off what most people think of when they hear about recommendation algorithms: those annoying systems that push content that users never asked to see. Even simple algorithms — like ones that show you only content posted by the people you follow or display content in reverse-chronological order — are still types of recommendation algorithms.

On the second point, how are platforms likely to respond to this decision? Because it means that platforms can’t rely on Section 230 for any user-generated content they recommend (which, again, is all content), they’ll be much more likely to aggressively remove content they believe could get them sued. But they’re not going to have a legal team parse every single post for liability risk — that would be prohibitively expensive. They’ll use flawed technological tools to detect risk and will err on the side of takedowns.

That, in turn, will lead to the overremoval of news from social media, especially news that’s critical of wealthy or powerful people or corporations who may sue. Imperfections in content moderation will also mean that platforms will overremove news stories about controversial or illegal matters even more than they already do.

It’s not just news on social media that will be impacted. Other online services, like search engines, also rely on Section 230 and also use recommendation algorithms. If Google or DuckDuckGo know they can be sued for “recommending” a news report that is potentially defamatory by ranking it highly in a user’s search results, they may delist it, making it much harder for users to find.

Without Section 230’s protections for content they algorithmically recommend, platforms will also remove content posted by regular internet users for fear of potential liability, meaning that everyday people will be less able to make their voices heard online. It will also mean that journalists may have a harder time finding information and sources about controversial topics online because it’s been removed.

The right way to respond to algorithmic abuses

While the court of appeals’ decision will be disastrous for online free speech if allowed to stand, that doesn’t mean that anger and concern over how platforms moderate content or use recommendation algorithms are unjustified. The toxic content allowed and recommended by platforms is horrifying, as journalists and researchers have repeatedly exposed.

The press must continue to investigate recommendation algorithms to uncover these problems. The public must pressure platforms to improve. Congress needs to pass comprehensive privacy legislation that prevents platforms from hoovering up the private information that powers some of the most noxious recommendation algorithms.

But excluding algorithmically sorted content from Section 230 won’t end recommendation algorithms, which are baked into how platforms sort and display content online. Instead, it creates a strong incentive for powerful platforms to silence journalism and the voices of individual users.

The court of appeals’ decision isn’t the end of online algorithms. But it may be the beginning of the end of online free speech.

RT’s office in Moscow. The Biden administration recently declassified intelligence findings to support new sanctions against RT, but did not declassify the documents themselves.

The Biden administration last week declassified information alleging that Russian state media outlet RT has, in the words of Secretary of State Antony Blinken, “engaged in covert information and influence operations and military procurement” on behalf of the Kremlin. The newly public information, released to bolster new sanctions against the news organization, did not include declassification of the underlying documents — only their findings.

This is the latest example of the Biden administration strategically declassifying U.S. secrets. It is a good initiative — and one that would be strengthened by declassifying the records themselves.

Failing to do so is a missed opportunity in the RT case for two reasons.

The first is that declassifying the records could help shore up support for a move that raises serious First Amendment concerns or questions of cherry-picked evidence. Releasing the underlying documents could also empower press advocates and other potential skeptics to mount an informed opposition to the administration’s efforts. That might not further the administration’s strategic goals but it is (or it should be) the American way.

Charges of military procurement and “information and influence operations” sound bad, but such allegations — and the documents they are based on — must be analyzed and challenged. Press freedom advocates have often been worried about these types of cases because it puts state-funded journalists in countries like Russia at risk of serious retaliation. Vetting the evidence is important for this reason, as is remembering that the documents in and of themselves should not be taken as the unbiased truth. They are pieces of evidence recording oftentimes subjective interpretations of events.

Americans should know exactly what kind of “information and influence” operations by state-sponsored media the government deems worthy of punishment. All state media outlets, including our own, seek to advance the interests of the government in some way, and Americans are constitutionally entitled to consume foreign propaganda if they so choose. If RT's alleged conduct is not starkly different from what other government media outlets do, then the investigation puts outlets worldwide at risk of retaliation.

Cherry picking evidence is also not an abstract concern. In 2003, for example, the Bush administration used bad intelligence from a debunked informant, codenamed Curveball, to justify its long-standing plan to invade Iraq. And the Biden administration has previously shown willingness to overlook free speech concerns when it contends that national security is imperiled without sharing any underlying evidence, including by supporting banning TikTok and prosecuting WikiLeaks founder Julian Assange.

The second reason is that declassifying documentary evidence is important during a presidential election season where one candidate has repeatedly made baseless and threatening claims about the press. Showing the public the details of Russian state media’s abuses — assuming the documents do so — would undercut politicians’ false equivalencies to conduct by American news outlets they don’t like.

The Biden administration’s secret-sharing program

The RT declassification is not the first time the administration has selectively downgraded classified information.

The Biden administration has repeatedly declassified intelligence on Russian activities in Ukraine. The effort was deemed so successful at countering Russian disinformation that it prompted the White House to build a “broad program to share secrets when it serves strategic goals,” according to a deep dive by Time magazine into the program. And while this approach to declassification is not new, the Biden administration’s method is unique both because it is a formal process that is centralized in the White House (as opposed to the intelligence community), and is used regularly, sometimes multiple times a day.

This effort has released information that helped de-escalate Serbian military buildup along the Kosovo border; undercut Chinese attempts to retaliate against the U.S. for then-House Speaker Nancy Pelosi’s visit to Taiwan; and persuaded Iran to stop supporting Houthi attacks on merchant ships in the Red Sea.

The National Security Council leads the program, but individual agencies like the CIA make the ultimate decision about whether information is declassified. This presents a challenge because “Intelligence officers who had classified secrets to begin with were loath to declassify them,” the Time report found. To address agency concerns, the Biden administration does not ask for full or finished reports, opting instead to ask for individual facts or data points. It then usually combines the declassified intelligence with open-source information for release to the press.

Show your work

White House-led declassification efforts should continue, but the administration itself has concluded that the program will only succeed if it has “enough credibility to overcome the U.S. history of bad intelligence and propaganda abuse.”

The solution is straightforward. Declassify the documents themselves. This would rebuff arguments that the intelligence being presented is cherry picked or weak.

The next time — and I do hope there is a next time — the administration strategically declassifies information, it should show its work and let the public see the documents. This won’t solve the crisis of overclassification, and declassifying strategically important documents should not take precedence over releasing records that reveal uncomfortable or politically inconvenient truths, but it is a step in the right direction.

Official Seal of the Muscogee (Creek) Nation, by Muscogee Red - Own work, is licensed under CC BY-SA 4.0.

The award-winning documentary “Bad Press” told the story of journalist Angel Ellis and her colleagues' fight to protect press freedom in the Muscogee (Creek) Nation, a Native American tribe based in Oklahoma.

It was one of a handful of tribes to codify protection for press freedom. And Mvskoke Media, the outlet Ellis works for, took full advantage of its rights, publishing the kind of critical reporting on tribal government that is sorely needed elsewhere in Indian Country.

But then the tribe’s lawmakers decided to repeal the Free Press Act, a move that allowed the tribal government to oversee and interfere in Mvskoke Media’s editorial decision-making, and withhold funding if it didn’t like the outlet’s content.

You can (and should) watch the film on The Criterion Channel for the rest of the story (use the code BadPress24 for a 20% discount). But the struggle for a free press on tribal land is by no means limited to one tribe or one outlet.

There's just no clear cut path to go into any of our tribal communities and accurately report on issues that could really raise the quality of life for our people.

We hosted an X Space conversation last week with Ellis, as well as Becca Landsberry-Baker, executive director of the Indigenous Journalists Association and Muscogee (Creek) Nation citizen, and Jodi Rave Spotted Bear, executive director of the Indigenous Media Freedom Alliance and citizen of the Mandan, Hidatsa and Arikara Nation.

Ellis explained that the development of press freedom protections on tribal land are, to an extent, in its infancy. “Reporting on indigenous issues is not emerging, but protecting it by policy is,” she said. “The most significant challenge for indigenous press freedom right now … is really access to information and having the safe space to advocate for good press freedom policy.”

Spotted Bear agreed, noting the absence of laws to ensure government records and meetings are open to the public. “There's just no clear cut path to go into any of our tribal communities and accurately report on issues that could really raise the quality of life for our people.”

That tribal citizens are also U.S. citizens protected by the First Amendment does not resolve the need for protections at the tribal level. First of all, tribal media outlets are usually dependent on tribal government for funding. “It's very hard to compete with the established news ecosystem for independent money. It's very hard to get,” Ellis explained.

She added, “I could go out and I could try to sell advertising to businesses, but they look at me and they say, hey, I'm trying to sell Ford pickups here. Why would I put an ad in your paper when I don't think the people who read your newspaper have enough money to buy my pickup?”

Seeking traditional legal remedies also poses challenges. “Can I appeal to the federal government as an American citizen, say that this tribe has violated my rights? Yes, it can be done, but you will be a pariah in your own community. Culturally speaking, you're going to be the person who has brought a federal suit against your family, basically,” Ellis said.

Further complicating things, Spotted Bear noted that each tribe is different. In her tribe, it’s more common to appeal to outside courts due to the lack of an independent tribal judiciary. But people attempting to do so are frustrated by seemingly never-ending inquiry about whether they’ve sufficiently exhausted their remedies at the tribal level first.

There are cultural issues in addition to legal ones, especially when it comes to contemporary notions of objectivity in journalism. Ellis used the example of a meeting followed by a meal: a mainstream journalist might skip the meal to retain their neutrality, but it’s “really rude not to [eat] in our community – if you’re coming to the meeting and there’s food, you’d better sit and eat, or else you’re pretty snobby.”

Every time an elected official of our tribe came to a community meeting to campaign, they were asked about press freedom, and they couldn't ignore it.

In Ellis’ view, connecting with communities she covers “enforce[s] that relationship of, hey, I'm a journalist, and I work for you to tell your story.” It’s a contrast from mainstream journalists who sometimes “come into a community, take some notes, take some names, and bounce the fuck out.”

While hesitating to disparage her colleagues, she noted that “the big consensus out there … as [to] what stories get precedence, and what stories get told is the only time mainstream cares about the reservation is when there's a big, sexy, scandalous story. Is the chief in handcuffs? They will show up then.”

Landsberry-Baker also highlighted the difference between tribal journalists who are accountable to their fellow citizens and outside journalists who are accountable to their news outlet. “You're able to do more nuanced coverage if you're a part of that community, because you know the tribal citizens, you know what your work is impacting. You know the stories, you know the history, you know the culture,” she said.

But tribal journalists need to balance that with the reality that many in the journalistic establishment – as well as law enforcement officers tasked with distinguishing journalists from activists – might not see it that way.

Bad Press was intended to show other tribal journalists a path toward overcoming the obstacles they face without relying on either U.S. courts or mainstream journalists. “We appealed to the community …Every time an elected official of our tribe came to a community meeting to campaign, they were asked about press freedom, and they couldn't ignore it. And so I think that when you talk about really advocating for good policy in Indian Country, it kind of starts and stays in the tribe,” Ellis explained.

But the film is relevant to all journalists and others who value press freedom, native or not. Landsberry-Baker called it a “beautiful tribute to the boots on the ground journalists.”

Ellis hopes the film will inspire all journalists to advocate for their own rights. Journalists “cannot be complicit in our own demise,” she said. “You can’t be a journalist without advocating for [press freedom], because that’s the world we live in.”

You can listen to the whole conversation here, or read an (imperfect AI-generated) transcript here, even if you don’t use X.

Director of National Intelligence Avril Haines before the Senate Armed Services Committee’s worldwide threats hearing this May. Haines has repeatedly said overclassification is a national security concern

Government secrecy functions as a control mechanism, and one that prevents the public from basic self-governance. That was the key takeaway from a 9/11 anniversary interview by Truthout with Lauren Harper, the first Daniel Ellsberg chair on government secrecy at Freedom of the Press Foundation (FPF).

On whistleblowers, Harper noted their fundamental importance but stressed that their protections “are not as robust as they should be, and these individuals should not face — or be expected to carry — the burden of fixing a system-wide crisis.”

She also highlighted the need for ongoing reporting on entrenched government secrecy. “People in the intelligence community and elsewhere work tirelessly their entire careers to keep information secret,” Harper explained. “Occasional reporting on specific examples of excessive secrecy is not enough to challenge that systemic tide.”

You can read the full interview here.

Los Angeles police and county workers remove a homeless encampment at a California state beach in August.

In recent weeks, police across California have threatened journalists with arrests for covering evictions of homeless encampments. It’s unclear why — the journalists aren’t interfering with the evictions. But they are documenting them, and clearly officers don’t want that.

We joined a coalition of over 20 press freedom and transparency organizations to warn authorities from Los Angeles to Sacramento that their own state law supplements constitutional protection of journalists’ right to access restricted areas where newsworthy events occur.

This is not a new problem. Police also violated the same law “left and right” earlier this year to arrest journalists covering protests against the Israel-Gaza war on college campuses and elsewhere. Check out our May interview with Susan Seager, an adjunct professor of law at University of California, Irvine School of Law, for more on that.

But it’s not just one law that police are violating. As the coalition explained, federal appellate courts nationwide have also protected the First Amendment right to record police.

The 9th U.S. Circuit Court of Appeals — the one with jurisdiction over California – has specifically ruled that even if police are entitled to disperse an unpermitted protest, encampment, or other allegedly unlawful assembly, they can’t disperse law-abiding journalists. Even the Department of Justice agrees.

Police in California have struggled repeatedly to cite any legal basis for their actions, because there is none. They’ve accused journalists of unlawfully intruding on their “work zones” — whatever that means. And they’ve claimed large areas are “crime scenes,” presumably because an allegedly unlawful encampment was set up there. That’s a tactic we also saw in Atlanta last year, when police illegally dispersed journalists covering protests against the police training facility commonly referred to as “Cop City.”

Sure, police may close off limited spaces in order to preserve evidence, but there’s no precedent for declaring large areas where low-level nonviolent offenses occurred to be “crime scenes” in order to arbitrarily banish the media for no legitimate law enforcement purpose.

Officers test these spurious legal theories at their own risk. Freelance photojournalist Jeremy Portje sued the City of Sausalito, California, as well as numerous police officials over a 2021 arrest while reporting from an encampment. Court records show the case recently settled, although the details haven't been made public.

April Ehrlich, another journalist arrested while covering an encampment sweep in 2020, also sued after the bogus charges against her were dropped. She was arrested in Oregon, not California, but Oregon also answers to the 9th Circuit.

Public radio reporter Josie Huang reached a $700,000 settlement agreement with Los Angeles County and the Los Angeles County Sheriff’s Department over her 2020 arrest. She was covering a protest, not an encampment sweep, but the same principles apply — police conduct, whether evicting people without homes or dispersing protesters, is newsworthy, and the First Amendment demands that journalists be able to cover it.

Last year, Stephanie Sugars of the U.S. Press Freedom Tracker, a project of Freedom of the Press Foundation (FPF), called the Los Angeles Police Department among the most “atrocious” of press freedom violators nationwide. They’ve lived up to that billing in the last year, including with the ridiculous failed lawsuits against journalist Ben Camacho for publishing pictures the police department gave him, which ended in another $300,000 settlement bill for taxpayers.

But that may have underestimated other law enforcement agencies in the state, from the San Francisco Police Department’s unlawful warrant to search an independent newsroom’s files to the revelation that the Los Angeles County Sheriff’s Department secretly investigated reporter Maya Lau on the plainly unconstitutional theory that her source materials constitute stolen goods. And now Sacramento is getting in on the action, intimidating reporters for covering news.

Let’s hope the coalition statement gets through to the offending agencies, even though the courts and legislature have not. Otherwise, Californians will not only miss out on important news, they’ll have to continue spending their money to pay for settlements.

Senate Select Committee on Intelligence’s Report of the Central Intelligence Agency’s Detention and Interrogation Program

The U.S. keeps too many secrets about its actions in the aftermath of 9/11. There’s no better example of this than the CIA’s torture program, which can trace its beginnings to a still-classified September 2001 memorandum of notification signed by President George W. Bush. This memo granted the agency “unprecedented authorities” to capture and detain suspected terrorists.

The outgoing Biden administration should commemorate the 23rd anniversary of the terrorist attacks by ordering the declassification of the Senate’s report on the CIA’s torture program. A fitting date for the declassification to be completed is Sept. 11, 2026 — the 25th anniversary of the attacks. This would not only help the public hold the government accountable for abhorrent human rights violations but would counter overwhelming evidence that the CIA has become too powerful for oversight.

The CIA knowingly destroys torture evidence

The late Sen. Dianne Feinstein, D-Calif., initiated what would become the Senate Select Committee on Intelligence’s Torture Report — arguably the most consequential congressional report ever compiled — after word emerged that the CIA had destroyed key evidence of its torture program.

The initial Senate investigation began in 2007, after Feinstein and her committee received a briefing from then-CIA Director Michael Hayden. The briefing concerned a 2005 order by CIA official Jose Rodriguez, who ran the agency’s torture program, to destroy 92 videos of agency officials waterboarding Abu Zubaydah. Rodriguez ordered the destruction of the evidence even after he and his then-chief of staff “repeatedly sought permission to have the tapes destroyed but were denied.” (His chief of staff at the time was Gina Haspel, who went on to run the agency despite her own concerning record on torture.)

Rodriguez later justified his behavior, saying that “the heat (from destroying the videos) is nothing compared to what it would be if the tapes ever got into the public domain.”

The Department of Justice investigated the destruction of the videotapes at least twice, but no charges were ever brought.

Congress tries to document abuse

The Senate Intelligence Committee voted to broaden its investigation beyond the videotape destruction in 2009, with Senate staff ultimately reviewing over 6 million pages of records across five years and producing the 6,700-page report.

This mammoth achievement was accomplished in spite of the CIA 1) misleading Congress and the White House about the program, 2) pushing misleading narratives about the torture program to the media, and 3) spying on Senate staff who were attempting to conduct oversight of the program. (After first denying it even happened, former CIA director John Brennan eventually apologized for the spying, but the agency and responsible officials faced no meaningful disciplinary measures).

The Senate Intelligence Committee shared the report with several federal agencies and the Obama White House with the eventual hope that it would be public. But a byzantine — and ultimately ineffective — effort to have the report declared a federal record subject to the Freedom of Information Act and eventually disclosed to the public failed under President Obama’s watch.

Litigation brought by members of the public has also proved unsuccessful. As recently as this summer, the U.S. Court of Appeals for the District of Columbia upheld the classification of the full report as a legislative branch record exempt from disclosure by the Constitution’s speech or debate clause.

The final report is still secret, but the conclusions from the 500-page, highly redacted executive summary are so damning they demand further disclosure. The findings include:

• The CIA’s own officers found torture to be ineffective and the agency failed to adequately evaluate its techniques.
• The CIA lied to lawmakers about the brutality of its program and the conditions of detainees’ confinement.
• The Department of Justice’s Office of Legal Counsel did not independently verify or conduct independent analysis of the CIA’s claims.
• The CIA’s management of the torture program hindered other national security missions.
• The CIA’s torture program damaged the United States’ global standing.

Is the CIA too powerful for oversight?

Additional bits of information about the torture program have come to light through Freedom of Information Act lawsuits. These revelations include:

• Photos of torture and abuse at Abu Ghraib prison.
• Detainee transcripts of torture.
• Information on conditions that led to the death of detainee Gul Rahman at a CIA black-site prison in 2002.
• Torture cables that were either authored or authorized by Haspel.

These piecemeal disclosures are not enough.

For the public to effectively self-govern, it must be able to engage in meaningful public debate about U.S. actions. It cannot do so if agencies like the CIA are allowed to flout congressional oversight and willfully destroy important documentary evidence with no meaningful consequence.

President Biden has the opportunity to make a difference. He should do what President Obama did not, and mandate the declassification of the torture report. In so doing, he could help show the CIA is not more powerful than Congress, the White House, or the best interest of the public.

***

More resources

Researchers and journalists should visit the following for reputable information on torture:

• The Rendition Project
• The National Security Archive’s Torture Archive
• The ACLU’s torture court cases website
• Carol Rosenberg’s reporting on Guantanamo Bay for both The New York Times and the Miami Herald

New York Gov. Kathy Hochul, above, ignored opposition from open-government and free speech organizations to sign an anti-transparency, anti-accountability bill into law yesterday.

New York Gov. Kathy Hochul signed into law an anti-transparency and anti-accountability bill that will compound existing problems with New York’s Freedom of Information Law, further delaying the release of important public records.

By doing so, Hochul ignored a memo of opposition from 10 open-government and free speech organizations, including Freedom of the Press Foundation (FPF).

The bill requires the government to inform employees (possibly including former employees) when their disciplinary records are requested. Don’t be fooled by the bill’s proponents – it has nothing to do with personal privacy and everything to do with government secrecy.

As Reinvent Albany – which led opposition to the bill – explained in a statement, “FOIL processes are grossly underfunded, understaffed, politicized, and overwhelmed by the volume of requests.” That means compliance with legitimate public records requests for important, newsworthy documents can take months or years.

Now, short-staffed agencies will have to track down employees’ contact information before complying with public records requests. In some cases where the requester names a specific employee, that might be relatively simple. But most requests are far broader than that.

Let’s say a reporter were to request, for example, all disciplinary records involving state police accused of mistreating journalists and protesters during Black Lives Matter protests in 2020. Who knows how many officers would need to be notified?

A similar proposal in California failed earlier this year, thanks to the work of advocates from the First Amendment Coalition and several other organizations.

While fast-tracking a bill to needlessly delay FOIL compliance, New York’s legislature ignored four bills that would have strengthened the state’s public records laws, also supported by FPF.

Among other things, these bills would have allowed requesters to quickly appeal “constructive denials” when agencies ignore their requests, increased transparency about how agencies handle requests they received, made it easier for people whose requests were baselessly denied to recover attorney’s fees, and limited businesses’ ability to shield information from disclosure that they submit to the government.

Public records laws aren’t working at either the state or federal levels. Instead of attempting to fix the problem, New York officials are inventing new ways to sabotage transparency, at a time when many media outlets can hardly afford litigation to recover public records.

Bills bolstering transparency are difficult to advance for obvious reasons — government officials have every incentive not to pass them, especially when they don’t anticipate much political cost.

We commend outlets like the Niagara Gazette, The Buffalo News, Adirondack Daily Enterprise, The Daily Gazette, and Newsday for urging lawmakers to do the right thing. We can’t help but wonder if this story would’ve ended differently had some of the state’s largest newspapers also used their news and editorial pages to stand up for transparency and accountability.

Chicago Police Superintendent Larry Snelling talks to officers after demonstrations near the Israeli Consulate during the Democratic National Convention in August.

Last week, we hosted an X Space forum for independent journalists who reported on protests outside the Democratic National Convention to discuss their experiences dealing with the Chicago police.

To sum things up, the journalists did not give the police positive reviews. That may not be surprising, but the examples they raised show problems exceeding the usual tensions between officers and reporters at protests.

Journalist Ford Fischer kicked off the discussion by noting his alarm at threats from Tom Ahern, deputy director of news affairs and communication for the Chicago Police Department, to take away press passes from journalists who didn’t obey unconstitutional orders to disperse. “In 10 years of doing this kind of work, of covering protests, I don’t think I’ve heard this specific kind of claim,” Fischer said.

I’ve never heard, ever, any police officer anywhere, anywhere, in 20-plus years threaten to revoke press credentials.

Another journalist who encountered Ahern, Tina-Desiree Berg, agreed that Ahern’s antics were unprecedented. “I’ve never heard, ever, any police officer anywhere, anywhere, in 20-plus years threaten to revoke press credentials,” she said. Berg was particularly alarmed by Ahern not only failing to exempt the press from dispersal orders but expressly directing orders at journalists. “He literally said into the bullhorn, ‘Media, you need to disperse. Now, if you don't disperse, we're going to arrest you.’ That to me, was very shocking.”

Videojournalist Sean Beckner-Carmitchel also objected to the threats to seize credentials, noting that they are “not property that belongs to the Chicago Police Department. That would actually, in my opinion, be theft.” He also called out efforts to limit the space from which he could film the protests. “My assignment was to cover the protest, and anything that makes it difficult to do so is not just a violation of First Amendment rights, but also adds to a lack of transparency within the Chicago Police Department,” he said.

Beckner-Carmitchel and others pointed to the Chicago Police Department’s role in issuing press credentials — a procedure that other cities, like New York, have reformed. “The police department is not the arbiter of the media,” he said.

Mel Buer, who reports for The Real News Network, added, “The police presence in the city was meant to overwhelm not just protesters, but also press, and the way that they did this … made it extremely difficult for us to do our jobs and for these protesters to assemble and march.”

Kevin Gosztola of The Dissenter agreed on that point: ”All of these police are there for the purposes of showing off their overwhelming force.” He acknowledged that he opted against covering a protest on the evening of Aug. 20 because he “didn’t trust the CPD not to escalate it into a riot.” Multiple journalists ended up being arrested at that protest.

Buer also called out Ahern, for both his actions and his temperament. “Out of all the people who should be calm, cool, and collected,” it should be him, Buer said. “I don’t think he did his job correctly. … I’m surprised he still has his job.” But Ahern wasn’t the only one. Buer also recalled CPD Superintendent Larry Snelling telling her “I see your press pass, but you’ve got to move,” ignoring the Department of Justice’s instructions not to disperse journalists covering protests.

We agree and have previously said Ahern’s handling of the protests – which included not only threatening journalists but reportedly ripping off at least one journalist’s press badge – should disqualify him from his role with the police department.

Photo and videojournalist Mostafa Bassim, who documented arrests of journalists during the convention, recalled similar experiences, including officers telling him he needed to leave or they’d take his press pass. “Where? There is no place to go,” he recalled responding. “I am press! I am press!”

Independent journalist Talia Jane Ben-Ora pointed to the lack of clarity from police on how journalists could do their jobs while avoiding arrest or dispersal, alleging that police acted “wildly incoherently throughout the whole week.”

I was just at the wrong place at the wrong time, and then, well, nine hours in the slammer

She also noted that, when they weren’t threatening to seize journalists’ press passes, police photographed them, leading journalists to flip their passes over so as not to be visible.

Freelance journalist Olya Fedorova, one of the journalists arrested on Aug. 20, said that having CPD credentials was “making it more difficult” to report because it placed a target on her back.

“When Tom Ahern ordered my arrest, it seemed that he was just personally frustrated by the fact that the press is present,” she said. “I was just at the wrong place at the wrong time, and then, well, nine hours in the slammer,” despite commitments from police to avoid taking journalists off the scene over minor offenses.

The U.S. Press Freedom Tracker’s Stephanie Sugars was not in Chicago for the DNC, but she spent the week monitoring press freedom violations and talking to reporters on the scene for the Tracker, a project of Freedom of the Press Foundation (FPF). She observed that “it should not have come as a surprise that there would be the number of journalists present that there was. That is something that they could have and should have easily accounted for and created a more coherent plan,” she said. She noted numerous accounts of confusing directives from officers.

“You would be directed to get on the sidewalk. Oh, no, you can't be on the sidewalk. Get in the street. Oh, not on this side of the street. Go that direction. Yes, you have to disperse as a member of the media and be outside of this kettle, or we're not going to call it a kettle, because that's illegal. But we're not going to tell you where you can actually exit.”

Some journalists also urged their colleagues to reconsider their approach to dealing with police. Brian Karem noted that having covered every convention since 1984, “I want to tell you, that what we saw was not unusual. … What I always tell journalism groups beforehand is reach out ahead of time and say, ‘Listen, I know you all are going to be worried about us there. We should be involved in that planning.’ Sometimes they'll listen to you. Sometimes they won't.”

if you had seen a cop act that way to anyone else, you would videotape it. You would interview them. You would report it. Don't take yourself out of that mix.

When dealing with police on the scene, he said journalists should “be nice, but be firm,” and must be willing to be arrested. And when police act inappropriately, report it, he said. “If it had happened to anyone else, if you had seen a cop act that way to anyone else, you would videotape it. You would interview them. You would report it. Don't take yourself out of that mix. You're also a human being that deserves to be treated with respect,” Karem said.

“But never get rude or combative with them, because that only plays against you. You've got to maintain that sense of decorum, which is really hard when they're being assholes to you,” he added.

Chicago-based journalist Raven Geary of Jinx Press raised concerns about “parachute journalism” and unnecessary agitation by out-of-town reporters. “You guys get to go home, and we still have to deal with these police,” she said.

“I think as journalists, we have a very big responsibility to the communities we cover not to raise the temperature and not to agitate, because when that police violence comes down, it's going to come down on people who have less resources than us, and are more marginalized than us, and more vulnerable than us, and these police are now amped up after everything that happened,” she said.

You can read and listen to the conversation here, even if you don’t use X. Note that the transcript is AI-generated and imperfect.