Freedom of the Press

The St. Louis Post-Dispatch is the latest newspaper to be hit with an unconstitutional "prior restraint" prohibiting it from publishing information the government accidentally made public.

A St. Louis judge issued an unconstitutional “prior restraint” last week, prohibiting the St. Louis Post-Dispatch from reporting on a mental health evaluation of a man accused of killing a police officer. It appears the paper was able to access the evaluation after it was accidentally filed as a public document. This news came the same week a judge rejected the City of Los Angeles’s efforts to force journalist Ben Comacho to return photographs of undercover police officers released to him pursuant to a records request.

Both cases ignore that, on the rare occasion when the government has a legitimate basis to withhold records from the public, the onus is on the government, not the press, to ensure that they’re withheld. The Supreme Court has explained that “a contrary rule … would force upon the media the onerous obligation of sifting through government press releases, reports, and pronouncements to prune out material arguably unlawful for publication.”

That’s why the Court has held at least four times that once the government releases records to the press, even accidentally, it cannot claw them back or prohibit or punish their publication, regardless of how sensitive the records may be. It’s quite unusual for the Supreme Court to accept so many cases involving essentially the same legal issue, but apparently the justices wanted to make sure trial judges got the point.

Well, they didn’t. The St. Louis judge, Elizabeth Hogan, reportedly thinks her case is different from the others because she needs to protect the fair trial rights of the man who was the subject of the evaluation. But the Supreme Court has not wavered from its position even in a case where the inadvertently released records identified victims of sex crimes.

That case involved whether journalists who disclosed victims’ identities could be punished after-the-fact but Hogan went even further by prohibiting the Post-Dispatch from publishing the evaluation in the first place. That’s a prior restraint, “the most serious and the least tolerable infringement on First Amendment rights.” It’s unconstitutional even when national security is allegedly threatened. Every judge studied the Pentagon Papers case in law school but somehow they continue issuing prior restraints for even less compelling reasons.

That’s not to say that Sixth Amendment fair trial rights aren’t important. Of course they are – and the press protects those rights by informing the public of the workings of the criminal justice system. The Supreme Court instructs trial judges to deal with potential prejudice to defendants’ fair trial rights arising from media publicity through the jury selection process, or even by moving the trial elsewhere, rather than censoring journalism. And studies have shown that jurors are able to remain objective despite pretrial publicity.

But judges continue to panic about publicity and issue unlawful orders like Hogan’s. Just last year, for example, a Sarasota, Florida, judge barred a newspaper from publishing the names of deputies involved in a fatal shooting. Also last year, a judge in Colorado prohibited the Denver Gazette from publishing court documents mistakenly released to a journalist. These orders and many others were eventually lifted but only after media outlets incurred legal fees and, more significantly, important news was delayed by rogue judges’ unconstitutional antics.

Camacho, the Los Angeles journalist sued for not returning records police gave him, filed a motion under California’s anti-SLAPP (short for Strategic Lawsuits Against Public Participation) law. Hopefully the City will be sanctioned and forced to pay Camacho’s attorney’s fees for defending its frivolous lawsuit. Unfortunately, there is no similar remedy when the frivolousness comes from the bench. Maybe the Supreme Court needs to revisit this issue a fifth time. Or maybe bar associations and other power brokers in local judicial elections, in St. Louis and elsewhere, need to stop endorsing judges who don’t understand the basics of the Constitution.

A school board member's Facebook post about an LGBTQ book display at a Pennsylvania high school library similar to the one pictured here led to a public records case that could make it harder to access public official’s social media posts.

If a public official or employee in your town posted racist comments about students at the school where they work, an offensive rape joke when discussing the president, or an expletive-laden rant in response to a constituent, wouldn’t you think you have a right to know about it? Unfortunately, if you live in Pennsylvania, it just got harder to exercise your right to learn about — and report on — public employees’ social media activity. A recent decision by a Pennsylvania appellate court raises the bar for public records requests for social media posts made on officials’ personal accounts, even when they are about public business.

The decision in Penncrest School District v. Cagle establishes a complex three-part test for determining when social media posts made by public officials on their personal accounts are public records under the state’s Right-to-Know Law. The test requires courts to examine whether the social media account has indicators of an “official” status, whether the posts “prove, support, or evidence a transaction or activity of an agency,” and whether the public official acted in their official capacity in creating, receiving, or retaining the posts.

The case involved a request for Facebook posts and comments made by two Penncrest School Board members about LGBTQ issues and the school district. The request was spurred by school board members’ social media posts about a display of LGBTQ books at a local high school library. The display and posts were also discussed at school board meetings.

As one Pennsylvania attorney told Spotlight PA, the appeals court’s decision is a significant change to Pennsylvania law, which had previously been interpreted to presume that a record is public “anytime a public official communicates about public business.”

In contrast, the test the appellate court lays out requires records requesters to satisfy multiple factors, some of which seem contrary to the Right-to-Know Law’s presumption of openness.

For example, the appellate court identified two indicators that suggest a social media account has “official” status: if the account has the “trappings” of an official agency or if that official has a “duty” to run it. Officials may be able to circumventing public records laws, then, by purposefully using a social media account that appears personal or unofficial. Officials are far more likely to let their guards down and speak frankly on their personal accounts — especially when compared to bland talking points likely to be found on an official account — but the court’s test makes it harder to access these often highly newsworthy statements.

The appellate court also says that lower courts must consider all three of the factors laid out in its decision, but allows them to assign different weights to each factor on a case-by-case basis. This means that a court could deny a requester access to social media records even if they prevail on most of the factors, if the court decides that a single factor outweighs the others. A judge who is inclined to keep a newsworthy post out of public view can almost always find a way to do so under such a loose and subjective standard.

Making it harder for Pennsylvanians to access records of social media posts by government officials is a move in the wrong direction. There’s already a long and unfortunate history of officials attempting to evade public records laws by using personal email accounts or text messages. Thankfully, many courts and public agencies have recognized that government business conducted through personal email accounts or texts on personal devices still creates a public record subject to freedom of information laws. The same principle should apply to social media: Regardless of where government officials discuss or conduct government business, the public should have access to the records.

Of course, it may be difficult for governments to retain and produce social media posts made on officials’ private accounts. That difficulty, however, does not excuse them from their obligation to do so. Governments can address this issue by establishing social media policies that direct all employees to limit posts about government business only to official social media accounts or by requiring officials to maintain records of their personal accounts if they post about public business.

Pennsylvania is not the only state to consider whether public officials’ posts on their personal social media accounts are public records. For example, in 2018, a Washington appellate court explained that social media posts on a personal page are public records if they relate to the conduct of government and are prepared by a government employee “acting in her official capacity, conducting public business, or otherwise furthering the [government’s] interests.” This more straightforward analysis is less likely to lead to lengthy litigation that can stymie public records requests and allow governments to withhold records about the conduct of public business from the public.

Public officials’ use of personal social media accounts also raises other legal questions. The Supreme Court recently agreed to hear two cases about whether public officials can block people from their personal social media accounts that they use to communicate about government business. Both cases are about lower-level government officials, but they echo the issues in the case challenging then-President Donald Trump’s blocking of critics on Twitter, which the Second Circuit said violated the First Amendment. The Supreme Court’s decisions will have important ramifications for journalists, whom public officials sometimes block on social media, and interpretations of the First Amendment more broadly.

As more and more government business is done online, journalists will have to continue to grapple with how to cover public officials’ use of social media for government business, whether by fighting attempts to block them or wresting public records from the digital sphere. Courts, too, will have to apply the First Amendment and public records laws that were written before the advent of the internet, let alone social media, to determine what limits there are on blocking and what disclosures the law requires.

Ultimately, public records laws are meant to shed light on government, not conceal government activity. If courts won’t protect public access to officials’ online statements on government affairs, then legislatures must act to update the laws for the digital age and preserve the public’s right to know.

United States Supreme Court

Journalists concerned that two highly anticipated Supreme Court rulings might cause online platforms to censor news content can breathe a temporary sigh of relief. In Gonzalez v. Google and Twitter v. Taamneh, the court sided with social media companies in a legal battle about online terrorist content and declined to reinterpret Section 230, the federal law that shields online services from legal liability for posts made by their users.

Section 230 is sometimes portrayed as a boon for tech giants, but in reality, it’s an important free expression protection for countless websites, including pretty much all news outlets, as well as internet users, including journalists. While the decisions are a good outcome for journalists, other cases pending before the court, as well as several bills in Congress, continue to threaten online speech.

Both Gonzalez and Taamneh were about whether online platforms can be held liable under the Anti-Terrorism Act for aiding and abetting terrorist acts carried out by ISIS. The plaintiffs’ basic theory was that Twitter, Facebook, and YouTube should be liable because they allow ISIS to use their services, recommend ISIS content to other users, and fail to take enough steps to remove ISIS content. Thankfully, the court ruled on both cases while sidestepping Section 230 entirely.

What does this mean for the press? First, the court’s decision not to touch the current interpretation of Section 230 (at least for now) is good for journalists and news organizations. Section 230 fosters free expression by shielding online services from liability for the things their users say. For journalists, in particular, the law protects their ability to use the internet to publish news reports and seek out newsworthy information. Without Section 230, online services could be held liable for the things their users say, and they wouldn’t risk hosting controversial content or content that could potentially get them sued. As a result, platforms would over-remove users’ content, including content by journalists.

A platform might remove news reports about powerful or wealthy (and litigious) figures, for example, for fear of being sued themselves and drawn into lengthy and expensive litigation. The over-removal of content would also make it harder for journalists to find information online. For instance, the #MeToo movement, and all of the investigative reporting it spurred, may never have gotten off the ground if Twitter removed user’s posts because it was worried about its own potential liability for defamation. Section 230 also protects journalists and news outlets directly when, for example, they retweet someone or operate a comments section on their website.

Second, the court also decided in Taamneh that the plaintiffs’ claims weren’t enough to create liability under the Anti-Terrorism Act. That’s good news for news outlets who cover terrorists and terrorism. During the oral argument, Justice Brett Kavanaugh asked whether CNN’s 1997 interview with Osama bin Laden that al-Qaeda used as “tool for recruiting” would have made CNN liable for aiding and abetting the Sept. 11 attacks under the plaintiffs’ theory. As wild as it is to think that a news interview could be considered aiding and abetting terrorists, the plaintiffs’ attorney had a hard time answering that question, ultimately saying that “the First Amendment is going to solve that.”

The court’s decision in Taamneh seems to put to rest any question about aiding and abetting liability for news reporting about terrorism, because the court said a defendant can be held liable for aiding and abetting under the ATA only if it “consciously and culpably” participates in a wrongful act in order to help “make it succeed.”

The court’s decisions leave in place the current interpretations of the law that largely protect online speech, including by reporters. But the threat to Section 230 and online speech by reporters and others isn’t over. Some justices have written that Section 230 should be significantly limited, Congress has proposed numerous bills to repeal or limit Section 230, and the Biden administration has also been critical of the law. In addition, the court is likely to take up two other cases in the next term, NetChoice v. Paxton and Moody v. NetChoice, in which it could reinterpret Section 230 and First Amendment protections for online speech more broadly, with potentially significant ramifications for the press.

As they consider changes to or interpretations of the law, both Congress and the Supreme Court must prioritize the rights of journalists and other users to speak and find information online. Gonzalez and Taamneh may be behind us, but journalists, news outlets, and free speech advocates are in for a long road ahead to protect free expression online.

In one of his last public talks, to a room full of more than 200 journalists, Daniel Ellsberg was asked what the media could do to better support whistleblowers. In a passionate speech, Ellsberg implored the crowd, and the press in general, to investigate the U.S. government’s classification system. As he explained, our democratic society is making a serious mistake “in not investigating the secrecy system, covering how it acts, how it works, and how it keeps secrets and what secrets it keeps.”

As many people know, Ellsberg — the legendary Pentagon Papers whistleblower and Freedom of the Press Foundation (FPF) co-founder — was diagnosed with terminal pancreatic cancer a few months ago and doesn’t have much more time left with us.

In our view, there is no better way to honor our friend and hero than to attempt to fulfill this wish.

Freedom of the Press Foundation will soon launch the “Daniel Ellsberg Chair on Government Secrecy.” This full-time staff position will be dedicated to what Ellsberg has spent a large portion of his life highlighting the need for: massive reform of the secrecy infrastructure in the United States. In the coming months, we’ll seek funds to fully endow this chair position so that it can live in perpetuity, and be free from changes in any fiscal or political climate.

Ellsberg has spent the last five decades drawing attention to the fact that overclassification is a fundamental problem for our democratic society. When so much information is classified, it becomes impossible for citizens, journalists, and oversight bodies to access vital facts about government activities. This lack of transparency undermines public trust in government institutions and hinders the ability of the public to hold officials accountable for their actions.

The United States government has nearly 3 million people with security clearances and classifies billions of pages of documents per year — including virtually everything in the foreign policy and national security realms. It constantly violates its obligations under the Freedom of Information Act and delays releases for years, uses the pernicious “state secrets privilege” to stop accountability in courts, layers on various restrictions to prevent Congress from learning what they need to know, and abuses the Espionage Act to threaten reporters and prosecute whistleblowers who go to the press with information of vital public interest.

Further, declassification and FOIA offices are severely underfunded. Add to this the fact that officials face no consequences for over-classifying information, but severe consequences for not classifying or for “leaking” improperly classified information. You’re left with a government with little reason to be transparent. And the tone set by the federal government inspires state and local governments to be equally secretive and misuse open records laws. Struggling media outlets often lack the resources to fight these abuses.

The Daniel Ellsberg Chair on Government Secrecy will be responsible for researching all aspects of government secrecy—from the problem of overclassification to the limitations of FOIA and the abuses of the Espionage Act.

This full-time position will be dedicated to turning the enigma of secrecy abuses into public conversation starters. They will work hand-in-hand with journalists to spotlight overlooked stories about classification system malpractices. They will also apply pressure where it needs to be by lobbying Congress for landmark changes to classification laws and the Espionage Act. This position aims to not just follow in Ellsberg's footsteps, but make strides forward, championing one of the causes he has dedicated his life to. This is more than a Chair, it's a crusade for transparency, continuing Ellsberg's half-century battle.

For now, our co-founder and our friend is still with us. And we dearly hope reading this announcement will make him smile, knowing we will do everything in our power to carry his torch in the years to come.

The restraining order obtained by Arizona Sen. Wendy Rogers against Arizona Capitol Times reporter Camryn Sanchez on April 19, 2023.

An Arizona judge struck down a restraining order against a journalist whose supposed offense was to knock on a state senator’s door to ask questions while investigating her residency. The judge ruled last week that the reporter, Camryn Sanchez of the Arizona Capitol Times, had a “legitimate” purpose for her actions and the senator, Wendy Rogers, did not have a “reasonable” basis to fear the journalist. Good news, but it’s troubling that the case got to this point.

As one court explained, journalists have an “undoubted right to gather news from any source by means within the law.” The restraining order, granted on April 19 by Judge Amy Criddle, impeded Sanchez’s ability to pursue her investigation for three weeks until the order was finally withdrawn. In news years, that can be a lifetime. It forced her and the Capitol Times to spend time and money preparing to testify rather than reporting the news. And it let Rogers shift attention from whether she lives in the district she represents to a silly debate over whether journalists can knock on people’s doors.

Our U.S. Press Freedom Tracker has no prior record of a government official obtaining a restraining order against a journalist since it began documenting violations in 2017. The closest case involved a cosmetic surgeon in Los Angeles. A judge quickly dissolved his restraining order upon learning that he’d neglected to mention that the people he sought to restrain were Los Angeles Times reporters. She then ordered the surgeon to pay the Times’ legal fees.

Judge Howard Grodman, who struck down the Arizona restraining order, reportedly expressed skepticism about granting a similar attorney’s fee award. His fear is that doing so might cause those who really need a restraining order to hesitate to seek one. It’s a legitimate concern, but it’s easily mitigated by making the reasons for the award clear. An attorney’s fee award is far more likely to dissuade other politicians from similar antics than it is to scare victims of real abuse away from the courthouse. Anyone who is not an elected official seeking to muzzle journalists investigating potential malfeasance should have nothing to worry about.

Other comments at the hearing were also concerning, despite the positive outcome. Rogers’ lawyer contended that the recent passing of state legislation to keep elected officials’ addresses and other personal information out of the public record meant that it was reasonable to bar journalists from politicians’ doorsteps. We’ve written that similar legislation, even where seemingly well-intended, creates a slippery slope that will ultimately reduce transparency and accountability. But we never imagined an argument quite so preposterous.

Fortunately this particular judge didn’t buy it. But what about the next one? After all, another judge, Criddle, granted the restraining order in the first place, despite Rogers making her intention to muzzle journalists clear, remarking, “The idea here is for the person to learn their lesson and then leave the situation alone, correct?”

Most judges (though, unfortunately, not all) understand that the First Amendment does not permit “prior restraints” barring journalists from publishing news. That was well-established even before the Pentagon Papers case, where the Supreme Court refused to enjoin publication of leaked documents despite the government’s claim of a national security threat.

But many judges, like Criddle, don’t realize the Constitution protects the right to gather news, not just publish it. That means requests for restraining orders, gag orders, closures of court files and other restrictions on journalists’ access to news often don’t set off the alarm bells they should. That’s why Rogers, previously known for calling for her opponents to be hanged at white nationalist gatherings, was able to obtain the unconstitutional order based on her allegation that Sanchez’s door-knocking and question-asking was “creepy” and not “normal” journalism.

Also worrisome was an exchange at the end of the hearing where the judge (perhaps inadvertently) implied that he may have ruled differently had Rogers posted “no trespassing” signs or instructed the journalist not to come to her homes. Rogers’ lawyer reportedly responded by announcing in open court that no journalists are welcome to knock on her door.

Of course, government officials have no power to unilaterally banish reporters who are investigating them. The courtroom was full of people with law degrees. It’s troubling that none of them questioned the suggestion that a senator could have obtained an order restraining routine newsgathering if only she’d first instructed the journalist to stop investigating.

Not to sound like a sore winner, but, despite Grodman’s correct ruling, the case laid bare the anti-press attitudes of far too many of our elected officials as well as the frequent disregard of the First Amendment by far too many judges. Sanctions against Rogers — including an order that she pay the Capitol Times attorneys’ fees — would send a strong message that the courts are not to be weaponized by politicians against journalists.

FOR IMMEDIATE RELEASE:

Last month, an Asheville, North Carolina, judge convicted two journalists of trespassing for doing nothing more than recording police conducting a homeless encampment sweep at a public park on Dec. 25, 2021. The journalists, Matilda Bliss and Veronica Coit, are entitled under North Carolina law to a second trial, this time with a jury.

Freedom of the Press Foundation (FPF) and the Committee to Protect Journalists (CPJ) led a coalition of over 45 organizations calling on Buncombe County District Attorney Todd Williams to drop the prosecution immediately. The letter, sent on World Press Freedom Day, explains that “[t]he journalists should be commended — not tried — for spending Christmas away from their families to perform the public service of documenting important news.”

Signers include everyone from press rights and civil liberties organizations like Reporters Without Borders (RSF), Society of Professional Journalists (SPJ), the National Press Club and the Foundation for Individual Rights and Expression (FIRE), to national media publishers like The Intercept, Penguin Random House, TEGNA and McClatchy.

“This prosecution is both unconstitutional and pointless. The First Amendment prohibits using trespassing laws as a pretext to retaliate against journalists for doing their jobs. And nobody in Asheville stands to benefit from government resources being wasted to criminalize journalism,” said FPF Advocacy Director Seth Stern. “The progressive image the city works to cultivate is further damaged every day the charges aren’t dropped.”

Katherine Jacobsen, U.S. and Canada program coordinator at CPJ, added, “We are gravely concerned about the press freedom implications of the continued prosecution of Asheville Blade reporters Veronica Coit and Matilda Bliss. Journalists should not be tried simply for doing their jobs and covering matters of public importance.”

The case has also caught the attention of activist, actor and FPF board member John Cusack, who tweeted that it “should be a national news story. Just because [the journalists] don't work for a mainstream news outlet doesn't mean their First Amendment rights are less important.”

The journalists are not accused of harming or obstructing police, yet Coit was given a suspended prison sentence and probation, while Bliss was fined. Police also extrajudicially banned them from city parks and unlawfully searched Bliss’s phone. Body camera footage, released after a petition filed by FPF, CPJ and the ACLU of North Carolina, shows officers deciding to arrest the journalists before clearing the camp “because they’re videotaping” and wondering aloud if one journalist would “wise up” after the other’s arrest.

You can read the full letter below.

A 2018 ICE summons demanded a law journal editor disclose the source of a leaked memo on Trump administration asylum policies. New reporting reveals other similar summonses to journalists.

Last year the Department of Justice enacted regulations restricting prosecutors from prying into journalists’ newsgathering. It was certainly a welcome development. But it seems like every week news breaks that underscores the need for a more widespread and permanent solution to the unfortunate tendency of public officials to abuse their offices to spy on journalists.

That solution is the PRESS Act — a bipartisan federal “shield” bill that almost became law last year and will likely soon be reintroduced in this Congress. It would prohibit the government from spying on journalists or threatening them with prison if they don’t burn their sources. In turn, it would allow sources wishing to expose malfeasance or bring other important news to light to do so without fearing for their livelihood or even their freedom.

The only exceptions to the PRESS Act’s proscription on surveilling “covered journalists” (which is broadly defined) are for imminent national security emergencies. The act would have far more permanence than the current agency rule, which a President Trump or DeSantis would almost certainly repeal. And it would extend across the federal government — not just to the DOJ. The following examples are just the latest incidents demonstrating the need to pass the act:

Congressional harassment of journalists

Last week Rep. Stacey Plaskett sent a letter to journalist Matt Taibbi demanding that he supplement prior Congressional testimony by answering questions about his newsgathering and discussions with his alleged source, Elon Musk. The letter then baselessly implies that Taibbi could be imprisoned for perjury should he not supplement his testimony. It’s the most recent of several attempts by the government to pry into Taibbi’s newsgathering.

At issue in the letter was Taibbi’s testimony around his reporting on the Twitter Files — internal Twitter documents that Taibbi and others contend evidence improper collaboration between government officials and Twitter to censor disfavored views. Sure, there are plenty of opinions on Taibbi’s reporting and whether the Twitter Files were as significant as he claims. Journalist communications that interest politicians tend to involve controversial stories and the First Amendment doesn’t limit its reach to exemplary reporting.

But does Rep. Plaskett — or anyone — believe Taibbi’s responses to her questions would stop an imminent terrorist attack or national security emergency? Of course not. Her (and other Democrats’) interest is in countering the politically damaging narrative arising from Taibbi’s reporting, a focus of the House Subcommittee on Weaponization of the Federal Government.

The PRESS Act rightly recognizes that politicians’ desires to defend their reputations, even against unfair attacks, do not justify intrusion into newsgathering. It would have stopped not only Plaskett’s questioning of Taibbi but a host of other examples of politicians from both parties harassing journalists whose sources cause them political headaches.

Administrative subpoenas demand journalists’ sources

Another recent news story by Wired revealed the extent of U.S. Immigration and Customs Enforcement’s use of a little-known legal tool, known as a 1509 summons, to improperly surveil journalists and others. The summons essentially function as subpoenas, but without judicial oversight. They’re only supposed to be used in investigations of customs violations, but numerous experts and insiders contacted by Wired say they’re frequently abused.

ICE’s use of 1509 summonses to target journalists and their sources is not news. Freedom of the Press Foundation’s U.S. Press Freedom Tracker reported in 2018 on one such summons issued to a law journal editor who published a leaked memo detailing the Trump administration’s decision to restrict asylum for victims of domestic and gang violence. The summons’ demands included “contact information of the source of the document.” In 2020, the Tracker reported another ICE summons seeking sources and more in connection with a BuzzFeed story about Trump’s expansion of fast-track deportations.

But the Wired story revealed just how widespread ICE’s abuse of the summons process may be. Wired turned up records of two more summonses issued to newspapers — the Bangor Daily News and Seattle Times — although neither paper confirmed receiving the summonses. It also found summonses targeting everyone from kids’ sports leagues to abortion providers to schools to boards of elections. PRESS Act co-sponsor Sen. Ron Wyden is well aware of the problem — his own investigation into 1509 summonses showed that ICE shared records of financial transfers with hundreds of law enforcement agencies nationwide.

It goes to show that federal prosecutors are far from the only ones looking to peer into newsrooms. But the PRESS Act would eliminate the need for agency-by-agency whack-a-mole which, even if successful, may be nullified by future administrations. The act has broad bipartisan support and should be brought to a vote as soon as possible once it’s reintroduced.

Artist and actor David Choe, seen here working on a mural in 2008, claims footage of him describing raping a masseuse should not be taken literally. But he's using copyright law to stop people from deciding for themselves.

This week, artist and actor David Choe made headlines by citing alleged copyright violations to scrub the internet — including journalists’ social media accounts — of clips from a 2014 podcast where he seemingly admitted raping a masseuse. He later claimed that he made up the story for shock value and said it should be taken as performance art.

The incident exemplifies the frequent abuse of copyright law to silence the press. It also previews how public figures could abuse defamation law to do the same if Section 230 of the Communications Decency Act — which shields platforms from liability for defamatory posts by users — is either repealed or recklessly reformed.

Choe’s copyright claims are baseless for a number of reasons, first and foremost that it’s a “fair use” of copyrighted material to post and comment on excerpts of newsworthy footage of public figures. Recordings of alleged admissions of rape by a celebrity (Choe currently stars in the Netflix show “Beef”) are certainly newsworthy, regardless of how Choe spins his remarks. In fact, his explanation makes the recording even more central to the story because the public needs to hear, not just read, what he said to decide whether they believe he was being serious.

But Choe is far from the first to use copyright law to try to remove unflattering news stories from the internet. Earlier this year The Washington Post reported on a shadowy “reputation management” firm that specializes in sending frivolous copyright takedown notices to remove stories about its clients. It reported that from 2015-2021 the firm, Eliminalia, sent “thousands of bogus copyright infringement complaints to search engines and web hosting companies, falsely claiming that negative articles about its clients had been published elsewhere and stolen.”

And the problem extends beyond the United States. The BBC reported on oil lobbyists and former government officials in Equatorial Guinea using U.S. copyright law to force takedowns of critical news articles published by South African news outlets. There are countless other examples, like when Stevin John, who plays children’s TV star Blippi, tried to remove BuzzFeed’s reporting of a video that parents might find difficult to reconcile with his wholesome image.

The law enabling these censorship efforts is the Digital Millennium Copyright Act. It gives internet platforms immunity for user-posted copyright violations of which they don’t have “actual knowledge.” That immunity is necessary — otherwise it would be impossible for platforms to monitor millions of user posts for infringement.

But copyright holders can give platforms actual knowledge by filing a takedown request. Platforms that don’t comply risk liability, and they usually aren’t eager to stick their necks out for alleged infringers. There are procedures to challenge takedown requests and restore removed content, but even temporary takedowns are costly to journalists because news cycles move fast. And journalists might not have the time or the legal knowledge needed to file challenges — especially independent journalists and international journalists unfamiliar with US law.

Abuse of the DMCA is problematic in its own right but it also provides a preview of how online journalism might look without Section 230, the law that immunizes platforms from, among other things, defamatory content posted by users. It was relatively uncontroversial until recent years but now is the subject of bipartisan calls for reform as well as pending Supreme Court cases.

If it’s repealed, or if a knowledge-based standard similar to the DMCA is added (as some legislators and commentators have suggested), would platforms risk liability by keeping a post online after someone claims it defamed them? Of course not. They have no stake in individual posts and no interest in mediating defamation disputes. They’d err on the side of censorship.

And if platforms did attempt to police defamation, doing so would be even more inefficient and error-prone than policing copyright violations. While copyright violations can, at least sometimes, be self-evident, figuring out whether an allegedly defamatory statement is false (not to mention all the other gray areas in defamation law) is a fact-intensive inquiry that internet platforms are not qualified to undertake. A lot of judges can’t even get it right.

People who would like to know whether the star of the TV show they’re watching might be an admitted rapist, or about misconduct by crooked lobbyists and politicians, should oppose not only abuse of the DMCA’s procedures but also proposals to open the floodgates to similarly frivolous defamation takedown requests. We’re not saying Section 230 should be reformed at all (it shouldn’t) but, if it is, any reforms need to take into account the risk of enabling censorship of important news by people like Choe.

FOR IMMEDIATE RELEASE: Freedom of the Press Foundation director of advocacy Seth Stern issued the following statement on today’s trespassing conviction of Asheville Blade journalists Veronica Coit and Matilda Bliss for documenting a homeless encampment sweep at a public park after closing time on Christmas night of 2021:

It’s extremely disappointing that Judge James Calvin Hill overlooked the obvious First Amendment problems with convicting journalists for recording police conducting a homeless encampment sweep at a public park.

It’s particularly disturbing that the judge reportedly questioned whether Veronica Coit and Matilda Bliss are journalists. They literally report for a news outlet, the Asheville Blade. Whether it’s a mainstream outlet or one that public officials like is entirely irrelevant. They’re journalists under any definition of the word and entitled to the full protection of the First Amendment.

The judge also apparently ignored bodycam footage showing police arrested Bliss and Coit before clearing the camp’s residents “because they’re videotaping.” That confirms that police unconstitutionally targeted the press.

Even putting that aside, does the judge really want to set a precedent that journalists need to ignore news happening in plain sight on public land because it’s nighttime? Asheville residents deserve to know what their police department is up to at any hour.

Bliss and Coit were never accused of harming or obstructing police or anyone and it’s ridiculous the case even got to this point. Prosecuting victimless “crimes” by journalists does not serve the interests of justice and does not benefit the taxpayers funding the prosecution. And Asheville’s crackdown on free speech doesn’t end with journalists – the same prosecutors are trying mutual aid workers for “felony littering.” Seriously.

We’re glad to hear that Bliss and Coit are appealing to a jury trial under North Carolina procedures. We hope this awful ruling is reversed by citizen jurors who hopefully value the First Amendment more than Asheville police, prosecutors and judges.

The Espionage Act charges against Julian Assange have nothing to do with spying and everything to do with common journalistic practices.

The arrest of widely respected Wall Street Journal reporter Evan Gershkovich in Russia on bogus “espionage” charges has sent shockwaves through the journalism world.

And for good measure. Gershkovich’s disturbing imprisonment is the latest escalation in Russia’s effort to dismantle the little semblance of what’s left of press freedom in the country. Since its appalling invasion of Ukraine last year, Russia has censored television studios critical of its savage war, outlawed mentions of phrases like “occupation,” and has either arrested or forced the closure of almost all the country’s remaining independent outlets. Now, it seems it’s targeting foreign reporters as well.

US Secretary of State Anthony Blinken has rightly declared Gershkovich “wrongfully detained.” That status carries special meaning, because, as the Journal reported, the official designation “rev[s] up the U.S. government’s efforts to win Evan Gershkovich’s release.”

It is a welcome development; the White House and State Department can and should aggressively push for Gershkovich’s freedom. The charges are clearly a sham. There’s not one iota of evidence Gershkovich was doing anything other than his job as a journalist, and Putin is cruelly using him as a geopolitical tool. (The White House called accusations he’s a spy “ridiculous.”)

But the Biden administration’s calls to free Gershkovich would have a lot more meaning if they also weren’t attempting to prosecute a publisher for “espionage” here in the United States. WikiLeaks founder Julian Assange is currently sitting in a UK prison facing extradition to the US, after the Trump administration indicted him in 2019 on seventeen counts of violating the Espionage Act.

Don’t get me wrong: I’m not equating the work of Gerschkovich and Assange or alleging that press freedom in Russia and the U.S. is even remotely the same. What I’m saying is that many of the disturbing facts of Gershkovich’s imprisonment also apply to the facts of Assange’s case.

As in Russia, when a publisher or whistleblower is charged with “espionage” in the United States, it very much deserves to be described in scare quotes. The Justice Department hasn’t accused Assange of giving or selling information to foreign governments or anything of the sort. They’ve accused him of speaking with whistleblower Chelsea Manning in 2010 and 2011, and receiving hundreds of thousands of classified documents from her, which WikiLeaks later published for public consumption.

In other words: the same kind of thing newspapers that cover national security do all the time. Whatever you might think of Assange or his activities since 2011 is irrelevant because that’s not what he’s charged with and the precedent his prosecution would set isn’t limited to him.

If Assange is convicted under the Espionage Act for normal newsgathering activities, then reporters at the New York Times, Washington Post, and Wall Street Journal will be extremely vulnerable to the exact same type of charge here in the United States. Virtually every major press freedom, civil liberties, and human rights organization in the United States, as well as newspapers like the New York Times and the Guardian, has said the same thing. Shamefully, the Biden administration has ignored them. So far it’s also ignoring an April 11 letter from Rep. Rashida Tlaib and six other lawmakers calling on the administration to drop the prosecution. A DOJ spokesperson confirmed plans to proceed with the extradition just last week.

Just as it is outrageous that Russia has said it will ignore the pleas of major news outlets to release Gershkovich, the same can and should be said for the Justice Department, which is putting press freedom at dire risk in this country, with eerily similar charges to those Russia is pinning on Gershkovich.

This isn’t an exercise in hypotheticals either. Former President Donald Trump, who refers to journalists as “enemies of the people,” has rocketed to the top of 2024 Republican primary polls. Recently, he has taken to literally musing on stage at his rallies about how he could potentially throw reporters in jail. It is mind-boggling that the Biden administration may be handing him the ability to do just that on a silver platter.

Will dropping the Assange charges mean Russia will immediately release Gershkovich? Of course not. But if we all want the United States to have credibility on the world stage, and for their voice to carry weight not just with Russia but the rest of the world, it needs to practice what it preaches, and not open the door for the exact type of prosecution it is condemning Russia for.

The outpouring of support for Gershkovich has been inspiring: countless people tweeting “journalism is not a crime” and protests in his honor have been staged all over. Only time will tell if they will have an effect. Needless to say, Gershkovich is as loved in the journalism community as Assange is polarizing. But this much is true: If journalists banded together to protest the Assange prosecution in a similar fashion, we could end this dire threat to press freedom at home almost immediately.

FPF’s own safety guide for covering protests includes information about keeping legal contact information on your person.

Journalists covering protests often write phone numbers for their attorneys or legal helplines on their arms. Freedom of the Press Foundation (FPF) advises them to do so in our own guide. Other press freedom organizations provide similar advice.

It’s not because journalists intend to commit crimes — it’s because police have an unfortunate habit of arresting journalists for doing their jobs, and saved contacts aren’t much use if police seize your phone. Yet prosecutors in Atlanta, in pursuing charges against “Cop City” protesters accused of domestic terrorism, have argued that having a jail support phone number written on one’s body is evidence of criminal intent.

FPF joined a coalition of over 40 organizations, led by the National Lawyers Guild, to respond to these alarming prosecution arguments that ignore not only the First Amendment but the Sixth Amendment right to legal counsel. As the NLG explains, “[p]eople write these numbers on their arms in preparation for demonstrations precisely because they know they may be unjustly detained, and because they know that police use mass arrest as a form of crowd control that is calculated to disrupt protected speech.”

In other words, the only illegality reflected by the practice is not by journalists and protesters but by police officers who wrongfully arrest them.

If prosecutors succeed in criminalizing jail support numbers for protesters it’s just a matter of time before the same arguments are made against journalists. U.S. Press Freedom Tracker data shows that, for several years, the vast majority of journalist arrests have occurred during demonstrations. Seizures of cellphones are a legitimate concern for reporters. And we’ve already seen police detain and intimidate journalists while covering the Cop City protests specifically.

FPF Principal Researcher Dr. Martin Shelton, who co-authored the above-mentioned guide for journalists covering demonstrations, explained:

“Both for journalists covering protests and protesters themselves, these events can be unpredictable. Everyone in attendance is at risk of having their devices broken or seized, and that's why we can't rely on a smartphone contact list to maintain access to critical support. Going into a protest, writing a phone number on your body is not much different than committing that number to memory.”

Anyone who values the First Amendment should be alarmed by the suggestion that writing down legal support numbers evidences criminality — especially in the midst of a prosecution of protesters for “domestic terrorism” based on guilt by association.

Law enforcement should not be allowed to reward its own bad behavior by inferring criminality from practices journalists and protesters adopted precisely because of the long history of wrongful arrests at protests. And prosecutors should apologize for their ignorance of the Constitution they’re sworn to defend.

Sen. Mark Warner, a sponsor of the RESTRICT Act, claims we have nothing to worry about because the government will use its broad censorship and surveillance powers responsibly.

When we previously wrote about the talk of banning TikTok – which would be blatantly unconstitutional on its own — we did not anticipate the scope of the absolutely awful legislation that would soon pick up steam in Congress.

The RESTRICT Act — the bill purportedly intended to facilitate a TikTok ban — does not stop at TikTok. It gives the executive branch broad discretion, with little to no judicial review, to ban or restrict communications technologies from any country on an open-ended list of “foreign adversar[ies].” It’s incredible that a single elected official would think the bill could pass Constitutional muster but it appears to have significant bipartisan support.

Journalists routinely use TikTok and other foreign-owned technologies to gather and report news and communicate with sources. Sources from “foreign adversaries” often possess highly newsworthy information for foreign policy journalists. The ways the government could abuse the RESTRICT Act to stifle investigative reporting and public discourse during times of conflict are truly horrifying to contemplate.

That doesn’t mean that somehow exempting journalists would fix the bill — far from it. Free speech is not just for journalists. But the bill’s impact on press freedoms serves to compound its trampling on the First Amendment as a whole.

Broad and unchecked censorship authority

It is well-established that the government is required to show a grave, imminent danger to national security before imposing a “prior restraint” on speech. But the bill contains no such requirement. It allows the government to issue explanations for its actions but only if it deems doing so “practicable” and in the interests of national security.

All it requires is a unilateral determination, by non-elected officials, that the technology poses “an undue or unacceptable risk.” What does that mean? Whatever the government wants. The kinds of risks permitting invocation of the RESTRICT Act include, among other things, “steer[ing] policy and regulatory decisions in favor of the strategic objectives of a foreign adversary to the detriment of the national security of the United States.” Then the bill tacks on a catch-all for other risks to national security or the safety of “United States persons.”

The language is broad enough to encompass platforms hosting content that might persuade someone to oppose U.S. policy — or even information that just embarrasses officials. The First Amendment entitles Americans to access even false foreign propaganda if they so choose. But the RESTRICT Act would empower the government to ban, restrict and surveil platforms that host true information they would prefer Americans not know about.

No one in their right mind would ever suggest a similar legislative scheme for banning foreign newspapers, broadcasters or mail. But, for whatever reason, politicians seem unable or unwilling to apply analog precedents to digital times.

Had the RESTRICT Act (and the internet) existed during the Nixon administration, does anyone doubt it would have tried to ban foreign platforms hosting opposition to the Vietnam War, just as it sought to enjoin the Pentagon Papers? Could the government invoke the RESTRICT Act to ban Wikileaks? You might assume the government would never declare Iceland (where Wikileaks is based) an adversary. But the bill also allows restrictions on companies that adversaries “direct” or in which they have “an interest.” Is it that much of a stretch that the government might claim Wikileaks is “directed” by Russia?

Draconian penalties for common newsgathering methods

And what if a journalist, or anyone else, attempts to access a restricted platform through commonplace technologies like a VPN? Under the RESTRICT Act, they could spend 20 years in prison or pay up to a million dollars in fines. That’s especially disturbing to Freedom of the Press Foundation (FPF), where we often assist foreign journalists concerned about VPN restrictions by repressive regimes.

As FPF Principal Researcher Dr. Martin Shelton put it:

“When we conduct security trainings with journalists around the world, far too often we've seen how journalists and the communities around them feel they could be put at risk by using VPNs and other circumvention tools. It's horrifying to contemplate that possibility in the U.S.”

And the bill not only permits imprisonment of VPN users themselves but of people who “aid, abet, counsel, command, induce, procure, permit, or approve” their conduct (or other prohibited conduct). Publishers and editors beware.

Government: “Just trust us”

Sure, the bill’s sponsors, including Sen. Mark Warner, have disclaimed any intention to fine or imprison VPN users. But courts consider the words on the page over legislators’ intentions. The drafters of the Espionage Act could not have anticipated, let alone intended, that it would be used to charge someone like Julian Assange. Yet here we are.

Our current president insists on prosecuting Assange for routine newsgathering. Our last one wants journalists imprisoned and assaulted. The one before set records for whistleblower prosecutions. And a likely 2024 candidate wants to bankrupt his critics with litigation.

But those behind the RESTRICT Act say we should trust future administrations to use broad powers to silence dissent responsibly. Of course we shouldn’t. Especially when even the supposed “responsible” use of the bill — banning a platform used by half of the U.S. based on speculation — is already an unprecedented act of mass censorship.

There is far more wrong with the bill than the censorship powers it creates. Its allowance of secret evidence in legal proceedings raises alarming due process concerns. The surveillance it would enable, including by allowing the government to broadly demand that any company it is investigating hand over information, has led some to call it the “Patriot Act for the digital age.” It’s ironic that concerns about Chinese access to American user data ultimately prompted a bill that would grant our own executive branch surveillance authority reminiscent of China’s.

Yet some still insist the bill can be rescued through revision. It can’t. Nothing good can come of it. We say throw the whole thing out and pass serious digital privacy legislation instead.

The Pentagon Papers case famously established that, even in wartime, the government cannot prohibit speech by claiming a threat to national security. Justice Hugo Black explained that “the word 'security' is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.”

Good thing that’s settled. Or so we thought.

Fast forward 50-plus years and officials from both parties, with White House support, want to ban a whole social media platform, TikTok. Around 150 million Americans, including plenty of journalists, use it to communicate. The proposed ban is based largely on speculation that its parent company, ByteDance, will share data with the Chinese government to spy on America and propagandize Americans.

There’s no public evidence that’s actually happening. Regardless, no one can explain how TikTok data in the hands of Chinese spies — as bad as that may be — would create the kind of grave, imminent and otherwise unavoidable threat required to justify upending First Amendment law and allowing for such an unprecedented “prior restraint.” Similarly, the U.S. government has released no proof that the Chinese government has hijacked TikTok’s algorithms to propagandize American citizens or that any such efforts are effective enough to threaten national security. Instead, censorship proponents seem to be advocating to ban the app just in case. That’s fundamentally unAmerican.

Of course, this ban will have a direct impact on journalism. Thousands of journalists and media outlets use TikTok to share news stories. Millions of Americans use it to consume news. And who knows how many sources find reporters through using the app.

But if we accept the arguments for banning TikTok, what might come next? The consequences are even more catastrophic. Bans on foreign news websites that track Americans' clicks and comments? For example, the Guardian must have a gold mine of information on the millions of Americans that read it every day. Now, you’ll probably say: That's absurd! There’s no evidence the Guardian is handing that information over to the U.K. government, and even if it was, we still have the right to read it!

Well, how is that different from TikTok?

Bans on foreign state-owned media based on fears they might propagandize Americans would also become a lot easier. Once TikTok, which isn’t even owned by the Chinese government, is defunct it’s not difficult to imagine political support for banning RT or Al Jazeera. Many U.S. allies have media outlets that operate in the U.S. as well. Is it just up to staying in the good graces of politicians or the White House that decides whether a communications platform can live or be banned in the U.S.? Like it or not, the First Amendment means Americans have the right to receive information they choose, even foreign propaganda.

Once we’ve destroyed all our credibility on the issue, why wouldn’t foreign countries reciprocate by barring American websites, platforms, and media outlets? The U.S. government already criticizes China for banning or censoring U.S. tech companies — as they should. The hypocrisy would become overwhelming.

Banning TikTok shouldn’t even be up for discussion because censoring communications from foreign countries — let alone entire platforms — is plainly unconstitutional. For example, the 1965 case Lamont v. Postmaster General rejected a law delaying delivery of mail containing “communist political propaganda.” The Supreme Court said the law was “at war with the ‘uninhibited, robust, and wide-open’ debate and discussion that are contemplated by the First Amendment.”

It seems doubtful that the law would have fared better if, instead of targeting communist propaganda, the postal service banned all mail from communist nations. Proponents of the TikTok ban cite worries that China will use TikTok for “malign influence campaigns” that are indistinguishable from the concerns that Lamont held could not justify censorship.

In fact, laws authorizing presidents to restrict foreign transactions have exempted publications and communications because Congress recognized the First Amendment required their exclusion. Congress may try to legislate around that exemption to enable a TikTok ban, but it can’t erase the First Amendment — which is what necessitated the exemption in the first place. And courts already rejected the Trump administration’s efforts to ban TikTok and other foreign apps on constitutional grounds. Trump cited the same vague privacy and security concerns being invoked now.

If susceptibility to “malign influence campaigns” is the new American standard for banning communications apps, then every U.S.-owned social media company would face a ban, too.

As Mike Masnick explained in Techdirt, the Supreme Court long ago rejected efforts to shut down, for example, entire book stores and media outlets because they allegedly carried some illegal content. A TikTok ban would cast an even wider net than those unconstitutional censorship campaigns. If there’s proof of illegal conduct on TikTok then Congress should specifically target the illegality — not ban the entire app.

This should be a major section of every news article on this debate, yet many leave it out of the discussion entirely.

Americans who value free speech should urge their representatives to address privacy concerns with stronger privacy laws, not mass censorship.

Twitter CEO Elon Musk made headlines in December when, despite his free speech proclamations, he suspended an account that tracked his private jet using only publicly available information. But what if billionaires who don’t own social media platforms could also conceal their newsworthy flight patterns from the press and public? And what if they could do so on the U.S. taxpayer dime?

Well, turns out they can. The Federal Aviation Administration began publishing flight location data in 1997 but, in 2000, it began scrubbing its data regarding private aircraft upon request from their owners. The owners don’t pay for the service. The Obama administration briefly required private jet owners to submit certifications justifying their requests, but, after pressure from industry groups, Congress reinstated the no-questions-asked policy.

The FAA’s funding is up for reauthorization later this year. Congress should take the opportunity to ensure that the new funding bill leaves these taxpayer-funded secrecy programs in the past. Flight tracking has enabled important investigative reporting for years and climate change means that the overuse of private jets will remain highly newsworthy for the foreseeable future. No other country besides the U.S. similarly restricts access to flight data.

The good news is that, for now, the FAA’s anti-transparency measures are not terribly effective because flight trackers have options besides FAA data. Private jets can also be tracked through wireless signals they transmit (called ADS-B), which can be detected by widely available censors. Communities of hobbyists track and share this data. It’s relatively easy to find online and includes jet owners whose flight information the FAA has scrubbed.

That’s how the owner of the account Musk suspended managed to track his flights. Journalists have since further reported on Musk’s prolific private jet usage — but it’s far from the first time that flight tracking has enabled valuable journalism.

There are websites that allow the press (and anyone else) to track movements of dictators through flight data. Journalists tracked a jet linked to an Israeli “spyware tycoon” to investigate which authoritarian regimes he did business with. The Wall Street Journal recently investigated PGA Tour commissioner Jay Monahan’s alleged personal use of the tour’s plane. There are plenty of other examples involving important news stories, including the Jeffrey Epstein case. People might also want to know which “civilian flights” the government is protecting when it spends millions to shoot down unidentified objects.

The aviation industry and its lobbyists nonetheless continue urging legislators to crack down on access, by both maintaining and expanding current secrecy policies. The Trump administration tried cutting off FAA data to sites that also use ADS-B signals, but some sites responded by opting to exclusively use ADS-B data. Other efforts have also failed to effectively conceal private flights information.

But governments will keep trying — both here and abroad. Saudi Arabia recently called for (PDF) international efforts to block flight tracking via ADS-B data.

Industry groups have argued that the government should protect the privacy of data it collects on private jet flights like it protects medical and tax information. But people need to see doctors and pay taxes. Private jets are optional. The press is entitled to investigate, for example, how much private jet owners pollute the air the rest of us breathe and whether executives of companies Americans work for and invest in divert corporate funds for personal travel.

It’s time for Congress to put an end to the taxpayer-funded secrecy program at home and ensure that the U.S. opposes any international efforts to help billionaires cover their tracks.

Screenshot of journalist Matt Taibbi testifying during Congressional hearings on the "Twitter Files," a set of internal documents on the social media platform now run by Elon Musk.

During last week’s congressional hearings on the Twitter Files, Democratic lawmakers called Matt Taibbi a "so-called journalist" while urging him to identify his sources despite his repeated refusals. Rep. Jim Jordan vocally defended Taibbi’s First Amendment rights, which are not dependent on politicians’ approval of his work. Right-leaning media outlets echoed Jordan’s outrage.

They’re right. Press freedom is not a partisan issue and is not limited to establishment-approved outlets. But currently there is no federal law protecting journalists from being forced to burn sources. Republicans should seize on this moment and quickly move to pass the PRESS Act — a strong federal “shield” bill that came within inches of becoming law last year. Everyone benefits when the press can expose government wrongdoing by working with sources who do not need to fear for their jobs or freedom.

We’ve previously explained why Americans of all political stripes should oppose government surveillance of journalists (including “so-called journalists”). If politicians think a reporter got a story wrong they can use their platform to correct the record rather than retaliating. The disturbing comments at the Twitter Files hearing underscore the urgency of passing the PRESS Act without delay.

Notably, the hearing came days after reports that the Federal Trade Commission demanded Twitter identify journalists to whom it provided information — a tactic that could enable further monitoring of those journalists. And the legislators who unsuccessfully pressured Taibbi to reveal his sources have admitted they want more than just names. They apparently hope to spy on “discussions” with sources to fish for information on some amorphous deal, of which no evidence exists. That should send a shiver down the spines of anti-surveillance conservatives.

The PRESS Act would bar the government from monitoring journalists’ conversations with sources outside national security emergencies. It defines journalists broadly enough to protect both mainstream and independent outlets, regardless of whether their reporting may upset politicians. It’s also unconcerned with whether sources may have political agendas. Virtually all sources do, but Democratic representatives suggested last week that journalists should only accept information from those who pass some kind of purity test. The PRESS Act would ensure politicians can never make those self-serving judgments.

The PRESS Act passed the House unanimously last year. It had bi-partisan support in the Senate, including from co-sponsors Ron Wyden and Mike Lee, but it was, unfortunately, omitted from the year-end omnibus package before the last Congress adjourned.

It will likely be reintroduced this year. Last week’s debacle is far from the first time Democratic officials have targeted conservative journalists but it once again underscores why Republicans should make passing the act a top priority.

Conservative support of shield legislation is nothing new. In addition to Jordan, Republicans from Lindsey Graham to Mike Pence to Bob Goodlatte have urged Congress to protect journalists and their sources from government snooping. With Jordan serving as House judiciary chair and Graham as the ranking Republican on the Senate committee, the PRESS Act should stand a strong chance of advancing. Senate Judiciary Chair Dick Durbin also supports the act.

Republicans will have to overcome resistance from a minority in Congress who are under the false impression that a shield law would favor the “liberal media.” But last week’s events should dispose of that argument.

Now’s the time to make the PRESS Act the law of the land and protect “so-called journalists” from government overreach for good. And last week's hearing can serve as "Exhibit A" in making the case for the act to any skeptical conservatives.

U.S./Mexico border

Laws that don’t directly target the press often pose hidden threats to First Amendment freedoms. That’s why Freedom of the Press Foundation (FPF) and a group of press freedom organizations filed a brief urging the Supreme Court to confirm the unconstitutionality of a law prohibiting “encouraging” or “inducing” unlawful immigration.

The case is called United States v. Hansen. It did not involve a journalist — the defendant ran an adoption agency accused of promising people citizenship to lure them across the border. But the law’s prohibitions are so broad they could enable prosecution of everyone from editorialists calling for more permissive immigration policies to investigative journalists exposing lapses in border security. It’s blatantly unconstitutional and has already been abused to monitor and interrogate journalists reporting on the 2018 “caravan” of migrants to the U.S.

That’s bad enough, but a ruling for the government in the Hansen case could also have serious repercussions for journalism outside the immigration context. For one, it could open the door to prosecutions of journalists for publishing truthful, newsworthy reporting.

If a news report can be deemed illegal for giving migrants ideas on how to cross the border, why can’t the same reasoning apply to, say, criticism of police departments that exposes incompetences that criminals might exploit? What about reporting of abuses that might lead protesters to trespass on government property, or stay out past curfews?

Sure, any convictions would likely be struck down as unconstitutional. The Supreme Court has repeatedly held that “state action to punish the publication of truthful information seldom can satisfy constitutional standards” absent a need “of the highest order,” although the court has declined to categorically pronounce that true reporting can never be punished.

But that doesn’t mean prosecutors won’t try. The mere prospect of arrest would surely encourage self-censorship. And that’s not the only risk.

A bad decision in Henson could also facilitate prosecution of routine newsgathering, including under the Espionage Act, by setting a precedent at the Supreme Court level that journalists may be prosecuted for the actions of others.

The 2001 Supreme Court case Bartnicki v. Vopper made clear that journalists cannot be punished for publishing records their sources obtained unlawfully, even when journalists have reason to know how their sources got the information. But at least one federal appellate circuit has held that, despite Bartnicki, journalists may be prosecuted when the law makes mere “obtainment” of the documents a crime in and of itself.

A ruling for the government in Hansen could allow prosecutors to further circumvent Bartnicki by charging journalists for “encouraging” sources to break the law (for example, by illegally recording conversations or leaking documents). Journalistic practices as common as asking government employees for information, or providing a means to transmit leaked records confidentiality, could theoretically suffice for an indictment.

It’s a boundary the government is already testing in its Espionage Act prosecution of Julian Assange, under the theory that he broke the law by receiving and publishing stolen documents that he did not himself steal. A ruling for the government in Hansen could embolden prosecutors to continue their pursuit of Assange and bring similar charges elsewhere.

Argument in the case is scheduled for March 27. Anyone interested in press freedom should pay close attention given what’s at stake. Any ruling striking down the law would be a win for the press, but an opinion that makes clear that Congress cannot legislate around the Bartnicki rule could be a game changer. It could cement Constitutional protections for common journalistic practices and rebuke prosecutors’ constant efforts to criminalize them.

The brief was written by Professor Penny Venetis, Director of the International Human Rights Clinic at Rutgers Law School, and her students.

Florida Gov. Ron DeSantis

Florida lawmakers have introduced legislation, with vocal support from Gov. Ron DeSantis, to make it easier for public figures to sue detractors for defamation. DeSantis, likely eyeing the presidential primaries, frames the proposal as an effort to fight back against misinformation from large left-leaning media conglomerates.

But disciplined conservatives thinking beyond 2024 should understand that expanding defamation liability would silence important voices across the political spectrum. It would cause the most harm not to mainstream media outlets that can afford lawyers but to independent news outlets and opinionated individuals, including conservatives, who cannot.

Here’s why conservatives should oppose every provision of the Florida legislation, including both the House version and the slightly scaled back, but still highly dangerous, Senate version.

The actual malice standard protects everyone. DeSantis casts the mainstream media as wilfully misleading the public, but victims of intentional defamation are, and always have been, free to sue. The protections DeSantis opposes only apply to accidental defamation, and only when the victim is a public figure.

Those who investigate the powerful are sure to make mistakes on occasion. It’s inevitable, especially when government officials do everything they can to limit access to official records and obscure the truth. Without some breathing room for errors, people would be so scared of being sued for criticizing deep-pocketed elites that they would censor themselves into silence.

That’s why, in the 1964 case New York Times Co. v. Sullivan, the Supreme Court unanimously endorsed the “actual malice” standard requiring public figures to prove their detractors not only erred but either knew their statements were false or recklessly disregarded the truth. In other words, intentional errors remain actionable, but honest mistakes are not.

The actual malice defense helps conservative media as much as anyone. Fox News is relying on the actual malice standard in court right now. It’s not the first time. Donald Trump Jr. and Rudy Giuliani used it to defeat defamation claims by Trump impeachment whistleblower Lt. Col. Alexander Vindman. Conservative commentators have cited the actual malice standard in response to alleged litigation threats by Hunter Biden over reporting on his laptop.

It also protects independent and alternative outlets, bloggers, political and religious radio hosts, YouTubers, pro-life activists and many others whose perspectives conservatives value. And its reach extends beyond partisan politics. For example, it’s the only thing stopping Brett Favre from weaponizing the courts to silence discussion of welfare fraud allegations against him.

Anonymous sources are crucial tools for conservative journalists. Both versions of the bill penalize journalists for relying on the kinds of anonymous sources that have brought down presidents in this country.

Journalists would love to quote their sources by name, but those with the most newsworthy information to share often have the most to lose by sharing it. And they have reason to be concerned — Democratic administrations, like Republican ones, have often overreached to learn the sources of damaging stories.

Right-leaning journalists rely as heavily on confidential sources as anyone. And conservative originalists might note that the Federalist Papers were written under a pseudonym.

Anonymous sourcing is merely a symptom of a lack of transparency. Conservatives bothered by anonymous sourcing should urge their government to make more records public and speak openly with the press so that journalists don’t need to rely on back channels. They should also insist on strong whistleblower protections and media relations policies that empower government employees to speak in their own names without fearing retribution.

Attorney’s fee awards would kill alternative media. The House bill’s provision that defamation plaintiffs could recover their attorney’s fees is an abdication of conservative principles. The party of tort reform should not be legislating gifts to plaintiffs’ lawyers.

In fact, Florida’s legislature is considering a tort reform bill intended to end a “cottage industry of litigation” while simultaneously seeking to become a destination for libel tourism.

There is no basis to single out defamation as an exception to the centuries-old "American rule" that litigants pay their own costs (as opposed to the “English rule,” favored by DeSantis, that the loser pays). Doing so would be fatal to free speech by independent outlets and individuals that can’t afford their own lawyers, let alone someone else’s. One error could silence them for good.

Even outlets that are never successfully sued for defamation could see their insurance premiums skyrocket due to the mere possibility. Non-journalists holding home and business insurance policies that cover defamation may well see their costs spike as well.

The bills would help elites cover up sex scandals. Both versions of the bill make it easier for public figures to sue for defamation if “the allegation does not relate to the reason for [their] public status.” Well, Bill Clinton did not become a public figure by having affairs with interns.

Should he have been able to sue his accusers for defamation (or intimidate them into silence) if their recollections were not 100% accurate? Should he have been able to bankrupt journalists who investigated him if their sources got some details wrong?

Similarly, Joe Biden did not become a public figure through his son’s foreign entanglements or the contents of his laptop. Presumably, conservatives would not want to stifle investigations into those matters either. But the Florida bills would do just that, blocking journalists and ordinary citizens alike from finding the skeletons in the closets of the wealthy and powerful.

Singling out discrimination will come back to bite conservatives. The House bill singles out allegations of discrimination based on race, sex, sexual orientation and gender identity, limiting available defenses to defamation suits and providing for additional damages.

That may appeal to some “culture wars” voters but it’s short-sighted and will end up punishing conservatives who, like DeSantis himself, oppose reverse racism and woke-ism. Authors whose works DeSantis has sought to keep out of schools because of content he characterized as racist might want to consult their lawyers if DeSantis’ proposals become law.

Plus, if DeSantis can carve out categories of speech he disfavors for special treatment, what’s to stop future Democratic governors or presidents from doing the same for, say, criticism of abortion providers? Instead of the government placing its thumb on the scale, the law should provide a level playing field for all litigants.

Anti-SLAPP laws protect everyone. Both bills, but especially the House one, would needlessly weaken Florida’s anti-SLAPP (Strategic Lawsuits Against Public Participation) law.

A majority of states, red and blue, have passed similar anti-SLAPP laws because it’s imperative that defendants of all political stripes can fight back against retaliatory litigation intended to silence them. For example, a defamation lawsuit against conservative commentator Candace Owens was recently dismissed, and she was awarded $115,000 in attorney fees and costs, under Tennessee’s anti-SLAPP law.

Utah, a red state by any definition, expanded its anti-SLAPP law earlier this month. Florida expanded its own anti-SLAPP law in 2015, declaring that “It is the intent of the Legislature to protect the right in Florida to exercise the rights of free speech in connection with public issues.”

There’s no reason that conservatives in Florida should be deprived of the protections against meritless defamation claims available elsewhere.

Reporter’s privileges counter surveillance and overreach. Both bills would restrict journalists accused of defamation from relying on the reporter’s privilege to keep their sources confidential. The Senate bill extends beyond defamation to “related” claims.

That means any public figure wanting to learn who is exposing their malfeasance can circumvent the privilege by filing a defamation action, especially if DeSantis succeeds in neutering the defenses that enable early dismissal of baseless claims.

Government insiders need to be able to speak to journalists confidentially without fearing for their careers and safety if they’re unmasked. That’s why 49 states, both red and blue, as well as several federal circuits, recognize reporter’s privileges.

Conservatives should reject ‘Europeanizing’ American law. America has long distinguished itself from Europe and elsewhere by taking pride in its protections for speech and press freedoms and its understanding that the fear of litigation promotes self-censorship.

That’s why Congress passed the bipartisan SPEECH (Securing the Protection of our Enduring & Established Constitutional Heritage) Act in 2010. It protects Americans from defamation judgments in jurisdictions that do not recognize the same safeguards as American courts, including the actual malice standard.

That means that if a foreign country passed either version of the Florida bill, U.S. courts could not enforce that country’s defamation judgments because Congress bipartisanly recognized that anything else would be unAmerican.

The Florida bill represents an abandonment of fundamental principles held dear not only by conservatives but by all Americans. Conservatives who are intentionally defamed by the media already have adequate recourse. Repeating Europe’s mistakes by expanding defamation liability for well-intended critics of government would be a gift to wealthy and powerful elites.

Twitter CEO Elon Musk

FOR IMMEDIATE RELEASE: We were disturbed by the revelation that the Federal Trade Commission, as part of its investigation into Twitter’s privacy and data practices, demanded Twitter identify all journalists granted access to company records, including in connection with the release of the “Twitter Files.”

Government-compelled identification of journalists is dangerous on its own and enables further surveillance of those identified. Administrations from both political parties have overreached to spy on journalists — especially journalists investigating those in power. The Department of Justice has adopted policies against surveilling journalists, but other agencies like the FTC have not. Congress should pass the PRESS Act and prohibit all presidential administrations, and all government agencies, from abusing their power to spy on journalists.

A statement from Freedom of the Press Foundation (FPF) advocacy director Seth Stern is below:

Anyone who cares about the free press should be concerned by the FTC’s demand that Twitter identify journalists who have received information that might embarrass the administration, regardless of what they think of Elon Musk or Twitter. The FTC should not have to violate the privacy of journalists to protect the privacy of Twitter users.

It’s especially disturbing that the demand could enable future efforts to obtain the journalists’ newsgathering materials. The Biden FTC’s actions add to the long list of reasons why conservatives, and all Americans, should support passing the PRESS Act. It’s the only way to ensure that all administrations, and all government agencies, are prohibited from surveilling or retaliating against journalists.

FOR IMMEDIATE RELEASE: An Asheville, North Carolina, police officer is shown suggesting his colleagues arrest journalists “because they’re videotaping” in new body camera footage of a homeless encampment sweep.

Police then arrested Asheville Blade journalists Matilda Bliss and Veronica Coit. They’re scheduled for trial on April 19 on trespassing charges because they documented the sweep from a public park shortly after its 10 p.m. closing time on Dec. 25, 2021.

Freedom of the Press Foundation (FPF) Advocacy Director Seth Stern said the footage, released on Feb. 27, “proves the reporters were singled out for doing their jobs. Police chose to round up journalists before conducting the sweep to stop them from recording. Targeting journalists is a clear violation of the First Amendment.”

Asheville released the footage following a court petition filed by FPF, the ACLU of North Carolina and the Committee to Protect Journalists. North Carolina law requires a judge to authorize the public release of body camera footage.

“Asheville cultivates a progressive image but the actions depicted in this footage tell another story,” Stern said. “There are few practices less progressive than prosecuting journalists. It’s common in authoritarian regimes but rare in the United States. It’s bad enough when rogue officers arrest journalists but the ongoing prosecution means the mayor, city council and District Attorney all endorse these unconstitutional arrests.”

According to the U.S. Press Freedom Tracker, Bliss and Coit’s trial will be only the fourth trial of journalists for offenses allegedly committed while gathering and reporting news since 2018. Arrests of journalists are also rare but in most instances authorities don’t proceed to trial. Authorities in Ohio dropped charges after Evan Lambert of NewsNation was arrested at a press conference earlier this month. In January, the mayor of Phoenix personally apologized for the detainment of Wall Street Journal reporter Dion Rabouin.

The footage, Stern said, confirms the journalists recorded the sweep from a distance and did not obstruct police. They’re not charged with any offense except trespassing.

Although the city has maintained that it’s Constitutionally permissible to prosecute journalists under “generally applicable laws,” the United States Court of Appeals for the Fourth Circuit held last week that a “state may not harness generally applicable laws to abridge speech without first ensuring the First Amendment would allow it.” The Court therefore barred North Carolina from enforcing a trespassing law to restrict newsgathering.

And even if the Constitution did permit prosecution of journalists, that doesn’t mean it’s a wise use of taxpayer funds. “These journalists did not cause any harm to anyone. They were just doing their jobs. The district attorney should prosecute real crimes, not journalism,” Stern said.

“Taking the City's position to its logical extension, if police had opened fire on the encampment sweep after the park closed, would the Buncombe County district attorney still prosecute journalists for documenting it? There’s no asterisk after the First Amendment that says it only applies during daylight hours,” he added.

Florida Gov. Ron DeSantis

FOR IMMEDIATE RELEASE: A Florida representative filed legislation today aimed at scaling back protections against public figures weaponizing the courts against their critics.

The bill echoes talking points discussed by Gov. Ron DeSantis and his guests during a roundtable discussion on defamation law earlier this month. Freedom of the Press Foundation (FPF) responded to that anti-press display in the Tampa Bay Times last week.

The bill would help powerful litigants evade the protections established by the landmark 1964 Supreme Court case New York Times Co. v. Sullivan which, along with subsequent cases, required public figures to prove “actual malice” in suits for defamation. It would stifle investigative reporting by presuming statements attributed to anonymous sources to be false.

It would also allow prevailing defamation plaintiffs to recover their attorneys’ fees, a rare exception to the “American rule” that litigants bear their own costs. The bill resembles a proposal DeSantis’ office considered, but ultimately did not introduce, last year.

A statement by Seth Stern, director of advocacy for Freedom of the Press Foundation (FPF) and a First Amendment lawyer, is below:

Gov. DeSantis continues to make clear his disdain for freedom of speech and the press and to prioritize censoring dissent over governing. This bill would do nothing for ordinary Floridians but would allow government officials and celebrities to harass and even bankrupt their critics with expensive litigation. It would stifle investigative reporting by presuming any statements attributed to anonymous sources to be false despite that (or, given DeSantis’ ambitions, maybe because) confidential sources have literally brought down presidents in this country.

The Florida legislature should reject this political stunt and Floridians should not tolerate their governor’s experiments in authoritarianism in their name and at their expense. The U.S. Congress should safeguard the First Amendment by codifying Sullivan and ensuring that the press and public are protected from politically-motivated defamation lawsuits.