Freedom of the Press

Dear Friend of Press Freedom,

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Covering the prison system

With all the talk about threats to U.S. journalists over the next four years, it’s easy to forget that nearly two million Americans are already living in a system rife with censorship, secrecy, and retaliation.

Despite its size and scope, the incarceration system is in many ways invisible. Its facilities operate outside the public eye and with less oversight than other governmental entities. And information about carceral institutions is closely guarded by corrections agencies that have a range of ways to restrict public access and block reporting efforts.

We published a two-part guide by journalist Daniel Moritz-Rabson on ways to navigate the challenges journalists face in covering incarceration facilities and incarcerated people. While the obstacles are daunting, we hope the guide serves as a reminder that facing these challenges is worthwhile.

TikTok isn’t the radio

In addition to making baseless national security arguments, people from opinion columnists to appellate judges have argued that banning TikTok is somehow consistent with existing governmental authority to regulate certain broadcasters.

Before today’s Supreme Court argument, Freedom of the Press Foundation (FPF) Senior Advisor Caitlin Vogus explained why they're wrong, both as a legal matter and a policy one, in Tech Policy Press.

“TikTok isn’t a radio station. If the Supreme Court treats it like one, it will open the floodgates to government control of other social media apps and the internet as a whole,” she wrote. Read the op-ed here.

Archivist can still fight secrecy

President-elect Donald Trump said this week he will replace the archivist of the United States, Colleen Shogan. Threatening to fire Shogan over the National Archives and Records Administration’s work (under a predecessor) to recover the records Trump wrongly took to Mar-a-Lago raises genuine concerns about retaliation and future compliance with the Presidential Records Act.

But the threat could have a silver lining if it prompts Shogan to spend her remaining time in the post being candid with the public about what NARA needs to survive. This will help supporters more effectively advocate for NARA during the next Congress. If NARA is undermined or neglected, expect even more overclassification from the federal government.

Read more about how Shogan can fight secrecy in The Classifieds, our new project dedicated to reforming overclassification and government secrecy.

What we’re reading

U.S. Press Freedom Tracker’s Stephanie Sugars on protests, police and the press (First Amendment Watch). Check out this interview with our U.S. Press Freedom Tracker Senior Reporter Stephanie Sugars about the Tracker’s annual arrest report and threats journalists — particularly those covering protests relating to the Israel-Gaza war — faced in 2024.

GOP senator reveals one condition that will get Tulsi Gabbard confirmed (Daily Beast). There are some legitimate reasons why Tulsi Gabbard is a controversial nominee for director of national intelligence. But her support for reforming surveillance programs used to spy on Americans shouldn’t be one of them. Unfortunately, it didn’t take long for Gabbard to change her stance.

Over and out? Emergency medical crews denied NYPD radios in move that unions say endangers the public (amNY). Who could’ve guessed that encrypting NYPD radio wouldn’t go well? To be fair, we didn’t see the first responders part coming.

Meta to end fact-checking program in shift ahead of Trump term (The New York Times). More free expression and more news on social media is, of course, a good thing. But based on Meta’s track record and the kind of speech it appears to be prioritizing, this looks like a political move, not a principled one.

Why I’m quitting the Washington Post (Ann Telnaes, Substack). The editorial cartoonist explained why she left the paper after 15 years when one of her cartoons was killed: “We’re talking about news organizations that have public obligations and who are obliged to nurture a free press in a democracy. Owners of such press organizations are responsible for safeguarding that free press.”

Ohio puts police bodycam footage behind a paywall (The Intercept). Some better ways to reduce costs of producing police footage: Put video online proactively, hold police accountable for misconduct before the press starts probing, or maybe even hire better cops.

Check out our other newsletters

If you haven’t yet, subscribe to FPF’s other newsletters, including The Classifieds, our new newsletter on overclassification and more from Lauren Harper, our Daniel Ellsberg Chair on Government Secrecy.

In Part 1 of this series, we covered the challenges of visiting and communicating with incarcerated people. Here, we’ll talk about how to handle issues in accessing information held by jails and prisons.

Understanding the system

Though the number of incarcerated people has roughly quadrupled since 1980 and government spending has ballooned as well, there’s little standardized data about incarceration and its outcomes.

Each of the nation’s more than 3,000 counties collects its own jail data using different methods and agencies. Similarly, each state gathers data according to local legislation. Every jurisdiction considers varying categories and has different disclosure laws.

This lack of data can complicate reporting. Statistics as basic as national crime surveys are hard to find because thousands of law enforcement agencies do not report their data to the FBI. Accurate and granular information about recidivism, pretrial detention practices, and the financial status of defendants may not be tracked by government officials.

Data about conditions within incarceration facilities can also be exceedingly difficult to gather. Oregon, for example, requires staff to document each time they give naloxone to an incarcerated person. But state corrections officials told the Oregon Capital Chronicle in 2023 that the government did not have important information about overdoses that would have assisted reporting. "Corrections officials say they do not have information on the number of complaints filed against corrections staffers, how often a prison goes on lockdown or how often inmates suffer opioid overdoses,” it reported.

Data gathered may not be published until years after the information is collected, meaning it's out of sync with the latest legislation and changes in material conditions.

What sweeping data does exist often faces extensive delays before being released to the public. The Bureau of Justice Statistics collects a range of information about prisons and jails, as well as probation and parole data. But the data gathered may not be published until years after the information is collected, meaning it's out of sync with the latest legislation and changes in material conditions.

In many cases, advocacy organizations, academics, legal groups, or legislators may have been able to gather data that can help answer a question. But sometimes, the information you are looking for has simply not been tracked.

Sometimes, corrections departments may have the information you are seeking but are unwilling to share it with you. Like other entities, these agencies often fiercely seek to defend their reputations and will selectively release information to shape public perception. In many cases, a spokesperson may offer a canned, opaque response.

Many legal scholars believe it is unconstitutional for government agencies, including departments of correction, to restrict employees other than spokespeople from talking to journalists. An agency in Pennsylvania recently settled a case alleging such a policy was unconstitutional and revised the policy.

Still, agencies have those policies on the books and the cost of challenging them in court is often prohibitive. Agencies may also tell you that they cannot provide the information that you’re seeking, but that you can file a records request.

Getting public information

Lawsuits are great resources for reporters who cover the criminal legal system. They can point you to newsworthy injustices and provide detailed and nuanced information that helps provide context for your story.

Incarcerated people do face significant challenges in pursuing litigation, including under the Prison Litigation Reform Act, which creates legal red tape that is very difficult for any nonlawyer, let alone one who is imprisoned, to navigate.

That means many lawsuits get dismissed for procedural reasons before a judge or jury is able to look at the facts. Claims made early on in lawsuits, whether by incarcerated plaintiffs or the agencies they sue, may or may not be accurate and require further investigation.

On the other hand, just because an incarcerated person’s lawsuit was dismissed doesn’t mean the claims are not valid or worthy of looking into.

So, if you’re reporting on abuse in a particular incarceration facility, past legal filings can help you establish a paper trail of misconduct at that jail or prison. You can see if a particular corrections officer or medical worker has been previously accused of misconduct. Sworn testimony may provide useful insight that can be incorporated into your reporting, and past cases may provide insights about which lawyers might be useful to speak to.

An attorney holds a photo of the bedbug-invested Georgia jail cell where Lashawn Thompson died in 2022.

For federal court cases, records can be found in PACER. Costs for these records add up quickly, as each page downloaded costs 10 cents. Document prices are capped at $3, even if the documents are longer than 30 pages.

For many cases, you will be able to find documents through CourtListener, a free legal website operated by the Free Law Project that has nearly 9.8 million legal opinions from federal, state, and specialty courts. The Free Law Project has also developed a browser extension called RECAP. If another RECAP user has previously downloaded an opinion, deposition, trial transcript, or other document in a federal court case, those documents will be available for free on CourtListener.

Each state will have different methods of accessing court records. Some states and counties make court records available online, but others don’t, meaning you may need to visit the courthouse in person to try to obtain them. Try calling the local clerk of court if you’re unsure how to obtain a system’s records.

In many cases, lawyers working on a particular lawsuit will provide relevant legal filings to journalists for free. For federal cases, you will also be able to set up notifications so that you are alerted by email when new documents are uploaded to the case, enabling you to break stories.

Other government entities, like an oversight body, might also have useful reports. More regulatory bodies for prisons and jails are emerging, according to Michele Deitch, who directs the Prison and Jail Innovation Lab at The University of Texas at Austin.

“Those oversight bodies are a tremendous source of information,” she told Freedom of the Press Foundation (FPF).

Requesting records is often a lengthy, uphill battle that requires specificity, persistent follow-ups, appeals, and knowledge of local laws.

Deitch and Alycia Welch, the lab’s co-director recently set up a website providing information about the prison oversight bodies in each state. Nineteen states and Washington, D.C., have independent entities that provide prison oversight and can be a source of information that incarceration agencies seek to obscure.

Meanwhile, eight states require you to be a resident of the state to file records requests. To pursue records in one of these states as a nonresident, you can ask transparency and advocacy organizations to file the request on your behalf.

Privately operated prisons, which are widely used to detain immigrants, are exempt from the federal Freedom of Information Act. A proposed law seeking to change this failed in 2023.

“It’s just a giant gaping loophole” in federal records laws, Nikhel Sus, deputy chief counsel at Citizens for Responsibility and Ethics in Washington, told FPF.

Even so, there are still ways to find information about the operations of privately run prisons. In many cases, Immigration and Customs Enforcement personnel will be copied on emails about private prisons, meaning those communications can be FOIA’d, Sus said.

If ICE has a contract with a state or county government to operate an incarceration facility, you can file records requests with more local agencies. On top of these potential workarounds, ICE is required to publish contracts and facility inspections, as well as information related to detention.

Either way, requesting records is often a lengthy, uphill battle that requires specificity, persistent follow-ups, appeals, and knowledge of local laws and legally permitted exemptions.

Transparency organizations like MuckRock may have solutions to these problems or examples of appeals that you can use.

Tapping legal resources

National organizations like the National Freedom of Information Coalition, the Reporters Committee for Freedom of the Press, or state chapters of the ACLU may be able to provide insights on how to challenge a FOIA determination you feel violates state law. If these organizations can’t help, they may be able to connect you with other lawyers or legal activism groups that can.

At the same time, these organizations can also assist in situations other than public records disputes — for example, by filing constitutional challenges to access restrictions that make it more difficult for journalists to communicate with incarcerated people or department of corrections employees.

The Pennsylvania case mentioned above – which challenged a policy routing all media communications through public information officers – is one example. Flimsy pretexts to deny media access, like the denial due to “victim protest,” can also be challenged. In jurisdictions with the death penalty, the media may (depending on the circumstances and local law) be able to object when excluded from attending executions.

That said, journalists should keep in mind that the court system moves far slower than the news cycle and can rack up costs. That means even if you’re able to eliminate monetary costs by finding counsel who will represent you pro bono, a court case may or may not be worth the time and energy investment. These challenges are compounded for freelancers, as government agencies know that these reporters are unlikely to have the legal assistance given to staff journalists at large news outlets. Freelancers should contact organizations like those listed above for assistance.

Resources/Guides

• Prison Policy Initiative’s guide to public records requests in each state
• The Marshall Project’s guide to criminal justice reporting
• National Immigrant Justice Center’s and Detention Watch Network’s state and local records request resources and template
• The National Press Foundation’s “5 Records Requests Every Crime Reporter Should File”
• National Freedom of Information Coalition’s state-by-state sample records requests and guides to freedom of information law
• MuckRock’s FOIA 101

The American incarceration system is a behemoth.

Around 1.9 million people in the United States are locked up in jails, prisons, immigration detention facilities, and other confinement centers. Federal, state, and local expenditures on corrections amount to more than $81 billion each year. Legal costs, criminal policing, and assorted other fees, like bail payments and prison phone call fees, end up costing taxpayers and families an additional $100 billion annually.

But despite its size and scope, the incarceration system is in many ways invisible. Its facilities operate outside the public eye and with less oversight than other governmental entities. And information about carceral institutions is closely guarded by corrections agencies that have a range of ways to restrict public access and block reporting efforts.

These barriers make covering stories about carceral facilities and incarcerated people different from many other types of journalism. As a reporter on this story, you will face logistical challenges that impede your ability to communicate with sources and verify information as you navigate a maze of bureaucracy.

While this guide is not intended to provide a comprehensive blueprint for all the obstacles you may face as you report on incarceration, it will offer broad insights into some common problems you will encounter and how to overcome them. And we hope it’s a reminder that facing these challenges is worth it in the name of transparency on this consequential story.

First, in Part 1, we’ll discuss the challenges of interviewing incarcerated people. Then, in Part 2, we will discuss how to handle barriers to obtaining documents and information.

Know the risks, share the risks

Many incarcerated people have no experience speaking with reporters. So when talking to someone behind bars, be sure to share as much detail as possible about your project, the scope of your reporting, and how their voice will be used in your story.

Be sure to define any journalistic terms you’re using, explaining what you mean, for instance, by “off the record” or “on background.” If anonymous sourcing is an option for your project, offer it at the beginning of an interview to encourage people to speak with you.

Even in cases where your source is comfortable being identified, be cautious about including names or details that might identify other incarcerated people and subject them to potential retaliation, whether by prison and jail officials or other incarcerated people.

Explain the conditions of your conversation to build trust so that the incarcerated person will not pull out of the project once you are closer to publication. Ensure they understand the risks they’re taking by talking to a journalist and are willingly taking those risks. Keep checking in throughout the reporting process to be certain this doesn’t change.

Be aware that jails or prisons may retaliate against those accused of causing problems — such as by unsanctioned communication with media. Retaliation can result in an incarcerated person spending time in solitary confinement, being moved to a facility further from family, or having their cell raided by corrections officers. Officials may also retaliate by confiscating devices or other means of communication. Incarceration facilities and departments could even trump up disciplinary charges to justify this conduct.

Be aware that jails or prisons may retaliate against those accused of causing problems — such as by unsanctioned communication with media.

You should also consider whether you are adequately protecting the identity of anonymous sources. Keri Blakinger, an investigative reporter who covers the criminal legal system, noted that small details you might consider innocuous, like the background of a photo taken with a contraband cellphone, could reveal the identity of someone who wishes to remain anonymous.

“When it comes to things like photos and videos, the biggest question I ask myself is, ‘Will this identify the source?’” Blakinger told In These Times. “This means asking yourself, ‘Is this photo of inedible-looking prison food with mold on it going to identify the unit that it came from, and if prison officials can identify the unit, is that sufficient for them to identify the person who took the image? Will they identify how the image got to me and any intermediaries involved? Will the source face consequences? Are they OK with that?’”

If you are communicating with incarcerated people using contraband cellphones, you should ask before publishing the method of communication. Indicating that your contact has a prohibited device can lead to repercussions. If the source sends you a photo, make sure to clarify whether or not you can publish or describe it.

Access is allowed, but can be restricted and erratic

The First Amendment covers journalists’ ability to report on incarceration facilities, but two 1974 Supreme Court rulings determined the press has no privilege beyond that of the general public to talk to people who are incarcerated.

This means that incarceration agencies and facilities can invoke a series of restrictions to impede journalists’ access and ability to do their jobs. Often these restrictions will be presented as measures to ensure the operational security of staff and incarcerated people.

These restrictions can mean that in-person interviews may be ended by prison or jail staff at any time, that prison or jail staff can select who journalists may talk to, or that interviews may be severely time-restricted.

If general visitors (like family members and friends) are prohibited from using cameras or recording devices at an incarceration facility, the facility may forbid reporters’ ability to bring those items into the facility as well. Facilities may also legally deny media members the right to interview particular incarcerated people. However, the Reporters Committee for Freedom of the Press notes, “Even though courts have rejected a First Amendment right to interview specific prisoners, most states have statutes or prison rules allowing for some type of access.”

Even so, some states have created enormous barriers to speaking with incarcerated people. Last year, the South Carolina Department of Corrections issued a press release saying that people incarcerated in its system “are not allowed to do interviews.” The ACLU sued the state over that policy in February 2024.

If you are denied the right to an interview, you should ask for a copy of the regulation that dictates access to determine whether the agency is violating its own policy.

Visits require time, jumping through hoops

Even once granted access, visits with incarcerated people are often difficult to arrange and require significant lead time. Many states have online instructions for scheduling a media visit and gaining approval for an in-person interview, or require you to contact the agency’s public information officer.

Media visits in Texas prisons, for example, require at least two weeks’ notice. You will only have an hour for the interview. In California, the subject must send you a visiting questionnaire, which the state corrections department may take approximately 30 working days to review and approve.

Once you gain approval, you will have to schedule a date and time for a visit. This visit could be abruptly canceled for a range of reasons, including facility lockdowns, that the person you want to interview has been subject to discipline by corrections officials, or because someone harmed by the offense that led to your source’s imprisonment has protested the interview.

Journalists exposed serious health and safety concerns at the infamous “F House” in Illinois' recently closed Stateville Correctional Center.

Some states place stringent restrictions on what you can bring into facilities and bar equipment like audio recorders. In California facilities, cameras and recording devices are not permitted, though the agency says it will provide pencil, pen, and paper “as needed.”

Policies around in-person interviews of those who are incarcerated can also be changed abruptly. In 2020, Arizona reporter Jimmy Jenkins was surprised to discover that the state’s corrections department had suddenly altered its media policy and now only permitted reporters to communicate with incarcerated people via paper mail.

Last year, an incarcerated Texas journalist was scheduled to be interviewed by another reporter. Though the state prison agency had previously approved the in-person conversation, the department revoked that permission prior to the meeting. The ombudsman explained via email that the interview had been canceled “due to victim protest.” The scheduled call was not related to the charges that led to the journalist’s incarceration.

Multiple means of (monitored) messaging

Beyond visits, there are other ways to contact incarcerated people. As with in-person visits, though, you should assume that phone calls, messages sent through electronic systems, and regular mail are being read and monitored by corrections officials.

All forms of communication with incarcerated people can be disrupted and be subject to unpredictable delays. While physical letters in some cases previously served as a work-around to unreliable phone and messaging systems, a number of jurisdictions have taken steps in recent years that alter how incarcerated people receive mail.

At least 14 states have started delivering scanned versions of physical mail sent to incarcerated people. (Though corrections officials have claimed they’re taking this step to stop contraband from entering facilities, there’s little evidence these policies are working.)

Until the beginning of the 2010s, reporters who wanted to communicate with people who were incarcerated were restricted to phone calls, in-person visits, or mail. In the last decade, private telecommunications companies started distributing and selling personal tablets in incarceration facilities (and earning large profits by doing so). Most states and the federal prison system now have an electronic messaging system.

Typically, you must create an account on the electronic messaging platform used by the particular corrections facility or system, add the person you want to message to your list of contacts using their state-assigned ID number and then add money to your account.

Messages sent via systems like JPay may be delayed by days or even weeks before they reach their recipient. Since messages are monitored by corrections officials, some communications may be heavily redacted by the time they reach the person you contacted.

Also, many incarcerated people do not have personal tablets and so must view messages via a centralized kiosk, limiting access to communications. (This was often a problem during the early pandemic, as persistent lockdowns hindered access to kiosks where people could respond to messages.).

Like electronic messages, phone calls with incarcerated people are monitored by the corrections agency and can be costly to them. Unlike with electronic messages, you will not be able to contact incarcerated people. Instead, they will have to call you. Even if you have agreed to talk at a certain time, they may be delayed in contacting you, as lockdowns, long phone lines, or other problems may impede phone access.

You should assume that phone calls, messages sent through electronic systems, and regular mail are being read and monitored.

Incarcerated people do not earn a living wage, and the meager amount of money they may make from a job inside does not cover the cost of communicating with family members and friends, let alone journalists.

Both phone calls and messages on electronic systems can be exorbitant for them. In Alabama, for example, a 15-minute in-state call will run over $3.75. Like phone calls, electronic “stamps” that allow messaging range in price across states. A pack of 10 stamps costs $1.50 in New York and $4.40 in Florida.

So they may not be able to afford the cost of contacting you and could ask to place collect calls, or for you to send stamps so they can respond to your messages. It is typical for reporters who cover the criminal legal system to pay for a return stamp when contacting an incarcerated source and foot the bill for communicating with sources.

Although two main communications systems are used across most prison systems in the U.S., you will need to add separate funds for each state correction system (i.e., Florida stamps cannot be used to message people in New York prisons.).

In Arkansas, Georgia, Michigan, and Texas, correspondence with the news media is considered to be “privileged communication,” according to the Prison Policy Initiative. This designation means that prison staff can’t open and read the letters like they can with other correspondence. Even if you have this protection, at any point in your reporting process, your source may lose their ability to communicate with you.

Partnering to find additional sources

In some cases, you may have a good tip for an article but no incarcerated sources to help move the story forward. Cold-messaging incarcerated people isn’t guaranteed to get you any reliable information, and it could endanger the safety of the people you contact. In these cases, you may be able to find helpful sources through local organizations.

Public defenders or other legal advocacy groups will likely know if there are incarcerated people who are willing to speak for your story and might be able to facilitate communication. Activist groups will also often have information and incarcerated contacts who can assist with sourcing.

In some cases, activists may agree to organize a three-way phone call. This can both protect the incarcerated source from being identified (if they have asked to be anonymous) and speed up the process of getting in touch, as these activists will already be entered in the corrections agency’s communications system.

Many family members are part of Facebook groups focused on their particular state’s incarceration facilities or the place their loved one is imprisoned. They can direct you to useful sources at the facility who might provide critical insights.

In other cases, incarcerated writers can help, as they have a wealth of knowledge about their institution and the broader incarceration system that detains them. In recent years, grassroots organizations like Empowerment Avenue have helped incarcerated journalists get their work published in outlets like The New York Times, The Appeal, and The Marshall Project. Reading the work of these writers, which can also be found at websites like Prison Writers and the Prison Journalism Project, can provide insights about how to approach a story.

Due to the restrictions placed on incarcerated journalists — such as departments attempting to limit what work they can publish, censored communications with news outlets, and retaliation for writing negative stories — these writers may have information they chose not to publish. If you are building on the work of an incarcerated writer, you should offer them the chance to collaborate on a publication, co-report the story, and get paid for their contributions to the writing process.

Read Part 2 of this series, focused on obtaining documents and information about jails, prisons and incarcerated people.

Resources/Guides

• Scalawag Magazine/Empowerment Avenue’s America’s “The Press in Prison”
• “​​​​What Words We Use — and Avoid — When Covering People and Incarceration” from The Marshall Project
• Free Poynter training on covering jails and the language we use
• “Locked Up and Dying” series from CalMatters
• “Idaho jails withheld details about dozens of detainee deaths” from InvestigateWest
• “Locked In, Priced Out: How Prison Commissary Price-Gouging Preys on the Incarcerated” from The Appeal
• “They Were Wrongfully Convicted. Now They’re Denied Compensation Despite Michigan Law” from ProPublica

Dear Friend of Press Freedom,

I’m Lauren Harper, the first Daniel Ellsberg Chair on Government Secrecy at Freedom of the Press Foundation (FPF), and welcome to “The Classifieds.” This is FPF’s weekly newsletter highlighting important secrecy news that shows how the public is harmed when the government keeps too many secrets.

EPA’s silence on ‘forever chemicals’ in fertilizer a public health risk

For over 20 years, the Environmental Protection Agency has promoted a fertilizer it knows contains “forever chemicals” linked to birth defects and cancer.

An investigation by veteran environmental reporter Hiroko Tabuchi for The New York Times shows that, in the early 2000s, chemical manufacturer 3M found high levels of the toxic chemicals it produced in the nation’s sewage supply. Because the wastewater was used to fertilize farmland as part of a practice promoted by the EPA, the company concluded its “chemicals were being unwittingly spread on fields across the country.”

3M told the EPA about its findings during a 2003 meeting.

The EPA sat on the study, continues to promote the fertilization method that may “permanently contaminate” soil, and does not require testing for forever chemicals in wastewater. The only reason we know about the public health risk at all is because Tabuchi dug through thousands of pages of records — all stored on CDs — that were released by 3M as part of a legal settlement.

For more information on the dangers of these same chemicals found in drinking water, which the EPA only recently began regulating, read here and here.

CIA’s mind-control programs declassified

The National Security Archive (where I used to work) recently published a collection of over 1,200 declassified documents on the CIA’s infamous mind-control research programs, projects MKULTRA, BLUEBIRD, and ARTICHOKE. The publication comes 50 years after journalist Seymour Hersh broke the story about the existence of the illegal programs in The New York Times.

The most infamous example of the CIA’s illegal experiments — often conducted on U.S. citizens who had no idea they were being targeted — may be Operation Midnight Climax. As part of this 1950s program, prostitutes working under the direction of the agency lured unsuspecting men back to CIA-run brothels in San Francisco and New York City. The CIA’s own records show the victims were unwittingly fed a variety of drugs, including LSD manufactured by companies like Eli Lilly. The prostitutes then attempted to coax information from the drugged victims so CIA officials, hidden behind one-way mirrors, could assess the drugs’ impact on the men’s ability to tell the truth.

The legacy of these projects, and the medical community’s willingness to support the agency’s illegal and unethical work, goes beyond mind-control experiments. Former New York Times journalist Stephen Kinzer notes that MKULTRA in particular “contributed decisively to the development of techniques that Americans and their allies used at detention centers in Vietnam, Latin America, Afghanistan, Iraq, Guantanamo Bay, and secret prisons around the world.”

Federal police accountability database issues first report. Will Trump maintain it?

The Justice Department released its first annual report assessing statistics from the National Law Enforcement Accountability Database. The database was mandated by President Joe Biden’s 2022 executive order, “Advancing Effective, Accountable Policing and Criminal Justice Practices To Enhance Public Trust and Public Safety,” and mirrors similar efforts by the Biden administration to bring accountability and transparency to local policing.

The database, which is used by agencies when making personnel decisions like hiring and promotions, contains information on federal law enforcement misconduct for 2018 through 2023. It currently consists of 4,790 records and shows 63% of incidents “were for sustained complaints or records of disciplinary action based on findings of serious misconduct.”

While the order mandates annual reporting, it’s possible President-elect Donald Trump will rescind the requirement and discontinue the database.

Incentivized lying plagued U.S. efforts in Afghanistan across decades

The Special Inspector General on Afghanistan Reconstruction will issue its final report this year.

SIGAR’s work has been instrumental in informing the public how the U.S. government lied for decades about its progress in Afghanistan, particularly concerning the effectiveness of the billions of dollars spent training Afghanistan’s security forces. A large part of the problem, which IG John Sopko highlights in a recent New York Times op-ed, is the “perverse incentive” for military officials and contractors to justify previous spending levels to keep their budgets from getting cut, no matter how ineffective or useless the programs were.

The IG’s office was, by its own assessment, “the only government agency reliably reporting on the situation” in Afghanistan, and did so in spite of “stiff opposition from officials in the departments of Defense and State, USAID and the organizations that supported their programs.” (SIGAR was not universally transparent with the public, however. Washington Post reporter Craig Whitlock had to sue SIGAR under the Freedom of Information Act to obtain copies of the “lessons learned” interviews SIGAR conducted with policymakers, military officials, and contractors who worked in Afghanistan for his book, “The Afghanistan Papers.”)

What I’m reading

The American oil industry’s playbook, illustrated: How drillers offload costly cleanup onto the public (ProPublica). In more environmental secrecy news, ProPublica reports that the Interior Department has known for 35 years that unplugged oil and gas wells can leak dangerous material into the water supply. The public health impact of this problem needs get more attention as the incoming Trump administration works to “increase the number of sales for oil leases on public lands and shrink federal environmental agencies.”

Trump advisers seek to shrink or eliminate bank regulators (Wall Street Journal). The Trump transition team is exploring ways to eliminate the Federal Deposit Insurance Corporation, an agency that maintains “public confidence in the nation’s financial system.” The public regularly demonstrates its interest in the FDIC’s work, filing nearly 700 FOIA requests with the agency in 2023 alone. These requests seek a wide swath of information, ranging from bank acquisitions to communications with Congress.

He leaked Trump’s tax returns. Will Biden protect him? (The Intercept). Tax law professors are encouraging President Biden to commute the sentence of former IRS contractor Charles Littlejohn. Littlejohn leaked Trump’s tax returns to The New York Times after Trump broke tradition and refused to release them. Littlejohn also leaked returns of Jeff Bezos, Elon Musk, and other billionaires, showing how the superrich exploit the tax system.

Dear Friend of Press Freedom,

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Democrats surrender on press freedom

Democrats spent election season fundraising by warning America that a second Trump term would kickstart America’s descent into fascism. It’d be logical to assume, then, that after Trump won, they’d do everything in their power to restrain his anti-democratic impulses. You’d think that even before he won, the mere prospect would spur some urgency to check his potential powers. 

But they either didn’t really believe Trump posed the threats they campaigned on, or they don’t care. That’s evident because, despite Trump escalating his threats to retaliate against the media to unprecedented levels in the closing weeks of 2024, Senate leadership gave up on the PRESS Act — the bipartisan “shield” bill to protect journalist-source confidentiality. 

There are no excuses for their failure. The bill passed the House unanimously and had bipartisan support in the Senate, which Democrats controlled. Sure, it didn’t help that Trump called on Republicans to kill the bill, or that Sen. Tom Cotton gave an irrational floor speech opposing it. 

But those obstacles only arose because Senate Democrats waited 11 months to act, after the House passed the bill last January. And there were still opportunities in the closing days of the session, even if Sen. Schumer would’ve had to shorten senators’ holiday break. Bottom line, if leadership saw the bill as a higher priority, it would be the law of the land today.  

The bill’s lead sponsors — Jamie Raskin and Kevin Kiley in the House and Ron Wyden and Mike Lee in the Senate — deserve credit for their diligent efforts. So do the newspapers that endorsed the bill, even though they should’ve done so sooner. But others —  particularly those in leadership positions who could’ve done more —  should be ashamed. If Trump follows through on his threats against the press they will share a significant portion of the blame. 

Mohawk journalist speaks out about being arrested for reporting

Isaac White is a Mohawk journalist from the territory of Akwesasne in northern New York. He was arrested back in May for attempting to cover a demonstration in opposition to a land claim settlement. 

White’s story about his arrest, which we published in December, discusses his shock at being arrested in violation of the Constitution his ancestors inspired and his suspicion that the charges against him and others were intended to silence critics of the settlement. These charges were dropped several months later, after Freedom of the Press Foundation (FPF) and other organizations wrote to local prosecutors.

If White’s suspicions are correct, those efforts failed. “While the thought of spending a year in county jail wasn’t appealing,” he writes, “there was no way I would bend to the state’s bullying.” Read White’s detailed and inspiring reflection on his ordeal here.

News outlets shouldn’t settle defensible cases

FPF Director of Advocacy Seth Stern argued in the Chicago Sun-Times that ABC could’ve defended Trump’s lawsuit alleging George Stephanopoulos defamed him by stating that he’d been found liable for rape, as opposed to sexual abuse. Instead, it settled for $15 million. 

Stern would know — he helped defend the Sun-Times in a virtually identical case over 10 years ago. “Find me the person or company that’s eager to do business with alleged sexual assailants and abusers but draws the line at alleged rapists,” he writes, questioning whether Disney-owned ABC prioritized the interests of its nonmedia holdings over the First Amendment. You can read the op-ed here.   

The 2025 journalist’s digital security checklist

In tumultuous times, we believe in being prepared, not scared. Sound digital security practice often involves forming and relying on good habits. Building these reflexes now will help keep journalists better protected against future threats. 

This is why our digital security team distilled advice our trainers have shared with thousands of journalists over the years into actionable, concrete steps. Read more here. 

What we’re reading

Federal lawsuit: Asheville journalists sue city, police over alleged illegal arrests (Asheville Citizen Times). Park curfews don’t mean police can evade scrutiny at night. The Asheville Blade had every right to cover a controversial Christmas night encampment sweep three years ago. Asheville officials must be held accountable for retaliating against journalists. 

Indigenous journalism legacy ends in Akwesasne with Indian Time closing (Canadian Broadcasting Corporation). Sadly, Indigenous-owned news outlets face the same challenges as other local news outlets. Case in point, Indian Time, the newspaper White was reporting for when he was arrested, was recently forced to shutter. It covered Akwesasne, located at the U.S.-Canada border. 

LA city officials use disappearing Google Chats. The city attorney is investigating (Los Angeles Times). When they’re not trying to sue or prosecute journalists for reporting on public records, Los Angeles officials use disappearing chats to avoid creating them in the first place. LA’s dismal track record on press freedom is a reminder for anyone who thinks it’s solely a Trump or Republican issue.

He leaked Trump’s tax returns. Will Biden protect him? (The Intercept). Charles Littlejohn didn’t leak tax evaders’ returns for personal gain, but because he saw no other path to accountability. We wrote last year that “even murder defendants are entitled to consideration of their motives at sentencing. Whistleblowers certainly should be as well.” 

Meta’s WhatsApp wins ruling holding spyware maker NSO liable for hacking (The Washington Post). NSO Group, the maker of the notorious Pegasus spyware, cannot escape accountability in U.S. courts for its unlawful attacks on journalists and human rights activists in dozens of countries around the world.

Spyware is spreading — and it’s cheaper than ever (Columbia Journalism Review).  Trevor Timm, FPF’s executive director, helped journalists Joel Simon and Ronan Farrow alongside Ela Stapley of the Committee to Protect Journalists come up with five tips for reporters worried about spyware attacks. 

Check out our other newsletters

If you haven’t yet, subscribe to FPF’s other newsletters, including The Classifieds, our new newsletter on overclassification and more from Lauren Harper, our Daniel Ellsberg Chair on Government Secrecy. 

A few months ago, Disney made headlines when, rather than settling a wrongful death lawsuit, it argued that theme park guests waived their right to take it to court when they signed up for Disney Plus trials.

But Mickey Mouse appears to have had a change of heart on paying plaintiffs. Disney is now writing a multimillion-dollar settlement check to avoid litigating a defensible defamation lawsuit by Donald Trump. The president-elect claims Disney’s ABC News defamed him by saying he was found liable for “rape” when a jury really found he had committed sexual abuse.

Freedom of the Press Foundation (FPF) Director of Advocacy Seth Stern helped successfully defend the Chicago Sun-Times in a virtually identical case over 10 years ago. A judge threw out a Northwestern professor’s suit over a headline that said he was accused of rape rather than sexual assault.

“Find me the person or company that’s eager to do business with alleged sexual assailants and abusers but draws the line at alleged rapists,” Stern wrote in the Sun-Times, questioning whether Disney prioritized the interests of its nonmedia holdings over the First Amendment.

“Back in the days when news outlets were owned by news companies, a strong First Amendment was fundamental to their economic interests. Unless they’d messed up badly, they rarely settled, even when it would be cheaper than litigating. It’s fair to question whether that equation changes when news comprises just a fraction of ownership’s holdings.”

You can read the op-ed here.

“You’re under arrest.”

“I’m a reporter.”

“I don’t care.”

I laughed at the prospect of being arrested for covering a story.

May 21 started like any other for a local reporter: out in my community, Akwesasne, looking for news worth sharing.

Then, I got a call about a potential story on Barnhart Island in Massena, New York. The island is one of our ancestral Akwesasne lands, Mohawk Territory on the northern New York border with Canada, carved apart by colonial powers that decided for themselves how we could access our own Nation’s land.

It’s now home to a New York Power Authority dam that generates billions of dollars in revenue each year. My Nation receives no meaningful benefit, even though the island is rightfully ours. It was stolen.

The call came from my wife, Monica Garrow, who’s always been an excellent source of leads. She often joins me on stories, capturing photos from angles I might miss. Indian Time, the paper I report for, is small and hyperlocal — one of the oldest Native American newspapers in the U.S. Though we’re barely staying afloat, I’ve taken immense pride in writing for it.

“Something might be going on at Barnhart,” Monica said, which piqued my interest. Someone might be demonstrating to remind everyone that the island is ours.

Akwesasne has been in a land claims battle with New York state for over four decades, because by taking our land it violated the Nonintercourse Act, a series of congressional acts that by 1834 prohibited land transactions with Native Americans unless authorized by Congress. This isn’t just my perspective; it’s the 2022 ruling of U.S. District Judge Lawrence Kahn.

The Saint Regis Mohawk Tribe, the Mohawk Council of Akwesasne, and the Mohawk Nation Council of Chiefs are the lead plaintiffs in the case. They are ready to give away large portions of our treaty lands, including Barnhart Island, for next to nothing.

Many in Akwesasne don’t agree with settling the claims by giving away such large pieces of stolen land. I could go on about the Treaty of the Seven Nations of Canada and its validity, but the bottom line is that we should not give up on what is rightfully ours.

After all, our current land base is just a drop in a hundred-gallon drum compared to what it once was — all the land that now makes up the United States.

‘The cops are here’

As we drove down Barnhart Island Road, Monica and I looked for any signs of activity. Eventually, we spotted a couple of vehicles parked along the roadside. I pulled over and saw familiar faces — people I’d worked with to raise awareness about the bogus settlement.

I asked someone I knew what was happening. Even then, it wasn’t clear what their intentions were. I saw people milling around, taking photos. No one was willing to speak on the record. I had nothing I could publish — no interviews, no statements, and nothing corroborated.

I estimate I was there for no more than an hour, and was waiting for something worth documenting. Suddenly, I heard a woman say, “The cops are here.”

I made a mistake that day — I assumed that because I had press credentials, I wouldn’t be targeted.

At that moment, I had my back to the road. I had moved a few hundred feet from the vehicles, following the others closer to the tree line. I turned back and saw police cars.

There were more than I expected. But their arrival didn’t surprise me. The issue of Barnhart Island as Mohawk land has been contentious for decades. Time and again, Indigenous protests are met with force.

An officer shouted over a bullhorn, telling us to disperse or risk arrest for trespassing. I moved closer to get video footage and photographic evidence of the police actions. Monica and I took the photos and videos, which are still in my possession.

The police made at least two announcements to disperse, though it wasn’t clear where we should go. I stayed near the road, focused on getting good shots.

The threat facing others

I made a mistake that day — I assumed that because I had press credentials, I wouldn’t be targeted by the police.

While I hadn’t fully considered my potential danger, I was acutely aware of the threat facing the others. I knew I had to document what was happening to ensure any impropriety or violence was recorded. I knew things could escalate quickly.

The others held their ground and, soon enough, the police announced that everyone would be arrested. Because I was closest to the road, a state trooper approached me first.

The exchange between us — the words that opened this story — began then.

I found it absurd that the police would disregard the First Amendment’s protections for the press. The irony is that our Mohawk Constitution, Kaienerakowa, influenced the development of the U.S. Constitution, memorialized in U.S. House Resolution 331.

So here I was, a Mohawk reporter being arrested in violation of the constitutional ideals the police are sworn to uphold … that were inspired by my ancestors.

Credentials never checked

The cuffs went on, and I was led to the side of the road. I mentioned again that I was a reporter, and a trooper asked if I had my credentials. I told him that I kept them in the phone/wallet case around my neck — a habit I’ve developed to always have quick access to my phone for recording.

Even though he asked about my credentials, he never checked my case. I don’t think he cared. Maybe he preferred not to confirm that I was a reporter.

I understood fully that the police didn’t care about their supposed allegiance to the Constitution — I was going for a ride, journalist or not.

Meanwhile, I could see a line of police moving in, arresting the others. My main concern was their safety. With my hands cuffed, I couldn’t document anything.

Luckily, Monica was on top of it — she continued recording from outside our car, which was still parked at the roadside. I’m grateful she was there that day — not just for me, but for everyone else. Monica took on the role of a citizen journalist, even if she wouldn’t call herself that. Whether or not anyone else acknowledges it, I will.

I’m fortunate to be married to her — throughout this ordeal, she never wavered in her support for me or my refusal to bend to the will of the state. She’s a true warrior for our people, and I’m proud to share that.

I watched as the other Akwesasronon were taken into custody, relieved that no one was hurt. With my hands cuffed behind my back, I found myself back in a state of comic disbelief.

By then, I understood fully that the police didn’t care about their supposed allegiance to the Constitution — I was going for a ride, journalist or not.

My disbelief turned to disgust when I looked to my left and saw a young Mohawk boy handcuffed beside me. He said he was fourteen. He posed no threat and to put a child in handcuffs like that was simply wrong.

Later, I learned that neither he nor his father had been involved in the day’s actions. But the boy remained calm under pressure, showing no fear — remarkably Mohawk and incredibly impressive.

Coping through gallows humor

I judged that arguing with the cops about the boy’s handcuffs wouldn’t help him. So, I turned to my usual coping mechanism: humor. Gallows humor can defuse situations that might break others. I think it’s part of our DNA — something we all connect on.

“So I guess you’re not going to give me a quote for my story?” I asked. The trooper didn’t look pleased, but I figured if I was going for a ride, I might as well have some fun.

Most other Indigenous people I’ve met from different nations use the same tactic when facing injustice. We aren’t surprised when we’re targeted. In Akwesasne, we’re warriors. We know precisely how the government and some police regard us.

A Mohawk Warrior Society sign at the site on Barnhart Island where Isaac White was arrested.

Eventually, we were to be moved to the state police outpost in Massena. The trooper escorting me was polite, quite different from the others. However, I knew there would be a problem when we reached the car.

I’m what you might call large — 6’4” in my shoes and far from slim. I knew they’d need to put me in something other than what they called a “cage car.”

When he opened the door, I immediately told him there was no way I’d fit. He insisted I try. I attempted to sit, legs sticking out, trying to swing them in, but it wasn’t happening.

The trooper finally realized I wouldn’t fit and told me to get out. At that point, I had to tell him I was stuck. My left leg was wedged against the barrier separating the front of the car from the back seat. I rocked back and forth to build momentum, and the trooper pulled my arm to help me out.

I swear I heard a Looney Toons-like “pop” when I finally emerged from the car.

‘It felt surreal’

They moved me to another car, and to my surprise, they put the 14-year-old boy in the back seat with me while his father was seated in the front. My anger flared — not only were they still holding the boy, but they were treating him like an adult in custody. It was disgusting.

They could — no, they should — have let him go with Monica or one of the other adults on the scene.

We rode to the station, and I made jokes to lighten the mood. I knew the penalties for trespassing were minor. I didn’t see any serious threat to our freedom at that moment.

When we arrived, we were led into the station. Eight of us were arrested, but we were informed the boy wouldn’t be processed with us; he’d be released to another adult.

I was held in a room with three Akwesasronon women and the boy's father. We were chained to the bench. Still, we kept the mood light, joking and discussing current events on the rez.

No one handcuffed to those benches showed any fear of the state's heavy-handed actions. Naturally, they asked what the police thought they were doing, especially since everyone knew I was there as a journalist. I told them honestly: I wasn’t surprised.

I was fully aware of the significance of a reporter being arrested for doing their job. It was wrong — wrong of the police, wrong of those who decided to prosecute me — and it felt surreal.

Silencing a journalist?

I’ve read about journalists being arrested, but why would I — a Mohawk reporter for Indian Time, a small local paper — be targeted? I’m proud of my work, and I know our paper is vital to the Akwesasne community.

I have my suspicions about why I was targeted and why the charges weren’t dropped, even after it was clear I was a credentialed journalist.

Land claims are a hot-button issue in Akwesasne and in New York State. They have significant implications, potentially reshaping the areas that were illegally taken from us.

It was inspiring to hear, “You’re a reporter; it’s bullshit they did that; they’re violating their law.”

It’s not unrealistic that the billions in revenue generated by the power dam on Barnhart Island might be a motive for silencing a journalist. The idea that our councils and traditional government could be selling out our people is a serious accusation, but a reasonable one.

I suspected that some elected council members approved of our arrests, pandering to those eager to see “the duly recognized governing body of the Saint Regis Mohawk Tribe” give away our future for money. I was told the council didn’t know, and I genuinely hope that’s true.

Massena, Fort Covington, St. Lawrence County, Franklin County, New York State, and the New York Power Authority would love nothing more than for this four-decade litigation to disappear — our stolen land forgotten, forgiven for a pittance, and laughed about behind closed doors.

Over the last 20 years, I’ve learned enough about our people’s history and the struggles of other Onkwehonwe Nations to know that those who took our land will do whatever they can to keep it. They will go to great lengths to ensure we never reclaim the land that was ours for thousands of years before their theft.

Alleged video evidence never produced

After a few hours, we were processed and released with appearance tickets for Massena Town Court. My charges? Not just trespassing but also conspiracy. Conspiracy to what? That’s a good question and one I asked myself. Repeatedly.

Apparently, they believed I was involved in furthering a felony. How they reached that conclusion remains a mystery, especially after reading the partial discovery I received from the St. Lawrence County District Attorney's office.

In those documents, no witness statements mentioned a 6'4", 300-plus pound man in a green polo shirt. There was allegedly video evidence, but the prosecution never produced it despite my repeated requests. Yes, that’s right — I couldn’t even obtain the full evidence they intended to use against me.

Over the next six months, there were multiple court appearances for me and the others. I requested a dismissal at my first appearance, citing the state’s violation of the First Amendment. Unsurprisingly, the request was denied.

But I witnessed something beautiful that day: a large turnout of supporters for what some began to call the “Akwesasne 8.” I wasn’t a huge fan of the term, but my pride swelled seeing Akwesasronon lined up to support us.

The people arrested that day are at the forefront of the movement against the settlement. They’ve done incredible work educating the community about the relinquishment of our land.

It was inspiring to hear, “You’re a reporter; it’s bullshit they did that; they’re violating their law.”

Delays seemed intentional

For a while after the arrest, I felt disheartened. I wanted to write about what I’d seen, but with the criminal case hanging over me, I knew it was wiser to hold off. Part of me suspected that was precisely what they wanted.

As time passed, the push for settlement continued from the state, the elected councils, and the Mohawk Nation Council of Chiefs. We were losing time, strengthening my belief that the delay was intentional.

During this process, I contacted several journalist advocacy and protection organizations. I was overwhelmed by how quickly offers to help came in. I sent those emails to see if anyone would provide advice, but I never expected the enthusiastic support I received.

Angel Ellis of the Muscogee Nation, and a member of the board of the Indigenous Journalists Association, was among the first to respond. We spoke on the phone and exchanged texts and emails, and her support was incredibly comforting. Angel had faced her own battles with government overreach, and our shared experiences helped me understand what I was dealing with.

While the thought of spending a year in county jail wasn’t appealing, there was no way I would bend to the state’s bullying.

Angel also connected me with Seth Stern, director of advocacy for Freedom of the Press Foundation (FPF). Seth provided valuable insights and a different perspective on my situation. He and his organization were a force to be reckoned with.

At Seth’s urging, FPF drafted a letter, signed by more than 20 press advocacy and rights groups, and sent it directly to St. Lawrence County District Attorney Gary Pasqua.

At some point, one of the others who were arrested mentioned they were offered a deal: The charges would be dropped if they stayed out of trouble for a certain period. They refused, and I would have refused, too, as I was set on taking this case to trial.

My original plan was to represent myself. After all, I have paralegal experience and was trained by an attorney I deeply admire. When I mentioned this to him, he reminded me of the saying, “The man who represents himself has a fool for a client, right big guy?”

After that, I told Seth I wanted to get an attorney, and he suggested contacting the Reporters Committee for Freedom of the Press. It contacted attorneys on my behalf. Finding someone in northern New York was difficult, but I’m forever thankful for their efforts.

Refusing to bend to the state’s bullying

I was ready to see this through and so were the others. My case had an added dimension — press freedom. A journalist friend told me not to downplay my situation — my being targeted was a threat to all of us. He was right.

While the thought of spending a year in county jail wasn’t appealing, there was no way I would bend to the state’s bullying. That they threatened the others only fueled my justifiable anger.

More importantly, I had my 18-year-old son to think about. My wife and I have always taught him to stand up for his rights, to defend our people in Akwesasne, and to fight for justice. There was no way I would let him see his father fold under government pressure.

Monica, the woman I’ve always known and loved, stayed strong. When I told her I’d take this to trial, no deals, she looked at me and said, “I know. I love you.”

Then, at my last court appearance, I was informed that my case was being dismissed. When I asked the assistant district attorney why, he rudely told me they didn’t have to disclose their reasons for dropping the case against me and all but two others.

Was this entire half-year ordeal just a smoke screen for the state to push through an unjust deal with the Saint Regis Mohawk Tribe, the Mohawk Council of Akwesasne, and the Mohawk Nation Council of Chiefs, while sidelining their most vocal “agitators”? It seems a reasonable conclusion.

After all, my record as a journalist in Akwesasne has involved shedding light on what I’ll charitably call questionable decisions by the Saint Regis Mohawk Tribe.

The others arrested that day also have been thorns in the side of those pushing the settlement, and that resistance continues to grow as I write this.

The New York Power Authority and New York state believe they have their checkmate because our councils are willing to settle. But this colonial grab won’t be accepted.

The nonsense prosecution I faced is nothing compared to the pain and anger Akwesasne will hold if this settlement is signed. I’d gladly take that year in jail if it meant our land would be returned to us, its rightful stewards. Akwesasne, stand up.

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TikTok court dangerously defers to government on national security

The Supreme Court will review a federal appellate court order upholding legislation to effectively ban TikTok in the United States. Before the court agreed to take the case, we wrote about why it should reverse that decision. 

The TikTok ban threatens fundamental free speech principles that have been the law for decades, like the prohibition on prior restraints and the fundamental principle established by the Pentagon Papers case – that the government can’t just scream “national security” as magic words to make the First Amendment disappear. 

Read more about what’s at stake on our website. Our executive director, Trevor Timm, also has a column on the subject in The Guardian. 

Executioners used to hide behind masks. Here’s how they hide now

Indiana is one of two states with laws excluding the media from witnessing executions. The other, Wyoming, hasn’t executed anyone since 1992. 

Indiana, however, executed Joseph Corcoran on Wednesday. Freedom of the Press Foundation (FPF) Director of Advocacy Seth Stern, along with George Hale, who covers the death penalty for Indiana Public Media, wrote for the Indianapolis Star about Indiana’s “dubious honor of being the national standard bearer for taxpayer-funded secret killings.”  

It turned out that a journalist was able to attend the execution, but only because Corcoran and his lawyer apparently gave one of the seats reserved for friends and family to a journalist. The state shouldn’t put the onus on the condemned to ensure transparency around their own killing. The law needs to change. 

Trump SLAPPs, ABC capitulates, independent outlets suffer

President-elect Donald Trump’s war against the press is multipronged, but this week the facet that got the most attention is his lawfare against news outlets that criticize him — or even report polls he doesn’t like. 

ABC’s agreement to pay him $15 million to settle a defensible lawsuit raises serious concerns about self-censorship by the media during Trump’s second term. As Stern told The Intercept, when outlets like ABC settle, “not only are they putting a target on their back, they’re putting a target on the backs of smaller outlets that don’t have those kinds of legal resources.”

And speaking of smaller outlets, Trump also sued the Des Moines Register for reporting on a poll that proved to be wrong. We told The Washington Post that these lawsuits create “an environment where journalists can’t help but look over their shoulders knowing the incoming administration is on the lookout for any pretext or excuse to come after them.” 

Stern also appeared on Texas Public Radio to discuss the threats to press freedom during Trump’s second term — many of which result from powers Democrats handed him on a silver platter during the Biden administration. 

Presidential library? Not quite

Speaking of that ABC lawsuit, many reports said that the settlement money would go to Trump’s official presidential library. That may have seemed like a silver lining to some. But as our Daniel Ellsberg Chair on Government Secrecy Lauren Harper explained, it’s not true. The money will actually go to a foundation that can build propaganda museums that obscure history rather than preserving it. 

Harper explains the long track record of abuses at these presidential museums, and why Congress needs to step in to reform donations to presidential foundations. 

Swifties should unite to find missing U.S. journalist

U.S. journalist Austin Tice has been missing in Syria for 12 years, but the collapse of Bashar Assad’s regime has led to renewed hope that his family might be able to bring him home. 

In Tice’s last tweet before his abduction on Aug. 11, 2012, he wrote that he’d spent that day listening to Taylor Swift’s music at a pool party with members of opposition rebel groups. 

Our deputy director of audience, Ahmed Zidan, calls on Swift and her legion of supporters to bring attention to the case and help bring her fan home.

Substack steps up

Substack and Amazon Web Services were named as co-defendants in a frivolous lawsuit against journalist Jack Poulson. They could have rested their defense on Section 230 of the Communications Decency Act — which immunizes them from liability for what Poulson publishes on their platforms — but they went above and beyond to defend Poulson’s First Amendment rights. 

As FPF Senior Adviser Caitlin Vogus writes, other platforms that host journalism and third-party speech need to take note. 

What we’re reading

There’s still time for the Senate to support the First Amendment (New York Times). The PRESS Act is bipartisan legislation that’s already passed the House. Sen. Chuck Schumer must not let the most important press freedom bill in modern history die in the Senate. 

Senate to act on drone-tracking bill empowering state, local authorities (The Hill). Even as the Senate fails to pass the PRESS Act and protect the public’s right to know, it finds time for a drone bill that makes it easier for cops to harass journalists. Huh.

Congress again fails to limit scope of spy powers in new defense bill (Wired). This is exactly why you don’t pass overreaching spy bills that give the government unprecedented power to surveil journalists and others, and hope maybe you’ll be able to fix them later.

Judge broke rules by criticizing Justice Alito during flag flap (Wall Street Journal). Let us get this straight: Legitimate criticism of Justice Alito’s behavior is muzzled, while Alito faces no consequences for behavior that undermines his impartiality? Sounds about right for this Supreme Court.

US government tells officials, politicians to ditch regular calls and texts (Reuters). Politicians wouldn’t have end-to-end encrypted messaging services to use after the Chinese hack of our telecom system if they’d succeeded in outlawing it or requiring backdoors for the Chinese and others to break into. Maybe something to think about next time this debate comes up in Congress.

Check out FPF’s new secrecy newsletter, “The Classifieds”

“The Classifieds,” a new FPF newsletter by Harper, our Daniel Ellsberg Chair on Government Secrecy, highlights important secrecy news stories that show how the public is harmed when the government keeps too many secrets. Sign up here to receive “The Classifieds” in your inbox every week.

Tech executive Maury Blackman is still trying every possible angle to censor journalist Jack Poulson for publishing a sealed police incident report and accurately reporting that Blackman was arrested in 2021 on suspicion of felony domestic violence. (Blackman was never charged or convicted.)

Not content with suing Poulson and his nonprofit, Blackman also sued Substack, the publisher of Poulson’s newsletter, and Amazon Web Services, which hosts Substack. But recent filings by Substack and AWS in the case explain why the First Amendment dooms not only Blackman’s case against the tech companies but also his case against Poulson.

Substack’s arguments, in particular, show how platforms can defend themselves and press freedom at the same time, and arguments by both companies demonstrate the importance to online journalism of Section 230 of the Communications Decency Act. Substack and AWS are doing exactly what tech companies that make money by publishing journalism — or any third-party content — should do. Journalists and other tech companies should take note.

First Amendment comes first

Earlier this month, Substack and AWS filed separate motions under California’s anti-SLAPP law seeking dismissal of Blackman’s claims. While both briefs explain the First Amendment barriers to Blackman’s case, Substack’s motion does a particularly good job applying the First Amendment not only to the platform but also to the journalists who publish on it.

Substack’s First Amendment argument is simple and correct: The First Amendment bars Blackman’s lawsuit because the information Poulson published was true and newsworthy. The public has a legitimate interest in true information that shows that a “powerful man (had been) arrested for felony domestic violence—without suffering job-related consequences for his role as a CEO with government contracts and a role in national security.”

As Substack points out, the Supreme Court has repeatedly said that the First Amendment bars enjoining news outlets and journalists from publishing true and newsworthy reporting, as well as prohibiting punishing them civilly or criminally. This black-letter law means that Blackman’s case against Substack — as well as against Poulson and the other defendants — should be dismissed.

To make its case, Substack also relies on another important Supreme Court precedent protecting journalists. In Bartnicki v. Vopper, the court held that the First Amendment protected a journalist’s right to publish materials received from a source about a matter of public concern, even if the source had obtained them unlawfully. Any state law that says otherwise is unconstitutional and can’t be used against journalists like Poulson.

Substack correctly argues that Bartnicki protects its publication of Poulson’s article because there’s no evidence that Substack obtained the incident report illegally. But importantly, it doesn’t stop there. Substack also defends Poulson’s publication of the incident report, noting that he obtained the incident report legally from a source. Under Bartnicki, Substack explains, the claims against all of the defendants must be dismissed.

Section 230 protects independent journalists

Only after going through the litany of First Amendment reasons that the case should be dismissed did Substack argue that Section 230 provides yet another reason to reject Blackman’s claims against it. AWS also relied on Section 230 in its brief.

Substack and AWS have an extremely strong argument under Section 230, which immunizes online platforms like them from claims like Blackman’s based on the publication of third-party content. They probably could have relied solely on Section 230 to argue that the case against it should be dismissed. The tech companies deserve credit for also explaining in great detail why, based on First Amendment principles that apply to both them and Poulson, Blackman’s case fails.

Still, their use of Section 230 as another basis for dismissal is a good reminder of why the law matters to reporters who publish online. By giving platforms a quick and relatively certain way out of lawsuits based on third-party content, Section 230 removes the strong incentive that would otherwise exist for platforms to take down newsworthy reporting when wealthy and powerful people threaten to sue them over it.

In fact, we’ve already seen this incentive structure play out in this case. Before Blackman sued, he tried to intimidate Substack and AWS into removing the incident report and Poulson’s reporting. He even got the San Francisco city attorney involved in threatening Substack.

Substack and AWS refused these demands, and Substack cited Section 230 to the city attorney. (According to an editor’s note published by Poulson, Substack did require Poulson to remove the address where Blackman was arrested, but it did not require Poulson to remove the entire incident report or other details from it.)

Section 230 worked exactly as intended here; Substack and AWS didn’t have to cave to the pressure because they knew they could rely on 230 to defend themselves if Blackman sued. The next time Section 230 is under attack, journalists should remember that the law helps stiffen the backbone of online platforms and that without it, platforms would be more likely to remove their reporting in the face of legal threats.

When deciding where to publish online, independent journalists should also consider which platforms truly care about the First Amendment and will have their backs if they get sued. AWS and especially Substack are walking the walk when it comes to defending the free press in the Poulson case. Other platforms must step up for journalists and for free speech too.

Indiana is one of two states with laws excluding the media from witnessing executions. The other, Wyoming, hasn’t executed anyone since 1992.

Indiana, however, executed Joseph Corcoran on Wednesday. Freedom of the Press Foundation (FPF) Director of Advocacy Seth Stern, along with George Hale, who covers the death penalty for Indiana Public Media, wrote for the Indianapolis Star about Indiana’s “dubious honor of being the national standard bearer for taxpayer-funded secret killings.”

It turned out that a journalist was able to attend the execution, but only because Corcoran and his lawyer gave one of the seats reserved for friends and family to a journalist. The state shouldn’t put the onus on the condemned to ensure transparency around their own killing. The law needs to change.

Read the Indianapolis Star op-ed here and more on the topic from The Associated Press here.

Austin Tice, a U.S. freelance journalist and former U.S. Marine, has been separated from his family and loved ones for a long time; 12 years to be exact. Tice was reporting on the Syrian civil war from outside the capital Damascus when he was abducted in August 2012.

The rebel-led collapse of Bashar Assad’s regime and the release of thousands of prisoners, including political prisoners, in Syria on Dec. 8 has renewed hopes of locating Tice and the tens of thousands of others who are missing.

Surprisingly, there is a connection between Tice — who was among the first U.S. journalists to make it into Syria after the outbreak of the civil war — and Taylor Swift: Tice is apparently a Swiftie. Now, the pop star could help bring one of her fans home.

Spent the day at an FSA pool party with music by @taylorswift13. They even brought me whiskey. Hands down, best birthday ever.

In Tice’s last tweet before his abduction on Aug. 11, 2012, which was also his 31st birthday, he mentioned Swift. Tice wrote that he’d spent that day listening to her music at a pool party with members of the Free Syrian Army, a coalition of rebel opposition groups, with which Tice was most likely embedded at the time. He even said it was his “best birthday ever.” A few days later, he disappeared.

Weeks later, a disturbing video emerged online showing Tice blindfolded and being led uphill by gun-clad captors wearing white robes. That 47-second clip, in which the journalist can be heard reciting an Arabic prayer and saying “Oh, Jesus,” was the last direct indication Tice was alive. That is until new information obtained by Reuters on Friday revealed that Tice escaped from his captors briefly in 2013 before being recaptured. Assad’s government repeatedly denied holding the journalist.

But since the fall of the Assad regime, the U.S. administration has intensified its search for Tice, the only missing American journalist that we know of. Both the State Department and the FBI are offering awards of $10 million and $1 million respectively for any information that leads to Tice.

The U.S. has been in direct talks about Tice with Hayat Tahrir al-Sham, the dominant rebel faction that currently leads the interim Syrian government.

HTS has offered to “cooperate directly” with the U.S. administration to locate Tice. A spokesperson for the new Syrian interim government told NBC News on Dec. 12 that the country’s new leadership blames Assad for the anguish of Tice's family.

In a press briefing soon after Assad fled to Russia, President Joe Biden said that despite his administration not having “direct evidence” that Tice is alive, his administration is “committed to returning him” home. Biden also sent U.S. officials to the region to help with the search effort. Tice’s parents maintain that their son is still alive.

The British newspaper The Times reported Wednesday that Syrian journalist and activist Saher al-Ahmad, who was imprisoned by Assad’s regime, believed he was held in the same Damascus jail as Tice as recently as 2022. He said he saw the American journalist a few times, which aligns with an unconfirmed U.S. intelligence report from 2022 in which a senior Syrian opposition leader stated that Tice had been in a Damascus prison since July 2021, according to The Washington Post.

For the past 12 years, successive U.S. administrations have tried and failed to bring Tice back home. Meanwhile, Tice’s parents and press freedom advocates, including Freedom of the Press Foundation (FPF), have worked on numerous advocacy campaigns and initiatives to raise awareness about his case.

Swift could help with those efforts at this critical time. If she learns about Tice’s abduction and publicly sympathizes with the American journalist and his family members who desperately want his return, she could give a huge boost to his chances of being found or released.

The superstar could express solidarity either online or offline. Her star power (and legions of fans) could encourage the Biden administration to do even more in its last remaining weeks to end Tice’s ordeal. Tice deserves to be home with his family for the holidays, safe and sound.

Taylor Swift, please help us find your fan, American journalist Austin Tice.

A recent federal court decision upholding the constitutionality of “Daniel’s Law” in New Jersey could embolden governments to restrict free speech by using privacy laws.

Daniel’s Law prohibits anyone from disclosing or publishing the home addresses and unlisted telephone numbers of government officials like judges, prosecutors, and police officers once the official sends a request asking for the information to be removed. After law enforcement and correction officers sued direct mail companies, data brokers, and similar entities under the law, the federal court rejected the defendants’ argument that it violates the First Amendment.

Daniel’s Law may sound like a reasonable way to protect government employees’ privacy. The law was enacted following a tragic attack at the home of a federal judge, in which her son was killed and her husband severely wounded. Public officials who face threats should receive enhanced security and protection, and those who threaten them should be punished.

We’re also certainly not here to defend data brokers, whose unregulated collection and sale of people’s data puts many people — including journalists — at significant risk. There’s no doubt that properly crafted privacy laws can be compatible with the First Amendment.

But we should be wary of laws that prohibit people from publishing or obtaining truthful information about government officials, even in the name of protecting privacy. For example, Daniel’s Law makes it far more difficult for journalists to investigate issues related to officials’ residency — such as whether they’re registered to vote where they live or have close family members living in a house owned by a billionaire — by allowing them to scrub their home addresses from most public records.

Courts must require the government to meet the highest constitutional burden to justify laws that protect the privacy of some of the most powerful government actors when those laws impact truthful speech. If not, we risk giving the government the power to limit or censor speech that’s embarrassing or sheds light on official wrongdoing.

Government shouldn’t get to decide what journalists can and can’t print

Data brokers aren’t the only ones affected by Daniel’s Law. Journalists are too. One New Jersey journalist, Charlie Kratovil, challenged Daniel’s Law on First Amendment grounds after a law enforcement official, Anthony Caputo, sent him a cease and desist letter for raising questions about Caputo’s place of residence. Kratovil, whose reporting revealed that Caputo lived more than two hours away from the community he served, had stated the name of the street (but not the specific address) listed on Caputo’s voter profile during a city council meeting.

So far, New Jersey courts have decided that Daniel’s Law can forbid publishing officials’ exact addresses, after Caputo and the state begrudgingly conceded that Kratovil could publish the name of the town he lived in. But Caputo first invoked Daniel’s Law after Kratovil mentioned just his street name, and other journalists will surely wonder how “exact” is too exact when it comes to discussing officials’ place of residence.

Kratovil has appealed to the New Jersey Supreme Court, arguing that the law violates the First Amendment by giving the government the power to say what the press can and can’t print.

Privacy laws must meet highest standards when government restricts speech

Daniel’s Law restricts speech based on its content (because it regulates disclosure of specific information about government employees). It also gives the government the power to prohibit the publication of true information. It should therefore be subject to the highest level of First Amendment scrutiny.

If we’re going to allow the government to infringe on free speech, it must have an extremely good reason and be required to write a law that affects the least amount of speech necessary to obtain its goals. That’s not just our opinion, it’s long been the Supreme Court’s standard.

But in its recent decision, the federal court held that Daniel’s Law isn’t required to satisfy this extremely high bar, simply because it’s a privacy law. Instead, the court applied a less strict balancing test that it said comes from past Supreme Court decisions involving a conflict between privacy and free speech.

That’s dangerous. Lowering the bar for privacy laws gives the government a freer hand to regulate speech as long as it says it’s doing it to protect privacy. Government officials and other public figures will inevitably abuse that power to stifle speech they dislike.

There’s no shortage of public figures and officials claiming that reporting on their illegal, hypocritical, or unsavory behavior violates their privacy. Some have even tried to use privacy as a justification for suing reporters. For instance, when Louisiana Gov. Jeff Landry was attorney general, he sued a reporter for requesting public records about sexual harassment allegations against one of his top deputies, arguing that their release would violate the deputy’s privacy. And just last year, an Arizona state senator claimed a journalist invaded her privacy by knocking on her door to see if she lived in the district she represented, and temporarily obtained a restraining order against the journalist.

The court’s decision is also wrong as a legal matter. The Supreme Court has repeatedly refused to allow litigants to characterize legal claims as about something other than speech — whether it’s emotional distress or even privacy — as workarounds to punish speech. The Supreme Court has also warned against expanding exceptions to the First Amendment and called ad hoc balancing tests weighing First Amendment rights against other competing interests “startling and dangerous.” The First Amendment already strikes the balance in favor of free speech.

The public’s interest in where officials live

Both of the courts that heard Kratovil’s challenge to Daniel’s Law concluded that the exact address and phone numbers of public officials aren’t matters of public concern or significance. That takes too narrow a view of the public interest. Sometimes journalists need to bring the receipts, and publishing details can be the most powerful way to demonstrate a news report is true.

For instance, when CNN exposed North Carolina gubernatorial candidate Mark Robinson’s offensive posts on online sex forums, it published his date of birth — information considered “private” under at least one law similar to Daniel’s Law — to prove the link between Robinson and the online accounts. It also published his unique online user name, information that some future privacy law could designate as private, as some have with email addresses.

That’s not to say that journalists should publish officials’ personal information without careful consideration and without good reason. But the First Amendment generally places the responsibility for making that decision in the hands of journalists, not judges, who may wrongly give greater weight to powerful people’s wish for secrecy than the value of public disclosure. We shouldn’t bend the rules to make it easier for the government to censor the press in the name of privacy.

FOR IMMEDIATE RELEASE:

New York, Dec. 18, 2024 — Congressional leaders in the House released a year-end spending bill yesterday that includes plenty of meaningless pet projects but not the most important press freedom bill in modern history, the PRESS Act.

But it isn’t over yet for the PRESS Act. Sen. Chuck Schumer could still include it in the Senate version of the spending bill, negotiate for the act’s passage before the holidays, or bring the measure to the floor by keeping the Senate in session past its anticipated end on Dec. 20.

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

“Congressional leaders found space in the end-of-year spending bill to give a football stadium to Washington, D.C. and rename buildings after former members of Congress. But they didn’t include the PRESS Act.

After campaigning and fundraising for months, warning of existential threats to our democracy, including the death of freedom of the press, Sen. Schumer and the other Senate Democrats must take advantage of the entire time they have left in power to pass the PRESS Act, even if that means senators have to work through the holidays just like most regular Americans.

The PRESS Act is bipartisan, it’s already passed the House, and it would provide essential protections for independent journalists no matter their politics. The Senate must not let this opportunity to pass the PRESS Act get away. If the rights of journalists are further curtailed in the next administration after years of inaction from those in power, Senate leadership will share a lot of the blame.”

The PRESS Act is a federal reporter-source shield bill that would protect journalists across the political spectrum from being spied on by the government and threatened with jail time to force them to testify against their sources.

White House national security adviser John Kirby recently downplayed growing interest in the mysterious drones spotted across the East Coast.

Kirby dismissed concerns despite reports the drones have been making unauthorized flights over defense facilities, and even though the House Intelligence Committee thought the drones were important enough for a classified hearing.

The Biden administration’s insistence there’s nothing to worry about, combined with its refusal to declassify any evidence supporting that claim, is drawing frustration from a wide variety of lawmakers.

New Jersey Rep. Chris Smith called Kirby’s statements “misleading at best” and demanded more information. Virginia Gov. Glenn Youngkin similarly lambasted the Federal Aviation Administration, the FBI, and other agencies for their reticence over the sightings.

The secrecy breeds mistrust at a time when trust in government is in a two-decade decline, particularly when it concerns a subject the government has admitted to lying about in the past.

It also feeds internet theories — some more out of left field than others — about what’s behind the lights in the night sky. The speculation from content creators on TikTok, X, and other platforms spreads most easily when the government doesn’t counter it with real information.

These are all self-inflicted wounds the government could heal by being more transparent.

Both the Biden administration and Congress should start today. The administration should tell the CIA, FBI, and Defense and Homeland Security departments to declassify any material they prepared for the recent House hearing on the drones. And Congress should follow suit and declassify the hearing transcript.

This joint effort would be a good first step to help the public and lawmakers understand if the drones are being piloted by someone benign, like an amateur or tech business, by some earth-based adversary, or by something else entirely.

ABC has settled a defamation lawsuit with President-elect Donald Trump, agreeing to pay $15 million for the establishment of Trump’s “presidential foundation and museum.”

Many report the money will go towards Trump’s presidential library, where the public will ostensibly be able to study his administration.

This would be a silver lining of Trump’s attacks on the press — especially if a portion of the settlement pays for Scotch tape so government librarians can patch up the records Trump is so fond of shredding.

But it’s not technically true.

The ABC settlement doesn’t mention a library. All it says is a Trump presidential foundation will establish something similar to what previous presidents have built.

That would be massive campuses with private office spaces, museums that have been criticized for misrepresenting history, and sometimes (although not always) government-run libraries that struggle to provide access to presidential records.

And they’ve been built with money that can come from anonymous donors, including from sources that might be eager to avoid normal campaign disclosure requirements.

The problems are so bad that presidential library experts have called the foundation-library system a scam and warned it is at a breaking point.

Why is the presidential foundation-library relationship so murky?

Congress appropriates very little money to the National Archives and Records Administration to build presidential libraries for the public to conduct research and access presidential records. As a result, NARA is dependent on the fundraising efforts of private presidential foundations to build them.

NARA takes control of the libraries once they are built, but they are often part of larger facilities, making it hard to know where the government’s work starts and private foundation work begins.

For example, the Ronald Reagan Presidential Library is just a part of a 250,000-square-foot complex that also houses the Boeing 707 that served as Air Force One, a banquet hall that can seat 1,600, and a reassembled Irish pub that Reagan had visited in the 1980s.

But presidential foundations don’t have to build government-run libraries on their campuses at all, even if it’s been a tradition.

President Barack Obama’s $700 million center doesn’t have a NARA presence, which may make it harder for historians to study the Obama administration. And Trump could follow suit.

Where does the foundation money come from?

Fundraising for presidential complexes is big business, but there are few rules or donation disclosure requirements for these facilities, whether they include government-run libraries or not.

This raises concerns about conflicts of interest from donors who want to win favor with current or former presidents, their family members who may still be in politics, or other elements of the government.

It’s not an abstract concern.

GOP lobbyist Stephen Payne promised foreign entities access to the George W. Bush administration in exchange for six-figure donations to its presidential center.

President Bill Clinton pardoned Marc Rich, a commodities trader who had been indicted on racketeering and other charges, around the same time that Rich’s ex-wife promised to donate nearly a half-million dollars to the 17-acre Clinton facility.

Other governments are also frequent donors. The Saudi royal family has reportedly donated nearly $10 million to both the Clinton and George H.W. Bush complexes.

Are the museums any good?

They can be. But the extent to which they accurately depict history largely depends on the integrity of the presidential foundation that builds it.

The Nixon museum, for instance, had a Watergate exhibit that baselessly accused Washington Post reporters Bob Woodward and Carl Bernstein of “‘offering bribes’ to further their famous coverage.” The inaccurate exhibit was on display for 17 years.

The George W. Bush Library faced criticism for not accurately addressing the administration’s use of torture.

The Clinton museum barely mentions the Monica Lewinsky scandal.

How about the libraries?

The NARA-run libraries that do get built struggle to provide public access to historical records.

Experts at the nonprofit National Security Archive (where I used to work) have repeatedly testified that the presidential libraries themselves are underfunded, understaffed, and on the verge of collapse.

Case in point: It is currently suing the George W. Bush Library for a 12-year wait on a single declassification request. And NARA’s own estimates state it will take over 100 years to make all of the Reagan White House documents publicly available.

Congress should help

Clearly, the current relationship between presidential foundations and libraries doesn’t work.

It is confusing, rife with corruption and bias, and doesn’t help the public access the most important records in government — those from the Oval Office.

Congress should keep working to pass legislation that reforms donations to presidential foundations. And it should seriously consider alternatives to the current foundation-library system to ensure presidents, including Trump, don’t pass private foundation work off as a public service.

Dear Friend of Press Freedom,

I’m Lauren Harper, the first Daniel Ellsberg Chair on Government Secrecy at Freedom of the Press Foundation (FPF), and welcome to “The Classifieds.” This is FPF’s weekly newsletter highlighting important secrecy news stories that show how the public is harmed when the government keeps too many secrets. Sign up here to receive “The Classifieds” in your inbox every week.

National security secrecy used to deny information to parents separated from their children at U.S. border

The Biden administration has quietly continued the long-standing policy of separating families at the U.S. border.

The government is supposed to report details about family separations so Congress can conduct oversight, except when it claims the cases involve national security. ProPublica’s Mica Rosenberg reports that when this happens, “the government is not required to provide documentation of the reason for its decision.” This loophole allows the government to hide whatever information it wants from families and their lawyers.

The government shouldn’t be withholding evidence from families with vague claims of national security secrecy, no matter who is president. The loophole should be shut as soon as possible.

You can help preserve federal data at risk of being taken down

All incoming presidential administrations revamp federal websites to align with their policy views, an overhaul that can include removing important information.

President-elect Trump’s first administration regularly took down information, particularly when it concerned environmental data and data regarding public health. And the second Trump administration will likely continue this trend. This practice can impede policymakers who rely on government data when crafting legislation.

Luckily, there is an ongoing effort by a group of archival organizations to save what’s called “end of term” data from each outgoing presidential administration. Visit the End of Term Web Archive’s website for information on how to nominate URLs and datasets for preservation.

U.S. should use declassification diplomacy often and proactively

Colombian President Gustavo Petro recently asked President Joe Biden to declassify U.S. records on one of Colombia’s most infamous human rights cases — its army’s 1985 siege of the Colombian Supreme Court.

Because of the quality of its archives, the U.S. has the distinctive ability to help Petro and conduct what policy experts call declassification diplomacy.

Biden should start the declassification process immediately. There is no danger in releasing the historical records being sought, it would help bring closure to families still searching for answers about what happened to their loved ones, and it might have foreign policy benefits down the road. Read more on our website.

What I’m reading

Congress keeps trying to hide the true Gaza death toll (The Intercept). The House recently passed its version of the National Defense Authorization Act. It contains a provision that would prevent the Defense Department from citing casualty data from the Gaza Health Ministry, as well as any other sources that rely on its data. The Intercept’s Jessica Washington says if this provision becomes law, it would effectively hide “the full extent of the death toll in Gaza in the military’s public communications.”

CIA official Asif Rahman pleads not guilty in leak of secret files on Israel (The Washington Post). U.S. District Judge Patricia Tolliver Giles has ordered pretrial detention for CIA analyst Asif Rahman, who is facing two charges under the Espionage Act for allegedly leaking top secret U.S. documents about Israeli plans to attack Iran. Rahman has pleaded not guilty to the charges, which carry a maximum prison sentence of 20 years.

Everybody loves FRED: How America fell for a data tool (The New York Times). Economic data published by the Federal Reserve Bank of St. Louis and nicknamed FRED has been a beloved source for reporters and economists since 1991 — it’s even been used to predict recessions. New York University Professor Emeritus Kim Schoenholtz says it's “It’s a public good. Arguably, the greatest public good the Fed has ever supplied.”

Biden's legacy: Enhancing the ‘state secrets privilege’ to protect the national security state (The Dissenter). Kevin Gosztola examines the Biden administration’s continued misuse of the “state secrets privilege,” which allows the government to hide information during litigation that it deems to be a “state secret.” Problematically, Biden’s Justice Department didn’t provide Congress with regular updates on its use of the privilege, even though it’s been required to do so since 2009.

Michael D. Thomas appointed director of the Information Security Oversight Office (ISOO Overview). Michael D. Thomas has been appointed the new head of the Information Security Oversight Office, a part of the National Archives and Records Administration that conducts oversight of the government-wide security classification system. Thomas will report on key classification issues and oversee the work of an interagency panel that handles certain declassification appeals. This panel overruled agencies a staggering 90% of the time in fiscal year 2023, showing the importance of appealing declassification denials and taking declassification decisions away from individual agencies.

When the bill to ban TikTok first was passed, we warned that its proponents had forgotten the lessons of the Pentagon Papers case, which cautioned against letting the government invoke “national security” as magic words that make the First Amendment disappear.

The appellate court that upheld the law last week proved our point.

The U.S. Court of Appeals for the District of Columbia Circuit failed to subject the ban to any meaningful scrutiny, deferring to the government’s position that TikTok damages national security. By refusing to “second guess” the government — or even question it at all — the court weakened the First Amendment and handed authorities expansive new powers over speech, including journalism.

Judges refuse to judge

For the TikTok ban, the court says it applied the highest level of constitutional scrutiny, which requires it to determine whether the law serves a compelling government purpose and is narrowly tailored. If this is the highest level of scrutiny, we’d hate to see what the lower ones look like.

When it comes to the First Amendment, a judge’s entire job is to scrutinize — and, yes, second-guess — the government’s justifications for banning speech. That’s because the government will often offer high-minded reasons for infringing on free speech like “national security concerns” when its real interest is in squelching speech it disagrees with or finds embarrassing.

The judges didn’t even need to look beneath the surface to see that happening in the TikTok case. The government admitted that the “national security” harm it fears comes not from bombs but ideas. And while the appellate court talked about covert Chinese manipulation of content on TikTok, it’s clear that what really got the bill over the hump was U.S. lawmakers’ fear of TikTok’s pro-Palestinian content, no matter whether it originates in Beijing or Baltimore.

But Americans are constitutionally entitled to read criticism of foreign wars that they’re paying for, no matter what lawmakers think of it. They’re also allowed to consume foreign propaganda.

The justices in the Pentagon Papers case — in which the court rejected the government’s attempt to bar The New York Times and The Washington Post from publishing a classified history of the Vietnam War — rightly took the exact opposite approach. Several justices were outwardly, and rightfully, skeptical of the government’s national security claims.

Justice Hugo Black, for instance, rejected the national security justification for a prior restraint on the newspapers, explaining, “The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.”

And Justice William J. Brennan Jr. summed up the government’s claims “that publication of the material sought to be enjoined ‘could,’ or ‘might,’ or ‘may’ prejudice the national interest in various ways” — and found them wholly insufficient to overcome the First Amendment.

Justice William O. Douglas wrote that the case exemplified “the widespread practice of governmental suppression of embarrassing information.”

Those justices were right. Even the government lawyer who argued the case before the Supreme Court later admitted that “he has ‘never seen any trace of a threat to national security’ since the papers became public.”

And we don’t need to look back to the ‘70s for examples of the government overstating national security risks. Successive administrations undermined the United States’ global standing on press freedom by prosecuting WikiLeaks founder Julian Assange, supposedly because of the harm his publications caused.

But then at Assange’s plea deal hearing in June, the judge explained that, based on the government’s own representation that Assange’s “crimes” had no “personal victim,” it was clear that “the dissemination of this information did not result in any known physical injury.”

Erik Wemple’s Washington Post column following the sentencing included a laundry list of recent examples of hyperbolic forecasts of hypothetical national security harms that never panned out. But Wemple couldn’t capture all of them, because they keep happening.

We’re still waiting for the government to substantiate its claims about the harms of last year’s so-called “Discord leak.” And at a recent hearing about a leak last October of Israeli plans to attack Iran, the government argued that Israel delaying its attack as a result of the leak somehow harmed America.

Hypothetical harms aren’t enough

Appellate courts are supposed to require proof of actual harm — not unrealized risks — before even entertaining the thought of censorship. But the judges who decided the TikTok case instead relied on hypothetical concerns of the type decried by Justice Brennan to justify the law.

No matter that the court acknowledged our government “lacks specific intelligence that shows [China] has in the past or is now coercing TikTok into manipulating content in the United States.” For this court, it was enough that the government “invokes the risk” that the PRC “might” manipulate content on TikTok.

The court also cited the vast amounts of data that TikTok collects from American users, but neither it nor the government ever explained how that data collection harms national security. As others have noted, it’s not exactly clear how China “can gain a national security advantage from knowing what Americans upload and watch on TikTok.” And anyway, there are noncensorial solutions to that problem.

A true “strict scrutiny” analysis would consider that, due to loopholes in U.S. law long predating the TikTok ban, China can easily buy the exact same information without TikTok’s involvement. Congress refuses to enact a privacy law to actually limit TikTok’s (or other platform’s) potential for surveillance or take other more serious measures to stop Chinese interference.

‘National security’ fears dreamed up against news outlets?

Unfortunately, if the appellate court’s opinion stands, it’s unlikely to be a one-off. Its analysis has concerning implications for both foreign and domestic news outlets and journalists.

Congress intended to target TikTok when it passed the ban. But, likely recognizing that a bill only targeting TikTok would be challenged as an unconstitutional “bill of attainder,” it granted future administrations the power to similarly censor other platforms from countries the government deems adversarial based on similarly shoddy national security claims.

That could include online news outlets based abroad, as long as they offer some kind of interactivity (for example, user comments). Ask The Associated Press — targeted under an Israeli law purportedly intended for Al Jazeera — if that slippery slope is far-fetched.

The court’s extreme deference to the government’s national security concerns also spells trouble for freedom of the press more broadly. For years, the Supreme Court has been shying away from questioning the government’s national security claims, despite the Pentagon Papers case. Will the current court stand up to a future president who claims he needs to ban a news outlet or throw a journalist in jail for the sake of national security? It’s worryingly uncertain.

President-elect Trump has said he’ll stop the TikTok ban, despite previously supporting it. It’s unclear how he can, though his administration could decline to defend the law before the Supreme Court. Regardless, the Supreme Court needs to take the next available opportunity to recommit to the skepticism judges are supposed to apply when the government trots out flimsy national security claims.

Arrests of U.S. journalists surge in 2024

The U.S. Press Freedom Tracker, a project of Freedom of the Press Foundation (FPF), just published a new report analyzing data it collected about U.S. press freedom violations this year, and the results are disturbing.

In 2024, journalists in the U.S. were arrested or detained by police at least 48 times, more than the previous two years combined. Nearly 90% of those arrests took place in connection with Israel-Gaza war protests.

To reach these numbers, police and other officials must be blatantly ignoring guidance from courts and the Department of Justice making clear that journalists have a First Amendment right to cover protests, including officers’ conduct after they issue dispersal orders. 

As stated by Kirstin McCudden, the Tracker’s managing editor and FPF’s vice president of editorial, each of these arrests “has serious consequences for our free press,” and the public’s right to know, since journalists arrested at protests are “often unable to freely cover stories deemed important by the public.” Read the full report here and check out yesterday’s Reddit AMA with Tracker Senior Reporter Stephanie Sugars.

New report shows need for PRESS Act

A new report from the Department of Justice’s Inspector General detailed how the DOJ spied on journalists during President Donald Trump’s first term and didn’t even bother to follow its own policies when it did.

Of course, Presidents Barack Obama and Joe Biden spied on journalists too, no matter what the toothless internal DOJ policies said. Our Director of Advocacy Seth Stern told The Intercept, “We don’t need to waste ink on years-late 100-page reports to confirm that the DOJ disregards these policies at its whim. We already know that.”  Instead, as Stern said, “We need to pass the PRESS Act.” 

Earlier this week, Sen. Tom Cotton blocked passage of the bill to protect journalist-source confidentiality in the Senate through unanimous consent, by objecting to it on totally spurious grounds.  But we told The Washington Post that it’s not over yet. “Leader Schumer needs to get the PRESS Act into law — whether by attaching it to a year-end legislative package or bringing it to the floor on its own — even if it means shortening lawmakers’ holiday break,” said Stern. Contact your Senator today to ask them to support the PRESS Act.

X goes ‘thermonuclear’ on media donors

Elon Musk — the world’s biggest free speech hypocrite — is at it again. This time, he isn’t just bringing a “thermonuclear” lawsuit against a media outlet that criticized social platform X. He’s going after all of its donors as well.

Last year, Musk’s X Corp. filed a “gloriously stupid” lawsuit against nonprofit journalism watchdog Media Matters for publishing a research report that found that advertisements for major brands appeared next to antisemitic and white nationalist posts on X. As part of discovery in its lawsuit, X has sought virtually every record Media Matters has about its donors.

Unfortunately, a lower court ordered Media Matters to turn over its donor information. The publication appealed, and this week FPF, represented pro bono by attorneys from Selendy Gay, filed an amicus brief in support of Media Matters. It pointed out how the lower court’s order would create a troubling way for future deep-pocketed litigants to target their perceived ideological enemies in the press by going after their donors. Read more (including the brief) here.

Bipartisan bill SLAPPs back against harassing lawsuits

Speaking of frivolous lawsuits, a new bipartisan bill could fix a big gap in federal law that leaves journalists and everyone else vulnerable to harassing lawsuits targeting their speech.

Reps. Jamie Raskin and Kevin Kiley and Sen. Ron Wyden introduced the Free Speech Protection Act last week. The bill gives victims of baseless lawsuits targeting their free speech, known as strategic lawsuits against public participation, a way to fight back in federal court.

SLAPPs use the time, expense — and stress — of lawsuits to punish free speech. Wealthy and powerful people and corporations have money to burn on lawyers to sue the journalists, activists, and regular people who criticize them. Those who have to defend themselves from these lawsuits often don’t. Even if they do defend themselves and win, they still lose. Read more about the much-needed legislation here.

Declassify records on Colombian Supreme Court attack

Colombian President Gustavo Petro is asking President Joe Biden to declassify U.S. records on one of Colombia’s most infamous human rights cases — its army’s 1985 siege of the Colombian Supreme Court.

Biden should agree to start the declassification process immediately. The U.S. has the unique ability to perform declassification diplomacy because of the quality of its archives, and it should engage in it regularly and proactively. There is no danger in releasing these 40-year-old records, and they would help bring closure to families still searching for answers about what happened to their loved ones.

Read more here about the need for more declassification diplomacy.

Israeli sanctions against the media should not be tolerated

We joined a statement led by Distributed Denial of Secrets objecting to Israel’s sanctions against its oldest newspaper, Haaretz, as well as its targeting of Palestinian journalists and refusal to allow international journalists into the Gaza strip. 

By ignoring assaults on press freedom by its close ally, the U.S. normalizes similar tactics at home. That's dangerous, especially with a president-elect who wants to punish journalists who won't kiss the ring. Columbia Journalism Review has more on the sanctions against Haaretz.

What we’re reading

The Supreme Court must intervene in the TikTok case (New York Times). In upholding the TikTok ban, the appellate court ignored long-standing Supreme Court precedent on the First Amendment and the stated intent of many lawmakers to censor U.S. TikTok users for their viewpoints. 

Should a student reporter face prosecution for embedding with protesters? (Columbia Journalism Review). The obvious answer is no. Stanford has plenty of classrooms for academic debates over whether Dilan Gohill went too far to get the news. That’s the only place where this case should be adjudicated. A university urging prosecution of a 19-year-old student journalist is bonkers. 

FAC leads press coalition in Stockton after sheriff threatens to investigate journalists (First Amendment Coalition). What's going on in California with government officials coming after journalists who report on public records? Ben Camacho, Jack Poulson, Maya Lau, and now this? Stop it already. All you're going to get is sued and publicly shamed. 

There's new hope for Austin Tice 12 years after he was kidnapped in Syria (NPR). In light of the collapse of the Assad regime in Syria, President Biden must do everything he can to find and free Austin Tice, an American journalist who went missing in 2012 while reporting in Syria.

404 Media objects to a Texas subpoena for our reporting (404 Media). Texas Attorney General Ken Paxton’s subpoena “seeks to turn 404 Media into an arm of law enforcement, which is not our role and which we have no interest in doing or becoming.”

Trump taps immigration hard-liner Kari Lake as head of Voice of America (TVNewsCheck).  You don't have to be a fan of state media to see the danger of appointing an anti-press extremist known for spreading falsehoods to lead VOA. With Lake in charge, the government can use VOA as a guinea pig for anti-press tactics and pro-Trump propaganda.

Freedom of the Press Foundation (FPF) on Dec. 12 launched a “starter pack” for press freedom organizations active on the social media platform Bluesky. We did so to curate a unified feed dedicated to press freedom, facilitate mutual following among community members, and contribute to the health of the conversation on the nascent platform.

What is Bluesky and why do we like it?

FPF joined the microblogging social media platform in July 2023, just a few months after Bluesky launched as an invite-only service in February 2023. The site opened registrations publicly in February 2024 and has seen exponential growth since the U.S. presidential election in November. Its user base is now inching toward 25 million, with daily active users increasing rapidly.

Bluesky was established in 2019 as a research effort within the company formerly known as Twitter to explore open communication protocols, and developed what later became known as the Authenticated Transfer Protocol as a result, which was released publicly in 2022.

In 2021, Seattle-based Bluesky became an independent company primarily owned by its 33-year-old chief executive, Jay Graber. Despite its ownership model, the key difference between current mainstream social media platforms — like Meta, X, and TikTok — is that Bluesky is based on an open communication protocol for distributed, or decentralized, social networks. The goal is, essentially, to shield the platform from being owned and controlled by just one person or group (like an enthusiastic, Trump-supporting, free speech-hypocrite billionaire), a concept that we hugely admire here at FPF.

What else are we doing?

Since the site allows independent developers to build apps and extensions on top of Bluesky's network, we will be exploring and experimenting with various ideas, including creating a custom press freedom feed. Feeds allow the site’s users to search for and save a stream of posts around a specific subject to their account without having to follow individual accounts. We hope to share more in 2025 about our work on this.

What can you do?

In the meantime, if you are on Bluesky or plan on creating an account, follow us and our press freedom reporting project and database, the U.S. Press Freedom Tracker. You can also follow the accounts on our press freedom starter pack, plus FPF’s staff, board members, and projects on this separate starter pack.

And if you are a press freedom organization on Bluesky, verify your domain, if you own one, for a couple of reasons. First, doing so confirms your identity on the platform, and second, it makes it easier for other members of our community, journalists, and the public at large to find you there. We did our best to locate press freedom organizations and add them to the starter pack, but if you are active on the platform and not in our press freedom pack, send us a message or contact us here and we will add you.

We are not leaving X anytime soon, because we think it’s still important to reach users there, but we’re excited to deepen our presence on Bluesky. We hope others will join us there in facilitating the conversation around press freedom and other issues critical to our democracy.

Elon Musk — the world’s biggest free speech hypocrite — is at it again. This time, he isn’t just bringing a “thermonuclear” lawsuit against a media outlet that criticized social platform X. He’s going after all of its donors as well.

You may recall that last year, Musk’s X Corp. filed a “gloriously stupid” lawsuit against nonprofit journalism watchdog Media Matters for publishing a research report that found that advertisements for major brands appeared next to antisemitic and white nationalist posts on X.

Unfortunately, despite the suit’s stupidity, it’s been an effective SLAPP. In May, Media Matters announced that it was laying off some staff, with its president blaming “legal assault on multiple fronts” that followed, such as the lawsuit by X and other legal actions by Republican state attorneys general.

Now, X is trying to expand the SLAPP to target not just Media Matters but anyone who’s donated to the publication. As part of discovery in its lawsuit, X has sought virtually every record Media Matters has about its donors, which would include its donors’ identifying information.

Coupled with Musk’s past legal actions and retaliation against the very long list of people who’ve questioned, criticized, or displeased him, it’s hard to see this demand as anything more than an attempt to intimidate Media Matter’s donors. The Supreme Court has disapproved of such tactics before. In cases both old and new, it’s decided that the First Amendment protects against the compelled disclosure of nonprofits’ membership and donor lists.

Unfortunately, a lower court ordered Media Matters to turn over its donor information. The publication appealed, and this week Freedom of the Press Foundation (FPF), represented pro bono by attorneys from Selendy Gay, filed an amicus brief in support of Media Matters. It pointed out how the lower court’s order would create a troubling legal path for future deep-pocketed litigants to target their perceived ideological enemies in the press by going after their donors.

With the economic collapse of many legacy media companies, Americans increasingly rely on nonprofit news outlets and freelancers supported by donations. If donors have to worry about being identified and sued by billionaires or corporations, or even just being ridiculed or ostracized for their support of a controversial news outlet, they may stop supporting journalists’ work. That would be ruinous for the media ecosystem and for the American public that gets its information from nonprofit news outlets and independent journalists.

Today, the target is Media Matters and its donors. Tomorrow it could be other news outlets disfavored by powerful people on the left or the right. The First Amendment must protect people’s right to read — and fund — the news.

Read the amicus brief here or below.