Freedom of the Press

You’ve got mail — and the government may have it, too. A spying program has allowed U.S. intelligence agencies to conduct hundreds of thousands of warrantless searches of Americans’ emails and other communications, including of journalists. ​​Man checking his email on a laptop by Rawpixel Ltd is licensed under CC BY 2.0.

Apparently, it’s not just canned food that stays good after its expiration date. Section 702 of the Foreign Intelligence Surveillance Act, the controversial U.S. spying program, soon may have its shelf life extended too, as the government tries to cling to its surveillance powers.

Section 702 is set to expire on April 19, 2024, unless Congress reauthorizes it. But last week, news broke that the Biden administration is seeking court approval to extend it for another year. A quirk in the law would allow the Foreign Intelligence Surveillance Court, or FISC, to issue a new certification allowing the program to continue to operate until April 2025, even if Congress doesn’t reauthorize it by the April 19 deadline.

At the same time, there are rumblings that Congress could include Section 702 reauthorization in one of the must-pass funding bills it's currently considering to keep the government open. More than 90 organizations, including Freedom of the Press Foundation (FPF), oppose that approach, which would cut off necessary debate on reforms to the law.

These procedural moves matter because they undermine attempts to reform Section 702, which civil rights and civil liberties advocates have long decried for allowing the FBI and other intelligence agencies to evade the Fourth Amendment and spy on Americans. Extending certification for another year or reauthorizing Section 702 in must-pass funding bills would short-circuit the current push in Congress to reauthorize the surveillance law only if there are significant changes that would rein in these abuses.

Our privacy is too important to leave Section 702 to a legal loophole or perfunctory rubber stamp in Congress. Instead, Congress should use the two good FISA reform bills it has on the table — the Government Surveillance Reform Act and the Protect Liberty and End Warrantless Surveillance Act — to enact lasting reform that will protect Americans from warrantless government spying.

Backdoor searches enable warrantless spying

Section 702 is supposed to target the electronic communications of foreigners for intelligence gathering, not that of Americans. But inevitably, it collects those of U.S. persons as well. Once that data is collected, the FBI and other intelligence agencies can search it, accessing our phone calls, emails, and text messages, all without a warrant.

They’re known as “backdoor searches,” and they’re pervasive. In 2022 alone, the FBI conducted 200,000. Government assessments have revealed specific backdoor searches involving U.S. persons conducted by FBI agents, including searches using identifiers of journalists and political commentators.

FPF and other members of the FISA Reform Coalition want Congress to put a stop to this warrantless surveillance of Americans. A bipartisan group of senators and representatives agree. The Government Surveillance Reform Act in the Senate and the Protect Liberty and End Warrantless Surveillance Act in the House would end backdoor searches and make other important reforms to FISA.

FISA reform deserves full attention of Congress

When he was a senator, Joe Biden also supported Section 702 reform. But as president, he has changed his tune, defending the law and seeking its reauthorization without significant changes. Now, his administration is trying to sneak through another year of surveillance without congressional approval using the FISC certification process, as Elizabeth Goitein of the Brennan Center for Justice has pointed out.

But even if the Biden administration has legitimate concerns that the law’s April 19 expiration creates a lapse in its surveillance authority, there’s no need to seek recertification from the FISC for a full year. A shorter extension would still prevent any gap in Section 702 authority while giving Congress the chance to enact the reforms it's been actively debating.

But perhaps the administration is counting on recertification to take the wind out of the sails of the reform movement underway in Congress. Without the looming deadline of FISA’s lapse, Congress may be tempted to kick the can down the road and push off the difficult job of fixing FISA to the next legislative session, where members may be less reform-minded.

That would be a mistake. So, too, would be taking the opposite approach and rushing Section 702 reauthorization by shoving it into a must-pass funding bill, without the chance for any debate or amendments intended to reform the law. Congress already extended Section 702 once by including it in last year’s National Defense Authorization Act. Doing so again would be capitulating to members of Congress who want to stymie any real reforms to FISA.

For too long, the government has abused Section 702 to spy on Americans, including journalists. It’s time for Congress to give the law its full and undivided attention and to pass real reforms that will protect our fundamental civil liberties and civil rights.

San Diego Central Jail

San Diego County Sheriff's Department

When sources aren’t allowed to talk, journalists turn to public records. And when journalists can’t obtain public records, they look for insiders. But when all are unavailable, it becomes exceedingly difficult for journalists to report the news. 

That’s the situation often encountered by journalists looking to investigate U.S. jails and prisons and the challenges facing America’s over 2 million incarcerated people.

If journalists try to talk to prison officials, they’re routed to public information officers, who give them little besides official PR. If they try to request public documents, the government stalls indefinitely with bogus claims that the documents are exempted from open records laws. And good luck talking to incarcerated people themselves. In some states, it’s outright illegal for them to speak to the press. In others, they face “relentless retaliation” for attempting to bring publicity to prison conditions. 

Freedom of the Press Foundation (FPF) recently joined a legal brief that seeks to address the records problem. A group of news outlets successfully sought access to sealed records about deaths and serious injuries at jails in San Diego County, California, from the Sheriff’s Department Critical Incident Review Board, or CIRB. 

The county appealed in hopes of maintaining secrecy, claiming that transparency would undermine the ability of officials to communicate candidly.

But the brief responded that “CIRB investigations and related documents have been shielded from the public for over twenty years. … Given the increasing number of deaths, that secrecy hardly seems to be facilitating any meaningful change.”  

That’s exactly right. Whenever the government claims that a lack of transparency somehow benefits the public, courts should be extremely skeptical and demand proof, not speculation. Virtually every time — whether in cases involving jails and prisons or national defense — the real reason for secrecy is that officials don’t want to be embarrassed.

The same applies to restrictions on officials’ or incarcerated people’s communications with the press. The former restriction violates the First Amendment rights of government employees, in addition to depriving the public of important information. To justify the latter restriction, officials often say that violent crime victims shouldn’t have to hear from their assailants in the media — a constitutionally inadequate excuse even putting aside that, for some reason, those policies are rarely limited to violent criminals. 

Recent lawsuits in Pennsylvania and South Carolina challenge restrictions on media access to prison employees and incarcerated people, respectively. It’ll likely take many more lawsuits and much more advocacy, but hopefully, sometime soon, Americans will be able to see for themselves the inner workings of the world’s largest system of mass incarceration. 

You can read the brief in the San Diego case here or below.

Journalist Reed Dunlea was arrested while recording for his podcast, Scene Report, at a pro-Palestinian protest in New York City on Feb. 10, 2024. We sent a letter with the Committee to Protect Journalists urging authorities to drop the baseless charges against him. Stephanie Keith

Earlier this month, New York Police Department officers arrested journalist Reed Dunlea while he attempted to cover a pro-Palestenian protest for his podcast, “Scene Report.” Ultimately, Dunlea was only charged with resisting arrest, seemingly confirming that authorities could find nothing criminal about the newsgathering that led to his arrest in the first place.

Freedom of the Press Foundation (FPF) and the Committee to Protect Journalists sent a letter to Brooklyn District Attorney Eric Gonzalez raising alarm about the arrest — during which officers violently tackled Dunlea, breaking his equipment.

“Detaining and charging a reporter in this manner is a direct assault on journalists’ First Amendment rights to gather the news,” the letter explains, adding that “arresting reporters is a crude form of censorship: it stops journalists from documenting current events, and protracted legal proceedings to dismiss baseless charges create financial and time pressures for reporters.”

As the letter notes, the NYPD recently agreed as part of a settlement of a lawsuit brought by five photojournalists that it would reform its treatment of journalists covering protests and ensure they’re not unnecessarily arrested or harassed for doing their jobs.

Although the settlement had not yet taken legal effect when Dunlea was arrested due to obstruction by a police union, Dunlea’s arrest certainly violates the spirit of the NYPD’s commitments.

We’ve previously written about the NYPD’s history of abysmal treatment of journalists covering protests. The number of incidents may have peaked during the Black Lives Matter protests of 2020, but that’s only because of the increase in civil unrest then, not because the department has changed its practices since.

Just over a month before Dunlea’s arrest, for instance, NYPD officers baselessly arrested another journalist attempting to cover a pro-Palestine protest – Roni Jacobson of the New York Daily News. Last year, they arrested prominent photojournalist Stephanie Keith while covering a vigil for Jordan Neely, who was killed on a New York subway.

Keith did nothing wrong, yet prosecutors only “deferred” the changes against her, rather than dismissing them outright — reserving the right to proceed with the case if Keith were arrested again during the six months that followed. As Keith told the U.S. Press Freedom Tracker, “I shouldn’t have to worry for the next six months if I’m going to be arrested again when I shouldn’t have been arrested in the first place.”

The letter to Gonzalez demands an outright dismissal of the charges against Dunlea because deferred prosecutions are themselves a threat to press freedom.

You can read the full letter objecting to Dunlea’s arrest below.

Editor’s note: The original version of the letter discussed in this article was erroneously addressed to Manhattan District Attorney Alvin Bragg rather than Brooklyn District Attorney Eric Gonzalez. The letter and the references to Bragg in the original article have been corrected.

The Supreme Court recently held oral arguments in two cases that could reshape the internet — and impact the press. File:Panorama of United States Supreme Court Building at Dusk.jpg by Joe Ravi is licensed under CC BY-SA 3.0.

Should the online platform Substack be allowed to ban Nazis? Not should it ban Nazis. But should it be legally allowed to ban Nazis?

I’m asking on behalf of nine justices of the Supreme Court, not to mention the billions of people who use the internet. On Monday, the court heard oral arguments in two cases, NetChoice v. Paxton and Moody v. NetChoice, that could dramatically reshape online speech by determining whether the First Amendment protects the content moderation decisions of social media platforms.

At issue in the cases are two state laws — one from Florida and one from Texas — that constrain online content moderation decisions. Roughly speaking, the Florida law prohibits social media companies from permanently banning politicians and “journalistic enterprises,” while the Texas law prohibits them from banning users on the basis of viewpoint.

That means, for example, that the Florida law would prohibit a platform from permanently banning a politician running for office in the state as a literal Nazi. The Texas law would bar a platform from banning pro-Nazi speech as long as it allowed anti-Nazi speech.

In addition to impacting online speech, the NetChoice cases could reshape First Amendment law in ways that matter to the press. Based on Monday’s argument, journalists should watch the court’s decisions for two things: First, to see if the court limits the ability to challenge laws that violate First Amendment rights as facially invalid, that is, unconstitutional in all circumstances; and second, how it treats a landmark press freedom decision, Miami Herald v. Tornillo.

First Amendment faceoff

Several justices unexpectedly raised a legal issue during Monday’s arguments — about the plaintiff’s “facial” challenge to the Florida law — that could have implications for the press.

In a facial challenge, a plaintiff argues that a law can never be applied in a way that is constitutional. But the justices asked whether the Florida law might have some applications that are actually constitutional. If so, the justices asked, should the court reject the plaintiff’s claim and require it to bring an “as-applied” challenge, arguing that the law is unconstitutional in more specific ways?

The problem with that is that it’s easy to think of potential constitutional applications of broad and ambiguous laws, precisely because no one understands exactly what they mean.

A decision rewarding bad statutory drafting by allowing otherwise unconstitutional laws to survive based on hypothetical scenarios could, as the lawyer for the platforms argued, be “the worst First Amendment case in this Court's history.” It would allow legislatures to put one constitutional provision in an otherwise totally unconstitutional law and avoid having the law struck down wholesale.

For example, an Oklahoma lawmaker recently proposed a totally unconstitutional law that would require journalists to be licensed and subjected to criminal background tests and drug tests. There’s nothing constitutional about this bill. But a more shrewd lawmaker in a state intent on harming the press could cause mischief by writing ambiguous and possibly constitutional provisions into an otherwise completely unconstitutional bill, just to make it harder for courts to strike it down. Imagine, for instance, that the Oklahoma law required drug testing not just for reporters and editors, but also for delivery truck drivers.

It’s not clear if the court plans to go down this road in its decisions in NetChoice. But based on the questions at oral argument, journalists should at least be concerned that the court may be thinking about creating barriers to First Amendment facial challenges that could impact cases involving the press in the future.

Press precedent holds up

In contrast, journalists can be reassured by the court’s treatment during Monday’s argument of Miami Herald v. Tornillo. In Tornillo, the court held that the First Amendment protects newspapers’ choices about what to publish or not publish, also known as the exercise of editorial discretion or judgment. In the NetChoice cases, the social media platforms argue that their content moderation decisions are the exercise of editorial discretion and therefore protected by the First Amendment.

It may seem odd for the platforms to rely on a press freedom decision to make their case before a Supreme Court that talks about the news media in increasingly hostile terms. But thankfully, most discussion of Tornillo during Monday’s oral argument was positive. Justices Kavanaugh and Barrett, in particular, returned again and again to the First Amendment’s protections for the editorial discretion exercised by news outlets. Even justices that seemed hostile to the social media companies, like Justice Alito, seemed to accept that the First Amendment protects newspapers’ editorial judgments.

However, the devil may be in the details of whatever opinion the court ultimately writes. Even if the court applies Tornillo to content moderation, there’s a risk that it could weaken the First Amendment protection for editorial discretion by saying that the government has to meet only a low or middling burden to overcome it. There’s no specific indication from the oral argument that the court plans to do that, but journalists should watch out for any tinkering with Tornillo in the court’s decisions here.

Whatever the outcome of the NetChoice cases, states will almost certainly persist in trying to punish social media companies for hosting content that lawmakers dislike. Journalists should be wary. While social media is the political punching bag for now, there are plenty of politicians who want to go after the press using similar legal theories and complaints. If First Amendment precedent falls in social media cases, it will make it easier for lawmakers to target journalists next.

Journalist Tim Burke has been indicted under the Computer Fraud and Abuse Act for his online newsgathering. Photo courtesy of Tim Burke.

Federal prosecutors in Florida have obtained a disturbing indictment against well-known journalist Tim Burke. The indictment could have significant implications for press freedom, not only by putting digital journalists at risk of prosecution but by allowing the government to permanently seize a journalist’s computers.

While the indictment is short on facts, it reportedly arises, in part, from Burke’s dissemination of outtakes from a 2022 Tucker Carlson interview with Ye, formerly Kanye West, where Ye made antisemitic remarks that Fox News chose not to air. Ye’s antisemitism has been global news ever since. The indictment, which also alludes to sports-related content Burke allegedly intercepted, charges Burke with violating the Computer Fraud and Abuse Act and with intentionally disclosing illegally intercepted communications.

Threats to digital journalism

Freedom of the Press Foundation (FPF) Advocacy Director Seth Stern said, “The Computer Fraud and Abuse Act is a vague, ambiguous law, and the Supreme Court and the DOJ itself have cautioned prosecutors against testing its outer limits. Prosecutors should not be experimenting with the CFAA as a means of criminalizing journalists finding information online that embarrasses public figures.”

Lawyers for Burke have said that he got the Tucker Carlson outtakes from a livestreaming site where Fox uploaded unencrypted footage of the entire interview with Ye to a public URL. They’ve contended that Burke obtained login credentials for an unrestricted “demo account” for the site from a source, who found them publicly posted online. He was then able to locate a URL hosting the interview that can be accessed by anyone, without credentials.

The CFAA prohibits unauthorized access to “protected computers” (which has been defined to include websites) and is commonly associated with criminal hacking.

However, the indictment against Burke does not accuse him and his source of hacking into any servers, or deceiving anyone, to get the outtakes or any of the other content he allegedly intercepted. Nowhere does the indictment allege that either the footage or the login credentials were not publicly available. Instead, it accuses Burke and the source of “using the internet to search protected computers” and “scour[ing] the protected computers for electronic items and information they deemed desirable.”

The indictment threatens journalists’ ability to gather information online by implying that they have a previously unrecognized duty to ask for express permission to use information they find posted on the internet. It does so by accusing Burke and his source of "steal[ing]" information they found online merely by using it “without securing any authorization or permission.”

“An investigative journalist’s job is to find information that powerful people would prefer to be kept secret,” said FPF Deputy Director of Advocacy Caitlin Vogus. “It’s a safe bet that if journalists need to ask permission to publish information that casts public figures in a negative light, the answer will often be ‘no.’ Journalists should be encouraged to use the internet to find newsworthy information — not prosecuted for doing so.”

Indictment neglects to mention Burke is a journalist

Also conspicuously absent from the indictment is any mention that Burke is a journalist, raising concerns about whether the DOJ is following its own guidelines and federal law regarding investigations and prosecutions of journalists.

After FBI agents raided Burke’s home newsroom last May, seizing his equipment and communications, 50 organizations wrote a letter to the DOJ questioning whether the raid violated the First Amendment and laws protecting journalists. The letter also objected to prosecutors’ arguments, in pre-indictment proceedings, that Burke is not a journalist because, among other things, he is not currently employed by a news organization.

Stern explained, “It’s extremely dangerous for the government to appoint itself the judge of who is and isn’t a journalist, especially in a world where journalism is rapidly evolving. You don’t have to be employed by a news outlet or write under your own byline to engage in journalism. But this isn’t even a close case — Burke is a career journalist by any definition.”

“It’s disturbing that the indictment makes no mention of the fact that Burke’s reason for accessing the outtakes was to share newsworthy information with the public, as he has been doing his entire career,” Stern added. “The DOJ issued a new guidance supposedly to protect journalists and then the very next day indicted a journalist without even acknowledging it.”

Government seeks prior restraint through forfeiture of Burke’s computers

Finally and shockingly, the indictment seeks to require Burke to forfeit a website domain and computer equipment if convicted — essentially the contents of his newsroom. The forfeiture demand would not be limited to content at issue in the indictment, which would already be unprecedented, but would extend to any unpublished material, notes, and communications stored on those computers, regardless of whether they relate to any alleged crime.

“The government has already prevented Burke from reporting for more than nine months by raiding his newsroom and seizing his equipment,” said Stern. “Now it wants to permanently silence his reporting by keeping even past newsgathering materials stored on his devices that have nothing to do with the allegations against him. Seizing newsgathering materials from a journalist is, in effect, a prior restraint that stops the journalist from publishing news. That’s why it almost always violates the Privacy Protection Act and the DOJ’s own policies.”

FPF hosted a video interview with Burke in December about the raid of his newsroom. He was joined by Eric Meyer, the publisher of the Marion County Record, which police raided in August. During the interview, Burke wondered whether the agents conducting the raid thought to themselves, “Am I really trying to prosecute someone for exposing Kanye West as an antisemite? Is that why I got into the FBI? Because that’s what this is about.”

The same could be asked about the DOJ, which is exercising its prosecutorial discretion to employ the CFAA, a statute the DOJ admits is subject to abuse, not to go after hackers and fraudsters but after a journalist who shared important news with the American public.

Burke has set up a fundraising website to raise money to support his defense.

Student journalists work hard to persist in the face of increasing threats to their First Amendment rights. So the last thing they need is Congress piling on with a bill like the Kids Online Safety Act. Above, student journalists at the Cal Times in 2015. 2015-2-17-CalTimes-Newsroom-Students-1I9A8427 by Student Association is licensed under CC BY-NC-SA 2.0.

Today is Student Press Freedom Day, the annual celebration of student journalists’ contributions to their schools and communities. Student reporters work hard to persist in the face of increasing threats to the First Amendment rights, such as school administrators censoring their reporting and shutting down entire student newspapers.

In this climate, the last thing student journalists need is Congress piling on. But that’s exactly what Sens. Richard Blumenthal and Marsha Blackburn have done with their newly revised version of the Kids Online Safety Act.

We’ve written before about how KOSA is a wolf in sheep’s clothing: It’s a censorship bill hidden behind the mantle of child protection. KOSA has been consistently opposed by LGBTQ+, human rights, and civil liberties organizations because of the threat it poses to the privacy, free expression, and safety of young people.

Last week, in response to the drumbeat of criticism that has dogged the bill for more than two years, Blumenthal and Blackburn unveiled a revised version that they claim solves the bill’s problems. It doesn’t.

Although the revised KOSA now appears to focus on “design features” of online platforms, what remains is the dangerous “duty of care” provision that requires platforms to take steps to prevent and mitigate those under the age of 17 from being exposed to “harmful” content through their design features.

As the advocacy group Fight for the Future explains, platforms will still respond to this new version of KOSA by aggressively filtering and suppressing “controversial” content.

For this reason, KOSA will still censor the news for everyone. But ironically, for a law that’s supposed to protect kids, it may harm student journalists in three ways: one, by making it harder for them to find information online for their reporting; two, by censoring their news stories online; and three, by invading the privacy of student journalists, as well as everyone else.

Stymying student journalists from gathering information on social media

First, KOSA will make it harder for high school journalists to gather information on social media for their reporting. For example, the bill explicitly names information about suicidal behavior as harmful to kids. That means online platforms are likely to respond to KOSA by blocking content that discusses suicide from users under the age of 17, so that a “design feature” such as a recommendation system doesn’t recommend that content to children.

If high school journalists want to report on the issue of teen suicide, they may struggle to find any information about it on social media, including information about suicide prevention or news reports.

The same is true for student journalists who want to report about other issues that students deal with every day: eating disorders (specifically flagged as harmful by KOSA), violence against LGBTQ+ kids (could cause anxiety, forbidden by KOSA), or even climate change (too depressing, also disallowed by the bill).

Censoring student journalists’ reporting

Second, for years, the student press has been using social media to reach audiences. But because KOSA will cause platforms to filter or even remove content that they fear the government will consider harmful to kids, high school journalists may also find their reporting censored on social media as a result of the legislation.

That means that young people may be blocked on social media from seeing the news reporting done by their classmates. For example, platforms may filter or delete student journalists’ news reports on sexual harassment or abuse of students because they relate to sexual exploitation and abuse of minors, which KOSA specifically identifies as harmful content.

Undermining privacy for all

Third, KOSA is also a privacy disaster for student journalists and everyone else. As Mike Masnick at Techdirt has explained, “[N]othing in this bill works unless websites embrace age verification.” To implement KOSA’s requirement to protect minors, online platforms will have to age-verify users. “And the only way to do that is to collect way more information on them, which puts their privacy at risk,” Masnick explains.

Age verification will require online platforms to collect more information on all users, not just young people, meaning that everyone’s privacy will suffer. But it’s particularly pernicious for a children’s “privacy” bill to require minors to turn over sensitive information to the very platforms that are accused of harming them by mining their data in the first place.

Teaching kids that it’s OK, or even required, to reveal sensitive information online also sends a dangerous message, especially to student journalists. Professional reporters must take their online privacy seriously to avoid government surveillance and harassment. We should be teaching student journalists to do the same, not legally requiring them to identify themselves to online platforms so they can be age-verified.

Lawmakers shouldn’t be asking student journalists or any young people to sacrifice their freedom of speech and privacy to “protect” them online. Let’s celebrate Student Press Freedom Day by telling Congress not to censor the student press online. Tell Congress not to pass KOSA.

The indictment against Julian Assange seeks to make the publication of government secrets a crime. Top Secret by Michelangelo Carrieri is licensed under CC BY-ND 2.0.

Today, the High Court of Justice in London began considering a case that could shape the future of press freedom in America: WikiLeaks founder Julian Assange’s likely final appeal of his extradition to the United States to face charges under the Espionage Act for publishing secret government documents.

If Assange is tried and convicted in the U.S. under the Espionage Act, the First Amendment rights the press has long enjoyed to “bare the secrets of government and inform the people” may be stripped away.

The U.S. Department of Justice would have you believe otherwise. “Julian Assange is no journalist,” it declared when it first indicted him on 17 counts of violating the Espionage Act. The indictment itself is chock-full of allegations that are irrelevant to the actual charges against him, but are intended to paint Assange as a “hacker,” not a reporter.

Don’t be fooled. It doesn’t matter if Assange is a journalist. The Assange prosecution places journalists squarely in the DOJ’s crosshairs by seeking to criminalize common ways that journalists cultivate and work with sources. But perhaps even worse, it attempts to criminalize journalism itself, by asserting for the first time that a publisher can be criminally punished just for publishing classified information, no matter how it was obtained.

If Assange is convicted, it will drastically alter the risk assessment journalists and their lawyers undertake before engaging in what was previously routine journalism — especially when their reporting might embarrass or anger government officials. The result will be less reporting on some of the most important issues of our time.

Pure publication theory is pure peril for journalists

Three counts in the Assange indictment seek to punish him under the Espionage Act for “pure publication,” i.e., simply for publishing classified documents. Convicting Assange for publishing alone would mean that journalists — who have long published classified documents and continue to do so all the time — could be convicted for the same crime.

About half the presidential administrations since Nixon have threatened to prosecute journalists. An Assange conviction would make that threat much more real. We’ve already seen how aggressive investigations of whistleblowers can chill reporting. The specter of criminal investigations and prosecutions of journalists may mean news reports based on classified material become few and far between, even if actual prosecutions remain rare.

That may be exactly what the DOJ wants. But it will leave the American public, and our democracy, worse off. Imagine if we never learned about the torture at Abu Ghraib, vast warrantless wiretapping of Americans, or former President Donald Trump’s shocking phone calls with foreign leaders, all because journalists were afraid to go to jail for publishing.

Even publishing documents received anonymously and unsolicited through the mail or online could be criminal. Journalists who used the Discord Leaks — a trove of classified documents posted on social media — to report about U.S. intelligence agencies’ pessimism about the war in Ukraine, North Korea’s nuclear weapon program, or Taiwan’s vulnerability to Chinese attack could be found guilty of the crime of publishing, without ever interacting with a source.

The successful application of the pure publication theory would also increase the government’s power to skew public narratives in its favor. The government already influences press coverage using plants (official disclosure of government secrets) or “pleaks” (quasi-authorized leaks), while harshly punishing unofficial whistleblowers who expose less-favorable information.

Imagine, for example, how the press would have reported on the Obama administration’s classified drone program if it knew it could be punished for publishing classified information. It almost certainly would have still published quotes from government officials crowing about the program’s successes. But would journalists have dared to publish exposés revealing the shockingly high numbers of civilian deaths, knowing that they risked jail time just as much as the whistleblower who leaked the documents?

Criminalizing reporter-source relationships

The DOJ has also charged Assange with violating the Espionage Act based on his interactions with his sources, among them Chelsea Manning. Assange is accused of “conspiring” with sources to obtain classified information by publicly stating that WikiLeaks sought particular information, of obtaining and receiving classified information from one source, Manning, and of “aiding and abetting” Manning by encouraging her to leak documents.

As with the pure publication charges, these charges are based on acts that journalists engage in routinely. Prominent news organizations offer tip lines that allow sources to leak to them anonymously or confidentially. Journalists ask for leaks and work with sources. They encourage sources to leak, and they try to protect them from being discovered. All of that could be criminalized if Assange is convicted for his interactions with sources under the Espionage Act.

It’s no surprise that Trump — who publicly called for journalists to be jailed — would want to criminalize both pure publication and reporter-source relationships. But if the Biden administration really believes that journalism is not a crime, its pursuit of this case is inexplicable.

News media outlets, scholars, and press freedom groups have repeatedly condemned the Espionage Act charges against Assange as a threat to journalists. Even the Obama administration, despite its disdain for WikiLeaks, recognized it could not prosecute Assange without endangering journalists.

Perhaps the Biden administration hopes that a U.K. court will solve the problem by refusing to extradite Assange. But we shouldn’t leave it up to a foreign court to protect the First Amendment. The DOJ should put an end to the press freedom quagmire by dropping the case against Assange.

It's time for the DOJ to drop the Assange case and save the First Amendment. Department of Justice Building, Washington, D.C. by Ken Lund is licensed under CC BY-SA 2.0.

A video from Freedom of the Press Foundation (FPF) is calling on members of the public to tell the Biden administration to drop the Espionage Act charges against Julian Assange because of the threat the charges pose to journalists and the news media.

In the new video raising alarm about the case’s risks to press freedom, FPF explains: “For decades, journalists have depended on the right to publish government secrets. But all that could change if the Biden administration finishes what Trump started: Prosecuting WikiLeaks founder Julian Assange under the Espionage Act.”

The video points out that Assange is accused of acts that journalists engage in every day: speaking with sources, convincing them to provide documents, receiving those documents, and then publishing some of those documents. As a result, convicting Assange under the Espionage Act would hand a potential second-term President Donald Trump or any future administration the perfect weapon to go after The New York Times, The Washington Post, and other news outlets.

“You don’t have to like Julian Assange. This is not about him,” FPF notes in the video. “It’s about the future of the Fourth Estate and American democracy.”

FPF is encouraging Americans who care about press freedom to contact the White House and DOJ and to post on social media to express their concerns about the danger Assange’s prosecution poses to journalists and press freedom. For more information about the case and about how to make your voice heard, visit https://freedom.press/assange.

Legal scholars, media publishers, civil liberties advocates and lawmakers have all warned the Biden administration of the dangers to press freedom of prosecuting Julian Assange under the Espionage Act. It's time for the DOJ to drop the case and save the First Amendment.

FOR IMMEDIATE RELEASE

Over 40 law professors told the Department of Justice in a letter that the Espionage Act charges against Julian Assange “pose an existential threat to the First Amendment.”

An appellate hearing on the WikiLeaks founder’s extradition from Britain to the United States is scheduled to be held at the High Court in London on Feb. 20-21.

The professors write that although their “personal views on Assange and WikiLeaks vary,” they are nonetheless “united in our concern about the constitutional implications of prosecuting Assange.” Those implications, they explain, “could extend beyond the Espionage Act and beyond national security journalism [to] enable prosecution of routine newsgathering under any number of ambiguous laws and untested legal theories.”

One of the signers is James Goodale, the former vice president and general counsel for The New York Times and an adjunct professor at Fordham School of Law. He believes that, if Assange is convicted, similar prosecutions seeking to criminalize investigative reporting are inevitable.

“Based on my experience, which includes serving as The New York Times’ general counsel when the Nixon administration tried to indict a journalist under the Espionage Act for publishing the Pentagon Papers, I am confident that a successful prosecution of Julian Assange would lead to similar charges against journalists from newspapers like the Times when they uncover secrets that embarrass officials. This would be absolutely disastrous for press freedom in the United States,” said Goodale.

The letter follows correspondence expressing similar concerns about the consequences of prosecuting Assange for press freedom from leading media publishers, civil liberties organizations, and members of Congress. In addition to the law professors who signed the letter, numerous legal scholars have independently expressed their concerns about the repercussions of prosecuting Assange under the Espionage Act for the First Amendment.

As the letter notes, the Obama administration understood these concerns, and refrained from charging Assange under the Espionage Act because it reportedly recognized the “New York Times problem”: that any legal theory it could employ against Assange could be used against journalists from the Times and other newspapers.

But the Trump administration reversed course and the Biden administration has insisted on continuing the prosecution, even as Trump himself proclaims his intention to lock up journalists — specifically those who publish leaked documents — if he gets another presidential term.

Seth Stern, the director of advocacy for Freedom of the Press Foundation, which helped organize the letter, said, “Scholars, lawyers, media publishers and activists all agree that the prosecution of Julian Assange under the Espionage Act is sure to lead to prosecutions of journalists for doing their jobs. It seems the only people who disagree are the DOJ. It’s time for them to finally drop this dangerous prosecution. Whether you love or hate Julian Assange, if he comes first, a journalist you do like may come next.”

You can read the letter here or below.*

* The online version of the letter has been updated to include additional professors who have signed since its initial delivery on Feb. 14, 2024. The original version is available here.

Journalists encounter electronic documents in a variety of formats in the course of their work. Spreadsheets documenting a politician’s expenses might show evidence of a lavish party taking place during a health lockdown. A PDF file might contain a proposal for a controversial military operation.

However, these documents could be digital traps, sprung by adversaries to gain access to a newsroom’s files. Any electronic document may contain malware targeting the software that’s used to open it. In the worst case, a powerful attacker may exploit a vulnerability for which there aren’t yet any security updates.

To address those risks, Dangerzone was initially developed by Micah Lee, a journalist, security engineer, and software developer. It is a cross-platform application for Mac, Windows, Linux, and Qubes OS to help anyone review electronic documents with significantly reduced risk. It does this by essentially creating a “virtual photocopy” of the document in a secure sandbox.

In 2022, Freedom of the Press Foundation (FPF) took on the continued development and improvement of Dangerzone in partnership with Lee. When it comes to security, we believe that journalists shouldn’t just have to take our word for it. That’s why, with support from the Open Technology Fund, we requested an independent security audit of the software.

In December 2023, Include Security completed an audit of the Dangerzone application and website, in a span of 12 days. This included exploratory use of the tool, manual code review, manual dynamic testing, software scans, an architecture review, a sandbox configuration review, and a review of our preliminary support for Qubes OS.

Include Security identified the following categories and numbers of findings: “Critical-Risk”: 0; “High-Risk”: 0; “Medium-Risk”: 0; and “Low-Risk”: 3. The Dangerzone team has already prioritized work on the low-risk and informational findings. Please find the full report, and our assessment of selected findings, below.

Our work on Dangerzone is far from over. With help from OTF, we are currently undertaking a review of Dangerzone’s user experience. We are also making continued architectural improvements to lay the groundwork for simpler installation, quicker updates, and new functionality. To stay up-to-date, follow Dangerzone on Mastodon.

Audit findings and next steps

We encourage users to read the security assessment of Dangerzone (FPF copy · Include Security copy), which documents the findings in great detail. As developers of Dangerzone, we would like to highlight findings L1, L2, and I7, and mention our course of action.

L1: [macOS] Opportunities for macOS Client Entitlements Hardening

For macOS, Include Security suggested that we can further harden the Dangerzone application, i.e., the graphical user interface that users see. Note that attackers cannot directly target the Dangerzone application, but it's still important to protect it, since it interacts with the files that have been produced in the untrusted conversion sandbox. The proposed way to harden the Dangerzone application is via stricter macOS entitlements, which we are actively working on.

Next steps: We are tackling this issue. For technical details and progress updates, see https://github.com/freedomofpress/dangerzone/issues/638

L2: [macOS] [Windows] [Linux] [QubesOS] LibreOffice Security Hardening Options

Dangerzone uses the LibreOffice suite internally for opening some document types. Include Security pointed out a new LibreOffice setting that disables potentially security-sensitive features en masse. Dangerzone already opens documents with macro execution disabled, but disabling other unnecessary features is a very welcome addition.

Next steps: We plan to enable this security setting in a future release. For technical details and updates, see https://github.com/freedomofpress/dangerzone/issues/379

I7: [macOS] [Windows] [Linux] [QubesOS] Out-of-Date Libraries in Use

Dangerzone is designed under the assumption that, sooner or later, attackers will gain access to the untrusted sandbox. This can be achieved via a specially crafted document that targets a vulnerability within the sandbox. That's why we harden this sandbox to ensure that even in that case, the malware stays contained.

However, our goal is to ensure that the sandbox has no known vulnerabilities by keeping it as up-to-date as possible. Our container image is continuously scanned against known CVEs, or common vulnerabilities and exposures, and we are committed to releasing a new Dangerzone version whenever a CVE critically impacts the security of the sandbox. The 0.5.1 release, which happened during the security audit and addressed the CVE findings, is an example of our policy in action.

Next steps: We plan to make container updates more frequent and noninteractive, so that users are protected in depth. For technical details and news, see https://github.com/freedomofpress/dangerzone/issues/698

Breakdown of all findings

The following table provides background or a relevant tracking issue for all audit findings.

Finding in reportIssue or status L1: [macOS] Opportunities for macOS Client Entitlements Hardeninghttps://github.com/freedomofpress/dangerzone/issues/638L2: [macOS] [Windows] [Linux] [QubesOS] LibreOffice Security Hardening Options https://github.com/freedomofpress/dangerzone/issues/379L3: [Web] Deprecated TLS Ciphers SupportedAddressed during auditI1: [macOS] [Windows] [Linux] [QubesOS] Nonessential Binaries Included in Container Imageshttps://github.com/freedomofpress/dangerzone/issues/691I2: [macOS] [Windows] [Linux] [QubesOS] Missing Password Protection Featurehttps://github.com/freedomofpress/dangerzone/issues/692I3: [macOS] [Windows] [Linux] Missing Software Status Check of Docker and Docker Desktophttps://github.com/freedomofpress/dangerzone/issues/693I4: [CLI] dangerzone-cli Disclosed File Names to Shell Historyhttps://github.com/freedomofpress/dangerzone/issues/694I5: [macOS] [Windows] [Linux] [QubesOS] Limited User Feedback for File Conversion Processhttps://github.com/freedomofpress/dangerzone/issues/695I6: [macOS] [Windows] [Linux] [QubesOS] Possible Attack Vector via OCR Enginehttps://github.com/freedomofpress/dangerzone/issues/696I7: [macOS] [Windows] [Linux] [QubesOS] Out-of-Date Libraries in UseThe particular issue was resolved in v0.5.1. The wider issue had to do with how to ship faster updates. Part of that is being able to ship container-only updates and potentially moving the pixels-to-PDF part to the host.

LAPD officers who claim they work undercover are suing the city for accidentally releasing their photographs to a journalist. The city, ignoring the Constitution and Supreme Court, is demanding the journalist pay the bill. "Los Angeles Police Department Bomb Squad" by TDelCoro is licensed under CC BY-SA 2.0.

In 2022, the City of Los Angeles accidentally released photos to journalist Ben Camacho of officers it contends were working undercover, after Camacho sued them to enforce his rights to public records.

Then, last year, the city sued him to get the photos back and to stop him and others from publishing them. That lawsuit, which sought an unconstitutional prior restraint, was bad enough.

But now LA is going even further. After officers sued it for the harm its release of their photos allegedly caused them, the city sued Camacho, contending he should be responsible for the costs of its negligence.

The city ignores that the Supreme Court has ruled four times that, when the government accidentally releases documents to journalists, that’s the government’s problem.

Freedom of the Press Foundation (FPF) Advocacy Director Seth Stern wrote for the Los Angeles Daily News about LA’s effort to pass along responsibility for its recklessness to a journalist:

The city has hit the trifecta of anti-press First Amendment violations: first, demanding journalists give back documents the government released, second, censoring journalists from publishing information, and now, holding journalists financially liable for truthful publications — something that, once again, the Court has never permitted.

Read the full op-ed here.

Georgia prosecutors in the case against Stop Cop City protester Ayla King have successfully argued that use of a "burner phone" is evidence of criminal intent. Press freedom and civil liberties groups find these arguments highly concerning. "Cop City" by Chad Davis. is licensed under CC BY 2.0.

FOR IMMEDIATE RELEASE:

A coalition of 25 civil liberties, environmental rights and press freedom organizations is demanding that Georgia Attorney General Chris Carr stop attempting to criminalize lawful technologies that activists, journalists and others use to protect their privacy.

The group explained in a letter that prosecutors’ have ignored the First and Fourth Amendments by arguing that Stop Cop City protester Ayla King’s use of a “burner” phone is evidence of criminal intent, especially when there is no proof whatsoever that King used the phone unlawfully. King is one of the 61 co-defendants charged with violating Georgia’s expansive RICO Act for opposing the proposed Atlanta Public Safety Training Center, commonly known as “Cop City.”

The letter explains that people like King need to protect their privacy due to “the long history, in Georgia and throughout the United States, of law enforcement officers baselessly searching and seizing devices from individuals lawfully engaging in First Amendment activity. Accepting the prosecution’s theory, which can be summarized as ‘if you’re not doing anything wrong, what do you have to hide,’ requires extreme naivete regarding that history.”

Burner phones are just the latest tool used by activists, dissidents and journalists that the state of Georgia has tried to criminalize. They’ve even argued that writing down legal hotline numbers proves intent to commit a crime.

Cody Bloomfield, communications director of Defending Rights & Dissent, put it as follows: "First it was muddy shoes, now it’s so-called ‘burner phones.’ Is there anything the state of Georgia won’t say is proof of criminality? Our Constitution limits state power so political organizing, freedom of association, journalism, and privacy can flourish. The State of Georgia’s attempt to cast use of burner phones as evidence of criminal intent risks casting aspersions on anyone using legal privacy tools to organize, report, or communicate outside the shadow of the surveillance state.”

National Lawyers Guild, Director of Mass Defense, Xavier T. de Janon says, "In its political witch hunt against a powerful movement resisting policing, environmental destruction, and incarceration, the Georgia Attorney General is creating a dystopian reality. What crime is committed by having a prepaid, no-contract phone near a protest? According to the Georgia Attorney General, conspiracy to commit racketeering. The State of Georgia's position is dangerous, and it sets a chilling precedent, discouraging people from exercising their rights to protest and destroying privacy protections."

Seth Stern, director of advocacy at Freedom of the Press Foundation (FPF), added that “journalists and activists alike use ‘burner’ phones and other anti-surveillance tools not because they intend to commit crimes but because police have an unfortunate habit of investigating and arresting them in retaliation for constitutionally protected activity. The fact that prosecutors are pursuing their ridiculous RICO case against King and their codefendants in the first place exemplifies exactly why people find it necessary to conceal their lawful communications from law enforcement.”

As the letter explains, that dangerous indictment seeks to criminalize an entire protest movement and alleged shared political ideology (anarchism) by citing alleged offenses by a few protesters and employing guilt by association theories to connect the dots. Civil liberties, human rights and press freedom organizations nationwide have raised alarms over the indictment.

The full letter is available here and embedded below.

For media inquiries, contact: media@freedom.press (Freedom of the Press Foundation), communications@nlg.org (National Lawyers Guild), or cody@rightsanddissent.org(Defending Rights & Dissent).

The Daily Northwestern put personal feelings aside and fought back with news ink after authorities filed charges against two students over flyers parodying its front page. Professional journalists should follow their lead and oppose anti-speech prosecutions, even when they don't like the speaker. Screenshot.

There’s been a disturbing national trend as of late: authorities dusting off obscure laws, or conjuring up far-fetched legal theories, to try to criminalize speech they don’t like.

It looked like more of the same when news broke this week that the Cook County state’s attorney had charged two Northwestern University students with a crime after they distributed parody flyers objecting to the school’s response to the Israel-Gaza war. The students designed the flyers to resemble the front page of The Daily Northwestern, the school’s student newspaper, and placed them over copies of the paper.

The Daily Northwestern’s editorial board members understandably didn’t appreciate their newspapers being tampered with. But they put their grievances aside to stand up for free expression and object to their parent company’s ill-advised decision to report the matter to law enforcement. Their actions may have prevented yet another anti-speech prosecution.

After the parent organization, Students Publishing Company, reported the incident to police, investigators identified two students responsible for the flyers. Prosecutors decided to comb through the criminal code for an excuse to throw the book at them, settling on charges under a law against theft of advertising services. One former public defender told The Intercept that they’d never heard of anyone being prosecuted under the little-known law.

The students, of course, didn’t steal any newspapers or advertising services (whatever that means) by placing their obviously fake front page over the newspapers. The real content of the papers, ads included, remained available for all to see. No one with any sense could have mistaken the flyer for the actual front page. And there’s no way the students could’ve expected to face up to a year behind bars over their relatively tame act of civil disobedience.

The Daily Northwestern used the best weapon it has — news ink — to help the students fight back. The editorial board called SPC out on its overreaction, publishing an editorial demanding it ask the state’s attorney to drop the case. Despite their objections to the students’ choice of protest tactics, they recognized that involving the criminal justice system was a drastic and entirely unnecessary escalation.

After all, newspapers are often the victims of the same kind of overreach the students are facing. Police in Marion, Kansas, raided the Marion County Record last August, purportedly to investigate whether reporters somehow committed identity theft by confirming a news tip on a government website. In October, authorities charged a reporter and publisher in Alabama with violating a grand jury secrecy law — plainly inapplicable to journalists — by reporting on a criminal investigation of a local school board. Six months before that, an Arizona state senator got a restraining order against a reporter for knocking on her door.

There’s more. A citizen journalist in Texas is hoping to go to the Supreme Court with her lawsuit over an arrest for violating an archaic law against soliciting “nonpublic information.” The City of Los Angeles last week sued a journalist for publishing information that the city itself gave him. And the mayor of Calumet City, Illinois, had citations issued to a journalist in October for asking public employees too many questions. The list, unfortunately, goes on and on.

This time, a newspaper was the “victim” rather than the accused. But the Daily Northwestern’s editorial board had the foresight and moral clarity to oppose similar antics even when the shoe was on the other foot. Searching for novel legal bases to lock college kids up for speaking their minds about one of the most important issues of our times is as un-American as it gets. The First Amendment instead demands prosecutors search for any available reason to not punish speech, including -– in fact, especially — controversial speech that some people find upsetting.

And the SPC responded to the editorial (as well as a change.org petition that received thousands of signatures), announcing it would hire lawyers to encourage the state’s attorney to resolve the matter without a prosecution. SPC’s board of directors claimed they didn’t realize that reporting a “crime” to law enforcement might lead to criminal proceedings it wouldn’t be able to control. That’s hard to believe.

And you’d hope that a newspaper publisher would have had more respect for freedom of expression and the breathing room it needs to thrive, or at least the business sense not to undermine its own interests by encouraging anti-speech prosecutions. But at least they worked to clean up the mess they initiated.

And then yesterday, prosecutors from Cook County State’s Attorney Kim Foxx’s office dropped the case. They deserve little credit for that — they should’ve known better than to bring the charges in the first place. But the student journalists at the Daily Northwestern deserve plenty of credit for overlooking their personal feelings about the students behind the flyers and showing what an editorial board willing to stand up for free speech can accomplish.

Professional journalists should take note. For example, those who can’t put aside their gripes with Julian Assange to cover the threat his prosecution poses to their own rights. If more newspapers published editorials like the Daily Northwestern’s, maybe the U.S. Department of Justice, like the Cook County State’s Attorney, would reverse course.

Democratic Sens. Dick Durbin (pictured) and Ron Wyden, along with Republican Sens. Lindsey Graham and Mike Lee, are sponsoring the most important press freedom legislation in modern history, the PRESS Act. Illinois Senator Dick Durbin Youth Climate Strike Chicago Illinois 5-3-19_0471 by Charles Edward Miller is licensed under CC BY-SA 2.0.

First Amendment Watch at New York University interviewed our deputy director of advocacy, Caitlin Vogus, about the importance of the PRESS Act, the federal bill to protect journalist source confidentiality. The act passed the House without objection last month and enjoys bipartisan support in the Senate as well.

Vogus told First Amendment Watch that administrations from both parties have increasingly spied on journalists and their sources in an attempt to stifle important reporting and prevent government transparency.

The PRESS Act would address that problem by protecting journalists from surveillance, or from being compelled to reveal their sources or newsgathering material, and as a result, it would make sources feel much more comfortable coming forward to talk to journalists, to blow the whistle, to share important information that informs the public. It will improve the quality of journalism and ensure that Americans have access to the information that they need to be informed participants in our democracy.

You can read the full interview here.

Aerial view of CIA headquarters in Langley, Virginia. Carol M. Highsmith Archive collection at the Library of Congress.

What do you view as a more serious crime: divulging government secrets or possessing child pornography? If you chose the latter, the U.S. government begs to differ.

Joshua Schulte leaked a tranche of CIA secrets to WikiLeaks, known as the Vault 7 leaks, in 2017. Agents investigating the leak also found 15,000 images of child pornography and erotica on his computers. Yesterday he was sentenced by U.S. District Judge Jesse M. Furman to 40 years in prison: six years and eight months — a below average sentence — for child pornography, and the remaining 33 years and 4 months for the Vault 7 leaks.

And the imbalance in Schulte’s sentence can’t be blamed on Furman alone: it’s consistent with the Department of Justice’s sentencing memo, which disproportionately focused on the leaks to justify throwing the book at Schulte. It sought a life sentence for the disclosures, citing punishments imposed on actual spies, not leakers. In contrast, a pre-sentencing report recommended only 60 months — the mandatory minimum — for child pornography.

This follows the draconian five-year sentence imposed last week on Charles Littlejohn, who leaked Donald Trump’s tax returns to The New York Times and tax returns of ultra-wealthy Americans to ProPublica, enabling important investigative reports by both publications.

We’re not comparing Schulte to Littlejohn or other whistleblowers, from Daniel Ellsberg to Chelsea Manning, who acted because their conscience compelled them to risk prison to expose wrongdoing. Schulte's motive was apparently revenge against his former colleagues at the CIA. And of course, his child pornography collection is abhorrent, and he absolutely should serve a lengthy prison sentence following his conviction for those disgusting crimes.

But bad facts make bad law. And when government officials found a defendant as unsympathetic (to say the least) as Schulte they jumped at the opportunity to escalate their war on leakers in ways they could later use to punish real whistleblowers, including by successfully seeking a “terrorism enhancement” on Schulte’s sentence because his leaks were “clearly calculated to retaliate against the United States as a whole."

Here’s how Chip Gibbons, policy director for Defending Rights & Dissent, put it: “Using an isolated and unpopular defendant, the government has dramatically expanded its arsenal against media sources. We cannot expect the terrorism enhancement or analogizing online news sites to hostile foreign governments to end in this case.”

Furman did note in his remarks that Schulte wasn’t motivated by altruism. And officials have characterized Schulte’s leak as causing a “digital Pearl Harbor,” although that seems hyperbolic: The fallout they cite involves operational difficulties, not deaths. But nonetheless, it’s easy to imagine the government using exceedingly vague legal definitions of terrorism to obtain heightened sentences against whistleblowers and dissidents who have little in common with Schulte.

In fact, there’s no need to imagine. Julian Assange is not a former government employee with a grudge, but prosecutors nonetheless reportedly planned, and may still plan, to seek a terrorism enhancement in his prosecution.

Assange isn’t accused of leaking documents himself but of obtaining documents from a whistleblower (Manning) and then publishing them on WikiLeaks. Award-winning investigative journalists obtain and publish leaked documents every day. Whether you love or hate Assange, the prospect that the government would not only prosecute this kind of constitutionally protected activity, but could characterize it as “terrorism,” is highly alarming.

Schulte absolutely should spend the foreseeable future behind bars for his hoarding of child pornography. He’s a despicable person and we have no sympathy for him.

But it speaks volumes about the priorities of our government that his punishment overwhelmingly arises from his disclosure of government secrets. The government appears to view his child pornography offenses as a mere excuse to test how far it can go in punishing those who expose its abuses. The next Ellsberg might well think twice before blowing the whistle with this sentence as a precedent.

Graphic by Kelsey Borch

We are excited to share Freedom of the Press Foundation’s (FPF) 2023 Impact Report, marking another year of achievements and relentless advocacy for press freedom.

For in-depth insights into our highest-impact initiatives, along with compelling visuals courtesy of designer Kelsey Borch, join me in a look back on 2023.

Here are five key sections from this past year’s report:

1. Honoring FPF co-founder Daniel Ellsberg:

We paid tribute to the late Daniel Ellsberg, a co-founder of FPF and a legendary figure in the world of whistleblowing. Ellsberg’s legacy of courage will always inspire our work, especially in our advocacy for whistleblower rights. His lifelong dedication to press freedom and governmental transparency remains a guiding light for our organization.

2. Supporting the press freedom community:

Our efforts this year have garnered significant media attention, highlighting the relevance and impact of our work. FPF was cited and mentioned by various news outlets over 300 times, reflecting our influential role in the press freedom landscape and our contributions to important journalistic cases and topics.

3. Extending FPF’s impact nationally and globally:

This year’s report includes a comprehensive map illustrating the reach of FPF’s three main programs. From U.S. Press Freedom Tracker incidents to SecureDrop deployments and digital security training sessions, this visual representation showcases the extensive scope and influence of our initiatives across the U.S. and the globe.

4. Defending local and big-name journalists alike:

FPF’s advocacy efforts in 2023 spanned both high-profile and lesser-known, yet equally important, press freedom issues. Our relentless pursuit of justice and transparency in journalism has led to significant progress and heightened awareness of the challenges faced by journalists and sources alike.

5. Demonstrating SecureDrop’s influence on global issues:

2023 gave us a rare opportunity to see how an anonymous whistleblower used SecureDrop to leak over 5,000 pages of documents revealing Russian intelligence activities. This story underscores the crucial role SecureDrop plays in facilitating investigative journalism and exposing global cyber espionage.

Looking back on 2023, I am also inspired by the dedication and impact of our team. We remain committed to safeguarding journalism and upholding the democratic principles of press freedom, two touchstones we anticipate being further challenged in 2024.

Discover more about our work and achievements in the full 2023 Impact Report below, or download a copy (PDF).

Journalist Catherine Herridge, pictured above interviewing former Acting Defense Secretary Chris Miller in 2020, has spent months fighting a subpoena that would force her to burn her sources. “201215-D-BN624-0040” by Lisa Ferdinando is licensed under CC BY 2.0 DEED.

As unlikely as it sounds, Republicans and Democrats are putting their differences aside to support the most important press freedom legislation in modern times — the PRESS Act.

The act passed the House last month. If passed by the Senate, it would finally put an end to government surveillance of journalists and court orders compelling them to burn sources.

We wrote an op-ed in The Hill with Clayton Weimers of Reporters Without Borders (RSF) explaining that the PRESS Act’s bipartisan appeal stems from the fact that journalist-source confidentiality benefits everyone who relies on the press to stay informed.

Read the op-ed here.

At least 85 journalists and media workers have been killed since the start of the Israel-Gaza war, according to the Committee to Protect Journalists. Above, journalists from Al Jazeera and other outlets working in Gaza in 2008. Gaza Journalists - Flickr - Al Jazeera English by Al Jazeera English is licensed under CC BY-SA 2.0.

Almost four months into the Israel-Gaza war, the grim death toll of journalists, among other civilians, continues to grow. The international press still is shut out of Gaza.

Freedom of the Press Foundation Deputy Director of Advocacy Caitlin Vogus spoke to The Grass is Greener on radio station WXRW in Milwaukee, Wisconsin, about the abysmal state of press freedom in Gaza and what the Biden administration must do to pressure Israel to safeguard reporters’ lives and the public’s right to know about the war.

As Vogus explained:

Journalists … play an integral role in documenting war crimes, in documenting human rights violations, in documenting even legitimate military action. Protecting journalists in Gaza and allowing the press access to Gaza is important not just because we think it’s required by international human rights law, but also because it protects the world’s right to know about what’s happening there and to document all of those stories that otherwise we would never find out about.

The Grass is Greener also spoke to Clayton Weimers, executive director of Reporters Without Borders USA. Weimers discussed RSF’s recent investigations regarding the potential targeting of journalists in the war, and Israel’s and the United States’ records on press freedom.

Listen to the whole interview here.

Then-President Donald Trump speaks with reporters on the South Lawn of the White House in August 2019. Now in his third presidential candidacy, Trump continues to vilify the news media.

Public Domain/Official White House Photo by Tia Dufour

How a candidate treats the press while on the campaign trail is usually a good indicator of how they’ll treat them while in office. And as the 2024 general election nears, our U.S Press Freedom Tracker is making a public record of just that — cataloging statements against the press by candidates for federal office and efforts by them to diminish the media’s newsgathering capabilities.

It was certainly true for Donald Trump. From the time he declared his first candidacy for president in 2015 through to his account suspension on X (then Twitter) in 2021, Trump tweeted negatively about the press an average of more than once a day over those 5 ½ years, according to the Tracker.

And this year, as a candidate and presumptive presidential Republican nominee, he’s doing it again. His campaign, for example, barred an NBC reporter from attending an event in New Hampshire in late January, but did not provide any explanation why.

And this year, as a candidate and presumptive presidential Republican nominee, [Trump's] doing it again.

Only five days earlier, the former president said that CNN and MSNBC should “have their licenses or whatever they have taken away,” after the networks only aired a portion of his Iowa caucus victory speech.

Other candidates use similar playbooks. U.S. Rep. Mike Lawler, a Republican running for reelection in a tossup district in New York’s Hudson Valley, recently ended a monthslong effort to restrict media access to his public town hall events. Vivek Ramaswamy, who’s now suspended his Republican presidential bid, used his opening statement at a November GOP debate to target NBC News anchor Kristen Welker and the “corrupt media establishment,” while falsely claiming the media rigged the 2020 election.

From now until Election Day, our Tracker team will continue to document and highlight relevant sidelining of, attacks on, or outright barring of press from major campaign events across the United States.

Follow the Tracker’s Election Blog here.

Journalists may soon find out how effective the new New Jersey anti-SLAPP law will be in preventing malicious lawsuits against the press, as a Bergen County judge is poised to interpret it for the first time. Above, the Bergen County Courthouse. Bergen County Court House.jpg by Stephdurante is licensed under CC BY-SA 4.0.

A legal battle over local politics may soon result in the first court ruling interpreting New Jersey’s new anti-SLAPP statute, designed to protect against meritless lawsuits that seek to punish and chill constitutionally protected speech. Journalists should pay close attention. Despite the fact that the case doesn’t directly involve the press, it could still have significant implications for reporters and news outlets.

A political slap fight

It all started when Albert Wunsch, a Democrat and the former Englewood Cliffs borough attorney, sued a Republican group and several Republican candidates for defamation. Wunsch claims that flyers and emails sent by the defendants as part of a recent election campaign falsely accuse him and a Democratic mayoral candidate of mismanaging taxpayer money and wrongly paint Wunsch as unethical and corrupt.

The court initially ruled in Wunsch’s favor. It ordered the defendants to issue a retraction and publish a public apology. Even more alarming, it issued an unconstitutional prior restraint, barring the plaintiffs from issuing “any further publications” regarding Wunsch.

Within days, however, the defendants asked the court to reconsider, citing the state’s new anti-SLAPP law, the Uniform Public Express Protect Act. The court paused its earlier order and, on Jan. 26, held a hearing on the defendants’ motion.

New Jersey journalists’ protection from SLAPPs may be at stake

As the first decision interpreting UPEPA, the court’s ruling in this case matters for New Jersey journalists and news outlets. Journalists are frequent targets of SLAPPs. So when UPEPA was enacted, press groups hailed it as an important protection against SLAPPs attacking journalism.

UPEPA allows frivolous lawsuits to be dismissed quickly and easily and requires plaintiffs to pay the defendants’ legal costs if their case is dismissed. That means plaintiffs can’t abuse the legal system to run up defendants’ legal costs as a way of attacking speech they dislike.

The court’s decision in the Wunsch case, however, may shape just how quickly and easily a meritless lawsuit can be dismissed. UPEPA requires that a plaintiff’s complaint provide at least some evidence to support every element of a defamation claim. Otherwise, the case gets thrown out.

Whether the court says that’s a hard standard or an easy standard for plaintiffs to meet could mean the difference between an effective anti-SLAPP law and a toothless one. We’ve seen court decisions in other states, including Illinois, render anti-SLAPP laws that appeared strong on paper far weaker in practice. Here, if the court decides that the kinds of general allegations that Wunsch makes in his complaint are enough to survive dismissal under UPEPA, then New Jersey’s new anti-SLAPP law would be significantly less protective than it appears.

In Wunsch’s case, specifically, the court will have to consider whether his complaint supports a finding of “actual malice”, i.e., proof that the defendants knowingly or recklessly made defamatory statements about him. That’s because, under New Jersey law, defamation claims based on matters of public concern must be supported by actual malice. (In contrast, the Supreme Court has said that the First Amendment requires proof of actual malice only in cases involving public figures or public officials.)

The statements at issue in Wunsch’s case are about elected officials’ decisions and the use of taxpayer money, clearly matters of public concern. But Wunsch’s complaint doesn’t provide any evidence that the defendants acted with actual malice. The closest he comes are conclusory statements that the defendants were “well aware” that the statements at issue were false and that they acted “intentionally in knowing the information they published was false and damaging.”

The court shouldn’t treat those statements as “magic words” sufficient to allege actual malice and defeat a motion to dismiss. For UPEPA to be truly effective at screening out SLAPP lawsuits, the court must interpret the law to require dismissal unless plaintiffs can provide evidence, not just vague assertions, of every element of a claim.

A prior restraint thrown in for good measure, too

Journalists should also pay attention to whether the court renounces the part of its initial order barring the defendants from making “any further publications” about Wunsch — whether true or not, defamatory or not. Some narrowly tailored injunctions concerning defamatory statements may be constitutional, but the court’s broad order here is an unconstitutional prior restraint that bars hypothetical future statements no court has found defamatory.

While it may not be legally necessary to revisit it if the court (correctly) grants the defendants’ motion to dismiss the case, explicitly repudiating it would send an important message that the court understands and respects the First Amendment.

New Jersey has enacted a strong anti-SLAPP law that can protect journalists, freedom of the press, and free speech more generally. Now, it’s up to the courts to correctly enforce it. As UPEPA faces its first test, journalists should be watching to determine whether the court’s decision makes the grade.