Freedom of the Press

The news business isn’t just any business — it serves a vital role in our democracy, recognized by the First Amendment. But media outlets can’t serve that role if they’re bankrupt. And as a result, news readers often find themselves blocked by paywalls from reading important stories about government business.

That experience is particularly frustrating for readers who are unable to access the groundbreaking investigative reports outlets like Wired magazine have been publishing, particularly over the first couple months of the Trump administration. Fortunately, Wired has a solution — it’s going to stop paywalling articles that are primarily based on public records obtained through the Freedom of Information Act.

This approach makes a lot of sense from the standpoint of civil duty. They’re called public records for a reason, after all. And access to public documents is more important than ever at this moment, with government websites and records disappearing, Elon Musk’s Department of Government Efficiency doing its best to operate outside the public’s view, and the National Archives in disarray.

But some may argue that, from a business standpoint, not charging for stories primarily relying on public records automatically means fewer subscriptions and therefore less revenue. We disagree. Sure, the FOIA process is time- and labor-intensive. Reporters face stonewalling, baseless denials, lengthy appeals processes, and countless other obstacles and delays. Investigative reports based on public records are among the most expensive stories to produce and share with the public.

And yes, publishers rely on subscriptions to cover those costs — which will only increase as a result of anti-press attacks by the Trump administration. But while some readers might not subscribe to outlets that give away some of their best journalism for free, it’s just as possible that readers will recognize this sacrifice and reward these outlets with more traffic and subscriptions in the long run.

We commend Wired for tipping the balance that all for-profit media outlets must strike between public interest and business more toward the public interest. We hope others will follow its lead (and shoutout to outlets like 404 Media that also make their FOIA-based reporting available for free).

We also hope those who stand to benefit from these outlets’ leadership (that’s you, reader) will do their part and subscribe if you can afford it. They’re not asking for an arm and a leg. Wired is offering digital subscriptions for $10 annually at the moment. You probably spent that on a mediocre sandwich this year.

The Fourth Estate needs to step up and invest in serving the public during these unprecedented times. And the public needs to return the favor and support quality journalism, so that hopefully one day we can do away with those annoying paywalls altogether.

Editor’s note: Katie Drummond, global editorial director of Wired, is a board member at Freedom of the Press Foundation (FPF).

Dear Friend of Press Freedom,

We’re glad you're here. Here are some of the issues we’ve been working on this week, from Indiana to Idaho.

Florida bill incentivizes self-censorship

Journalists and press freedom advocates were rightly appalled last month when a single judge in small-town Mississippi ordered one newspaper to remove one allegedly defamatory editorial from its website. 

But now, Florida’s legislature is pushing countless news outlets across the Sunshine State to do the same thing by denying legal defenses to outlets that resist censorship demands. Read more here.

Indiana authorities must drop charges against photojournalist 

Prosecutors in Lake County, Indiana, might not intend to give the Trump administration an assist by pursuing charges against photojournalist Matthew Kaplan. They may think when police officers in Gary broke up a Jan. 18 protest of the incoming administration’s immigration policies, journalists like Kaplan were required to leave too. 

But they’re wrong — journalists have a constitutional right to document police conduct during protests and their aftermath. And the prosecutors’ error (assuming it was one) is a gift to President Donald Trump and his anti-press and anti-immigration agendas. Freedom of the Press Foundation (FPF) Director of Advocacy Seth Stern explained why they need to drop the case in an op-ed in the Post-Tribune.

Don’t weaken Texas anti-SLAPP law 

In 2018, Dr. O.H. “Bud” Frazier sued ProPublica’s Charles Ornstein and another reporter, Mike Hixenbaugh, over an article on both Dr. Frazier’s medical breakthroughs and accusations that he violated federal research rules and skirted ethical guidelines.

To defend themselves, the journalists and their outlets turned to the Texas Citizens Participation Act, a law to discourage frivolous defamation suits. FPF Senior Advocacy Adviser Caitlin Vogus talked to Ornstein for the second in a series of Q&As with people who have firsthand experience with the TCPA and understand why proposals to weaken it are so misguided.

A deep dive on the Pentagon Papers

Lies were the foundation of U.S. policy in Vietnam. Four successive presidential administrations deceived the public, members of Congress, and those who served in the U.S. military about the costs of the war and the likelihood of success.

The decades of deception began unraveling with the historic leak of the Pentagon Papers in 1971 by our late co-founder, Daniel Ellsberg. Our Daniel Ellsberg chair on government secrecy, Lauren Harper, compiled FPF’s thoughts and resources on the Pentagon Papers here.

What we’re reading

US journalist sues Indian government after losing his overseas citizenship (The Guardian). It’s one thing to retaliate against a pro-Palestinian activist with a green card, but even a wannabe authoritarian would never mess with a citizen just for reporting on corporate crime, … right?

Idaho joins states with anti-SLAPP laws, aimed at combatting frivolous lawsuits (Idaho Capital Sun). Good news: Idaho’s anti-SLAPP bill has been signed into law. Every state and the federal government need a strong anti-SLAPP law.

Miami Beach mayor moves to end O Cinema lease after screening of Israeli-Palestinian film (Miami Herald). If Mayor Steven Meiner thinks a theater screening a documentary he disagrees with is “not consistent with the values of our City” then those values are not consistent with the First Amendment.

Musk’s team must produce documents to comply with open records laws, judge says (The New York Times). The same billionaire who said during campaign season that the Freedom of Information Act shouldn’t be needed because all government records should be public now says his quasi-governmental “efficiency” team isn’t subject to FOIA and, if it is, it needs three years to produce records.

USAID official orders staff to destroy classified documents (Bloomberg). FPF’s Harper explained that Marco Rubio is simultaneously 1) the acting head of an agency unlawfully destroying records (U.S. Agency for International Development), 2) the head of the agency that’s supposed to be preserving USAID’s records (State Department), and 3) the acting head of the agency that’s supposed to investigate unlawful records destruction (National Archives and Records Administration). That seems like a conflict. …

Facing Trump’s threats, Columbia investigates students critical of Israel (The Associated Press). Columbia has a journalism school, a First Amendment institute, and a journalism magazine. But instead of listening to any of them before investigating an op-ed writer, administrators listened to Trump and their own cowardly hearts.

How to share sensitive leaks with the press

Journalists and press freedom advocates were rightly appalled last month when a single judge in small-town Mississippi ordered one newspaper to remove one allegedly defamatory editorial from its website. But now, Florida’s legislature is pushing countless news outlets across the Sunshine State to do the same thing.

Florida’s Senate Bill 752 would amend the state’s retraction statute, which limits defamation damages if a news outlet publishes a correction or retraction, to also require outlets to permanently remove entire articles containing even a single alleged fallacy from websites they control. Outlets that fail to do so would also lose the right to assert crucial legal defenses.

It’s the latest in a series of plaintiff-friendly libel bills in Florida. But while the prior bills failed to gain traction after pushback from across the political spectrum, SB 572 was voted favorably out of Florida’s Senate Judiciary Committee on Wednesday morning.

The news isn’t all bad. Just before the vote, the bill was amended to scrap previous language requiring outlets wanting to qualify for the retraction statute’s benefits to delete articles not only from their websites but the entire internet — a technical impossibility.

That “simply cannot be done,” Bobby Block, executive director of Florida’s First Amendment Foundation, explained in written testimony opposing the prior version of the bill, which he submitted in advance of Wednesday’s hearing. “Even China with its massive state-run censorship efforts cannot fully scrub content from the internet.”

While the amendment made the bill somewhat less awful, lawmakers should’ve done away with the legislation altogether. Elected officials should not be incentivizing the press to self-censor online.

And if the Florida bill passes, expect copycat bills elsewhere. Even if that doesn’t happen, Florida law can be applied against any news outlet that is subject to the jurisdiction of Florida courts, whenever it’s based. All a plaintiff needs to do is claim they were harmed because someone in Florida read the article online.

Increased damages and loss of legal defenses

Under the bill, when news outlets comply with the removal provision, plaintiffs suing them are limited to “actual damages” – money they can prove they lost because of the defamation. When outlets don’t comply, everything is on the table, including awards of punitive damages that are often exponentially higher than actual damages.

Failure to remove online articles would also cost outlets their “fair reporting privilege,” which protects them from liability when they publish fair and accurate reports from official sources. That privilege recognizes that journalists must be free to report false statements by public officials or at official proceedings because the public needs an accurate account of what government officials are doing and saying, even when they lie.

Lowering the bar for defamation claims serves only to empower trial lawyers at the expense of press freedom.

Outlets would lose the privilege not only when they fail to remove articles adjudicated to be false but when they don’t act after receiving “notice of facts that would cause a reasonable person to conclude that such statement was false.” Plus, leaving the article online would extend the statute of limitations for plaintiffs looking to sue the outlet over the article.

It’s a safe bet cash-strapped news publishers aren’t going to bet their company that a judge or jury will agree that their decisions to keep articles online are “reasonable,” and will err on the side of removing even defensible content.

First Amendment problems

There are significant First Amendment problems with SB 752. As we saw in Mississippi, the government can’t require news outlets to remove articles. That’s called a “prior restraint,” which the Supreme Court considers the “most serious” of First Amendment violations.

SB 752 doesn’t require news outlets to take down articles, but conditioning benefits (such as the availability of legal defenses and limitations on damages) on doing so violates the spirit, and arguably the letter, of the prohibition on prior restraints.

Constitutionality aside, there is no need for entire articles to be removed from the internet because of one allegedly false statement when there are tried and true non-censorial fixes, like corrections and retractions, that preserve the public benefit of the article’s accurate content.

Let’s say a news report exposed a fraudster who swindled Floridians out of $50 million — except it turned out the number was closer to $35 million. Or a report said a suspected serial killer was investigated for twelve murders when he was actually connected to “only” eight. Do Floridians want the whole of that reporting to disappear from the internet?

The problem extends beyond high-profile crimes. Private citizens frequently demand that newspapers remove a police blotter entry about, say, their DUI or domestic violence arrest. When those demands are reasonable, newspapers can (and regularly do) voluntarily comply. That’s up to them and their constitutionally protected editorial discretion.

But the demands often are not reasonable. With SB 752, newspapers are more likely to heed a baseless takedown demand rather than risk a legal battle over something of relatively low interest to readers. But what happens five years later when the subject of the disappeared blotter entry runs for city council?

An ineffective remedy

The bill manages to be both overbroad and ineffective. Once news is reported, the bell can’t be unrung. Articles are archived, cached, screenshotted, reposted, and republished by everyone from legitimate wire services to bots. From the Internet Archive’s collection of television news to TikTok influencers reading the newspaper, there are innumerable ways news spreads online.

While the internet makes erasure of news impossible, it also makes corrections far more effective than they used to be. Whereas in the old days, corrections buried in subsequent newspaper editions were easily overlooked, news outlets can now prominently display them as part of the original erroneous article. But that assumes the original article still exists.

By pushing publishers to permanently delete entire articles, the bill leaves no place for news outlets to append a correction or retraction to the original piece. People who read an article and don’t know it was later deleted will not be able to find the correction and will have no reason to doubt the accuracy of what they read.

And let’s not forget the “Streisand Effect,” the phenomenon once experienced by the famous singer where legal actions to suppress news end up amplifying it instead. The first time a news outlet censors itself to comply with the law, journalists and press freedom organizations are going to write about it. We sure will.

We saw that dynamic play out in the aforementioned Mississippi case. The judge’s unconstitutional order created a media firestorm, calling far more attention to the editorial than it otherwise would have received, and other newspapers stepped up to republish the original editorial as a show of solidarity. Eventually, the judge and city were forced to back down, and the newspaper put the editorial back on its website.

What happened to tort reform?

As Block of the First Amendment Foundation wrote in his testimony for Wednesday’s hearing, SB 752 “would embolden unscrupulous lawyers and flood the courts with frivolous lawsuits. … Lowering the bar for defamation claims serves only to empower trial lawyers at the expense of press freedom.”

Florida, like many other states, has laws on the books to combat strategic lawsuits against public participation, or SLAPPs — abusive lawsuits filed by the wealthy and powerful to harass their critics with the threat of legal fees. So why pass legislation that would have the opposite effect? SB 752 would incentivize baseless accusations of defamation in hopes of getting articles taken down, by plaintiffs who know they won’t ultimately prevail in court.

James Lake, a partner at the Tampa law firm Thomas and LoCicero who focuses on media law, stated in his testimony to Florida’s conservative legislature that, as a registered Republican, he is proud of Florida’s progress on reducing frivolous litigation in state courts. But SB 752 would “undermine the benefit tort reform has done,” he told the committee.

It’s almost as if the Floridians who want to weaken defamation defenses and encourage censorship only like tort reform when it stops people from suing them — not so much when it stands in the way of their suing their critics into silence.

This is the second in our series of Q&As with people who have firsthand experience with the Texas Citizens Participation Act. Read the first Q&A with Carol Hemphill here.

ProPublica’s Charles Ornstein knows a thing or two about why laws protecting reporters from meritless lawsuits are so important.

In 2018, Dr. O.H. “Bud” Frazier sued Ornstein and another reporter, Mike Hixenbaugh, over an article they wrote reporting both on Frazier’s medical breakthroughs, and on accusations that he violated federal research rules and skirted ethical guidelines.

To defend themselves, the journalists and their outlets turned to the Texas Citizens Participation Act, a law that protects defendants from meritless lawsuits based on speech, known as strategic lawsuits against public participation, or SLAPPs. In 2024, the case was dismissed under the TCPA.

Ornstein has written about the impact of the lawsuit before. But as the Texas legislature considers proposals to change the TCPA in ways that would make it more expensive for SLAPP victims to defend themselves and more difficult to recover their attorneys fees, we wanted to revisit the case and get Ornstein’s take on why these parts of the law matter. Here’s what he had to say.

The lawsuit brought by Dr. Frazier against you took six years and two appeals to resolve. You’ve written about how the litigation wore on you. What were some of the impacts on you, personally, and professionally?

Being sued is a really nerve-wracking process. Every time we were sent a legal document, I felt a huge pit in my stomach. I also quickly learned that the simple fact of being a defendant has a ripple effect. When my wife and I applied for a mortgage, I answered truthfully that I was a defendant in a lawsuit. And even though ProPublica agreed that they would cover any liability within the scope of my employment, I was denied the mortgage and had to scramble to find another lender willing to “take the risk” of having me as a client.

More than that, the way I was portrayed in the legal papers filed by Dr. Frazier bore no resemblance to the careful journalist I have spent my whole career trying to be. Much of my reporting was based on official legal documents, correspondence involving a hospital’s board, federal records and on-the-record interviews. And yet I was portrayed as a callous journalist without regard for facts. It was a vindication when the court ruled that our story was a true representation of the proceedings.

The trial court twice denied motions to dismiss the case under the TCPA. You appealed, and the Court of Appeals said the trial court got it wrong both times and ultimately ordered that the case be dismissed. Under the TCPA, the trial court proceedings were stayed during your appeals. Why is the stay of trial court proceedings important to defendants like you?

The stay is crucial because it freezes the legal process known as discovery. During discovery, Dr. Frazier could have sought to depose us or try to obtain our reporting materials, including sensitive information about our sources. We might have had to fight over any agreements involving anonymity. For journalists, the ability to keep our sources confidential is a key reason people feel comfortable talking to us. If a plaintiff can force a journalist to identify a source before a final decision has been made on the TCPA motion, sensitive information could be disclosed unnecessarily. That’s not only unfair to journalists, it’s also unfair to whistleblowers and those who want to make their workplaces better and safer by trusting journalists with their stories. And remember the stay is not permanent. If the higher courts determine the lawsuit has a sound basis, discovery can begin. Also, it’s worth noting that our records were under a legal hold, meaning we couldn’t destroy them. So there was no risk that the records wouldn’t be there if discovery did begin.

If a plaintiff can force a journalist to identify a source before a final decision has been made on the TCPA motion, sensitive information could be disclosed unnecessarily.

A new proposed bill would remove the automatic stay of proceedings during certain appeals of the denial of a TCPA motion, meaning that discovery and other trial proceedings could go forward while the case is on appeal. How would you and your co-defendants have been impacted if you had to continue your case in the trial court even as you were appealing it to the Court of Appeals?

As mentioned above, the idea of simultaneously being deposed and producing records while also trying to work on legal pleadings to prove the case was baseless would have been a lot for us and our lawyers. It also could have had a chilling effect on sources. The trial court judges in our case made clear errors of law in their rulings. In one instance, the judge adopted findings of fact written by the plaintiff even though we had established some of the evidence cited was mischaracterized by the plaintiff.

How much does a lawsuit like the one brought against you cost to defend, and why is it important that defendants who win a TCPA motion be able to recover the money they spend defending themselves?

These cases are so expensive. News organizations like ProPublica must take them incredibly seriously. Even with libel insurance, which we have, no news organization wants to lose a suit involving stories that are true and which were reported with integrity. Even if you win, they can cause premiums to go up, making it even more expensive to publish journalism in the public interest, as we do.

Recouping some of the funds it takes to defend against baseless suits to offset attorneys costs can be so important to cash-strapped newsrooms, and it hopefully acts as a deterrent for those who think that the mere threat of a lawsuit can head off a story they may not like. It’s fair to say that lawsuits like this cost many hundreds of thousands of dollars because, remember, it went up and down the Texas court system twice before being finally dismissed.

A new proposed bill would change the TCPA to make the award of attorneys fees to a winning defendant discretionary instead of mandatory. As someone who successfully used the TCPA to defend yourself but also had a trial court that ruled against you twice, do you have concerns about giving trial courts the option of denying fees to prevailing defendants?

Of course I do because, remember, the trial courts in our case erred twice in not throwing the case out under TCPA. The appeals court finally did that. If a lawsuit is determined to be baseless, the plaintiff should be required to pay for the attorney fees. (As I mentioned above, this can be extremely expensive as these cases can drag on for many years, even with the anti-SLAPP law.) If the whole goal is to reduce frivolous suits, then a finding that a suit was frivolous should automatically result in an award of attorney’s fees.

If the whole goal is to reduce frivolous suits, then a finding that a suit was frivolous should automatically result in an award of attorney’s fees.

Do you think that weakening or repealing anti-SLAPP laws like the TCPA threatens journalism and free speech, and if so, why?

There’s a misperception that only journalists want anti-SLAPP laws. That’s not true. Businesses and others whose public participation can be seen as a threat want them, too. Speaking the truth should not subject you to drummed-up lawsuits, endless legal proceedings, and legal fees that, without an organization like ProPublica behind me, could have bankrupted me. Truthful articles like ours should be celebrated, not threatened, and weakening laws like TCPA sends the absolute wrong message.

Prosecutors in Lake County, Indiana, might not intend to advance the Trump administration’s agenda by pursuing charges against photojournalist Matthew Kaplan.

They may think that when Gary police officers broke up a Jan. 18 protest of the incoming administration’s immigration policies, journalists like Kaplan were obligated to leave too.

But they’re wrong about the law — journalists have a constitutional right to document police conduct during protests and their aftermath. And their error (assuming it is one) is a gift to Trump and his anti-press and anti-immigration agendas. They need to reverse course and drop the case.

Freedom of the Press Foundation (FPF) Director of Advocacy Seth Stern explains in an op-ed in the Post-Tribune.

Dear Friend of Press Freedom, 

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

Hands off Texas’ anti-SLAPP law

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

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

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

Sunsetting Section 230 would stifle free speech

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

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

‘Fox & Friends’ no friend to press freedom

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

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

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

Make surveillance information public

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

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

What we’re reading

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

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

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

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

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

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

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

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

Come see us in Chicago

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

How to share sensitive leaks with the press

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This is the first in our series of Q&As with people who have firsthand experience with the Texas Citizens Participation Act. Read the second Q&A with ProPublica’s Charles Ornstein here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sen. Dick Durbin’s effort to repeal the law that protects online platforms from legal liability for users’ posts seems to be well-intentioned. Durbin thinks it’ll help combat child sexual abuse materials, fentanyl, and other undoubtedly awful things.

But as Freedom of the Press Foundation (FPF) Director or Advocacy Seth Stern writes for the Chicago Sun-Times, “the road to censorship is paved with good intentions.”

Stern writes that “Every parent, myself included, worries about social media. But repealing Section 230 will only empower the worst offenders and bankrupt their competition. Using a cudgel where a scalpel is needed is Trump’s game. Democrats can do better.”

You can read the op-ed here.

Dear Friend of Press Freedom, 

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

Hostile takeover of press pool drowns First Amendment

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

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

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

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

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

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

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

The National Archives and the Trump administration

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

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

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

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

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

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

What we’re reading

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

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

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

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

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

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

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

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

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

How to share sensitive leaks with the press

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

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

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

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

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

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

What is a pool reporter exactly?

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

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

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

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

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

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

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

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

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

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

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

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

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

Do you have anything else to add?

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

FOR IMMEDIATE RELEASE:

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

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

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

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

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

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

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

You can read the groups’ letter here or below.

Please contact us if you would like further comment.

Dear Friend of Press Freedom, 

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

Inexcusable censorship in Mississippi 

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

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

Trump hides migrant detention away at Gitmo

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

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

Journalists: Post public records without paywalls

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

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

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

Hostile takeover at National Archives erodes our right to know

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

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

Five things to know about SecureDrop

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

What we’re reading

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

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

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

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

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

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

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

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

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

FOR IMMEDIATE RELEASE:

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

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

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

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

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

Please contact us if you would like further comment.

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

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

Vogus wrote:

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

Read the whole op-ed here.

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

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

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

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

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

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

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

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

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

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

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

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

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

Dear Friend of Press Freedom, 

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

First Amendment law legend: ‘Fight back’

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

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

Hypocrisy as deep as the Gulf of Mexico

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

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

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

National Archives under threat 

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

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

UK spy order imperils First Amendment

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

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

Privacy policy update

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

What we’re reading 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“The suit is from Mars.”

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

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

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

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

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

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

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

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

Dear Friend of Press Freedom,

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

Prosecutor puts DOGE ahead of First Amendment

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

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

Judges: Stop facilitating Trump’s extortionate settlements 

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

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

Freelance journalists are journalists 

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

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

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

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

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

What we’re reading

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

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

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

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

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

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

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

How to share sensitive leaks with the press

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