Freedom of the Press

Do not enter! Access to the Google antitrust trial in federal district court in Washington, D.C., pictured above, has been severely restricted. Thanks to the efforts of journalists and news outlets, that’s starting to change. Washington DC - USA - panoramio (10) by Paulo JC Nogueira is licensed under CC BY-SA 3.0 DEED.

On Monday, Google CEO Sundar Pichai testified as the star defense witness in the landmark antitrust trial against his company. And surprisingly — for this trial, at least — the public could actually watch his testimony.

That shouldn’t be unusual. American trials are supposed to be open to the public. The Google antitrust trial, however, has been marred by an unusual level of secrecy.

But now, eight weeks into this historic trial, it appears that the parties and the court may have finally learned some lessons about transparency. Better late than never — and thanks to the work of journalists and news outlets — public access to trial testimony, exhibits, and transcripts in the Google antitrust trial is improving.

Top secret testimony

One of journalists’ main complaints at the beginning of the trial was the amount of secret witness testimony. By mid-October, for example, witnesses testified at least partially in secret on seven days of the trial. At one point, “the Court excluded the public from the courtroom for the entire day,” according to a legal motion filed by The New York Times and other news outlets.

The media coalition also complained that the court wasn’t giving the press and the public enough notice of courtroom closures and the chance to object.

In response to the motion, Judge Amit Mehta instituted a new procedure that requires the parties to notify the court the night before if they believe testimony will need to be given in secret the next day. If the court gets such a notice, it will notify the public on the trial docket and hear objections to sealing in the morning.

Since then, there’s been just one notice posted on the public docket that sealed testimony is expected. It could be a coincidence — or it could be that requiring the parties to actually think about whether secrecy is needed and to announce plans for secret testimony in advance successfully discourages unnecessary sealing of witnesses’ testimony.

Undisclosed exhibits

The lack of access to trial exhibits has also frustrated journalists. While the government initially posted some of the exhibits online, it stopped after Mehta chastised it. Then, with Mehta’s approval, the government began posting exhibits again, but only selectively and sporadically.

Enter the media coalition again. Its motion asked Mehta to require all the parties to give the public access to trial exhibits in full and to make them available as soon as possible after they’re used in court.

In response, Mehta created another new process going forward that lets the press request exhibits from the parties, to be provided within two to four business days, depending on whether they contain any confidential information. Mehta’s order also set deadlines for the parties to provide copies of exhibits previously used and not yet available to the public.

Still, some transparency issues with exhibits persist. For example, attorney Megan Gray, who has been closely watching the trial, told me that some of the exhibits Pichai reviewed while on the stand weren’t shown to the public during his testimony, and it's not clear if the exhibits will be redacted when they’re entered into evidence.

Out-of-reach transcripts

In the absence of any video or audio livestream of the trial, journalists who couldn’t attend in public were left to rely on the written transcripts to understand what happened each day. But daily transcripts are incredibly expensive. One courtwatcher estimated that transcript costs would be “in the tens of thousands of dollars” by the end of the trial. That puts them out of reach for many journalists and members of the public who want to follow the trial.

Early in the trial, some journalists and observers considered the possibility of sharing transcripts or even posting them publicly but were hesitant due to vague rumors that they were somehow prohibited from posting them online. (When I called the court reporter’s supervisor’s office, the person who answered the phone wasn’t able to tell me whether any rule prohibited the posting of trial transcripts online.)

Now, in a victory for transparency, the investigative news outlet The Capitol Forum has begun posting the daily trial transcripts on its website. Teddy Downey, executive editor, told me the outlet began posting the transcripts to increase public knowledge about the trial. “The media can’t be there all the time, and ordinary citizens can’t reasonably be expected to attend,” Downey said. “This was the only way we could ensure there was broad public access to the trial proceedings.”

The transcripts provide a wealth of information for reporters or others who want to follow the day-by-day developments but can’t be in the courtroom in person. While a livestream of the trial would be better (and there’s no reason for court rules that forbid it), access to daily transcripts is the next best thing.

Fight for your right of access

These changes have significantly increased public access to the Google antitrust trial. But they probably never would have happened without public pressure on the court and legal filings demanding greater access.

As this case shows, the public and the press’s right of access to our justice system can’t be taken for granted. When courtroom doors are closed, journalists and news outlets must push them back open.

“Food Lion - Clarksville, VA” by Virginia Retail is licensed under CC BY 2.0 DEED.

If you’ve gone to journalism school in the last quarter century you’ve likely heard of the Food Lion case. A federal appellate court found that journalists who got jobs at Food Lion grocery stores to investigate food safety violations breached a duty of loyalty by misleading Food Lion and trespassed by entering employee areas they accessed under false pretenses.

Often presented to young journalists as a cautionary tale, the landmark case significantly slowed the once relatively common practice of “undercover” journalism. Lawyers who thought that the subjects of news reports could not recover damages in court as long as the facts reported were true, now saw a new risk: punitive damages based on newsgathering methods, as opposed to the content of the reporting.

As a result, hidden-camera and other surreptitious investigations were largely abandoned by many mainstream outlets and are now often associated with fringe (and often disreputable) platforms.

Appellate court says never mind

But this year, the Fourth Circuit — the same appellate court that decided Food Lion — all but overruled itself. The change of mind came in a case in which the People for the Ethical Treatment of Animals, or PETA, and others challenged a North Carolina “ag-gag” law against undercover investigations at agricultural facilities.

The appellate court agreed that the law could not be weaponized against constitutionally protected newsgathering. Freedom of the Press Foundation joined a brief by the Reporters Committee for Freedom of the Press supporting PETA’s position.

The government argued that the ag-gag law was passed to codify the Fourth Circuit’s decision in the Food Lion case. But the appellate court said that’s irrelevant because, in hindsight, Food Lion was wrong. As the North Carolina Supreme Court had already recognized, the journalists acting as food-counter clerks did not breach a duty of loyalty to the grocery chain and, therefore, could not have trespassed, because Food Lion let them in.

And this month, the Supreme Court declined to review the case. That leaves Food Lion seriously weakened if not dead altogether.

Food Lion’s significance was always overstated. While a jury verdict awarding Food Lion over $5.5 million in damages made headlines, the judge cut the damages to $315,000 and then the appellate court cut the total to a whopping $2.

One of the reasons lawmakers in North Carolina wanted to codify the case was so future Food Lions could recover real money. If Food Lion began as a $2 case, few would have given it much thought. But by the time the appellate court cut the damages (and by the time the North Carolina Supreme Court said that the Fourth Circuit got it wrong), the harm was already done by the publicity around the initial verdict.

There’s no telling how many stories the public missed out on as a result of the changes to journalism — both legal and cultural — brought about by Food Lion. We’re a long way from the days when a news outlet might go as far as to open a fake tavern so they could report firsthand on city officials’ shakedown attempts.

Don’t rush to put your hidden cameras back on

To be clear, we’re not suggesting that journalists everywhere start submitting false job applications and wearing hidden cameras. Please, talk to a lawyer before you do anything like that.

The PETA case clarified that the ABC journalists didn’t owe Food Lion a duty of loyalty when working as food-counter clerks, but the court might have viewed the issue differently if, for example, they’d falsely applied for a more senior role. There have been other cases decided and laws passed since Food Lion that may affect journalists’ rights in different jurisdictions. State laws on recording conversations without consent can also vary widely.

Unfortunately, cases involving unsympathetic outlets, which have taken the lead on undercover investigations since Food Lion, tend to yield bad outcomes. Last year, a federal jury in Washington, D.C. found Project Veritas liable after its operatives used fake names and backstories to obtain internships with Democratic consulting firms.

And the Ninth Circuit Court of Appeals held last year that the First Amendment did not protect anti-abortion activists who gained access to Planned Parenthood personnel by posing as exhibitors from a fake company. The Supreme Court also declined to review that decision, which relied on a questionable attempt to distinguish damages allegedly caused by the activists’ deceptive conduct itself from those caused by their subsequent publications.

And there may be ethical issues with surreptitious newsgathering even when it’s legal. The Society of Professional Journalists’ Code of Ethics advises journalists to “Avoid undercover or other surreptitious methods of gathering information unless traditional, open methods will not yield information vital to the public (emphasis added).”

But do consider if there’s a place for stealth journalism

But we do think it’s worth noting that journalists have been limiting their reporting techniques for decades based, at least in part, on an incorrect ruling that has essentially been rescinded.

And the PETA case isn’t the only recent crack in the supposed black-and-white rule that journalists can be punished under “generally applicable” laws. The Department of Justice recently admitted that protest dispersal orders need to accommodate journalists so they can report on the aftermath of a dispersal. The NYPD similarly agreed in a settlement to stop dispersing journalists covering protests.

Perhaps this is indicative of a broader acceptance that, especially with petty offenses like trespass, the public good of enforcing generally applicable laws needs to be weighed against the public harm of silencing journalists.

These days, everyone from political campaigns to sports leagues to government agencies is sealing off people and spaces to which the press used to have access, and the press’s response has often been limited to complaining in editorials. Perhaps it’s time for the press to — carefully and in close consultation with legal counsel — think creatively about ways to get in through the back door when newsmakers won’t let them in the front.

A recent decision from a D.C. appeals court requires reporter Catherine Herridge to face a contempt order before she can appeal a decision rejecting her claim of reporter’s privilege. “201215-D-BN624-0040” by Lisa Ferdinando is licensed under CC BY 2.0 DEED.

Reporters must risk fines or even jail time before they can appeal orders requiring them to name a confidential source, according to a recent decision from a federal appeals court in Washington, D.C.

The decision came as part of an order rejecting former Fox News and current CBS News reporter Catherine Herridge’s attempt to appeal a troubling lower court order requiring her to name a confidential source for her reporting about Yanping Chen, a Chinese American scientist. Chen is seeking Herridge’s source as part of her lawsuit against the FBI for violating the federal Privacy Act by allegedly leaking information about her.

The court said Herridge’s appeal was premature because she hadn’t yet been found in contempt of court for defying the order. (The Reporters Committee for Freedom of the Press has the complete legal lowdown on what the appeals court ordered.)

That may sound like a procedural technicality, but it’s dangerous. Requiring reporters to face contempt before they can appeal may discourage them from insisting on their First Amendment right to protect confidential sources by taking their objection to a higher court.

‘Friendly contempt’ a roll of the dice

Journalists are already under great pressure any time they face a legal demand to reveal a confidential source or other newsgathering material. If they can’t appeal an order requiring them to name a source without facing a potentially large fine or long jail sentence, some may think twice about continuing to resist.

This is especially true for freelancers or other journalists who don’t have the backing of a big news organization and may be on the hook for their own legal fees. As a result, some reporters may comply with orders to reveal sources even in cases they would have won on appeal.

It’s true that courts will often issue a “friendly contempt” order — imposing only a nominal fine — or put a contempt order on hold to allow the journalist to appeal. But reporters shouldn’t have to roll the dice and hope that the judge they’re before will be “friendly” to the press. There are plenty of judges with no love lost for the media, and no guarantee that their contempt order will be friendly.

For example, when Judge Vincent Gaughan ordered Chicago journalist Jim DeRogatis to testify in the 2008 criminal trial of singer R. Kelly on child pornography charges — despite DeRogatis’ invocation of a reporter’s privilege — DeRogatis tried to appeal before he was held in contempt. But an Illinois appellate court rejected his appeal, suggesting that DeRogatis should have sought a friendly contempt order first. (Freedom of the Press Foundation Director of Advocacy Seth Stern was one of the attorneys who worked on the appeal of the reporter's privilege ruling in the Kelly case.)

The only problem? Gaughan was known for his obvious disdain for the press and his battles with the news media over the almost complete secrecy with which he conducted some of Chicago’s biggest cases. He also had a reputation for losing his temper and had actually jailed spectators for contempt during the Kelly trial. (Gaughan later jailed a reporter in another case.) He’d also previously threatened to jail DeRogatis.

It’s not hard to see why DeRogatis may have doubted how “friendly” a contempt order from Gaughan would have been. (DeRogatis ultimately invoked the Fifth Amendment and was not forced to answer questions in the trial.)

Unfortunately, Gaughan is not the only judge who’s expressed or acted on anti-press sentiments. When reporters are ordered to name a confidential source, they shouldn’t have to take a chance that a judge will throw the book at them in order to appeal.

Contempt requirement completely unnecessary

Requiring a reporter to face contempt before they can appeal is also completely unnecessary. Contempt is meant to encourage someone to comply with a court order. If a reporter has made clear that she intends to appeal an order to reveal a confidential source, there’s no reason to actually impose a fine or jail sentence on her to try to force compliance with the order before the appeals process plays out.

Contempt orders serve no purpose in cases where a journalist invokes reporter’s privilege, and may actively undermine the exercise of First Amendment rights.

But the rule requiring a contempt order before an appeal isn’t inevitable. Some states take the more sensible approach of allowing reporters to appeal orders requiring them to testify or produce documents without waiting to be held in contempt. There’s no reason not to do the same in federal court.

After journalist Mike Elk sued the NewsGuild, the country's largest union for news professionals, in a Pennsylvania court, the NewsGuild issued discovery requests that may cause significant and unnecessary harm to the reporter's privilege. Court of Common Pleas - Allegheny County Courthouse, Pittsburgh by Tony Webster is licensed under CC BY 2.0.

When prosecutors and litigants seek to unmask journalists’ confidential sources, it’s unfortunate, but not exactly surprising. They’re going to prioritize any advantage they can gain in court over protecting press freedom. But no one expects to see journalists demanding that other journalists out their sources.

That’s why it raised eyebrows when the NewsGuild, the country’s largest journalists’ union, recently asked a judge to force a reporter to do just that.

The demand arose from a lawsuit by journalist Mike Elk against the NewsGuild and its officials in Pennsylvania. Elk claims, among other things, that the union defamed him after he notified it of sexual harassment allegations against a former official.

The NewsGuild, which denies Elk’s allegations, demanded Elk’s communications with the sources who told him about the harassment claims. It also sought his email conversations with former New York Times columnist Ben Smith, who reported an alleged disparaging statement by union officials about Elk, which Elk cites in his lawsuit. When Elk didn’t comply, the union filed a motion asking the judge to order him to produce his source communications notwithstanding the reporter’s privilege. Poynter reports that Elk objected last week.

A dangerous precedent

The NewsGuild is taking the position that because Elk brought the lawsuit he “waives his privilege where his sources have information that goes to the heart of the NewsGuild’s defense.” If that becomes the law, reporters would have to choose between pursuing their own legal rights and protecting their sources. Journalists shouldn’t need to check their right of access to the courts at the newsroom door.

If the union persists, every lawyer seeking journalists’ sources will argue that “Even the NewsGuild agrees.” And sources will be less likely to talk to journalists if they know the reporter’s privilege goes out the window if the journalist ever decides to sue someone. Notably, neither of the 1970s cases the NewsGuild relies on are from Pennsylvania courts. That means the NewsGuild may be risking making new law in Pennsylvania that is adverse to its own members.

Of course, the NewsGuild is entitled to aggressively defend itself against Elk’s claims. It contends they’re meritless and for all we know they may be right. But it also needs to keep in mind its raison d'être. The NewsGuild itself has rightly condemned defendants’ efforts to out sources, even when the offender (Starbucks) specialized in selling coffee, not protecting the press. The NewsGuild called Starbucks’ discovery “dangerous,” even though its requests were directed to employees and union organizers, not journalists. It proclaimed that “journalists’ communications with sources must be protected.”

Union officials have said Elk requested journalists’ communications first. That claim seems to reference broadly worded discovery requests from Elk that don’t expressly carve out privileged communications. But there’s a world of difference between issuing catchall discovery requests (every lawyer does that) and specifically asking a court to order a journalist to reveal sources.

If Elk’s requests were too broad, the NewsGuild could have objected to them to the extent they called for privileged records. Elk has not filed any motion specifically seeking source communications, and even if he had, that’s no excuse for the NewsGuild to overstep too.

To be fair, Elk did file a defamation claim, and defamation lawsuits themselves can threaten press freedom. We’re not endorsing Elk’s decision to file that claim. We wish he hadn’t. But a union has a greater responsibility to protect the interests of the entire press than does a single journalist.

It’s also unclear what the NewsGuild hopes to learn through broad discovery into Elk’s source communications. What light could those records shed on whether the union and its officials, for example, made defamatory statements about him or breached a confidentiality agreement? Smith’s reporting identifies his source for the remarks Elk claims defamed him, so we’re unsure what Elk’s own communications with Smith could add.

A fishing expedition is not worth sacrificing journalists’ rights. If there are specific communications that the NewsGuild believes are nonprivileged and vital to its defenses, then it can amend its requests to narrowly target those records without asking the court to adopt a broad exception to the reporter’s privilege. That would at least limit the risk of the union setting precedent that is harmful to its members.

Expand the reporter’s privilege instead

If even a journalists’ union will compromise its press freedom principles to gain an edge in court, we certainly can’t trust government lawyers (or ordinary litigators with no particular attachment to press freedom) to restrain themselves from doing so.

In both criminal and civil cases, a lawyer’s job is to leave no stone unturned. They can be expected to keep demanding source materials unless either the law or their client tells them not to.

That’s why we’ve long advocated for an expansive reporter’s privilege at both the state and federal level. And so has the NewsGuild (which, notwithstanding this incident, has done plenty of great work defending journalists). As the NewsGuild itself once put it: “The ‘reporter’s privilege’ greatly enhances journalists’ ability to inform the people. Infringements on this privilege will harm the public.”

We hope the NewsGuild still sees it that way and reconsiders this dangerous path. If not, we hope NewsGuild members will urge union leadership to reverse course.

Strong encryption is key to protecting newsgathering. "x-email-encrypted" by Electronic Frontier Foundation is licensed under CC BY 2.0.

Saturday is Global Encryption Day, a worldwide effort to protect end-to-end encryption and defeat proposals that try to undermine it, such as bills in the U.S. that are ostensibly aimed at protecting children online, but could end up making the internet massively less safe for everyone by discouraging end-to-end encryption.

End-to-end encryption is critically important to journalists’ ability to protect confidential sources and newsgathering materials. That’s why Freedom of the Press Foundation (FPF) is so concerned about proposed legislation that would discourage platforms from offering it. Earlier this month, FPF, the ACLU, and Americans for Prosperity organized a panel of experts from the worlds of business, domestic violence prevention, and journalism to talk to congressional staff about why encryption matters to so many different people.

One of those experts was Susan McGregor, associate research scholar at Columbia University’s Data Science Institute and co-chair of its Center for Data, Media & Society. In recognition of Global Encryption Day, we asked McGregor to answer a few questions via email about how and why encryption matters to journalists.

What are some examples of reporting that encryption helped with or made possible?

The truth is that encryption supports all kinds of reporting. While national security reporting like the Panama Papers is something that I've studied in depth and often gets a lot of attention, the reality is that encryption is at least as important for essential accountability reporting at the local and regional levels as well. Whether it’s reporters covering local and state elections, agricultural and labor practices, or smaller newsrooms setting up tiplines, encryption — and the technologies that employ it effectively — are critical to securing journalists' communications with sources and each other.

So then it’s not just reporters on the national security beat using encryption?

No, not at all. In addition to being important for protecting the information that journalists are provided by all types of sources, encryption is key to making sure that information and communications within news organizations are kept safe as well. Unfortunately, there are a growing number of examples of aggressive tactics being used against news organizations doing important local investigations, and encryption is crucial for allowing them to protect their work.

Some argue we should have a “backdoor” that lets law enforcement access end-to-end encrypted messages in emergencies or for criminal investigations that meet a certain threshold.

What is sometimes described as a "backdoor" for law enforcement is really just another word for “key.” In important ways, encryption “locks” information; “keys” are used to “unlock” that information. The problem with having multiple keys is that it’s possible for any one of them to fall into the wrong hands more easily. Though it would be great if we could trust that these extra keys would only be accessible to the “right” people at the “right” time, the reality is that even very valuable keys of this type have been stolen in the past. And of course, if the people you're investigating have access to that key, it’s going to be an even bigger problem.

If encryption is weakened or eliminated, are there other ways for journalists and confidential sources to protect themselves from surveillance?

While there are ways to protect journalist-source communications without encryption, the result would be even less effective reporting at the local and regional levels, because the effort and cost of reporting safely would go up dramatically, and many important stories simply wouldn’t be possible. The truth is that you can’t really use any digital technologies securely without encryption, so losing strong encryption would basically eliminate effective reporting on technology products and companies, for one. But even where one could theoretically replace digital tools with analog alternatives, the scope of what newsrooms could cover safely would still be reduced dramatically.

What alternatives should lawmakers consider for protecting children and others online without weakening or outlawing encryption?

Let's be clear: Encryption is necessary for protecting everyone who has or will have an online life, including — if not especially — children. Without encryption, it would be impossible for anyone to have truly private digital communications of any kind. Given the current rapid advances in AI, essentially any image or video, no matter how innocuous, can be manipulated into something harmful or exploitative — and without encryption, bad actors will have unfettered access to basically any digital image or video in existence. For anyone concerned about protecting children's safety and development, that is a terrifying prospect. Lawmakers truly concerned about protecting children need to focus their efforts on supporting methods for identifying harms to and providing support for children before they are harmed in the first place, not on approaches that wait for evidence of that harm to make it to the internet or anywhere else.

President Biden and Australian Prime Minister Anthony Albanese are expected to discuss Julian Assange's prosecution during next week's Australian state visit. Hopefully Biden and his administration will think seriously about the threat the prosecution poses to all journalists. "Julian Assange August 2014" by David G Silvers. is licensed under CC BY-SA 2.0.

Every time we talk about Julian Assange’s prosecution we hear the same thing from his critics: Assange is “not a journalist” and therefore his case has nothing to do with press freedom.

Sometimes they say it’s because he did not contextualize the documents Wikileaks published, or because of his radical political views, or because they think he’s a “hacker.” Other times it’s because of unsubstantiated claims the disclosures put American lives at risk. Still other times it’s due to allegations that — years after the events at issue in Assange’s indictment — he collaborated with Russia to help Donald Trump get elected.

Let’s assume all of that is true (it’s not). None of it is relevant under the main law being used to prosecute him, the Espionage Act. Here’s why the Assange prosecution endangers press freedom and puts all journalists at risk, even if you don’t think Assange is one himself.

The charges are about newsgathering, not Russia, Trump, and the DNC

First, we should get this out of the way: Assange’s indictment has absolutely nothing to do with the 2016 election.

The words “Russia,” “Trump,” “Clinton,” and “the 2016 election” are never mentioned. The Espionage Act charges against Assange are entirely about his obtaining and publishing documents in 2010 — more than six years earlier — from whistleblower Chelsea Manning. Those documents include war logs from Afghanistan and Iraq, State Department cables, and files on Guantanamo Bay prisoners. The government decided against indicting Assange in connection with the 2016 publication of DNC emails due to lack of evidence.

In other words, the charges are about journalistic newsgathering, not alleged Russian collusion. They’re a threat to journalists who have never talked to a Russian.

94% of the charges are about acts of journalism, not ‘hacking’

The Justice Department and Assange’s critics have taken great pains to portray Assange as a hacker rather than a journalist. Here’s what they usually leave out: The Espionage Act counts – which are 17 out of the 18 charges in the indictment – have nothing to do with hacking or a “conspiracy” to hack anything.

The government does not allege in those charges that Assange helped Manning “hack” any of the documents Manning sent to WikiLeaks. Instead, they accuse him of speaking with Manning over encrypted channels, asking her questions, convincing her to give him documents, receiving documents, holding on to them, and then publishing those documents. In other words, acts journalists engage in every day.

If Assange is convicted under any of those 17 charges it will create a standalone precedent against routine newsgathering. Convicting journalists in the future for similar activities would not require the government to also prove “hacking.”

The Espionage Act doesn’t exempt conventional journalists

The Espionage Act is a shockingly broad law that essentially criminalizes “willfully retaining” or “communicating” national defense documents to those not authorized to receive them. Whether Assange followed journalistic standards is irrelevant because the law, at least on its face, criminalizes this conduct from everyone: journalists and non-journalists alike. And despite its name, it does not require any accusations of “espionage.”

The indictment accuses Assange of illegally “inducing” or “abetting” Manning into giving him defense documents by speaking with her and asking questions. Under that theory, reporters at The Washington Post face exactly the same risk as Assange when they speak to sources, convince them to hand over documents, and ask questions. They can masterfully analyze and contextualize source documents and still be indicted for the same reasons Assange is charged with for publishing them without comment on Wikileaks.org.

That is exactly why the Obama administration decided against indicting Assange before the Trump and Biden administrations changed course. They hated WikiLeaks more than anyone, but reportedly cited “the New York Times problem” in declining to prosecute. There was no way to charge WikiLeaks without opening the door for prosecution of the nation’s most recognizable newspaper.

The only reason conventional journalists have not yet been tried under the act is because, so far, officials have opted not to go down that road — whether out of principle or fear of backlash. There have been plenty of close calls. Officials from the Nixon, Ford, Reagan, and George W. Bush administrations all considered prosecuting journalists under the act. Nixon even convened a grand jury to indict The New York Times and its reporter over the Pentagon Papers.

Ultimately, none of them pulled the trigger. But it would be foolish to assume future presidents also won’t, especially when Trump — who leads in some swing state polls — is openly threatening to jail some journalists and investigate others for “treason.” Convicting Assange would give Trump the perfect legal excuse to pursue his anti-press ambitions.

The Espionage Act is not concerned with the public good vs. ‘harm’

Many believe Assange deserves what’s coming to him because he allegedly put troops in harm’s way, despite the long history of similar government claims proving baseless. That, they claim, distinguishes him from more “responsible” journalists.

First of all, journalists cannot be required to prove their publications don’t create risks or endanger anyone in order to be protected by the First Amendment. That kind of thinking opens the door to mass censorship based on government claims of nebulous dangers.

But it wouldn’t matter if Assange definitively proves Wikileaks did not endanger or harm anyone. The government could even say in its opening statement at trial that Assange is a journalistic hero who courageously exposed heinous war crimes — and a jury could still convict him.

That’s because under the Espionage Act, neither good intentions nor positive outcomes are a defense, or even a mitigating factor. That means other journalists who publish government secrets can’t take any comfort in the fact they’re not alleged to have endangered anyone’s life (and who’s to say they won’t be falsely accused of exactly that).

It’s about journalism, not journalists

The bottom line is that the First Amendment protects acts of journalism, not just people with “journalist” on their LinkedIn profiles. The actions Assange is charged with — seeking out, obtaining, and publishing government secrets — are undisputedly journalistic acts. If you’re not convinced, ask the world’s leading newspapers.

No matter how much you might dislike Assange, his conviction would enable future administrations to target the journalists you do like. Even if your favorite journalists never end up being charged, the mere possibility will force them to tread cautiously when investigating government secrets.

As much as many may want to see Assange punished, the price of trying and convicting him is an existential threat to press freedom. It’s not worth it.

At a time when disinformation is running rampant, KOSA will cause social media platforms to remove real journalism. "Texting Congress 1" by afagen is licensed under CC BY-NC-SA 2.0.

Lawmakers in both parties and the White House are pushing the Kids Online Safety Act, or KOSA, a bill that would require online platforms to mitigate harms like anxiety and depression to minors as a solution to the alleged dangers the internet poses to teens. But more than 90 LGBTQ+, human rights, and civil liberties organizations already oppose KOSA, arguing it will make kids less safe.

It will also make kids — and everyone else — less informed, as Freedom of the Press Foundation (FPF) Deputy Advocacy Director Caitlin Vogus explains in Tech Policy Press:

Many news outlets reach people through social media, and half of Americans say that they use social media sites as a source of news at least sometimes. But if KOSA passes, platforms will strip news from their services as they try to comply with the law.

Some platforms may intentionally remove news content, which they may consider both depressing and anxiety-producing. But even if they don’t remove the news on purpose, platforms will inevitably end up taking it down by accident as they try to moderate other content. Content moderation tools are blunt instruments that don’t understand context or nuance. Platforms will erroneously flag and remove news reports about suicide, eating disorders, illegal drugs, and other topics KOSA covers.

Read more in Tech Policy Press about how KOSA will cause platforms to overremove news content and censor important information that kids need to know.

A federal court in North Carolina that entered a blatantly unconstitutional gag order on the press in February may have just done it again. federal courthouse, asheville, north carolina by Aimee Dars Ellis is licensed under CC BY-NC-SA 2.0.

A federal court in Asheville, North Carolina, may have entered one of the most egregiously unconstitutional gag orders against the press we’ve ever seen — for the second time. The order arguably purports to bar the entire media from reporting about a University of North Carolina student who was expelled over sexual abuse allegations.

We say “may” because, as discussed below, the order is ambiguous as to whether it intends to silence the press or whether only UNC is gagged. But even if the court did mean to exclude the press from the order, and inadvertently failed to say so, the effect is the same: a constitutionally intolerable chilling effect on journalists’ ability to report news without fear of punishment.

The February gag order

The student, litigating under “Jacob Doe,” is suing UNC over its handling of the abuse allegations against him. In February, a judge granted his request for a temporary restraining order that required UNC to not only refrain from discussing the case itself but to inform media outlets that they’re barred from reporting anything about Doe, including the university disciplinary proceedings against him.

Freedom of the Press Foundation (FPF) joined the ACLU of North Carolina and UCLA First Amendment law professor Eugene Volokh in filing a brief opposing the unconstitutional order. As we’ve explained time and again, the Supreme Court has made clear that prior restraints on publication, if ever permissible, require an extraordinary emergency. The court has never upheld a prior restraint on the press, even when the government claimed national security risks.

And of course, judges have no jurisdiction to order unnamed media outlets that aren’t parties to any matter before them to do anything, let alone stop the presses. Whichever outlets were “prohibited from publishing” were never afforded any hearing or opportunity to assert their rights.

At the time, the student surprised everyone by agreeing to drop the gag order just days after it was entered. We all thought that was the end of that. But then …

The October gag order

According to court documents, someone recently filed a public records request with UNC that put Doe at risk of being publicly identified. Doe responded with a motion for a restraining order virtually identical to the February one — including the gag on the media.

FPF again joined the ACLU of NC in filing a brief on Monday opposing the motion and pointing out the numerous constitutional and jurisdictional problems with broad judicial censorship of nonparty media outlets. But on Wednesday, the court granted the motion.

This time, the conclusion of the court’s order only expressly silences UNC. But the order also says it grants the student’s motion without qualification and without any carve-out for the press. And the court further says its reasoning is the same as in February, implying an intention to achieve the same result.

Journalists — like the rest of us — will be left scratching their heads in trying to figure out the court’s intentions. Does the gag order only prevent UNC from releasing information about Doe, or does it apply to the press? The journalists at FPF’s U.S. Press Freedom Tracker, for example, read the order as a prior restraint on the press, and we agree that that’s the most reasonable reading.

Every judge knows how to grant only part of a motion (i.e., “Plaintiff’s motion is granted in part and denied in part.”). When a judge omits language to that effect, despite having likely used it dozens of times in their career, it’s logical to assume the omission was intentional.

What’s next?

So what are journalists to do, now that there may be a court order purporting to bar them from reporting the news?

While it may be courageous for journalists to just ignore unconstitutional censorship orders (as some have in similar situations), it’s likely journalists will think twice before reporting on the case and risking punishment. Even if they know that judges have no power to hold unnamed, nonparty reporters in contempt, how can they trust a court that so drastically overstepped constitutional boundaries at least once, and possibly twice?

To avoid self-censorship by the press, the court should, at the very least, clarify its order so that journalists know whether or not it intended to silence them. If it didn’t, the clarification would eliminate the chilling effect, and if it did, it would allow journalists and press freedom groups to pursue legal challenges.

But the court would be better off reversing course altogether and withdrawing the order, which is improper even if it was intended to only gag UNC. The law requires UNC to comply with North Carolina’s public records laws unless the exceptions written into the law apply. Judges have no power to create their own exceptions to open records laws passed by elected lawmakers by ordering government agencies not to comply with them.

And this needs to happen fast. Normally temporary restraining orders like this one remain in effect for a short time (14 days under North Carolina law), pending a full hearing on whether to make them permanent. But the judge assigned to Doe’s case (the one who entered the unconstitutional February order) is away through at least the end of October, and the judge who issued the new gag order in his stead says it will remain in effect until he’s back.

That’s unacceptable in a case with such serious First Amendment ramifications. As the Supreme Court has explained, "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."

Kalamazoo Public Library, via Flickr.

Late one night nearly a decade ago, an anonymous source contacted journalist Bastian Obermayer: “Hello. This is John doe. Interested in data? I’m happy to share.” This cryptic message was the start of the Panama Papers investigation, the Pulitzer Prize-winning series of exposés based on a trove of leaked documents from the Panamanian law firm Mossack Fonseca revealing tax fraud and other financial misdeeds of the rich and powerful.

If not for encryption, however, the Panama Papers may never have been published. The source, concerned about threats to their life if their identity were revealed, insisted on using encrypted channels to talk to reporters and share data. The hundreds of journalists who collaborated on the investigation through the International Consortium of Investigative Journalists also relied on encryption to protect their source and collaborate remotely on a global scale.

But now a trio of bad internet bills before Congress threatens the very journalists who rely on encryption to safely and securely communicate with confidential sources for important reporting on national security, local news, corporate malfeasance, and more.

The EARN IT Act, the STOP CSAM Act, and the Kids Online Safety Act, or KOSA — all with the worthy goal of protecting children online — each would make it legally risky for tech companies to offer end-to-end encryption. That's the form of encryption in which only the sender and intended recipient can read a message, and which offers some of the strongest protections for both journalists and sources.

If any of these bills pass, platforms may stop offering encryption altogether. That would make everyone — including journalists and their sources — less safe when they communicate online.

When the EARN IT Act was introduced in a past Congress, for example, the popular encrypted messaging service Signal wrote that it may not be able to operate in the U.S. if the bill became law. EARN IT has morphed from its original form since then, but its threat to encryption remains. Not only would EARN IT allow states to hold platforms liable for offering encrypted services under state law, but the bill specifically says that the use of encryption can be one piece of evidence to prove a platform’s liability.

Similarly, STOP CSAM also creates a legal nightmare for platforms that offer encryption, as the ACLU explained in a letter joined by Freedom of the Press Foundation (FPF) and dozens of other groups. The bill encourages platforms to scan their services for child sexual abuse material, or CSAM, by opening them up to liability for hosting CSAM even if they lack actual knowledge of the CSAM on their service. (Federal law already makes it illegal to help spread CSAM knowingly.) As the ACLU explains, a platform could be found liable merely because a court decides it was reckless to offer end-to-end encryption knowing that it can be used to spread CSAM.

Finally, PEN America and others have sounded the alarm about how KOSA would “result in the disappearance or degradation of end-to-end encrypted services” by forcing platforms to choose between filtering content to comply with the law or offering encryption. KOSA requires platforms to take action against content that the government says is “harmful” to kids, such as content likely to make them anxious or depressed. Not only does this provision raise serious First Amendment concerns, but it also encourages platforms to weaken or stop offering encryption entirely, so they can comply with their new duty to identify “harmful” content and stop it from reaching kids.

Protecting children from CSAM and other online harms is important. But it’s ironic that in bills meant to protect children, Congress could heedlessly and unnecessarily undermine the end-to-end encryption that is one of the strongest protections for online security and privacy, including for children.

Hindering encryption is bad for kids, reporters, and the public. Quite simply, without the confidentiality that end-to-end encryption provides, the next whistleblower with Panama Papers-level information probably won’t be “happy to share.”

Two new cases will call on the Supreme Court to interpret fundamental First Amendment protections for the press. "File:Panorama of United States Supreme Court Building at Dusk.jpg" by Joe Ravi is licensed under CC BY-SA 3.0.

There’s plenty for journalists to complain about when it comes to social media platforms. Harassment of journalists runs rampant, online ads bleed revenue from local news outlets, and some platforms have shut out news entirely. But when it comes to two new cases before the Supreme Court, journalists and the news media must stand up for platforms’ First Amendment rights — or risk undermining their own.

NetChoice v. Paxton and Moody v. NetChoice both involve the First Amendment right of platforms to engage in content moderation, or enforcement of rules around what users can say on a social media service. These cases have the potential to reshape First Amendment rights online. But they could also impact the First Amendment rights of journalists and news organizations, by teeing up the court to reconsider fundamental First Amendment protections for the press.

At issue in both cases is the court’s decision in Miami Herald v. Tornillo, a landmark free press decision from 1974. In Tornillo, the court struck down a Florida law that gave candidates for office a right to publish an answer to a newspaper’s criticism of their “personal character or official record.” It held that the First Amendment prevents the government from regulating newspapers’ exercise of “editorial discretion,” i.e., decisions about what to print and how to cover newsworthy issues. Without this protection, the court said, the government could censor what people are allowed to read and know.

In the NetChoice cases, the platforms argue that under Tornillo, the First Amendment also protects their right to decide what content to host or remove. The Fifth Circuit rejected this argument and upheld the Texas law prohibiting platforms from removing content based on the poster’s viewpoints. But the Eleventh Circuit struck down a similar Florida law and agreed that the platforms’ content moderation decisions are constitutionally protected exercises of editorial judgment. Now, the Supreme Court will decide whether and how Tornillo applies to platforms’ content moderation.

The court’s decision has the potential to weaken Tornillo’s protections for editorial discretion — not just for social media platforms, but for the traditional news media, too. For example, if the court decides that Tornillo doesn’t apply to platforms because they’re too dissimilar to print newspapers, as the Fifth Circuit held, that could have troubling implications for modern news organizations.

Online news sites and journalists who publish on blogs or social media today also operate differently from print newspapers of the past. For example, they’re not subject to the same space limitations that can make it difficult for physical newspapers to print candidates’ rebuttals. But those differences don’t mean their decisions about what to publish or not are any less deserving of First Amendment protection.

The same is true for social media platforms. A lot of content moderation requires making nuanced judgment calls about what falls on one side of a platform’s rules or another: Is a post impersonating someone fraudulent or is it satire? Does a post contain forbidden sexual content or is it sex education? And even if a post doesn’t violate any rules, platforms are free to decide what content they want to carry, just like book stores can choose what books to sell.

These are precisely the kinds of editorial decisions that Tornillo held are protected. Just like the government can’t tell a newspaper it must print a politician’s reply to criticism, it can’t tell a platform it must carry particular content. On the flip side, the government also can’t forbid a newspaper from publishing or a platform from hosting content that’s legal, like hate speech or disinformation, both of which are constitutionally protected speech. (Of course, we’re all still free to use our First Amendment rights to condemn newspapers or platforms that decide to publish or host that content.) If the court undermines this principle for platforms in the NetChoice cases, it could also undermine it for the press in the future.

And while politicians may be going after social media for “anti-conservative bias” today, those same attacks threaten the news media. For example, former (and perhaps future) President Donald Trump hasn’t been shy about his desire to go after broadcasters that he views as being “too liberal.” As president, Trump suggested the government could revoke NBC and other broadcasters’ licenses in retaliation for unfavorable reporting. More recently as a candidate, Trump has promised to investigate Comcast for “treason” if he’s re-elected, claiming the reporting of its subsidiaries NBC News and MSNBC is “dishonest and corrupt.”

There are a lot of legal problems with Trump’s plan to revoke broadcast licenses based on content, as his own FCC chair pointed out when Trump first threatened NBC. But if the court accepts Texas and Florida’s arguments in the NetChoice cases — that market “dominance” can justify government limits on editorial decision-making power — it could also diminish First Amendment protections for broadcasters and other news outlets at a perilous moment for the news media.

The court will also consider another First Amendment issue in the NetChoice cases: the constitutionality of provisions requiring the platforms to tell each user when their content is moderated. While we’re all for voluntary transparency, this kind of government-mandated transparency raises First Amendment concerns. Depending on how the court resolves this second issue, its decision could open the door to future transparency mandates aimed directly at the press.

Although social media platforms and journalists can be at odds, for now their First Amendment fates may be bound. Journalists and news outlets shouldn’t be shy about defending the platforms’ First Amendment freedoms in the NetChoice cases, no matter how upset they may be about some platforms’ recent attitudes towards the press. The news media’s own rights may depend on it.

Yuma, Arizona police arrested and assaulted journalist Lucas Mullikin for legally recording them and requesting a badge number. He's the latest journalist who had to accept a "deferred prosecution" deal to get rid of baseless charges against him.

Screenshot of body camera footage released by Yuma Police Department

Prosecutors pushing frivolous cases against journalists have a little-known trick in their bag: deferred prosecution agreements. Rather than dismiss charges arising from unconstitutional arrests, they offer journalists a “deal” to throw out the case in, say, one year, as long as they behave themselves. Sometimes they even charge the journalist a fee for the privilege.

That’s what recently happened to Arizona journalist Lucas Mullikin. When he tried to record a violent trespassing arrest by the Yuma police in May, an officer illegally shoved him away from the scene and threw him to the concrete. The entirely inappropriate level of force was made more egregious by the fact Arizona courts had already ruled that a law trying to restrict how closely people could record police officers was unconstitutional.

But the last straw was when Mullikin got off the ground to demand his assailant’s badge number. “You’re under arrest,” the officer responded, before assaulting the journalist yet again.

For that, Mullikin was charged with resisting arrest and failing to obey officers. He told the U.S. Press Freedom Tracker that prosecutors first offered him a “deal” that would’ve required him to spend 40 days in jail. When he declined, the next offer was a “deferred prosecution” agreement whereby charges would be dismissed so long as Mullikin isn’t arrested again for a year. If he is, prosecutors are free to resume the case. Mullikin accepted those terms in September.

It’s understandable why a freelance journalist like Mullikin would agree to a deal like that rather than risking jail time and paying lawyers to fight the charges. But the potential chilling effect on journalism is obvious. To avoid prosecution Mullikin needs to make sure he’s not arrested again by the same police department that already demonstrated its willingness to handcuff him for doing his constitutionally protected job. How could he not at least think twice about hitting “record” if he witnesses more abuses by police?

Mullikin was also forced to pay a $500 “deferred prosecution fee” despite not pleading or being found guilty. Prosecutors must think calling it a “fee” rather than a “fine” lets them evade double jeopardy if they end up prosecuting Mullikin. But if it’s not a fine then what’s the basis for the charge? Authorities can’t have it both ways — either double jeopardy bars further prosecution or they effectively sentenced Mullikin without due process (or both). Mullikin has said he’s considering filing a lawsuit over his violent and unconstitutional treatment by Yuma police — let’s hope he recovers far more than $500.

Arizona isn’t the only state playing these games with journalists’ constitutional rights. New York photojournalist Stephanie Keith also accepted a deferred prosecution agreement in August. It was her easiest way to get rid of a baseless case arising from her photographing officers at a vigil for Jordan Neely in May. Chief of Patrol John Chell said at a press conference that Keith had somehow interfered in three arrests but video from the vigil showed no such thing. The New York City Civilian Complaint Review Board has reportedly opened an investigation.

Rather than dropping the baseless case like they should have, prosecutors offered Keith a deferred prosecution agreement whereby charges will be dismissed if Keith doesn’t get in further trouble for six months. But that’s cold comfort as long as the New York Police Department considers recording cops to be troublesome in the first place.

Police departments that wrongly arrest journalists for doing their jobs need to own up to it, apologize, and discipline the officers involved — not abuse their leverage to attempt to extract obedience and money from journalists they know did nothing wrong.

But that only seems to happen in cases that get enough attention to embarrass officials. As we’ve said before, the national media needs to cover cases like Mullikin’s and Keith’s so prosecutors stop getting away with taking advantage of independent journalists.

Over 50 organizations sent a letter demanding transparency over the FBI's May raid of journalist Tim Burke's home newsroom. The government's failure to explain how it believes Burke's newsgathering broke the law threatens to chill reporting by journalists who dig for news online.

Courtesy of Tim Burke

FOR IMMEDIATE RELEASE:

An FBI raid on the home newsroom of Florida journalist Tim Burke in May prompted over 50 organizations to send a letter to the Department of Justice today demanding transparency about how the government believes Burke’s newsgathering broke the law. Burke is perhaps most well known for his 2013 reporting for Deadspin that revealed that Heisman Trophy winner Manti Te'o's girlfriend, and her supposed death, were a hoax.

The FBI raided Burke’s home after he obtained outtakes of Tucker Carlson’s interview with Ye (formerly known as Kanye West) where Ye made antisemitic and other offensive remarks. The investigation, according to court filings, involves alleged violations of the Computer Fraud and Abuse Act, or CFAA, and a federal wiretapping law. The letter notes that concerns about efforts to criminalize journalism under computer crime laws are heightened by the August police raid of the Marion County Record over a reporter verifying a news tip using a government website.

The CFAA is the federal anti-hacking law that prohibits unauthorized access to a computer. But Burke says he got the outtakes from websites where Fox News uploaded unencrypted live streams to URLs anyone could access, using publicly accessible login credentials. “If that’s true, it’s highly problematic for press freedom,” said Freedom of the Press Foundation (FPF) Advocacy Director Seth Stern. “Journalists cannot be expected to refrain from using the internet to find newsworthy content just because powerful companies would prefer to keep it private.”

The public does not know exactly why prosecutors believe Burke broke the law because the government fought successfully to keep the affidavit supporting the search warrant sealed from public view, and authorities have not issued any meaningful public comment. This lack of transparency is why FPF, Florida’s First Amendment Foundation and the American Civil Liberties Union took the lead on the coalition letter.

The letter is also signed by national organizations including the Committee to Protect Journalists, Reporters Without Borders, PEN America, the Electronic Frontier Foundation, and the Society of Professional Journalists, as well as broadcast media giants like Nexstar Media Group and Gray Media Group. Advocates from Burke’s home state, like the Florida Press Association and Florida Association of Broadcasters, also joined.

In addition to the lack of transparency, the letter takes issue with prosecutors’ arguments that Burke is not actually a journalist, in part because he did not work for an established news outlet at the time he obtained the outtakes. Burke has a long history in journalism. In addition to his reporting on the Manti Te’o hoax, Burke was also behind the widely circulated 2018 video compilation showing dozens of Sinclair Broadcasting Group anchors reciting the same script.

But even putting aside Burke’s background, the letter explains that “Courts have rightly warned against limiting the First Amendment’s press clause to established media outlets — a warning that is especially important as technological advances give rise to new forms of journalism while traditional news outlets close their doors at alarming rates.”

The organizations behind the letter raise concern — and demand answers — regarding whether the government’s apparent belief that Burke was not a journalist led it to eschew procedures for searches of journalists’ newsgathering materials required under the federal Privacy Protection Act of 1980 and the DOJ’s own policies. Those policies were revised last year to better protect journalists’ rights in light of Trump-era abuses.

“The public relies on a fair and free press as protected by the First Amendment. Law enforcement policies and laws must support journalists’ rights to investigate and report on important matters of public interest, such as corruption, misconduct, and abuse of power, without fear of retaliation or censorship,” said Jennifer Granick, surveillance and cybersecurity counsel with the ACLU Speech, Privacy, and Technology Project. “This case, as with the recent raid on the Marion County newspaper, shows that we must do more to protect our journalists from abuses of power.”

“We need to make sure that rules meant to protect the newsgathering process are being followed and American traditions safeguarding a vibrant free press are not being abandoned for judicial and prosecutorial convenience, whether by a local police department in rural Kansas or the FBI in Tampa,” said Bobby Block, executive director of the First Amendment Foundation.

“Journalists need to know where the DOJ draws the line between computer savviness and computer crime,” said FPF Deputy Advocacy Director Caitlin Vogus. “Otherwise, they’re going to refrain from digging for news online out of fear that if they do their jobs a little too well they might be investigated or prosecuted.”

“We are concerned about the lack of transparency around federal investigators' raid on the home of journalist Tim Burke. The Justice Department should unseal the affidavit in this case and provide the public with an explanation as to why they conducted the raid in the first place,” said Katherine Jacobsen, U.S. and Canada program coordinator for the Committee to Protect Journalists.

“It is always critical for the Society of Professional Journalists to stand up for the First Amendment rights of all journalists, whether newsroom staff employees, student journalists or freelancers. Any government agency’s attempt to infringe upon those First Amendment rights must be fought to ensure there is no chilling effect for other journalists. We stand behind Mr. Burke and his request for the immediate return of his devices from the Federal Bureau of Investigation,” said Ashanti Blaize-Hopkins, national president of the Society of Professional Journalists.

You can read the full letter here or below.

The judge who authorized the illegal warrant under which police raided the Marion County Record happened to be a lawyer. But she didn't have to be. Kansas and other states allow non-lawyer judges, often called magistrates or justices of the peace, to decide matters with important press freedom implications.

MarionCoCH.JPG by Spacini at English Wikipedia (https://upload.wikimedia.org/wikipedia/commons/9/99/MarionCoCH.JPG) is licensed under CC BY-SA 3.0 (https://creativecommons.org/licenses/by-sa/3.0/deed.en)

Laws are only as good as the judges tasked with upholding them. And lately, journalists across the U.S. have learned that the legal protections they thought they could rely upon often exist only on paper. But what they may not realize is that, in many states, some judges deciding their constitutional rights aren’t even required to go to law school.

The August raid of the Marion County Record, purportedly to investigate whether a journalist illegally accessed driving records, is illustrative. The warrant application failed to mention the federal law -– the Privacy Protection Act of 1980, or PPA — that bans newsroom searches except in limited, inapplicable circumstances. It also ignored Kansas’ shield law and the federal Drivers Privacy Protection Act, or DPPA, expressly allowing records to be used for research.

The judge who approved the warrant anyway, Laura Viar, is now the subject of a judicial ethics complaint, while journalists investigate her background and potential conflicts. Viar was chosen by a local “nominating commission” to serve as a “magistrate” judge in November 2022 — less than a year before she issued the warrant, which was withdrawn by county attorneys within days.

Viar happens to be a lawyer — but she didn’t have to be in order to become a magistrate judge. In Kansas, anyone with a high school degree who passes an exam can take the bench and issue search warrants. Local magistrate judges — known as justices of the peace in some states — generally serve rural areas, which are often news deserts (fortunately, Marion is an exception). That means the local press is unlikely to serve as a check to stop nominations of unqualified judges. And when those judges enter unconstitutional rulings, struggling outlets may not have the means to appeal.

The Marion ordeal led lawmakers in Kansas to introduce a bill to prevent magistrates from issuing warrants. Hopefully it succeeds, but Kansas is far from the only state that empowers magistrates to trample on press freedoms.

In Arizona this April, Judge Amy Criddle issued a restraining order against journalist Camryn Sanchez at the request of a state senator. The senator, Wendy Rogers, claimed Sanchez stalked her by knocking on her door while investigating whether she lives in her district. In what should have been a glaring red flag, Rogers told the judge her goal was for the reporter to “learn their lesson and then leave the situation alone.”

Like Viar, Criddle is a lawyer, making her ridiculous restraining order all the more inexcusable. But the state leaves it up to cities to decide whether to require municipal judges like Criddle — who have the power to issue warrants, as well as restraining orders — to be lawyers.

And there’s more: Sanchez’s recourse following Criddle’s order was to appeal to another municipal judge, Howard Grodman. Fortunately, Grodman, also a lawyer, got it right and struck down the restraining order, correctly citing its obvious constitutional problems. But Arizona law makes it entirely possible that the next journalist hit with an unlawful restraining order or warrant will have to go through two unelected nonlawyers before they can get in front of a judge with some understanding of the First Amendment (not to mention obscure laws, like the PPA and DPPA, that many experienced lawyers haven’t even heard of).

Other states where any adult resident is eligible to issue warrants and restraining orders against journalists (or anyone else) include Texas and Mississippi. Still others go even further, allowing nonlawyer judges to convict and sentence defendants charged with misdemeanors. That, too, should concern journalists, especially considering the recent convictions of two reporters for violating a park curfew by recording newsworthy police conduct at night.

That said, you may have noticed that the judges discussed in this article are lawyers, even if they’re not required to be. And plenty of other legally trained judges have issued blatantly unconstitutional orders against journalists. Take, for example, the North Carolina judge who recently seized a reporter’s notes and gagged her from reporting a juvenile court hearing she lawfully attended. Law school didn’t stop that judge from ignoring the 1977 Supreme Court case that pondered the exact same scenario and sided with the journalist. Or, consider the St. Louis judge who recently barred a newspaper from publishing documents it lawfully downloaded from the court’s website, again in defiance of clear Supreme Court precedent.

Clearly, then, eliminating nonlawyer judges from the lower courts won’t solve all the judiciary’s problems. Judges don’t grapple with journalists’ rights every day, and even experienced trial judges need training on how to do so. Plenty of lawyers, after all, go their whole careers without litigating a case involving journalists.

But proposals like the one in Kansas to at least require a law degree are a good place to start and will encourage further scrutiny of judicial nominees’ qualifications to decide constitutional questions. And, hopefully, they can prompt some much-needed conversation around why judges — lawyers or not — can’t seem to get press freedom right these days.

Justice may be blind, but when it comes to our legal system, the public isn’t meant to be. Yet access by journalists and others to the most important antitrust trial in recent years has been severely limited.

“JMR-Memphis1.jpg” (https://en.wikipedia.org/wiki/File:JMR-Memphis1.jpg) by Carptrash is licensed under CC BY-SA 3.0 (https://creativecommons.org/licenses/by-sa/3.0/deed.en).

Before a single witness could utter a word of testimony in the Google antitrust case on Tuesday, the public and the press were temporarily barred from the courtroom. It’s just another step in a long list of anti-transparency measures styming access to the case: documents and testimony have been repeatedly sealed; exhibits used in open court have been removed from the internet; and only those who can actually make it to the courtroom are permitted to listen to the testimony (when they’re allowed in at all, that is).

Despite these restrictions, reporters and courtwatchers have been doing their best to inform their audiences about the trial. But if the federal judge presiding over the case, Amit Mehta, doesn’t act soon to stop this tsunami of secrecy, people may be left mostly in the dark about the biggest antitrust lawsuit of the 21st century.

Behind this anti-transparency push are Google and other big tech companies arguing that letting people observe the case fully could reveal trade secrets or otherwise embarrass them by generating “clickbait.” There is some precedent for closing parts of trials or redacting court documents to avoid disclosing trade secrets. But not to save corporations from embarrassment. Virtually every trial has the potential to embarrass someone.

Nevertheless, Mehta has repeatedly yielded to the companies’ demands to shield the trial from the public and the press. Here are three ways Mehta has chosen secrecy over access.

Capitulating to corporate secrecy claims

During pretrial discussions about what documents and proceedings should be kept secret, Mehta suggested he would defer to the tech companies’ claims that public access would cause them competitive harm. No one, he explained, understands the industry and the markets like the companies. Maybe so, but companies don’t understand the First Amendment the way federal judges do — or, at least, should.

But a judge’s job isn’t to simply accept a party’s claim that public access to a trial would cause the sky to fall. Imagine, for example, that courts had acceded to tobacco companies’ demands to keep court records proving the dangers of smoking under seal. Instead, judges should skeptically examine parties’ justifications for secrecy (which are often completely illegitimate) and only permit sealing if the presumptive right of access to court proceedings is overcome by a compelling reason. By deferring to the companies’ claims of financial harms, Mehta has abdicated his role as the protector of the public’s interest in open court proceedings.

Criticizing making public documents…public

Mehta has also scolded the government for putting trial exhibits online, saying he should have been told about the posting first. But exhibits entered into evidence are public records. There’s no reason a judge should be informed before they’re posted publicly, since there’s nothing he could do to order them to be removed — at least not legally. Rather than reproach the government, Mehta should applaud it for taking actual steps to improve people’s access to court proceedings for a change.

After Mehta’s reprimand, the government unfortunately caved and removed the exhibits from its website. It’s now asked the court for permission to publicly post new trial exhibits at the end of each day, but Google wants a 24-hour delay before posting. There’s no reason for any delay in posting these trial exhibits, and courts have said that people have a contemporaneous right of access to court records. But by demanding that the government ask for permission to give the public documents that are by law public records, Mehta has opened the door for delay.

Barring broadcast of trial testimony

Finally, Mehta denied a request to broadcast audio of the trial, meaning that only those who are within commuting distance of the courthouse can follow it live. Reporters and others who can’t attend the trial in person must rely on expensive transcripts or news reports. That’s better than nothing, but it’s no substitute for live audio, which can reveal nuances in witnesses’ tone or demeanor that can’t be captured in writing.

Mehta’s hands were tied by a new Judicial Conference policy that prohibits the audio broadcasting of civil trials with witness testimony, despite the success of those permitted on an emergency basis during the COVID-19 pandemic. It’s an unfortunate example of how the new policy is already rolling back access to civil trials that were afforded during the pandemic.

By repeatedly ruling in favor of secrecy, Mehta is rapidly undermining the public’s trust in the judicial system and the eventual outcome in this case. As the Supreme Court recognized more than 40 years ago, “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” Unless Mehta allows for more openness soon, we all will find it hard to trust the antitrust trial of the century.

The raid of the Marion County Record prompted some to ask whether the Record's aggressive journalism was appropriate for a small town. We wrote for the Columbia Journalism Review that the fact that question was even asked shows how the decline of local news has warped perceptions of the role of the press.

Kansas Reflector/Sherman Smith. Used with permission. Original image available at https://kansasreflector.com/2023/08/16/with-return-of-marion-county-record-equipment-the-time-has-come-for-answers-and-consequences/

Last month’s police raid of the Marion County Record’s newsroom and its publishers’ home sparked nationwide outrage. But some also questioned whether the Record may have been asking for trouble through its aggressive approach to small-town reporting.

We wrote in the Columbia Journalism Review that the reason for the misguided debate over the role of newspapers in small towns like Marion is:

"not because newspapers like the Record are crossing the line by agitating small-town officials [but] because those officials have grown unaccustomed to healthy scrutiny. And perhaps some of their constituents have forgotten the benefits of a robust Fourth Estate.

….

The prevalence of “news deserts” has apparently led some to think it’s normal for neighborhood news outlets to function as lapdogs rather than watchdogs."

You can read the full article here.

Body camera footage shows police slamming journalist Lucas Mullikin to the ground and arresting him after he asked for the badge number of an officer who had previously assaulted him for recording an arrest. Unlike arrests of journalists employed by major news outlets, the story has gotten little national attention.

The New York Times, CNN, and many other national outlets reported on NewsNation journalist Evan Lambert’s arrest at a news conference in Ohio earlier this year. Same when Phoenix police detained Wall Street Journal reporter Dion Rabouin outside a bank.

We’re glad those arrests made headlines — if anything, they should have gotten more coverage. The publicity prompted Phoenix’s mayor to apologize to Rabouin for his detainment and Ohio’s governor to denounce Lambert’s arrest while authorities dropped the charges. Without the backlash, who knows — his case might have proceeded to trial.

But since a video posted last week showed police in Yuma, Arizona, arresting freelance journalist Lucas Mullikin for lawfully recording a violent arrest and asking for the badge number of an officer who assaulted him (police have since released bodycam footage), we’ve heard crickets from the national media.

When Atlanta officers twice detained independent journalists documenting protests over the “Cop City” police training center, the only outlet to cover the stories (besides our U.S. Press Freedom Tracker), as far as we can tell, was the Atlanta online outlet Saporta Report.

And when police arrested Asheville Blade journalists Matilda Bliss and Veronica Coit for recording them evicting a homeless encampment at a public park, you couldn’t find coverage outside North Carolina. Only after they were unjustly convicted (they’re appealing) did the national media begin to take some interest — and even then, few outlets covered the case in any detail. The Tracker is full of additional examples of journalist arrests that went unnoticed.

It’s unfortunate that so many major news outlets only seem concerned with police harassment of journalists when the victim is one of their own. Maybe the trend has less to do with what journalists care about than what business people think readers will click on. Whatever the reason, though, it creates the appearance that the mainstream media is less concerned with press freedom than with protecting members of their club. And that’s terribly shortsighted.

The protection of the First Amendment’s press clause isn’t only for journalists who are employed full time by a well-known news outlet. Nor is it limited to journalists who graduated from J-School or who strive for “objectivity” (a concept that was unheard of when the First Amendment was drafted). The Constitution is meant to safeguard the rights of anyone engaging in acts of journalism — not just professional journalists.

The other side of that coin is that reporters who do work for major media powerhouses are nonetheless bound by legal precedents set by cases involving everyone from freelancers to bloggers to citizen journalists, regardless of whether they consider them their journalistic equals. If Bliss and Coit’s convictions are upheld on appeal, that means no journalist in North Carolina can legally record cops at parks after curfew, just like if Julian Assange is convicted for obtaining and publishing government secrets, the Washington Post could be next.

And as established news outlets continue to shrink and shutter, more and more of the law on press freedom is going to be shaped by cases involving unconventional journalists from outside the bubble. They may not have the funds to mount effective legal defenses (and may not know about the free legal resources available to them), so it’s especially vital that journalists who do have national platforms use them to help stop prosecutions before they start.

The August raid of the Marion County Record was a noteworthy exception — it made national news even though the Record is far from a household name. That was likely due to the sheer outrageousness of an entire police force ransacking a local newsroom and publisher’s home, as well as the raid’s tragic aftermath (the paper’s elderly co-owner Joan Meyer died after the raid, seemingly from shock). The public’s interest in the story proved readers do care about press freedom violations, even when they haven’t heard of the victims.

Would stories about less dramatic incidents in places like Asheville and Yuma get the same spotlight as the reporting on the Marion raid? To be honest, probably not. But they might help journalists retain the legal protections that allow them to write the stories that do.

Since May, an unconstitutional prior restraint has stopped the St. Louis Post-Dispatch from publishing a court record that the government accidentally made public.

"File:St. Louis Post-Dispatch (4820144198).jpg" (https://commons.wikimedia.org/w/index.php?curid=85503658) by Paul Sableman is licensed under CC BY 2.0 (https://creativecommons.org/licenses/by/2.0/?ref=openverse).

A St. Louis judge doubled down on an unconstitutional prior restraint last week, extending her previous order prohibiting the St. Louis Post-Dispatch from publishing a mental health evaluation of a man accused of killing one police officer and injuring another.

In an op-ed in the St. Louis Post-Dispatch, Freedom of the Press Foundation (FPF) Deputy Advocacy Director Caitlin Vogus and First Amendment attorney Steve Zansberg explain the laundry list of errors in Judge Elizabeth Hogan’s latest order.

Vogus and Zansberg wrote:

“Prior restraints — laws or court orders barring the publication of information — are the most extreme, and least tolerable form of censorship. … Prior restraints on the press threaten our democracy by allowing the government to control the media landscape.

The Supreme Court has repeatedly said that they are almost always unconstitutional, striking down attempts to stop publication over and over again. Perhaps most famously, in the Pentagon Papers case, the court rejected attempts to prevent newspapers from printing a secret government history of the Vietnam War given to them by whistleblower Daniel Ellsberg. …

Hogan’s ruling, however, doesn’t bother to grapple with Supreme Court precedent, perhaps because that court has never upheld a prior restraint on the press.”

Spyware like the NSO Group’s Pegasus poses severe risks to journalists and their confidential sources.

Blogtrepreneur via Flickr, CC BY 2.0.

News broke last week that exiled Russian investigative journalist Galina Timchenko’s phone was infected with NSO Group’s Pegasus spyware while she was in Berlin and went undetected for more than four months. It’s an alarming reminder of just how important it is for journalists everywhere to remain vigilant about threats to their digital security and to take steps to secure their devices and communications.

It’s also a reminder to Americans who care about press freedom that we must continue to push our government to do more to combat Pegasus.

Pegasus gives governments access to photos, notes, and encrypted communications stored on a phone. It can even use a phone’s microphone and camera to turn it into a listening device. Once infected, journalists’ phones can reveal their confidential sources and details of unpublished investigations.

Disturbingly, Pegasus has been found on the phones of journalists and their associates hundreds of times, including on the phone of the fiancée of Jamal Khashoggi, the Washington Post columnist brutally murdered by the Saudi Arabian government. In fact, journalists are consistently among the most frequent targets of Pegasus and other spyware used by governments, according to Citizen Lab, the leading civil society organization researching Pegasus. The founder of NSO Group once even defended the use of the software to hack journalists.

NSO Group claims it won’t allow Pegasus to be used in the United States. We have our doubts, especially since the FBI has acknowledged purchasing Pegasus. But even if Pegasus was never used to target a single phone in America, it still threatens press freedom here. For one thing, foreign governments have used Pegasus to target journalists who work with U.S. news outlets from abroad, like Khashoggi and others.

Even if governments only targeted journalists who work exclusively for foreign news organizations, it would still chill reporting that Americans rely on. Americans often watch or read non-U.S. news outlets to learn about world events or get a different perspective on U.S. news. For instance, Timchenko writes for Meduza, whose English-language website provides independent reporting about Russia’s war on Ukraine for a global audience.

While the U.S. government has taken some steps to restrict Pegasus’s funding and access to technology and dry up the market for commercial spyware, it must do more.

Under President Joe Biden, the Commerce Department added NSO Group to a government blacklist that makes it harder for it to do business in the U.S. or with Americans. But NSO Group has been furiously lobbying officials to reverse that decision, and there’s no guarantee a future administration would keep it on the blacklist. So we need legislation that permanently bars sharing technology with or providing funds to companies that create spyware that targets journalists, human rights activists, and dissidents.

The government must also enforce laws that criminalize the use of spyware like Pegasus against journalists and others. For example, the government could use the Computer Fraud and Abuse Act, or CFAA, or other computer hacking laws to prosecute NSO Group, rather than try to use these laws to go after journalists. In the absence of criminal prosecutions, U.S. courts should recognize civil claims under the CFAA against NSO Group, such as the case brought by the Knight First Amendment Institute on behalf of journalists at a Salvadoran news outlet whose iPhones were infected with Pegasus spyware.

Biden also signed an executive order prohibiting the government from using commercial spyware implicated in human rights abuses. But there’s nothing in the order to stop the U.S. government from using spyware it creates itself against journalists or others. Such an easily circumvented “ban” on spyware is really no ban at all. The U.S. should ban government use of any spyware against journalists and other human rights defenders.

These measures may not be the golden bridle that ultimately tames Pegasus. After all, there’s only so much impact that the U.S. can have on spyware created by a foreign corporation and used by foreign governments. But there’s undoubtedly more the U.S. government could be doing to rein in Pegasus, or any spyware that threatens freedom of the press, no matter where it’s deployed.

Londres (Reino Unido), 18 de Agosto 2014

Tomorrow a delegation of Australian politicians from across the political spectrum will descend upon Washington, D.C., to attempt to persuade U.S. officials to finally drop the prosecution of Julian Assange. Assange is also expected to be a major focus of an official state visit by Australia’s Prime Minister Anthony Albanese in October.

It’s nothing short of a national embarrassment that foreign officials have to explain to our government that prosecuting a publisher for work that helped expose war crimes is a threat to the First Amendment. Yet that’s where we find ourselves, with Assange set to be extradited to face trial, possibly within weeks. He’s indicted under the Espionage Act, but the charges have nothing to do with spying — rather, he’s accused of obtaining and publishing secret documents from a source, just like investigative reporters do all the time.

As Australian Barrister Greg Barns told the Guardian, “You’ve now got China using the Assange case as a sort of moral equivalence argument. So the message [of the Australian delegation] is going to be: this is very dangerous for journalists around the world and a race to the bottom that’s going on.” We’ve similarly argued that the U.S. loses credibility in opposing Russia’s sham espionage prosecution of Wall Street Journal journalist Evan Gershkovich when it is simultaneously pursuing espionage charges against Assange.

The Australians are far from the first to warn the Biden administration of the dangers of the prosecution. Last November, five of the world’s most respected newspapers wrote to the Department of Justice to explain: “Obtaining and disclosing sensitive information when necessary in the public interest is a core part of the daily work of journalists. … If that work is criminalized, our public discourse and our democracies are made significantly weaker.” And dozens of press freedom and civil liberties groups have urged prosecutors to drop the case.

Seven members of Congress, led by Rep. Rashida Tlaib, called for the end of the prosecution earlier this year, warning it “greatly diminishes America’s credibility” as a defender of journalistic values. We commend them for doing so, but more lawmakers should’ve joined.

Even the Obama administration — no stranger to dangerous Espionage Act prosecutions of whistleblowers — recognized the risks of prosecuting Assange. Prosecutors back then reportedly restrained themselves due to the “New York Times problem” — any criminal theory they could use to charge Assange could be used by a future administration against the Times.

President Trump was, unsurprisingly, less concerned about setting adverse precedents for journalists but, so far, the Biden DOJ has shown no inclination to distance itself from the prosecution initiated by its unabashedly anti-press predecessor. Recent remarks from Secretary of State Antony Blinken appeared to double down on the administration’s stance.

Meanwhile, the repercussions of criminalizing journalism under the overbroad, archaic language of the Espionage Act — which prohibits “willfully retaining” defense documents —- have already begun to play out. The government’s failure to draw a red line against prosecuting routine newsgathering emboldens prosecutors to weaponize against journalists other overbroad statutes, like the Computer Fraud and Abuse Act and state computer crime laws.

After all, if journalists can be prosecuted for obtaining defense documents under the Espionage Act, why can’t they be investigated for “unauthorized” access to public websites under the CFAA? Or, as the Marion County Record recently learned, for accessing a government website to verify a tip? Investigative journalists have no choice but to tread cautiously for fear that, if they do their jobs a little too well, officers might come knocking.

And if it’s this bad now, imagine the climate for investigative journalism if Assange is ultimately tried and convicted.

Of course, any discussion of the Espionage Act these days must acknowledge the elephant in the room — the Espionage Act case against Trump. Trump is also the reason many Democrats are unbothered by Assange’s prosecution — Wikileaks, they argue, helped Trump win the presidency by publishing documents damaging to Hillary Clinton. Assange therefore deserves what’s coming to him, even though his indictment has nothing to do with the 2016 election.

Not only is that view shortsighted when it comes to First Amendment freedoms but its proponents are cutting off their collective nose to spite their face. If you want to see Trump convicted under the Espionage Act, why would you want the government to invite a strong constitutional challenge to the same law by pursuing legally dubious charges against Assange? If a challenge by Assange to the act’s overbreadth were to succeed before Trump is convicted, it would severely weaken prosecutors’ case against Trump. If it succeeds afterward, it’ll give endless ammunition to Trump’s defenders to question the validity of the conviction.

There is no good reason to extradite and try Assange and countless reasons not to, many of which should have long been obvious to an administration that claims to value press freedom. Hopefully, the Australian delegation will succeed where many others have failed and persuade the Biden DOJ to finally drop this un-American prosecution. After that, Congress should repeal or reform the Espionage Act so it can’t happen again.

Lawmakers around the country are revoking contracts to publish public notices or changing laws requiring their publication in newspapers in an attempt to financially freeze out community newspapers that criticize them.

Matt Popovich, via Flickr, CC0 1.0.

A proposal to dump sewage sludge from Austin, Texas, onto ranchland miles away near the Colorado River may have gone unnoticed if not for a public notice printed in the local newspaper. Informed by the public notice of the permit application and outraged at the thought of having some of the 100,000 cubic yards of Austin’s “biosolids” dumped in their backyard, local residents protested, and the dumping company eventually withdrew its application.

Laws requiring public notices to be printed in local newspapers are powerful transparency tools. They’re also a critical source of funding for small newspapers battered by financial losses that are putting them out of business at an alarming rate. Despite these benefits, however, two disturbing trends threaten the public’s right to know.

The first is government officials retaliating against media outlets whose coverage they dislike by threatening or actually revoking contracts to print public notices. This year, for example, the new mayor of Johnston, Rhode Island, yanked a public notice contract from a newspaper days after his inauguration.

The newspaper’s publisher said the mayor had made his displeasure with the outlet’s reporting clear in private meetings and threatened to revoke advertising contracts unless the editor was fired. The mayor denied that the decision had to do with the newspaper’s coverage but then publicly criticized its reporting, including about public corruption.

Retaliation against newspapers using public notice contracts is not new, and it’s happening around the country. It also violates the First Amendment. For example, the Wet Mountain Tribune recently settled a lawsuit it brought against officials in Custer County, Colorado, alleging that officials violated the newspaper’s First Amendment rights by withdrawing their public notice contract in retaliation for critical reporting. The county revoked the contract after the newspaper questioned the decision to appoint a public health official with dubious credentials in the midst of the pandemic.

Perhaps because they’ve learned not to single out specific newspapers for retaliation, some government officials are trying a second tactic: changing laws that require public notices to be published in newspapers altogether. Last year in Florida, for instance, Gov. Ron DeSantis — no friend of the free press — signed a law that gives local governments the option to provide public notices on their websites, rather than in community newspapers.

In another recent example, a quirk of Kansas law has allowed localities to exempt themselves from the state law requiring publication of public notices in local newspapers. Several bills that would eliminate the requirement that public notices be published in newspapers were introduced in other states in 2023.

Some argue that requiring public notices in newspapers is outdated now that they can be posted on government websites instead. But, despite the undeniable decline of print journalism, newspapers remain an important source of information for many, especially older people and people without internet access. The public is also much more likely to happen upon important public notices while flipping through a newspaper than by perusing government websites. Afterall, when was the last time you visited a government website just to browse?

Proponents of these bills also argue that publishing public notices in newspapers is too expensive. Aside from the fact that public notice contracts are a drop in the bucket for many municipalities’ budgets, this argument ignores the significant economic benefit to a community from a local news outlet. Government payments for public notices in local papers provide vital transparency for the public and allow local newspapers to survive. That’s money well spent.

While public notices aren’t usually the most scintillating part of the news, they’re key to newspapers’ financial survival and an important source of information for the public. We’re rightfully outraged when politicians try to silence the press by denying them access to sources or bringing meritless lawsuits. Every community that is still fortunate enough to have a local newspaper must be on alert about the pernicious effects of government officials trying to censor the press through denials of public notice contracts, too.