Freedom of the Press

Charges against ‘Cop City’ protesters frame everything from talking to journalists to using encryption as evidence of criminality.

Chad Davis

Freedom of the Press Foundation (FPF) Advocacy Director Seth Stern wrote for the Intercept about the threats to press freedom posed by Georgia prosecutors’ indictment of 61 opponents of the police training facility that critics refer to as “Cop City.”

Stern explains that prosecutors cite, as evidence of a purported “conspiracy,” everything from protesters talking to the media to publishing anti-establishment literature to using basic digital security practices that shield them from surveillance.

“The implications of the indictment for press freedom may seem like an afterthought considering everything else that is terrible about it,” he writes. “That said, the threat to press freedom is real and shouldn’t be ignored. Any source considering talking to a journalist about a protest or controversial cause couldn’t be blamed for thinking twice after reading the indictment.”

Read the full article here.

Police often seize equipment from reporters outside the newsroom and then refuse to return it after months or years, despite federal and state law largely prohibiting such actions.

Tom Woodward, via Flickr, CC BY-SA 2.0.

When police arrived at the Marion County Record with a search warrant, reporter Deb Gruver tried to use her cellphone to call the publisher. According to a lawsuit Gruver later filed, Marion Police Chief Gideon Cody “snatch[ed] the phone out of her hand.” It was one of the first pieces of equipment seized during the now-notorious raid.

Thanks in part to a national outcry, police (belatedly) returned the Record’s equipment. But other seizures of journalists’ equipment — ones that aren’t part of a shocking newsroom raid — often receive less attention and far worse outcomes.

Here are three other examples of police taking journalists’ equipment. These seizures likely violate federal law, and they certainly chill reporting. Perhaps most disturbingly, in each case, the equipment has yet to be returned — despite the seizure occurring months or even years ago, and no journalist having been convicted of violating any law.

Photojournalists and protests: It’s no secret that police routinely harass and arrest journalists covering protests. Unsurprisingly, journalists are at heightened risk of equipment seizures at protests too. According to the U.S. Press Freedom Tracker, searches and seizures of journalists’ equipment soared in 2020, coinciding with the Black Lives Matter protest movement.

In one example, sheriff’s deputies in Los Angeles County seized photojournalist Pablo Unzueta’s cellphone and camera while Unzueta was documenting a protest over the police killing of Dijon Kizzee, a Black man. Despite repeatedly identifying himself as press, Unzueta was brutally arrested.

Police later obtained a search warrant for Unzueta’s cellphone, apparently without telling the court that he was a journalist and ignoring the Privacy Protection Act of 1980, or PPA, a federal law that provides additional protections against searches of journalists’ equipment. It’s far from the only time police conveniently neglected to mention the PPA in a warrant application to search a journalist’s phone.

The charge against Unzueta was later dropped, and, with a lawyer’s help, Unzueta got his camera and cellphone back. However, police didn’t return his camera’s memory card — which contained two years worth of Unzueta’s freelance work — claiming it was “lost” during his arrest.

Unzueta later settled a civil suit against the authorities. The settlement is an important reminder to police that they can’t arrest and seize equipment from journalists who are just covering demonstrations. But Unzueta still lost years’ worth of work, and the public never saw his pictures showing police violently dispersing the protest.

Charges dropped, equipment held anyway: As in Unzueta’s case, police routinely arrest journalists on meritless charges to stop them from reporting, only to later drop the charges when they might have to defend them in court. While Unzueta got (most of) his equipment back, however, other journalists simply don’t.

For example, in the fall of 2022, police seized a laptop belonging to the Scotio Valley Guardian and the cellphone of Guardian Editor-in-Chief Derek Myers after the newspaper published audio of court testimony from a murder trial given to it by a confidential source. Myers was later charged with felony wiretapping.

Prosecutors left the charges against Myers pending for more than nine months but eventually dropped them in August 2023. However, the laptop and cellphone remain in police custody, even though the seizures likely violated the PPA and state shield law.

Holding equipment like this can prevent reporting in the immediate aftermath of the seizure, as well as chill future reporting. The seizure of the laptop stopped the Guardian from providing an authorized livestream of the murder trial. Myers also told the U.S. Press Freedom Tracker that he was “extremely concerned about the potential search of the devices as they contain sensitive work product and source communications.”

The low-tech seizures: Unzueta and Myers had computers, cellphones, and cameras seized, but let’s not forget about the simple reporter’s notebook. Police sometimes seize — and keep — journalists’ handwritten notes.

For instance, in May 2022, police detained freelance journalist Ryan Fatica while he was covering a protest in Atlanta, Georgia. Fatica was filming the protest and identified himself as a journalist when he was being arrested. Nevertheless, police took his reporting notebook. According to Fatica, an officer “started looking through the notes, then said something like, ‘You’re not getting this back,’ and put it in her pocket.”

Fatica was later released without charges, but his notebook wasn’t returned. He’s far from the only reporter to have his notes seized by authorities. More recently, a North Carolina judge seized notes by a reporter covering a juvenile court proceeding and placed her under a gag order.

Taking reporters’ notes makes it harder for them to accurately report on newsworthy events and raises the risk that law enforcement will learn confidential information about journalists’ sources or other unreported material. It’s also almost always prohibited by the PPA and may be prohibited by state shield laws as well. Unfortunately, government officials seem all too willing to flout the law and seize journalists’ notes anyway.

Not only do each of these equipment seizures violate the law, they also harm the public’s right to know. Without their equipment, reporters can be hamstrung in publishing the news they’ve gathered. When sensitive information contained on equipment falls into the hands of police, it undermines journalists’ ability to gather and report news in the future.

That’s why legal protections for journalists’ equipment aren’t limited to newsroom raids. Our outrage over police seizures shouldn’t be either.

When payment processors like Paypal and GoFundMe aren’t transparent about their policies and practices for account freezes and closures, journalists can’t know what crosses the line and the public can’t hold these companies to account.

kenteegardin, via Flickr, CC BY-SA 2.0.

We’ve long warned of the dangers to free expression when powerful financial institutions cut off journalists from using their services — whether we agree with the journalists’ point of view or not. Now, another controversial publisher is facing a financial roadblock after GoFundMe summarily shut down its fundraiser with little explanation.

According to The Dissenter, GoFundMe recently halted a fundraiser for Grayzone, which describes itself as an “independent news website,” and refused to transfer over $90,000 raised to the organization. GoFundMe responded to a request for an explanation by Grayzone by saying only, “Due to some external concerns, we need to review your fundraiser to make sure it complies with our Terms of Service.” No additional information was provided.

We’re not here to defend Grayzone as a model of journalistic excellence or endorse the veracity of any story they have published. Many have criticized Grayzone for praising authoritarian regimes and ties to foreign state media, among other things. The outlet is often accused of spreading disinformation and propaganda. Even if we were to assume that is all true, we would still strongly object to GoFundMe freezing it out and then refusing to explain why.

Payment processors aren’t news editors, fact-checkers or disinformation experts. They’re not making their decisions on who to block based on careful analysis of an outlet’s content. They’re making them based on popular opinion and their own bottom lines. Are you comfortable with them making those decisions in secret, whether or not you agree with their decision this time around?

This time, GoFundMe decided to block Grayzone. What about the next disfavored critic of U.S. foreign policy? Imagine, for example, how GoFundMe might have reacted to a fringe news outlet critical of the Iraq War if it existed at the height of the war’s popularity.

Some may brush aside “slippery slope” arguments, believing that GoFundMe’s recent actions were a unique response to particularly offensive content that won’t happen again. We (and the facts) beg to differ. Payment processors and fundraising sites have repeatedly blocked news sites in the past. In addition to its notorious financial blockade on Wikileaks, Paypal canceled the account of Consortium News and froze its funds. Around the same time, Paypal and GoFundMe both banned MintPress News. In another case, PayPal froze the account of News Media Canada.

These blockades have real consequences for news outlets and freelancers, who often rely on payment processors to keep the lights on and pay for their reporting. In the digital age, they can (figuratively) stop the presses. That’s why FPF and many other civil society organizations have repeatedly called on payment processors to be transparent about their policies and practices for account freezes and closure. Without transparency, members of the public can’t assess whether they agree with these sites’ policies and practices, whether they’re applying their policies consistently, or whether governments are working behind the scenes to suppress speech.

Transparency is also necessary for government regulators and lawmakers to understand how financial services exclude certain groups and businesses. Members of Congress have repeatedly expressed concerns about the impacts of financial service companies’ arbitrary terms, prompting the end of one controversial Justice Department program that pressured finance companies to shut off lawful accounts and renewing concerns about the disparate impact of financial exclusion on Muslim communities.

GoFundMe’s nebulous terms of service, for example, allow it to prohibit fundraising for anything it unilaterally determines is “an abuse of power” or “causes reputational harm.” Those terms could just as easily be used to kick your favorite opinion columnist off GoFundMe as they were used against Greyzone. They would allow GoFundMe to block us from fundraising on its service for writing this article and harming its reputation. They’d also allow it to block you if you criticize this article and harm ours. Journalists who rely on GoFundMe may think twice before expressing unpopular viewpoints after seeing what happened to Grayzone.

Of course, as private companies, payment processors and fundraising websites have the right to choose who they do business with. But they also have an obligation to the public to be transparent about how they make those decisions and provide meaningful mechanisms for account holders to appeal those decisions.

In the case of Grayzone, for example, GoFundMe pointed to “some external concerns” that sparked its “review.” If those external concerns were raised by the United States government or another government, then the law and the constitution does come into play. GoFundMe’s allusion to “external” factors, without identifying them, raises concerns about the government circumventing the Constitution by commandeering private companies to do its bidding.

Again, this problem is not hypothetical. Then-Sen. Joe Lieberman helped spark Visa, Mastercard and PayPal cutting off Wikileaks in 2011, after it published secret government documents (he also floated the idea of prosecuting The New York Times, speaking of slippery slopes). In fact, Freedom of the Press Foundation was founded in part to counteract this financial blockade and prevent the action from becoming commonplace. Similarly, Cook County Sheriff Thomas Dart infamously bullied Visa and Mastercard out of working with Backpage.com, an action that a federal appellate court found violated the First Amendment.

Given this context, criticisms of Grayzone become irrelevant — it’s far from the first outlet to receive this treatment. And if people accept it this time just because they dislike Grayzone, it surely won’t be the last. Distractions and emotions aside, the bottom line is this: Do we want financial services companies, loyal only to their investors and with no particular interest in First Amendment freedoms, deciding which publishers should be able to pay the bills?

Passed in the wake of a police raid on the Stanford Daily, the federal Privacy Protection Act of 1980 is meant to protect journalists and newsrooms from searches and seizures. But more could be done to shield reporters from search warrants under state law.

John Loo, via Flickr, CC BY 2.0.

After the police raid on the Marion County Record earlier this month, an often overlooked federal law was on the lips of press freedom advocates and media lawyers everywhere: The Privacy Protection Act of 1980, also known as the PPA.

As every police officer, prosecutor, and judge should know — but too often don’t — the PPA prohibits government searches and seizures of journalistic materials in almost all criminal cases. But government authorities and reporters should also be aware that in certain states, state law gives additional protection against newsroom searches.

According to a guide by the Student Press Law Center, at least eight states "have their own laws governing newsroom search and seizures: California, Connecticut, Nebraska, New Jersey, Oregon, Texas, Washington and Wisconsin.” Journalists in those states should familiarize themselves with these laws and have a copy of them (and the PPA) ready in case police come knocking on their newsroom door with a search warrant.

Lawmakers in states without their own prohibitions on newsroom raids should consider enacting them. While the PPA applies to state and local law enforcement, it’s not enough to rely on federal law. All too often, police and even judges don’t know the PPA exists — or conveniently forget to mention it.

That’s a problem, because the process for obtaining a search warrant doesn’t involve the targeted journalist or newsroom. When police apply to a court for a search warrant, reporters and news outlets are left to rely on law enforcement officers and judges knowing about the PPA and applying it correctly. That can result in judges issuing search warrants in blatant violation of federal law.

Enshrining prohibitions on searches of journalists and newsrooms in state law may make state and local police and state court judges more likely to be aware of them.

Lawmakers can also use state law to give stronger protection against searches of journalists and newsrooms than that in the PPA. For one thing, the PPA has certain limited exceptions allowing government officials to sometimes use a search warrant for journalistic material. State law doesn’t have to include those exceptions. The California law, for example, flatly prohibits the use of search warrants targeting information about journalists’ confidential sources or unpublished information.

State laws that absolutely prohibit searches and seizures of journalistic material would lessen the risk of law enforcement abusing “exceptions” to spring a search on a newsroom. At the same time, they wouldn’t necessarily prevent police from accessing critical information, since police could still attempt to subpoena materials from journalists. Subpoenas allow journalists to have their day in court to object to their propriety, including under state shield laws that limit when journalists can be required to disclose sources and newsgathering materials.

If lawmakers must make exceptions to state laws prohibiting searches of journalists and newsrooms, they should be limited. One common exception found in both the PPA and most existing state-level protections is the “suspect exception,” which permits police to use a search warrant if the targeted journalist or news organization is suspected of committing a crime.

Suspect exceptions, however, can be problematic when the “crime” that a journalist is accused of committing is related to journalism itself, such as obtaining and publishing information that the government would prefer to keep secret. (That’s why, in most cases, the PPA’s suspect exception doesn’t permit a search if the crime the target is accused of consists of the “receipt, possession, communication, or withholding” of journalistic material.)

Any state-level suspect exception should also make clear that crimes related to newsgathering or publishing information can’t be the basis for invoking the exception. Exceptions should include “lawful obtainment,” in addition to “receipt,” because journalists are entitled to actively seek records that others procured illegally. The law on that point may not have been entirely clear when the PPA was enacted, but it is now.

Finally, state lawmakers could create stronger enforcement mechanisms for their laws than those found in the PPA. The PPA allows journalists to sue state officers or employees who violate their rights under the law. But it also grants defendants a broad “good faith” exception that allows them to escape liability if they had “a reasonable good faith belief in the lawfulness of [their] conduct.” Lawmakers could give state laws real teeth by permitting civil suits without a good faith defense. It’s fair to expect that police know they shouldn’t raid newsrooms.

Police raids like the one in Marion chill newsgathering and reporting in the public interest. The PPA provides strong protection, but clearly, it’s not enough. To prevent another Marion, state lawmakers must act to prohibit searches of newsrooms and journalists under state law. That said, even state protections are no panacea. Despite a California law prohibiting searches for information about journalists’ confidential sources, San Francisco police still obtained a search warrant for freelance journalist Bryan Carmody.

So, in addition to enacting these laws, we need to ensure that police and judges are educated about them.

Police failed to mention federal and state protections against newsroom raids when applying for a warrant to seize equipment from the Marion County Record.

Kansas Reflector/Sherman Smith. Used with permission. Original image available at https://kansasreflector.com/2023/08/24/altered-evidence-list-indicates-marion-police-kept-illegal-copy-of-evidence-from-kansas-newspaper/

When police applied for a warrant to raid the Marion County Record, they didn’t bother mentioning the Privacy Protection Act of 1980 — a federal law that largely bans newsroom seizures. They claimed afterwards that they knew about the PPA but didn’t think it applied (we have our doubts). And the judge who issued the warrant was apparently clueless about the law.

Authorities in Marion are far from the only ones to ignore the PPA. We noted earlier this year that police in Asheville, North Carolina, neglected to mention it when they applied for a warrant to search a journalist’s phone. And federal prosecutors are struggling to explain how the FBI raid of journalist Tim Burke’s Florida home could have complied with the PPA.

It’s a real problem that law enforcement and judges seem so confused (at best) about such an important press freedom law. It’s crucial that journalists themselves know their rights, especially when the government doesn’t. That’s why Freedom of the Press Foundation (FPF) collaborated with the First Amendment Foundation on a guide covering journalists’ rights under the PPA (and state shield laws), as well as how journalists should respond if police knock on their doors or otherwise attempt to seize their newsgathering equipment.

You can read and download the guide below.

Nearly the entire police force raided the Marion County Record in August 2023. The search warrant was later withdrawn after the Marion County Attorney determined that it was based on “insufficient evidence.”

Marion County Record

Caitlin Vogus spoke to the Lawfare podcast last week about the police raid of the Marion County Record, its chilling effect on the press, and steps journalists can take to protect themselves against future police raids and other searches.

As Vogus, deputy director of advocacy for Freedom of the Press Foundation (FPF), told Lawfare Managing Editor Tyler McBrien:

“The raid on Marion was rare, but it is not the only type of violation of press freedom that’s in a similar vein that we’re concerned about at Freedom of the Press Foundation. … We have to stay vigilant about press freedom in the U.S. We can’t be complacent and think we have the First Amendment and everything is fine.”

Listen to the whole podcast.

FPF also led national discussions on News Nation with Chris Cuomo, Scripps News Morning Rush, and the News in Context podcast.

Police in several states have withheld the names of officers involved in shootings or other altercations while on duty, citing Marsy’s Laws.

Image created by Harris Lapiroff using Midjourney, CC BY-NC

What if the names of the police officers who participated in the murder of George Floyd had never been made public, because they claimed they were the victims of an attempt by Floyd to resist his arrest? It may sound far-fetched, but if Minnesota had a crime victims’ rights law known as Marsy’s Law, it could have happened.

The original Marsy’s Law, passed in California in 2008, prohibited the release of victims’ confidential information to a defendant. But now, while the exact language of Marsy’s Laws differs from state to state, some newer versions prohibit the release of victims’ information to anyone.

That change opened the door to police officers using the law to hide their identities when they’re involved in on-duty incidents. Law enforcement officers around the country are arguing that Marsy’s Laws shield the names of officers who wound or even kill people while on duty. Police departments have relied on the laws to withhold officer names from press releases and even refuse to supply them in response to journalists’ public records requests.

The latest examples of this troubling trend are from Wisconsin and Ohio. In Wisconsin, the identity of a police officer who shot a suicidal man at the end of June has been withheld, even from court records, thanks to its Marsy’s Law. In Ohio, the Columbus police department is withholding the names of the officers involved in four separate fatal shootings in July and August, citing its Marsy’s Law. In one instance, the Columbus police are refusing to release the names of all eight officers involved in a shootout on a highway that left one person dead.

Incredibly, officers in states with Marsy’s Laws have claimed to be victims even when the other person involved in an incident did nothing to harm them. For example, police in Florida cited the provision in refusing to release the name of the officer who chased and tried to pull over a 13-year-old boy riding a dirt bike. The boy crashed and died. It’s nonsense for the pursuing officer to claim he is the “victim” in that scenario. But this type of claim is common. According to one investigation, “Officers sustained no injuries in at least half of the incidents for which they claimed victims’ rights.”

Protecting the rights of actual crime victims is important. But officers involved in altercations while on the job shouldn’t be considered “victims'' entitled to keep their information private. Police are using Marsy’s Laws to hide from public accountability and scrutiny. The public has a right to know what individual police officers are doing in their official capacity, on behalf of the public. Withholding officers’ names makes it harder for journalists to report about police actions, and for the public to hold both individual officers and law enforcement institutions responsible for misconduct.

Without officer names, the press and the public couldn’t identify officers who repeatedly violate the law or police rules. For example, if an officer who shoots a suspect can demand that their name be withheld from news reports, the public will be unable to look at past reporting to determine if a particular officer has a pattern of shootings. And journalists’ investigations into bad cops will also be stymied if police names can be scrubbed from public records.

A 2020 investigation by USA Today and the Invisible Institute, for instance, used misconduct reports to identify nearly 2,500 officers who have been investigated on 10 or more misconduct charges and 20 officers who “faced 100 or more allegations yet kept their badge for years.” That investigation would have been impossible if these officers could withhold their names under Marsy’s Laws.

Even states that don’t have Marsy’s Laws are negatively impacted by them. By potentially shielding the names of problematic officers from disclosure, the laws make it easier for them to move to states and continue to work in law enforcement. Journalists have relied on being able to report the names of officers found guilty of misconduct in one state when they simply move on to work in another.

It’s been years since police first started claiming to be victims entitled to keep their names secret under Marsy’s Laws, and legal battles over this issue are playing out in at least one state. There’s ample notice of the law’s anti-transparency impact. Yet campaigns to pass Marsy’s Laws in other states continue without acknowledging this fundamental flaw.

Lawmakers in states without Marsy’s Laws should reject any version that allows police officers to keep their names secret, and states with this law on the books should amend it to prevent law enforcement misuse. When police officers carry out their official duties, they’re acting on behalf of the public. Laws that wrongly hide their names, including from journalists, do a disservice to the public — and ultimately to real victims.

The outrageous raid of the Marion County Record got plenty of coverage. But it's far from the only noteworthy recent press freedom violation.

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/

The Aug. 11 police raid in Marion, Kansas, shocked the nation — and rightfully so. It was a uniquely egregious assault on the press and it might have actually killed someone.

The raid was outrageous, its aftermath tragic. Still, it was heartening to see the media focused on press freedom. Hopefully that continues. But here are ten other ongoing violations of journalists’ rights that, unlike Marion, are not getting the coverage they deserve.

The other raid: The FBI raided Tim Burke’s home in May after he published outtakes of Tucker Carlson’s interview with Kanye West, which Burke says he found on a public website. The government hasn’t explained how he broke the law. And in court papers this month, it questioned whether he’s entitled to protections for journalists. That’s worrisome, especially coming from the same Department of Justice prosecuting Julian Assange. Burke, like Assange, published information of public interest. That’s journalism and it’s protected by the First Amendment, regardless of whether they work for established outlets. And if the raid proves as baseless as the one in Marion, it deserves the same condemnation.

California clawback: The City of Los Angeles sued journalist Ben Camacho to get back photographs of undercover cops it inadvertently provided to him. One problem: The Supreme Court has held repeatedly that once the government releases records, even accidentally, it cannot claw them back nor restrain publication. But Judge Anthony Mohr ignored the law and let the lawsuit proceed. Why he thinks police secrecy is the exception to the rule against “prior restraints” is anyone’s guess.

Silenced in St. Louis: In May, Judge Elizabeth Hogan barred the St. Louis Post-Dispatch from publishing information it obtained from a court website. Three months and several continuances later, the paper is still barred from publishing. Hogan held a hearing last week only to kick the can down the road again. Even if she withdraws her unconstitutional order, the damage is done. As the Supreme Court explained, "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."

Gagged in Greensboro: The Supreme Court has also held that judges who allow journalists into juvenile courts can’t stop them from publishing what they hear. But Judge Ashley Watlington-Simms in Greensboro, North Carolina, nonetheless barred journalist Kenwyn Caranna from covering a hearing she was allowed to attend, even seizing her notes. Most reporters carefully consider privacy concerns when covering minors. But that’s a decision for journalists — not judges. Judicial seizures of reporters’ notes should never happen in this country.

Censorious SLAPPs: In contrast to Marion, where a restauranteur’s complaint prompted a newsroom raid, the more common playbook for the powerful is drowning critics in legal fees from strategic lawsuits against public participation, or SLAPPS. The New York Times recently wrote about a Wisconsin state senator’s abusive lawsuit and appeal over an article reporting he used a homophobic slur. The ordeal has cost the nonprofit news outlet he sued almost $150,000 so far and may put it out of business.

Prosecuting photography: Photojournalist Stephanie Keith was arrested in May for photographing a vigil for Jordan Neely. This month, prosecutors agreed to an “adjournment in contemplation of dismissal.” That basically means they’ll dismiss the case as long as Keith behaves for the next six months. We understand why Keith would accept that deal rather than waste time fighting baseless charges. But what message does it send when, to avoid prosecution, authorities force a journalist to promise not to … do what exactly? Take pictures?

Ohio’s intimidation tactics: Ohio journalist Derek Myers was charged last year with wiretapping for publishing a source’s recordings from a murder trial. Prosecutors, rather than embarrass themselves in court (the Supreme Court has held journalists are not responsible for sources’ illegal recordings), let their deadline to pursue the case expire this month. As we’ve said, “Officials don’t file these kinds of cases to win but to intimidate.”

Confidentiality undermined: Federal Judge Christopher Cooper ordered journalist Catherine Herridge to identify confidential sources this month. She’s appealing. As we told CNN, “Requiring journalists to reveal their confidential sources deters whistleblowers and others from coming forward.” The case underscores the need for the bipartisan PRESS Act “to make clear that reporters can’t be forced to burn their source.”

Lawmakers play editor: Two legislators — including one known for toting guns in front of Christmas trees — introduced a resolution that condemned “irresponsible and sensationalistic” coverage of mass shootings and then made unsolicited “recommendations” to the press. Ironically, those behind the resolution have previously insisted government attempts to influence content are illegal censorship. They should practice what they preach — Americans don’t elect representatives to tell journalists how to do their jobs.

Kansas code of silence: Back in Marion, Record publisher Eric Meyer says the paper investigated why Police Chief Gideon Cody left his prior job in Kansas City before orchestrating the raid. The Kansas City Star reports Cody was under disciplinary review, but police won’t release complaints against him, citing open records exceptions for documents generated during investigations. Obviously, the complaints predate any investigation. It’s the latest abuse of investigative exceptions to open records laws. Marion residents deserve to know the truth about the chief who brought “Hitler tactics” to their town of 1,902.

What can be done

In the Record’s case, Meyer says the paper may sue, and victims of anti-press antics should do so whenever possible. Journalist Bryan Carmody settled for almost $400,000 after San Francisco police raided his home in 2019. Oakland journalist Timothy Ryan also recently settled for $400,000 after he was injured by police in 2020. Settlements like those not only compensate journalists for damages but force officials to think twice about retaliating against the press.

But Marion shows that journalists cannot rely solely on the legal system for recourse — many press freedom violations are perpetrated or enabled by a judiciary that clearly needs a refresher on the First Amendment. Until then, journalists and others should continue calling attention to abuses. Perhaps the court of public opinion will better serve the press than a court of law.

A police raid on the Marion County Record has sparked a firestorm over press freedom. The Record needs and deserves our support.

Kansas Reflector/Sam Bailey. Used with permission. Original image available at https://kansasreflector.com/2023/08/12/police-defend-raid-on-kansas-newspaper-amid-backlash-over-brazen-violation-of-press-freedom/.

If you care about press freedom, you’ve probably heard about the alarming police raid on the Marion County Record. Based on the flimsiest of legal excuses — a local business owner accused the Record of violating her privacy by checking her driving record on a state website — police searched the newsroom and home of the paper’s publisher, carting off computers, phones, and other devices. One of the Record’s co-owners, Joan Meyer, died the next day.

Five days after the raid, officials withdrew the search warrant and returned all of the seized items to an attorney representing the Record.

The Record is a small newspaper with a circulation of about 4,000. Among the items seized were servers that had the only copies of the ads meant to appear in the next edition. Incredibly, the Record’s staff was able to publish on time, despite the raid. And its circulation has rocketed by 50%.

Eric Meyer, editor and publisher of the Record, told KSHB-TV in Kansas City, “Without the outpouring of support on this, we'd probably be out of business right now.”

You may be wondering what you can do to help the Record and fight back against this outrageous attack on press freedom. Here are three ideas:

1. Support the Marion County Record financially

The Record could undoubtedly use all the financial support it can get. You can subscribe to its online edition for a year for just $34.99. Perhaps you’d like to get the word out about how you feel about the raid, press freedom, and First Amendment rights? You could buy a classified ad in the Record to make your views known.

The Record also faces legal costs — both from fighting back against the raid and, potentially, future legal action it can (and, in our view, should) take against the authorities who violated its First Amendment rights. The Society for Professional Journalists (SPJ) has pledged to cover up to $20,000 in legal fees for the newspaper.

You can donate to SPJ’s Legal Defense Fund and earmark your pledge for the Record by checking the “Dedicate this Gift” box and writing “Marion Record” in the name field when you donate (for now, SPJ has a banner on top of its site specifically for Marion donations to make it even easier).

2. Honor the memory of Joan Meyer

Record co-owner Joan Meyer’s funeral is planned for this Saturday. Before she died, Meyer condemned the raid on the Record as “Hitler tactics.” According to her son, she also asked repeatedly, “Where are all the good people who are supposed to stop this from happening?”

Let’s honor Meyer’s memory by making sure something like this doesn’t happen again. Speak out on social media in memory of Meyer and in support of press freedom on Saturday.

Consider paying your respects in person, if you are able to attend the funeral. According to Max Kautsch, counsel to the Kansas Press Association, “Kansas Press Association members from across the state plan to honor Joan by attending her services on Saturday. … [T]he KPA will show our support by simply showing up and celebrating the life of Joan and supporting Eric [Meyer] and the Marion County Record.”

Meyer’s family has also asked that donations in her memory be made to the Kansas Newspaper Foundation in care of Jost Funeral Home at P.O. Box 266 in Hillsboro, Kansas 67063.

3. Pressure Marion Police and government officials over the raid

The raid has been widely condemned by press freedom organizations, journalists, and news media outlets, garnering national and international attention. According to Kautsch, “Due in no small part to the outpouring of support for the Marion County Record in the aftermath of the search of its newsroom, the government officials responsible for the raid ought to have a better understanding of the First Amendment this week than last.”

But we can’t allow this story to fall off the radar as the public, press, and officials move on to the next day’s news.

The warrant may have been withdrawn, but the government isn’t being transparent about what happened or how police could get a search warrant for an apparently illegal raid — which authorities now admit had no connection to any alleged “crime” — in the first place. Police have refused to answer questions from reporters about the raid. There are also questions about Cody’s own past that need answering, especially given that the Record was reportedly investigating him before the raid.

This lack of transparency is wrong. The raid itself was wrong. If you live in Kansas, write to your government officials to ask them to demand transparency, including the immediate release of the search warrant application and a full investigation into how the raid came to be. Wherever you live, write a letter to the editor of your local newspaper or post on social media to call attention to the raid and other press freedom violations. Call on the Department of Justice to investigate potential violations of constitutional rights, as it has in other instances where police suppressed protected speech. Use your voice to speak up for press freedom.

In addition to helping the Record, support local journalism in your own community

The Record is just one example of a local newspaper punching far above its weight to inform its community. Consider supporting journalism in your own area by subscribing to a local news outlet or making a donation to a local nonprofit newsroom.

Contact your member of Congress to urge them to support the Community News and Small Business Support Act, a bill that would also go a long way toward increasing funding for local journalism. While we hope no other newsroom will face a similar situation to the raid on the Record, it’s important to ensure a thriving local press that has the resources to protect itself and resist pressure from police or others.

The Marion County Record is fighting back in the face of this stunning assault on its First Amendment rights. Now is the time to take a stand and show them “the good people” are with them.

The Marion County Record newsroom.

Sam Bailey/Kansas Reflector

FOR IMMEDIATE RELEASE:

Freedom of the Press Foundation (FPF) welcomes the withdrawal of the search warrant issued against the Marion County Record and return of the equipment and other items seized by law enforcement. But authorities can’t undo the harm they’ve done or give Joan Meyer her life back.

FPF Director of Advocacy Seth Stern said, “Authorities deserve zero credit for coming to their senses only after an intense backlash from the local and national media and an aggressive letter from the Record’s lawyer.”

The Record and its journalists never should have been subject to this chilling search in the first place. “Anyone should have realized that sending the entire police force to search a newsroom because journalists verified information from a source is an outrageous overreaction that threatens freedom of the press,” said FPF Deputy Director of Advocacy Caitlin Vogus. “This raid never should have happened.”

“The Record did nothing wrong, and yet police decided to raid the newsroom and the journalists’ home and take every piece of equipment they have, jeopardizing the Record’s ability to continue publishing,” added Vogus. Police injured a reporter during the newsroom raid and, not only that, but longtime Record journalist and co-owner Joan Meyer collapsed from stress and died the day after the raid on her home.

Stern noted that it’s not uncommon for the government to quickly abandon cases against journalists. “These kinds of frivolous abuses of the legal system to attack the press are intended not to win but to intimidate journalists. Usually, after accomplishing that goal, authorities are able to drop charges quietly to avoid embarrassing themselves in court. It’s good that this time the process is playing out publicly, thanks to the media attention this case rightfully received.”

Dropping the warrant is just the first step that officials must take. “The Record and the public deserve to know why the Marion Police decided to conduct this raid and whether they gave even a moment’s thought to the First Amendment or other legal restrictions before they decided to search a newsroom,” said Vogus.

We call on the Kansas Bureau of Investigation and other officials to conduct a full and transparent investigation into the decision of the Marion Police to raid the Record and the application made to the court seeking authorization for a search warrant. Judicial authorities should examine the decision of Judge Laura Viar to sign the search warrant and why that decision was entrusted to a magistrate judge with less than a year’s experience.

Finally, the Record has suggested that it may sue, and it should. The withdrawal of the search warrant doesn’t change the fact that police rifled through the Record’s newsroom, seized almost all of its equipment, and likely contributed to the death of its 98-year-old co-owner.

“Government officials who think they can raid a newsroom should be on notice that there are consequences for searches that violate the law,” Vogus said. “The Record should sue not only to deter future searches of its newsroom, but to protect journalists and news outlets around the country from future illegal raids.”

Officers raiding the Marion County Record hoped out loud that the devices they seized were not encrypted so they could illegally search them.

Marion County Record

Last Friday’s raid of the Marion County Record has captured national and international media attention and is shining a much-needed spotlight on the erosion of press freedom in the U.S. Hopefully the raid and its tragic aftermath (the Record’s 98-year-old co-owner, in shock from the ordeal, died the next day) prompts the reversal of that troubling trend.

But until then, journalists and newsrooms need to adapt to the current reality that many U.S. law enforcement officers and judges — from Marion to Manhattan — couldn't care less about the First Amendment. And part of that adaptation means that journalists’ devices and communications must be encrypted.

If you’re not convinced, just watch the video of the raid in Marion, which shows (at around 2:44) a police officer, while seizing multiple devices, commenting, “I don’t believe that this is encrypted so I think we’re OK.”

We’re not here to blame the Record — they’re the victims in this fiasco (and for all we know, the officer was wrong and the devices actually were encrypted). Many journalists, especially at smaller, local news outlets like the Record, may not give much thought to the prospect of police ransacking their newsrooms and homes over routine efforts to verify news tips using public records. That's understandable, given that their newsgathering is protected by both federal and state law and the Constitution. Yet here we are.

Our Digital Security team responded to the raid with a guide for journalists and newsrooms on how to prepare for a Marion-like situation, including how you can encrypt your computers and cell phones now if they are not already.

“When seizing a device,” our Principal Researcher Dr. Martin Shelton wrote, “law enforcement officials hope yours is unencrypted because an encrypted device is significantly more time consuming to examine without your permission.” That means cops are far less likely to recover confidential source communications and newsgathering materials from an illegally seized device if it's encrypted.

Our team has also published numerous guides and resources for newsrooms looking to improve their digital security practices, through encryption and other means. And we welcome any journalists or publishers to contact us to arrange a digital security training session so we can help them adapt to the threats journalists now face.

Federal courts used technology to conduct civil trials remotely during the pandemic, as in this virtual civil trial in the Middle District of Florida.

United States Courts.

When the first civil trial over the Flint water crisis began in February 2022, the COVID-19 pandemic meant that the federal court in Michigan couldn’t let everyone who wanted to attend in the door. The case was important both locally and nationally: Four children exposed to lead in the drinking water had sued two engineering firms, accusing them of failing to conduct critical testing and treatment. But how could journalists and the public watch the trial, when social distancing requirements barred many of them from the courthouse?

Thankfully, the Judicial Conference — a policymaking body for federal courts — had made an exception to their long-standing ban on broadcasting court proceedings early in the pandemic. The exception allowed judges, including for the Michigan court, to use technology to allow the public to access both criminal and civil cases remotely. Reporters used that remote access to cover the entire Flint water trial, which ended with a deadlocked jury.

Letting the press and the public observe court proceedings from afar became commonplace during the pandemic. The public watched as former Police Officer Derek Chauvin was convicted of murdering George Floyd. It listened to a failed attempt by the Trump campaign to overturn the election results in Pennsylvania. It even heard someone — potentially a Supreme Court Justice — flush a toilet during oral arguments. (More importantly, it also heard live audio of oral arguments in numerous groundbreaking cases.)

Now that the pandemic has ended, however, that remote access is starting to be rolled back. The ability for judges to broadcast criminal proceedings in federal court, which had been authorized by statute, ended on May 10. The authority to provide remote audio access to civil and bankruptcy proceedings, which was established by a Judicial Conference policy, is set to expire on September 21.

According to news reports, the Judicial Conference will consider a new policy in September that would maintain remote public audio access for civil and bankruptcy cases. However, unlike during the pandemic, remote audio access would be allowed only in proceedings that don’t have witness testimony.

There’s no reason for the Judicial Conference to take this half-measure. Experience from the pandemic shows that it’s possible to provide remote public audio access to witness testimony, and that the public and the press benefit from that access. In the Flint water trial, for example, news outlets repeatedly reported about newsworthy witness testimony that they only had access to because they could listen to it remotely.

That’s why a coalition of 33 civil society and news media organizations, led by Freedom of the Press Foundation (FPF) and judicial watchdog group Fix the Court, has urged the Judicial Conference to adopt a new policy that continues to permit remote public audio access to civil and bankruptcy proceedings, including those in which a witness testifies. Our full letter to the Judicial Conference is below.

Simply put, the Judicial Conference shouldn’t reverse pandemic-era changes that made it possible for more members of the public and more journalists to listen to trials. Most people can’t go to newsworthy trials in person, especially if they don’t live near the courthouse. Remote audio access opens up court proceedings worldwide, so anyone who’s interested can listen in. These advances in technology allow for greater public access and should be embraced, not limited.

Of course, we also have the technology to provide even better access to court proceedings through video broadcasts. Because the Judicial Conference isn’t considering video broadcasts at its September meeting, the coalition letter doesn’t address that issue. But in FPF’s view, courts at all levels, from the Supreme Court on down, should give the public full video and audio access to all proceedings.

However, until cameras are finally allowed in courtrooms, remote public audio access is the next best thing. The pandemic proved that federal courts can offer remote public audio access to court proceedings, including witness testimony. It showed that journalists use this access to inform the public. Let’s not end or change a policy that’s provided so much benefit to the press and the public just because a terrible public health emergency is over.

Marion County Courthouse

Spacini at English Wikipedia, CC BY-SA 3.0

FOR IMMEDIATE RELEASE: Law enforcement officers in Marion, Kansas reportedly raided a local newspaper’s office and its publisher and owners’ home, seizing computers, cell phones and other materials and injuring at least one journalist in the process. The publisher of the Marion County Record said it’s unclear how the paper will be able to publish its next edition.

“Based on the reporting so far, the police raid of the Marion County Record on Friday appears to have violated federal law, the First Amendment, and basic human decency. Everyone involved should be ashamed of themselves,” said Seth Stern, Director of Advocacy for Freedom of the Press Foundation.

The raid was apparently prompted by the Record receiving a tip from a source about a restaurant owner’s drunk driving conviction. “There is nothing illegal about obtaining or verifying a tip from a source,” said Stern.

The paper decided against reporting on the drunk driving conviction (which the restaurant owner reportedly admits) but, according to the Record, the entire police department along with sheriff’s deputies conducted the raid, pursuant to a warrant, unsupported by the required affidavit, vaguely alluding to “identity theft.” The warrant, signed by Judge Laura Viar, provided for seizure of a virtually limitless range of records and devices, and made no effort to protect confidential source communications.

Personal electronics used by the paper’s 98-year-old co-owner Joan Meyer, including a smart speaker she uses to ask for assistance, were among the items the Record says were seized. Officers also reportedly photographed personal financial statements of Meyer’s son and Record co-owner and publisher, Eric Meyer, and made the paper’s staff stand outside for hours during a heat advisory, unable to work.

The Record said it will sue, and it absolutely should. “This looks like the latest example of American law enforcement officers treating the press in a manner previously associated with authoritarian regimes. The anti-press rhetoric that’s become so pervasive in this country has become more than just talk and is creating a dangerous environment for journalists trying to do their jobs” said Stern.

Earlier this year, McCurtain County, Oklahoma officials were caught on tape fantasizing about murdering local journalists. And authorities in Asheville, North Carolina put two journalists on trial for reporting on police evicting a homeless encampment and banned them from city parks.

The prosecution of a former government official accused of murdering reporter Jeff German, pictured here, has sparked a legal battle that threatens to erode Nevada’s reporter’s shield law.

Harrison Keely, via Wikimedia Commons, CC BY-SA 4.0.

The tragic murder of Las Vegas Review-Journal reporter Jeff German — allegedly committed by a county official whom German was investigating — was already a nightmare scenario for those who care about protecting journalists and the free press. Now, a legal battle over demands to search German’s phone and other devices threatens to exacerbate the harm to press freedom by weakening Nevada’s reporter’s shield law, currently considered one of the strongest in the country.

We’ve written before about prosecutors’ efforts to search German’s devices and the Review-Journal’s objection. The newspaper has argued that the search could reveal German’s confidential sources — including for the very reporting over which he may have been murdered — and that the First Amendment and Nevada shield law forbid it. Unfortunately, the district court judge has been sympathetic to the prosecution, drafting an order that would allow two police detectives and two prosecutors to search the devices.

Thankfully, the district court doesn’t have the final say. The Review-Journal has appealed to the Nevada Supreme Court. More than 50 press freedom and media organizations, led by the Reporters Committee for Freedom of the Press and joined by Freedom of the Press Foundation (FPF), filed an amicus brief in support of the newspaper, pointing out that the state Supreme Court’s decision could impact all Nevada journalists and the public’s access to newsworthy information.

The whole purpose of the Nevada shield law is to encourage the free flow of information to the public by assuring sources that reporters can’t be forced to violate promises of confidentiality. There’s nothing in the law that says a reporter’s death ends the privilege. That makes sense, since a reporter’s death doesn’t lessen the risk to a confidential source whose identity is divulged.

It would be perverse to allow prosecutors and police to weaken a key protection for journalists and their sources in the name of prosecuting a man accused of murdering a reporter. The district court’s ruling was also completely unnecessary. The Review-Journal had offered to waive its privilege if independent special masters were appointed to review the data from the devices, to first determine whether the data is even covered by search warrants that have been issued. (On appeal, the newspaper is asking the Nevada Supreme Court to hold that the devices can’t be searched at all. But, if the court doesn’t make that ruling, it asks the court to apply this protocol.)

The district court, however, rejected this reasonable request. Instead, it prefers to allow searches by the very police and prosecutors whose colleagues may have been confidential sources for German over the years. The district court may believe that its confidentiality order guarantees there won’t be any leaks of source names within law enforcement or the district attorney’s office. However, that’s unlikely to reassure sources who may have risked their careers and personal relationships to speak to German and who entrusted him, not cops and prosecutors, to keep their identities secret.

If the Nevada Supreme Court doesn’t rule for the Review-Journal, it won’t be just German’s sources that are at risk. All confidential sources in Nevada will have to think twice before speaking to a reporter if they know the reporter’s death makes her promise of confidentiality meaningless. That’s bad for reporters, sources, and the public. If Nevada’s shield law, which has been in place for half a century, is to remain robust, the Nevada Supreme Court must bar the search of German’s devices.

Journalists have long learned about breaking news by listening to police radio chatter, but a new trend of encrypting police radio channels threatens their access.

Guian Bolisay, via Flickr, CC BY-SA 2.0.

Just a few years ago, the New York City Police Department ran a failed anti-encryption campaign. Now, it’s actually found a form of encryption it does like. Unfortunately, it’s not the good kind.

Instead, the NYPD is the latest law enforcement agency to follow the troubling trend of encrypting police radio channels that were once open to the public. Police forces from California to Maine — and in many places in between, like Colorado, Illinois, Indiana, and Virginia — have recently switched to encrypted radio as they’ve updated their communications systems to use modern technology.

Yet reporters have used radio scanners for decades to learn about breaking news through police radio chatter. This real-time access lets newsrooms quickly send reporters and photographers to the scene of public emergencies, crimes, and police activity. Some freelance journalists have made careers out of tracking police activity through their radios and reporting the resulting news online.

The public benefits of access to police radio by journalists are well documented. As one New York news outlet described:

For instance, in 2017 when Sayfullo Saipov drove a rented U-Haul onto the West Side bike path, police scanner chatter provided vital information to avoid affected areas until the situation was under control.

Similarly, just this week, it was police scanner chatter that told the media and the community about the crane collapse in Hell's Kitchen, allowing them to stay informed and take necessary precautions.

Despite these benefits and public assurances that encryption wasn’t coming until late 2024, six precincts in Brooklyn quietly made the change to encrypted radio last month. Maybe the NYPD hoped no one would notice this secret switch. Or maybe it just didn’t care enough to inform the public about the change.

But the public and the press did notice, and they demanded an explanation. Unsurprisingly, the NYPD raised vague safety concerns as its main justification for the change. It claimed that it had “a lot of examples that we can share with the media” of radios being used against police. But when pressed by reporters, it offered just a single incident from 2016, when a man “took over a department radio frequency to make multiple verbal threats” against an officer.

This single example doesn’t come close to justifying wholesale encryption of police radio communications. If the NYPD’s true concern is about unauthorized transmissions, it could encrypt the "input" side to allow only authorized equipment to transmit, while automatically decrypting the “output” side to continue timely listener access.

Meanwhile, New York City Mayor Eric Adams invoked the idea of “bad guys” listening in on the police radio so they “can see when we’re responding to a crime.” Of course, he’s offered no examples of a time when this has actually happened in New York City. (There have been isolated reports of criminal suspects listening to police radio — like this officer safety bulletin from Maryland warning of “several” recent incidents but actually recounting only one.)

Vague notions straight out of Hollywood about how to stop bad guys aren’t enough to justify a total ban on public access to police radio. There’s simply no evidence that this supposed problem is so pervasive or widespread that we need to shut the public out. In contrast, the public good that access does is evident in news reports on a daily basis.

So what’s the real reason behind this change at the NYPD and other police forces? It could be that news reporting on crime puts pressure on government officials responsible for combating it. Making it harder for journalists to report about crime makes it easier for governments to sweep it — and information about what police are up to — under the rug.

In the face of public outcry over the underhanded way it began to encrypt its radio channels, the NYPD has promised to explore “whether certain media access can be facilitated,” including by examining methods used in other jurisdictions. Of course, it also promised not to encrypt radio until next year, so perhaps we should take its word on media access with a grain of salt.

But there’s no panacea in ideas to allow some access that other places have tried. Chicago, for example, allows public access but with a 30-minute delay. That makes the scanners almost useless for breaking news coverage, since the news might be over by the time reporters learn about it and arrive on the scene.

In Las Vegas, police gave “media outlets” continued access after encrypting their radio communications. But this kind of exception excludes watchdog groups and the public. It may exclude freelance journalists too, if only accredited news outlets are considered “media outlets.” It could also let police play favorites, granting access to outlets that cover police favorably and denying access to their critics.

Rather than exploring options to make its terrible decision slightly less bad, the NYPD should leave its radio channels unencrypted. They’ve been that way for decades without serious incident, and outdated infrastructure can be upgraded without paying extra to radio system manufacturers for the privilege of encryption. There’s no justifiable reason for the NYPD and other police forces’ decision to encrypt radio communications. It’s time to buck this anti-transparency trend.

Sen. Mike Lee

Gage Skidmore, CC BY-SA 2.0

We joined Utah First Amendment lawyer Michael Judd in commending Sen. Mike Lee for supporting the PRESS Act and encouraging other legislators to do the same.

Our op-ed in the Salt Lake Tribune explained:

“The PRESS Act is the strongest journalists’ ‘shield’ bill ever introduced. It restricts the government from spying on journalists or forcing them to burn sources, except in serious emergencies. It protects not only mainstream media but alternative publications and freelancers, with no regard for politics, because the First Amendment isn’t only for establishment-approved viewpoints.

….

News sources do not risk their careers when they fear the government will force reporters to out them. That means journalists can’t expose malfeasance, the public misses important news and voters arrive at the ballot box less informed. As Lee said, ‘in a world where information is power, the role of reporters as truth-seekers and watchdogs cannot be understated.’”

The PRESS Act unanimously passed the House Judiciary Committee with broad bipartisan support last month. The Senate bill is sponsored by Democrats Ron Wyden and Dick Durbin, along with Lee, a Republican. Other Republicans from Lindsey Graham to Jim Jordan have previously joined Democrats including Chuck Schumer in supporting journalist’s shield bills.

You can tell your representatives to support the PRESS Act here.

Fox News owner Rupert Murdoch.

Hudson Institute, via Flickr, CC BY 2.0.

It remains to be seen whether Fox News’ $787 million defamation settlement with Dominion Voting Systems — and the embarrassing revelations that preceded it — will lead the network to rethink its journalistic standards. But in the meantime, the case has prompted politicians and others to take shortsighted shots at Fox at the expense of the First Amendment.

Case in point, a new bill prompted by the settlement would stop corporations from claiming tax deductions on defamation settlements and judgments. “Taxpayers shouldn’t have to foot the bill for multi-billion-dollar companies like Fox News when they get caught selling malicious lies that are damaging our democracy,” said Sen. Sheldon Whitehouse to The Lever, after introducing the Denying Expenditures for False Accusations with Malicious Effect (DEFAME) Act.

Sounds reasonable, at first glance. And we’re certainly not here to defend Fox’s election coverage or shed any tears for Rupert Murdoch. But then again, all lawsuits allege that the defendant did bad things. Why should cases involving speech — especially political commentary by the press — be singled out from those involving fraud, employment discrimination, product liability, and dozens of other kinds of legal claims that corporations pay to resolve every day?

Maybe no corporate legal payments should be tax deductible. Some may argue deductions incentivize companies to settle cases so victims can be compensated. Others may say they reward bad corporate behavior. That’s a fair debate. If Congress eliminated all deductions for payments to resolve lawsuits, we wouldn’t ask to exempt the press.

But, as long as payments to resolve nonspeech-related claims against nonmedia companies are deductible, it’s constitutionally problematic to treat defamation payments by the press differently. The First Amendment requires limitation, not expansion, of punishment for speech — even false speech. Fox may have drawn Whitehouse’s ire this time around, but what disfavored speaker will the next lawmaker target?

It’s particularly disturbing that Whitehouse readily admits his bill is aimed squarely at Fox. Bills targeting specific people or companies for punishment are unconstitutional bills of attainder. And, under the First Amendment, the constitutional problem is compounded when the victim is the press because of its political commentary. It’s the role of the courts to dole out consequences for past bad acts. When Congress gets involved, politicization is inevitable.

The “good” part of the bill’s targeting of Fox is that it’s unlikely to actually affect anyone else. It’s limited to settlements over $500 million by companies with over $10 billion in revenue. Not many will satisfy those criteria. But once we crack open the door to singling out disfavored speakers it’s a matter of time before it's kicked down. And the slippery slope isn’t just hypothetical — there’s already a House bill, the No Taxpayer Bailout for Defamation Act, introduced by Rep. Brandan Boyle, that does not include the same limits and would affect your community's struggling local paper just the same as cable news behemoths.

Unfortunately, the DEFAME Act and its nonacronymized House counterpart are not the only recent attacks against Fox that are sure to backfire. A former commissioner at the Federal Communications Commission, joined by media professionals who should know better, objected to the renewal of a local TV station’s license because it’s under the same ownership as the Fox News cable network. One of them argued that the station’s license shouldn’t be renewed because “the adjudication of the Dominion case unequivocally established that Fox News Channel repeatedly disseminated false news.”

The Philadelphia station, WTXF-TV, is not accused of doing anything itself that would warrant revocation of its license. But since the FCC has no authority to kick cable news networks off the airwaves for their content, the objectors are going after Fox-owned local affiliates instead. It’s a tactic that the FCC rightly rejected when former President Donald Trump threatened to revoke NBC’s licenses (held by its local affiliates) because he didn’t like its reporting. We opposed it then and we oppose it now.

Outrage over Fox’s 2020 election coverage is understandable, but it shouldn’t be weaponized to score political points. If the objectors succeed in canceling a local broadcaster’s licenses to retaliate against Fox News, surely one day the shoe will be back on the other foot. And if future lawmakers believe they have the power to legislate punishments against speakers they don’t like, they’re unlikely to be “fair and balanced” in administering retribution.

Local news organizations are the lifeblood of many communities, but decreasing revenues have caused thousands to die out in recent years.

Kamoteus (A New Beginning), via Flickr, CC BY 2.0.

After nearly a century, The Welch News in McDowell County, West Virginia, closed its doors earlier this year, leaving county residents without a local news source. The newspaper, the “heartbeat” of the community, fell prey to the same financial hardships that have led to the closure of thousands of local newspapers in America since 2005.

Now, a new bill in Congress aims to help small struggling news outlets survive these financial headwinds. The Community News and Small Business Support Act, introduced by Rep. Claudia Tenney and co-sponsored by Rep. Suzan DelBene, is a bi-partisan bill (PDF) that would give tax credits to small businesses that advertise in local media and a payroll tax credit to local news outlets that employ reporters in their communities. According to the Rebuild Local News coalition, the payroll credit could provide newsrooms with as much as $85,000 over the course of five years for each full-time local journalist they employ.

The proposed legislation is similar to the Local Journalism Sustainability Act, which Freedom of the Press Foundation (FPF) endorsed, but which failed to pass in the previous Congress. FPF is proud to support this new version of the bill, which attempts to address the crisis in funding for small, local news outlets through tailored advertising and payroll tax credits.

Importantly, the Community News and Small Business Support Act is carefully drafted to ensure the government can’t pick partisan favorites or otherwise influence news coverage in the outlets that would benefit from the tax credits. Instead, the criteria for qualifying for the tax benefits focuses on the size and local nature of the news outlet.

Under the proposal, the credits are available for local newspapers that employ local news journalists or for small businesses that advertise in a local TV or radio station or newspaper. A “local newspaper” includes any news publication that primarily serves the needs of a region or community and has at least one full-time journalist who lives in the community and no more than 750 employees. However, newsrooms controlled or significantly funded by advocacy groups or political organizations, like unions or political action committees, can’t qualify for the credits. This restriction is intended to “prevent wholly partisan or ‘pink slime’ outlets from cashing in,” according to one report, and it applies regardless of the political leanings of the controlling entity.

This broadly drawn definition means that a wide variety of local news outlets could receive payroll tax credits under the law, and community businesses will have leeway to support the newspapers that best serve their communities. Putting funding of news in the hands of communities like this is a smart approach.

Of course, there are still some funding problems the Community News and Small Business Support Act wouldn’t solve. For one thing, as we explained with the LJSA, providing tax credits for existing local newspapers may be less helpful to historically marginalized and underserved communities, which may not have existing news outlets. Start up (or re-start up) costs may be prohibitive. This bill will help sustain local news, but even more must be done to regrow it.

In addition, the new bill does not include the LJSA’s tax credit for individual taxpayers who subscribe to news outlets, which DelBene has said is too complicated. It's a shame for the proposed legislation to drop this idea, which could have encouraged more people to subscribe to local news and, through those subscription choices, democratized local media funding by giving individuals a say in which outlets benefit. But if simplifying the bill will increase its chances of passage, it's worth it to enact the advertising and payroll tax credits, which would make a meaningful difference to the financial state of local news by themselves.

Congress must not stand by as local news organizations continue to go dark in community after community. This new bipartisan proposal would provide a financial boost for local news outlets in a creative and constitutionally-sound way. They say that nothing is certain but death and taxes — so how about using taxes to do some good, and avert the death of local news?

Body camera footage shows a concerned observer recording while Phoenix Police needlessly detained Wall Street Journal reporter Dion Rabouin last year. Police later threatened her with arrest under a law requiring people recording cops to stay at least eight feet away.

Last year, Phoenix police detained Wall Street Journal reporter Dion Rabouin for interviewing passersby on a sidewalk outside a bank. They ignored his repeated explanations that he did not know the sidewalk was bank property and was willing to leave if officers would only let him.

A concerned citizen recorded the ordeal on a cell phone. She never once came close to interfering with the officers, but footage shows police threatening to arrest her pursuant to an Arizona law requiring people to stand at least eight feet back when recording police. She was still able to capture a reasonably clear recording in the empty parking lot, and that may have been the reason police eventually let Rabouin go. But what if the incident had occurred on a busy sidewalk, or in the middle of a chaotic protest? Or what if, like some other states, Arizona required her to stand 25 feet away rather than eight?

Rabouin’s detainment, of course, is far from the worst offense by police that has been caught on camera. Murderous cops are sitting in prison right now because citizens recorded their crimes so their departments couldn’t credibly lie about what happened. Courts around the country have recognized the importance of recording police and have unanimously upheld the First Amendment rights of citizens and journalists alike to do so.

That means police departments wishing to avoid scrutiny have had to resort to workarounds, including lobbying for legislation like the Arizona law so that recorders exercising their constitutional rights are less likely to capture incriminating details. Fortunately, there’s been some pushback. A court recently struck down that Arizona law as unconstitutional following a lawsuit by the ACLU and others. And last month, Louisiana Gov. John Bel Edwards vetoed a bill that would’ve made it a crime to come within 25 feet of officers on the job.

He wrote in his veto letter that, “Observations of law enforcement, whether by witnesses to an incident with officers, individuals interacting with officers, or members of the press, are invaluable in promoting transparency.” Edwards is right, and that’s likely the reason Indiana’s legislature passed a law similar to the one he vetoed, and why lawmakers in Florida and New York have tried and probably will try again (in the meantime, New York police baselessly arrest people who record inside police stations). Other states are sure to join the trend.

The official justification for these dubious bills is that recording up close interferes with police work or threatens police safety. That’s nonsense. We’ve seen no evidence that it’s ever happened and certainly none that the problem is pervasive enough to overcome the First Amendment. Anyway, there are already plenty of laws on the books against obstructing police. If anything, police are likely distracted when they’re needlessly quibbling with observers over how close they can get when they should be focused on their jobs.

Proponents of anti-recording laws may also point to the availability of body camera footage as a substitute for citizen recordings, but that’s another red herring. Police body cameras have a suspicious tendency to conveniently fail just when they’re most needed, and several state legislatures have made body camera footage as difficult as possible to obtain. Even when it’s eventually made public, the footage is often redacted or released late and/or piecemeal. The footage from Rabouin's arrest, for example, was released only after the observer's recording brought national attention to the incident. The mayor of Phoenix eventually apologized for the officers' conduct.

The bottom line is that the only way to hold police accountable for misconduct — or better yet, prevent it from happening in the first place — is for citizens and journalists to be able to record police without needing a yardstick to figure out how close they can get (ironically, if someone actually did take out a yardstick in order to comply with the law, they’d probably get tased).

It’s encouraging that Arizona and Louisiana have backed away from these misguided proposals. Hopefully, the remaining states will soon follow.

Journalists increasingly use drones to report the news, but a new bill in Congress could give the government an excuse to target drone reporting.

Josh Sorenson, via Pexels, CC0 1.0.

A fisherman stands with his boat in a dry lakebed as the camera slowly pans out, revealing an enormous expanse of desolate ground left behind when the water receded from Lake Poopó, Bolivia. Photojournalist Josh Haner used a drone to capture that video, showing the devastating impacts of climate change.

Like Haner, more and more journalists at the national and local level are using drones to document the impacts of war, natural disasters, pandemic stay-at-home orders, protests, and more. Drones give journalists access to otherwise inaccessible views and let them report on dangerous events safely from a distance.

Even though the Federal Aviation Administration already regulates journalists’ use of drones, a new federal bill now on the table would threaten journalists’ and others’ ability to use them to document the news or engage in other First Amendment-protected activities, like monitoring the police at protests.

The proposed Senate bill, The Safeguarding the Homeland from the Threats Posed by Unmanned Aircraft Systems Act, has the worthwhile goal of protecting critical infrastructure, like power stations, from attacks by drones. The problem? It doesn’t take into account the way reporters use drones to gather information for the public. That’s why Freedom of the Press Foundation (FPF) joined a letter on behalf of civil society organizations led by the Center for Democracy & Technology opposing the bill. (The full letter is embedded below.)

The measure would give federal and local governments the power to track, intercept, and even damage or destroy drones if they believe the unmanned aircraft pose a threat. This sounds reasonable, until you know that the government has used made-up “safety concerns” in the past to abuse its authority over the airspace and suppress free speech.

For example, in 2014, authorities restricted the airspace around Ferguson, Missouri, during the protests over the police killing of Michael Brown. According to the St. Louis County Police, the restriction was “solely for safety.” But documents obtained by the Associated Press through the Freedom of Information Act showed that the real reason for the restriction was to prevent news helicopters from covering the protests.

It doesn’t take much to imagine government officials using their powers under this proposed legislation to chase off or take down drones journalists are using to report news stories that authorities don’t like. As the U.S. Press Freedom Tracker has reported, journalists already face criminal charges, harassment, and seizure of their drones by officials or private security for no good reason. Some states have tried to enact broad bans on the use of drones, including for journalism.

The Senate proposal would empower the government to take this harassment and suppression to another level. Nothing in the measure requires authorities to take into account whether drones are being used for activity protected by the First Amendment, like gathering news. It also doesn’t require the government to try steps like warning a drone off from a restricted area before escalating to harsher measures like destroying it, which, in most cases, would also destroy the images it captured. Journalists who have their drones improperly seized or destroyed have no recourse under the bill to challenge that action.

Troublingly, the proposed law also actively prevents the public from learning about how authorities are using their powers to take action against drones. There’s no requirement for the government to publicly report how often it uses its counter-drone authority or its reasons for doing so. That makes it difficult for journalists to uncover and report on abuses. Even worse, the bill creates new exceptions to state public records laws that could let states keep secret the details of their operation of counter-drone technology.

All of these flaws mean the Senate’s proposed act isn’t ready to become law. Allowing the government to secretly take down drones without regard for the First Amendment is an invitation for abuse. Yes, malicious use of drones is a potential problem that Congress should address, but not at the expense of freedom of the press and the public’s right to know.