Freedom of the Press

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

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

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

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

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

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

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

Read the full op-ed here.

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

FOR IMMEDIATE RELEASE:

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

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

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

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

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

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

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

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

The full letter is available here and embedded below.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

You can read the full interview here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. Honoring FPF co-founder Daniel Ellsberg:

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

2. Supporting the press freedom community:

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

3. Extending FPF’s impact nationally and globally:

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

4. Defending local and big-name journalists alike:

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

5. Demonstrating SecureDrop’s influence on global issues:

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

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

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

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

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

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

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

Read the op-ed here.

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

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

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

As Vogus explained:

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

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

Listen to the whole interview here.

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

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

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

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

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

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

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

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

Follow the Tracker’s Election Blog here.

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

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

A political slap fight

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

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

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

New Jersey journalists’ protection from SLAPPs may be at stake

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

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

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

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

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

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

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

A prior restraint thrown in for good measure, too

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

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

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

Before former IRS contractor Charles Littlejohn leaked then-President Donald Trump’s tax returns to The New York Times, Trump was the only president since the Ford administration to refuse to release his returns. Above, protesters calling for Trump financial disclosures at a 2017 rally in Minnesota. "Rally to demand Donald Trump release his tax returns" by Fibonacci Blue is licensed under CC BY 2.0.

Former IRS contractor Charles Littlejohn received the maximum sentence of five years’ imprisonment on Monday, after pleading guilty to leaking Donald Trump’s returns to The New York Times. Littlejohn also leaked a tranche of ultrawealthy Americans’ tax documents to ProPublica.

It’s sadly ironic — and reflects poorly on our legal system — that Littlejohn is being harshly punished for exposing billionaire tax evasion while billionaire tax evaders themselves continue to be afforded leniency by the judiciary. Littlejohn pleaded guilty and expected to be punished. But throwing the book at him — despite the government’s initial estimate that he should face just eight to 14 months’ imprisonment based on federal sentencing guidelines — will chill future whistleblowers from revealing corruption and wrongdoing.

Littlejohn’s disclosures enabled ProPublica to report, among other things, the frequency with which billionaires pay taxes at a lower rate than other Americans — when they even pay taxes at all. The reporting brought global attention to the myriad of ways ultrawealthy Americans exploit tax loopholes. It started an important national discussion and prompted calls for reform by numerous elected officials, culminating in President Biden’s proposal of a minimum tax for the kinds of ultrarich Americans whose records Littlejohn leaked to ProPublica.

The New York Times’ reporting on Trump’s tax returns disclosed by Littlejohn revealed that the self-proclaimed billionaire had paid no federal income tax in 10 of the previous 15 years because he reported losing more money than he made. As a presidential candidate, Trump had refused to release his returns, despite other presidential candidates doing so voluntarily for decades. The Times’ reporting not only cast doubt on Trump’s carefully cultivated image as a business genius but also raised concern over the incentives for him to use the presidency to reduce his debts.

But none of that mattered to Judge Ana Reyes, who at sentencing called Littlejohn’s disclosure of Trump’s filings “an attack on our constitutional democracy.” Reyes also likened Littlejohn’s case to the Jan. 6 attacks on the Capitol, and said: “It cannot be open season on our elected officials — it just can’t.”

Leakers who act out of conscience can further democracy

Whistleblowers who provide information to the press may act outside the law. But sources who inform the public about government and private wrongdoing out of moral belief aren’t akin to the violent insurrectionists who tried to overthrow the government — many of whom have not yet faced justice or been punished far less for actually assaulting people, by the way.

Sources who act out of conscience to leak information to the press and expose wrongdoing are furthering our democracy, not attacking it. Had whistleblower Daniel Ellsberg not leaked the Pentagon Papers to the press, the American public may never have learned of the American government’s lies regarding the Vietnam War. Ellsberg, who was called the “most dangerous man in America” at the time of the leaks in 1971, was eulogized as a national hero when he died last year.

Whistleblowers like Ellsberg often resort to leaking documents to the press because they believe, based on their experience and observations, that working through official channels will not affect change and that government agencies will cover up, rather than investigate, malfeasance. Their sincere hope is that an informed public will be better able to more effectively pressure those in power to rectify abuses than they can themselves. They’re willing to take enormous personal risks to accomplish that goal.

Littlejohn, too, took an enormous personal risk and is now facing the consequences. But Reyes should have considered his motivations when determining what punishment fits the crime. There’s no credible allegation that he acted for personal gain, out of spite, or for any other reason besides his conscience compelling him to expose abuses of our system of taxation. Even murder defendants are entitled to consideration of their motives at sentencing. Whistleblowers certainly should be as well.

Balancing privacy against public value

It’s true that Littlejohn’s leaks undermined the government’s legitimate role in protecting financial privacy, which has important public value. But when sentencing Littlejohn, Reyes also should have balanced this harm against the unique public importance of the documents that Littlejohn provided to the press.

For years, advocates have raised alarms over the ways in which our tax system advantages the rich. At the time of Littlejohn’s actions, news outlets were reporting that newly enacted tax cuts were heightening the problem. But explaining the tax code to people is one thing — showing them concrete examples, as ProPublica was able to do following Littlejohn’s disclosures, is quite another.

Similarly, since Trump first won the Republican nomination in 2016, people had raised concern over how little the public knew about the finances and potential conflicts of interest of the wealthiest candidate ever nominated by a major political party. But Trump had consistently managed to evade transparency. Littlejohn’s disclosure ensured that the press could inform the American electorate.

Similar to the Panama Papers, which shed light on how offshore accounts were used to hide corruption and crime, Littlejohn’s whistleblowing helped the American public understand how elites and even public officials were evading taxes. And like many whistleblowers, Littlejohn acted as a last resort when multiple other attempts to hold these individuals accountable had already failed.

Rather than consider any of these nuances, Reyes imposed the harshest penalty she could on Littlejohn. Reyes may be worried about open season by leakers against elected officials. Maybe instead we all should be concerned about open season in the courts against whistleblowers.

Mississippi lawmakers claim journalists should be banned from the Senate floor because it’s too crowded. But dig just a little bit deeper and the true anti-press and anti-transparency motivations come to the forefront. "Senators Only" by Thomas Hawk is licensed under CC BY-NC 2.0.

Everything old is new again.

In 2022, we noticed a decades-old trend had been revived: State legislatures restricting reporters’ access to the legislative floor. According to a report by the U.S. Press Freedom Tracker, at least four states — Iowa, Kansas, Texas, and Utah — enacted policies or practices in 2022 that limited journalists’ access to their legislatures. In early 2023, the New York State Assembly also refused to roll back pandemic-era restrictions on where reporters could go on the statehouse floor.

Now, Mississippi may be getting into the game of curbing reporters’ access to the place where lawmakers conduct the people’s business. A pair of resolutions recently introduced in the Mississippi Senate would bar journalists from the Senate floor, except for brief periods before and after legislative sessions, and would abolish the press office in the Capitol.

The resolutions’ sponsors have said they’re motivated by concerns about crowdedness and believe that changing technology will still allow reporters to work effectively. But dig just a little bit deeper and the true anti-press motivation comes to the forefront.

One Mississippi newspaper reported, “Sen. Chuck Younger, R, who co-authored the bills, said part of the reason Republicans filed [them] was because he and others feel the press have been too ‘selective’ with stories they choose to write and sources.” The paper also quoted the sponsor of the bills, Sen. Kevin Blackwell, complaining about being close to reporters on the floor and having a camera “stuck in [his] face.”

Despite what Younger and Blackwell may feel, it’s blatantly unconstitutional to bar journalists from a legislative floor to retaliate against them for the news they publish or for daring to take pictures of politicians doing their jobs in public. But at least they’ve made it easy to identify the true reason they want to ban the press from the floor: because they dislike the transparency and news reporting that such access brings.

Though lawmakers in other states haven’t always been as quick to say the quiet part out loud, we have no doubt that they, too, are eager to undermine journalists’ ability to scrutinize them. And Mississippi isn’t the first state to try to punish reporters by withdrawing access to the statehouse floor.

In 2016, for example, Arizona House speaker David Gowan tried to roll out new “security” procedures for accessing the House floor and hallways that would’ve just happened to ban a reporter who had reported critically on Gowan. The speaker backed down after an outcry and legal threat from the First Amendment Coalition.

Concerns about crowds, security, and decorum are the most common fig leaves politicians offer as justifications for banning journalists from legislative chamber floors. But the truth is that journalists have had access to many statehouse floors for decades without causing problems — unless you consider accurate and thorough reporting about the legislative process a problem.

Of course, banning journalists from legislative floors doesn’t make their jobs impossible. In Mississippi, for example, reporters would still be able to report from the gallery. But putting journalists farther away from the action makes reporting harder and means less information for the public.

As the Committee to Protect Journalists put it, “Lawmakers’ whispers, eyerolls, and other hints about the course of debate are no longer visible to journalists” barred from the floor. And unless there are cameras operated by journalists who can call their own shots — as when C-SPAN could choose what to film in the U.S. House of Representatives for a brief period in 2023 — access to the floor is the only way for reporters to observe lawmakers up close and personally.

Restricting journalists’ access to the floor also makes it easier for politicians to hide from reporters and their pesky questions — questions that can hold them accountable to the public. After reporters in Kansas were relegated from that state’s Senate floor, one former lawmaker explained, “The session adjourns and members skedaddle out of there rapidly so it’s hard for journalists to get to them, unlike when they’re on the floor they can immediately get to them.”

Blackwell and Younger, and maybe even some of their fellow lawmakers, may view avoiding the press as a benefit. But with the state legislature set to consider issues that have the potential to reshape people’s lives, Mississippians need reporters more than ever to stay informed and influence their elected officials. If regular people are to have a seat at the table in Jackson, Mississippi, journalists must have a place on the floor.

Both the Obama and Bush administrations sought to force then-New York Times journalist James Risen to burn his sources. The PRESS Act is a bipartisan solution to the bipartisan problem of officials abusing their power to surveil journalists. "File:James Risen Miller Center.jpg" by Miller Center is licensed under CC BY 2.0.

The need to protect journalists from government surveillance and from court orders to burn their sources is urgent, but that doesn’t mean we support just any journalist shield bills. Some past bills purporting to protect journalist-source confidentiality don’t go far enough, or contain exceptions so robust that they can actually be harmful.

But the PRESS Act, which passed the House of Representatives without objection last week, is different. It’s the strongest shield bill we’ve ever seen. As it heads to the Senate, we don’t see enough room for improvement to hold out for a hypothetical better one.

Here are a few of the questions we’ve seen asked about the PRESS Act, along with our answers, which should help explain why we see it as the most important press freedom legislation in modern times.

Will the PRESS Act only protect established media outlets? No. Legislative definitions of journalism have always been tricky, and some bills have defined it far too narrowly. The PRESS Act, however, gets it right by protecting anyone who engages in journalism, not just professional journalists. That means its protection will extend to unconventional journalists and upstart outlets for which the expense of battling a subpoena can pose an existential threat. It defines “covered journalist” to mean “a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, investigates, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.”

Why should journalists get special treatment? They don’t. Numerous legal privileges having nothing to do with journalists protect confidential communications from being introduced in court. If you’ve seen a psychologist, your communications are privileged. If you’ve retained a lawyer, your communications are privileged. In fact, if you’ve ever been married, your communications are privileged. The PRESS Act recognizes that journalists depend on sources who come forward at great personal risk, and that society benefits from the resulting reporting — just like society benefits from people being able to seek counseling without fearing that their therapist will have to spill their secrets in a public courtroom.

Will the PRESS Act help reporters make up sources? No. Most journalists who cite confidential sources do so cautiously, in consultation with ethical guidelines. Sure, some unscrupulous reporters make things up. But that has nothing to do with the PRESS Act. Officials surveil journalists to find out who is talking to them — often because they reported something they only could've learned from an insider. If no one is talking to a journalist, there’s nothing to surveil. The only time a litigant might want to discover the absence of a source is if they’re suing a journalist for defamation. But the federal PRESS Act expressly carves out defamation cases because defamation is a matter of state law.

What if a journalist’s testimony is needed to prevent disaster? We’re not aware of any instance where the keys to stopping a catastrophe were found in a journalist’s notebook. Murderers and terrorists aren’t in the habit of letting the press in on their future plans. That being said, the PRESS Act contains exemptions for scenarios where information in a journalist’s possession is necessary to prevent terrorism or imminent violence. It then establishes commonsense procedures to ensure that the exemptions are not abused.

Can investigators accuse journalists of crimes to get around the PRESS Act? The PRESS Act does clarify that it doesn't prohibit investigations of journalists suspected of crimes, which makes sense. No one is suggesting journalists should be able to rob banks. But if the government tries to circumvent the PRESS Act by characterizing lawful newsgathering as a crime, the PRESS Act would entitle the journalist to notice and a hearing in front of a judge. That would allow the journalist to argue that the government's criminal theory violates the First Amendment and that, therefore, the "crime" carve-out doesn't apply.

Couldn’t investigators still get reporter-source communications from tech providers? No. The PRESS Act is the first shield bill we know of that expressly restricts using phone and email providers as a workaround to access journalists’ communications. It would’ve stopped those kinds of abuses by both the Trump and Obama administrations had it been in effect then.

Is the PRESS Act a gift to the “liberal media”? The PRESS Act is entirely apolitical. Nothing in the bill would allow Fox News to be treated any differently than The New York Times. No Republicans in the House objected to the act and its Senate co-sponsors include Republicans Lindsey Graham and Mike Lee. Other prominent Republicans like Mike Pence, Bob Goodlatte, and Jim Jordan have supported shield legislation, because, again, both Republican and Democratic administrations have abused their power to snoop on journalists who embarrassed them.

Why do we need the PRESS Act if states and some federal courts already recognize a privilege? It's true that 49 states already recognize the need to protect journalist-source confidentiality, leaving the federal government as an outlier. But state law doesn't apply to federal agencies or courts. And, while some federal appellate circuits recognize limited reporter's privileges, those limited privileges are wildly inconsistent between the circuits, and some recognize none at all. The PRESS Act is stronger than any privilege recognized in any federal court, and would bring much-needed consistency. Journalists don't know where investigations and lawsuits might arise and can't meaningfully assure sources of confidentiality when they don't know what law could apply.

The PRESS Act failed in the last Congress. Is it doomed to fail again? It’s true that the PRESS Act also breezed through the House in 2022 before dying in the Senate due to a rambling objection from one anti-press senator, Tom Cotton. But history doesn’t need to repeat itself. In 2022, the Senate bill picked up its only Republican co-sponsor, Lee, in November, leaving a month for it to be fast-tracked for inclusion in a year-end legislative package. This time, it’s only January, and both Lee and Graham are already on board on the Republican side, plus Sen. Dick Durbin has joined Sen. Ron Wyden on the Democratic side. One lone senator shouldn’t be able to derail a bill with that much bipartisan support — but it’s essential that senators hear from their constituents that this bill is a priority.

What can I do to help? Rightly or wrongly, journalist-source confidentiality is seen as a niche issue and it’s unlikely to be first on any senator’s agenda. That means it’s important for senators to know that their constituents — whether they’re journalists or just people who value press freedom — care about the PRESS Act. Call or write your senator, or, if you’re able, write a letter or op-ed for your local paper. Don’t think it can work? Consider this: Durbin, the chair of the Senate Judiciary Committee, proclaimed his support for the PRESS Act in response to an op-ed urging him to do so.

Reps. Cori Bush, at left, and Rashida Tlaib, center, spoke at a vigil in Washington, D.C., on Jan. 17, 2024, for journalists killed in Gaza.

Palestinian journalist Wael al-Dahdouh had already buried his wife, two children, and grandson, and been wounded himself when, on Jan. 7, 2024, his eldest son Hamza al-Dahdouh was killed by an Israeli airstrike in south Gaza. Hamza — a journalist, like his father — now appears on the grim list of the more than 80 journalists and media workers who, according to the Committee to Protect Journalists, have been killed since the Israel-Gaza war began.

Last week, Defending Rights & Dissent held a vigil outside the U.S. Capitol Building in Washington, D.C., to honor and remember those journalists. Freedom of the Press Foundation (FPF) co-sponsored the vigil, where speakers included Reps. Rashida Tlaib and Cori Bush, and journalist Townson Cocke.

More journalists have been killed in Gaza than in any other conflict since CPJ began keeping track of journalists’ deaths. At the vigil, Defending Rights & Dissent Policy Director Chip Gibbons acknowledged that covering war is dangerous; however, he noted that media and press freedom organizations have found evidence that the Israeli military has intentionally targeted journalists. And Israel has not committed to taking any steps to prevent inadvertent killings of journalists, despite news organizations’ attempts to clearly identify their reporters and inform the Israeli military of their locations.

In the face of these horrific deaths and apparent war crimes, the United States’ response has fallen shamefully short. Earlier this month, a coalition of leading press freedom and human rights organizations, including FPF, sent a letter to the Biden administration demanding that it do more to protect journalists’ ability to safely and freely report on the conflict.

At the vigil, FPF Deputy Advocacy Director Caitlin Vogus reiterated those calls. As Vogus explained, “Protecting journalists matters not only because all civilian life should be protected during wartime. It matters because protecting journalists also protects the world’s right to know about what’s happening in Gaza.”

Vogus also urged the Biden administration to allow the international press to enter Gaza independently of the Israeli military, so journalists can freely and fully report on the war. At a recent State Department briefing, spokesperson Matthew Miller refused to commit the U.S. to supporting independent journalists’ access to Gaza, stating only that it’s “not a decision for the United States to make.” It’s outrageous that the U.S. won’t even express support for international press access to Gaza, let alone do something about it.

As Rep. Bush explained at the vigil, “The role of a journalist, particularly in the face of conflict, is to capture the stories, the raw emotions, and the overlooked realities that often go unseen, unheard, untold. …. This role is significant when it comes to the journalists, particularly the Palestinian journalists, who set out to share the stories and perspectives of Palestinians.”

Added Rep. Tlaib: “The Israeli government’s brutal attacks have made Gaza the deadliest place in the world for journalists and their families. . . . We call on the international community, please come together to investigate the Israeli government’s war crimes for its repeated attacks on journalists.”

Finally, Cocke called on reporters to do more to tell the human stories of Palestinians in Gaza and offered to help connect reporters in the U.S. to sources in Gaza and other Palestinian communities.

Palestinian journalists deserve our protection and the world’s attention, Gibbons explained, quoting Wael al-Dahdouh, “We feel that we are being killed twice: once by the bombs and once by the silence.” Gibbons told the crowd at the vigil, “We are breaking that silence.”

Rep. Kevin Kiley (left) co-sponsored the PRESS Act in the House, where it passed unanimously on Thursday. Now, co-sponsor Sen. Dick Durbin (right) must ensure the bill gets a vote in the Senate

FOR IMMEDIATE RELEASE:

Freedom of the Press Foundation (FPF) applauds the House of Representatives for unanimously passing the PRESS Act, a bipartisan federal reporter’s shield law that would protect journalists from being forced to name their sources in federal court and would stop the federal government from spying on journalists through their technology providers.

The PRESS Act is the strongest federal shield bill that Congress has ever proposed. It’s vigorously supported by major media outlets and civil society organizations.

“Journalists shouldn’t be forced to choose between burning their sources or going to jail,” said FPF Director of Advocacy Seth Stern. “With the House’s bipartisan vote approving the PRESS Act, Congress comes one step closer to providing powerful protection against surveillance of journalists. Now it’s up to the Senate to finish the job by passing this historic legislation and sending it to the president’s desk to sign.”

“Even as the House votes to pass the PRESS Act, reporters are being put in the agonizing position of being threatened with crippling fines or even jail time for refusing to name their sources,” said FPF Deputy Director of Advocacy Caitlin Vogus. “Now that the House has passed the PRESS Act, the Senate must act to ensure that whistleblowers and other sources feel free to share newsworthy information that journalists use to inform the public.”

Forty-nine states and the District of Columbia have shield laws or equivalents recognized by courts. But without a federal shield law, journalists still risk being jailed or punished for refusing to reveal sources or their newsgathering material in federal courts, congressional inquiries, and administrative proceedings. Both Republican and Democratic administrations have abused their power to spy on reporters who criticized them or exposed their secrets.

In a rare example of bipartisan consensus, both Republican and Democratic members of Congress agree that America needs the PRESS Act to protect journalists, sources, and the public’s right to know. The PRESS Act is co-sponsored in the House by Reps. Kevin Kiley, R-Calif., and Jamie Raskin, D-Md.; and a bipartisan group of 18 other representatives. In the Senate, it’s co-sponsored by Sens. Dick Durbin, D-Ill.; Lindsey Graham, R-S.C.; Mike Lee, R-Utah; and Ron Wyden, D-Ore.

Screenshot of what's left of a Lawfare blog post summarizing Reuters' reporting about an Indian tech firm, Appin, and its alleged hack-for-hire operations.

News outlets worldwide have been heeding demands to remove articles about an Indian tech company called Appin and its co-founder, Rajat Khare. Major U.S. outlets are among those that have been successfully pressured to take down their reporting — not just in India, but here as well.

The ordeal raises serious concerns about the global reach of local judges thousands of miles away. It also raises questions about the adequacy of existing legal safeguards to deal with international censorship campaigns arising from countries like India, with governments that don’t respect human rights, let alone press freedom. Even when the government is not directly involved in a censorship campaign, its reputation precedes it, and it would be impossible for news publishers not to take note.

Multiple news outlets take down stories globally

Everyone from Reuters to the U.K.’s The Sunday Times and outlets in Luxembourg and Switzerland has censored their reporting about Khare and Appin after either lawsuits or takedown letters, according to a report in the Daily Beast. The legal actions often come from an entity calling itself the “Association of Appin Training Centers” or its alleged executives.

Reuters, for example, ran a detailed investigation last November about how Appin functioned as a “hack-for-hire powerhouse.” Khare and Appin vehemently deny the allegations. Reuters published the article despite an injunction, entered in 2022, prohibiting it from reporting anything “defamatory” about the association. Presumably, Reuters believed the article wasn’t defamatory, so the injunction wouldn’t apply.

But within weeks, an Indian court deemed the article “indicative of defamation” — despite failing to identify any fallacies in the report — and ordered it removed from the internet. Reuters complied, taking down the article not just in India but around the world. Even the Internet Archive’s Wayback Machine removed the Reuters story. Fortunately, DDoSecrets has stepped up to host the Reuters story and other censored reporting. (Sidenote: It is raising funds so it can continue doing its important work.)

The order doesn’t expressly limit the required takedown to India, which may suggest the Indian court intended it to be removed globally. But Indian courts don’t have global jurisdiction. And a U.S. court would be particularly unlikely to enforce the order, given the nearly insurmountable constitutional presumption against prohibitions on publication, or prior restraints. There’s even a law in the U.S., the SPEECH Act, against honoring defamation judgments from countries that don’t protect free speech.

So why did Reuters remove the story in the U.S. and everywhere else, replacing it with an editor’s note that it stands by its reporting and plans to appeal (a slow process anywhere, but especially in India)? And why have so many others complied with takedown demands?

Some publications, like The New Yorker, have kept their stories up despite reported threats from Khare’s lawyers (which reportedly included the firm Clare Locke, known for representing Dominion Voting Systems in its defamation suit against Fox News), but at least 18 other outlets also either removed articles about Appin outright or erased mentions of Khare.

It can’t just be ignorance of the law. Khare is far from the first rich guy to try to silence critics. Reuters and other censored outlets have plenty of First Amendment lawyers and must know U.S. law is on their side. They also know that Clare Locke succeeded in the Dominion case largely because it had some very helpful evidence to work with, not because it possesses some secret legal magic wand that makes the First Amendment disappear.

Demands for removal leverage risk of deplatforming by tech companies

A closer look at the association’s tactics may provide answers. For one, the order in the Reuters case not only requires the story to be taken down by Reuters but to be deindexed by Google. The association is making sure to let its other targets know about that, including in a recent takedown letter to Ron Deibert of the Citizen Lab (judging from Deibert’s X post about the letter, he’s unlikely to take down his article). Others have received similar letters.

Perhaps the message is that resistance is futile: There’s no point in paying lawyers to fight takedown demands if, at the end of the day, Google can make the articles invisible anyway.

But another line from the letter to Deibert stood out even more: It claims the “article is contemptuous not only to the Plaintiffs concerned however it is absolutely derogatory to the entire Indian Nation.” The article says nothing about India in its entirety.

Further nationalistic language appears in correspondence to Meta, attached to court documents filed in the Reuters case. Those letters, from the association's Indian counsel, baselessly accuse the journalists behind the Reuters story (Christopher Bing, Zeba Siddiqui, and Raphael Satter) of a “serious unusual espionage operation” and “a well-planned modus operandi to malign Ruling Indian Government,” demanding Meta therefore block their WhatsApp accounts.

According to court documents, the association also sent demands to block the journalists’ accounts on LinkedIn and Naukri, an Indian platform they allegedly used to contact potential sources. Fortunately, neither LinkedIn nor Meta appears to have complied to date, but the threat of deindexing or deplatforming is a powerful cudgel. Tools like WhatsApp are essential for journalists these days.

Veiled threats have an impact regardless of credibility

The allusions to the nation of India and its current rulers in legal correspondence about disputes between private companies also may serve another purpose.

The administration of Prime Minister Narendra Modi is infamous for its crackdowns on speech and the press, especially online. India, for example, managed to “tame Twitter” with its “hostage” law, requiring social media companies to keep representatives in the country for authorities to arrest if their employers misbehave. That law may not bind news outlets, but it doesn’t have to. They need to have personnel in India if they want to cover news there.

Lawyers in the suit against Reuters have already asked for the three reporters to be jailed. They’re not based in India, but might authorities arrest someone else in their place? News outlets may not want to find out the hard way, especially if they’re under the impression that they’ve offended the “Ruling Indian Government.”

We’re unaware of any indication that the Modi administration takes criticism of Appin or Khare personally or would even care at all. The claim that the Reuters article maligns the current government is perplexing given that the reporting focuses on events predating Modi’s 2014 inauguration. As for Khare, he’s now an Antiguan national living in Switzerland.

Nonetheless, perhaps the association’s intent in invoking the “Ruling Indian Government” is to issue a not-so-subtle reminder, to anyone considering flouting its demands, of who they may be messing with. And it seems to be working. Bluff or not, news outlets may be afraid to call it.

American legal protections can’t stop foreign censorship tactics

While the U.S. may not always be the global leader in press freedom it thinks it is, its legal protections against foreign censorship orders are relatively strong. But that may not matter if others follow Appin’s playbook.

U.S. outlets know the First Amendment can’t protect them from stories being suppressed, or reporters deplatformed, by tech companies at the behest of foreign courts. It also provides no solace against veiled threats, however noncredible they may be, to sic authoritarian regimes on journalists.

The aforementioned SPEECH Act was intended largely to stop U.S. courts from enforcing judgments entered under the U.K.’s plaintiff-friendly libel laws. That’s helpful when U.S. outlets are primarily worried about legal risk back home. But in cases arising from countries ruled by governments like Modi’s, there may be larger concerns than that.

And if the U.S. is going to continue its partnerships with such countries, then policymakers here need to think seriously about how to address those concerns.

The Biden administration has maintained that it won’t “lecture” India about its domestic human rights problems (although recent reporting says alleged Indian assassination plots have “complicated” the U.S.-India relationship). But censorship emanating from Indian courts is not a domestic issue when it’s stopping U.S. citizens from reading important news about a U.S. “strategic partner.” Whether or not India’s government had any direct involvement with this latest campaign to silence the press, it may have created the climate that enabled it.

If the U.S. insists on partnering with censorial regimes, then policymakers need to start thinking seriously about the consequences for free speech back home, and the administration needs to do more to stand up for American values than empty talk. Otherwise who is going to tell us about the next hack-for-hire operation — or assassination plot, for that matter?

Freedom of the Press Foundation (FPF) is thrilled to welcome award-winning journalist and WIRED’s Global Editorial Director Katie Drummond as the newest member of its board of directors.

Before joining WIRED as its top editor, Drummond ran VICE's digital reporting, video, and audience development teams around the world, where she expanded its news operations and investigative reporting efforts across Latin America, Europe, and Asia. Her teams at VICE were honored with dozens of major journalism prizes, including several Emmys, Online Journalism Awards, Society Of Publishers in Asia Awards, and a Peabody Award, among other plaudits.

“I’ve led newsrooms that have benefited immeasurably from Freedom of the Press Foundation’s remarkable support — from encryption tools it has developed to facilitate secure correspondence with sources, to digital security training sessions that allow reporters to do their jobs as safely as possible,” Drummond said. “I’m humbled to join the board of an organization I’ve both worked with and admired for many years, and I look forward to collaborating with everyone at Freedom of the Press Foundation to continue supporting and empowering journalists to do their very best work.”

Drummond was previously the editor-in-chief of Gizmodo, and served in key leadership roles at Bloomberg and The Verge, among other outlets. She started her career as a reporter, covering national security for WIRED during the U.S. wars in Iraq and Afghanistan.

“We are thrilled to welcome Katie to Freedom of the Press Foundation’s board,” said FPF’s Executive Director Trevor Timm. “Her incredible experience leading global newsrooms means she has unique insight into so many of the evolving press freedom threats journalists face today. Her adept management skills will also be a huge asset to our organization as we grow in the years to come.”

Drummond will serve a three-year term on FPF’s board of directors. She joins other award-winning journalists, whistleblowers, and free expression advocates, such as Azmat Khan, Wesley Lowery, Laura Poitras, Edward Snowden, John Cusack, and board President Rainey Reitman.

Rules that silence public employees can also stymie journalists from reporting newsworthy information.

As the COVID-19 pandemic raged in Allegheny County, Pennsylvania, journalist Brittany Hailer reported story after story about its impacts on the county jail, including the deaths of incarcerated people, shortages of correctional and medical staff, the prolonged use of 23-hour lockdowns, and unsafe and unsanitary kitchen practices.

Hailer’s news stories quote many sources: incarcerated people, their family members, the jail spokesperson and warden, and more. But the voices of rank-and-file jail employees are nowhere to be found, at least on the record. The reason? Jail policies that prevent them from speaking to the press.

Government gag rules are policies that prohibit public employees from speaking to journalists about their work or require them to seek approval from higher-ups first. Gag rules often mean that journalists seeking firsthand information must go through a high-ranking official or public information officer who often lacks the on-the-ground knowledge reporters need. And even if PIOs do know some information about a news story, they can be more concerned with protecting the government’s image than giving a reporter the facts.

Last summer, Hailer became the first journalist in the country to file a lawsuit testing government gag rules, when she brought a First Amendment challenge to the Allegheny County Jail’s policies. Hailer’s lawsuit, which remains pending, claims there are several jail workers who want to speak out about unreported problems, but can’t because of the gag rules.

She argues that the policies violate her First Amendment right to speak to sources who want to talk to her. Hailer also argues that they violate the First Amendment rights of the jail employees by prohibiting them from speaking as private citizens on matters of public concern.

The Supreme Court has said that employees don’t surrender all of their First Amendment rights simply because they take a government paycheck. Based on that precedent and other decisions disfavoring “prior restraints” on employee speech, numerous courts have ruled in favor of government employees who have challenged policies requiring them to seek preapproval before speaking about their work.

Despite that, government gag rules remain abundant, either because agencies don’t know about this precedent or just don’t care, especially if their individual policy doesn’t face a court challenge.

While in the past, government employees may have felt relatively free to speak to reporters, in recent years, censorship by PIO has become the norm. The Society for Professional Journalists has long documented and decried these rules as “an effective form of censorship by which powerful entities keep the public ignorant about what impacts them.”

Some journalists say that they don’t need government sources to speak on the record to effectively report the news, and it’s true that there are other ways to find and report information. But government employees are important sources for many journalists, and rules muzzling them undoubtedly make reporting harder. When government sources can’t confirm information on the record or are afraid to speak even off the record, there’s sure to be important information that never makes it to the public.

Plus, government agencies are making it harder and harder for even the most diligent reporters to find other sources of information. Freedom of Information Act backlogs continue to grow. Courts close trials to the public or otherwise limit public access. Officials target journalists for uncovering information online, even when the government puts it on the internet itself. Excessive secrecy, combined with gag rules, leaves reporters with fewer and fewer avenues to report about what’s truly happening within all levels and branches of government.

Gag rules also help the government manipulate for political reasons the information journalists and the public receive. The Trump administration stopped the Environmental Protection Agency and other federal agencies from talking to the press about climate change. During the height of the pandemic, Trump also prevented employees of the Centers for Disease Control and Prevention from talking to the press, potentially endangering people’s lives.

But a government policy gagging employees doesn’t have to be part of a nefarious plot to cover up wrongdoing for it to interfere with the public’s access to information. These rules often prevent even basic information about how government employees do their jobs from getting out. For example, gag rules have forbidden everything from a police officer talking about the impact of responding to a school shooting to a state scientist explaining his research on birds.

Hailer’s legal challenge will be an important step in establishing that journalists have a First Amendment right to speak to willing government employees. But it shouldn’t take a legal battle for the Allegheny County Jail and other government offices to understand why gag rules are unconstitutional and wrong. The point is simple: The people who work for the public should be allowed to speak to the public.

"Elon Musk" by dmoberhaus is licensed under CC BY 2.0.

X (formerly Twitter) owner Elon Musk’s purported support for free expression is nothing more than a “snake-oil salesman’s marketing scheme,” writes Freedom of the Press Foundation Executive Director Trevor Timm in The Guardian.

The most recent example of Musk’s hypocrisy on free speech was X’s brief suspension of several left-leaning journalists and commentators. That incident followed Musk’s frivolous lawsuit against Media Matters in November and a long line of other anti-speech antics. Musk “uses his power to retaliate against his critics more than anyone this side of Donald Trump,” Timm wrote. He’s also gutted X’s legal department and made its rules and procedures “opaque and arbitrary.” It doesn’t have to be this way, though:

Imagine Musk’s professed love for free speech wasn’t entirely fake. As the wealthiest person in the world, he could have huge leverage. He could create a transparent, robust appeals process for [X users] who allegedly break the rules and get suspended. He could employ a huge legal team to fight any and every government order for censorship around the world, while protecting the anonymity of his users against those who sue.

Read the full article here.

A portion of the Nov. 30, 2023, court order attempting to censor BusinessDen reporter Justin Wingerter. Fortunately, he did not comply.

Our U.S. Press Freedom Tracker documented 11 prior restraints against journalists in 2023, the most since it started tracking them in 2017. Prior restraints — or government orders not to publish information — have long been considered the “most serious” First Amendment violation. 

Judges, like anyone who went to law school, should know that the Supreme Court has never approved a prior restraint against the press, even when the government alleged national security was at stake. And yet, courts keep entering them with little regard for the law, leaving journalists censored while often slow-moving appellate processes play out.

Freedom of the Press Foundation Director of Advocacy Seth Stern wrote in the Columbia Journalism Review that it may be time for news outlets to reconsider complying with these unlawful orders. Stern argues that:

"The law is useful only if judges respect it. But when the law on press freedom is not useful for them, they often don’t. And in First Amendment cases, even the most egregious violators face no consequences. It seems the only way judges are going to stop is if they learn that the press will disregard their orders, shame them on editorial pages, and dare them to imprison journalists for doing their jobs. Is that contempt of court? Maybe. But censorial judges deserve contempt."

You can read the full article here.