Freedom of the Press

Florida Gov. Ron DeSantis

FOR IMMEDIATE RELEASE: A Florida representative filed legislation today aimed at scaling back protections against public figures weaponizing the courts against their critics.

The bill echoes talking points discussed by Gov. Ron DeSantis and his guests during a roundtable discussion on defamation law earlier this month. Freedom of the Press Foundation (FPF) responded to that anti-press display in the Tampa Bay Times last week.

The bill would help powerful litigants evade the protections established by the landmark 1964 Supreme Court case New York Times Co. v. Sullivan which, along with subsequent cases, required public figures to prove “actual malice” in suits for defamation. It would stifle investigative reporting by presuming statements attributed to anonymous sources to be false.

It would also allow prevailing defamation plaintiffs to recover their attorneys’ fees, a rare exception to the “American rule” that litigants bear their own costs. The bill resembles a proposal DeSantis’ office considered, but ultimately did not introduce, last year.

A statement by Seth Stern, director of advocacy for Freedom of the Press Foundation (FPF) and a First Amendment lawyer, is below:

Gov. DeSantis continues to make clear his disdain for freedom of speech and the press and to prioritize censoring dissent over governing. This bill would do nothing for ordinary Floridians but would allow government officials and celebrities to harass and even bankrupt their critics with expensive litigation. It would stifle investigative reporting by presuming any statements attributed to anonymous sources to be false despite that (or, given DeSantis’ ambitions, maybe because) confidential sources have literally brought down presidents in this country.

The Florida legislature should reject this political stunt and Floridians should not tolerate their governor’s experiments in authoritarianism in their name and at their expense. The U.S. Congress should safeguard the First Amendment by codifying Sullivan and ensuring that the press and public are protected from politically-motivated defamation lawsuits.

Florida Gov. Ron DeSantis

Last week, Florida Gov. Ron DeSantis hosted a roundtable discussion to brainstorm on how politicians and celebrities can weaponize the courts against their critics. We responded to his stunt in an op-ed in the Tampa Bay Times.

But playing defense on newspaper pages is not enough — a legislative response is needed. Fortunately, a recent article in the Federal Communications Law Journal (PDF) proposed just that.

Authors Matthew Schafer and Jeff Kosseff explain that DeSantis is not the only one threatening established press freedoms. Supreme Court justices, including Clarence Thomas and Neil Gorsuch, have floated revisiting New York Times v. Sullivan – the seminal 1964 case requiring public figures to establish “actual malice” to sue for defamation. That means proving that defendants either knew their statements were false or recklessly disregarded the truth.

As explained in our op-ed, the actual malice rule prevents the rich and powerful from nitpicking at every hyperbolic statement and inconsequential error to punish their critics with expensive litigation. Without it, the prospect of having to prove the truth of every detail of a news story to a jury would deter already cash-strapped publishers — not to mention independent journalists who can’t afford lawyers — from challenging those in power with adversarial reporting.

Should DeSantis propose a Florida law to circumvent Sullivan (as he has considered before), it will likely end up before a Supreme Court with at least two sympathetic justices — maybe more.

Schafer and Kosseff explained in Slate that if Sullivan is overruled, defamation law would be left up to the states, similar to abortion laws without Roe v. Wade. “Some states may well be exceedingly protective of free speech/free press rights. But others might use the overruling of Sullivan to impose draconian measures meant to control political debate,” they wrote. And the state officials most interested in suppressing investigative reporting will likely be the same ones who most need to be investigated.

That’s why a legislative solution at the federal level is so crucial. Some who oppose Sullivan, like DeSantis and Donald Trump, do so for self-serving reasons — as part of ongoing crusades to stifle dissent. They’re not persuadable. But other critics have little problem with the substance of the actual malice rule. They just believe it should come from Congress and not the courts. That provides hope for bipartisan support for codification.

Like Sullivan, the legislation proposed by Schafer and Kosseff “would discourage baseless defamation actions altogether while leaving the courts open to plaintiffs with valid claims.” In addition to codifying the actual malice standard, it would make permanent the Supreme Court’s prohibition on liability for statements of opinion. That limitation is crucial to, among other things, creating adequate breathing room for heated campaign rhetoric.

As important as it is to codify current protections, recent history shows they are not enough. There has been a spike in politically-motivated defamation suits by powerful public figures, notwithstanding Sullivan, over the last few years. Billionaires with axes to grind against the press, but no viable claims of their own, have taken to funding surrogate plaintiffs to sue in their place, often without having to disclose who is pulling the strings. Politicians have even tried planting lawsuits by non-public figures so they can evade the actual malice requirement.

Schafer and Kosseff’s proposal would help prevent those abuses by imposing limitations on damages so that legitimate defamation plaintiffs can be compensated for actual harm they suffered but cannot shut down media outlets with punitive jury awards.

DeSantis and his ilk aside, there is reason for optimism that elected officials in this country still understand the need to restrict anti-press litigation. Most states now have laws against Strategic Lawsuits Against Public Participation (SLAPPs) that allow victims of frivolous defamation cases to promptly appeal adverse rulings and recover their attorneys fees.

Those anti-SLAPP laws have passed both Democratic and Republican legislatures. Like Sullivan, they recognize that many powerful defamation plaintiffs don’t care if they win — their entire objective is to punish those who criticize the government with litigation costs.

Congress also came within inches in December of passing the bipartisan PRESS Act — which would have ended abuse of the court system to surveil journalists and compel them to burn their sources. Efforts are underway to finally make it the law this year.

Perhaps 2023 could mark the end of both government surveillance of journalists and retaliatory defamation claims by public officials. That would make it one of the most significant years for First Amendment freedoms in the nation’s history. But either would be a good start in sending a clear message that the free press is not dependent on the whims of thin-skinned politicians.

Latah County Courthouse, Moscow, Idaho

Judicial gag orders are often unconstitutional even when they’re carefully crafted. But when they’re not, they can create widespread confusion and wreak havoc on the free press.

An order entered in the Idaho murder trial of Bryan Kohberger is the latest example. The embarrassingly incoherent document purports to bind everyone from “law enforcement personal (sic)” to attorneys for victims’ families and “any interested party in this case.”

Worse yet, Judge Megan Marshall used “including, but not limited to” language to introduce the list of those supposedly gagged, leaving anyone not expressly mentioned to wonder if they are also silently censored and at risk of being held in contempt of court.

For example, the mayor of Moscow, Idaho, reportedly told journalists he can’t comment on the effects of the murders on the community due to the order. The police department issued a press release that it will no longer discuss the case with the media or public. A victim’s relatives and their attorneys had to file a motion asserting their otherwise obvious right to speak for themselves. A local 911 service requested clarification on whether it can comply with open records laws and release tapes requested by the press without running afoul of the gag order. Other agencies denied records requests outright, citing the order.

Over two dozen media outlets have challenged the order because it “restrained [their] rights to gather and publish information about this newsworthy matter” by prohibiting potential sources from making any statements except direct quotes from the public court record.

Judges, of course, are not dictators, or even legislators. They have no authority to issue orders directed to the public at large, or, for that matter to miscellaneous attorneys and government employees with an “interest” in their cases. And they certainly have no business overriding open records laws from the bench.

Their power extends only to the parties and attorneys appearing before them in their courtroom, and even then they are subject to Constitutional limitations and required to specifically explain the necessity for any gag order. Marshall only vaguely alluded to “preserv[ing] the right to a fair trial,” but the Supreme Court has repeatedly cited studies confirming jurors’ ability to set aside pretrial publicity. It has also explained that there are plenty other ways to avoid juror bias without censorship, like sequestering the jury or changing the trial location.

In theory, those whom Marshall unconstitutionally gagged should just ignore her order. She has no legitimate means of enforcing it. But if a judge has gone far enough off the rails to issue a flagrantly unconstitutional order, who is to say they might not dispatch compliant law enforcement officers to carry out their unlawful edicts? It wouldn’t be the first time.

And officials who must know they won’t be arrested for defying the order, like the mayor, now have a handy excuse to avoid the press.

It’s great that media outlets and others are challenging the gag order. There is a good chance they’ll ultimately succeed. But the press can’t make up for lost time — important stories will go untold and valuable perspectives will be permanently suppressed.

That’s why judges need training so this doesn’t happen in the first place. And state bar associations and other power brokers need to stop endorsing judges like Marshall who either don’t understand or hold outright contempt for the First Amendment.

Chief Justice John Roberts, like Justice Clarence Thomas, faces questions about potential conflicts of interest arising from his spouse's work. A new federal law makes it harder for journalists to report on similar ethical concerns in the lower courts.

Government is often criticized for failing to offer creative solutions. Not so when it comes to circumventing freedom of information laws to hide official records from the public.

Government agencies abusing exceptions to open records laws is nothing new. But several recent developments illustrate how those in power are feeling increasingly emboldened to enact arbitrary rules declaring themselves exempt from transparency obligations in the first place.

This disturbing trend seems to be surfacing at all levels of government — state and federal, from the legislative branch to the judiciary to the military.

Legislatures and courts need to be prepared to address workaround tactics by those seeking to defy both the letter and the spirit of open records laws. Otherwise, hard-fought protections of the public’s right to know will continue to erode until they are rendered meaningless.

Missing meetings in Missouri: A Missouri judge acknowledged that “the Sunshine Law requires access to those public records which are not closed, i.e., open records.” Sounds good so far. But the judge went on to reason that officials can avoid the Sunshine Law by just not opening the records in the first place.

A 2018 amendment to the state constitution had clarified that the legislature was subject to open records laws (apparently some legislators previously had the nerve to claim otherwise). The following year, the Missouri House enacted a rule allowing itself to keep records, including those that contain “caucus strategy,” out of public view. The court upheld the move as within the House’s rulemaking authority, ignoring not only the constitutional amendment but the policies and public interests behind the Sunshine Law.

Document destruction in the desert: Arizona’s legislature went a step further. It exempted itself from the state’s open records laws altogether and granted legislators permission to destroy their emails. The House even empowered itself to delete texts and social media posts.

The Republican-led legislature cited “privacy” concerns. But open records laws reflect a consensus that government officials should not enjoy privacy when conducting official business. Critics noted that, had the rule changes been in place in 2020, they would have prevented investigation into the purported “audit” of Maricopa County intended to overturn the 2020 presidential election.

Frankly, there is no reason the Arizona legislature would have gone down this path unless it had something to hide. Hopefully the state’s investigative journalists can figure out what, despite their reduced access.

Pentagon privacy: The military is employing similarly dubious tactics to avoid a 2016 law requiring prompt access to court records “at all stages of the military justice system ... including pretrial, trial, post-trial, and appellate processes.”

The Pentagon, according to new guidelines, somehow took that to mean it could provide limited access only after the fact once a case has concluded (or, when cases end in acquittals, not at all). Transparency, however, is most vital during the trial and pretrial stage, before the damage has been done. And when defendants are acquitted, the press should be able to question what went wrong for prosecutors or why charges were brought in the first place.

The guidelines are irreconcilable with the law, which requires the military justice system employ, “insofar as practicable, the best practices of Federal and State courts.” No one would tolerate federal courts sealing their records until a verdict is handed down. A court martial should be no different. In fact, public access is even more vital in the absence of a civilian jury.

Covert courts: We wrote last month about the unconstitutional Judicial Security and Privacy Act which empowered judges to scrub public records and private websites of information about, for example, where their spouses work. We noted that the law creates “a backdoor Freedom of Information Act exemption outside FOIA’s appeal processes” and explained why its purported exception for matters of public concern is essentially useless.

Congress passed the act despite ongoing controversy regarding Ginni Thomas’ political activity and the potential conflicts it creates for her husband, Supreme Court Justice Clarence Thomas. This week, Jane Sullivan Roberts, wife of Chief Justice John Roberts, made headlines due to her legal recruiting for law firms that have business before the court. That means over 20% of Supreme Court justices face potential conflicts of interest due to their spouses’ employment. Journalists, fortunately, have managed to report those high profile instances despite the new law. But are we to believe that similar conflicts do not exist among district judges who, despite their lower public stature, have the power to sentence people to incarceration and even death?

Free Press fights fees: When government agencies cannot escape open records laws altogether they often turn to stall tactics or price gouging. The Nebraska Department of Environment and Energy attempted to charge the Flatwater Free Press $44,000 to produce requested records related to nitrates in the water supply.

Fortunately, the Free Press is suing. Its attorney noted that the NDEE is seeking to charge not just copying costs for records actually produced but for time spent deliberating whether to produce records at all. In other words, if the NDEE gets its way, the Free Press will have to pay for the time NDEE staff spent finding excuses not to comply with requests.

Two tiers in Texas: The Texas Senate made permanent COVID restrictions that barred reporters from the chamber floor and required them to instead observe proceedings from upstairs. It’s safe to assume the motivation was not public safety. At the federal level, Speaker Kevin McCarthy has so far ignored calls to allow C-SPAN to control its own cameras as it did during the negotiations over the speakership. This includes appeals from C-SPAN itself, Freedom of the Press Foundation (FPF) and numerous others, including several representatives.

Neither the Texas Senate nor the U.S. House cite any policy justification for reduced access. Texas allowed reporters on the floor until the pandemic and, to the best of our knowledge, nothing terrible happened. C-SPAN proved itself fully capable of operating its own cameras without causing any disruption (although some politicians may have been embarrassed).

It goes to show that, unless they foresee political consequences, government officials will almost always default to secrecy. That’s why merely having transparency laws on the books is not enough. Public pressure — and, often, litigation — is necessary to ensure that the laws survive constant and creative attempts to undermine their intent.

Sen. Lindsey Graham is one of many Republicans who have supported shield bills in the past.

The bipartisan PRESS Act is the strongest federal shield bill we’ve ever seen and would combat government overreach by ending surveillance of journalists except in national security emergencies. While the PRESS Act was introduced by a Democrat, Sen. Ron Wyden, it is by no means partisan legislation.

Even before Sen. Mike Lee co-sponsored the PRESS Act with Wyden, Republican former House Judiciary Chair Bob Goodlatte wrote in support of the bill. Conservatives, from Lindsey Graham to Mike Pence to Jim Jordan, have a long history of supporting similar “shield” legislation prohibiting newsroom surveillance by any administration. Forty-nine states, red and blue, protect reporters against government snooping, leaving the federal government — which has surveillance capabilities far superior to local authorities — as the outlier.

Here are just a few reasons why Republicans should prioritize passing the PRESS Act.

Conservative media is often the target of government surveillance

When the Obama administration wanted to uncover a source of then-Fox News journalist James Rosen in 2013, it secretly spied on him and read his emails.

At the time, Fox News and Rosen had no legal recourse when the government baselessly characterized Rosen as a criminal co-conspirator for doing his job — gathering and reporting the news.

Had the PRESS Act been in effect, Rosen would have received notice and a hearing before any warrant or legal order could be issued. And at that hearing, the government would have needed to prove that disclosure of Rosen’s records was necessary to prevent terrorism or imminent violence. It, of course, would never have met that burden, given it was investigating already 4-year-old reporting.

More recently, Yanping Chen, a Chinese-American scientist who is suing the FBI in federal court, has tried to compel Fox News and its former reporter Catherine Herridge to reveal their confidential sources. At a hearing on Chen’s demand in May 2023, the judge mulled the impact of Congress’ failure to adopt legislation like the PRESS Act, noting that lawmakers have “not seen fit to pass a reporters’ shield law.” The judge also reportedly questioned if the threats to the First Amendment posed by Chen’s demand were “overstated.”

The PRESS Act would eliminate any question about whether Fox News and Herridge can be required to out their sources.

The PRESS Act protects all journalists – regardless of politics

The bill is broad enough to protect both mainstream and independent outlets, regardless of political leanings, so that no administration, present or future, can circumvent the law to retaliate against adversarial journalists.

Here’s how it defines a journalist: “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.”

Simple as that. There are no loopholes, caveats or ambiguities that could conceivably allow the current administration, or a future one, to play favorites.

Many conservatives were outraged when, during Congressional hearings on the Twitter Files, Democratic representatives called Matt Taibbi a "so-called journalist" and urged him to reveal whether Elon Musk was his source. Jordan objected, citing Taibbi's First Amendment rights, but could not cite a shield law because, despite his past efforts, there is none. The PRESS Act would protect Taibbi from being compelled to disclose sources regardless of Democrats' opinions on his journalism.

The PRESS Act would help independent and alternative media thrive

The PRESS Act is neutral not only on the political leanings of the journalists it protects but on the size and reach of media outlets. Critics of the mainstream media should embrace the PRESS Act because it gives upstarts, who do not have armies of lawyers to fight subpoenas, room to grow unimpeded by official harassment.

The PRESS Act would protect, for example, Project Veritas — which claimed it was improperly surveilled after an FBI raid in 2021 — to the same extent as it would protect The New York Times, as long as they are all engaged in legal journalistic practices.

That’s because the act does not limit its reach based on who the journalist is or any official credentials they may or may not have — it instead focuses entirely on the act of newsgathering.

The PRESS Act is strong anti-surveillance legislation

Constitutional originalists should appreciate that the PRESS Act not only strengthens the First Amendment but the Fourth. Unlike many past shield bills, its protections against government overreach extend not only to journalists themselves but to their phone, email and other technology providers.

New technologies mean new ways to spy on citizens. The PRESS Act recognizes this by ensuring its protections cannot be evaded by targeting tech companies instead of newsrooms.

The PRESS Act recognizes national security concerns

A free and aggressive press benefits all aspects of government, including national security. That being said, the PRESS Act recognizes law enforcement concerns through exemptions when information in a journalist’s possession is necessary to prevent terrorism or imminent violence.

It then establishes common sense procedures to ensure that the exemption is not abused.

Most harassment of journalists isn’t political

Incidents that affect presidential politics tend to get the most attention. But most of the abuses the PRESS Act would curtail occur off the national stage. Journalist Joshua Miller broke the story of a father buying a coach’s home at a premium to get his son into Harvard, handing prosecutors the case on a silver platter. He was rewarded with a subpoena in October 2022 and ultimately forced to testify.

Music critic Jim DeRogatis received death threats and a bullet through his porch window after exposing musician R. Kelly’s abuse of underage women but he was forced to risk his safety to contest a subpoena at Kelly’s federal trial in Chicago in 2022.

Americans can all agree that the law should encourage — not impair — reporting of misconduct by elite universities and sex crimes by celebrities. That has nothing to do with politics.

The bottom line

The PRESS Act will vastly improve the quality of journalism — all journalism — and ensure citizens of all political stripes have access to the information they need to be informed participants in our democracy. It will protect journalists and their sources from government abuse — no matter the party in the White House.

We’ve allowed our journalists to operate too long without any legal guarantee that they won’t be spied on by the government and without the ability to assure potential sources that they won’t be unmasked in court. That’s not a tolerable status quo in a country that values free speech.

Everyone who believes in the First Amendment should contact their representatives today and let them know that protecting journalists from government overreach is absolutely vital and cannot wait.

This article was originally published on Dec. 14, 2022 and has been updated to account for current events. You can find the original version here.

Las Vegas Review-Journal journalist Jeff German was murdered last year, allegedly in retaliation for his investigative reporting.

News sources sometimes outlive the journalists they work with. That seems obvious enough. So why should a journalist’s death have any impact on the confidentiality of source identities and newsgathering materials?

It shouldn’t. But this week a Nevada judge questioned whether the Las Vegas Review-Journal could claim the reporter’s privilege after its investigative reporter, Jeff German, was murdered. Detectives in the homicide case want to search his devices. The suspect, a former county official, allegedly targeted German due to his reporting.

German was 69 years old when he died. Of course his sources could not have anticipated he’d be murdered for his work, but no one in their right mind would pass along a confidential news tip to a journalist pushing 70 if they believed confidentiality lasted only as long as the journalist.

Prosecutors have argued that Sixth Amendment fair trial rights trump First Amendment interests. The Supreme Court has made its disagreement with that premise clear but, in this case, it’s a red herring. The Review-Journal’s lawyer said the paper might ultimately agree to a targeted search — it just wants a seat at the table to ensure that sources aren’t outed. The paper requested that a “special master,” as opposed to homicide detectives, conduct the search to minimize those concerns.

The judge indicated she believed detectives should be allowed to conduct the search. She opined that a “protective order” restricting disclosure should suffice to protect German's sources. That would’ve been news to the sources, who may have included the detectives’ coworkers for all we know. They entrusted a reputable journalist and newspaper — not government officials — to safeguard their identities.

And trusting detectives to handle source communications sensitively seems particularly ill-advised when they can’t even get their story straight over whether they’ve already illegally searched German’s phone.

The predicament relates back to a fundamental misunderstanding of the reporter’s privilege. The primary purpose is to empower sources to communicate with journalists without fear that the government or the public will learn who they are or what they said in court proceedings.

For the privilege to be effective, anyone with an interest in preserving source confidentiality should be able to invoke its protections. That may include the journalist, the media outlet, communications providers or the source themselves (through John Doe proceedings).

A reporter’s privilege that only extends to reporters functions merely as a means of getting journalists out of inconvenient court dates and depositions. That’s important in its own right — journalists don't work for prosecutors and have better things to do with their time — but it’s not nearly as crucial as protecting confidential sources from losing their jobs or freedom.

The same problem has surfaced in Buffalo, New York, although in a far less morbid context. A federal judge allowed Starbucks broad discovery into labor organizers’ communications with the media to try to prove that organizers used the press to generate controversy regarding their working conditions (it’s unclear what would be wrong with that). He rejected the organizers’ opposition to the subpoena in September and declined to reconsider his ruling earlier this week.

The reporter’s privilege was hardly discussed (if at all) because the subpoenas were directed at the organizers and not the media. But the outcome is the same — potential retribution against Starbucks employees who sought to inform journalists of wrongdoing.

Media companies and their lawyers need to forcefully advocate for an expansive reporter’s privilege and state legislatures need to make sure privilege laws anticipate and prohibit workarounds. And Congress needs to pass the PRESS Act, which innovates by protecting against subpoenas not only to journalists but their email and phone providers.

Note: A prior version of this article stated that the Las Vegas judge ruled that a protective order would suffice to protect German's sources. Although the judge indicated a belief that a protective order would suffice, she did not actually rule on the issue, which is pending before the Nevada Supreme Court.

Two Asheville journalists arrested while covering an eviction of a homeless encampment are set to stand trial on Jan. 25.

FOR IMMEDIATE RELEASE: Two Asheville, North Carolina journalists are scheduled to go on trial on Jan. 25 for documenting a controversial Christmas night eviction of a homeless encampment. The public still has not seen body camera footage of their arrests.

That’s why Freedom of the Press Foundation partnered with the ACLU of North Carolina and the Committee to Protect Journalists to petition a North Carolina court for the full public release of the recordings.

“It’s a matter of the highest public concern when authorities not only arrest journalists but put them on trial for attempting to report the news,” said Seth Stern, advocacy director for Freedom of the Press Foundation. “The public should be able to see for themselves whether police retaliated against the press for critical coverage. And if police did nothing wrong, then they should want the footage released to clear their names.”

Authorities have never claimed the journalists, Veronica Coit and Matilda Bliss of the Asheville Blade, endangered anyone or obstructed the eviction. But police nonetheless arrested them for remaining at the park after its 10 p.m. closing time. They also seized Bliss’ phone — an act that the petition said “raises red flags that authorities intended not to enforce curfews but to suppress newsgathering.”

“At stake in this incident is public trust, freedom of the press, and police accountability,” said Muneeba S. Talukder, Staff Attorney at the ACLU of North Carolina. “We know that, especially now, all police conduct is of great public concern. The need for transparency is even more pressing in this case because the journalists were arrested while gathering and attempting to share news on the eviction of unhoused people from a city park. Arrests of journalists who are gathering and reporting news is and should be rare in a nation that values the freedom of press.”

As Stern previously noted in an op-ed for the Asheville Citizen Times, “No decent journalist would ignore newsworthy official conduct, in plain sight and on public land, just because it’s dark out. And no government that values transparency would expect journalists to do so.”

The Supreme Court has held that it is unconstitutional to target someone for arrest in retaliation for exercising their First Amendment rights even if there is, technically, probable cause for the arrest. Legalities aside, though, the petition explains that the public should be allowed to “decide for themselves … whether prosecuting journalists for merely documenting police conducting a newsworthy operation at a public park is a wise use of their money.”

The petition notes that, according to FPF’s U.S. Press Freedom Tracker, there have only been three trials of journalists arrested in the course of newsgathering since 2018.

North Carolina law does not consider body camera footage a public record and requires members of the public to petition a court for its release. In most other states the authorities bear the burden of proving that footage should not be released; the public does not need to convince a judge that it should be.

The court will next schedule a hearing to consider arguments from the petitioners, as well as prosecutors and police, and determine whether to release the footage.

You can read the full petition below.

House Speaker Kevin McCarthy

As House members dragged themselves through vote after vote in the tussle over the speakership in the first week of January, viewers got a rare glimpse of the intense negotiations. Cameras captured shouts and whispers between representatives as well as images of Representative-elect George Santos, mired in controversy over his largely fabricated resume, staring at his phone alone on the House benches.

The cameras, controlled by C-SPAN during the negotiations, achieved an unusual and vastly improved level of transparency. Unfortunately, the end of the days-long tussle, in which Republican Kevin McCarthy was ultimately successful, meant a return to the status quo: The political party in charge of the House controls the cameras. C-SPAN was once again restricted to permanent robotic cameras trained at the speaker’s dais and podium.

Today, Freedom of the Press Foundation and the Demand Progress Education Fund, along with a coalition of more than 40 partners, including advocacy organizations and media outlets, submitted a joint letter calling for McCarthy and Democratic Leader Hakeem Jeffries to restore C-SPAN’s right to control its own cameras, along with the transparency that Americans enjoyed during the speakership negotiations.

“People on both sides of the aisle agree that it’s un-American for politicians to control news cameras,” said Seth Stern, FPF’s advocacy director. “Transparency is vital to our democracy and there is no reason for House rules to restrict the press and public from viewing the best possible footage of their representatives in action.”

Signatories to the letter include Lincoln Network, TechFreedom, the Committee to Protect Journalists, Reporters Without Borders, Electronic Frontier Foundation, Free Press Action, the National Press Club, National Press Photographers Association, PEN America, and Project on Government Oversight.

“When C-SPAN is able to call its own shots, the American public benefits by getting an authentic and transparent view of how Congress functions and the mood of the chamber,” said Daniel Schuman, policy director at Demand Progress Education Fund. “We can see what really happens on the House floor, such as unexpected bipartisan negotiations like when Reps. Ocasio-Cortez and Gosar had a one-on-one conversation during the speaker vote-a-rama.”

Ginni Thomas' activism while her husband sits on the Supreme Court underscores the need for journalists to be able to uncover judicial conflicts of interest.

Congress quietly passed legislation at the end of 2022 granting judges extraordinary censorship powers, making it harder for reporters to expose conflicts of interest involving federal judges and their families.

Just weeks later, Ginni Thomas exemplified why the legislation is such a bad idea, as she continued creating conflicts for her husband, Justice Clarence Thomas, through her right-wing activism. Fortunately, journalists need not scour the internet to learn about the Thomases — but what about the nation’s approximately 700 district court judges?

The legislation in question is the Daniel Anderl Judicial Security and Privacy Act. It’s a classic example of bad facts making bad law. Anderl was tragically killed by an assailant targeting his mother, a federal judge in New Jersey.

The legislation allows judges to demand redaction of their and their relatives “covered information” (including addresses, schools and employers) from public records, creating a backdoor Freedom of Information Act exemption outside FOIA’s appeal processes.

But somehow that’s not the most offensive part. It also empowers judges and their relatives to demand that individuals, companies and platforms censor “covered information” about themselves and their families online.

The bill’s name itself is telling — enhancing “security” for government officials is one thing, but granting them a special right to “privacy” through censorship is quite another, and the two should not be conflated. Historically, those who choose to become public figures sacrifice privacy expectations, not gain them.

Did anyone consider what Constitutional basis Congress has to grant these unprecedented rights to the judiciary? The act allows judicial families to not only request that information be taken down but demand that it not be “disclose[d] or acquire[d]” in the first place. That seems dangerously close to a prior restraint.

It also allows judges to restrict information they already put online about themselves, contravening decades of Supreme Court precedent that the government cannot claw back information that the government itself released.

The act does include an exception for when the information is relevant to a news story or a matter of public concern, but the carve-out is toothless.

• How are reporters to know that, say, where a judge’s spouse works, or who the judge bought a house from, is newsworthy if they can’t find the information in the first place?
• Any disputes over whether the public concern exception applies in a given case would ultimately be decided by a federal judge — probably one who works in the same courthouse as the judge who made the demand in the first place. Awkward water-cooler conversation.
• Disinterested online platforms have no stake in determining the newsworthiness of a post, and will comply with judicial demands rather than pay lawyers to fight about it.

Incidentally, judges themselves won’t have to worry about costs since enforcement actions can be brought at their behest by the Administrative Office of the United States Courts. We’ll also be paying to train judges on how to request removals under the new law (it’s concerning that Congress thinks judges need training to understand laws, but that’s a topic for another day).

Taxpayer-funded training to set up taxpayer-funded litigation to censor information about taxpayer-compensated judges — probably not what the drafters of the First Amendment had in mind.

It’s perplexing that this legislation got off the ground, let alone passed both houses of Congress. No one would (hopefully) suggest that mayors, governors or legislators should have a right to censor true and lawful information about themselves or their families, even though they face the same security threats as judges, if not worse. Judges’ actions are equally consequential to those of other officials and they are equally susceptible to improper influence.

The judiciary, and particularly the Supreme Court, often positions itself as so institutionally pure that it is immune to forces that corrupt other branches of government. But saying it doesn’t make it so and Americans sure don’t agree. And judges putting the Constitution aside to support legislation for their own benefit doesn’t help their credibility crisis.

The act will hopefully soon be challenged in court on First Amendment and numerous other grounds. But therein lies the problem — what happens if Justice Thomas gets the deciding vote?

It’s my pleasure to unveil Freedom of the Press Foundation’s 2022 Impact Report.

I’m Bevyn Howard, and I joined FPF as a grant writer this year. Every day I am in absolute awe of the expertise my teammates bring to the press freedom space. I wanted to honor their work in this annual impact report by adding more visuals than ever before and creating deeper dives into our most exciting projects so you, our supporters, can join us in recognizing another successful year.

Here are five highlights from the 2022 Impact Report:

1. Showcasing FPF’s decade of impact

FPF was founded 10 years ago, and let me tell you — a lot has happened. Find some of FPF’s biggest milestones in this timeline, as we continue to evolve to meet the needs of journalists and whistleblowers.

2. Streamlining SecureDrop with the SecureDrop Workstation

The next generation of SecureDrop, the SecureDrop Workstation, is genuinely a mind-blowing project. Developed as a way for journalists and sources to communicate safely, SecureDrop allows ground-breaking news to reach your front page. Read here as I break down — in a way even we non-engineers can appreciate — how we are advancing SecureDrop.

3. Visualizing threats against press freedom

As someone who geeks out over data and real-time visualizations, the U.S. Press Freedom Tracker’s website is truly a site to be seen. By documenting nearly every press freedom violation in the United States, the Tracker remains a vital resource for reporting on threats against journalists. And this redesign brings you closer to the data than ever.

4. Mapping all the places we go for digital security training

I’m always trying to keep up with the time zones and locations of FPF’s digital security training team as they work around the globe to teach journalists how to protect themselves, their fearless reporting, and their sources. Explore the incredible reach of the trainers in 2022 (and these are just the places we can show you).

5. Highlighting staff favorites from the year

When you’re a fan of everything your organization does, having to pick what goes into an impact report is hard. So I asked FPFers what moments and milestones from this past year stood out to them. Enjoy this behind-the-scenes look at some of the wins we’re celebrating.

In my first year at FPF I’ve had the privilege to witness the incredible impact of this organization, and I hope this report does that work justice. The role of journalism in our democracy cannot be overstated, and I am thankful to work for an organization that provides the tools and training journalists need to inform the public. Find the entire 2022 Impact Report below, or download a copy (PDF).

The death of Mahsa Amini has led to worldwide protests but journalists covering the unrest in her homeland of Iran have been imprisoned in record numbers.

An annual census from the Committee to Protect Journalists shows more journalists were imprisoned at the end of 2022 than in any of the 30 years CPJ has issued the report.

The U.S. Press Freedom Tracker, a project of Freedom of the Press Foundation and CPJ, documented a lower number of arrests in the United States last year than in recent years, largely due to fewer protests here. But countries experiencing increased unrest trended in the opposite direction and many such countries imprison journalists for months or years in deplorable conditions.

For example, as of Dec. 1, 2022, 62 of the 363 imprisoned journalists were in Iran, making Iran the world’s worst “jailer of journalists” (it was 10th in 2021). CPJ calls this “a reflection of authorities’ ruthless crackdown on the women-led uprisings that erupted in September.”

Other countries at the top of the list include China, Myanmar, Turkey, and Belarus. CPJ notes that in 131 cases, the imprisoned journalists have not been charged with any crime.

While the U.S. may not make the list this year — none of the reporters arrested here remained incarcerated as of the Dec. 1, 2022 census date — U.S. policy still contributes to the dire situation reporters face worldwide.

Our government’s silence speaks volumes when it turns a blind eye to international abuses and fails to prioritize press freedoms at home. The ongoing prosecution of Julian Assange for journalistic activities sets a dangerous precedent for the global press and gifts oppressive regimes a convenient whataboutism to deflect from their abuses.

Another prominent example from 2022 was the Biden administration’s position that Saudi Crown Prince Mohammed bin Salman should be immunized from civil liability over his role in murdering journalist Jamal Khashoggi, despite the availability of legal arguments against immunity.

Yet another was the administration’s reluctance to investigate the killing by the Israeli army of journalist Shireen Abu Akleh, even when video evidence contradicted Israel’s shifting narratives.

The annual Reporters Without Borders Press Freedom Index, which also relies on data from the U.S. Press Freedom Tracker, will be released in the coming months. It will provide further details, beyond arrests and imprisonments, on the state of press freedoms worldwise.

It’s impossible to quantify the global impact of U.S. inaction, but official condemnations of abuses by adversaries like Iran, often inadequate in their own right, ring especially hollow when we won’t speak up against allies and client-states even when they murder journalists.

And while the Department of Justice deserves credit for revising its policies to protect journalists from surveillance, the administration couldn’t be bothered to support the PRESS Act, despite bipartisan support for the strongest shield law ever proposed. That says something about our priorities.

Let’s hope the 2023 census brings better news, both at home and abroad. And let’s hope for sustainable improvement, arising not just from fluid circumstances like frequency of protests but from increased legal protections for journalists and changes in attitudes towards press freedoms.

For that to happen, the U.S. will need to practice what its Constitution preaches.

The City of The Dalles, Oregon sued a newspaper, on behalf of Google, to block the public from learning how much water Google uses to cool its data center.

A drought-stricken Oregon city sued a newspaper to avoid releasing records of how much water Google used to cool a data center, claiming the records would reveal trade secrets. Google bankrolled the lawsuit for more than a year before dropping it last week.

Florida child protection authorities refused to release records after the tragic death of a toddler whose family had been the subject of about 25 complaints, falsely claiming the cause of death was still being investigated. This led to litigation which ended in a $376,000 settlement payment to the Miami Herald and other media outlets.

These are just a couple recent examples of government agencies weaponizing exemptions to open records laws to avoid transparency through frivolous legal proceedings. There are plenty more.

Bad faith excuses for secrecy fuel costly litigation

These cases are not close calls. There is no legitimate argument that how much water Google uses to cool a data center is a trade secret. Trade secrets are confidential and proprietary data — formulas, algorithms, etc. — that companies develop themselves.

Google knew full-well that its water usage was not a trade secret when it orchestrated the lawsuit. The Oregon public records law also requires even real trade secrets to be released when in the public interest. The public interest is obvious, especially when Google reportedly plans to build several more data centers in the same city.

But Google likely never intended for the city to win the lawsuit — just to delay legally-mandated transparency. When it ran out of avenues to postpone the inevitable, it instructed the city to drop the suit and paid the Reporters Committee for Freedom of the Press for its representation of the newspaper in question, the Oregonian.

Similarly, Florida child welfare authorities knowingly lied that an investigation was ongoing to claim an open records exemption and temporarily save themselves from embarrassment, at substantial taxpayer expense. Maybe they hoped to drag it out so long that the media would move on and forget about the story.

At least in Florida, citizens can hold their government directly accountable when it decides to spend taxpayer dollars denying information to the public through frivolous stall tactics. “Reverse” public records lawsuits, like the one in Oregon, remove that accountability by allowing Google or other corporations and wealthy individuals who do business with the government to bankroll anti-transparency litigation themselves.

How the secrets are kept is also a secret

Adding insult to injury, the Electronic Frontier Foundation recently reported that many agencies refuse to release their procedures for evaluating records requests. Ironically, they claim the policies themselves fall under the same exemptions they use to justify other denials.

That agencies are citing exemptions to open records laws to avoid transparency on how they administer the very same laws should leave no doubt that the laws, and their exemptions, are in dire need of reform.

EFF’s report also discusses the growing backlogs that prevent agencies from even coming close to complying with deadlines for responding to records requests. The Senate judiciary committee held a hearing earlier this year on the backlog under the Federal Freedom of Information Act but the problems persist.

Reforms are sorely needed

Open records laws are unfortunately functioning more and more like a bait and switch, enabling the government to hide behind the law while punishing journalists and concerned citizens with delays and attorney’s fees.

State and federal legislators who value transparency should:

• Reduce and narrow exemptions to open records laws.
• Ensure that anti-SLAPP (Strategic Lawsuits Against Public Participation) laws protect against baseless “reverse” public records lawsuits.
• Better yet, ban “reverse” lawsuits outright, because those who do business with the government voluntarily subject themselves to public scrutiny.
• Enact harsh penalties for frivolous objections to records requests, as well as mechanisms to ensure that objections can be resolved promptly.

They should also ensure that agencies devote sufficient staffing and resources to responding to records requests. Of course, the more information the government releases to the public without the need for a request, the lesser the need to devote resources to answering requests.

Finally, some good news

One Tennessee judge has the right idea. The city of Knoxville engaged an outside firm to conduct a search for a police chief and only shared candidates’ names and resumes during Zoom meetings, all for the admitted purpose of skirting public records law.

Chancellor John Weaver ruled last week that Knox News, which sued for the records, can question officials under oath about the search and may be able to subpoena the search firm.

It’s unfortunate that the newspaper had to resort to the courts — and that it will only be able to report on the search after the fact — but at least Knoxville residents will ultimately find out what their elected officials were hiding.

FPF published numerous op-eds and articles advocating for the PRESS Act, and organized a coalition of almost 40 press rights and civil liberties groups, but unfortunately one anti-press senator was able to block the bill's passage this year.

Freedom of the Press Foundation and other free press advocates were extremely disappointed that the PRESS Act was omitted from Congress’s year-end omnibus package.

The PRESS Act was the strongest “shield” bill we’d ever seen and would have finally protected journalists from federal surveillance and from being threatened with arrest for refusing to burn their sources. In short, it would have been the best press freedom legislation to pass Congress in modern history.

A little background on what went wrong: After Ron Wyden, the bill’s original sponsor in the Senate, requested a unanimous consent to vote on the bill, Sen. Tom Cotton objected. His floor speech was premised on the absurd notion that the reporting of the Pentagon Papers was a bad thing — according to Cotton, the media’s objective was not to expose decades of government lies about the war, but to demoralize the troops.

He offered no evidence — as none exists — for his assertion that Iraq and Afghanistan war reporting helped terrorists, and he ignored the PRESS Act’s terrorism exemptions that should satisfy any rational national security hawk.

That a sitting senator holds such disdain for the free press only serves to illustrate why the PRESS Act is so vital. Cotton has considered running for president himself. The last Republican president still regularly threatens journalists with arrest and assault. And President Obama was no friend of journalists or whistleblowers either.

To the best of our knowledge, no other Senator from either party has endorsed Cotton’s ramblings but, as the senior Republican on the judiciary committee, Sen. Chuck Grassley reportedly felt that he owed Cotton, who is also on the committee, the courtesy of not clearing a bill to which he objected for inclusion in the omnibus package.

That left it up to minority leader Mitch McConnell to override Grassley and Cotton. We published an op-ed in the Lexington Herald Leader to persuade McConnell, along with a piece making the case for Republican support, but to no avail. McConnell proved unwilling to make waves in his party to advance press freedom.

The takeaway from all of this is that the PRESS Act failed for procedural reasons, not substantive ones. So, despite the setback, we now put our frustration aside and fight for the PRESS Act’s passage in 2023.

Thankfully, the PRESS Act is far better positioned than it was when we began our advocacy campaign last month. We will enter the next Congressional session with Senate Judiciary Chair Dick Durbin strongly supporting the PRESS Act and with a Republican co-sponsor in Sen. Mike Lee alongside Wyden.

Durbin credited Chicago Sun-Times op-eds by FPF’s advocacy director and its board member, John Cusack, with persuading him to “hotline” the bill, and Lee joined shortly after FPF’s op-ed in the Salt Lake Tribune and other Utah-focused outreach.

Our focus next year will be twofold: One, doing our part to help advance the bill through Congress, and two, monitoring any revisions to the bill to ensure that it remains as strong as it is today. Past shield bills have been ruined by, for example, narrow definitions of “journalist” and overbroad national security exemptions that lend themselves to abuse by prosecutors and investigators.

We have not supported all past shield bills and won’t support just any shield bill in the future. We will, however, continue doing everything in our power to support this bill as long as it resembles its current form.

We hope that, with the momentum the bill has gained in recent weeks, Congress will make it a priority early in the next session and will not feel compelled to weaken it to appeal to the likes of Cotton. That way, it won’t run into further deadlines where the only options for passage are fast-tracking mechanisms and year-end packages.

It would also help if the press itself would join the fight. We commend The Intercept, Common Dreams and a couple other outlets for their coverage in recent days but it is unfortunate that, in 2022, John Cusack wrote as much about the PRESS Act as all the nation’s editorial boards combined. That needs to change in 2023 for the bill to succeed.

LLN Arizona photographer Jack Sorgi is detained at a June reproductive rights protest in Phoenix.

Freedom of the Press Foundation’s U.S. Press Freedom Tracker reports 14 arrests of journalists in 2022, down from 59 in 2021 and 144 in 2020. As in past years, the vast majority of reporters arrested were covering protests, specifically those that followed the Supreme Court’s ruling in Dobbs v. Jackson Women's Health Organization.

The decrease is less likely attributable to police suddenly respecting press freedoms than to there simply being fewer protests this year than in 2021, and especially 2020. Nearly 300 arrests or detainments of journalists have been recorded in the Tracker since its 2017 launch; 18 of those journalists are still facing charges.

As of Dec. 20, 2022

Totals aside, it is concerning any time a reporter is arrested for doing their job, and especially when charges are not resolved promptly by the courts. The report highlights two especially alarming cases: One, the arrest of Derek Myers, editor-in-chief of the Scioto Valley Guardian in Ohio, for wiretapping after publishing audio someone else recorded, and two, the ongoing prosecutions of Asheville Blade reporters Matilda Bliss and Veronica Coit for allegedly trespassing while documenting a homeless encampment sweep.

The report provides further detail:

Myers told the Tracker he was covering the murder trial but was not in the courtroom when a key witness took the stand. Despite the judge in the case barring recordings of that witness, Myers later received audio of the testimony. After the Guardian published the audio, officers obtained a search warrant for Myers’ laptop, issued a warrant for his arrest and seized his cellphone.

Myers turned himself in to police custody and was released on a $20,000 bond. He now waits for his case to be heard by a grand jury in 2023, which will decide whether to indict him. But just being charged, he said, has felt damaging.

“My reputation has taken a hit and, as journalists, all we have are our reputations,” Myers said.

Two North Carolina journalists, arrested in December 2021, will also continue to face charges into 2023. Asheville Blade reporters Matilda Bliss and Veronica Coit were arrested and charged with trespassing while documenting a homeless encampment sweep on Christmas night in 2021. After nearly a year of rescheduled hearings, the two were ordered in November to appear for a bench hearing, where a judge would rule on their charges and sentence them.

….

Bliss told the Tracker that each time they were ordered to appear in court, the reporters had to prepare for the possibility they would be incarcerated.

“I was trying to make sure that I had all my ducks in a row in case it was the worst case scenario: There is a maximum penalty of 20 days in jail,” Bliss said. “We’ve both had to make lots of sacrifices throughout this year.”

Myers’ arrest violates well-established Supreme Court precedent that journalists are not responsible for alleged illegality by sources while Asheville police ignored limitations on closure of public lands to reporters except where there is a serious public safety risk.

The report also notes that some wrongly arrested reporters are holding authorities accountable by filing lawsuits, including Oregon-based reporter April Ehrlich, who was also arrested while covering an encampment sweep. After multiple delays, prosecutors dropped the 2020 charges this year. The U.S. Press Freedom Tracker previously reported on the more than 50 journalists who have sued over their treatment while covering Black Lives Matter protests.

Absent any indication that local police departments learned a lesson from 2020 and 2021, lawsuits and public pressure continue to be the best ways to hold police accountable and make them think twice about arresting journalists in 2023.

The full report, including more detailed statistical analysis and context surrounding the arrests, is available here.

The U.S. Press Freedom Tracker is a nonpartisan news website and database providing reliable and contextualized information on the number of press freedom violations in the United States. For media requests, please contact media@freedom.press.

Republican Sen. Mike Lee supports the PRESS Act

The next few days will likely determine whether the PRESS Act becomes the law of the land before Congress adjourns or whether presidents and prosecutors can continue spying on journalists and their sources.

While the PRESS Act was introduced by a Democrat, Sen. Ron Wyden, it is by no means partisan legislation.

Even before Sen. Mike Lee co-sponsored the PRESS Act with Wyden, Republican former House Judiciary Chair Bob Goodlatte wrote in support of the bill. Conservatives, from Lindsey Graham to Mike Pence to Jim Jordan, have a long history of supporting similar “shield” legislation prohibiting newsroom surveillance by any administration. Forty-nine states, red and blue, protect reporters against government snooping, leaving the federal government — which has surveillance capabilities far superior to local authorities — as the outlier.

Here are just a few reasons why Republicans should prioritize passing the PRESS Act.

Conservative journalists are often targets of government surveillance

When the Obama administration wanted to uncover a source of then-Fox News journalist James Rosen in 2013, it secretly spied on him and read his emails.

At the time, Fox News and Rosen (who’s now at Newsmax) had no legal recourse when the government baselessly characterized Rosen as a criminal co-conspirator for doing his job — gathering and reporting the news.

Had the PRESS Act been in effect, Rosen would have received notice and a hearing before any warrant or legal order could be issued. And at that hearing, the government would have needed to prove that disclosure of Rosen’s records was necessary to prevent terrorism or imminent violence. It, of course, would never have met that burden, given it was investigating already 4-year-old reporting.

The PRESS Act protects all journalists – regardless of politics

The bill is broad enough to protect both mainstream and independent outlets, regardless of political leanings, so that no administration, present or future, can circumvent the law to retaliate against adversarial journalists.

Here’s how it defines a journalist: “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.”

Simple as that. There are no loopholes, caveats or ambiguities that could conceivably allow the current administration, or a future one, to play favorites.

The PRESS Act would help independent and alternative media thrive

The PRESS Act is neutral not only on the political leanings of the journalists it protects but on the size and reach of media outlets. Critics of the mainstream media should embrace the PRESS Act because it gives upstarts, who do not have armies of lawyers to fight subpoenas, room to grow unimpeded by official harassment.

The PRESS Act would protect, for example, Project Veritas — which claimed it was improperly surveilled after an FBI raid last year — to the same extent as it would protect The New York Times, as long as they are all engaged in legal journalistic practices.

That’s because the act does not limit its reach based on who the journalist is or any official credentials they may or may not have — it instead focuses entirely on the act of newsgathering.

The PRESS Act is strong anti-surveillance legislation

Constitutional originalists should appreciate that the PRESS Act not only strengthens the First Amendment but the Fourth. Unlike many past shield bills, its protections against government overreach extend not only to journalists themselves but to their phone, email and other technology providers.

New technologies mean new ways to spy on citizens. The PRESS Act recognizes this by ensuring its protections cannot be evaded by targeting tech companies instead of news rooms.

The PRESS Act recognizes national security concerns

A free and aggressive press benefits all aspects of government, including national security. That being said, the PRESS Act recognizes law enforcement concerns through exemptions when information in a journalist’s possession is necessary to prevent terrorism or imminent violence.

It then establishes common sense procedures to ensure that the exemption is not abused.

Most harassment of journalists isn’t political

Incidents that affect presidential politics tend to get the most attention. But most of the abuses the PRESS Act would curtail occur off the national stage. Journalist Joshua Miller broke the story of a father buying a coach’s home at a premium to get his son into Harvard, handing prosecutors the case on a silver platter. He was rewarded with a subpoena this October.

Music critic Jim DeRogatis received death threats and a bullet through his porch window after exposing musician R. Kelly’s abuse of underage women but he was forced to risk his safety to contest a subpoena at Kelly’s latest trial in September.

Americans can all agree that the law should encourage — not impair — reporting of misconduct by elite universities and sex crimes by celebrities. That has nothing to do with politics.

The bottom line

The PRESS Act will vastly improve the quality of journalism — all journalism — and ensure citizens of all political stripes have access to the information they need to be informed participants in our democracy. It will protect journalists and their sources from government abuse — no matter the party in the White House.

We’ve allowed our journalists to operate too long without any legal guarantee that they won’t be spied on by the government and without the ability to assure potential sources that they won’t be unmasked in court. That’s not a tolerable status quo in a country that values free speech.

Everyone who believes in the First Amendment should contact their Senators today and let them know that protecting journalists from government overreach is absolutely vital and cannot wait.

FOR IMMEDIATE RELEASE

A coalition of nearly 40 press freedom, civil liberties and other organizations led by Freedom of the Press Foundation (FPF) has urged Senate Majority Leader Chuck Schumer to advance the PRESS Act to a vote before Congress adjourns.

The bipartisan act, which unanimously passed the House in September, is a "shield" bill that would protect journalists from surveillance or compelled disclosure of source materials except in emergency situations.

“The PRESS Act would be the most important press freedom legislation to pass Congress in modern history. It would finally allow journalists to do their jobs without being spied on or threatened with arrest for not burning their sources,” said FPF advocacy director Seth Stern.

The Senate must act soon to pass the PRESS Act before its session ends in the next few weeks.

“Sen. Schumer could be a hero to all journalists by making sure this bill gets a vote before the end of the year,” Stern said.

The coalition signed on to the letter includes heavyweights like the ACLU, the Committee to Protect Journalists, Reporters Without Borders, Electronic Frontier Foundation, PEN America and many more. You can read the full letter and see all its signatories below.

Stern said this chance may not come again for many years. “We believe the PRESS Act has a real chance at passing, and it would finally put an end to the reporter surveillance scandals that have plagued all recent presidential administrations — but only if Schumer acts quickly,” Stern added.

FPF founding board member, actor and activist John Cusack, authored an op-ed in support of the PRESS Act, arguing that “we cannot allow the government to surveil journalists and expose sources … if we expect journalists to expose corruption, speak truth to power and print what the powerful don’t want printed.”

The coalition letter follows a separate letter from the Reporters Committee for Freedom of the Press on behalf of 15 major news organizations including The New York Times, The Washington Post, NPR and CNN. Schumer himself is among the many elected officials, both Democrat and Republican, who have in the past supported shield legislation. Forty-nine states have recognized reporter’s privileges, leaving the federal government as the outlier.

Please contact FPF advocacy director Seth Stern for more information. He can be reached at seth@freedom.press.

Senate Majority Leader Chuck Schumer

Now is crunch time to make the PRESS Act the law of the land before this Congress adjourns. Senate Majority Leader Chuck Schumer now holds the keys to the bill's passage which is good news — Schumer has co-sponsored similar shield legislation in the past.

We’ve previously explained that the PRESS Act is the most important free press legislation in modern times because it would finally stop the government from spying on journalists and threatening them with arrest for doing their jobs, except in real emergencies. Schumer can be a hero to journalists everywhere by pushing it through the Senate.

As our longtime board member, actor and activist John Cusack, explained in an op-ed this week, “we cannot allow the government to surveil journalists and expose sources … if we expect journalists to expose corruption, speak truth to power, and print what the powerful don’t want printed.”

We urge everyone who values a free press to reach out to Schumer’s office and tell him that you support the PRESS Act — and then have your friends and contacts do the same. You can contact Schumer’s office and ask him to support the PRESS Act by calling (212) 486-4430 or using this form.

If you’re unsure about what to say, you can repeat this language:

Sen. Schumer – I urge you to advance the PRESS Act, legislation that was unanimously passed by the House in September. The PRESS Act would make permanent the DOJ’s new policy to shield journalists from being forced to give up sources and block government seizure of phone and email records. As you recognized when you co-sponsored similar shield legislation in 2013, these rights are essential in any functioning democracy.

The PRESS Act is vital to all who value the First Amendment, regardless of politics. Media outlets nationwide have urged the Senate to pass this legislation. As Schumer (joined by Sen. Lindsey Graham) wrote about his own shield bill almost a decade ago, the PRESS Act “would provide clear and meaningful protection at the federal level for journalists against improper intrusion into the free press.”

This cannot wait another decade — not with 2024 presidential hopefuls threatening journalists with arrest for not divulging sources. The time to act is now.

A judge in California granted a motion, filed by a middle school teacher accused of sexual abuse, seeking to prohibit journalists from contacting people who submitted letters of support on his behalf. The letters were publicly filed with the court. No media outlet was accused of illegality of any kind.

Restricting future speech (as opposed to punishing unlawful speech after-the-fact) is a prior restraint, long considered the “quintessential First Amendment violation.” Nonetheless, prior restraints often fly under the radar where, as here, judges include them in innocuous seeming “confidentiality orders.” Many media outlets do not have the resources to fight these orders, so their obvious unconstitutionality becomes academic and journalists comply rather than risk arrest.

The California judge entered the order without notifying journalists, even though the public defender’s motion that prompted the order requested that “further unwanted contact by the press be ceased.” Instead, the order included an instruction to the parties to “advise those individuals to whom disclosure of the contact information has been made” of the order. It is elementary that a court cannot tell non-parties what to do, especially without notice or a hearing, but the apparent intention was to intimidate the press into compliance despite the order’s invalidity under the First Amendment.

The public defender sent the order to several journalists, at least some of whom alerted FPF’s U.S. Press Freedom Tracker, publicized the ordeal on Twitter and got lawyers. Fortunately, those journalists are refusing to comply. Lawyers for the Bay Area News Group responded to the public defender by explaining that the Supreme Court has “without exception invalidated prior restraints” and is “particularly hostile to prior restraints that prohibit the press from reporting information disclosed in court proceedings or government records.”

The case is illustrative of the harms that occur when careless judges act as “rubber stamps” for government attorneys. It appears the order the judge entered was actually prepared by the public defender’s office. The motion, presumably to avoid raising a red flag, buried its request to restrain the press in its last substantive sentence. It is entirely possible that the judge did not even realize the Constitutional ramifications of his order because he perceived the request for a confidentiality order as routine. But thoughtless or inadvertent censorship nonetheless remains censorship.

Much attention is focused on the few high profile cases that reach the nation’s highest courts, but the legal system depends on the competence and diligence of everyday trial court judges to safeguard the Constitution. The Supreme Court recognizes that, during pre-trial criminal proceedings, “the absence of a jury, long recognized as an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased or eccentric judge, makes the importance of public access…even more significant.” But Supreme Court pronouncements are of limited value if trial judges do not understand and adhere to First Amendment principles.

We commend the Bay Area News Group and its attorneys, Jassy Vick Carolan, for not caving after receiving an unlawful order. We hope any other journalists who received the order will similarly disregard it. But the risk remains — especially for those without access to lawyers — that they may not and that the quality of reporting will suffer.

More work is clearly needed to ensure that judges in the Bay Area and nationwide understand the protections that the First Amendment affords to journalists and that government requests to impinge on those protections are anything but routine.

Freedom of the Press Foundation is proud to announce our newest president of our board of directors, digital rights activist Rainey Reitman. Rainey was a co-founder of Freedom of the Press Foundation and has served on our board for 10 years. Her deep knowledge of online advocacy, coalition building and civil liberties has helped make Freedom of the Press Foundation a stronger organization.

Rainey worked for the Electronic Frontier Foundation for 11 years, first as its activism director and then as its chief program officer. Rainey also co-founded and served for six years as a steering committee member of the Chelsea Manning Support Network. She currently serves as a board member for the Filecoin Foundation for the Decentralized Web.

FPF board of directors unanimously voted on Rainey as its next president last week, after she was nominated for the role by FPF’s prior president Edward Snowden, who continues to serve on the board.

“Journalists today face unjust prosecutions, public attacks and government surveillance for doing their jobs. Freedom of the Press Foundation’s vital mission to defend the rights of journalists is as necessary today as the day we founded it ten years ago,” Rainey Reitman said. “Edward Snowden has been a wonderful leader for our board and a personal inspiration. I’m honored to follow in his footsteps as president and continue his work of creating a fearless, impactful organization.”

Edward joined the board of FPF in 2014 and has served as president since 2016. During his tenure as president, Edward has acted as a tireless advocate for press freedom and worked to raise awareness of the organization’s important work. He has also helped highlight the dangers of using the Espionage Act to silence whistleblowers and journalists, as he himself is under the ongoing threat of prosecution for documents he leaked showing surveillance abuses by the NSA. Edward has offered guidance and advice to FPF’s technical projects, including our ongoing development of SecureDrop, which helps sources securely and anonymously transfer documents to journalists. FPF has more than doubled in size during his time as our board president.

“I’m incredibly proud of the work we’ve accomplished during my time as FPF board president and am looking forward to the heights we’ll reach under Rainey Reitman’s leadership,” Edward Snowden said. “There’s no one better to succeed me than Rainey. I’ve worked with her for a long time, and she is one of the most principled and tireless advocates for free speech and privacy online that I know.”

In addition to Edward and Rainey, FPF’s board of directors includes whistleblower Daniel Ellsberg, Academy Award-winning filmmaker Laura Poitras, Pulitzer Prize-winning journalist Wesley Lowery, renowned actor and activist John Cusack and executive director Trevor Timm.

FPF protects and defends public interest journalism in the 21st century. We build SecureDrop, the world’s leading whistleblower submission system, used by over 80 news outlets worldwide. We have trained thousands of journalists to better protect their sources using digital security. And we run the U.S. Press Freedom Tracker, the news website and database that documents every press freedom violation in the United States. You can help us fund all this work by joining our membership program here.

Update: Bliss and Coit's trial has been postponed until April 19, 2023.

Two Asheville Blade reporters arrested last year for reporting on a police eviction of a homeless encampment are set to go to trial on Monday, according to court records and the journalists' lawyer.

The North Carolina reporters, Veronica Coit and Matilda Bliss, were charged with trespassing, apparently for taking pictures of the eviction after police instructed a crowd to disperse. They identified themselves as reporters but police arrested them and seized Bliss’ phone anyway. The “offense” carries a penalty of up to 20 days in jail and a $200 fine.

Regardless of the outcome, the fact these charges were even filed, let alone brought to trial, is an affront to press freedoms and everyone involved should be ashamed. The First Amendment requires the government to let reporters gather news firsthand — not rely on self-serving spin from official sources. Courts tolerate restrictions on reporters’ access to public land only in exceptional circumstances, like serious public safety risks, and even then restrictions must be narrow enough to avoid unduly interfering with newsgathering.

Prosecutors dropped similar charges against Oregon journalist April Ehrlich in September, presumably after having realized the unconstitutionality of their case. The Asheville prosecution is even worse — police did not even bother to set up an already unconstitutional media “staging area” to allow reporters to watch from the cheap seats.

First Amendment freedoms are especially crucial when the press documents interactions between society’s most powerful figures (police officers) and its least powerful (unhoused individuals) but the Asheville Police Department apparently believes it can operate outside the view of the citizens it purports to protect.

Journalists should be commended, not prosecuted, when they document police actions, whether the police like it or not. As one appellate court explained, a police officer “is not a law unto himself; he cannot give an order that has no colorable legal basis and then arrest a person who defies it.”

Unfortunately, Bliss and Coit’s situation is not unusual. Their bench trial follows last year’s acquittal of Des Moines Register reporter Andrea Sahouri, who was arrested and charged with misdemeanors while covering a Black Lives Matter protest. Sahouri, whose case received a wave of national attention, courageously refused a plea deal, citing her First Amendment right to report. The U.S. Press Freedom Tracker reports 215 arrests of journalists since 2020. Several of those arrested were reporting on similar encampment sweeps.

Attempts to criminalize journalism should serve as a call to action for citizens who value the freedom of the press. Of course, Bliss and Coit should be acquitted but hopefully they and other journalists — with the aid of activists and media lawyers — will also follow Ehrlich’s lead and file suit against police departments that punish them for doing their jobs.

This case has gotten little to no national media attention so far, however, our U.S. Press Freedom Tracker has been following it since the two reporters were arrested. You can read the Tracker's reports about all the details here and here.