Freedom of the Press

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

NEWS2SHARE/SEAN CAMPBELL

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

Freedom of the Press Foundation/Harris Lapiroff

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

Gage Skidmore

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.

Third Way Think Tank

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

Senate Democrats

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.

Jimmy Emerson, DVM

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.

Courtesy of Veronica Coit/Asheville Blade

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.

Lawyer and professor Alan Dershowitz must reveal who is funding his ongoing defamation lawsuit against CNN, a federal judge ruled.

Credit: YUHSB

A federal judge in Florida ordered lawyer and professor Alan Dershowitz to disclose who is funding his defamation lawsuit against CNN. The ruling is welcome news in an era where billionaires and politicians fund surrogate plaintiffs to punish media adversaries. More rulings like this one could go a long way in protecting newspapers from powerful entities who abuse the legal system to retaliate against stories they do not like.

Defamation suits are intended to compensate plaintiffs for real damages in the rare instances when papers publish something knowingly false — not to allow third parties to exact revenge on the press. Magistrate Judge Patrick M. Hunt got it right in crediting CNN’s argument that, “if Plaintiff has funders supporting this lawsuit to advance an agenda (whether for political, competitive, or other reasons), that information dramatically undercuts Plaintiff’s claim that he is seeking damages for injury to his reputation.”

Dershowitz’s $300 million lawsuit alleges that CNN misrepresented statements he made while representing former President Trump during his impeachment trial. The order to disclose funders came after Dershowitz revealed the existence of an “Alan Dershowitz Legal Defense Fund” in a deposition but subsequently refused to reveal the fund’s supporters.

Hunt’s ruling follows a similar one last year requiring associates of former Republican congressman Devin Nunes to reveal who funded their defamation lawsuit against Hearst Magazine Media — which Nunes himself had previously sued. In that case there were concerns over whether Nunes used the second suit, brought by his associates, to avoid legal defenses that only apply to defamation claims by public figures, like politicians.

Let’s hope this marks the beginning of a backlash against deep-pocketed financiers backing anti-press litigation. The best-known instance of this dangerous practice is Peter Thiel’s bankrolling of a series of lawsuits against Gawker, including one by wrestler Hulk Hogan that ultimately led to a $140 million verdict and bankrupted the publication before it could appeal.

But Gawker’s ordeal is far from the only instance. After losing a case against Mother Jones, for example, billionaire Frank VanderSloot announced a $1 million fund to pay the legal expenses of people seeking to sue the “liberal press.” In Chicago, a prominent police union subbed in five police officers to sue a newspaper after its own case was dismissed. It took eight years for the court to rule that the police officers had not suffered any harm justifying their lawsuit. Organizations and community leaders seeking to silence discussion of Polish collaboration with Nazis have backed lawsuits against media outlets and historians in the US and abroad. There are likely many others we'll never hear about.

At one point, it was largely illegal for third parties to finance litigation if they had a financial stake in the outcome. Most states have repealed their prohibitions on the practice, called “champerty,” and for-profit litigation funding has become a lucrative industry. There may be solid arguments that, in most cases, litigation funding streams can be beneficial — even necessary — in light of the often prohibitive costs of prosecuting lawsuits. But the First Amendment should caution against treating media cases as “most cases.”

Court orders requiring disclosure of financiers are a good first step (although Hunt’s ruling alluded to a confidentiality order that might prevent their identities from becoming public). But more is needed to end the abuse of the court system to retaliate against the press at the behest of the rich and connected. Thirty two states and the District of Columbia have passed anti-SLAPP (Strategic Lawsuits Against Public Participation) laws and Rep. Jamie Raskin introduced the federal SLAPP Protection Act of 2022 in September. Perhaps legislators who value press freedoms should also revisit those archaic protections against champerty.

Credit: Seth Stern

Freedom of the Press Foundation welcomes its new Director of Advocacy, Seth Stern. Seth will oversee and expand the nonprofit organization’s efforts to stand up for journalists and whistleblowers who have been denied their rights as part of its mission to protect, defend, and empower public-interest journalism. His work will include managing ambitious advocacy campaigns in collaboration with FPF partners and writing for FPF’s blogs, social media accounts, and other publications.

Seth spent the last 13 years practicing media and First Amendment law at the Chicago law firm Funkhouser Vegosen Liebman & Dunn. He is the chair of the Chicago Bar Association’s Media and Entertainment Law Committee as well as the American Bar Association’s Media, Privacy and Advertising Law Committee. Before law school he worked as a reporter and editor in the Chicago and Atlanta areas.

“I am honored to have the opportunity to contribute to an organization with a history as rich as Freedom of the Press Foundation’s,” Seth said. “I will always welcome input from our members and friends on how our advocacy team can best assist journalists and advance press rights.”

FPF’s Executive Director Trevor Timm said he is thrilled to welcome Seth to the 10-year-old organization. “We are confident that Seth and his team will build on FPF’s track record of successful advocacy on the national, international, and local levels and take our advocacy work in exciting new directions.”

FPF is a nonprofit organization that protects, defends, and empowers public-interest journalism in the 21st century. For media or other inquiries, email Seth Stern at Seth@freedom.press or media@freedom.press.

Credit: MIKE

This post was originally published as part of our weekly newsletter. For more breaking news and analysis of the state of press freedom in the U.S., subscribe here.

An Ohio newspaper editor was charged with felony wiretapping for publishing audio that a source recorded during a high profile murder trial. In other words, he was arrested for practicing journalism.

The charges against Derek Myers of the Scioto Valley Guardian ignore the Supreme Court’s recognition over two decades ago that reporters are not to blame for unlawful recordings by sources. In fact, the issue has been settled since the Pentagon Papers. It’s up to judges, not journalists, to enforce courtroom confidentiality rules.

The ordeal should alarm all those who value press freedoms. Abuses of state and local law to target journalists are every bit as dangerous as abuses of the Espionage Act at the federal level but they often fly under the radar. Myers’ arrest is even more disturbing considering that the judge presiding over the murder trial, Randy Deering, may have harbored a personal grudge against Myers for successfully challenging his prior ban on filming witnesses.

The Guardian’s troubles did not end with Myers’ arrest. Another judge, Anthony Moraleja, approved a search warrant that led to the seizure of the laptop the Guardian had been using to livestream the trial and his cellphone was seized as well. As the Committee to Protect Journalists noted, the seizure — presumably intended to discover the source of the audio recording — ignores Ohio’s shield law and the federal Privacy Protection Act. In addition to violating Myers’ personal rights and preventing the Guardian from continuing its livestream, the warrant and seizure will surely have a chilling effect on sources who may have thought they could rely on the law to keep their identities secret.

That Myers could face prison time and property seizures notwithstanding Supreme Court precedent and supposed legal protections goes to show that journalists cannot depend on the law alone. It’s vital that judges and other local officials face a strong public backlash when they harass journalists and ignore press freedoms.

What we’re reading:

• Settlement reached in suits over FBI posing as AP reporter: The Reporters Committee for Freedom of the Press settled lawsuits filed in reaction to an FBI agent posing as an AP reporter in 2007 to deliver surveillance software to a teenager suspected of a bomb threat. We commend RCFP and AP for holding the government accountable for this inexcusable practice.
• Trump Keeps Musing About Journalists Being Raped in Prison — He’s Not Joking: Trump continued his disturbing rhetoric regarding the news media by again suggesting that authorities investigating leaks threaten reporters with prison time. “When the reporter learns he’s going to be married to a certain prisoner who’s extremely strong, tough, and mean, he will say, ‘you know, I think I’m going to give you the information.”. These kinds of threats from possible presidential hopefuls are precisely why Sen. Dick Durbin needs to push the PRESS Act through the Senate rather than leave journalists to rely on easily changeable DOJ policies.
• State Dept. gives law enforcement, intelligence agencies unrestricted access to Americans' personal data: Sen. Ron Wyden sent a letter to Secretary of State Antony Blinken demanding an explanation for the State Department’s granting access to law enforcement and intelligence agencies to personal data of Americans obtained from passport applications. We await Blinken’s answers regarding this disturbing development.
• How America Turned Against the First Amendment: “Moderation laws. Book bans. Courts that keep getting played. America’s politicians are tired of the First Amendment getting in their way, and no one seems to care.” Well, some of us care, but a powerful argument nonetheless. We agree that politicians must stop preying on concerns about new technologies to try to confuse the public into rolling back long-established free speech protections.

Sen. Dick Durbin, chair of the Senate Judiciary Committee

Credit: Center for American Progress Action Fund

In its waning weeks, the 117th Congress has a historic chance to pass legislation that would do more to protect press freedom than any bill in modern history. Already passed by the House, the fate of the PRESS Act is now in the hands of Sen. Dick Durbin, the chair of the Senate Judiciary Committee, who can make sure this bill advances closer to a full vote in the Senate.

The Protect Reporters from Exploitative State Spying (PRESS) Act, first introduced by Sen. Ron Wyden last year, is the strongest reporter’s shield bill to come through Congress that we’ve ever seen. It would prevent the government from spying on journalists in all but the most emergency situations and protect them from testifying against their sources.

After myriad surveillance scandals under both the Obama and Trump administrations, the Biden Department of Justice has just issued new internal guidelines that restricts the surveillance of journalists who are doing their jobs. Our friends at Reporters Committee for Freedom of the Press called the rules a “watershed moment,” and it is certainly welcome news.

However, perhaps the most important provision in these new internal rules is the very last paragraph:

This section is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

In short, these new DOJ guidelines do not have the force of law. They can also be changed at the stroke of a pen, or on the whims of the White House or attorney general, present or future.

Wyden’s PRESS Act, which we’ve previously endorsed, closely mirrors the DOJ guidelines and would enshrine these important press protections in the law. It would mean a future president could not go back to spying on journalists, like so many in the past have done. (Donald Trump just mused on the campaign trail about threatening journalists with prison to get them to reveal their sources, after all).

The PRESS Act would make these protections permanent and allow courts to hold officials accountable who break them.

The House quietly passed its version of the PRESS Act in September by voice vote, which means that if the bill actually comes up for a vote in the Senate it may be viewed as an uncontroversial and non-partisan issue.

But in the Senate, the bill needs to sign off from the Judiciary Committee before it can move forward for a full vote. Durbin, who has been supportive of press freedom and civil liberties issues in the past, can be this bill’s champion by quickly giving it his blessing in his role as Judiciary chairman. We urge Durbin to “hotline” — advance the bill without a markup by the committee — so it can be voted on before this Congress adjourns for good in January.

You can contact Durbin’s office and ask him to support the PRESS Act by calling 202-224-2152 or using this contact form.

If you’re unsure about what to say, you can repeat this language provided by our friends at Demand Progress, which also has a petition on the issue:

Sen. Durbin – I urge you to advance the PRESS Act, legislation just unanimously passed by the House. The PRESS Act would shield journalists from being forced to give up sources and block government seizure of phone and email records. These rights are absolutely essential in any functioning democracy.

If you are a resident of Illinois, Durbin’s home state, your voice is especially important. So please call or email Durbin’s office as soon as you can — time is of the essence. With Congress potentially switching hands in a few months, we might not see another opportunity like this in years.

At a rally this weekend, former President Donald Trump continued to attack the media, suggesting imprisonment for journalists who publish leaked materials.

Credit: Gage Skidmore (FILE)

This post was originally published as part of our weekly newsletter. For more breaking news and analysis of the state of press freedom in the U.S., subscribe here.

At a Texas rally this weekend, Donald Trump called for law enforcement to go after journalists and publishers to find who leaked the Supreme Court’s draft Dobbs opinion earlier this year. In a rambling and occasionally vulgar speech, the former president suggested investigators could claim the leak was a national security issue, and threaten the reporters and their outlets with prison violence. These comments echoed similar remarks he’d posted to Truth Social this summer.

Trump’s heinous positions are hardly new: As a public figure, then as a candidate, then as president, then as a defeated former executive, he has repeatedly voiced similarly objectionable views on the value of press freedom in this country.

It’s a stark reminder that future presidents may attempt to imprison journalists who report on the machinations of secret government.

It’s also why, ever since the Trump administration initiated the prosecution of WikiLeaks founder Julian Assange, we’ve warned that the dangerous precedent set by the case could easily be used against national security reporters at The New York Times, The Washington Post and everywhere else.

Those charges received condemnation from top American news organizations and nearly every major international human rights group when they were filed in 2019, but the DOJ under Biden continues to pursue them. Freedom of the Press Foundation is among the more than two dozen groups that have repeatedly called for the Department of Justice to drop the charges. Those demands have only picked up this month as Assange tested positive for COVID while awaiting extradition in a U.K. prison.

Yesterday, the DOJ released important guidelines that would virtually bar the surveillance of journalists doing their jobs. But until the department breaks meaningfully with its predecessor’s disregard for the First Amendment and drops the charges against Assange, future administrations (Trump is likely to run again, after all) will have been handed all the tools they need to imprison journalists they do not like.

What we’re reading:

• Knight Institute sues CIA and other agencies to obtain intelligence report on Khashoggi murder: The Columbia University-based First Amendment organization filed a FOIA lawsuit seeking the still-withheld report on the slain journalist’s 2018 murder.
• LAPD launches criminal probe of racist leak at request of Martinez, De León, Cedillo: The Los Angeles police chief announced that his department has initiated a criminal investigation into the leaked recording that has shaken city politics for weeks. Experts note that the anonymous poster who published the recording to Reddit could invoke California’s shield law, which protects a reporter’s privilege not to disclose sources.
• Iran’s media blackout sets the stage for state violence: Brutal crackdowns to protests in Iran have intensified as the government blocks reporters from documenting the scene. “There are no journalists on the ground. No journalists are allowed to work in these situations. Unless you are working for the regime,” said the editor-in-chief of an Iranian fact-checking organization.
• Charges — and punishments — for J6 rioters who hurt journalists, damaged news equipment: Our U.S. Press Freedom Tracker documented 18 journalists assaulted during the riots and tens of thousands of dollars of news equipment damaged. Last week, a rioter was sentenced to nearly three years in prison for his actions that day, including the assault of an Associated Press photographer. It’s the first sentencing to include crimes on the media.

Credit: Joe Ravi

A Texas law that would force social media companies to host objectionable content is once again suspended while litigants request the Supreme Court weigh in on the issue. Last week the Fifth Circuit blocked the notorious legislation, known as H.B. 20, from taking effect until at least December, putting on hold its own controversial September ruling that seemingly disregards a century of First Amendment law. The statute had previously made a trip to the Supreme Court, where an unusual 5-4 majority granted a request for an emergency stay through its opaque “shadow docket” process.

The Texas law is one of a handful passed in Republican-led state legislatures aimed at making social media platforms carry a variety of users’ opinions — whether those websites want to or not. In Florida, Gov. Ron DeSantis waded into the fray last May with a similar law that has now been temporarily blocked by both a federal district court and the Eleventh Circuit. Earlier this month, Florida petitioned the Supreme Court to overturn that order. Between these two petitions and the recently granted challenges to CDA Section 230 (a key protection for online speech), this Supreme Court term could have major First Amendment implications.

The earlier Texas decision upholding H.B. 20 attempts to draw a legal distinction between the judgment exercised in social media moderation and that used by newspaper editors. But if legislators and courts can use this sort of blatantly unconstitutional law to dictate what social media companies must host, it’s not hard to imagine they’d try the same with news outlets next.

In fact, we’ve already seen the outlines of that effort, through campaigns to erode the First Amendment rights enshrined by cases like New York Times v. Sullivan. Those rights were hard-fought, and far from inevitable. Although the Texas and Florida laws may have only an indirect impact on newsrooms for now, they represent an open front in an ongoing press freedom battle.

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What we’re reading:

• David Kaye: Here’s what world leaders must do about spyware: The former U.N. Special Rapporteur describes the problem with commercial spyware, which has been used to target journalists across the globe, and lays out a plan to curb its abuse.
• Gannett announces new cuts including mandatory unpaid leave and buyouts: The largest newspaper chain in the United States continues to struggle financially, especially since a 2019 merger with GateHouse left the combined company saddled with $1 billion in debt. Yet they have no problem doing massive stock buybacks!
• Newspapers with a partisan aim filling the void of traditional media: As local newspapers have reduced their coverage or disappeared altogether, outlets with a new model have stepped into the void in some political battleground states. Partisan publications with the trappings of traditional papers have resources and reach — and journalism educators are alarmed.
• KC photographer shoved to ground by NFL player after game: Photographer Park Zebley was shoved to the ground by a Raiders wide receiver. Our U.S. Press Freedom Tracker confirmed with Zebley’s attorney that he suffered a headache, whiplash and a concussion from the incident. The player, Davante Adams, has been charged with misdemeanor assault. Follow our U.S. Press Freedom Tracker for more.
• Journalists in US Moving Closer to Improved Legal Protections: Two separate bills are making their way through Congress that would block federal law enforcement from subpoenaing media workers’ records and shield them against certain lawsuits.

Los Angeles City Hall

Credit: chrisinphilly5448

Leaked audio of Los Angeles politicians engaging in crass and racist conversation has roiled local politics for days after it was posted anonymously to Reddit over the weekend. Since then, the president of the city’s unusually powerful council renounced that title, announced she would take a leave of absence, then resigned yesterday. Figures as prominent as President Joe Biden had called for her resignation, as well as those of other council members caught on tape. The head of the influential Los Angeles County Federation of Labor, who was also a participant in the conversation, has resigned.

The audio and ensuing reporting are undeniably newsworthy, and the resulting shake-up could transform the political situation in the country’s second largest city. But as is so often the case, some have treated the leak itself as the “real” transgression. A representative for the Federation of Labor sent a letter warning The Los Angeles Times that the conversation had been illegally recorded. (To its credit, the LA Times responded by noting that U.S. law does “not prohibit or punish the receipt and publication of newsworthy information.”) The group appears to have successfully removed what it calls the “illegal” audio from Reddit, per an internal memo that was, yes, leaked to the press.

Unauthorized leaks are frequently the source of critically important stories, but there is almost always a chorus of complaints that the origin of this reporting somehow taints the reporting. That’s nonsense. A central mission of Freedom of the Press Foundation — through its security trainings for journalists, development of SecureDrop software for encrypted anonymous communication, and advocacy for legal protections for reporters covering sensitive material — is to foster an environment where important leaks can get the fearless press coverage they deserve.

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What we’re reading:

• PACER users to receive refunds in $125 million settlement with U.S. judiciary: The U.S. government has agreed to refund up to $350 in fees incurred between 2010 and 2018 by users of PACER, the federal system for accessing court records. This settlement only covers past charges, but legislators are considering a proposal to free PACER going forward, which we have strongly endorsed.
• Warriors ‘aggressively investigating’ who leaked the Draymond Green punch video to TMZ: The Golden State Warriors are reportedly pursuing “every legal course of action” to find the leaker of a video that shows a physical altercation between superstars Draymond Green and Jordan Poole. Local sports reporters have defended the newsworthiness of the leak.
• Iranian security forces step up arrests of journalists amid anti-state protests: At least 28 journalists have been arrested in Iran over the past month as the government violently cracks down on protests in that country, according to the Committee to Protect Journalists. The protests began over the death in custody of 22-year-old Mahsa Amini, who had been arrested for allegedly violating morality codes about conservative dress. Freedom of the Press Foundation condemns both the crackdowns and these arrests.
• Fight over social media’s role in terror content goes to Supreme Court: The Supreme Court agreed last week to hear two cases about Section 230 of the Communications Decency Act, one of the most important laws underpinning the Internet. Both cases pertain to content related to supposed terrorism-related content posted by users to social media sites.
• Devices illegally seized in investigation of reporter’s murder, Review-Journal argues: A judge this week granted the Las Vegas Review-Journal’s request to block authorities from reviewing devices seized from the home of slain reporter Jeff German, which are expected to include source names and notes. FPF — and dozens of press freedom advocacy and news outlets — argue the temporary injunction should be permanent. Our U.S. Press Freedom Tracker is following the device search and seizure.

Credit: formulanone

As soon as it was revealed last week that the Espionage Act was among the statutes included in the search warrant targeting reams of classified documents allegedly kept in former president Donald Trump’s Florida residence, pundits — and everyone on Twitter — started wildly speculating, and in the process, spread a lot of misinformation about one of the country’s most controversial laws.

Commentators immediately leapt onto the inclusion of 18 U.S.C 793 (also known as part of the Espionage Act) in the list of statutes named in the warrant targeting Mar-a-Lago that led to the raid. For example, this tweet, claiming the citation of the law must mean the Department of Justice has evidence of outright espionage, was re-tweeted more than 10,000 times and is full of assertions about the law that are misleading or outright false.

For the warrant to cover the Espionage Act, there had to be PROBABLE CAUSE of espionage.

Not just a “what if Trump gave classified docs to foreign agents.”

There was PROOF presented to the judge — witness testimony, video footage, other documents, something. Tangible proof.

— Tristan Snell (@TristanSnell) August 12, 2022

There are countless other Twitter posts along the same lines. As everyone on Twitter was working themselves up into a frenzy over the idea that Trump was now probably involved in some sort of foreign spying operation, the Intercept’s great reporter Ken Klippenstein gently reminded everyone that the only thing the Espionage Act actually requires is for a person to retain “national defense information” (which often means, but is not exclusive to, “classified information”) and not give it back when asked to by the government.

Why is this fact-check relevant to us at Freedom of the Press Foundation? Well, as we have written many times, the Espionage Act is an incredibly broad law. No proof or probable cause of actual “espionage” is required to be investigated or charged under 18 U.S.C. 793. Critically, despite its name, the Espionage Act is not primarily used to go after spies, but whistleblowers and the sources of journalists.

The law has been increasingly wielded in recent years to stifle dissent and vital journalism that would not come to light without brave people coming forward to reporters at great risk to themselves. Whistleblowers who have exposed illegal surveillance, torture, extrajudicial drone strikes, civil liberties violations, even attempts by Russia to allegedly hack into our election infrastructure have been imprisoned under the law.

The very polarizing opinions about Trump have clouded an important debate about this draconian statute that should be reformed or repealed. Republican Senator Rand Paul was relentlessly mocked for tweeting, “The espionage act was abused from the beginning to jail dissenters of WWI. It is long past time to repeal this egregious affront to the 1st Amendment.”

Are Paul’s motives here cynical or opportunistic (or even hypocritical based on his previous remarks)? Sure, of course. But it doesn’t mean he’s wrong.

On the Espionage Act’s 100th-year anniversary we published a detailed, three-part history of the law and how it has been used for decades to imprison the sources of journalists who reveal classified information showing wrongdoing, abuse, or illegality. Even less known is how it has been wielded to threaten award-winning reporters with prosecution who exercise their First Amendment rights to publish those secrets.

Worse still, when sources or whistleblowers are charged under the statute they are prevented from telling their jury what their motive was for speaking with a journalist, why the material may have been misclassified, or that releasing it did not actually harm national security. All this essentially means that those charged under the statute have no legitimate defense at trial.

In fact, one of the administrations that has abused the Espionage Act the most is… Donald Trump’s. His Justice Department brought at least five Espionage Act prosecutions against the sources of journalists, according to our U.S. Press Freedom Tracker. None of the defendants were ever accused of “espionage” in the traditional sense – only that they handed over material to reporters or publishers who produced news stories about it.

The Justice Department under Trump also took the law a step farther than any administration before it and initiated a prosecution of a publisher of government secrets as well. Virtually every major civil liberties group in the world has repeatedly asked the Biden administration to drop the charges against WikiLeaks founder Julian Assange, given they could eventually criminalize a lot of national security journalism practiced at many of the nation’s most respected newspapers.

It’s true, as many have pointed out, that whistleblower Reality Winner received five years in jail for leaking a single classified document to a news organization. It’s incredibly important that Trump, or any ex-president, is treated the same as any other citizen. Double standards for powerful people are often prevalent, especially when it comes to retaining or leaking classified information.

The real travesty, however, is not that Trump isn’t already in handcuffs under the Espionage Act, but that Winner was sentenced to five years for a “crime” for which she never should have been in prison in the first place. (I’ve written extensively about the importance of Winner’s leak to the public interest, how overclassification is rampant, and how she was unable to tell a jury why she did what she did.)

To be clear, no one is arguing that Trump is a whistleblower or acting as a journalist. That’s preposterous. Other First Amendment scholars we respect have argued that in this particular case the law is not being abused. But the Espionage Act is pernicious, and we are very wary of any move to further legitimize its use. (By the way, if the Espionage Act was somehow repealed it wouldn’t make Trump’s legal difficulties around the raid magically go away. The Trump warrant cited multiple additional statutes of which he may very well be in violation.)

Just last month, we wrote about an important amendment, introduced by Democratic Rep. Rashida Tlaib, that would meaningfully reform the Espionage Act to make sure that whistleblowers are allowed to tell their story to a jury if the Justice Department attempts to prosecute them. If Republicans actually want to put their money where their mouths are, they should immediately support Tlaib’s amendment or similar bills. If not, we will know it’s all just posturing.

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Today marks five years since we launched the U.S. Press Freedom Tracker, a project of Freedom of the Press Foundation and the Committee to Protect Journalists.

In our six years of documentation — the canonical database for press freedom violations in the United States dates to January 2017 — the Tracker team has documented more than 1600 incidents across nearly a dozen categories, affecting more than 1100 journalists and news organizations. We’ve published more than 100 in-depth analyses of press freedom issues.

The Aug. 2, 2017 tweet announcing launch of the U.S. Press Freedom Tracker

The Tracker’s origin story started well before 2017. The Obama administration was wrapping up eight years of aggressively prosecuting leaks to journalists, a presidential candidate named Donald Trump was openly antagonistic against the media and law enforcement in Ferguson, Missouri, was targeting journalists with crowd-control munitions and arresting more than two dozen covering Black Lives Matter protests after the police-shooting death of Michael Brown there.

Leading press freedom advocates from the U.S. and United Kingdom believed that a nonpartisan site for press freedom incidents in the states would not only serve advocacy efforts, but also inform journalism and legal action. That vision proved prescient; the Tracker is the authoritative site for aggressions against journalists in the U.S., cited in legislation, news stories and the backbone for advocacy efforts around press rights.

To date, we’ve documented nearly 1000 assaults of journalists and 300 arrests or detainments, more than 50 border stops and 250 reports of damaged equipment. More than 140 subpoenas are captured in the site.

A snapshot of 2020 press freedom violations as captured by the U.S. Press Freedom Tracker

Tracker Fact

In six years, the most press freedom violations were recorded in 2020; More journalists were assaulted in the one week immediately following the death of George Floyd in Minneapolis than 2017-2019, combined.

The site itself went through a major redesign this year; It now boasts new data visualization capabilities, smarter search functions and increased speeds for downloading the data with our API. The site runs on open source software as of 2020 and the content is available for republication under a creative commons license.

Tracker Fact

State with the fewest documented press freedom incidents: Wyoming (0)

State with the most documented press freedom incidents: Oregon (260)

The Tracker is uniquely positioned to give both a real-time view of aggressions against the media (we live-tracked as 18 journalists were assaulted while covering the Jan. 6, 2021, insurrection at the Capitol) while also capturing trends over time (eight individuals have since been charged with crimes for those assaults). It’s how we can tell you that at least 60 journalists have sued law enforcement following their treatment at protests since 2017 and that by the time Twitter permanently suspended his account on Jan. 8, then-President Trump had posted 2,520 tweets degrading journalists and the media as a whole.

We don’t know what the state of press freedom in the U.S. will look like in the years ahead, but we know it is best served with a robust and well-maintained Tracker in its press freedom watchdog role.

Photo credit: MPAC National

For years now, the U.S. Department of Justice (DOJ) has been abusing the Espionage Act – the 100+-year-old law meant for spies – to prosecute the sources of journalists who disclose newsworthy information to newspapers in order to inform the American public.

We’ve written a lot about how the draconian law is incredibly unjust and leads to unfair show trials for brave whistleblowers who take great risks to expose the truth. For example, the Espionage Act does not allow a defendant to tell the jury why they spoke with a reporter (even if their reason was to expose illegality or unconstitutional programs). They also cannot argue that the information they disclosed to a journalist was improperly classified, or that the disclosure caused no actual harm to national security.

Recently, the DOJ — first under President Trump and continued under the Biden administration — has taken the Espionage Act an ominous step further and is attempting to wield the law against publishers. It’s a dangerous gambit that could potentially criminalize national security journalism at the nation’s largest and most influential newspapers.

But that all could potentially change if Congress adopts Rep. Rashida Tlaib’s excellent new amendment to Congress’s annual National Defense Authorization Act.

This amendment is by far the best reform we’ve seen come through Congress since we’ve been tracking this issue. As our friends at Defending Rights & Dissent explain, this bill proposes several vital reforms to make sure whistleblowers and journalists aren’t unjustly persecuted, while still enabling the Espionage Act to be used against actual spies:

• Requires the government prove specific intent to injure the United States
• Requires that the information exposed was actually properly classified
• Permits a defendant charged under the Espionage Act to testify as to their purpose for disclosing the information
• Creates a public interest defense.
• Additionally, the amendment would undermine the government’s effort to prosecute Julian Assange - or any future publisher or journalist - under the Espionage Act by excluding journalists, publishers, and members of the general public from its jurisdiction.

Please follow this link to tell your member of Congress they need to support this bill! The next few days will be critical in determining whether this amendment will make it into the final version of the NDAA.

Our sincere thanks to Rep. Tlaib and her staff for crafting such a vital and thoughtful bill that could do more to help journalists and whistleblowers than anything Congress has passed in decades.

Federal law enforcement officers patrol Washington, D.C., in 2021. A recent Supreme Court ruling closed the door on journalists seeking monetary damages for First Amendment violations by federal employees.

— REUTERS/JIM URQUHART

This article is cross-posted from U.S. Press Freedom Tracker.

In a Supreme Court term packed with controversial cases, one of the more-overlooked rulings has alarmed press freedom advocates as it gutted the legal mechanism used to hold federal officers liable for violating individuals’ constitutional rights.

The court ruled on partisan lines in Egbert v. Boule on June 8, 2022, significantly limiting the path for monetary damages following unlawful searches or excessive use of force and closing the door for First Amendment retaliation claims.

Reporters Committee for Freedom of the Press called the ruling an unfortunate blow to efforts to hold federal officers accountable. In its amicus brief to the court, it argued that the press is a “tempting target for federal officials seeking to retaliate against reporting on matters of public concern.” More than 30 media and advocacy organizations, including Freedom of the Press Foundation, signed on to the brief.

For documentary photographer Rian Dundon, the lawsuit he filed against more than 100 federal officers in April under similar precedents now faces an uncertain future.

Dundon is one of at least 50 journalists who have sued law enforcement officers, agencies or city officials for their treatment while covering the national protests sparked by the murder of George Floyd in May 2020. Dundon was assaulted by federal law enforcement twice that July while covering protests in Portland, Oregon.

Nicholas Kahl, an attorney representing Dundon, told the U.S. Press Freedom Tracker that Dundon’s suit aims to establish not only that the federal officers used excessive use of force but targeted Dundon because he is a journalist, in violation of the First Amendment.

“It isn’t about: Did this officer hit Rian? That’s obvious from the footage,” Kahl said. “The question is: Will we be able to get into why they did it? Will we be able to ask those questions? Will we get discovery on the motivations of the federal government in the policing of journalists around those protests and the Black Lives Matter movement?”

The majority of lawsuits filed by journalists have been against law enforcement agencies and officers at the state and local levels. While suits like Dundon’s are in the minority, the Tracker is aware of at least six other journalists suing federal officers, all of which now face a similarly limited path.

The path to holding federal officers accountable

The case before the court involved Robert Boule, the owner of a bed-and-breakfast abutting the Canadian border in Washington, who alleged that a U.S. Customs and Border Protection officer assaulted and retaliated against him after he filed a complaint with the agency. Boule’s claims for damages were made under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, a 1971 Supreme Court case that established that federal officers can be personally sued and held financially liable for conducting unreasonable searches.

Gillian Vernick, a Technology and Press Freedom Project Fellow at RCFP who helped author the organization’s amicus brief in Boule, told the Tracker that circuit courts across the country have largely recognized that Bivens logically extends to First Amendment violations.

“It plays a critical role in deterring unconstitutional misconduct by federal officers and compensating for those damages. It’s really a severe consequence,” Vernick said.

The Court of Appeals for the 9th Circuit came to that conclusion in 2020 when ruling in favor of Boule’s assertion that his freedom of speech was violated.

While the Supreme Court initially extended the Bivens remedy — allowing for monetary damages in claims against federal employees — to include other constitutional violations over the last 50 years, it made clear in a 2017 case that further expansions were unlikely.

The ruling in Egbert v. Boule went further, all but overturning the initial Bivens ruling; Justice Neil Gorsuch wrote that he was prepared to do just that. Justice Clarence Thomas wrote in the majority decision that moving forward all federal courts must reject Bivens lawsuits if even one “rational reason” can be found to do so.

A dark, uncertain future for Bivens

In her dissent, Justice Sonia Sotomayor reasoned that while almost all such claims may be dismissed under this new standard, the Bivens decision remains a viable pathway for relief for some.

“Although today’s opinion will make it harder for plaintiffs to bring a successful Bivens claim, even in the Fourth Amendment context,” Sotomayor wrote, “the lower courts should not read it to render Bivens a dead letter.”

Margaret Russell, an associate professor of law at Santa Clara University, took a more dour perspective, telling the Tracker that plaintiffs will face far more than an uphill battle even when making excessive use of force claims and that the future of Bivens is clearly under threat.

“It’s chopping Bivens to pieces without yet overruling it, but I think that clearly is the direction they’re going in,” Russell said. She added that the new directives may make it impossible for plaintiffs to make a successful claim unless the case is more or less identical to Bivens.

“Everyone is impacted by the narrowing of the Bivens decision,” Russell told the Tracker, “but journalists certainly, when they are the victims of excessive use of force by a federal officer. There is an ancillary effect on the news that they’re trying to report.”

Russell said that Bivens provides one of the only paths for holding federal agents accountable for constitutional violations. While a federal law authorizes suits against state and local authorities, no such statute exists for federal officers. The laws that do pertain to filing lawsuits against federal employees explicitly exclude any claims involving constitutional violations.

The shortcomings and failings of other remedies

Other remedies — such as filing a complaint with the agency or seeking a preliminary or permanent injunction — have significant limitations or pitfalls.

Kelly Simon, ACLU of Oregon Legal Director, is one of the attorneys representing a collection of media plaintiffs in a lawsuit against the City of Portland, the U.S. Department of Homeland Security, U.S. Marshals Service and 60 federal and local law enforcement officers.

The class action suit was filed in May 2020, following hundreds of assaults and arrests of journalists in the city while covering social justice protests. That July, a judge granted a preliminary injunction barring both the Portland Police Bureau and federal officers from arresting, harming or impeding the work of journalists or legal observers of the protests.

Simon told the Tracker that while preliminary injunctions can provide temporary relief from ongoing violations, they can only be granted in instances where plaintiffs are able to show that future violations against them are likely.

The order in the ACLU’s suit was lifted in March 2022, when the court deemed it moot, Simon said. “When circumstances change and there’s no longer a need for it or a case is no longer live between plaintiffs and defendants, when there’s no live controversy, the court essentially says no relief is available.”

The case is still in its early stages, Simon said, and they remain open to reaching a settlement agreement that will include concrete policy changes.

“I still have hope that the United States government will be willing to come to the table and consider very reasonable protections for journalists and legal observers trying to ensure that there is transparency in government operations,” Simon said.

While individuals can file a complaint with the agency itself when federal officers violate their rights, Santa Clara law professor Russell told the Tracker she doesn’t see it as an effective remedy.

“An agency determination of a grievance is not the same as a court action,” Russell said, “and the people who decide that claim come from that world of law enforcement itself.”

Turning the spotlight to the legislature

In the majority decision, Justice Thomas acknowledged that agency review may not be an adequate remedy and noted that officers might be too fearful of personal liability if Bivens were expanded to include First Amendment violations. All of the justices agreed that the answer to both is the same: that the legislature must ultimately establish how to effectively address constitutional violations.

The outlook for such legislation remains grim. For example, the Justice in Policing Act passed by the House of Representatives in June 2020 abolishes legal protections for state law enforcement officers who violate constitutional rights but does not extend the same provision to their federal counterparts.

Simon, of the ACLU of Oregon, told the Tracker that while the path to holding federal officers accountable for constitutional violations has become steeper, efforts must be redirected to the local level.

“A lot of the constitutional violations that we see in this country are the product of state and local law enforcement action,” Simon said. “We should still be focused on doing everything we can at the local level to protect civil rights against abusive law enforcement practices.”

Londres (Reino Unido), 18 de Agosto 2014

The British home secretary has formally approved the extradition of WikiLeaks publisher Julian Assange to the United States, in the latest development in a dangerous and misguided criminal prosecution that has the potential to criminalize national security journalism in the United States.

Previously, a major coalition of civil liberties organizations, including Freedom of the Press Foundation, implored U.S. Attorney General Merrick Garland to drop the case against Assange in the name of protecting the rights of journalists everywhere. So, too, have the editors of major news outlets such as The New York Times and Washington Post.

By continuing to extradite Assange, the Biden DOJ is ignoring the dire warnings of virtually every major civil liberties and human rights organization in the country that the case will do irreparable damage to basic press freedom rights of U.S. reporters.

The prosecution, which includes 17 charges under the Espionage Act and one under the Computer Fraud and Abuse Act, covers events that took place more than a decade ago, but was brought only under the Trump administration — after the Obama Department of Justice reportedly considered charges but dismissed them for their dangerous First Amendment implications.

Reports suggest Assange may have at least one more avenue of appeal, so he may not be on a flight to the United States just yet. But this is one more troubling development in a case that could upend journalists’ rights in the 21st century.

You don’t have to like Assange or his political opinions at all to grasp the dangerous nature of this case for journalists everywhere, either. Even if you don’t consider him a “journalist,” much of the activity described in the charges against him is common newsgathering practices. A successful conviction would potentially make receiving classified information, asking for sources for more information, and publishing certain types of classified information a crime. Journalists, of course, engage in all these activities regularly.

There is some historical irony in the fact that this extradition announcement falls during the anniversary of the Pentagon Papers trial, which began with the Times publication of stories based on the legendary leak on June 13, 1971, and continued through the seminal Supreme Court opinion rejecting prior restraint on June 30, 1971.

In the months and years following that debacle, whistleblower (and FPF co-founder) Daniel Ellsberg became the first journalistic source to be charged under the Espionage Act. What many do not know is that the Nixon administration attempted to prosecute Times reporter Neil Sheehan for receiving the Pentagon Papers as well — under a very similar legal theory the Justice Department is using against Assange.

Thankfully, that prosecution failed. And until this one does too, we continue to urge the Biden administration to drop this prosecution. Every day it continues to further undermine the First Amendment.

CC BY 2.0 Don Holloway

Police in Uvalde, Texas, and Buffalo, New York, have used the aftermath of mass shootings to clamp down on press access and have threatened to violate the press freedom rights of journalists doing their jobs. According to recent reporting by the U.S. Press Freedom Tracker, as tragedy unfolded in each of these cities, reporters have faced unnecessary hurdles erected by law enforcement and public officials, with some going as far as warning the reporters will be arrested.

Nearly two weeks before the Uvalde school shooting, a gunman killed 10 people in a Buffalo, New York, supermarket. Los Angeles Times reporter Connor Sheets said he was in Conklin, New York, a few days after the shooting when Sheriff’s deputies escorted him away from the alleged shooter's high school. The next day, deputies demanded that he also leave the school district’s central office and once again escorted him away from the building. "This restriction of media access seems to be part of the post-mass-shooting playbook," Sheets wrote in a tweet.

“These kinds of practices limit access to public information and can make it harder for journalists to do their jobs,” Sheets told the U.S. Press Freedom Tracker.

Sheets’s reference to a “playbook” is salient — this can’t be written off as the missteps of a particular agency or official, given the similar events we’ve seen in Uvalde:

[O]n June 1, a CNN crew visited the Uvalde school district headquarters, where police officers told the journalists they were trespassing and threatened to arrest them if they stepped back on the property. Correspondent Shimon Prokupecz recorded the interaction with Producer Matthew Friedman and posted the video on Twitter.

[...]

On June 3, the Texas Tribune reported that Uvalde City Hall locked its doors during regular business hours and refused to “immediately provide any public records to reporters.” According to the Tribune, the move came as residents and journalists aim to hold Pete Arredondo, the chief of the Uvalde Consolidated Independent School District Police Department, accountable for waiting more than an hour for backup instead of immediately ordering officers to charge the gunman inside Robb Elementary School.

And in an op-ed in the San Antonio Express-News, journalist Michael Drudge cataloged some of the same behavior from public officials:

Adding to the problems journalists face is a virtual news blackout on the part of state and local authorities.

Texas state Sen. Roland Gutierrez represents Uvalde. He’s been a high-profile news source with contacts inside the Texas Department of Public Safety. He revealed Friday that a DPS official told him Uvalde County District Attorney Christina Mitchell Busbee ordered DPS not to release any more information to the senator or the public. The Associated Press reported Friday the DPS referred all questions to Busbee, who did not return phone calls and text messages from the Associated Press.

Unfortunately, the pattern encompasses even more examples over the course of several weeks. In the wake of a horrifying event, when the facts and truth are of critical importance, police and public representatives are interfering with crucial reporting.

Especially given the profound public questions about the actions of the Uvalde police and their role in the shooting, and the department’s constantly shifting stories about what actually took place, it’s essential that journalists are able to find answers. Interference with reporters doing their jobs is never OK for police. But in this case, it is absolutely unacceptable.