Freedom of the Press

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FOR IMMEDIATE RELEASE:

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

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

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

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

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

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

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

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

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

Multiple news outlets take down stories globally

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

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

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

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

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

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

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

Demands for removal leverage risk of deplatforming by tech companies

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

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

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

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

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

Veiled threats have an impact regardless of credibility

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

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

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

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

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

American legal protections can’t stop foreign censorship tactics

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read the full article here.

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

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

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

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

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

You can read the full article here.

We are thrilled to announce that Jack Dorsey’s philanthropic initiative, #startsmall, has generously donated $10 million to Freedom of the Press Foundation (FPF) to further our work to protect press freedom for all in the 21st century.

As a defender of transparency, open source software and free expression, Jack — Block Head, Chairman, and co-founder of Block Inc. — launched #startsmall’s Open Internet Development fund to support the type of innovative work that’s at the core of FPF.

“We’re incredibly grateful for this game-changing grant from Jack Dorsey and #smartsmall,” said FPF Executive Director Trevor Timm. “At Freedom of the Press Foundation, we focus on real-world challenges that investigative journalists face every day, and Jack’s transformative gift allows us to lead the fight to ensure a free press is protected for everyone in the years to come.”

“This new funding from #startsmall is the largest gift in our organization’s history,” Timm continued. “It will bolster and reshape our ability to build the next generation of open source tools to protect press freedom, and to train thousands more journalists in digital security, build open data sets to strengthen press freedom rights for all, and advocate for the public’s right to know.”

In 2023, Dorsey and #startsmall also contributed a significant gift to FPF to help establish the memorial Daniel Ellsberg Chair on Government Secrecy. We’ll have more news on this important new position later next week.

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If you are inspired by these gifts and would like to contribute to funding FPF, please contact our Executive Director Trevor Timm at trevor@freedom.press. Your tax-deductible support will make a lasting impact in the fight for press freedom and government transparency. Together, we can protect the vital role that journalism plays in preserving democracy and promoting the public good.

President Joe Biden, pictured here with Israeli Prime Minister Benjamin Netanyahu in Israel in 2016, should use the U.S.'s influence to protect journalists and press freedom in Gaza. Vice President Joe Biden visit to Israel March 2016 by U.S. Embassy Jerusalem is licensed under CC BY 2.0.

FOR IMMEDIATE RELEASE:

At least 79 journalists and media workers have been killed in the Israel-Gaza war: four by Hamas and its affiliates during the Oct. 7 attacks and at least 75 since, almost all by the Israeli military. Most recently, Al Jazeera journalist Hamza al-Dahdouh and freelance journalist Mustafa Thuraya were killed when Israeli soldiers deliberately targeted a car in which the journalists were traveling on Jan. 7.

Today, Freedom of the Press Foundation (FPF) and a coalition of press freedom and human rights organizations sent a letter to President Joe Biden (available here) urging his administration to do more to protect journalists’ ability to safely and freely report on the conflict.

In addition to FPF, groups also signing the letter include the Committee to Protect Journalists, Freedom Watch, Human Rights Watch, Knight First Amendment Institute at Columbia University, and Reporters Without Borders.

“The killing of so many journalists in so brief a period of time is shocking and horrific. It has obvious and profound implications for the ability of the public, including the American public, to be informed about a conflict with local, regional, and global implications. We are writing to entreat you to act immediately and decisively to promote the conditions for safe and unrestricted reporting on the hostilities,” the letter states.

“The sheer number of journalists killed and injured in the war is shameful,” said FPF Deputy Director of Advocacy Caitlin Vogus. “The Biden administration has a moral and legal obligation to ensure that Israel protects reporters, not only because they’re civilians, but also because of the vital role they play in informing the public.”

“The Biden administration has been all talk when it comes to journalists killed by the Israeli Defense Forces,” said FPF Director of Advocacy Seth Stern. “The Biden administration says it cares deeply about journalists’ freedom to cover the war but has failed to demand Israel ensure journalists’ safety or hold it accountable when it doesn’t.”

In addition to decrying the deaths of journalists, the letter also emphasizes that Israel and Egypt must provide international journalists with access to Gaza.

“International journalists have been almost entirely shut out of Gaza unless they agree to IDF escorts and restrictions on their reporting,” said Vogus. “Local journalists have done an admirable job covering the war, especially in the ever-present face of death. But international journalists — especially from countries whose citizens fund the IDF — need to be able to cover the biggest news on the planet safely and freely.”

The full letter is available here.

If you are a member of the press and wish to conduct an interview with a Freedom of the Press Foundation (FPF) expert, email media@freedom.press.

"J. Edgar Hoover Building - FBI" by Gareth Milner is licensed under CC BY 2.0.

Project Veritas’ future looks uncertain after its CEO resigned last month, calling the right-wing group an “unsalvageable mess.” But if the end is near, Project Veritas’ most enduring legacy might arise not from its infamous hidden camera stings but from a court case over the alleged theft of Ashley Biden’s journal — and its potential impact on constitutional protections for gathering news. 

There are plenty of reasons people don’t like Project Veritas. We’re not shedding tears for them either. But the lack of transparency surrounding the case threatens to chill reporting by all sorts of news outlets, including ones far more respectable than Project Veritas.

FBI agents raided the homes of Project Veritas employees in late 2021 as part of a criminal investigation over the theft of the journal. Project Veritas admits it bought the journal from a source but denies having anything to do with the theft. It’s seeking to end the probe and get back materials seized during the raids, arguing that the First Amendment protects its newsgathering and that investigators have no basis to comb through its privileged records. 

If it’s true that Project Veritas merely bought the journal from the alleged thief after the fact — and that that’s the focus of the investigation — then Project Veritas is right. It should be protected from prosecution under the Supreme Court’s landmark decision in Bartnicki v. Vopper. That case held that publishers are entitled to procure and publish materials their sources obtained illegally, as long as they don’t participate in the crime themselves. It’s certainly fair to question the ethics of digging through a politician’s daughter’s diary for dirt on her father, but unscrupulous doesn’t mean illegal.

But federal Judge Analisa Torres rejected Project Veritas’ First Amendment defenses in December, stating simply that “Here, the Government is investigating whether Project Veritas participated in the theft of the Victim’s journal and the other items. Bartnicki does not protect such conduct.” 

At least Torres’ language is an improvement on a prior report by a “special master,” former federal Judge Barbara Jones, who was appointed to review materials seized during the investigation. Jones had reasoned that “Bartnicki addresses liability for publication of unlawfully obtained information (there, by a source) and does not ‘protect’ unlawful acquisition of information.” It’s quite hard to publish information without first acquiring it. 

Freedom of the Press Foundation (FPF), along with the ACLU and FIRE, had filed an amicus brief encouraging Judge Torres to more accurately state the Bartnicki rule, which, thankfully, she did. But she failed to elaborate on how Project Veritas allegedly participated, and other records that might shed some light are sealed from public view.  

You can’t publish what you can’t possess 

We do know that one of the government’s theories is that Project Veritas illegally possessed and transported stolen property. Hopefully that’s not the “participation” to which Torres alludes. What good is a right to acquire and publish illegally obtained documents without the right to possess and transport them? That exception would swallow the Bartnicki rule whole. 

It’s also concerning that Torres discusses the journal and “other items” interchangeably. There have been reports that, after obtaining the journal, Project Veritas asked its sources to steal more of Biden’s property to prove the journal was actually hers. If that alone were the basis for the investigation, it would be less concerning —  the “other items” were supposedly personal effects, not potentially newsworthy journalistic source materials. 

But Torres’ language implies that the theft of the journal is itself a subject of the investigation, not just a part of the backstory. That means it’s crucial to distinguish whether the government believes Project Veritas was involved in stealing the journal or whether the government considers it criminal if Project Veritas merely obtained it from someone else who stole it. 

It’s somewhat understandable why Torres is being so cryptic. The government has demanded that documents explaining the basis for its investigation — including the application in support of the search warrant authorizing the 2021 raids — remain under seal. And another judge has rejected requests to unseal them, citing Biden’s privacy interests as well as the integrity of the investigation. Torres doesn’t want to be the one to spill the beans.

But it’s been over two years since the raids — you’d hope the government had made some progress on the investigation by now. Surely it could unseal enough information to identify the conduct by Project Veritas that it believes falls outside the First Amendment’s protection, so that other journalists are clear on whether the government intends to adhere to the Bartnicki rule in future cases. That wouldn’t require the government to disclose any private information about Biden — these issues have nothing to do with the content of her diary. 

Heightened need for government transparency

We get it. Journalists are not above the law. And it’s entirely possible Project Veritas did something unlawful that Bartnicki and other legal safeguards for journalists wouldn’t protect. That now-former CEO, Hannah Giles, said the “unsalvageable mess” she left behind was “wrought with strong evidence of past illegality” might be an indication. But so far the government has provided no indication of illegality in this case.

And if all prosecutors have on Project Veritas is that it possessed and transported records someone else stole, then the public should be able to question why the government is putting their tax money, and the Constitution, at risk over such a flimsy case. This time, the subject of the investigation is Project Veritas — an unsympathetic victim — but next time it might be a more reputable news outlet. As the saying goes, bad facts make bad law. 

The investigation of Project Veritas threatens to dissuade journalists from doing important, constitutionally protected work. And, rather than justifying secrecy, that the case involves someone named Biden heightens the need for transparency. People are entitled to know if an administration that proclaims that “journalism is not a crime” makes exceptions when a case hits close to the president’s home. 

The lack of transparency is especially concerning when the government is also refusing to explain its investigation of Florida journalist Tim Burke for accessing interview outtakes on a publicly available website. A respected digital journalist, Burke carries none of the baggage of Project Veritas, but that didn't stop the FBI from raiding his home for seemingly routine online newsgathering. In both cases, the only way for the government to alleviate the chilling effect of its investigations is to publicly explain the bases for its actions.

An FBI raid on journalist Tim Burke’s home newsroom in May, and the government’s refusal to explain it, risks chilling journalism.

It’s been more than seven months since the FBI raided Florida journalist Tim Burke’s home newsroom, after Burke found and publicized Fox News interview outtakes where Ye, formerly known as Kanye West, made antisemitic remarks. Yet the government still has not explained the basis for the raid or returned all of Burke’s seized equipment and information.

That’s a huge problem for press freedom, as Freedom of the Press Foundation (FPF), the ACLU and five other organizations explained in an amicus brief filed with the 11th Circuit Court of Appeals on Jan. 2, 2024, in support of Burke’s request to unseal the affidavit filed with the search warrant authorizing the raid and to return newsgathering materials that were seized during it.

“Because of the search warrant executed in this case, journalists are rightfully concerned that the government considers routine, modern-day newsgathering techniques—including accessing unencrypted and unsecured websites—to be criminal under the Wiretap Act and the Computer Fraud and Abuse Act (CFAA),” the amicus brief explains.

Burke says he’s being criminally investigated merely for finding the outtakes on a publicly available website. Absent any contrary claims from the government, which has refused to unseal the affidavit, other journalists are likely to assume he’s correct. As a result, they may well refrain from scouring obscure corners of the internet to find newsworthy stories like Ye’s antisemitism, which remains in the headlines to this day.

“Uncovering newsworthy information on the internet and publishing it is newsgathering 101, since so much information is stored online today. Journalists shouldn’t have to work in fear of federal agents knocking down their doors, rifling through their notes, and seizing their computers for just doing their jobs,” said FPF Deputy Director of Advocacy Caitlin Vogus.

Reporters have found hidden information online and used it to expose everything from how Oracle markets its products for use in Chinese surveillance to a trove of videos shot by Jan. 6 rioters at the Capitol. But the Burke investigation, and the government’s refusal to explain the investigation’s basis, leaves other journalists around the country uncertain about the legal risks of this kind of reporting.

Unfortunately, it’s not far-fetched to believe that the FBI may be stretching the law to go after Burke for ordinary newsgathering. Officials around the country have abused computer hacking laws to target journalism in the past because of the embarrassing information the reporting revealed. The most recent and prominent example of this was the shameful and illegal raid on the Marion County Record in Kansas.

“The First Amendment protects the vital role journalism plays in keeping powerful institutions accountable to the public. But it appears that the government is interpreting computer crime laws in a dangerously overbroad manner — despite Supreme Court case law warning against this kind of overreach. This is both impermissible and unwise,” said Jennifer Stisa Granick, surveillance and cybersecurity counsel with the ACLU’s Speech, Privacy, and Technology Project.

This chilling effect is amplified by the government’s alarming suggestion in legal filings that Burke isn’t actually a journalist, in part because he didn’t work for an established news outlet at the time he obtained the Ye video. But, as the amicus brief explains, the First Amendment and other legal protections for reporters aren’t limited to big-name news organizations and their reporters. Freelancers and small, independent news outlets need to know that the government will follow the law when it comes to investigations of them, too.

Government must also return equipment

Finally, it’s outrageous that, months after the raid, the FBI continues to hold on to equipment and information it seized from Burke that isn’t relevant to its investigation (even assuming there is any legitimate basis for an investigation in the first place).

Burke needs his hardware to continue to engage in reporting and preserve his research, especially since Google recently threatened to delete his remote storage account. The government shouldn’t be allowed to use an investigation based on vague accusations to silence journalists’ reporting and threaten their careers and livelihoods.

It could be that the government’s investigation of Burke hinges on something other than routine newsgathering. (Though, based on what we know so far, we’re doubtful.) If so, many of the First Amendment concerns raised by the raid and its chilling effect on other journalists could be resolved if the government would just explain why it thinks Burke broke the law. But so far, it’s refused.

In October, more than 50 organizations sent a letter to the Department of Justice demanding transparency about how the government believes Burke’s newsgathering broke the law. The DOJ has not responded.

That means it’s up to the federal appeals court to order additional transparency about this troubling investigation. If the government is targeting a journalist for constitutionally protected newsgathering, the public deserves to know.

Marion County Record publisher Eric Meyer, pictured above, commented during a recent online event hosted by FPF that Americans of all political stripes were equally outraged after police raided the Record's newsroom and Meyer's home last August.

Freedom of the Press Foundation (FPF) recently hosted a conversation with two journalists who unwittingly found themselves at the center of the story of press freedom in the U.S. in 2023: Marion County Record publisher Eric Meyer and Florida independent journalist Tim Burke. You can watch the conversation here or at the end of this article.

Newsroom raids have been rare in the United States since the passage of the Privacy Protection Act of 1980, but both Meyer and Burke had their newsrooms raided by law enforcement officers last year.

Meyer said that despite gaining subscribers, the Record is “struggling to get along” in the aftermath of the August 2023 raid, figuring out how to report the news while also being the news. “The truth of the matter is that it was pretty easy to put out the paper the first week [after the raid],” he said, because the staff were “running on adrenaline. But now the adrenaline is gone and we’re fighting tooth and toenail each week just to get the paper out.”

The raids of the Record and Meyer’s home drew significant media attention, especially after Meyer’s 98-year-old mother and the paper’s co-owner, Joan, died the next day (Meyer said authorities were considering criminally charging her before she died for allegedly shoving her walker into an officer).

The raid has faded from the national headlines, but journalists at the Record and elsewhere in Kansas continue to unravel the web of incompetence and malice that allowed it to happen.

Meyer intends to report the story and pursue his legal remedies, but he worries about causing reputational or financial harm to Marion. The whole reason he bought his hometown paper, he said, was to support the community. “This is not what we wanted to do,” he acknowledged.

Burke raid under the radar

The raid of Burke’s home newsroom, in contrast to the one in Marion, has received relatively little scrutiny.

FPF and other advocates are pushing for transparency from the Department of Justice on how it believes Burke broke the law when he used the internet to access outtakes of Tucker Carlson’s interview with Ye (formerly known as Kanye West). During the interview, Ye made antisemitic remarks that Fox News chose not to air.

The government’s position appears to be that Burke broke the law by accessing footage Fox didn’t want him to access — even though the footage was posted to a publicly available (albeit difficult to find) website. That’s quite concerning for journalists who see it as their job to find information the powerful prefer to keep hidden.

Equally concerning is the government’s seizure of confidential reporter’s notebooks whose contents Burke says have nothing to do with the story supposedly under investigation.

The government successfully opposed Burke’s request to unseal the warrant affidavit that would explain why he was targeted (Burke is appealing that ruling). And, according to Burke, there’s no footage of the raid because agents cut off his security cameras.

“I think that’s why my case has gotten so much less attention” compared to the Marion raid, he said. “There’s barely any record of it even happening. The government’s refusing to say anything about it.”

Burke expressed dismay both at the invasion of his space and at the potential criminalization of digital journalism — his life’s work. He wondered whether the agents conducting the raid thought to themselves, “Am I really trying to prosecute someone for exposing Kanye West as an antisemite? Is that why I got into the FBI? Because that’s what this is about.”

Both Burke, who said he’s open about his left-leaning views, and Meyer, who considers himself a conservative (though he takes care to distance himself from the current version of the Republican Party), noted the extensive support they’ve received from people of all political stripes.

They also expressed shared optimism that despite heated political rhetoric — including against the press — Americans across the board are disgusted by the notion of cops raiding newsrooms. As they should be.

Watch the full conversation below.

NSC spokesperson John Kirby, pictured above, said the Biden administration needs more information to determine whether Israel is targeting journalists. But he made clear that the administration has no intention of actually seeking that information. Chairman of the Joint Chiefs of Staff from Washington D.C, United States, CC BY 2.0, via Wikimedia Commons

Last month, we wrote about how journalists need to ask the Biden administration pointed questions about the record pace of journalist killings in the Israel-Gaza war. The good news is that the press has started to do its part by asking questions. The bad news is that Biden administration officials aren’t doing their part by answering them in good faith. 

Case in point: recent remarks from National Security Council Coordinator for Strategic Communications John Kirby, after an Al Jazeera reporter asked him about the killing of one of its photographers, Samer Abu Daqqa, in an attack that also injured its reporter and Gaza bureau chief Wael al Dahdouh. (Virtually all of al Dahdouh’s family had been wiped out in an Israeli airstrike weeks before.)

The reporter noted that witnesses said Abu Daqqa was killed by a drone, and asked if the incident had led Kirby to rethink his prior statements that the administration had seen no evidence of Israel targeting journalists. 

It’s a fair question, especially considering Israel’s history with Al Jazeera, which includes targeting Al Jazeera journalists, and multiple recent investigations that conclude Israel intentionally targeted other reporters during the current war. 

After offering condolences, Kirby reiterated the administration’s public position that “journalists need to be able to have the freedom to cover conflicts around the world. … And it’s never acceptable to deliberately target them as they do such vital, dangerous, dangerous work.” Sounds good so far. 

But then came the dodge. “I don’t know all the details about his tragic killing, so I’m not in a position to say that the operation which killed him was of a certain flavor or not,” Kirby said. Asked what kind of evidence he’d need to change his mind, Kirby said the U.S. would need to gather more information. “We’d have to have more specific knowledge than we do right now about the purpose of the strike, the origin of the strike, the targeting process, the selection process,” Kirby stated. 

But then in virtually the same breath, Kirby seemed to indicate the U.S. has no intention of trying to extract any of that information from Israel’s government or investigate the eyewitness claims at all:  “We are not going to make ourselves judge and jury over every single airstrike and every single kinetic event that happens on the battlefield.”

Kirby added that “we stay in touch with our Israeli counterparts every day. We still don’t have any indications that they are deliberately targeting journalists. And that’s where I’d have to leave it.” 

So let’s get this straight: The administration says it cares deeply about journalists’ freedom to cover the war without being targeted. It needs more information to figure out whether Israel, its ally that it continues to finance, is, in fact, targeting journalists. But it’s not going to bother seeking that information, at least until unnamed Israeli counterparts voluntarily confess during one of their daily check-ins.  

Of course, the administration does investigate specific instances when it wants to. For example, State Department spokesperson Matthew Miller said this week that officials are posing “specific” and “tough” questions to the Israeli government about the recent killings, condemned by the Pope, of two Palestinian Christian women as they walked to a convent of nuns. And the administration is eager to get specific about Hamas’ atrocities. 

But, apparently, dead journalists aren’t as important. 

“We will, however, continue to talk,” Kirby continued. And that pretty much sums up the administration’s response to the (at least) 68 journalists killed to date in this war. All talk.

Atmore News reporter Don Fletcher and publisher Sherry Digmon were arrested after reporting on an investigation of a school board's handling of COVID funds in October. They're among at least 12 journalists arrested this year, according to our U.S. Press Freedom Tracker.

Our U.S. Press Freedom Tracker just released its annual report on arrests of journalists. At first glance, it might look like good news — the Tracker recorded 12 arrests this year, fewer than last year’s 15 and exponentially fewer than 2020’s 146.

But beneath the surface are some troubling trends, which Tracker Senior Reporter Stephanie Sugars and Freedom of the Press Foundation (FPF) Director of Advocacy Seth Stern discussed during a recent X (formerly Twitter) Spaces conversation.

As Sugars noted, in past years most arrests of journalists came with at least some pretextual legal justification — for example, that a reporter allegedly trespassed. This year, she said, we saw arrests even where “there was no such pretense available.”

These arrests, Sugars said, represent a disturbing tendency toward “criminalization of what is very standard newsgathering practice,” like asking officials for comments or publishing leaks. “Either they don’t understand this is very routine, or they’re trying to use prosecutions or other forms of legal recourse as a cudgel to prevent future reporting.”

Sugars pointed to the arrests in Alabama of Atmore News publisher Sherry Digmon and reporter Don Fletcher. They were charged under a grand jury secrecy statute for reporting about a grand jury investigation of the local school board, despite that the grand jury secrecy statute, by its own terms, is plainly inapplicable to journalists.

Then, as a term of their bail, they were censored from talking about, or reporting on, their own case or any other criminal investigations.

Sugars also discussed the case of Daily Southtown reporter Hank Sanders, who was issued three frivolous tickets for nothing more than asking public officials questions. The Chicago suburb of Calumet City dropped the citations against Sanders after it became a national laughing stock, but the charges against Digmon and Sanders remain pending.

As for the relatively low total arrest number, Sugars noted that journalist arrests strongly correlate to civil unrest. That’s what accounted for the spike in 2020, when all but nine of 146 arrests occurred during protests. “We routinely find that a protest is the most dangerous assignment for a journalist, not only because of the threat of arrest but also assault,” as well as equipment seizure by law enforcement officers, Sugars said.

She explained that a lower number of arrests more likely reflects a lower number of protests — not a lasting change in the attitudes of law enforcement.

Stern added that, although there have been some recent statements from the federal government supporting the rights of journalists to cover protests, little has been done to turn those words into practice. That’s concerning, especially heading into an election year that could see more than its share of civil unrest.

In the meantime, police departments are coming up with creative new ways to crack down on coverage of protests, like declaring entire protest areas crime scenes to exclude reporters.

Government hostility toward the press also manifested itself in ways not necessarily captured by arrest statistics. Stern highlighted the law enforcement raids of the Marion County Record in Kansas and of independent journalist Tim Burke’s home newsroom in Florida.

Newsroom raids, he explained, had been practically unheard of in recent decades because they’re illegal under the Privacy Protection Act of 1980. “They rarely happen because they’re not supposed to happen,” he said. “Two in a year is very concerning.”

Stern also discussed the restraining order obtained by an Arizona state senator, Wendy Rogers, against a journalist who had knocked on her door to investigate her residency. He noted, too, that the same Calumet City authorities who ticketed Sanders had also attempted to obtain a restraining order to bar him from city hall — all for asking officials questions.

Sugars and Stern agreed that the problem of arrests and other harassment of journalists is a national one. While incidents that garnered the most headlines this year occurred in rural Kansas and Alabama, the issue is by no means limited to small towns or red states.

Sugars observed that two arrests this year occurred in New York, which has had plenty of press freedom problems in recent years. But she singled out authorities on the opposite coast — specifically, the Los Angeles Police Department — as among the most “atrocious” offenders, for reasons ranging from uses of excessive force to “kettling” journalists for mass arrests.

Stern cautioned that, while some in large coastal cities may think their officials “are more enlightened, no, they’re not. The evidence doesn’t bear that out whatsoever.”

Both Stern and Sugars closed with calls for everyone who values the First Amendment to do their part to bring more attention to press freedom violations, regardless of whether the victims are household names or little-known freelancers. Journalists or others aware of violations should always inform the Tracker through its incident submission site.

But they shouldn’t stop there. It’s vital that journalists get over their reluctance to make themselves the story, and cover press freedom violations just like they would any other abuse of government power to infringe constitutional freedoms. Newsprint is the one thing journalists have more of than anyone else and they should use it to fight back.

Texas attorney general Ken Paxton claims to defend the First Amendment, but he’s repeatedly abused consumer protection law to go after reporting and free speech. Ken Paxton by Gage Skidmore is licensed under CC BY-SA 3.0.

Billionaire bullies filing SLAPP lawsuits against reporting they don’t like is, unfortunately, nothing new. But it’s less common for state officials to add fuel to the anti-free speech fire by retaliating against the same reporting, even if it has nothing to do with them.

That’s what makes the recent legal attacks on Media Matters over its investigation into the advertising practices of X, formerly known as Twitter, unusual and all the more troubling. Journalists and news outlets should take note of how state attorney generals are targeting Media Matters, and how Media Matters is fighting back — because traditional journalists and news outlets may be next.

You may have heard about the investigation by Media Matters showing that X is still allowing ads to be placed alongside racist and hateful content, causing even more advertisers to flee the site. In response, X’s thin-skinned billionaire owner Elon Musk somehow overcame his “free speech absolutism” to file a meritless lawsuit against Media Matters for its reporting. He’s promised to file more lawsuits against the group in other courts around the world.

That kind of retaliatory civil lawsuit meant to chill reporting is bad enough. But on the same day, Texas Attorney General Ken Paxton also announced an “investigation” into Media Matters, claiming, with no evidence or support, that it may have engaged in fraud under Texas consumer protection law.

Days later, the Missouri attorney general launched his own investigation, based on Missouri’s consumer protection law. Speaking of free speech hypocrites, that’s the same Missouri AG who’s suing the Biden administration for alleged censorship.

Fodder for content moderation culture wars

Media Matters is fighting back. Last week, it sued Paxton, arguing that his investigation is a thinly veiled attempt to intimidate and silence it.

Media Matters says that the investigation and Paxton’s overbroad demands for information and documents — including Media Matters’ communications with sources — retaliate against it for its reporting and violate the First Amendment, not to mention the shield laws in Washington, D.C., and Maryland, where Media Matters and the author of its investigation are based.

It’s clear from the timing of Paxton’s announcement and his demands for particular documents and information that he’s investigating Media Matters because of its reporting about X. What’s less clear is the many reasons why Media Matters’ investigation so outraged Paxton and sparked his Texas-sized tantrum.

One obvious answer is that any controversy involving X is the perfect fodder for the content moderation culture wars. Conservatives repeatedly claim (despite evidence to the contrary) that they’re being “censored” online, and they argue that liberal big tech companies, left-leaning civil society organizations like Media Matters, and Democrats are to blame.

The argument that social media and the federal government are discriminating against conservative viewpoints is the basis for the First Amendment lawsuit seeking to block the Biden administration from communicating with social media companies about content moderation policies. One of the plaintiffs in that lawsuit is Missouri, which, conveniently, is quick to rely on the First Amendment when it suits its needs.

Texas Republicans have also leaned into the issue of conservative censorship on social media, as has Paxton, who criticized Media Matters as a “radical anti-free speech organization” when announcing the investigation.

Only slightly less obviously, Paxton’s investigation also conveniently targets an outlet that’s repeatedly criticized him, including his stance on gender-affirming care, his attempts to undermine the 2020 election, and more. While Paxton’s investigation has most directly chilled Media Matters’ reporting about X, by threatening the organization and its sources, Paxton may be betting he can silence other reporting, too, including about himself.

Fraudulent fraud lawsuits may expand to the press

But perhaps most worryingly for the free press, Paxton’s investigation into Media Matters may help him create another legal tool to retaliate against more traditional news outlets and journalists, too.

By pushing to expand the bounds of the Texas Deceptive Trade Practices Act, Paxton is setting the stage to go after news outlets for “defrauding” the public by publishing news or making statements about their reporting or editorial practices that he believes are false.

Not only is it dangerous to give a government official this power, it’s also unnecessary. Defamation law — which includes important protections for freedom of speech — already provides a remedy for people damaged by false reporting.

It’s not the first time Paxton has abused the Texas Deceptive Trade Practices Act to retaliate against social media companies. Ironically, he started by opening an investigation into X, when it was still called Twitter and before Musk owned it, for allegedly defrauding the public by moderating content.

He also sued Yelp for “deceptive trade practices” for daring to label the crisis pregnancy centers on its platform. Free speech and free press organizations pointed out that these efforts violate the First Amendment and that the same legal theories could be weaponized against the press.

Now, Paxton is using the same law to investigate Media Matters. You can quibble over whether Media Matters is a news outlet; it’s often described as a media watchdog or activist group (and, in fact, labels itself “a progressive research and information center”). But no matter what you call it, Media Matters’ investigation into X was undoubtedly an act of journalism.

It investigated X using the same techniques used by other journalists, and the resulting report was newsworthy. Many other news organizations have reported on X’s abysmal record when it comes to placing ads next to hate speech and other abhorrent content.

Still, some may think Paxton’s investigation into Media Matters isn’t as big a deal as investigating a “real” news outlet. But that’s a mistake. The investigation against Media Matters — just like the previous investigation against Twitter and lawsuit against Yelp — tests the waters and lets authorities see just how they can stretch the law to undermine the First Amendment. Some are already experimenting with other ways to use laws seemingly unrelated to the press to attack news organizations.

Musk, unfortunately, has plenty of money to fund his ridiculous SLAPP campaigns without Paxton's help. But Texas has plenty of problems of its own. Texans don't need their AG spending their tax dollars to carry water for anti-press billionaires.

Florida Rep. Alex Andrade has introduced new legislation to undermine longstanding protections for press freedom. "Florida’s Historic Capitol and Florida State Capitol 2" by Michael Rivera is licensed under CC BY-SA 3.0.

Last month, a strange scene played out on X, formerly known as Twitter. Florida governor and Republican presidential candidate Ron DeSantis scolded primary rival Nikki Haley for proposing a crackdown on anonymous speech. The First Amendment has protected anonymous and pseudonymous speakers for centuries, he rightly noted, and they’ve in turn made rich contributions to American discourse. Who would dare silence them?

How about DeSantis? Earlier this year, it was DeSantis who prompted Florida state representative Alex Andrade to introduce legislation to pave the way for the powerful to bankrupt their critics with flimsy defamation lawsuits. Included in that awful bill was a provision that — you guessed it — punished anonymous speech. The bill failed after intense backlash from press freedom advocates, legal scholars, and media outlets, especially conservative ones.

DeSantis may have changed his tune (at least when it’s politically convenient) but Andrade sure hasn’t. He’s introduced a new, scaled-back edition of the bill. The removal of some of the first bill’s other anti-press provisions means that this time anonymous speech is front and center.

Bill assumes anonymous sourcing, by nature, is reckless

The new bill creates a presumption that publishers of erroneous news reports citing unnamed sources must have acted with “actual malice.” That means they either knowingly lied or recklessly disregarded whether their reporting was false. Andrade argues that reporters who get the facts right need not worry, but the point of the actual malice standard is to distinguish intentional fallacies from errors that are inevitable when covering fast-developing, contentious stories, especially when officials are intent on evading transparency.

That standard is a product of the seminal 1964 Supreme Court case, New York Times v. Sullivan. That case was meant to stop public figures from retaliating against detractors with “gotcha” defamation suits over minor alleged errors. Usually, the damages these kinds of errors cause to news subjects are minimal, but the costs to media outlets (let alone individuals) of defending them in court can be crippling. Until the recent rise in SLAPPs (short for strategic lawsuits against public participation), Sullivan was relatively successful in halting that kind of censorious harassment, while allowing meritorious claims to proceed.

The new Florida bill essentially assumes that the Sullivan case doesn’t limit lawsuits based on anonymously sourced stories because using anonymous sources is, by nature, reckless. That would’ve been news to Bob Woodward and Carl Bernstein and countless other award-winning journalists whose anonymous sources have helped them expose all varieties of malfeasance.

Sources have good reason to not want their names in the paper. They might fear long prison sentences under the Espionage Act or federal or state computer crime laws. Their government employers might unconstitutionally restrict them from talking to the press. Corporate whistleblowers often risk their careers if they’re outed. Some sources might even fear for their safety, or that of their families.

That’s exactly why Florida is one of 49 states that recognize a reporter’s privilege protecting journalists from being compelled by courts to burn their sources. But if Andrade gets his way, journalists who protect their sources will lose a key legal defense. That might lead to more journalists exposing sources to retaliation in order to defend themselves in court. More likely, it would lead to whistleblowers hesitating to come forward in the first place, and journalists hesitating to report their revelations when they do.

For Andrade, that’s a feature, not a bug. We know that because his prior bill directly targeted Florida’s reporter’s privilege, its anti-SLAPP law, and every other meaningful legal protection enjoyed by journalists in the Sunshine State and around the country. Andrade acknowledged in the preamble to the bill that it violated First Amendment precedents and that his intention was to set up a Supreme Court challenge to Sullivan and its progeny (a later version rewrote that preamble but Andrade had already shown his cards).

Plenty more wrong with Andrade bill

Sure, this version of the bill isn’t quite as bad, but it’s obviously just a foot in the door.

And there’s plenty else wrong with it besides its attack on anonymous sourcing. It seeks to resurrect an archaic, disfavored cause of action called “false light invasion of privacy” when reporters use artificial intelligence. False light, unlike defamation, allows recovery for objectively true statements that may leave a subjectively false impression. Florida courts previously recognized the First Amendment can’t tolerate that kind of ambiguity in speech cases.

It’s unclear why AI cases should be any different. Andrade probably thought AI is so unpopular that he could sneak in a false light revival without much pushback. But we know from his prior bill that he ultimately wants to bring back false light claims across the board, not just in AI cases.

The new bill also allows defamation and other claims based on broadcasts or internet publications to be filed anywhere in Florida, regardless of whether the location has anything to do with the lawsuit. This serves no purpose besides letting plaintiffs fish for sympathetic judges.

If another country passed legislation like Andrade’s, the judgments it enabled would likely be ineffective in the United States. Congress passed the federal SPEECH Act to combat international “libel tourism” by prohibiting courts here from enforcing foreign judgments that are contrary to established U.S. protections for First Amendment freedoms, like the Sullivan case.

Now Andrade wants to import libel tourism to Florida. Florida Republicans like to market the state as “where woke goes to die,” but if Andrade gets his way, it’ll be where European-style censorship comes to live. This bill may not get as much national press as the prior one given that DeSantis hasn’t vocally attached himself to it, but it’s still dangerous. We need to make sure Andrade doesn’t sneak it under the radar.

Local news outlets around the country are losing an important source of funding, as government officials withdraw contracts to publish public notices, sometimes in retaliation for critical reporting. woman reading newspaper by rawpixel.com is licensed under CC0 1.0.

The Reporter, a weekly newspaper in upstate Delhi, New York, had been publishing government notices for more than a century when Delaware County government officials yanked the notices away, allegedly in retaliation for the paper’s reporting. Now, the Reporter is suing.

It’s part of an alarming trend: Government officials are turning contracts to print official notices — an important source of revenue for many news outlets — into a carrot or stick to control news coverage. And since we last wrote about it, several other disturbing examples have come to light or developed further.

Retaliation against The Reporter

When the Delaware County Board of Supervisors revoked The Reporter’s designation as the official county newspaper in spring 2022 — and with it, the money the paper received to print local laws and notices — it said that the change was because of increased prices and the time it took to place the notices in the paper.

But a year later, the county changed its tune. The board of supervisors and other government employees sent a letter to The Reporter demanding that it change how it covers the county. They also admitted that their displeasure with the newspaper’s coverage was one of the reasons its designation was revoked.

Revoking the designation wasn’t the only step the county took against the paper. It also gagged county employees from speaking to The Reporter’s journalists. Just five days after a story in The New York Times about the decision to remove The Reporter’s designation, the county attorney issued a directive to county employees requiring that any communications or requests for comment from The Reporter be sent to her office.

The Reporter’s lawsuit challenging the revocation of its designation also argues that the gag order directive violates both its First Amendment rights and those of county employees who want to speak with the newspaper. Other courts have held that similar gag orders violate the First Amendment, even when they’re not issued in retaliation for critical coverage.

The press has a First Amendment right to gather information from government employees who want to speak to them. Those employees also have a constitutional right to speak about matters of public concern without their employer’s permission.

The outcome of The Reporter’s lawsuit could be important for other New York newspapers facing similar retaliation. Earlier this year, for example, the Putnam County legislature voted to revoke The Putnam County News and Recorder’s contract to publish county legal notices. The vote followed disputes between the newspaper and a newly elected county executive over The News and Recorder’s “highly critical” coverage of the executive’s administration.

Kansas contracts canceled

In Kansas — a state that recently embarrassed itself on the national stage for other press freedom violations — an advisory opinion issued by Attorney General Kris Kobach this summer said that smaller cities could exempt themselves from a state law requiring official notices to be printed by a designated newspaper.

As a result, several Kansas cities have voted to remove official notices from their local newspapers. For example, the city of Hillsboro decided in October to stop publishing public notices in the Hillsboro Star-Journal. The city of Westmoreland has done the same with respect to its local paper. Notices will instead be posted on government websites.

The loss of this revenue can threaten the existence of local news outlets serving the smallest communities. It also harms transparency. Unlike the permanent public record created when government notices are published in an independent newspaper, notices printed on government websites could be altered by agencies or officials.

Opacity in Ohio

Meanwhile, in Ohio, the state already passed a new law over the summer allowing municipalities to publish public notices on their own websites, rather than designated newspapers. Because the law was snuck into a budget bill more than 6,000 pages long, it went mostly unnoticed.

It hasn’t gone without impact, however. At least one Ohio municipality is already considering removing public notices from the local newspaper and publishing them on a government website instead. The Ohio legislature is also considering another bill that would allow counties, villages, or townships — which are not covered by the new law — to publish their public notices online as well.

If this new bill passes, it will further undermine revenue for local newspapers serving small communities. It will also give more jurisdictions in Ohio a powerful tool to use against newspapers whose coverage they dislike, just as has happened elsewhere around the country.

Fund local news

Public notices provide a small but steady income stream for many community news outlets, which often operate on a financial razor’s edge. That makes them especially vulnerable to government officials who use public notices contracts to retaliate, or to misguided attempts to “update” the law to encourage notices to be published online.

Finding ways to shore up funding for local news would go a long way toward solving this problem. One thing Congress could do is pass the Community News and Small Business Support Act, a bipartisan bill that would give tax credits to small businesses that advertise in local media and a payroll tax credit to local news outlets that employ reporters in their communities.

Of course, what local lawmakers must do is stop using public notice contracts to illegally retaliate against the press. We hope Delaware County will soon do so on its own. If not, the courts must make it.

Louisiana Attorney General Jeff Landry fashioned himself a defender of free speech when he sued the Biden administration for attempting to influence social media sites. Now he's one of many Republican politicians baselessly threatening to prosecute news outlets for terrorism. Jeff Landry by Gage Skidmore is licensed under CC BY-SA 2.0.

There’s been plenty of concern expressed in recent weeks about Donald Trump’s threats to “come after” the press in a potential second term. We certainly share those concerns.

But the Republican party is not waiting for Trump’s return to start weaponizing the law against journalism. For example, 14 state attorneys general and 15 members of Congress are already calling for news outlets to be investigated and even prosecuted for “material support” of terrorism by working with Palestinian freelance photojournalists. The attorneys general are arguably even threatening criminal charges against journalists for criticizing Israel.

Stunts prompted by debunked “report”

The politicians’ feigned indignation is over a November report baselessly suggesting that Reuters, CNN, The Associated Press and The New York Times must’ve had advance knowledge of Hamas’s attack on Israel when they bought photographs from the Gaza-based freelancers.

But here’s the problem: the organization that issued the report, ironically called HonestReporting, has already admitted that it was merely “raising questions” without evidence, and said it believed the journalists who denied advance knowledge of the attack.

Subsequent investigations have confirmed that the photojournalists did not accompany Hamas as it carried out its attacks — they got to the scene hours later. It’s journalists’ job to find and follow the news, even terrible news, often at great personal danger.

Don’t like Palestinian journalists? Then let others in

International outlets, it should be noted, have no choice but to rely on Palestinian freelancers because international journalists (except those that embed with Israeli troops) are not allowed into Gaza, despite their pleas for access.

It shouldn’t be surprising that Gaza-based journalists have had contact with Hamas — after all, it’s the government there. That doesn't mean they're supporters of the Oct. 7 terrorist attack any more than it means that conservative journalists with sources in the Biden administration are secret Democrats. The idea that news outlets commit crimes by buying photographs from anyone who has ever been in the presence of a member of Hamas is preposterous.

And tellingly, none of the politicians supposedly concerned about journalists’ alleged connections to Hamas have urged Israel and Egypt to let international journalists in (or to stop killing the journalists already there).

AGs threaten to criminalize critical reporting on Israel

The politicians must know that there’s no basis to even speculate that funds paid to freelancers made their way into Hamas’s coffers — let alone with news outlets’ knowledge. That's likely why they’re floating even more tenuous, and dangerous, interpretations of “material support.”

As our U.S. Press Freedom Tracker notes, the attorneys generals’ letter

"highlighted that 'material support' for terrorist groups — both a federal and state crime — can include 'writing and distributing publications supporting the organization.' It did not elaborate on what would be considered support, potentially chilling any reporting that does not unequivocally condemn Hamas or unilaterally support Israel."

The letter then concludes with “We will continue to follow your reporting … your organizations are now on notice. Follow the law.” How are news outlets supposed to take that other than as a threat to prosecute them for their reporting?

Other Republican officials double down

Accusing major news outlets of knowingly supporting terrorism is serious, and serious people wouldn’t base such claims on admitted (and debunked) speculation. But the members of Congress and State attorneys general behind these political stunts aren’t serious people.

Same goes for Republican lawmakers threatening to defund Voice of America over its editorial policies on the use of the word “terrorist.” That push comes just months after a federal investigation detailed the full extent of the Trump administration’s efforts to politicize VOA.

And then there’s Sen. JD Vance’s letter asking the Department of Justice why it isn’t prosecuting a journalist who called for “resistance” against a second Trump administration under the same legal theories being used to prosecute Trump.

We might be inclined to dismiss Vance’s somewhat tongue-in-cheek letter as trolling (albeit irresponsible trolling) if it wasn’t, by our count, the sixth Republican-led letter in the last month proposing to prosecute journalists, censor them or both.

With the barrage of new letters it’s easy to forget that Sen. Tom Cotton also threatened journalists with criminal charges over the HonestReporting hoax. And seven Republicans (and two Democrats) previously wrote to Reuters to raise “questions.”

Republicans: What happened to free expression?

Either these lawmakers don’t understand the First Amendment and the concept of editorial independence, or they don’t care. Our guess is it’s the latter.

After all, it’s not long since Republicans were outraged that government employees would dare communicate with social media companies to express concerns about content. Missouri Attorney General Andrew Bailey, who is pursuing a lawsuit against the Biden administration over social media "censorship," went as far to accuse it of “the worst First Amendment violation in our nation’s history.”

Just last week, the Republican-led House Select Subcommittee on the Weaponization of the Federal Government held a hearing to “examine the federal government's involvement in social media censorship, as well as the recent attacks on independent journalism and free expression.”

But days later, a member of that subcommittee, W. Gregory Steube of Florida, signed the letter demanding news organizations give lawmakers access to their files so they can fish for support for their sham investigation. Louisiana Attorney General Jeff Landry, who joined the lawsuit against the Biden administration, signed the letter threatening to prosecute four major news outlets over discredited speculation. What champions of free expression they are.

And Sen. Bill Haggerty, who this year pushed legislation to stop "secret government-directed speech suppression and viewpoint censorship," saw no contradiction in leading the letter threatening to defund VOA over its editorial decisions. Well, we've got to give him this: at least he's not keeping his brand of censorship a secret.

We’re not downplaying concerns about government interference with social media content. “Jawboning” is a complex but real First Amendment issue. It’s especially problematic when government officials “suggest” social media companies remove disfavored content at the same time lawmakers are threatening to legislate them out of existence. But that concern seems to pale in comparison to public threats to investigate, prosecute and defund news outlets — all to score cheap political points.

What about protecting sources?

And remember when, just a few short months ago, Republican members of Congress accused Democrats of betraying the First Amendment by asking journalist Matt Taibbi about his sources for his “Twitter Files” reporting?

We agreed with them then, and we still do. We called it “disturbing” when Democratic Rep. Stacey Plaskett again inquired about Taibbi’s sources in a letter alluding to the prospect of prosecuting him for perjury.

That’s why it’s particularly troubling that the letter from Republican lawmakers does the exact same thing, but far worse: Demanding that news outlets produce journalists’ newsgathering and source materials, including correspondence with government officials, so they can fish for evidence to support HonestReporting’s admitted speculation.

Like HonestReporting, they do not claim to have any evidence — merely “questions.” But they’re threatening to issue subpoenas to the news outlets if they don’t comply. And they’re not just alluding to potential perjury charges — they sent their letter knowing full well that a senator and 14 attorneys general have expressly threatened felonies.

We get it, hypocrisy from politicians should never shock anyone. But elected officials calling to imprison journalists always should. And the problem is clearly bigger than Donald Trump.

“Now, now, children, you know you’re not allowed to read the news on a school computer! It’s dangerous! You may learn something.” Teacher Helping Students Working At Computers In Classroom by City of Seattle Community Tech is licensed under CC BY-NC 2.0.

Tens of thousands of students have used the 1619 Project to learn about American slavery and its consequences for U.S. history. But not at Albuquerque Public Schools. There, the Pulitzer Prize-winning report was just one of the thousands of news stories blocked by web filters between January 2022 to August 2023, according to a new report from Wired.

In fact, the school’s filters blocked students from accessing news websites nearly 40,000 times. Some URLs seem to have been flagged for including a single “forbidden” word, like a Time magazine report on the fate of the Enola Gay after it dropped the atomic bomb on Hiroshima.

The web filtering company claims it uses sophisticated machine learning algorithms, not keyword blocking for terms like “gay.” But this and other examples of blocked news websites leave us skeptical.

Wired’s reporting adds to mounting evidence that efforts to stop kids from seeing “bad” content online almost always turn into censorship. Yet some lawmakers want to extend censorship in the name of kids’ safety beyond the classroom — to social media used by both minors and adults.

Defenders of proposals to control online content, whether just on school-issued devices or everywhere on the internet, argue that young people must be stopped from accessing inappropriate content like pornography or information that may harm them.

But study after study has shown that web filtering technology actually prevents kids from learning by blocking totally innocuous and even beneficial content or chilling their online research. It also leads to disproportionate harm to LGBTQ+ students, low-income students, and students of color.

KOSA would keep kids from informing themselves

This censorship of lawful, harmless content is exactly what will happen on the rest of the internet if Congress passes the Kids Online Safety Act. KOSA will create strong incentives for social media companies to remove wide swaths of legal content, including the news.

It does so by imposing a “duty of care” on platforms to act in minors’ best interests and requiring platforms to take reasonable measures to “prevent and mitigate” certain harms to minors. Those include “anxiety, depression, eating disorders, substance use disorders, and suicidal behaviors.”

That may sound like a good idea at first. But it will cause platforms to block a lot of content that kids should be able to access to inform themselves and participate in our democracy. Some experts say, for example, that exposure to news about racist violence against Black people on social media has harmed Black kids’ mental health. But it’s still important for Black youth — and teens of all races — to have access to news that impacts them, their communities, and the country, even if it can be depressing or anxiety-provoking.

Access to news and other information is what allows young people to push lawmakers to actually address the underlying issues impacting their mental health, rather than simply requiring that information be censored to avoid upsetting people.

Proposed law a pathway to censorship for all

But if KOSA becomes law, social media platforms may believe they have no choice but to block or remove news reports about racist violence and any news content that could be distressing for kids.

Or, even if platforms don’t intentionally target news content, it will likely still be swept up and removed by automated filters that can’t discern good content (e.g., news stories discussing racist incidents) from bad (e.g., racist posts), just like those being used in schools.

KOSA will also cause many social media companies to remove content for everyone, not just kids. Simply removing content from a platform entirely is easier than blocking content just for younger users.

KOSA’s sponsors say that the law doesn’t require platforms to censor anything. But even if the word “censor” doesn’t appear in the text of the law, it’s undoubtedly what platforms will do. For proof, look no further than the school web filters like those used in Albuquerque.

It hardly seems worth giving up our freedom to read the news and be informed just so children (and perhaps some adults) can be “protected” from content like a Washington Post article about the history of apple pie or the president visiting New Mexico to talk about climate change (both actual examples of stories blocked in Albuquerque).

It’s bad enough for this censorship to happen in our schools. Congress shouldn’t expand it to the entire nation.