Freedom of the Press

Washington Post journalist Jamal Khashoggi was brutally murdered by the Saudi Arabian government inside its consulate in Istanbul, Turkey, six years ago this week. The U.S. government has declassified some information on the murder, including its belief that Saudi Arabia's Crown Prince and Prime Minister Mohammad bin Salman approved the order to “capture or kill” Khashoggi.

But too much remains hidden, and this secrecy both prevents accountability and serves to endanger other journalists.

In an op-ed for The Daily Beast, Lauren Harper, the Daniel Ellsberg Chair on Government Secrecy for Freedom of the Press Foundation (FPF), urged the Biden administration to declassify more intelligence on Khashoggi’s murder before leaving the White House. Key documents that should be released include records showing whether or not the intelligence community met its “duty to warn” Khashoggi that his life was in danger.

Declassification would prioritize the public’s right to know over America’s relationship with an autocratic ruler, and would show the U.S. won’t tolerate threats to the press.

You can read the full op-ed here.

A man holds a poster of murdered journalist Jamal Khashoggi. The Biden administration has still not released its full file on the killing of the U.S.-based Saudi columnist.

Washington Post journalist Jamal Khashoggi was brutally murdered by the Saudi Arabian government inside its consulate in Istanbul, Turkey, six years ago this week. The U.S. government has declassified some information on the murder, including its belief that Saudi Arabia's Crown Prince and Prime Minister Mohammad bin Salman approved the order to “capture or kill” Khashoggi.

But too much remains hidden, and this secrecy both prevents accountability and serves to endanger other journalists.

In an op-ed for The Daily Beast, Lauren Harper, the Daniel Ellsberg Chair on Government Secrecy for Freedom of the Press Foundation (FPF), urged the Biden administration to declassify more intelligence on Khashoggi’s murder before leaving the White House. Key documents that should be released include records showing whether or not the intelligence community met its “duty to warn” Khashoggi that his life was in danger.

Declassification would prioritize the public’s right to know over America’s relationship with an autocratic ruler, and would show the U.S. won’t tolerate threats to the press.

You can read the full op-ed here.

Last year, an Alabama reporter and newspaper publisher were illegally arrested for reporting on a local criminal investigation and then forced to agree not to report on ongoing criminal investigations as a condition of their bail.

It was one of the most egregious press freedom violations of 2023 — a year that was full of them. We hoped that, after all the bad press Atmore authorities received (and the failure of their frivolous prosecution), others would learn their lesson and not try to extort journalists into waiving their constitutional rights.

And then the sheriff’s department of Fort Bend County, Texas, came along to crush that dream.

Want your illegally seized equipment? Sign this illegal release

Back in December 2021, deputies illegally arrested Texas citizen journalist Justin Pulliam for filming them conducting a mental health check. They also seized his phone and equipment, in clear violation of the Privacy Protection Act of 1980, which prohibits seizures of journalists’ materials except when investigating a crime unrelated to newsgathering.

The charges against Pulliam were dropped in May, but Pulliam told the U.S. Press Freedom Tracker — a project of Freedom of the Press Foundation (FPF) — that the phone and equipment illegally seized from him when he was arrested has yet to be returned. The reason? The authorities, Pulliam says, demanded he sign a waiver releasing them from liability before they would give him back his property.

The law on this is clear — government officials can’t force people to waive their First Amendment rights in order to receive a benefit from the government. And getting your own stuff back after an illegal arrest can hardly even be considered a benefit.

The officers involved shouldn’t be released from liability — they should be released from their jobs.

I wrote about this rule in August for The Hill, focusing on the Securities and Exchange Commission’s unconstitutional “gag rule” whereby the commission forces people it settles cases with to promise not to publicly dispute the allegations against them.

To drive home the dangers of allowing a rule like that to stand, I posed a hypothetical: What if instead of wealthy investment firms, the government went after ordinary citizens? “Want to get out of that traffic ticket without taking off work to go to court? You’ll need to keep quiet about those racial profiling claims.”

The hypothetical was meant to be far-fetched — but apparently it wasn’t. And it’s not the only time the sheriff has violated Pulliam’s constitutional rights.

Citizen journalists are journalists

The government is always resourceful when it comes to limiting its definition of “journalist” to exclude people it doesn’t like.

Officials said Julian Assange wasn’t a journalist because he didn’t redact documents. In Tim Burke’s case, it was because he also worked as a consultant. They’ve even taken the position that documentary filmmakers like Trevor Aaronson occupy some lower tier of journalism with diminished legal rights. Those are just some of many examples.

Add Pulliam to the list. In July 2021 — a few months before his aforementioned arrest — the same sheriff’s department excluded him from a news conference in Richmond, Texas, claiming he was not a member of the media, despite regularly reporting on local government and police on YouTube and Facebook.

Pulliam sued (good for The Institute for Justice for taking the case), and last week a judge ruled in his favor, granting him partial summary judgment and finding that the sheriff — and its departmental policy excluding social media journalists from its definition of “media” — violated his constitutional rights.

The Tracker reported that Magistrate Judge Andrew Edison – whose opinion was adopted by the lead judge on the case — called Pulliam’s journalism “unequivocally” protected by the First Amendment, regardless of his platform.

Long before social media existed, appellate courts said that 'what makes journalism journalism is not its format but its content.'

The judge said the unconstitutionality was obvious enough that officials were not entitled to qualified immunity, which protects government officials from liability when the legal rights they violate are not “clearly established.”

Unfortunately, the denial of qualified immunity is a high bar to reach. An appellate court, for instance, recently held that officers were immune from liability for the unconstitutional arrest of another Texas citizen journalist, Priscilla Villarreal, under an archaic law criminalizing solicitation of information from the government. I previously wrote about the need for the Supreme Court to right that wrong.

To state the obvious, Edison is correct. Long before social media existed, appellate courts said that “what makes journalism journalism is not its format but its content.”

And the House of Representatives endorsed Edison’s reasoning by unanimously passing the PRESS Act — the federal reporter’s shield bill that uses a functional definition of “journalist” to protect from government surveillance anyone who regularly gathers, writes, or reports the news, whether for a Substack blog, The New York Times, or YouTube.

That bill enjoys bipartisan support in the Senate but, as Roll Call recently reported, it’s being held up by outlier objections. (Side note: Tell your senator to support the PRESS Act here.)

A trifecta of First Amendment violations

It’s great news that Edison recognized that qualified immunity should not be a get-out-of-jail-free card for officials who blatantly violate journalists’ rights. But that’s only one of the sheriff’s three strikes when it comes to Pulliam’s First Amendment rights.

Strike two? The December 2021 arrest that was also covered in Pulliam’s lawsuit. The judge did not grant him summary judgment on his retaliation claim, but he can still prevail. The court acknowledged that, as we’ve written, the recent Supreme Court decision in Gonzalez v. Trevino rightly eased the burden of proving First Amendment retaliation. That case wasn’t decided yet when Pulliam briefed his summary judgment motion but he’ll have the chance to raise it at trial.

And the final, third strike: The equipment seizure, which is flagrantly unconstitutional, with or without the Gonzalez case. The attempt to twist Pulliam’s arm into signing away his legal right to sue the sheriff’s department only goes to prove that the department knew what it did was wrong and should have no claim to immunity.

The officers involved shouldn’t be released from liability — they should be released from their jobs. And if Pulliam ever does sign a release, it shouldn’t be for his own equipment. It should be for a fat settlement check.

Fort Bend County, Texas, Sheriff Eric Fagan at a news conference in January.

Last year, an Alabama reporter and newspaper publisher were illegally arrested for reporting on a local criminal investigation and then forced to agree not to report on ongoing criminal investigations as a condition of their bail.

It was one of the most egregious press freedom violations of 2023 — a year that was full of them. We hoped that, after all the bad press Atmore authorities received (and the failure of their frivolous prosecution), others would learn their lesson and not try to extort journalists into waiving their constitutional rights.

And then the sheriff’s department of Fort Bend County, Texas, came along to crush that dream.

Want your illegally seized equipment? Sign this illegal release

Back in December 2021, deputies illegally arrested Texas citizen journalist Justin Pulliam for filming them conducting a mental health check. They also seized his phone and equipment, in clear violation of the Privacy Protection Act of 1980, which prohibits seizures of journalists’ materials except when investigating a crime unrelated to newsgathering.

The charges against Pulliam were dropped in May, but Pulliam told the U.S. Press Freedom Tracker — a project of Freedom of the Press Foundation (FPF) — that the phone and equipment illegally seized from him when he was arrested has yet to be returned. The reason? The authorities, Pulliam says, demanded he sign a waiver releasing them from liability before they would give him back his property.

The law on this is clear — government officials can’t force people to waive their First Amendment rights in order to receive a benefit from the government. And getting your own stuff back after an illegal arrest can hardly even be considered a benefit.

The officers involved shouldn’t be released from liability — they should be released from their jobs.

I wrote about this rule in August for The Hill, focusing on the Securities and Exchange Commission’s unconstitutional “gag rule” whereby the commission forces people it settles cases with to promise not to publicly dispute the allegations against them.

To drive home the dangers of allowing a rule like that to stand, I posed a hypothetical: What if instead of wealthy investment firms, the government went after ordinary citizens? “Want to get out of that traffic ticket without taking off work to go to court? You’ll need to keep quiet about those racial profiling claims.”

The hypothetical was meant to be far-fetched — but apparently it wasn’t. And it’s not the only time the sheriff has violated Pulliam’s constitutional rights.

Citizen journalists are journalists

The government is always resourceful when it comes to limiting its definition of “journalist” to exclude people it doesn’t like.

Officials said Julian Assange wasn’t a journalist because he didn’t redact documents. In Tim Burke’s case, it was because he also worked as a consultant. They’ve even taken the position that documentary filmmakers like Trevor Aaronson occupy some lower tier of journalism with diminished legal rights. Those are just some of many examples.

Add Pulliam to the list. In July 2021 — a few months before his aforementioned arrest — the same sheriff’s department excluded him from a news conference in Richmond, Texas, claiming he was not a member of the media, despite regularly reporting on local government and police on YouTube and Facebook.

Pulliam sued (good for The Institute for Justice for taking the case), and last week a judge ruled in his favor, granting him partial summary judgment and finding that the sheriff — and its departmental policy excluding social media journalists from its definition of “media” — violated his constitutional rights.

The Tracker reported that Magistrate Judge Andrew Edison – whose opinion was adopted by the lead judge on the case — called Pulliam’s journalism “unequivocally” protected by the First Amendment, regardless of his platform.

Long before social media existed, appellate courts said that 'what makes journalism journalism is not its format but its content.'

The judge said the unconstitutionality was obvious enough that officials were not entitled to qualified immunity, which protects government officials from liability when the legal rights they violate are not “clearly established.”

Unfortunately, the denial of qualified immunity is a high bar to reach. An appellate court, for instance, recently held that officers were immune from liability for the unconstitutional arrest of another Texas citizen journalist, Priscilla Villarreal, under an archaic law criminalizing solicitation of information from the government. I previously wrote about the need for the Supreme Court to right that wrong.

To state the obvious, Edison is correct. Long before social media existed, appellate courts said that “what makes journalism journalism is not its format but its content.”

And the House of Representatives endorsed Edison’s reasoning by unanimously passing the PRESS Act — the federal reporter’s shield bill that uses a functional definition of “journalist” to protect from government surveillance anyone who regularly gathers, writes, or reports the news, whether for a Substack blog, The New York Times, or YouTube.

That bill enjoys bipartisan support in the Senate but, as Roll Call recently reported, it’s being held up by outlier objections. (Side note: Tell your senator to support the PRESS Act here.)

A trifecta of First Amendment violations

It’s great news that Edison recognized that qualified immunity should not be a get-out-of-jail-free card for officials who blatantly violate journalists’ rights. But that’s only one of the sheriff’s three strikes when it comes to Pulliam’s First Amendment rights.

Strike two? The December 2021 arrest that was also covered in Pulliam’s lawsuit. The judge did not grant him summary judgment on his retaliation claim, but he can still prevail. The court acknowledged that, as we’ve written, the recent Supreme Court decision in Gonzalez v. Trevino rightly eased the burden of proving First Amendment retaliation. That case wasn’t decided yet when Pulliam briefed his summary judgment motion but he’ll have the chance to raise it at trial.

And the final, third strike: The equipment seizure, which is flagrantly unconstitutional, with or without the Gonzalez case. The attempt to twist Pulliam’s arm into signing away his legal right to sue the sheriff’s department only goes to prove that the department knew what it did was wrong and should have no claim to immunity.

The officers involved shouldn’t be released from liability — they should be released from their jobs. And if Pulliam ever does sign a release, it shouldn’t be for his own equipment. It should be for a fat settlement check.

President Jimmy Carter turns 100 today. A fitting birthday present would be for the CIA to fully declassify its records on the 1978 Camp David Accords.

Camp David, one of the highlights of the Carter administration, established the framework for a peace deal between Israel and Egypt. Releasing the full record would not only commemorate Carter’s foreign policy legacy, it would add important context for policymakers as escalation continues between Israel and its neighbors.

Yet many of these documents are still overclassified.

A February 1977 National Security Council memorandum on “Arab and Israeli Reactions to US Steps in the Middle East” is a prime example of ongoing, excessive, needless secrecy. Large portions of the text are redacted, and the exemptions used to hide the information — and which should be cited — are missing.

An October 1977 memorandum on “Peace Negotiations and Israeli Coalition Politics” is similarly overclassified, as are many of the other 250 records in the collection.

It is not possible that all of this information, now almost 50 years old, must still be secret. The passage of time and the public interest in the records clearly outweigh whatever meager arguments might still exist for secrecy.

The CIA’s secrecy is even more galling when other agencies have released important Carter-era records.

The State Department this spring finally published its Foreign Relations of the United States collection on national security policymaking during the Carter administration. The FRUS is arguably the United States’ largest ongoing transparency initiative and serves as the official record of U.S. foreign policy.

The State Department is congressionally mandated to publish FRUS volumes 30 years after the events they document take place, but is regularly unable to do so because the CIA and Defense Department drag their heels in releasing information — which is why it took over 40 years for the Carter set to be published.

Historians have also worked hard to get the government to declassify Carter-era records. The indefatigable archivists at the nonprofit National Security Archive (where I previously worked) recently published a collection of 2,500 declassified high-level Carter policymaking records, covering everything from the Soviet invasion of Afghanistan to the Iran hostage crisis.

The efforts of historians and journalists are hampered not only by the CIA’s classification decisions but also by the National Archives and Records Administration’s inability to provide digital access to the Carter Presidential Library records.

As of today, NARA has only digitized 0.063% of its entire collection of Carter documents. Some of this digitization delay could be solved by giving NARA more money and better technology, but the agency also needs to reassess its priorities. Otherwise, the records from the Carter Library will be lost to future generations.

President Carter has said he wants to live long enough to vote in the 2024 election. We should hope for that, but we should also demand that the CIA and other agencies make his administration’s records available to the public.

President Carter, center, meets with Egyptian president Anwar Sadat, left, and Israeli Prime Minister Menachem Begin at Camp David in 1978.

President Jimmy Carter turns 100 today. A fitting birthday present would be for the CIA to fully declassify its records on the 1978 Camp David Accords.

Camp David, one of the highlights of the Carter administration, established the framework for a peace deal between Israel and Egypt. Releasing the full record would not only commemorate Carter’s foreign policy legacy, it would add important context for policymakers as escalation continues between Israel and its neighbors.

Yet many of these documents are still overclassified.

A February 1977 National Security Council memorandum on “Arab and Israeli Reactions to US Steps in the Middle East” is a prime example of ongoing, excessive, needless secrecy. Large portions of the text are redacted, and the exemptions used to hide the information — and which should be cited — are missing.

An October 1977 memorandum on “Peace Negotiations and Israeli Coalition Politics” is similarly overclassified, as are many of the other 250 records in the collection.

It is not possible that all of this information, now almost 50 years old, must still be secret. The passage of time and the public interest in the records clearly outweigh whatever meager arguments might still exist for secrecy.

The CIA’s secrecy is even more galling when other agencies have released important Carter-era records.

The State Department this spring finally published its Foreign Relations of the United States collection on national security policymaking during the Carter administration. The FRUS is arguably the United States’ largest ongoing transparency initiative and serves as the official record of U.S. foreign policy.

The State Department is congressionally mandated to publish FRUS volumes 30 years after the events they document take place, but is regularly unable to do so because the CIA and Defense Department drag their heels in releasing information — which is why it took over 40 years for the Carter set to be published.

Historians have also worked hard to get the government to declassify Carter-era records. The indefatigable archivists at the nonprofit National Security Archive (where I previously worked) recently published a collection of 2,500 declassified high-level Carter policymaking records, covering everything from the Soviet invasion of Afghanistan to the Iran hostage crisis.

The efforts of historians and journalists are hampered not only by the CIA’s classification decisions but also by the National Archives and Records Administration’s inability to provide digital access to the Carter Presidential Library records.

As of today, NARA has only digitized 0.063% of its entire collection of Carter documents. Some of this digitization delay could be solved by giving NARA more money and better technology, but the agency also needs to reassess its priorities. Otherwise, the records from the Carter Library will be lost to future generations.

President Carter has said he wants to live long enough to vote in the 2024 election. We should hope for that, but we should also demand that the CIA and other agencies make his administration’s records available to the public.

The U.S. government’s prosecution of Julian Assange ended earlier this year, but plenty of questions about its decade plus pursuit of the WikiLeaks founder remain unanswered.

A new Freedom of Information Act lawsuit – filed against the FBI and Department of Justice by our friends at Defending Rights and Dissent – seeks answers.

We hosted a recent conversation via X Spaces with DRAD’s policy director, Chip Gibbons, and Kevin Gosztola, author of “Guilty of Journalism: The Political Case Against Julian Assange” and editor of The Dissenter. The two discussed the need to force transparency on a dark chapter in the history of press freedom in America.

Gibbons explained that as part of Assange’s plea deal, the U.S. committed to not bringing any further charges against him for past conduct – meaning that exemptions to the Freedom of Information Act for ongoing investigations should no longer apply. And yet, the government has not complied with DRAD’s longstanding document requests.

Nobody expects an easy path forward in piercing through the layers of secrecy the government will likely invoke to deny transparency. But Gibbons hopes to obtain records that will shed some light on why the U.S. decided to put the First Amendment at risk to prosecute Assange. Assange testified today before Parliamentary Assembly of the Council of Europe that his plea deal required him to plead “guilty to journalism.”

Gibbons said he wants to give the public a behind-the-scenes view into why former President Donald Trump’s administration, and subsequently President Joe Biden’s, changed course after the Obama administration declined to prosecute Assange, preferring to use the Espionage Act against whistleblowers instead.

“I do believe there is this hard-line career intelligence faction in the FBI and the CIA and the NSA too, who have always wanted to go after Assange. … The Obama administration took this perspective of sort of maximum war on government insiders, but don't touch the government outsiders, and I know the FBI was clearly dissatisfied,” Gibbons explained.

He also wants to know why prosecutors decided to forgo other potential charges to pursue an Espionage Act theory based on WikiLeaks’ 2010 publications of documents from whistleblower Chelsea Manning. A case based on a computer hacking theory would likely not have encountered similar resistance from the press freedom community, which viewed criminalization of publishing government secrets as an existential threat to investigative journalism.

And a case based on other WikiLeaks publications – like the Vault 7 leaks – may not have provoked the same outrage from anti-war and human rights organizations as a prosecution arising from documents that exposed U.S. war crimes.

“I would be very curious to know why the decision was made in 2019 to revive the 2010 Chelsea Manning case and not the other, less politically toxic cases. … They sort of picked their politically weakest case, which I would presume was because they thought it was legally the strongest,” Gibbons said.

Gosztola added that the documents being withheld could also shed light on everything from the role of discredited informants and the FBI’s tactics in seeking witnesses to testify against Assange to what the FBI took from the Ecuadorian embassy after Assange was expelled in 2019.

Both speakers called for reform of the Espionage Act — which allows prosecution of whistleblowers and publishers of classified documents without distinguishing those who do so out of conscience to expose wrongdoing from foreign spies. Gibbons was the lead author of amendments to the act proposed by Rep. Rashida Tlaib.

Gosztola said he doesn’t trust the U.S. government’s assurances that it won’t apply to so-called “conventional” journalists the Espionage Act theory under which it charged Assange. He said the Assange case demonstrates the “willingness of the Justice Department to cross this line” and prosecute publishers, not just leakers, of government secrets.

And he said independent journalists like himself would suffer most — not just from actual Espionage Act prosecutions but from the chilling effect that comes from the prospect of one. “Someone like myself who works independently, I don't have a lawyer on hand. … So I do consider the choices that I'm making when I engage in newsgathering. I do consider what I'm going to pursue as a journalist,” he said.

The conversation was an hour-and-a-half-long deep dive into the Assange case and the secrecy surrounding it. We can’t possibly capture it all in a blog post, but you can listen to it, or read a transcript (albeit an imperfect AI-generated one) here.

WikiLeaks founder Julian Assange addresses the Council of Europe in Strasbourg, France, on Oct. 1, 2024.

The U.S. government’s prosecution of Julian Assange ended earlier this year, but plenty of questions about its decade plus pursuit of the WikiLeaks founder remain unanswered.

A new Freedom of Information Act lawsuit – filed against the FBI and Department of Justice by our friends at Defending Rights and Dissent – seeks answers.

We hosted a recent conversation via X Spaces with DRAD’s policy director, Chip Gibbons, and Kevin Gosztola, author of “Guilty of Journalism: The Political Case Against Julian Assange” and editor of The Dissenter. The two discussed the need to force transparency on a dark chapter in the history of press freedom in America.

Gibbons explained that as part of Assange’s plea deal, the U.S. committed to not bringing any further charges against him for past conduct – meaning that exemptions to the Freedom of Information Act for ongoing investigations should no longer apply. And yet, the government has not complied with DRAD’s longstanding document requests.

Nobody expects an easy path forward in piercing through the layers of secrecy the government will likely invoke to deny transparency. But Gibbons hopes to obtain records that will shed some light on why the U.S. decided to put the First Amendment at risk to prosecute Assange. Assange testified today before Parliamentary Assembly of the Council of Europe that his plea deal required him to plead “guilty to journalism.”

Gibbons said he wants to give the public a behind-the-scenes view into why former President Donald Trump’s administration, and subsequently President Joe Biden’s, changed course after the Obama administration declined to prosecute Assange, preferring to use the Espionage Act against whistleblowers instead.

“I do believe there is this hard-line career intelligence faction in the FBI and the CIA and the NSA too, who have always wanted to go after Assange. … The Obama administration took this perspective of sort of maximum war on government insiders, but don't touch the government outsiders, and I know the FBI was clearly dissatisfied,” Gibbons explained.

He also wants to know why prosecutors decided to forgo other potential charges to pursue an Espionage Act theory based on WikiLeaks’ 2010 publications of documents from whistleblower Chelsea Manning. A case based on a computer hacking theory would likely not have encountered similar resistance from the press freedom community, which viewed criminalization of publishing government secrets as an existential threat to investigative journalism.

And a case based on other WikiLeaks publications – like the Vault 7 leaks – may not have provoked the same outrage from anti-war and human rights organizations as a prosecution arising from documents that exposed U.S. war crimes.

“I would be very curious to know why the decision was made in 2019 to revive the 2010 Chelsea Manning case and not the other, less politically toxic cases. … They sort of picked their politically weakest case, which I would presume was because they thought it was legally the strongest,” Gibbons said.

Gosztola added that the documents being withheld could also shed light on everything from the role of discredited informants and the FBI’s tactics in seeking witnesses to testify against Assange to what the FBI took from the Ecuadorian embassy after Assange was expelled in 2019.

Both speakers called for reform of the Espionage Act — which allows prosecution of whistleblowers and publishers of classified documents without distinguishing those who do so out of conscience to expose wrongdoing from foreign spies. Gibbons was the lead author of amendments to the act proposed by Rep. Rashida Tlaib.

Gosztola said he doesn’t trust the U.S. government’s assurances that it won’t apply to so-called “conventional” journalists the Espionage Act theory under which it charged Assange. He said the Assange case demonstrates the “willingness of the Justice Department to cross this line” and prosecute publishers, not just leakers, of government secrets.

And he said independent journalists like himself would suffer most — not just from actual Espionage Act prosecutions but from the chilling effect that comes from the prospect of one. “Someone like myself who works independently, I don't have a lawyer on hand. … So I do consider the choices that I'm making when I engage in newsgathering. I do consider what I'm going to pursue as a journalist,” he said.

The conversation was an hour-and-a-half-long deep dive into the Assange case and the secrecy surrounding it. We can’t possibly capture it all in a blog post, but you can listen to it, or read a transcript (albeit an imperfect AI-generated one) here.

A small nonprofit newspaper in Wisconsin recently won a legal victory against a frivolous defamation lawsuit. But sometimes winning isn’t enough.

The case against the Wausau Pilot & Review is a prime example of how resentful subjects of reporting can weaponize the legal system to attack the First Amendment. Without strong laws that protect against meritless lawsuits that chill speech, known as strategic lawsuits against public participation, or SLAPPs, even journalists who win can lose.

Lawsuit thrown out, but at what cost?

Last week, a state appeals court threw out a defamation lawsuit against the Pilot & Review brought by Cory Tomczyk, a local businessman turned state senator. Tomcyzk sued the newspaper after it published a report that he had used an anti-gay slur at a county meeting.

A trial court dismissed Tomcyzk’s suit last year, but he appealed. Now, the appeals court has thrown the case out again, concluding that Tomcyzk hadn’t met the legal standard to make his case.

The Pilot & Review and its reporters should be celebrating this First Amendment victory. But because Wisconsin doesn’t have an anti-SLAPP law, their win may actually turn into a loss.

The Pilot & Review has spent nearly $200,000 on legal bills so far, according to its editor Shereen Siewert. That’s almost as much as the newspaper spends each year to run its newsroom. And Tomcyzk could appeal again, forcing the newspaper to rack up more expenses.

Those costs have a real impact on local journalism. Siewert told Wisconsin Public Radio that the newspaper “had to put hiring on hold” because of the lawsuit. The New York Times reported last year that legal expenses could put the newspaper out of business.

Anti-SLAPP laws needed in all 50 states

Thankfully the Pilot & Review has scraped by, in part because of donations. But no news outlet should have to rely on the kindness of strangers to survive a defamation lawsuit that it wins.

The costs of SLAPPs can be staggering. For instance, in 2022, the Center for Investigative Reporting received a more than $1.92 million settlement to cover its legal fees from a SLAPP plaintiff.

In California and many states, the news media and other speakers are protected by anti-SLAPP laws. But not in Wisconsin or 16 other states.

Anti-SLAPP laws give people who are sued for exercising their First Amendment rights tools to fight back. They often allow for cases to be dismissed early, before costs rise, and give winning defendants the right to recoup their legal fees. As a result, SLAPP victims are less likely to be intimidated into silence.

Anti-SLAPP laws don’t just protect the speakers. They also protect the public’s right to know. When journalists and whistleblowers have confidence that they won’t be crushed by legal costs for reporting or speaking out, more information about important issues like corruption, corporate wrongdoing, and crime makes it to the public.

That’s why we need every state — and the federal government — to pass strong anti-SLAPP protections.

Protect local nonprofit journalism with anti-SLAPP laws

Anti-SLAPP laws are particularly important for nonprofit news outlets, like the Pilot & Review, which are increasingly filling the gap in a news media ecosystem that’s been devastated by the closure of newsroom after newsroom.

Nonprofit newsrooms that operate on shoestring budgets and lack in-house legal help are especially vulnerable to SLAPPs. In 2023, the Institute for Nonprofit News reported a medium revenue of about $477,000 for its members, an amount that could be quickly exhausted by just a single SLAPP.

But even relatively larger nonprofit news outlets can be harmed by SLAPPs. ProPublica Managing Editor Charles Ornstein recently wrote about the toll of a six-year libel battle based on his reporting. The case is just one of six in which ProPublica and its journalists have been unsuccessfully sued for defamation since the news outlet was founded.

ProPublica spent hundreds of thousands of dollars to defend itself in the case based on Ornstein’s reporting, through multiple rounds of appeals. Its journalists spent “dozens of hours gathering materials and working with lawyers” that could have otherwise been spent on reporting. Ornstein was even denied a mortgage because he disclosed he was a defendant in a lawsuit.

The case was eventually thrown out under Texas’s anti-SLAPP law. But future SLAPP victims in Texas might not get the same protections. State lawmakers have repeatedly targeted the law, and this week they’ll hold a hearing that may be a step toward gutting it.

That would be a step backward, and one that could devastate Texans’ right to know about what’s happening in their communities.

Texas, Wisconsin, and every state and the federal government need strong anti-SLAPP laws that protect First Amendment rights. Without them, wealthy and powerful people and corporations will continue to use the legal system to attack the reporting that holds them to account, and journalists who face SLAPPs will be in a no-win situation.

Wisconsin is one of seventeen states without a law that protects journalists and other speakers from frivolous lawsuits meant to chill speech. At least one local newspaper is paying the price.

A small nonprofit newspaper in Wisconsin recently won a legal victory against a frivolous defamation lawsuit. But sometimes winning isn’t enough.

The case against the Wausau Pilot & Review is a prime example of how resentful subjects of reporting can weaponize the legal system to attack the First Amendment. Without strong laws that protect against meritless lawsuits that chill speech, known as strategic lawsuits against public participation, or SLAPPs, even journalists who win can lose.

Lawsuit thrown out, but at what cost?

Last week, a state appeals court threw out a defamation lawsuit against the Pilot & Review brought by Cory Tomczyk, a local businessman turned state senator. Tomcyzk sued the newspaper after it published a report that he had used an anti-gay slur at a county meeting.

A trial court dismissed Tomcyzk’s suit last year, but he appealed. Now, the appeals court has thrown the case out again, concluding that Tomcyzk hadn’t met the legal standard to make his case.

The Pilot & Review and its reporters should be celebrating this First Amendment victory. But because Wisconsin doesn’t have an anti-SLAPP law, their win may actually turn into a loss.

The Pilot & Review has spent nearly $200,000 on legal bills so far, according to its editor Shereen Siewert. That’s almost as much as the newspaper spends each year to run its newsroom. And Tomcyzk could appeal again, forcing the newspaper to rack up more expenses.

Those costs have a real impact on local journalism. Siewert told Wisconsin Public Radio that the newspaper “had to put hiring on hold” because of the lawsuit. The New York Times reported last year that legal expenses could put the newspaper out of business.

Anti-SLAPP laws needed in all 50 states

Thankfully the Pilot & Review has scraped by, in part because of donations. But no news outlet should have to rely on the kindness of strangers to survive a defamation lawsuit that it wins.

The costs of SLAPPs can be staggering. For instance, in 2022, the Center for Investigative Reporting received a more than $1.92 million settlement to cover its legal fees from a SLAPP plaintiff.

In California and many states, the news media and other speakers are protected by anti-SLAPP laws. But not in Wisconsin or 16 other states.

Anti-SLAPP laws give people who are sued for exercising their First Amendment rights tools to fight back. They often allow for cases to be dismissed early, before costs rise, and give winning defendants the right to recoup their legal fees. As a result, SLAPP victims are less likely to be intimidated into silence.

Anti-SLAPP laws don’t just protect the speakers. They also protect the public’s right to know. When journalists and whistleblowers have confidence that they won’t be crushed by legal costs for reporting or speaking out, more information about important issues like corruption, corporate wrongdoing, and crime makes it to the public.

That’s why we need every state — and the federal government — to pass strong anti-SLAPP protections.

Protect local nonprofit journalism with anti-SLAPP laws

Anti-SLAPP laws are particularly important for nonprofit news outlets, like the Pilot & Review, which are increasingly filling the gap in a news media ecosystem that’s been devastated by the closure of newsroom after newsroom.

Nonprofit newsrooms that operate on shoestring budgets and lack in-house legal help are especially vulnerable to SLAPPs. In 2023, the Institute for Nonprofit News reported a medium revenue of about $477,000 for its members, an amount that could be quickly exhausted by just a single SLAPP.

But even relatively larger nonprofit news outlets can be harmed by SLAPPs. ProPublica Managing Editor Charles Ornstein recently wrote about the toll of a six-year libel battle based on his reporting. The case is just one of six in which ProPublica and its journalists have been unsuccessfully sued for defamation since the news outlet was founded.

ProPublica spent hundreds of thousands of dollars to defend itself in the case based on Ornstein’s reporting, through multiple rounds of appeals. Its journalists spent “dozens of hours gathering materials and working with lawyers” that could have otherwise been spent on reporting. Ornstein was even denied a mortgage because he disclosed he was a defendant in a lawsuit.

The case was eventually thrown out under Texas’s anti-SLAPP law. But future SLAPP victims in Texas might not get the same protections. State lawmakers have repeatedly targeted the law, and this week they’ll hold a hearing that may be a step toward gutting it.

That would be a step backward, and one that could devastate Texans’ right to know about what’s happening in their communities.

Texas, Wisconsin, and every state and the federal government need strong anti-SLAPP laws that protect First Amendment rights. Without them, wealthy and powerful people and corporations will continue to use the legal system to attack the reporting that holds them to account, and journalists who face SLAPPs will be in a no-win situation.

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US hides its best hurricane predictions

We’re in the middle of an especially dangerous hurricane season, but the government’s weather forecaster won’t release its most accurate predictions.

A new Washington Post report reveals that the National Oceanic and Atmospheric Administration says it can't disclose potentially lifesaving data because it promised not to in an agreement with a private vendor.

This arrangement wrongly places commercial interests above public safety. People shouldn’t die in hurricanes in the name of corporate secrecy. Read more on our website about why public-private industry partnerships must be open and transparent to the public.

US silence over Al Jazeera speaks volumes about policies on TikTok, RT

We’ve said before that Israel’s assaults on Al Jazeera provide a real-time illustration of the dangers of the U.S.'s TikTok ban legislation and the power it gifts the government to muzzle its critics by invoking vague security threats.

But even as the U.S. government does nothing about Israel’s latest raid on Al Jazeera, it expects Americans to believe that its intentions are pure in its efforts to punish foreign platforms and news outlets like TikTok and RT. Read more on our website about why we remain skeptical.

Knee-jerk secrecy keeps prepublication review broken

A new directive aims to streamline the prepublication review process for former intelligence community employees looking to write about their time in government. But it doesn’t address the main problem: The government calls too many things secrets.

The government classifies more and more information every year, often needlessly. Until agencies reduce the number of secrets they generate, prepublication review will continue to be an unwieldy, quixotic effort.

Lauren Harper, our Daniel Ellsberg chair on government secrecy, explains the prepublication review process’s flaws, the new guidance, and the directive’s failure to address the crisis of overclassification and the knee-jerk secrecy that permeates the government.

Court says First Amendment means less free speech

If it sounds backward to use the First Amendment to undermine a law meant to protect free speech, that’s because it is.

Yet that’s just what a federal court of appeals did in a recent decision on Section 230 of the Communications Decency Act — the federal law that shields online services from legal liability for posts made by their users.

We explain on our website how the court’s nonsensical decision threatens online freedom of speech by journalists and everyone else.

What we’re reading

By storming our Al Jazeera offices in Ramallah, Israel has stepped up its assault on press freedom (The Guardian). Asef Hamidi is right: World leaders must immediately and decisively stand up for press freedom, including in Gaza and the West Bank, where Israel is deliberately targeting journalists.

As president, Trump demanded investigations of foes. He often got them (The New York Times). “Secret White House documents” help show Trump's political persecution of his enemies. The public is entitled to this information, and the current secrecy around presidential and White House records is bad for democracy.

N.J. high court will hear reporter’s challenge to law shielding public officials’ addresses (New Jersey Monitor). It’s vital that the New Jersey Supreme Court reverse the appeals court’s ridiculous decision and protect journalists’ right to publish public records about government officials. Secrecy laws that claim to protect officials’ safety but instead stop journalists from investigating abuses are dangerous.

Threatened with jail over a scandal headlined by Brett Favre (ESPN). Whether it’s reporting on a welfare fraud scandal in Mississippi involving Brett Favre or steroids in baseball, no reporter should ever face jail for refusing to burn their sources. Every state needs a strong reporter’s shield law, and Congress must pass the PRESS Act.

Ark. Supreme Court refers justice for disciplinary investigation after FOIA dispute (KAIT). It’s good that the Arkansas Supreme Court ordered an investigation of a judge who ignored its directive by stopping the release of government records. But judges who trample on press rights should be investigated and punished even when they don’t insult higher courts in the process.

The National Archives: A small agency with a big responsibility safeguarding American and world history (60 Minutes). This report by 60 Minutes says what advocates have been shouting from the rooftops for years: The National Archives can't succeed, and the public will lose its history, if it does not get more and better resources and a more aggressive mindset to combat secretive agencies and presidents.

Come see us in Washington or London

The Double Exposure Festival & Symposium Nov. 7-10 in Washington, D.C., will have panels, workshops, and master classes focused on investigative storytelling. Don’t miss our Director of Advocacy Seth Stern, who will discuss dangerous government efforts to limit who is a journalist — such as by excluding documentary filmmakers. Purchase your tickets or passes here.

Or come see us in London, where we’re co-hosting Source! the London Logan Symposium with The Centre for Investigative Journalism Nov. 14-15. Hear from journalists from all over the world about press freedom issues and the challenges they face in protecting themselves and their sources. Register to attend here.

Follow us on TikTok and Instagram

FPF is now live on Instagram and TikTok. Click the links to follow us and see our latest posts about press freedom.

A new directive aims to streamline the prepublication review process for former intelligence community employees looking to write about their time in government.

In theory, prepublication review ensures current and former officials don’t publish information that damages national security. In practice, it routinely infringes on First Amendment rights. The process has served partisan agendas, withheld public information, and stifled debate.

Attempting to fix the process is a good thing — but the new reforms don’t address a fundamental problem: The government classifies more and more information every year, often needlessly.

Until agencies reduce the number of secrets they generate, prepublication review will continue to be an unwieldy, quixotic effort.

What is prepublication review?

Prepublication review requires a wide range of former officials to submit written works to the government for vetting before publication. The process began with a small number of CIA officials in the 1950s and now covers employees across the intelligence agencies, as well as components of the departments of State, Justice, Defense, and Homeland Security.

When the government considers everything a secret, the task of identifying secrets in manuscripts becomes extraordinarily time-consuming. It delays or prevents publication of unclassified material, information that is already public, and information that embarrasses the government.

The tenuous legality of the review is based in the nondisclosure agreements agency employees must sign, but the requirements on who must submit what varies between agencies and are often difficult to find. (A Freedom of Information Act request from the ACLU and Knight First Amendment Institute found the CIA deliberately kept submission requirements secret.)

The Supreme Court has not considered the constitutionality of the prepublication review process since the 1980s and declined to do so as recently as 2022. And anyone who does not submit their manuscript for review runs the risk of the government seizing the proceeds from their book after it's published, having their security clearance revoked, and possibly being prosecuted.

Here are just a few examples of how flawed the system is:

• Prepublication review of former National Security Advisor John Bolton’s memoir was mired in delays and political interference from the Trump White House and Justice Department.
• The CIA ordered former FBI agent Ali Soufan to cut significant portions of his book, “The Black Banners,” even information that had already been disclosed in congressional hearings, public records, and prior books.
• Former Defense Secretary Mark Esper sued his old agency over delays reviewing his manuscript, stating that, “Significant text is being improperly withheld … under the guise of classification.”
• The Naval Criminal Investigative Service’s Mark Fallon had to remove information “already in the public record and some seemingly intended only to protect the government from embarrassment” from his book.

Double standards

The system is overwhelmed by the amount of material submitted. As of 2015, the CIA alone was reviewing 184,000 pages a year. The sheer volume creates delays, which is a feature — not a bug. Delays discourage authors with deadlines to meet from appealing redactions.

And overclassification compounds the delay — not only do reviewers need to read thousands of pages of manuscripts, they need to cross-reference them with millions of often needless classification decisions.

Not everyone faces delays, though. While it may take years for some authors to get manuscripts back, it only took the State Department two months to return former Secretary Hillary Rodham Clinton’s. There was so much pressure for a quick turnaround that State’s prepublication review board warned: “If you are tardy in your response, you may get a high-level Department official call.”

What is in the new prepublication review directive?

The Brennan Center for Justice’s Elizabeth Goitein and former National Security Council official John P. Fitzpatrick have an excellent summary of the key items in the new directive in Just Security. Key improvements include:

• Requiring agencies to publish information on the prepublication review process on front-facing websites.
• Building and maintaining searchable datasets to track prepublication review requests and metrics.
• Mandating that agencies build appeals processes for denied material and appoint a prepublication review liaison.

They also note a number of limitations. The new guidelines:

• Only apply to members of the intelligence community, not other agencies that conduct prepublication reviews.
• Do not require a uniform appeals process across the intelligence community.
• Mandate no firm deadlines for agencies to complete reviews.
• Continue to allow agencies to withhold unclassified material that may be protected under other federal law or regulation, including exemptions to the inapplicable FOIA. That rationale is used to withhold everything from information pertaining to defense contractors to watermelon growing under FOIA’s Exemption 3.

These are missed opportunities. But the overarching problem is the directive’s failure to address the crisis of overclassification and the knee-jerk secrecy that permeates the government.

Until agencies face meaningful consequences for inappropriately withholding information, the prepublication review process will remain broken.

The CIA’s internal report on its prepublication review process, “Protecting Secrets,” was released through a Freedom of Information Act request. SCREENSHOT

A new directive aims to streamline the prepublication review process for former intelligence community employees looking to write about their time in government.

In theory, prepublication review ensures current and former officials don’t publish information that damages national security. In practice, it routinely infringes on First Amendment rights. The process has served partisan agendas, withheld public information, and stifled debate.

Attempting to fix the process is a good thing — but the new reforms don’t address a fundamental problem: The government classifies more and more information every year, often needlessly.

Until agencies reduce the number of secrets they generate, prepublication review will continue to be an unwieldy, quixotic effort.

What is prepublication review?

Prepublication review requires a wide range of former officials to submit written works to the government for vetting before publication. The process began with a small number of CIA officials in the 1950s and now covers employees across the intelligence agencies, as well as components of the departments of State, Justice, Defense, and Homeland Security.

When the government considers everything a secret, the task of identifying secrets in manuscripts becomes extraordinarily time-consuming. It delays or prevents publication of unclassified material, information that is already public, and information that embarrasses the government.

The tenuous legality of the review is based in the nondisclosure agreements agency employees must sign, but the requirements on who must submit what varies between agencies and are often difficult to find. (A Freedom of Information Act request from the ACLU and Knight First Amendment Institute found the CIA deliberately kept submission requirements secret.)

The Supreme Court has not considered the constitutionality of the prepublication review process since the 1980s and declined to do so as recently as 2022. And anyone who does not submit their manuscript for review runs the risk of the government seizing the proceeds from their book after it's published, having their security clearance revoked, and possibly being prosecuted.

Here are just a few examples of how flawed the system is:

• Prepublication review of former National Security Advisor John Bolton’s memoir was mired in delays and political interference from the Trump White House and Justice Department.
• The CIA ordered former FBI agent Ali Soufan to cut significant portions of his book, “The Black Banners,” even information that had already been disclosed in congressional hearings, public records, and prior books.
• Former Defense Secretary Mark Esper sued his old agency over delays reviewing his manuscript, stating that, “Significant text is being improperly withheld … under the guise of classification.”
• The Naval Criminal Investigative Service’s Mark Fallon had to remove information “already in the public record and some seemingly intended only to protect the government from embarrassment” from his book.

Double standards

The system is overwhelmed by the amount of material submitted. As of 2015, the CIA alone was reviewing 184,000 pages a year. The sheer volume creates delays, which is a feature — not a bug. Delays discourage authors with deadlines to meet from appealing redactions.

And overclassification compounds the delay — not only do reviewers need to read thousands of pages of manuscripts, they need to cross-reference them with millions of often needless classification decisions.

Not everyone faces delays, though. While it may take years for some authors to get manuscripts back, it only took the State Department two months to return former Secretary Hillary Rodham Clinton’s. There was so much pressure for a quick turnaround that State’s prepublication review board warned: “If you are tardy in your response, you may get a high-level Department official call.”

What is in the new prepublication review directive?

The Brennan Center for Justice’s Elizabeth Goitein and former National Security Council official John P. Fitzpatrick have an excellent summary of the key items in the new directive in Just Security. Key improvements include:

• Requiring agencies to publish information on the prepublication review process on front-facing websites.
• Building and maintaining searchable datasets to track prepublication review requests and metrics.
• Mandating that agencies build appeals processes for denied material and appoint a prepublication review liaison.

They also note a number of limitations. The new guidelines:

• Only apply to members of the intelligence community, not other agencies that conduct prepublication reviews.
• Do not require a uniform appeals process across the intelligence community.
• Mandate no firm deadlines for agencies to complete reviews.
• Continue to allow agencies to withhold unclassified material that may be protected under other federal law or regulation, including exemptions to the inapplicable FOIA. That rationale is used to withhold everything from information pertaining to defense contractors to watermelon growing under FOIA’s Exemption 3.

These are missed opportunities. But the overarching problem is the directive’s failure to address the crisis of overclassification and the knee-jerk secrecy that permeates the government.

Until agencies face meaningful consequences for inappropriately withholding information, the prepublication review process will remain broken.

As Hurricane Helene batters the Southeast, leaving at least six dead and millions without power, it leaves no doubt we are in the middle of an especially dangerous hurricane season. So why won’t the government’s weather forecaster release its most accurate predictions?

The National Oceanic and Atmospheric Administration says it can't disclose potentially lifesaving data because of stipulations in a 2020 agreement it signed with a private vendor, whose proprietary prediction analysis technique is incorporated into the NOAA-developed forecast model.

This secrecy wrongly places commercial interests above public safety.

NOAA’s misguided approach became clear this week, thanks to The Washington Post’s reporting on its Freedom of Information Act request to NOAA about why the agency is endangering families planning for deadly hurricanes. In response, NOAA released the terms of the agreement with the vendor, RenaissanceRe Risk Sciences, which specifies that forecasts using its prediction analysis are “trade secrets and confidential information” that must be withheld from the public until 2025.

It’s hard to imagine that, with all the bargaining leverage the federal government holds, it could not have negotiated a way to release the model’s final predictions without revealing trade secrets. NOAA should publish the agreement with RenaissanceRe Risk Sciences so the public can see what information the agency bargained away, to the detriment of its safety.

The PR nightmare that RenaissanceRe Risk Sciences is likely (hopefully) enduring following the Post's reporting is a perfect opportunity for agency lawyers to right this wrong and renegotiate so that people don't die in hurricanes in the name of corporate secrecy.

Exemption 4, Supreme Court worsen the problem

The contract’s dangerous language mirrors FOIA’s Exemption 4, which allows agencies to withhold trade secrets and confidential business information that have been submitted to the government. This exemption has been abused to hide information on the Supplemental Nutrition Assistance Program (more commonly known as food stamps), federal contractor diversity data, and privately run federal prisons.

The Supreme Court made matters worse by further expanding the interpretation of “confidential business information” in a controversial 2019 ruling. Justice Department guidance now gives federal agencies permission to call almost anything they receive from private industry confidential, as long as the government does not explicitly say it will publish the information when it receives it.

Placing business interests over public disclosure cannot be the precedent for public-private industry partnerships, and certainly not for projects that have the ability to save lives. It also goes against the United States’ commitment to open data and making taxpayer-funded research available to the public.

Withholding information on hurricanes also makes the work of other federal agencies, like the Federal Emergency Management Agency, more difficult. If people are not given the most accurate information to escape a natural disaster, it increases the likelihood they will need to rely on FEMA assistance to replace what they could not evacuate.

Going forward, it should not preemptively agree to withhold vital information from the public. NOAA should immediately reverse course and make its best hurricane predictions available, citing the clear and immediate harm members of the public will face if they do not have access to the data.

Hurricane Helene slammed Valdosta, Georgia, this morning. But NOAA hasn’t released the most accurate forecasting predictions for the storm. It keeps these and other models secret on spurious grounds of “confidential business information.”

As Hurricane Helene batters the Southeast, leaving at least six dead and millions without power, it leaves no doubt we are in the middle of an especially dangerous hurricane season. So why won’t the government’s weather forecaster release its most accurate predictions?

The National Oceanic and Atmospheric Administration says it can't disclose potentially lifesaving data because of stipulations in a 2020 agreement it signed with a private vendor, whose proprietary prediction analysis technique is incorporated into the NOAA-developed forecast model.

This secrecy wrongly places commercial interests above public safety.

NOAA’s misguided approach became clear this week, thanks to The Washington Post’s reporting on its Freedom of Information Act request to NOAA about why the agency is endangering families planning for deadly hurricanes. In response, NOAA released the terms of the agreement with the vendor, RenaissanceRe Risk Sciences, which specifies that forecasts using its prediction analysis are “trade secrets and confidential information” that must be withheld from the public until 2025.

It’s hard to imagine that, with all the bargaining leverage the federal government holds, it could not have negotiated a way to release the model’s final predictions without revealing trade secrets. NOAA should publish the agreement with RenaissanceRe Risk Sciences so the public can see what information the agency bargained away, to the detriment of its safety.

The PR nightmare that RenaissanceRe Risk Sciences is likely (hopefully) enduring following the Post's reporting is a perfect opportunity for agency lawyers to right this wrong and renegotiate so that people don't die in hurricanes in the name of corporate secrecy.

Exemption 4, Supreme Court worsen the problem

The contract’s dangerous language mirrors FOIA’s Exemption 4, which allows agencies to withhold trade secrets and confidential business information that have been submitted to the government. This exemption has been abused to hide information on the Supplemental Nutrition Assistance Program (more commonly known as food stamps), federal contractor diversity data, and privately run federal prisons.

The Supreme Court made matters worse by further expanding the interpretation of “confidential business information” in a controversial 2019 ruling. Justice Department guidance now gives federal agencies permission to call almost anything they receive from private industry confidential, as long as the government does not explicitly say it will publish the information when it receives it.

Placing business interests over public disclosure cannot be the precedent for public-private industry partnerships, and certainly not for projects that have the ability to save lives. It also goes against the United States’ commitment to open data and making taxpayer-funded research available to the public.

Withholding information on hurricanes also makes the work of other federal agencies, like the Federal Emergency Management Agency, more difficult. If people are not given the most accurate information to escape a natural disaster, it increases the likelihood they will need to rely on FEMA assistance to replace what they could not evacuate.

Going forward, it should not preemptively agree to withhold vital information from the public. NOAA should immediately reverse course and make its best hurricane predictions available, citing the clear and immediate harm members of the public will face if they do not have access to the data.

Israeli troops raid Al Jazeera's bureau in the West Bank on September 25, 2024.

We’ve said before that Israel’s assaults on Al Jazeera provide a real-time illustration of the dangers of the U.S.'s TikTok ban legislation and the power it gifts the government to muzzle its critics by invoking vague security threats.

Now Israel has escalated its efforts to silence Al Jazeera, raiding its newsroom in the West Bank and ordering it closed for 45 days. At the same time, the U.S. has expanded its targeting of foreign-owned platforms beyond TikTok, taking aim at Russian state media outlet RT with investigations and sanctions.

TikTok is not the same as RT — the latter is a state-owned media outlet that broadcasts Russian propaganda every day, while the former is a privately owned social media platform that China might or might not use to propagandize Americans.

But all three of these crackdowns — on TikTok, Al Jazeera, and RT — share two things in common. One, their proponents justify censorship by citing national security concerns stemming from the platforms’ alleged collaboration with adversaries, whether China, Hamas, or the Kremlin. Two, they cite no specifics, apparently hoping people will take for granted that their governments are cracking down on dissent with their interests in mind.

Israel sets a low bar

Any credibility Israel had when it comes to Al Jazeera (and it had very little) has unraveled since it first banned the network in May.

Its raid on The Associated Press the following month, based on the AP having sold pictures to Al Jazeera (as well as to thousands of other clients), clearly had nothing to do with Hamas or any other supposed national security concerns unique to Al Jazeera.

And any excuse for Israel’s latest raid on Al Jazeera’s Ramallah office was undermined when soldiers tore down the newsroom’s images of perhaps its best-known reporter, Shireen Abu Akleh. She’s the Al Jazeera journalist Israel previously apologized for killing in 2022 (although it still denies targeting her, despite investigations suggesting otherwise).

And it’s not as if Israel has limited its attacks on the press to Qatari-funded outlets like Al Jazeera. Its communications minister even tried sanctioning Israel’s own oldest newspaper, Haaretz, for criticizing the same war that Israelis themselves now protest en masse.

U.S. intentions in doubt

The U.S. has not raised any serious concerns about its close ally’s actions with respect to Al Jazeera (or any of its other press freedom violations, for that matter, from killing journalists to excluding them from the Gaza Strip). In fact, U.S. officials have themselves reportedly pressured Al Jazeera to soften its coverage of Israel.

So why should Americans believe that their government’s plans to ban TikTok, or, for that matter, to sanction RT, are any better intentioned or better supported by the facts?

On paper, the legislation authorizing the TikTok ban is, in many ways, worse than the Israeli law authorizing the Al Jazeera ban — at least Israel’s law requires the prime minister to obtain approval from the security cabinet or the government before any specific outlet is banned.

And our government has hardly articulated any stronger justification for banning TikTok than Israel has for banning Al Jazeera. The focus has been on things TikTok hypothetically could do — spy on or propagandize Americans — rather than anything it actually does.

But censorship in the name of national security, if it’s ever permitted at all, requires a concrete, imminent and severe threat — not the mere prospect of one. The government has not alleged — let alone proven — a threat from TikTok anywhere near as serious as the parade of horribles it claimed would unfold if the Pentagon Papers were released. Of course, the Supreme Court rejected those claims, the papers were published, and the sky didn’t fall.

The right to consume propaganda

The same goes for RT. We’re certainly not here to defend RT’s journalistic integrity (or lack thereof). But the First Amendment protects Americans’ right to consume foreign propaganda if they so choose. And that right is not dependent on whether the propaganda comes from an adversary or an ally.

As the Supreme Court said in 1945 — not a time when our government was unconcerned about foreign propaganda — the First Amendment “rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.”

Lauren Harper, our Daniel Ellsberg chair on government secrecy, wrote last week that the government has selectively declassified its conclusions about the threats posed by RT but not the underlying documents that might (or might not) substantiate them, and might (or might not) mitigate First Amendment concerns about sanctioning a news outlet for its content.

Why should Americans take officials at their word that the investigation is about anything more sinister than the network’s spreading of Kremlin propaganda?

They shouldn’t, especially when the same government asking for their trust says nothing as its ally abuses similar authority in plain sight to retaliate against journalists who criticize it.

A new decision by a federal court of appeals on Section 230 isn’t just nonsense; it could seriously undermine free speech online, including by journalists.

If it sounds backward to use the First Amendment to undermine a law meant to protect free speech, that’s because it is.

Yet that’s just what’s been done in a recent decision on Section 230 of the Communications Decency Act — the federal law that shields online services from legal liability for posts made by their users. A federal court of appeals used the First Amendment itself to sweep away many of the law’s protections for online content, including posts by journalists.

In late August, the court held that Section 230 doesn’t apply to claims based on platforms’ recommendation algorithms. Its decision allowed a case against TikTok to go forward, based on its algorithm recommending a “blackout challenge” video to a child who later died attempting it.

Distorting the First Amendment

The court of appeals claimed it was being guided by the Supreme Court, despite the fact that the justices have never weighed in on Section 230’s applicability to recommendation algorithms and even went so far as to sidestep the question last year.

Nevertheless, the appeals court said that a different Supreme Court decision holding that the First Amendment protects platforms’ choices about whether and how to display online content means Section 230 doesn’t protect them from being sued for those very choices.

Many have pointed out how nonsensical the court’s reasoning is, especially because Congress passed Section 230 to ensure First Amendment rights were protected online.

It’s possible the decision will be reversed, but if not, its practical effects could have dire consequences for journalists and everyone else who uses the internet.

To appreciate why, you need to understand two things: First, how much online speech the court of appeals’ decision applies to, and second, how platforms will likely respond to the court’s ruling.

Inevitable censorship of news

On the first point, the court of appeals’ decision seems to apply to everything posted on social media, because it’s all been sorted by some kind of algorithm. Platforms have to make choices about what content to display and how to display it, and they use algorithms to do it. If Section 230 doesn’t apply to content that platforms recommend, it’s hard to see what content it applies to at all.

Platforms can’t avoid this result by shutting off what most people think of when they hear about recommendation algorithms: those annoying systems that push content that users never asked to see. Even simple algorithms — like ones that show you only content posted by the people you follow or display content in reverse-chronological order — are still types of recommendation algorithms.

On the second point, how are platforms likely to respond to this decision? Because it means that platforms can’t rely on Section 230 for any user-generated content they recommend (which, again, is all content), they’ll be much more likely to aggressively remove content they believe could get them sued. But they’re not going to have a legal team parse every single post for liability risk — that would be prohibitively expensive. They’ll use flawed technological tools to detect risk and will err on the side of takedowns.

That, in turn, will lead to the overremoval of news from social media, especially news that’s critical of wealthy or powerful people or corporations who may sue. Imperfections in content moderation will also mean that platforms will overremove news stories about controversial or illegal matters even more than they already do.

It’s not just news on social media that will be impacted. Other online services, like search engines, also rely on Section 230 and also use recommendation algorithms. If Google or DuckDuckGo know they can be sued for “recommending” a news report that is potentially defamatory by ranking it highly in a user’s search results, they may delist it, making it much harder for users to find.

Without Section 230’s protections for content they algorithmically recommend, platforms will also remove content posted by regular internet users for fear of potential liability, meaning that everyday people will be less able to make their voices heard online. It will also mean that journalists may have a harder time finding information and sources about controversial topics online because it’s been removed.

The right way to respond to algorithmic abuses

While the court of appeals’ decision will be disastrous for online free speech if allowed to stand, that doesn’t mean that anger and concern over how platforms moderate content or use recommendation algorithms are unjustified. The toxic content allowed and recommended by platforms is horrifying, as journalists and researchers have repeatedly exposed.

The press must continue to investigate recommendation algorithms to uncover these problems. The public must pressure platforms to improve. Congress needs to pass comprehensive privacy legislation that prevents platforms from hoovering up the private information that powers some of the most noxious recommendation algorithms.

But excluding algorithmically sorted content from Section 230 won’t end recommendation algorithms, which are baked into how platforms sort and display content online. Instead, it creates a strong incentive for powerful platforms to silence journalism and the voices of individual users.

The court of appeals’ decision isn’t the end of online algorithms. But it may be the beginning of the end of online free speech.

RT’s office in Moscow. The Biden administration recently declassified intelligence findings to support new sanctions against RT, but did not declassify the documents themselves.

The Biden administration last week declassified information alleging that Russian state media outlet RT has, in the words of Secretary of State Antony Blinken, “engaged in covert information and influence operations and military procurement” on behalf of the Kremlin. The newly public information, released to bolster new sanctions against the news organization, did not include declassification of the underlying documents — only their findings.

This is the latest example of the Biden administration strategically declassifying U.S. secrets. It is a good initiative — and one that would be strengthened by declassifying the records themselves.

Failing to do so is a missed opportunity in the RT case for two reasons.

The first is that declassifying the records could help shore up support for a move that raises serious First Amendment concerns or questions of cherry-picked evidence. Releasing the underlying documents could also empower press advocates and other potential skeptics to mount an informed opposition to the administration’s efforts. That might not further the administration’s strategic goals but it is (or it should be) the American way.

Charges of military procurement and “information and influence operations” sound bad, but such allegations — and the documents they are based on — must be analyzed and challenged. Press freedom advocates have often been worried about these types of cases because it puts state-funded journalists in countries like Russia at risk of serious retaliation. Vetting the evidence is important for this reason, as is remembering that the documents in and of themselves should not be taken as the unbiased truth. They are pieces of evidence recording oftentimes subjective interpretations of events.

Americans should know exactly what kind of “information and influence” operations by state-sponsored media the government deems worthy of punishment. All state media outlets, including our own, seek to advance the interests of the government in some way, and Americans are constitutionally entitled to consume foreign propaganda if they so choose. If RT's alleged conduct is not starkly different from what other government media outlets do, then the investigation puts outlets worldwide at risk of retaliation.

Cherry picking evidence is also not an abstract concern. In 2003, for example, the Bush administration used bad intelligence from a debunked informant, codenamed Curveball, to justify its long-standing plan to invade Iraq. And the Biden administration has previously shown willingness to overlook free speech concerns when it contends that national security is imperiled without sharing any underlying evidence, including by supporting banning TikTok and prosecuting WikiLeaks founder Julian Assange.

The second reason is that declassifying documentary evidence is important during a presidential election season where one candidate has repeatedly made baseless and threatening claims about the press. Showing the public the details of Russian state media’s abuses — assuming the documents do so — would undercut politicians’ false equivalencies to conduct by American news outlets they don’t like.

The Biden administration’s secret-sharing program

The RT declassification is not the first time the administration has selectively downgraded classified information.

The Biden administration has repeatedly declassified intelligence on Russian activities in Ukraine. The effort was deemed so successful at countering Russian disinformation that it prompted the White House to build a “broad program to share secrets when it serves strategic goals,” according to a deep dive by Time magazine into the program. And while this approach to declassification is not new, the Biden administration’s method is unique both because it is a formal process that is centralized in the White House (as opposed to the intelligence community), and is used regularly, sometimes multiple times a day.

This effort has released information that helped de-escalate Serbian military buildup along the Kosovo border; undercut Chinese attempts to retaliate against the U.S. for then-House Speaker Nancy Pelosi’s visit to Taiwan; and persuaded Iran to stop supporting Houthi attacks on merchant ships in the Red Sea.

The National Security Council leads the program, but individual agencies like the CIA make the ultimate decision about whether information is declassified. This presents a challenge because “Intelligence officers who had classified secrets to begin with were loath to declassify them,” the Time report found. To address agency concerns, the Biden administration does not ask for full or finished reports, opting instead to ask for individual facts or data points. It then usually combines the declassified intelligence with open-source information for release to the press.

Show your work

White House-led declassification efforts should continue, but the administration itself has concluded that the program will only succeed if it has “enough credibility to overcome the U.S. history of bad intelligence and propaganda abuse.”

The solution is straightforward. Declassify the documents themselves. This would rebuff arguments that the intelligence being presented is cherry picked or weak.

The next time — and I do hope there is a next time — the administration strategically declassifies information, it should show its work and let the public see the documents. This won’t solve the crisis of overclassification, and declassifying strategically important documents should not take precedence over releasing records that reveal uncomfortable or politically inconvenient truths, but it is a step in the right direction.

Official Seal of the Muscogee (Creek) Nation, by Muscogee Red - Own work, is licensed under CC BY-SA 4.0.

The award-winning documentary “Bad Press” told the story of journalist Angel Ellis and her colleagues' fight to protect press freedom in the Muscogee (Creek) Nation, a Native American tribe based in Oklahoma.

It was one of a handful of tribes to codify protection for press freedom. And Mvskoke Media, the outlet Ellis works for, took full advantage of its rights, publishing the kind of critical reporting on tribal government that is sorely needed elsewhere in Indian Country.

But then the tribe’s lawmakers decided to repeal the Free Press Act, a move that allowed the tribal government to oversee and interfere in Mvskoke Media’s editorial decision-making, and withhold funding if it didn’t like the outlet’s content.

You can (and should) watch the film on The Criterion Channel for the rest of the story (use the code BadPress24 for a 20% discount). But the struggle for a free press on tribal land is by no means limited to one tribe or one outlet.

There's just no clear cut path to go into any of our tribal communities and accurately report on issues that could really raise the quality of life for our people.

We hosted an X Space conversation last week with Ellis, as well as Becca Landsberry-Baker, executive director of the Indigenous Journalists Association and Muscogee (Creek) Nation citizen, and Jodi Rave Spotted Bear, executive director of the Indigenous Media Freedom Alliance and citizen of the Mandan, Hidatsa and Arikara Nation.

Ellis explained that the development of press freedom protections on tribal land are, to an extent, in its infancy. “Reporting on indigenous issues is not emerging, but protecting it by policy is,” she said. “The most significant challenge for indigenous press freedom right now … is really access to information and having the safe space to advocate for good press freedom policy.”

Spotted Bear agreed, noting the absence of laws to ensure government records and meetings are open to the public. “There's just no clear cut path to go into any of our tribal communities and accurately report on issues that could really raise the quality of life for our people.”

That tribal citizens are also U.S. citizens protected by the First Amendment does not resolve the need for protections at the tribal level. First of all, tribal media outlets are usually dependent on tribal government for funding. “It's very hard to compete with the established news ecosystem for independent money. It's very hard to get,” Ellis explained.

She added, “I could go out and I could try to sell advertising to businesses, but they look at me and they say, hey, I'm trying to sell Ford pickups here. Why would I put an ad in your paper when I don't think the people who read your newspaper have enough money to buy my pickup?”

Seeking traditional legal remedies also poses challenges. “Can I appeal to the federal government as an American citizen, say that this tribe has violated my rights? Yes, it can be done, but you will be a pariah in your own community. Culturally speaking, you're going to be the person who has brought a federal suit against your family, basically,” Ellis said.

Further complicating things, Spotted Bear noted that each tribe is different. In her tribe, it’s more common to appeal to outside courts due to the lack of an independent tribal judiciary. But people attempting to do so are frustrated by seemingly never-ending inquiry about whether they’ve sufficiently exhausted their remedies at the tribal level first.

There are cultural issues in addition to legal ones, especially when it comes to contemporary notions of objectivity in journalism. Ellis used the example of a meeting followed by a meal: a mainstream journalist might skip the meal to retain their neutrality, but it’s “really rude not to [eat] in our community – if you’re coming to the meeting and there’s food, you’d better sit and eat, or else you’re pretty snobby.”

Every time an elected official of our tribe came to a community meeting to campaign, they were asked about press freedom, and they couldn't ignore it.

In Ellis’ view, connecting with communities she covers “enforce[s] that relationship of, hey, I'm a journalist, and I work for you to tell your story.” It’s a contrast from mainstream journalists who sometimes “come into a community, take some notes, take some names, and bounce the fuck out.”

While hesitating to disparage her colleagues, she noted that “the big consensus out there … as [to] what stories get precedence, and what stories get told is the only time mainstream cares about the reservation is when there's a big, sexy, scandalous story. Is the chief in handcuffs? They will show up then.”

Landsberry-Baker also highlighted the difference between tribal journalists who are accountable to their fellow citizens and outside journalists who are accountable to their news outlet. “You're able to do more nuanced coverage if you're a part of that community, because you know the tribal citizens, you know what your work is impacting. You know the stories, you know the history, you know the culture,” she said.

But tribal journalists need to balance that with the reality that many in the journalistic establishment – as well as law enforcement officers tasked with distinguishing journalists from activists – might not see it that way.

Bad Press was intended to show other tribal journalists a path toward overcoming the obstacles they face without relying on either U.S. courts or mainstream journalists. “We appealed to the community …Every time an elected official of our tribe came to a community meeting to campaign, they were asked about press freedom, and they couldn't ignore it. And so I think that when you talk about really advocating for good policy in Indian Country, it kind of starts and stays in the tribe,” Ellis explained.

But the film is relevant to all journalists and others who value press freedom, native or not. Landsberry-Baker called it a “beautiful tribute to the boots on the ground journalists.”

Ellis hopes the film will inspire all journalists to advocate for their own rights. Journalists “cannot be complicit in our own demise,” she said. “You can’t be a journalist without advocating for [press freedom], because that’s the world we live in.”

You can listen to the whole conversation here, or read an (imperfect AI-generated) transcript here, even if you don’t use X.

Director of National Intelligence Avril Haines before the Senate Armed Services Committee’s worldwide threats hearing this May. Haines has repeatedly said overclassification is a national security concern

Government secrecy functions as a control mechanism, and one that prevents the public from basic self-governance. That was the key takeaway from a 9/11 anniversary interview by Truthout with Lauren Harper, the first Daniel Ellsberg chair on government secrecy at Freedom of the Press Foundation (FPF).

On whistleblowers, Harper noted their fundamental importance but stressed that their protections “are not as robust as they should be, and these individuals should not face — or be expected to carry — the burden of fixing a system-wide crisis.”

She also highlighted the need for ongoing reporting on entrenched government secrecy. “People in the intelligence community and elsewhere work tirelessly their entire careers to keep information secret,” Harper explained. “Occasional reporting on specific examples of excessive secrecy is not enough to challenge that systemic tide.”

You can read the full interview here.