Freedom of the Press

Police in several states have withheld the names of officers involved in shootings or other altercations while on duty, citing Marsy’s Laws.

Image created by Harris Lapiroff using Midjourney, CC BY-NC

What if the names of the police officers who participated in the murder of George Floyd had never been made public, because they claimed they were the victims of an attempt by Floyd to resist his arrest? It may sound far-fetched, but if Minnesota had a crime victims’ rights law known as Marsy’s Law, it could have happened.

The original Marsy’s Law, passed in California in 2008, prohibited the release of victims’ confidential information to a defendant. But now, while the exact language of Marsy’s Laws differs from state to state, some newer versions prohibit the release of victims’ information to anyone.

That change opened the door to police officers using the law to hide their identities when they’re involved in on-duty incidents. Law enforcement officers around the country are arguing that Marsy’s Laws shield the names of officers who wound or even kill people while on duty. Police departments have relied on the laws to withhold officer names from press releases and even refuse to supply them in response to journalists’ public records requests.

The latest examples of this troubling trend are from Wisconsin and Ohio. In Wisconsin, the identity of a police officer who shot a suicidal man at the end of June has been withheld, even from court records, thanks to its Marsy’s Law. In Ohio, the Columbus police department is withholding the names of the officers involved in four separate fatal shootings in July and August, citing its Marsy’s Law. In one instance, the Columbus police are refusing to release the names of all eight officers involved in a shootout on a highway that left one person dead.

Incredibly, officers in states with Marsy’s Laws have claimed to be victims even when the other person involved in an incident did nothing to harm them. For example, police in Florida cited the provision in refusing to release the name of the officer who chased and tried to pull over a 13-year-old boy riding a dirt bike. The boy crashed and died. It’s nonsense for the pursuing officer to claim he is the “victim” in that scenario. But this type of claim is common. According to one investigation, “Officers sustained no injuries in at least half of the incidents for which they claimed victims’ rights.”

Protecting the rights of actual crime victims is important. But officers involved in altercations while on the job shouldn’t be considered “victims'' entitled to keep their information private. Police are using Marsy’s Laws to hide from public accountability and scrutiny. The public has a right to know what individual police officers are doing in their official capacity, on behalf of the public. Withholding officers’ names makes it harder for journalists to report about police actions, and for the public to hold both individual officers and law enforcement institutions responsible for misconduct.

Without officer names, the press and the public couldn’t identify officers who repeatedly violate the law or police rules. For example, if an officer who shoots a suspect can demand that their name be withheld from news reports, the public will be unable to look at past reporting to determine if a particular officer has a pattern of shootings. And journalists’ investigations into bad cops will also be stymied if police names can be scrubbed from public records.

A 2020 investigation by USA Today and the Invisible Institute, for instance, used misconduct reports to identify nearly 2,500 officers who have been investigated on 10 or more misconduct charges and 20 officers who “faced 100 or more allegations yet kept their badge for years.” That investigation would have been impossible if these officers could withhold their names under Marsy’s Laws.

Even states that don’t have Marsy’s Laws are negatively impacted by them. By potentially shielding the names of problematic officers from disclosure, the laws make it easier for them to move to states and continue to work in law enforcement. Journalists have relied on being able to report the names of officers found guilty of misconduct in one state when they simply move on to work in another.

It’s been years since police first started claiming to be victims entitled to keep their names secret under Marsy’s Laws, and legal battles over this issue are playing out in at least one state. There’s ample notice of the law’s anti-transparency impact. Yet campaigns to pass Marsy’s Laws in other states continue without acknowledging this fundamental flaw.

Lawmakers in states without Marsy’s Laws should reject any version that allows police officers to keep their names secret, and states with this law on the books should amend it to prevent law enforcement misuse. When police officers carry out their official duties, they’re acting on behalf of the public. Laws that wrongly hide their names, including from journalists, do a disservice to the public — and ultimately to real victims.

The outrageous raid of the Marion County Record got plenty of coverage. But it's far from the only noteworthy recent press freedom violation.

Kansas Reflector/Sherman Smith. Used with permission. Original image available at https://kansasreflector.com/2023/08/16/with-return-of-marion-county-record-equipment-the-time-has-come-for-answers-and-consequences/

The Aug. 11 police raid in Marion, Kansas, shocked the nation — and rightfully so. It was a uniquely egregious assault on the press and it might have actually killed someone.

The raid was outrageous, its aftermath tragic. Still, it was heartening to see the media focused on press freedom. Hopefully that continues. But here are ten other ongoing violations of journalists’ rights that, unlike Marion, are not getting the coverage they deserve.

The other raid: The FBI raided Tim Burke’s home in May after he published outtakes of Tucker Carlson’s interview with Kanye West, which Burke says he found on a public website. The government hasn’t explained how he broke the law. And in court papers this month, it questioned whether he’s entitled to protections for journalists. That’s worrisome, especially coming from the same Department of Justice prosecuting Julian Assange. Burke, like Assange, published information of public interest. That’s journalism and it’s protected by the First Amendment, regardless of whether they work for established outlets. And if the raid proves as baseless as the one in Marion, it deserves the same condemnation.

California clawback: The City of Los Angeles sued journalist Ben Camacho to get back photographs of undercover cops it inadvertently provided to him. One problem: The Supreme Court has held repeatedly that once the government releases records, even accidentally, it cannot claw them back nor restrain publication. But Judge Anthony Mohr ignored the law and let the lawsuit proceed. Why he thinks police secrecy is the exception to the rule against “prior restraints” is anyone’s guess.

Silenced in St. Louis: In May, Judge Elizabeth Hogan barred the St. Louis Post-Dispatch from publishing information it obtained from a court website. Three months and several continuances later, the paper is still barred from publishing. Hogan held a hearing last week only to kick the can down the road again. Even if she withdraws her unconstitutional order, the damage is done. As the Supreme Court explained, "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."

Gagged in Greensboro: The Supreme Court has also held that judges who allow journalists into juvenile courts can’t stop them from publishing what they hear. But Judge Ashley Watlington-Simms in Greensboro, North Carolina, nonetheless barred journalist Kenwyn Caranna from covering a hearing she was allowed to attend, even seizing her notes. Most reporters carefully consider privacy concerns when covering minors. But that’s a decision for journalists — not judges. Judicial seizures of reporters’ notes should never happen in this country.

Censorious SLAPPs: In contrast to Marion, where a restauranteur’s complaint prompted a newsroom raid, the more common playbook for the powerful is drowning critics in legal fees from strategic lawsuits against public participation, or SLAPPS. The New York Times recently wrote about a Wisconsin state senator’s abusive lawsuit and appeal over an article reporting he used a homophobic slur. The ordeal has cost the nonprofit news outlet he sued almost $150,000 so far and may put it out of business.

Prosecuting photography: Photojournalist Stephanie Keith was arrested in May for photographing a vigil for Jordan Neely. This month, prosecutors agreed to an “adjournment in contemplation of dismissal.” That basically means they’ll dismiss the case as long as Keith behaves for the next six months. We understand why Keith would accept that deal rather than waste time fighting baseless charges. But what message does it send when, to avoid prosecution, authorities force a journalist to promise not to … do what exactly? Take pictures?

Ohio’s intimidation tactics: Ohio journalist Derek Myers was charged last year with wiretapping for publishing a source’s recordings from a murder trial. Prosecutors, rather than embarrass themselves in court (the Supreme Court has held journalists are not responsible for sources’ illegal recordings), let their deadline to pursue the case expire this month. As we’ve said, “Officials don’t file these kinds of cases to win but to intimidate.”

Confidentiality undermined: Federal Judge Christopher Cooper ordered journalist Catherine Herridge to identify confidential sources this month. She’s appealing. As we told CNN, “Requiring journalists to reveal their confidential sources deters whistleblowers and others from coming forward.” The case underscores the need for the bipartisan PRESS Act “to make clear that reporters can’t be forced to burn their source.”

Lawmakers play editor: Two legislators — including one known for toting guns in front of Christmas trees — introduced a resolution that condemned “irresponsible and sensationalistic” coverage of mass shootings and then made unsolicited “recommendations” to the press. Ironically, those behind the resolution have previously insisted government attempts to influence content are illegal censorship. They should practice what they preach — Americans don’t elect representatives to tell journalists how to do their jobs.

Kansas code of silence: Back in Marion, Record publisher Eric Meyer says the paper investigated why Police Chief Gideon Cody left his prior job in Kansas City before orchestrating the raid. The Kansas City Star reports Cody was under disciplinary review, but police won’t release complaints against him, citing open records exceptions for documents generated during investigations. Obviously, the complaints predate any investigation. It’s the latest abuse of investigative exceptions to open records laws. Marion residents deserve to know the truth about the chief who brought “Hitler tactics” to their town of 1,902.

What can be done

In the Record’s case, Meyer says the paper may sue, and victims of anti-press antics should do so whenever possible. Journalist Bryan Carmody settled for almost $400,000 after San Francisco police raided his home in 2019. Oakland journalist Timothy Ryan also recently settled for $400,000 after he was injured by police in 2020. Settlements like those not only compensate journalists for damages but force officials to think twice about retaliating against the press.

But Marion shows that journalists cannot rely solely on the legal system for recourse — many press freedom violations are perpetrated or enabled by a judiciary that clearly needs a refresher on the First Amendment. Until then, journalists and others should continue calling attention to abuses. Perhaps the court of public opinion will better serve the press than a court of law.

A police raid on the Marion County Record has sparked a firestorm over press freedom. The Record needs and deserves our support.

Kansas Reflector/Sam Bailey. Used with permission. Original image available at https://kansasreflector.com/2023/08/12/police-defend-raid-on-kansas-newspaper-amid-backlash-over-brazen-violation-of-press-freedom/.

If you care about press freedom, you’ve probably heard about the alarming police raid on the Marion County Record. Based on the flimsiest of legal excuses — a local business owner accused the Record of violating her privacy by checking her driving record on a state website — police searched the newsroom and home of the paper’s publisher, carting off computers, phones, and other devices. One of the Record’s co-owners, Joan Meyer, died the next day.

Five days after the raid, officials withdrew the search warrant and returned all of the seized items to an attorney representing the Record.

The Record is a small newspaper with a circulation of about 4,000. Among the items seized were servers that had the only copies of the ads meant to appear in the next edition. Incredibly, the Record’s staff was able to publish on time, despite the raid. And its circulation has rocketed by 50%.

Eric Meyer, editor and publisher of the Record, told KSHB-TV in Kansas City, “Without the outpouring of support on this, we'd probably be out of business right now.”

You may be wondering what you can do to help the Record and fight back against this outrageous attack on press freedom. Here are three ideas:

1. Support the Marion County Record financially

The Record could undoubtedly use all the financial support it can get. You can subscribe to its online edition for a year for just $34.99. Perhaps you’d like to get the word out about how you feel about the raid, press freedom, and First Amendment rights? You could buy a classified ad in the Record to make your views known.

The Record also faces legal costs — both from fighting back against the raid and, potentially, future legal action it can (and, in our view, should) take against the authorities who violated its First Amendment rights. The Society for Professional Journalists (SPJ) has pledged to cover up to $20,000 in legal fees for the newspaper.

You can donate to SPJ’s Legal Defense Fund and earmark your pledge for the Record by checking the “Dedicate this Gift” box and writing “Marion Record” in the name field when you donate (for now, SPJ has a banner on top of its site specifically for Marion donations to make it even easier).

2. Honor the memory of Joan Meyer

Record co-owner Joan Meyer’s funeral is planned for this Saturday. Before she died, Meyer condemned the raid on the Record as “Hitler tactics.” According to her son, she also asked repeatedly, “Where are all the good people who are supposed to stop this from happening?”

Let’s honor Meyer’s memory by making sure something like this doesn’t happen again. Speak out on social media in memory of Meyer and in support of press freedom on Saturday.

Consider paying your respects in person, if you are able to attend the funeral. According to Max Kautsch, counsel to the Kansas Press Association, “Kansas Press Association members from across the state plan to honor Joan by attending her services on Saturday. … [T]he KPA will show our support by simply showing up and celebrating the life of Joan and supporting Eric [Meyer] and the Marion County Record.”

Meyer’s family has also asked that donations in her memory be made to the Kansas Newspaper Foundation in care of Jost Funeral Home at P.O. Box 266 in Hillsboro, Kansas 67063.

3. Pressure Marion Police and government officials over the raid

The raid has been widely condemned by press freedom organizations, journalists, and news media outlets, garnering national and international attention. According to Kautsch, “Due in no small part to the outpouring of support for the Marion County Record in the aftermath of the search of its newsroom, the government officials responsible for the raid ought to have a better understanding of the First Amendment this week than last.”

But we can’t allow this story to fall off the radar as the public, press, and officials move on to the next day’s news.

The warrant may have been withdrawn, but the government isn’t being transparent about what happened or how police could get a search warrant for an apparently illegal raid — which authorities now admit had no connection to any alleged “crime” — in the first place. Police have refused to answer questions from reporters about the raid. There are also questions about Cody’s own past that need answering, especially given that the Record was reportedly investigating him before the raid.

This lack of transparency is wrong. The raid itself was wrong. If you live in Kansas, write to your government officials to ask them to demand transparency, including the immediate release of the search warrant application and a full investigation into how the raid came to be. Wherever you live, write a letter to the editor of your local newspaper or post on social media to call attention to the raid and other press freedom violations. Call on the Department of Justice to investigate potential violations of constitutional rights, as it has in other instances where police suppressed protected speech. Use your voice to speak up for press freedom.

In addition to helping the Record, support local journalism in your own community

The Record is just one example of a local newspaper punching far above its weight to inform its community. Consider supporting journalism in your own area by subscribing to a local news outlet or making a donation to a local nonprofit newsroom.

Contact your member of Congress to urge them to support the Community News and Small Business Support Act, a bill that would also go a long way toward increasing funding for local journalism. While we hope no other newsroom will face a similar situation to the raid on the Record, it’s important to ensure a thriving local press that has the resources to protect itself and resist pressure from police or others.

The Marion County Record is fighting back in the face of this stunning assault on its First Amendment rights. Now is the time to take a stand and show them “the good people” are with them.

The Marion County Record newsroom.

Sam Bailey/Kansas Reflector

FOR IMMEDIATE RELEASE:

Freedom of the Press Foundation (FPF) welcomes the withdrawal of the search warrant issued against the Marion County Record and return of the equipment and other items seized by law enforcement. But authorities can’t undo the harm they’ve done or give Joan Meyer her life back.

FPF Director of Advocacy Seth Stern said, “Authorities deserve zero credit for coming to their senses only after an intense backlash from the local and national media and an aggressive letter from the Record’s lawyer.”

The Record and its journalists never should have been subject to this chilling search in the first place. “Anyone should have realized that sending the entire police force to search a newsroom because journalists verified information from a source is an outrageous overreaction that threatens freedom of the press,” said FPF Deputy Director of Advocacy Caitlin Vogus. “This raid never should have happened.”

“The Record did nothing wrong, and yet police decided to raid the newsroom and the journalists’ home and take every piece of equipment they have, jeopardizing the Record’s ability to continue publishing,” added Vogus. Police injured a reporter during the newsroom raid and, not only that, but longtime Record journalist and co-owner Joan Meyer collapsed from stress and died the day after the raid on her home.

Stern noted that it’s not uncommon for the government to quickly abandon cases against journalists. “These kinds of frivolous abuses of the legal system to attack the press are intended not to win but to intimidate journalists. Usually, after accomplishing that goal, authorities are able to drop charges quietly to avoid embarrassing themselves in court. It’s good that this time the process is playing out publicly, thanks to the media attention this case rightfully received.”

Dropping the warrant is just the first step that officials must take. “The Record and the public deserve to know why the Marion Police decided to conduct this raid and whether they gave even a moment’s thought to the First Amendment or other legal restrictions before they decided to search a newsroom,” said Vogus.

We call on the Kansas Bureau of Investigation and other officials to conduct a full and transparent investigation into the decision of the Marion Police to raid the Record and the application made to the court seeking authorization for a search warrant. Judicial authorities should examine the decision of Judge Laura Viar to sign the search warrant and why that decision was entrusted to a magistrate judge with less than a year’s experience.

Finally, the Record has suggested that it may sue, and it should. The withdrawal of the search warrant doesn’t change the fact that police rifled through the Record’s newsroom, seized almost all of its equipment, and likely contributed to the death of its 98-year-old co-owner.

“Government officials who think they can raid a newsroom should be on notice that there are consequences for searches that violate the law,” Vogus said. “The Record should sue not only to deter future searches of its newsroom, but to protect journalists and news outlets around the country from future illegal raids.”

Officers raiding the Marion County Record hoped out loud that the devices they seized were not encrypted so they could illegally search them.

Marion County Record

Last Friday’s raid of the Marion County Record has captured national and international media attention and is shining a much-needed spotlight on the erosion of press freedom in the U.S. Hopefully the raid and its tragic aftermath (the Record’s 98-year-old co-owner, in shock from the ordeal, died the next day) prompts the reversal of that troubling trend.

But until then, journalists and newsrooms need to adapt to the current reality that many U.S. law enforcement officers and judges — from Marion to Manhattan — couldn't care less about the First Amendment. And part of that adaptation means that journalists’ devices and communications must be encrypted.

If you’re not convinced, just watch the video of the raid in Marion, which shows (at around 2:44) a police officer, while seizing multiple devices, commenting, “I don’t believe that this is encrypted so I think we’re OK.”

We’re not here to blame the Record — they’re the victims in this fiasco (and for all we know, the officer was wrong and the devices actually were encrypted). Many journalists, especially at smaller, local news outlets like the Record, may not give much thought to the prospect of police ransacking their newsrooms and homes over routine efforts to verify news tips using public records. That's understandable, given that their newsgathering is protected by both federal and state law and the Constitution. Yet here we are.

Our Digital Security team responded to the raid with a guide for journalists and newsrooms on how to prepare for a Marion-like situation, including how you can encrypt your computers and cell phones now if they are not already.

“When seizing a device,” our Principal Researcher Dr. Martin Shelton wrote, “law enforcement officials hope yours is unencrypted because an encrypted device is significantly more time consuming to examine without your permission.” That means cops are far less likely to recover confidential source communications and newsgathering materials from an illegally seized device if it's encrypted.

Our team has also published numerous guides and resources for newsrooms looking to improve their digital security practices, through encryption and other means. And we welcome any journalists or publishers to contact us to arrange a digital security training session so we can help them adapt to the threats journalists now face.

Federal courts used technology to conduct civil trials remotely during the pandemic, as in this virtual civil trial in the Middle District of Florida.

United States Courts.

When the first civil trial over the Flint water crisis began in February 2022, the COVID-19 pandemic meant that the federal court in Michigan couldn’t let everyone who wanted to attend in the door. The case was important both locally and nationally: Four children exposed to lead in the drinking water had sued two engineering firms, accusing them of failing to conduct critical testing and treatment. But how could journalists and the public watch the trial, when social distancing requirements barred many of them from the courthouse?

Thankfully, the Judicial Conference — a policymaking body for federal courts — had made an exception to their long-standing ban on broadcasting court proceedings early in the pandemic. The exception allowed judges, including for the Michigan court, to use technology to allow the public to access both criminal and civil cases remotely. Reporters used that remote access to cover the entire Flint water trial, which ended with a deadlocked jury.

Letting the press and the public observe court proceedings from afar became commonplace during the pandemic. The public watched as former Police Officer Derek Chauvin was convicted of murdering George Floyd. It listened to a failed attempt by the Trump campaign to overturn the election results in Pennsylvania. It even heard someone — potentially a Supreme Court Justice — flush a toilet during oral arguments. (More importantly, it also heard live audio of oral arguments in numerous groundbreaking cases.)

Now that the pandemic has ended, however, that remote access is starting to be rolled back. The ability for judges to broadcast criminal proceedings in federal court, which had been authorized by statute, ended on May 10. The authority to provide remote audio access to civil and bankruptcy proceedings, which was established by a Judicial Conference policy, is set to expire on September 21.

According to news reports, the Judicial Conference will consider a new policy in September that would maintain remote public audio access for civil and bankruptcy cases. However, unlike during the pandemic, remote audio access would be allowed only in proceedings that don’t have witness testimony.

There’s no reason for the Judicial Conference to take this half-measure. Experience from the pandemic shows that it’s possible to provide remote public audio access to witness testimony, and that the public and the press benefit from that access. In the Flint water trial, for example, news outlets repeatedly reported about newsworthy witness testimony that they only had access to because they could listen to it remotely.

That’s why a coalition of 33 civil society and news media organizations, led by Freedom of the Press Foundation (FPF) and judicial watchdog group Fix the Court, has urged the Judicial Conference to adopt a new policy that continues to permit remote public audio access to civil and bankruptcy proceedings, including those in which a witness testifies. Our full letter to the Judicial Conference is below.

Simply put, the Judicial Conference shouldn’t reverse pandemic-era changes that made it possible for more members of the public and more journalists to listen to trials. Most people can’t go to newsworthy trials in person, especially if they don’t live near the courthouse. Remote audio access opens up court proceedings worldwide, so anyone who’s interested can listen in. These advances in technology allow for greater public access and should be embraced, not limited.

Of course, we also have the technology to provide even better access to court proceedings through video broadcasts. Because the Judicial Conference isn’t considering video broadcasts at its September meeting, the coalition letter doesn’t address that issue. But in FPF’s view, courts at all levels, from the Supreme Court on down, should give the public full video and audio access to all proceedings.

However, until cameras are finally allowed in courtrooms, remote public audio access is the next best thing. The pandemic proved that federal courts can offer remote public audio access to court proceedings, including witness testimony. It showed that journalists use this access to inform the public. Let’s not end or change a policy that’s provided so much benefit to the press and the public just because a terrible public health emergency is over.

Marion County Courthouse

Spacini at English Wikipedia, CC BY-SA 3.0

FOR IMMEDIATE RELEASE: Law enforcement officers in Marion, Kansas reportedly raided a local newspaper’s office and its publisher and owners’ home, seizing computers, cell phones and other materials and injuring at least one journalist in the process. The publisher of the Marion County Record said it’s unclear how the paper will be able to publish its next edition.

“Based on the reporting so far, the police raid of the Marion County Record on Friday appears to have violated federal law, the First Amendment, and basic human decency. Everyone involved should be ashamed of themselves,” said Seth Stern, Director of Advocacy for Freedom of the Press Foundation.

The raid was apparently prompted by the Record receiving a tip from a source about a restaurant owner’s drunk driving conviction. “There is nothing illegal about obtaining or verifying a tip from a source,” said Stern.

The paper decided against reporting on the drunk driving conviction (which the restaurant owner reportedly admits) but, according to the Record, the entire police department along with sheriff’s deputies conducted the raid, pursuant to a warrant, unsupported by the required affidavit, vaguely alluding to “identity theft.” The warrant, signed by Judge Laura Viar, provided for seizure of a virtually limitless range of records and devices, and made no effort to protect confidential source communications.

Personal electronics used by the paper’s 98-year-old co-owner Joan Meyer, including a smart speaker she uses to ask for assistance, were among the items the Record says were seized. Officers also reportedly photographed personal financial statements of Meyer’s son and Record co-owner and publisher, Eric Meyer, and made the paper’s staff stand outside for hours during a heat advisory, unable to work.

The Record said it will sue, and it absolutely should. “This looks like the latest example of American law enforcement officers treating the press in a manner previously associated with authoritarian regimes. The anti-press rhetoric that’s become so pervasive in this country has become more than just talk and is creating a dangerous environment for journalists trying to do their jobs” said Stern.

Earlier this year, McCurtain County, Oklahoma officials were caught on tape fantasizing about murdering local journalists. And authorities in Asheville, North Carolina put two journalists on trial for reporting on police evicting a homeless encampment and banned them from city parks.

The prosecution of a former government official accused of murdering reporter Jeff German, pictured here, has sparked a legal battle that threatens to erode Nevada’s reporter’s shield law.

Harrison Keely, via Wikimedia Commons, CC BY-SA 4.0.

The tragic murder of Las Vegas Review-Journal reporter Jeff German — allegedly committed by a county official whom German was investigating — was already a nightmare scenario for those who care about protecting journalists and the free press. Now, a legal battle over demands to search German’s phone and other devices threatens to exacerbate the harm to press freedom by weakening Nevada’s reporter’s shield law, currently considered one of the strongest in the country.

We’ve written before about prosecutors’ efforts to search German’s devices and the Review-Journal’s objection. The newspaper has argued that the search could reveal German’s confidential sources — including for the very reporting over which he may have been murdered — and that the First Amendment and Nevada shield law forbid it. Unfortunately, the district court judge has been sympathetic to the prosecution, drafting an order that would allow two police detectives and two prosecutors to search the devices.

Thankfully, the district court doesn’t have the final say. The Review-Journal has appealed to the Nevada Supreme Court. More than 50 press freedom and media organizations, led by the Reporters Committee for Freedom of the Press and joined by Freedom of the Press Foundation (FPF), filed an amicus brief in support of the newspaper, pointing out that the state Supreme Court’s decision could impact all Nevada journalists and the public’s access to newsworthy information.

The whole purpose of the Nevada shield law is to encourage the free flow of information to the public by assuring sources that reporters can’t be forced to violate promises of confidentiality. There’s nothing in the law that says a reporter’s death ends the privilege. That makes sense, since a reporter’s death doesn’t lessen the risk to a confidential source whose identity is divulged.

It would be perverse to allow prosecutors and police to weaken a key protection for journalists and their sources in the name of prosecuting a man accused of murdering a reporter. The district court’s ruling was also completely unnecessary. The Review-Journal had offered to waive its privilege if independent special masters were appointed to review the data from the devices, to first determine whether the data is even covered by search warrants that have been issued. (On appeal, the newspaper is asking the Nevada Supreme Court to hold that the devices can’t be searched at all. But, if the court doesn’t make that ruling, it asks the court to apply this protocol.)

The district court, however, rejected this reasonable request. Instead, it prefers to allow searches by the very police and prosecutors whose colleagues may have been confidential sources for German over the years. The district court may believe that its confidentiality order guarantees there won’t be any leaks of source names within law enforcement or the district attorney’s office. However, that’s unlikely to reassure sources who may have risked their careers and personal relationships to speak to German and who entrusted him, not cops and prosecutors, to keep their identities secret.

If the Nevada Supreme Court doesn’t rule for the Review-Journal, it won’t be just German’s sources that are at risk. All confidential sources in Nevada will have to think twice before speaking to a reporter if they know the reporter’s death makes her promise of confidentiality meaningless. That’s bad for reporters, sources, and the public. If Nevada’s shield law, which has been in place for half a century, is to remain robust, the Nevada Supreme Court must bar the search of German’s devices.

Journalists have long learned about breaking news by listening to police radio chatter, but a new trend of encrypting police radio channels threatens their access.

Guian Bolisay, via Flickr, CC BY-SA 2.0.

Just a few years ago, the New York City Police Department ran a failed anti-encryption campaign. Now, it’s actually found a form of encryption it does like. Unfortunately, it’s not the good kind.

Instead, the NYPD is the latest law enforcement agency to follow the troubling trend of encrypting police radio channels that were once open to the public. Police forces from California to Maine — and in many places in between, like Colorado, Illinois, Indiana, and Virginia — have recently switched to encrypted radio as they’ve updated their communications systems to use modern technology.

Yet reporters have used radio scanners for decades to learn about breaking news through police radio chatter. This real-time access lets newsrooms quickly send reporters and photographers to the scene of public emergencies, crimes, and police activity. Some freelance journalists have made careers out of tracking police activity through their radios and reporting the resulting news online.

The public benefits of access to police radio by journalists are well documented. As one New York news outlet described:

For instance, in 2017 when Sayfullo Saipov drove a rented U-Haul onto the West Side bike path, police scanner chatter provided vital information to avoid affected areas until the situation was under control.

Similarly, just this week, it was police scanner chatter that told the media and the community about the crane collapse in Hell's Kitchen, allowing them to stay informed and take necessary precautions.

Despite these benefits and public assurances that encryption wasn’t coming until late 2024, six precincts in Brooklyn quietly made the change to encrypted radio last month. Maybe the NYPD hoped no one would notice this secret switch. Or maybe it just didn’t care enough to inform the public about the change.

But the public and the press did notice, and they demanded an explanation. Unsurprisingly, the NYPD raised vague safety concerns as its main justification for the change. It claimed that it had “a lot of examples that we can share with the media” of radios being used against police. But when pressed by reporters, it offered just a single incident from 2016, when a man “took over a department radio frequency to make multiple verbal threats” against an officer.

This single example doesn’t come close to justifying wholesale encryption of police radio communications. If the NYPD’s true concern is about unauthorized transmissions, it could encrypt the "input" side to allow only authorized equipment to transmit, while automatically decrypting the “output” side to continue timely listener access.

Meanwhile, New York City Mayor Eric Adams invoked the idea of “bad guys” listening in on the police radio so they “can see when we’re responding to a crime.” Of course, he’s offered no examples of a time when this has actually happened in New York City. (There have been isolated reports of criminal suspects listening to police radio — like this officer safety bulletin from Maryland warning of “several” recent incidents but actually recounting only one.)

Vague notions straight out of Hollywood about how to stop bad guys aren’t enough to justify a total ban on public access to police radio. There’s simply no evidence that this supposed problem is so pervasive or widespread that we need to shut the public out. In contrast, the public good that access does is evident in news reports on a daily basis.

So what’s the real reason behind this change at the NYPD and other police forces? It could be that news reporting on crime puts pressure on government officials responsible for combating it. Making it harder for journalists to report about crime makes it easier for governments to sweep it — and information about what police are up to — under the rug.

In the face of public outcry over the underhanded way it began to encrypt its radio channels, the NYPD has promised to explore “whether certain media access can be facilitated,” including by examining methods used in other jurisdictions. Of course, it also promised not to encrypt radio until next year, so perhaps we should take its word on media access with a grain of salt.

But there’s no panacea in ideas to allow some access that other places have tried. Chicago, for example, allows public access but with a 30-minute delay. That makes the scanners almost useless for breaking news coverage, since the news might be over by the time reporters learn about it and arrive on the scene.

In Las Vegas, police gave “media outlets” continued access after encrypting their radio communications. But this kind of exception excludes watchdog groups and the public. It may exclude freelance journalists too, if only accredited news outlets are considered “media outlets.” It could also let police play favorites, granting access to outlets that cover police favorably and denying access to their critics.

Rather than exploring options to make its terrible decision slightly less bad, the NYPD should leave its radio channels unencrypted. They’ve been that way for decades without serious incident, and outdated infrastructure can be upgraded without paying extra to radio system manufacturers for the privilege of encryption. There’s no justifiable reason for the NYPD and other police forces’ decision to encrypt radio communications. It’s time to buck this anti-transparency trend.

Sen. Mike Lee

Gage Skidmore, CC BY-SA 2.0

We joined Utah First Amendment lawyer Michael Judd in commending Sen. Mike Lee for supporting the PRESS Act and encouraging other legislators to do the same.

Our op-ed in the Salt Lake Tribune explained:

“The PRESS Act is the strongest journalists’ ‘shield’ bill ever introduced. It restricts the government from spying on journalists or forcing them to burn sources, except in serious emergencies. It protects not only mainstream media but alternative publications and freelancers, with no regard for politics, because the First Amendment isn’t only for establishment-approved viewpoints.

….

News sources do not risk their careers when they fear the government will force reporters to out them. That means journalists can’t expose malfeasance, the public misses important news and voters arrive at the ballot box less informed. As Lee said, ‘in a world where information is power, the role of reporters as truth-seekers and watchdogs cannot be understated.’”

The PRESS Act unanimously passed the House Judiciary Committee with broad bipartisan support last month. The Senate bill is sponsored by Democrats Ron Wyden and Dick Durbin, along with Lee, a Republican. Other Republicans from Lindsey Graham to Jim Jordan have previously joined Democrats including Chuck Schumer in supporting journalist’s shield bills.

You can tell your representatives to support the PRESS Act here.

Fox News owner Rupert Murdoch.

Hudson Institute, via Flickr, CC BY 2.0.

It remains to be seen whether Fox News’ $787 million defamation settlement with Dominion Voting Systems — and the embarrassing revelations that preceded it — will lead the network to rethink its journalistic standards. But in the meantime, the case has prompted politicians and others to take shortsighted shots at Fox at the expense of the First Amendment.

Case in point, a new bill prompted by the settlement would stop corporations from claiming tax deductions on defamation settlements and judgments. “Taxpayers shouldn’t have to foot the bill for multi-billion-dollar companies like Fox News when they get caught selling malicious lies that are damaging our democracy,” said Sen. Sheldon Whitehouse to The Lever, after introducing the Denying Expenditures for False Accusations with Malicious Effect (DEFAME) Act.

Sounds reasonable, at first glance. And we’re certainly not here to defend Fox’s election coverage or shed any tears for Rupert Murdoch. But then again, all lawsuits allege that the defendant did bad things. Why should cases involving speech — especially political commentary by the press — be singled out from those involving fraud, employment discrimination, product liability, and dozens of other kinds of legal claims that corporations pay to resolve every day?

Maybe no corporate legal payments should be tax deductible. Some may argue deductions incentivize companies to settle cases so victims can be compensated. Others may say they reward bad corporate behavior. That’s a fair debate. If Congress eliminated all deductions for payments to resolve lawsuits, we wouldn’t ask to exempt the press.

But, as long as payments to resolve nonspeech-related claims against nonmedia companies are deductible, it’s constitutionally problematic to treat defamation payments by the press differently. The First Amendment requires limitation, not expansion, of punishment for speech — even false speech. Fox may have drawn Whitehouse’s ire this time around, but what disfavored speaker will the next lawmaker target?

It’s particularly disturbing that Whitehouse readily admits his bill is aimed squarely at Fox. Bills targeting specific people or companies for punishment are unconstitutional bills of attainder. And, under the First Amendment, the constitutional problem is compounded when the victim is the press because of its political commentary. It’s the role of the courts to dole out consequences for past bad acts. When Congress gets involved, politicization is inevitable.

The “good” part of the bill’s targeting of Fox is that it’s unlikely to actually affect anyone else. It’s limited to settlements over $500 million by companies with over $10 billion in revenue. Not many will satisfy those criteria. But once we crack open the door to singling out disfavored speakers it’s a matter of time before it's kicked down. And the slippery slope isn’t just hypothetical — there’s already a House bill, the No Taxpayer Bailout for Defamation Act, introduced by Rep. Brandan Boyle, that does not include the same limits and would affect your community's struggling local paper just the same as cable news behemoths.

Unfortunately, the DEFAME Act and its nonacronymized House counterpart are not the only recent attacks against Fox that are sure to backfire. A former commissioner at the Federal Communications Commission, joined by media professionals who should know better, objected to the renewal of a local TV station’s license because it’s under the same ownership as the Fox News cable network. One of them argued that the station’s license shouldn’t be renewed because “the adjudication of the Dominion case unequivocally established that Fox News Channel repeatedly disseminated false news.”

The Philadelphia station, WTXF-TV, is not accused of doing anything itself that would warrant revocation of its license. But since the FCC has no authority to kick cable news networks off the airwaves for their content, the objectors are going after Fox-owned local affiliates instead. It’s a tactic that the FCC rightly rejected when former President Donald Trump threatened to revoke NBC’s licenses (held by its local affiliates) because he didn’t like its reporting. We opposed it then and we oppose it now.

Outrage over Fox’s 2020 election coverage is understandable, but it shouldn’t be weaponized to score political points. If the objectors succeed in canceling a local broadcaster’s licenses to retaliate against Fox News, surely one day the shoe will be back on the other foot. And if future lawmakers believe they have the power to legislate punishments against speakers they don’t like, they’re unlikely to be “fair and balanced” in administering retribution.

Local news organizations are the lifeblood of many communities, but decreasing revenues have caused thousands to die out in recent years.

Kamoteus (A New Beginning), via Flickr, CC BY 2.0.

After nearly a century, The Welch News in McDowell County, West Virginia, closed its doors earlier this year, leaving county residents without a local news source. The newspaper, the “heartbeat” of the community, fell prey to the same financial hardships that have led to the closure of thousands of local newspapers in America since 2005.

Now, a new bill in Congress aims to help small struggling news outlets survive these financial headwinds. The Community News and Small Business Support Act, introduced by Rep. Claudia Tenney and co-sponsored by Rep. Suzan DelBene, is a bi-partisan bill (PDF) 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. According to the Rebuild Local News coalition, the payroll credit could provide newsrooms with as much as $85,000 over the course of five years for each full-time local journalist they employ.

The proposed legislation is similar to the Local Journalism Sustainability Act, which Freedom of the Press Foundation (FPF) endorsed, but which failed to pass in the previous Congress. FPF is proud to support this new version of the bill, which attempts to address the crisis in funding for small, local news outlets through tailored advertising and payroll tax credits.

Importantly, the Community News and Small Business Support Act is carefully drafted to ensure the government can’t pick partisan favorites or otherwise influence news coverage in the outlets that would benefit from the tax credits. Instead, the criteria for qualifying for the tax benefits focuses on the size and local nature of the news outlet.

Under the proposal, the credits are available for local newspapers that employ local news journalists or for small businesses that advertise in a local TV or radio station or newspaper. A “local newspaper” includes any news publication that primarily serves the needs of a region or community and has at least one full-time journalist who lives in the community and no more than 750 employees. However, newsrooms controlled or significantly funded by advocacy groups or political organizations, like unions or political action committees, can’t qualify for the credits. This restriction is intended to “prevent wholly partisan or ‘pink slime’ outlets from cashing in,” according to one report, and it applies regardless of the political leanings of the controlling entity.

This broadly drawn definition means that a wide variety of local news outlets could receive payroll tax credits under the law, and community businesses will have leeway to support the newspapers that best serve their communities. Putting funding of news in the hands of communities like this is a smart approach.

Of course, there are still some funding problems the Community News and Small Business Support Act wouldn’t solve. For one thing, as we explained with the LJSA, providing tax credits for existing local newspapers may be less helpful to historically marginalized and underserved communities, which may not have existing news outlets. Start up (or re-start up) costs may be prohibitive. This bill will help sustain local news, but even more must be done to regrow it.

In addition, the new bill does not include the LJSA’s tax credit for individual taxpayers who subscribe to news outlets, which DelBene has said is too complicated. It's a shame for the proposed legislation to drop this idea, which could have encouraged more people to subscribe to local news and, through those subscription choices, democratized local media funding by giving individuals a say in which outlets benefit. But if simplifying the bill will increase its chances of passage, it's worth it to enact the advertising and payroll tax credits, which would make a meaningful difference to the financial state of local news by themselves.

Congress must not stand by as local news organizations continue to go dark in community after community. This new bipartisan proposal would provide a financial boost for local news outlets in a creative and constitutionally-sound way. They say that nothing is certain but death and taxes — so how about using taxes to do some good, and avert the death of local news?

Body camera footage shows a concerned observer recording while Phoenix Police needlessly detained Wall Street Journal reporter Dion Rabouin last year. Police later threatened her with arrest under a law requiring people recording cops to stay at least eight feet away.

Last year, Phoenix police detained Wall Street Journal reporter Dion Rabouin for interviewing passersby on a sidewalk outside a bank. They ignored his repeated explanations that he did not know the sidewalk was bank property and was willing to leave if officers would only let him.

A concerned citizen recorded the ordeal on a cell phone. She never once came close to interfering with the officers, but footage shows police threatening to arrest her pursuant to an Arizona law requiring people to stand at least eight feet back when recording police. She was still able to capture a reasonably clear recording in the empty parking lot, and that may have been the reason police eventually let Rabouin go. But what if the incident had occurred on a busy sidewalk, or in the middle of a chaotic protest? Or what if, like some other states, Arizona required her to stand 25 feet away rather than eight?

Rabouin’s detainment, of course, is far from the worst offense by police that has been caught on camera. Murderous cops are sitting in prison right now because citizens recorded their crimes so their departments couldn’t credibly lie about what happened. Courts around the country have recognized the importance of recording police and have unanimously upheld the First Amendment rights of citizens and journalists alike to do so.

That means police departments wishing to avoid scrutiny have had to resort to workarounds, including lobbying for legislation like the Arizona law so that recorders exercising their constitutional rights are less likely to capture incriminating details. Fortunately, there’s been some pushback. A court recently struck down that Arizona law as unconstitutional following a lawsuit by the ACLU and others. And last month, Louisiana Gov. John Bel Edwards vetoed a bill that would’ve made it a crime to come within 25 feet of officers on the job.

He wrote in his veto letter that, “Observations of law enforcement, whether by witnesses to an incident with officers, individuals interacting with officers, or members of the press, are invaluable in promoting transparency.” Edwards is right, and that’s likely the reason Indiana’s legislature passed a law similar to the one he vetoed, and why lawmakers in Florida and New York have tried and probably will try again (in the meantime, New York police baselessly arrest people who record inside police stations). Other states are sure to join the trend.

The official justification for these dubious bills is that recording up close interferes with police work or threatens police safety. That’s nonsense. We’ve seen no evidence that it’s ever happened and certainly none that the problem is pervasive enough to overcome the First Amendment. Anyway, there are already plenty of laws on the books against obstructing police. If anything, police are likely distracted when they’re needlessly quibbling with observers over how close they can get when they should be focused on their jobs.

Proponents of anti-recording laws may also point to the availability of body camera footage as a substitute for citizen recordings, but that’s another red herring. Police body cameras have a suspicious tendency to conveniently fail just when they’re most needed, and several state legislatures have made body camera footage as difficult as possible to obtain. Even when it’s eventually made public, the footage is often redacted or released late and/or piecemeal. The footage from Rabouin's arrest, for example, was released only after the observer's recording brought national attention to the incident. The mayor of Phoenix eventually apologized for the officers' conduct.

The bottom line is that the only way to hold police accountable for misconduct — or better yet, prevent it from happening in the first place — is for citizens and journalists to be able to record police without needing a yardstick to figure out how close they can get (ironically, if someone actually did take out a yardstick in order to comply with the law, they’d probably get tased).

It’s encouraging that Arizona and Louisiana have backed away from these misguided proposals. Hopefully, the remaining states will soon follow.

Journalists increasingly use drones to report the news, but a new bill in Congress could give the government an excuse to target drone reporting.

Josh Sorenson, via Pexels, CC0 1.0.

A fisherman stands with his boat in a dry lakebed as the camera slowly pans out, revealing an enormous expanse of desolate ground left behind when the water receded from Lake Poopó, Bolivia. Photojournalist Josh Haner used a drone to capture that video, showing the devastating impacts of climate change.

Like Haner, more and more journalists at the national and local level are using drones to document the impacts of war, natural disasters, pandemic stay-at-home orders, protests, and more. Drones give journalists access to otherwise inaccessible views and let them report on dangerous events safely from a distance.

Even though the Federal Aviation Administration already regulates journalists’ use of drones, a new federal bill now on the table would threaten journalists’ and others’ ability to use them to document the news or engage in other First Amendment-protected activities, like monitoring the police at protests.

The proposed Senate bill, The Safeguarding the Homeland from the Threats Posed by Unmanned Aircraft Systems Act, has the worthwhile goal of protecting critical infrastructure, like power stations, from attacks by drones. The problem? It doesn’t take into account the way reporters use drones to gather information for the public. That’s why Freedom of the Press Foundation (FPF) joined a letter on behalf of civil society organizations led by the Center for Democracy & Technology opposing the bill. (The full letter is embedded below.)

The measure would give federal and local governments the power to track, intercept, and even damage or destroy drones if they believe the unmanned aircraft pose a threat. This sounds reasonable, until you know that the government has used made-up “safety concerns” in the past to abuse its authority over the airspace and suppress free speech.

For example, in 2014, authorities restricted the airspace around Ferguson, Missouri, during the protests over the police killing of Michael Brown. According to the St. Louis County Police, the restriction was “solely for safety.” But documents obtained by the Associated Press through the Freedom of Information Act showed that the real reason for the restriction was to prevent news helicopters from covering the protests.

It doesn’t take much to imagine government officials using their powers under this proposed legislation to chase off or take down drones journalists are using to report news stories that authorities don’t like. As the U.S. Press Freedom Tracker has reported, journalists already face criminal charges, harassment, and seizure of their drones by officials or private security for no good reason. Some states have tried to enact broad bans on the use of drones, including for journalism.

The Senate proposal would empower the government to take this harassment and suppression to another level. Nothing in the measure requires authorities to take into account whether drones are being used for activity protected by the First Amendment, like gathering news. It also doesn’t require the government to try steps like warning a drone off from a restricted area before escalating to harsher measures like destroying it, which, in most cases, would also destroy the images it captured. Journalists who have their drones improperly seized or destroyed have no recourse under the bill to challenge that action.

Troublingly, the proposed law also actively prevents the public from learning about how authorities are using their powers to take action against drones. There’s no requirement for the government to publicly report how often it uses its counter-drone authority or its reasons for doing so. That makes it difficult for journalists to uncover and report on abuses. Even worse, the bill creates new exceptions to state public records laws that could let states keep secret the details of their operation of counter-drone technology.

All of these flaws mean the Senate’s proposed act isn’t ready to become law. Allowing the government to secretly take down drones without regard for the First Amendment is an invitation for abuse. Yes, malicious use of drones is a potential problem that Congress should address, but not at the expense of freedom of the press and the public’s right to know.

Gotfryd, Bernard, photographer, Public domain, via Wikimedia Commons

We are thrilled to announce that Jack Dorsey — Block Head, Chairman, and co-founder of Block Inc. — has donated $1 million through his philanthropic initiative, #startsmall, to Freedom of the Press Foundation (FPF) to help establish the Daniel Ellsberg Chair on Government Secrecy.

Ellsberg, the legendary whistleblower and co-founder of FPF who passed away last month, made it part of his life’s work to protest the U.S. government’s out-of-control classification system and its corrosive effect on democracy. To honor his legacy, we recently announced an ambitious mission in Ellsberg’s name to shed light on the abuses of over-classification and aggressively push for reform.

“We are beyond grateful for this incredible investment from Jack Dorsey for the Daniel Ellsberg Chair on Government Secrecy,” said FPF Executive Director Trevor Timm. “Jack’s gift will not only ensure Daniel Ellsberg’s life's work is carried forward but will be crucial in leading the charge for transparency nationwide.”

The Ellsberg Chair is dedicated to unmasking secrecy abuses and fostering public dialogue on the issues plaguing our government. The appointed full-time staff member will delve into every aspect of government secrecy, ranging from the problem of excessive classification to the limitations of the Freedom of Information Act and the misuse of the Espionage Act against whistleblowers and publishers.

Working hand in hand with journalists and other press freedom organizations, this individual will shine a spotlight on overlooked stories surrounding malpractices within the classification system. They will collaborate closely with media outlets to bring these issues to the forefront of public consciousness, raising awareness, and igniting meaningful conversations about the dire consequences of unchecked government secrecy.

As Ellsberg once said, “Truth-telling to Congress and the public is not disloyal in America: it is an expression of the higher loyalty officials owe to the Constitution, the rule of law, and the sovereign public. It is a courageous, patriotic, and effective way to serve our country. The time to speak out is now.”

With the support of #startsmall and its commitment to transparency, we are excited to carry Ellsberg’s truth-telling torch forward.

Taking on the national security establishment will not be an easy task and is uniquely susceptible to changes in political or fiscal winds. FPF is raising an endowment fund for the Daniel Ellsberg Chair on Government Secrecy so that this position can hopefully live in perpetuity and advocate for government transparency without fear or favor.

Before the generous contribution from #startsmall, FPF had secured approximately one-third of its goal. But now, we are nearly two-thirds of the way there.

If you are inspired by Jack Dorsey’s gift and would like to contribute to funding the Daniel Ellsberg Chair on Government Secrecy, please contact FPF’s 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.

A new proposal would allow Congress to compel online censorship of precisely the information necessary for the American public to evaluate lawmakers' adherence to our laws and ethical standards.

opensource.com, via Flickr, CC BY-SA 2.0

Demand Progress and Freedom of the Press Foundation led a coalition of 53 civil society and press freedom organizations opposing Senate Amendment 218, a proposal that would allow federal lawmakers to compel the censorship of a broad range of information about themselves—including the types of information routinely reported by journalists, government watchdogs, and ordinary citizens.

Read the full letter below.

Senate Amendment 218 would give federal lawmakers the power to compel information that they find embarrassing, inconvenient, or politically damaging to be removed from the internet.

Ken Lund via Flickr, CC BY-SA 2.0.

A new proposal in Congress would give lawmakers the power to censor information about themselves online. As we explain in Tech Policy Press, Senate Amendment 218 would be a disaster for public oversight of Congress by journalists, watchdog groups, activists, and constituents:

Not only is Amendment 218 unconstitutional and opposed by a broad coalition of civil society organizations, it also foolishly trusts social media companies to moderate content well and to act in the best interests of users and the public. If passed, this proposal will make investigative journalism harder and lead to the removal of news and other important speech about lawmakers from the internet. Protecting lawmakers from actual threats to their safety is important, but giving Congress the power to censor the internet isn’t the right approach. Congress should not bundle legislation prioritizing its own privacy over the public interest into the must-pass defense bill.

Read more at Tech Policy Press, here.

Body camera footage showing Asheville Blade journalist Matilda Bliss' press pass during their arrest.

Last month, a North Carolina judge reportedly instructed a jury not to consider the First Amendment in deciding whether two journalists could be convicted for recording police evicting a homeless encampment and dispersing protesters. He said he would resolve constitutional issues in deciding the journalists’ motion to dismiss the charge that they broke a park curfew.

But Judge Tommy Davis’ ruling denying the motion is full of troubling biases and fundamental legal errors. First, he expressed largely pointless reservations about whether the defendants were actually journalists. Second, he bizarrely reasoned that the First Amendment requires police arresting protesters to also arrest journalists, out of fairness.

Journalists are allowed to have political views

Sure, the prevalence of mobile technology and social media can complicate academic debates about the definition of “journalist.” We prefer to focus on acts of journalism rather than individual credentials. But that’s a subject for another day: For now, we can all agree that someone who gets paid to regularly report news for an established media outlet is a journalist. Right?

Not so fast, said Davis. “It is interesting to note that the title of journalist can be broadly defined,” he wrote, despite acknowledging that Matilda Bliss and Veronica Coit regularly report for the Asheville Blade, which has been covering Asheville since 2014. “In today’s society, anyone with a cell phone capable of recording voice and audio with access to a computer can claim to be a journalist implicating First Amendment rights,” he continued, implying that more people being protected by the First Amendment’s press clause is a bad thing.

Davis then argues that arresting officers couldn't distinguish Bliss and Coit from nonjournalists, despite the officers’ own body camera footage prominently showing Bliss’ press pass (see the photograph above). Perhaps most disturbingly, he notes that Bliss “has views aligned with” the protesters, as though the First Amendment excludes reporters who dare possess opinions. That would’ve been news to the drafters of the amendment, who lived in a time long before journalists even feigned objectivity.

Ultimately, the judge put aside his fist-shaking about those kids and their damned cellphones and assumed for purposes of his analysis that Bliss and Coit are in fact journalists (although it seems unlikely that his biases did not affect the rest of his thinking). But then …

The First Amendment should never be cited to criminalize more speech

It’s hard to believe we have to write that heading. But, remarkably, after begrudgingly conceding that Bliss and Coit may be journalists after all, Davis ruled that the First Amendment actually required police to arrest them along with protesters at the park. After all, he reasoned, the protesters could complain they were treated unfairly if journalists were given a pass.

That’s not how it works. The government can restrict First Amendment activity on public land only when it’s “essential” to serve an “overriding” interest, and the restrictions must be as narrow and targeted as possible. That means even rare circumstances entitling the government to restrict some speakers don’t entitle it to restrict all speakers. For example, police may sometimes be entitled to disperse protesters who damage government property, but that doesn’t mean they can also disperse journalists who pose no threat to the property. Davis fails to comprehend that it’s not about journalists having additional rights — it’s about the government having to separately establish a sufficient basis for each infringement of the First Amendment. But the journalists have never been accused of obstructing or harming anyone or anything and arresting them served no "interest" other than censorship.

Plus, police crackdowns on protests are themselves news and journalists can’t cover them if they’re in jail too. As the Department of Justice recently explained: “Blanket enforcement of dispersal orders and curfews against press violates [the First Amendment] because they foreclose the press from reporting about what happens after the dispersal or curfew is issued, including how police enforce those orders.” Journalists have to follow the news — they can’t control what time police choose to arrest protesters.

Finally, it doesn’t matter if, as Davis speculates, Bliss and Coit could’ve reconstructed events after the fact through witness accounts. That same logic would allow trials and government meetings to be closed. Cops and judges don’t get to tell reporters how to report. The availability of an inferior Plan B doesn’t remove First Amendment protection for Plan A.

The ruling contains plenty of additional head-scratchers, like Davis’s reasoning, too convoluted to deconstruct here, that an officer’s instruction to arrest Bliss and Coit before others — “because they’re videotaping” — does not evidence police targeting of First Amendment activity.

Then the judge brushes aside admitted evidence of Asheville authorities’ hostility towards the Blade over its past coverage, focusing on whether the arresting officers recognized Bliss and Coit. That ignores evidence that the higher-ups who decided to waste taxpayer funds pursuing the misdemeanor charges for 1.5 years and two trials surely did. And let’s not forget additional unconstitutional retaliation, like banning the journalists from city parks.

The entire ordeal has been an assault on press freedom driven by the spite and pettiness of officials who know better. That’s why press rights and civil liberties organizations have widely condemned the prosecutions and convictions. We’re glad to hear the journalists will appeal. Let’s hope the appellate court ensures no future officials in North Carolina butcher the First Amendment like the clueless prosecutors and judges involved in the Asheville case.

A legal loophole that lets the government buy location information, browsing history, and more from data brokers creates risks for journalists and whistleblowers.

Image created using Midjourney, CC BY-NC

Update on July 13, 2023: The National Defense Authorization Act amendment introduced by Reps. Warren Davidson and Sara Jacobs has been revised. Under the revised language, the amendment would prohibit only the Department of Defense from buying information it would otherwise need a warrant or other legal process to access. While this is a good start, Congress must close the data broker loophole for all intelligence agencies and state and local law enforcement.

A recently declassified government report revealing that federal intelligence agencies are gobbling up massive amounts of data from shadowy companies known as data brokers should raise alarm bells for all Americans, and particularly journalists and whistleblowers. Congress can — and should — close this data broker loophole using either the must-pass defense bill currently under consideration or separate legislation.

Unless you’re entirely off the grid, chances are good that a data broker has collected and sold highly personal information about you. Data brokers swallow up and compile data from online sources like search engines, social media, dating and weather apps, and more. They use that data to sell information about people’s religious or political beliefs, medical issues, sexual orientation, and even detailed location records. Despite claims that data brokers anonymize data, there’s plenty of evidence that it can often be traced back to specific individuals.

Data brokers’ invasive practices are creepy enough when they’re being used to sell stuff. But it gets worse. For years, intelligence and law enforcement agencies have been using data brokers as a loophole to get around the warrant requirement and other legal restrictions on accessing information for their investigations. And it’s not just the federal government relying on data brokers; state and local law enforcement use them, too.

This loophole is particularly dangerous for journalists and whistleblowers caught up in government leaks investigations. The government may be able to buy data about journalists and whistleblowers from data brokers that they couldn’t otherwise obtain without a warrant under the Fourth Amendment. And it’s not clear whether the Department of Justice’s news media guidelines, which limit compelled disclosure of newsgathering records from journalists by the DOJ, would apply to purchases of the same data from data brokers.

The government could, for example, buy browsing history from a data broker to discover what news sites a suspected whistleblower has visited or what searches they’ve conducted. This could reveal evidence of the whistleblower’s contact with journalists or intention to share information with the public.

The government could also attempt to ferret out a reporter’s source by buying location data of the journalist and of suspected sources to glean where they’ve been and whether they’ve met in person. In 2009, for example, when the government suspected a State Department employee of leaking to reporter James Rosen, it used security badge access records to show Rosen’s comings and goings from the State Department.

We shouldn’t let the government buy its way out of respecting the Fourth Amendment. Thankfully, at least some members of Congress agree. Reps. Warren Davidson and Sara Jacobs have introduced an amendment to the National Defense Authorization Act that would prohibit the government from buying information that they’d otherwise have to get a warrant or other legal process to access. Similar bipartisan legislation, the Fourth Amendment is Not for Sale Act, was introduced by Sen. Ron Wyden in the last Congress.

Congress must close the data broker loophole and make clear that intelligence and law enforcement officials have to follow the law before they can access sensitive information about journalists and other Americans. When Washington Post reporter Bob Woodward met Deep Throat in an underground garage outside Washington, DC, to talk about what would become Watergate, they didn’t have to worry about a cellphone in their pockets, browsing histories, or internet searches leaving a trail of breadcrumbs for leaks investigators to follow. Journalists in the digital age must be more wary, but they should still get all the protections afforded by the Fourth Amendment.

Rep. Rashida Tlaib has introduced an amendment that would stop Espionage Act prosecutions of journalists and their sources without impacting the government's ability to prosecute actual espionage.

Chad Davis, via Flickr

I may have just violated the Espionage Act by linking to this Washington Post report on leaked documents about the Russian-Ukrainian war. You may have just violated the act by reading it. That sounds ridiculous because it is. But the act says anyone who accesses national defense information must return it to the appropriate government official to avoid prison. I didn’t, did you?

It’s true, the government hasn’t invoked the 100-plus year-old law to prosecute news readers and probably won’t anytime soon. But the government has routinely abused its broad discretion under the law’s vague and ambiguous language to prosecute investigative journalism — including both publishers and sources.

An amendment (PDF) to the National Defense Authorization Act proposed by Rep. Rashida Tlaib could change all that. The amendment would not affect provisions of the Espionage Act used to prosecute actual espionage. It would stop Espionage Act prosecutions of journalists, publishers, and members of the public by limiting the act’s reach to government employees under a duty to protect confidential information. It would also:

• Require the government to prove whistleblowers and other defendants intended to harm the U.S. (as opposed to, for example, exposing government crimes to stop them).
• Relatedly, permit defendants to testify regarding the purpose of their disclosures.
• Allow defendants to prove their disclosures served the public interest.
• Limit prosecutions to cases involving properly classified information (the law predates the severely broken classification system and instead refers to “national defense” information).

The amendment would immediately and significantly improve the quality of investigative reporting available to Americans. Even when no charges are filed, the chilling effect on journalists and sources from the mere prospect of prosecution is immeasurable. Before he passed away last month, Freedom of the Press Foundation co-founder and Pentagon Papers whistleblower Daniel Ellsberg warned other potential whistleblowers: “Don’t do it under any delusion that you’ll have a high chance of ending up like Daniel Ellsberg,” i.e., dying outside of prison.

Yes, Tlaib introduced the same amendment last year, and yes, reforming a law as beloved by the many secrecy fanatics in our government as the Espionage Act will be an uphill battle. But it’s one we need to keep fighting, especially when the current administration continues former President Trump’s abuse of the Espionage Act to criminalize routine journalism.

Speaking of, it must be acknowledged that the two most famous Espionage Act defendants at the moment are polarizing figures — Julian Assange and Trump. Some may trust the current Department of Justice to only weaponize the Espionage Act against people they don’t like. That’s a mistake.

Even the Obama administration — which set records for Espionage Act prosecutions of whistleblowers — declined to charge Assange under the act because it recognized that doing so would open the door for prosecutions of more traditional journalists. When the next DOJ reversed Obama’s position it was easy to blame Trump’s hatred of the press — he’s unlikely to be concerned about setting precedents that harm reporters.

But then the Biden administration continued the Assange prosecution despite decrying sham espionage prosecutions of journalists abroad. It’s even pressuring other journalists to help it criminalize journalism. Clearly, once one administration claims power subsequent ones can’t be trusted to relinquish it. It’s anyone’s guess how the Espionage Act might be abused in a second Trump term or any other future administration. Let’s hope that, thanks to Tlaib’s amendment, we don’t need to find out.