Freedom of the Press

Los Angeles police and county workers remove a homeless encampment at a California state beach in August.

In recent weeks, police across California have threatened journalists with arrests for covering evictions of homeless encampments. It’s unclear why — the journalists aren’t interfering with the evictions. But they are documenting them, and clearly officers don’t want that.

We joined a coalition of over 20 press freedom and transparency organizations to warn authorities from Los Angeles to Sacramento that their own state law supplements constitutional protection of journalists’ right to access restricted areas where newsworthy events occur.

This is not a new problem. Police also violated the same law “left and right” earlier this year to arrest journalists covering protests against the Israel-Gaza war on college campuses and elsewhere. Check out our May interview with Susan Seager, an adjunct professor of law at University of California, Irvine School of Law, for more on that.

But it’s not just one law that police are violating. As the coalition explained, federal appellate courts nationwide have also protected the First Amendment right to record police.

The 9th U.S. Circuit Court of Appeals — the one with jurisdiction over California – has specifically ruled that even if police are entitled to disperse an unpermitted protest, encampment, or other allegedly unlawful assembly, they can’t disperse law-abiding journalists. Even the Department of Justice agrees.

Police in California have struggled repeatedly to cite any legal basis for their actions, because there is none. They’ve accused journalists of unlawfully intruding on their “work zones” — whatever that means. And they’ve claimed large areas are “crime scenes,” presumably because an allegedly unlawful encampment was set up there. That’s a tactic we also saw in Atlanta last year, when police illegally dispersed journalists covering protests against the police training facility commonly referred to as “Cop City.”

Sure, police may close off limited spaces in order to preserve evidence, but there’s no precedent for declaring large areas where low-level nonviolent offenses occurred to be “crime scenes” in order to arbitrarily banish the media for no legitimate law enforcement purpose.

Officers test these spurious legal theories at their own risk. Freelance photojournalist Jeremy Portje sued the City of Sausalito, California, as well as numerous police officials over a 2021 arrest while reporting from an encampment. Court records show the case recently settled, although the details haven't been made public.

April Ehrlich, another journalist arrested while covering an encampment sweep in 2020, also sued after the bogus charges against her were dropped. She was arrested in Oregon, not California, but Oregon also answers to the 9th Circuit.

Public radio reporter Josie Huang reached a $700,000 settlement agreement with Los Angeles County and the Los Angeles County Sheriff’s Department over her 2020 arrest. She was covering a protest, not an encampment sweep, but the same principles apply — police conduct, whether evicting people without homes or dispersing protesters, is newsworthy, and the First Amendment demands that journalists be able to cover it.

Last year, Stephanie Sugars of the U.S. Press Freedom Tracker, a project of Freedom of the Press Foundation (FPF), called the Los Angeles Police Department among the most “atrocious” of press freedom violators nationwide. They’ve lived up to that billing in the last year, including with the ridiculous failed lawsuits against journalist Ben Camacho for publishing pictures the police department gave him, which ended in another $300,000 settlement bill for taxpayers.

But that may have underestimated other law enforcement agencies in the state, from the San Francisco Police Department’s unlawful warrant to search an independent newsroom’s files to the revelation that the Los Angeles County Sheriff’s Department secretly investigated reporter Maya Lau on the plainly unconstitutional theory that her source materials constitute stolen goods. And now Sacramento is getting in on the action, intimidating reporters for covering news.

Let’s hope the coalition statement gets through to the offending agencies, even though the courts and legislature have not. Otherwise, Californians will not only miss out on important news, they’ll have to continue spending their money to pay for settlements.

Senate Select Committee on Intelligence’s Report of the Central Intelligence Agency’s Detention and Interrogation Program

The U.S. keeps too many secrets about its actions in the aftermath of 9/11. There’s no better example of this than the CIA’s torture program, which can trace its beginnings to a still-classified September 2001 memorandum of notification signed by President George W. Bush. This memo granted the agency “unprecedented authorities” to capture and detain suspected terrorists.

The outgoing Biden administration should commemorate the 23rd anniversary of the terrorist attacks by ordering the declassification of the Senate’s report on the CIA’s torture program. A fitting date for the declassification to be completed is Sept. 11, 2026 — the 25th anniversary of the attacks. This would not only help the public hold the government accountable for abhorrent human rights violations but would counter overwhelming evidence that the CIA has become too powerful for oversight.

The CIA knowingly destroys torture evidence

The late Sen. Dianne Feinstein, D-Calif., initiated what would become the Senate Select Committee on Intelligence’s Torture Report — arguably the most consequential congressional report ever compiled — after word emerged that the CIA had destroyed key evidence of its torture program.

The initial Senate investigation began in 2007, after Feinstein and her committee received a briefing from then-CIA Director Michael Hayden. The briefing concerned a 2005 order by CIA official Jose Rodriguez, who ran the agency’s torture program, to destroy 92 videos of agency officials waterboarding Abu Zubaydah. Rodriguez ordered the destruction of the evidence even after he and his then-chief of staff “repeatedly sought permission to have the tapes destroyed but were denied.” (His chief of staff at the time was Gina Haspel, who went on to run the agency despite her own concerning record on torture.)

Rodriguez later justified his behavior, saying that “the heat (from destroying the videos) is nothing compared to what it would be if the tapes ever got into the public domain.”

The Department of Justice investigated the destruction of the videotapes at least twice, but no charges were ever brought.

Congress tries to document abuse

The Senate Intelligence Committee voted to broaden its investigation beyond the videotape destruction in 2009, with Senate staff ultimately reviewing over 6 million pages of records across five years and producing the 6,700-page report.

This mammoth achievement was accomplished in spite of the CIA 1) misleading Congress and the White House about the program, 2) pushing misleading narratives about the torture program to the media, and 3) spying on Senate staff who were attempting to conduct oversight of the program. (After first denying it even happened, former CIA director John Brennan eventually apologized for the spying, but the agency and responsible officials faced no meaningful disciplinary measures).

The Senate Intelligence Committee shared the report with several federal agencies and the Obama White House with the eventual hope that it would be public. But a byzantine — and ultimately ineffective — effort to have the report declared a federal record subject to the Freedom of Information Act and eventually disclosed to the public failed under President Obama’s watch.

Litigation brought by members of the public has also proved unsuccessful. As recently as this summer, the U.S. Court of Appeals for the District of Columbia upheld the classification of the full report as a legislative branch record exempt from disclosure by the Constitution’s speech or debate clause.

The final report is still secret, but the conclusions from the 500-page, highly redacted executive summary are so damning they demand further disclosure. The findings include:

• The CIA’s own officers found torture to be ineffective and the agency failed to adequately evaluate its techniques.
• The CIA lied to lawmakers about the brutality of its program and the conditions of detainees’ confinement.
• The Department of Justice’s Office of Legal Counsel did not independently verify or conduct independent analysis of the CIA’s claims.
• The CIA’s management of the torture program hindered other national security missions.
• The CIA’s torture program damaged the United States’ global standing.

Is the CIA too powerful for oversight?

Additional bits of information about the torture program have come to light through Freedom of Information Act lawsuits. These revelations include:

• Photos of torture and abuse at Abu Ghraib prison.
• Detainee transcripts of torture.
• Information on conditions that led to the death of detainee Gul Rahman at a CIA black-site prison in 2002.
• Torture cables that were either authored or authorized by Haspel.

These piecemeal disclosures are not enough.

For the public to effectively self-govern, it must be able to engage in meaningful public debate about U.S. actions. It cannot do so if agencies like the CIA are allowed to flout congressional oversight and willfully destroy important documentary evidence with no meaningful consequence.

President Biden has the opportunity to make a difference. He should do what President Obama did not, and mandate the declassification of the torture report. In so doing, he could help show the CIA is not more powerful than Congress, the White House, or the best interest of the public.

***

More resources

Researchers and journalists should visit the following for reputable information on torture:

• The Rendition Project
• The National Security Archive’s Torture Archive
• The ACLU’s torture court cases website
• Carol Rosenberg’s reporting on Guantanamo Bay for both The New York Times and the Miami Herald

New York Gov. Kathy Hochul, above, ignored opposition from open-government and free speech organizations to sign an anti-transparency, anti-accountability bill into law yesterday.

New York Gov. Kathy Hochul signed into law an anti-transparency and anti-accountability bill that will compound existing problems with New York’s Freedom of Information Law, further delaying the release of important public records.

By doing so, Hochul ignored a memo of opposition from 10 open-government and free speech organizations, including Freedom of the Press Foundation (FPF).

The bill requires the government to inform employees (possibly including former employees) when their disciplinary records are requested. Don’t be fooled by the bill’s proponents – it has nothing to do with personal privacy and everything to do with government secrecy.

As Reinvent Albany – which led opposition to the bill – explained in a statement, “FOIL processes are grossly underfunded, understaffed, politicized, and overwhelmed by the volume of requests.” That means compliance with legitimate public records requests for important, newsworthy documents can take months or years.

Now, short-staffed agencies will have to track down employees’ contact information before complying with public records requests. In some cases where the requester names a specific employee, that might be relatively simple. But most requests are far broader than that.

Let’s say a reporter were to request, for example, all disciplinary records involving state police accused of mistreating journalists and protesters during Black Lives Matter protests in 2020. Who knows how many officers would need to be notified?

A similar proposal in California failed earlier this year, thanks to the work of advocates from the First Amendment Coalition and several other organizations.

While fast-tracking a bill to needlessly delay FOIL compliance, New York’s legislature ignored four bills that would have strengthened the state’s public records laws, also supported by FPF.

Among other things, these bills would have allowed requesters to quickly appeal “constructive denials” when agencies ignore their requests, increased transparency about how agencies handle requests they received, made it easier for people whose requests were baselessly denied to recover attorney’s fees, and limited businesses’ ability to shield information from disclosure that they submit to the government.

Public records laws aren’t working at either the state or federal levels. Instead of attempting to fix the problem, New York officials are inventing new ways to sabotage transparency, at a time when many media outlets can hardly afford litigation to recover public records.

Bills bolstering transparency are difficult to advance for obvious reasons — government officials have every incentive not to pass them, especially when they don’t anticipate much political cost.

We commend outlets like the Niagara Gazette, The Buffalo News, Adirondack Daily Enterprise, The Daily Gazette, and Newsday for urging lawmakers to do the right thing. We can’t help but wonder if this story would’ve ended differently had some of the state’s largest newspapers also used their news and editorial pages to stand up for transparency and accountability.

Chicago Police Superintendent Larry Snelling talks to officers after demonstrations near the Israeli Consulate during the Democratic National Convention in August.

Last week, we hosted an X Space forum for independent journalists who reported on protests outside the Democratic National Convention to discuss their experiences dealing with the Chicago police.

To sum things up, the journalists did not give the police positive reviews. That may not be surprising, but the examples they raised show problems exceeding the usual tensions between officers and reporters at protests.

Journalist Ford Fischer kicked off the discussion by noting his alarm at threats from Tom Ahern, deputy director of news affairs and communication for the Chicago Police Department, to take away press passes from journalists who didn’t obey unconstitutional orders to disperse. “In 10 years of doing this kind of work, of covering protests, I don’t think I’ve heard this specific kind of claim,” Fischer said.

I’ve never heard, ever, any police officer anywhere, anywhere, in 20-plus years threaten to revoke press credentials.

Another journalist who encountered Ahern, Tina-Desiree Berg, agreed that Ahern’s antics were unprecedented. “I’ve never heard, ever, any police officer anywhere, anywhere, in 20-plus years threaten to revoke press credentials,” she said. Berg was particularly alarmed by Ahern not only failing to exempt the press from dispersal orders but expressly directing orders at journalists. “He literally said into the bullhorn, ‘Media, you need to disperse. Now, if you don't disperse, we're going to arrest you.’ That to me, was very shocking.”

Videojournalist Sean Beckner-Carmitchel also objected to the threats to seize credentials, noting that they are “not property that belongs to the Chicago Police Department. That would actually, in my opinion, be theft.” He also called out efforts to limit the space from which he could film the protests. “My assignment was to cover the protest, and anything that makes it difficult to do so is not just a violation of First Amendment rights, but also adds to a lack of transparency within the Chicago Police Department,” he said.

Beckner-Carmitchel and others pointed to the Chicago Police Department’s role in issuing press credentials — a procedure that other cities, like New York, have reformed. “The police department is not the arbiter of the media,” he said.

Mel Buer, who reports for The Real News Network, added, “The police presence in the city was meant to overwhelm not just protesters, but also press, and the way that they did this … made it extremely difficult for us to do our jobs and for these protesters to assemble and march.”

Kevin Gosztola of The Dissenter agreed on that point: ”All of these police are there for the purposes of showing off their overwhelming force.” He acknowledged that he opted against covering a protest on the evening of Aug. 20 because he “didn’t trust the CPD not to escalate it into a riot.” Multiple journalists ended up being arrested at that protest.

Buer also called out Ahern, for both his actions and his temperament. “Out of all the people who should be calm, cool, and collected,” it should be him, Buer said. “I don’t think he did his job correctly. … I’m surprised he still has his job.” But Ahern wasn’t the only one. Buer also recalled CPD Superintendent Larry Snelling telling her “I see your press pass, but you’ve got to move,” ignoring the Department of Justice’s instructions not to disperse journalists covering protests.

We agree and have previously said Ahern’s handling of the protests – which included not only threatening journalists but reportedly ripping off at least one journalist’s press badge – should disqualify him from his role with the police department.

Photo and videojournalist Mostafa Bassim, who documented arrests of journalists during the convention, recalled similar experiences, including officers telling him he needed to leave or they’d take his press pass. “Where? There is no place to go,” he recalled responding. “I am press! I am press!”

Independent journalist Talia Jane Ben-Ora pointed to the lack of clarity from police on how journalists could do their jobs while avoiding arrest or dispersal, alleging that police acted “wildly incoherently throughout the whole week.”

I was just at the wrong place at the wrong time, and then, well, nine hours in the slammer

She also noted that, when they weren’t threatening to seize journalists’ press passes, police photographed them, leading journalists to flip their passes over so as not to be visible.

Freelance journalist Olya Fedorova, one of the journalists arrested on Aug. 20, said that having CPD credentials was “making it more difficult” to report because it placed a target on her back.

“When Tom Ahern ordered my arrest, it seemed that he was just personally frustrated by the fact that the press is present,” she said. “I was just at the wrong place at the wrong time, and then, well, nine hours in the slammer,” despite commitments from police to avoid taking journalists off the scene over minor offenses.

The U.S. Press Freedom Tracker’s Stephanie Sugars was not in Chicago for the DNC, but she spent the week monitoring press freedom violations and talking to reporters on the scene for the Tracker, a project of Freedom of the Press Foundation (FPF). She observed that “it should not have come as a surprise that there would be the number of journalists present that there was. That is something that they could have and should have easily accounted for and created a more coherent plan,” she said. She noted numerous accounts of confusing directives from officers.

“You would be directed to get on the sidewalk. Oh, no, you can't be on the sidewalk. Get in the street. Oh, not on this side of the street. Go that direction. Yes, you have to disperse as a member of the media and be outside of this kettle, or we're not going to call it a kettle, because that's illegal. But we're not going to tell you where you can actually exit.”

Some journalists also urged their colleagues to reconsider their approach to dealing with police. Brian Karem noted that having covered every convention since 1984, “I want to tell you, that what we saw was not unusual. … What I always tell journalism groups beforehand is reach out ahead of time and say, ‘Listen, I know you all are going to be worried about us there. We should be involved in that planning.’ Sometimes they'll listen to you. Sometimes they won't.”

if you had seen a cop act that way to anyone else, you would videotape it. You would interview them. You would report it. Don't take yourself out of that mix.

When dealing with police on the scene, he said journalists should “be nice, but be firm,” and must be willing to be arrested. And when police act inappropriately, report it, he said. “If it had happened to anyone else, if you had seen a cop act that way to anyone else, you would videotape it. You would interview them. You would report it. Don't take yourself out of that mix. You're also a human being that deserves to be treated with respect,” Karem said.

“But never get rude or combative with them, because that only plays against you. You've got to maintain that sense of decorum, which is really hard when they're being assholes to you,” he added.

Chicago-based journalist Raven Geary of Jinx Press raised concerns about “parachute journalism” and unnecessary agitation by out-of-town reporters. “You guys get to go home, and we still have to deal with these police,” she said.

“I think as journalists, we have a very big responsibility to the communities we cover not to raise the temperature and not to agitate, because when that police violence comes down, it's going to come down on people who have less resources than us, and are more marginalized than us, and more vulnerable than us, and these police are now amped up after everything that happened,” she said.

You can read and listen to the conversation here, even if you don’t use X. Note that the transcript is AI-generated and imperfect.

Protesters clash with police during a demonstration outside the Democratic National Convention on Aug. 22, 2024, in Chicago.

We wrote last week about the Chicago Police Department’s “abysmal failure” to respect journalists’ rights during protests outside the Democratic National Convention.

We followed that up this week with an Aug. 26 “X Space” conversation featuring Mickey Osterreicher, general counsel for the National Press Photographers Association, and Katherine Jacobsen, the Committee to Protect Journalists’ U.S. and Canada program coordinator.

Jacobsen attended the convention, while Osterreicher worked with local lawyers to free journalists arrested covering protests.

On the inside

Jacobsen noted that protests were audible from the convention hall, and commented on the “jarring contrast” between the protests outside and the “very scripted programming” inside. That may have been good news for demonstrators, who weren’t sure whether they could be heard from the highly contested protest route.

Jacobsen commented on the widely reported chaos for journalists and others attempting to get through security and into the convention hall, as well as the high cost for journalists to obtain basic workspaces and internet connectivity at the convention: “It's really unfortunate that the cost was so high because it does make it so much more difficult for local news outlets to be able to cover something that is … of national, international importance that's happening in their own community.”

Social media influencers, on the other hand, were given “great access” and “nicer facilities” while journalists were “packed into the press section like sardines most nights,” said Jacobsen.

Asked if the convention gave any indication of whether the Harris campaign would make itself more accessible to the media going forward, Jacobsen said it was difficult to tell. But she pushed back against false contrasts between Harris and her opponent, Donald Trump, when it comes to interactions with the press.

“Access doesn't necessarily equate to quality discussion,” she said. “What kind of interactions does the media get from Trump? And are those constructive for furthering political discourse?” she asked. “Should there be more access from the Democrats? Absolutely, going forward. I hope we see that. But are all the criticisms of saying, you know, that Trump has granted so much more access than the Democrats have? Well, sure. But to what end?”

In the streets

Osterreicher said he, along with the Reporters Committee for Freedom of the Press, had trained Chicago police on press freedom at protests prior to past major events. They also trained Milwaukee police prior to this year’s Republican National Convention.

But this time, Chicago officials said they’d conducted their own First Amendment training and did not need any outside help. Turns out they did — they repeatedly dispersed law-abiding journalists along with protesters, depriving them of the ability to cover police conduct. “As we've seen through a number of previous court cases over the years, especially during the Black Lives Matter protests, … the courts ruled that journalists are not participants” in unlawful assemblies and therefore not subject to dispersal, Osterreicher explained.

Tom Ahern, the Chicago Police Department’s deputy director of news affairs and communications, repeatedly threatened to confiscate press passes from journalists who didn’t abide by his unconstitutional dispersal orders, and in at least one instance reportedly ripped a press pass away from a journalist.

In addition to those dispersed, the U.S. Press Freedom Tracker, a project of Freedom of the Press Foundation (FPF), has reported the arrests of three journalists, and is researching more potential cases. Osterreicher said police had committed to avoid detaining journalists and instead issue citations so the journalists could get back to doing their job. They didn’t honor that commitment.

By arresting them and keeping them detained for hours, he said, police imposed a “constructive prior restraint, because these journalists have been taking pictures … and because they were in custody, they couldn't get those pictures out to their news outlets.”

Jacobsen agreed, citing “the newsgathering that was lost by having reporters … removed from the scene.” As a result, she said, “We don't have documentation of what happened from certain hours,” particularly when police dispersed protesters.

Police often argue that, especially these days when anyone with a phone can report news, it’s impossible to distinguish between journalists and protesters. Adding to that, some journalists intentionally try to blend in to avoid making themselves targets. Osterreicher said, in the absence of bright-line tests, officers should assume someone acting like a journalist is one.

“Just as our criminal justice system works as we would rather let 99 guilty people go free than convict one innocent person, assume that they're journalists and let them do their jobs” he added.

Even if you don't use X, you can listen to the full conversation, and read an (AI generated and imperfect) transcript, here.

A World War I-era document containing a secret ink recipe that the federal government deemed worthy of classification for nearly 100 years.

The government has too many secrets, and most of them shouldn’t be secrets in the first place.

How much information is overclassified? Our best guesses range from 75% to 90%. If the conservative estimate that the classification system costs $18 billion a year is taken at face value, this means the government could be overcharging taxpayers nearly $16 billion annually to hide information that doesn’t need protection (like the sex of the dog that participated in the raid to kill ISIS leader Abu Bakr al-Baghdadi, which U.S. Special Operations Command deemed classified national security information).

It also means the government is overclassifying information whose release would be in the public interest (like the photos the U.S. Marines took in the aftermath of killing 24 unarmed people in 2005 in Haditha, Iraq).

A new bipartisan bill from the Senate Committee on Homeland Security and Government Affairs attempts to fix this. Introduced by Chairman Gary Peters, D-Mich., and John Cornyn, R-Texas, the Classification Reform for Transparency Act of 2024 has a lot to like — but it falls short in a crucial way: There is currently no way to tell if the bill would actually reduce the number of unnecessary secrets, because we don’t know how many there are in the first place.

The good news

The classification bill would, among other things:

• Establish an interagency task force that would clearly define the terms used to designate classification categories. This is important because most classification decisions are subjective, relying on vague interpretations of “damage to national security” to bolster their claims. Tighter and more precise definitions of the terms used to justify secrecy decisions should result in fewer secrets.
• Create consequences for federal employees who willfully classify information that should not be classified, as well as cash incentives for people who file good-faith classification challenges. This should help address the current culture of risk avoidance, which has created a situation where there are no carrots to promote good classification challenges, and few meaningful sticks to avoid overclassifying.
• Call for explicit funding for classification and declassification programs. This is a big step in the right direction because the government currently has no reliable figures for what the classification system truly costs. The bill would address that problem by requiring agencies to assess and report on estimated expenditures for classification programs, and calling for at least 10% of these totals to be dedicated to declassification efforts.

The not-so-good news

The intent of the bill is to reduce the number of secrets the government generates. Unfortunately, we don’t actually know how many documents are classified across the government, and there are no reporting requirements in the bill that would allow us to see if the government was hiding more or less information from one year to the next. This undercuts the bill’s intentions.

Take, for example, the bill’s tasking of the interagency task force mentioned above to create a plan to phase out the “confidential” classification category, which is the lowest of the three classification categories, below “secret” and “top secret.”

The hope is that by removing the confidential category, fewer things would be classified. It is possible, however, that if the confidential level were phased out, some agencies would simply classify more information at the higher secret level, rather than classifying less information to begin with. To make sure this doesn’t happen, we would need to know how many records are currently classified, and at what level they are classified.

This is where we run into trouble.

How to fix it

The Information Security Oversight Office, which oversees government-wide compliance with the security classification program, used to report on the number of classification decisions made across the government every year. In fiscal year 2017, the last year the data is available, it reported 58,501 original classification decisions made across the government (1,398 top secret, 48,056 secret, and 9,047 confidential). In addition, 49 million derivative classification decisions were made (9,615,440 top secret, 36,115,33 secret, and 3,710,737 confidential).

Original classification decisions are those made by a designated agency official who is responsible for deciding if something should be classified and at what level, and derivative decisions are made by agency employees who paraphrase, restate, or otherwise repurpose that information.

Unfortunately, ISOO has not reported on the number of government-wide classification decisions — by classification level or otherwise — in over five years. This is ostensibly because the data it received from agencies on the number of classification decisions they were making was so poor, and so inconsistent from one agency to the next, that ISOO found reporting these figures to be unreliable.

Put more simply: The government doesn’t know how many secrets it has, and there is currently no quantifiable way to tell if eliminating a classification category — or enacting any of the bill’s other components — would reduce the number of secrets agencies generate.

Sen. Peters’ news release for his bill acknowledges this information gap, suggesting 50 million new classified records are created every year, but this projection is likely based on historical trends that do not adequately account for the explosion of electronic records, and the impact this has on the number of derivative classification decisions in particular.

Congress should work with officials at ISOO as part of this legislative effort to understand why agencies don’t — or can’t — accurately and consistently track the number of classification decisions they make, and chart a path forward that ensures that agencies can successfully do so.

Without this practical metric to measure against, we would be hard-pressed to assess the impact of the necessary and well-intended legislation.

Democratic presidential nominee Vice President Kamala Harris talks to the media in Michigan on Aug. 8, 2024.

Plenty has been said about Vice President Kamala Harris’ media availability, or lack thereof, during her presidential campaign so far. She hasn’t given interviews yet and hasn’t answered questions from the press nearly as often as past candidates for the nation’s highest office.

The criticism continued at the Democratic National Convention, where some observed that organizers seemed to be pricing out journalists, prioritizing social media influencers over reporters, and otherwise treating the press as an unwelcome nuisance.

We agree that anyone auditioning to be the world’s most powerful person should demonstrate to the public that they can handle tough questions. But here’s the thing: Harris is far from the first internet-era politician to avoid journalists.

Politicians aren’t concerned with political fallout from shutting out reporters. They instead believe that new ways to communicate mean they no longer need journalists to reach the electorate.

Political campaigns don’t make these kinds of decisions with press freedom principles in mind — they’re only concerned with winning. Until they think avoiding journalists will harm them politically, they’re not going to change course.

Harris’ approach shows that politicians currently aren’t concerned with political fallout from shutting out reporters. They instead believe that new ways to communicate mean they no longer need journalists to reach the electorate. Many decide that the hit they’ll take for avoiding the press is a small price to pay to deliver their message in ways they can better control.

Journalists need to change that equation by loudly calling out all politicians who attempt to duck scrutiny — not just presidential candidates. It seems to be working, to some extent, with Harris. She has committed to begin sitting for interviews. It can also work at the local level.

Governors, local officials stonewall press

I joined the Poynter Institute for a symposium in Miami in 2023 focusing on the growing trend of public officials “bypassing independent reporting.”

At the time, the presidential candidate refusing to play ball with the media was Florida Gov. Ron DeSantis. Florida journalists described how he’d replaced news conferences in the state’s Capitol with rallies packed with supporters in locations far away from the Tallahassee press corps. Our U.S. Press Freedom Tracker has documented several instances of DeSantis not just avoiding the press but removing or barring journalists from his events.

DeSantis, unfortunately, is proudly anti-press. Journalists should still call him out so his constituents know about his antics, but he probably enjoys seeing the tears of his victims.

But other governors more likely to value a good relationship with the press, including California’s Gavin Newsom, have also stonewalled reporters. David Loy, legal director of the California-based First Amendment Coalition, told CalMatters that officials’ “message control practices do real harm to the public interest. … Because the people need to know the full story, not just the official story.”

It’s not just governors. Poynter’s report on the symposium cited examples involving lower-level public officials, like a sheriff in Florida refusing to alert the local paper to news conferences. It also noted that many government agencies made permanent cutbacks on transparency during the COVID-19 pandemic that were, ostensibly, temporary public safety measures.

Journalists concerned that they’ll be accused of whining or navel-gazing should make clear to the audience how official stonewalling impacts the quality of the news they ultimately consume

Just this week, the Las Vegas Review-Journal reported on local police denying independent journalists access and information available to legacy media outlets, effectively shrinking the pool of reporters with the ability to fully scrutinize them. And the Society of Professional Journalists condemned the Oklahoma State Department of Education’s denial of access to news conferences after the agency admitted it was retaliating for an outlet’s coverage.

Only journalists can hold officials accountable

“The result of these and similar practices is to replace journalistic scrutiny with stagecraft,” Poynter’s report rightly noted. And that’s not to mention the similarly widespread practice of routing information requests through spin-spewing public information officers rather than people with firsthand knowledge of the issues.

The report is worth reading in full – several intrepid local journalists describe reporting techniques they employ to get around public officials’ avoidance and find the news through other means. But in a case like the Harris campaign, there’s really no viable substitute for getting the candidate to speak off the cuff and on the record.

In instances like those, the report suggested that,

Journalists should make an effort to explain to the audience not only that the source is unwilling to participate, but also the context and ramifications of that decision. That shows the reporter is holding the newsmaker accountable and explaining that by withholding information from the journalist, they are also shutting out the public.

Although we absolutely encourage newspapers to editorialize about transparency and other press freedom issues, those editorials are not necessarily read by the same people who read the reporting that was impacted. Journalists concerned that they’ll be accused of whining or navel-gazing should make clear to the audience how official stonewalling impacts the quality of the news they ultimately consume — not just theoretically, but with specific examples.

Journalists should also make the connection when the same politicians who shut them out accuse them of bias. “Make clear in the story that you would’ve liked to attend the event yourself or speak to the official or their staff but you weren’t allowed to do so. If they believe the coverage is biased, they have themselves to blame,” I told Poynter.

As the saying goes, all politics is local. If journalists allow politicians in their communities to get away with avoiding the press, it’s not surprising if the practice spreads to the presidential level.

Freedom of the Press Foundation (FPF) co-founder and legendary Pentagon Papers whistleblower Daniel Ellsberg, left, and FPF's first Daniel Ellsberg Chair on Government Secrecy Lauren Harper, right.

Freedom of the Press Foundation (FPF) is excited to welcome its Daniel Ellsberg Chair on Government Secrecy, Lauren Harper.

Last year, FPF announced the creation of the Ellsberg Chair in honor of the legendary whistleblower and FPF co-founder, Daniel Ellsberg, who passed away in June 2023. As the first Ellsberg Chair, Harper’s work will focus on highlighting and fighting the multitude of ways the government keeps secrets — from the press, from the public, and from congressional overseers. Her work will also illuminate how rampant overclassification negatively impacts everything from public health to national security.

Daniel Ellsberg knew better than most that there are too many secrets, and they make us less safe. I’m honored, humbled, and excited to continue the fight against the secrecy system.

“We are so proud to further the legacy of our late co-founder Daniel Ellsberg with this important position,” said FPF Executive Director Trevor Timm. “Dan tirelessly and eloquently fought for secrecy reform for more than 50 years; we are extremely grateful that Lauren Harper will carry the torch in his name.”

Harper joins FPF after a decade fighting excessive government secrecy with Washington, D.C.-based nonprofit, the National Security Archive. There she served as public policy director and helped historians, journalists, and the public win the declassification of historically significant government documents. She has extensive experience with the Freedom of Information Act, both as a prolific FOIA requester and former member of the Federal FOIA Advisory Committee, and is an expert on the classification system, the Presidential Records Act, and records management issues. She holds a master’s in public policy and a master’s in Middle Eastern studies, both from the University of Chicago.

“Daniel Ellsberg knew better than most that there are too many secrets, and they make us less safe,” Harper said. “I’m honored, humbled, and excited to continue the fight against the secrecy system. I hope that my work will help more people understand and question the mechanisms of government secrecy, as well as the validity (or lack thereof) of those secrets.”

For more information about the Daniel Ellsberg Chair on Government Secrecy, or if you’d like to interview Lauren Harper for a story, please reach out to media@freedom.press.

Pro-Palestinian demonstrators and pro-Israel demonstrators clash at the University of California, Los Angeles on April 25, 2024.

Spring semester is typically filled with talks of finals and impatient waiting for summer to start. But last April, more than six months into Israel’s war in Gaza, students frustrated with university leadership for ignoring calls to divest from companies supporting the war effort filled campus streets and lawns with pro-Palestinian demonstrations and encampments.

Many of those demonstrations resulted in unwarranted and unnecessary arrests, assaults, and abuses of both student and professional journalists after college administrations deployed local and campus police to dampen student activism.

Four months later, the war is still happening — and the protests are likely to return. As students make their way back to campus for the 2024-25 academic year, Freedom of the Press Foundation (FPF) authored letters to universities around the country, outlining the constitutional framework that protects the press and providing guidelines for university leaders and law enforcement to follow to allow journalists to cover protests freely and safely.

From the Vietnam War to climate change to the Black Lives Matter movement, college and university campuses have historically served as gathering places for students, faculty, and community members alike to assemble and protest their grievances. These moments shape history, and journalists must be allowed to report on them. Universities play up past student anti-war activism for nostalgia-based marketing and PR campaigns, but when that history repeated itself during the Israel-Gaza war, schools suppressed coverage by arresting journalists.

Colleges should not repeat the same mistakes. In the letter, FPF explains that even when protests get out of hand, journalists have the right to remain on-site, and are entitled by law to document, record, or film any officer performing their duties without facing fear of arrest. Student journalists reporting on pro-Palestinian encampments last year were met with spray irritants, fireworks, police kettling, and arrests — all of which are violations of their First Amendment rights, particularly if journalists were targeted. As the letter explains,

Protecting the press is not about elevating journalists above others, but upholding the First Amendment right of the public to receive information. Without journalists present on the scene and able to report freely, officers are less accountable, and abuses of non-journalists are more likely. Incidents of harassment or violence against journalists have a “chilling effect” that dissuades other journalists from doing their jobs effectively.

Recipients of the letter include the University of Texas at Austin, Columbia University, Stanford University, the University of California, Los Angeles, and many more.

As an example, you can read our correspondence to UCLA here or below. And if you think your school’s administrators could use a reminder about press rights, please reach out and let us know.

Police disperse both protesters and journalists at a demonstration during the Democratic National Convention on Aug. 19, 2024, in Chicago.

The First Amendment prohibits police from dispersing law-abiding journalists covering protests, even in circumstances where lawbreaking protesters can be dispersed. Everyone from the Department of Justice to federal appellate courts agrees on that.

Nonetheless, the Chicago Police Department repeatedly dispersed, arrested, and threatened journalists at protests during the first two days of the Democratic National Convention.

They can’t claim they weren’t warned. I joined WBEZ Chicago’s Reset with Sasha-Ann Simons on the first day of the convention to remind CPD officers responding to demonstrations of journalists’ rights.

By dispersing and arresting journalists, police are effectively censoring newsworthy, vital information, including about their own conduct and potential misconduct.

I explained that “the aftermath of a protest is every bit as much the news as the protest itself. The police response to a protest is a huge part of the story, (and) that story can't get out if journalists are dispersed along with protesters.”

It wasn’t the first time we've cautioned Chicago police about this. We also wrote an op-ed in the Chicago Sun-Times, quoting the DOJ’s proclamation last year that “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.” We emailed that op-ed to numerous police and city officials to make sure they saw it, but received no response.

It’s not that we’re offended that police brass don’t read our emails and op-eds. We all get too many emails. But we’re offended that we even need to write them, given how easy it would be for officials to educate themselves about press freedom if they cared.

Mickey H. Osterreicher, general counsel for the National Press Photographers Association, told us on Wednesday that the NPPA had conducted a training on press rights for Milwaukee police in advance of the Republican National Convention and offered to do the same in Chicago.

“They told me that they had been providing First Amendment training and they didn’t need anything from NPPA. Given the events of last night, I would have to say that that alleged training was an abysmal failure,” he said.

Indeed, hours after the WBEZ broadcast, Deputy Director of News Affairs and Communications Thomas Ahern was filmed warning journalists that if they failed to disperse from a city park along with protesters their press passes would be revoked.

That alone should disqualify Ahern from serving as a news affairs and communications official for CPD or any other police department. But he doubled down the next day, reportedly ripping press credentials off of journalist Josh Pacheco, one of at least three arrested after police dispersed protesters. Pacheco's and another journalist's seized credentials were later returned, after the NPPA and lawyers for the journalists intervened.

Several more protests are planned during the remainder of the convention. In light of the events of this week, and CPD’s long history of First Amendment violations when policing protests, from the DNC in 1968 to Black Lives Matter demonstrations in 2020, we’re not optimistic that officers will change their unconstitutional ways.

This won’t just impact journalists – reporters who are needlessly detained can’t report on police response to protests in a city on edge about a potential repeat of 1968. By dispersing and arresting journalists, police are effectively censoring newsworthy, vital information, including about their own conduct and potential misconduct.

We’ve asked Ahern and others at CPD if they have some sort of legal or constitutional basis for disagreeing with the DOJ and appellate courts about the unlawfulness of stopping journalists from reporting news through dispersal orders. Let’s see if they read that email.

This article has been updated to note the return of journalists' seized credentials.

"JewishStar newsbox2" by Douglas Wertheimer, Editor of the Chicago Jewish Star is licensed under CC BY-SA 3.0.

A few short months ago, a couple of college kids at Northwestern University placed parody flyers with obviously fake Daily Northwestern front pages on stacks of student newspapers around campus. They didn’t remove or damage any newspapers — anyone who wanted to read one could simply discard the flyers, which objected to the school’s response to the Israel-Gaza war.

Yet prosecutors in Cook County, Illinois — which includes Chicago and Evanston, Northwestern’s (and my) hometown — dug through the law books to charge the students under a rarely used statute criminalizing “theft of advertising services.” The Daily’s publisher later urged prosecutors to back down, but only after backlash from the national press and even the Daily’s editors for involving law enforcement in responding to harmless civil disobedience on a college campus.

That’s why it was surprising to read in the Chicago Reader’s newsletter that, in anticipation of the Democratic National Convention, the city of Chicago instructed a vendor to remove at least 83 newsracks from downtown Chicago, without notifying the Reader or, presumably, other impacted news outlets.

The Reader doesn’t know what happened to the papers that were in those racks. Nor do advertisers who placed ads in them.

So what happened to “theft of advertising services”? It’s true, the law under which the Northwestern students were charged criminalizes only placing unauthorized inserts in newspapers. Taking newspapers out of circulation outright might not technically violate the law. But it’s a safe bet that no one at the state’s attorney’s office burned midnight oil last night to find another way to vindicate the rights of the Reader and its advertisers.

It sure seems like there’s a double standard at work. When activists merely obscure advertisements in newspapers with a flyer as a way to get their message out, that’s serious enough that prosecutors feel compelled to dig up a reason to charge them with a crime.

But when city officials decide newsboxes are an eyesore, they can not only obscure them but remove them, and the newspapers they contain, ads and all.

Speaking of, why do city officials apparently view the presence of newsracks as offensive in the first place? Do they seriously think visitors in town for the DNC — presumably, people who follow public affairs and read news — will think less of the city for having public displays of newspapers? Does a single resident of Chicago want their tax money spent on this?

Newsracks obviously aren’t nearly as prevalent as they once were, and the city has previously removed newsboxes it deemed abandoned pursuant to its municipal code. But alternative newspapers still use newsracks and, according to the Reader, those the city removed before the convention were far from abandoned.

Distribution of news — through newsboxes or otherwise — is constitutionally protected. Almost 40 years ago, a federal judge in Chicago struck down an ordinance granting a suburban mayor unchecked discretion over newsbox placement, calling it an unconstitutional prior restraint. That ruling came soon after the Supreme Court upheld an appellate ruling that a similar ordinance in Lakewood, Ohio, violated the First Amendment.

The Reader has promised to investigate the newsrack removals. “Following in the fine Chicago tradition, let the muckraking begin,” reads the newsletter. If reporters’ findings show that the city violated the First Amendment, hopefully it’ll be held accountable in a court of law.

Regardless, the city should be judged harshly in the court of public opinion. Chicago’s press is far from immune from the challenges facing virtually all media outlets these days — both of the city’s major daily newspapers have faced bankruptcy. But the city has also rightfully been called a “hub of innovation” for local news, with small and unconventional news outlets, including the Reader, collaborating to produce award-winning investigative journalism.

That’s something to be proud of, not something to hide from outsiders. That the city apparently feels otherwise is what’s really criminal.

A relative mourns Palestinian journalist Akram Al-Shafi'i in January, after he was killed in an Israeli bombardment of the Gaza strip.

Ten months into its war on Gaza, Israel has killed well over 100 Palestinian journalists – by some counts, up to 160. It’s the largest recorded number of journalists killed in any war. And in many cases, the U.S. provided the murder weapons.

Through both indiscriminate bombing and deliberate targeting of journalists, Israel has used U.S.-supplied weapons to suppress media coverage of the ongoing war. Along with Israel’s refusal to let international press into Gaza, the killings (not to mention injuries and detainments) leave the public to rely on a shrinking number of journalists who continue to place their lives on the line to report their reality.

This week, Freedom of the Press Foundation (FPF) joined 140 press freedom organizations, journalists and news outlets in a letter to U.S. Secretary of State Antony Blinken — led by Defending Rights & Dissent, Courage Foundation and RootsAction — urging the U.S. to immediately cease sending weapons to Israel due to its continued killings of journalists.

When journalism is depleted by bombs, bullets, and censorship, the horrors of war can be more easily concealed, placing other civilians’ lives at risk.

The Biden administration may employ harsher rhetoric when discussing Israel than it did a few months ago, but as long as it unconditionally provides weapons and funding it is entirely complicit in Israel’s violations of international law.

The complicity runs deeper than providing Israel with weapons to kill dozens of journalists and intimidate the ones that survive. When Israel raided and banned Al Jazeera, one of the few international outlets providing continuous coverage of the war, and raided The Associated Press, the White House did no more than call the moves “concerning” and pledge its support to the journalists.

Empty words are no longer enough. We signed the letter because the time for half measures is over. Soft pressure simply isn’t working.

To protect lives, the press, and the public’s right to know, it’s time for the U.S. to immediately stop any and all military support and transfer of war materials to be used in furtherance of what the letter calls “one of the gravest affronts to press freedom today.” This isn’t just about journalists — their lives aren’t more important than anyone else’s. But when journalism is depleted by bombs, bullets, and censorship, the horrors of war can be more easily concealed, placing other civilians’ lives at risk.

The State Department is prohibited by the Leahy Law from providing military assistance to violators of human rights. Just this week, the U.S. violated its own laws again by approving the sale of $20 billion in military equipment to Israel, despite its targeting of journalists and other war crimes.

This unconditional and unacceptable support to Israel has to end, especially after it admitted earlier this month to deliberately killing two journalists who were wearing press identifiers, sloppily accusing them of ties to Hamas to justify its actions. News coverage of the killings has been scarce, showing that Israel’s censorship campaign is succeeding.

The U.S. must wake up and see Israel’s targeting of the press as what it is — an effort to keep all eyes anywhere but on Israel. Continuing to support that effort is irreconcilable with the United States’ professed values as a democratic country that constitutionally safeguards free speech.

The full letter is available here and embedded below.

Eric Meyer, publisher of the Marion County Record, outside the newspaper's office with a memorial for his mother Joan, who died the day after police raided their home.

It’s been a year since Marion, Kansas — population 1,922 — made global headlines after its whole police department raided the Marion County Record’s newsroom and its owners’ home. The paper’s 98-year-old co-owner Joan Meyer, shocked by the intrusion, died the next day.

The fallout continues. This week, special prosecutors finally released their long overdue report on the raid. It’s a mixed bag. They cleared the Record’s journalists of wrongdoing, but that should’ve been easy: The notion that they violated computer crime laws by using a government website to verify a tip was nonsensical from day one. Better late than never, though.

The Marion raid was an unusually dramatic violation, but authorities disregard the law on a smaller scale all the time, in ways its drafters couldn’t have imagined.

We also learned that Gideon Cody, the ex-police chief behind the raid, will be charged with after-the-fact obstruction. But he should be charged for the raid itself, not just the cover-up. What message does that send? Feel free to orchestrate revenge raids on newsrooms, as long as you're honest about it?

And it does seem like Cody — a Marion outsider who started as chief a few months before the raid — was the fall guy. He certainly did not act alone, but he’s the only one being charged.

One reason it should’ve taken days, not a year, to deem the raid illegal is its irreconcilability with the federal Privacy Protection Act of 1980. From the outset, press freedom advocates and the Record’s lawyers cited the little-known federal law — which probably makes the news about as often as Marion, Kansas. It should have stopped the raid before it started because it makes clear that Judge Laura Viar should never have issued the warrant authorizing the search.

The act outlaws searches and seizures of journalists’ materials, unless the journalist is being investigated for a crime. Congress was uncharacteristically prescient in anticipating that authorities would abuse that crime exception by inventing ways to characterize newsgathering itself as criminal. It included an exception to the exception to ensure that wouldn’t happen.

And yet, in Marion, it did. Still, newsroom raids are rare, especially since the enactment of the act in response to a 1971 intrusion into The Stanford Daily student newspaper’s offices. After the Marion raid backfired so spectacularly, it is hopefully less likely that we will see a similar one anytime soon.

But that doesn’t mean the act should fade back into obscurity. The Marion raid was an unusually dramatic violation, but authorities disregard the law on a smaller scale all the time, in ways the act’s drafters couldn’t have imagined. Searching a journalist’s phone after a protest arrest, for example, is just as illegal as barging into the Record’s office and stealing its computers and files.

In fact, The Stanford Daily recently had another run-in with the act, which it prompted lawmakers to pass in the first place decades ago — but this time in a distinctly 21st-century setting.

Sheriff’s deputies in Santa Clara County arrested student journalist Dilan Gohill while he was on assignment covering a pro-Palestinian protest on campus. Stanford is, alarmingly, standing fully behind the prosecution, despite that the student journalist was indisputably not there to protest, let alone break laws, but to document the news.

It gets worse. Gohill’s lawyers allege that, while processing Gohill, officers tried to make him unlock his phone with his face. That’s a blatant violation of the act (and state law). Fortunately, Gohill refused to unlock his phone and was able to move his face to avoid being forced to do so.

Also in California, the San Francisco Police Department earlier this year obtained an unlawful search warrant against independent news outlet IndyBay — as well as an illegal gag order barring the outlet from talking about it.

Thanks to legal help from the Electronic Frontier Foundation, the warrant was eventually voided, but it wasn’t an isolated incident: The same department raided the home of freelance journalist Bryan Carmody in 2019.

The cumulative effect of these violations is to intimidate journalists and encourage self-censorship.

Of course, those examples are not as egregious as what happened in Marion. They didn’t involve nearly as much coordinating and conspiring. There’s no indication that the deputies had any personal beef with the Daily. Marion officials, on the other hand, had a long-standing grudge against the Record for investigating them. And, of course, no one died.

But these smaller-scale incidents add up. The U.S. Press Freedom Tracker has recorded 102 searches or seizures of journalists’ equipment since its launch in 2017.

And most of those searches violated the act, from Asheville, North Carolina, authorities obtaining an illegal warrant to search journalists’ phones for evidence of wrongdoing by protesters to the FBI raiding Tampa, Florida, journalist Tim Burke’s home newsroom over allegations that he broke computer fraud laws by finding interview outtakes online where a pop star went on antisemitic tirades.

Along with plenty of other alarming press freedom transgressions — arrests of journalists for reporting on local crime, restraining orders against reporters for knocking on officials’ doors, a marked increase in illegal judicial censorship orders — the cumulative effect of these privacy act violations is to intimidate journalists and encourage self-censorship.

Tech-savvy journalists attempt to mitigate these problems and protect their sources through digital security measures like encrypting their communications — but authorities try to criminalize that too, citing use of encryption as evidence of criminal intent. If you’ve got nothing to hide, why encrypt, say the same cops who want to encrypt their own communications to evade public scrutiny.

It’s a national problem, equally prevalent in urban and rural communities, whether in red or blue states. The anniversary of the Marion raid should not just serve as an occasion to shake our heads at the missteps of some small-town cops in Kansas. It should be a reminder to all journalists, and all law enforcement officers, of the rights afforded to journalists by the First Amendment and laws like the Privacy Protection Act.

But it would've been a far more effective reminder had there been swift and serious accountability for all of those responsible.

Texas Department of Criminal Justice signage is displayed outside the Huntsville "Walls" Unit in Huntsville, Texas.

Jeremy Busby, a journalist incarcerated in Texas, has twice written for Freedom of the Press Foundation (FPF) about the retaliation he has endured for his journalism, including for a recent piece about a bad batch of drugs in prison leading to increases in violence and suicides.

He recently called into the Project Censored Show from prison to discuss his situation. FPF Advocacy Director Seth Stern joined the radio program to talk about the obstacles facing journalists seeking to cover prisons — both from the inside and the outside.

Before detailing his current circumstances, Busby recalled the first time he was reprimanded for his journalism.

“The warden called me in, and he pointed to the perimeter fence around the prison, and then he questioned me, he said, ‘Busby, do you know what that perimeter fence is for?’ And I said, ‘Of course, so inmates [don’t] escape … And he says, ‘You're wrong. That perimeter fence is to keep the public out of here, and the thing that you're doing is you're allowing the public to have access to here, and that's not a good thing. You can run into trouble for that.’”

After Busby’s telephone time on the show expired, Stern added that the discipline he and other journalists face in prison “might be a preview of how the rest of society looks if antispeech authoritarians get their way.”

He explained that government officials, from the Pentagon Papers case to the Julian Assange prosecution to he TikTok ban, frequently attempt to use “security” as some kind of magic word that nullifies the First Amendment and provides a free pass for censorship and retaliation. But behind prison gates, the bar is far lower than on the outside, and officials often succeed in limiting free speech based on flimsy pretexts.

Stern also discussed the problems that outside journalists face attempting to report on prisons, including the inability to set up media visits or communicate with inmates through nonmonitored channels, and a court system so rigged against inmates that newsworthy lawsuits get dismissed over technicalities before they can be adjudicated and reported on. It leaves “a really big hole in journalism’s overall coverage of one of the institutions of government that probably needs oversight the most.”

You can listen to the episode here. For more information about Busby and how to help, visit JoinJeremy.org or sign this petition.

Against all odds, the Marion County Record managed to publish an edition of the newspaper the week after the raid on its newsroom last August, despite the seizure of its computers and equipment.

Special prosecutors today finally released their report on the police raid of the Marion County Record last August 11. The report recommends criminal charges against former Marion Police Chief Gideon Cody, and clears the Record and its reporters of wrongdoing. It also warns against search warrants and raids of newsrooms, which almost always violate federal law.

“Last August’s police raid of the Marion County Record’s newsroom and its owners’ home was an affront not only to the U.S. Constitution but to human decency. That’s why Americans across the country and the political spectrum were outraged by what Record co-owner Joan Meyer called ‘Hitler tactics,’” said Freedom of the Press Foundation (FPF) Director of Advocacy Seth Stern. Meyer, 98, died the day after the raid, possibly from shock.

Last August’s police raid of the Marion County Record’s newsroom and its owners’ home was an affront not only to the U.S. Constitution but to human decency.

Stern added, “While we welcome the news that the former police chief who orchestrated the raid, Gideon Cody, will be criminally charged, he should’ve been charged with more than after-the-fact obstruction – the raid itself was criminal. And Cody is far from the only one at fault here. We hope he and everyone else behind the raid will also be held accountable, through the criminal courts, civil courts, and courts of public opinion. They should never work in law enforcement or government again. 

“We also welcome the finding that the investigation of the Record and its reporter for using a government website to verify a news tip was baseless. That being said, it should not have taken nearly a year for investigators to reach these extremely obvious conclusions. As we said the night of the raid, journalists are fully entitled to access government records to do their jobs, and raids of newsrooms based on legal theories that criminalize newsgathering are plainly against federal law.” 

The Kansas Reflector also reported yesterday that Judge Laura Viar, who authorized the warrant, told investigators an entirely different story about the events leading up to that egregious judicial error than the one Cody and others told. Nonetheless, she escaped discipline by the Kansas Commission on Judicial Conduct. 

“Judges across the country are displaying an alarming lack of understanding of or concern for First Amendment protections for the press, with a disturbing lack of accountability,” Stern said. “The investigation of Viar should be reopened in light of the Reflector’s reporting. But she should’ve been disciplined the first time around. There is no excuse for a judge in the United States thinking it’s acceptable to authorize a raid of a newsroom.” 

New Mexico State Police and University of New Mexico police arrest pro-Palestinian protesters at the University of New Mexico in Albuquerque on April 30, 2024.

Charges have been dismissed against two Albuquerque journalists who were arrested at the University of New Mexico during a police sweep of a pro-Palestinian encampment in May. Although they no longer face trial, the journalists’ arrests and subsequent prosecution were violations of their constitutional rights and should have never occurred in the first place.

“By dropping the prosecutions, the UNM Police Department sent a message, albeit belatedly, that journalists can report freely,” Freedom of the Press Foundation (FPF) advocacy intern Jimena Pinzon wrote for the Albuquerque Journal. “While they deserve some credit for eventually coming to their senses, next time they need to avoid heading down this path in the first place.”

Pinzon also discussed a problematic legal quirk that allows police in New Mexico to prosecute misdemeanor cases without involving actual prosecutors. That allowed police to cut out the local district attorney, whose office had vowed not to prosecute First Amendment activity at protests.

You can read the op-ed here.

The brutal Chicago police response to protests during the 1968 Democratic National Convention was disastrous. As the city hosts another convention, during another unpopular war, police have a chance to get it right.

As journalists flock to Chicago to cover the Democratic National Convention Aug. 19-22, local police must allow the press to report on what’s happening inside and outside the event — even if tensions escalate.

In a highly politicized election cycle, characterized by the ongoing war in Gaza, protests are likely to be widespread and newsworthy. In an op-ed for the Chicago Sun-Times, Freedom of the Press Foundation (FPF) urged Chicago authorities to uphold the First and Fourth amendments and allow journalists to do their jobs.

As we explained, “The issue isn’t about putting journalists on a pedestal … When journalists aren’t watching, abuses of peaceful protesters are more likely. The public suffers by being uninformed. The only beneficiaries are officials looking to avoid accountability.”

You can read the op-ed here.

Securities and Exchange Commission Chair Gary Gensler testifies during a Senate subcommittee hearing last year.

The Securities and Exchange Commission requires defendants who settle cases it brings to contract away their right to deny the SEC’s allegations. So does the Commodity Futures Trading Commission. That means potential sources can’t speak to financial journalists.

We wrote for The Hill about why it’s a problem when financial regulators – known for occasionally crashing the global economy – use their leverage to stifle criticism.

We explained that “the First Amendment rejects the notion that the government can protect its reputation by silencing critics. … It’s an excuse that could be used to rationalize any form of censorship by any agency.”

Read the full op-ed here.

The Los Angeles Times recently reported that the Los Angeles County Sheriff’s Department investigated a journalist for receiving stolen property based on her reporting on government records.

Back in January, we warned about the dangers of authorities characterizing journalists’ source material as “stolen goods” in an attempt to circumvent the First Amendment and prosecute journalists for receiving information from their sources.

But our lead example then was the investigation of Project Veritas for obtaining Ashley Biden’s diary from a thief — not exactly a sympathetic set of facts. Recently, though, the Los Angeles Times reported that the Los Angeles County Sheriff’s Department secretly investigated reporter Maya Lau between 2017 and 2021 for obtaining a list of “problem deputies” from a source.

The basis for the investigation? That Lau “knowingly received stolen property.” Sounds familiar. Authorities in LA ultimately did not indict Lau, probably because the Supreme Court has already ruled, most recently in the seminal 2001 case Bartnicki v. Vopper, that journalists are entitled to receive and publish illegally obtained documents and recordings from sources, as long as they don’t participate in the theft themselves.

The stolen property exception makes no sense. A journalist’s right to obtain and publish stolen documents is meaningless if they can’t 'possess' them.

The sheriff's department apologized for its actions, and said it no longer investigates journalists for publishing government records (they should tell their counterparts in LA’s city government, who just tried, unsuccessfully, to sue a journalist for possessing records that the city gave him).

But they might have reached a different decision if there were appellate cases recognizing a “stolen property” exception to the Bartnicki rule. And last week, the U.S. Court of Appeals for the 2nd Circuit came dangerously close to doing so in the aforementioned Project Veritas case, where the controversial outlet is accused of possessing stolen property, including Biden’s diary, and transporting it across state lines.

The stolen property exception makes no sense. A journalist’s right to obtain and publish stolen documents is meaningless if they can’t “possess” them.

It’s not the first time the government has come up with nonsensical ways to circumvent Bartnicki — prior examples range from prosecutors charging WikiLeaks founder Julian Assange with violating the Espionage Act by obtaining and publishing leaked government documents to indicting digital journalist Tim Burke for computer fraud for finding news online.

But at least the reach of those legal theories is limited to national defense reporting and digital journalism, respectively. The “stolen property” theory could criminalize any use of unlawfully obtained documents, essentially nullifying Bartnicki.

Nonetheless, the appellate court rejected the argument that Bartnicki barred the investigation of Project Veritas because “a magistrate judge issued search warrants after finding probable cause that the Petitioners’ electronic devices contained evidence of federal crimes including conspiracy to transport stolen property across state lines and possess stolen goods.”

This circular reasoning – that if a judge approved a warrant, that settles questions as to its constitutional propriety – is disingenuous and dangerous. Low-level judges rubber stamp warrant applications all the time, often without considering their constitutional implications.

Perhaps that's why the 2nd Circuit designated its order as non-precedential: it knew its reasoning was unsound and problematic if adopted by other courts. But even non-precedential orders can be persuasive to lower courts, or give them cover to endorse similar nonsense when convenient.

Of course, the award-winning journalists who published the Pentagon Papers and the Snowden leaks, and countless other journalists whose reporting has relied on information their sources obtained illegally, also “possessed” the documents they published.

Unless courts are cautious and specific when they carve out a particular set of unique facts from well-established press freedom protections, zealous lawyers are sure to quote their words out of context in support of bogus legal theories.

It’s possible the Project Veritas case is different. There are allegations that, after receiving the diary, Project Veritas requested that its source provide more of Biden’s property to help it confirm the authenticity of the diary. If the investigation is focused solely on that – whether Project Veritas instructed its source to steal non-expressive, non-newsworthy materials – then it’s another case (and a far less concerning one) entirely.

But the 2nd Circuit’s opinion, like previous rulings in the case, does not say that, and appears to lump in the diary with any other stolen materials at issue in the case.

That can’t have been the 2nd Circuit’s intention. It knows it is bound by the Supreme Court’s ruling in Bartnicki, and it can’t create an exception that swallows the rule whole.

But unless courts are cautious, clear and specific when they carve out a particular set of unique facts from well-established press freedom protections, zealous lawyers are sure to quote their words out of context in support of bogus legal theories.

And that’s likely what the LA County Sheriff's Department would have done if it had the 2nd Circuit’s ruling when it sought to convince prosecutors to pursue charges against Lau.

This article was updated to correct the spelling of Maya Lau's last name in the last paragraph.

A pro-Palestinian protester shouts slogans near Adas Torah synagogue on June 23, 2024, in Los Angeles.

This week, a series of real estate events promoting the sale of properties in Israel and possibly West Bank settlements are coming to Los Angeles. Given the violence against journalists after a similar event in June and at other demonstrations relating to the Israel-Gaza war, police in LA must ensure that journalists are able to report safely and freely.

Freedom of the Press Foundation (FPF) Advocacy Intern Jimena Pinzon and Advocacy Director Seth Stern wrote for the Los Angeles Daily News to remind the LAPD of journalists’ constitutional and legal rights and urge them to follow the law and its own guidelines.

The LAPD must foster a safe space for journalists covering protests, whether in response to the upcoming real estate events or otherwise. This will help in ensuring a well-informed public and a stronger democracy, and in avoiding the reputational and economic blows other departments have endured after illegally and unjustly cracking down on journalists for doing their jobs.

You can read the full op-ed here.