Freedom of the Press

We explained in an op-ed in The Hill that ongoing efforts to force investigative journalist Catherine Herridge to burn her sources prove that — contrary to popular belief — journalist-source confidentiality bolsters, not hinders, national security.

Nonetheless, a federal appellate court last month was alarmingly skeptical of Herridge’s appeal of an order holding her in contempt of court for not outing sources. What’s worse, much of the hearing was held behind closed doors, outside the view of the journalists whose rights the case threatens.

The op-ed also explains how the case exemplifies the need to pass the PRESS Act.

Read it here.

“Where are all the good people who are supposed to stop this from happening?”

Marion County Record co-owner Joan Meyer asked that question repeatedly before her death — a day after local police illegally and unconstitutionally raided her community newspaper and home in response to the Record’s reporting about a local restaurant owner’s drunk driving convictions.

Alabama reporter Don Fletcher and newspaper publisher Sherry Digmon might have asked themselves that same question.

Last year, the two were arrested on sham charges for allegedly revealing grand jury secrets. Digmon, who also served on the local school board, was charged with violating an Alabama ethics law as well. It’s yet another unfortunate effort to make journalism a crime and silence reporters.

The bogus criminal investigation came after Atmore News, the local newspaper co-owned by Digmon, published Fletcher’s article about a school board meeting and a subpoena seeking school board financial records from the previous year. The subpoena was issued by Escambia County District Attorney Stephen Billy.

Four months after the arrests, Billy admitted to personal and professional conflicts of interest in the cases, and removed himself as prosecutor. The state attorney general’s office dropped the charges soon after.

Now, Digmon and Fletcher, joined by a school board member and a district employee also caught up in the investigation, have filed a federal lawsuit against Billy, Sheriff Heath Jackson, and “allies” for conspiring to violate their First and Fourth amendment rights.

On the surface, the attack on Atmore News — like that on the Marion County Record — may appear limited to a few law enforcement officials abusing their power. But in both cases, a little digging reveals politically motivated multiparty schemes.

The similarities between officials’ arrest of Fletcher and Digmon and the raid on the Record are startling and informative. After the Marion raid, the response and backlash seemed to make a repeat unlikely soon. But just months later, the Atmore News found itself at the center of a similar attack on press freedom.

Paper’s punishment motivated by politics

Like the former police chief and mayor in Marion, who allegedly sought both to punish the Record for investigating them and attack a political rival, local politics were at the heart of Billy and Jackson’s campaign against Atmore News, according to Digmon and Fletcher’s lawsuit.

The lawsuit claims that the two men took an “unusual personal interest” in the employment of Michele McClung, the local superintendent, and carried out a “convoluted conspiracy of retaliation” ripe with press freedom violations and a complete disregard for state and federal law.

Billy allegedly used his power as DA to protect McClung’s job after an audit revealed issues with her management of financial records.

Among other actions, Billy sent what the lawsuit calls a “threatening letter” to school board members ahead of a meeting about McClung’s employment. At the meeting, he also threatened retaliation against board members who opposed McClung — including Digmon — claiming, “I don’t control much, but I do control the grand jury of Escambia County.”

Fletcher’s reporting on this local political spat in the Atmore News triggered the later arrests of Fletcher and Digmon.

Of course, it is plainly unconstitutional to arrest journalists for publishing truthful information on matters of public concern — even if public officials don’t like what was printed. Grand jury secrecy laws bind grand jurors and witnesses, not journalists.

Yet Fletcher and Digmon weren't only arrested, they were ordered, as a condition of bail, to stop reporting on local criminal investigations.

Bad legal theory behind illegal search warrant

Police also obtained a warrant to seize and search Digmon’s cellphone. The warrant was based on allegations that she and another board member had private conversations about the board’s vote on McClung’s employment and the vote’s outcome in violation of Alabama’s public records law.

This is yet another startling similarity to the Record case. There, Marion County police relied on a similarly nonsensical theory — connected to a Record journalist’s alleged misuse of public records — to justify an illegal search warrant granting them authority for a newsroom raid.

Digmon and Fletcher’s lawsuit, meanwhile, alleges that the search and seizure of Digmon’s cellphone violates the Fourth Amendment. They’re right. The Fourth Amendment requires probable cause to obtain a warrant — an element absent from this investigation.

There are many reasons why it doesn’t make sense to issue a search warrant for a journalist’s phone based on an alleged violation of the Alabama Open Records Act.

For starters, the act isn’t a criminal law. Even if it was, the law doesn’t apply to phone calls. And the Alabama Open Meetings Act only applies to government meetings when a quorum is present — which it isn’t during a phone call between just two school board members.

All of that should have been obvious to the officer who sought the warrant and especially the judge who signed off on it.

Police and the judge should also have known that the Privacy Protection Act of 1980 guards against searching and seizing materials from journalists unless they are under investigation for a crime.

Sham criminal charges

Police in Marion used laws prohibiting identity theft and unlawful use of a computer as an excuse to raid the Record’s newsroom, based on sham allegations about what the laws prohibited.

Similarly, Billy and his allies arrested Fletcher and Digmon under Alabama’s grand jury secrecy statute based on made-up facts and bad faith interpretations of the law.

Police claimed that Fletcher and Digmon revealed grand jury secrets by reporting on the subpoena issued to the school board. It turns out there never was a grand jury. The lawsuit explains that the subpoena Fletcher reported on was instead issued by Billy under a provision in the law that gives the DA power to do so when a grand jury is not in session.

Even if a grand jury had issued the subpoena, it isn’t illegal for a journalist to report on it when they obtain it lawfully. Grand jury secrecy laws bind grand jurors and witnesses, not journalists.

Neither Fletcher nor Digmon were bound by any secrecy laws, privy to any grand jury secrets, or part of a grand jury in any capacity. It’s simply not a crime to disclose to the public information that powerful people want hidden.

There must be consequences

Billy has announced his plan to retire at the end of the year, but he shouldn’t be allowed to remain DA of Escambia County for a moment longer after his repeated and blatant disregard of press freedom.

He knew what he was doing and has acknowledged his conflicts of interest. But without accountability, these kinds of attacks on the press become normalized and will happen more often.

That’s where Fletcher and Digmon’s lawsuit comes in. Holding Billy and others who violated their constitutional rights accountable through civil liability will help make other public officials think twice before targeting the press as part of petty political schemes or to retaliate against critical reporting.

It’s also where the criminal justice system has a potential role. In Marion County, former Police Chief Gideon Cody faces a felony charge for his actions after the raid. Similarly, Alabama state officials should conduct an independent investigation of Billy and others who participated in the scheme against Fletcher and Digmon, and prosecutors should consider whether they broke state law. Billy should also be disciplined by the Alabama State Bar, regardless of his upcoming retirement.

Unfortunately, the good people weren’t there to stop this from happening to the Marion County Record or Atmore News, as Joan Meyer had hoped. Now, we need honest officials and judges to make sure these attacks on small-town newspapers and press freedom cease. Joan Meyer’s memory deserves as much.

Freedom of the Press Foundation (FPF) Advocacy Director Seth Stern joined National Public Radio’s 1A to discuss the urgent need for the Senate to finally pass the bipartisan PRESS Act and protect journalist-source confidentiality.

Stern emphasized that the PRESS Act is a bipartisan solution to a bipartisan problem — administrations from both political parties have come after journalists’ sources, as have local prosecutors and litigants in cases that have nothing to do with presidential politics.

“A subpoena is a subpoena. A contempt finding is a contempt finding, and jail is jail,” Stern explained. “And whether it's Donald Trump, Barack Obama, or somebody else who is coming after a journalist, the repercussions are the same."

He added that Trump, who recently called for Republicans to kill the PRESS Act, “should consider that this is not only about the mainstream media, not only about the journalists that he personally dislikes. It's about all journalists, including journalists who benefit him by exposing the stories that he wants told."

Axios journalist Sara Fischer and former Fox and CBS journalist Catherine Herridge — who is currently appealing an order holding her in contempt of court for not burning a source — also joined the show.

Herridge, who has requested a conversation with Trump to explain why he should support the PRESS Act, explained that if she hadn't had a credible pledge of confidentiality, she would never have been able to expose what she characterized as defects in the Russia collusion case.

You can listen to the full episode here.

President Joe Biden still has time to issue a new executive order that could help fix the U.S.’s bloated and outdated classification system. He should. And soon.

The failures of the current classification system are well known. Its biggest offenses include decade-long delays when declassifying records; overclassifying records, even when they are publicly available; and agencies refusing to share important information with one another because their security rules encourage excessive secrecy.

Biden administration officials have testified repeatedly since 2021 that they are working on revising the executive order to fix these problems.

Yet, with less than two months remaining in Biden’s term, there’s nothing to show for these efforts, and the standing EO still dates to the first year of the first Obama administration.

Sens. Ron Wyden and Jerry Moran are calling on Biden to publish the EO his team has allegedly been working on before time runs out.

Their recent letter to the president says, “Completing the work of modernizing the Executive Order and fundamentally reforming the country’s broken classification and declassification system would be a historically significant part of your legacy.”

He should take Wyden and Moran’s advice.

What are the necessary fixes?

To be effective, the new Biden EO should include the following reforms:

• Require agencies to report annually how many secrets they keep, both in number of pages and bytes of data, and how much these secrets cost. We currently do not have reliable estimates for any of these figures. Without them, there will be no practical way to measure how successful efforts are (or aren’t) to rein in overclassification.
• Specifically state that violations of law may not be classified at all. The current EO says material may not be classified with the specific intent of hiding wrongdoing, but agencies can still classify records showing they broke the law so long as they are not classifying information specifically to hide that fact. This loophole should be closed.
• Clearly define what “damage to national security” means. The vagueness of this phrase, which is used to justify classification levels in the standing EO, gives agencies too much latitude when making classification decisions. This has led to a classification environment where documents are needlessly stamped classified between 75% and 90% of the time. Egregious overclassification examples range from the absurd, like the Defense Intelligence Agency classifying information showing that Chilean General Augusto Pinochet’s favorite drink was a pisco sour, to the serious, like the government hiding its report on the CIA’s torture program.

Why now?

If Biden issued the new order, even during his final days, agencies would immediately have to begin changing their classification policies, and these new guidelines could be used when conducting oversight or making classification challenges.

One way to help ensure a Biden EO wouldn’t be immediately (or ever) rescinded by President-elect Donald Trump when he takes office would be to incorporate some of the ideas put forth in The Heritage Foundation’s Project 2025 chapter on intelligence.

The author of that chapter, Dustin Carmack, says a new EO should include tighter restrictions about what can be classified, reducing the number of people who can classify records, and improving metrics for tracking classification decisions.

These are all improvements that transparency advocates across the political spectrum have been urging the government to adopt for years.

An eleventh-hour EO from Biden, especially one that includes some of the suggestions from The Heritage Foundation, makes it less likely that Trump’s national security team would prioritize the laborious task of crafting a new executive order from scratch.

This would be a good thing, because while Trump’s EO could include some of The Heritage Foundation’s reasonable fixes, it’s equally possible it would include bad things, like harsher punishments for whistleblowers who leak classified information for the public’s benefit, or for the press they leak the information to.

If Biden really has been drafting a new EO to fix classification, he should issue it now and ensure fixing the system is part of his legacy.

Dear Friend of Press Freedom,

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Time is closing in on the PRESS Act

Donald Trump may have called on Republicans to kill the PRESS Act, but it’s not too late for him to reconsider — or for the PRESS Act to pass. The bipartisan bill would be the most important press freedom legislation in modern history and safeguard journalist-source confidentiality — regardless of politics. That’s precisely why lawmakers from Sen. Chuck Schumer to Rep. Jim Jordan support it.

Call or email your member of Congress and urge them to support the PRESS Act before time runs out. Federal law should protect journalists and sources who expose newsworthy information the public needs to know.

Gifts for the journalist in your life

If you know any journalists, you know that most of them don’t get into this line of work for the overwhelming paycheck. That means they don’t always treat themselves to gadgets and services that will make their jobs safer and easier. Dr. Martin Shelton, FPF’s deputy director of digital security, put together a guide featuring the best gadgets to gift this season.

Stay up-to-date with all things free press

FPF offers weekly and monthly newsletters compiling a selection of news along with commentary, guides, and our favorite free press and digital security stories from across the internet. Sign up for them here. 

Tech executive Maury Blackman’s effort to censor the press isn’t going well.

Since he sued journalist Jack Poulson, the domestic violence arrest Blackman’s trying to conceal went from the relatively small readership of Poulson’s Substack blog to the big readership of major metropolitan and even international news outlets.

And now the unconstitutional law he invoked to threaten Poulson is being challenged in a new lawsuit by California’s First Amendment Coalition, represented by the Foundation for Individual Rights and Expression.

It’s far from the first example of the “Streisand Effect,” but what’s unusual about the case is Blackman’s accomplice: San Francisco’s City Attorney David Chiu. We wrote an op-ed in the San Francisco Chronicle with Ginny LaRoe of FAC, calling out Chiu for threatening Poulson at the request of Blackman’s lawyers.

We told Chiu to go back to constitutional law class and stop carrying water for censorial bullies. Read the op-ed here.

These days some might assume the fight for press freedom is limited to playing defense and holding the line. Not so — we’ve got progress to report.

In October, we called upon six prosecutors around the country to drop cases against journalists arrested for covering protests. We cited recent guidance from the Department of Justice reiterating its position that journalists are constitutionally entitled to report on protests and their aftermath. That includes the conduct of police officers after they issue dispersal orders.

We subsequently led a letter from press freedom advocates to prosecutors in northern New York calling to drop the case against Indian Time journalist Isaac White. It’s a safe bet that St. Lawrence County District Attorney Gary Pasqua wasn’t expecting to hear from some of the state and country’s most prominent press rights and transparency organizations when his office brought the petty charges against White back in May.

White was arrested alongside demonstrators while covering a land claim demonstration. He had nothing to do with planning the demonstration — he found out about it from a source the day it happened. He was not alleged to have done anything but report the news.

Prosecutors dropped the charges last month. We’ll never know for sure if we had anything to with it — district attorneys’ offices don’t usually send us thank you letters — but hopefully, we at least educated local officials about the First Amendment rights of journalists covering protests so those officials will do better next time.

We were also thrilled to learn that at least two of the journalists arrested in Chicago while covering protests during the Democratic National Convention in August (Olga Fedorova and Josh Pacheco) saw their cases dropped as well. A third journalist, Sinna Nasseri, was also arrested, but we haven’t been able to confirm that his case has been dismissed.

Like White, all they were accused of doing was not leaving along with protesters when police ordered them to, exactly what the DOJ and appellate courts have said they’re entitled to do by the First Amendment. Yet they were arrested and more. Officers broke Fedorova’s camera and a top police official snatched Pacheco’s press pass from their neck. That official, Tom Ahern, the department’s deputy director of news affairs and communications, inexcusably threatened journalists with revocation of press passes in retaliation for exercising their constitutional rights throughout the convention.

We began ringing the alarm about Chicago Police Department misconduct at the DNC even before it happened (as a Chicagoan, it didn’t take a crystal ball to see it coming). Afterward, we hosted events where press freedom advocates and independent journalists could air the abuses they witnessed by police, particularly by Ahern, who should have already been fired for his out-of-control behavior during the convention. We wrote about the abuses on our site and in letters to local newspapers.

Again, we can’t claim credit for the dropped charges, but we hope we played a part in prosecutors’ shift to damage-control mode. That shouldn’t be the end of it though — the journalists who were arrested, denied access, or otherwise wronged should sue. And Chicago should update its policies to reflect the DOJ’s position, and stop letting the Police Department control press pass issuance — it’s like letting the fox guard the henhouse.

That still leaves plenty of cases pending against other journalists who were just doing their constitutionally protected jobs. Prosecutors in Portland, for example, ignored a call from Freedom of the Press Foundation (FPF) and partner organizations to drop charges from a protest arrest of journalist Alissa Azar. Her case is scheduled for trial in January. It’s not clear what the Portland, Oregon, officials who insist on pressing these charges are waiting for — perhaps a personalized reprimand from the DOJ like the Minneapolis Police Department got last year.

But the progress that has been made shows there is room to get things done at the local level, no matter who is in charge in Washington. These small victories aren’t so small to the journalists who can move on without frivolous prosecutions hanging over their heads.

Dear Friend of Press Freedom,

If you enjoy reading this newsletter, please support our work. Our impact in 2024 was made possible by supporters like you. Help us continue protecting press freedom in the year ahead — consider a year-end donation today. If someone has forwarded you this newsletter, please subscribe here.

Congress took the lead on JFK declassification. That should happen more often

Today is the anniversary of the JFK assassination. Congress passed a landmark law over 30 years to release millions of pages of assassination records, even though it doesn’t normally get involved in declassification efforts.

This makes 1992’s Kennedy Assassination Records Collection Act a remarkable outlier in combating government secrecy. As of this writing, a few thousand records remain secret, based on arguments that are tenuous at best. But thanks to the law, millions of pages are now public, an overwhelming success.

Despite this, Congress hasn’t successfully ordered another targeted, high-level declassification review effort since. It should. Read more on our website.

Trump opposes the PRESS Act. We’re not stopping the fight

President-elect Donald Trump made headlines this week by calling for Republicans to “kill” the PRESS Act — the bipartisan journalists’ shield bill to protect journalist-source confidentiality.

We told The New York Times, CNN, and The Intercept why he should reconsider. Freedom of the Press Foundation (FPF) Executive Director Trevor Timm told the Times that “The PRESS Act protects conservative and independent journalists just as much as it does anyone in the mainstream press. … Democratic administrations abused their powers to spy on journalists many times. The bipartisan PRESS Act will stop government overreach and protect the First Amendment once and for all.”

We’re not alone. Veteran investigative journalist Catherine Herridge, herself embroiled in a fight to protect her sources, told Chris Cuomo on NewsNation that her reporting — including stories that exposed defects in the Russian collusion narrative during Trump’s first term — would not have been possible without confidential sources. She explained how citizen journalists, including those using social media platforms like X and Trump’s Truth Social, need journalist-source confidentiality more than anyone.

San Francisco should not aid tech exec’s censorship campaign

We told you last week about the multifaceted censorship campaign by tech executive Maury Blackman against journalist Jack Poulson, who reported on Blackman’s past domestic violence arrest.

This week, we’ve got an op-ed in the San Francisco Chronicle, co-written by Ginny LaRoe of California’s First Amendment Coalition, calling out San Francisco City Attorney David Chiu for his role. Chiu, at the request of lawyers for Blackman (whose companies, by the way, have received lucrative contracts from the city), sent a letter to Poulson telling him his reporting violated a California law against disseminating sealed arrest reports.

We told Chiu to go back to constitutional law class and stop carrying water for censorial bullies.

Both parties abuse spying powers

Are you a national security reporter who wants to know if the FBI has accessed your social media, email, or phone records? Too bad, that’s classified. The government can demand your information from a wide variety of third parties, and it can force those companies to keep the fact that it is investigating you a secret indefinitely.

Government gag orders to silence these third parties are especially concerning because the threshold for their use is low and they’ve often been abused — by Democratic and Republican administrations alike. Social platform X, owned by Elon Musk, has unsuccessfully waged separate lawsuits to curtail some of the government’s favorite surveillance tools. Whatever you think of Musk and his ties to Trump, people across the political spectrum should nonetheless wish X success in fighting secret surveillance. Read more on our website.

Time to confirm inspectors general

The more powerful the agency, the greater the need for strong internal oversight. But this can't happen without an inspector general. Yet the Treasury Department hasn't had one for nearly 2,000 days, and the National Security Agency has gone over 700 days without one.

FPF endorsed a letter organized by Citizens for Responsibility and Ethics in Washington urging Senate Majority Leader Chuck Schumer to prioritize filling the vacancies before time runs out. Read the letter here.

What we’re reading

A legal showdown over press freedom (The Free Press). Appellate judges conducted parts of a hearing over Catherine Herridge’s First Amendment right to protect sources behind closed doors. As we told The Free Press, it’s a serious problem when, “The future of the reporters’ privilege for Washington, D.C.-based whistleblowers and journalists, a pretty important group, ends up being heard in secret.”

US House passes bill to punish non-profits deemed to support ‘terrorism’ (The Guardian). The House passed a dangerous bill that would give the Trump administration wide discretion to declare nonprofit organizations terrorist supporters and strip them of their tax-exempt status. That includes nonprofit media outlets and organizations that serve as sources for reporters. Fewer representatives voted for the bill this time around than in the past, but shame on those who still did.

‘Unconstitutional scheme’: Alabama journalists, school officials sue over arrests (AL.com). Two Alabama journalists, among those arrested last year for nothing more than reporting news, have sued the Escambia County district attorney and others involved in the shocking charges. Good. We’ve long called for accountability for those behind this outrageous case.

Biden's legacy: Leaving FOIA in shambles (The Dissenter). No "systems" for greater transparency were established, and issues with FOIA were not properly dealt with in the Biden administration. As Trump returns to the White House, FOIA is just as fragile and in disrepair as it was when Joe Biden was elected in 2020.

Inside an American reporter’s Russian prison ordeal (The Washington Post). The imprisonment of Wall Street Journal reporter Evan Gershkovich rightfully got plenty of attention, but he wasn’t the only American journalist who spent time behind bars in Russia on sham charges. The Post has more on the case of Radio Free Europe/Radio Liberty’s Alsu Kurmasheva.

Publisher of raided Kansas newspaper delivers advice to journalists: ‘Make democracy great again’ (Missouri Independent). Congratulations to Marion County Record Publisher Eric Meyer on his induction into the Kansas Press Association Newspaper Hall of Fame. It would’ve been well deserved even if last year’s raid on the Record hadn’t made him an involuntary press freedom icon.

This article originally appeared in The Dissenter. The article’s author, The Dissenter Editor Kevin Gosztola, kindly allowed us to republish it. You can (and should) subscribe to The Dissenter here.

President Joe Biden’s administration promised a “recommitment to the highest standards of transparency,” and officials were well aware of the extent to which Donald Trump’s administration had engaged in censorship and undermined the Freedom of Information Act.

Despite promises, when it came to FOIA and the public’s right to know, the Biden administration was just as bad or slightly worse than the Trump administration during its last fiscal year in office. In fiscal year 2023, United States government agencies censored, withheld, or claimed that they could not find any records two-thirds of the time.

According to Matthew Connelly, author of “The Declassification Engine: What History Reveals About America’s Top Secrets,” the Biden administration did not give “policymaking in this area much more priority” than the Trump administration. “After his first year, advocacy groups were unable to find anyone in the White House who was even working on the issue.”

Attorney General Merrick Garland issued a memorandum on FOIA in 2022 that directed “all executive branch departments and agencies to apply a presumption of openness” when it comes to FOIA. It also made clear that the Department of Justice would not defend “nondisclosure decisions" when a department or agency failed to do so. Yet this was the empty pledge put forward by the DOJ for the past 15 years.

In 2009, Attorney General Eric Holder claimed the government would only defend a denial of a FOIA request in court if the agency reasonably foresaw that “disclosure would harm an interest protected by one of the statutory exemptions” or if disclosure was “prohibited by law.” Officials under President Barack Obama still fought the release of the DOJ’s Office of Legal Counsel legal opinions and other records.

Similarly, in October 2024, the Biden DOJ appealed a landmark decision that ordered the government to proactively disclose OLC legal opinions as required by FOIA’s “reading-room provision.”

The Knight First Amendment Institute had pursued transparency because, “Twenty years ago, legal contortions by OLC lawyers green-lighted torture and other gross human rights violations in Iraq, Guantánamo Bay, and secret CIA prisons.” Disclosure was necessary to discourage the OLC from acting as a “secretive legal shop with the power to bend or distort the law for the White House or federal agencies.”

As a result of the Biden DOJ’s resistance to openness, the second Trump administration will not have to worry about the public learning about any secret reinterpretations of the law that are pursued to bolster the imperial presidency.

Surveillance secrecy, censoring Guantánamo prisoners' art

The American Civil Liberties Union and The New York Times sued the Biden administration after it refused to disclose the “rules governing lethal strikes outside of recognized warzones.” Initially, not only did Biden officials ignore calls to release the rules, but according to Just Security, the administration would not even release a fact sheet for the government’s “drone-strike playbook” as Obama did.

Though the Senate Select Committee on Intelligence’s report on CIA torture confirmed that the agency had “operational control” over Camp VII at Guantánamo Bay, the Biden administration defended the CIA from having to confirm or deny whether it had further information about the agency’s role at Guantánamo.

As the ACLU outlined, declassified documents, as well as “documents and transcripts from the Guantánamo military commissions proceedings,” were publicly available. Fighting this FOIA request in court represented a naked attempt to protect the CIA from facing further scorn for heinous acts that the agency committed in the global “war on terrorism.”

The Pentagon ended a Trump policy that barred 41 prisoners at Guantánamo from taking their art if and when they were released. BuzzFeed reporter Jason Leopold fought for the disclosure of prisoner art, and in 2022, U.S. Southern Command finally released “photographed copies of the artwork.” But hundreds of paintings were censored.

“When prisoners' art could potentially disclose military secrets, we're well through the looking glass,” the Electronic Frontier Foundation and MuckRock News declared.

A panel established by Congress that is known as the Public Interest Declassification Board recommended disclosure of the full intelligence report on journalist Jamal Khashoggi and the Kingdom of Saudi Arabia’s involvement in his murder. However, Biden only released a redacted version of the report and the Biden DOJ fought a FOIA lawsuit to force greater transparency.

When the ACLU asked the U.S. Supreme Court to order the Foreign Intelligence Surveillance Court to release all legal opinions containing novel or significant interpretations of the law, the Biden DOJ defended the secret surveillance court. Officials insisted that the courts do not even have jurisdiction to consider whether citizens have a First Amendment right to access the surveillance court’s legal opinions.

The Supreme Court sided with the administration and refused to hear the ACLU's appeal. Justices Neil Gorsuch and Sonia Sotomayor dissented: “This case presents questions about the right of public access to Article III judicial proceedings of grave national importance,” and, “If these matters are not worthy of our time, what is?” (Article III in the U.S. Constitution established the judicial branch.)

Hiding JFK assassination records, 'virtual visitor logs'

In 2022, the Mary Ferrell Foundation sued Biden and the National Archives and Records Administration for failing to fulfill the requirements of the JFK Assassination Records Collection Act. The organization accused Biden of relying on flimsy claims of “anticipated harm” to keep thousands of records hidden because decades later the CIA and other executive branch agencies still oppose their disclosure.

The Biden DOJ defended the Homeland Security Department as NPR fought for thousands of pages of “confidential inspection reports” detailing conditions in Immigration and Customs Enforcement detention facilities. The reports described “barbaric practices, negligent medical care, racist abuse and filthy conditions.”

In 2022, the U.S. District Court for the District of Columbia found that DHS had inappropriately invoked FOIA exemptions to hide “purely factual information” and instructed DHS to reprocess NPR’s request for records.

Before Amos Hochstein played a key role in helping the Biden administration support Israel’s ethnic cleansing campaign in Gaza, he was a Biden energy official. Friends of the Earth, an environmental organization, sued the State Department in 2022 and 2023 to obtain files on Hochstein.

“Hochstein enjoyed a profitable run in the private sector that included consulting and speaking fees from fossil fuel interests and an executive position at LNG developer Tellurian,” Friends of the Earth recalled. “Since the Russian invasion of Ukraine, Hochstein has assumed a leading role in the newly established US-EU Energy Security Task Force, whose mandate includes increasing LNG exports to Europe.”

FOE sought to uncover whether Hochstein was more engaged in fossil fuel lobbying than diplomacy. Eventually, some records were released, but the State Department’s refusal to comply with FOIA meant that the organization had no idea how many documents the department had on Hochstein and how long it would be before they received all the records responsive to their request.

Trump received widespread condemnation for hiding visitor logs from the press and public. Biden resumed the disclosure of visitor logs after he assumed office, but his administration carved a loophole in its commitment to openness by excluding “virtual visitor logs."

Due to the COVID-19 pandemic, as Politico reported, virtual meetings were the “primary mode of interaction” for Biden during his first year in office. Lists of attendees were kept secret.

Open government groups urged Biden to “take action” on “disappearing messaging apps and mandate messaging apps capture communications used in official business.” Several Trump officials were known to have used Signal, which would make it difficult for agencies to abide by the Presidential Records Act and retain communication records. But the Biden administration did nothing meaningful to address this issue.

A 'tsunami' of secrets

After the Director of National Intelligence Avril Haines called attention to government secrecy in January 2023, a group of U.S. senators unveiled legislation that they claimed would significantly deal with government secrecy and reform the “classification process.” It proposed designating the Office of the Director of National Intelligence as the “executive agent for classification and declassification,” developing “technical solutions” for automatic declassification, and establishing an executive committee for the classification and declassification of records.

However, if adopted, this legislation almost certainly would have entrenched more decision-making power in the hands of the U.S. president and security agencies, who have consistently worked to thwart transparency on national security and military matters.

To further illustrate the absurdity of government secrecy, Haines sent a letter on overclassification to Democratic Sen. Ron Wyden and Republican Sen. Jerry Moran in January 2022. It had an attachment on “declassification efforts” at U.S. intelligence agencies.

The version of the attachment released to the public censored the amount of funds spent each year by the CIA, National Security Agency, Defense Intelligence Agency, National Geospatial-Intelligence Agency, and the Office of the Director of National Intelligence, which Haines oversaw.

Government officials, according to Connelly, spend around $18 billion a year to keep secrets. More specifically, the DOJ spends about $40 million a year on litigation to fight the release of records.

FOIA is plagued by systemic problems. Under Biden, the Project on Government Oversight called attention to the “uptick in submitted FOIA requests, combined with the chronic underfunding of agency FOIA offices,” which “means that agency backlogs and processing delays continue to increase."

“When agencies do respond to requests, FOIA exemptions meant to protect classified or otherwise legally sensitive information are often used to excessively withhold information that rightfully belongs to the public," POGO added.

The Information Security Oversight Office indicated in 2021 that agencies could "no longer keep (their) heads above the tsunami of digitally created classified records.”

Walter Shaub, who was the director of the Office of Government Ethics and worked as a fellow at POGO, warned after Trump’s first term, “We’ve been through four years of having to battle tooth and nail to get any documents, and we need (Biden) to set up new systems so the next administration will follow them.”

No "systems" for greater transparency were established, and issues with FOIA were not properly dealt with. As Trump returns to the White House, FOIA is just as fragile and in disrepair as it was when Biden was elected in 2020.

This article is the first in a series of articles on President Joe Biden's legacy when it comes to press freedom, whistleblowing, and government secrecy. The series will be published by The Dissenter from now until January 2025.

It’s the anniversary of JFK’s assassination, and the law that successfully released most assassination records is over 30 years old.

Congress doesn't normally get involved in declassification efforts, though.

It has largely ceded this authority to the president, who sets the rules for classification and declassification through executive order. (The major exception is classified information about nuclear materials and facilities, which is controlled by the Atomic Energy Act.)

This makes 1992’s Kennedy Assassination Records Collection Act a remarkable outlier in combating government secrecy.

As of this writing, a few thousand records remain secret, based on arguments that are tenuous at best. But millions of pages are now public thanks to the law, making it an overwhelming success.

Despite this, Congress hasn’t successfully ordered another targeted, high-level declassification review effort since.

It should. These projects promote the public’s right to know, improve congressional oversight, and save the government money (because keeping documents classified is expensive).

The JFK Act

Oliver Stone’s 1991 film, “JFK,” persuaded much of its audience that its assassination conspiracy theories were true. It was so effective — and so damaging to public opinion about the government — that it encouraged Congress to pass a law to prove what the government really knew about the president’s death.

The JFK Act created the Assassination Records Review Board to determine the merit of agency claims that certain records had to stay secret. The board began its work in 1994 as “a new and unusual legislative remedy to the problem of government secrecy.”

By the time the board issued its final report in 1998, it was able to convince agencies to release tens of thousands of records.

It also agreed with agencies that 35,000 documents needed ongoing protection. The act further required those records to be released in full by October 2017 — 25 years after the passage of the law — unless the president agreed with agencies that releasing certain records would cause so much harm that it would outweigh public interest in release.

The CIA and FBI successfully convinced both President Donald Trump and President Joe Biden that 3,500 records must remain secret — seven years after the 2017 deadline.

But as much as 99% of the assassination records — nearly 5 million pages — have been declassified and are available.

That makes the JFK Act a success. Compare this to the number of documents that have been declassified on other high-interest topics, from UFOs to government surveillance, and the act’s success is all the more striking.

Other high-level declassification efforts

Congress has attempted, so far unsuccessfully, to replicate the JFK Act.

Senate Majority Leader Chuck Schumer tried to introduce a UFO transparency bill last year, citing the JFK Act in his attempt. He said that “the measure would create a board just like with the JFK assassination records to work through the declassification of the many government records on UAPs … This model has been a terrific success for decades and should be used with UAPs.”

Senate Republicans killed the bill.

In 2017, Sen. Jay Moran tried to introduce a provision to the National Defense Authorization Act that would have required the declassification of documents concerning military members’ exposure to toxic material. It stated that information could only remain classified if it would “materially and immediately threaten the security of the United States.” This is a stricter withholding standard than is even found in the executive order on classification.

It was adopted by the Senate but did not ultimately become law.

There have also been several unsuccessful attempts by Congress to declassify information on what the U.S. knew about human rights abuses in Latin America. They failed as well.

But just because some powerful lawmakers are addicted to secrecy, it doesn’t mean the legislative branch should give up.

Congress must keep trying

Congress should not be discouraged by past failures. The work is too important — and there have been examples of other kinds of successful high-level declassification projects in recent years to learn from.

The best example is 2019’s Argentina Declassification Project, which forced the CIA, FBI, and others to declassify 47,000 records on what they knew about human rights abuses in South America. This presidential initiative began under President Barack Obama and was completed by Trump.

Congress should learn from these success stories and bring the JFK Act model into the 21st century. Such a model could be used to declassify what the government knows about the dangers of climate change, nuclear weapons, federal spying abuses, and much more.

Elon Musk has repeatedly called in recent weeks for abolishing classification altogether. He’s got the president-elect’s ear, so anything is possible. But until then, and in the absence of government-wide classification reform, this targeted approach is one of our best bets for transparency.

Are you a national security reporter who wants to know if the FBI has accessed your social media, email, or phone records? Too bad, that’s classified.

The government can demand your information from a wide variety of third parties, and it can force those companies to keep the fact that it is investigating you a secret indefinitely.

Government gag orders to silence these third parties are especially concerning because the threshold for their use is low and they’ve often been abused — by Democratic and Republican administrations alike.

This ongoing, unconstitutional shroud denies us the ability to fight back in court or conduct any meaningful oversight of the government’s secrecy claims.

Social platform X, owned by President-elect Donald Trump confidant Elon Musk, has unsuccessfully waged separate lawsuits to curtail two of the government’s favorite surveillance tools: 1) the FBI’s national security letters, and 2) gag orders issued under the Stored Communications Act.

Musk’s influence within Trump’s administration, and the ways he may materially benefit from it, should come under serious scrutiny, as should his conduct since taking over X (and everything else he does that impacts Americans’ lives). But people across the political spectrum should nonetheless wish X success in its efforts to weaken the government’s ability to spy on citizens and then hide the fact that it does so.

National security letters regularly abused

This January, the Supreme Court declined to hear an appeal in X's case challenging unnecessary secrecy around the FBI’s national security letters, sent by the bureau during national security investigations.

The letters typically seek customers’ financial records or phone and electronic communications from a wide array of businesses. NSLs are regularly abused and issued without judicial oversight or time limits on their gag orders.

When the Obama administration tightened its rules around when the government could spy on journalists, it let the FBI bypass those rules completely by using NSLs. This left reporters few legal protections when the government investigates leaks of national security information — even if the leaks are in the public interest, which they often are.

X initially filed its NSL suit in 2014 (when it was known as Twitter and not yet owned by Musk), after the government prevented Twitter from publishing the exact number of NSLs it received in its Information Requests reports.

The FBI argued that the information would damage national security if released, so redacted the report Twitter submitted to it for review.

Twitter argued the redactions violated its right to free speech before the speech had even occurred (a “prior restraint,” which the Supreme Court considers the most serious of First Amendment violations).

Vague and unsubstantiated claims about harm to national security don’t trump First Amendment rights. But the 9th U.S. Circuit Court of Appeals held in the case that gag orders related to national security aren't as constitutionally problematic as other prior restraints.

We believe that's wrong. But even if the constitutional bar were lower, the government should still have had to show that individual company statistics would cause some actual harm to national security, beyond that from what's already public (the Office of the Director of National Intelligence already reports the total number of NSLs issued across all companies).

The court’s failure to take up this issue leaves national security reporters in limbo and the public in the dark.

Gag orders issued under the Stored Communications Act

In October, the Supreme Court denied another X petition, this time over gag orders issued under the Stored Communications Act. The SCA can prevent companies from telling users the government has issued a warrant for their data even years after the gag orders expire.

The X suit concerned the Justice Department’s demand for records from Trump’s X account, and the accompanying gag order that prevented X from notifying Trump about the warrant.

X argued “that the consequences of this authority were broad, potentially allowing the government to violate attorney-client or journalist-source privileges.”

The government said, as it does in most cases concerning information even tangentially related to law enforcement, that notifying the recipient of the warrant would compromise its investigative capabilities. That’s another vague and overused claim.

The irony in the X suit is that during Trump’s first term, his administration used the same SCA provisions to secretly seize journalists’ phone and email records, including for reporters at The Washington Post, CNN, and The New York Times.

When SCOTUS denied X’s petition, it left journalists and other investigative targets at risk, and failed to resolve divisions between lower courts on the role of service providers “in protecting potentially privileged materials seized by the government.”

The government shouldn’t have a blank check to demand user data from social media or telecommunications companies. And people should know if their records are being seized as part of an investigation against them, so they have the opportunity to fight back.

If Musk uses his access to the Trump administration to blunt these tools, we should support it.

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Now or never for the PRESS Act

Congress has two months to pass the most important press freedom legislation in modern history and safeguard journalist-source confidentiality. The bill got a push from an unexpected place this week — John Oliver’s satirical TV news show. Wired, TechCrunch, and The Verge also covered it.

Next week, the need for the PRESS Act will be further underscored by an appellate hearing in the case of veteran investigative journalist Catherine Herridge. She is challenging a ruling that holds her in contempt of court for refusing to burn her sources. That ruling never would’ve happened if the PRESS Act was on the books. Alarmingly, this important First Amendment hearing may be held in secret.

Read more from us about the Herridge hearing and its significance. And tell your senator to support the PRESS Act, using your choice of email tools from Defending Rights & Dissent, the ACLU, or the Electronic Frontier Foundation, or a call tool from Fight for the Future.

Save nonprofit news

A valiant effort from press freedom and civil liberties advocates helped prevent passage in the House of Representatives of a bill to allow the treasury secretary to arbitrarily revoke the tax-exempt status of nonprofits — including nonprofit media outlets.

But the House is trying again next week, and if it doesn’t succeed it will likely keep trying for the next four years. Use the ACLU’s convenient online form to tell your representative to oppose this awful mess of a bill. Let’s not hand Trump administration officials a loaded weapon they’re sure to aim squarely at critics of Israel and other dissidents.

Anatomy of a censorship campaign

Tech executive Maury Blackman’s tactics against journalist Jack Poulson are a prime example of how the wealthy and powerful try to stifle the press, and how the First Amendment is often the only thing standing in their way. That and the Streisand Effect.

We wrote about Blackman’s use of frivolous copyright takedown demands, complaints to hosting providers, and efforts to have the San Francisco City Attorney’s Office try to silence Poulson, who had reported on Blackman’s domestic violence arrest on his Substack blog. When all that failed, Blackman filed a $25 million lawsuit — a clear SLAPP, or strategic lawsuit against public participation.

Here’s how that’s going for him: Poulson’s story is still online and a great legal team has stepped up to defend his interests. But the reporting Blackman wants silenced is no longer just on Substack – now it’s in the San Francisco Chronicle and Daily Mail. Oops.

Crunch time to Trump-proof the press

Throughout this year’s presidential election campaign, we’ve warned Democrats that if they’re really as worried as they claim to be about authoritarianism in a second Trump term, they need to pass some bills to mitigate that risk. Or at least stop handing authoritarians legislative gifts.

They didn’t listen. Now they’ve got two months left to do some damage control. We wrote an op-ed for the Daily Beast about what can still be done. Read it here, and watch our executive director Trevor Timm talk on the Thom Hartmann Program about what Trump 2.0 means for press freedom.

What we’re reading

The WIRED guide to protecting yourself from government surveillance (Wired). Anti-surveillance technology “is the last recourse of a lot of people in vulnerable positions,” said Freedom of the Press Foundation (FPF) Director of Digital Security Harlo Holmes, calling for increased efforts to “make sure that people have the best tools in their hands and their pockets to maintain their privacy.”

Matt Gaetz investigation report could be made public—here's how (Newsweek). It’s absurd that there’s even a chance that a taxpayer-funded report that might implicate the attorney general nominee for trafficking teenagers might not be made public.

DOT asks judge to dismiss Streetsblog’s lawsuit over agency’s public info stall (Streetsblog NYC). New York’s Department of Transportation “consistently violates the state's Freedom of Information Law by delaying for six months nearly all of the requests for public information from journalists — and must be ordered to end the practice.”

Many ‘undercover’ officers in lawsuit over LAPD photos are just regular cops, city says (Los Angeles Times). Unreal. Los Angeles wasted its time and the people’s money litigating and settling SLAPP suits claiming a journalist endangered undercover officers by identifying them. Now the same city has the nerve to tell a judge those same cops aren't really undercover and then ask to unmask them.

Freedom of Press Foundation supporting Indian Time reporter arrested while covering protest (Indian Time). Indian Time covers the letter we led urging prosecutors in northern New York to drop charges against journalist Isaac White, who was arrested for disobeying illegal dispersal orders while covering a land claim protest. We’re happy to report that the charges against White have been dropped.

Throughout this year’s presidential election campaign, we’ve warned Democrats that if they’re really as worried as they claim to be about authoritarianism in a second Trump term, they need to pass some bills to mitigate that risk. Or at least stop handing authoritarians legislative weapons.

They didn’t listen. Now they’ve got two months left to do some damage control. We wrote an opinion piece for the Daily Beast about what can still be done.

First, Democrats need to prioritize passing the PRESS Act. The bill to protect journalist-source confidentiality has broad bipartisan support because surveillance of journalists is far from just a Trump issue.

They also need to grow a spine when it comes to (among other things) pushing for press freedom in the Israel-Gaza war; increasing transparency; safeguarding encryption; cracking down on strategic lawsuits against public participation, or SLAPPs; fixing a dangerous surveillance law many of them voted for earlier this year; taking Trump up on his offer to drop the TikTok ban; and fighting back against efforts to weaponize anti-terrorism laws against the press.

Read the op-ed.

Maury Blackman’s tactics against journalist Jack Poulson are a prime example of how the wealthy and powerful try to silence reporting, and how the First Amendment is often the only thing standing in their way.

Arrest report reported

Poulson is the executive director of the nonprofit Tech Inquiry and author of All-Source Intelligence, a Substack newsletter that focuses on links between technology companies and the defense and intelligence agencies. Blackman is the former CEO of Premise Data, a company that Poulson had written about repeatedly. He’s not the only one writing about the company and its ties to the national security state — The Wall Street Journal reported in 2021 that it pays app users to “unwittingly provid[e] basic intelligence to the U.S. military.”

Blackman’s censorship campaign started when Poulson published an article in 2023 about the executive’s 2021 arrest on suspicion of domestic violence and then linked to the disturbing arrest report. Blackman was never charged, and the victim recanted her statements in the report. A California court had sealed the arrest report in 2022. Poulson says he obtained it from a confidential source.

Since publication, Blackman or his apparent representatives have used a variety of methods to try to get the article and arrest report taken down. These tactics — from the misuse of copyright law to threats of penalties explicitly prohibited by the First Amendment and the abuse of the legal system — show how determined and well-resourced people can attack reporting they dislike.

It also shows what journalists can do to prepare.

Abusive DMCA takedown request

Shortly after the article was published, Poulson reported that someone claiming to represent Blackman emailed him to ask for the article to be taken down, and even suggested they would pay to have it removed.

When Poulson refused, a person using a very similar name sent a takedown request under the Digital Millennium Copyright Act to the cloud service provider that was hosting an external copy of the arrest report. Poulson successfully refuted the request, but also decided to host the report on Substack himself.

There’s nothing remotely copyright-infringing about the arrest report. It’s a government record, so it can’t be copyrighted in California. According to Poulson, the DMCA notice also used a fake phone number and address, and a fake digital signature claiming to be from Poulson himself.

But although the DMCA notice-and-takedown scheme — which was intended to protect both copyright and free expression online — appears to have worked in this case, it’s undoubtedly become a target for abuse. Shady reputation management firms, among others, know that while news outlets may be willing to invest in a First Amendment battle, disinterested internet providers often are not.

Journalists must understand that the DMCA can be used as a weapon against their reporting, and respond to takedown notices with information refuting claims of copyright infringement.

Complaint made to other hosting providers

Blackman also complained about Poulson’s reporting to Substack and Amazon Web Services, in an attempt to have them remove the arrest report and other information under those sites’ internal policies.

Substack appears to have complied, at least in part. Poulson’s article about Blackman includes an editor’s note from June 2024 noting that Substack had “temporarily unpublished” the article twice, until Poulson removed the address where Blackman was arrested. Substack did not, apparently, require Poulson to remove the arrest report or details from it, as Blackman had demanded.

This further shows how journalists’ ability to publish their work can be subject to the whims of tech companies when they publish online through third-party services. Reporters should scrutinize the platforms where they publish to ensure they’ll stick up for First Amendment rights, even in the face of threats. (And, to Substack’s credit, it appears mostly to have done so.)

Blackman involves city attorney

In the fall of 2024, the San Francisco City Attorney’s Office began writing to Poulson and Substack, at the behest of Blackman and his lawyers, demanding removal of the arrest report. The letters claim that the posting of the arrest report violates a California law that imposes a civil penalty for the publication of sealed arrest reports.

For some reason, the letters don’t mention all of the Supreme Court cases that say that journalists have a strong First Amendment right to publish lawfully obtained, truthful information on matters of public concern, and that state laws that say otherwise are unconstitutional.

The city attorney’s first letter to Substack also doesn’t mention Section 230 of the Communications Decency Act, which would clearly immunize Substack for liability based on Poulson’s posts. Substack, however, apparently pointed out the law to the city attorney in its response.

The government bolstering powerful tech executives’ efforts to silence critics is, unfortunately, becoming more and more commonplace. Everyone who cares about free speech must push back on officials who do other’s censorious bidding. And a city attorney, who presumably learned about prior restraints in law school, should certainly know better.

Attempts to unmask Poulson’s source

While all this was going on, Blackman was simultaneously trying to unmask Poulson’s source for the arrest report.

While Blackman was still CEO of Premise Data, the company filed a lawsuit against some former employees. According to discovery demands in that lawsuit, Premise Data demanded records of some people’s communications about the arrest report with Poulson or with the San Francisco Police Department. Premise Data’s lawyers also investigated who had filed public records requests for the arrest report.

It’s not clear if the discovery demands yielded information about Poulson’s source. But reporters working with confidential sources should keep in mind that sources can be unmasked in a variety of ways and always try to practice good digital security.

Executive files frivolous anonymous lawsuit

Apparently unsatisfied with these previous efforts, last month Blackman reportedly filed a lawsuit against Poulson, Tech Inquiry, AWS, and Substack, claiming $25 million in damages based on the publication of the arrest report.

Although he used a pseudonym to file the lawsuit, it’s been widely reported that Blackman is the plaintiff, and the allegations in the case match the facts described by Poulson in his newsletter (plus, Blackman admitted in court filings that the San Francisco Chronicle accurately identified him).

The lawsuit is frivolous for the same reasons as the city attorney’s letter. But, unfortunately, Blackman may not need to win his lawsuit for it to have a chilling effect on journalism. Strategic lawsuits against public participation, or SLAPPs, punish journalists and others by making them spend time and money defending themselves — and they send a message to any other journalists out there who might be considering challenging the wealthy and powerful.

Fortunately, numerous states, including California, have anti-SLAPP laws that allow SLAPP victims to have cases dismissed against them early and to recoup their costs. Reporters should familiarize themselves with their state’s law and, if they live in a state without anti-SLAPP protection, urge lawmakers to pass one.

Blackman seeks emergency takedown order

Not only has Blackman filed a frivolous lawsuit but he’s also seeking an emergency order that would require the immediate takedown of Poulson’s article reporting on his arrest.

On Nov. 12, Blackman filed a motion for a temporary restraining order as part of his ongoing lawsuit against Poulson and the other defendants. At a Nov. 13 hearing, a judge put that motion on pause, ruling that Blackman first had to seek the court’s permission to litigate under a pseudonym. That should be tough — the cat’s already out of the bag, because Blackman’s lawyers created a public record of his identity by emailing city officials about Poulson’s article. But we’re told Blackman’s attorney said he plans to revive the censorship motion after dealing with the pseudonym issue.

Such an order would be an unconstitutional prior restraint — but emergency motions like Blackman’s are often used to get judges to censor journalists without having time to do their research first.

Journalists must be ready to respond quickly when a litigant seeks an order from a court requiring a takedown or prior restraint. Freelance journalists, especially, may want to think in advance about whether they will be able to find legal counsel if they’re ever in this position.

Thankfully, Poulson and Tech Inquiry are represented by counsel from the Electronic Frontier Foundation and law professor Susan Seager.

Poulson’s fellow journalists should not be intimidated to show their solidarity and report on this disturbing censorship campaign. Blackman admitted in his declaration that since he sued Poulson, “the sealed report and its contents … have been spread and are spreading far more broadly than before.” It sounds like he’s already learning about the Streisand Effect — let’s make sure the next SLAPP-happy tech bro knows about it too.

Editor’s Note: This article has been updated to reflect the outcome of the Nov. 13 hearing and to correct an inaccurate description of the response by the cloud service provider to the DMCA request targeting the arrest report.

How to limit Trump’s power to destroy the press

Donald Trump, an anti-press extremist obsessed with punishing journalists and news outlets that criticize him, will be the next president. Before Inauguration Day, President Joe Biden and Congress must limit as much as possible Trump’s power to destroy freedom of the press.

Freedom of the Press Foundation (FPF) Director of Advocacy Seth Stern wrote this week about the risks Trump’s second term poses to journalists and sources. Among them: increased surveillance, jailing journalists, and siccing federal agencies on reporters and news outlets.

Immediately after Trump’s reelection, FPF Executive Director Trevor Timm highlighted three priorities for protecting press freedom:

• Pass the PRESS Act (contact your senator today)
• Fix Section 702 of the Foreign Intelligence Surveillance Act
• Oppose Israel’s use of U.S. weapons to kill journalists, and the abuse of anti-terrorism laws to target dissent

Read Timm’s full statement here.

FPF fought back against Trump’s attacks on press freedom in his first term, and we’re ready to do it again in his second. Join us by donating to our work today.

Journalists: Beef up your digital security

Now more than ever, journalists need to have strong digital security practices.

Starting this week until Inauguration Day, FPF’s Digital Security Training team joins forces with the Knight Election Hub and other press freedom organizations to provide safety support for U.S.-based journalists and news outlets covering the U.S. election and its aftermath. To learn more or to apply for support if you’re from an eligible newsroom, check out Knight Election Hub’s Urgent Care.

Encrypted services, in particular, should be a part of every reporter’s toolkit. We recently hosted a conversation with journalists Julia Angwin and Lorenzo Franceschi-Bicchierai, along with

FPF’s Harlo Holmes, to talk about how and why they use encryption. Read their tips for how you can use encryption, too, or listen to the whole conversation.

If you are looking to learn more about encryption and how to implement it into your workflow, FPF also offers a toolkit for media-makers.

Time to check government secrecy

Trump’s election not only threatens press freedom. It also puts us in uncharted territory when it comes to corrosive government secrecy. FPF’s Daniel Ellsberg Chair on Government Secrecy, Lauren Harper, wrote about what can be done to help preserve transparency before Trump takes office.

We must assume that federal agencies will delete vast swaths of public data and information, as they did during Trump’s first term. Journalists and others should immediately download and save records from websites of agencies that will likely be targets for the second Trump administration.

For Biden’s part, he must amend the executive order on classified national security information to specifically state that violations of law may not be classified at all. And members of Congress must begin preparing for Trump-controlled agencies to ignore their requests for information and obstruct legitimate oversight.

Harper also is heeding what needs to be done to ensure the Freedom of Information Act meets the public’s needs in 2024 and beyond. In honor of the 50th anniversary of the 1974 amendments to FOIA, she led an Oct. 31 discussion on social platform X with experts Thomas Susman, one of the key authors of the amendments, and Ryan Mulvey, staff at FOIA Advisor. FOIA is even more important with an anti-transparency administration coming in.

Journalism isn’t consumer fraud or electioneering

Trump’s election may also embolden other public officials and politicians to attack the press, including by using the legal system.

We wrote this week (prior to the election) that Trump’s lawsuit against CBS for its “60 Minutes” interview of Kamala Harris furthers a trend of conservatives using consumer protection law to weaponize meritless libel lawsuits to SLAPP the press.

The greatest risk of Trump’s lawsuit isn’t to CBS. It’s to the future news outlets that will face an onslaught of frivolous consumer fraud investigations, whether initiated by Trump, state attorneys general, or future copycats. Strong anti-SLAPP laws at the state and federal level, and their vigorous enforcement by courts, can help deter these legal attacks on the free press.

We also wrote about Trump and his allies’ dangerous new theory that reporting they see as biased against them is illegal election interference. Examples include his efforts to weaponize the Federal Communications Commission — supported by FCC appointees from his first term — and his absurd complaint to the Federal Elections Commission that The Washington Post’s coverage constitutes an in-kind contribution to Vice President Kamala Harris’ campaign.

What we’re reading

Trump wins, the press loses (Columbia Journalism Review). U.S. Press Freedom Tracker Managing Editor Kirstin McCudden gave context to the threats journalists face in Trump’s second term by looking back at his first. 2020, in particular, was “a year of unprecedented attacks,” the vast majority of which occurred at protests over the murder of George Floyd by police.

Top Kari Lake campaign adviser jokes about sending journalists to ‘the gulag’ — then doubles down (Independent). The Senate race in Arizona hasn’t been called yet, so it’s too soon to tell whether voters rejected Republican candidate Kari Lake, whose senior adviser made these disgusting comments and later “referred to the media as the ‘enemy of the people.’”

Why the next president should pay heed to the Republic of Z (Politico). How do you know secrecy in the U.S. has jumped the shark? The State Department doesn't even want to release records on a fake country it made up to help train diplomats.

US says Iranian-American held in Iran as tensions high following Israeli attack on country (The Associated Press). After weeks of rumors, government sources confirmed that Iranian-American journalist Reza Valizadeh has been detained in Iran for months. It’s anyone’s guess whether Trump will care about detained journalists overseas, even when the authoritarians detaining them aren’t the ones he likes. The Biden administration needs to get to the bottom of this situation before it’s too late.

Come see us in London

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

The scope of the public’s right to know should be decided in public. Who would argue with that?

But on Nov. 18, 2024, the federal appellate court for the D.C. Circuit may hold a secret hearing about whether investigative journalist Catherine Herridge can be fined $800 per day for refusing to comply with a judicial order to divulge her sources. 

If the court rules against Herridge, every potential government whistleblower in the nation’s capital will think twice before talking to journalists in confidence. That means that in the second Trump administration, we’ll all know less about government waste, corruption, and malfeasance.

In other words, the stakes are high, and we’re entitled to know the full basis for the appellate court’s decision, whatever it may be. 

Herridge’s reporting that led to that contempt finding pertained to a decade-old FBI investigation of a scientist and university president’s alleged ties to the Chinese military. The scientist, Yanping Chen, sued the FBI and other federal agencies for allegedly violating her rights under the federal Privacy Act. 

The court sealed documents relating to the FBI investigation at the center of the lawsuit, even though the documents in question are not classified and can’t jeopardize the investigation, which is over. It’s unclear whether the public’s interest in the case, and the First Amendment, were factors in the decision to seal the records.

In any event, Chen argued that the secrecy surrounding the documents necessitates the closure of hearings (or portions of hearings) that relate to those documents. Herridge filed her own motion opposing secret hearings, arguing that “It would be incongruous if the press were barred from an oral argument that will set the bounds of press protections under the First Amendment.”

But the appellate court on Oct. 28 effectively kicked the can down the road, granting, for now, Chen’s request to bifurcate the hearing into open and closed sessions, while reserving its right to reconsider at a later date (likely on the spot during the hearing, without adequate time for Herridge or any interested news outlets to prepare thorough objections).

That means journalists covering the hearing could be left holding their notebooks in an empty courtroom while the lawyers and judges retreat behind closed doors to hash out the future of the reporter’s privilege, in the jurisdiction where it’s arguably most needed. 

That is, unless the appellate judges see the light (or, more accurately, let the public see it) between now and the 18th. 

PRESS Act would solve this problem

Of course, Congress could moot all of this by passing the PRESS Act, the federal shield bill that would protect journalist-source confidentiality. 

Herridge is a major proponent of the bipartisan legislation, and her case underscores the holes in the arguments against it (which, we should note, are only advanced by a small minority of lawmakers — the bill has twice passed the House unanimously and has Senate sponsors from both parties). 

For one, Republicans who perceive the bill as a gift to the “liberal media” should rethink that assumption. Herridge’s investigative work is highly respected across partisan lines (Sen. Ted Cruz even filed a brief in support of her appeal) and the reporting at issue in the case comes from her tenure at Fox News. She’s not the first Fox reporter whose sources have been targeted.

That said, Fox News isn’t who needs the PRESS Act most — that would be independent journalists and small upstart outlets without armies of lawyers, many of which produce right-leaning content that counters the mainstream narratives conservatives disfavor. 

And Herridge’s case turns the unsubstantiated notion that a reporter’s privilege would undermine national security on its head. The government, for better or worse, has ample means to identify leakers without subpoenaing journalists, and the PRESS Act contains national security exceptions that should nullify any concerns about wild hypotheticals, like a journalist withholding information that could stop an imminent terrorist attack. 

While those national security fears are rooted in fantasy, here’s the reality: The absence of the PRESS Act may allow someone suspected of being in cahoots with China to pry into the U.S. intelligence community’s dealings with journalists (that’s assuming Chen’s Privacy Act theory that the government disclosed the investigation to Herridge is correct — we have no idea). 

By the way, if you’re an elected official concerned about Chinese surveillance, that seems like a significantly bigger problem than whether China can theoretically track where American teenagers perform their TikTok dances. And it’s a problem that can be solved by strengthening, not weakening, the First Amendment. 

It’s time to pass the PRESS Act so no future investigative journalists need to risk crippling fines or imprisonment to protect their sources. But until then, court proceedings that decide these critical issues for our democracy need to be conducted with full transparency. 

The last time Donald Trump won the presidency, we were alarmed by the prospect that he’d file frivolous defamation suits and insult journalists from the White House podium. Those fears almost seem quaint now — the lawsuits and verbal attacks haven’t ended, but there is so much more at stake in Trump’s second term.

Since his first term ended, Trump has repeatedly called for journalists to be imprisoned and raped for not revealing their sources. Just days ago, he publicly fantasized about a mass shooting of journalists at one of his rallies. He wants to sic federal agencies from the Federal Election Commission to the Federal Communications Commission to the Department of Justice on his perceived enemies, including reporters he doesn’t like.

In his second term, Trump will make good on these anti-press threats to try to destroy any news outlet, journalist, or whistleblower who criticizes or opposes him.

Trump will almost certainly repeal protections against federal surveillance of journalists, which were prompted by his spying on them last time around (to be fair, so did his predecessor). He may even take advantage of the opening created by the case he started and the Biden administration finished — the prosecution of WikiLeaks founder Julian Assange — to prosecute journalists directly for publishing classified information.

Republicans are already seeking to abuse anti-terrorism laws against media outlets that criticize Israel; it’s hard to imagine Trump reining them in. He’s certainly not going to lift a finger to protect Palestinian journalists from getting killed while reporting on the war. Who knows how he’ll respond if Russia or other authoritarian regimes he wants to be buddies with imprison more American journalists?

Just like his last term, Trump is likely to try to censor social media outlets and interfere with the editorial discretion of publishers. His campaign against free speech online will be even worse this time around, especially if he gives the world’s biggest free speech hypocrite, Elon Musk, a prominent role in his administration.

At the local level, Trump’s anti-press rhetoric has already emboldened everyone from governors to county-level politicians to retaliate against the media. With their leader back in the White House, Trump wannabes nationwide will feel even more empowered to harass the press — and they’ve spent Trump’s years in exile priming their base to tolerate it.

Suffice it to say, we’ve got some hard work ahead of us at Freedom of the Press Foundation (FPF). But we’ve been here before. During the first Trump term, we fought him every step of the way, from launching the U.S. Press Freedom Tracker, the first comprehensive database of press freedom violations in the United States, to expanding the availability of SecureDrop to enable whistleblowers to communicate securely with journalists. And we’re now better equipped than ever to hold Trump accountable.

We’ve got an expanded advocacy team to draw the attention of both the public and policymakers to press freedom issues, whether at the local or national level. We operate a coalition that fosters strong partnerships between press rights groups across the political spectrum. Our new Daniel Ellsberg Chair on Government Secrecy furthers our late co-founder’s legacy by leading the fight to fix the country’s overclassification problem — something that Trump, strangely enough, actually has reason to support.

When the law isn’t enough, our digital security team steps in to educate reporters about how they can protect themselves and their sources, and our open source software tools like SecureDrop and Dangerzone help whistleblowers and journalists collaborate, and expose malfeasance, safely and confidentially.

Whatever press freedom violations we can’t prevent, we document. The Tracker is relied on by journalists and rights organizations everywhere to spot concerning trends and measure the state of press freedom in the United States. Just look at its work in 2020, the last year we had a President Trump, documenting hundreds of attacks on press rights during the civil unrest that swept the nation that year.

We’re going to need your help as the demand for our work likely grows, in both foreseeable and unforeseeable ways. If you agree that a strong Fourth Estate is essential to preserve democracy and check abuses of power, from Trump or whoever’s next, please donate today.

FOR IMMEDIATE RELEASE:

Washington, D.C., Nov. 6, 2024—Donald Trump, an anti-press extremist obsessed with punishing journalists and news outlets who criticize him, has won the presidency of the United States.

The following statement can be attributed to Trevor Timm, executive director of Freedom of the Press Foundation (FPF):

Trump has spent the last year on the campaign trail calling for more leak investigations, imprisoning journalists, and censoring news outlets he doesn’t like. Lawmakers and President Biden must act before it’s too late.

The Senate should immediately pass, and President Biden should sign, the bipartisan PRESS Act to stop Trump from spying on journalists, as he repeatedly did in his first term, and from throwing them in jail for refusing to reveal their sources, as he has threatened in the most disgusting terms.

Congress must make good on promises to fix dangerous and sloppily drafted mass surveillance legislation passed earlier this year that gives the U.S. government extraordinary power to spy on its own citizens.

And lawmakers must take a vocal stand against abusing anti-terrorism laws to punish free speech. It’s imperative the White House reverses its spineless position on Israel's unprecedented attacks on press freedom and pressure its ally to stop using U.S. weapons to kill journalists.

For more information on how the second Trump administration will increase government secrecy and attack journalists, how Trump tried to destroy press freedom in his first term, and the latest updates as they happen, visit FPF’s website and the U.S. Press Freedom Tracker.

Please contact us if you would like further comment.

The election of President Donald Trump to a second term, particularly now that the Supreme Court has granted the president broad immunity for “official acts,” puts us in uncharted territory.

In terms of corrosive government secrecy, however, there are a few things that President Joe Biden, journalists and the public, and members of Congress can act on right away.

What Biden must do

Biden should work quickly to amend the executive order on classified national security information, which currently dates to the Obama administration.

The order states that “in no case shall information be classified … in order to conceal violations of law.”

The wording is misleading.

The order does not actually preclude agencies from classifying — and therefore hiding — information that documents violation of law. As government secrecy expert Steve Aftergood pointed out four years ago, it only bars agencies from classifying records with the specific intent of concealing the violation.

Agencies can still classify records showing they broke the law, and their ability to do so is backed by the courts, thanks to a 2008 ruling against the ACLU by District Judge Royce C. Lamberth in the U.S. Court of Appeals for the D.C. Circuit.

The most effective and expedient way for Biden to meaningfully strengthen the executive order would be to specifically state that violations of law may not be classified at all. This change may prove to be a particularly important change in the wake of the SCOTUS immunity ruling.

Of course, it is possible that Trump could immediately rescind the order, but given its importance and convoluted subject matter, it would be unlikely his national security team would do so without having a replacement ready.

Trump also demonstrated no interest in replacing the Obama-era order during his first term. This doesn't mean he won't show more of an interest during his second term, but neither is it a given that he will, or that if he does, he would do it quickly.

In the interim, we must strengthen the tools that we have and Biden should close this loophole immediately.

What journalists and the public can do

Datasets disappeared from federal agency websites at an alarming speed at the beginning of Trump's first term. Within the first few months of his presidency alone, a staggering 39,245 datasets were removed from data.gov, which is intended to provide public access to important datasets created by the government.

The disappearance of TOXMAP is a distressing example of what may come. It was the National Library of Medicine’s mapping tool that served “as an integrated system of toxicology and environmental health information,” and that was dismantled during the first Trump administration as part of a “larger pattern of decreasing transparency of environmental data during the Trump era.”

Another warning comes from Mick Mulvaney, who, while serving as the acting director of the Consumer Financial Protection Bureau, tried to take down the bureau’s consumer complaint database. Luckily, he was ultimately unsuccessful and the database is still online — for now.

Public records were also taken down, including the White House visitor logs and press briefings from regulatory agency websites, like the Occupational Safety and Health Administration.

Journalists and the public must assume Trump will do the same in his second term, and should immediately download and save records on websites of agencies that will likely be targets for the administration. These agencies include the Environmental Protection Agency, the Food and Drug Administration, the National Oceanic and Atmospheric Administration, the Census Bureau, and the Centers for Disease Control and Prevention.

In addition to existing datasets, documents that should be proactively preserved include policy guidance, press briefings, final opinions, datasets, organizational charts, and any available information on the agency’s major information systems. For example, NOAA’s Institutional Repository is a major information system containing important NOAA records dating back to 1970.

Assume information systems like this will go offline and proactively preserve them.

What members of Congress can do

The first Trump administration banned agencies from responding to congressional requests for information when those requests did not come from full committees or subcommittees. This stalled legitimate oversight being conducted by the minority.

There’s no reason to think agencies will behave differently during a second Trump administration.

Members of Congress should use some of the remainder of the term to educate themselves and their staff on:

• the rights of individual members to request information directly from agencies, even if that request does not come from the committee chair
• how to counter agencies’ objections to providing information

Congress must also immediately pass, and Biden must sign, the PRESS Act. As Trevor Timm, executive director of Freedom of the Press Foundation (FPF), clearly states: “Trump has spent the last year on the campaign trail calling for more leak investigations, imprisoning journalists, and censoring news outlets he doesn’t like. Lawmakers and President Biden must act before it’s too late.”

Journalism is supposed to interfere with elections. Donald Trump once agreed. He was outraged when the media didn’t jump on the Hunter Biden laptop story that some think could have swung the 2020 election, and overjoyed that headlines about the FBI’s investigation into Hillary Clinton’s emails might have swung the 2016 one.

But now, he’s taken a break from fantasizing about mass shootings of journalists to theorize that reporting he perceives as unfair constitutes illegal “election interference.” He’s filed complaints against CBS News, claiming “60 Minutes” cleaned up a “word salad” answer by Vice President Kamala Harris to a question about the Israel-Gaza war. He’s also filed a complaint with the Federal Election Commission, characterizing the Washington Post’s coverage as an in-kind contribution to the Harris campaign.

Both cases are frivolous, but the CBS one is particularly concerning because two of Trump’s appointees to the Federal Communications Commission — Brendan Carr and Nathan Simington — are normalizing it (for the record, while news broadcasters are not barred from election interference, FCC commissioners are). This heightens fears over how a second Trump FCC could abuse its power.

Editorial judgment is for editors

We didn’t need “60 Minutes” to tell us that Harris’ position on the war — saddened by civilian casualties but noncommittal on doing anything about them — is incoherent, as is President Joe Biden’s (Trump’s position is clearer: He’ll proudly bankroll war crimes, minus the platitudes). It’s also true that CBS’ refusal to post a transcript or full video of the Harris interview online is odd — why not be transparent?

But, under the First Amendment, none of that is the FCC’s business — if CBS viewers don’t like the network’s coverage, they can change the channel, and if politicians think it’s unfair, they can take their case to the public.

It was the Reagan administration, not “woke” liberals, that repealed the unconstitutional “Fairness Doctrine.” That doctrine is even more ill-suited for today’s media landscape — with all of the outlets from which people get political news these days, the case for policing the public airwaves due to “scarcity” is even less compelling than it was decades ago.

Absent the Fairness Doctrine, Trump and his allies are citing the FCC’s “news distortion policy.” But as the agency’s own description of that policy acknowledges, “The FCC is prohibited by law from engaging in censorship or infringing on First Amendment rights of the press,” including “a broadcaster's selection and presentation of news or commentary.”

The FCC has stated it will only intervene when there is strong evidence of “intentional falsification.” Carr himself gave the example of splicing different answers to change a “yes” to a “no.” Editing a rambling answer can hardly be called “intentional falsification.” In both versions, Harris claimed the Biden administration has, or will, do something or other to rein Israel in and end the war, without specifying what. Her substantive position (or lack thereof) came through loud and clear.

That being said, it’s not hard to imagine the distortion policy, and other exploitable ambiguities in the commission’s authority, being weaponized by a politicized FCC (same for the FEC, for that matter, although thankfully no FEC commissioner has credited the absurd notion that favorable coverage is a campaign contribution).

If so, the backstop will be the same courts that lately often carry Trump’s water. That’s not particularly comforting. On the bright side, one of the right’s proudest recent judicial achievements -– the abolishment of the “Chevron deference,” which required courts to defer to administrative agencies — could, ironically, make it easier for judges to check an out-of-control Trump FCC.

All censorship is local

Calls for the FCC to overstep have not only come from the MAGA universe. In 2020, the FCC rejected a petition to apply its “hoax” rule against networks that aired Trump’s false statements about COVID-19. The commission said it “will not second-guess broadcasters. … We leave to the press its time-honored and constitutionally protected role in testing the claims made by our political leaders.”

And a former Democratic FCC commissioner joined efforts to revoke a broadcast license of a local Fox affiliate to punish Fox News for broadcasting Trump’s lies about the 2020 election. Trump has called for revocation of broadcast licenses associated with every major network, drawing condemnation from FCC Chair Jessica Rosenworcel. Trump’s supporters already cite his opponents’ revocation demands to legitimize his own.

And the impact of Trump’s unconstitutional antics has trickled down to the local level. Florida Gov. Ron DeSantis threatened to prosecute broadcasters for airing abortion rights ads. A political candidate in Ohio sued a newspaper for allegedly being less critical of his opponent than him. Expect more of that if supposed experts like Carr and Simington keep bolstering Trump’s nonsense.

Regardless of the election outcome, lawmakers and the FCC should do everything in their power to safeguard the agency from politicization and remove any wiggle room that could be abused, whether it’s the distortion rule, the hoax rule, or any others. This should have happened long ago — it’s not as if there weren’t enough warning signs. But better late than never.