Freedom of the Press

Tents are seen behind wire fences near buildings outside a federal prison in Texas early in the COVID-19 pandemic. Jeremy Busby, a journalist incarcerated in a Texas state prison, writes that prison officials rewarded his successful social media campaign to expose and improve prison conditions during the pandemic by throwing him in solitary confinement.

AP Photo/LM Otero

When COVID-19 invaded the Texas prison system like a Category 5 hurricane, everything was washed away. Prison officials placed every prison facility on a lockdown, which confined us all to our cells 24 hours a day.

Conventional methods that I previously used to investigate and report legitimate news stories were no longer available. The inability to leave my cell and the shortage of staff compelled me to turn to an option that prison officials despise — social media.

After my COVID-19 reporting, prison officials are well aware of my ability to reach outside audiences, expose their wrongdoing, and force reform. They don’t want that to happen again.

My cellmate had a contraband cellphone. After our prison facility (Mark W. Stiles Unit) lost 60% of its staff, including the entire mailroom, because they were sick with COVID-19, and nearly 50 percent of the prisoners contracted the virus, I decided to take action.

I created pages on Facebook, Instagram, and Twitter (now known as X) to inform the general public of the conditions that Texas prisoners and staff members were experiencing. On Facebook, I posted the number of prisoners and prison staff who died from COVID-19. On Twitter, I started threads about the lack of hand sanitizer, masks, and effective COVID-19 protocols inside Texas prisons.

On Instagram, I went live with hip-hop artist and activist Trae tha Truth to detail our plights. I also started the hashtag #AllEyesOnTDCJ, which went viral.

Texas prison officials responded by issuing bleach, masks, fresh fruit, and hot meals to prisoners, and adopting an official COVID-19 protocol from the Centers for Disease Control and Prevention.

They also wrote me a disciplinary case and tossed me into solitary confinement for 22 months.

Under the guise of “security,” state prison officials across the country are enacting policies to censor incarcerated journalists from accessing social media to publish fact-based journalism. The federal Bureau of Prisons is proposing heightening penalties for social media use and even barring incarcerated people from having people on the outside post for them.

These policies not only violate incarcerated journalists’ constitutional rights to freedom of speech, they’re government overreaches that present a plethora of concerns for the public, including stopping real news stories in the name of security.

Social media has become the primary news source for countless people. According to a 2023 survey by the Pew Research Center, for example, nearly half of American adults rely on one of Meta’s (owner of Facebook, Instagram, and WhatsApp) platforms for news.

Prison policymakers should recognize that the government cannot be the arbiter of truth. The push to ban incarcerated journalists from using social media is censorship of constitutionally protected speech. The goal is not security, but to further isolate incarcerated journalists in an industry where incarcerated journalists are not considered important.

Prison officials in Texas have historically been notoriously harsh with incarcerated journalists and others who expose their abuses. There have been documentaries made on the oppression incarcerated activist Fred Cruz endured at their hands, from obstruction of outgoing/incoming mail and unjust placement in solitary confinement to bogus disciplinary infractions and physical attacks. I’ve written about the similar retaliation that I've endured for my journalism, which continues to this day.

Social media bans allow further retaliation like what I experienced after the #AllEyesOnTDCJ campaign. In 2016, Texas prison officials enacted a social media ban that prohibited prisoners from using social media or for anyone associated with a prisoner to use social media on their behalf. That policy is vague and arbitrarily applied.

These policies serve no real penological interest other than allowing prisons and prison officials to escape the news coverage that other government entities are subjected to.

Several other states have enacted such policies, and the current federal proposal would restrict “accessing, using, or maintaining social media, or directing others to establish or maintain social media accounts on the inmate’s behalf." Violation of this policy would result in a prisoner placement in solitary confinement, loss of parole eligibility, or a fine.

These policies serve no real penological interest other than allowing prisons and prison officials to escape the news coverage that other government entities are subjected to.

For example, Texas prisons have recently experienced an alarming spike in homicides and suicides by prisoners. In addition to reporting on this for traditional print media, it's been my desire to reach the huge percentage of Americans who rely on social media for their news.

Afraid of the publicity and subsequent demands for accountability, prison officials retaliated against me again. On June 12, days after a prisoner, who worked as a suicide prevention specialist, died by suicide at my facility, prison officials locked me in solitary confinement without any of my personal property.

Starting 12 days later I was arbitrarily transferred to two different prisons over three days. At my current facility, I have been held in solitary confinement without a mattress, toilet paper, or any basic necessities. My scheduled visitations, including with media outlets and members of my social media team have been denied, supposedly due to the transfers.

This crackdown is designed to suppress free speech, including on social media. After my COVID-19 reporting, prison officials are well aware of my ability to reach outside audiences, expose their wrongdoing, and force reform. They don’t want that to happen again.

The right to freely express one's self — incarcerated or not — is an inalienable right that should never be infringed upon. Government transparency and accountability hinges on incarcerated journalists' ability to report what's happening inside every prison to the general public.

As a nation, we must fight this unethical form of censorship. Prison officials are public servants and their actions and policies must reflect that. Banning social media for incarcerated journalists is a government overreach that is contrary to the public interest.

A new decision by Judge I’Ashea L. Myles denying access to records from the Covenant School shooting investigation is the first time a Tennessee court has held that copyright law trumps the state’s public records act.

AP Photo/George Walker IV.

A recent court decision denying access to public records related to Nashville’s Covenant School massacre used a novel legal theory that could have wide-ranging implications for other public records requests.

Chancery Court Judge I’Ashea L. Myles’ decision prevented the release of the Covenant School shooter’s manifesto and other writings, artwork, and video to journalists at The Tennessean newspaper and others on the grounds that the release would violate federal copyright law. It’s the first decision in Tennessee concluding that copyright law trumps the state’s public records act.

As the United States faces a seemingly endless plague of mass shootings at homes, schools, grocery stores, and places of worship, some argue that it’s better to keep the vile rantings of the perpetrator a secret, while others maintain that public access to these records is necessary for government accountability and stopping future violence. News outlets should be free to make their own decisions on the matter, based on the judgment of editors, not judges.

But the copyright theory relied upon by the court in the Covenant School shooting case doesn’t hinge on anything unique to violent manifestos. It would apply equally to copyrightable records that have nothing to do with killings or criminal cases.

In fact, many public records that have important information about what the government is up to could be subject to copyright. Under this decision, they would be totally exempt from disclosure to the public and the press.

Take emails, for instance. Emails between government employees and people outside of government — obtained using public records requests — are often essential to news reports.

Journalists at the nonprofit research group U.S. Right to Know, for example, used public records laws to ask for emails between public employees and food and pesticide companies. Those emails revealed how companies like Monsanto and others have “aggressively recruited” academics at public universities to defend genetically modified foods or how Coca-Cola has tried to influence health officials.

But emails are also copyrightable under federal law. What if these large corporations could block our right to know about their attempts to sway the government and the public by claiming their emails with public officials are copyrighted and must be kept confidential? Under the recent Tennessee decision, it’s possible.

And what about emails and other written records by public officials themselves? While works created by the federal government are automatically in the public domain, that’s not the case in many states, where even government-created works are considered copyrightable.

We’ve seen how bad-faith actors already misuse copyright law to try to block reporting they dislike.

State public records laws should be considered authorization to copy and disclose government-created works, even if they’re copyrighted. But we’ve seen how bad-faith actors already misuse copyright law to try to block reporting they dislike. It’s not hard to imagine a government employee with something to hide trying to deny a records request for a government record like an internal memo or police bodycam footage based on copyright. Even if the employee ultimately loses, the cost and delay they can impose by raising copyright as an objection to releasing records will inhibit reporting.

Tennessee isn’t alone in holding that copyright law trumps state public records law; the court’s decision in the Covenant School case cites cases from a few other states. But other courts have reached the opposite conclusion.

Under the federal Freedom of Information Act, for instance, courts have held that copyrighted works aren’t automatically exempt from disclosure. Other state courts have relied on copyright’s protection for “fair use” to allow disclosure of public records that may also be copyrighted — an argument that Myles refused to even consider in her recent decision.

Myles’ decision is sure to be appealed, and the higher courts in Tennessee should take note of these decisions, as well as the potentially disastrous consequences of letting copyright defeat public records laws. Copyright makes writings and other works private property, but public records belong to the public. The two simply don’t mix.

Federal prosecutors in Michigan and around the country are claiming a startling new power: the ability to decide what is or isn’t “legitimate” journalism. Even as President Joe Biden and his administration declare that “journalism is not a crime,” federal prosecutors are attempting to define away journalism so they can go after reporters — with disastrous consequences for press freedom.

Prosecutors disparage documentaries

In Michigan, prosecutors recently attacked journalist Trevor Aaronson and the entire field of documentary journalism, simply because Aaronson wants to report on a local terrorism prosecution of a Michigan man, Aws Naser.

The First Amendment protects reporting on criminal cases, because openness and transparency help make our justice system fair. But the government accused Aaronson of having “improper motives” and plans to present a “biased” and “one-sided” point of view, all because he’s been speaking with Naser and may want to make a documentary about the case.

Even more disturbingly, prosecutors claimed that documentaries aren’t legitimate journalism. Documentaries aren’t like news articles, prosecutors wrote, because they’re “powerful vehicles for presenting a narrative, evoking strong emotions, and creating a long-lasting impression of the subject matter” and may focus “on a specific perspective and leav(e) out important information.”

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Aaronson recently spoke to Freedom of the Press Foundation (FPF) about the “egregious and false” accusations against him. Prosecutors’ actions, he said, are a form of intimidation. “In my opinion, the fear is that this creates a chilling effect,” Aaronson added.

The basic premise of prosecutors’ argument — that the government has the power to define journalism — is also wrong and, if accepted by courts, would threaten press freedom. The First Amendment ensures freedom of the press by protecting it broadly, including everything from handbills to blogs.

Reporting that relies on evocative or emotional narratives also doesn’t lose its First Amendment simply because it’s effective. In Michigan alone, documentaries have used entertaining devices or powerful personal stories to cover some of the most important news stories in recent decades, from the General Motors’ decline to the Fab Five and the Flint water crisis.

Most importantly, giving the government the power to define journalism would empower it to stifle or censor news reporting it dislikes. That’s especially true if courts let prosecutors define journalism based on whether they consider a particular medium or reporter “biased.” The First Amendment says nothing about objectivity, and it’s rare for a government official to admit that criticism of their actions is fair.

To the contrary, countless government officials have spuriously accused journalists who report critically about them or expose their wrongdoing of one-sidedness, bad reporting, or other misconduct. In almost every case, officials were actually upset that journalists were holding them accountable.

That may be exactly what’s happening in Aaronson’s case. Aaronson is well known for his reporting on problematic FBI undercover investigations. It’s a safe bet that this past reporting played a big role in the government’s attempt to stop him from digging into this more recent case, in which Naser has also alleged FBI misconduct.

Not ‘real’ journalism excuse

But at least the government isn’t actually prosecuting Aaronson — it’s trying to prevent him from accessing court records to stymie his reporting. In other cases, prosecutors have used the “it’s not journalism” excuse to actually criminalize reporting.

Earlier this year, the government charged journalist Tim Burke with breaking federal laws for finding unaired Fox News footage of an antisemitic rant to Tucker Carlson by Ye, formerly Kanye West, on the internet and disseminating it. Burke’s past reporting is well known, and although he’s no longer employed by a news outlet, he continues to consult for them. Last year, a federal judge recognized that Burke is a “member of the media.”

But the FBI and prosecutors seem to be waiving away concerns that they’re targeting a journalist, by ignoring the news value of the clips Burke reported on, referring to him as a former journalist, or being cagey about whether they complied with laws and policies meant to protect reporters.

Then there’s the recently settled case against Julian Assange. The debate over whether or not Assange is a journalist is a red herring. The government knew full well that convicting Assange for obtaining and publishing government secrets under the Espionage Act would set a disastrous precedent for journalism — that’s exactly why the Obama administration declined to prosecute him.

Unfortunately, that hasn’t stopped prosecutors and other government actors from repeatedly arguing that Assange isn’t a journalist, in a cynical ploy to confuse people into thinking that the case, and the Espionage Act, wouldn’t impact “real” journalists.

Journalism is an activity, not just a job

To protect freedom of the press, courts and lawmakers need to treat arguments like these — that certain forms of journalism “don’t count” or that a journalist’s point of view puts them outside the First Amendment — as complete nonstarters.

Instead, we should look to a “functional definition” that considers whether a person is performing an act of journalism: finding news and sharing it with the public. For example, the PRESS Act — the federal reporter’s shield bill that’s passed the House and is under consideration in the Senate — would use a functional definition to protect any person who regularly gathers, writes, or reports the news from government spying or being forced to reveal their sources.

The functional definition safeguards the public’s right to know. It recognizes that the First Amendment protects journalism by a neighborhood blogger just as much as it would reporters at The Wall Street Journal or The Washington Post. It applies equally to journalists who praise the government and those who denounce it.

Journalists themselves also need to cover these stories and point out why attacking freelancers like Burke, documentarians like Aaronson, or citizen journalists like Priscilla Villarreal (who was arrested for nothing more than asking government employees questions) is so problematic for press freedom.

If the government can deny journalists access, impede their reporting, or even prosecute them whenever it makes the self-serving decision that their journalism isn’t legitimate, then journalism will, in fact, be a crime.

We urged Milwaukee Police Chief Jeffrey Norman, pictured here at a press conference regarding next week's Republican National Convention, to ensure that journalists are able to report freely on protests and civil unrest.

AP Photo/Morry Gash

As journalists arrive in Milwaukee to cover the 2024 Republican National Convention (RNC) at the Fiserv Forum, local police must be aware of and protect journalists’ constitutional right to report, especially on protests.

In a letter to the Milwaukee Police Department, Freedom of the Press Foundation (FPF) outlined the constitutional and legal protections available to journalists, and discussed steps police can take to protect press freedom and the public’s right to know.

With the ongoing war in Gaza, disputes over the border, and Donald Trump’s nomination, we can expect the public to take to the streets during the RNC. This is even more true in the wake of the killing of Dvontaye Mitchell at the Hyatt Regency hotel downtown, which put the spotlight on the host city. We told Police Chief Jeffrey Norman:

Officers must foster a safe environment for journalists outside the RNC and any other protests. … The decisions of your department are more important now than ever. Not only can you ensure a well-informed public and a stronger democracy, you can avoid the reputational and legal and economic pitfalls suffered by so many other police departments that have mishandled their protest responses in recent years.

You can read the full letter here. It’s also embedded below.

Swearing in Donald Trump’s defense secretary was among Supreme Court Justice Samuel Alito’s official duties. Keeping Trump out of prison by butchering the Constitution is not.

Public domain

The Supreme Court stunned legal experts last week by deeming presidents absolutely immune from prosecution for “core” constitutional duties and mostly immune for “official acts.” Otherwise, the court’s conservative majority reasoned, the prospect of criminal charges would make presidents less “energetic.”

But when it comes to the energy levels and effectiveness of reporters performing their own core constitutional duty — tracking down important news, including about the Supreme Court — it seems many journalistic ethicists don’t share similar concerns.

Case in point, the backlash against filmmaker Lauren Windsor last month for secretly recording comments by Justices Samuel Alito and John Roberts.

Who called the journalism police?

Alito’s recorded remarks shed light on his worldview — that coexistence between the right and left is a pipe dream, and “one side or the other is going to win.” In hindsight, that helps explain why he and his colleagues threw “originalism” to the wind to hand Donald Trump a win.

The public’s trust in journalists seems unlikely to be diminished by their not letting justices hobnob in peace.

But the prevailing view among ethics experts was that the ends didn’t justify the means. Law professor Jane Kirtley told The New York Times that “most ethical journalists deplore those kind of techniques,” asking, “How do you expect your readers or your viewers to trust you if you’re getting your story through deception?” Kelly McBride of the Poynter Institute said she’d never seen a justifiable example of deceptive reporting.

If some outlets believe surreptitious newsgathering undermines public trust and prefer to avoid it, that's their prerogative. But there’s room for other approaches. A Supreme Court that routinely issues dubious decisions and overturns decades-old precedent while justices accept lavish gifts from billionaires begs for unrestrained investigation, not gatekeeping.

Justices aren’t accountable to voters and don’t often grant interviews. Their correspondence isn’t subject to FOIA. They’ve resisted recent calls for transparency, only begrudgingly adopting a toothless code of conduct. The Biden administration isn’t eager to publicly investigate them.

What are journalists supposed to do? Hope news about the court falls on their laps? Windsor, who raised similar points to defend her work, tried something else: using arguably unsavory methods to confront a definitely unsavory situation.

Her critics admit she didn’t break Washington, D.C. law. She paid for a ticket to a Supreme Court Historical Society event Alito and other justices were scheduled to attend. These events have long allowed the well-heeled to gain access to justices that reporters can only dream of. The public’s trust in journalists seems unlikely to be diminished by their not letting justices hobnob in peace.

That trust is already at a record low, not because of journalists’ methods, but because people don’t believe they’re reporting “fully, accurately and fairly.” Windsor recording Alito to report news is far less damaging to the media’s reputation than, for example, Nina Totenberg covering for Ruth Bader Ginsburg to not report news.

And let’s not forget Windsor’s recording came shortly after Alito threw his wife under the bus following reports he flew an “Appeal to Heaven” flag, signifying a “push for a more Christian-minded government,” right in line with what Windsor recorded.

That flag — like one that flew outside another Alito home in 2021 — also demonstrates support for Jan. 6 insurrectionists. Incidentally, The Washington Post withheld the flag story to protect Alito’s wife: another questionable call by the establishment press that breeds far more distrust than surreptitious recording.

Now that the story’s finally out, the public should know that the justice flying those flags, and joining radical rulings, thinks we’re in the midst of a battle between good (the pro-Trump religious right) and evil (everyone else).

Yes, Windsor deceived Alito by posing as a religious conservative. But Alito deceives America by posing as a principled originalist. Bottom line: The deception Windsor helped expose is far more consequential than the deception she carried out.

Undercover reporting under attack

The current opposition to undercover reporting, even under circumstances in which leading ethical guidelines seem to permit it, may arise from its association with disreputable outlets like Project Veritas. Their employees mislead not only secretive government officials but the public, including through deceptive editing.

Bottom line: The deception Windsor helped expose is far more consequential than the deception she carried out.

But undercover reports used to be a hallmark of prime-time news broadcasts. Even before miniature cameras made those investigations possible, the Chicago Sun-Times operated a sham bar — the Mirage Tavern — to catch shady government dealings. Before that, northern journalists went undercover to document the horrors of slavery.

The change wasn’t prompted by some ethical epiphany, but a court case, Food Lion, Inc. v. Capital Cities/ABC, culminating in a 1999 appellate decision allowing journalists to be sued over newsgathering tactics.

Law professor Alan Chen explained that the case, which involved reporters getting jobs at grocery stores to record unsanitary practices, appears to have immediately upended conventional thinking on surreptitious reporting. Chen notes that Food Lion even distributed a curriculum based on the case to journalism professors.

Sure, there were previous discussions on the subject. The Pulitzer board in 1979 debated whether the Mirage Tavern investigation’s deceptiveness was disqualifying, as argued by the Post’s Ben Bradlee. But that only underscores that, back then, a story like that could’ve been nominated in the first place (previous undercover reports had won).

Times have changed — in more ways than one. Today, conventional newsgathering often doesn’t work. FOIA is broken. Agencies route inquiries through spin-spewing spokespeople. Political candidates refuse to interact with journalists. Officials retaliate against and censor reporters. No one can even definitively determine if the current president has a serious cognitive condition.

Under the circumstances, it seems selfish for the press to elevate concerns about its own image over the public’s interest in the news.

Following the Trump v. U.S. decision, Heritage Foundation President Kevin D. Roberts proclaimed that the country is “in the process of carrying out the Second American Revolution.” Echoing Alito, he added that “our side is winning.”

If people as influential as Roberts say that in the open, imagine what they say behind closed doors. Or maybe journalists shouldn’t imagine — they should find out. They’d better start before Trump tries silencing them altogether through those “official acts.”

Former Mississippi Gov. Phil Bryant, above, has demanded that two reporters reveal the sources for their reporting on a welfare fraud scandal in the state. The legal battle shows how dangerous a lack of shield laws can be for journalists and sources. Dewey Phillip 'Phil' Bryant , Mississippi Governor, LAGOP GOTVR Dec2016 137 (31470349421) (cropped) by Tammy Anthony Baker from Louisiana is licensed under CC BY 2.0.

We’ve written a lot about why Congress needs to pass the PRESS Act, the bipartisan federal bill that would shield journalists from government spying and from being forced to turn over their confidential sources. Strong protections for journalist-source confidentiality encourage whistleblowers and sources to come forward with newsworthy information that the public might otherwise never know.

But Congress isn’t the only place where we need a law strengthening the reporter’s privilege. A small number of states also lack a reporter's privilege statute. Even though judges in all of these states (except Wyoming) have recognized some protection for journalists’ sources and newsgathering materials, without a law on the books, journalists and their sources are still at risk.

Case in point: Mississippi, where journalist Anna Wolfe and her editor Adam Ganucheau are facing contempt of court for refusing to reveal confidential sources for their reporting in Mississippi Today about a massive criminal welfare fraud scandal.

The investigative series won the Pulitzer Prize. Among other things, it revealed that former Gov. Phil Bryant guided Brett Favre, the former NFL quarterback, on how to secure welfare funding for a volleyball stadium at University of Southern Mississippi, where Favre’s daughter played.

In response, Bryant sued — not over the original reporting, which he hasn’t contested, but over after-the-fact characterizations of the investigation. As part of his lawsuit, Bryant has demanded not only Wolfe’s sources for this investigation but all of the communications that every Mississippi Today reporter has had with sources about him for the past several years.

Mississippi has no law protecting reporter-source confidentiality, but most trial courts in the state have recognized the privilege. Still, because those decisions aren’t binding on other courts, Mississippi Today, Wolfe and Ganucheau have been forced to ask the Mississippi Supreme Court to recognize a reporter’s privilege for the very first time.

Unless and until the court rules in their favor, Wolfe, Ganucheau, and all Mississippi reporters are vulnerable to chilling demands for their sources.

So are journalists in other states without a reporter’s privilege written into state law. Relying on courts to develop and apply a judge-made privilege can lead to gaps, confusion, and weaker protections.

Mississippi isn’t the only state that lacks both a codified reporter’s privilege and a decision from the state’s highest court recognizing one. The Missouri Supreme Court, too, has yet to recognize a reporter’s privilege, though the state court of appeals has done so several times. That puts journalists in Missouri in a precarious position.

Even in other states where the highest court has spoken, court-made privileges can lead to gaps in the law or confusion, especially if that court has issued very few decisions discussing the privilege. Because courts make decisions on a case-by-case basis and decide only the issues before them, an application of the reporter’s privilege in one set of circumstances may not resolve the question of its application in another. This lack of certainty can discourage sources from coming forward, because they can’t be sure whether or not the law will protect them.

The Virginia Supreme Court, for example, has just one decision recognizing the privilege, and only in criminal cases. While lower courts in the state have determined that the privilege also applies in civil cases, those decisions aren’t binding on other lower courts or the state Supreme Court. A statutory reporter’s privilege could make clear that it applies in both criminal and civil cases, and to demands both from the government and from private litigants.

Individual state court decisions may also leave other questions about the privilege open: Does it apply only to confidential sources or also to other confidential or nonconfidential newsgathering materials? Does it protect freelancers or citizen journalists? Is it absolute or qualified, meaning it can be overcome in certain circumstances? In contrast, a codified reporter’s privilege can address these and other details, giving journalists and sources the certainty they need about when they can rely on the privilege.

Finally, court decisions can always be limited or even overturned in later cases, making them less durable than a statutory protection. The Idaho Supreme Court, for example, initially entirely rejected a reporter’s privilege, only to change its mind in its 1985 decision in In re Wright. According to one expert, however, “In its most recent examination of the privilege, the Idaho Supreme Court has again indicated a hostility toward the privilege and strictly limited the ruling in Wright.”

Although statutes can also be repealed, lawmakers may be reluctant to undo popular shield laws knowing they’re accountable to the electorate.

It’s good that courts in states without a statutory reporter’s privilege have stepped in to protect journalists and sources. A judge-made privilege is better than nothing. But lawmakers in those states shouldn’t be satisfied to sit back and rely on this precedent to protect the press.

We need every state in the country, as well as Congress, to pass strong shield laws that comprehensively protect journalists from being forced to turn over their notes and reporting materials or otherwise burn their sources. The free press and the public’s right to know is too important to leave the decision up to the courts alone.

Body camera footage showing Asheville Blade journalist Matilda Bliss's press pass. Bliss and colleague Veronica Coit were convicted of trespassing for recording police evicting unhoused people from a public park.

In a recent decision, the U.S. Supreme Court made it easier for individuals to sue if they can prove they were retaliated against for exercising First Amendment rights. For Asheville journalists Veronica Coit and Matilda Bliss — who were arrested and convicted for covering a police sweep of a homeless encampment at a public park — the court’s ruling bolsters their appeal of their conviction, as well as any lawsuit they may eventually file.

Freedom of the Press Foundation (FPF) Advocacy Intern Jimena Pinzon and Advocacy Director Seth Stern wrote for the Asheville Citizen Times about why this decision should give Bliss and Coit hope.

Last week’s decision is a win for press freedom nationwide because it empowers reporters who are needlessly arrested and prosecuted to seek justice in court. Officials in Asheville should take note and start thinking about cutting settlement checks and, more importantly, reforming their anti-speech practices going forward.

You can read the full op-ed here.

Incarcerated journalists already have little to no meaningful access to social media. A proposed change to federal Bureau of Prisons rules would make things even worse. "Federal Prison" by jtuason is licensed under CC BY-SA 2.0.

Social media bans in prison cause harm to journalists — both inside and outside prison gates. For journalists in prison, access to social media is critically important to gathering information, communicating with sources, and sharing their work with the public.

Prohibiting access to social media and heightening penalties for violations, as the Federal Bureau of Prisons has proposed, would further deny journalists in prison the right to exercise their freedom of expression.

The proposal, which could also bar incarcerated people from having others operate social media accounts on their behalf, would additionally deny journalists outside prison their ability to talk to incarcerated people. That’s a denial of rights that cannot be allowed.

It is crucial to find a balance between security concerns and the rights of individuals, including journalists on the inside. No one can discount the daunting task that prison officials face having to filter out nefarious actors seeking to use social media to commit crimes from those upstanding prison residents that pose no harm to the public.

But as a former incarcerated journalist without ill intentions, I had to contend with a total social media blackout as if I were seeking to wage jihad against America. Thousands of other journalists face the same obstacles.

Social media bans act as a blockade to any source of information that incarcerated journalists could use to produce high-quality work.

In 2022, after 12 years in federal prison for drug trafficking, I became a journalist writing for outlets such as parents.com, The Marshall Project, and the Columbia Journal. I had a burning desire to rewrite the narrative that was being fed to my country about people like me who lived behind the fence.

But for journalists who do not write about life behind the fence but instead choose to write about issues that face the country outside of prison, social media bans act as a blockade to any source of information that they could use to produce high-quality work.

This is why we must collectively breathe fresh air into the fight for the rights of incarcerated journalists who are smothered by social media bans. And although the currently proposed rule might make a ban official and increase the risks faced by those who use social media inside prisons, in my experience and that of other federal inmates I know, incarcerated people already have no meaningful access to social media.

Social media provides a platform for journalists and writers to share their work and engage with not only their professional network but also their audience. A ban on social media in prison, like the one I faced, makes it impossible for journalists and writers to connect with their readership, potentially limiting their impact and reach. It begs the question: What good is a writer without a reader? Questions like these stab at the soul of a dedicated journalist, causing wounds that may never heal.

The problems that social media bans in prison present a journalist go beyond keys, locked doors, or other digital barriers. There are also long-lasting psychological and emotional consequences that stem from not being able to amplify your voice and be heard.

For journalists and writers, social media can serve as a means of therapy, inspiration, and creative expression. A ban on social media can lead to feelings of isolation, frustration, and a loss of an outlet for self-expression impacting your mental well-being. These mental strains add to a weight that is already too much of a burden to bear.

The social media ban in federal prison transformed me into a rule-breaking miscreant. Third-party companies that outmaneuver the existing messaging systems, such as CorrLinks, allow incarcerated writers to bypass the digital gatekeepers and access the eyes and ears of the general public.

I will not divulge how these third parties operate but it goes without saying that an inmate’s use of them is illegal and if caught using such a resource an incarcerated journalist faces harsh, even tortuous punishments, such as weeks in solitary confinement or even months added on to their sentence.

While living inside prison walls, a journalist’s voice does not go away. Instead, it’s stored in an attic of legislation and bad regulation.

I was caught using one of these disallowed services but was able to dodge time in solitary confinement because of a technicality. Many of my comrades on the inside were not so lucky, and the bureau’s proposal could make the situation even more dire.

While living inside prison walls, a journalist’s voice does not go away. Instead, it’s stored in an attic of legislation and bad regulation. But incarcerated journalists, like every other journalist, want the public to know the truth.

Whether it be about war, abortion, poverty, or prison itself, incarcerated journalists deserve the right to report a well-informed story to the world. They deserve the right to tell the world how we really lived and struggled to remain safe and sane in what is sometimes a deadly environment. They also deserve the right to tell the story about some far-off village halfway around the world if they choose.

An incarcerated journalist deserves the right to have a voice, and people on the outside deserve the right to hear that voice. Unfortunately for those who seek a change from their lawbreaking past and do not wish to run afoul of prison rules, their voice becomes a silent one drowned out by the volume of red tape and draconian policies that put and keep social media bans firmly in place.

Red tape, restrictions, and delays also make it extremely difficult for journalists on the outside to report on prison conditions. When journalists on the inside can’t get the word out either, transparency becomes virtually nonexistent.

The fight for the right of incarcerated journalists to access social media is a collective one. As they languish behind barbed wire and big walls, we on the outside must push the envelope and pound the pavement in an effort to amplify their voices and have their rights respected.

The Supreme Court’s decision in the social media content moderation cases reaffirms important First Amendment protections for the press. File:Panorama of United States Supreme Court Building at Dusk.jpg by Joe Ravi is licensed under CC BY-SA 3.0.

The Supreme Court reinforced key protections for the news media in yesterday’s decision on social media content moderation and the First Amendment. It made clear that, just as the government can’t force a newspaper to print something its editors don’t want to print, the government can’t force online platforms to carry content they don’t want to carry.

The decision is a win that will help protect free speech, including by the press, from government censorship disguised as an attempt to combat bias. But one justice’s concurrence raises some troubling questions about the First Amendment’s application to the TikTok ban case.

Content moderation at the court

The NetChoice cases involved a challenge to the constitutionality of Texas and Florida laws regulating how social media companies handle users’ online speech. Arguing that liberal platforms were “censoring” conservative voices, Republican legislatures in both states passed laws that limited platform content moderation.

Two federal appellate courts reached opposite results. In a widely derided opinion, the 5th U.S. Circuit Court of Appeals held that the Texas social media law was likely constitutional because content moderation is censorship, not speech. In contrast, the 11th U.S. Circuit Court of Appeals concluded that the Florida law likely violated the constitution.

The Supreme Court said that neither court of appeals got it quite right because they didn’t apply the correct legal test, and it sent both cases back to them to do so. But a majority of justices also concluded that content moderation, at least as it’s done by the big platforms on their main news feeds, is protected by the First Amendment.

That means the decision isn’t a victory for these state laws, as the Florida attorney general has claimed. Instead, it’s a win for free speech — and may become an important precedent for the press as well.

Key press precedent stands

Importantly for the press, the court’s majority opinion relied heavily on a crucial press freedom precedent to explain how the First Amendment applies to content moderation.

In Miami Herald v. Tornillo, the court recognized that the First Amendment protects the right to engage in editorial decision-making. In that case, the court struck down a Florida law that gave candidates for office a right to publish an answer to newspapers’ criticism, because the First Amendment gives newspapers — not the government — the right to decide what to print and how to cover newsworthy issues.

Tornillo was decided in the 1970s, and some wondered whether a conservative Supreme Court would look disfavorably on an older case protecting the press.

However, in NetChoice, the majority opinion relied heavily on Tornillo to explain how the First Amendment’s protection for editorial discretion prohibits government censorship in the name of “balance.”

The court’s reaffirmation of Tornillo is especially important as the news media faces increased risk of hostile legislatures and executive officials who want to limit their First Amendment rights.

Former President Donald Trump and his associates have made no secret of the fact that he believes that the news media is biased against him. Trump has also repeatedly called on news outlets to be regulated based on their negative coverage of him or failure to carry his remarks.

If Trump is reelected, Tornillo may be an important bulwark against his future attempts to interfere with the press and its decisions of what to publish or not publish about him.

Facial First Amendment claims carry on

The court sent the NetChoice cases back to the lower courts because it said they hadn’t applied the right test for “facial” First Amendment challenge to Texas and Florida laws, that is, unconstitutional in all circumstances, as opposed to its application in a particular case.

The court hinted at oral argument that it might rule this way, and some of the justices’ questions even raised concerns that it might make it harder to prove a First Amendment facial challenge.

That didn’t happen. As a result, journalists and news media outlets who want to bring facial challenges to future law impacting their First Amendment rights still can.

One justice clocks TikTok

The NetChoice decision isn’t all good news for the First Amendment, however. Justice Amy Coney Barrett’s concurrence includes a disturbing hint about how she — and potentially other justices — might view a First Amendment challenge to a TikTok ban, as well as the First Amendment rights of foreign news outlets.

Although foreign ownership of platforms has nothing to do with the NetChoice case, Barrett wrote in her concurrence that “the corporate structure and ownership of some platforms may be relevant to the constitutional analysis” because “foreign persons and corporations located abroad” do not have First Amendment rights. She posed “hypothetical” questions about content moderation policy and decisions influenced from abroad that seemed to clearly have the claims that the Chinese government pulls the strings at TikTok in mind.

We’ve written many times about how a TikTok ban undermines the First Amendment. But, even more worryingly, Barrett’s concurrence has troubling implications for journalists and news outlets operating abroad, who, she says, have no First Amendment rights.

It seems that some executive branch officials agree. For example, before it reached a plea deal with Julian Assange, the U.S. recently failed to give U.K. courts adequate assurance that Assange, a foreign national, could rely on the First Amendment to defend himself.

But regardless of whether foreign social media platforms, news outlets, or journalists themselves have First Amendment rights, Americans have a First Amendment right to receive information from foreigners, and Americans have a right to communicate through whichever platform they prefer, no matter who owns it.

As the Electronic Frontier Foundation explained in a legal brief joined by Freedom of the Press Foundation (FPF) in a case challenging the federal TikTok ban, “The use of TikTok by its millions of American users to share and receive ideas, information, opinions, and entertainment from other users around the world lies squarely within the protections of the First Amendment.”

Barrett’s concurrence doesn’t mention any of that. Even as the court reiterates core First Amendment principles in NetChoice, it may need a reminder of others when it comes to TikTok.

Julian Assange is understandably overjoyed to finally be free, but people who value investigative journalism shouldn’t be similarly thrilled by the terms of his plea deal. Above, the WikiLeaks founder gestures after landing in Australia on June 26.

AP Photo/Rick Rycroft

We were relieved to see the prosecution of Julian Assange resolved without an adverse court ruling that could have existentially threatened the First Amendment. But we made clear, through news outlets from PBS News Hour to The Guardian, that the Biden administration deserves zero credit for that outcome, given that it forced Assange to plead guilty under the Espionage Act to gain his freedom.

Freedom of the Press Foundation (FPF) Executive Director Trevor Timm wrote in The Guardian, “While it should be a relief to anyone who cares about press freedom that Assange will not be coming to the US to face trial, the Biden administration should be ashamed at how this case has played out.”

FPF Advocacy Director Seth Stern added in the Daily Beast that the only impact of the plea agreement “will be to legitimize the criminalization of routine journalistic conduct and encourage future administrations to follow suit—including a potential second Trump administration.”

For more, watch Timm and Stern weigh in on the alarming implications for journalists and the press on BBC and Democracy Now, as well as in Timm’s appearance on PBS News Hour.

The government said in the Julian Assange case that it would never use the Espionage Act against traditional journalists. But it claims the act restricts journalists at the military newspaper Stars and Stripes. "STARS AND STRIPES (May 1, 1973) - IT'S OVER - THẾ LÀ KẾT THÚC" by manhhai is licensed under CC BY 2.0.

We’ve spent the week warning that Julian Assange’s guilty plea — although better than an adverse court ruling — dangerously legitimizes the idea that the government can convict journalists under the Espionage Act for publishing its secrets.

It’s something past administrations have dreamed of doing, but chickened out because it would have been unprecedented. It’s not anymore, just in time for a potential second Trump term, during which he’d love nothing more than to throw journalists in jail.

It turns out the government had already proven our point even before Assange’s plea agreement became public. Voice of America reported last week that the Department of Defense opposes reforming rules that bar journalists at the military newspaper Stars and Stripes from publishing classified information, even when it has already been reported elsewhere.

A Defense Department spokesperson told VOA that journalists who are government employees must “adhere to applicable DoD policies and federal laws and regulations, such as those regarding legal and ethical standards of federal employees and unauthorized disclosure of classified information.”

Stars and Stripes receives funding from the Defense Department but its editorial independence is guaranteed by Congress (at least on paper, and hopefully in practice).

Turns out, when the government is given the power to tie journalists’ hands it inevitably will.

Presumably, the federal law the Defense Department spokesperson was referencing is the Espionage Act — the century-old law Assange pleaded guilty to violating, which prohibits unauthorized possession and publication of national defense documents.

For years, press freedom advocates have warned that the Espionage Act can’t be used against publishers under the First Amendment. Under the legal theory the government employed to prosecute Assange, it’s illegal for national security journalists at The New York Times and The Washington Post to obtain government secrets from sources and print them in the newspaper.

Not to worry, our opponents have assured us. Assange isn’t like other journalists. He didn’t redact names from the documents he published. He didn’t contextualize them. He violated journalistic norms and ethical standards. His prosecution is a one-off case arising from extraordinary circumstances. No one would come after “real” journalists doing their job.

Well, then Stars and Stripes reporters must not be real journalists either, because it sure sounds like it’s the Defense Department’s position that the Espionage Act is every bit as applicable to them as it is to Assange. Turns out, when the government is given the power to tie journalists’ hands — for example, when it employs them — it inevitably will.

On the one hand, the government can’t assure us it won’t apply the Espionage Act to conventional journalists because it has, with Stars and Stripes. On the other, the government can’t claim it won’t apply the Espionage Act to publishers it doesn’t employ, because it never employed Assange. He isn’t even American.

That’s alarming — and maybe it answers the question of why the government felt compelled to extract a guilty plea from Assange rather than just dropping the case: The plea effectively legitimizes Espionage Act prosecutions of publishers. The government may not intend to indict New York Times reporters now — but it wants to preserve the right to do so if it becomes convenient, and leave it to the courts to sort out the constitutional problems.

We can think of at least one presidential hopeful who surely appreciates that flexibility.

File:RUEDA DE PRENSA CONJUNTA ENTRE CANCILLER RICARDO PATIÑO Y JULIAN ASSANGE - 14953880621.jpg by Cancillería del Ecuador is licensed under CC BY-SA 2.0.

FOR IMMEDIATE RELEASE

According to court documents, the Department of Justice and Julian Assange have reached a plea agreement in the DOJ’s long-running case against the WikiLeaks founder that threatens core press freedom rights of journalists. Assange is expected to plead guilty to one count of conspiracy to violate the Espionage Act for obtaining and publishing classified documents from whistleblower Chelsea Manning in 2010.

The following statement can be attributed to Seth Stern, director of advocacy for Freedom of the Press Foundation (FPF):

It’s good news that the DOJ is putting an end to this embarrassing saga. But it’s alarming that the Biden administration felt the need to extract a guilty plea for the purported crime of obtaining and publishing government secrets. That’s what investigative journalists do every day.

The plea deal won’t have the precedential effect of a court ruling, but it will still hang over the heads of national security reporters for years to come. The deal doesn’t add any more prison time or punishment for Assange. It’s purely symbolic. The administration could’ve easily just dropped the case but chose to instead legitimize the criminalization of routine journalistic conduct and encourage future administrations to follow suit. And they made that choice knowing that Donald Trump would love nothing more than to find a way to throw journalists in jail.

The Trump administration indicted Assange on 17 counts under the Espionage Act and one count under the Computer Fraud and Abuse Act. The Biden administration has continued pressing the case for the past three years.

Under the legal theory used in the indictment, any journalist could be convicted of violating the Espionage Act for obtaining national defense information from a source, communicating with a source to encourage them to provide national defense information, or publishing national defense information. Virtually all major civil liberties organizations and major news outlets denounced the prosecution as a threat to core press freedom rights.

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

Los Angeles Mayor Karen Bass (pictured above) and City Attorney Hydee Feldstein Soto can't possibly think their lawsuit to make a journalist pay for the city's mistakes will succeed, but they're pursuing it anyway." "Karen Bass (40842055171)" by U.S. Institute of Peace is licensed under CC BY 2.0.

From Los Angeles to Tennessee, public officials who should know better keep ignoring journalists' First Amendment rights. These are just the latest examples of an alarming trend that shows no signs of slowing.

You can't spell SLAPP without LA

The City of LA is paying $300,000 to settle a frivolous lawsuit it initiated to stop a journalist, Ben Camacho, from publishing pictures of police officers that the city itself gave him.

It’s hard to imagine the city’s lawyers didn’t know the lawsuit was a baseless SLAPP, or Strategic Lawsuit Against Public Participation, from the outset. The rule against “prior restraints” barring the press from publishing information is virtually ironclad, especially when the government itself inadvertently released the information in question.

But the city apparently thought it could get away with bullying independent journalists, regardless of the law. Now taxpayers will be on the hook for the settlement (assuming the city council approves it), not to mention the money their government wasted prosecuting the case.

Maybe that’s why LA officials are still pursuing another, even more ridiculous lawsuit against Camacho — ultimately, this will be the taxpayers’ mess to clean up. Surely officials wouldn’t play these games with their own money.

That second lawsuit seeks to have Camacho foot the bill for a lawsuit by police officers against the city for releasing their photos to Camacho.

As we wrote in February for the Los Angeles Daily News, “If the city’s mistake caused officers damages, it should pay up, do better, and leave journalists out of it.” The principle that journalists cannot be punished for publishing lawfully obtained and truthful information is just as well established as the rules against prior restraints and government clawbacks.

It’s baffling that the city – after seemingly coming to its senses in one lawsuit – continues to pursue the other. Officials like Mayor Karen Bass and City Attorney Hydee Feldstein Soto can’t possibly think the suit will succeed. But as Susan Seager, an attorney for Camacho (who we recently interviewed about other press freedom violations by police in California), said, Feldstein Soto has committed herself to “a cowardly attack on the press that she thought would buy her political points with the cops.”

An embarrassing spectacle in Tennessee

Unfortunately, officials in LA are not the only ones having trouble operating within the confines of the First Amendment.

A judge in Tennessee this week scheduled a hearing on whether Michael Leahy, editor and owner of the Tennessee Star, should be held in contempt of court for publishing excerpts of writings by the shooter behind Nashville’s Covenant School massacre last year.

Perhaps in response to backlash, the judge, Chancellor I’Ashea Myles, reportedly reframed the hearing as an attempt to gather the legal and factual “landscape” surrounding the Star’s stories, published while Myles was contemplating whether hundreds of pages of the shooter’s writings should be released as public records.

Whatever the judge’s intentions were, Leahy should have never had to waste time preparing for and attending a court hearing. There is no “landscape” in which a contempt finding could conceivably be appropriate. Public records laws are there to help the press, not to confine it to reporting what the government chooses to release.

The question of whether a document should be a public record is completely separate from a journalist’s right to publish it. Nobody has alleged that the Star broke any laws to obtain the writings. It has an absolute right to publish documents its sources provide. Whether it should publish them, as a matter of ethics, has nothing to do with whether it can, as a matter of law.

If a judge is for some reason unaware of that “landscape,” they should do their research, not hale journalists into court to bring them up to speed.

Unfortunately, the cases in LA and Tennessee are just two of many recent instances at both the federal and state level where judges, prosecutors, and other government officials have shown either a lack of understanding of, or contempt for, press freedom.

It’s clearer than ever that government agencies need to step up efforts to train and educate their employees on the First Amendment, and the public — especially journalists — needs to call out officials who still don’t get it.

New Jersey, Louisiana, and Utah are among the latest states to pass laws severely restricting access to executive branch records by journalists and the public. sunshine-1c by Electronic Frontier Foundation is licensed under CC BY 2.0.

The executive branch has never been a big fan of transparency. From the very moment that President Lyndon Johnson was “dragged kicking and screaming” to the signing of the Freedom of Information Act, many executive officials at both the state and federal levels have tried to undermine FOIA and state public records laws.

Sometimes these attacks are a subtle chipping away at journalists’ access to public records. But recently, lawmakers and other officials have become bolder, launching full-fledged assaults on access to executive branch records.

Recent changes to public records laws in New Jersey, Louisiana, and Utah embody this anti-transparency trend. Journalists and the public must be on guard and must fight back.

OPRA overhaul undermines email access in New Jersey

This month, Gov. Phil Murphy signed a new law that has “decimated” the state’s Open Public Records Act so severely that one journalist even wrote an obituary for OPRA. The new measure is so unpopular that even New Jersey’s first lady Tammy Murphy condemned it during her campaign for the U.S. Senate.

While the law’s proponents initially claimed the changes were intended to cut down on commercial records requests, the final law does nothing of the sort. In fact, it actually allows commercial requesters to pay to have their records requests expedited.

Instead, the law discourages public records requests and lawsuits by journalists and concerned citizens. Among other things, it eliminates automatic awards of attorneys fees to winning requesters and makes it easier for the government to sue people for requesting records that belong to the public.

Troublingly, it also directly limits access to government officials’ emails and text messages, including that of the governor and his aides. Email records, in particular, have often provided important information for journalists in New Jersey.

But under the new OPRA, requesters looking for emails or other communications must ask for the specific account to be searched and the “specific subject matter” discussed. That will make it much harder for journalists and others to get access to officials’ emails or text messages, since they might not know exactly where to look before they have access to officials’ communications.

Murphy has dismissed claims that the new OPRA law will make it harder to fight corruption. But this change is just one of the many ways that the overhauled OPRA will make it easier for executive officials like Murphy to evade accountability by limiting records releases or denying requests altogether.

Louisiana governor hides his schedule

In Louisiana, lawmakers have been laser focused on increasing secrecy of records from the governor’s office and more generally.

In May, after a public outcry, state Sen. Jay Morris withdrew a bill that would have restricted access to records and internal communications from Gov. Jeff Landry’s office. Morris claimed that people were under the false impression that the bill was meant to “hide something.”

It turns out that impression was accurate. Shortly after Morris withdrew his bill, the legislature — acting at Landry’s behest — sneaked a similar provision in through the backdoor. The law now makes records about the schedule of the governor or his family secret if disclosure would “impair” their safety.

On the very last day of the legislative session, lawmakers also passed a bill prohibiting non-Louisiana residents from requesting public records from the governor’s office. The governor has not yet signed that provision into law.

When reporters raised concerns about the new law limiting access to the governor’s schedule, the governor’s spokesperson made the disingenuous claim that journalists want access to information that would endanger the governor or his family. But the law previously allowed the schedules to be released after a seven-day delay. It’s hard to see how allowing the press and public access to the governor’s schedule after the fact could pose any danger, and there’s no evidence that it ever did.

There is, however, plenty of evidence of government officials hiding behind claims of “safety concerns” to shield themselves from legitimate public scrutiny. For instance, in Florida, Gov. Ron DeSantis relied on a similar “safety” law recently to refuse to release a detailed breakdown of his travel costs, which could reveal that his personal and political travel was inappropriately paid for using tax dollars.

Utah attorney general seeks calendar confidentiality

In Utah, lawmakers aren’t even bothering to claim that safety concerns justify a new law that will limit the public’s access to all elected official’s daily calendars, from the governor on down.

The timing of the new law suggests that it may be aimed at shielding the daily calendar of Utah’s Attorney General Sean Reyes, in particular. More than a year and a half ago, reporter Annie Knox requested Reyes’ daily calendar as part of her investigation into his friendship with Tim Ballard, the founder of an antitrafficking nonprofit who has been sued by multiple women for sexual misconduct and assault. Knox won a court order requiring that the calendar be released.

But on the very same day, lawmakers passed the bill making all officials’ daily calendars secret. Now, Reyes is arguing that the new law means his calendar shouldn’t be released, even though the law doesn’t say it applies retroactively.

Reyes isn’t even the first Utah attorney general whose daily calendar has featured in a scandal. In 2014, former Utah Attorney General John Swallow was arrested on federal charges related to a bribery scheme. Among other things, prosecutors charged him with lying about whether he kept a paper calendar. A Utah House committee that investigated Swallow faulted him for deleting electronic calendar entries.

Swallow was eventually acquitted at trial, but it’s incredible that the Utah legislature would respond to two scandals involving calendars of attorneys general in recent years by trying to make those calendars off limits to the public.

The legislation out of New Jersey, Louisiana, and Utah makes clear that elected officials around the country don’t much care for transparency. But voters do. Journalists and the public must make the message loud and clear: Hands off our public records laws.

Independent journalist Sean Beckner-Carmitchel filmed as UCLA campus police officers arrested him on May 6, 2024, while he was documenting campus protesters’ detention. Since the outbreak of the Israel-Gaza war, the U.S. Press Freedom Tracker has documented dozens of arrests, detentions, or assaults of journalists covering protests across the country.

Courtesy of Sean Beckner-Carmitchel.

Freedom of the Press Foundation (FPF) Deputy Director of Advocacy Caitlin Vogus speaks to National Press Photographers Association General Counsel Mickey Osterreicher and law professor Susan Seager about the dangers facing journalists covering protests and what can be done.

Editor’s note: “From Bylines to Behind Bars” was recorded before news broke that a Stanford Daily student reporter was arrested while covering the occupation of a Stanford University campus building by pro-Palestinian protesters.

Alarming new data from the U.S. Press Freedom Tracker shows that less than halfway into 2024, the number of journalists arrested or detained so far this year is already more than the last two years combined.

Most of those arrests and detentions have happened at protests, specifically the national protests around the Israel-Gaza war. The Tracker has also documented numerous instances of assaults on journalists and reports of equipment damage.

On June 5, we spoke to two experts, Mickey Osterreicher of the National Press Photographers Association and law professor Susan E. Seager, about why protests remain one of the most dangerous places for journalists, and what reporters and everyone can do about it.

Listen to the full conversation on X.

Police are arresting journalists who are doing their jobs

Seager and Osterreicher both recounted incidents of police arresting or detaining reporters covering protests, despite the First Amendment and laws intended to protect their right to report on demonstrations.

Police in California, where Seager is based, are “generally ignoring the law by arresting reporters who are just doing their jobs,” she said.

Osterreicher described the situation in New York as a “mixed bag.” After police beat, arrested, and harassed numerous journalists in New York City while they were covering racial justice protests over the police killing of George Floyd, the NPPA and others filed suit and won a settlement that’s meant to rein in the New York City Police Department’s abuse of journalists.

But that hasn’t stopped police from violating reporters’ rights during more recent protests, including by using “catch and release” tactics where officers take journalists into custody for several hours or longer, preventing them from reporting but without ever charging them.

Protection or peril from press credentials

Freelance journalists and visual journalists are especially vulnerable to police, Seager and Osterreicher said, and both emphasized the importance of having a press pass that reporters can use during interactions with law enforcement.

Credentials issued by a news outlet or a journalism organization like NPPA, or even created by reporters themselves can help journalists identify themselves as press to police and assert their rights.

Yet at the same time, clearly identifying as press can expose reporters to violence from protest participants who may not want to be recorded or photographed. “It’s a very fine line for visual journalists to walk,” Osterreicher said. He recommended that reporters maintain situational awareness all the time and keep recording, even if they are attacked.

Search and seizure of journalists’ devices

Osterreicher and Seager also discussed the seizure of journalists' equipment by police and the risk that police will try to obtain a search warrant to search devices, even if the law prohibits it.

“If they charged you with conspiracy or the arrest papers say you’ve been arrested on suspicion of conspiracy,” Seager warned journalists, “then that's a signal that they're probably going to get a search warrant to search your phone.”

Seager pointed to the case of journalist Pablo Unzueta, who was arrested in 2020 while covering a protest and whose device was seized, along with those of several protesters facing conspiracy charges. Seager’s Press Freedom Project eventually won a settlement on Unzueta’s behalf, in part based on the illegal searches of his devices.

More recently, University of California, Los Angeles, police arrested journalist Sean Beckner-Carmitchel and prominent police critic William Gude while they were documenting the detentions of protesters in May 2024. Police charged Beckner-Carmitchel with conspiracy to commit burglary and seized his phone, and Seager believed they intended to obtain a search warrant to search it. Using the settlement in Unzueta’s case and other legal precedent, Seager was able to convince police to return the device.

Preventing future First Amendment violations

Finally, Osterreicher and Seager talked about what can be done to prevent additional violations of journalists’ rights to cover protests.

Osterreicher pointed to a shocking lack of understanding on behalf of many police officers of journalists’ legal rights and the need for additional training. “The fact is that all law enforcement take an oath, they swear an oath to uphold the Constitution,” said Osterreicher. “It's kind of hard to do that when you don't understand what it is that's in there.”

Osterreicher also underscored the importance of communication between journalists and police before protests, advocating for discussions to establish rules of engagement. “You're not going to be able to have a good conversation in the middle of a protest,” Osterreicher said. Instead, conversations between the media and the police must happen in advance.

Seager suggested engaging with local governmental bodies to advocate for public hearings on how police departments treat the press. “The local city councils and board of supervisors have been too passive,” she said. Hearings could be an opportunity to “make the police come talk about what they're doing and have reporters testify about what's happened to them.”

Listen to the full conversation with Osterreicher and Seager here.

Portland Police Bureau officers preparing to advance on protesters at Portland State University on May 2, 2024. Photo courtesy of Alissa Azar.

FOR IMMEDIATE RELEASE:

A coalition of press freedom groups sent a letter to Oregon’s Multnomah County District Attorney Mike Schmidt, demanding that he drop a criminal trespass charge against Portland photojournalist Alissa Azar.

Azar was covering a pro-Palestinian protest at Portland State University on May 2, 2024, when officers shoved her to the ground and arrested her, despite her press credentials from the National Press Photographers Association. The initial hearing is scheduled for this Friday, June 7.

Freedom of the Press Foundation (FPF) Director of Advocacy Seth Stern said:

Alissa Azar did nothing wrong on May 2. She was simply documenting a public demonstration, as she is entitled to under the Constitution.

District Attorney Schmidt and other prosecutors nationwide must cease senseless prosecutions against journalists who are simply doing their job. With the upcoming presidential elections and ongoing protests over the Israel-Gaza war, the stakes are high and there has never been a more important time for reporters to be able to freely cover protests and police. Journalists need support and protection from local police — not violence and unwarranted arrests.

Azar’s arrest and subsequent prosecution come amid unprecedented waves of arrests of journalists around the globe, especially when documenting law enforcement. It’s also part of a recent spike of arrests of U.S. journalists covering protests over the Israel-Gaza war, which is particularly unnerving just a few years after the alarming press freedom abuses at protests in response to George Floyd’s murder and other civil unrest in 2020.

The 9th Circuit Court of Appeals, which has jurisdiction over Oregon, has made clear that the First Amendment protects journalists covering protests and their aftermath. Reporters play a vital role as watchdogs in ensuring that law enforcement is held accountable in the performance of its duties. Just a few hours from Portland, criminal trespass charges were dropped against a journalist who was arrested while documenting police officers clearing out a homeless encampment in Medford, Oregon. The journalist is now suing the city after the arrest violated her First and Fourth amendment rights by forcibly removing her from the scene.

FPF’s Stern said:

Journalists must be able to remain on the scene and continue the newsgathering process after police disperse demonstrators, without fear of arrest and prosecution. The public is entitled to information about how police behave at protests, especially because, without scrutiny, police are more likely to violate people’s civil rights.

The letter urges the DA’s office to consider the dangerous precedent this prosecution will set for journalists’ right to record police and the public’s access to information. It demands that the DA ensure that journalists are safe to do their jobs without risking arrest by not only dropping the charges against Azar but by continuing to promptly drop similar charges for any journalist who is wrongfully arrested at protests. And police departments in Oregon and everywhere else need to stop arresting journalists in the first place.

In addition to FPF, the letter was signed by the Committee to Protect Journalists, the Foundation for Individual Rights and Expression, the Society of Professional Journalists, and the National Press Photographers Association, among others.

Read the full letter here.

Laura Poitras / Praxis Films, licensed under CC BY 3.0, via Wikimedia Commons

Today marks 11 years since Edward Snowden — a longtime board member of Freedom of the Press Foundation (FPF) — blew the whistle on mass surveillance by the National Security Agency.

FPF and others wrote about the enduring impact of Snowden’s revelations in 2023, at the tenth anniversary. But this year, the uphill battle against surveillance encountered a serious setback. Congress not only renewed Section 702 of the Foreign Intelligence Surveillance Act, the law that enabled much of the surveillance Snowden exposed, it expanded it.

As Snowden himself put it, "In my opinion no country that has something like this to enter into force can still be considered to be free."

Under the newly enacted “spy draft” provision, the government can not only enlist telecom providers like Verizon to hand over information about their subscribers’ contacts with foreigners it is investigating, as it has in the past. It can conscript any American service provider to spy on its behalf. Sen. Ron Wyden noted that cleaning services could be compelled to insert a USB thumb drive into a server at an office they clean.

Although lawmakers claim they’re only planning to use these powers against a particular class of businesses, they won’t publicly identify the target (even after The New York Times reported that it’s data centers). That means that whatever the government’s current intentions are, it has no control over how future administrations will apply the law.

The law carries a terrifying potential for abuse against journalists, in particular. Reporters constantly communicate with foreign sources, including people who aren’t on the National Security Agency’s good side. Given that existing surveillance authority under Section 702 has been repeatedly misused to surveil reporter-source communications, it would be naive to believe expanded authorities won’t be similarly abused.

In addition to expanding the kind of surveillance that Snowden exposed, the government is also escalating its retaliatory prosecutions of whistleblowers like Snowden, as well as others who disclose government secrets.

Former IRS contractor Charles Littlejohn received the maximum sentence of five years’ imprisonment earlier this year after pleading guilty to leaking Donald Trump’s returns to The New York Times. Littlejohn also leaked a tranche of ultrawealthy Americans’ tax documents to ProPublica, but prosecutors and the judge did not consider the public good his disclosures served when throwing the book at him. Compare that to the kinds of tax fraudsters he exposed, who often get slaps on the wrist if they’re even prosecuted at all.

Shortly after Littlejohn was sentenced, Joshua Schulte, who leaked CIA secrets known as the Vault 7 leaks to WikiLeaks in 2017, was sentenced to 40 years in prison – six years and eight months for child sexual abuse images and the remaining 33 years and four months for the leaks themselves. Schulte is far from a sympathetic figure and deserves to be in prison, but the imbalance of his sentence is a disturbing reflection of the government’s priorities.

Meanwhile, the Biden administration has steadfastly refused to drop the Trump-era prosecution of WikiLeaks founder Julian Assange for communicating with a whistleblower — Chelsea Manning — and publishing government secrets he obtained from her.

Snowden has joined press freedom and civil liberties organizations, law professors, leading newspapers, and plenty of others in calling on everyone who values First Amendment freedoms to loudly oppose the unprecedented and highly dangerous prosecution.

In addition to its alarming implications for journalists’ First Amendment freedoms, the case has become an embarrassment to the United States on the world stage, especially after the U.K. High Court rejected supposed assurances by the U.S. that the First Amendment would adequately protect Assange if he’s tried in an American court.

And Assange’s case isn’t the only troubling use of the Espionage Act in the news — The Dissenter reported this week that the government is prosecuting a student for flying a drone near a naval shipyard. A news photographer could be next.

Those are only a few of many recent examples of the government overstepping, both in surveilling Americans and in punishing people like Snowden who embarrass officials. Legendary whistleblower and FPF co-founder Daniel Ellsberg often highlighted the increasingly dire situation faced by modern-day Espionage Act defendants, no matter how pure their motives or how important their revelations.

Times have changed since the Snowden revelations, and these days many take for granted that corporate and government actors regularly invade their privacy. That might be true, but it shouldn’t diminish our outrage. We should remember the sense of alarm we felt when Snowden showed us the scope of the government’s illegal surveillance of Americans and we should continue fighting back, even more aggressively than in 2013.

The current Congress has yet to introduce federal anti-SLAPP legislation, which would give journalists and others protection in federal court from frivolous lawsuits based on speech. West Face, United States Capitol Building, Washington, D.C. by Ken Lund is licensed under CC BY-SA 2.0.

Recent lawsuits against liberal and conservative outlets alike based on their reporting show the need for a federal law counteracting strategic lawsuits against public participation, or SLAPPs, Freedom of the Press Foundation (FPF) Deputy Director of Advocacy Caitlin Vogus wrote for The Hill.

As Vogus wrote:

"Many states — both red and blue — have made clear that they want to protect their citizens’ freedom of speech from meritless litigation. It’s time for Congress to act to ensure that federal courts don’t thwart those protections. It’s time to pass a federal anti-SLAPP law."

You can read the op-ed here.

Sen. Dick Durbin, chair of the Senate Judiciary Committee, can advance First Amendment rights by scheduling the PRESS Act for a markup. Sen. Durbin by Center for American Progress Action Fund is licensed under CC BY-ND 2.0.

Sen. Dick Durbin has a rare chance to strengthen freedom of the press right now by advancing the bipartisan PRESS Act, a bill to protect journalist-source confidentiality at the federal level. Freedom of the Press Foundation (FPF) has called it the “strongest shield bill we’ve ever seen” and “the most important press freedom bill in modern times.”

But Durbin needs to act quickly. Today, a coalition of 132 civil liberties and journalism organizations and individual law professors and media lawyers wrote to Durbin, who chairs the Senate Judiciary Committee, and ranking member Sen. Lindsey Graham, urging them to schedule a markup of the PRESS Act right away.

Among the signers is acclaimed First Amendment lawyer Floyd Abrams, who said that “The PRESS Act has long been needed and the time to enact it is now.”

Another noteworthy endorser is the Marion County Record. Last year, a baseless and retaliatory police raid of the Record’s newsroom and the home of its publisher, Eric Meyer, made national headlines. Meyer was an associate professor of journalism and associate dean of the College of Media at University of Illinois Urbana-Champaign for over 25 years.

Meyer said the Record signed the letter because:

As last summer’s raid on the Marion County Record proved, freedom of expression faces unprecedented challenges from unscrupulous people willing to weaponize the justice system to bully and retaliate against those attempting to report truth. Existing remedies might be fine for huge media organizations, but community journalists and people like the students I used to teach at the University of Illinois shouldn’t have their rights be dependent on whether they can afford to hire massive legal teams. Clear protections like those in the PRESS Act would block future attempts to trample on the First Amendment in ways that once were unfathomable to all who support democracy.

Other organizational signers include the American Civil Liberties Union, FPF, Illinois Press Association, and Chicago Headline Club.

Durbin and Graham are already co-sponsors of the legislation, with Durbin announcing his support for the bill in the Chicago Sun-Times in 2022. But, as the letter explains, if the Senate Judiciary Committee does not review the bill in the next couple of weeks, the clock could run out.

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FPF director of advocacy and Illinois resident Seth Stern said:

Illinois news outlets are giving everything they’ve got to make sure that people are informed about what’s happening in their communities.

Yet journalists and whistleblowers in Illinois remain vulnerable to invasive subpoenas demanding that reporters burn their sources. Our federal appellate court is one of the few that doesn’t recognize a journalist-source privilege. That means everyone from prosecutors to private plaintiffs can haul reporters into federal court and demand to know who they’re talking to and what information they have. Whistleblowers don’t talk to journalists when they’re afraid of being outed, and the result is that official misconduct goes unchecked and important stories go untold.

Sen. Durbin can change that. He already supports the PRESS Act and should advance it through the Judiciary Committee so it can become the law of the land.

“The Senate should not squander this rare opportunity to defend the First Amendment and protect press freedom through bipartisan legislation. The PRESS Act is bipartisan, commonsense legislation that would protect journalists, sources, and Americans’ right to know,” said FPF Executive Director Trevor Timm, a Springfield, Illinois native.

Clayton Weimers, executive director of Reporters Without Borders USA and a Chicago native, explained in a letter to the Sun-Times yesterday that Durbin can “help reverse the decline of American press freedom” by advancing the PRESS Act.

Illinoisian actor and activist John Cusack, a founding board member of FPF, has also written op-eds and letters in support of the act.

In addition to protecting journalists from subpoenas, the PRESS Act would shield them from government surveillance through their phone and email providers. It contains commonsense exceptions for emergencies: for example, terrorism and threats of imminent violence.

The bill was the subject of a recent congressional hearing featuring testimony from former CBS News and Fox News journalist Catherine Herridge, who has been held in contempt of court for refusing to reveal sources. “If confidential sources are not protected, I fear investigative journalism is dead,” she said during her testimony.

The PRESS Act passed the House unanimously in January. Durbin and Graham are joined by Sens. Ron Wyden and Mike Lee as Senate sponsors of the PRESS Act. Major media publishers, press freedom and civil liberties organizations and editorial boards around the country have endorsed the PRESS Act, and Senate Majority Leader Chuck Schumer has said he supports the bill and hopes to bring it to President Joe Biden’s desk this year.

But he can’t do that unless Durbin, Graham, and the Senate Judiciary Committee advance the bill first. They should do so without delay.

Read the letter to Durbin and Graham here.

Editor’s note: The text has been updated to reflect additional organizations and individuals who have joined the letter since it was originally sent on May 30, 2024, and to link to the updated letter, dated June 4, 2024.

A baseless lawsuit by Elon Musk's X and other frivolous legal actions that followed led to a round of recent layoffs at Media Matters. "Elon Musk" by dmoberhaus is licensed under CC BY 2.0.

FOR IMMEDIATE RELEASE:

Media Matters for America announced yesterday that it’s laying off at least a dozen staffers. Its president blamed a “legal assault on multiple fronts,” including a lawsuit by Elon Musk’s X and the legal actions by Republican state attorneys general that followed.

“This is the latest example of billionaires and pandering politicians abusing the legal system to retaliate against their critics and harm the public’s right to know. The result is that the American public loses access to information in a critical election year,” said Freedom of the Press Foundation (FPF) Director of Advocacy Seth Stern.

This isn’t a partisan issue. While this time it’s a right-leaning billionaire going after a left-leaning organization, the shoe could easily be on the other foot next time

“States that don’t have laws in place to combat strategic lawsuits against public participation, or SLAPPs, should pass them. Those that do should strengthen them. And Congress needs to pass a strong anti-SLAPP bill at the federal level right away,” Stern added. “This isn’t a partisan issue. While this time it’s a right-leaning billionaire going after a left-leaning organization, the shoe could easily be on the other foot next time.”

Anti-SLAPP laws — which allow for lawsuits that retaliate against speech to be disposed of in their early stages and for defendants to recover attorney’s fees — have been useful in defending against other frivolous lawsuits driven by Musk. But filing the Media Matters lawsuit in a federal court in Texas allowed Musk to avoid an anti-SLAPP motion.

X’s lawsuit alleges Media Matters disparaged it by reporting that it placed advertisements next to antisemitic and white nationalist content. The social media platform claims that Media Matters manipulated its algorithm — for example, by following accounts likely to generate problematic ad placements. But there’s no dispute that X did display the ads as reported, leading commentators to call the lawsuit “gloriously stupid.”

The same goes for the probes and lawsuits by the attorneys general, which hinge on convoluted theories that Media Matters violated consumer protection laws. One of them — brought by Texas Attorney General Ken Paxton — has been preliminarily enjoined from proceeding due to its chilling effect on Media Matters’ constitutionally protected activities.