Freedom of the Press

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On the inside

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

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

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

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

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

In the streets

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The good news

The classification bill would, among other things:

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

The not-so-good news

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

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

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

This is where we run into trouble.

How to fix it

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Governors, local officials stonewall press

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

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

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

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

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

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

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

Only journalists can hold officials accountable

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

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

In instances like those, the report suggested that,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It wasn’t the first time we've cautioned Chicago police about this. We also wrote an op-ed in the Chicago Sun-Times, quoting the DOJ’s proclamation last year that “blanket enforcement of dispersal orders and curfews against press violates (the First Amendment) because they foreclose the press from reporting about what happens after the dispersal or curfew is issued, including how police enforce those orders.” We emailed that op-ed to numerous police and city officials to make sure they saw it, but received no response.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The full letter is available here and embedded below.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

You can read the op-ed here.

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

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

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

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

You can read the op-ed here.

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

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

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

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

Read the full op-ed here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

You can read the full op-ed here.

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.

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.

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.