Freedom of the Press

Journalists have good reason to be skeptical of TikTok, but a government ban on the app could empower the government to censor or outlaw news outlets, too. Public domain image via Flickr.

On Wednesday, President Biden signed legislation that would force the Chinese-based owner of TikTok to sell the app or face a ban in the United States.

We’re not here to tell journalists — or anyone else — to use TikTok. (Though if you do, be sure to check out our security tips for newsrooms that use the app.) In fact, there’s plenty of reason to recommend against using the platform, from its mining of users’ highly personal data to its disturbing content. TikTok has admitted that employees have spied on reporters and cut back on its already minimal commitment to transparency.

Nevertheless, banning TikTok is wildly unconstitutional. Worse yet, it could set a precedent that empowers the government to censor or outlaw news outlets, too.

Congress and President Biden would apparently rather look tough on China than take a stand for free expression. But the First Amendment may still end up stopping the TikTok ban in court. Here are the five strongest arguments for why the law is unconstitutional.

1. The First Amendment forbids the government from banning speech it disagrees with, even if the government labels it foreign propaganda.

Lawmakers say that they’re justified in forcing a sale of TikTok because China could require its current owner to push pro-Chinese Communist Party propaganda. But even if there was evidence that TikTok was promoting Chinese propaganda (more on that later), this justification wouldn’t pass First Amendment muster.

As we and others have repeatedly pointed out, Americans have a First Amendment right to receive information, including from foreign governments. There’s good reason that the Supreme Court has protected that right: Allowing the government to forbid Americans from hearing whatever the U.S. deems “propaganda” would give our government the power to censor any foreign viewpoint it finds objectionable, such as op-eds by a foreigner.

Simply put, trying to stop Americans from being exposed to Chinese propaganda because you’re concerned they may be persuaded by it isn’t an acceptable reason to ban speech.

2. The government can’t get around the First Amendment by forcing divestment, rather than banning TikTok outright.

Some have argued that the TikTok law is on stronger First Amendment footing because it doesn’t outright ban TikTok — it merely forces it to be sold.

That’s wrong. TikTok’s content moderation decisions are editorial judgments that are protected by the First Amendment, just like a newspaper’s decisions about what stories to print. When the government tries to change those editorial decisions by forcing a change in who is making them — which is exactly what it’s said it wants in the case of TikTok — that implicates the First Amendment, even if the app isn’t banned.

Still not sure? Just look at how much Twitter changed when Elon Musk bought it and transformed it into X. Or imagine if a Republican president forced The Guardian to sell itself to an "approved buyer" because its editorial board is too left-leaning. Even if it’s not a ban, it’s still government interference with The Guardian’s speech.

3. Americans have a First Amendment right to speak using TikTok.

Americans don’t just have a First Amendment right to receive information through TikTok. They also have a First Amendment right to speak there. Millions of Americans use TikTok to express themselves, including journalists. Banning TikTok would act as a prior restraint on users, preventing them from speaking before they can even post.

The Supreme Court has held that prior restraints are forbidden in all but the most extraordinary circumstances. It’s impossible to imagine that most users’ posts would meet that standard. Banning TikTok would impose a prior restraint on users without regard to whether their speech, specifically, threatens national security (the claimed justification for the TikTok law) or presents any risk at all.

It’s true that TikTok users could post elsewhere. But the First Amendment forbids the government from banning an entire medium of expression without a very good reason.

This protection prevents the government from cutting people off from expressing themselves using the methods that they believe are most effective. Many people use TikTok because it provides them with something unique — whether it’s the large audience and particular demographics that use the app or the format of TikTok posts.

4. “National security” isn’t a magic wand that the government can waive to nullify the First Amendment.

On rare occasions, First Amendment rights can be overcome by a government interest that’s important enough. When laws target speech based on their viewpoint or content, they must be justified by a compelling government interest.

The TikTok ban law is both viewpoint- and content-based. The government has made clear that it wishes to change TikTok’s owner to one approved by the U.S. because it objects to the content of speech on the service and the viewpoints it believes TikTok is pushing on users.

To justify banning TikTok, the government claims that it threatens American national security by allowing the Chinese government to influence TikTok users. The problem with this argument is twofold. First, it’s basically just a rehash of the claim that the government can ban foreign propaganda, which it can’t. Second, the government hasn’t presented any evidence that TikTok harms national security.

The government has loudly and repeatedly proclaimed that China has the capability to use TikTok’s algorithmic amplification to promote pro-Chinese propaganda, to the detriment of American interests. But when it comes to actual evidence that the Chinese government is actually doing this, and that our security is at risk as a result, the record is scant.

The government often claims that speech could pose a national security threat, but that threat almost never materializes.

Does the government have any actual evidence this time that TikTok poses a threat? Unfortunately, the public isn’t allowed to know. In March, the Senate held a closed-door hearing where senators were reportedly briefed on the national security risks TikTok creates, but ordinary Americans remain in the dark about what was discussed at the briefing.

Public comments by senators, however, offer hints. And the evidence basically boils down to this: TikTok is collecting Americans’ data and has the ability to target and amplify pro-Chinese propaganda. This is already public information, and it doesn’t show a concrete threat.

5. There are less restrictive means to deal with TikTok’s problems.

Finally, the First Amendment often requires the government to show that speech-restrictive laws are narrowly tailored to prevent a particular harm.

Concerns about TikTok’s data collection and sharing with the Chinese government could be addressed in multiple ways that don’t restrict speech, from requiring TikTok to store data in the United States to actually enacting a real privacy law that would prohibit all social media companies from amassing troves of sensitive personal data on users.

Foreign propaganda can be addressed by counterspeech and reducing government secrecy, rather than banning speech.

Instead of trying to deal with TikTok’s very real issues in any of these ways, Congress has wasted time passing an unconstitutional ban. Courts will have ample reasons to strike down the TikTok law, and everyone who cares about the First Amendment and press freedom should hope that they do.

Charges have finally been dropped against Atmore News journalist Don Fletcher and publisher Sherry Digmon, who were unlawfully arrested for reporting on an investigation of a school board's handling of COVID funds. Escambia County Sheriff's Office

Almost six months ago, the arrests of Alabama reporter Don Fletcher and newspaper publisher Sherry Digmon made national headlines. Last week, charges that Fletcher and Digmon broke the law by reporting on a grand jury subpoena were finally dismissed.

That’s good news. But answers and accountability are still needed. The case against Fletcher and Digmon — which rivaled the raid of the Marion County Record for the most egregious U.S. press freedom violation of 2023 — was frivolous from the start.

The grand jury secrecy law they were charged under was plainly inapplicable to journalists, as opposed to grand jurors and others with direct access to grand jury proceedings. Anyone who read the text — let alone an experienced attorney like Escambia County District Attorney Stephen Billy — could have figured that out.

And Billy certainly should have known that the First Amendment does not permit arresting journalists for reporting the news. Nor does it permit what happened next: the imposition of a prior restraint prohibiting Digmon and Fletcher from doing their jobs as a condition of being bailed out of their illegal imprisonment.

Just like in Marion, local journalists have spent the months after the incident shedding light on what led authorities to target the press. And just like the former police chief and mayor in Marion, it sure looks like Billy had a personal grudge that led him to abuse his authority.

When Billy recused himself from the case in February, he cited “both a legal and a personal conflict.” He didn’t specify the nature of the conflict, but Billy was a vocal supporter of a former superintendent of the local school district who Digmon, in her capacity as a member of the school board, voted against retaining.

It’s unclear why Billy was so interested in the superintendent’s employment but let’s assume he legitimately believed she was the best qualified person for the job. It’s fine for him to advocate for her in his capacity as a citizen, but it’s another thing altogether to use his perch as district attorney to micromanage the board’s affairs under the threat of prosecution.

He gave a speech before the vote on the superintendent’s retention implying that letting her go would violate board members’ oaths of office, because he thought retaining her was in the district’s best interests. The threat was hardly veiled when he reportedly commented at the meeting that “I don’t control much, but I do control the grand jury of Escambia County.” If it wasn’t clear what he meant then, it certainly is now.

The dangers are obvious when officials try to mandate that others share their opinions by claiming anyone who disagrees must be a malicious actor. That’s authoritarian stuff. So is how, after the vote, deputy sheriffs reportedly obtained search warrants and seized the cellphones of all four board members who voted against retention.

Billy even used the criminal justice system to seek Digmon’s impeachment for, in his opinion, ignoring “all the positive things” he superintendent had done and “refusing to publish articles which promoted the school system and the superintendent, which were written by a contract writer of the school system.” The impeachment charge has also reportedly been dismissed.

It would be bad enough if Billy had filed these charges in good faith. That level of ignorance of the Constitution is inexcusable for any elected official, especially a prosecutor. But the evidence makes a strong showing that he wasted taxpayer money, and made a mockery of the First Amendment, to settle personal scores.

Fletcher, finally free of the illegal prior restraint that barred him from commenting on the case, isn’t letting Billy’s antics get in his way. “It will take a lot more than this to keep me from trying to dig up stories, especially when I think the people of this county are getting taken for a ride," he said. He added that Billy “needs to be out of that office because he's shown that he will abuse his power," calling the allegations Billy brought to the grand jury a combination of “misinformation,” “half-truth,” and “just lies.”

He’s right. The case shows Billy is both unqualified and unfit to hold his position as a district attorney — or any public office, for that matter. The dismissal of the charges against Digmon and Fletcher shouldn’t be the end of this story. Real accountability is needed.

New York is the first state to give local news outlets a tax credit for hiring journalists to cover community news. The legislation should be a model for other states looking to fund news outlets facing increasingly dire financial prospects. Subway Newsstand; New York, NY by John Blandino is licensed under CC BY-NC-ND 2.0.

Journalists’ First Amendment rights seem to be constantly under threat in the United States these days, whether it’s police arresting or attacking reporters or government officials digging into their sources and editorial decisions. But one of the most alarming threats to freedom of the press today has nothing to do with the First Amendment.

The abysmal financial state of the news media industry is just as worrying as violations of reporters’ legal rights. After all, freedom of the press only really matters if there are reporters left to use it. But mass layoffs of journalists and shuttering of news organizations have led some to ask whether journalism is headed toward an “extinction-level event.”

Thankfully, policymakers are waking up to this threat to press freedom. Some are even finding creative ways to help fund local news media. Lawmakers around the country should take note.

New York law could be a model for the country

Last week, New York became the first state to give news outlets a tax break for hiring or employing journalists, after a coalition of local news organizations championed new legislation. The financial support can’t come soon enough; between 2004 to 2019, 40% of New York newspapers were shuttered.

As part of the state budget, eligible news outlets in New York could receive up to $300,000 in refundable tax credits for employees’ salaries. The legislation also splits the available tax credits between larger media outlets and those with 100 employees or fewer, ensuring that smaller news outlets have a chance to benefit.

Some parts of the New York law will be fleshed out by later regulation. For example, regulators will have to decide whether digital-only news outlets focused on the state can qualify for the tax credit. Given the important role online news sources play in informing the public, regulators should allow them to qualify.

But a law that encourages news organizations to hire more reporters can only be a good thing for journalists and for those who rely on local reporting. As Steven Waldman, the president of Rebuild Local News, a coalition of journalism organizations that supported the New York legislation, said, “An employment credit places the incentives in the right place: hiring of local reporters.”

Other content-neutral ways to fund local journalism also hold promise

The tax credit idea isn’t new. Several states have introduced similar bills to the one that just passed in New York. The federal Community News and Small Business Support Act, introduced in this Congress, would not only give a payroll tax credit to local news outlets that employ reporters in their communities but also provide tax credits to small businesses that advertise in local media.

Other jurisdictions are also experimenting with additional ways to fund local news. Lawmakers in California and New Mexico have provided additional funding for fellowships run by journalism schools in their states. An executive order in Chicago directed the city to spend at least half of its advertising budget in community news outlets, modeled on a policy already in place in New York. In Washington, D.C., City Council members introduced a bill that would give residents a “voucher” they could donate to local news outlets of residents’ choice.

While the details of these laws or bills differ, one essential feature of all of them is that they’re content-neutral. In other words, they don’t allow the government to use funding to put a thumb on the scale of news coverage. That neutrality is necessary to protect the independence of local media. Community news serves an essential role as a watchdog of local government. It must be insulated from threats that funding provided by tax credits or other government-involved methods could be slashed or withdrawn as punishment for publishing news that powerful people dislike.

According to Northwestern’s Medill School of Journalism, one-third of the U.S. newspapers in operation in 2005 will be gone by the end of this year. The silencing of so many journalists is a press freedom emergency, and we need lawmakers to act now. The Community News and Small Business Support Act, for example, was introduced in July 2023 but hasn’t been advanced in the House since.

Thankfully, we have plenty of models for how governments at the state and local levels can help shore up funding for local news in ways that maintain journalistic independence. Other states must follow New York’s lead and help fund local news.

Editor’s note: Freedom of the Press Foundation (FPF) is based in New York and operates the U.S. Press Freedom Tracker as a news site. FPF is evaluating whether the Tracker meets eligibility requirements for the New York tax credit discussed in this post.

Illustration by the Electronic Frontier Foundation. (CC BY 2.0 DEED)

FOR IMMEDIATE RELEASE:

The Senate today voted to advance a bill that would allow intelligence agencies to order everyone from dentists to plumbers to surveil their patients and customers’ communications. A final Senate vote on the bill is expected in the coming days.

The Reforming Intelligence and Securing America Act, or RISAA, which the House passed last Friday, could also allow the government to order commercial landlords who rent space to media outlets, or contractors who service newsrooms like electricians or HVAC technicians, to help it spy on American journalists’ communications with foreign sources.    

Seth Stern, director of advocacy at Freedom of the Press Foundation (FPF), said, “This bill would basically allow the government to institute a spy draft. It will lead to significant distrust between journalists and sources, not to mention everyone else.” 

“Journalists need to be able to promise sources confidentiality in order to do their jobs effectively,” Stern said. “If this bill becomes law, sources will rightly suspect that American newsrooms are bugged by the government. And journalists won’t be able to reassure them that they’re not, because, for all they know, the building maintenance worker is an involuntary government spy.” 

Stern, along with FPF founding board member John Cusack, recently wrote about their opposition to the bill in the Chicago Sun-Times.   

FPF isn’t alone in sounding the alarm. Sen. Ron Wyden noted that, under the bill, cleaning services and security staff could be compelled to insert a USB thumb drive into a server at an office they clean or guard at night. Civil liberties organizations from across the political spectrum vehemently oppose the bill. 

The Department of Justice has attempted to assuage concerns with two primary (and self-contradictory) arguments: One, that RISAA is narrowly tailored to close specific gaps in current surveillance authority, and two, that the Biden administration promises to behave itself and not to use the full scope of the authority RISAA grants it.   

The language is not narrowly tailored: While the New York Times reports that Congress’ real focus is on data centers, the bill as written allows the government to conscript any “service provider,” save a few exceptions, to help it spy. 

Stern explained, “Even if the bill is intended to target data centers, it doesn’t say that. And, even if one trusts the Biden administration to honor its pinky swears, they’re not binding on any future administrations.” 

The DOJ has also argued that RISAA would allow the government to spy only on foreign targets authorized under Section 702 of the Foreign Intelligence Surveillance Act, or FISA. But that argument applies the wrong framework, Stern explained. 

“It’s not about who RISAA allows the government to spy on, it’s about who RISAA allows the government to force to spy,” he said. “Regardless of whether the end target of the surveillance is a foreigner, it’s indisputable that the people the government can enlist to conduct the surveillance are Americans. And what’s more, these civilians ordered to spy would be gagged and sworn to secrecy under the law.”    

Not only that, the government could be putting them in physical danger. What happens if they get caught, and threatened, assaulted, or worse?

Besides, Section 702 is frequently abused to spy on Americans, including journalists, as it stands. That law allows the government to compel big tech companies to turn over communications involving foreign targets. But surveillance operations targeting foreigners inevitably sweep up Americans’ communications as well, and the government often searches them without a warrant — a loophole that the House declined to close when it passed RISAA. (The Senate needs to fix that too).  

“A newspaper’s landlord isn’t likely able, or willing, to sift through communications to find the ones the government wants. They’re going to hand over everything they capture,” Stern said. “Even assuming that the government doesn’t search or review all those communications, are potential news sources going to be willing to take that chance?” 

“It’s not about whether the government will abuse its authorities tomorrow, or even in the next few years,” said Stern. “History has taught us that if the government is given this kind of power it will eventually use it. It’s a question of when, not if. The Senate knows that, and it should care about repercussions of its actions even when they might not come to fruition until sitting senators are out of office.”

Alsu Kurmasheva, an American reporter for Radio Free Europe/Radio Liberty, has been held in Russia for six months for her journalism. Why hasn’t the U.S. Department of State designated her as wrongfully detained?

Six months ago today, Radio Free Europe/Radio Liberty journalist and American citizen Alsu Kurmasheva was detained in Russia. Like Wall Street Journal reporter Evan Gershkovich, Kurmasheva is being held by Vladimir Putin’s government on baseless charges, because she is a journalist. Kurmasheva has been jailed in poor conditions that threaten her health, and Russian authorities have repeatedly extended her pretrial detention.

Freedom of the Press Foundation (FPF) and many other civil society organizations and news media outlets have previously called on the Department of State to designate Kurmasheva as wrongfully detained, which would open up additional U.S. government resources dedicated to freeing her. The case for granting the designation has only grown since FPF made that call shortly after Kurmasheva’s detention became public.

If there was any question about whether Kurmasheva’s detention was based on her journalism when she was first detained, that doubt has now vanished. Kurmasheva was initially detained for failing to register her U.S. passport — she is a dual U.S.-Russian citizen — and for failing to “self-register” under Russia’s “foreign agent” law, which Russia has used against many independent journalists.

Since then, however, Russia has added a new charge accusing her of spreading falsehoods about the Russian military. Russian investigators reportedly cited Kurmasheva’s work on a book published by RFE/RL that is critical of Russia’s war in Ukraine, called “Saying No To War: 40 Stories of Russians Who Oppose the Russian Invasion of Ukraine.”

In addition, in February, Russia labeled RFE/RL an “undesirable organization,” banning it from operating in the country and making it a crime to participate in its work or distribute its content. In a statement at the time, RFE/RL President Stephen Capus condemned the move as “just the latest example of how the Russian government views this type of truthful reporting as an existential threat.”

Now that Russia has made explicitly clear that it’s targeting Kurmasheva because of her reporting, there should be no hesitation to designate her as wrongfully detained.

Kurmasheva’s family has called on the State Department to make the designation, and numerous lawmakers have condemned her detention or written to the department to urge it to designate her as wrongfully detained. President Biden has also said that the U.S. “is not giving up” until Kurmasheva, Gershkovich, and Paul Whelan (another American detained in Russia) return home.

Let’s not forget that Kurmasheva also works for a media outlet funded by Congress. You’d think lawmakers would be eager to combat any claims that RFE/RL is a foreign agent, especially since they codified the news outlet’s editorial independence in law. If the U.S. believes in the importance of RFE/RL’s reporting and press freedom more generally, that makes it all the more important for it to stand up for one of its reporters being unjustly held by an authoritarian state.

Six months is too long for Kurmasheva to languish in Russian prison because she dared to truthfully report the news. One day would have been too long. The State Department should designate Kurmasheva as wrongfully detained. Even more importantly, Russia must immediately release her.

Under a new House bill reauthorizing and expanding Section 702 of FISA, anyone from a landlord to a laundromat could be required to help the government spy. Public domain image via flickr.

On Friday, the House of Representatives agreed to reauthorize Section 702 of the Foreign Intelligence Surveillance Act, the controversial law that has allowed intelligence agencies to spy on Americans’ emails, text messages, and phone calls without a warrant.

But as Caitlin Vogus, deputy advocacy director for Freedom of the Press Foundation (FPF) explains in The Guardian, the House didn’t just vote to reauthorize the act; its bill would also vastly expand the surveillance the government can conduct.

Vogus writes:

Section 702 in its current form allows the government to compel communications giants like Google and Verizon to turn over information. An amendment to the bill approved by the House vastly increases the law’s scope. The Turner-Himes amendment – so named for its champions Representatives Mike Turner and Jim Himes – would permit federal law enforcement to also force “any other service provider” with access to communications equipment to hand over data. That means anyone with access to a wifi router, server or even phone – anyone from a landlord to a laundromat – could be required to help the government spy.

Given the long history of abuse of Section 702, such as the FBI using it to spy on American journalists and protesters, it would be naive to think the government wouldn’t abuse new powers. The Senate should reject the House bill.

Read the full column here.

"File:Richard Durbin 180417-Z-CD688-026 (39716780750).jpg" by Chief National Guard Bureau from USA is licensed under CC BY 2.0.

Freedom of the Press Foundation (FPF) founding Board Member John Cusack and Advocacy Director Seth Stern — both from the Chicago area — wrote to the Chicago Sun-Times to tell their senator, Dick Durbin, to stop the Senate from dramatically expanding government surveillance.

Cusack and Stern explain that:

"Section 702 of the Foreign Intelligence Surveillance Act already allows the government to compel communications companies like Google and Verizon to turn over information. This terrible bill would expand that to any service provider with access to equipment like routers, and let the government order them to help it monitor communications.

That means virtually any vendor who enters your home, or any business you visit, could be forced to become an involuntary government agent. That should chill you to the bone."

They further noted the impact on journalists of the bill – called the Reforming Intelligence and Securing America Act, or RISAA. Durbin, they wrote, has “led efforts to stop surveillance of journalists, including cosponsoring the PRESS Act. But the FISA bill (RISAA) would codify countless new ways to spy on reporters.”

Read the full letter here.

The Marion County Record somehow managed to publish on schedule the week after police illegally raided its newsroom and publisher's home last August. Kansas Reflector/Sherman Smith. Used with permission.

Last year’s tragic raid of the Marion County Record in Kansas has largely left the national headlines, but the story is not over. Investigations into the raid are ongoing and news continues to emerge about additional evidence of Marion officials’ retaliatory motives for their actions.

Last week, the Marion County Record sued the city of Marion and the officials who authorized the raid, including the then-mayor and police chief. The Record’s publisher, Eric Meyer, also joined the suit, both in his own name and as executor of his mother Joan’s estate. Joan Meyer died at age 98 the day after the raid of the home she shared with her son, likely from the stress — but not before giving police a piece of her mind.

It’s the fourth lawsuit filed in connection with the raid, along with two by reporters who worked for the Record at the time and one by the paper’s office manager.

The Record’s lawsuit contends that the raid was not the product of mere incompetence by a small town police department but a coordinated effort to retaliate against the paper for its coverage of local politics.

In addition to the lawsuits, investigations related to the raid are still pending — both of law enforcement officers’ conduct and of whether Record reporters broke the law.

As Kansas media lawyer Max Kautsh recently wrote for the Kansas Reflector, it’s well past time to drop any remaining investigation of the Record or its reporters.

The theory used to justify the raid – that a reporter broke identity theft laws by accessing online DUI records – is nonsense. The federal Driver Privacy Protection Act doesn’t protect DUI records, and includes an express exemption for research. The Kansas Department of Revenue, which runs the website the Record accessed, has said the site is open to the public. And the notion that routine journalistic conduct like accessing public records for newsgathering purposes constitutes identity theft or fraud is plainly offensive to the First Amendment.

The investigation of the law enforcement response is another story entirely. Although the probe (which, as discussed later, is being handled by the Colorado Bureau of Investigations, or CBI) is reportedly wrapping up, it’s alarming that it’s taking so long given the volume of evidence of unconstitutional retaliation. Hopefully the delay is because authorities are figuring out just how thick of a book they can throw at those responsible for the raid.

Here are just a few of the revelations that have come to light in recent months, thanks in large part to intrepid reporting from the Record itself, the Reflector, and other local news outlets, as well as from information contained in the Record’s lawsuit. Much of the news focuses on the conduct of then-Marion police chief Gideon Cody, but others, from Marion’s then-mayor to the Kansas Bureau of Investigation, or KBI, are also implicated.

• During the raid of the Record’s newsroom, Cody took the opportunity to rifle through reporters’ documents about himself — even though the raid was purportedly over newsgathering about a local restaurant owner. Cody was suspended and then resigned, but he was replaced by an interim chief who also participated in the raid (as did the entire police department). Other officers directed Cody to the files about him and suggested he review them.

• Rather than limiting the seizure to records related to the purported investigation, Cody said officers should “just take them all,” because he was hungry. Cody then allegedly had a “pizza party” with the county sheriff. Meanwhile, the Record struggled to publish its next edition without any of its files.

• Cody spoke to the restaurant owner whose information the Record was accused of “unlawfully” accessing on a public website by phone between the raids of the Record’s newsrooms and the Meyers’ home. He reportedly started the call with “Hey honey, we can’t write anything,” before providing a verbal play-by-play. The restaurant owner has also acknowledged that she deleted texts with Cody pursuant to his requests.

• After the raid drew national backlash, Cody sought an arrest warrant for two Record reporters. Two hours later, the Marion County attorney revoked the search warrants that prompted the raids due to a lack of evidence.

• The KBI, which attempted to distance itself from the raid after the fallout, was actually on board from the outset, receiving an advance copy of the search warrant and communicating with Cody throughout the ordeal. County Attorney Joel Ensey, who initially said he hadn’t reviewed the warrants, also reportedly received an advance copy from police. Days after news of the KBI’s involvement in the raid broke, the KBI asked the CBI to take over its investigation of the raid.

• Prior to the raid, Cody allegedly tried to persuade a Record reporter, Phyllis Zorn, to leave the newspaper and start a competitor, promising he would invest in the rival paper. Zorn is now one of the reporters suing over the raid.

• Prior to the raid, then-Marion Mayor David Mayfield allegedly reposted a Facebook post by his wife asking “If anyone is interested in signing a petition to recall [then vice-mayor Ruth Herbel] and silence the MCR [Marion County Record] in the process, let me know.”

Eric Meyer has said that he filed his lawsuit reluctantly — not wanting to bankrupt his hometown — and will donate any punitive damages to charitable causes. His hesitance is understandable. But accountability is desperately needed. Hopefully the CBI will help provide some, and soon.

Screenshot of journalist Catherine Herridge testifying before a subcommittee of the House Judiciary Committee on the importance of the bipartisan PRESS Act for investigative journalists, their sources and American democracy.

Veteran journalist Catherine Herridge threw her full support behind the PRESS Act, the federal bill to put an end to surveillance and subpoenas to force journalists to out their sources, during Congressional testimony today. 

“If there’s anything I can accomplish in my career as a journalist it’s going to be getting this over the finish line. I feel this with every core of my being,” she told the House Judiciary Committee’s Subcommittee on the Constitution and Limited Government. 

Herridge, who most recently worked for CBS News, was held in contempt of court for refusing to divulge sources for her reporting during her time at Fox News. She is facing a fine of $800 every day that she does not burn her sources, although the penalty is stayed while she appeals. 

“Forcing a reporter to disclose confidential sources would have a crippling effect on investigative journalism,” said Herridge, later adding that “If you cannot offer a source a promise of confidentiality as a journalist, your toolbox is empty.” 

Although Herridge said she “has not lost a night’s sleep about my decision to protect my confidential sources,” she noted that one of her children had asked her whether she was going to go to jail, and whether they were going to lose their home and savings, all because she refused to renege on her promises to her sources. “I wanted to answer that in this United States, … it was impossible, but I could not offer that assurance,” she said. 

“I hope that I am the last journalist that has to spend two years in the federal courts fighting to protect my confidential sources,” Herridge proclaimed. “If confidential sources are not protected, I fear investigative journalism is dead.”  

The PRESS Act passed the House unanimously and with broad bipartisan sponsorship in January, and representatives from Jim Jordan to Jerry Nadler reiterated their support for the bill at today’s hearing.  It’s now pending in the Senate, with strong bipartisan support in that chamber as well, but it needs to clear the Senate Judiciary Committee to further advance. 

The highest-ranking senators from both parties that sit on that committee, Dick Durbin and Lindsey Graham, are both sponsors of the bill. Senate Majority Leader Chuck Schumer recently told the New York Post that he’d like to see the bill on the president’s desk this year.

Other witnesses at today’s hearing also testified powerfully in favor of the PRESS Act. Nadine Farid Johnson, policy director of the Knight First Amendment Institute at Columbia University, explained that “Modern newsgathering requires that reporters are able to give assurances of confidentiality to their sources.” She noted that the Supreme Court had “invited” Congress in 1972 to pass a law protecting journalist-source confidentiality and encouraged it to finally do so. 

Like Herridge, Farid Johnson emphasized the PRESS Act’s broad definition of “journalist,” explaining that “in the digital age, a significant amount of important reporting is done by journalists who do not fit a traditional mold,” and that journalists must be protected “whether writing for The Washington Post or offering a subscription on Substack.” 

Journalist Sharyl Attkisson added that “countless news stories that I broke or facets of them could not have been reported without sources whose identities needed to be protected.” She added that “there’s no way to quantify with any certainty the impact of what we’ve lost and what we’re not able to do” without adequate protection for journalist-source confidentiality. “But I don’t think there are many investigative reporters who would say it isn’t having a big impact.” 

Mary Cavallaro, chief broadcast officer, SAG-AFTRA News & Broadcast Department, also endorsed the PRESS Act. “This long-overdue legislation represents a significant leap forward not just for journalists, but for the sanctity of journalism itself, and for the constitutional right to freedom of the press,” she said. 

Herridge noted in her testimony that the PRESS Act is supported by numerous press freedom and civil liberties organizations, including Freedom of the Press Foundation (FPF). 

Seth Stern, FPF’s Advocacy Director, said: “The PRESS Act is the most important press freedom legislation in modern times. It’s truly remarkable that, despite all the political divisions in Congress, legislators from both parties proudly support the PRESS Act. We hope that senators in both parties take the testimony of Catherine Herridge and others to heart and advance this crucial legislation without further delay.”  

The U.S. government argues that WikiLeaks founder Julian Assange should be prosecuted because he’s a “hacker” not a journalist. So why isn’t it satisfied with punishing him like one? While awaiting extradition, Assange has now served five years in Belmarsh Prison in the U.K. — the statutory maximum sentence under U.S. law for conspiracy to commit computer intrusion.

This week marks five years since Julian Assange was imprisoned in the U.K., where he awaits extradition to the United States on charges related to WikiLeaks’ publication of secret State and Defense Department documents that once made worldwide news.

The U.K. High Court recently granted Assange another hearing in his case, delaying at least temporarily his extradition to the U.S., although not ending the threat to press freedom that his extradition and prosecution pose.

American officials say that Assange’s prosecution couldn’t possibly harm press freedom because he’s a “hacker,” not a journalist. If they truly believe that, you’d think they’d be satisfied with punishing him like a hacker. But they’re not.

When Assange was first remanded to British custody on April 11, 2019, he was accused of breaking a federal computer hacking law. The U.S. had indicted Assange on one count (PDF) of conspiracy to commit computer intrusion with whistleblower Chelsea Manning.

Many have disputed Assange’s alleged guilt under that charge. But even if Assange were to be convicted, it carries a maximum sentence of five years in prison.

That means Assange has now served the maximum prison sentence for his alleged computer hacking crime, albeit in Belmarsh Prison in London. Yet the U.S. continues to pursue his extradition and prosecution on charges far more related to journalism than hacking.

After initially charging Assange under just the Computer Fraud and Abuse Act, the U.S. quickly amended the original indictment to add 17 counts under the Espionage Act. (The government later amended the complaint again to broaden the scope of the computer hacking charge against Assange, in ways that continue to draw criticism.)

Although officials continue to focus their public comments on Assange’s alleged hacking, the Espionage Act charges are based on acts of journalism: speaking to sources, asking them questions, and seeking more information or documentation from them. Under the government’s theory in the Assange case, even just publishing government secrets — something journalists do all the time — would violate the Espionage Act.

That’s why news media outlets, press freedom and human groups, and law professors have all agreed that Assange’s prosecution under the Espionage Act threatens press freedom. If Assange can be convicted for engaging in acts that journalists do every day, so could reporters at The New York Times, The Wall Street Journal, Fox News, or ABC — regardless of whether you consider Assange a journalist.

It’s also why the Biden administration’s insistence that the Assange prosecution is based on hacking, not journalism, falls flat. The Espionage Act charges show that prosecutors are in fact charging Assange based on journalistic acts.

Even the Biden administration’s own spokespeople have acknowledged as much, at least in the past. In 2019, Matthew Miller — a former Department of Justice spokesperson under the Obama administration — explained that the Obama DOJ had declined to prosecute Assange under the Espionage Act because if Assange could be prosecuted, so could The New York Times. But in 2024, Miller, now the State Department spokesperson, responded to a question about Assange’s prosecution by emphasizing that hacking is not a legitimate journalistic activity.

Statements like that are meant to assure the public that the Biden administration would never prosecute a “legitimate” journalist. But promises not to prosecute conventional journalists are meaningless when the government is claiming the unchecked power to do so. If Assange is successfully convicted under the Espionage Act, those promises will do nothing to stop a future administration, or even this administration, from prosecuting whichever journalists it dislikes.

Even if those prosecutions don’t materialize, their possibility still surely chills journalism. Journalists often report on government secrets that can embarrass officials or even reveal their wrongdoing and crimes. It’s too risky for them to rely on prosecutors’ promises that they won’t go after journalists who gather and report the news “the right way” — at least in the eyes of the authorities. The threat of jail time will create an enormous incentive for news outlets and journalists not to publish.

Of course, the Biden administration could put an end to this threat to press freedom in an instant by dropping the case against Assange. If his prosecution is really about hacking, not journalism — as the government has so loudly and persistently proclaimed for the last five years — then it’s time for the U.S. to drop its attempt to extradite and prosecute Assange under the Espionage Act.

Former Fox News and CBS News reporter Catherine Herridge, pictured here interviewing Acting Defense Secretary Chris Miller, is appealing an order holding her in contempt of court for refusing to burn her sources. “201215-D-BN624-0040” by Lisa Ferdinando is licensed under CC BY 2.0 DEED.

A recent court filing by veteran journalist Catherine Herridge demonstrates the unpredictability journalists face when they commit to maintaining source confidentiality. It underscores the need for Congress to pass the PRESS Act — the bipartisan bill to end subpoenas and surveillance of journalists except in clearly defined emergency scenarios.

Herridge, known for her time at CBS News and Fox News, is appealing a federal judge’s order holding her in contempt of court for refusing to burn her sources for her reporting on an online university’s alleged ties to the Chinese military. The school’s president, Yanping Chen, filed privacy claims against the FBI over alleged leaks that enabled Herridge’s reporting.

Journalists and sources face confusion, unpredictability

Herridge’s April 3 filing — in response to Chen’s request to rush the appeal — explains that the journalist and Chen disagree as to which legal test should determine whether Chen can force Herridge to reveal her sources to bolster her lawsuit.

Herridge argues that, under court precedents interpreting the First Amendment, judges should consider “multiple factors in a broad assessment” to “weigh the public interest in protecting the reporter’s sources against the private interest in a compelled disclosure.” Chen, on the other hand, wants the court to consider only how important Herridge’s sources are to her case and whether Chen has exhausted alternative avenues to find the information.

A lower court’s decision agreeing with Chen, and ordering Herridge to reveal her sources, was widely criticized by press freedom advocates. The appellate court should reverse that order and protect Herridge’s sources. But the problem is that the kinds of multi-factor balancing tests the court is tasked with interpreting are so subjective and amorphous that any judge who wants to find a reason to out a journalist’s sources can do so.

And the dispute between Herridge and Chen deals only with the U.S. Court of Appeals for the D.C. Circuit. There are 12 other appellate circuits in our federal court system, each of which has a different law governing journalist-source confidentiality. Some recognize a relatively broad privilege, and some recognize essentially none at all.

That means journalists who promise sources confidentiality have to be prepared to be held in contempt — or potentially spend time in jail — if they’re subpoenaed in a jurisdiction with unfavorable law. Even in appellate circuits that do recognize a limited reporter’s privilege, like the D.C. Circuit, the law is often ambiguous.

Judicially crafted tests tend to be highly subjective. The intent of these tests may be to avoid confining judges with rigid rules, but the result is arbitrary outcomes and unpredictability for journalists and sources. Plus, at least to some extent, the game is rigged — when tasked with balancing the interests of the judicial branch against the interests of the Fourth Estate, judges have an obvious inherent bias toward the former.

It’s not just about private litigants like Chen — presidential administrations from both parties have repeatedly spied on journalists and their technology providers (which the PRESS Act would also prohibit). And they’ve been quick to threaten journalists with jail for not outing sources. It turns out that, no matter how much government officials claim to value press freedom, they inevitably can’t resist the urge to harass journalists who embarrass them.

In this legal landscape, potential whistleblowers can’t be blamed for hesitating to trust journalists to maintain their confidentiality when threatened with monetary sanctions and incarceration. Odds are that for every source that does come forward to reveal corruption or malfeasance, another stays on the sidelines due to fear of being outed.

It’s time to pass the PRESS Act

The judge in Herridge’s case noted that, if Congress wanted to broaden protection of journalist-source confidentiality, it should pass a law to do so. If he got one thing right, it’s that.

The PRESS Act would finally do away with the unpredictability journalists and their sources face when dealing with the federal government and federal courts. It would prohibit litigants and government officials from peering into reporter’s notebooks and inboxes except when there’s a legitimate threat of terrorism or imminent violence.

The PRESS Act may mean that prosecutors, as well as plaintiffs like Chen, will have to work a little harder to make their cases. But that’s a small price to pay to protect the immense value that a free press brings to our democracy. Journalists, after all, don’t work for the government — they watch over it. And history shows that lawyers who unsuccessfully claim to need a journalist’s sources to build their cases are ultimately able to find another way.

The PRESS Act passed the House without objection and is now pending in the Senate Judiciary Committee. It’s sponsored by the highest-ranking members of each political party in the committee — Democrat Dick Durbin and Republican Lindsey Graham — as well as Republican Mike Lee and Democrat Ron Wyden. Majority Leader Chuck Schumer recently told the New York Post that he’d like to see it pass this year.

It’s time for Congress to finally step in and protect journalists and their sources from surveillance. Herridge should win her appeal, even without the PRESS Act, because the public interest in journalist-source confidentiality far outweighs Chen’s interest in discovery for her lawsuit. But it should never have gotten to the point of Herridge having to appeal a contempt finding. Absent an unusual emergency, snooping on journalists should be a non-starter.

Nashville Scene reporter Eli Motycka, who was arrested while covering a student protest at Vanderbilt University, is one of at least four journalists arrested or detained while reporting on a protest so far this year. Vanderbilt University by mosesxan is licensed under CC BY-NC-SA 2.0.

Journalists Carolyn Cole and Molly Hennessy-Fiske were reporting for the Los Angeles Times on the George Floyd protests in Minneapolis on May 30, 2020, when they were brutally attacked by the Minnesota State Patrol. Last week, they settled a lawsuit against the city for $1.2 million.

It’s a welcome sign of accountability for police who violate the rights of journalists covering protests. But nearly four years after the Floyd protests led to a spike in journalists arrested and assaulted, protests remain a dangerous place for reporters.

Just a few months into 2024, the U.S. Press Freedom Tracker has documented four arrests or detentions of journalists covering protests in New York, Tennessee, and California.

None of these arrests have received much attention or public outcry. That’s a shame. These arrests violate journalists’ rights, and they undermine the right of the public to learn about newsworthy events happening in their communities.

They also show the disturbing and stubborn persistence of a system of policing that either doesn’t know or doesn’t care about First Amendment rights. A closer look at each of the cases documented by the Tracker so far this year reveals that — even after large settlements or acknowledgments by the federal government that journalists must be allowed to cover protests — police around the country are still routinely arresting reporters who are simply doing their jobs.

New York arrests come as police resist settlement

New York City’s largest police union, the Police Benevolent Association, fought tooth and nail against a settlement the city entered into last year, after being sued by photojournalists who claimed their First Amendment rights were violated while covering protests in 2020. The settlement acknowledges the right of the press to record police in public and sets rules for officers’ interactions with journalists covering protests.

The PBA says its objections are about safety. But officers keep arresting journalists who pose no safety risk to anyone, and who are simply reporting on protests. In fact, the same month the settlement was finally approved by a court, two journalists were arrested in New York City while covering protests.

On Feb. 29, independent journalist Ashoka Jegroo was nearly pushed “face-first onto the ground” and arrested while documenting a pro-Palestinian protest of remarks by New York Gov. Kathy Hochul at a Wall Street restaurant.

Jegroo was charged with disorderly conduct and walking in a roadway when a sidewalk was available. The latter charge was dismissed. But Jegroo accepted a deferred prosecution on the disorderly conduct charge, meaning that the charge will only be dismissed if he is not arrested in the next six months.

Given how common it is for the New York Police Department to arrest journalists, the possibility that another arrest could revive past charges would be a chilling prospect for any reporter, especially one, like Jegroo, who has previously been arrested while covering protests. Still, Jegroo has vowed not to let the risk of more arrests stop his journalism.

Also in New York City, podcast journalist Reed Dunlea was arrested while reporting on a pro-Palestinian protest on Feb. 10, “Police officers threw Dunlea to the ground, damaging his equipment, and charged him with resisting arrest,” the Tracker reported.

Despite showing police officers his city-issued press credential and repeatedly identifying himself as press, Dunlea was dragged into the street, pinned on his stomach, and arrested. He was eventually charged with resisting arrest. The Committee to Protect Journalists and Freedom of the Press Foundation (FPF) called for the charges to be dropped, which they later were.

Both of these arrests show that the recent settlement that reins in police conduct toward the press is desperately needed. But with the police union’s staunch opposition to the settlement and officers’ continued aggressions toward journalists, we can’t help but wonder whether officers will actually comply with it. The NYPD must be monitored and the settlement’s terms strictly enforced to ensure that officers don’t continue to unjustly arrest reporters for documenting protests.

Tennessee ‘catch and release’ stymies coverage

Another reporter arrest in Tennessee shows how “catch and release” policies can stymie ongoing attempts by journalists to document protests and how intimidation tactics can chill future reporting.

Just last week, on March 26, Vanderbilt University Police officers arrested Eli Motycka, a reporter for the Nashville Scene, while he was covering a student protest opposing the Israel-Gaza War. Motycka was attempting to gain access to an administrative building on campus where students were holding a sit-in.

After speaking to several officers outside the building, Motycka was eventually arrested for criminal trespassing, even though he identified himself as a credentialed member of the media. Officers claimed Motycka had been previously asked to leave, which he denied.

The charges were dropped just hours later, but much of the damage was done. By arresting and removing Motycka, police effectively prevented him from reporting on the protest. And when Motycka returned to campus that afternoon, authorities made it known that he wasn’t welcome: a campus police officer followed him around until Motycka eventually left, fearing he’d be arrested again.

California detention prompts admonishment

Finally, in California, the recent detention of a Sacramento Bee reporter demonstrates the need to speak out against even brief interferences with the press by police.

Robin Epley wrote a first-person account of being detained by police on March 19, while covering a pro-Palestinian protest at a Sacramento City Council meeting. She was the only journalist in the room when police officers entered the City Council chambers and began arresting protesters who had defied orders to leave — and they handcuffed her in the process. Officers removed the handcuffs after about 25 seconds and allowed her to continue reporting.

Epley was lucky that police didn’t escalate the situation and actually arrest her. The next reporter may not be so fortunate. But Epley’s decision to write about and call attention to her detainment hopefully improves the odds. Epley ensured that elected officials and police know that the press and the public are watching. Perhaps that’s why Mayor Darrell Steinberg told the Tracker, “I do not support the arrest of journalists in chambers.”

We need more than just a single journalist speaking out about her detention, however. Arresting journalists chips away at our right to know by stopping reporting in its tracks. Settlements and official admonishments can only do so much. We need a public outcry each and every time a journalist is arrested for doing their job. These First Amendment violations won’t stop until communities make clear to elected officials and cops alike that we won’t stand for it.

Asheville Blade journalists Veronica Coit and Matilda Bliss are appealing their convictions for trespassing. They had refused to leave a North Carolina park where they were covering the news.

A new appeal in North Carolina could set the state’s legal standard for when police can bar journalists from public places where they’re covering the news.

Journalists Veronica Coit and Matilda Bliss of The Asheville Blade were convicted of trespassing after a five-day trial in June 2023. Police arrested them while they were reporting on and recording a protest and police sweep at a homeless encampment in a public park in Asheville, North Carolina, on Christmas Eve of 2021. Authorities moved forward with the prosecution even as press freedom groups around the country condemned it.

Coit and Bliss are now appealing to the North Carolina Court of Appeals on First Amendment grounds. They argue that the trespassing law was unconstitutional as applied to them, and that the court incorrectly suggested to jurors they couldn't consider the First Amendment when deliberating.

Coit and Bliss are far from the first journalists arrested while covering a protest. But their conviction is unusual, since, in most cases, authorities come to their senses and drop charges against journalists before they go to trial. The decision to drop charges is often the result of public pressure. But there’s also a growing recognition of the First Amendment right of the press to cover protests happening in public places.

For example, after protests over the police killing of George Floyd rocked the country in 2020, a federal appeals court in California upheld an order based on the First Amendment that forbade federal officials from arresting journalists for not dispersing from protests in Oregon after being ordered to do so. As the court explained: “Public demonstrations and protests are clearly protected by the First Amendment, and a protest not open to the press and general public is not a public demonstration.”

Even the Department of Justice — which has aggressively pursued journalists in other cases — has recognized that the press has a right to be present to cover protests. Following the protests in Minneapolis over Floyd’s killing — and the harsh crackdown by police on both protesters and the press — the DOJ specifically recognized that blanket enforcement of dispersal orders and curfews against the press violates First Amendment principles. It faulted Minneapolis police who interfered with newsgathering “by unlawfully limiting journalists’ access to public spaces where protests take place, and thus their ability to report on police.”

That’s exactly what happened to Coit and Bliss. By restricting their access to the park, the authorities prevented the journalists from providing oversight and accountability of the police sweep of the encampment.

It was also totally unnecessary to demand that the Blade journalists leave, and the order left them with no alternative for covering the protest or the police response. There’s no evidence that their presence interfered with the police action in any way. And while officers insisted that the journalists could report from the bottom of a steep hill roughly 150 feet away, that would have left them unable to see or hear what was happening, let alone record officers, especially since it was dark outside.

In other words, as Coit and Bliss put it in their appellate brief, “When journalists cover protests, they must be in the same place as the protesters to gather the news.” Unfortunately, that commonsense point has so far been lost on police, prosecutors, and the North Carolina courts.

Or maybe they understand it all too well. After all, police could be heard remarking on bodycam footage that Coit and Bliss should be arrested first “because they’re videotaping.” By arresting the journalists, police put a stop to their reporting. By prosecuting them, authorities chill other journalists who would do the same.

The Court of Appeals, however, now has a chance to get it right and uphold the First Amendment. Its decision in this case will impact not only Coit and Bliss but all journalists in the state who cover protests, police, or other activities on public land. And, most importantly, it will impact the public, who rely on the press to go where the story is and report the news people need to know.

The court can, and must, find that the First Amendment gives journalists the right to cover police activity in public places. Police may wait until nightfall to break up a protest. But that’s no reason the public should be left in the dark.

Stella Assange leaves the U.K. High Court after a previous hearing in Julian Assange’s case in January 2022. Stella Morris congratulated by a supporter as she leaves the High Court by Alisdare Hickson is licensed under CC BY-SA 2.0.

Press freedom & the Assange extradition: What’s happened, what’s next

Julian Assange remains in a British prison, awaiting yet another hearing in late May on the appeal of his extradition to the United States. On March 26, the U.K. High Court ruled that the U.S. must provide “assurances” on three of the grounds on which Assange’s legal team sought to appeal. If the court does not find the assurances satisfactory, Assange can bring his full appeal.

As a result, we remain dangerously close to Assange being sent to the U.S. to be tried under the Espionage Act for obtaining and publishing documents from a source, Chelsea Manning, back in 2010.

Before the U.K. High Court’s latest decision, Caitlin Vogus of Freedom of the Press Foundation (FPF) interviewed Chip Gibbons of Defending Rights & Dissent, via X Space, about Assange’s February extradition appeal hearing in London and what the case means for press freedom in the U.S. and beyond. Gibbons attended the hearing in person and wrote about it for Jacobin.

Gibbons explained, “If Julian Assange is brought here and he loses his Espionage Act case, that is the death of a lot of First Amendment protections for press freedom. And on top of that, there are huge stakes for press freedom globally,” given that the U.S. is claiming jurisdiction to prosecute Assange even though he’s an Australian who operated WikiLeaks from abroad.

“This (prosecution) is also an attack on the right to investigate war crimes, as well as to resist war and militarism,” Gibbons added, noting that authoritarians seeking to prosecute journalists who investigate their regimes have already viewed Assange’s case as a precedent. “It wasn’t just U.S. secrets they published. … If you were a bad actor anywhere in the world, there was a point where your documents would end up on WikiLeaks.”

The current administration may claim it wouldn’t pursue similar charges against a “conventional” journalist, but there’s nothing in the Espionage Act stopping future administrations from doing so. Former President Donald Trump, for example, has made clear that he intends to imprison journalists — specifically those who publish leaks — in a potential second term.

Gibbons explained that the theory that WikiLeaks “solicited” violations of the Espionage Act by announcing its desire to publish secrets is particularly problematic. The prosecution’s theory, he explained, is that “by running this news publication that boldly announces if you have secrets in the public interest, they will publish them, which is what journalists are supposed to do, you’ve engaged in conspiracy to violate the Espionage Act.”

Gibbons also discussed the disturbing lack of transparency around the U.K. hearing, ranging from the court informing international journalists at the very last minute of whether they would be allowed access, to requiring them to listen to the proceedings from overflow rooms with audio outages. It’s disturbing, to say the least, that a case that might undermine journalists’ ability to report secrets is itself plagued by secrecy.

You can listen to the entire X Space here and read Gibbons’ article for Jacobin here.

FPF also hosted a conversation about the case in February with FPF Executive Director Trevor Timm; Electronic Frontier Foundation Executive Director Cindy Cohn; Carrie DeCell, senior staff attorney at the Knight First Amendment Institute; and Ben Wizner, director of the ACLU's Speech, Privacy, and Technology Project. You can watch that discussion here.

You can find more articles and resources about the Assange case — and information about how you can help — at https://freedom.press/assange.

TikTok is used by around 150 million Americans, including journalists. Photo courtesy of Nordskov Media.

Like a bad penny, bills to ban TikTok keep turning up in Congress. We’ve written before about how such proposals are unconstitutional and would enable mass censorship. The newest legislation that would effectively ban the platform, passed earlier this month by the House of Representatives, is no exception.

Writing in the Columbia Journalism Review, Freedom of the Press Foundation (FPF) Advocacy Director Seth Stern warns that banning TikTok would impose a prior restraint on journalism and set a precedent for future censorship, including bans on foreign news sites.

Stern writes:

The reality is that even definitive proof that a platform is propagandizing or surveilling Americans wouldn’t justify censorship. The Pentagon Papers case established that “national security” isn’t a magic word that nullifies the First Amendment—and there, the alleged threat was to troops’ lives, not college kids’ political thought. Nonetheless, Justice Hugo Black explained that “the word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.”

Read the full column here.

Breaking major news — as Tim Burke did when he uncovered an antisemitic rant by Ye, formerly Kanye West, on Tucker Carlson’s TV show — sure sounds a whole lot like journalism.

Tim Burke will be arraigned soon on troubling charges under federal computer hacking and wiretapping laws, based on his online newsgathering.

Burke is being prosecuted for finding and publicizing unaired footage of an antisemitic rant by Ye, formerly known as Kanye West, on Tucker Carlson’s TV show. That tirade, and Ye’s continuing antisemitism, have been national news ever since.

Breaking major news sure sounds a whole lot like journalism. That’s why more than 50 rights organizations and broadcasters sounded the alarm over Burke’s Computer Fraud and Abuse Act case in a letter to Attorney General Merrick Garland last year.

But not everyone agrees. Certainly not at the U.S. Department of Justice.

Writing in Slate, Freedom of the Press Foundation (FPF) Advocacy Director Seth Stern raises concerns that DOJ prosecutors may have labeled Burke as a “former” journalist in court filings to avoid judicial scrutiny of whether their investigation complied with the First Amendment, federal law, and their own policies.

Stern writes:

Reporters are sure to self-censor if they can’t be sure what kinds of journalists and what kinds of journalism the DOJ believes the First Amendment protects. The same way the Espionage Act charges against Julian Assange chill national security reporting, the CFAA charges against Burke chill digital journalism.

Read the entire Slate column here.

Unfortunately, the Tampa Bay Times also refers to Burke as a “former journalist” in its reporting. Last week, its editor Mark Katches attempted to explain the Times’ thinking. In a guest column in the Times, Stern and Florida First Amendment Foundation Executive Director Bobby Block respond.

Stern and Block write that Burke easily satisfies a “functional definition of who is a journalist” — based on whether the person was performing an act of journalism — when he broke the story of Ye’s edited interview on Carlson’s show.

Further, Stern and Block explain:

Press freedom is under attack, especially in Florida, and ambiguous computer crime laws like those Burke is charged under are a dangerous weapon in prosecutors’ arsenals. Katches may think he’s helping preserve the integrity of his profession but, instead, his column handed a gift to those seeking to criminalize newsgathering while the media is most vulnerable.

Read the full Tampa Bay Times guest column here.

Julian Assange

FOR IMMEDIATE RELEASE 

Today, the High Court in London granted WikiLeaks founder Julian Assange another hearing in his extradition to the United States. The court ruled that on three of the nine grounds Assange’s legal team asked to appeal on, the United States must provide “assurances” to the court, and if the court does not find them satisfactory, Assange can bring his full appeal. 

The United States has three weeks to provide the “assurances,” and then a further hearing will be held on May 20. Assange’s case has profound implications for press freedom in the United States. 

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

We are glad Julian Assange is not getting extradited today. But this legal battle is far from over, and the threat to journalists and the news media from the Espionage Act charges against Assange remains. Assange’s conviction in American courts would create a dangerous precedent that the U.S. government can and will use against reporters of all stripes who expose its wrongdoing or embarrass it. The Biden administration should take the opportunity to drop this dangerous case once and for all.

Assange has been indicted in the United States on 18 felony counts, including 17 under the Espionage Act. Under the legal theory used in the indictment, any journalist could be convicted of violating the Espionage Act for obtaining or receiving national defense information from a source, communicating with a source to encourage them to provide national defense information, or publishing national defense information — acts journalists engage in every day. Virtually all major civil liberties organizations and major news outlets have denounced the prosecution as a threat to core press freedom rights. 

Please contact us if you would like further comment on the dangers this case poses to press freedom in the United States. FPF will continue to follow this case closely. 

For more resources on the Assange case and the threat it poses to press freedom, visit https://freedom.press/assange/

Lawmakers in New Jersey, Colorado, and California took a shamelessly ironic approach to marking this year’s Sunshine Week, by trying to crack down on the public’s access to government records and meetings. Photo courtesy of SunshineWeek.org

The annual celebration of government openness and public records known as Sunshine Week may be over, but journalists’ fight for transparency continues.

To honor this year’s Sunshine Week, we published a new analysis by U.S. Press Freedom Tracker Senior Reporter Stephanie Sugars about the costs of agencies’ pointless battles against records requests. We also hosted an X Space on the same topic with Sugars and David Cuillier, director of the Freedom of Information Project at the Brechner Center for the Advancement of the First Amendment.

But some states took a different and sickeningly ironic approach to marking Sunshine Week, by trying to crack down on the public’s access to government records and meetings. For more about the worst offenders — New Jersey, Colorado, and California — and one ray of hope from New York, read on.

New Jersey rushes anti-transparency bills 

New Jersey lawmakers decided that Sunshine Week was the perfect time to rush through bills making a slew of changes that would gut the New Jersey Open Public Records Act.

The proposals would make it harder to access government communications like emails and any document that officials label a “draft.” They would also establish a task force on access to police records that risks putting New Jersey even further behind other states when it comes to public scrutiny of police misconduct.

The legislation would further harm transparency by making “fee-shifting” optional. Because agencies would not always have to pay the attorneys fees of requesters who win public records lawsuits, it would be harder to find lawyers to fight record denials in court. And, as Cuillier pointed out during our Sunshine Week X Space, states with mandatory fee-shifting “tend to report better compliance” with public records laws compared to those without. 

The bills faced fierce opposition, including from a coalition of civil society organizations led by the New Jersey Working Families Party. The coalition, which includes Freedom of the Press Foundation (FPF), sent the legislature a letter explaining the proposals’ flaws.

Troublingly, State Senate President Nicholas Scutari, who supports the bills, responded to the opposition by suggesting that critics haven’t read the bills and don’t understand what the legislature is trying to do. Scutari has indicated that the legislature will take up the bills again by mid-April, with just minor amendments. 

Despite what Scutari may believe, we can assure him that we have read the bill, and we understand all too well what the New Jersey legislature intends: to allow the government to operate in secrecy by limiting the public’s access to records. 

Colorado legislature goes dark

In Colorado, lawmakers thought Sunshine Week was a good time to enact a bill to largely exempt themselves from the state’s open meetings law. To add insult to injury, Colorado Freedom of Information Coalition President Steve Zansberg said that the legislature “completely ignored” the organization’s input on the law.

The measure, which the Colorado governor signed into law on March 13, makes it easier for smaller groups of legislators to meet in secret and will encourage lawmakers to formulate and debate public business over email or text message, to evade public scrutiny. As Zansberg and the coalition’s executive director, Jeff Roberts, point out, emails exchanged between lawmakers related to draft bills or legislative amendments will now be entirely inaccessible to the public. 

It’s outrageous for the legislature to exempt itself from open meetings law that every other public agency in the state must follow. Journalists in Colorado should take it as a challenge to find out what lawmakers are hiding. 

California considers supercharging anti-public records lawsuits

In California this Sunshine Week, a state Assembly committee set a hearing on a proposed law that would amend the California Public Records Act to require public agencies to notify government employees about records requests that would disclose their identity in connection with their work. 

That may sound reasonable, except that California already has a problem with lawsuits brought by public employees who object to the government’s decision to release records under the CPRA. 

The bill under consideration would encourage even more “reverse-CPRA” lawsuits, as a letter by a coalition of press freedom groups opposing it points out. The letter notes numerous examples of problematic reverse-CPRA cases that hindered the release of public records, such as records of substantiated incidents of sexual misconduct by public school employees sought by the news outlet Voice of San Diego.

As Cuillier explained to us, “You can imagine: What if someone just wants a database of the city of San Diego employees with their salaries — routine, very public, nothing wrong with it. But the city has to contact every city employee, let them know, and give them a chance to sue the requester, go to court to stop it. You can see that's going to be really problematic.”

Nothing good can come of spurring more spurious reverse-CPRA lawsuits. The state Assembly ultimately canceled the committee hearing on the bill, but the proposal remains under consideration. 

One ray of hope in New York

Thankfully, not every state legislature tried to undermine transparency during Sunshine Week.

In New York, lawmakers are considering bills that would improve the state’s Freedom of Information Law. Of course, it’s not all sunshine and roses in New York. The whole reason these bills are needed is because the current system suffers from basic problems that impede public access.

But the four bills under consideration would help fix FOIL. They would speed up records requests by setting a firm deadline for responses and the release of records, require agencies to publicly report data about FOIL requests, stop businesses from permanently exempting records they submit to agencies from disclosure, and make it easier for requesters who win public records lawsuits to get attorneys fees.

A coalition of good government, transparency, and press freedom groups, including FPF, sent a letter to New York lawmakers during Sunshine Week to urge them to pass the bills. The legislature should enact these bills swiftly to improve public access to records in the state.

Unfortunately, New York appears to be more the outlier than the norm when it comes to bills that would change state public records laws. Cuillier told us that the Brechner Center has noticed many problematic bills “popping up around the country, particularly this year.” 

He also noted that a new study he has conducted shows that pushback against excessive secrecy is key to ensuring greater transparency at both the state and federal level. That’s why FPF will continue to call out states that make anti-transparency moves, whether during Sunshine Week or any other week. 

"Chuck Grassley" by Gage Skidmore is licensed under CC BY-SA 2.0.

Sen. Chuck Grassley of Iowa could have helped pass the PRESS Act in 2022, but he declined to advance the bill for inclusion in must-pass legislation. It wasn’t because he didn’t like the bill, but out of professional courtesy to a Senate colleague.

Grassley’s reasons may have been commendable but the result is that journalists like Catherine Herridge still need to choose between keeping their promises to their sources or being held in contempt of court, and potentially even jailed.

Now the PRESS Act is back, and Grassley has the chance to make things right by supporting it. We wrote for The Gazette newspaper in Cedar Rapids, Iowa, that:

Iowa’s senior senator has long been a champion of First Amendment values. He’s been vocal about protecting whistleblowers from retaliation when they expose wrongdoing. Keeping federal agents' and prosecutors’ hands off reporters’ notebooks and phone records so that the Fourth Estate can do its job is consistent with everything Grassley stands for.

Read the full op-ed here.

On Monday, the justices of the Supreme Court, pictured above in 2022, considered just how far the government can go to influence decisions by media companies to moderate content or publish information.

This week’s much talked-about Supreme Court hearing about government pressure on social media content moderation could have huge implications for free expression online, but an overlooked exchange between one justice and a state solicitor general should be particularly worrying to journalists — or anyone who cares about press freedom.

In Murthy v. Missouri, the states of Missouri and Louisiana, along with five individual social media users, sued the Biden administration, claiming that it violated the First Amendment by allegedly coercing platforms into removing users’ speech about COVID-19 and election disinformation. The lower courts held in favor of the plaintiffs.

Most analyses of Monday’s oral argument agree, however, that the Supreme Court was skeptical of the plaintiffs’ argument that the Biden administration’s ability to communicate with the platforms in any manner should be sharply limited. At the same time, the justices seemed rightly concerned about government attempts to coerce platforms into removing users’ content — such as by threatening an antitrust action against a company that refused to comply with a removal request — which even the government’s lawyer conceded would be impermissible.

Justices’ national security concerns should concern journalists

But there was one area where at least some justices seemed more willing to permit the government to influence or even coerce publishers: protecting national security. Several justices pointed out that the government often tries to influence the press not to publish news stories that officials claim will harm national security.

That’s true. But just as true is that the press remains free to reject the officials’ requests — or even demands — not to publish. For instance, when The Washington Post published the Snowden leaks, it withheld some information — but not all — at the request of officials. If the intelligence agencies had their way, explained then-Executive Editor Marty Baron, the Post wouldn’t have published any of the Snowden documents at all.

That important limit seemed lost at some points during the court’s argument. In one particularly troubling exchange, Justice Ketanji Brown Jackson asked the lawyer for the states about whether the government could tell the platforms it must remove “classified information” posted by a user. The states’ lawyer — who was there to argue against the government’s power to demand content removals — swiftly agreed that content could be required to be removed.

That’s not right. There’s nothing about invoking the words “classified information” or “national security” that gives the government the power to forbid publication or require removal of already published information.

That was exactly the argument the Supreme Court rejected in the Pentagon Papers case, when it held that the First Amendment prohibits prior restraints — court orders censoring the publication of an article or documents — in almost all cases. As Justice Black explained, “The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.”

It would be incredibly dangerous for the Supreme Court to adopt an interpretation of the First Amendment in Murthy that gives the government greater leeway to coerce social media or any publisher into not publishing information on the basis of national security concerns.

Claims that the sky will fall if certain information is published rarely pan out. But that hasn’t stopped our government from invoking national security to try to stop or delay publication of information that reveals its wrongdoing. Other countries that actually have the power to censor speech online in the name of national security have abused it to prevent publication of information that’s embarrassing or exposes their own abuses.

If anything, the court should be concerned that the power imbalance already tilts too far in favor of the government when it comes to attempts to coerce publishers into withholding information on the basis of “national security concerns.”

The court has wisely barred officials from punishing journalists for publishing truthful information that they lawfully obtained, or from clawing back information, without adding in an exception for leaks the government claims would threaten national security. But in the Pentagon Papers case, several justices also suggested that the government may be able to punish the press for publishing national security secrets after the fact, and the government has never disavowed this power.

In fact, the government’s current position in the Julian Assange case is that it can prosecute publishers under the Espionage Act merely for publishing national defense information. The government has responded to concerns that Assange’s prosecution threatens press freedom by claiming the public could trust it to distinguish Assange from conventional journalists and refrain from prosecuting the latter.

We’ve never trusted the government to make that distinction — especially when half the administrations since Nixon’s have threatened to prosecute journalists. And our concerns are heightened by the revelation that at least one Supreme Court justice doesn’t see a distinction either. The threat of prosecution or censorship, whether spoken or unspoken, is already a powerfully coercive force when the government warns the press not to publish national security secrets. Jackson’s comments compound that threat.

When the government weighs in on private actors’ decisions about what to publish — whether it’s social media platforms or newspapers — it’s a delicate balance. The government should be able to share information that can inform publication decisions, but it shouldn’t be able to force a decision not to publish or to take down what’s already been published.

The Supreme Court seems on track to strike the right balance in Murthy. But if there’s one thing the court must not do, it’s create a special rule that gives the government more power to coerce publishers when it claims a national security threat.