Freedom of the Press

Body camera footage shows a concerned observer recording while Phoenix Police needlessly detained Wall Street Journal reporter Dion Rabouin last year. Police later threatened her with arrest under a law requiring people recording cops to stay at least eight feet away.

Last year, Phoenix police detained Wall Street Journal reporter Dion Rabouin for interviewing passersby on a sidewalk outside a bank. They ignored his repeated explanations that he did not know the sidewalk was bank property and was willing to leave if officers would only let him.

A concerned citizen recorded the ordeal on a cell phone. She never once came close to interfering with the officers, but footage shows police threatening to arrest her pursuant to an Arizona law requiring people to stand at least eight feet back when recording police. She was still able to capture a reasonably clear recording in the empty parking lot, and that may have been the reason police eventually let Rabouin go. But what if the incident had occurred on a busy sidewalk, or in the middle of a chaotic protest? Or what if, like some other states, Arizona required her to stand 25 feet away rather than eight?

Rabouin’s detainment, of course, is far from the worst offense by police that has been caught on camera. Murderous cops are sitting in prison right now because citizens recorded their crimes so their departments couldn’t credibly lie about what happened. Courts around the country have recognized the importance of recording police and have unanimously upheld the First Amendment rights of citizens and journalists alike to do so.

That means police departments wishing to avoid scrutiny have had to resort to workarounds, including lobbying for legislation like the Arizona law so that recorders exercising their constitutional rights are less likely to capture incriminating details. Fortunately, there’s been some pushback. A court recently struck down that Arizona law as unconstitutional following a lawsuit by the ACLU and others. And last month, Louisiana Gov. John Bel Edwards vetoed a bill that would’ve made it a crime to come within 25 feet of officers on the job.

He wrote in his veto letter that, “Observations of law enforcement, whether by witnesses to an incident with officers, individuals interacting with officers, or members of the press, are invaluable in promoting transparency.” Edwards is right, and that’s likely the reason Indiana’s legislature passed a law similar to the one he vetoed, and why lawmakers in Florida and New York have tried and probably will try again (in the meantime, New York police baselessly arrest people who record inside police stations). Other states are sure to join the trend.

The official justification for these dubious bills is that recording up close interferes with police work or threatens police safety. That’s nonsense. We’ve seen no evidence that it’s ever happened and certainly none that the problem is pervasive enough to overcome the First Amendment. Anyway, there are already plenty of laws on the books against obstructing police. If anything, police are likely distracted when they’re needlessly quibbling with observers over how close they can get when they should be focused on their jobs.

Proponents of anti-recording laws may also point to the availability of body camera footage as a substitute for citizen recordings, but that’s another red herring. Police body cameras have a suspicious tendency to conveniently fail just when they’re most needed, and several state legislatures have made body camera footage as difficult as possible to obtain. Even when it’s eventually made public, the footage is often redacted or released late and/or piecemeal. The footage from Rabouin's arrest, for example, was released only after the observer's recording brought national attention to the incident. The mayor of Phoenix eventually apologized for the officers' conduct.

The bottom line is that the only way to hold police accountable for misconduct — or better yet, prevent it from happening in the first place — is for citizens and journalists to be able to record police without needing a yardstick to figure out how close they can get (ironically, if someone actually did take out a yardstick in order to comply with the law, they’d probably get tased).

It’s encouraging that Arizona and Louisiana have backed away from these misguided proposals. Hopefully, the remaining states will soon follow.

Journalists increasingly use drones to report the news, but a new bill in Congress could give the government an excuse to target drone reporting.

A fisherman stands with his boat in a dry lakebed as the camera slowly pans out, revealing an enormous expanse of desolate ground left behind when the water receded from Lake Poopó, Bolivia. Photojournalist Josh Haner used a drone to capture that video, showing the devastating impacts of climate change.

Like Haner, more and more journalists at the national and local level are using drones to document the impacts of war, natural disasters, pandemic stay-at-home orders, protests, and more. Drones give journalists access to otherwise inaccessible views and let them report on dangerous events safely from a distance.

Even though the Federal Aviation Administration already regulates journalists’ use of drones, a new federal bill now on the table would threaten journalists’ and others’ ability to use them to document the news or engage in other First Amendment-protected activities, like monitoring the police at protests.

The proposed Senate bill, The Safeguarding the Homeland from the Threats Posed by Unmanned Aircraft Systems Act, has the worthwhile goal of protecting critical infrastructure, like power stations, from attacks by drones. The problem? It doesn’t take into account the way reporters use drones to gather information for the public. That’s why Freedom of the Press Foundation (FPF) joined a letter on behalf of civil society organizations led by the Center for Democracy & Technology opposing the bill. (The full letter is embedded below.)

The measure would give federal and local governments the power to track, intercept, and even damage or destroy drones if they believe the unmanned aircraft pose a threat. This sounds reasonable, until you know that the government has used made-up “safety concerns” in the past to abuse its authority over the airspace and suppress free speech.

For example, in 2014, authorities restricted the airspace around Ferguson, Missouri, during the protests over the police killing of Michael Brown. According to the St. Louis County Police, the restriction was “solely for safety.” But documents obtained by the Associated Press through the Freedom of Information Act showed that the real reason for the restriction was to prevent news helicopters from covering the protests.

It doesn’t take much to imagine government officials using their powers under this proposed legislation to chase off or take down drones journalists are using to report news stories that authorities don’t like. As the U.S. Press Freedom Tracker has reported, journalists already face criminal charges, harassment, and seizure of their drones by officials or private security for no good reason. Some states have tried to enact broad bans on the use of drones, including for journalism.

The Senate proposal would empower the government to take this harassment and suppression to another level. Nothing in the measure requires authorities to take into account whether drones are being used for activity protected by the First Amendment, like gathering news. It also doesn’t require the government to try steps like warning a drone off from a restricted area before escalating to harsher measures like destroying it, which, in most cases, would also destroy the images it captured. Journalists who have their drones improperly seized or destroyed have no recourse under the bill to challenge that action.

Troublingly, the proposed law also actively prevents the public from learning about how authorities are using their powers to take action against drones. There’s no requirement for the government to publicly report how often it uses its counter-drone authority or its reasons for doing so. That makes it difficult for journalists to uncover and report on abuses. Even worse, the bill creates new exceptions to state public records laws that could let states keep secret the details of their operation of counter-drone technology.

All of these flaws mean the Senate’s proposed act isn’t ready to become law. Allowing the government to secretly take down drones without regard for the First Amendment is an invitation for abuse. Yes, malicious use of drones is a potential problem that Congress should address, but not at the expense of freedom of the press and the public’s right to know.

We are thrilled to announce that Jack Dorsey — Block Head, Chairman, and co-founder of Block Inc. — has donated $1 million through his philanthropic initiative, #startsmall, to Freedom of the Press Foundation (FPF) to help establish the Daniel Ellsberg Chair on Government Secrecy.

Ellsberg, the legendary whistleblower and co-founder of FPF who passed away last month, made it part of his life’s work to protest the U.S. government’s out-of-control classification system and its corrosive effect on democracy. To honor his legacy, we recently announced an ambitious mission in Ellsberg’s name to shed light on the abuses of over-classification and aggressively push for reform.

“We are beyond grateful for this incredible investment from Jack Dorsey for the Daniel Ellsberg Chair on Government Secrecy,” said FPF Executive Director Trevor Timm. “Jack’s gift will not only ensure Daniel Ellsberg’s life's work is carried forward but will be crucial in leading the charge for transparency nationwide.”

The Ellsberg Chair is dedicated to unmasking secrecy abuses and fostering public dialogue on the issues plaguing our government. The appointed full-time staff member will delve into every aspect of government secrecy, ranging from the problem of excessive classification to the limitations of the Freedom of Information Act and the misuse of the Espionage Act against whistleblowers and publishers.

Working hand in hand with journalists and other press freedom organizations, this individual will shine a spotlight on overlooked stories surrounding malpractices within the classification system. They will collaborate closely with media outlets to bring these issues to the forefront of public consciousness, raising awareness, and igniting meaningful conversations about the dire consequences of unchecked government secrecy.

As Ellsberg once said, “Truth-telling to Congress and the public is not disloyal in America: it is an expression of the higher loyalty officials owe to the Constitution, the rule of law, and the sovereign public. It is a courageous, patriotic, and effective way to serve our country. The time to speak out is now.”

With the support of #startsmall and its commitment to transparency, we are excited to carry Ellsberg’s truth-telling torch forward.

Taking on the national security establishment will not be an easy task and is uniquely susceptible to changes in political or fiscal winds. FPF is raising an endowment fund for the Daniel Ellsberg Chair on Government Secrecy so that this position can hopefully live in perpetuity and advocate for government transparency without fear or favor.

Before the generous contribution from #startsmall, FPF had secured approximately one-third of its goal. But now, we are nearly two-thirds of the way there.

If you are inspired by Jack Dorsey’s gift and would like to contribute to funding the Daniel Ellsberg Chair on Government Secrecy, please contact FPF’s Executive Director Trevor Timm at trevor@freedom.press.

Your tax-deductible support will make a lasting impact in the fight for press freedom and government transparency. Together, we can protect the vital role that journalism plays in preserving democracy and promoting the public good.

A new proposal would allow Congress to compel online censorship of precisely the information necessary for the American public to evaluate lawmakers' adherence to our laws and ethical standards.

Demand Progress and Freedom of the Press Foundation led a coalition of 53 civil society and press freedom organizations opposing Senate Amendment 218, a proposal that would allow federal lawmakers to compel the censorship of a broad range of information about themselves—including the types of information routinely reported by journalists, government watchdogs, and ordinary citizens.

Read the full letter below.

Senate Amendment 218 would give federal lawmakers the power to compel information that they find embarrassing, inconvenient, or politically damaging to be removed from the internet.

A new proposal in Congress would give lawmakers the power to censor information about themselves online. As we explain in Tech Policy Press, Senate Amendment 218 would be a disaster for public oversight of Congress by journalists, watchdog groups, activists, and constituents:

Not only is Amendment 218 unconstitutional and opposed by a broad coalition of civil society organizations, it also foolishly trusts social media companies to moderate content well and to act in the best interests of users and the public. If passed, this proposal will make investigative journalism harder and lead to the removal of news and other important speech about lawmakers from the internet. Protecting lawmakers from actual threats to their safety is important, but giving Congress the power to censor the internet isn’t the right approach. Congress should not bundle legislation prioritizing its own privacy over the public interest into the must-pass defense bill.

Read more at Tech Policy Press, here.

Body camera footage showing Asheville Blade journalist Matilda Bliss' press pass during their arrest.

Last month, a North Carolina judge reportedly instructed a jury not to consider the First Amendment in deciding whether two journalists could be convicted for recording police evicting a homeless encampment and dispersing protesters. He said he would resolve constitutional issues in deciding the journalists’ motion to dismiss the charge that they broke a park curfew.

But Judge Tommy Davis’ ruling denying the motion is full of troubling biases and fundamental legal errors. First, he expressed largely pointless reservations about whether the defendants were actually journalists. Second, he bizarrely reasoned that the First Amendment requires police arresting protesters to also arrest journalists, out of fairness.

Journalists are allowed to have political views

Sure, the prevalence of mobile technology and social media can complicate academic debates about the definition of “journalist.” We prefer to focus on acts of journalism rather than individual credentials. But that’s a subject for another day: For now, we can all agree that someone who gets paid to regularly report news for an established media outlet is a journalist. Right?

Not so fast, said Davis. “It is interesting to note that the title of journalist can be broadly defined,” he wrote, despite acknowledging that Matilda Bliss and Veronica Coit regularly report for the Asheville Blade, which has been covering Asheville since 2014. “In today’s society, anyone with a cell phone capable of recording voice and audio with access to a computer can claim to be a journalist implicating First Amendment rights,” he continued, implying that more people being protected by the First Amendment’s press clause is a bad thing.

Davis then argues that arresting officers couldn't distinguish Bliss and Coit from nonjournalists, despite the officers’ own body camera footage prominently showing Bliss’ press pass (see the photograph above). Perhaps most disturbingly, he notes that Bliss “has views aligned with” the protesters, as though the First Amendment excludes reporters who dare possess opinions. That would’ve been news to the drafters of the amendment, who lived in a time long before journalists even feigned objectivity.

Ultimately, the judge put aside his fist-shaking about those kids and their damned cellphones and assumed for purposes of his analysis that Bliss and Coit are in fact journalists (although it seems unlikely that his biases did not affect the rest of his thinking). But then …

The First Amendment should never be cited to criminalize more speech

It’s hard to believe we have to write that heading. But, remarkably, after begrudgingly conceding that Bliss and Coit may be journalists after all, Davis ruled that the First Amendment actually required police to arrest them along with protesters at the park. After all, he reasoned, the protesters could complain they were treated unfairly if journalists were given a pass.

That’s not how it works. The government can restrict First Amendment activity on public land only when it’s “essential” to serve an “overriding” interest, and the restrictions must be as narrow and targeted as possible. That means even rare circumstances entitling the government to restrict some speakers don’t entitle it to restrict all speakers. For example, police may sometimes be entitled to disperse protesters who damage government property, but that doesn’t mean they can also disperse journalists who pose no threat to the property. Davis fails to comprehend that it’s not about journalists having additional rights — it’s about the government having to separately establish a sufficient basis for each infringement of the First Amendment. But the journalists have never been accused of obstructing or harming anyone or anything and arresting them served no "interest" other than censorship.

Plus, police crackdowns on protests are themselves news and journalists can’t cover them if they’re in jail too. As the Department of Justice recently explained: “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.” Journalists have to follow the news — they can’t control what time police choose to arrest protesters.

Finally, it doesn’t matter if, as Davis speculates, Bliss and Coit could’ve reconstructed events after the fact through witness accounts. That same logic would allow trials and government meetings to be closed. Cops and judges don’t get to tell reporters how to report. The availability of an inferior Plan B doesn’t remove First Amendment protection for Plan A.

The ruling contains plenty of additional head-scratchers, like Davis’s reasoning, too convoluted to deconstruct here, that an officer’s instruction to arrest Bliss and Coit before others — “because they’re videotaping” — does not evidence police targeting of First Amendment activity.

Then the judge brushes aside admitted evidence of Asheville authorities’ hostility towards the Blade over its past coverage, focusing on whether the arresting officers recognized Bliss and Coit. That ignores evidence that the higher-ups who decided to waste taxpayer funds pursuing the misdemeanor charges for 1.5 years and two trials surely did. And let’s not forget additional unconstitutional retaliation, like banning the journalists from city parks.

The entire ordeal has been an assault on press freedom driven by the spite and pettiness of officials who know better. That’s why press rights and civil liberties organizations have widely condemned the prosecutions and convictions. We’re glad to hear the journalists will appeal. Let’s hope the appellate court ensures no future officials in North Carolina butcher the First Amendment like the clueless prosecutors and judges involved in the Asheville case.

A legal loophole that lets the government buy location information, browsing history, and more from data brokers creates risks for journalists and whistleblowers.

Update on July 13, 2023: The National Defense Authorization Act amendment introduced by Reps. Warren Davidson and Sara Jacobs has been revised. Under the revised language, the amendment would prohibit only the Department of Defense from buying information it would otherwise need a warrant or other legal process to access. While this is a good start, Congress must close the data broker loophole for all intelligence agencies and state and local law enforcement.

A recently declassified government report revealing that federal intelligence agencies are gobbling up massive amounts of data from shadowy companies known as data brokers should raise alarm bells for all Americans, and particularly journalists and whistleblowers. Congress can — and should — close this data broker loophole using either the must-pass defense bill currently under consideration or separate legislation.

Unless you’re entirely off the grid, chances are good that a data broker has collected and sold highly personal information about you. Data brokers swallow up and compile data from online sources like search engines, social media, dating and weather apps, and more. They use that data to sell information about people’s religious or political beliefs, medical issues, sexual orientation, and even detailed location records. Despite claims that data brokers anonymize data, there’s plenty of evidence that it can often be traced back to specific individuals.

Data brokers’ invasive practices are creepy enough when they’re being used to sell stuff. But it gets worse. For years, intelligence and law enforcement agencies have been using data brokers as a loophole to get around the warrant requirement and other legal restrictions on accessing information for their investigations. And it’s not just the federal government relying on data brokers; state and local law enforcement use them, too.

This loophole is particularly dangerous for journalists and whistleblowers caught up in government leaks investigations. The government may be able to buy data about journalists and whistleblowers from data brokers that they couldn’t otherwise obtain without a warrant under the Fourth Amendment. And it’s not clear whether the Department of Justice’s news media guidelines, which limit compelled disclosure of newsgathering records from journalists by the DOJ, would apply to purchases of the same data from data brokers.

The government could, for example, buy browsing history from a data broker to discover what news sites a suspected whistleblower has visited or what searches they’ve conducted. This could reveal evidence of the whistleblower’s contact with journalists or intention to share information with the public.

The government could also attempt to ferret out a reporter’s source by buying location data of the journalist and of suspected sources to glean where they’ve been and whether they’ve met in person. In 2009, for example, when the government suspected a State Department employee of leaking to reporter James Rosen, it used security badge access records to show Rosen’s comings and goings from the State Department.

We shouldn’t let the government buy its way out of respecting the Fourth Amendment. Thankfully, at least some members of Congress agree. Reps. Warren Davidson and Sara Jacobs have introduced an amendment to the National Defense Authorization Act that would prohibit the government from buying information that they’d otherwise have to get a warrant or other legal process to access. Similar bipartisan legislation, the Fourth Amendment is Not for Sale Act, was introduced by Sen. Ron Wyden in the last Congress.

Congress must close the data broker loophole and make clear that intelligence and law enforcement officials have to follow the law before they can access sensitive information about journalists and other Americans. When Washington Post reporter Bob Woodward met Deep Throat in an underground garage outside Washington, DC, to talk about what would become Watergate, they didn’t have to worry about a cellphone in their pockets, browsing histories, or internet searches leaving a trail of breadcrumbs for leaks investigators to follow. Journalists in the digital age must be more wary, but they should still get all the protections afforded by the Fourth Amendment.

Rep. Rashida Tlaib has introduced an amendment that would stop Espionage Act prosecutions of journalists and their sources without impacting the government's ability to prosecute actual espionage.

I may have just violated the Espionage Act by linking to this Washington Post report on leaked documents about the Russian-Ukrainian war. You may have just violated the act by reading it. That sounds ridiculous because it is. But the act says anyone who accesses national defense information must return it to the appropriate government official to avoid prison. I didn’t, did you?

It’s true, the government hasn’t invoked the 100-plus year-old law to prosecute news readers and probably won’t anytime soon. But the government has routinely abused its broad discretion under the law’s vague and ambiguous language to prosecute investigative journalism — including both publishers and sources.

An amendment (PDF) to the National Defense Authorization Act proposed by Rep. Rashida Tlaib could change all that. The amendment would not affect provisions of the Espionage Act used to prosecute actual espionage. It would stop Espionage Act prosecutions of journalists, publishers, and members of the public by limiting the act’s reach to government employees under a duty to protect confidential information. It would also:

• Require the government to prove whistleblowers and other defendants intended to harm the U.S. (as opposed to, for example, exposing government crimes to stop them).
• Relatedly, permit defendants to testify regarding the purpose of their disclosures.
• Allow defendants to prove their disclosures served the public interest.
• Limit prosecutions to cases involving properly classified information (the law predates the severely broken classification system and instead refers to “national defense” information).

The amendment would immediately and significantly improve the quality of investigative reporting available to Americans. Even when no charges are filed, the chilling effect on journalists and sources from the mere prospect of prosecution is immeasurable. Before he passed away last month, Freedom of the Press Foundation co-founder and Pentagon Papers whistleblower Daniel Ellsberg warned other potential whistleblowers: “Don’t do it under any delusion that you’ll have a high chance of ending up like Daniel Ellsberg,” i.e., dying outside of prison.

Yes, Tlaib introduced the same amendment last year, and yes, reforming a law as beloved by the many secrecy fanatics in our government as the Espionage Act will be an uphill battle. But it’s one we need to keep fighting, especially when the current administration continues former President Trump’s abuse of the Espionage Act to criminalize routine journalism.

Speaking of, it must be acknowledged that the two most famous Espionage Act defendants at the moment are polarizing figures — Julian Assange and Trump. Some may trust the current Department of Justice to only weaponize the Espionage Act against people they don’t like. That’s a mistake.

Even the Obama administration — which set records for Espionage Act prosecutions of whistleblowers — declined to charge Assange under the act because it recognized that doing so would open the door for prosecutions of more traditional journalists. When the next DOJ reversed Obama’s position it was easy to blame Trump’s hatred of the press — he’s unlikely to be concerned about setting precedents that harm reporters.

But then the Biden administration continued the Assange prosecution despite decrying sham espionage prosecutions of journalists abroad. It’s even pressuring other journalists to help it criminalize journalism. Clearly, once one administration claims power subsequent ones can’t be trusted to relinquish it. It’s anyone’s guess how the Espionage Act might be abused in a second Trump term or any other future administration. Let’s hope that, thanks to Tlaib’s amendment, we don’t need to find out.

Justice Clarence Thomas continues to push for the Supreme Court to overturn vital protections against retaliatory defamation lawsuits by public officials. But he appears increasingly isolated in light of conservative opposition.

Over the last few years — and especially this year — there’s been significant concern that vital legal protections keeping the powerful from silencing critics with defamation claims would be weakened by politicians or eliminated altogether by the Supreme Court.

Those concerns remain, but efforts to undermine long-standing First Amendment safeguards suffered major setbacks last week. The Supreme Court reaffirmed the continued viability of New York Times v. Sullivan, the landmark 1964 case disallowing public officials from retaliating against journalists and others with lawsuits over unintentional errors.

The court in Counterman v. Colorado explained that:

“A public figure cannot recover for the injury [a defamatory] statement causes unless the speaker acted with ‘knowledge that it was false or with reckless disregard of whether it was false or not.’ That rule is based on fear of ‘self-censorship’ — the worry that … the uncertainties and expense of litigation will deter speakers from making even truthful statements. The First Amendment, we have concluded, ‘requires that we protect some falsehood in order to protect speech that matters.’”

The Counterman case itself was not about defamation — rather, it involved a Colorado statute criminalizing threatening statements — but it would be odd for the court to analogize to Sullivan as a model for First Amendment analyses if it had any intention of overturning the case. No one except Justice Clarence Thomas dissented from the endorsement of Sullivan.

Driving the point home, the Supreme Court also declined a request to review a direct challenge to Sullivan in another case, which sought to hold the Southern Poverty Law Center liable for including certain organizations on its list of hate groups. Again, only Thomas dissented.

Previously, several Supreme Court justices appeared open to reconsidering Sullivan, but now Thomas seems to be alone, as he should be. His efforts to overhaul First Amendment law to make it easier for public officials to retaliate against journalists appear increasingly self-serving, considering journalists’ revelations of his myriad of undisclosed conflicts of interest.

Other recent attacks on Sullivan have also failed. Earlier this year, Florida governor and presidential hopeful Ron DeSantis had his minions in the state legislature introduce legislation intended to undermine Sullivan (among other gifts to powerful defamation plaintiffs). That bill died after a major backlash from conservative media outlets, both in Florida and nationwide, and prominent Republicans including everyone from Mike Pence to Bill Barr.

This is not to say that the attacks on Sullivan are over. Thomas remains committed to his position. DeSantis, whether as governor or potentially president, is sure to continue to undermine the press, and the First Amendment as a whole, in any way he can.

But last week’s cases show that the Supreme Court is unlikely, at least in the near term, to rewrite defamation law to bankrupt already struggling media outlets with legal costs. And the fiasco in Florida shows DeSantis underestimated his base when he assumed an attack on the “liberal media” would be taken as red meat. He apparently didn’t think his supporters would figure out that Sullivan protects conservative media as well.

Going forward, the focus should be on providing more protection against frivolous defamation suits — for example, by adopting anti-SLAPP laws. That said, the newly reaffirmed bipartisan consensus that Sullivan should remain the law of the land provides all the more reason why Congress should pass legislation to codify it and stop future attacks before they start.

The environmental group Greenpeace recently defeated a SLAPP seeking $100 million in damages.

A long-running legal saga that could have left Greenpeace on the hook for $100 million in damages has instead come to an end with a victory for the environmental group — and free expression. A court recently dismissed the lawsuit brought by Resolute Products, a pulp and paper company, after Greenpeace criticized its logging practices.

But while Greenpeace may have won, it still had to fight the case — and pay legal fees to defend itself — for seven long years. And because there’s no federal law against strategic lawsuits against public participation, or SLAPPs, the next case against Greenpeace, other activists, or journalists may drag on even longer.

A SLAPP is a lawsuit brought to chill the exercise of First Amendment rights, often to silence and punish the plaintiff’s critics. Many SLAPP plaintiffs are powerful or wealthy. Local news outlets, individual journalists, and even those who write letters to the editor have all faced SLAPPs.

The goal of a SLAPP is to deter the target of the lawsuit and others from speaking out in the future. SLAPP plaintiffs don’t even need to win to achieve this goal; they simply wield the legal system as a weapon against their critics, making them pay a lot of money to defend themselves and suffer the inconvenience of a court case.

Thankfully, in a majority of states, victims of SLAPPs can fight back by using anti-SLAPP laws. These laws require courts to throw out meritless lawsuits arising from another’s exercise of First Amendment rights early — before a defendant’s legal bills can mount. Many of the laws also make the plaintiff pay the other side’s attorneys’ fees if the case is dismissed, taking the bite out of the high cost of a SLAPP.

Both red and blue states have recognized how important anti-SLAPP laws are to protecting free expression. This spring, Utah strengthened its anti-SLAPP law by adopting the Uniform Public Expression Protection Act, a model bill that’s also been passed in several other states and hopefully will be adopted in others that either don’t have SLAPP laws or have weak ones. Texas and Oklahoma both recently rejected changes that would have weakened their anti-SLAPP laws. And New Jersey is now considering passing its first anti-SLAPP law.

However, despite progress in the states and the introduction of the first anti-SLAPP bill in Congress more than a decade ago, there’s still no federal anti-SLAPP law. This leaves reporters and others exposed to SLAPPs in federal courts, especially since some federal courts have held that certain state anti-SLAPP laws don’t apply in those courts.

The inconsistency in whether and where state anti-SLAPP laws apply at the federal level means SLAPP plaintiffs can shop around, bringing lawsuits strategically in courts where they can inflict maximum damage. For example, under the Georgia anti-SLAPP law, a SLAPP brought in state court could be dismissed early and a successful defendant awarded their attorneys’ fees. But because the Georgia anti-SLAPP law doesn’t apply in federal court, a plaintiff who brought the very same lawsuit in federal court could make it drag on and on — and make the defendants pay high costs to defend themselves, even if they ultimately win.

The solution to this problem is a federal anti-SLAPP law, like the one that Rep. Jamie Raskin introduced last Congress. Raskin’s SLAPP Protection Act would allow a defendant to file a motion to have meritless First Amendment-based lawsuits dismissed early in the proceedings, pause the case while the motion to dismiss is pending, and require courts to rule on such motions quickly. In many cases, it would also allow the defendant to recover their attorneys’ fees.

A federal anti-SLAPP law would reduce the chilling effect that SLAPPs can have on reporters and others who want to report or speak up about environmental disasters, corporate corruption, or official wrongdoing. It would protect all Americans, including journalists, who face meritless lawsuits in federal court based on the exercise of their First Amendment rights. For too long, we’ve allowed the comfortable to abuse the law to afflict the press. It’s beyond time for Congress to pass a federal anti-SLAPP law so that the press can instead be truly free to afflict the comfortable.

A recent DOJ investigation of the Minneapolis Police Department revealed a potentially significant change in the department's view of police orders for journalists to disperse from protests.

The Department of Justice’s investigation of the Minneapolis Police Department found so many abhorrent civil rights abuses that its discussion of press freedom violations understandably reads as an afterthought. But buried on page 52 of the DOJ’s recent report is a noteworthy and welcome reversal of its recent position on the rights of journalists covering protests.

Here’s the key language:

“The First Amendment requires that any restrictions on when, where, and how reporters gather information ‘leave open ample alternative channels’ for gathering the news. Blanket enforcement of dispersal orders and curfews against press violates this principle because they foreclose the press from reporting about what happens after the dispersal or curfew is issued, including how police enforce those orders.” (Emphasis added)

That’s the exact opposite of the Justice Department’s argument in a 2020 case arising from protests in Portland, Oregon. Back then, DOJ lawyers opposed a judge’s ruling that police could not disperse journalists covering the demonstrations unless they could show that doing so was absolutely necessary and there was no other option. The DOJ claimed that distinguishing journalists from protesters is too much to ask of police (apparently letting everyone — journalist or not — lawfully exercise their First Amendment rights was not an option). The First Amendment, the DOJ said then, does not exempt journalists from generally applicable dispersal orders, even when such orders make reporting important news impossible.

Fortunately, an appellate court disagreed and upheld journalists’ right to cover protests and their aftermath. The court explained that “excluding the media from public fora can have particularly deleterious effects on the public interest, given journalists’ role as ‘surrogates for the public.’” Freedom of the Press Foundation (FPF) joined a brief led by the Reporters Committee for Freedom of the Press defending journalists’ rights in the case.

But despite the loss in the appellate court, the DOJ, as far as we know, never rescinded its anti-press position — until now.

That’s welcome news, especially given the troubling trend of increased aggression by police against journalists covering protests, as detailed by a recent report from the Knight First Amendment Institute, citing data from FPF’s U.S. Press Freedom Tracker.

It could be particularly helpful as well for North Carolina journalists Veronica Coit and Matilda Bliss, who are appealing a conviction for trespassing because they stayed at a park past closing time to document police evicting a homeless encampment. The case against them is especially weak because there was no chaotic large-scale protest that police claimed a need to disperse, nor any credible argument that police couldn’t tell journalists from others (instead, bodycam footage shows they knowingly targeted the journalists).

The report also included condemnations of MPD assaults of journalists, and affirmations of basic First Amendment rights like the right to record police, which may seem obvious but would've been unlikely to appear in a DOJ publication a short time ago.

Of course, the DOJ’s position can and likely will change in future presidential administrations, so legislative and judicial action remains necessary to combat the nationwide police crackdown on protest coverage. And the DOJ and Biden administration are no friends of press freedom as long as they continue prosecuting Julian Assange. But, along with last year’s DOJ policy against compelling journalists to disclose their sources, the language from the Minneapolis report signifies promising trends in the department’s attitudes towards journalists. Now it’s time to make sure the DOJ sticks to its word.

NYPD officers respond to a protest.

Last month, NYPD officers arrested veteran photojournalist Stephanie Keith while she attempted to document a candlelight vigil following the killing of Jordan Neely on a subway. After the arrest, Chief of Patrol John Chell claimed Keith had obstructed three arrests during the vigil. But video of Keith’s arrest instead shows Chell grabbing and pushing Keith and screaming to “lock her up” after she briefly stepped off the sidewalk to get a shot.

Police attempts to frame a career journalist like Keith as some rowdy protester looking for trouble are downright ludicrous (although the First Amendment protects rowdy protesters, too). Keith is a respected professional. She was part of The New York Times team nominated for a 2023 Pulitzer Prize for breaking news coverage.

But it’s far from the first time that police have claimed obstruction or aggression by journalists they arrest only for video to show nothing of the sort. Why the disconnect? Well, it seems that many law enforcement officials view journalism itself as obstructive. The NYPD is no exception.

In fact, NYPD officers often go far beyond just arresting journalists. They waste taxpayer funds on petulant abuses of power — not to mention the litigation that often follows. In 2021, for example, officers assaulted photojournalist Gabe Quinones with a baton while he attempted to cover demonstrations at Washington Square Park. After he filed a complaint, officers came to his home to arrest him for grand larceny. They claimed he tried to steal the baton he was beaten with despite video of the assailant officer lashing him across the back while he ran away.

Predictably, prosecutors dropped charges. Officials don’t file these kinds of cases to win but to intimidate. They have no interest in putting their non-existent evidence before a jury.

The prior year, NYPD officers attacked another journalist, Armin Rosen of Tablet Magazine, who was covering a protest following the murder of George Floyd. The officers apparently chose to assault first and ask questions later after seeing him put something in his backpack. It turned out to be a notebook he was trying to protect from the rain. Rather than apologize, they stole his bicycle. Seriously. They left him with his bike helmet, which said “PRESS” in large letters.

According to Freedom of the Press Foundation’s U.S. Press Freedom Tracker, the beating Rosen endured was just one of 30 known arrests and assaults of journalists by the NYPD at Black Lives Matter demonstrations in 2020 (not to mention similar incidents a few months later at election-related demonstrations). Days before assaulting Rosen, police slammed a photojournalist’s head into the ground for no apparent reason while a crowd pleaded for them to let the “old lady” go. She said her camera strap almost choked her during the assault.

Officials back then cited the chaos of the times as their excuse. Police, they said, thought the people they senselessly attacked for exercising their First Amendment rights were not journalists but mere protesters, who they apparently (and appallingly) regard as fair game.

But the George Floyd protests are over and NYPD’s anti-press antics continue. In fact, journalists who got on the department’s bad side in 2020 claim officers are still retaliating against them.

Another common excuse is that journalists could avoid nightsticks and jail cells by displaying city-issued press credentials — as though the mayor’s office, or any government body, has the power to determine who qualifies for First Amendment rights. Requiring journalists to register with the government — what could go wrong? The reality is that many journalists intentionally avoid displaying press credentials for fear of being targeted by police.

To be clear, cops’ hostility to the press is far from just a New York problem. Officials in Oklahoma were recently caught on tape fantasizing about murdering reporters at a government meeting. The sheriff then threatened to prosecute the journalists for recording the conversation. A jury in North Carolina this month convicted two journalists for violating curfew while covering a homeless encampment sweep cops chose to conduct after hours at a public park. And the DOJ highlighted press freedom violations in its recent report on its investigation of the Minneapolis Police Department.

But New York is the media capital of the world, and likes to regard itself as more enlightened than supposed flyover states when it comes to civil liberties like press freedom. Sadly there’s about as much evidence that’s actually the case as there is of Keith’s alleged obstruction.

A coalition of press rights and civil liberties groups have demanded prosecutors drop charges against Keith. They should, and then Keith should sue (as should other journalists victimized by the NYPD). But even then, it’s the taxpayers that foot the bill, which is why officials seem content with paying tens of millions to settle police misconduct cases annually. Change will only come if New Yorkers — especially journalists — demand it, loudly and repeatedly.

Freedom of the Press Foundation Executive Director Trevor Timm took this picture of Daniel Ellsberg speaking with Edward Snowden for the first time in September, 2013.

When our co-founder and legendary Pentagon Papers whistleblower Daniel Ellsberg passed away last week we wrote that “his long-term legacy may lie with the countless whistleblowers whom he inspired to follow in his footsteps.” But efforts are already underway to lionize him at the expense of 21st century whistleblowers.

Ellsberg staunchly rejected efforts to manufacture distance between his actions in 1971 and theirs decades later. He welcomed Edward Snowden to our board of directors and worked closely with him for years. He retained backup copies of Chelsea Manning’s disclosures to WikiLeaks and regularly called her “my hero.” He called Daniel Hale in prison every Sunday, even when terminally ill.

But, within hours of news of his death, commentators revived tired talking points framing Ellsberg as the lone and inimitable “good” whistleblower, while blatantly ignoring Ellsberg’s own thoughts on the matter. Here’s what David Brooks had to say on PBS NewsHour:

"I thought Edward Snowden was terrible. But Daniel Ellsberg shows that you can do it right … He tried to go up the normal chain of command to show documents to senators and other things. And so it was — he went through all the hoops you should go through to prove that it's not just you being an egomaniac; it's you with a legitimate cause … you could at least say, well, he, A. went through all the hoops, B. did it with the full expectation he'd spend the rest of his life in jail. And so that, to me, is doing it the right way, a thing that probably should almost never be done, except in extreme circumstances, which he was in."

The subtext: There can never be another Daniel Ellsberg so don’t bother trying.

It’s ironic that Brooks, in calling Snowden an egomaniac, argues he should’ve cared more about “proving” he wasn’t one. Could it be that whistleblowers are less concerned with how they’re perceived than with exposing government crimes as quickly as possible? It’s commentators, not whistleblowers, who shape the narrative around personalities and moral judgments rather than the content of leaked documents.

Even more offensive is Brooks’ absurd attempt to whitewash Ellsberg — a man who was reportedly arrested 90 times for civil disobedience — as some establishment-approved adherent to official protocols. This is how Ellsberg, in one of his final interviews, responded to the suggestion that modern whistleblowers should jump through “all the hoops” before going public:

"Here’s a very good piece of practical advice, which is don’t go through channels. Don’t go to the Whistleblower Protection Act. Don’t go to the inspector general as Tom Drake did, for example. That only serves to identify you as a troublemaker and someone who’s not with the system, somebody who whines about the fact that we’re killing people."

And Ellsberg practiced what he preached — he eschewed official channels when, at age 90, he leaked additional classified documents in an intentional effort to be prosecuted under the Espionage Act yet again so he could challenge its constitutionality.

Brooks was accompanied on NewsHour by Jonathan Capehart, who added the following nonsense:

"A lot of people were comparing the two when Snowden leaked all of those documents, saying he's the modern-day Ellsberg. And I wrote a column then, 10 years ago this week, that said, no, he's not, because while they both leaked documents, Daniel Ellsberg did something Edward Snowden didn't do. He stayed in this country, he turned himself in, and he allowed himself to be held accountable … that's why I say someone like Daniel Ellsberg should be considered a hero."

Capehart must know, but didn’t mention, that Ellsberg responded to his Washington Post column and others like it with an op-ed of his own, in the same newspaper, titled “Snowden made the right call when he fled the U.S.”

Ellsberg wrote:

"Snowden’s contribution to the noble cause of restoring the First, Fourth and Fifth amendments to the Constitution is in his documents. It depends in no way on his reputation or estimates of his character or motives — still less, on his presence in a courtroom arguing the current charges, or his living the rest of his life in prison."

Ellsberg’s reason for sticking around had nothing to do with any moral obligation to face an unwinnable sham trial where his intentions and the public good would’ve been legally irrelevant. Brooks and Capehart disingenuously ignore that whistleblowers aren’t entitled to “prove” their “legitimate cause” under the Espionage Act. The mere fact they “willfully retained” defense documents opens and shuts the case, no matter how much illegality the documents reveal.

Ellsberg stayed to publicize the Pentagon Papers and knew he could because he would be out on bail prior to his trial. Whistleblowers these days don’t have that option because Espionage Act defendants (at least, those who aren’t former presidents) await trial in jail cells, silenced.

Brooks and Capehart don’t have to like how Snowden and others went about exposing government crimes just because Ellsberg did. We don’t think whistleblowers need to volunteer for life in prison to be held “accountable” for performing a public service. Agree to disagree.

But if they believe history’s greatest whistleblower was wrong about whistleblowing etiquette, they should just say so. And if they seriously contend that Espionage Act trials foster accountability, they should cut the platitudes and explain how.

Instead, they distort Ellsberg’s legacy, and co-opt his moral authority, to prop up old takes they know he abhorred and would repudiate if he were still here. Where’s the accountability in that?

Sen. Durbin (right) is one of the co-sponsors of the PRESS Act in the Senate, along with Sens. Lee and Wyden. Rep. Kiley (left) and Rep. Raskin will co-sponsor the PRESS Act in the House.

What do the leak of a CIA agent’s name, a murder in Houston, and steroids in baseball all have in common? All were news stories involving confidential sources — and all resulted in reporters being sentenced to jail for refusing to reveal their identities.

Journalists shouldn’t have to choose between protecting their confidential sources or going to prison. Thankfully, if Congress passes the newly reintroduced federal reporter’s shield law known as the PRESS Act, they won’t have to, at least in federal cases.

That’s good news for both the press and, more importantly, the public’s right to know. The PRESS Act would protect newsgathering and the free flow of information to the American people, since journalists often rely on confidential sources — who may fear being jailed, fired, or retaliated against for speaking to the press — to report vital news stories in the national interest.

As we’ve explained before, the PRESS Act is one of modern times’ most important pieces of federal legislation protecting First Amendment rights. It’s a bipartisan bill that last year saw strong support both from major media outlets and civil society organizations. Last Congress, the PRESS Act was passed unanimously by the House and came within a hair’s-breadth of becoming law before it was stopped by a nonsensical objection from a single senator.

The newly reintroduced bill has bipartisan cosponsors in the Senate (Sens. Durbin, Lee, and Wyden) and will have bipartisan cosponsors in the House (Reps. Raskin and Kiley). These members should be applauded for their work to protect journalists at a time when egregious threats to their safety and legal protections persist.

The PRESS Act would mean journalists can’t be threatened with crippling fines or jail time unless they cough up the names of confidential sources or other information about their newsgathering. It would also stop the federal government from spying on journalists through their phones, email providers, and other online services. This anti-surveillance provision is especially important in the digital age, when reporters often must use email, cloud, and messaging services, as well as social media, to communicate with sources or store their work.

The PRESS Act covers both professional and citizen journalists. It applies regardless of the perceived political leanings of a news outlet or reporter. In other words, it would shield a blogger or a Pulitzer Prize winner, a reporter for Fox News or Media Matters for America. It would stop administrations — either Democrat or Republican — from spying on journalists whose reporting angers or embarrasses them.

At the same time, the PRESS Act also has some limited exceptions that apply when necessary to prevent terrorism or imminent violence. These commonsense limits let us both protect reporters in the vast majority of cases and allow the government to compel disclosures in exceptional (and, at least so far in U.S. history, entirely hypothetical) instances where source confidentiality could somehow lead to terrorism or violence.

Forty-nine states and the District of Columbia have shield laws or equivalents recognized by courts. But without a federal shield law, journalists still risk being jailed or punished for refusing to reveal sources or their newsgathering material in federal courts, congressional inquiries, and administrative proceedings. And although guidelines issued by the Department of Justice last year limit federal subpoenas to reporters, those guidelines could be rolled back or even ignored by future presidential administrations. (For example, it’s a safe bet that a future President Trump would not be a fan.)

We can’t afford to leave reporters’ ability to protect their sources up to the whims of a future administration. We need a law that protects the journalists and confidential sources that Americans rely on to expose wrongdoing by government, private companies, and powerful individuals. The PRESS Act is the strongest shield law Congress has ever proposed. Now it’s time to pass it.

We are heartbroken to learn that our dear friend Daniel Ellsberg, world-renowned whistleblower and Freedom of the Press Foundation co-founder, has passed away at the age of 92.

Daniel Ellsberg stands as one of the most influential figures in American history, leaving an indelible impact on the last century. His courageous decision to leak the Pentagon Papers to The New York Times in 1971 led to the most important Supreme Court case for press freedom in the modern era, sparked a series of events that culminated in the resignation of President Richard Nixon, and ultimately accelerated the end of the Vietnam War.

He became a hero to millions for his unwavering anti-war activism and decades-long fight to abolish nuclear weapons, but his long-term legacy may lie with the countless whistleblowers whom he inspired to follow in his footsteps.

As the first source of a journalist to be prosecuted under the often-abused Espionage Act, Ellsberg spent the second half of his life passionately defending other whistleblowers who were less fortunate than him. It’s only because of what he would refer to as “a series of miracles” (in reality, severe government misconduct), that he did not spend decades in prison himself. So, he made it part of his mission to draw attention to the unjust and unconstitutional law, and help the other patriotic whistleblowers who were irreparably harmed by it.

It’s why we’ve always considered whistleblower rights a core press freedom issue. How much of the journalism we know and love would not be possible without the countless Daniel Ellsbergs we never hear about?

It’s also true that Freedom of the Press Foundation would not exist without him, as he was the galvanizing force behind our organization’s founding in 2012. Since then, he sat on our board for more than 10 years and has been our constant inspiration. We only hope we can live up to his righteous example.

Our organization plans to honor our dear friend by carrying the torch for two of the causes he championed for much of his life: reform of the U.S. government’s secrecy system and unconstitutional abuse of the Espionage Act. Recently we announced the creation of the Daniel Ellsberg Chair on Government Secrecy, which aims to tackle those two issues with the same passion, rigor, eloquence, and intellectual honesty that he embodied.

We’ll have more news on that front soon. In the meantime, our thoughts are with his wonderful wife Patricia, his children Robert, Mary, and Michael, and the countless people whose lives he touched, both in person and from afar.

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

Press freedom and civil liberties groups nationwide expressed their disappointment at the conviction by a jury of Asheville Blade journalists Matilda Bliss and Veronica Coit for violating a park curfew by recording police evicting a homeless encampment on Christmas night of 2021.

“We don’t have secret police in the United States,” said Seth Stern, Director of Advocacy at Freedom of the Press Foundation (FPF). “Officers are not entitled to operate without press and public scrutiny just because it’s dark out. The Constitution requires that journalists be given sufficient access to public land to report the news, no matter the time.”

The judge reportedly instructed the jury not to consider the constitutionality of the charges against Coit and Bliss. He orally denied their motion to dismiss on First Amendment grounds (a written ruling will follow). He was wrong, as the Department of Justice made clear the same day as the verdict in its report on its investigation of the Minneapolis Police Department: “Blanket enforcement of dispersal orders and curfews against press violates [the First Amendment] because they foreclose the press from reporting.”

“We are gravely concerned by the jury’s guilty verdict in the trial of Asheville Blade reporters Matilda Bliss and Veronica Coit,” said Katherine Jacobsen, U.S. and Canada program Coordinator for the Committee to Protect Journalists. “The two journalists should never have been on trial. They were performing a public service and recording police activity. Their conviction is a blatant violation of their First Amendment rights, and their convictions set an unsettling precedent for journalists in Asheville and the nation.”

Danielle Coffey, News/Media Alliance President & CEO, stated, “It is of utmost importance that we protect journalists against being prosecuted for simply doing their jobs. Anything less jeopardizes the vital reporting on matters of public concern.”

Muneeba Talukder, Staff Attorney at the ACLU of North Carolina, added: “The conviction of Asheville Blade journalists Matilda Bliss and Veronica Coit for trespassing highlights a concerning trend that undermines press freedom and civil liberties. It is disheartening to witness the government's attempt to suppress journalists' ability to report the news and hold those in power accountable. The Constitution guarantees journalists sufficient access to public spaces to fulfill their crucial role in society, regardless of the time or circumstances. We must recognize that by punishing journalists for simply doing their jobs, we restrict people's access to information therefore hindering their ability to stay informed about important matters.”

Coit and Bliss have already filed a notice of appeal. The appellate court will review, among other evidence, body camera footage showing that police arrested the journalists so that they would not be able to record the evictions.

“Coit and Bliss had a constitutionally protected right to cover a police action,” said Clayton Weimers, Executive Director of RSF’s US Bureau. “In fact, it is their professional obligation as journalists to perform this vital watchdog function in order to hold government actors accountable. This decision is a serious blow to press freedom in North Carolina.”

“Even if Coit and Bliss eventually win, the people of Asheville and surrounding Buncombe County have already lost,” Stern said. “They gain absolutely nothing from their government weaponizing curfew laws to punish journalists for doing their jobs. The journalists have never been accused of harming anyone and should have been commended, not tried on the taxpayers’ dime, for spending their Christmas attempting to inform the public.”

Almost 50 organizations, led by FPF and CPJ, previously sent a letter to Asheville authorities urging them to drop the case.

The FBI and other intelligence agencies use Section 702 for warrantless backdoor searches on data of Americans, including journalists.

Fast on the heels of revelations that the FBI misused a controversial surveillance law that gives it access to huge amounts of Americans’ data, several senators — both Republicans and Democrats — say they’re fed up with intelligence agencies’ excuses. Congress is right to be skeptical of the law, known as Section 702 of FISA, which the FBI has used to spy on Black Lives Matter activists and others. But Congress doesn’t have to limit itself to railing against the law’s abuse. It should use Section 702’s coming expiration to make critical reforms and rein in rampant warrantless spying on Americans, including journalists.

Section 702 allows intelligence agencies to conduct “backdoor searches”: accessing the communications of Americans without a warrant, as long as they’re talking to someone outside the U.S. While Section 702 requires intelligence agencies to “target” a foreigner for intelligence collection, once Americans’ communications data is swept up in their surveillance, the agencies can search it without a warrant for any reason. As a result, despite being touted as a national security measure focused on foreigners, Section 702 has become a powerful tool for domestic spying. It’s routinely used in cases that have nothing to do with national security. The FBI has even used Section 702 data for searches targeting journalists.

Unsurprisingly, the FBI and other intelligence agencies oppose significant changes to Section 702. Instead, the FBI recently suggested just a few weak reforms, such as a “three-strike policy” for searches that break the rules and including FISA compliance in senior officials’ performance reviews.

Suggesting that the FBI police itself is laughable in the face of the history of vast warrantless surveillance of Americans and other surveillance abuse. Self-regulation won’t work. For proof, look no further than the approximately 200,000 backdoor searches the FBI conducted in 2022. Using the FBI’s own compliance rate, even after its latest internal “reforms,” that includes more than 8,000 searches that violate its own rules.

Instead, Congress should adopt the reforms recommended by a coalition of more than 20 privacy, civil rights and civil liberties organizations, including Freedom of the Press Foundation. It must close the backdoor searches loophole by requiring the government to get a warrant before it can search the massive Section 702 data trove for Americans’ communications. It also must narrow Section 702’s parameters to target genuine national security needs. Separate from Section 702 reform, passing the PRESS Act would also help protect journalists from surveillance of their electronic communications data.

In addition, Congress should increase transparency of surveillance activities under Section 702 and another surveillance authority, Executive Order 12333. These surveillance schemes operate as a black box, with little information available to the public, lawmakers and courts. Even the court opinion revealing the FBI’s abuse of Section 702 to monitor BLM activists didn’t come out for more than a year after the opinion was issued, despite a law requiring it to be made public.

Such lack of transparency makes news reporting about surveillance abuses particularly difficult, and journalists must often rely on information revealed by whistleblowers to inform the public. The secrecy allows problems like overclassification and faulty legal interpretations of surveillance authority to run rampant, and surveillance abuses to continue, with little oversight or accountability.

Without changes to Section 702 and other surveillance authorities, intelligence agencies will continue to abuse their power to spy on Americans. For too long, these agencies have been permitted to surveil journalists, activists, politicians and anyone else they consider suspect. Congress should put an end to that by only agreeing to reauthorize Section 702 with these essential changes.

Prohibiting public scrutiny of research isn’t the right response to concerns about academic freedom.

It was a problematic project to monitor social media that came to light thanks to public records. The Department of Homeland Security hired the University of Alabama to research and develop a way to flag possible “pro-terrorists accounts” on social media. Under the project, dubbed “Night Fury,” UA researchers were tasked with developing automatic “risk scores” for social media accounts and delivering lists of accounts identified as pro-terrorist to DHS. DHS ended the contract in 2019, and a later inspector general’s report revealed allegations of potential privacy violations related to Night Fury.

The public learned of UA’s involvement in Night Fury because of a federal Freedom of Information Act request by the Brennan Center. But information like this may never have become public in several states that have passed laws or otherwise restricted public access to research records from public institutions of higher learning.

Most recently, Connecticut considered (but thankfully didn’t pass) a “science secrecy” bill that would have excluded public colleges’ and universities’ research records from the state’s public records law.

These kinds of public records exemptions undermine transparency and government accountability on clearly newsworthy topics. Night Fury is just one example. Concerns about abusive requests and their impact on academic freedom are legitimate, but prohibiting public scrutiny of academic research isn’t the right response.

Science secrecy exemptions undermine the public’s right to know

There’s a long track record of journalists and watchdog groups using public records laws to expose wrongdoing at public academic research programs. For example, in 2015, The New York Times and the consumer health watchdog organization U.S. Right to Know used freedom of information requests to expose Monsanto and others recruiting and incentivizing researchers to lobby in favor of genetically modified foods. Emails obtained through the requests even showed a University of Florida professor using — verbatim — answers drafted by a biotech public relations firm in response to questions about genetically modified food.

Yet under science secrecy exemptions, most records shedding light on research would never be disclosed. Even records showing harassment, misconduct or unethical behavior could arguably also be withheld.

We can protect academic freedom without secrecy

Supporters of science secrecy exemptions argue that freedom of information laws have been weaponized to harass and smear researchers. In one notorious example, climate change skeptics targeted University of Virginia scientist Michael Mann with public records requests, and Mann also faced relentless harassment, a government investigation, purposeful distortions of his research and death threats. More recently, researchers studying online disinformation have been targeted with broad public records requests, congressional subpoenas and online harassment.

Harassment and threats against researchers that rise to the level of criminality are unacceptable and can be prosecuted. But when it comes to responding to the separate issue of abusive public records requests, there are other methods besides science secrecy exemptions to ensure researchers aren’t discouraged from exploring new or controversial ideas.

First, universities and colleges should allocate more staff and money to help researchers gather and review records, rather than placing the burden of responding to records requests on researchers alone. It’s no excuse for academic institutions to say they can’t handle the work of responding to requests. If we let the government use burden as a convenient excuse, we’ll eventually lose access to most records.

In addition, when bad faith requesters misconstrue or purposefully mischaracterize documents, the best response is to correct the record with more information. Colleges and universities should respond to attempts to use public records to gin up controversies by fairly investigating the claims and debunking them when they’re wrong, not firing or disciplining researchers at the first whiff of controversy. Academic freedom should also be safeguarded by strong employment protections.

Finally, existing exemptions to many open records laws for drafts and early deliberations, although themselves subject to abuse, should eliminate the need for additional overbroad exemptions specifically for researchers.

Public records laws allow journalists to inform the public and monitor the government and that includes public colleges and universities. Losing public access to research records from public colleges and universities doesn’t have to be the price we pay to protect academic freedom and researchers.

Freedom of the Press Foundation (FPF) is highly disappointed by the UK High Court’s rejection of Julian Assange’s appeal of his extradition to the United States on Espionage Act charges.

While Assange may still have additional legal remedies available to avoid extradition, it seems increasingly likely that it will be up to President Joe Biden, who recently proclaimed that “journalism is not a crime,” to do the right thing and end this Trump-era prosecution.

“The idea of Assange or anyone being tried in a U.S. court for obtaining and publishing confidential documents the same way investigative reporters do every day should be terrifying to all Americans,” said FPF Director of Advocacy Seth Stern.

As FPF Executive Director Trevor Timm has previously explained, anyone who values the First Amendment should staunchly oppose these charges no matter what they think of Assange or Wikileaks. The case is not about one individual, it’s about freedom of the press, and the government weaponizing the Espionage Act to criminalize routine newsgathering.

“If Biden lets this case proceed, future administrations will surely use the precedent of the Assange prosecution, and the unconstitutional authority to criminalize newsgathering that Biden is claiming, to go after journalists they don’t like,” said Stern.

“It’s time for Biden to drop this case and show the world he’s serious about press freedom.”

Body camera footage released following a court petition by Freedom of the Press Foundation and the ACLU of North Carolina shows that Matilda Bliss was wearing a press badge when arrested on Christmas night of 2021. They also repeatedly told police they were a journalist. But a warrant application omits that fact, enabling authorities to search Bliss's phone in apparent violation of federal law.

We’ve written plenty about the case against Asheville Blade journalists Veronica Coit and Matilda Bliss for covering an eviction of a homeless encampment. The prosecution’s theory — that, by scheduling a highly newsworthy operation at a public park for after closing time, police can operate in secret and arrest any journalist who attempts to record them — is absurd and alarming. A coalition of almost 50 press rights and civil liberties organizations and media publishers has condemned the charges.

But it appears the prosecutions (the journalists are scheduled for a jury trial on June 12) may only be the tip of the iceberg when it comes to Asheville authorities’ hostility to press and speech freedoms. Bliss recently obtained a copy of a nearly 1.5-year-old warrant to search their phone, which was seized during the 2021 Christmas night arrests. It’s clear from body camera footage that arresting officers were well aware that Bliss and Coit were members of the press, but the warrant application conspicuously fails to mention that fact. Why leave it out?

Perhaps because the federal Privacy Protection Act of 1980 prohibits investigators from searching journalists’ equipment for evidence of alleged crimes by others that they obtained in the course of newsgathering, which is exactly what the warrant application sought to accomplish. Without knowing Coit and Bliss are journalists, the judge couldn’t apply the PPA and refuse to issue the warrant. The Blade pointed out that Asheville authorities can’t claim ignorance of the PPA — here’s the City Attorney, Brad Branham, discussing it in reference to this same case.

Could the omission have resulted from incompetence as opposed to malice? Sure — there appears to be plenty of both to go around in Chief David Zack’s department. But Asheville police and prosecutors have squandered any entitlement to the benefit of the doubt.

Case in point, the warrant application cites Bliss’s alleged links to “extremist anarchist groups” as justification for the illegal phone search. The primary evidence of Bliss’s “extremism” is posting to a publicly available social justice event calendar. Of course, it’s perfectly lawful to be an anarchist — and to attend and publicize social justice events — and the warrant application does not contend that Bliss was involved in anything illegal. But, apparently, the police department considers any views they don’t like “extremism.” It’s seriously concerning, and blatantly unconstitutional, for the government to treat merely holding unpopular political views as a sufficient basis to justify surveillance of journalists — or of anyone, for that matter.

Blatant unconstitutionality appears to be the order of the day in Asheville. Bliss and Coit recently learned that, after their arrests, police, operating outside the judicial system, banned them from city parks for a year. To the best of our knowledge, no court has ever considered the constitutional implications of police officers extrajudicially banning journalists from public land for doing their jobs, because no prior police department had the chutzpah to try it. But if the tactic ever got in front of any decent judge they would presumably find not only unlawful retaliation for First Amendment speech but an unconstitutional prior restraint — “the most serious and the least tolerable infringement on First Amendment rights.” The ban goes a step further than traditional prior restraints barring publication by barring journalists from even finding news to publish.

And park bans seem to be a favorite tool in Asheville’s speech suppression tool kit. Police also banned several mutual aid workers and protesters from city parks after charging them with “felony littering” for bringing supplies and other items to demonstrations at the same homeless encampment. Those bans are the subject of a lawsuit by the ACLU of North Carolina. Even the city’s own Solid Waste Manager expressed dismay that authorities would employ the obscure felony littering law against local do-gooders while consistently ignoring the kinds of large scale illegal dumping it was actually meant to address.

Rather than heeding the overwhelming calls to drop the case against Coit and Bliss and reckon with their disturbing pattern of anti-speech behavior, officials plan to proceed with the June 12 jury trial. The journalists moved to dismiss the case, arguing that police scheduled the sweep, “which they knew to be controversial and of great public interest, for 10 p.m. on Christmas night specifically to weaponize the curfew against reporters."

A judge declined to throw out the case before trial, opting to let the trial judge determine whether the First Amendment permits prosecuting journalists for breaking the city’s park curfew when it's the only way to cover the news (officers admit reporters could not have observed them from outside the park). The trial judge should dismiss the case, and the journalists should sue — although we don’t envy the lawyer who has to fit so many First Amendment violations into one court complaint.