Freedom of the Press

FOR IMMEDIATE RELEASE:

Oct. 9, 2024 — Florida Gov. Ron DeSantis’ administration sent a letter threatening television stations that air ads supporting abortion rights with criminal liability under the state’s “sanitary nuisance” law, which could include up to 60 days in jail.

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

“This is the latest proof that there is no limit to how low DeSantis will stoop to censor free speech and punish dissent. It comes on the heels of his efforts to rewrite defamation law to make it easier for the rich and powerful to bankrupt their critics, his Stop WOKE Act stunt, and other similarly unconstitutional nonsense.

“A governor who is confident in his policies and secure in his leadership would welcome debate and correct statements he believes are misleading rather than trying to weaponize trash disposal laws against the free press. But DeSantis is not that governor. His administration’s conduct would be silly if it weren’t such a transparent bully tactic.

“Floridians care about the First Amendment, which is why DeSantis’ outrageous censorship campaigns keep failing. We hope the news outlets he targets will not only ignore him but loudly shame him.”

Florida Gov. Ron DeSantis at a September press conference.

FOR IMMEDIATE RELEASE:

Oct. 9, 2024 — Florida Gov. Ron DeSantis’ administration sent a letter threatening television stations that air ads supporting abortion rights with criminal liability under the state’s “sanitary nuisance” law, which could include up to 60 days in jail.

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

“This is the latest proof that there is no limit to how low DeSantis will stoop to censor free speech and punish dissent. It comes on the heels of his efforts to rewrite defamation law to make it easier for the rich and powerful to bankrupt their critics, his Stop WOKE Act stunt, and other similarly unconstitutional nonsense.

“A governor who is confident in his policies and secure in his leadership would welcome debate and correct statements he believes are misleading rather than trying to weaponize trash disposal laws against the free press. But DeSantis is not that governor. His administration’s conduct would be silly if it weren’t such a transparent bully tactic.

“Floridians care about the First Amendment, which is why DeSantis’ outrageous censorship campaigns keep failing. We hope the news outlets he targets will not only ignore him but loudly shame him.”

The Heritage Foundation sends a lot of Freedom of Information Act requests about progressive issues, from climate change to policies on diversity, equity, and inclusion, and it’s causing a stir.

A recent ProPublica article detailed the FOIA campaign, which is allegedly part of Project 2025’s effort to identify agency officials for potential firing.

ProPublica, which obtained the information for its article through its own FOIA requests, suggests that the hundreds of Heritage Foundation requests may intimidate public officials and prevent FOIA offices from effectively responding to “legitimate” requests by clogging the FOIA queues.

Reporting how the Heritage Foundation may use FOIA responses to gut the federal workforce is a worthy endeavor. Implying that FOIAs are illegitimate when the goal is partisan is a slippery slope that could give other agencies an excuse to deny requests they don’t like.

Most importantly, it is not the requesters' fault, even if they are frequent requesters, that the government can’t effectively search and review large amounts of records.

A few key points:

• Federal employees’ records that detail their work should be fair game for FOIA requests.
• Many of the requests would have been unnecessary if agencies proactively posted information like they are supposed to.
• Even a large FOIA project like the Heritage Foundation’s is not the reason the entire federal government’s FOIA backlog increases every year.

Implying that FOIAs are illegitimate when the goal is partisan is a slippery slope that could give other agencies an excuse to deny requests they don’t like.

Maligning the records seeker

Blaming FOIA requesters for the worsening of the FOIA processing landscape is not new.

Jason Leopold, a national security reporter and prolific FOIA requester, was once called a “FOIA terrorist” for the number of FOIA requests he filed. He’s been repeatedly cited by agencies as an example of why they can’t process other requests and there need to be more limits around requesters.

MuckRock, a nonprofit that makes it easier for citizens and freelance journalists to file requests, has been similarly maligned by agency FOIA officials.

And while “bad faith requesters” do exist, my colleague Caitlin Vogus recently wrote that the best way to counter them “is to correct the record with more information.”

Most agencies don’t respond by releasing more information, and instead continue to ignore requirements for proactive posting.

FOIA clearly states that agencies: 1) must publish items of public interest before anyone files a FOIA for the information, and 2) must publicly post records that are frequently requested. Most agencies struggle to consistently meet these requirements, if they meet them at all.

The monthly calendars of high-level officials requested by the Heritage Foundation are an example of records that should already have been public. Top officials’ calendars are often requested — by all sorts of organizations and individuals. If agencies had proactively posted the calendars, this would have saved them from processing hundreds of Heritage Foundation FOIAs.

Flooding the FOIA office?

One of the criticisms hurled at the Heritage Foundation — and journalists like Leopold — is that their requests are so voluminous that agencies can’t respond to other requesters.

It’s true that agencies struggle to respond to FOIA requests. Every year, the Justice Department reports that the government-wide FOIA backlog has increased.

It’s also true that large, complex requests take longer to process than simple requests. But large requests are allowed as long as it’s clear what the requester is asking for.

The more important question to ask is why can’t agencies effectively process requests for large amounts of information.

There are several reasons:

• Records are still reviewed manually even though it is impossible for human reviewers to keep up with exponentially increasing digital records.
• Many FOIA offices don’t conduct records searches because they don’t have access to the records, instead asking the person whose records are being sought or an IT department to do it. This causes delays if non-FOIA officials don’t prioritize the search, and means a FOIA officer doesn’t always know how other officials are conducting a search.
• Most FOIA funding is tight and comes from other parts of an agency’s budget. This impacts software purchases and decisions integral to the FOIA process. For example, agencies usually pay for third-party software to redact documents. Software vendors charge agencies based on the amount of documents they store during the review process. This means that agencies pay more money to process larger requests. If a FOIA office doesn’t have enough funding, this expense could be an incentive to deny large requests outright.
• These factors help contribute to a culture of secrecy over disclosure, with FOIA offices spending time and resources needlessly denying FOIAs and/or applying unnecessary exemptions.

Now what?

FOIA offices are underwater, that’s clear. The solution is equally clear. Agencies should post more information proactively and be allocated the funding necessary to invest in commonsense search and review tools.

FOIA requesters and journalists who write about FOIA problems play an important role, too — keeping the pressure on agencies to improve rather than blaming other requesters.

Even frequent requesters like the Heritage Foundation are not at fault if the government can’t effectively search and review large amounts of records.

The Heritage Foundation sends a lot of Freedom of Information Act requests about progressive issues, from climate change to policies on diversity, equity, and inclusion, and it’s causing a stir.

A recent ProPublica article detailed the FOIA campaign, which is allegedly part of Project 2025’s effort to identify agency officials for potential firing.

ProPublica, which obtained the information for its article through its own FOIA requests, suggests that the hundreds of Heritage Foundation requests may intimidate public officials and prevent FOIA offices from effectively responding to “legitimate” requests by clogging the FOIA queues.

Reporting how the Heritage Foundation may use FOIA responses to gut the federal workforce is a worthy endeavor. Implying that FOIAs are illegitimate when the goal is partisan is a slippery slope that could give other agencies an excuse to deny requests they don’t like.

Most importantly, it is not the requesters' fault, even if they are frequent requesters, that the government can’t effectively search and review large amounts of records.

A few key points:

• Federal employees’ records that detail their work should be fair game for FOIA requests.
• Many of the requests would have been unnecessary if agencies proactively posted information like they are supposed to.
• Even a large FOIA project like the Heritage Foundation’s is not the reason the entire federal government’s FOIA backlog increases every year.

Implying that FOIAs are illegitimate when the goal is partisan is a slippery slope that could give other agencies an excuse to deny requests they don’t like.

Maligning the records seeker

Blaming FOIA requesters for the worsening of the FOIA processing landscape is not new.

Jason Leopold, a national security reporter and prolific FOIA requester, was once called a “FOIA terrorist” for the number of FOIA requests he filed. He’s been repeatedly cited by agencies as an example of why they can’t process other requests and there need to be more limits around requesters.

MuckRock, a nonprofit that makes it easier for citizens and freelance journalists to file requests, has been similarly maligned by agency FOIA officials.

And while “bad faith requesters” do exist, my colleague Caitlin Vogus recently wrote that the best way to counter them “is to correct the record with more information.”

Most agencies don’t respond by releasing more information, and instead continue to ignore requirements for proactive posting.

FOIA clearly states that agencies: 1) must publish items of public interest before anyone files a FOIA for the information, and 2) must publicly post records that are frequently requested. Most agencies struggle to consistently meet these requirements, if they meet them at all.

The monthly calendars of high-level officials requested by the Heritage Foundation are an example of records that should already have been public. Top officials’ calendars are often requested — by all sorts of organizations and individuals. If agencies had proactively posted the calendars, this would have saved them from processing hundreds of Heritage Foundation FOIAs.

Flooding the FOIA office?

One of the criticisms hurled at the Heritage Foundation — and journalists like Leopold — is that their requests are so voluminous that agencies can’t respond to other requesters.

It’s true that agencies struggle to respond to FOIA requests. Every year, the Justice Department reports that the government-wide FOIA backlog has increased.

It’s also true that large, complex requests take longer to process than simple requests. But large requests are allowed as long as it’s clear what the requester is asking for.

The more important question to ask is why can’t agencies effectively process requests for large amounts of information.

There are several reasons:

• Records are still reviewed manually even though it is impossible for human reviewers to keep up with exponentially increasing digital records.
• Many FOIA offices don’t conduct records searches because they don’t have access to the records, instead asking the person whose records are being sought or an IT department to do it. This causes delays if non-FOIA officials don’t prioritize the search, and means a FOIA officer doesn’t always know how other officials are conducting a search.
• Most FOIA funding is tight and comes from other parts of an agency’s budget. This impacts software purchases and decisions integral to the FOIA process. For example, agencies usually pay for third-party software to redact documents. Software vendors charge agencies based on the amount of documents they store during the review process. This means that agencies pay more money to process larger requests. If a FOIA office doesn’t have enough funding, this expense could be an incentive to deny large requests outright.
• These factors help contribute to a culture of secrecy over disclosure, with FOIA offices spending time and resources needlessly denying FOIAs and/or applying unnecessary exemptions.

Now what?

FOIA offices are underwater, that’s clear. The solution is equally clear. Agencies should post more information proactively and be allocated the funding necessary to invest in commonsense search and review tools.

FOIA requesters and journalists who write about FOIA problems play an important role, too — keeping the pressure on agencies to improve rather than blaming other requesters.

For months now, pandering U.S. lawmakers have their sights set on silencing nonprofit organizations — potentially including media outlets and press freedom groups.

They haven’t gotten their way yet but the fight’s not over. Freedom of the Press Foundation (FPF) has repeatedly joined plenty of other organizations to publicly shame these anti-speech officials for their cynical attempts to weaponize the IRS against opinions they don’t like.

And the resistance seems to be working — at least so far.

Bill to censor nonprofits stalls twice

Earlier this year, the House passed a bill that would allow the secretary of the Treasury to revoke nonprofits’ tax-exempt status, without due process and using secret evidence, by deeming them supporters of terrorists.

We wrote for The Intercept last spring about the implications for nonprofit media, especially in light of recent letters from lawmakers baselessly accusing outlets that are critical of Israel of supporting terror. Others wrote about the potential for the powers contemplated by the bill to be abused against environmental organizations, student groups, and others.

The Council on American-Islamic Relations led a letter signed by 135 organizations (including FPF) objecting to the bill in May. The ACLU also sent its own letter. And the bill died in the Senate soon after, when efforts to attach it to the Federal Aviation Administration’s reauthorization legislation failed (no, we don’t know what the bill had to do with aviation).

It returned in September. This time, lawmakers tried attaching it to legislation granting tax benefits to American hostages and held a hearing on Sept. 11, effectively daring anyone to question a purported anti-terrorism bill on that day.

That backfired when The Washington Post called out their willingness to undermine the chances of the hostage bill for the sake of censoring nonprofits. It also further galvanized the opposition among nonprofits, with the ACLU sending another letter to House leadership, signed by over 120 organizations, again including FPF. The bill again stalled.

Censorial lawmakers resort to Plan B

Unable to legislate new power to silence nonprofits, lawmakers are claiming they already can under existing authority, citing decades-old IRS guidance on nonprofits that support criminality.

Republican House Ways and Means Committee Chair Jason Smith sent a letter on Sept. 24, baselessly demanding the IRS revoke the nonprofit tax-exempt status of 15 organizations that advocate for Palestinian human rights. Speaker of the House Mike Johnson tweeted the letter the next day, tagging many of the organizations and further threatening them on behalf of House Republicans.

The organizations named in the letter weren’t news outlets, but given that Smith didn’t cite any supposedly illegal activities besides encouraging dissent (the theory, presumably, is that the organizations are on the hook for any lawlessness that takes place at a protest they promote), it’s not hard to imagine similar arguments against news outlets that platform similar views.

We once again joined the Council on American-Islamic Relations and 100 other groups to admonish Smith and Johnson for their disregard of the First Amendment. Calling their tactics “reminiscent of the McCarthy era,” the letter notes that their “bad-faith referral to the IRS is not based on any legitimate concerns of criminal conduct by these organizations. Instead, it stems from your personal discomfort with their constitutionally protected activities.”

It goes on to note the hypocrisy behind the call for censorship, as Republicans in Congress have been quick to accuse the IRS and other federal agencies of unfairly investigating First Amendment activity — but only when they like the message of those speaking.

The groups’ letter also warns against further attempts to advance this flawed legislation or similar bills, which would “undermine fundamental due process protections and would empower the government to target civil rights, humanitarian, journalistic, and advocacy organizations based on their political positions.”

Although efforts to push back against these outrageous assaults on nonprofits seem to have been successful so far, it’s clear they have staying power. And while the Smith letter was Republican-led, Democrats joined in pushing the legislation through the House — meaning this nonsense will likely persist no matter how the November election goes.

Any nonprofits, media outlets, or free speech advocates that haven’t spoken up yet should not let the next opportunity pass them by.

House Speaker Mike Johnson speaks to reporters on Sept. 25, the same day he posted on social media threatening nonprofits with revocation of their tax-exempt status.

For months now, pandering U.S. lawmakers have their sights set on silencing nonprofit organizations — potentially including media outlets and press freedom groups.

They haven’t gotten their way yet but the fight’s not over. Freedom of the Press Foundation (FPF) has repeatedly joined plenty of other organizations to publicly shame these anti-speech officials for their cynical attempts to weaponize the IRS against opinions they don’t like.

And the resistance seems to be working — at least so far.

Bill to censor nonprofits stalls twice

Earlier this year, the House passed a bill that would allow the secretary of the Treasury to revoke nonprofits’ tax-exempt status, without due process and using secret evidence, by deeming them supporters of terrorists.

We wrote for The Intercept last spring about the implications for nonprofit media, especially in light of recent letters from lawmakers baselessly accusing outlets that are critical of Israel of supporting terror. Others wrote about the potential for the powers contemplated by the bill to be abused against environmental organizations, student groups, and others.

The Council on American-Islamic Relations led a letter signed by 135 organizations (including FPF) objecting to the bill in May. The ACLU also sent its own letter. And the bill died in the Senate soon after, when efforts to attach it to the Federal Aviation Administration’s reauthorization legislation failed (no, we don’t know what the bill had to do with aviation).

It returned in September. This time, lawmakers tried attaching it to legislation granting tax benefits to American hostages and held a hearing on Sept. 11, effectively daring anyone to question a purported anti-terrorism bill on that day.

That backfired when The Washington Post called out their willingness to undermine the chances of the hostage bill for the sake of censoring nonprofits. It also further galvanized the opposition among nonprofits, with the ACLU sending another letter to House leadership, signed by over 120 organizations, again including FPF. The bill again stalled.

Censorial lawmakers resort to Plan B

Unable to legislate new power to silence nonprofits, lawmakers are claiming they already can under existing authority, citing decades-old IRS guidance on nonprofits that support criminality.

Republican House Ways and Means Committee Chair Jason Smith sent a letter on Sept. 24, baselessly demanding the IRS revoke the nonprofit tax-exempt status of 15 organizations that advocate for Palestinian human rights. Speaker of the House Mike Johnson tweeted the letter the next day, tagging many of the organizations and further threatening them on behalf of House Republicans.

The organizations named in the letter weren’t news outlets, but given that Smith didn’t cite any supposedly illegal activities besides encouraging dissent (the theory, presumably, is that the organizations are on the hook for any lawlessness that takes place at a protest they promote), it’s not hard to imagine similar arguments against news outlets that platform similar views.

We once again joined the Council on American-Islamic Relations and 100 other groups to admonish Smith and Johnson for their disregard of the First Amendment. Calling their tactics “reminiscent of the McCarthy era,” the letter notes that their “bad-faith referral to the IRS is not based on any legitimate concerns of criminal conduct by these organizations. Instead, it stems from your personal discomfort with their constitutionally protected activities.”

It goes on to note the hypocrisy behind the call for censorship, as Republicans in Congress have been quick to accuse the IRS and other federal agencies of unfairly investigating First Amendment activity — but only when they like the message of those speaking.

The groups’ letter also warns against further attempts to advance this flawed legislation or similar bills, which would “undermine fundamental due process protections and would empower the government to target civil rights, humanitarian, journalistic, and advocacy organizations based on their political positions.”

Although efforts to push back against these outrageous assaults on nonprofits seem to have been successful so far, it’s clear they have staying power. And while the Smith letter was Republican-led, Democrats joined in pushing the legislation through the House — meaning this nonsense will likely persist no matter how the November election goes.

Any nonprofits, media outlets, or free speech advocates that haven’t spoken up yet should not let the next opportunity pass them by.

Dear Friend of Press Freedom,

Here are some of the most important stories we’re following from the U.S. and around the world. If you enjoy reading this newsletter, please forward it to friends and family. If someone has forwarded you this newsletter, please subscribe here.

Time for Biden to declassify Khashoggi intelligence

This week marked six years since Washington Post journalist Jamal Khashoggi was brutally murdered by the Saudi Arabian government. The U.S. government has declassified some information on the murder, including its belief that Saudi Arabia's Crown Prince and Prime Minister Mohammad bin Salman approved the order to “capture or kill” Khashoggi.

But too much remains hidden, and this secrecy prevents accountability and serves to endanger other journalists. In an op-ed for The Daily Beast, Lauren Harper, Daniel Ellsberg Chair on Government Secrecy for Freedom of the Press Foundation (FPF), urged the Biden administration to declassify more intelligence on Khashoggi’s murder.

Declassification would prioritize the public’s right to know over America’s relationship with an autocratic ruler. You can read the full op-ed here.

Sheriff in Texas extorts journalist with his own equipment

Back in 2021, sheriff’s deputies in Fort Bend County, Texas, illegally arrested citizen journalist Justin Pulliam for filming them conducting a mental health check. They also seized his phone and equipment, in clear violation of the Privacy Protection Act of 1980.

The charges against Pulliam were dropped in May, but he recently told the U.S. Press Freedom Tracker — a project of FPF — that the phone and equipment illegally seized from him when he was arrested has yet to be returned. The reason? He declined to sign a waiver releasing the sheriff’s office from liability in order to get back his property.

Read more about this, and the sheriff’s other unconstitutional acts, on our website. The officers involved shouldn’t be released from liability -– they should be released from their jobs.

Frivolous SLAPPs stalk journalists

A small nonprofit newspaper in Wisconsin recently won a legal victory against a frivolous defamation lawsuit. But the case shows that sometimes winning isn’t enough.

The lawsuit against the Wausau Pilot & Review is a prime example of how resentful subjects of reporting can weaponize the legal system to attack the First Amendment. The costs of SLAPPs, or strategic lawsuits against public participation, can be staggering.

We explain on our website that without strong laws that protect against SLAPPs at both the state and federal level, even journalists who win can lose.

Release Camp David documents for President Carter’s 100th birthday

Former President Jimmy Carter turned 100 this week. A fitting birthday present would be for the CIA to fully declassify its records on the 1978 Camp David Accords.

Releasing the full record of the peace talks between Israel and Egypt, one of the highlights of his administration, would not only commemorate Carter’s foreign policy legacy, it would add important context for policymakers as escalation continues between Israel and its neighbors.

Lauren Harper has more on our website about why it’s time for this unnecessary secrecy to end.

Lawsuit seeks transparency on Assange prosecution

The U.S. government’s prosecution of Julian Assange ended earlier this year, but plenty of questions about its decade-plus pursuit of the WikiLeaks founder remain unanswered.

A new Freedom of Information Act lawsuit — filed against the FBI and Department of Justice by our friends at Defending Rights and Dissent — seeks to change that.

We held an X Space discussion with DRAD Policy Director Chip Gibbons and Kevin Gosztola, editor of The Dissenter and author of “Guilty of Journalism: The Political Case Against Julian Assange,” to discuss the secrecy surrounding Assange’s case. Read about it or listen here.

What we’re reading

Heritage Foundation staffers flood federal agencies with thousands of information requests (ProPublica). The problem isn’t how many FOIA requests the Heritage Foundation filed, or their subject. It’s that government agencies are incapable of effectively searching and reviewing large amounts of records. Agencies like the CIA and FBI don’t need more help denying requests they don’t like and requesters they deem “vexatious.”

I'm a journalist from Gaza. Israel's recent Ramallah closure is bigger than Al Jazeera (MSNBC). “By attacking journalists, whether through the bombing of their homes, as in my case, or shutting down newsrooms, as we saw in Ramallah, Israel is sending a chilling message: Telling the truth is dangerous work with a steep price.”

On Edge: What the US election could mean for journalists and global press freedom (Committee to Protect Journalists). As part of its special election report, CPJ calls on both U.S. presidential candidates to endorse the PRESS Act to protect journalists from secret surveillance and the threat of jail.

California governor vetoes bill expanding media access to prisons (The Desk). There may have been good reasons to veto this bill, but the risk of making inmates famous isn’t one of them. Journalists covering prison face countless obstacles. The dangers of the status quo far outweigh the risk of a bad guy getting 15 minutes.

Federal judge blocks police buffer zone law in media lawsuit (Indiana Capital Chronicle). Courts recognize a constitutional right to record police. But anti-transparency lawmakers have a workaround: barring people from getting close to them. These buffer laws are blatantly unconstitutional. Good for the Reporters Committee for Freedom of the Press for fighting back.

Texans’ right to free speech is under attack … again (Hill Country News). The Texas legislature held a hearing this week on the “use and misuse” of the Texas anti-SLAPP law. The law protects journalists and all Texans who want to speak freely. We must protect it.

Trump rages at Google, says he will ‘request their prosecution’ at the ‘maximum levels’ as president (Mediaite). Turns out the “maximum level” at which Google can be prosecuted for displaying news stories that Trump dislikes is exactly zero, because of the First Amendment. No politician should get to decide what news we can and can’t read.

Come see us in Washington or London

The Double Exposure Festival & Symposium, Nov. 7-10 in Washington, D.C., will have panels, workshops, and master classes focused on investigative storytelling. Don’t miss our Director of Advocacy Seth Stern, who will discuss dangerous government efforts to limit who is a journalist — such as by excluding documentary filmmakers. Purchase your tickets or passes here.

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

Follow us on TikTok and Instagram

FPF is now live on Instagram and TikTok. Click the links to follow us and see our latest posts about press freedom.

Washington Post journalist Jamal Khashoggi was brutally murdered by the Saudi Arabian government inside its consulate in Istanbul, Turkey, six years ago this week. The U.S. government has declassified some information on the murder, including its belief that Saudi Arabia's Crown Prince and Prime Minister Mohammad bin Salman approved the order to “capture or kill” Khashoggi.

But too much remains hidden, and this secrecy both prevents accountability and serves to endanger other journalists.

In an op-ed for The Daily Beast, Lauren Harper, the Daniel Ellsberg Chair on Government Secrecy for Freedom of the Press Foundation (FPF), urged the Biden administration to declassify more intelligence on Khashoggi’s murder before leaving the White House. Key documents that should be released include records showing whether or not the intelligence community met its “duty to warn” Khashoggi that his life was in danger.

Declassification would prioritize the public’s right to know over America’s relationship with an autocratic ruler, and would show the U.S. won’t tolerate threats to the press.

You can read the full op-ed here.

A man holds a poster of murdered journalist Jamal Khashoggi. The Biden administration has still not released its full file on the killing of the U.S.-based Saudi columnist.

Washington Post journalist Jamal Khashoggi was brutally murdered by the Saudi Arabian government inside its consulate in Istanbul, Turkey, six years ago this week. The U.S. government has declassified some information on the murder, including its belief that Saudi Arabia's Crown Prince and Prime Minister Mohammad bin Salman approved the order to “capture or kill” Khashoggi.

But too much remains hidden, and this secrecy both prevents accountability and serves to endanger other journalists.

In an op-ed for The Daily Beast, Lauren Harper, the Daniel Ellsberg Chair on Government Secrecy for Freedom of the Press Foundation (FPF), urged the Biden administration to declassify more intelligence on Khashoggi’s murder before leaving the White House. Key documents that should be released include records showing whether or not the intelligence community met its “duty to warn” Khashoggi that his life was in danger.

Declassification would prioritize the public’s right to know over America’s relationship with an autocratic ruler, and would show the U.S. won’t tolerate threats to the press.

You can read the full op-ed here.

Last year, an Alabama reporter and newspaper publisher were illegally arrested for reporting on a local criminal investigation and then forced to agree not to report on ongoing criminal investigations as a condition of their bail.

It was one of the most egregious press freedom violations of 2023 — a year that was full of them. We hoped that, after all the bad press Atmore authorities received (and the failure of their frivolous prosecution), others would learn their lesson and not try to extort journalists into waiving their constitutional rights.

And then the sheriff’s department of Fort Bend County, Texas, came along to crush that dream.

Want your illegally seized equipment? Sign this illegal release

Back in December 2021, deputies illegally arrested Texas citizen journalist Justin Pulliam for filming them conducting a mental health check. They also seized his phone and equipment, in clear violation of the Privacy Protection Act of 1980, which prohibits seizures of journalists’ materials except when investigating a crime unrelated to newsgathering.

The charges against Pulliam were dropped in May, but Pulliam told the U.S. Press Freedom Tracker — a project of Freedom of the Press Foundation (FPF) — that the phone and equipment illegally seized from him when he was arrested has yet to be returned. The reason? The authorities, Pulliam says, demanded he sign a waiver releasing them from liability before they would give him back his property.

The law on this is clear — government officials can’t force people to waive their First Amendment rights in order to receive a benefit from the government. And getting your own stuff back after an illegal arrest can hardly even be considered a benefit.

The officers involved shouldn’t be released from liability — they should be released from their jobs.

I wrote about this rule in August for The Hill, focusing on the Securities and Exchange Commission’s unconstitutional “gag rule” whereby the commission forces people it settles cases with to promise not to publicly dispute the allegations against them.

To drive home the dangers of allowing a rule like that to stand, I posed a hypothetical: What if instead of wealthy investment firms, the government went after ordinary citizens? “Want to get out of that traffic ticket without taking off work to go to court? You’ll need to keep quiet about those racial profiling claims.”

The hypothetical was meant to be far-fetched — but apparently it wasn’t. And it’s not the only time the sheriff has violated Pulliam’s constitutional rights.

Citizen journalists are journalists

The government is always resourceful when it comes to limiting its definition of “journalist” to exclude people it doesn’t like.

Officials said Julian Assange wasn’t a journalist because he didn’t redact documents. In Tim Burke’s case, it was because he also worked as a consultant. They’ve even taken the position that documentary filmmakers like Trevor Aaronson occupy some lower tier of journalism with diminished legal rights. Those are just some of many examples.

Add Pulliam to the list. In July 2021 — a few months before his aforementioned arrest — the same sheriff’s department excluded him from a news conference in Richmond, Texas, claiming he was not a member of the media, despite regularly reporting on local government and police on YouTube and Facebook.

Pulliam sued (good for The Institute for Justice for taking the case), and last week a judge ruled in his favor, granting him partial summary judgment and finding that the sheriff — and its departmental policy excluding social media journalists from its definition of “media” — violated his constitutional rights.

The Tracker reported that Magistrate Judge Andrew Edison – whose opinion was adopted by the lead judge on the case — called Pulliam’s journalism “unequivocally” protected by the First Amendment, regardless of his platform.

Long before social media existed, appellate courts said that 'what makes journalism journalism is not its format but its content.'

The judge said the unconstitutionality was obvious enough that officials were not entitled to qualified immunity, which protects government officials from liability when the legal rights they violate are not “clearly established.”

Unfortunately, the denial of qualified immunity is a high bar to reach. An appellate court, for instance, recently held that officers were immune from liability for the unconstitutional arrest of another Texas citizen journalist, Priscilla Villarreal, under an archaic law criminalizing solicitation of information from the government. I previously wrote about the need for the Supreme Court to right that wrong.

To state the obvious, Edison is correct. Long before social media existed, appellate courts said that “what makes journalism journalism is not its format but its content.”

And the House of Representatives endorsed Edison’s reasoning by unanimously passing the PRESS Act — the federal reporter’s shield bill that uses a functional definition of “journalist” to protect from government surveillance anyone who regularly gathers, writes, or reports the news, whether for a Substack blog, The New York Times, or YouTube.

That bill enjoys bipartisan support in the Senate but, as Roll Call recently reported, it’s being held up by outlier objections. (Side note: Tell your senator to support the PRESS Act here.)

A trifecta of First Amendment violations

It’s great news that Edison recognized that qualified immunity should not be a get-out-of-jail-free card for officials who blatantly violate journalists’ rights. But that’s only one of the sheriff’s three strikes when it comes to Pulliam’s First Amendment rights.

Strike two? The December 2021 arrest that was also covered in Pulliam’s lawsuit. The judge did not grant him summary judgment on his retaliation claim, but he can still prevail. The court acknowledged that, as we’ve written, the recent Supreme Court decision in Gonzalez v. Trevino rightly eased the burden of proving First Amendment retaliation. That case wasn’t decided yet when Pulliam briefed his summary judgment motion but he’ll have the chance to raise it at trial.

And the final, third strike: The equipment seizure, which is flagrantly unconstitutional, with or without the Gonzalez case. The attempt to twist Pulliam’s arm into signing away his legal right to sue the sheriff’s department only goes to prove that the department knew what it did was wrong and should have no claim to immunity.

The officers involved shouldn’t be released from liability — they should be released from their jobs. And if Pulliam ever does sign a release, it shouldn’t be for his own equipment. It should be for a fat settlement check.

Fort Bend County, Texas, Sheriff Eric Fagan at a news conference in January.

Last year, an Alabama reporter and newspaper publisher were illegally arrested for reporting on a local criminal investigation and then forced to agree not to report on ongoing criminal investigations as a condition of their bail.

It was one of the most egregious press freedom violations of 2023 — a year that was full of them. We hoped that, after all the bad press Atmore authorities received (and the failure of their frivolous prosecution), others would learn their lesson and not try to extort journalists into waiving their constitutional rights.

And then the sheriff’s department of Fort Bend County, Texas, came along to crush that dream.

Want your illegally seized equipment? Sign this illegal release

Back in December 2021, deputies illegally arrested Texas citizen journalist Justin Pulliam for filming them conducting a mental health check. They also seized his phone and equipment, in clear violation of the Privacy Protection Act of 1980, which prohibits seizures of journalists’ materials except when investigating a crime unrelated to newsgathering.

The charges against Pulliam were dropped in May, but Pulliam told the U.S. Press Freedom Tracker — a project of Freedom of the Press Foundation (FPF) — that the phone and equipment illegally seized from him when he was arrested has yet to be returned. The reason? The authorities, Pulliam says, demanded he sign a waiver releasing them from liability before they would give him back his property.

The law on this is clear — government officials can’t force people to waive their First Amendment rights in order to receive a benefit from the government. And getting your own stuff back after an illegal arrest can hardly even be considered a benefit.

The officers involved shouldn’t be released from liability — they should be released from their jobs.

I wrote about this rule in August for The Hill, focusing on the Securities and Exchange Commission’s unconstitutional “gag rule” whereby the commission forces people it settles cases with to promise not to publicly dispute the allegations against them.

To drive home the dangers of allowing a rule like that to stand, I posed a hypothetical: What if instead of wealthy investment firms, the government went after ordinary citizens? “Want to get out of that traffic ticket without taking off work to go to court? You’ll need to keep quiet about those racial profiling claims.”

The hypothetical was meant to be far-fetched — but apparently it wasn’t. And it’s not the only time the sheriff has violated Pulliam’s constitutional rights.

Citizen journalists are journalists

The government is always resourceful when it comes to limiting its definition of “journalist” to exclude people it doesn’t like.

Officials said Julian Assange wasn’t a journalist because he didn’t redact documents. In Tim Burke’s case, it was because he also worked as a consultant. They’ve even taken the position that documentary filmmakers like Trevor Aaronson occupy some lower tier of journalism with diminished legal rights. Those are just some of many examples.

Add Pulliam to the list. In July 2021 — a few months before his aforementioned arrest — the same sheriff’s department excluded him from a news conference in Richmond, Texas, claiming he was not a member of the media, despite regularly reporting on local government and police on YouTube and Facebook.

Pulliam sued (good for The Institute for Justice for taking the case), and last week a judge ruled in his favor, granting him partial summary judgment and finding that the sheriff — and its departmental policy excluding social media journalists from its definition of “media” — violated his constitutional rights.

The Tracker reported that Magistrate Judge Andrew Edison – whose opinion was adopted by the lead judge on the case — called Pulliam’s journalism “unequivocally” protected by the First Amendment, regardless of his platform.

Long before social media existed, appellate courts said that 'what makes journalism journalism is not its format but its content.'

The judge said the unconstitutionality was obvious enough that officials were not entitled to qualified immunity, which protects government officials from liability when the legal rights they violate are not “clearly established.”

Unfortunately, the denial of qualified immunity is a high bar to reach. An appellate court, for instance, recently held that officers were immune from liability for the unconstitutional arrest of another Texas citizen journalist, Priscilla Villarreal, under an archaic law criminalizing solicitation of information from the government. I previously wrote about the need for the Supreme Court to right that wrong.

To state the obvious, Edison is correct. Long before social media existed, appellate courts said that “what makes journalism journalism is not its format but its content.”

And the House of Representatives endorsed Edison’s reasoning by unanimously passing the PRESS Act — the federal reporter’s shield bill that uses a functional definition of “journalist” to protect from government surveillance anyone who regularly gathers, writes, or reports the news, whether for a Substack blog, The New York Times, or YouTube.

That bill enjoys bipartisan support in the Senate but, as Roll Call recently reported, it’s being held up by outlier objections. (Side note: Tell your senator to support the PRESS Act here.)

A trifecta of First Amendment violations

It’s great news that Edison recognized that qualified immunity should not be a get-out-of-jail-free card for officials who blatantly violate journalists’ rights. But that’s only one of the sheriff’s three strikes when it comes to Pulliam’s First Amendment rights.

Strike two? The December 2021 arrest that was also covered in Pulliam’s lawsuit. The judge did not grant him summary judgment on his retaliation claim, but he can still prevail. The court acknowledged that, as we’ve written, the recent Supreme Court decision in Gonzalez v. Trevino rightly eased the burden of proving First Amendment retaliation. That case wasn’t decided yet when Pulliam briefed his summary judgment motion but he’ll have the chance to raise it at trial.

And the final, third strike: The equipment seizure, which is flagrantly unconstitutional, with or without the Gonzalez case. The attempt to twist Pulliam’s arm into signing away his legal right to sue the sheriff’s department only goes to prove that the department knew what it did was wrong and should have no claim to immunity.

The officers involved shouldn’t be released from liability — they should be released from their jobs. And if Pulliam ever does sign a release, it shouldn’t be for his own equipment. It should be for a fat settlement check.

President Jimmy Carter turns 100 today. A fitting birthday present would be for the CIA to fully declassify its records on the 1978 Camp David Accords.

Camp David, one of the highlights of the Carter administration, established the framework for a peace deal between Israel and Egypt. Releasing the full record would not only commemorate Carter’s foreign policy legacy, it would add important context for policymakers as escalation continues between Israel and its neighbors.

Yet many of these documents are still overclassified.

A February 1977 National Security Council memorandum on “Arab and Israeli Reactions to US Steps in the Middle East” is a prime example of ongoing, excessive, needless secrecy. Large portions of the text are redacted, and the exemptions used to hide the information — and which should be cited — are missing.

An October 1977 memorandum on “Peace Negotiations and Israeli Coalition Politics” is similarly overclassified, as are many of the other 250 records in the collection.

It is not possible that all of this information, now almost 50 years old, must still be secret. The passage of time and the public interest in the records clearly outweigh whatever meager arguments might still exist for secrecy.

The CIA’s secrecy is even more galling when other agencies have released important Carter-era records.

The State Department this spring finally published its Foreign Relations of the United States collection on national security policymaking during the Carter administration. The FRUS is arguably the United States’ largest ongoing transparency initiative and serves as the official record of U.S. foreign policy.

The State Department is congressionally mandated to publish FRUS volumes 30 years after the events they document take place, but is regularly unable to do so because the CIA and Defense Department drag their heels in releasing information — which is why it took over 40 years for the Carter set to be published.

Historians have also worked hard to get the government to declassify Carter-era records. The indefatigable archivists at the nonprofit National Security Archive (where I previously worked) recently published a collection of 2,500 declassified high-level Carter policymaking records, covering everything from the Soviet invasion of Afghanistan to the Iran hostage crisis.

The efforts of historians and journalists are hampered not only by the CIA’s classification decisions but also by the National Archives and Records Administration’s inability to provide digital access to the Carter Presidential Library records.

As of today, NARA has only digitized 0.063% of its entire collection of Carter documents. Some of this digitization delay could be solved by giving NARA more money and better technology, but the agency also needs to reassess its priorities. Otherwise, the records from the Carter Library will be lost to future generations.

President Carter has said he wants to live long enough to vote in the 2024 election. We should hope for that, but we should also demand that the CIA and other agencies make his administration’s records available to the public.

President Carter, center, meets with Egyptian president Anwar Sadat, left, and Israeli Prime Minister Menachem Begin at Camp David in 1978.

President Jimmy Carter turns 100 today. A fitting birthday present would be for the CIA to fully declassify its records on the 1978 Camp David Accords.

Camp David, one of the highlights of the Carter administration, established the framework for a peace deal between Israel and Egypt. Releasing the full record would not only commemorate Carter’s foreign policy legacy, it would add important context for policymakers as escalation continues between Israel and its neighbors.

Yet many of these documents are still overclassified.

A February 1977 National Security Council memorandum on “Arab and Israeli Reactions to US Steps in the Middle East” is a prime example of ongoing, excessive, needless secrecy. Large portions of the text are redacted, and the exemptions used to hide the information — and which should be cited — are missing.

An October 1977 memorandum on “Peace Negotiations and Israeli Coalition Politics” is similarly overclassified, as are many of the other 250 records in the collection.

It is not possible that all of this information, now almost 50 years old, must still be secret. The passage of time and the public interest in the records clearly outweigh whatever meager arguments might still exist for secrecy.

The CIA’s secrecy is even more galling when other agencies have released important Carter-era records.

The State Department this spring finally published its Foreign Relations of the United States collection on national security policymaking during the Carter administration. The FRUS is arguably the United States’ largest ongoing transparency initiative and serves as the official record of U.S. foreign policy.

The State Department is congressionally mandated to publish FRUS volumes 30 years after the events they document take place, but is regularly unable to do so because the CIA and Defense Department drag their heels in releasing information — which is why it took over 40 years for the Carter set to be published.

Historians have also worked hard to get the government to declassify Carter-era records. The indefatigable archivists at the nonprofit National Security Archive (where I previously worked) recently published a collection of 2,500 declassified high-level Carter policymaking records, covering everything from the Soviet invasion of Afghanistan to the Iran hostage crisis.

The efforts of historians and journalists are hampered not only by the CIA’s classification decisions but also by the National Archives and Records Administration’s inability to provide digital access to the Carter Presidential Library records.

As of today, NARA has only digitized 0.063% of its entire collection of Carter documents. Some of this digitization delay could be solved by giving NARA more money and better technology, but the agency also needs to reassess its priorities. Otherwise, the records from the Carter Library will be lost to future generations.

President Carter has said he wants to live long enough to vote in the 2024 election. We should hope for that, but we should also demand that the CIA and other agencies make his administration’s records available to the public.

The U.S. government’s prosecution of Julian Assange ended earlier this year, but plenty of questions about its decade plus pursuit of the WikiLeaks founder remain unanswered.

A new Freedom of Information Act lawsuit – filed against the FBI and Department of Justice by our friends at Defending Rights and Dissent – seeks answers.

We hosted a recent conversation via X Spaces with DRAD’s policy director, Chip Gibbons, and Kevin Gosztola, author of “Guilty of Journalism: The Political Case Against Julian Assange” and editor of The Dissenter. The two discussed the need to force transparency on a dark chapter in the history of press freedom in America.

Gibbons explained that as part of Assange’s plea deal, the U.S. committed to not bringing any further charges against him for past conduct – meaning that exemptions to the Freedom of Information Act for ongoing investigations should no longer apply. And yet, the government has not complied with DRAD’s longstanding document requests.

Nobody expects an easy path forward in piercing through the layers of secrecy the government will likely invoke to deny transparency. But Gibbons hopes to obtain records that will shed some light on why the U.S. decided to put the First Amendment at risk to prosecute Assange. Assange testified today before Parliamentary Assembly of the Council of Europe that his plea deal required him to plead “guilty to journalism.”

Gibbons said he wants to give the public a behind-the-scenes view into why former President Donald Trump’s administration, and subsequently President Joe Biden’s, changed course after the Obama administration declined to prosecute Assange, preferring to use the Espionage Act against whistleblowers instead.

“I do believe there is this hard-line career intelligence faction in the FBI and the CIA and the NSA too, who have always wanted to go after Assange. … The Obama administration took this perspective of sort of maximum war on government insiders, but don't touch the government outsiders, and I know the FBI was clearly dissatisfied,” Gibbons explained.

He also wants to know why prosecutors decided to forgo other potential charges to pursue an Espionage Act theory based on WikiLeaks’ 2010 publications of documents from whistleblower Chelsea Manning. A case based on a computer hacking theory would likely not have encountered similar resistance from the press freedom community, which viewed criminalization of publishing government secrets as an existential threat to investigative journalism.

And a case based on other WikiLeaks publications – like the Vault 7 leaks – may not have provoked the same outrage from anti-war and human rights organizations as a prosecution arising from documents that exposed U.S. war crimes.

“I would be very curious to know why the decision was made in 2019 to revive the 2010 Chelsea Manning case and not the other, less politically toxic cases. … They sort of picked their politically weakest case, which I would presume was because they thought it was legally the strongest,” Gibbons said.

Gosztola added that the documents being withheld could also shed light on everything from the role of discredited informants and the FBI’s tactics in seeking witnesses to testify against Assange to what the FBI took from the Ecuadorian embassy after Assange was expelled in 2019.

Both speakers called for reform of the Espionage Act — which allows prosecution of whistleblowers and publishers of classified documents without distinguishing those who do so out of conscience to expose wrongdoing from foreign spies. Gibbons was the lead author of amendments to the act proposed by Rep. Rashida Tlaib.

Gosztola said he doesn’t trust the U.S. government’s assurances that it won’t apply to so-called “conventional” journalists the Espionage Act theory under which it charged Assange. He said the Assange case demonstrates the “willingness of the Justice Department to cross this line” and prosecute publishers, not just leakers, of government secrets.

And he said independent journalists like himself would suffer most — not just from actual Espionage Act prosecutions but from the chilling effect that comes from the prospect of one. “Someone like myself who works independently, I don't have a lawyer on hand. … So I do consider the choices that I'm making when I engage in newsgathering. I do consider what I'm going to pursue as a journalist,” he said.

The conversation was an hour-and-a-half-long deep dive into the Assange case and the secrecy surrounding it. We can’t possibly capture it all in a blog post, but you can listen to it, or read a transcript (albeit an imperfect AI-generated one) here.

WikiLeaks founder Julian Assange addresses the Council of Europe in Strasbourg, France, on Oct. 1, 2024.

The U.S. government’s prosecution of Julian Assange ended earlier this year, but plenty of questions about its decade plus pursuit of the WikiLeaks founder remain unanswered.

A new Freedom of Information Act lawsuit – filed against the FBI and Department of Justice by our friends at Defending Rights and Dissent – seeks answers.

We hosted a recent conversation via X Spaces with DRAD’s policy director, Chip Gibbons, and Kevin Gosztola, author of “Guilty of Journalism: The Political Case Against Julian Assange” and editor of The Dissenter. The two discussed the need to force transparency on a dark chapter in the history of press freedom in America.

Gibbons explained that as part of Assange’s plea deal, the U.S. committed to not bringing any further charges against him for past conduct – meaning that exemptions to the Freedom of Information Act for ongoing investigations should no longer apply. And yet, the government has not complied with DRAD’s longstanding document requests.

Nobody expects an easy path forward in piercing through the layers of secrecy the government will likely invoke to deny transparency. But Gibbons hopes to obtain records that will shed some light on why the U.S. decided to put the First Amendment at risk to prosecute Assange. Assange testified today before Parliamentary Assembly of the Council of Europe that his plea deal required him to plead “guilty to journalism.”

Gibbons said he wants to give the public a behind-the-scenes view into why former President Donald Trump’s administration, and subsequently President Joe Biden’s, changed course after the Obama administration declined to prosecute Assange, preferring to use the Espionage Act against whistleblowers instead.

“I do believe there is this hard-line career intelligence faction in the FBI and the CIA and the NSA too, who have always wanted to go after Assange. … The Obama administration took this perspective of sort of maximum war on government insiders, but don't touch the government outsiders, and I know the FBI was clearly dissatisfied,” Gibbons explained.

He also wants to know why prosecutors decided to forgo other potential charges to pursue an Espionage Act theory based on WikiLeaks’ 2010 publications of documents from whistleblower Chelsea Manning. A case based on a computer hacking theory would likely not have encountered similar resistance from the press freedom community, which viewed criminalization of publishing government secrets as an existential threat to investigative journalism.

And a case based on other WikiLeaks publications – like the Vault 7 leaks – may not have provoked the same outrage from anti-war and human rights organizations as a prosecution arising from documents that exposed U.S. war crimes.

“I would be very curious to know why the decision was made in 2019 to revive the 2010 Chelsea Manning case and not the other, less politically toxic cases. … They sort of picked their politically weakest case, which I would presume was because they thought it was legally the strongest,” Gibbons said.

Gosztola added that the documents being withheld could also shed light on everything from the role of discredited informants and the FBI’s tactics in seeking witnesses to testify against Assange to what the FBI took from the Ecuadorian embassy after Assange was expelled in 2019.

Both speakers called for reform of the Espionage Act — which allows prosecution of whistleblowers and publishers of classified documents without distinguishing those who do so out of conscience to expose wrongdoing from foreign spies. Gibbons was the lead author of amendments to the act proposed by Rep. Rashida Tlaib.

Gosztola said he doesn’t trust the U.S. government’s assurances that it won’t apply to so-called “conventional” journalists the Espionage Act theory under which it charged Assange. He said the Assange case demonstrates the “willingness of the Justice Department to cross this line” and prosecute publishers, not just leakers, of government secrets.

And he said independent journalists like himself would suffer most — not just from actual Espionage Act prosecutions but from the chilling effect that comes from the prospect of one. “Someone like myself who works independently, I don't have a lawyer on hand. … So I do consider the choices that I'm making when I engage in newsgathering. I do consider what I'm going to pursue as a journalist,” he said.

The conversation was an hour-and-a-half-long deep dive into the Assange case and the secrecy surrounding it. We can’t possibly capture it all in a blog post, but you can listen to it, or read a transcript (albeit an imperfect AI-generated one) here.

A small nonprofit newspaper in Wisconsin recently won a legal victory against a frivolous defamation lawsuit. But sometimes winning isn’t enough.

The case against the Wausau Pilot & Review is a prime example of how resentful subjects of reporting can weaponize the legal system to attack the First Amendment. Without strong laws that protect against meritless lawsuits that chill speech, known as strategic lawsuits against public participation, or SLAPPs, even journalists who win can lose.

Lawsuit thrown out, but at what cost?

Last week, a state appeals court threw out a defamation lawsuit against the Pilot & Review brought by Cory Tomczyk, a local businessman turned state senator. Tomcyzk sued the newspaper after it published a report that he had used an anti-gay slur at a county meeting.

A trial court dismissed Tomcyzk’s suit last year, but he appealed. Now, the appeals court has thrown the case out again, concluding that Tomcyzk hadn’t met the legal standard to make his case.

The Pilot & Review and its reporters should be celebrating this First Amendment victory. But because Wisconsin doesn’t have an anti-SLAPP law, their win may actually turn into a loss.

The Pilot & Review has spent nearly $200,000 on legal bills so far, according to its editor Shereen Siewert. That’s almost as much as the newspaper spends each year to run its newsroom. And Tomcyzk could appeal again, forcing the newspaper to rack up more expenses.

Those costs have a real impact on local journalism. Siewert told Wisconsin Public Radio that the newspaper “had to put hiring on hold” because of the lawsuit. The New York Times reported last year that legal expenses could put the newspaper out of business.

Anti-SLAPP laws needed in all 50 states

Thankfully the Pilot & Review has scraped by, in part because of donations. But no news outlet should have to rely on the kindness of strangers to survive a defamation lawsuit that it wins.

The costs of SLAPPs can be staggering. For instance, in 2022, the Center for Investigative Reporting received a more than $1.92 million settlement to cover its legal fees from a SLAPP plaintiff.

In California and many states, the news media and other speakers are protected by anti-SLAPP laws. But not in Wisconsin or 16 other states.

Anti-SLAPP laws give people who are sued for exercising their First Amendment rights tools to fight back. They often allow for cases to be dismissed early, before costs rise, and give winning defendants the right to recoup their legal fees. As a result, SLAPP victims are less likely to be intimidated into silence.

Anti-SLAPP laws don’t just protect the speakers. They also protect the public’s right to know. When journalists and whistleblowers have confidence that they won’t be crushed by legal costs for reporting or speaking out, more information about important issues like corruption, corporate wrongdoing, and crime makes it to the public.

That’s why we need every state — and the federal government — to pass strong anti-SLAPP protections.

Protect local nonprofit journalism with anti-SLAPP laws

Anti-SLAPP laws are particularly important for nonprofit news outlets, like the Pilot & Review, which are increasingly filling the gap in a news media ecosystem that’s been devastated by the closure of newsroom after newsroom.

Nonprofit newsrooms that operate on shoestring budgets and lack in-house legal help are especially vulnerable to SLAPPs. In 2023, the Institute for Nonprofit News reported a medium revenue of about $477,000 for its members, an amount that could be quickly exhausted by just a single SLAPP.

But even relatively larger nonprofit news outlets can be harmed by SLAPPs. ProPublica Managing Editor Charles Ornstein recently wrote about the toll of a six-year libel battle based on his reporting. The case is just one of six in which ProPublica and its journalists have been unsuccessfully sued for defamation since the news outlet was founded.

ProPublica spent hundreds of thousands of dollars to defend itself in the case based on Ornstein’s reporting, through multiple rounds of appeals. Its journalists spent “dozens of hours gathering materials and working with lawyers” that could have otherwise been spent on reporting. Ornstein was even denied a mortgage because he disclosed he was a defendant in a lawsuit.

The case was eventually thrown out under Texas’s anti-SLAPP law. But future SLAPP victims in Texas might not get the same protections. State lawmakers have repeatedly targeted the law, and this week they’ll hold a hearing that may be a step toward gutting it.

That would be a step backward, and one that could devastate Texans’ right to know about what’s happening in their communities.

Texas, Wisconsin, and every state and the federal government need strong anti-SLAPP laws that protect First Amendment rights. Without them, wealthy and powerful people and corporations will continue to use the legal system to attack the reporting that holds them to account, and journalists who face SLAPPs will be in a no-win situation.

Wisconsin is one of seventeen states without a law that protects journalists and other speakers from frivolous lawsuits meant to chill speech. At least one local newspaper is paying the price.

A small nonprofit newspaper in Wisconsin recently won a legal victory against a frivolous defamation lawsuit. But sometimes winning isn’t enough.

The case against the Wausau Pilot & Review is a prime example of how resentful subjects of reporting can weaponize the legal system to attack the First Amendment. Without strong laws that protect against meritless lawsuits that chill speech, known as strategic lawsuits against public participation, or SLAPPs, even journalists who win can lose.

Lawsuit thrown out, but at what cost?

Last week, a state appeals court threw out a defamation lawsuit against the Pilot & Review brought by Cory Tomczyk, a local businessman turned state senator. Tomcyzk sued the newspaper after it published a report that he had used an anti-gay slur at a county meeting.

A trial court dismissed Tomcyzk’s suit last year, but he appealed. Now, the appeals court has thrown the case out again, concluding that Tomcyzk hadn’t met the legal standard to make his case.

The Pilot & Review and its reporters should be celebrating this First Amendment victory. But because Wisconsin doesn’t have an anti-SLAPP law, their win may actually turn into a loss.

The Pilot & Review has spent nearly $200,000 on legal bills so far, according to its editor Shereen Siewert. That’s almost as much as the newspaper spends each year to run its newsroom. And Tomcyzk could appeal again, forcing the newspaper to rack up more expenses.

Those costs have a real impact on local journalism. Siewert told Wisconsin Public Radio that the newspaper “had to put hiring on hold” because of the lawsuit. The New York Times reported last year that legal expenses could put the newspaper out of business.

Anti-SLAPP laws needed in all 50 states

Thankfully the Pilot & Review has scraped by, in part because of donations. But no news outlet should have to rely on the kindness of strangers to survive a defamation lawsuit that it wins.

The costs of SLAPPs can be staggering. For instance, in 2022, the Center for Investigative Reporting received a more than $1.92 million settlement to cover its legal fees from a SLAPP plaintiff.

In California and many states, the news media and other speakers are protected by anti-SLAPP laws. But not in Wisconsin or 16 other states.

Anti-SLAPP laws give people who are sued for exercising their First Amendment rights tools to fight back. They often allow for cases to be dismissed early, before costs rise, and give winning defendants the right to recoup their legal fees. As a result, SLAPP victims are less likely to be intimidated into silence.

Anti-SLAPP laws don’t just protect the speakers. They also protect the public’s right to know. When journalists and whistleblowers have confidence that they won’t be crushed by legal costs for reporting or speaking out, more information about important issues like corruption, corporate wrongdoing, and crime makes it to the public.

That’s why we need every state — and the federal government — to pass strong anti-SLAPP protections.

Protect local nonprofit journalism with anti-SLAPP laws

Anti-SLAPP laws are particularly important for nonprofit news outlets, like the Pilot & Review, which are increasingly filling the gap in a news media ecosystem that’s been devastated by the closure of newsroom after newsroom.

Nonprofit newsrooms that operate on shoestring budgets and lack in-house legal help are especially vulnerable to SLAPPs. In 2023, the Institute for Nonprofit News reported a medium revenue of about $477,000 for its members, an amount that could be quickly exhausted by just a single SLAPP.

But even relatively larger nonprofit news outlets can be harmed by SLAPPs. ProPublica Managing Editor Charles Ornstein recently wrote about the toll of a six-year libel battle based on his reporting. The case is just one of six in which ProPublica and its journalists have been unsuccessfully sued for defamation since the news outlet was founded.

ProPublica spent hundreds of thousands of dollars to defend itself in the case based on Ornstein’s reporting, through multiple rounds of appeals. Its journalists spent “dozens of hours gathering materials and working with lawyers” that could have otherwise been spent on reporting. Ornstein was even denied a mortgage because he disclosed he was a defendant in a lawsuit.

The case was eventually thrown out under Texas’s anti-SLAPP law. But future SLAPP victims in Texas might not get the same protections. State lawmakers have repeatedly targeted the law, and this week they’ll hold a hearing that may be a step toward gutting it.

That would be a step backward, and one that could devastate Texans’ right to know about what’s happening in their communities.

Texas, Wisconsin, and every state and the federal government need strong anti-SLAPP laws that protect First Amendment rights. Without them, wealthy and powerful people and corporations will continue to use the legal system to attack the reporting that holds them to account, and journalists who face SLAPPs will be in a no-win situation.

Dear Friend of Press Freedom,

Here are some of the most important stories we’re following from the U.S. and around the world. If you enjoy reading this newsletter, please forward it to friends and family. If someone has forwarded you this newsletter, please subscribe here.

US hides its best hurricane predictions

We’re in the middle of an especially dangerous hurricane season, but the government’s weather forecaster won’t release its most accurate predictions.

A new Washington Post report reveals that the National Oceanic and Atmospheric Administration says it can't disclose potentially lifesaving data because it promised not to in an agreement with a private vendor.

This arrangement wrongly places commercial interests above public safety. People shouldn’t die in hurricanes in the name of corporate secrecy. Read more on our website about why public-private industry partnerships must be open and transparent to the public.

US silence over Al Jazeera speaks volumes about policies on TikTok, RT

We’ve said before that Israel’s assaults on Al Jazeera provide a real-time illustration of the dangers of the U.S.'s TikTok ban legislation and the power it gifts the government to muzzle its critics by invoking vague security threats.

But even as the U.S. government does nothing about Israel’s latest raid on Al Jazeera, it expects Americans to believe that its intentions are pure in its efforts to punish foreign platforms and news outlets like TikTok and RT. Read more on our website about why we remain skeptical.

Knee-jerk secrecy keeps prepublication review broken

A new directive aims to streamline the prepublication review process for former intelligence community employees looking to write about their time in government. But it doesn’t address the main problem: The government calls too many things secrets.

The government classifies more and more information every year, often needlessly. Until agencies reduce the number of secrets they generate, prepublication review will continue to be an unwieldy, quixotic effort.

Lauren Harper, our Daniel Ellsberg chair on government secrecy, explains the prepublication review process’s flaws, the new guidance, and the directive’s failure to address the crisis of overclassification and the knee-jerk secrecy that permeates the government.

Court says First Amendment means less free speech

If it sounds backward to use the First Amendment to undermine a law meant to protect free speech, that’s because it is.

Yet that’s just what a federal court of appeals did in a recent decision on Section 230 of the Communications Decency Act — the federal law that shields online services from legal liability for posts made by their users.

We explain on our website how the court’s nonsensical decision threatens online freedom of speech by journalists and everyone else.

What we’re reading

By storming our Al Jazeera offices in Ramallah, Israel has stepped up its assault on press freedom (The Guardian). Asef Hamidi is right: World leaders must immediately and decisively stand up for press freedom, including in Gaza and the West Bank, where Israel is deliberately targeting journalists.

As president, Trump demanded investigations of foes. He often got them (The New York Times). “Secret White House documents” help show Trump's political persecution of his enemies. The public is entitled to this information, and the current secrecy around presidential and White House records is bad for democracy.

N.J. high court will hear reporter’s challenge to law shielding public officials’ addresses (New Jersey Monitor). It’s vital that the New Jersey Supreme Court reverse the appeals court’s ridiculous decision and protect journalists’ right to publish public records about government officials. Secrecy laws that claim to protect officials’ safety but instead stop journalists from investigating abuses are dangerous.

Threatened with jail over a scandal headlined by Brett Favre (ESPN). Whether it’s reporting on a welfare fraud scandal in Mississippi involving Brett Favre or steroids in baseball, no reporter should ever face jail for refusing to burn their sources. Every state needs a strong reporter’s shield law, and Congress must pass the PRESS Act.

Ark. Supreme Court refers justice for disciplinary investigation after FOIA dispute (KAIT). It’s good that the Arkansas Supreme Court ordered an investigation of a judge who ignored its directive by stopping the release of government records. But judges who trample on press rights should be investigated and punished even when they don’t insult higher courts in the process.

The National Archives: A small agency with a big responsibility safeguarding American and world history (60 Minutes). This report by 60 Minutes says what advocates have been shouting from the rooftops for years: The National Archives can't succeed, and the public will lose its history, if it does not get more and better resources and a more aggressive mindset to combat secretive agencies and presidents.

Come see us in Washington or London

The Double Exposure Festival & Symposium Nov. 7-10 in Washington, D.C., will have panels, workshops, and master classes focused on investigative storytelling. Don’t miss our Director of Advocacy Seth Stern, who will discuss dangerous government efforts to limit who is a journalist — such as by excluding documentary filmmakers. Purchase your tickets or passes here.

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

Follow us on TikTok and Instagram

FPF is now live on Instagram and TikTok. Click the links to follow us and see our latest posts about press freedom.

A new directive aims to streamline the prepublication review process for former intelligence community employees looking to write about their time in government.

In theory, prepublication review ensures current and former officials don’t publish information that damages national security. In practice, it routinely infringes on First Amendment rights. The process has served partisan agendas, withheld public information, and stifled debate.

Attempting to fix the process is a good thing — but the new reforms don’t address a fundamental problem: The government classifies more and more information every year, often needlessly.

Until agencies reduce the number of secrets they generate, prepublication review will continue to be an unwieldy, quixotic effort.

What is prepublication review?

Prepublication review requires a wide range of former officials to submit written works to the government for vetting before publication. The process began with a small number of CIA officials in the 1950s and now covers employees across the intelligence agencies, as well as components of the departments of State, Justice, Defense, and Homeland Security.

When the government considers everything a secret, the task of identifying secrets in manuscripts becomes extraordinarily time-consuming. It delays or prevents publication of unclassified material, information that is already public, and information that embarrasses the government.

The tenuous legality of the review is based in the nondisclosure agreements agency employees must sign, but the requirements on who must submit what varies between agencies and are often difficult to find. (A Freedom of Information Act request from the ACLU and Knight First Amendment Institute found the CIA deliberately kept submission requirements secret.)

The Supreme Court has not considered the constitutionality of the prepublication review process since the 1980s and declined to do so as recently as 2022. And anyone who does not submit their manuscript for review runs the risk of the government seizing the proceeds from their book after it's published, having their security clearance revoked, and possibly being prosecuted.

Here are just a few examples of how flawed the system is:

• Prepublication review of former National Security Advisor John Bolton’s memoir was mired in delays and political interference from the Trump White House and Justice Department.
• The CIA ordered former FBI agent Ali Soufan to cut significant portions of his book, “The Black Banners,” even information that had already been disclosed in congressional hearings, public records, and prior books.
• Former Defense Secretary Mark Esper sued his old agency over delays reviewing his manuscript, stating that, “Significant text is being improperly withheld … under the guise of classification.”
• The Naval Criminal Investigative Service’s Mark Fallon had to remove information “already in the public record and some seemingly intended only to protect the government from embarrassment” from his book.

Double standards

The system is overwhelmed by the amount of material submitted. As of 2015, the CIA alone was reviewing 184,000 pages a year. The sheer volume creates delays, which is a feature — not a bug. Delays discourage authors with deadlines to meet from appealing redactions.

And overclassification compounds the delay — not only do reviewers need to read thousands of pages of manuscripts, they need to cross-reference them with millions of often needless classification decisions.

Not everyone faces delays, though. While it may take years for some authors to get manuscripts back, it only took the State Department two months to return former Secretary Hillary Rodham Clinton’s. There was so much pressure for a quick turnaround that State’s prepublication review board warned: “If you are tardy in your response, you may get a high-level Department official call.”

What is in the new prepublication review directive?

The Brennan Center for Justice’s Elizabeth Goitein and former National Security Council official John P. Fitzpatrick have an excellent summary of the key items in the new directive in Just Security. Key improvements include:

• Requiring agencies to publish information on the prepublication review process on front-facing websites.
• Building and maintaining searchable datasets to track prepublication review requests and metrics.
• Mandating that agencies build appeals processes for denied material and appoint a prepublication review liaison.

They also note a number of limitations. The new guidelines:

• Only apply to members of the intelligence community, not other agencies that conduct prepublication reviews.
• Do not require a uniform appeals process across the intelligence community.
• Mandate no firm deadlines for agencies to complete reviews.
• Continue to allow agencies to withhold unclassified material that may be protected under other federal law or regulation, including exemptions to the inapplicable FOIA. That rationale is used to withhold everything from information pertaining to defense contractors to watermelon growing under FOIA’s Exemption 3.

These are missed opportunities. But the overarching problem is the directive’s failure to address the crisis of overclassification and the knee-jerk secrecy that permeates the government.

Until agencies face meaningful consequences for inappropriately withholding information, the prepublication review process will remain broken.

The CIA’s internal report on its prepublication review process, “Protecting Secrets,” was released through a Freedom of Information Act request. SCREENSHOT

A new directive aims to streamline the prepublication review process for former intelligence community employees looking to write about their time in government.

In theory, prepublication review ensures current and former officials don’t publish information that damages national security. In practice, it routinely infringes on First Amendment rights. The process has served partisan agendas, withheld public information, and stifled debate.

Attempting to fix the process is a good thing — but the new reforms don’t address a fundamental problem: The government classifies more and more information every year, often needlessly.

Until agencies reduce the number of secrets they generate, prepublication review will continue to be an unwieldy, quixotic effort.

What is prepublication review?

Prepublication review requires a wide range of former officials to submit written works to the government for vetting before publication. The process began with a small number of CIA officials in the 1950s and now covers employees across the intelligence agencies, as well as components of the departments of State, Justice, Defense, and Homeland Security.

When the government considers everything a secret, the task of identifying secrets in manuscripts becomes extraordinarily time-consuming. It delays or prevents publication of unclassified material, information that is already public, and information that embarrasses the government.

The tenuous legality of the review is based in the nondisclosure agreements agency employees must sign, but the requirements on who must submit what varies between agencies and are often difficult to find. (A Freedom of Information Act request from the ACLU and Knight First Amendment Institute found the CIA deliberately kept submission requirements secret.)

The Supreme Court has not considered the constitutionality of the prepublication review process since the 1980s and declined to do so as recently as 2022. And anyone who does not submit their manuscript for review runs the risk of the government seizing the proceeds from their book after it's published, having their security clearance revoked, and possibly being prosecuted.

Here are just a few examples of how flawed the system is:

• Prepublication review of former National Security Advisor John Bolton’s memoir was mired in delays and political interference from the Trump White House and Justice Department.
• The CIA ordered former FBI agent Ali Soufan to cut significant portions of his book, “The Black Banners,” even information that had already been disclosed in congressional hearings, public records, and prior books.
• Former Defense Secretary Mark Esper sued his old agency over delays reviewing his manuscript, stating that, “Significant text is being improperly withheld … under the guise of classification.”
• The Naval Criminal Investigative Service’s Mark Fallon had to remove information “already in the public record and some seemingly intended only to protect the government from embarrassment” from his book.

Double standards

The system is overwhelmed by the amount of material submitted. As of 2015, the CIA alone was reviewing 184,000 pages a year. The sheer volume creates delays, which is a feature — not a bug. Delays discourage authors with deadlines to meet from appealing redactions.

And overclassification compounds the delay — not only do reviewers need to read thousands of pages of manuscripts, they need to cross-reference them with millions of often needless classification decisions.

Not everyone faces delays, though. While it may take years for some authors to get manuscripts back, it only took the State Department two months to return former Secretary Hillary Rodham Clinton’s. There was so much pressure for a quick turnaround that State’s prepublication review board warned: “If you are tardy in your response, you may get a high-level Department official call.”

What is in the new prepublication review directive?

The Brennan Center for Justice’s Elizabeth Goitein and former National Security Council official John P. Fitzpatrick have an excellent summary of the key items in the new directive in Just Security. Key improvements include:

• Requiring agencies to publish information on the prepublication review process on front-facing websites.
• Building and maintaining searchable datasets to track prepublication review requests and metrics.
• Mandating that agencies build appeals processes for denied material and appoint a prepublication review liaison.

They also note a number of limitations. The new guidelines:

• Only apply to members of the intelligence community, not other agencies that conduct prepublication reviews.
• Do not require a uniform appeals process across the intelligence community.
• Mandate no firm deadlines for agencies to complete reviews.
• Continue to allow agencies to withhold unclassified material that may be protected under other federal law or regulation, including exemptions to the inapplicable FOIA. That rationale is used to withhold everything from information pertaining to defense contractors to watermelon growing under FOIA’s Exemption 3.

These are missed opportunities. But the overarching problem is the directive’s failure to address the crisis of overclassification and the knee-jerk secrecy that permeates the government.

Until agencies face meaningful consequences for inappropriately withholding information, the prepublication review process will remain broken.