Freedom of the Press

President Joe Biden, pictured here with Israeli Prime Minister Benjamin Netanyahu in Israel in 2016, should condemn Israel’s seizure of equipment from The Associated Press and demand its immediate return. Vice President Joe Biden visit to Israel March 2016 by U.S. Embassy Jerusalem is licensed under CC BY 2.0.

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Israel must immediately return camera and broadcasting equipment belonging to The Associated Press that it seized earlier today, and the Biden administration must strongly condemn Israel’s escalation of its attacks on the free press.

“If Israel wants to claim the mantle of ‘the only democracy in the Middle East,’ it needs to act like it. Banning broadcasters because Israel disagrees with their coverage is the hallmark of an authoritarian state, not a democracy. Seizing equipment from the AP just for supplying a news outlet with video footage is disgraceful,” said Freedom of the Press Foundation (FPF) Deputy Advocacy Director Caitlin Vogus.

In April, Israel passed a new censorship law that allows its government to ban foreign media organizations, a move that many saw as a transparent attempt to silence Qatari broadcaster Al Jazeera and its coverage of the Israel-Gaza war. Weeks later, Israel used the law to ban Al Jazeera and raid its offices in Jerusalem.

At the time, FPF warned that the law was a pretext for silencing criticism of the war and that Israel wouldn’t limit its use to Al Jazeera.

Now, Israel has seized equipment from the AP, one of the world’s largest news agencies, after accusing it of violating the foreign media law by providing a live video feed of northern Gaza to Al Jazeera, as the AP does for thousands of other clients.

“All Americans should be outraged that Israel seized equipment from a U.S. news outlet and stopped it from broadcasting video footage of Gaza. Israel’s actions against the AP strip millions of people of a view into Gaza at a time of war and mass atrocities,” said Vogus. “President Joe Biden must condemn Israel’s seizure of the AP’s equipment and insist on its immediate return. While he’s at it, President Biden should demand Israel stop killing journalists in Gaza and allow foreign journalists into Gaza to report.”

“Israel is going after The Associated Press for doing exactly what it’s supposed to do: provide truthful information to the world,” said FPF Advocacy Director Seth Stern. “A few weeks ago, Israel banned Al Jazeera. Today, it seized AP equipment and stopped its video feed from Gaza. What news outlet will be the next target?” Stern added.

“If it wasn’t already clear, Israel’s seizure of the AP’s equipment proves that laws that give the government the power to ban media outlets in the name of ‘national security’ can and will be abused to go after any member of the press that the government dislikes,” said Stern. “The U.S. should take note of how quickly Israel began abusing its foreign media law and stop passing its own laws empowering the government to shut down or censor the media, like the purported TikTok ban which actually opens the door to broad censorship of online news.”

Wikileaks Editor-in-Chief Kristinn Hrafnsson speaks outside the U.K. High Court in 2022. "Wikileaks Editor-in-Chief Kristinn Hrafnsson talks about Assange's extradition hearing" by alisdare1 is licensed under CC BY-SA 2.0

The U.K. High Court decision granting WikiLeaks founder Julian Assange leave to appeal his extradition shows just how far America has fallen when it comes to press freedom.

After the High Court ruled that the United States’ assurances were insufficient to appease the justices’ concerns over whether Assange could rely on the First Amendment in U.S. courts, Caitlin Vogus and Seth Stern of Freedom of the Press Foundation (FPF) wrote in The Guardian that it's "painfully ironic" that a U.K. court is defending the First Amendment against U.S. overreach:

“Not so long ago, the roles were reversed. In 2010, the US passed a law to protect American publishers from UK courts. The Speech Act, enacted in response to a wave of libel lawsuits in the UK targeting Americans, prohibits American courts from enforcing foreign defamation judgments that don’t comply with the first amendment.

But much has changed since 2010. Since then, the US has repeatedly dropped in Reporters Without Borders’ World Press Freedom Index, falling to 55th out of 180 countries in 2024. The UK is still no haven for free expression, but the same judiciary that the US Congress checked in 2010 now isn’t comfortable extraditing a publisher to be tried there.”

Vogus and Stern conclude that: “The High Court’s decision should be a wake-up call for Biden: It’s not possible to prosecute Assange while claiming to be a friend of press freedom. Rather than wait for UK courts to defend the rights that America supposedly stands for, the US should drop the case now.”

You can read the full op-ed here.

The FBI raided journalist Tim Burke's home newsroom, pictured above, last year. Now prosecutors are seeking to censor him by labeling the files they seized criminal contraband.

Federal prosecutors in Florida have concocted a novel workaround to restrain journalists from publishing news: declaring the news itself criminal “contraband.”

That’s the latest constitutionally dubious argument the Department of Justice is making in the prosecution of Tim Burke, the journalist who found unaired footage from Tucker Carlson’s Fox News interview with Ye, formerly known as Kanye West, where Ye went on a bizarre and antisemitic rant.

Freedom of the Press Foundation (FPF) Advocacy Director Seth Stern wrote for Slate about the dangers of the government’s theory.

"What if the Nixon administration had charged the Times with, say, Espionage Act violations, seized the Pentagon Papers, and then sought a prior restraint in the guise of a discovery order to prohibit the Times from publishing them?

…

There’s already an alarming increase in prior restraints issued by courts across the United States. The DOJ, in its inexplicable zeal to punish Burke for embarrassing Fox News, risks setting a precedent that will compound the problem."

You can read the full op-ed here.

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

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Today, the High Court in London granted WikiLeaks founder Julian Assange leave to appeal his extradition to the United States on a limited number of grounds.

The court ruled that Assange may appeal because the U.S. provided insufficient assurances regarding his First Amendment rights and whether he would be prejudiced at trial because of his nationality.

The following statement can be attributed to Caitlin Vogus, deputy director of advocacy at Freedom of the Press Foundation (FPF):

We welcome the High Court’s ruling granting Julian Assange an opportunity to appeal his extradition. Extraditing Assange to the United States to stand trial for publishing government secrets would profoundly harm press freedom in the U.S. and around the world.

On appeal, we urge the court to refuse to extradite Assange. But better yet, the Biden administration can and should end this case now. If Biden continues to pursue the Assange prosecution, he risks creating a precedent that could be used against any reporter who exposes government secrets, even if they reveal official crimes. If the Biden administration cares about press freedom, it must drop the Assange case immediately.

Assange has been indicted in the United States on 18 felony counts, including 17 under the Espionage Act. Under the legal theory the government relies on in the indictment, any journalist could be convicted of violating the Espionage Act for obtaining or receiving national defense information from a source, communicating with a source to encourage them to provide national defense information, or publishing national defense information — acts journalists engage in every day.

Virtually all major civil liberties organizations and major news outlets have denounced the prosecution as a threat to core press freedom rights, as have more than 40 law professors.

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

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

Independent journalist Sean Beckner-Carmitchel filmed as UCLA campus police officers arrested him on May 6, 2024, while he was documenting campus protesters’ detention. Police arrested Beckner-Carmitchel despite a California law that prohibits law enforcement from interfering with journalists covering demonstrations.

On May 6, 2024, police arrested independent videographer Sean Beckner-Carmitchel as he was filming the detention of protesters on the University of California, Los Angeles, campus.

Just days earlier, police threatened reporters at the Daily Bruin student newspaper with arrest while they were covering the UCLA encampment and denied them access to areas where protests were occurring.

And shortly before that, police also arrested TV journalist Adelmi Ruiz while she was covering a protest at California State Polytechnic University, Humboldt.

This isn’t supposed to happen anywhere in America, but especially not in California, where it’s explicitly against the law for police to intentionally interfere with journalists covering a demonstration, prohibit journalists from entering areas officers have closed around a protest, or cite reporters for failing to disperse or similar crimes related to the closure.

To find out more about how this California law, Penal Code Section 409.7, works and how reporters can use it, the Freedom of the Press Foundation (FPF) spoke via email to Susan Seager, an adjunct professor of law at University of California, Irvine School of Law. A former journalist, Susan is the founder and director of the press freedom and transparency practice at UC Irvine’s Intellectual Property, Arts, and Technology Clinic.

In your view, are California police complying with the law when it comes to allowing journalists to cover recent pro-Palestinian protests?

No, the police have been violating Section 409.7 right and left during the protests and police raids on campus encampments. The police are also violating the First Amendment right of the press to film public protests and police in public. The reporters for the Daily Bruin should not have been threatened with arrest for covering the encampment on their campus and police actions.

The law worked to free Sean, but he should have never been arrested and jailed in the first place.

When University of California police arrested Beckner-Carmitchel while he was filming UC police arresting students in a UCLA parking garage, that arrest violated Section 409.7, Sean’s First Amendment right to film police, and his Fourth Amendment right to be free of unlawful arrests. After I fired off a quick email to UCLA police, the school’s comms department, and the UC administration that Sean’s arrest and jailing violated Section 409.7, UCLA released him later that day. So the law worked to free Sean, but he should have never been arrested and jailed in the first place.

They also took away his cellphone, but I told UCLA that using a search warrant to search his phone would be illegal, and they gave it back within a few hours.

At the University of Southern California, the campus police and Los Angeles Police Department violated Section 409.7 earlier this month when they blocked student journalists and faculty from filming the police raid on the encampment and threatened to take away some of the students’ press passes.

However, Section 409.7 worked very well on May 15, 2024, at UC Irvine, where the press office worked closely with the local law enforcement to make sure journalists had access.

Can you explain why Section 409.7 was enacted and what it does? And tell us about any cases you’re aware of where California journalists have invoked it to try to prevent law enforcement from dispersing them from protests. Has it worked, and why or why not?

Reporters pushed for the passage of Section 409.7 after many reporters were arrested, shoved, and shot with munitions by police while covering the Black Lives Matter protests (in 2020).

Before it was passed, California law said that reporters were legally permitted to cross behind police lines during public disasters without being arrested, but it didn’t say anything about public protests where police declared an unlawful assembly and ordered everyone to disperse. So some reporters were getting arrested for failure to disperse when they were filming protests and police.

Section 409.7 says that where police “establish a police line, or rolling closure at a demonstration, march, protest, or rally where individuals are engaged in activity” protected by the First Amendment and California Constitution, a “duly authorized representative of any news service, online news service, newspaper, or radio or television station or network may enter the closed areas.” The law says that police cannot arrest reporters for “failure to disperse,” violating a curfew, or filming police.

If a reporter is arrested, the reporter has the right “to contact a supervisory officer immediately for the purpose of challenging the detention, unless circumstances make it impossible to do so.”

Section 409.7 doesn’t prevent police from “enforcing other applicable laws if the person is engaged in activity that is unlawful.”

The problem is that law enforcement agencies hate it when they are filmed doing their jobs. It’s just that simple. 

Los Angeles journalists have reported that, at least in some instances, they have cited Section 407.9 to officers, and the officers allowed them to pass through police lines during public events. But police violated the law during the recent campus protests.

The problem is that law enforcement agencies hate it when they are filmed doing their jobs. It’s just that simple. Many officers see the press as the enemy. And they don’t get punished for breaking the law when it comes to the press.

Many of the recent pro-Palestinian protests have taken place on college campuses, which can be either public or private institutions. Does Section 409.7 apply on private property, like a private college campus? What triggers the application of the law?

Section 409.7 applies to both public and private campuses, although it applies differently to each.

For public campuses like UCLA, Section 409.7 applies in full force. It gives protection to both the mainstream press and UCLA student journalists, just as it would on a public street, since the campus is a public institution and the campus is open to the public.

But for private schools, the law might not protect mainstream reporters if they have been barred from entering the campus and the school could argue that they are trespassing on private property, and Section 409.7 does not protect against arrest for trespassing. But if the school allows mainstream reporters on campus, then the law fully protects them.

Section 409.7 also fully protects student journalists and faculty on their private campuses because they have a right to be on their own campus. Section 409.7 protects those student journalists and faculty from arrest when they are trying to film and report about the protests and police actions.

How should California journalists covering protests assert their rights under Section 409.7? If police close an area where protests are occurring and start attempting to disperse the press, how should journalists respond in the moment?

If there is time before a protest, reporters should contact the local police department and campus police department and ask that a public information officer be sent to the scene in advance and be available to educate officers on the rights of reporters to go past police lines under Section 409.7 and mediate between the police and press.

Live tweeting and live streaming video is also effective in putting the police on blast when they are breaking the law.

Live tweeting and live streaming video are also effective in putting the police on blast when they are breaking the law by arresting, threatening, or pushing reporters away from the protests or scenes of arrest.

Journalists should wear some kind of press pass on a lanyard. If you don’t have a local police-issued pass, it’s a good idea for your news organization (student news organizations included) to create your own press passes with the reporter’s name, photo, news website, and cell number for a news supervisor who will be on call at all hours. Freelancers should seek photo press passes from the news orgs that send them to protests. “Duly authorized” means freelancers need to show they were sent by some news organization. Press passes issued by journalism trade groups or journalism affinity groups can be adequate in some jurisdictions.

If police violate Section 409.7, what recourse do journalists have and what steps do you recommend they take?

Reporters should ask local journalism groups to mobilize and issue immediate public statements condemning arrests of reporters if the reporters were arrested for simply doing their job. Local journalist groups should issue public statements urging prosecutors not to press charges against arrested reporters. Public campaigns can be very effective.

Reporters who are arrested should consider filing an officer misconduct complaint against the police department and participate in the investigation. However, some civil rights lawyers advise against this because they see the internal affairs process as weighted in favor of the officers.

Arrested reporters who are not criminally charged can file a civil rights lawsuit against the city or county that employed the arresting officer, arguing that the arrest violated their First Amendment right to film protests and police and violated their Fourth Amendment right to be free of unreasonable arrest. In California, reporters could also sue based on state law.

UC Irvine School of Law is co-counsel on an ongoing civil rights lawsuit brought by then-Knock LA reporters Jon Peltz and Kate Gallagher against the Los Angeles Police Department for arresting them for failure to disperse while they were simply filming and reporting about a police raid on a homeless encampment at Echo Park Lake in March 2021. They were arrested before Section 407.9 took effect, but they argue that the arrest violated their rights under the First and Fourth Amendments. They were never criminally charged.

The best way to get a local police department to obey Section 409.7 is to have a number of journalists who are arrested by one police department file a class action lawsuit against that department and seek a court injunction ordering the department to obey the law. But this requires more than just a handful of arrested reporters.

Editor’s note: The text has been updated to clarify that press passes issued by journalism trade or affinity groups are recognized by authorities in some jurisdictions.

Last year, Sen. Tom Cotton accused major U.S. news outlets of supporting terrorism based on a speculative and since-discredited report. "Tom Cotton" by Gage Skidmore is licensed under CC BY-SA 2.0.

Freedom of the Press Foundation (FPF) Advocacy Director Seth Stern appeared on The Project Censored Show to discuss alarming legislation that would allow the Secretary of the Treasury to revoke the tax exempt status of nonprofit organizations, including news outlets, by deeming them supporters of terrorism.

Stern said the bill, along with the recently passed expansion of the government’s surveillance authority under Section 702 of the Foreign Intelligence Surveillance Act, highlights a disturbing trend:

"We’re in an environment where despite all of these claims that Trump, if he gets a second term, is going to govern as a fascist, and that we’ve got to be on the lookout for authoritarianism, despite all that, we’ve got bipartisan bills providing him a dictator’s dream toolkit."

You can listen to the full radio broadcast here. Stern also wrote about the nonprofit bill for The Intercept. Andy Lee Roth of Project Censored, who appeared on the show along with Stern, also wrote about the bill for Truthout. Both Truthout and The Intercept are among the nonprofit news outlets that could be targeted if the bill passes.

An effort to include the bill as an amendment to the Federal Aviation Administration reauthorization package failed last week, but it’s likely to return to the Senate floor soon. Defending Rights and Dissent has an easy-to-use tool to tell your senators to reject this awful bill, which is opposed by at least 135 civil liberties organizations.

Protesters and journalists are tear-gassed by Georgia law enforcement during a "Block Cop City" march in Atlanta on Nov. 13, 2023. Environmental journalists face a wide range of threats, from arrests and assault to legal intimidation.

Environmental journalists are increasingly under attack, according to a new report by UNESCO released on World Press Freedom Day, in recognition of this year’s theme, “A press for the planet: Journalism in the face of the environmental crisis.”

Disturbing statistics documented in the report show that over the past 50 years, 44 environmental journalists have been killed. In the past 15 years, hundreds have been attacked — often by state actors — while covering environmental issues around the world.

Unfortunately, environmental journalists in the U.S. aren’t immune from these and other threats to their newsgathering rights.

Freedom of the Press Foundation (FPF) and the Society of Environmental Journalists recently hosted a conversation about the obstacles U.S. journalists face when reporting on environmental issues.

FPF’s Deputy Editor Adam Glenn led a discussion with writer and photographer Carlos Berríos Polanco, reporter Halle Parker, and FPF’s Deputy Advocacy Director Caitlin Vogus about the barriers that stand in the way of reporting on the environment. Watch the whole thing, or read some highlights below.

Tracking press freedom violations against U.S. environmental journalists

Data can provide important context to the personal stories of environmental journalists on the front lines covering stories such as climate change or pipeline protests, Glenn explained.

The U.S. Press Freedom Tracker has documented 36 press freedom violations related to journalists covering environmental stories since its founding in 2017. The largest category of violations is arrests and criminal charges, and nearly all are related to journalists covering protests.Other violations include searches and seizures of journalists’ equipment, assaults by law enforcement officers or private individuals, and legal orders like prior restraints.

Environmental journalists face a broad range of threats from physical assaults to subtle legal maneuvers, Glenn said, as exemplified by the stories of the two journalists featured in this conversation.

Sadly not uncommon for police to attack environmental journalists

Freelance journalist Berríos Polanco shared his experience of being assaulted by police while documenting a demonstration against the building of the Atlanta Public Safety Training Center — known as “Cop City” — in the South River Forest on Nov. 13, 2023.

Police stopped activists as they were marching toward the construction site and began launching tear gas canisters. The first landed at the feet of a group of at least 30 journalists — including Berríos Polanco — who were standing ahead of the march. Berríos Polanco told the Tracker that he believed police purposefully targeted the group of journalists.

“I was pushed. I was tear-gassed,” Berríos Polanco said. “Sadly, not an uncommon thing that you experience as a reporter these days. And it's emblematic of the way that press are treated throughout the United States and the world.”

In the wake of the tear-gassing, officers repeatedly told journalists to stop recording and move away from the masses of protesters. When reporters attempted to return, officers threatened to arrest them, claiming that the area was an “active crime scene.”

That, too, Berríos Polanco believes, was a tactic police used to intentionally cut off journalists’ access. “Environmental journalists are usually stopped by either state or non-state actors who have a vested investment in whatever environmental journalists are covering. And they often don't allow them to do their jobs because they want to obscure what's going on,” Berríos Polanco explained.

Intimidation tactics make environmental reporters look over their shoulders

Parker spoke about another insidious tactic used against environmental journalism: the abuse of legal processes to harass reporters.

In 2022, Parker was reporting on an investigation by the Environmental Protection Agency into “Cancer Alley,” a heavily polluted area along the Mississippi River primarily inhabited by Black communities. Parker contacted the EPA for information and conducted interviews with agency officials.

It all seemed like a very normal interaction between a reporter and a federal agency. But in January of this year, Parker learned of an unusual public records request made by the state of Louisiana to the EPA, seeking communications between the EPA and several journalists, including Parker. The state filed the FOIA request because it believed the EPA had illegally leaked information to reporters.

Parker’s first reaction was to scoff at the request. But as time went on, she became more concerned. “It makes you start trying to think and retrace all the steps that you took,” she said, adding,”That can start to get a little intimidating.”

Legal harassment like this can make journalists think twice about reporting, Parker explained. “There are many such actions, and they're not as visible,” Parker added. “And yet they do keep reporters from doing their work or cause them to look over their shoulders in ways that are chilling.”

Speak out and fight back

According to Vogus, Berríos Polanco’s and Parker’s stories are disturbing but unfortunately not surprising, as attacks on press freedoms become increasingly common in the U.S.

Even as attacks on the press grow, Vogus said, “We can't become numb to them and we can't just come to accept them. We have to speak out against them and we have to fight back.”

Protests are a particularly dangerous place for journalists, including environmental reporters. Vogus urged environmental journalists to familiarize themselves with both their legal rights and practical tips for staying safe while covering demonstrations, including securing their data and devices.

She also condemned the use of FOIA to try to bully and intimidate journalists, as in Parker’s case. Louisiana is “trying to use FOIA to dig up what they see as ‘dirt’ about reporters, when it's really just reporters doing their jobs and doing nothing wrong,” Vogus said.

Finally, Vogus emphasized the importance of safeguarding environmental journalists’ sources, many of whom may face threats from governments or powerful corporations. The PRESS Act, a bipartisan federal reporter-source shield bill, would help all journalists protect their confidential sources and encourage whistleblowers to come forward.

For more insights into how press violations are affecting the work of environmental journalists and how those infringements should be addressed, watch the whole discussion.

Louisiana Attorney General Jeff Landry and several other state Attorneys General and federal lawmakers have baselessly accused media major outlets of supporting terrorism. Jeff Landry by Gage Skidmore is licensed under CC BY-SA 2.0.

Freedom of the Press Foundation (FPF) Director of Advocacy Seth Stern wrote for The Intercept about an alarming bill that would allow the secretary of the treasury to unilaterally revoke the tax-exempt status of nonprofit organizations, including nonprofit news outlets, by deeming them supporters of terrorism.

The op-ed explains that the bill is particularly concerning just months after dozens of state and federal elected officials accused major news outlets of supporting terrorism by buying pictures from Palestinian freelancers, or even merely by criticizing Israel. Stern noted that

“Those who claim a second Donald Trump term would mark the end of democracy need to stop passing overbroad and unnecessary new laws handing him, and future authoritarians, brand new ways to harass and silence journalists who don’t toe the line.”

Read the full article here.

Photojournalist Joseph Rushmore was violently arrested while covering a pro-Palestinian protest at the University of Texas at Austin. His case is one of many press freedom violations documented by the U.S. Press Freedom Tracker related to campus protests in recent days.

Press freedom violations have soared in recent weeks, as a nationwide protest movement over the Israel-Gaza war has spread across college campuses.

The U.S. Press Freedom Tracker has documented dozens of abuses connected to pro-Palestinian protests and counterprotests, and the numbers will likely grow.

These recent incidents confirm what past data in the Tracker has demonstrated: protests are an especially dangerous place for journalists. In particular, arrests and detentions of journalists, physical attacks on reporters by police and protesters, and police blocking journalists’ access to protests have emerged as troubling trends in the latest campus protests.

Arrests or detentions must stop

Joseph Rushmore is one of the many journalists police have arrested for simply doing their jobs covering protests. Texas Department of Public Safety officers violently arrested Rushmore, a freelance photojournalist, while he was photographing a protest at the University of Texas at Austin on April 24, 2024. Officers pushed Rushmore to the ground before using their shields to push and crush him against protesters who had also been pushed along with him. Police charged Rushmore with misdemeanor trespassing, held him overnight, and dropped the charges the next day.

Numerous reporters have been arrested or detained while covering protests over the Israel-Gaza war, including several recently on college campuses.

Some of the charges have been dropped quickly. But even still, the damage is done: Arresting journalists stops them from reporting. For example, police arrested TV journalist Adelmi Ruiz while covering student protests at California State Polytechnic University, Humboldt. Despite complying with police directives, Ruiz was handcuffed, removed from the protest, and taken to the county jail. It wasn’t until hours later, when police dropped the charges, that Ruiz was able to return to campus and resume her reporting.

But charges against other journalists haven’t been dropped as quickly. Two reporters for the student newspaper The Dartmouth, Charlotte Hampton and Alesandra Gonzales, were arrested for criminal trespass while covering a campus protest on May 1, 2024. Public shaming by The Dartmouth and a coalition of press freedom organizations led by the Student Press Law Center may have inspired the Dartmouth president to acknowledge that the student journalists shouldn’t have been arrested. But it took more than a week for prosecutors to drop the charges, which never should have been brought in the first place.

Still other charges against journalists haven’t been dropped at all. KTBC broadcast photographer Carlos Sanchez is facing two misdemeanor charges after he was arrested while covering the same protest where Rushmore was arrested. The Texas Department of Public Safety claims Sanchez intentionally hit officers with his camera, even though video from numerous camera angles shows no such thing.

The case against Sanchez is so weak that the department can’t even make up its mind on what to charge him with. Journalism and press freedom organizations led by the Society of Professional Journalists have condemned these latest charges against Sanchez, but police and prosecutors don’t appear to be listening.

When officials continue to pursue criminal charges against journalists who are simply doing their jobs to document protests, it sends a chilling message to other reporters: Stay away, or we’ll prosecute you, too.

Police must stop arresting journalists covering protests and, if they mistakenly detain a reporter, they should immediately release them and allow them to continue gathering the news.

Physical attacks are a crime

In one of the most shocking incidents documented by the Tracker so far, counterprotesters attacked four student journalists for the Daily Bruin at UCLA in the early morning hours of May 1, 2024. Catherine Hamilton, Shaanth Kodialam, Christopher Buchanan, and a fourth unnamed Bruin reporter were surrounded by counterprotesters and punched, beaten, kicked, or sprayed with chemical irritants. Hamilton was briefly hospitalized following the attack.

That same night, Dolores Quintana, co-editor of the weekly newspaper the Santa Monica Mirror, was also assaulted by counterprotesters. Quintana told the Tracker that she was struck on the back, grabbed, had her phone deliberately knocked from her hand, and was eventually sprayed with a chemical irritant from just inches away.

Physical attacks against journalists are a crime. They also undermine the ability of the press to report the news.

When protesters or counterprotesters purposefully attack the press, it makes it harder to get the news out to the public — which is exactly what some may want. As Quintana wrote, the counterprotesters at UCLA were “deliberately targeting” the press “so that there’s no one there to take pictures and get video of the crimes that they are committing.” Physical attacks also deter others from reporting on protests, for fear that they too will be harmed.

If police weren’t so busy arresting journalists, perhaps they could prioritize investigating attacks on them instead. In a free society, crimes against the press should never be tolerated. Those responsible for the attacks on the press at UCLA and elsewhere must be held accountable.

Blocking access to control the narrative

Police have blocked journalists or confined them to areas where they can’t observe protests or police activity, often as a tactic to stop the press from observing the actions they take against protesters.

For example, the Tracker has documented incident after incident at Columbia University of journalists driven off campus and kettled, confined to campus buildings and threatened with arrest, or blocked from leaving buildings on the night the New York City Police Department cleared Hamilton Hall, which had been occupied by protesters earlier that day.

Apparently, the NYPD didn’t want journalists — or the public — to witness the violent clearing of Hamilton Hall, where the Columbia Spectator reported that police pushed protesters to the ground, slammed them with metal barricades, and threw at least one protester down steps. Later, it came out that one NYPD officer had fired his gun.

Instead, the NYPD wanted the public to see their official police version of events. A day after the raid, the department put out a propaganda video casting protesters as violent, smelly agitators, and the cops as heroes. According to Columbia Journalism School Dean Jelani Cobb, police actually blocked the press from accessing Hamilton Hall at one point because they were filming their sizzle reel.

From Columbia to California, requiring journalists to stay away from the action is a blatant attempt by the police to control their narrative about the protests and the police response. Corralling journalists to designated reporting areas blocks them from viewing events and speaking to sources.

These are just a few of the incidents documented by the Tracker in recent days. More reports of journalists being arrested, attacked by protesters or counterprotesters, targeted with chemical irritants, or having their access to protests restricted keep pouring in.

These continued press freedom violations are a national embarrassment. Police and protesters know that interfering with the press is unacceptable. Police departments nationwide paid millions to settle lawsuits that followed similar abuses during the Black Lives Matter protests in 2020.

But they also seem to believe — often correctly — that they can get away with it. Until prosecutors or the public hold police and others who violate press freedom accountable, journalists covering protests will remain under threat.

"al jazeera english newsroom" by Paul Keller is licensed under CC BY 2.0.

Press freedom advocates widely condemned Israel’s ban of news service Al Jazeera from operating within its borders. But Israel isn’t the only country empowering its government to silence the press.

Freedom of the Press Foundation (FPF) Advocacy Director Seth Stern wrote for The Guardian that the episode could portend future abuses in the U.S., where a flurry of bills and court cases — from the TikTok ban to the Julian Assange prosecution — make it easier for officials to censor and intimidate journalists. 

“[President] Biden and many other Democrats constantly warn that Donald Trump would behave like an authoritarian in a potential second term. Yet they insist on continuing to hand him new powers to abuse, particularly against his favorite scapegoat: the press. 

“Anyone who doubts that Trump or future presidents will abuse those powers should view the weekend’s events in Israel as a cautionary tale.” 

Read the full op-ed here. 

A coalition of press freedom, civil liberties, and human rights groups is urging President Joe Biden to release a new report to Congress about U.S. military aid and human rights to the press and the public. Joe Biden by Gage Skidmore is licensed under CC BY-SA 2.0.

FOR IMMEDIATE RELEASE

A coalition of press freedom, civil liberties, and human rights groups sent a letter to President Biden today, calling on his administration to make public a new report to Congress on U.S. military assistance to foreign countries and those countries’ compliance with international human rights law.

The report is due tomorrow, on May 8. But the administration hasn’t yet made clear whether it will be made available to the public or the press. It should be.

Caitlin Vogus, deputy advocacy director at Freedom of the Press Foundation (FPF), said, “The public has a profound interest in understanding how the U.S. ensures that its military aid doesn’t go to human rights abusers.”

Vogus added, “If the Biden administration can stand behind its decisions about defense assistance, it should have no reason to withhold the report that members of Congress will see from the press and the public.”

In addition to FPF, the letter was signed by Amnesty International USA, Defending Rights & Dissent, National Press Photographers Association, Radio Television Digital News Association, and Reporters Without Borders.

In February, Biden issued a national security memorandum known as NSM-20 that’s intended to ensure that foreign recipients of U.S. military aid are following international humanitarian law by requiring them to provide assurances of their compliance to the U.S. NSM-20 authorizes the president to take measures against noncompliant countries, up to and including suspending military assistance.

The Biden administration created the NSM-20 process in the wake of significant pressure from Democrats in Congress about whether Israel was complying with international law during the Israel-Gaza war and whether it may be using U.S. weapons and other military assistance in ways that violate human rights.

There have been numerous allegations that Israel has used U.S. assistance in a manner that violates international and U.S. law, and claims that Israel is violating human rights more broadly, including by intentionally targeting journalists. An internal State Department memorandum that recently leaked to the press shows that some U.S. officials believe Israel is violating international law in Gaza.

But NSM-20 isn’t just about Israel. It requires the U.S. to assess all of the countries to which it provides defense articles, and evaluate assurances those countries have provided about their compliance with international law.

The press and the public must have access to the Biden administration’s report to Congress under NSM-20, so it can evaluate elected leaders’ decisions on foreign military aid and the thoroughness and accuracy of the assessments the U.S. will conduct under this new process.

Read the full letter here or below.

Journalists in Chicago report being frozen out of contentious government meetings. We discussed this and other press freedom issues facing journalists in Chicago and worldwide on WBEZ radio. "Snowy News" by Pirate Alice is licensed under CC BY-SA 2.0.

In honor of World Press Freedom Day, Freedom of the Press Foundation (FPF) Director of Advocacy Seth Stern joined WBEZ’s Reset with Sasha-Ann Simons to discuss the current state of the free press in the United States. 

They addressed the decline, both among law enforcement and judges, in understanding of First Amendment freedoms for journalists. “What we're seeing all around is … a lack of sensitivity on the part of elected officials and law enforcement to the rights of journalists,” Stern observed. He noted that as news outlets shutter and shrink, police officers and judges gain less experience dealing with the press than they used to. 

Stern and Simons discussed press freedom issues from reporters’ access to city council meetings in their hometown of Chicago to threats to journalists’ lives in Gaza. They also talked about the PRESS Act, the federal shield bill to stop old ways of spying on journalists — as well as the new ways of surveilling them created by RISAA, the recently enacted law that dangerously expands surveillance under Section 702 of the Foreign Intelligence Surveillance Act. 

You can listen to the radio interview here.

The Indiana Daily Student has been covering the Israel-Gaza war and campus protests since October, in the face of harsh pushback, a recalcitrant administration, and severe budget cuts. IUSampleGates.JPG by McAnt is licensed under CC BY-SA 3.0.

Freedom of the Press Foundation (FPF) Deputy Director of Advocacy Caitlin Vogus speaks to IDS co-editor-in-chief Salomé Cloteaux and the Student Press Law Center’s Mike Hiestand about the challenges facing student journalists covering campus protests.

As police stormed several college campuses in recent days and arrested hundreds of students protesting the Israel-Gaza war, student journalists proved, once again, that they can report the news like professionals.

But unfortunately — just like professional reporters — student journalists are also being arrested, physically blocked from reporting, or even assaulted by police or others.

At Indiana University, the Indiana Daily Student has been covering the war and campus protests since October, including a campus encampment set up last week and the arrests of protestors by Indiana State Police on April 25 and 27. Even as the IDS proves its necessity to the campus community, the newspaper is facing potentially crippling budget cuts.

Freedom of the Press Foundation (FPF) Deputy Director of Advocacy Caitlin Vogus spoke to IDS co-editor-in-chief Salomé Cloteaux and the Student Press Law Center’s Mike Hiestand this week about the challenges facing student journalists covering campus protests.

Listen to the full conversation on X.

We have to do it.

“We’re all pretty tired,” Cloteaux said, remarking on the work of reporters at IDS who are covering the protests day and night even amid finals. “It’s tough, but I can’t think of anyone better than the [IDS] reporters,” she added. “We have to do it.”

Cloteaux said that the IDS staff has faced harsh criticism and worse since the beginning of its coverage of the war and protests in October. Staff members have been physically threatened, stalked, and subjected to harsh commentary on social media, she said.

By November, the backlash had taken such a toll on the IDS’s morale that Cloteaux felt she had to respond. She published a letter to readers explaining how the outlet covers the war and addressing the criticism it received. “We are acutely aware that reporting on the Israel-Hamas war is inherently polarizing, and the IDS has received criticism from each side,” Cloteaux wrote. But she laid out in detail the steps the IDS takes to ensure accurate reporting and provide a multitude of perspectives from community members.

The transparency worked. Cloteaux told FPF that the letter to readers inspired an outpouring of support for the IDS. Cloteaux said the response showed that the staff needed “to keep going, keep doing our work, because the community needs to be informed and we won't be deterred.”

Unlike student journalists at Columbia, Dartmouth, and elsewhere, IDS reporters haven’t faced arrests or violence against student reporters by police. But reporters still worry it could happen. “We've seen a lot of protesters being violently shoved to the ground and arrested, and it's definitely a possibility for us as journalists as well,” Cloteaux said.

The IDS has also encountered a recalcitrant university administration. “It’s hard to get a hold of them now,” Cloteaux said. Even as protesters are calling on IU president Pamela Whitten to resign and the faculty voted no-confidence, the administration is not responding to IDS questions or public records requests.

The IDS — which is owned by IU though editorially independent from the university — is also under severe financial pressure. Losses in funding mean that it’s had to let some professional staff go and publish a print paper just once a week. “These cuts really affect our ability to inform the public and to serve our community,” Cloteaux said.

A university committee formed to find solutions to funding issues for student media on campus initially gave the IDS hope. Unfortunately, Cloteaux said that the results have been disappointing, and the IDS learned it was likely to face additional, crippling budget cuts.

In response, the staff staged a walkout, declining to publish any news on its website for 24 hours to bring attention to what the community would lose if the IDS went dark. That day, students erected the campus encampment, and police arrested dozens of protesters.

Pushback on student journalism

The hostile response and financial pressures Cloteaux reported was no surprise to the SPLC’s Hiestand. He said that journalists who have contacted SPLC since October have reported “pushback largely from community members and, but sometimes from administrators, sometimes from other students.” But college journalists, Hiestand said, have “the same rights as professional journalists, and then some.”

The First Amendment protects college journalists reporting at public colleges and universities, but doesn’t apply to private institutions. However, Hiestand explained that they may have policies or guidelines that protect press freedom. “I would hope that all school administrators would recognize … the valuable work that the student journalists are doing on their campuses,” Hiestand said.

Some of the “most egregious pushback” has been against high school students, Hiestand reported. Student journalists at the high school level have less First Amendment protection, and SPLC champions state legislation to restore high school students’ free press rights.

Hiestand also emphasized how student journalism programs train the next generation of reporters. “You don't just flip a switch … when they hit, you know, 21 years old and say, you know, go do your thing,” he said. “There is a lot of training that's involved … in bringing about good journalism and good journalists.”

Making student journalists resilient

It’s an unfortunate reality that training student journalists must now include teaching them how to respond to illegal arrests or attacks, as well as how to remain resilient in the face of physical threats and harsh criticism.

Cloteaux offered some thoughts for her fellow student journalists on that point: “I would say when things get hard, when it's dangerous and difficult and you receive so much criticism for your work, that's when your work matters the most,” she said. “That's when journalism matters the most. So don't be deterred by that. Be inspired by it.”

Listen to the full conversation with Cloteaux and Hiestand here.

Donate to the IDS here.

Screenshot of a 2023 "roundtable" hosted by Florida Gov. Ron DeSantis where he and his guests aired their grievances with the press. DeSantis is one of many public officials who often disregards established norms regarding media access.

There has been a disturbing uptick in recent years of instances where journalists have been prevented from covering public business or having access to public officials, in ways that violate laws, long-standing norms, or both.

Freedom of the Press Foundation (FPF) Director of Advocacy Seth Stern was among a group of journalists, policy advocates, and others who joined a symposium last year — convened by the Craig Newmark Center for Ethics and Leadership at Poynter — to discuss the problem.

This week, Poynter issued its report summarizing the discussion, as well as a “Journalist’s Toolkit” summarizing its findings and recommendations.

Stern emphasized the need for journalists to use their platforms to report press freedom violations and explain how officials are depriving the public of news.

“Journalists are historically hesitant to make themselves the story and/or worried that admitting the government is stifling their ability to report the news is a confession of weakness. That needs to stop,” he said.

Stern added that editorials about press freedom, although helpful, are not enough, because readers of the stories impacted by officials’ stonewalling may not read the editorials. Journalists, he said, should “make clear in the story that you would’ve liked to attend the event yourself or speak to the official or their staff but you weren’t allowed to do so. If they believe the coverage is biased, they have themselves to blame, and perhaps they’ll reconsider for next time.”

Stern also emphasized the impact of abuses of public records laws, including agencies charging journalists exorbitant fees to fulfill records requests.

The toolkit incorporates several of his recommendations, advising journalists to “platform the problem: publish when sources won’t cooperate” and to “tell your audience details about records denials.”

You can read the full report here and review the toolkit here.

Laws that prohibit journalists from reporting truthful information about public officials are unconstitutional censorship. Redacted by opensource.com is licensed under CC BY-SA 2.0.

If the head of the police department in your town lived so far away that he couldn’t be bothered to attend city council meetings and other community events, you’d want to know about it, right?

That’s exactly what New Jersey journalist Charlie Kratovil thought when he used a public record to reveal that Anthony Caputo, the New Brunswick, New Jersey, police director and head of a powerful city board, actually lived more than two hours away, in Cape May.

As thanks, Kratovil got a cease-and-desist letter from Caputo, who has since retired, threatening him with civil fines and even criminal prosecution under a state statute known as Daniel’s Law that prohibits the publication of the home address or telephone number of certain public officials.

Now, a new decision by New Jersey’s court of appeals in a case brought by Kratovil over Daniel’s Law has set a concerning precedent that could embolden lawmakers in the state and elsewhere to take up the censor’s pen against journalism.

Kratovil, represented by the ACLU of New Jersey, argued that Daniel’s Law was unconstitutional as applied to his reporting. While he hadn’t yet published Caputo’s exact street address in his reporting, he argued that prohibiting him from doing so violated the First Amendment.

The lower court and court of appeals rejected Kratovil’s argument that applying Daniel’s Law to his reporting violates the First Amendment. The appeals court concluded that the government has a compelling interest in protecting public officials from threats that could occur if their addresses are revealed. It also said that publishing Caputo’s exact address isn’t in the public interest, because all that really matters is the fact that he lives in Cape May, which the city of New Brunswick and Caputo begrudgingly conceded Kratovil could publish.

Laws that restrict truthful reporting are a bad idea

Protecting public officials from safety threats is important. But the answer isn’t to restrict truthful reporting. Kratovil’s dispute with Caputo shows exactly why government secrecy laws are a bad idea.

When we give officials the power to tell journalists what they can and can’t print, even in the name of privacy, officials inevitably try to stop reporting that they find embarrassing or inconvenient. That’s precisely what happened in this case.

When Kratovil first reached out to Caputo to ask if he lived in New Brunswick, the police department responded that his place of residence couldn’t be released under Daniel’s Law. Caputo then sent his cease-and-desist letter after Kratovil, at a city council meeting, said the street name where Caputo lived in Cape May, not his exact address.

Using a broad interpretation of Daniel’s Law, Caputo tried to bully Kratovil from reporting that he lived too far away to regularly attend city meetings. Caputo and the city didn’t change their tune until they were sued and it became clear how bad it would look to argue that a reporter can’t even name the city where the director of police lives.

But other journalists might not have the resources to fight back like Kratovil did. New Jersey officials who want to kill a news story raising questions about where they live, questionable real estate deals, or potential conflicts of interest can use Daniel’s Law to threaten reporters with fines or even jail time every time they want a news story killed.

Government secrecy laws like Daniel’s Law open the door to government censorship, either in law or through official pressure.

Court gets it wrong on the First Amendment

These kinds of government secrecy laws are also unconstitutional, despite what the New Jersey appeals court held in Kratovil’s case.

Kratovil got Caputo’s address from a public record. The Supreme Court has specifically held that a reporter can’t be held criminally or civilly liable for publishing truthful information obtained from public records, even in the face of privacy concerns.

The appeals court tried to brush Supreme Court precedent aside by deciding that Caputo’s exact address isn’t a matter of public concern. But being allowed to report where an official lives in vague terms isn’t as powerful as being able to prove it with specific information from public records, especially in an age when people often try to discredit journalism they dislike by labeling it “fake news.”

The First Amendment also requires that Daniel’s Law doesn’t restrict more speech than necessary to serve its goal of protecting public officials. But Daniel’s Law prohibits publishing an official’s address in the newspaper or just to a neighbor and regardless of the actual risks. It also doesn’t consider any alternatives, like providing additional protection to officials who are threatened.

Finally, the court of appeals said that Kratovil was not prohibited by Daniel’s Law from reporting Caputo’s address, because he remained free to publish it and face punishment after the fact. This was, essentially, the legal equivalent of, do you feel lucky, punk?

But numerous courts — including the Supreme Court — have held that government officials who try to shut down speech by threatening sanctions are imposing a prior restraint. When Caputo — the head of the police department — sent a letter to Kratovil threatening him with civil and criminal prosecution for publishing his address, it was a prior restraint. No journalist would feel free to try their luck publishing the address in the face of such a threat.

Copycat laws could be next

Kratovil has vowed to appeal to the New Jersey Supreme Court. It’s essential that he does, not just to challenge the law in New Jersey, but to stop a wave of copycat laws from springing up around the country.

Lawmakers are clamoring to make information about themselves and their fellow government officials off limits to the public. Congress previously enacted a federal equivalent of Daniel’s Law that bans basic facts about judges from being reported online. Last summer, it tried to sneak an equivalent provision into national defense legislation that would have censored information about members of Congress. That attempt failed, thankfully.

States other than New Jersey are also considering laws similar to Daniel’s Law. Maryland, for example, is working on a bill to prohibit the personal information of judges from being published.

These bills are popular because people rightfully want government officials to be safe. But that safety can’t come at the expense of the public’s ability to oversee the people who govern or police them. If upheld, New Jersey’s Daniel’s Law may become a model for chilling journalism around the country. The New Jersey Supreme Court must strike it down.

"The University of Texas at Austin" by nick.amoscato is licensed under CC BY 2.0.

FOR IMMEDIATE RELEASE:

Authorities should immediately drop all charges against Carlos Sanchez, the photojournalist arrested last week while covering a pro-Palestine protest at the University of Texas at Austin. Sanchez has reportedly been charged with assault on a peace officer, a second-degree felony.

“Violently arresting journalists and then charging them with felonies is unacceptable, authoritarian bullying,” said Freedom of the Press Foundation (FPF) Director of Advocacy Seth Stern. “It’s doubly bad when police were there to shut down free speech in the first place.”

Contrary to the police affidavit in support of the arrest, video of the incident does not show Sanchez intentionally hitting an officer with his camera, and there is no reason why a local television journalist, who was there to cover the protests, not participate in them, would strike an officer.

That’s likely why Sanchez was initially only hit with a trespassing charge (which was dropped) before officers tacked on the ridiculous assault charge.

“Even after law enforcement assaults of journalists covering protests in 2020 resulted in millions in settlement payments, many officers clearly haven’t learned their lesson,” Stern added.

“As even the U.S. Department of Justice has acknowledged, protests are newsworthy, and journalists need to be allowed to cover them and their aftermath, even when protesters are dispersed,” Stern said.

“It’s important to keep in mind that none of this would have happened if American universities weren’t inviting militarized police forces onto campuses to break up student protests,” he added. “The police response to the protests — against journalists and students alike — has been far more violent than the protests ever were.”

Authorities should drop the charges and apologize to Sanchez. Those involved in this needless assault on press freedom need to be held accountable.

Citizen journalist Priscilla Villareal of Laredo, Texas was arrested in 2017 for asking public officials questions. She's asking the Supreme Court to hold authorities responsible for the outrageous ordeal. Lights On Laredo Police by Phil's 1stPix is licensed under CC BY-NC-ND 2.0.

We’ve often commented on the alarming increase in frivolous attempts by local prosecutors to criminalize routine acts of journalism. The trend escalated last year, but the 2017 arrest of Laredo, Texas, citizen journalist Priscilla Villarreal was an early harbinger. 

Seven years later, lawyers from the Foundation for Individual Rights and Expression (FIRE) are hoping to take her case to the Supreme Court. It’s an opportunity for the justices to make clear to local authorities, from Kansas to Alabama, that they’ll be held accountable when they abuse their authority to retaliate against journalists and attack press freedom. 

Villarreal was charged under an obscure Texas law making it a crime to ask government officials for nonpublic information for personal benefit. It does not appear that anyone has ever been successfully prosecuted under the law. Any prosecutor — and we’d hope any American — should recognize that it’s unconstitutional to arrest someone for doing nothing more than requesting information from the government.  

A judge dismissed the case against Villarreal in 2018, rightly finding the law she was accused of violating unconstitutional. She sued, but the court determined that city officials were protected by qualified immunity. That legal doctrine shields government officials from lawsuits, even when they violate the Constitution, except when a court finds the illegality of their actions should have been obvious.

A panel of judges from the 5th U.S. Circuit Court of Appeals initially reversed that decision and ruled Villarreal’s lawsuit could proceed. But then the full court reversed again, agreeing that police are entitled to arrest journalists for asking questions with impunity as long as they can dust off some archaic law to justify their actions. 

One of seven dissenting judges, James C. Ho, put it well: “In the upside-down world of qualified immunity, everyday citizens are demanded to know the law's every jot and tittle, but those charged with enforcing the law are only expected to know the ‘clearly established’ ones. Turns out, ignorance of the law is an excuse—for government officials.”

The decision was particularly outrageous because it reasoned that the existence of “official” channels for journalists to get some government information, like public records requests, made it reasonable for police and prosecutors to assume unofficial channels can be outlawed. The First Amendment protects journalists’ right to gather news through any lawful means — not just to file public records requests and hope for the best.  

Citing transparency laws as a basis to criminalize newsgathering gets it entirely backward. As another dissenting judge, James E. Graves Jr., put it, “the government’s power to protect certain information,” through exceptions to public records laws, has nothing to do with “a person’s right to ask for it.”

Equally ridiculous was the 5th Circuit’s suggestion that officials had reason to believe Villareal had illegally “benefited” from the information she sought, since her reporting drove traffic to her Facebook posts. The press freedom clause of the First Amendment wouldn’t mean much if it permitted an exception for news outlets that make money.  

We hope the Supreme Court accepts review of this case and makes clear that public officials are expected to have a basic understanding of the most fundamental First Amendment principles, like the right of journalists (or anyone) to ask questions. 

This isn’t only a Laredo, Texas, problem — last year, police in Calumet City, Illinois, cited a journalist for asking too many questions. And last month, a Tampa fire chief called police on a journalist who requested public records (so much for those official channels). 

The court needs to fix this mess, not only for Villarreal’s sake but for the sake of all journalists victimized by local authorities who think they’re above the Constitution. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New York law could be a model for the country

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

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

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

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

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

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

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

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

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

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

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