Freedom of the Press

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

AP Photo/Aaron M. Sprecher

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

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

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

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

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

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

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

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

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

AP Photo/John Hanna

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

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

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

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

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

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

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

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

Chancey Bush/The Albuquerque Journal via Associated Press

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

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

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

You can read the op-ed here.

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

AP Photo/RHS

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

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

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

You can read the op-ed here.

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

Graeme Sloan/Sipa USA via AP

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

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

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

Read the full op-ed here.

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

Associated Press/Jae C. Hong

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

AP Photo via Los Angeles Times/Zoe Cranfill

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

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

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

You can read the full op-ed here.

Tents are seen behind wire fences near buildings outside a federal prison in Texas early in the COVID-19 pandemic. Jeremy Busby, a journalist incarcerated in a Texas state prison, writes that prison officials rewarded his successful social media campaign to expose and improve prison conditions during the pandemic by throwing him in solitary confinement.

AP Photo/LM Otero

When COVID-19 invaded the Texas prison system like a Category 5 hurricane, everything was washed away. Prison officials placed every prison facility on a lockdown, which confined us all to our cells 24 hours a day.

Conventional methods that I previously used to investigate and report legitimate news stories were no longer available. The inability to leave my cell and the shortage of staff compelled me to turn to an option that prison officials despise — social media.

After my COVID-19 reporting, prison officials are well aware of my ability to reach outside audiences, expose their wrongdoing, and force reform. They don’t want that to happen again.

My cellmate had a contraband cellphone. After our prison facility (Mark W. Stiles Unit) lost 60% of its staff, including the entire mailroom, because they were sick with COVID-19, and nearly 50 percent of the prisoners contracted the virus, I decided to take action.

I created pages on Facebook, Instagram, and Twitter (now known as X) to inform the general public of the conditions that Texas prisoners and staff members were experiencing. On Facebook, I posted the number of prisoners and prison staff who died from COVID-19. On Twitter, I started threads about the lack of hand sanitizer, masks, and effective COVID-19 protocols inside Texas prisons.

On Instagram, I went live with hip-hop artist and activist Trae tha Truth to detail our plights. I also started the hashtag #AllEyesOnTDCJ, which went viral.

Texas prison officials responded by issuing bleach, masks, fresh fruit, and hot meals to prisoners, and adopting an official COVID-19 protocol from the Centers for Disease Control and Prevention.

They also wrote me a disciplinary case and tossed me into solitary confinement for 22 months.

Under the guise of “security,” state prison officials across the country are enacting policies to censor incarcerated journalists from accessing social media to publish fact-based journalism. The federal Bureau of Prisons is proposing heightening penalties for social media use and even barring incarcerated people from having people on the outside post for them.

These policies not only violate incarcerated journalists’ constitutional rights to freedom of speech, they’re government overreaches that present a plethora of concerns for the public, including stopping real news stories in the name of security.

Social media has become the primary news source for countless people. According to a 2023 survey by the Pew Research Center, for example, nearly half of American adults rely on one of Meta’s (owner of Facebook, Instagram, and WhatsApp) platforms for news.

Prison policymakers should recognize that the government cannot be the arbiter of truth. The push to ban incarcerated journalists from using social media is censorship of constitutionally protected speech. The goal is not security, but to further isolate incarcerated journalists in an industry where incarcerated journalists are not considered important.

Prison officials in Texas have historically been notoriously harsh with incarcerated journalists and others who expose their abuses. There have been documentaries made on the oppression incarcerated activist Fred Cruz endured at their hands, from obstruction of outgoing/incoming mail and unjust placement in solitary confinement to bogus disciplinary infractions and physical attacks. I’ve written about the similar retaliation that I've endured for my journalism, which continues to this day.

Social media bans allow further retaliation like what I experienced after the #AllEyesOnTDCJ campaign. In 2016, Texas prison officials enacted a social media ban that prohibited prisoners from using social media or for anyone associated with a prisoner to use social media on their behalf. That policy is vague and arbitrarily applied.

These policies serve no real penological interest other than allowing prisons and prison officials to escape the news coverage that other government entities are subjected to.

Several other states have enacted such policies, and the current federal proposal would restrict “accessing, using, or maintaining social media, or directing others to establish or maintain social media accounts on the inmate’s behalf." Violation of this policy would result in a prisoner placement in solitary confinement, loss of parole eligibility, or a fine.

These policies serve no real penological interest other than allowing prisons and prison officials to escape the news coverage that other government entities are subjected to.

For example, Texas prisons have recently experienced an alarming spike in homicides and suicides by prisoners. In addition to reporting on this for traditional print media, it's been my desire to reach the huge percentage of Americans who rely on social media for their news.

Afraid of the publicity and subsequent demands for accountability, prison officials retaliated against me again. On June 12, days after a prisoner, who worked as a suicide prevention specialist, died by suicide at my facility, prison officials locked me in solitary confinement without any of my personal property.

Starting 12 days later I was arbitrarily transferred to two different prisons over three days. At my current facility, I have been held in solitary confinement without a mattress, toilet paper, or any basic necessities. My scheduled visitations, including with media outlets and members of my social media team have been denied, supposedly due to the transfers.

This crackdown is designed to suppress free speech, including on social media. After my COVID-19 reporting, prison officials are well aware of my ability to reach outside audiences, expose their wrongdoing, and force reform. They don’t want that to happen again.

The right to freely express one's self — incarcerated or not — is an inalienable right that should never be infringed upon. Government transparency and accountability hinges on incarcerated journalists' ability to report what's happening inside every prison to the general public.

As a nation, we must fight this unethical form of censorship. Prison officials are public servants and their actions and policies must reflect that. Banning social media for incarcerated journalists is a government overreach that is contrary to the public interest.

A new decision by Judge I’Ashea L. Myles denying access to records from the Covenant School shooting investigation is the first time a Tennessee court has held that copyright law trumps the state’s public records act.

AP Photo/George Walker IV.

A recent court decision denying access to public records related to Nashville’s Covenant School massacre used a novel legal theory that could have wide-ranging implications for other public records requests.

Chancery Court Judge I’Ashea L. Myles’ decision prevented the release of the Covenant School shooter’s manifesto and other writings, artwork, and video to journalists at The Tennessean newspaper and others on the grounds that the release would violate federal copyright law. It’s the first decision in Tennessee concluding that copyright law trumps the state’s public records act.

As the United States faces a seemingly endless plague of mass shootings at homes, schools, grocery stores, and places of worship, some argue that it’s better to keep the vile rantings of the perpetrator a secret, while others maintain that public access to these records is necessary for government accountability and stopping future violence. News outlets should be free to make their own decisions on the matter, based on the judgment of editors, not judges.

But the copyright theory relied upon by the court in the Covenant School shooting case doesn’t hinge on anything unique to violent manifestos. It would apply equally to copyrightable records that have nothing to do with killings or criminal cases.

In fact, many public records that have important information about what the government is up to could be subject to copyright. Under this decision, they would be totally exempt from disclosure to the public and the press.

Take emails, for instance. Emails between government employees and people outside of government — obtained using public records requests — are often essential to news reports.

Journalists at the nonprofit research group U.S. Right to Know, for example, used public records laws to ask for emails between public employees and food and pesticide companies. Those emails revealed how companies like Monsanto and others have “aggressively recruited” academics at public universities to defend genetically modified foods or how Coca-Cola has tried to influence health officials.

But emails are also copyrightable under federal law. What if these large corporations could block our right to know about their attempts to sway the government and the public by claiming their emails with public officials are copyrighted and must be kept confidential? Under the recent Tennessee decision, it’s possible.

And what about emails and other written records by public officials themselves? While works created by the federal government are automatically in the public domain, that’s not the case in many states, where even government-created works are considered copyrightable.

We’ve seen how bad-faith actors already misuse copyright law to try to block reporting they dislike.

State public records laws should be considered authorization to copy and disclose government-created works, even if they’re copyrighted. But we’ve seen how bad-faith actors already misuse copyright law to try to block reporting they dislike. It’s not hard to imagine a government employee with something to hide trying to deny a records request for a government record like an internal memo or police bodycam footage based on copyright. Even if the employee ultimately loses, the cost and delay they can impose by raising copyright as an objection to releasing records will inhibit reporting.

Tennessee isn’t alone in holding that copyright law trumps state public records law; the court’s decision in the Covenant School case cites cases from a few other states. But other courts have reached the opposite conclusion.

Under the federal Freedom of Information Act, for instance, courts have held that copyrighted works aren’t automatically exempt from disclosure. Other state courts have relied on copyright’s protection for “fair use” to allow disclosure of public records that may also be copyrighted — an argument that Myles refused to even consider in her recent decision.

Myles’ decision is sure to be appealed, and the higher courts in Tennessee should take note of these decisions, as well as the potentially disastrous consequences of letting copyright defeat public records laws. Copyright makes writings and other works private property, but public records belong to the public. The two simply don’t mix.

Federal prosecutors in Michigan and around the country are claiming a startling new power: the ability to decide what is or isn’t “legitimate” journalism. Even as President Joe Biden and his administration declare that “journalism is not a crime,” federal prosecutors are attempting to define away journalism so they can go after reporters — with disastrous consequences for press freedom.

Prosecutors disparage documentaries

In Michigan, prosecutors recently attacked journalist Trevor Aaronson and the entire field of documentary journalism, simply because Aaronson wants to report on a local terrorism prosecution of a Michigan man, Aws Naser.

The First Amendment protects reporting on criminal cases, because openness and transparency help make our justice system fair. But the government accused Aaronson of having “improper motives” and plans to present a “biased” and “one-sided” point of view, all because he’s been speaking with Naser and may want to make a documentary about the case.

Even more disturbingly, prosecutors claimed that documentaries aren’t legitimate journalism. Documentaries aren’t like news articles, prosecutors wrote, because they’re “powerful vehicles for presenting a narrative, evoking strong emotions, and creating a long-lasting impression of the subject matter” and may focus “on a specific perspective and leav(e) out important information.”

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Aaronson recently spoke to Freedom of the Press Foundation (FPF) about the “egregious and false” accusations against him. Prosecutors’ actions, he said, are a form of intimidation. “In my opinion, the fear is that this creates a chilling effect,” Aaronson added.

The basic premise of prosecutors’ argument — that the government has the power to define journalism — is also wrong and, if accepted by courts, would threaten press freedom. The First Amendment ensures freedom of the press by protecting it broadly, including everything from handbills to blogs.

Reporting that relies on evocative or emotional narratives also doesn’t lose its First Amendment simply because it’s effective. In Michigan alone, documentaries have used entertaining devices or powerful personal stories to cover some of the most important news stories in recent decades, from the General Motors’ decline to the Fab Five and the Flint water crisis.

Most importantly, giving the government the power to define journalism would empower it to stifle or censor news reporting it dislikes. That’s especially true if courts let prosecutors define journalism based on whether they consider a particular medium or reporter “biased.” The First Amendment says nothing about objectivity, and it’s rare for a government official to admit that criticism of their actions is fair.

To the contrary, countless government officials have spuriously accused journalists who report critically about them or expose their wrongdoing of one-sidedness, bad reporting, or other misconduct. In almost every case, officials were actually upset that journalists were holding them accountable.

That may be exactly what’s happening in Aaronson’s case. Aaronson is well known for his reporting on problematic FBI undercover investigations. It’s a safe bet that this past reporting played a big role in the government’s attempt to stop him from digging into this more recent case, in which Naser has also alleged FBI misconduct.

Not ‘real’ journalism excuse

But at least the government isn’t actually prosecuting Aaronson — it’s trying to prevent him from accessing court records to stymie his reporting. In other cases, prosecutors have used the “it’s not journalism” excuse to actually criminalize reporting.

Earlier this year, the government charged journalist Tim Burke with breaking federal laws for finding unaired Fox News footage of an antisemitic rant to Tucker Carlson by Ye, formerly Kanye West, on the internet and disseminating it. Burke’s past reporting is well known, and although he’s no longer employed by a news outlet, he continues to consult for them. Last year, a federal judge recognized that Burke is a “member of the media.”

But the FBI and prosecutors seem to be waiving away concerns that they’re targeting a journalist, by ignoring the news value of the clips Burke reported on, referring to him as a former journalist, or being cagey about whether they complied with laws and policies meant to protect reporters.

Then there’s the recently settled case against Julian Assange. The debate over whether or not Assange is a journalist is a red herring. The government knew full well that convicting Assange for obtaining and publishing government secrets under the Espionage Act would set a disastrous precedent for journalism — that’s exactly why the Obama administration declined to prosecute him.

Unfortunately, that hasn’t stopped prosecutors and other government actors from repeatedly arguing that Assange isn’t a journalist, in a cynical ploy to confuse people into thinking that the case, and the Espionage Act, wouldn’t impact “real” journalists.

Journalism is an activity, not just a job

To protect freedom of the press, courts and lawmakers need to treat arguments like these — that certain forms of journalism “don’t count” or that a journalist’s point of view puts them outside the First Amendment — as complete nonstarters.

Instead, we should look to a “functional definition” that considers whether a person is performing an act of journalism: finding news and sharing it with the public. For example, the PRESS Act — the federal reporter’s shield bill that’s passed the House and is under consideration in the Senate — would use a functional definition to protect any person who regularly gathers, writes, or reports the news from government spying or being forced to reveal their sources.

The functional definition safeguards the public’s right to know. It recognizes that the First Amendment protects journalism by a neighborhood blogger just as much as it would reporters at The Wall Street Journal or The Washington Post. It applies equally to journalists who praise the government and those who denounce it.

Journalists themselves also need to cover these stories and point out why attacking freelancers like Burke, documentarians like Aaronson, or citizen journalists like Priscilla Villarreal (who was arrested for nothing more than asking government employees questions) is so problematic for press freedom.

If the government can deny journalists access, impede their reporting, or even prosecute them whenever it makes the self-serving decision that their journalism isn’t legitimate, then journalism will, in fact, be a crime.

We urged Milwaukee Police Chief Jeffrey Norman, pictured here at a press conference regarding next week's Republican National Convention, to ensure that journalists are able to report freely on protests and civil unrest.

AP Photo/Morry Gash

As journalists arrive in Milwaukee to cover the 2024 Republican National Convention (RNC) at the Fiserv Forum, local police must be aware of and protect journalists’ constitutional right to report, especially on protests.

In a letter to the Milwaukee Police Department, Freedom of the Press Foundation (FPF) outlined the constitutional and legal protections available to journalists, and discussed steps police can take to protect press freedom and the public’s right to know.

With the ongoing war in Gaza, disputes over the border, and Donald Trump’s nomination, we can expect the public to take to the streets during the RNC. This is even more true in the wake of the killing of Dvontaye Mitchell at the Hyatt Regency hotel downtown, which put the spotlight on the host city. We told Police Chief Jeffrey Norman:

Officers must foster a safe environment for journalists outside the RNC and any other protests. … The decisions of your department are more important now than ever. Not only can you ensure a well-informed public and a stronger democracy, you can avoid the reputational and legal and economic pitfalls suffered by so many other police departments that have mishandled their protest responses in recent years.

You can read the full letter here. It’s also embedded below.

Swearing in Donald Trump’s defense secretary was among Supreme Court Justice Samuel Alito’s official duties. Keeping Trump out of prison by butchering the Constitution is not.

Public domain

The Supreme Court stunned legal experts last week by deeming presidents absolutely immune from prosecution for “core” constitutional duties and mostly immune for “official acts.” Otherwise, the court’s conservative majority reasoned, the prospect of criminal charges would make presidents less “energetic.”

But when it comes to the energy levels and effectiveness of reporters performing their own core constitutional duty — tracking down important news, including about the Supreme Court — it seems many journalistic ethicists don’t share similar concerns.

Case in point, the backlash against filmmaker Lauren Windsor last month for secretly recording comments by Justices Samuel Alito and John Roberts.

Who called the journalism police?

Alito’s recorded remarks shed light on his worldview — that coexistence between the right and left is a pipe dream, and “one side or the other is going to win.” In hindsight, that helps explain why he and his colleagues threw “originalism” to the wind to hand Donald Trump a win.

The public’s trust in journalists seems unlikely to be diminished by their not letting justices hobnob in peace.

But the prevailing view among ethics experts was that the ends didn’t justify the means. Law professor Jane Kirtley told The New York Times that “most ethical journalists deplore those kind of techniques,” asking, “How do you expect your readers or your viewers to trust you if you’re getting your story through deception?” Kelly McBride of the Poynter Institute said she’d never seen a justifiable example of deceptive reporting.

If some outlets believe surreptitious newsgathering undermines public trust and prefer to avoid it, that's their prerogative. But there’s room for other approaches. A Supreme Court that routinely issues dubious decisions and overturns decades-old precedent while justices accept lavish gifts from billionaires begs for unrestrained investigation, not gatekeeping.

Justices aren’t accountable to voters and don’t often grant interviews. Their correspondence isn’t subject to FOIA. They’ve resisted recent calls for transparency, only begrudgingly adopting a toothless code of conduct. The Biden administration isn’t eager to publicly investigate them.

What are journalists supposed to do? Hope news about the court falls on their laps? Windsor, who raised similar points to defend her work, tried something else: using arguably unsavory methods to confront a definitely unsavory situation.

Her critics admit she didn’t break Washington, D.C. law. She paid for a ticket to a Supreme Court Historical Society event Alito and other justices were scheduled to attend. These events have long allowed the well-heeled to gain access to justices that reporters can only dream of. The public’s trust in journalists seems unlikely to be diminished by their not letting justices hobnob in peace.

That trust is already at a record low, not because of journalists’ methods, but because people don’t believe they’re reporting “fully, accurately and fairly.” Windsor recording Alito to report news is far less damaging to the media’s reputation than, for example, Nina Totenberg covering for Ruth Bader Ginsburg to not report news.

And let’s not forget Windsor’s recording came shortly after Alito threw his wife under the bus following reports he flew an “Appeal to Heaven” flag, signifying a “push for a more Christian-minded government,” right in line with what Windsor recorded.

That flag — like one that flew outside another Alito home in 2021 — also demonstrates support for Jan. 6 insurrectionists. Incidentally, The Washington Post withheld the flag story to protect Alito’s wife: another questionable call by the establishment press that breeds far more distrust than surreptitious recording.

Now that the story’s finally out, the public should know that the justice flying those flags, and joining radical rulings, thinks we’re in the midst of a battle between good (the pro-Trump religious right) and evil (everyone else).

Yes, Windsor deceived Alito by posing as a religious conservative. But Alito deceives America by posing as a principled originalist. Bottom line: The deception Windsor helped expose is far more consequential than the deception she carried out.

Undercover reporting under attack

The current opposition to undercover reporting, even under circumstances in which leading ethical guidelines seem to permit it, may arise from its association with disreputable outlets like Project Veritas. Their employees mislead not only secretive government officials but the public, including through deceptive editing.

Bottom line: The deception Windsor helped expose is far more consequential than the deception she carried out.

But undercover reports used to be a hallmark of prime-time news broadcasts. Even before miniature cameras made those investigations possible, the Chicago Sun-Times operated a sham bar — the Mirage Tavern — to catch shady government dealings. Before that, northern journalists went undercover to document the horrors of slavery.

The change wasn’t prompted by some ethical epiphany, but a court case, Food Lion, Inc. v. Capital Cities/ABC, culminating in a 1999 appellate decision allowing journalists to be sued over newsgathering tactics.

Law professor Alan Chen explained that the case, which involved reporters getting jobs at grocery stores to record unsanitary practices, appears to have immediately upended conventional thinking on surreptitious reporting. Chen notes that Food Lion even distributed a curriculum based on the case to journalism professors.

Sure, there were previous discussions on the subject. The Pulitzer board in 1979 debated whether the Mirage Tavern investigation’s deceptiveness was disqualifying, as argued by the Post’s Ben Bradlee. But that only underscores that, back then, a story like that could’ve been nominated in the first place (previous undercover reports had won).

Times have changed — in more ways than one. Today, conventional newsgathering often doesn’t work. FOIA is broken. Agencies route inquiries through spin-spewing spokespeople. Political candidates refuse to interact with journalists. Officials retaliate against and censor reporters. No one can even definitively determine if the current president has a serious cognitive condition.

Under the circumstances, it seems selfish for the press to elevate concerns about its own image over the public’s interest in the news.

Following the Trump v. U.S. decision, Heritage Foundation President Kevin D. Roberts proclaimed that the country is “in the process of carrying out the Second American Revolution.” Echoing Alito, he added that “our side is winning.”

If people as influential as Roberts say that in the open, imagine what they say behind closed doors. Or maybe journalists shouldn’t imagine — they should find out. They’d better start before Trump tries silencing them altogether through those “official acts.”

Former Mississippi Gov. Phil Bryant, above, has demanded that two reporters reveal the sources for their reporting on a welfare fraud scandal in the state. The legal battle shows how dangerous a lack of shield laws can be for journalists and sources. Dewey Phillip 'Phil' Bryant , Mississippi Governor, LAGOP GOTVR Dec2016 137 (31470349421) (cropped) by Tammy Anthony Baker from Louisiana is licensed under CC BY 2.0.

We’ve written a lot about why Congress needs to pass the PRESS Act, the bipartisan federal bill that would shield journalists from government spying and from being forced to turn over their confidential sources. Strong protections for journalist-source confidentiality encourage whistleblowers and sources to come forward with newsworthy information that the public might otherwise never know.

But Congress isn’t the only place where we need a law strengthening the reporter’s privilege. A small number of states also lack a reporter's privilege statute. Even though judges in all of these states (except Wyoming) have recognized some protection for journalists’ sources and newsgathering materials, without a law on the books, journalists and their sources are still at risk.

Case in point: Mississippi, where journalist Anna Wolfe and her editor Adam Ganucheau are facing contempt of court for refusing to reveal confidential sources for their reporting in Mississippi Today about a massive criminal welfare fraud scandal.

The investigative series won the Pulitzer Prize. Among other things, it revealed that former Gov. Phil Bryant guided Brett Favre, the former NFL quarterback, on how to secure welfare funding for a volleyball stadium at University of Southern Mississippi, where Favre’s daughter played.

In response, Bryant sued — not over the original reporting, which he hasn’t contested, but over after-the-fact characterizations of the investigation. As part of his lawsuit, Bryant has demanded not only Wolfe’s sources for this investigation but all of the communications that every Mississippi Today reporter has had with sources about him for the past several years.

Mississippi has no law protecting reporter-source confidentiality, but most trial courts in the state have recognized the privilege. Still, because those decisions aren’t binding on other courts, Mississippi Today, Wolfe and Ganucheau have been forced to ask the Mississippi Supreme Court to recognize a reporter’s privilege for the very first time.

Unless and until the court rules in their favor, Wolfe, Ganucheau, and all Mississippi reporters are vulnerable to chilling demands for their sources.

So are journalists in other states without a reporter’s privilege written into state law. Relying on courts to develop and apply a judge-made privilege can lead to gaps, confusion, and weaker protections.

Mississippi isn’t the only state that lacks both a codified reporter’s privilege and a decision from the state’s highest court recognizing one. The Missouri Supreme Court, too, has yet to recognize a reporter’s privilege, though the state court of appeals has done so several times. That puts journalists in Missouri in a precarious position.

Even in other states where the highest court has spoken, court-made privileges can lead to gaps in the law or confusion, especially if that court has issued very few decisions discussing the privilege. Because courts make decisions on a case-by-case basis and decide only the issues before them, an application of the reporter’s privilege in one set of circumstances may not resolve the question of its application in another. This lack of certainty can discourage sources from coming forward, because they can’t be sure whether or not the law will protect them.

The Virginia Supreme Court, for example, has just one decision recognizing the privilege, and only in criminal cases. While lower courts in the state have determined that the privilege also applies in civil cases, those decisions aren’t binding on other lower courts or the state Supreme Court. A statutory reporter’s privilege could make clear that it applies in both criminal and civil cases, and to demands both from the government and from private litigants.

Individual state court decisions may also leave other questions about the privilege open: Does it apply only to confidential sources or also to other confidential or nonconfidential newsgathering materials? Does it protect freelancers or citizen journalists? Is it absolute or qualified, meaning it can be overcome in certain circumstances? In contrast, a codified reporter’s privilege can address these and other details, giving journalists and sources the certainty they need about when they can rely on the privilege.

Finally, court decisions can always be limited or even overturned in later cases, making them less durable than a statutory protection. The Idaho Supreme Court, for example, initially entirely rejected a reporter’s privilege, only to change its mind in its 1985 decision in In re Wright. According to one expert, however, “In its most recent examination of the privilege, the Idaho Supreme Court has again indicated a hostility toward the privilege and strictly limited the ruling in Wright.”

Although statutes can also be repealed, lawmakers may be reluctant to undo popular shield laws knowing they’re accountable to the electorate.

It’s good that courts in states without a statutory reporter’s privilege have stepped in to protect journalists and sources. A judge-made privilege is better than nothing. But lawmakers in those states shouldn’t be satisfied to sit back and rely on this precedent to protect the press.

We need every state in the country, as well as Congress, to pass strong shield laws that comprehensively protect journalists from being forced to turn over their notes and reporting materials or otherwise burn their sources. The free press and the public’s right to know is too important to leave the decision up to the courts alone.

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

In a recent decision, the U.S. Supreme Court made it easier for individuals to sue if they can prove they were retaliated against for exercising First Amendment rights. For Asheville journalists Veronica Coit and Matilda Bliss — who were arrested and convicted for covering a police sweep of a homeless encampment at a public park — the court’s ruling bolsters their appeal of their conviction, as well as any lawsuit they may eventually file.

Freedom of the Press Foundation (FPF) Advocacy Intern Jimena Pinzon and Advocacy Director Seth Stern wrote for the Asheville Citizen Times about why this decision should give Bliss and Coit hope.

Last week’s decision is a win for press freedom nationwide because it empowers reporters who are needlessly arrested and prosecuted to seek justice in court. Officials in Asheville should take note and start thinking about cutting settlement checks and, more importantly, reforming their anti-speech practices going forward.

You can read the full op-ed here.

Incarcerated journalists already have little to no meaningful access to social media. A proposed change to federal Bureau of Prisons rules would make things even worse. "Federal Prison" by jtuason is licensed under CC BY-SA 2.0.

Social media bans in prison cause harm to journalists — both inside and outside prison gates. For journalists in prison, access to social media is critically important to gathering information, communicating with sources, and sharing their work with the public.

Prohibiting access to social media and heightening penalties for violations, as the Federal Bureau of Prisons has proposed, would further deny journalists in prison the right to exercise their freedom of expression.

The proposal, which could also bar incarcerated people from having others operate social media accounts on their behalf, would additionally deny journalists outside prison their ability to talk to incarcerated people. That’s a denial of rights that cannot be allowed.

It is crucial to find a balance between security concerns and the rights of individuals, including journalists on the inside. No one can discount the daunting task that prison officials face having to filter out nefarious actors seeking to use social media to commit crimes from those upstanding prison residents that pose no harm to the public.

But as a former incarcerated journalist without ill intentions, I had to contend with a total social media blackout as if I were seeking to wage jihad against America. Thousands of other journalists face the same obstacles.

Social media bans act as a blockade to any source of information that incarcerated journalists could use to produce high-quality work.

In 2022, after 12 years in federal prison for drug trafficking, I became a journalist writing for outlets such as parents.com, The Marshall Project, and the Columbia Journal. I had a burning desire to rewrite the narrative that was being fed to my country about people like me who lived behind the fence.

But for journalists who do not write about life behind the fence but instead choose to write about issues that face the country outside of prison, social media bans act as a blockade to any source of information that they could use to produce high-quality work.

This is why we must collectively breathe fresh air into the fight for the rights of incarcerated journalists who are smothered by social media bans. And although the currently proposed rule might make a ban official and increase the risks faced by those who use social media inside prisons, in my experience and that of other federal inmates I know, incarcerated people already have no meaningful access to social media.

Social media provides a platform for journalists and writers to share their work and engage with not only their professional network but also their audience. A ban on social media in prison, like the one I faced, makes it impossible for journalists and writers to connect with their readership, potentially limiting their impact and reach. It begs the question: What good is a writer without a reader? Questions like these stab at the soul of a dedicated journalist, causing wounds that may never heal.

The problems that social media bans in prison present a journalist go beyond keys, locked doors, or other digital barriers. There are also long-lasting psychological and emotional consequences that stem from not being able to amplify your voice and be heard.

For journalists and writers, social media can serve as a means of therapy, inspiration, and creative expression. A ban on social media can lead to feelings of isolation, frustration, and a loss of an outlet for self-expression impacting your mental well-being. These mental strains add to a weight that is already too much of a burden to bear.

The social media ban in federal prison transformed me into a rule-breaking miscreant. Third-party companies that outmaneuver the existing messaging systems, such as CorrLinks, allow incarcerated writers to bypass the digital gatekeepers and access the eyes and ears of the general public.

I will not divulge how these third parties operate but it goes without saying that an inmate’s use of them is illegal and if caught using such a resource an incarcerated journalist faces harsh, even tortuous punishments, such as weeks in solitary confinement or even months added on to their sentence.

While living inside prison walls, a journalist’s voice does not go away. Instead, it’s stored in an attic of legislation and bad regulation.

I was caught using one of these disallowed services but was able to dodge time in solitary confinement because of a technicality. Many of my comrades on the inside were not so lucky, and the bureau’s proposal could make the situation even more dire.

While living inside prison walls, a journalist’s voice does not go away. Instead, it’s stored in an attic of legislation and bad regulation. But incarcerated journalists, like every other journalist, want the public to know the truth.

Whether it be about war, abortion, poverty, or prison itself, incarcerated journalists deserve the right to report a well-informed story to the world. They deserve the right to tell the world how we really lived and struggled to remain safe and sane in what is sometimes a deadly environment. They also deserve the right to tell the story about some far-off village halfway around the world if they choose.

An incarcerated journalist deserves the right to have a voice, and people on the outside deserve the right to hear that voice. Unfortunately for those who seek a change from their lawbreaking past and do not wish to run afoul of prison rules, their voice becomes a silent one drowned out by the volume of red tape and draconian policies that put and keep social media bans firmly in place.

Red tape, restrictions, and delays also make it extremely difficult for journalists on the outside to report on prison conditions. When journalists on the inside can’t get the word out either, transparency becomes virtually nonexistent.

The fight for the right of incarcerated journalists to access social media is a collective one. As they languish behind barbed wire and big walls, we on the outside must push the envelope and pound the pavement in an effort to amplify their voices and have their rights respected.

The Supreme Court’s decision in the social media content moderation cases reaffirms important First Amendment protections for the press. File:Panorama of United States Supreme Court Building at Dusk.jpg by Joe Ravi is licensed under CC BY-SA 3.0.

The Supreme Court reinforced key protections for the news media in yesterday’s decision on social media content moderation and the First Amendment. It made clear that, just as the government can’t force a newspaper to print something its editors don’t want to print, the government can’t force online platforms to carry content they don’t want to carry.

The decision is a win that will help protect free speech, including by the press, from government censorship disguised as an attempt to combat bias. But one justice’s concurrence raises some troubling questions about the First Amendment’s application to the TikTok ban case.

Content moderation at the court

The NetChoice cases involved a challenge to the constitutionality of Texas and Florida laws regulating how social media companies handle users’ online speech. Arguing that liberal platforms were “censoring” conservative voices, Republican legislatures in both states passed laws that limited platform content moderation.

Two federal appellate courts reached opposite results. In a widely derided opinion, the 5th U.S. Circuit Court of Appeals held that the Texas social media law was likely constitutional because content moderation is censorship, not speech. In contrast, the 11th U.S. Circuit Court of Appeals concluded that the Florida law likely violated the constitution.

The Supreme Court said that neither court of appeals got it quite right because they didn’t apply the correct legal test, and it sent both cases back to them to do so. But a majority of justices also concluded that content moderation, at least as it’s done by the big platforms on their main news feeds, is protected by the First Amendment.

That means the decision isn’t a victory for these state laws, as the Florida attorney general has claimed. Instead, it’s a win for free speech — and may become an important precedent for the press as well.

Key press precedent stands

Importantly for the press, the court’s majority opinion relied heavily on a crucial press freedom precedent to explain how the First Amendment applies to content moderation.

In Miami Herald v. Tornillo, the court recognized that the First Amendment protects the right to engage in editorial decision-making. In that case, the court struck down a Florida law that gave candidates for office a right to publish an answer to newspapers’ criticism, because the First Amendment gives newspapers — not the government — the right to decide what to print and how to cover newsworthy issues.

Tornillo was decided in the 1970s, and some wondered whether a conservative Supreme Court would look disfavorably on an older case protecting the press.

However, in NetChoice, the majority opinion relied heavily on Tornillo to explain how the First Amendment’s protection for editorial discretion prohibits government censorship in the name of “balance.”

The court’s reaffirmation of Tornillo is especially important as the news media faces increased risk of hostile legislatures and executive officials who want to limit their First Amendment rights.

Former President Donald Trump and his associates have made no secret of the fact that he believes that the news media is biased against him. Trump has also repeatedly called on news outlets to be regulated based on their negative coverage of him or failure to carry his remarks.

If Trump is reelected, Tornillo may be an important bulwark against his future attempts to interfere with the press and its decisions of what to publish or not publish about him.

Facial First Amendment claims carry on

The court sent the NetChoice cases back to the lower courts because it said they hadn’t applied the right test for “facial” First Amendment challenge to Texas and Florida laws, that is, unconstitutional in all circumstances, as opposed to its application in a particular case.

The court hinted at oral argument that it might rule this way, and some of the justices’ questions even raised concerns that it might make it harder to prove a First Amendment facial challenge.

That didn’t happen. As a result, journalists and news media outlets who want to bring facial challenges to future law impacting their First Amendment rights still can.

One justice clocks TikTok

The NetChoice decision isn’t all good news for the First Amendment, however. Justice Amy Coney Barrett’s concurrence includes a disturbing hint about how she — and potentially other justices — might view a First Amendment challenge to a TikTok ban, as well as the First Amendment rights of foreign news outlets.

Although foreign ownership of platforms has nothing to do with the NetChoice case, Barrett wrote in her concurrence that “the corporate structure and ownership of some platforms may be relevant to the constitutional analysis” because “foreign persons and corporations located abroad” do not have First Amendment rights. She posed “hypothetical” questions about content moderation policy and decisions influenced from abroad that seemed to clearly have the claims that the Chinese government pulls the strings at TikTok in mind.

We’ve written many times about how a TikTok ban undermines the First Amendment. But, even more worryingly, Barrett’s concurrence has troubling implications for journalists and news outlets operating abroad, who, she says, have no First Amendment rights.

It seems that some executive branch officials agree. For example, before it reached a plea deal with Julian Assange, the U.S. recently failed to give U.K. courts adequate assurance that Assange, a foreign national, could rely on the First Amendment to defend himself.

But regardless of whether foreign social media platforms, news outlets, or journalists themselves have First Amendment rights, Americans have a First Amendment right to receive information from foreigners, and Americans have a right to communicate through whichever platform they prefer, no matter who owns it.

As the Electronic Frontier Foundation explained in a legal brief joined by Freedom of the Press Foundation (FPF) in a case challenging the federal TikTok ban, “The use of TikTok by its millions of American users to share and receive ideas, information, opinions, and entertainment from other users around the world lies squarely within the protections of the First Amendment.”

Barrett’s concurrence doesn’t mention any of that. Even as the court reiterates core First Amendment principles in NetChoice, it may need a reminder of others when it comes to TikTok.

Julian Assange is understandably overjoyed to finally be free, but people who value investigative journalism shouldn’t be similarly thrilled by the terms of his plea deal. Above, the WikiLeaks founder gestures after landing in Australia on June 26.

AP Photo/Rick Rycroft

We were relieved to see the prosecution of Julian Assange resolved without an adverse court ruling that could have existentially threatened the First Amendment. But we made clear, through news outlets from PBS News Hour to The Guardian, that the Biden administration deserves zero credit for that outcome, given that it forced Assange to plead guilty under the Espionage Act to gain his freedom.

Freedom of the Press Foundation (FPF) Executive Director Trevor Timm wrote in The Guardian, “While it should be a relief to anyone who cares about press freedom that Assange will not be coming to the US to face trial, the Biden administration should be ashamed at how this case has played out.”

FPF Advocacy Director Seth Stern added in the Daily Beast that the only impact of the plea agreement “will be to legitimize the criminalization of routine journalistic conduct and encourage future administrations to follow suit—including a potential second Trump administration.”

For more, watch Timm and Stern weigh in on the alarming implications for journalists and the press on BBC and Democracy Now, as well as in Timm’s appearance on PBS News Hour.

The government said in the Julian Assange case that it would never use the Espionage Act against traditional journalists. But it claims the act restricts journalists at the military newspaper Stars and Stripes. "STARS AND STRIPES (May 1, 1973) - IT'S OVER - THẾ LÀ KẾT THÚC" by manhhai is licensed under CC BY 2.0.

We’ve spent the week warning that Julian Assange’s guilty plea — although better than an adverse court ruling — dangerously legitimizes the idea that the government can convict journalists under the Espionage Act for publishing its secrets.

It’s something past administrations have dreamed of doing, but chickened out because it would have been unprecedented. It’s not anymore, just in time for a potential second Trump term, during which he’d love nothing more than to throw journalists in jail.

It turns out the government had already proven our point even before Assange’s plea agreement became public. Voice of America reported last week that the Department of Defense opposes reforming rules that bar journalists at the military newspaper Stars and Stripes from publishing classified information, even when it has already been reported elsewhere.

A Defense Department spokesperson told VOA that journalists who are government employees must “adhere to applicable DoD policies and federal laws and regulations, such as those regarding legal and ethical standards of federal employees and unauthorized disclosure of classified information.”

Stars and Stripes receives funding from the Defense Department but its editorial independence is guaranteed by Congress (at least on paper, and hopefully in practice).

Turns out, when the government is given the power to tie journalists’ hands it inevitably will.

Presumably, the federal law the Defense Department spokesperson was referencing is the Espionage Act — the century-old law Assange pleaded guilty to violating, which prohibits unauthorized possession and publication of national defense documents.

For years, press freedom advocates have warned that the Espionage Act can’t be used against publishers under the First Amendment. Under the legal theory the government employed to prosecute Assange, it’s illegal for national security journalists at The New York Times and The Washington Post to obtain government secrets from sources and print them in the newspaper.

Not to worry, our opponents have assured us. Assange isn’t like other journalists. He didn’t redact names from the documents he published. He didn’t contextualize them. He violated journalistic norms and ethical standards. His prosecution is a one-off case arising from extraordinary circumstances. No one would come after “real” journalists doing their job.

Well, then Stars and Stripes reporters must not be real journalists either, because it sure sounds like it’s the Defense Department’s position that the Espionage Act is every bit as applicable to them as it is to Assange. Turns out, when the government is given the power to tie journalists’ hands — for example, when it employs them — it inevitably will.

On the one hand, the government can’t assure us it won’t apply the Espionage Act to conventional journalists because it has, with Stars and Stripes. On the other, the government can’t claim it won’t apply the Espionage Act to publishers it doesn’t employ, because it never employed Assange. He isn’t even American.

That’s alarming — and maybe it answers the question of why the government felt compelled to extract a guilty plea from Assange rather than just dropping the case: The plea effectively legitimizes Espionage Act prosecutions of publishers. The government may not intend to indict New York Times reporters now — but it wants to preserve the right to do so if it becomes convenient, and leave it to the courts to sort out the constitutional problems.

We can think of at least one presidential hopeful who surely appreciates that flexibility.

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.

FOR IMMEDIATE RELEASE

According to court documents, the Department of Justice and Julian Assange have reached a plea agreement in the DOJ’s long-running case against the WikiLeaks founder that threatens core press freedom rights of journalists. Assange is expected to plead guilty to one count of conspiracy to violate the Espionage Act for obtaining and publishing classified documents from whistleblower Chelsea Manning in 2010.

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

It’s good news that the DOJ is putting an end to this embarrassing saga. But it’s alarming that the Biden administration felt the need to extract a guilty plea for the purported crime of obtaining and publishing government secrets. That’s what investigative journalists do every day.

The plea deal won’t have the precedential effect of a court ruling, but it will still hang over the heads of national security reporters for years to come. The deal doesn’t add any more prison time or punishment for Assange. It’s purely symbolic. The administration could’ve easily just dropped the case but chose to instead legitimize the criminalization of routine journalistic conduct and encourage future administrations to follow suit. And they made that choice knowing that Donald Trump would love nothing more than to find a way to throw journalists in jail.

The Trump administration indicted Assange on 17 counts under the Espionage Act and one count under the Computer Fraud and Abuse Act. The Biden administration has continued pressing the case for the past three years.

Under the legal theory used in the indictment, any journalist could be convicted of violating the Espionage Act for obtaining national defense information from a source, communicating with a source to encourage them to provide national defense information, or publishing national defense information. Virtually all major civil liberties organizations and major news outlets denounced the prosecution as a threat to core press freedom rights.

If you are a member of the press and wish to conduct an interview with a Freedom of the Press Foundation (FPF) expert, email media@freedom.press

Los Angeles Mayor Karen Bass (pictured above) and City Attorney Hydee Feldstein Soto can't possibly think their lawsuit to make a journalist pay for the city's mistakes will succeed, but they're pursuing it anyway." "Karen Bass (40842055171)" by U.S. Institute of Peace is licensed under CC BY 2.0.

From Los Angeles to Tennessee, public officials who should know better keep ignoring journalists' First Amendment rights. These are just the latest examples of an alarming trend that shows no signs of slowing.

You can't spell SLAPP without LA

The City of LA is paying $300,000 to settle a frivolous lawsuit it initiated to stop a journalist, Ben Camacho, from publishing pictures of police officers that the city itself gave him.

It’s hard to imagine the city’s lawyers didn’t know the lawsuit was a baseless SLAPP, or Strategic Lawsuit Against Public Participation, from the outset. The rule against “prior restraints” barring the press from publishing information is virtually ironclad, especially when the government itself inadvertently released the information in question.

But the city apparently thought it could get away with bullying independent journalists, regardless of the law. Now taxpayers will be on the hook for the settlement (assuming the city council approves it), not to mention the money their government wasted prosecuting the case.

Maybe that’s why LA officials are still pursuing another, even more ridiculous lawsuit against Camacho — ultimately, this will be the taxpayers’ mess to clean up. Surely officials wouldn’t play these games with their own money.

That second lawsuit seeks to have Camacho foot the bill for a lawsuit by police officers against the city for releasing their photos to Camacho.

As we wrote in February for the Los Angeles Daily News, “If the city’s mistake caused officers damages, it should pay up, do better, and leave journalists out of it.” The principle that journalists cannot be punished for publishing lawfully obtained and truthful information is just as well established as the rules against prior restraints and government clawbacks.

It’s baffling that the city – after seemingly coming to its senses in one lawsuit – continues to pursue the other. Officials like Mayor Karen Bass and City Attorney Hydee Feldstein Soto can’t possibly think the suit will succeed. But as Susan Seager, an attorney for Camacho (who we recently interviewed about other press freedom violations by police in California), said, Feldstein Soto has committed herself to “a cowardly attack on the press that she thought would buy her political points with the cops.”

An embarrassing spectacle in Tennessee

Unfortunately, officials in LA are not the only ones having trouble operating within the confines of the First Amendment.

A judge in Tennessee this week scheduled a hearing on whether Michael Leahy, editor and owner of the Tennessee Star, should be held in contempt of court for publishing excerpts of writings by the shooter behind Nashville’s Covenant School massacre last year.

Perhaps in response to backlash, the judge, Chancellor I’Ashea Myles, reportedly reframed the hearing as an attempt to gather the legal and factual “landscape” surrounding the Star’s stories, published while Myles was contemplating whether hundreds of pages of the shooter’s writings should be released as public records.

Whatever the judge’s intentions were, Leahy should have never had to waste time preparing for and attending a court hearing. There is no “landscape” in which a contempt finding could conceivably be appropriate. Public records laws are there to help the press, not to confine it to reporting what the government chooses to release.

The question of whether a document should be a public record is completely separate from a journalist’s right to publish it. Nobody has alleged that the Star broke any laws to obtain the writings. It has an absolute right to publish documents its sources provide. Whether it should publish them, as a matter of ethics, has nothing to do with whether it can, as a matter of law.

If a judge is for some reason unaware of that “landscape,” they should do their research, not hale journalists into court to bring them up to speed.

Unfortunately, the cases in LA and Tennessee are just two of many recent instances at both the federal and state level where judges, prosecutors, and other government officials have shown either a lack of understanding of, or contempt for, press freedom.

It’s clearer than ever that government agencies need to step up efforts to train and educate their employees on the First Amendment, and the public — especially journalists — needs to call out officials who still don’t get it.