Freedom of the Press

At least 85 journalists and media workers have been killed since the start of the Israel-Gaza war, according to the Committee to Protect Journalists. Above, journalists from Al Jazeera and other outlets working in Gaza in 2008. Gaza Journalists - Flickr - Al Jazeera English by Al Jazeera English is licensed under CC BY-SA 2.0.

Almost four months into the Israel-Gaza war, the grim death toll of journalists, among other civilians, continues to grow. The international press still is shut out of Gaza.

Freedom of the Press Foundation Deputy Director of Advocacy Caitlin Vogus spoke to The Grass is Greener on radio station WXRW in Milwaukee, Wisconsin, about the abysmal state of press freedom in Gaza and what the Biden administration must do to pressure Israel to safeguard reporters’ lives and the public’s right to know about the war.

As Vogus explained:

Journalists … play an integral role in documenting war crimes, in documenting human rights violations, in documenting even legitimate military action. Protecting journalists in Gaza and allowing the press access to Gaza is important not just because we think it’s required by international human rights law, but also because it protects the world’s right to know about what’s happening there and to document all of those stories that otherwise we would never find out about.

The Grass is Greener also spoke to Clayton Weimers, executive director of Reporters Without Borders USA. Weimers discussed RSF’s recent investigations regarding the potential targeting of journalists in the war, and Israel’s and the United States’ records on press freedom.

Listen to the whole interview here.

Then-President Donald Trump speaks with reporters on the South Lawn of the White House in August 2019. Now in his third presidential candidacy, Trump continues to vilify the news media.

How a candidate treats the press while on the campaign trail is usually a good indicator of how they’ll treat them while in office. And as the 2024 general election nears, our U.S Press Freedom Tracker is making a public record of just that — cataloging statements against the press by candidates for federal office and efforts by them to diminish the media’s newsgathering capabilities.

It was certainly true for Donald Trump. From the time he declared his first candidacy for president in 2015 through to his account suspension on X (then Twitter) in 2021, Trump tweeted negatively about the press an average of more than once a day over those 5 ½ years, according to the Tracker.

And this year, as a candidate and presumptive presidential Republican nominee, he’s doing it again. His campaign, for example, barred an NBC reporter from attending an event in New Hampshire in late January, but did not provide any explanation why.

And this year, as a candidate and presumptive presidential Republican nominee, [Trump's] doing it again.

Only five days earlier, the former president said that CNN and MSNBC should “have their licenses or whatever they have taken away,” after the networks only aired a portion of his Iowa caucus victory speech.

Other candidates use similar playbooks. U.S. Rep. Mike Lawler, a Republican running for reelection in a tossup district in New York’s Hudson Valley, recently ended a monthslong effort to restrict media access to his public town hall events. Vivek Ramaswamy, who’s now suspended his Republican presidential bid, used his opening statement at a November GOP debate to target NBC News anchor Kristen Welker and the “corrupt media establishment,” while falsely claiming the media rigged the 2020 election.

From now until Election Day, our Tracker team will continue to document and highlight relevant sidelining of, attacks on, or outright barring of press from major campaign events across the United States.

Follow the Tracker’s Election Blog here.

Journalists may soon find out how effective the new New Jersey anti-SLAPP law will be in preventing malicious lawsuits against the press, as a Bergen County judge is poised to interpret it for the first time. Above, the Bergen County Courthouse. Bergen County Court House.jpg by Stephdurante is licensed under CC BY-SA 4.0.

A legal battle over local politics may soon result in the first court ruling interpreting New Jersey’s new anti-SLAPP statute, designed to protect against meritless lawsuits that seek to punish and chill constitutionally protected speech. Journalists should pay close attention. Despite the fact that the case doesn’t directly involve the press, it could still have significant implications for reporters and news outlets.

A political slap fight

It all started when Albert Wunsch, a Democrat and the former Englewood Cliffs borough attorney, sued a Republican group and several Republican candidates for defamation. Wunsch claims that flyers and emails sent by the defendants as part of a recent election campaign falsely accuse him and a Democratic mayoral candidate of mismanaging taxpayer money and wrongly paint Wunsch as unethical and corrupt.

The court initially ruled in Wunsch’s favor. It ordered the defendants to issue a retraction and publish a public apology. Even more alarming, it issued an unconstitutional prior restraint, barring the plaintiffs from issuing “any further publications” regarding Wunsch.

Within days, however, the defendants asked the court to reconsider, citing the state’s new anti-SLAPP law, the Uniform Public Express Protect Act. The court paused its earlier order and, on Jan. 26, held a hearing on the defendants’ motion.

New Jersey journalists’ protection from SLAPPs may be at stake

As the first decision interpreting UPEPA, the court’s ruling in this case matters for New Jersey journalists and news outlets. Journalists are frequent targets of SLAPPs. So when UPEPA was enacted, press groups hailed it as an important protection against SLAPPs attacking journalism.

UPEPA allows frivolous lawsuits to be dismissed quickly and easily and requires plaintiffs to pay the defendants’ legal costs if their case is dismissed. That means plaintiffs can’t abuse the legal system to run up defendants’ legal costs as a way of attacking speech they dislike.

The court’s decision in the Wunsch case, however, may shape just how quickly and easily a meritless lawsuit can be dismissed. UPEPA requires that a plaintiff’s complaint provide at least some evidence to support every element of a defamation claim. Otherwise, the case gets thrown out.

Whether the court says that’s a hard standard or an easy standard for plaintiffs to meet could mean the difference between an effective anti-SLAPP law and a toothless one. We’ve seen court decisions in other states, including Illinois, render anti-SLAPP laws that appeared strong on paper far weaker in practice. Here, if the court decides that the kinds of general allegations that Wunsch makes in his complaint are enough to survive dismissal under UPEPA, then New Jersey’s new anti-SLAPP law would be significantly less protective than it appears.

In Wunsch’s case, specifically, the court will have to consider whether his complaint supports a finding of “actual malice”, i.e., proof that the defendants knowingly or recklessly made defamatory statements about him. That’s because, under New Jersey law, defamation claims based on matters of public concern must be supported by actual malice. (In contrast, the Supreme Court has said that the First Amendment requires proof of actual malice only in cases involving public figures or public officials.)

The statements at issue in Wunsch’s case are about elected officials’ decisions and the use of taxpayer money, clearly matters of public concern. But Wunsch’s complaint doesn’t provide any evidence that the defendants acted with actual malice. The closest he comes are conclusory statements that the defendants were “well aware” that the statements at issue were false and that they acted “intentionally in knowing the information they published was false and damaging.”

The court shouldn’t treat those statements as “magic words” sufficient to allege actual malice and defeat a motion to dismiss. For UPEPA to be truly effective at screening out SLAPP lawsuits, the court must interpret the law to require dismissal unless plaintiffs can provide evidence, not just vague assertions, of every element of a claim.

A prior restraint thrown in for good measure, too

Journalists should also pay attention to whether the court renounces the part of its initial order barring the defendants from making “any further publications” about Wunsch — whether true or not, defamatory or not. Some narrowly tailored injunctions concerning defamatory statements may be constitutional, but the court’s broad order here is an unconstitutional prior restraint that bars hypothetical future statements no court has found defamatory.

While it may not be legally necessary to revisit it if the court (correctly) grants the defendants’ motion to dismiss the case, explicitly repudiating it would send an important message that the court understands and respects the First Amendment.

New Jersey has enacted a strong anti-SLAPP law that can protect journalists, freedom of the press, and free speech more generally. Now, it’s up to the courts to correctly enforce it. As UPEPA faces its first test, journalists should be watching to determine whether the court’s decision makes the grade.

Before former IRS contractor Charles Littlejohn leaked then-President Donald Trump’s tax returns to The New York Times, Trump was the only president since the Ford administration to refuse to release his returns. Above, protesters calling for Trump financial disclosures at a 2017 rally in Minnesota. "Rally to demand Donald Trump release his tax returns" by Fibonacci Blue is licensed under CC BY 2.0.

Former IRS contractor Charles Littlejohn received the maximum sentence of five years’ imprisonment on Monday, after pleading guilty to leaking Donald Trump’s returns to The New York Times. Littlejohn also leaked a tranche of ultrawealthy Americans’ tax documents to ProPublica.

It’s sadly ironic — and reflects poorly on our legal system — that Littlejohn is being harshly punished for exposing billionaire tax evasion while billionaire tax evaders themselves continue to be afforded leniency by the judiciary. Littlejohn pleaded guilty and expected to be punished. But throwing the book at him — despite the government’s initial estimate that he should face just eight to 14 months’ imprisonment based on federal sentencing guidelines — will chill future whistleblowers from revealing corruption and wrongdoing.

Littlejohn’s disclosures enabled ProPublica to report, among other things, the frequency with which billionaires pay taxes at a lower rate than other Americans — when they even pay taxes at all. The reporting brought global attention to the myriad of ways ultrawealthy Americans exploit tax loopholes. It started an important national discussion and prompted calls for reform by numerous elected officials, culminating in President Biden’s proposal of a minimum tax for the kinds of ultrarich Americans whose records Littlejohn leaked to ProPublica.

The New York Times’ reporting on Trump’s tax returns disclosed by Littlejohn revealed that the self-proclaimed billionaire had paid no federal income tax in 10 of the previous 15 years because he reported losing more money than he made. As a presidential candidate, Trump had refused to release his returns, despite other presidential candidates doing so voluntarily for decades. The Times’ reporting not only cast doubt on Trump’s carefully cultivated image as a business genius but also raised concern over the incentives for him to use the presidency to reduce his debts.

But none of that mattered to Judge Ana Reyes, who at sentencing called Littlejohn’s disclosure of Trump’s filings “an attack on our constitutional democracy.” Reyes also likened Littlejohn’s case to the Jan. 6 attacks on the Capitol, and said: “It cannot be open season on our elected officials — it just can’t.”

Leakers who act out of conscience can further democracy

Whistleblowers who provide information to the press may act outside the law. But sources who inform the public about government and private wrongdoing out of moral belief aren’t akin to the violent insurrectionists who tried to overthrow the government — many of whom have not yet faced justice or been punished far less for actually assaulting people, by the way.

Sources who act out of conscience to leak information to the press and expose wrongdoing are furthering our democracy, not attacking it. Had whistleblower Daniel Ellsberg not leaked the Pentagon Papers to the press, the American public may never have learned of the American government’s lies regarding the Vietnam War. Ellsberg, who was called the “most dangerous man in America” at the time of the leaks in 1971, was eulogized as a national hero when he died last year.

Whistleblowers like Ellsberg often resort to leaking documents to the press because they believe, based on their experience and observations, that working through official channels will not affect change and that government agencies will cover up, rather than investigate, malfeasance. Their sincere hope is that an informed public will be better able to more effectively pressure those in power to rectify abuses than they can themselves. They’re willing to take enormous personal risks to accomplish that goal.

Littlejohn, too, took an enormous personal risk and is now facing the consequences. But Reyes should have considered his motivations when determining what punishment fits the crime. There’s no credible allegation that he acted for personal gain, out of spite, or for any other reason besides his conscience compelling him to expose abuses of our system of taxation. Even murder defendants are entitled to consideration of their motives at sentencing. Whistleblowers certainly should be as well.

Balancing privacy against public value

It’s true that Littlejohn’s leaks undermined the government’s legitimate role in protecting financial privacy, which has important public value. But when sentencing Littlejohn, Reyes also should have balanced this harm against the unique public importance of the documents that Littlejohn provided to the press.

For years, advocates have raised alarms over the ways in which our tax system advantages the rich. At the time of Littlejohn’s actions, news outlets were reporting that newly enacted tax cuts were heightening the problem. But explaining the tax code to people is one thing — showing them concrete examples, as ProPublica was able to do following Littlejohn’s disclosures, is quite another.

Similarly, since Trump first won the Republican nomination in 2016, people had raised concern over how little the public knew about the finances and potential conflicts of interest of the wealthiest candidate ever nominated by a major political party. But Trump had consistently managed to evade transparency. Littlejohn’s disclosure ensured that the press could inform the American electorate.

Similar to the Panama Papers, which shed light on how offshore accounts were used to hide corruption and crime, Littlejohn’s whistleblowing helped the American public understand how elites and even public officials were evading taxes. And like many whistleblowers, Littlejohn acted as a last resort when multiple other attempts to hold these individuals accountable had already failed.

Rather than consider any of these nuances, Reyes imposed the harshest penalty she could on Littlejohn. Reyes may be worried about open season by leakers against elected officials. Maybe instead we all should be concerned about open season in the courts against whistleblowers.

Mississippi lawmakers claim journalists should be banned from the Senate floor because it’s too crowded. But dig just a little bit deeper and the true anti-press and anti-transparency motivations come to the forefront. "Senators Only" by Thomas Hawk is licensed under CC BY-NC 2.0.

Everything old is new again.

In 2022, we noticed a decades-old trend had been revived: State legislatures restricting reporters’ access to the legislative floor. According to a report by the U.S. Press Freedom Tracker, at least four states — Iowa, Kansas, Texas, and Utah — enacted policies or practices in 2022 that limited journalists’ access to their legislatures. In early 2023, the New York State Assembly also refused to roll back pandemic-era restrictions on where reporters could go on the statehouse floor.

Now, Mississippi may be getting into the game of curbing reporters’ access to the place where lawmakers conduct the people’s business. A pair of resolutions recently introduced in the Mississippi Senate would bar journalists from the Senate floor, except for brief periods before and after legislative sessions, and would abolish the press office in the Capitol.

The resolutions’ sponsors have said they’re motivated by concerns about crowdedness and believe that changing technology will still allow reporters to work effectively. But dig just a little bit deeper and the true anti-press motivation comes to the forefront.

One Mississippi newspaper reported, “Sen. Chuck Younger, R, who co-authored the bills, said part of the reason Republicans filed [them] was because he and others feel the press have been too ‘selective’ with stories they choose to write and sources.” The paper also quoted the sponsor of the bills, Sen. Kevin Blackwell, complaining about being close to reporters on the floor and having a camera “stuck in [his] face.”

Despite what Younger and Blackwell may feel, it’s blatantly unconstitutional to bar journalists from a legislative floor to retaliate against them for the news they publish or for daring to take pictures of politicians doing their jobs in public. But at least they’ve made it easy to identify the true reason they want to ban the press from the floor: because they dislike the transparency and news reporting that such access brings.

Though lawmakers in other states haven’t always been as quick to say the quiet part out loud, we have no doubt that they, too, are eager to undermine journalists’ ability to scrutinize them. And Mississippi isn’t the first state to try to punish reporters by withdrawing access to the statehouse floor.

In 2016, for example, Arizona House speaker David Gowan tried to roll out new “security” procedures for accessing the House floor and hallways that would’ve just happened to ban a reporter who had reported critically on Gowan. The speaker backed down after an outcry and legal threat from the First Amendment Coalition.

Concerns about crowds, security, and decorum are the most common fig leaves politicians offer as justifications for banning journalists from legislative chamber floors. But the truth is that journalists have had access to many statehouse floors for decades without causing problems — unless you consider accurate and thorough reporting about the legislative process a problem.

Of course, banning journalists from legislative floors doesn’t make their jobs impossible. In Mississippi, for example, reporters would still be able to report from the gallery. But putting journalists farther away from the action makes reporting harder and means less information for the public.

As the Committee to Protect Journalists put it, “Lawmakers’ whispers, eyerolls, and other hints about the course of debate are no longer visible to journalists” barred from the floor. And unless there are cameras operated by journalists who can call their own shots — as when C-SPAN could choose what to film in the U.S. House of Representatives for a brief period in 2023 — access to the floor is the only way for reporters to observe lawmakers up close and personally.

Restricting journalists’ access to the floor also makes it easier for politicians to hide from reporters and their pesky questions — questions that can hold them accountable to the public. After reporters in Kansas were relegated from that state’s Senate floor, one former lawmaker explained, “The session adjourns and members skedaddle out of there rapidly so it’s hard for journalists to get to them, unlike when they’re on the floor they can immediately get to them.”

Blackwell and Younger, and maybe even some of their fellow lawmakers, may view avoiding the press as a benefit. But with the state legislature set to consider issues that have the potential to reshape people’s lives, Mississippians need reporters more than ever to stay informed and influence their elected officials. If regular people are to have a seat at the table in Jackson, Mississippi, journalists must have a place on the floor.

Both the Obama and Bush administrations sought to force then-New York Times journalist James Risen to burn his sources. The PRESS Act is a bipartisan solution to the bipartisan problem of officials abusing their power to surveil journalists. "File:James Risen Miller Center.jpg" by Miller Center is licensed under CC BY 2.0.

The need to protect journalists from government surveillance and from court orders to burn their sources is urgent, but that doesn’t mean we support just any journalist shield bills. Some past bills purporting to protect journalist-source confidentiality don’t go far enough, or contain exceptions so robust that they can actually be harmful.

But the PRESS Act, which passed the House of Representatives without objection last week, is different. It’s the strongest shield bill we’ve ever seen. As it heads to the Senate, we don’t see enough room for improvement to hold out for a hypothetical better one.

Here are a few of the questions we’ve seen asked about the PRESS Act, along with our answers, which should help explain why we see it as the most important press freedom legislation in modern times.

Will the PRESS Act only protect established media outlets? No. Legislative definitions of journalism have always been tricky, and some bills have defined it far too narrowly. The PRESS Act, however, gets it right by protecting anyone who engages in journalism, not just professional journalists. That means its protection will extend to unconventional journalists and upstart outlets for which the expense of battling a subpoena can pose an existential threat. It defines “covered journalist” to mean “a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, investigates, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.”

Why should journalists get special treatment? They don’t. Numerous legal privileges having nothing to do with journalists protect confidential communications from being introduced in court. If you’ve seen a psychologist, your communications are privileged. If you’ve retained a lawyer, your communications are privileged. In fact, if you’ve ever been married, your communications are privileged. The PRESS Act recognizes that journalists depend on sources who come forward at great personal risk, and that society benefits from the resulting reporting — just like society benefits from people being able to seek counseling without fearing that their therapist will have to spill their secrets in a public courtroom.

Will the PRESS Act help reporters make up sources? No. Most journalists who cite confidential sources do so cautiously, in consultation with ethical guidelines. Sure, some unscrupulous reporters make things up. But that has nothing to do with the PRESS Act. Officials surveil journalists to find out who is talking to them — often because they reported something they only could've learned from an insider. If no one is talking to a journalist, there’s nothing to surveil. The only time a litigant might want to discover the absence of a source is if they’re suing a journalist for defamation. But the federal PRESS Act expressly carves out defamation cases because defamation is a matter of state law.

What if a journalist’s testimony is needed to prevent disaster? We’re not aware of any instance where the keys to stopping a catastrophe were found in a journalist’s notebook. Murderers and terrorists aren’t in the habit of letting the press in on their future plans. That being said, the PRESS Act contains exemptions for scenarios where information in a journalist’s possession is necessary to prevent terrorism or imminent violence. It then establishes commonsense procedures to ensure that the exemptions are not abused.

Can investigators accuse journalists of crimes to get around the PRESS Act? The PRESS Act does clarify that it doesn't prohibit investigations of journalists suspected of crimes, which makes sense. No one is suggesting journalists should be able to rob banks. But if the government tries to circumvent the PRESS Act by characterizing lawful newsgathering as a crime, the PRESS Act would entitle the journalist to notice and a hearing in front of a judge. That would allow the journalist to argue that the government's criminal theory violates the First Amendment and that, therefore, the "crime" carve-out doesn't apply.

Couldn’t investigators still get reporter-source communications from tech providers? No. The PRESS Act is the first shield bill we know of that expressly restricts using phone and email providers as a workaround to access journalists’ communications. It would’ve stopped those kinds of abuses by both the Trump and Obama administrations had it been in effect then.

Is the PRESS Act a gift to the “liberal media”? The PRESS Act is entirely apolitical. Nothing in the bill would allow Fox News to be treated any differently than The New York Times. No Republicans in the House objected to the act and its Senate co-sponsors include Republicans Lindsey Graham and Mike Lee. Other prominent Republicans like Mike Pence, Bob Goodlatte, and Jim Jordan have supported shield legislation, because, again, both Republican and Democratic administrations have abused their power to snoop on journalists who embarrassed them.

Why do we need the PRESS Act if states and some federal courts already recognize a privilege? It's true that 49 states already recognize the need to protect journalist-source confidentiality, leaving the federal government as an outlier. But state law doesn't apply to federal agencies or courts. And, while some federal appellate circuits recognize limited reporter's privileges, those limited privileges are wildly inconsistent between the circuits, and some recognize none at all. The PRESS Act is stronger than any privilege recognized in any federal court, and would bring much-needed consistency. Journalists don't know where investigations and lawsuits might arise and can't meaningfully assure sources of confidentiality when they don't know what law could apply.

The PRESS Act failed in the last Congress. Is it doomed to fail again? It’s true that the PRESS Act also breezed through the House in 2022 before dying in the Senate due to a rambling objection from one anti-press senator, Tom Cotton. But history doesn’t need to repeat itself. In 2022, the Senate bill picked up its only Republican co-sponsor, Lee, in November, leaving a month for it to be fast-tracked for inclusion in a year-end legislative package. This time, it’s only January, and both Lee and Graham are already on board on the Republican side, plus Sen. Dick Durbin has joined Sen. Ron Wyden on the Democratic side. One lone senator shouldn’t be able to derail a bill with that much bipartisan support — but it’s essential that senators hear from their constituents that this bill is a priority.

What can I do to help? Rightly or wrongly, journalist-source confidentiality is seen as a niche issue and it’s unlikely to be first on any senator’s agenda. That means it’s important for senators to know that their constituents — whether they’re journalists or just people who value press freedom — care about the PRESS Act. Call or write your senator, or, if you’re able, write a letter or op-ed for your local paper. Don’t think it can work? Consider this: Durbin, the chair of the Senate Judiciary Committee, proclaimed his support for the PRESS Act in response to an op-ed urging him to do so.

Reps. Cori Bush, at left, and Rashida Tlaib, center, spoke at a vigil in Washington, D.C., on Jan. 17, 2024, for journalists killed in Gaza.

Palestinian journalist Wael al-Dahdouh had already buried his wife, two children, and grandson, and been wounded himself when, on Jan. 7, 2024, his eldest son Hamza al-Dahdouh was killed by an Israeli airstrike in south Gaza. Hamza — a journalist, like his father — now appears on the grim list of the more than 80 journalists and media workers who, according to the Committee to Protect Journalists, have been killed since the Israel-Gaza war began.

Last week, Defending Rights & Dissent held a vigil outside the U.S. Capitol Building in Washington, D.C., to honor and remember those journalists. Freedom of the Press Foundation (FPF) co-sponsored the vigil, where speakers included Reps. Rashida Tlaib and Cori Bush, and journalist Townson Cocke.

More journalists have been killed in Gaza than in any other conflict since CPJ began keeping track of journalists’ deaths. At the vigil, Defending Rights & Dissent Policy Director Chip Gibbons acknowledged that covering war is dangerous; however, he noted that media and press freedom organizations have found evidence that the Israeli military has intentionally targeted journalists. And Israel has not committed to taking any steps to prevent inadvertent killings of journalists, despite news organizations’ attempts to clearly identify their reporters and inform the Israeli military of their locations.

In the face of these horrific deaths and apparent war crimes, the United States’ response has fallen shamefully short. Earlier this month, a coalition of leading press freedom and human rights organizations, including FPF, sent a letter to the Biden administration demanding that it do more to protect journalists’ ability to safely and freely report on the conflict.

At the vigil, FPF Deputy Advocacy Director Caitlin Vogus reiterated those calls. As Vogus explained, “Protecting journalists matters not only because all civilian life should be protected during wartime. It matters because protecting journalists also protects the world’s right to know about what’s happening in Gaza.”

Vogus also urged the Biden administration to allow the international press to enter Gaza independently of the Israeli military, so journalists can freely and fully report on the war. At a recent State Department briefing, spokesperson Matthew Miller refused to commit the U.S. to supporting independent journalists’ access to Gaza, stating only that it’s “not a decision for the United States to make.” It’s outrageous that the U.S. won’t even express support for international press access to Gaza, let alone do something about it.

As Rep. Bush explained at the vigil, “The role of a journalist, particularly in the face of conflict, is to capture the stories, the raw emotions, and the overlooked realities that often go unseen, unheard, untold. …. This role is significant when it comes to the journalists, particularly the Palestinian journalists, who set out to share the stories and perspectives of Palestinians.”

Added Rep. Tlaib: “The Israeli government’s brutal attacks have made Gaza the deadliest place in the world for journalists and their families. . . . We call on the international community, please come together to investigate the Israeli government’s war crimes for its repeated attacks on journalists.”

Finally, Cocke called on reporters to do more to tell the human stories of Palestinians in Gaza and offered to help connect reporters in the U.S. to sources in Gaza and other Palestinian communities.

Palestinian journalists deserve our protection and the world’s attention, Gibbons explained, quoting Wael al-Dahdouh, “We feel that we are being killed twice: once by the bombs and once by the silence.” Gibbons told the crowd at the vigil, “We are breaking that silence.”

Rep. Kevin Kiley (left) co-sponsored the PRESS Act in the House, where it passed unanimously on Thursday. Now, co-sponsor Sen. Dick Durbin (right) must ensure the bill gets a vote in the Senate

FOR IMMEDIATE RELEASE:

Freedom of the Press Foundation (FPF) applauds the House of Representatives for unanimously passing the PRESS Act, a bipartisan federal reporter’s shield law that would protect journalists from being forced to name their sources in federal court and would stop the federal government from spying on journalists through their technology providers.

The PRESS Act is the strongest federal shield bill that Congress has ever proposed. It’s vigorously supported by major media outlets and civil society organizations.

“Journalists shouldn’t be forced to choose between burning their sources or going to jail,” said FPF Director of Advocacy Seth Stern. “With the House’s bipartisan vote approving the PRESS Act, Congress comes one step closer to providing powerful protection against surveillance of journalists. Now it’s up to the Senate to finish the job by passing this historic legislation and sending it to the president’s desk to sign.”

“Even as the House votes to pass the PRESS Act, reporters are being put in the agonizing position of being threatened with crippling fines or even jail time for refusing to name their sources,” said FPF Deputy Director of Advocacy Caitlin Vogus. “Now that the House has passed the PRESS Act, the Senate must act to ensure that whistleblowers and other sources feel free to share newsworthy information that journalists use to inform the public.”

Forty-nine states and the District of Columbia have shield laws or equivalents recognized by courts. But without a federal shield law, journalists still risk being jailed or punished for refusing to reveal sources or their newsgathering material in federal courts, congressional inquiries, and administrative proceedings. Both Republican and Democratic administrations have abused their power to spy on reporters who criticized them or exposed their secrets.

In a rare example of bipartisan consensus, both Republican and Democratic members of Congress agree that America needs the PRESS Act to protect journalists, sources, and the public’s right to know. The PRESS Act is co-sponsored in the House by Reps. Kevin Kiley, R-Calif., and Jamie Raskin, D-Md.; and a bipartisan group of 18 other representatives. In the Senate, it’s co-sponsored by Sens. Dick Durbin, D-Ill.; Lindsey Graham, R-S.C.; Mike Lee, R-Utah; and Ron Wyden, D-Ore.

Screenshot of what's left of a Lawfare blog post summarizing Reuters' reporting about an Indian tech firm, Appin, and its alleged hack-for-hire operations.

News outlets worldwide have been heeding demands to remove articles about an Indian tech company called Appin and its co-founder, Rajat Khare. Major U.S. outlets are among those that have been successfully pressured to take down their reporting — not just in India, but here as well.

The ordeal raises serious concerns about the global reach of local judges thousands of miles away. It also raises questions about the adequacy of existing legal safeguards to deal with international censorship campaigns arising from countries like India, with governments that don’t respect human rights, let alone press freedom. Even when the government is not directly involved in a censorship campaign, its reputation precedes it, and it would be impossible for news publishers not to take note.

Multiple news outlets take down stories globally

Everyone from Reuters to the U.K.’s The Sunday Times and outlets in Luxembourg and Switzerland has censored their reporting about Khare and Appin after either lawsuits or takedown letters, according to a report in the Daily Beast. The legal actions often come from an entity calling itself the “Association of Appin Training Centers” or its alleged executives.

Reuters, for example, ran a detailed investigation last November about how Appin functioned as a “hack-for-hire powerhouse.” Khare and Appin vehemently deny the allegations. Reuters published the article despite an injunction, entered in 2022, prohibiting it from reporting anything “defamatory” about the association. Presumably, Reuters believed the article wasn’t defamatory, so the injunction wouldn’t apply.

But within weeks, an Indian court deemed the article “indicative of defamation” — despite failing to identify any fallacies in the report — and ordered it removed from the internet. Reuters complied, taking down the article not just in India but around the world. Even the Internet Archive’s Wayback Machine removed the Reuters story. Fortunately, DDoSecrets has stepped up to host the Reuters story and other censored reporting. (Sidenote: It is raising funds so it can continue doing its important work.)

The order doesn’t expressly limit the required takedown to India, which may suggest the Indian court intended it to be removed globally. But Indian courts don’t have global jurisdiction. And a U.S. court would be particularly unlikely to enforce the order, given the nearly insurmountable constitutional presumption against prohibitions on publication, or prior restraints. There’s even a law in the U.S., the SPEECH Act, against honoring defamation judgments from countries that don’t protect free speech.

So why did Reuters remove the story in the U.S. and everywhere else, replacing it with an editor’s note that it stands by its reporting and plans to appeal (a slow process anywhere, but especially in India)? And why have so many others complied with takedown demands?

Some publications, like The New Yorker, have kept their stories up despite reported threats from Khare’s lawyers (which reportedly included the firm Clare Locke, known for representing Dominion Voting Systems in its defamation suit against Fox News), but at least 18 other outlets also either removed articles about Appin outright or erased mentions of Khare.

It can’t just be ignorance of the law. Khare is far from the first rich guy to try to silence critics. Reuters and other censored outlets have plenty of First Amendment lawyers and must know U.S. law is on their side. They also know that Clare Locke succeeded in the Dominion case largely because it had some very helpful evidence to work with, not because it possesses some secret legal magic wand that makes the First Amendment disappear.

Demands for removal leverage risk of deplatforming by tech companies

A closer look at the association’s tactics may provide answers. For one, the order in the Reuters case not only requires the story to be taken down by Reuters but to be deindexed by Google. The association is making sure to let its other targets know about that, including in a recent takedown letter to Ron Deibert of the Citizen Lab (judging from Deibert’s X post about the letter, he’s unlikely to take down his article). Others have received similar letters.

Perhaps the message is that resistance is futile: There’s no point in paying lawyers to fight takedown demands if, at the end of the day, Google can make the articles invisible anyway.

But another line from the letter to Deibert stood out even more: It claims the “article is contemptuous not only to the Plaintiffs concerned however it is absolutely derogatory to the entire Indian Nation.” The article says nothing about India in its entirety.

Further nationalistic language appears in correspondence to Meta, attached to court documents filed in the Reuters case. Those letters, from the association's Indian counsel, baselessly accuse the journalists behind the Reuters story (Christopher Bing, Zeba Siddiqui, and Raphael Satter) of a “serious unusual espionage operation” and “a well-planned modus operandi to malign Ruling Indian Government,” demanding Meta therefore block their WhatsApp accounts.

According to court documents, the association also sent demands to block the journalists’ accounts on LinkedIn and Naukri, an Indian platform they allegedly used to contact potential sources. Fortunately, neither LinkedIn nor Meta appears to have complied to date, but the threat of deindexing or deplatforming is a powerful cudgel. Tools like WhatsApp are essential for journalists these days.

Veiled threats have an impact regardless of credibility

The allusions to the nation of India and its current rulers in legal correspondence about disputes between private companies also may serve another purpose.

The administration of Prime Minister Narendra Modi is infamous for its crackdowns on speech and the press, especially online. India, for example, managed to “tame Twitter” with its “hostage” law, requiring social media companies to keep representatives in the country for authorities to arrest if their employers misbehave. That law may not bind news outlets, but it doesn’t have to. They need to have personnel in India if they want to cover news there.

Lawyers in the suit against Reuters have already asked for the three reporters to be jailed. They’re not based in India, but might authorities arrest someone else in their place? News outlets may not want to find out the hard way, especially if they’re under the impression that they’ve offended the “Ruling Indian Government.”

We’re unaware of any indication that the Modi administration takes criticism of Appin or Khare personally or would even care at all. The claim that the Reuters article maligns the current government is perplexing given that the reporting focuses on events predating Modi’s 2014 inauguration. As for Khare, he’s now an Antiguan national living in Switzerland.

Nonetheless, perhaps the association’s intent in invoking the “Ruling Indian Government” is to issue a not-so-subtle reminder, to anyone considering flouting its demands, of who they may be messing with. And it seems to be working. Bluff or not, news outlets may be afraid to call it.

American legal protections can’t stop foreign censorship tactics

While the U.S. may not always be the global leader in press freedom it thinks it is, its legal protections against foreign censorship orders are relatively strong. But that may not matter if others follow Appin’s playbook.

U.S. outlets know the First Amendment can’t protect them from stories being suppressed, or reporters deplatformed, by tech companies at the behest of foreign courts. It also provides no solace against veiled threats, however noncredible they may be, to sic authoritarian regimes on journalists.

The aforementioned SPEECH Act was intended largely to stop U.S. courts from enforcing judgments entered under the U.K.’s plaintiff-friendly libel laws. That’s helpful when U.S. outlets are primarily worried about legal risk back home. But in cases arising from countries ruled by governments like Modi’s, there may be larger concerns than that.

And if the U.S. is going to continue its partnerships with such countries, then policymakers here need to think seriously about how to address those concerns.

The Biden administration has maintained that it won’t “lecture” India about its domestic human rights problems (although recent reporting says alleged Indian assassination plots have “complicated” the U.S.-India relationship). But censorship emanating from Indian courts is not a domestic issue when it’s stopping U.S. citizens from reading important news about a U.S. “strategic partner.” Whether or not India’s government had any direct involvement with this latest campaign to silence the press, it may have created the climate that enabled it.

If the U.S. insists on partnering with censorial regimes, then policymakers need to start thinking seriously about the consequences for free speech back home, and the administration needs to do more to stand up for American values than empty talk. Otherwise who is going to tell us about the next hack-for-hire operation — or assassination plot, for that matter?

Freedom of the Press Foundation (FPF) is thrilled to welcome award-winning journalist and WIRED’s Global Editorial Director Katie Drummond as the newest member of its board of directors.

Before joining WIRED as its top editor, Drummond ran VICE's digital reporting, video, and audience development teams around the world, where she expanded its news operations and investigative reporting efforts across Latin America, Europe, and Asia. Her teams at VICE were honored with dozens of major journalism prizes, including several Emmys, Online Journalism Awards, Society Of Publishers in Asia Awards, and a Peabody Award, among other plaudits.

“I’ve led newsrooms that have benefited immeasurably from Freedom of the Press Foundation’s remarkable support — from encryption tools it has developed to facilitate secure correspondence with sources, to digital security training sessions that allow reporters to do their jobs as safely as possible,” Drummond said. “I’m humbled to join the board of an organization I’ve both worked with and admired for many years, and I look forward to collaborating with everyone at Freedom of the Press Foundation to continue supporting and empowering journalists to do their very best work.”

Drummond was previously the editor-in-chief of Gizmodo, and served in key leadership roles at Bloomberg and The Verge, among other outlets. She started her career as a reporter, covering national security for WIRED during the U.S. wars in Iraq and Afghanistan.

“We are thrilled to welcome Katie to Freedom of the Press Foundation’s board,” said FPF’s Executive Director Trevor Timm. “Her incredible experience leading global newsrooms means she has unique insight into so many of the evolving press freedom threats journalists face today. Her adept management skills will also be a huge asset to our organization as we grow in the years to come.”

Drummond will serve a three-year term on FPF’s board of directors. She joins other award-winning journalists, whistleblowers, and free expression advocates, such as Azmat Khan, Wesley Lowery, Laura Poitras, Edward Snowden, John Cusack, and board President Rainey Reitman.

Rules that silence public employees can also stymie journalists from reporting newsworthy information.

As the COVID-19 pandemic raged in Allegheny County, Pennsylvania, journalist Brittany Hailer reported story after story about its impacts on the county jail, including the deaths of incarcerated people, shortages of correctional and medical staff, the prolonged use of 23-hour lockdowns, and unsafe and unsanitary kitchen practices.

Hailer’s news stories quote many sources: incarcerated people, their family members, the jail spokesperson and warden, and more. But the voices of rank-and-file jail employees are nowhere to be found, at least on the record. The reason? Jail policies that prevent them from speaking to the press.

Government gag rules are policies that prohibit public employees from speaking to journalists about their work or require them to seek approval from higher-ups first. Gag rules often mean that journalists seeking firsthand information must go through a high-ranking official or public information officer who often lacks the on-the-ground knowledge reporters need. And even if PIOs do know some information about a news story, they can be more concerned with protecting the government’s image than giving a reporter the facts.

Last summer, Hailer became the first journalist in the country to file a lawsuit testing government gag rules, when she brought a First Amendment challenge to the Allegheny County Jail’s policies. Hailer’s lawsuit, which remains pending, claims there are several jail workers who want to speak out about unreported problems, but can’t because of the gag rules.

She argues that the policies violate her First Amendment right to speak to sources who want to talk to her. Hailer also argues that they violate the First Amendment rights of the jail employees by prohibiting them from speaking as private citizens on matters of public concern.

The Supreme Court has said that employees don’t surrender all of their First Amendment rights simply because they take a government paycheck. Based on that precedent and other decisions disfavoring “prior restraints” on employee speech, numerous courts have ruled in favor of government employees who have challenged policies requiring them to seek preapproval before speaking about their work.

Despite that, government gag rules remain abundant, either because agencies don’t know about this precedent or just don’t care, especially if their individual policy doesn’t face a court challenge.

While in the past, government employees may have felt relatively free to speak to reporters, in recent years, censorship by PIO has become the norm. The Society for Professional Journalists has long documented and decried these rules as “an effective form of censorship by which powerful entities keep the public ignorant about what impacts them.”

Some journalists say that they don’t need government sources to speak on the record to effectively report the news, and it’s true that there are other ways to find and report information. But government employees are important sources for many journalists, and rules muzzling them undoubtedly make reporting harder. When government sources can’t confirm information on the record or are afraid to speak even off the record, there’s sure to be important information that never makes it to the public.

Plus, government agencies are making it harder and harder for even the most diligent reporters to find other sources of information. Freedom of Information Act backlogs continue to grow. Courts close trials to the public or otherwise limit public access. Officials target journalists for uncovering information online, even when the government puts it on the internet itself. Excessive secrecy, combined with gag rules, leaves reporters with fewer and fewer avenues to report about what’s truly happening within all levels and branches of government.

Gag rules also help the government manipulate for political reasons the information journalists and the public receive. The Trump administration stopped the Environmental Protection Agency and other federal agencies from talking to the press about climate change. During the height of the pandemic, Trump also prevented employees of the Centers for Disease Control and Prevention from talking to the press, potentially endangering people’s lives.

But a government policy gagging employees doesn’t have to be part of a nefarious plot to cover up wrongdoing for it to interfere with the public’s access to information. These rules often prevent even basic information about how government employees do their jobs from getting out. For example, gag rules have forbidden everything from a police officer talking about the impact of responding to a school shooting to a state scientist explaining his research on birds.

Hailer’s legal challenge will be an important step in establishing that journalists have a First Amendment right to speak to willing government employees. But it shouldn’t take a legal battle for the Allegheny County Jail and other government offices to understand why gag rules are unconstitutional and wrong. The point is simple: The people who work for the public should be allowed to speak to the public.

"Elon Musk" by dmoberhaus is licensed under CC BY 2.0.

X (formerly Twitter) owner Elon Musk’s purported support for free expression is nothing more than a “snake-oil salesman’s marketing scheme,” writes Freedom of the Press Foundation Executive Director Trevor Timm in The Guardian.

The most recent example of Musk’s hypocrisy on free speech was X’s brief suspension of several left-leaning journalists and commentators. That incident followed Musk’s frivolous lawsuit against Media Matters in November and a long line of other anti-speech antics. Musk “uses his power to retaliate against his critics more than anyone this side of Donald Trump,” Timm wrote. He’s also gutted X’s legal department and made its rules and procedures “opaque and arbitrary.” It doesn’t have to be this way, though:

Imagine Musk’s professed love for free speech wasn’t entirely fake. As the wealthiest person in the world, he could have huge leverage. He could create a transparent, robust appeals process for [X users] who allegedly break the rules and get suspended. He could employ a huge legal team to fight any and every government order for censorship around the world, while protecting the anonymity of his users against those who sue.

Read the full article here.

A portion of the Nov. 30, 2023, court order attempting to censor BusinessDen reporter Justin Wingerter. Fortunately, he did not comply.

Our U.S. Press Freedom Tracker documented 11 prior restraints against journalists in 2023, the most since it started tracking them in 2017. Prior restraints — or government orders not to publish information — have long been considered the “most serious” First Amendment violation. 

Judges, like anyone who went to law school, should know that the Supreme Court has never approved a prior restraint against the press, even when the government alleged national security was at stake. And yet, courts keep entering them with little regard for the law, leaving journalists censored while often slow-moving appellate processes play out.

Freedom of the Press Foundation Director of Advocacy Seth Stern wrote in the Columbia Journalism Review that it may be time for news outlets to reconsider complying with these unlawful orders. Stern argues that:

"The law is useful only if judges respect it. But when the law on press freedom is not useful for them, they often don’t. And in First Amendment cases, even the most egregious violators face no consequences. It seems the only way judges are going to stop is if they learn that the press will disregard their orders, shame them on editorial pages, and dare them to imprison journalists for doing their jobs. Is that contempt of court? Maybe. But censorial judges deserve contempt."

You can read the full article here.

We are thrilled to announce that Jack Dorsey’s philanthropic initiative, #startsmall, has generously donated $10 million to Freedom of the Press Foundation (FPF) to further our work to protect press freedom for all in the 21st century.

As a defender of transparency, open source software and free expression, Jack — Block Head, Chairman, and co-founder of Block Inc. — launched #startsmall’s Open Internet Development fund to support the type of innovative work that’s at the core of FPF.

“We’re incredibly grateful for this game-changing grant from Jack Dorsey and #smartsmall,” said FPF Executive Director Trevor Timm. “At Freedom of the Press Foundation, we focus on real-world challenges that investigative journalists face every day, and Jack’s transformative gift allows us to lead the fight to ensure a free press is protected for everyone in the years to come.”

“This new funding from #startsmall is the largest gift in our organization’s history,” Timm continued. “It will bolster and reshape our ability to build the next generation of open source tools to protect press freedom, and to train thousands more journalists in digital security, build open data sets to strengthen press freedom rights for all, and advocate for the public’s right to know.”

In 2023, Dorsey and #startsmall also contributed a significant gift to FPF to help establish the memorial Daniel Ellsberg Chair on Government Secrecy. We’ll have more news on this important new position later next week.

——————

If you are inspired by these gifts and would like to contribute to funding FPF, please contact our Executive Director Trevor Timm at trevor@freedom.press. Your tax-deductible support will make a lasting impact in the fight for press freedom and government transparency. Together, we can protect the vital role that journalism plays in preserving democracy and promoting the public good.

President Joe Biden, pictured here with Israeli Prime Minister Benjamin Netanyahu in Israel in 2016, should use the U.S.'s influence to protect journalists and press freedom in Gaza. Vice President Joe Biden visit to Israel March 2016 by U.S. Embassy Jerusalem is licensed under CC BY 2.0.

FOR IMMEDIATE RELEASE:

At least 79 journalists and media workers have been killed in the Israel-Gaza war: four by Hamas and its affiliates during the Oct. 7 attacks and at least 75 since, almost all by the Israeli military. Most recently, Al Jazeera journalist Hamza al-Dahdouh and freelance journalist Mustafa Thuraya were killed when Israeli soldiers deliberately targeted a car in which the journalists were traveling on Jan. 7.

Today, Freedom of the Press Foundation (FPF) and a coalition of press freedom and human rights organizations sent a letter to President Joe Biden (available here) urging his administration to do more to protect journalists’ ability to safely and freely report on the conflict.

In addition to FPF, groups also signing the letter include the Committee to Protect Journalists, Freedom Watch, Human Rights Watch, Knight First Amendment Institute at Columbia University, and Reporters Without Borders.

“The killing of so many journalists in so brief a period of time is shocking and horrific. It has obvious and profound implications for the ability of the public, including the American public, to be informed about a conflict with local, regional, and global implications. We are writing to entreat you to act immediately and decisively to promote the conditions for safe and unrestricted reporting on the hostilities,” the letter states.

“The sheer number of journalists killed and injured in the war is shameful,” said FPF Deputy Director of Advocacy Caitlin Vogus. “The Biden administration has a moral and legal obligation to ensure that Israel protects reporters, not only because they’re civilians, but also because of the vital role they play in informing the public.”

“The Biden administration has been all talk when it comes to journalists killed by the Israeli Defense Forces,” said FPF Director of Advocacy Seth Stern. “The Biden administration says it cares deeply about journalists’ freedom to cover the war but has failed to demand Israel ensure journalists’ safety or hold it accountable when it doesn’t.”

In addition to decrying the deaths of journalists, the letter also emphasizes that Israel and Egypt must provide international journalists with access to Gaza.

“International journalists have been almost entirely shut out of Gaza unless they agree to IDF escorts and restrictions on their reporting,” said Vogus. “Local journalists have done an admirable job covering the war, especially in the ever-present face of death. But international journalists — especially from countries whose citizens fund the IDF — need to be able to cover the biggest news on the planet safely and freely.”

The full letter is available here.

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.

"J. Edgar Hoover Building - FBI" by Gareth Milner is licensed under CC BY 2.0.

Project Veritas’ future looks uncertain after its CEO resigned last month, calling the right-wing group an “unsalvageable mess.” But if the end is near, Project Veritas’ most enduring legacy might arise not from its infamous hidden camera stings but from a court case over the alleged theft of Ashley Biden’s journal — and its potential impact on constitutional protections for gathering news. 

There are plenty of reasons people don’t like Project Veritas. We’re not shedding tears for them either. But the lack of transparency surrounding the case threatens to chill reporting by all sorts of news outlets, including ones far more respectable than Project Veritas.

FBI agents raided the homes of Project Veritas employees in late 2021 as part of a criminal investigation over the theft of the journal. Project Veritas admits it bought the journal from a source but denies having anything to do with the theft. It’s seeking to end the probe and get back materials seized during the raids, arguing that the First Amendment protects its newsgathering and that investigators have no basis to comb through its privileged records. 

If it’s true that Project Veritas merely bought the journal from the alleged thief after the fact — and that that’s the focus of the investigation — then Project Veritas is right. It should be protected from prosecution under the Supreme Court’s landmark decision in Bartnicki v. Vopper. That case held that publishers are entitled to procure and publish materials their sources obtained illegally, as long as they don’t participate in the crime themselves. It’s certainly fair to question the ethics of digging through a politician’s daughter’s diary for dirt on her father, but unscrupulous doesn’t mean illegal.

But federal Judge Analisa Torres rejected Project Veritas’ First Amendment defenses in December, stating simply that “Here, the Government is investigating whether Project Veritas participated in the theft of the Victim’s journal and the other items. Bartnicki does not protect such conduct.” 

At least Torres’ language is an improvement on a prior report by a “special master,” former federal Judge Barbara Jones, who was appointed to review materials seized during the investigation. Jones had reasoned that “Bartnicki addresses liability for publication of unlawfully obtained information (there, by a source) and does not ‘protect’ unlawful acquisition of information.” It’s quite hard to publish information without first acquiring it. 

Freedom of the Press Foundation (FPF), along with the ACLU and FIRE, had filed an amicus brief encouraging Judge Torres to more accurately state the Bartnicki rule, which, thankfully, she did. But she failed to elaborate on how Project Veritas allegedly participated, and other records that might shed some light are sealed from public view.  

You can’t publish what you can’t possess 

We do know that one of the government’s theories is that Project Veritas illegally possessed and transported stolen property. Hopefully that’s not the “participation” to which Torres alludes. What good is a right to acquire and publish illegally obtained documents without the right to possess and transport them? That exception would swallow the Bartnicki rule whole. 

It’s also concerning that Torres discusses the journal and “other items” interchangeably. There have been reports that, after obtaining the journal, Project Veritas asked its sources to steal more of Biden’s property to prove the journal was actually hers. If that alone were the basis for the investigation, it would be less concerning —  the “other items” were supposedly personal effects, not potentially newsworthy journalistic source materials. 

But Torres’ language implies that the theft of the journal is itself a subject of the investigation, not just a part of the backstory. That means it’s crucial to distinguish whether the government believes Project Veritas was involved in stealing the journal or whether the government considers it criminal if Project Veritas merely obtained it from someone else who stole it. 

It’s somewhat understandable why Torres is being so cryptic. The government has demanded that documents explaining the basis for its investigation — including the application in support of the search warrant authorizing the 2021 raids — remain under seal. And another judge has rejected requests to unseal them, citing Biden’s privacy interests as well as the integrity of the investigation. Torres doesn’t want to be the one to spill the beans.

But it’s been over two years since the raids — you’d hope the government had made some progress on the investigation by now. Surely it could unseal enough information to identify the conduct by Project Veritas that it believes falls outside the First Amendment’s protection, so that other journalists are clear on whether the government intends to adhere to the Bartnicki rule in future cases. That wouldn’t require the government to disclose any private information about Biden — these issues have nothing to do with the content of her diary. 

Heightened need for government transparency

We get it. Journalists are not above the law. And it’s entirely possible Project Veritas did something unlawful that Bartnicki and other legal safeguards for journalists wouldn’t protect. That now-former CEO, Hannah Giles, said the “unsalvageable mess” she left behind was “wrought with strong evidence of past illegality” might be an indication. But so far the government has provided no indication of illegality in this case.

And if all prosecutors have on Project Veritas is that it possessed and transported records someone else stole, then the public should be able to question why the government is putting their tax money, and the Constitution, at risk over such a flimsy case. This time, the subject of the investigation is Project Veritas — an unsympathetic victim — but next time it might be a more reputable news outlet. As the saying goes, bad facts make bad law. 

The investigation of Project Veritas threatens to dissuade journalists from doing important, constitutionally protected work. And, rather than justifying secrecy, that the case involves someone named Biden heightens the need for transparency. People are entitled to know if an administration that proclaims that “journalism is not a crime” makes exceptions when a case hits close to the president’s home. 

The lack of transparency is especially concerning when the government is also refusing to explain its investigation of Florida journalist Tim Burke for accessing interview outtakes on a publicly available website. A respected digital journalist, Burke carries none of the baggage of Project Veritas, but that didn't stop the FBI from raiding his home for seemingly routine online newsgathering. In both cases, the only way for the government to alleviate the chilling effect of its investigations is to publicly explain the bases for its actions.

An FBI raid on journalist Tim Burke’s home newsroom in May, and the government’s refusal to explain it, risks chilling journalism.

It’s been more than seven months since the FBI raided Florida journalist Tim Burke’s home newsroom, after Burke found and publicized Fox News interview outtakes where Ye, formerly known as Kanye West, made antisemitic remarks. Yet the government still has not explained the basis for the raid or returned all of Burke’s seized equipment and information.

That’s a huge problem for press freedom, as Freedom of the Press Foundation (FPF), the ACLU and five other organizations explained in an amicus brief filed with the 11th Circuit Court of Appeals on Jan. 2, 2024, in support of Burke’s request to unseal the affidavit filed with the search warrant authorizing the raid and to return newsgathering materials that were seized during it.

“Because of the search warrant executed in this case, journalists are rightfully concerned that the government considers routine, modern-day newsgathering techniques—including accessing unencrypted and unsecured websites—to be criminal under the Wiretap Act and the Computer Fraud and Abuse Act (CFAA),” the amicus brief explains.

Burke says he’s being criminally investigated merely for finding the outtakes on a publicly available website. Absent any contrary claims from the government, which has refused to unseal the affidavit, other journalists are likely to assume he’s correct. As a result, they may well refrain from scouring obscure corners of the internet to find newsworthy stories like Ye’s antisemitism, which remains in the headlines to this day.

“Uncovering newsworthy information on the internet and publishing it is newsgathering 101, since so much information is stored online today. Journalists shouldn’t have to work in fear of federal agents knocking down their doors, rifling through their notes, and seizing their computers for just doing their jobs,” said FPF Deputy Director of Advocacy Caitlin Vogus.

Reporters have found hidden information online and used it to expose everything from how Oracle markets its products for use in Chinese surveillance to a trove of videos shot by Jan. 6 rioters at the Capitol. But the Burke investigation, and the government’s refusal to explain the investigation’s basis, leaves other journalists around the country uncertain about the legal risks of this kind of reporting.

Unfortunately, it’s not far-fetched to believe that the FBI may be stretching the law to go after Burke for ordinary newsgathering. Officials around the country have abused computer hacking laws to target journalism in the past because of the embarrassing information the reporting revealed. The most recent and prominent example of this was the shameful and illegal raid on the Marion County Record in Kansas.

“The First Amendment protects the vital role journalism plays in keeping powerful institutions accountable to the public. But it appears that the government is interpreting computer crime laws in a dangerously overbroad manner — despite Supreme Court case law warning against this kind of overreach. This is both impermissible and unwise,” said Jennifer Stisa Granick, surveillance and cybersecurity counsel with the ACLU’s Speech, Privacy, and Technology Project.

This chilling effect is amplified by the government’s alarming suggestion in legal filings that Burke isn’t actually a journalist, in part because he didn’t work for an established news outlet at the time he obtained the Ye video. But, as the amicus brief explains, the First Amendment and other legal protections for reporters aren’t limited to big-name news organizations and their reporters. Freelancers and small, independent news outlets need to know that the government will follow the law when it comes to investigations of them, too.

Government must also return equipment

Finally, it’s outrageous that, months after the raid, the FBI continues to hold on to equipment and information it seized from Burke that isn’t relevant to its investigation (even assuming there is any legitimate basis for an investigation in the first place).

Burke needs his hardware to continue to engage in reporting and preserve his research, especially since Google recently threatened to delete his remote storage account. The government shouldn’t be allowed to use an investigation based on vague accusations to silence journalists’ reporting and threaten their careers and livelihoods.

It could be that the government’s investigation of Burke hinges on something other than routine newsgathering. (Though, based on what we know so far, we’re doubtful.) If so, many of the First Amendment concerns raised by the raid and its chilling effect on other journalists could be resolved if the government would just explain why it thinks Burke broke the law. But so far, it’s refused.

In October, more than 50 organizations sent a letter to the Department of Justice demanding transparency about how the government believes Burke’s newsgathering broke the law. The DOJ has not responded.

That means it’s up to the federal appeals court to order additional transparency about this troubling investigation. If the government is targeting a journalist for constitutionally protected newsgathering, the public deserves to know.

Marion County Record publisher Eric Meyer, pictured above, commented during a recent online event hosted by FPF that Americans of all political stripes were equally outraged after police raided the Record's newsroom and Meyer's home last August.

Freedom of the Press Foundation (FPF) recently hosted a conversation with two journalists who unwittingly found themselves at the center of the story of press freedom in the U.S. in 2023: Marion County Record publisher Eric Meyer and Florida independent journalist Tim Burke. You can watch the conversation here or at the end of this article.

Newsroom raids have been rare in the United States since the passage of the Privacy Protection Act of 1980, but both Meyer and Burke had their newsrooms raided by law enforcement officers last year.

Meyer said that despite gaining subscribers, the Record is “struggling to get along” in the aftermath of the August 2023 raid, figuring out how to report the news while also being the news. “The truth of the matter is that it was pretty easy to put out the paper the first week [after the raid],” he said, because the staff were “running on adrenaline. But now the adrenaline is gone and we’re fighting tooth and toenail each week just to get the paper out.”

The raids of the Record and Meyer’s home drew significant media attention, especially after Meyer’s 98-year-old mother and the paper’s co-owner, Joan, died the next day (Meyer said authorities were considering criminally charging her before she died for allegedly shoving her walker into an officer).

The raid has faded from the national headlines, but journalists at the Record and elsewhere in Kansas continue to unravel the web of incompetence and malice that allowed it to happen.

Meyer intends to report the story and pursue his legal remedies, but he worries about causing reputational or financial harm to Marion. The whole reason he bought his hometown paper, he said, was to support the community. “This is not what we wanted to do,” he acknowledged.

Burke raid under the radar

The raid of Burke’s home newsroom, in contrast to the one in Marion, has received relatively little scrutiny.

FPF and other advocates are pushing for transparency from the Department of Justice on how it believes Burke broke the law when he used the internet to access outtakes of Tucker Carlson’s interview with Ye (formerly known as Kanye West). During the interview, Ye made antisemitic remarks that Fox News chose not to air.

The government’s position appears to be that Burke broke the law by accessing footage Fox didn’t want him to access — even though the footage was posted to a publicly available (albeit difficult to find) website. That’s quite concerning for journalists who see it as their job to find information the powerful prefer to keep hidden.

Equally concerning is the government’s seizure of confidential reporter’s notebooks whose contents Burke says have nothing to do with the story supposedly under investigation.

The government successfully opposed Burke’s request to unseal the warrant affidavit that would explain why he was targeted (Burke is appealing that ruling). And, according to Burke, there’s no footage of the raid because agents cut off his security cameras.

“I think that’s why my case has gotten so much less attention” compared to the Marion raid, he said. “There’s barely any record of it even happening. The government’s refusing to say anything about it.”

Burke expressed dismay both at the invasion of his space and at the potential criminalization of digital journalism — his life’s work. He wondered whether the agents conducting the raid thought to themselves, “Am I really trying to prosecute someone for exposing Kanye West as an antisemite? Is that why I got into the FBI? Because that’s what this is about.”

Both Burke, who said he’s open about his left-leaning views, and Meyer, who considers himself a conservative (though he takes care to distance himself from the current version of the Republican Party), noted the extensive support they’ve received from people of all political stripes.

They also expressed shared optimism that despite heated political rhetoric — including against the press — Americans across the board are disgusted by the notion of cops raiding newsrooms. As they should be.

Watch the full conversation below.

NSC spokesperson John Kirby, pictured above, said the Biden administration needs more information to determine whether Israel is targeting journalists. But he made clear that the administration has no intention of actually seeking that information. Chairman of the Joint Chiefs of Staff from Washington D.C, United States, CC BY 2.0, via Wikimedia Commons

Last month, we wrote about how journalists need to ask the Biden administration pointed questions about the record pace of journalist killings in the Israel-Gaza war. The good news is that the press has started to do its part by asking questions. The bad news is that Biden administration officials aren’t doing their part by answering them in good faith. 

Case in point: recent remarks from National Security Council Coordinator for Strategic Communications John Kirby, after an Al Jazeera reporter asked him about the killing of one of its photographers, Samer Abu Daqqa, in an attack that also injured its reporter and Gaza bureau chief Wael al Dahdouh. (Virtually all of al Dahdouh’s family had been wiped out in an Israeli airstrike weeks before.)

The reporter noted that witnesses said Abu Daqqa was killed by a drone, and asked if the incident had led Kirby to rethink his prior statements that the administration had seen no evidence of Israel targeting journalists. 

It’s a fair question, especially considering Israel’s history with Al Jazeera, which includes targeting Al Jazeera journalists, and multiple recent investigations that conclude Israel intentionally targeted other reporters during the current war. 

After offering condolences, Kirby reiterated the administration’s public position that “journalists need to be able to have the freedom to cover conflicts around the world. … And it’s never acceptable to deliberately target them as they do such vital, dangerous, dangerous work.” Sounds good so far. 

But then came the dodge. “I don’t know all the details about his tragic killing, so I’m not in a position to say that the operation which killed him was of a certain flavor or not,” Kirby said. Asked what kind of evidence he’d need to change his mind, Kirby said the U.S. would need to gather more information. “We’d have to have more specific knowledge than we do right now about the purpose of the strike, the origin of the strike, the targeting process, the selection process,” Kirby stated. 

But then in virtually the same breath, Kirby seemed to indicate the U.S. has no intention of trying to extract any of that information from Israel’s government or investigate the eyewitness claims at all:  “We are not going to make ourselves judge and jury over every single airstrike and every single kinetic event that happens on the battlefield.”

Kirby added that “we stay in touch with our Israeli counterparts every day. We still don’t have any indications that they are deliberately targeting journalists. And that’s where I’d have to leave it.” 

So let’s get this straight: The administration says it cares deeply about journalists’ freedom to cover the war without being targeted. It needs more information to figure out whether Israel, its ally that it continues to finance, is, in fact, targeting journalists. But it’s not going to bother seeking that information, at least until unnamed Israeli counterparts voluntarily confess during one of their daily check-ins.  

Of course, the administration does investigate specific instances when it wants to. For example, State Department spokesperson Matthew Miller said this week that officials are posing “specific” and “tough” questions to the Israeli government about the recent killings, condemned by the Pope, of two Palestinian Christian women as they walked to a convent of nuns. And the administration is eager to get specific about Hamas’ atrocities. 

But, apparently, dead journalists aren’t as important. 

“We will, however, continue to talk,” Kirby continued. And that pretty much sums up the administration’s response to the (at least) 68 journalists killed to date in this war. All talk.

Atmore News reporter Don Fletcher and publisher Sherry Digmon were arrested after reporting on an investigation of a school board's handling of COVID funds in October. They're among at least 12 journalists arrested this year, according to our U.S. Press Freedom Tracker.

Our U.S. Press Freedom Tracker just released its annual report on arrests of journalists. At first glance, it might look like good news — the Tracker recorded 12 arrests this year, fewer than last year’s 15 and exponentially fewer than 2020’s 146.

But beneath the surface are some troubling trends, which Tracker Senior Reporter Stephanie Sugars and Freedom of the Press Foundation (FPF) Director of Advocacy Seth Stern discussed during a recent X (formerly Twitter) Spaces conversation.

As Sugars noted, in past years most arrests of journalists came with at least some pretextual legal justification — for example, that a reporter allegedly trespassed. This year, she said, we saw arrests even where “there was no such pretense available.”

These arrests, Sugars said, represent a disturbing tendency toward “criminalization of what is very standard newsgathering practice,” like asking officials for comments or publishing leaks. “Either they don’t understand this is very routine, or they’re trying to use prosecutions or other forms of legal recourse as a cudgel to prevent future reporting.”

Sugars pointed to the arrests in Alabama of Atmore News publisher Sherry Digmon and reporter Don Fletcher. They were charged under a grand jury secrecy statute for reporting about a grand jury investigation of the local school board, despite that the grand jury secrecy statute, by its own terms, is plainly inapplicable to journalists.

Then, as a term of their bail, they were censored from talking about, or reporting on, their own case or any other criminal investigations.

Sugars also discussed the case of Daily Southtown reporter Hank Sanders, who was issued three frivolous tickets for nothing more than asking public officials questions. The Chicago suburb of Calumet City dropped the citations against Sanders after it became a national laughing stock, but the charges against Digmon and Sanders remain pending.

As for the relatively low total arrest number, Sugars noted that journalist arrests strongly correlate to civil unrest. That’s what accounted for the spike in 2020, when all but nine of 146 arrests occurred during protests. “We routinely find that a protest is the most dangerous assignment for a journalist, not only because of the threat of arrest but also assault,” as well as equipment seizure by law enforcement officers, Sugars said.

She explained that a lower number of arrests more likely reflects a lower number of protests — not a lasting change in the attitudes of law enforcement.

Stern added that, although there have been some recent statements from the federal government supporting the rights of journalists to cover protests, little has been done to turn those words into practice. That’s concerning, especially heading into an election year that could see more than its share of civil unrest.

In the meantime, police departments are coming up with creative new ways to crack down on coverage of protests, like declaring entire protest areas crime scenes to exclude reporters.

Government hostility toward the press also manifested itself in ways not necessarily captured by arrest statistics. Stern highlighted the law enforcement raids of the Marion County Record in Kansas and of independent journalist Tim Burke’s home newsroom in Florida.

Newsroom raids, he explained, had been practically unheard of in recent decades because they’re illegal under the Privacy Protection Act of 1980. “They rarely happen because they’re not supposed to happen,” he said. “Two in a year is very concerning.”

Stern also discussed the restraining order obtained by an Arizona state senator, Wendy Rogers, against a journalist who had knocked on her door to investigate her residency. He noted, too, that the same Calumet City authorities who ticketed Sanders had also attempted to obtain a restraining order to bar him from city hall — all for asking officials questions.

Sugars and Stern agreed that the problem of arrests and other harassment of journalists is a national one. While incidents that garnered the most headlines this year occurred in rural Kansas and Alabama, the issue is by no means limited to small towns or red states.

Sugars observed that two arrests this year occurred in New York, which has had plenty of press freedom problems in recent years. But she singled out authorities on the opposite coast — specifically, the Los Angeles Police Department — as among the most “atrocious” offenders, for reasons ranging from uses of excessive force to “kettling” journalists for mass arrests.

Stern cautioned that, while some in large coastal cities may think their officials “are more enlightened, no, they’re not. The evidence doesn’t bear that out whatsoever.”

Both Stern and Sugars closed with calls for everyone who values the First Amendment to do their part to bring more attention to press freedom violations, regardless of whether the victims are household names or little-known freelancers. Journalists or others aware of violations should always inform the Tracker through its incident submission site.

But they shouldn’t stop there. It’s vital that journalists get over their reluctance to make themselves the story, and cover press freedom violations just like they would any other abuse of government power to infringe constitutional freedoms. Newsprint is the one thing journalists have more of than anyone else and they should use it to fight back.