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Press freedom wins in Chicago court, but fight continues

Chicago journalists won a big First Amendment victory Oct. 9, when a federal court temporarily curbed federal officers’ abuses at protests. But the fight isn’t over.

The order still allows officers to potentially remove journalists along with protesters, a serious threat to press freedom that must be fixed.

We also can’t rely on courts alone. Local officials must step up, especially to protect independent journalists, who’ve been the main targets of these violations.

That’s why Freedom of the Press Foundation (FPF) led a coalition letter urging the Broadview, Illinois, Police Department and Illinois State Police to investigate attacks on independent journalists covering protests.

Read more about the order here.

Strengthen presidential library transparency

A segment on “Last Week Tonight with John Oliver” about corruption and secrecy surrounding presidential libraries cited FPF’s Lauren Harper, who has been warning about Trump’s purported library since before his inauguration.

Oliver is right. Secret donations to presidential libraries enable bribery, while public access to presidential records is at an all-time low. Use our action center tool to tell Congress to close the secrecy loopholes and increase transparency.

Write to your lawmakers here.

Army lawyer thinks journalists are stenographers

The Pentagon attempted to walk back its policy restricting reporters from publishing news the government doesn’t authorize. But the revised policy is still a nonstarter to which no journalist should agree.

Meanwhile, a nominee for general counsel for the Department of the Army, Charles L. Young III, effectively endorsed the unconstitutional restrictions during a Senate hearing this week, opining that the First Amendment authorizes the government to punish journalists for publishing information that it did not approve for public release.

That’s disqualifying. A journalist’s job isn’t to keep the government’s secrets. It’s to report news the government does not want reported.

Tell Congress to reject Young’s nomination.

State Department must stand up for journalists detained on flotillas

Israel continues to hold American journalists captured in international waters aboard aid flotillas. The latest are Jewish Currents reporter Emily Wilder and Drop Site News reporter Noa Avishag Schnall. Previously, Israel detained Drop Site News reporter Alex Colston, who has said he and other detainees were abused and denied medical care.

But the State Department is doing little if anything about these detainments, presumably because the journalists in question don’t agree with the administration’s policies. Lawmakers need to raise their voices and pressure the administration to do more.

Write to your member of Congress here.

Student journalists fight Trump’s anti-speech deportations

It’s not every day a student newspaper takes on the federal government. But that’s exactly what The Stanford Daily is doing.

The Daily sued Secretary of State Marco Rubio and Secretary of Homeland Security Kristi Noem in August over the Trump administration’s push to deport foreign students for exercising free speech, like writing op-eds and attending protests.

We spoke at the start of Stanford University’s fall term with Editor-in-Chief Greta Reich about why the Daily is fighting back. Read more here.

It’s time to end the SEC gag rule

We’ve written before about the unconstitutionality of the Securities and Exchange Commission’s “gag rule,” which bars those who settle with the SEC from talking to reporters, to protect the SEC’s reputation.

We shouldn’t need to say this, but the government doesn’t get to censor its critics to make itself look good. Last week, we filed a legal brief explaining to a federal appellate court why the ridiculous rule must be struck down. Read the brief here.

What we’re reading

ICE goes masked for a single reason (The New York Times). FPF’s Adam Rose tells the Times that immigration officers “seem to feel they can just willy-nilly shoot tear gas canisters at people and shoot them with foam rounds that can permanently maim people.”

The New York Times wins right to obtain info Musk wanted kept private (The New Republic). A court ruled that the public’s interest in knowing if Elon Musk has a security clearance and access to classified information outweighs any potential privacy interests.

Press Freedom Partnership newsletter (The Washington Post). “Journalists who are considering covering the story are going to think twice about it and stay home because they don’t want to be jailed and shot. It’s a major problem,” we told the Post about law enforcement targeting journalists covering anti-deportation protests in and around Chicago.

Journalism has become more challenging, for reporters and sources (Sentient). Sources have backed out of news stories — even seemingly uncontroversial ones — out of fear of being targeted by the Trump administration.

MAGA slams ‘fake news’ but embraces ‘The Benny Show’s’ misinformation (Straight Arrow News). “Plenty of past presidents would have loved to exclude serious journalists … and bring in the Benny Johnsons of their time. They just were under the impression that the public wouldn’t tolerate that,” we told Straight Arrow News. Now it’s up to the public to prove those past presidents right and the current one wrong.

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A federal judge just reminded the government that the First Amendment still applies in Chicago.

On Oct. 9, Chicago journalists and protesters scored a major legal win, when Judge Sara Ellis issued a temporary restraining order reigning in federal officers’ repeated First Amendment violations at protests.

It’s a big victory for press freedom. The order prohibits arrests and use of physical force against journalists and restricts the use of dangerous crowd-control munitions. It defines “journalists” broadly, in a way that includes independent, freelance, and student reporters. It also enhances transparency by requiring federal officers to wear “visible identification,” like a unique serial number.

This order and similar rulings in Los Angeles last month are powerful reminders that journalists working together can vindicate their rights in the courts. They also highlight the crucial role that independent journalists and smaller news organizations play in defending press freedom. In both Chicago and Los Angeles, it’s been freelancers, community news outlets, local press clubs, and unions who’ve taken the lead, teaming up with protesters, legal observers, and clergy to take the government to court.

Unconstitutional dispersals of press still possible

But the fight isn’t over. The Chicago order unfortunately leaves open the possibility that, at least in some instances, federal officers may order journalists to leave areas where protests are being broken up or officers are attacking protesters.

Although the order prohibits dispersal of journalists from protests as a general matter, it also states that officers can “order” journalists to “change location to avoid disrupting law enforcement,” as long as they have “an objectively reasonable time to comply and an objectively reasonable opportunity to report and observe.” (In contrast, a similar order in Los Angeles states only that federal officers may “ask” journalists to change location.)

Federal officers are likely to use this as a loophole to continue to violently remove the press from protests, on the pretext that it’s necessary to avoid disruption. The order’s requirement that press must be able to continue to report and observe is also too lax; far better would have been an order specifically requiring that press be able to continue to see and hear the protest and law enforcement response.

Even when police can disperse protesters who break the law, the First Amendment doesn’t allow them to disperse journalists, too.

The weaker language around dispersals of journalists in the court’s order is a shame, especially for the public’s right to know. In recent days, Chicago journalists have been reporting about the violent tactics used by federal agents to disperse protests. If journalists can be ordered to leave alongside protesters, they can’t observe what’s happening or capture the images they need to keep the public informed.

It also makes dispersals more dangerous for protesters. As Unraveled Press noted, “Again and again, we’ve seen cops are most likely to get more violent with demonstrators when out of public view.” (Unraveled Press co-founder Raven Geary is a plaintiff in the Chicago lawsuit.) And while the court’s order prohibits dispersal orders aimed at peaceful protesters, if federal officers violate that order and also disperse the press to avoid a “disruption,” it will be much harder for the public to learn about it.

By declining to simply prohibit federal officers from dispersing the press, except when necessary to serve an essential government need such as public safety, the court also got the law wrong. Even when police can disperse protesters who break the law, the First Amendment doesn’t allow them to disperse journalists, too.

We’re not the only ones who say so. Just last year, the Department of Justice issued guidance stating as much:

“In the case of mass demonstrations, there may be situations—such as dispersal orders or curfews—where the police may reasonably limit public access. In these circumstances, to ensure that these limitations are narrowly tailored, the police may need to exempt reporters from these restrictions. …”

The DOJ also said so in a previous report, reprimanding the Minneapolis Police Department for its suppression of protesters and the press following George Floyd’s murder:

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

And in an important decision from 2020, the federal court of appeals in the 9th Circuit also disapproved of blanket dispersal orders being enforced against the press. That case arose from very similar circumstances to those today: federal authorities abusing the First Amendment while policing federal property during Black Lives Matter protests in Portland, Oregon.

In the 2020 case, the 9th Circuit affirmed a legal order that exempted journalists from general dispersal orders issued by the federal government. Journalists, it wrote, “cannot be punished for the violent acts of others.”

These authorities make it clear: Journalists cannot be ordered to move simply because it would be more convenient for officers. Journalists can only be dispersed if it’s essential to a compelling government interest, and only if they continue to have another vantage point from which they can see and hear what’s going on in order to report.

It’s frustrating that the court’s order leaves the door open for the government to evade this well-established principle. But the fight isn’t over. The court’s temporary restraining order is just a first step. When it issues a more permanent ruling, it will have another opportunity to get the prohibition on dispersing the press right.

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