Freedom of the Press

Screenshot of journalist Catherine Herridge testifying before a subcommittee of the House Judiciary Committee on the importance of the bipartisan PRESS Act for investigative journalists, their sources and American democracy.

Veteran journalist Catherine Herridge threw her full support behind the PRESS Act, the federal bill to put an end to surveillance and subpoenas to force journalists to out their sources, during Congressional testimony today. 

“If there’s anything I can accomplish in my career as a journalist it’s going to be getting this over the finish line. I feel this with every core of my being,” she told the House Judiciary Committee’s Subcommittee on the Constitution and Limited Government. 

Herridge, who most recently worked for CBS News, was held in contempt of court for refusing to divulge sources for her reporting during her time at Fox News. She is facing a fine of $800 every day that she does not burn her sources, although the penalty is stayed while she appeals. 

“Forcing a reporter to disclose confidential sources would have a crippling effect on investigative journalism,” said Herridge, later adding that “If you cannot offer a source a promise of confidentiality as a journalist, your toolbox is empty.” 

Although Herridge said she “has not lost a night’s sleep about my decision to protect my confidential sources,” she noted that one of her children had asked her whether she was going to go to jail, and whether they were going to lose their home and savings, all because she refused to renege on her promises to her sources. “I wanted to answer that in this United States, … it was impossible, but I could not offer that assurance,” she said. 

“I hope that I am the last journalist that has to spend two years in the federal courts fighting to protect my confidential sources,” Herridge proclaimed. “If confidential sources are not protected, I fear investigative journalism is dead.”  

The PRESS Act passed the House unanimously and with broad bipartisan sponsorship in January, and representatives from Jim Jordan to Jerry Nadler reiterated their support for the bill at today’s hearing.  It’s now pending in the Senate, with strong bipartisan support in that chamber as well, but it needs to clear the Senate Judiciary Committee to further advance. 

The highest-ranking senators from both parties that sit on that committee, Dick Durbin and Lindsey Graham, are both sponsors of the bill. Senate Majority Leader Chuck Schumer recently told the New York Post that he’d like to see the bill on the president’s desk this year.

Other witnesses at today’s hearing also testified powerfully in favor of the PRESS Act. Nadine Farid Johnson, policy director of the Knight First Amendment Institute at Columbia University, explained that “Modern newsgathering requires that reporters are able to give assurances of confidentiality to their sources.” She noted that the Supreme Court had “invited” Congress in 1972 to pass a law protecting journalist-source confidentiality and encouraged it to finally do so. 

Like Herridge, Farid Johnson emphasized the PRESS Act’s broad definition of “journalist,” explaining that “in the digital age, a significant amount of important reporting is done by journalists who do not fit a traditional mold,” and that journalists must be protected “whether writing for The Washington Post or offering a subscription on Substack.” 

Journalist Sharyl Attkisson added that “countless news stories that I broke or facets of them could not have been reported without sources whose identities needed to be protected.” She added that “there’s no way to quantify with any certainty the impact of what we’ve lost and what we’re not able to do” without adequate protection for journalist-source confidentiality. “But I don’t think there are many investigative reporters who would say it isn’t having a big impact.” 

Mary Cavallaro, chief broadcast officer, SAG-AFTRA News & Broadcast Department, also endorsed the PRESS Act. “This long-overdue legislation represents a significant leap forward not just for journalists, but for the sanctity of journalism itself, and for the constitutional right to freedom of the press,” she said. 

Herridge noted in her testimony that the PRESS Act is supported by numerous press freedom and civil liberties organizations, including Freedom of the Press Foundation (FPF). 

Seth Stern, FPF’s Advocacy Director, said: “The PRESS Act is the most important press freedom legislation in modern times. It’s truly remarkable that, despite all the political divisions in Congress, legislators from both parties proudly support the PRESS Act. We hope that senators in both parties take the testimony of Catherine Herridge and others to heart and advance this crucial legislation without further delay.”  

The U.S. government argues that WikiLeaks founder Julian Assange should be prosecuted because he’s a “hacker” not a journalist. So why isn’t it satisfied with punishing him like one? While awaiting extradition, Assange has now served five years in Belmarsh Prison in the U.K. — the statutory maximum sentence under U.S. law for conspiracy to commit computer intrusion.

This week marks five years since Julian Assange was imprisoned in the U.K., where he awaits extradition to the United States on charges related to WikiLeaks’ publication of secret State and Defense Department documents that once made worldwide news.

The U.K. High Court recently granted Assange another hearing in his case, delaying at least temporarily his extradition to the U.S., although not ending the threat to press freedom that his extradition and prosecution pose.

American officials say that Assange’s prosecution couldn’t possibly harm press freedom because he’s a “hacker,” not a journalist. If they truly believe that, you’d think they’d be satisfied with punishing him like a hacker. But they’re not.

When Assange was first remanded to British custody on April 11, 2019, he was accused of breaking a federal computer hacking law. The U.S. had indicted Assange on one count (PDF) of conspiracy to commit computer intrusion with whistleblower Chelsea Manning.

Many have disputed Assange’s alleged guilt under that charge. But even if Assange were to be convicted, it carries a maximum sentence of five years in prison.

That means Assange has now served the maximum prison sentence for his alleged computer hacking crime, albeit in Belmarsh Prison in London. Yet the U.S. continues to pursue his extradition and prosecution on charges far more related to journalism than hacking.

After initially charging Assange under just the Computer Fraud and Abuse Act, the U.S. quickly amended the original indictment to add 17 counts under the Espionage Act. (The government later amended the complaint again to broaden the scope of the computer hacking charge against Assange, in ways that continue to draw criticism.)

Although officials continue to focus their public comments on Assange’s alleged hacking, the Espionage Act charges are based on acts of journalism: speaking to sources, asking them questions, and seeking more information or documentation from them. Under the government’s theory in the Assange case, even just publishing government secrets — something journalists do all the time — would violate the Espionage Act.

That’s why news media outlets, press freedom and human groups, and law professors have all agreed that Assange’s prosecution under the Espionage Act threatens press freedom. If Assange can be convicted for engaging in acts that journalists do every day, so could reporters at The New York Times, The Wall Street Journal, Fox News, or ABC — regardless of whether you consider Assange a journalist.

It’s also why the Biden administration’s insistence that the Assange prosecution is based on hacking, not journalism, falls flat. The Espionage Act charges show that prosecutors are in fact charging Assange based on journalistic acts.

Even the Biden administration’s own spokespeople have acknowledged as much, at least in the past. In 2019, Matthew Miller — a former Department of Justice spokesperson under the Obama administration — explained that the Obama DOJ had declined to prosecute Assange under the Espionage Act because if Assange could be prosecuted, so could The New York Times. But in 2024, Miller, now the State Department spokesperson, responded to a question about Assange’s prosecution by emphasizing that hacking is not a legitimate journalistic activity.

Statements like that are meant to assure the public that the Biden administration would never prosecute a “legitimate” journalist. But promises not to prosecute conventional journalists are meaningless when the government is claiming the unchecked power to do so. If Assange is successfully convicted under the Espionage Act, those promises will do nothing to stop a future administration, or even this administration, from prosecuting whichever journalists it dislikes.

Even if those prosecutions don’t materialize, their possibility still surely chills journalism. Journalists often report on government secrets that can embarrass officials or even reveal their wrongdoing and crimes. It’s too risky for them to rely on prosecutors’ promises that they won’t go after journalists who gather and report the news “the right way” — at least in the eyes of the authorities. The threat of jail time will create an enormous incentive for news outlets and journalists not to publish.

Of course, the Biden administration could put an end to this threat to press freedom in an instant by dropping the case against Assange. If his prosecution is really about hacking, not journalism — as the government has so loudly and persistently proclaimed for the last five years — then it’s time for the U.S. to drop its attempt to extradite and prosecute Assange under the Espionage Act.

Former Fox News and CBS News reporter Catherine Herridge, pictured here interviewing Acting Defense Secretary Chris Miller, is appealing an order holding her in contempt of court for refusing to burn her sources. “201215-D-BN624-0040” by Lisa Ferdinando is licensed under CC BY 2.0 DEED.

A recent court filing by veteran journalist Catherine Herridge demonstrates the unpredictability journalists face when they commit to maintaining source confidentiality. It underscores the need for Congress to pass the PRESS Act — the bipartisan bill to end subpoenas and surveillance of journalists except in clearly defined emergency scenarios.

Herridge, known for her time at CBS News and Fox News, is appealing a federal judge’s order holding her in contempt of court for refusing to burn her sources for her reporting on an online university’s alleged ties to the Chinese military. The school’s president, Yanping Chen, filed privacy claims against the FBI over alleged leaks that enabled Herridge’s reporting.

Journalists and sources face confusion, unpredictability

Herridge’s April 3 filing — in response to Chen’s request to rush the appeal — explains that the journalist and Chen disagree as to which legal test should determine whether Chen can force Herridge to reveal her sources to bolster her lawsuit.

Herridge argues that, under court precedents interpreting the First Amendment, judges should consider “multiple factors in a broad assessment” to “weigh the public interest in protecting the reporter’s sources against the private interest in a compelled disclosure.” Chen, on the other hand, wants the court to consider only how important Herridge’s sources are to her case and whether Chen has exhausted alternative avenues to find the information.

A lower court’s decision agreeing with Chen, and ordering Herridge to reveal her sources, was widely criticized by press freedom advocates. The appellate court should reverse that order and protect Herridge’s sources. But the problem is that the kinds of multi-factor balancing tests the court is tasked with interpreting are so subjective and amorphous that any judge who wants to find a reason to out a journalist’s sources can do so.

And the dispute between Herridge and Chen deals only with the U.S. Court of Appeals for the D.C. Circuit. There are 12 other appellate circuits in our federal court system, each of which has a different law governing journalist-source confidentiality. Some recognize a relatively broad privilege, and some recognize essentially none at all.

That means journalists who promise sources confidentiality have to be prepared to be held in contempt — or potentially spend time in jail — if they’re subpoenaed in a jurisdiction with unfavorable law. Even in appellate circuits that do recognize a limited reporter’s privilege, like the D.C. Circuit, the law is often ambiguous.

Judicially crafted tests tend to be highly subjective. The intent of these tests may be to avoid confining judges with rigid rules, but the result is arbitrary outcomes and unpredictability for journalists and sources. Plus, at least to some extent, the game is rigged — when tasked with balancing the interests of the judicial branch against the interests of the Fourth Estate, judges have an obvious inherent bias toward the former.

It’s not just about private litigants like Chen — presidential administrations from both parties have repeatedly spied on journalists and their technology providers (which the PRESS Act would also prohibit). And they’ve been quick to threaten journalists with jail for not outing sources. It turns out that, no matter how much government officials claim to value press freedom, they inevitably can’t resist the urge to harass journalists who embarrass them.

In this legal landscape, potential whistleblowers can’t be blamed for hesitating to trust journalists to maintain their confidentiality when threatened with monetary sanctions and incarceration. Odds are that for every source that does come forward to reveal corruption or malfeasance, another stays on the sidelines due to fear of being outed.

It’s time to pass the PRESS Act

The judge in Herridge’s case noted that, if Congress wanted to broaden protection of journalist-source confidentiality, it should pass a law to do so. If he got one thing right, it’s that.

The PRESS Act would finally do away with the unpredictability journalists and their sources face when dealing with the federal government and federal courts. It would prohibit litigants and government officials from peering into reporter’s notebooks and inboxes except when there’s a legitimate threat of terrorism or imminent violence.

The PRESS Act may mean that prosecutors, as well as plaintiffs like Chen, will have to work a little harder to make their cases. But that’s a small price to pay to protect the immense value that a free press brings to our democracy. Journalists, after all, don’t work for the government — they watch over it. And history shows that lawyers who unsuccessfully claim to need a journalist’s sources to build their cases are ultimately able to find another way.

The PRESS Act passed the House without objection and is now pending in the Senate Judiciary Committee. It’s sponsored by the highest-ranking members of each political party in the committee — Democrat Dick Durbin and Republican Lindsey Graham — as well as Republican Mike Lee and Democrat Ron Wyden. Majority Leader Chuck Schumer recently told the New York Post that he’d like to see it pass this year.

It’s time for Congress to finally step in and protect journalists and their sources from surveillance. Herridge should win her appeal, even without the PRESS Act, because the public interest in journalist-source confidentiality far outweighs Chen’s interest in discovery for her lawsuit. But it should never have gotten to the point of Herridge having to appeal a contempt finding. Absent an unusual emergency, snooping on journalists should be a non-starter.

Nashville Scene reporter Eli Motycka, who was arrested while covering a student protest at Vanderbilt University, is one of at least four journalists arrested or detained while reporting on a protest so far this year. Vanderbilt University by mosesxan is licensed under CC BY-NC-SA 2.0.

Journalists Carolyn Cole and Molly Hennessy-Fiske were reporting for the Los Angeles Times on the George Floyd protests in Minneapolis on May 30, 2020, when they were brutally attacked by the Minnesota State Patrol. Last week, they settled a lawsuit against the city for $1.2 million.

It’s a welcome sign of accountability for police who violate the rights of journalists covering protests. But nearly four years after the Floyd protests led to a spike in journalists arrested and assaulted, protests remain a dangerous place for reporters.

Just a few months into 2024, the U.S. Press Freedom Tracker has documented four arrests or detentions of journalists covering protests in New York, Tennessee, and California.

None of these arrests have received much attention or public outcry. That’s a shame. These arrests violate journalists’ rights, and they undermine the right of the public to learn about newsworthy events happening in their communities.

They also show the disturbing and stubborn persistence of a system of policing that either doesn’t know or doesn’t care about First Amendment rights. A closer look at each of the cases documented by the Tracker so far this year reveals that — even after large settlements or acknowledgments by the federal government that journalists must be allowed to cover protests — police around the country are still routinely arresting reporters who are simply doing their jobs.

New York arrests come as police resist settlement

New York City’s largest police union, the Police Benevolent Association, fought tooth and nail against a settlement the city entered into last year, after being sued by photojournalists who claimed their First Amendment rights were violated while covering protests in 2020. The settlement acknowledges the right of the press to record police in public and sets rules for officers’ interactions with journalists covering protests.

The PBA says its objections are about safety. But officers keep arresting journalists who pose no safety risk to anyone, and who are simply reporting on protests. In fact, the same month the settlement was finally approved by a court, two journalists were arrested in New York City while covering protests.

On Feb. 29, independent journalist Ashoka Jegroo was nearly pushed “face-first onto the ground” and arrested while documenting a pro-Palestinian protest of remarks by New York Gov. Kathy Hochul at a Wall Street restaurant.

Jegroo was charged with disorderly conduct and walking in a roadway when a sidewalk was available. The latter charge was dismissed. But Jegroo accepted a deferred prosecution on the disorderly conduct charge, meaning that the charge will only be dismissed if he is not arrested in the next six months.

Given how common it is for the New York Police Department to arrest journalists, the possibility that another arrest could revive past charges would be a chilling prospect for any reporter, especially one, like Jegroo, who has previously been arrested while covering protests. Still, Jegroo has vowed not to let the risk of more arrests stop his journalism.

Also in New York City, podcast journalist Reed Dunlea was arrested while reporting on a pro-Palestinian protest on Feb. 10, “Police officers threw Dunlea to the ground, damaging his equipment, and charged him with resisting arrest,” the Tracker reported.

Despite showing police officers his city-issued press credential and repeatedly identifying himself as press, Dunlea was dragged into the street, pinned on his stomach, and arrested. He was eventually charged with resisting arrest. The Committee to Protect Journalists and Freedom of the Press Foundation (FPF) called for the charges to be dropped, which they later were.

Both of these arrests show that the recent settlement that reins in police conduct toward the press is desperately needed. But with the police union’s staunch opposition to the settlement and officers’ continued aggressions toward journalists, we can’t help but wonder whether officers will actually comply with it. The NYPD must be monitored and the settlement’s terms strictly enforced to ensure that officers don’t continue to unjustly arrest reporters for documenting protests.

Tennessee ‘catch and release’ stymies coverage

Another reporter arrest in Tennessee shows how “catch and release” policies can stymie ongoing attempts by journalists to document protests and how intimidation tactics can chill future reporting.

Just last week, on March 26, Vanderbilt University Police officers arrested Eli Motycka, a reporter for the Nashville Scene, while he was covering a student protest opposing the Israel-Gaza War. Motycka was attempting to gain access to an administrative building on campus where students were holding a sit-in.

After speaking to several officers outside the building, Motycka was eventually arrested for criminal trespassing, even though he identified himself as a credentialed member of the media. Officers claimed Motycka had been previously asked to leave, which he denied.

The charges were dropped just hours later, but much of the damage was done. By arresting and removing Motycka, police effectively prevented him from reporting on the protest. And when Motycka returned to campus that afternoon, authorities made it known that he wasn’t welcome: a campus police officer followed him around until Motycka eventually left, fearing he’d be arrested again.

California detention prompts admonishment

Finally, in California, the recent detention of a Sacramento Bee reporter demonstrates the need to speak out against even brief interferences with the press by police.

Robin Epley wrote a first-person account of being detained by police on March 19, while covering a pro-Palestinian protest at a Sacramento City Council meeting. She was the only journalist in the room when police officers entered the City Council chambers and began arresting protesters who had defied orders to leave — and they handcuffed her in the process. Officers removed the handcuffs after about 25 seconds and allowed her to continue reporting.

Epley was lucky that police didn’t escalate the situation and actually arrest her. The next reporter may not be so fortunate. But Epley’s decision to write about and call attention to her detainment hopefully improves the odds. Epley ensured that elected officials and police know that the press and the public are watching. Perhaps that’s why Mayor Darrell Steinberg told the Tracker, “I do not support the arrest of journalists in chambers.”

We need more than just a single journalist speaking out about her detention, however. Arresting journalists chips away at our right to know by stopping reporting in its tracks. Settlements and official admonishments can only do so much. We need a public outcry each and every time a journalist is arrested for doing their job. These First Amendment violations won’t stop until communities make clear to elected officials and cops alike that we won’t stand for it.

Asheville Blade journalists Veronica Coit and Matilda Bliss are appealing their convictions for trespassing. They had refused to leave a North Carolina park where they were covering the news.

A new appeal in North Carolina could set the state’s legal standard for when police can bar journalists from public places where they’re covering the news.

Journalists Veronica Coit and Matilda Bliss of The Asheville Blade were convicted of trespassing after a five-day trial in June 2023. Police arrested them while they were reporting on and recording a protest and police sweep at a homeless encampment in a public park in Asheville, North Carolina, on Christmas Eve of 2021. Authorities moved forward with the prosecution even as press freedom groups around the country condemned it.

Coit and Bliss are now appealing to the North Carolina Court of Appeals on First Amendment grounds. They argue that the trespassing law was unconstitutional as applied to them, and that the court incorrectly suggested to jurors they couldn't consider the First Amendment when deliberating.

Coit and Bliss are far from the first journalists arrested while covering a protest. But their conviction is unusual, since, in most cases, authorities come to their senses and drop charges against journalists before they go to trial. The decision to drop charges is often the result of public pressure. But there’s also a growing recognition of the First Amendment right of the press to cover protests happening in public places.

For example, after protests over the police killing of George Floyd rocked the country in 2020, a federal appeals court in California upheld an order based on the First Amendment that forbade federal officials from arresting journalists for not dispersing from protests in Oregon after being ordered to do so. As the court explained: “Public demonstrations and protests are clearly protected by the First Amendment, and a protest not open to the press and general public is not a public demonstration.”

Even the Department of Justice — which has aggressively pursued journalists in other cases — has recognized that the press has a right to be present to cover protests. Following the protests in Minneapolis over Floyd’s killing — and the harsh crackdown by police on both protesters and the press — the DOJ specifically recognized that blanket enforcement of dispersal orders and curfews against the press violates First Amendment principles. It faulted Minneapolis police who interfered with newsgathering “by unlawfully limiting journalists’ access to public spaces where protests take place, and thus their ability to report on police.”

That’s exactly what happened to Coit and Bliss. By restricting their access to the park, the authorities prevented the journalists from providing oversight and accountability of the police sweep of the encampment.

It was also totally unnecessary to demand that the Blade journalists leave, and the order left them with no alternative for covering the protest or the police response. There’s no evidence that their presence interfered with the police action in any way. And while officers insisted that the journalists could report from the bottom of a steep hill roughly 150 feet away, that would have left them unable to see or hear what was happening, let alone record officers, especially since it was dark outside.

In other words, as Coit and Bliss put it in their appellate brief, “When journalists cover protests, they must be in the same place as the protesters to gather the news.” Unfortunately, that commonsense point has so far been lost on police, prosecutors, and the North Carolina courts.

Or maybe they understand it all too well. After all, police could be heard remarking on bodycam footage that Coit and Bliss should be arrested first “because they’re videotaping.” By arresting the journalists, police put a stop to their reporting. By prosecuting them, authorities chill other journalists who would do the same.

The Court of Appeals, however, now has a chance to get it right and uphold the First Amendment. Its decision in this case will impact not only Coit and Bliss but all journalists in the state who cover protests, police, or other activities on public land. And, most importantly, it will impact the public, who rely on the press to go where the story is and report the news people need to know.

The court can, and must, find that the First Amendment gives journalists the right to cover police activity in public places. Police may wait until nightfall to break up a protest. But that’s no reason the public should be left in the dark.

Stella Assange leaves the U.K. High Court after a previous hearing in Julian Assange’s case in January 2022. Stella Morris congratulated by a supporter as she leaves the High Court by Alisdare Hickson is licensed under CC BY-SA 2.0.

Press freedom & the Assange extradition: What’s happened, what’s next

Julian Assange remains in a British prison, awaiting yet another hearing in late May on the appeal of his extradition to the United States. On March 26, the U.K. High Court ruled that the U.S. must provide “assurances” on three of the grounds on which Assange’s legal team sought to appeal. If the court does not find the assurances satisfactory, Assange can bring his full appeal.

As a result, we remain dangerously close to Assange being sent to the U.S. to be tried under the Espionage Act for obtaining and publishing documents from a source, Chelsea Manning, back in 2010.

Before the U.K. High Court’s latest decision, Caitlin Vogus of Freedom of the Press Foundation (FPF) interviewed Chip Gibbons of Defending Rights & Dissent, via X Space, about Assange’s February extradition appeal hearing in London and what the case means for press freedom in the U.S. and beyond. Gibbons attended the hearing in person and wrote about it for Jacobin.

Gibbons explained, “If Julian Assange is brought here and he loses his Espionage Act case, that is the death of a lot of First Amendment protections for press freedom. And on top of that, there are huge stakes for press freedom globally,” given that the U.S. is claiming jurisdiction to prosecute Assange even though he’s an Australian who operated WikiLeaks from abroad.

“This (prosecution) is also an attack on the right to investigate war crimes, as well as to resist war and militarism,” Gibbons added, noting that authoritarians seeking to prosecute journalists who investigate their regimes have already viewed Assange’s case as a precedent. “It wasn’t just U.S. secrets they published. … If you were a bad actor anywhere in the world, there was a point where your documents would end up on WikiLeaks.”

The current administration may claim it wouldn’t pursue similar charges against a “conventional” journalist, but there’s nothing in the Espionage Act stopping future administrations from doing so. Former President Donald Trump, for example, has made clear that he intends to imprison journalists — specifically those who publish leaks — in a potential second term.

Gibbons explained that the theory that WikiLeaks “solicited” violations of the Espionage Act by announcing its desire to publish secrets is particularly problematic. The prosecution’s theory, he explained, is that “by running this news publication that boldly announces if you have secrets in the public interest, they will publish them, which is what journalists are supposed to do, you’ve engaged in conspiracy to violate the Espionage Act.”

Gibbons also discussed the disturbing lack of transparency around the U.K. hearing, ranging from the court informing international journalists at the very last minute of whether they would be allowed access, to requiring them to listen to the proceedings from overflow rooms with audio outages. It’s disturbing, to say the least, that a case that might undermine journalists’ ability to report secrets is itself plagued by secrecy.

You can listen to the entire X Space here and read Gibbons’ article for Jacobin here.

FPF also hosted a conversation about the case in February with FPF Executive Director Trevor Timm; Electronic Frontier Foundation Executive Director Cindy Cohn; Carrie DeCell, senior staff attorney at the Knight First Amendment Institute; and Ben Wizner, director of the ACLU's Speech, Privacy, and Technology Project. You can watch that discussion here.

You can find more articles and resources about the Assange case — and information about how you can help — at https://freedom.press/assange.

TikTok is used by around 150 million Americans, including journalists. Photo courtesy of Nordskov Media.

Like a bad penny, bills to ban TikTok keep turning up in Congress. We’ve written before about how such proposals are unconstitutional and would enable mass censorship. The newest legislation that would effectively ban the platform, passed earlier this month by the House of Representatives, is no exception.

Writing in the Columbia Journalism Review, Freedom of the Press Foundation (FPF) Advocacy Director Seth Stern warns that banning TikTok would impose a prior restraint on journalism and set a precedent for future censorship, including bans on foreign news sites.

Stern writes:

The reality is that even definitive proof that a platform is propagandizing or surveilling Americans wouldn’t justify censorship. The Pentagon Papers case established that “national security” isn’t a magic word that nullifies the First Amendment—and there, the alleged threat was to troops’ lives, not college kids’ political thought. Nonetheless, Justice Hugo Black explained that “the word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.”

Read the full column here.

Breaking major news — as Tim Burke did when he uncovered an antisemitic rant by Ye, formerly Kanye West, on Tucker Carlson’s TV show — sure sounds a whole lot like journalism.

Tim Burke will be arraigned soon on troubling charges under federal computer hacking and wiretapping laws, based on his online newsgathering.

Burke is being prosecuted for finding and publicizing unaired footage of an antisemitic rant by Ye, formerly known as Kanye West, on Tucker Carlson’s TV show. That tirade, and Ye’s continuing antisemitism, have been national news ever since.

Breaking major news sure sounds a whole lot like journalism. That’s why more than 50 rights organizations and broadcasters sounded the alarm over Burke’s Computer Fraud and Abuse Act case in a letter to Attorney General Merrick Garland last year.

But not everyone agrees. Certainly not at the U.S. Department of Justice.

Writing in Slate, Freedom of the Press Foundation (FPF) Advocacy Director Seth Stern raises concerns that DOJ prosecutors may have labeled Burke as a “former” journalist in court filings to avoid judicial scrutiny of whether their investigation complied with the First Amendment, federal law, and their own policies.

Stern writes:

Reporters are sure to self-censor if they can’t be sure what kinds of journalists and what kinds of journalism the DOJ believes the First Amendment protects. The same way the Espionage Act charges against Julian Assange chill national security reporting, the CFAA charges against Burke chill digital journalism.

Read the entire Slate column here.

Unfortunately, the Tampa Bay Times also refers to Burke as a “former journalist” in its reporting. Last week, its editor Mark Katches attempted to explain the Times’ thinking. In a guest column in the Times, Stern and Florida First Amendment Foundation Executive Director Bobby Block respond.

Stern and Block write that Burke easily satisfies a “functional definition of who is a journalist” — based on whether the person was performing an act of journalism — when he broke the story of Ye’s edited interview on Carlson’s show.

Further, Stern and Block explain:

Press freedom is under attack, especially in Florida, and ambiguous computer crime laws like those Burke is charged under are a dangerous weapon in prosecutors’ arsenals. Katches may think he’s helping preserve the integrity of his profession but, instead, his column handed a gift to those seeking to criminalize newsgathering while the media is most vulnerable.

Read the full Tampa Bay Times guest column here.

Julian Assange

FOR IMMEDIATE RELEASE 

Today, the High Court in London granted WikiLeaks founder Julian Assange another hearing in his extradition to the United States. The court ruled that on three of the nine grounds Assange’s legal team asked to appeal on, the United States must provide “assurances” to the court, and if the court does not find them satisfactory, Assange can bring his full appeal. 

The United States has three weeks to provide the “assurances,” and then a further hearing will be held on May 20. Assange’s case has profound implications for press freedom in the United States. 

The following statement can be attributed to Trevor Timm, executive director of Freedom of the Press Foundation (FPF): 

We are glad Julian Assange is not getting extradited today. But this legal battle is far from over, and the threat to journalists and the news media from the Espionage Act charges against Assange remains. Assange’s conviction in American courts would create a dangerous precedent that the U.S. government can and will use against reporters of all stripes who expose its wrongdoing or embarrass it. The Biden administration should take the opportunity to drop this dangerous case once and for all.

Assange has been indicted in the United States on 18 felony counts, including 17 under the Espionage Act. Under the legal theory used in the indictment, any journalist could be convicted of violating the Espionage Act for obtaining or receiving national defense information from a source, communicating with a source to encourage them to provide national defense information, or publishing national defense information — acts journalists engage in every day. Virtually all major civil liberties organizations and major news outlets have denounced the prosecution as a threat to core press freedom rights. 

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

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

Lawmakers in New Jersey, Colorado, and California took a shamelessly ironic approach to marking this year’s Sunshine Week, by trying to crack down on the public’s access to government records and meetings. Photo courtesy of SunshineWeek.org

The annual celebration of government openness and public records known as Sunshine Week may be over, but journalists’ fight for transparency continues.

To honor this year’s Sunshine Week, we published a new analysis by U.S. Press Freedom Tracker Senior Reporter Stephanie Sugars about the costs of agencies’ pointless battles against records requests. We also hosted an X Space on the same topic with Sugars and David Cuillier, director of the Freedom of Information Project at the Brechner Center for the Advancement of the First Amendment.

But some states took a different and sickeningly ironic approach to marking Sunshine Week, by trying to crack down on the public’s access to government records and meetings. For more about the worst offenders — New Jersey, Colorado, and California — and one ray of hope from New York, read on.

New Jersey rushes anti-transparency bills 

New Jersey lawmakers decided that Sunshine Week was the perfect time to rush through bills making a slew of changes that would gut the New Jersey Open Public Records Act.

The proposals would make it harder to access government communications like emails and any document that officials label a “draft.” They would also establish a task force on access to police records that risks putting New Jersey even further behind other states when it comes to public scrutiny of police misconduct.

The legislation would further harm transparency by making “fee-shifting” optional. Because agencies would not always have to pay the attorneys fees of requesters who win public records lawsuits, it would be harder to find lawyers to fight record denials in court. And, as Cuillier pointed out during our Sunshine Week X Space, states with mandatory fee-shifting “tend to report better compliance” with public records laws compared to those without. 

The bills faced fierce opposition, including from a coalition of civil society organizations led by the New Jersey Working Families Party. The coalition, which includes Freedom of the Press Foundation (FPF), sent the legislature a letter explaining the proposals’ flaws.

Troublingly, State Senate President Nicholas Scutari, who supports the bills, responded to the opposition by suggesting that critics haven’t read the bills and don’t understand what the legislature is trying to do. Scutari has indicated that the legislature will take up the bills again by mid-April, with just minor amendments. 

Despite what Scutari may believe, we can assure him that we have read the bill, and we understand all too well what the New Jersey legislature intends: to allow the government to operate in secrecy by limiting the public’s access to records. 

Colorado legislature goes dark

In Colorado, lawmakers thought Sunshine Week was a good time to enact a bill to largely exempt themselves from the state’s open meetings law. To add insult to injury, Colorado Freedom of Information Coalition President Steve Zansberg said that the legislature “completely ignored” the organization’s input on the law.

The measure, which the Colorado governor signed into law on March 13, makes it easier for smaller groups of legislators to meet in secret and will encourage lawmakers to formulate and debate public business over email or text message, to evade public scrutiny. As Zansberg and the coalition’s executive director, Jeff Roberts, point out, emails exchanged between lawmakers related to draft bills or legislative amendments will now be entirely inaccessible to the public. 

It’s outrageous for the legislature to exempt itself from open meetings law that every other public agency in the state must follow. Journalists in Colorado should take it as a challenge to find out what lawmakers are hiding. 

California considers supercharging anti-public records lawsuits

In California this Sunshine Week, a state Assembly committee set a hearing on a proposed law that would amend the California Public Records Act to require public agencies to notify government employees about records requests that would disclose their identity in connection with their work. 

That may sound reasonable, except that California already has a problem with lawsuits brought by public employees who object to the government’s decision to release records under the CPRA. 

The bill under consideration would encourage even more “reverse-CPRA” lawsuits, as a letter by a coalition of press freedom groups opposing it points out. The letter notes numerous examples of problematic reverse-CPRA cases that hindered the release of public records, such as records of substantiated incidents of sexual misconduct by public school employees sought by the news outlet Voice of San Diego.

As Cuillier explained to us, “You can imagine: What if someone just wants a database of the city of San Diego employees with their salaries — routine, very public, nothing wrong with it. But the city has to contact every city employee, let them know, and give them a chance to sue the requester, go to court to stop it. You can see that's going to be really problematic.”

Nothing good can come of spurring more spurious reverse-CPRA lawsuits. The state Assembly ultimately canceled the committee hearing on the bill, but the proposal remains under consideration. 

One ray of hope in New York

Thankfully, not every state legislature tried to undermine transparency during Sunshine Week.

In New York, lawmakers are considering bills that would improve the state’s Freedom of Information Law. Of course, it’s not all sunshine and roses in New York. The whole reason these bills are needed is because the current system suffers from basic problems that impede public access.

But the four bills under consideration would help fix FOIL. They would speed up records requests by setting a firm deadline for responses and the release of records, require agencies to publicly report data about FOIL requests, stop businesses from permanently exempting records they submit to agencies from disclosure, and make it easier for requesters who win public records lawsuits to get attorneys fees.

A coalition of good government, transparency, and press freedom groups, including FPF, sent a letter to New York lawmakers during Sunshine Week to urge them to pass the bills. The legislature should enact these bills swiftly to improve public access to records in the state.

Unfortunately, New York appears to be more the outlier than the norm when it comes to bills that would change state public records laws. Cuillier told us that the Brechner Center has noticed many problematic bills “popping up around the country, particularly this year.” 

He also noted that a new study he has conducted shows that pushback against excessive secrecy is key to ensuring greater transparency at both the state and federal level. That’s why FPF will continue to call out states that make anti-transparency moves, whether during Sunshine Week or any other week. 

"Chuck Grassley" by Gage Skidmore is licensed under CC BY-SA 2.0.

Sen. Chuck Grassley of Iowa could have helped pass the PRESS Act in 2022, but he declined to advance the bill for inclusion in must-pass legislation. It wasn’t because he didn’t like the bill, but out of professional courtesy to a Senate colleague.

Grassley’s reasons may have been commendable but the result is that journalists like Catherine Herridge still need to choose between keeping their promises to their sources or being held in contempt of court, and potentially even jailed.

Now the PRESS Act is back, and Grassley has the chance to make things right by supporting it. We wrote for The Gazette newspaper in Cedar Rapids, Iowa, that:

Iowa’s senior senator has long been a champion of First Amendment values. He’s been vocal about protecting whistleblowers from retaliation when they expose wrongdoing. Keeping federal agents' and prosecutors’ hands off reporters’ notebooks and phone records so that the Fourth Estate can do its job is consistent with everything Grassley stands for.

Read the full op-ed here.

On Monday, the justices of the Supreme Court, pictured above in 2022, considered just how far the government can go to influence decisions by media companies to moderate content or publish information.

This week’s much talked-about Supreme Court hearing about government pressure on social media content moderation could have huge implications for free expression online, but an overlooked exchange between one justice and a state solicitor general should be particularly worrying to journalists — or anyone who cares about press freedom.

In Murthy v. Missouri, the states of Missouri and Louisiana, along with five individual social media users, sued the Biden administration, claiming that it violated the First Amendment by allegedly coercing platforms into removing users’ speech about COVID-19 and election disinformation. The lower courts held in favor of the plaintiffs.

Most analyses of Monday’s oral argument agree, however, that the Supreme Court was skeptical of the plaintiffs’ argument that the Biden administration’s ability to communicate with the platforms in any manner should be sharply limited. At the same time, the justices seemed rightly concerned about government attempts to coerce platforms into removing users’ content — such as by threatening an antitrust action against a company that refused to comply with a removal request — which even the government’s lawyer conceded would be impermissible.

Justices’ national security concerns should concern journalists

But there was one area where at least some justices seemed more willing to permit the government to influence or even coerce publishers: protecting national security. Several justices pointed out that the government often tries to influence the press not to publish news stories that officials claim will harm national security.

That’s true. But just as true is that the press remains free to reject the officials’ requests — or even demands — not to publish. For instance, when The Washington Post published the Snowden leaks, it withheld some information — but not all — at the request of officials. If the intelligence agencies had their way, explained then-Executive Editor Marty Baron, the Post wouldn’t have published any of the Snowden documents at all.

That important limit seemed lost at some points during the court’s argument. In one particularly troubling exchange, Justice Ketanji Brown Jackson asked the lawyer for the states about whether the government could tell the platforms it must remove “classified information” posted by a user. The states’ lawyer — who was there to argue against the government’s power to demand content removals — swiftly agreed that content could be required to be removed.

That’s not right. There’s nothing about invoking the words “classified information” or “national security” that gives the government the power to forbid publication or require removal of already published information.

That was exactly the argument the Supreme Court rejected in the Pentagon Papers case, when it held that the First Amendment prohibits prior restraints — court orders censoring the publication of an article or documents — in almost all cases. As Justice Black explained, “The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.”

It would be incredibly dangerous for the Supreme Court to adopt an interpretation of the First Amendment in Murthy that gives the government greater leeway to coerce social media or any publisher into not publishing information on the basis of national security concerns.

Claims that the sky will fall if certain information is published rarely pan out. But that hasn’t stopped our government from invoking national security to try to stop or delay publication of information that reveals its wrongdoing. Other countries that actually have the power to censor speech online in the name of national security have abused it to prevent publication of information that’s embarrassing or exposes their own abuses.

If anything, the court should be concerned that the power imbalance already tilts too far in favor of the government when it comes to attempts to coerce publishers into withholding information on the basis of “national security concerns.”

The court has wisely barred officials from punishing journalists for publishing truthful information that they lawfully obtained, or from clawing back information, without adding in an exception for leaks the government claims would threaten national security. But in the Pentagon Papers case, several justices also suggested that the government may be able to punish the press for publishing national security secrets after the fact, and the government has never disavowed this power.

In fact, the government’s current position in the Julian Assange case is that it can prosecute publishers under the Espionage Act merely for publishing national defense information. The government has responded to concerns that Assange’s prosecution threatens press freedom by claiming the public could trust it to distinguish Assange from conventional journalists and refrain from prosecuting the latter.

We’ve never trusted the government to make that distinction — especially when half the administrations since Nixon’s have threatened to prosecute journalists. And our concerns are heightened by the revelation that at least one Supreme Court justice doesn’t see a distinction either. The threat of prosecution or censorship, whether spoken or unspoken, is already a powerfully coercive force when the government warns the press not to publish national security secrets. Jackson’s comments compound that threat.

When the government weighs in on private actors’ decisions about what to publish — whether it’s social media platforms or newspapers — it’s a delicate balance. The government should be able to share information that can inform publication decisions, but it shouldn’t be able to force a decision not to publish or to take down what’s already been published.

The Supreme Court seems on track to strike the right balance in Murthy. But if there’s one thing the court must not do, it’s create a special rule that gives the government more power to coerce publishers when it claims a national security threat.

“The Dallas Morning News dispenser” by Bonita la Banane is licensed under CC BY 2.0.

We’ve explained before that the PRESS Act — the federal shield bill that passed the House this year — is the most important First Amendment legislation in modern history. 

It’s currently pending in the Senate Judiciary Committee, which includes both senators representing Texas, John Cornyn and Ted Cruz.

Freedom of the Press Foundation (FPF) Advocacy Director Seth Stern joined First Amendment lawyer Gene Schaerr of Protect The 1st to write an op-ed for The Dallas Morning News about why Cornyn and Cruz should help get the PRESS Act across the finish line. The PRESS Act, Stern and Schaerr explain: 

should appeal to Cruz, who spoke out against CBS retaining [journalist Catherine] Herridge’s files, including her confidential source communications. Given that Cruz objects to a private employer like CBS potentially snooping on journalists, it seems like a no-brainer that he should object even more vehemently to federal agencies and judges doing so.

It should also be a no-brainer for Cornyn, who harshly (and rightly) criticized President Barack Obama’s Justice Department for obtaining reporters’ phone records. Now, he can help outlaw those same anti-press antics for good.

Read the full op-ed here.

San José Spotlight City Hall reporter Jana Kadah conducts a phone interview. The Spotlight was awarded $500,000 in attorneys fees in its public records lawsuit against the California city after a judge determined the records were wrongly withheld.

Public records and freedom of information laws are fundamental for government transparency. But when journalists fight for access to wrongfully withheld records at the state and local level, the public is paying the price, according to a new article published by our U.S. Press Freedom Tracker for Sunshine Week.

The Tracker’s senior reporter, Stephanie Sugars, found that over the past year alone, local governments have paid journalists more than $1.6 million in attorneys fees — all of which was financed by taxpayers — following public records lawsuits.

The bulk of these payments were made to newsrooms in California, Iowa, Massachusetts, and Nevada after journalists were denied access to records ranging from police misconduct investigations to mayoral communications.

Fewer than half of states have mandated fee-shifting, or the awarding of attorneys fees and costs to the prevailing party. Another 26 have optional fee-shifting or mandate it in circumstances when agencies act in bad faith or in violation of an administrative advisory.

After the Las Vegas Review-Journal received $620,000 in payments in February 2024, Ben Lipman, an attorney for the newspaper, said, “Reimbursement for attorneys’ fees is a vitally important part of the public records law, because without it, most people could not afford to take the government and all its lawyers to court.”

It is taxpayers, however, that are forced to foot the bill, while officials can remain unscathed, according to Ramona Giwargis, the co-founder and CEO of the nonprofit newsroom San José Spotlight. The Spotlight received $500,000 in November 2023 after a California county judge ruled that the former mayor used private emails and text messages for city business in order to shield the communications from disclosure.

“Even though they keep getting sued, it doesn’t stop or change anything. For the city, it’s just a blip on the radar,” Giwargis told the Tracker. “What does it take? If not legal action, then what remedies do we have to hold them accountable?”

To read more of the Tracker’s coverage of select, egregious records denials exposed by lawsuits against state agencies, use the #public records tag.

The government seized equipment from journalist Tim Burke’s home newsroom, pictured above, and indicted him under the Computer Fraud and Abuse Act.

The indictment of journalist Tim Burke raises disturbing questions about just how much the government will stretch a federal hacking law known as the Computer Fraud and Abuse Act to criminalize newsgathering.

Federal and local authorities have abused the CFAA and state-level computer hacking laws in the past, including to go after journalists.

As Freedom of the Press Foundation (FPF) Deputy Director of Advocacy Caitlin Vogus and ACLU Surveillance and Cybersecurity Counsel Jennifer Stisa Granick explain in a new op-ed for Ars Technica, the government now suggests with the Burke indictment that journalists violate the CFAA if they don’t ask for permission to use information they find publicly posted on the internet.

Vogus and Granick write:

Using a published demo password to get a list of URLs, which anyone could have used a software program to guess and access, isn’t that big of a deal. What was a big deal is that Burke’s research embarrassed Fox News. But that’s what journalists are supposed to do—uncover questionable practices of powerful entities.

Journalists need never ask corporations for permission to investigate or embarrass them, and the law shouldn’t encourage or force them to. Just because someone doesn’t like what a reporter does online doesn’t mean that it’s without authorization and that what he did is therefore a crime.

Read the full op-ed here.

You’ve got mail — and the government may have it, too. A spying program has allowed U.S. intelligence agencies to conduct hundreds of thousands of warrantless searches of Americans’ emails and other communications, including of journalists. ​​Man checking his email on a laptop by Rawpixel Ltd is licensed under CC BY 2.0.

Apparently, it’s not just canned food that stays good after its expiration date. Section 702 of the Foreign Intelligence Surveillance Act, the controversial U.S. spying program, soon may have its shelf life extended too, as the government tries to cling to its surveillance powers.

Section 702 is set to expire on April 19, 2024, unless Congress reauthorizes it. But last week, news broke that the Biden administration is seeking court approval to extend it for another year. A quirk in the law would allow the Foreign Intelligence Surveillance Court, or FISC, to issue a new certification allowing the program to continue to operate until April 2025, even if Congress doesn’t reauthorize it by the April 19 deadline.

At the same time, there are rumblings that Congress could include Section 702 reauthorization in one of the must-pass funding bills it's currently considering to keep the government open. More than 90 organizations, including Freedom of the Press Foundation (FPF), oppose that approach, which would cut off necessary debate on reforms to the law.

These procedural moves matter because they undermine attempts to reform Section 702, which civil rights and civil liberties advocates have long decried for allowing the FBI and other intelligence agencies to evade the Fourth Amendment and spy on Americans. Extending certification for another year or reauthorizing Section 702 in must-pass funding bills would short-circuit the current push in Congress to reauthorize the surveillance law only if there are significant changes that would rein in these abuses.

Our privacy is too important to leave Section 702 to a legal loophole or perfunctory rubber stamp in Congress. Instead, Congress should use the two good FISA reform bills it has on the table — the Government Surveillance Reform Act and the Protect Liberty and End Warrantless Surveillance Act — to enact lasting reform that will protect Americans from warrantless government spying.

Backdoor searches enable warrantless spying

Section 702 is supposed to target the electronic communications of foreigners for intelligence gathering, not that of Americans. But inevitably, it collects those of U.S. persons as well. Once that data is collected, the FBI and other intelligence agencies can search it, accessing our phone calls, emails, and text messages, all without a warrant.

They’re known as “backdoor searches,” and they’re pervasive. In 2022 alone, the FBI conducted 200,000. Government assessments have revealed specific backdoor searches involving U.S. persons conducted by FBI agents, including searches using identifiers of journalists and political commentators.

FPF and other members of the FISA Reform Coalition want Congress to put a stop to this warrantless surveillance of Americans. A bipartisan group of senators and representatives agree. The Government Surveillance Reform Act in the Senate and the Protect Liberty and End Warrantless Surveillance Act in the House would end backdoor searches and make other important reforms to FISA.

FISA reform deserves full attention of Congress

When he was a senator, Joe Biden also supported Section 702 reform. But as president, he has changed his tune, defending the law and seeking its reauthorization without significant changes. Now, his administration is trying to sneak through another year of surveillance without congressional approval using the FISC certification process, as Elizabeth Goitein of the Brennan Center for Justice has pointed out.

But even if the Biden administration has legitimate concerns that the law’s April 19 expiration creates a lapse in its surveillance authority, there’s no need to seek recertification from the FISC for a full year. A shorter extension would still prevent any gap in Section 702 authority while giving Congress the chance to enact the reforms it's been actively debating.

But perhaps the administration is counting on recertification to take the wind out of the sails of the reform movement underway in Congress. Without the looming deadline of FISA’s lapse, Congress may be tempted to kick the can down the road and push off the difficult job of fixing FISA to the next legislative session, where members may be less reform-minded.

That would be a mistake. So, too, would be taking the opposite approach and rushing Section 702 reauthorization by shoving it into a must-pass funding bill, without the chance for any debate or amendments intended to reform the law. Congress already extended Section 702 once by including it in last year’s National Defense Authorization Act. Doing so again would be capitulating to members of Congress who want to stymie any real reforms to FISA.

For too long, the government has abused Section 702 to spy on Americans, including journalists. It’s time for Congress to give the law its full and undivided attention and to pass real reforms that will protect our fundamental civil liberties and civil rights.

San Diego Central Jail

When sources aren’t allowed to talk, journalists turn to public records. And when journalists can’t obtain public records, they look for insiders. But when all are unavailable, it becomes exceedingly difficult for journalists to report the news. 

That’s the situation often encountered by journalists looking to investigate U.S. jails and prisons and the challenges facing America’s over 2 million incarcerated people.

If journalists try to talk to prison officials, they’re routed to public information officers, who give them little besides official PR. If they try to request public documents, the government stalls indefinitely with bogus claims that the documents are exempted from open records laws. And good luck talking to incarcerated people themselves. In some states, it’s outright illegal for them to speak to the press. In others, they face “relentless retaliation” for attempting to bring publicity to prison conditions. 

Freedom of the Press Foundation (FPF) recently joined a legal brief that seeks to address the records problem. A group of news outlets successfully sought access to sealed records about deaths and serious injuries at jails in San Diego County, California, from the Sheriff’s Department Critical Incident Review Board, or CIRB. 

The county appealed in hopes of maintaining secrecy, claiming that transparency would undermine the ability of officials to communicate candidly.

But the brief responded that “CIRB investigations and related documents have been shielded from the public for over twenty years. … Given the increasing number of deaths, that secrecy hardly seems to be facilitating any meaningful change.”  

That’s exactly right. Whenever the government claims that a lack of transparency somehow benefits the public, courts should be extremely skeptical and demand proof, not speculation. Virtually every time — whether in cases involving jails and prisons or national defense — the real reason for secrecy is that officials don’t want to be embarrassed.

The same applies to restrictions on officials’ or incarcerated people’s communications with the press. The former restriction violates the First Amendment rights of government employees, in addition to depriving the public of important information. To justify the latter restriction, officials often say that violent crime victims shouldn’t have to hear from their assailants in the media — a constitutionally inadequate excuse even putting aside that, for some reason, those policies are rarely limited to violent criminals. 

Recent lawsuits in Pennsylvania and South Carolina challenge restrictions on media access to prison employees and incarcerated people, respectively. It’ll likely take many more lawsuits and much more advocacy, but hopefully, sometime soon, Americans will be able to see for themselves the inner workings of the world’s largest system of mass incarceration. 

You can read the brief in the San Diego case here or below.

Journalist Reed Dunlea was arrested while recording for his podcast, Scene Report, at a pro-Palestinian protest in New York City on Feb. 10, 2024. We sent a letter with the Committee to Protect Journalists urging authorities to drop the baseless charges against him. Stephanie Keith

Earlier this month, New York Police Department officers arrested journalist Reed Dunlea while he attempted to cover a pro-Palestenian protest for his podcast, “Scene Report.” Ultimately, Dunlea was only charged with resisting arrest, seemingly confirming that authorities could find nothing criminal about the newsgathering that led to his arrest in the first place.

Freedom of the Press Foundation (FPF) and the Committee to Protect Journalists sent a letter to Brooklyn District Attorney Eric Gonzalez raising alarm about the arrest — during which officers violently tackled Dunlea, breaking his equipment.

“Detaining and charging a reporter in this manner is a direct assault on journalists’ First Amendment rights to gather the news,” the letter explains, adding that “arresting reporters is a crude form of censorship: it stops journalists from documenting current events, and protracted legal proceedings to dismiss baseless charges create financial and time pressures for reporters.”

As the letter notes, the NYPD recently agreed as part of a settlement of a lawsuit brought by five photojournalists that it would reform its treatment of journalists covering protests and ensure they’re not unnecessarily arrested or harassed for doing their jobs.

Although the settlement had not yet taken legal effect when Dunlea was arrested due to obstruction by a police union, Dunlea’s arrest certainly violates the spirit of the NYPD’s commitments.

We’ve previously written about the NYPD’s history of abysmal treatment of journalists covering protests. The number of incidents may have peaked during the Black Lives Matter protests of 2020, but that’s only because of the increase in civil unrest then, not because the department has changed its practices since.

Just over a month before Dunlea’s arrest, for instance, NYPD officers baselessly arrested another journalist attempting to cover a pro-Palestine protest – Roni Jacobson of the New York Daily News. Last year, they arrested prominent photojournalist Stephanie Keith while covering a vigil for Jordan Neely, who was killed on a New York subway.

Keith did nothing wrong, yet prosecutors only “deferred” the changes against her, rather than dismissing them outright — reserving the right to proceed with the case if Keith were arrested again during the six months that followed. As Keith told the U.S. Press Freedom Tracker, “I shouldn’t have to worry for the next six months if I’m going to be arrested again when I shouldn’t have been arrested in the first place.”

The letter to Gonzalez demands an outright dismissal of the charges against Dunlea because deferred prosecutions are themselves a threat to press freedom.

You can read the full letter objecting to Dunlea’s arrest below.

Editor’s note: The original version of the letter discussed in this article was erroneously addressed to Manhattan District Attorney Alvin Bragg rather than Brooklyn District Attorney Eric Gonzalez. The letter and the references to Bragg in the original article have been corrected.

The Supreme Court recently held oral arguments in two cases that could reshape the internet — and impact the press. File:Panorama of United States Supreme Court Building at Dusk.jpg by Joe Ravi is licensed under CC BY-SA 3.0.

Should the online platform Substack be allowed to ban Nazis? Not should it ban Nazis. But should it be legally allowed to ban Nazis?

I’m asking on behalf of nine justices of the Supreme Court, not to mention the billions of people who use the internet. On Monday, the court heard oral arguments in two cases, NetChoice v. Paxton and Moody v. NetChoice, that could dramatically reshape online speech by determining whether the First Amendment protects the content moderation decisions of social media platforms.

At issue in the cases are two state laws — one from Florida and one from Texas — that constrain online content moderation decisions. Roughly speaking, the Florida law prohibits social media companies from permanently banning politicians and “journalistic enterprises,” while the Texas law prohibits them from banning users on the basis of viewpoint.

That means, for example, that the Florida law would prohibit a platform from permanently banning a politician running for office in the state as a literal Nazi. The Texas law would bar a platform from banning pro-Nazi speech as long as it allowed anti-Nazi speech.

In addition to impacting online speech, the NetChoice cases could reshape First Amendment law in ways that matter to the press. Based on Monday’s argument, journalists should watch the court’s decisions for two things: First, to see if the court limits the ability to challenge laws that violate First Amendment rights as facially invalid, that is, unconstitutional in all circumstances; and second, how it treats a landmark press freedom decision, Miami Herald v. Tornillo.

First Amendment faceoff

Several justices unexpectedly raised a legal issue during Monday’s arguments — about the plaintiff’s “facial” challenge to the Florida law — that could have implications for the press.

In a facial challenge, a plaintiff argues that a law can never be applied in a way that is constitutional. But the justices asked whether the Florida law might have some applications that are actually constitutional. If so, the justices asked, should the court reject the plaintiff’s claim and require it to bring an “as-applied” challenge, arguing that the law is unconstitutional in more specific ways?

The problem with that is that it’s easy to think of potential constitutional applications of broad and ambiguous laws, precisely because no one understands exactly what they mean.

A decision rewarding bad statutory drafting by allowing otherwise unconstitutional laws to survive based on hypothetical scenarios could, as the lawyer for the platforms argued, be “the worst First Amendment case in this Court's history.” It would allow legislatures to put one constitutional provision in an otherwise totally unconstitutional law and avoid having the law struck down wholesale.

For example, an Oklahoma lawmaker recently proposed a totally unconstitutional law that would require journalists to be licensed and subjected to criminal background tests and drug tests. There’s nothing constitutional about this bill. But a more shrewd lawmaker in a state intent on harming the press could cause mischief by writing ambiguous and possibly constitutional provisions into an otherwise completely unconstitutional bill, just to make it harder for courts to strike it down. Imagine, for instance, that the Oklahoma law required drug testing not just for reporters and editors, but also for delivery truck drivers.

It’s not clear if the court plans to go down this road in its decisions in NetChoice. But based on the questions at oral argument, journalists should at least be concerned that the court may be thinking about creating barriers to First Amendment facial challenges that could impact cases involving the press in the future.

Press precedent holds up

In contrast, journalists can be reassured by the court’s treatment during Monday’s argument of Miami Herald v. Tornillo. In Tornillo, the court held that the First Amendment protects newspapers’ choices about what to publish or not publish, also known as the exercise of editorial discretion or judgment. In the NetChoice cases, the social media platforms argue that their content moderation decisions are the exercise of editorial discretion and therefore protected by the First Amendment.

It may seem odd for the platforms to rely on a press freedom decision to make their case before a Supreme Court that talks about the news media in increasingly hostile terms. But thankfully, most discussion of Tornillo during Monday’s oral argument was positive. Justices Kavanaugh and Barrett, in particular, returned again and again to the First Amendment’s protections for the editorial discretion exercised by news outlets. Even justices that seemed hostile to the social media companies, like Justice Alito, seemed to accept that the First Amendment protects newspapers’ editorial judgments.

However, the devil may be in the details of whatever opinion the court ultimately writes. Even if the court applies Tornillo to content moderation, there’s a risk that it could weaken the First Amendment protection for editorial discretion by saying that the government has to meet only a low or middling burden to overcome it. There’s no specific indication from the oral argument that the court plans to do that, but journalists should watch out for any tinkering with Tornillo in the court’s decisions here.

Whatever the outcome of the NetChoice cases, states will almost certainly persist in trying to punish social media companies for hosting content that lawmakers dislike. Journalists should be wary. While social media is the political punching bag for now, there are plenty of politicians who want to go after the press using similar legal theories and complaints. If First Amendment precedent falls in social media cases, it will make it easier for lawmakers to target journalists next.

Journalist Tim Burke has been indicted under the Computer Fraud and Abuse Act for his online newsgathering. Photo courtesy of Tim Burke.

Federal prosecutors in Florida have obtained a disturbing indictment against well-known journalist Tim Burke. The indictment could have significant implications for press freedom, not only by putting digital journalists at risk of prosecution but by allowing the government to permanently seize a journalist’s computers.

While the indictment is short on facts, it reportedly arises, in part, from Burke’s dissemination of outtakes from a 2022 Tucker Carlson interview with Ye, formerly Kanye West, where Ye made antisemitic remarks that Fox News chose not to air. Ye’s antisemitism has been global news ever since. The indictment, which also alludes to sports-related content Burke allegedly intercepted, charges Burke with violating the Computer Fraud and Abuse Act and with intentionally disclosing illegally intercepted communications.

Threats to digital journalism

Freedom of the Press Foundation (FPF) Advocacy Director Seth Stern said, “The Computer Fraud and Abuse Act is a vague, ambiguous law, and the Supreme Court and the DOJ itself have cautioned prosecutors against testing its outer limits. Prosecutors should not be experimenting with the CFAA as a means of criminalizing journalists finding information online that embarrasses public figures.”

Lawyers for Burke have said that he got the Tucker Carlson outtakes from a livestreaming site where Fox uploaded unencrypted footage of the entire interview with Ye to a public URL. They’ve contended that Burke obtained login credentials for an unrestricted “demo account” for the site from a source, who found them publicly posted online. He was then able to locate a URL hosting the interview that can be accessed by anyone, without credentials.

The CFAA prohibits unauthorized access to “protected computers” (which has been defined to include websites) and is commonly associated with criminal hacking.

However, the indictment against Burke does not accuse him and his source of hacking into any servers, or deceiving anyone, to get the outtakes or any of the other content he allegedly intercepted. Nowhere does the indictment allege that either the footage or the login credentials were not publicly available. Instead, it accuses Burke and the source of “using the internet to search protected computers” and “scour[ing] the protected computers for electronic items and information they deemed desirable.”

The indictment threatens journalists’ ability to gather information online by implying that they have a previously unrecognized duty to ask for express permission to use information they find posted on the internet. It does so by accusing Burke and his source of "steal[ing]" information they found online merely by using it “without securing any authorization or permission.”

“An investigative journalist’s job is to find information that powerful people would prefer to be kept secret,” said FPF Deputy Director of Advocacy Caitlin Vogus. “It’s a safe bet that if journalists need to ask permission to publish information that casts public figures in a negative light, the answer will often be ‘no.’ Journalists should be encouraged to use the internet to find newsworthy information — not prosecuted for doing so.”

Indictment neglects to mention Burke is a journalist

Also conspicuously absent from the indictment is any mention that Burke is a journalist, raising concerns about whether the DOJ is following its own guidelines and federal law regarding investigations and prosecutions of journalists.

After FBI agents raided Burke’s home newsroom last May, seizing his equipment and communications, 50 organizations wrote a letter to the DOJ questioning whether the raid violated the First Amendment and laws protecting journalists. The letter also objected to prosecutors’ arguments, in pre-indictment proceedings, that Burke is not a journalist because, among other things, he is not currently employed by a news organization.

Stern explained, “It’s extremely dangerous for the government to appoint itself the judge of who is and isn’t a journalist, especially in a world where journalism is rapidly evolving. You don’t have to be employed by a news outlet or write under your own byline to engage in journalism. But this isn’t even a close case — Burke is a career journalist by any definition.”

“It’s disturbing that the indictment makes no mention of the fact that Burke’s reason for accessing the outtakes was to share newsworthy information with the public, as he has been doing his entire career,” Stern added. “The DOJ issued a new guidance supposedly to protect journalists and then the very next day indicted a journalist without even acknowledging it.”

Government seeks prior restraint through forfeiture of Burke’s computers

Finally and shockingly, the indictment seeks to require Burke to forfeit a website domain and computer equipment if convicted — essentially the contents of his newsroom. The forfeiture demand would not be limited to content at issue in the indictment, which would already be unprecedented, but would extend to any unpublished material, notes, and communications stored on those computers, regardless of whether they relate to any alleged crime.

“The government has already prevented Burke from reporting for more than nine months by raiding his newsroom and seizing his equipment,” said Stern. “Now it wants to permanently silence his reporting by keeping even past newsgathering materials stored on his devices that have nothing to do with the allegations against him. Seizing newsgathering materials from a journalist is, in effect, a prior restraint that stops the journalist from publishing news. That’s why it almost always violates the Privacy Protection Act and the DOJ’s own policies.”

FPF hosted a video interview with Burke in December about the raid of his newsroom. He was joined by Eric Meyer, the publisher of the Marion County Record, which police raided in August. During the interview, Burke 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.”

The same could be asked about the DOJ, which is exercising its prosecutorial discretion to employ the CFAA, a statute the DOJ admits is subject to abuse, not to go after hackers and fraudsters but after a journalist who shared important news with the American public.

Burke has set up a fundraising website to raise money to support his defense.