Freedom of the Press

A recent DOJ investigation of the Minneapolis Police Department revealed a potentially significant change in the department's view of police orders for journalists to disperse from protests.

The Department of Justice’s investigation of the Minneapolis Police Department found so many abhorrent civil rights abuses that its discussion of press freedom violations understandably reads as an afterthought. But buried on page 52 of the DOJ’s recent report is a noteworthy and welcome reversal of its recent position on the rights of journalists covering protests.

Here’s the key language:

“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.” (Emphasis added)

That’s the exact opposite of the Justice Department’s argument in a 2020 case arising from protests in Portland, Oregon. Back then, DOJ lawyers opposed a judge’s ruling that police could not disperse journalists covering the demonstrations unless they could show that doing so was absolutely necessary and there was no other option. The DOJ claimed that distinguishing journalists from protesters is too much to ask of police (apparently letting everyone — journalist or not — lawfully exercise their First Amendment rights was not an option). The First Amendment, the DOJ said then, does not exempt journalists from generally applicable dispersal orders, even when such orders make reporting important news impossible.

Fortunately, an appellate court disagreed and upheld journalists’ right to cover protests and their aftermath. The court explained that “excluding the media from public fora can have particularly deleterious effects on the public interest, given journalists’ role as ‘surrogates for the public.’” Freedom of the Press Foundation (FPF) joined a brief led by the Reporters Committee for Freedom of the Press defending journalists’ rights in the case.

But despite the loss in the appellate court, the DOJ, as far as we know, never rescinded its anti-press position — until now.

That’s welcome news, especially given the troubling trend of increased aggression by police against journalists covering protests, as detailed by a recent report from the Knight First Amendment Institute, citing data from FPF’s U.S. Press Freedom Tracker.

It could be particularly helpful as well for North Carolina journalists Veronica Coit and Matilda Bliss, who are appealing a conviction for trespassing because they stayed at a park past closing time to document police evicting a homeless encampment. The case against them is especially weak because there was no chaotic large-scale protest that police claimed a need to disperse, nor any credible argument that police couldn’t tell journalists from others (instead, bodycam footage shows they knowingly targeted the journalists).

The report also included condemnations of MPD assaults of journalists, and affirmations of basic First Amendment rights like the right to record police, which may seem obvious but would've been unlikely to appear in a DOJ publication a short time ago.

Of course, the DOJ’s position can and likely will change in future presidential administrations, so legislative and judicial action remains necessary to combat the nationwide police crackdown on protest coverage. And the DOJ and Biden administration are no friends of press freedom as long as they continue prosecuting Julian Assange. But, along with last year’s DOJ policy against compelling journalists to disclose their sources, the language from the Minneapolis report signifies promising trends in the department’s attitudes towards journalists. Now it’s time to make sure the DOJ sticks to its word.

NYPD officers respond to a protest.

Last month, NYPD officers arrested veteran photojournalist Stephanie Keith while she attempted to document a candlelight vigil following the killing of Jordan Neely on a subway. After the arrest, Chief of Patrol John Chell claimed Keith had obstructed three arrests during the vigil. But video of Keith’s arrest instead shows Chell grabbing and pushing Keith and screaming to “lock her up” after she briefly stepped off the sidewalk to get a shot.

Police attempts to frame a career journalist like Keith as some rowdy protester looking for trouble are downright ludicrous (although the First Amendment protects rowdy protesters, too). Keith is a respected professional. She was part of The New York Times team nominated for a 2023 Pulitzer Prize for breaking news coverage.

But it’s far from the first time that police have claimed obstruction or aggression by journalists they arrest only for video to show nothing of the sort. Why the disconnect? Well, it seems that many law enforcement officials view journalism itself as obstructive. The NYPD is no exception.

In fact, NYPD officers often go far beyond just arresting journalists. They waste taxpayer funds on petulant abuses of power — not to mention the litigation that often follows. In 2021, for example, officers assaulted photojournalist Gabe Quinones with a baton while he attempted to cover demonstrations at Washington Square Park. After he filed a complaint, officers came to his home to arrest him for grand larceny. They claimed he tried to steal the baton he was beaten with despite video of the assailant officer lashing him across the back while he ran away.

Predictably, prosecutors dropped charges. Officials don’t file these kinds of cases to win but to intimidate. They have no interest in putting their non-existent evidence before a jury.

The prior year, NYPD officers attacked another journalist, Armin Rosen of Tablet Magazine, who was covering a protest following the murder of George Floyd. The officers apparently chose to assault first and ask questions later after seeing him put something in his backpack. It turned out to be a notebook he was trying to protect from the rain. Rather than apologize, they stole his bicycle. Seriously. They left him with his bike helmet, which said “PRESS” in large letters.

According to Freedom of the Press Foundation’s U.S. Press Freedom Tracker, the beating Rosen endured was just one of 30 known arrests and assaults of journalists by the NYPD at Black Lives Matter demonstrations in 2020 (not to mention similar incidents a few months later at election-related demonstrations). Days before assaulting Rosen, police slammed a photojournalist’s head into the ground for no apparent reason while a crowd pleaded for them to let the “old lady” go. She said her camera strap almost choked her during the assault.

Officials back then cited the chaos of the times as their excuse. Police, they said, thought the people they senselessly attacked for exercising their First Amendment rights were not journalists but mere protesters, who they apparently (and appallingly) regard as fair game.

But the George Floyd protests are over and NYPD’s anti-press antics continue. In fact, journalists who got on the department’s bad side in 2020 claim officers are still retaliating against them.

Another common excuse is that journalists could avoid nightsticks and jail cells by displaying city-issued press credentials — as though the mayor’s office, or any government body, has the power to determine who qualifies for First Amendment rights. Requiring journalists to register with the government — what could go wrong? The reality is that many journalists intentionally avoid displaying press credentials for fear of being targeted by police.

To be clear, cops’ hostility to the press is far from just a New York problem. Officials in Oklahoma were recently caught on tape fantasizing about murdering reporters at a government meeting. The sheriff then threatened to prosecute the journalists for recording the conversation. A jury in North Carolina this month convicted two journalists for violating curfew while covering a homeless encampment sweep cops chose to conduct after hours at a public park. And the DOJ highlighted press freedom violations in its recent report on its investigation of the Minneapolis Police Department.

But New York is the media capital of the world, and likes to regard itself as more enlightened than supposed flyover states when it comes to civil liberties like press freedom. Sadly there’s about as much evidence that’s actually the case as there is of Keith’s alleged obstruction.

A coalition of press rights and civil liberties groups have demanded prosecutors drop charges against Keith. They should, and then Keith should sue (as should other journalists victimized by the NYPD). But even then, it’s the taxpayers that foot the bill, which is why officials seem content with paying tens of millions to settle police misconduct cases annually. Change will only come if New Yorkers — especially journalists — demand it, loudly and repeatedly.

Freedom of the Press Foundation Executive Director Trevor Timm took this picture of Daniel Ellsberg speaking with Edward Snowden for the first time in September, 2013.

When our co-founder and legendary Pentagon Papers whistleblower Daniel Ellsberg passed away last week we wrote that “his long-term legacy may lie with the countless whistleblowers whom he inspired to follow in his footsteps.” But efforts are already underway to lionize him at the expense of 21st century whistleblowers.

Ellsberg staunchly rejected efforts to manufacture distance between his actions in 1971 and theirs decades later. He welcomed Edward Snowden to our board of directors and worked closely with him for years. He retained backup copies of Chelsea Manning’s disclosures to WikiLeaks and regularly called her “my hero.” He called Daniel Hale in prison every Sunday, even when terminally ill.

But, within hours of news of his death, commentators revived tired talking points framing Ellsberg as the lone and inimitable “good” whistleblower, while blatantly ignoring Ellsberg’s own thoughts on the matter. Here’s what David Brooks had to say on PBS NewsHour:

"I thought Edward Snowden was terrible. But Daniel Ellsberg shows that you can do it right … He tried to go up the normal chain of command to show documents to senators and other things. And so it was — he went through all the hoops you should go through to prove that it's not just you being an egomaniac; it's you with a legitimate cause … you could at least say, well, he, A. went through all the hoops, B. did it with the full expectation he'd spend the rest of his life in jail. And so that, to me, is doing it the right way, a thing that probably should almost never be done, except in extreme circumstances, which he was in."

The subtext: There can never be another Daniel Ellsberg so don’t bother trying.

It’s ironic that Brooks, in calling Snowden an egomaniac, argues he should’ve cared more about “proving” he wasn’t one. Could it be that whistleblowers are less concerned with how they’re perceived than with exposing government crimes as quickly as possible? It’s commentators, not whistleblowers, who shape the narrative around personalities and moral judgments rather than the content of leaked documents.

Even more offensive is Brooks’ absurd attempt to whitewash Ellsberg — a man who was reportedly arrested 90 times for civil disobedience — as some establishment-approved adherent to official protocols. This is how Ellsberg, in one of his final interviews, responded to the suggestion that modern whistleblowers should jump through “all the hoops” before going public:

"Here’s a very good piece of practical advice, which is don’t go through channels. Don’t go to the Whistleblower Protection Act. Don’t go to the inspector general as Tom Drake did, for example. That only serves to identify you as a troublemaker and someone who’s not with the system, somebody who whines about the fact that we’re killing people."

And Ellsberg practiced what he preached — he eschewed official channels when, at age 90, he leaked additional classified documents in an intentional effort to be prosecuted under the Espionage Act yet again so he could challenge its constitutionality.

Brooks was accompanied on NewsHour by Jonathan Capehart, who added the following nonsense:

"A lot of people were comparing the two when Snowden leaked all of those documents, saying he's the modern-day Ellsberg. And I wrote a column then, 10 years ago this week, that said, no, he's not, because while they both leaked documents, Daniel Ellsberg did something Edward Snowden didn't do. He stayed in this country, he turned himself in, and he allowed himself to be held accountable … that's why I say someone like Daniel Ellsberg should be considered a hero."

Capehart must know, but didn’t mention, that Ellsberg responded to his Washington Post column and others like it with an op-ed of his own, in the same newspaper, titled “Snowden made the right call when he fled the U.S.”

Ellsberg wrote:

"Snowden’s contribution to the noble cause of restoring the First, Fourth and Fifth amendments to the Constitution is in his documents. It depends in no way on his reputation or estimates of his character or motives — still less, on his presence in a courtroom arguing the current charges, or his living the rest of his life in prison."

Ellsberg’s reason for sticking around had nothing to do with any moral obligation to face an unwinnable sham trial where his intentions and the public good would’ve been legally irrelevant. Brooks and Capehart disingenuously ignore that whistleblowers aren’t entitled to “prove” their “legitimate cause” under the Espionage Act. The mere fact they “willfully retained” defense documents opens and shuts the case, no matter how much illegality the documents reveal.

Ellsberg stayed to publicize the Pentagon Papers and knew he could because he would be out on bail prior to his trial. Whistleblowers these days don’t have that option because Espionage Act defendants (at least, those who aren’t former presidents) await trial in jail cells, silenced.

Brooks and Capehart don’t have to like how Snowden and others went about exposing government crimes just because Ellsberg did. We don’t think whistleblowers need to volunteer for life in prison to be held “accountable” for performing a public service. Agree to disagree.

But if they believe history’s greatest whistleblower was wrong about whistleblowing etiquette, they should just say so. And if they seriously contend that Espionage Act trials foster accountability, they should cut the platitudes and explain how.

Instead, they distort Ellsberg’s legacy, and co-opt his moral authority, to prop up old takes they know he abhorred and would repudiate if he were still here. Where’s the accountability in that?

Sen. Durbin (right) is one of the co-sponsors of the PRESS Act in the Senate, along with Sens. Lee and Wyden. Rep. Kiley (left) and Rep. Raskin will co-sponsor the PRESS Act in the House.

What do the leak of a CIA agent’s name, a murder in Houston, and steroids in baseball all have in common? All were news stories involving confidential sources — and all resulted in reporters being sentenced to jail for refusing to reveal their identities.

Journalists shouldn’t have to choose between protecting their confidential sources or going to prison. Thankfully, if Congress passes the newly reintroduced federal reporter’s shield law known as the PRESS Act, they won’t have to, at least in federal cases.

That’s good news for both the press and, more importantly, the public’s right to know. The PRESS Act would protect newsgathering and the free flow of information to the American people, since journalists often rely on confidential sources — who may fear being jailed, fired, or retaliated against for speaking to the press — to report vital news stories in the national interest.

As we’ve explained before, the PRESS Act is one of modern times’ most important pieces of federal legislation protecting First Amendment rights. It’s a bipartisan bill that last year saw strong support both from major media outlets and civil society organizations. Last Congress, the PRESS Act was passed unanimously by the House and came within a hair’s-breadth of becoming law before it was stopped by a nonsensical objection from a single senator.

The newly reintroduced bill has bipartisan cosponsors in the Senate (Sens. Durbin, Lee, and Wyden) and will have bipartisan cosponsors in the House (Reps. Raskin and Kiley). These members should be applauded for their work to protect journalists at a time when egregious threats to their safety and legal protections persist.

The PRESS Act would mean journalists can’t be threatened with crippling fines or jail time unless they cough up the names of confidential sources or other information about their newsgathering. It would also stop the federal government from spying on journalists through their phones, email providers, and other online services. This anti-surveillance provision is especially important in the digital age, when reporters often must use email, cloud, and messaging services, as well as social media, to communicate with sources or store their work.

The PRESS Act covers both professional and citizen journalists. It applies regardless of the perceived political leanings of a news outlet or reporter. In other words, it would shield a blogger or a Pulitzer Prize winner, a reporter for Fox News or Media Matters for America. It would stop administrations — either Democrat or Republican — from spying on journalists whose reporting angers or embarrasses them.

At the same time, the PRESS Act also has some limited exceptions that apply when necessary to prevent terrorism or imminent violence. These commonsense limits let us both protect reporters in the vast majority of cases and allow the government to compel disclosures in exceptional (and, at least so far in U.S. history, entirely hypothetical) instances where source confidentiality could somehow lead to terrorism or violence.

Forty-nine states and the District of Columbia have shield laws or equivalents recognized by courts. But without a federal shield law, journalists still risk being jailed or punished for refusing to reveal sources or their newsgathering material in federal courts, congressional inquiries, and administrative proceedings. And although guidelines issued by the Department of Justice last year limit federal subpoenas to reporters, those guidelines could be rolled back or even ignored by future presidential administrations. (For example, it’s a safe bet that a future President Trump would not be a fan.)

We can’t afford to leave reporters’ ability to protect their sources up to the whims of a future administration. We need a law that protects the journalists and confidential sources that Americans rely on to expose wrongdoing by government, private companies, and powerful individuals. The PRESS Act is the strongest shield law Congress has ever proposed. Now it’s time to pass it.

We are heartbroken to learn that our dear friend Daniel Ellsberg, world-renowned whistleblower and Freedom of the Press Foundation co-founder, has passed away at the age of 92.

Daniel Ellsberg stands as one of the most influential figures in American history, leaving an indelible impact on the last century. His courageous decision to leak the Pentagon Papers to The New York Times in 1971 led to the most important Supreme Court case for press freedom in the modern era, sparked a series of events that culminated in the resignation of President Richard Nixon, and ultimately accelerated the end of the Vietnam War.

He became a hero to millions for his unwavering anti-war activism and decades-long fight to abolish nuclear weapons, but his long-term legacy may lie with the countless whistleblowers whom he inspired to follow in his footsteps.

As the first source of a journalist to be prosecuted under the often-abused Espionage Act, Ellsberg spent the second half of his life passionately defending other whistleblowers who were less fortunate than him. It’s only because of what he would refer to as “a series of miracles” (in reality, severe government misconduct), that he did not spend decades in prison himself. So, he made it part of his mission to draw attention to the unjust and unconstitutional law, and help the other patriotic whistleblowers who were irreparably harmed by it.

It’s why we’ve always considered whistleblower rights a core press freedom issue. How much of the journalism we know and love would not be possible without the countless Daniel Ellsbergs we never hear about?

It’s also true that Freedom of the Press Foundation would not exist without him, as he was the galvanizing force behind our organization’s founding in 2012. Since then, he sat on our board for more than 10 years and has been our constant inspiration. We only hope we can live up to his righteous example.

Our organization plans to honor our dear friend by carrying the torch for two of the causes he championed for much of his life: reform of the U.S. government’s secrecy system and unconstitutional abuse of the Espionage Act. Recently we announced the creation of the Daniel Ellsberg Chair on Government Secrecy, which aims to tackle those two issues with the same passion, rigor, eloquence, and intellectual honesty that he embodied.

We’ll have more news on that front soon. In the meantime, our thoughts are with his wonderful wife Patricia, his children Robert, Mary, and Michael, and the countless people whose lives he touched, both in person and from afar.

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

Press freedom and civil liberties groups nationwide expressed their disappointment at the conviction by a jury of Asheville Blade journalists Matilda Bliss and Veronica Coit for violating a park curfew by recording police evicting a homeless encampment on Christmas night of 2021.

“We don’t have secret police in the United States,” said Seth Stern, Director of Advocacy at Freedom of the Press Foundation (FPF). “Officers are not entitled to operate without press and public scrutiny just because it’s dark out. The Constitution requires that journalists be given sufficient access to public land to report the news, no matter the time.”

The judge reportedly instructed the jury not to consider the constitutionality of the charges against Coit and Bliss. He orally denied their motion to dismiss on First Amendment grounds (a written ruling will follow). He was wrong, as the Department of Justice made clear the same day as the verdict in its report on its investigation of the Minneapolis Police Department: “Blanket enforcement of dispersal orders and curfews against press violates [the First Amendment] because they foreclose the press from reporting.”

“We are gravely concerned by the jury’s guilty verdict in the trial of Asheville Blade reporters Matilda Bliss and Veronica Coit,” said Katherine Jacobsen, U.S. and Canada program Coordinator for the Committee to Protect Journalists. “The two journalists should never have been on trial. They were performing a public service and recording police activity. Their conviction is a blatant violation of their First Amendment rights, and their convictions set an unsettling precedent for journalists in Asheville and the nation.”

Danielle Coffey, News/Media Alliance President & CEO, stated, “It is of utmost importance that we protect journalists against being prosecuted for simply doing their jobs. Anything less jeopardizes the vital reporting on matters of public concern.”

Muneeba Talukder, Staff Attorney at the ACLU of North Carolina, added: “The conviction of Asheville Blade journalists Matilda Bliss and Veronica Coit for trespassing highlights a concerning trend that undermines press freedom and civil liberties. It is disheartening to witness the government's attempt to suppress journalists' ability to report the news and hold those in power accountable. The Constitution guarantees journalists sufficient access to public spaces to fulfill their crucial role in society, regardless of the time or circumstances. We must recognize that by punishing journalists for simply doing their jobs, we restrict people's access to information therefore hindering their ability to stay informed about important matters.”

Coit and Bliss have already filed a notice of appeal. The appellate court will review, among other evidence, body camera footage showing that police arrested the journalists so that they would not be able to record the evictions.

“Coit and Bliss had a constitutionally protected right to cover a police action,” said Clayton Weimers, Executive Director of RSF’s US Bureau. “In fact, it is their professional obligation as journalists to perform this vital watchdog function in order to hold government actors accountable. This decision is a serious blow to press freedom in North Carolina.”

“Even if Coit and Bliss eventually win, the people of Asheville and surrounding Buncombe County have already lost,” Stern said. “They gain absolutely nothing from their government weaponizing curfew laws to punish journalists for doing their jobs. The journalists have never been accused of harming anyone and should have been commended, not tried on the taxpayers’ dime, for spending their Christmas attempting to inform the public.”

Almost 50 organizations, led by FPF and CPJ, previously sent a letter to Asheville authorities urging them to drop the case.

The FBI and other intelligence agencies use Section 702 for warrantless backdoor searches on data of Americans, including journalists.

Fast on the heels of revelations that the FBI misused a controversial surveillance law that gives it access to huge amounts of Americans’ data, several senators — both Republicans and Democrats — say they’re fed up with intelligence agencies’ excuses. Congress is right to be skeptical of the law, known as Section 702 of FISA, which the FBI has used to spy on Black Lives Matter activists and others. But Congress doesn’t have to limit itself to railing against the law’s abuse. It should use Section 702’s coming expiration to make critical reforms and rein in rampant warrantless spying on Americans, including journalists.

Section 702 allows intelligence agencies to conduct “backdoor searches”: accessing the communications of Americans without a warrant, as long as they’re talking to someone outside the U.S. While Section 702 requires intelligence agencies to “target” a foreigner for intelligence collection, once Americans’ communications data is swept up in their surveillance, the agencies can search it without a warrant for any reason. As a result, despite being touted as a national security measure focused on foreigners, Section 702 has become a powerful tool for domestic spying. It’s routinely used in cases that have nothing to do with national security. The FBI has even used Section 702 data for searches targeting journalists.

Unsurprisingly, the FBI and other intelligence agencies oppose significant changes to Section 702. Instead, the FBI recently suggested just a few weak reforms, such as a “three-strike policy” for searches that break the rules and including FISA compliance in senior officials’ performance reviews.

Suggesting that the FBI police itself is laughable in the face of the history of vast warrantless surveillance of Americans and other surveillance abuse. Self-regulation won’t work. For proof, look no further than the approximately 200,000 backdoor searches the FBI conducted in 2022. Using the FBI’s own compliance rate, even after its latest internal “reforms,” that includes more than 8,000 searches that violate its own rules.

Instead, Congress should adopt the reforms recommended by a coalition of more than 20 privacy, civil rights and civil liberties organizations, including Freedom of the Press Foundation. It must close the backdoor searches loophole by requiring the government to get a warrant before it can search the massive Section 702 data trove for Americans’ communications. It also must narrow Section 702’s parameters to target genuine national security needs. Separate from Section 702 reform, passing the PRESS Act would also help protect journalists from surveillance of their electronic communications data.

In addition, Congress should increase transparency of surveillance activities under Section 702 and another surveillance authority, Executive Order 12333. These surveillance schemes operate as a black box, with little information available to the public, lawmakers and courts. Even the court opinion revealing the FBI’s abuse of Section 702 to monitor BLM activists didn’t come out for more than a year after the opinion was issued, despite a law requiring it to be made public.

Such lack of transparency makes news reporting about surveillance abuses particularly difficult, and journalists must often rely on information revealed by whistleblowers to inform the public. The secrecy allows problems like overclassification and faulty legal interpretations of surveillance authority to run rampant, and surveillance abuses to continue, with little oversight or accountability.

Without changes to Section 702 and other surveillance authorities, intelligence agencies will continue to abuse their power to spy on Americans. For too long, these agencies have been permitted to surveil journalists, activists, politicians and anyone else they consider suspect. Congress should put an end to that by only agreeing to reauthorize Section 702 with these essential changes.

Prohibiting public scrutiny of research isn’t the right response to concerns about academic freedom.

It was a problematic project to monitor social media that came to light thanks to public records. The Department of Homeland Security hired the University of Alabama to research and develop a way to flag possible “pro-terrorists accounts” on social media. Under the project, dubbed “Night Fury,” UA researchers were tasked with developing automatic “risk scores” for social media accounts and delivering lists of accounts identified as pro-terrorist to DHS. DHS ended the contract in 2019, and a later inspector general’s report revealed allegations of potential privacy violations related to Night Fury.

The public learned of UA’s involvement in Night Fury because of a federal Freedom of Information Act request by the Brennan Center. But information like this may never have become public in several states that have passed laws or otherwise restricted public access to research records from public institutions of higher learning.

Most recently, Connecticut considered (but thankfully didn’t pass) a “science secrecy” bill that would have excluded public colleges’ and universities’ research records from the state’s public records law.

These kinds of public records exemptions undermine transparency and government accountability on clearly newsworthy topics. Night Fury is just one example. Concerns about abusive requests and their impact on academic freedom are legitimate, but prohibiting public scrutiny of academic research isn’t the right response.

Science secrecy exemptions undermine the public’s right to know

There’s a long track record of journalists and watchdog groups using public records laws to expose wrongdoing at public academic research programs. For example, in 2015, The New York Times and the consumer health watchdog organization U.S. Right to Know used freedom of information requests to expose Monsanto and others recruiting and incentivizing researchers to lobby in favor of genetically modified foods. Emails obtained through the requests even showed a University of Florida professor using — verbatim — answers drafted by a biotech public relations firm in response to questions about genetically modified food.

Yet under science secrecy exemptions, most records shedding light on research would never be disclosed. Even records showing harassment, misconduct or unethical behavior could arguably also be withheld.

We can protect academic freedom without secrecy

Supporters of science secrecy exemptions argue that freedom of information laws have been weaponized to harass and smear researchers. In one notorious example, climate change skeptics targeted University of Virginia scientist Michael Mann with public records requests, and Mann also faced relentless harassment, a government investigation, purposeful distortions of his research and death threats. More recently, researchers studying online disinformation have been targeted with broad public records requests, congressional subpoenas and online harassment.

Harassment and threats against researchers that rise to the level of criminality are unacceptable and can be prosecuted. But when it comes to responding to the separate issue of abusive public records requests, there are other methods besides science secrecy exemptions to ensure researchers aren’t discouraged from exploring new or controversial ideas.

First, universities and colleges should allocate more staff and money to help researchers gather and review records, rather than placing the burden of responding to records requests on researchers alone. It’s no excuse for academic institutions to say they can’t handle the work of responding to requests. If we let the government use burden as a convenient excuse, we’ll eventually lose access to most records.

In addition, when bad faith requesters misconstrue or purposefully mischaracterize documents, the best response is to correct the record with more information. Colleges and universities should respond to attempts to use public records to gin up controversies by fairly investigating the claims and debunking them when they’re wrong, not firing or disciplining researchers at the first whiff of controversy. Academic freedom should also be safeguarded by strong employment protections.

Finally, existing exemptions to many open records laws for drafts and early deliberations, although themselves subject to abuse, should eliminate the need for additional overbroad exemptions specifically for researchers.

Public records laws allow journalists to inform the public and monitor the government and that includes public colleges and universities. Losing public access to research records from public colleges and universities doesn’t have to be the price we pay to protect academic freedom and researchers.

Freedom of the Press Foundation (FPF) is highly disappointed by the UK High Court’s rejection of Julian Assange’s appeal of his extradition to the United States on Espionage Act charges.

While Assange may still have additional legal remedies available to avoid extradition, it seems increasingly likely that it will be up to President Joe Biden, who recently proclaimed that “journalism is not a crime,” to do the right thing and end this Trump-era prosecution.

“The idea of Assange or anyone being tried in a U.S. court for obtaining and publishing confidential documents the same way investigative reporters do every day should be terrifying to all Americans,” said FPF Director of Advocacy Seth Stern.

As FPF Executive Director Trevor Timm has previously explained, anyone who values the First Amendment should staunchly oppose these charges no matter what they think of Assange or Wikileaks. The case is not about one individual, it’s about freedom of the press, and the government weaponizing the Espionage Act to criminalize routine newsgathering.

“If Biden lets this case proceed, future administrations will surely use the precedent of the Assange prosecution, and the unconstitutional authority to criminalize newsgathering that Biden is claiming, to go after journalists they don’t like,” said Stern.

“It’s time for Biden to drop this case and show the world he’s serious about press freedom.”

Body camera footage released following a court petition by Freedom of the Press Foundation and the ACLU of North Carolina shows that Matilda Bliss was wearing a press badge when arrested on Christmas night of 2021. They also repeatedly told police they were a journalist. But a warrant application omits that fact, enabling authorities to search Bliss's phone in apparent violation of federal law.

We’ve written plenty about the case against Asheville Blade journalists Veronica Coit and Matilda Bliss for covering an eviction of a homeless encampment. The prosecution’s theory — that, by scheduling a highly newsworthy operation at a public park for after closing time, police can operate in secret and arrest any journalist who attempts to record them — is absurd and alarming. A coalition of almost 50 press rights and civil liberties organizations and media publishers has condemned the charges.

But it appears the prosecutions (the journalists are scheduled for a jury trial on June 12) may only be the tip of the iceberg when it comes to Asheville authorities’ hostility to press and speech freedoms. Bliss recently obtained a copy of a nearly 1.5-year-old warrant to search their phone, which was seized during the 2021 Christmas night arrests. It’s clear from body camera footage that arresting officers were well aware that Bliss and Coit were members of the press, but the warrant application conspicuously fails to mention that fact. Why leave it out?

Perhaps because the federal Privacy Protection Act of 1980 prohibits investigators from searching journalists’ equipment for evidence of alleged crimes by others that they obtained in the course of newsgathering, which is exactly what the warrant application sought to accomplish. Without knowing Coit and Bliss are journalists, the judge couldn’t apply the PPA and refuse to issue the warrant. The Blade pointed out that Asheville authorities can’t claim ignorance of the PPA — here’s the City Attorney, Brad Branham, discussing it in reference to this same case.

Could the omission have resulted from incompetence as opposed to malice? Sure — there appears to be plenty of both to go around in Chief David Zack’s department. But Asheville police and prosecutors have squandered any entitlement to the benefit of the doubt.

Case in point, the warrant application cites Bliss’s alleged links to “extremist anarchist groups” as justification for the illegal phone search. The primary evidence of Bliss’s “extremism” is posting to a publicly available social justice event calendar. Of course, it’s perfectly lawful to be an anarchist — and to attend and publicize social justice events — and the warrant application does not contend that Bliss was involved in anything illegal. But, apparently, the police department considers any views they don’t like “extremism.” It’s seriously concerning, and blatantly unconstitutional, for the government to treat merely holding unpopular political views as a sufficient basis to justify surveillance of journalists — or of anyone, for that matter.

Blatant unconstitutionality appears to be the order of the day in Asheville. Bliss and Coit recently learned that, after their arrests, police, operating outside the judicial system, banned them from city parks for a year. To the best of our knowledge, no court has ever considered the constitutional implications of police officers extrajudicially banning journalists from public land for doing their jobs, because no prior police department had the chutzpah to try it. But if the tactic ever got in front of any decent judge they would presumably find not only unlawful retaliation for First Amendment speech but an unconstitutional prior restraint — “the most serious and the least tolerable infringement on First Amendment rights.” The ban goes a step further than traditional prior restraints barring publication by barring journalists from even finding news to publish.

And park bans seem to be a favorite tool in Asheville’s speech suppression tool kit. Police also banned several mutual aid workers and protesters from city parks after charging them with “felony littering” for bringing supplies and other items to demonstrations at the same homeless encampment. Those bans are the subject of a lawsuit by the ACLU of North Carolina. Even the city’s own Solid Waste Manager expressed dismay that authorities would employ the obscure felony littering law against local do-gooders while consistently ignoring the kinds of large scale illegal dumping it was actually meant to address.

Rather than heeding the overwhelming calls to drop the case against Coit and Bliss and reckon with their disturbing pattern of anti-speech behavior, officials plan to proceed with the June 12 jury trial. The journalists moved to dismiss the case, arguing that police scheduled the sweep, “which they knew to be controversial and of great public interest, for 10 p.m. on Christmas night specifically to weaponize the curfew against reporters."

A judge declined to throw out the case before trial, opting to let the trial judge determine whether the First Amendment permits prosecuting journalists for breaking the city’s park curfew when it's the only way to cover the news (officers admit reporters could not have observed them from outside the park). The trial judge should dismiss the case, and the journalists should sue — although we don’t envy the lawyer who has to fit so many First Amendment violations into one court complaint.

Former Fox News reporter Catherine Herridge, pictured here interviewing Acting Defense Secretary Chris Miller, has challenged a subpoena demanding she disclose a confidential source.

Another week, yet another story highlighting the need for Congress to pass the PRESS Act and protect journalists and their confidential sources. This time, a judge raised the lack of a federal shield law in response to Fox News’ efforts to fend off demands to reveal confidential sources.

Fox News and its former reporter Catherine Herridge have moved to block demands to identify their sources by Yanping Chen, a Chinese-American scientist who is suing the FBI for violating the federal Privacy Act by allegedly leaking information about her. In 2017, Herridge published several articles for Fox News about Chen and government investigations into her “taxpayer-funded school that markets to the military.”

Both Fox News and Herridge, now a senior investigative correspondent for CBS News, argue that Chen’s demands violate the reporter’s privilege found in the First Amendment. However, in a hearing last week, D.C. District Judge Christopher Cooper mulled the impact of Congress’ failure to adopt legislation like the PRESS Act, noting that lawmakers have “not seen fit to pass a reporters’ shield law.” Cooper also reportedly questioned if the threats to the First Amendment posed by the subpoenas were “overstated.”

The lack of a federal shield law doesn’t lessen journalists’ First Amendment right to refuse to disclose confidential sources. But that doesn’t mean we don’t need a federal shield law to codify that right. As we’ve explained before, a federal shield law like the PRESS Act would benefit journalists and the public in a number of important ways.

First, it would eliminate any question about whether the law protects journalists from being forced to out their sources in anything less than the most compelling circumstances. Cooper’s questioning demonstrates the need for the certainty that the PRESS Act would bring.

In addition, press freedom concerns aren’t overblown when considering the impact of demands for confidential sources, even in civil cases. Compelling reporters to reveal confidential sources undoubtedly threatens the First Amendment, whether the demand is made by the government or by private litigants. Sources who are concerned about being dragged into civil lawsuits, fired or otherwise retaliated against may not be willing to speak to reporters unless they can be promised confidentiality. They’ll be less likely to do so if reporters can routinely be forced to violate those promises, and that, in turn, means less newsworthy information makes it to the public.

Demands from people suing each other for journalists’ testimony or the documents they’ve gathered are also a drain on newsroom resources and divert journalists from their work of informing the public. The very purpose of a reporter’s job — to investigate newsworthy events and issues — means they’re often gathering information on controversial subjects that may result in a lawsuit. Unfortunately, that also means that reporters are no strangers to private parties trying to use them and their reporting to prove or defend their cases. Courts shouldn’t open the floodgates to these kinds of demands. Forty-nine states have recognized as much by passing reporter’s privilege laws.

Ultimately, when the judicial system requires journalists to burn their confidential sources, it harms the public. To protect our right to know, we need courts to throw out subpoenas like these. And we need Congress to pass the PRESS Act.

Today marks the 10th anniversary of whistleblower and longtime Freedom of the Press Foundation (FPF) board member Edward Snowden’s stunning revelations of mass surveillance by the National Security Agency.

Over the course of several weeks starting June 5, 2013, Snowden, through a series of stories in The Guardian and The Washington Post, exposed the alarming scope of the data the NSA and other agencies collected on people’s phone calls, text messages and online activities. Snowden’s disclosures prompted other media outlets to investigate the NSA and further develop the disturbing picture the leaked documents painted.

The ramifications of Snowden’s disclosures — both cultural and political — continue to this day. They range from the prevalence of encryption in our everyday communications, to the bipartisan pushback lawmakers can now expect when they seek to expand the government’s surveillance powers, to legislative accomplishments like the 2015 USA Freedom Act and the sunsetting of surveillance powers conferred by the PATRIOT Act. The Electronic Frontier Foundation recapped some of the other major progress attributable to the Snowden disclosures.

The series of stories, which later won the Pulitzer Prize for both the Guardian and Post, offers a case study in the power of whistleblowers and journalists to alter the course of history (as well as an early illustration of the importance of digital security and encryption for journalists). Unfortunately, that’s exactly why our government insists on retaining the power to prosecute journalists despite its proclamations that “journalism is not a crime.”

And intelligence agencies certainly have not committed themselves to transparency over the last decade. On Friday we found out that the NSA is inventing questionable new ways to deny Freedom of Information requests. Last month we learned of shocking abuses by the FBI of its purported authority under Section 702 of FISA to spy on George Floyd protesters and others — the very same authority many of the original Snowden stories centered around.

Despite the impact of Snowden’s disclosures, every subsequent battle to shine light on the surveillance state, much less reform it, has been hard fought. The fight to end mass surveillance under Section 702, which is up for renewal this year, will be no different. Same goes for the campaign to pass the PRESS Act and stop the government from spying on journalists.

Sadly, the path forward for the next Snowden hasn’t gotten much easier (although, as Snowden’s fellow FPF board member Daniel Ellsberg recently noted, whistleblowers can now choose to remain anonymous through SecureDrop). Like many whistleblowers before and since, Snowden knew full well he was destroying his career and risking his freedom when he blew the whistle. He did it anyway because it was the right thing to do, and now he’s a fugitive, trapped by the U.S. government in Russia.

And every time there’s a new leak, the government — sometimes even with help from the media — focuses the narrative on the supposedly imminent parade of horribles that inevitably fails to materialize, diverting public attention from the content of the leaks. But 10 years later, there is no evidence of the irreparable harm that Snowden was constantly accused of causing to our national security, especially in comparison to the undeniable public good that resulted from his actions. Whistleblowers and leakers are far more likely to embarrass politicians and end illegal practices than to endanger innocent lives.

You’ll surely hear more about this 10-year anniversary, from us and others. It should serve as a reminder that whistleblowers who reveal official illegality, and the journalists with whom they collaborate, should be the subjects of admiration, not indictments. When the government breaks the law, it should expect whistleblowers to tell the press and the press to tell the public. It has no one to blame for the fallout but itself.

Freedom of the Press Foundation (FPF) is thrilled to welcome award-winning journalist Azmat Khan as the newest member of its board of directors.

Khan is an investigative reporter with The New York Times Magazine, and the Patti Cadby Birch Assistant Professor at Columbia Journalism School, where she directs the Simon and June Li Center for Global Journalism.

Her multipart series in the Times, The Civilian Casualty Files, was awarded the 2022 Pulitzer Prize in International Reporting. Based on years of investigation, the series details how America’s campaign of so-called “precision strikes” has been marked by deeply flawed intelligence, rushed and often imprecise targeting, excessive secrecy — and the deaths of thousands of civilians, many of them children.

“Courageous accountability journalism in the public interest requires equally courageous defenders of the press who innovate to meet new threats,” Khan said. “For more than a decade, the Freedom of the Press Foundation has been at the forefront of this work, from developing encryption tools so that sources can securely communicate with journalists to probing the excesses of government secrecy. I'm honored to be joining an organization that so ambitiously fights for the public's right to know."

Khan's investigations — from Iraq, Syria and Afghanistan — have prompted widespread policy impact and won more than a dozen awards, including the Pulitzer Prize, two National Magazine Awards, two Overseas Press Club awards, the Polk Award, and the Hillman Prize.

“We are so excited to welcome Azmat to the Freedom of the Press Foundation’s board,” said FPF board President Rainey Reitman. “Azmat’s remarkable investigative journalism has changed how we think of data-driven war reporting. Her reporting has helped ignite vital national conversations and spur long-overdue policy proposals. Azmat epitomizes how independent journalism can hold governments to account.”

The St. Louis Post-Dispatch is the latest newspaper to be hit with an unconstitutional "prior restraint" prohibiting it from publishing information the government accidentally made public.

A St. Louis judge issued an unconstitutional “prior restraint” last week, prohibiting the St. Louis Post-Dispatch from reporting on a mental health evaluation of a man accused of killing a police officer. It appears the paper was able to access the evaluation after it was accidentally filed as a public document. This news came the same week a judge rejected the City of Los Angeles’s efforts to force journalist Ben Comacho to return photographs of undercover police officers released to him pursuant to a records request.

Both cases ignore that, on the rare occasion when the government has a legitimate basis to withhold records from the public, the onus is on the government, not the press, to ensure that they’re withheld. The Supreme Court has explained that “a contrary rule … would force upon the media the onerous obligation of sifting through government press releases, reports, and pronouncements to prune out material arguably unlawful for publication.”

That’s why the Court has held at least four times that once the government releases records to the press, even accidentally, it cannot claw them back or prohibit or punish their publication, regardless of how sensitive the records may be. It’s quite unusual for the Supreme Court to accept so many cases involving essentially the same legal issue, but apparently the justices wanted to make sure trial judges got the point.

Well, they didn’t. The St. Louis judge, Elizabeth Hogan, reportedly thinks her case is different from the others because she needs to protect the fair trial rights of the man who was the subject of the evaluation. But the Supreme Court has not wavered from its position even in a case where the inadvertently released records identified victims of sex crimes.

That case involved whether journalists who disclosed victims’ identities could be punished after-the-fact but Hogan went even further by prohibiting the Post-Dispatch from publishing the evaluation in the first place. That’s a prior restraint, “the most serious and the least tolerable infringement on First Amendment rights.” It’s unconstitutional even when national security is allegedly threatened. Every judge studied the Pentagon Papers case in law school but somehow they continue issuing prior restraints for even less compelling reasons.

That’s not to say that Sixth Amendment fair trial rights aren’t important. Of course they are – and the press protects those rights by informing the public of the workings of the criminal justice system. The Supreme Court instructs trial judges to deal with potential prejudice to defendants’ fair trial rights arising from media publicity through the jury selection process, or even by moving the trial elsewhere, rather than censoring journalism. And studies have shown that jurors are able to remain objective despite pretrial publicity.

But judges continue to panic about publicity and issue unlawful orders like Hogan’s. Just last year, for example, a Sarasota, Florida, judge barred a newspaper from publishing the names of deputies involved in a fatal shooting. Also last year, a judge in Colorado prohibited the Denver Gazette from publishing court documents mistakenly released to a journalist. These orders and many others were eventually lifted but only after media outlets incurred legal fees and, more significantly, important news was delayed by rogue judges’ unconstitutional antics.

Camacho, the Los Angeles journalist sued for not returning records police gave him, filed a motion under California’s anti-SLAPP (short for Strategic Lawsuits Against Public Participation) law. Hopefully the City will be sanctioned and forced to pay Camacho’s attorney’s fees for defending its frivolous lawsuit. Unfortunately, there is no similar remedy when the frivolousness comes from the bench. Maybe the Supreme Court needs to revisit this issue a fifth time. Or maybe bar associations and other power brokers in local judicial elections, in St. Louis and elsewhere, need to stop endorsing judges who don’t understand the basics of the Constitution.

A school board member's Facebook post about an LGBTQ book display at a Pennsylvania high school library similar to the one pictured here led to a public records case that could make it harder to access public official’s social media posts.

If a public official or employee in your town posted racist comments about students at the school where they work, an offensive rape joke when discussing the president, or an expletive-laden rant in response to a constituent, wouldn’t you think you have a right to know about it? Unfortunately, if you live in Pennsylvania, it just got harder to exercise your right to learn about — and report on — public employees’ social media activity. A recent decision by a Pennsylvania appellate court raises the bar for public records requests for social media posts made on officials’ personal accounts, even when they are about public business.

The decision in Penncrest School District v. Cagle establishes a complex three-part test for determining when social media posts made by public officials on their personal accounts are public records under the state’s Right-to-Know Law. The test requires courts to examine whether the social media account has indicators of an “official” status, whether the posts “prove, support, or evidence a transaction or activity of an agency,” and whether the public official acted in their official capacity in creating, receiving, or retaining the posts.

The case involved a request for Facebook posts and comments made by two Penncrest School Board members about LGBTQ issues and the school district. The request was spurred by school board members’ social media posts about a display of LGBTQ books at a local high school library. The display and posts were also discussed at school board meetings.

As one Pennsylvania attorney told Spotlight PA, the appeals court’s decision is a significant change to Pennsylvania law, which had previously been interpreted to presume that a record is public “anytime a public official communicates about public business.”

In contrast, the test the appellate court lays out requires records requesters to satisfy multiple factors, some of which seem contrary to the Right-to-Know Law’s presumption of openness.

For example, the appellate court identified two indicators that suggest a social media account has “official” status: if the account has the “trappings” of an official agency or if that official has a “duty” to run it. Officials may be able to circumventing public records laws, then, by purposefully using a social media account that appears personal or unofficial. Officials are far more likely to let their guards down and speak frankly on their personal accounts — especially when compared to bland talking points likely to be found on an official account — but the court’s test makes it harder to access these often highly newsworthy statements.

The appellate court also says that lower courts must consider all three of the factors laid out in its decision, but allows them to assign different weights to each factor on a case-by-case basis. This means that a court could deny a requester access to social media records even if they prevail on most of the factors, if the court decides that a single factor outweighs the others. A judge who is inclined to keep a newsworthy post out of public view can almost always find a way to do so under such a loose and subjective standard.

Making it harder for Pennsylvanians to access records of social media posts by government officials is a move in the wrong direction. There’s already a long and unfortunate history of officials attempting to evade public records laws by using personal email accounts or text messages. Thankfully, many courts and public agencies have recognized that government business conducted through personal email accounts or texts on personal devices still creates a public record subject to freedom of information laws. The same principle should apply to social media: Regardless of where government officials discuss or conduct government business, the public should have access to the records.

Of course, it may be difficult for governments to retain and produce social media posts made on officials’ private accounts. That difficulty, however, does not excuse them from their obligation to do so. Governments can address this issue by establishing social media policies that direct all employees to limit posts about government business only to official social media accounts or by requiring officials to maintain records of their personal accounts if they post about public business.

Pennsylvania is not the only state to consider whether public officials’ posts on their personal social media accounts are public records. For example, in 2018, a Washington appellate court explained that social media posts on a personal page are public records if they relate to the conduct of government and are prepared by a government employee “acting in her official capacity, conducting public business, or otherwise furthering the [government’s] interests.” This more straightforward analysis is less likely to lead to lengthy litigation that can stymie public records requests and allow governments to withhold records about the conduct of public business from the public.

Public officials’ use of personal social media accounts also raises other legal questions. The Supreme Court recently agreed to hear two cases about whether public officials can block people from their personal social media accounts that they use to communicate about government business. Both cases are about lower-level government officials, but they echo the issues in the case challenging then-President Donald Trump’s blocking of critics on Twitter, which the Second Circuit said violated the First Amendment. The Supreme Court’s decisions will have important ramifications for journalists, whom public officials sometimes block on social media, and interpretations of the First Amendment more broadly.

As more and more government business is done online, journalists will have to continue to grapple with how to cover public officials’ use of social media for government business, whether by fighting attempts to block them or wresting public records from the digital sphere. Courts, too, will have to apply the First Amendment and public records laws that were written before the advent of the internet, let alone social media, to determine what limits there are on blocking and what disclosures the law requires.

Ultimately, public records laws are meant to shed light on government, not conceal government activity. If courts won’t protect public access to officials’ online statements on government affairs, then legislatures must act to update the laws for the digital age and preserve the public’s right to know.

United States Supreme Court

Journalists concerned that two highly anticipated Supreme Court rulings might cause online platforms to censor news content can breathe a temporary sigh of relief. In Gonzalez v. Google and Twitter v. Taamneh, the court sided with social media companies in a legal battle about online terrorist content and declined to reinterpret Section 230, the federal law that shields online services from legal liability for posts made by their users.

Section 230 is sometimes portrayed as a boon for tech giants, but in reality, it’s an important free expression protection for countless websites, including pretty much all news outlets, as well as internet users, including journalists. While the decisions are a good outcome for journalists, other cases pending before the court, as well as several bills in Congress, continue to threaten online speech.

Both Gonzalez and Taamneh were about whether online platforms can be held liable under the Anti-Terrorism Act for aiding and abetting terrorist acts carried out by ISIS. The plaintiffs’ basic theory was that Twitter, Facebook, and YouTube should be liable because they allow ISIS to use their services, recommend ISIS content to other users, and fail to take enough steps to remove ISIS content. Thankfully, the court ruled on both cases while sidestepping Section 230 entirely.

What does this mean for the press? First, the court’s decision not to touch the current interpretation of Section 230 (at least for now) is good for journalists and news organizations. Section 230 fosters free expression by shielding online services from liability for the things their users say. For journalists, in particular, the law protects their ability to use the internet to publish news reports and seek out newsworthy information. Without Section 230, online services could be held liable for the things their users say, and they wouldn’t risk hosting controversial content or content that could potentially get them sued. As a result, platforms would over-remove users’ content, including content by journalists.

A platform might remove news reports about powerful or wealthy (and litigious) figures, for example, for fear of being sued themselves and drawn into lengthy and expensive litigation. The over-removal of content would also make it harder for journalists to find information online. For instance, the #MeToo movement, and all of the investigative reporting it spurred, may never have gotten off the ground if Twitter removed user’s posts because it was worried about its own potential liability for defamation. Section 230 also protects journalists and news outlets directly when, for example, they retweet someone or operate a comments section on their website.

Second, the court also decided in Taamneh that the plaintiffs’ claims weren’t enough to create liability under the Anti-Terrorism Act. That’s good news for news outlets who cover terrorists and terrorism. During the oral argument, Justice Brett Kavanaugh asked whether CNN’s 1997 interview with Osama bin Laden that al-Qaeda used as “tool for recruiting” would have made CNN liable for aiding and abetting the Sept. 11 attacks under the plaintiffs’ theory. As wild as it is to think that a news interview could be considered aiding and abetting terrorists, the plaintiffs’ attorney had a hard time answering that question, ultimately saying that “the First Amendment is going to solve that.”

The court’s decision in Taamneh seems to put to rest any question about aiding and abetting liability for news reporting about terrorism, because the court said a defendant can be held liable for aiding and abetting under the ATA only if it “consciously and culpably” participates in a wrongful act in order to help “make it succeed.”

The court’s decisions leave in place the current interpretations of the law that largely protect online speech, including by reporters. But the threat to Section 230 and online speech by reporters and others isn’t over. Some justices have written that Section 230 should be significantly limited, Congress has proposed numerous bills to repeal or limit Section 230, and the Biden administration has also been critical of the law. In addition, the court is likely to take up two other cases in the next term, NetChoice v. Paxton and Moody v. NetChoice, in which it could reinterpret Section 230 and First Amendment protections for online speech more broadly, with potentially significant ramifications for the press.

As they consider changes to or interpretations of the law, both Congress and the Supreme Court must prioritize the rights of journalists and other users to speak and find information online. Gonzalez and Taamneh may be behind us, but journalists, news outlets, and free speech advocates are in for a long road ahead to protect free expression online.

In one of his last public talks, to a room full of more than 200 journalists, Daniel Ellsberg was asked what the media could do to better support whistleblowers. In a passionate speech, Ellsberg implored the crowd, and the press in general, to investigate the U.S. government’s classification system. As he explained, our democratic society is making a serious mistake “in not investigating the secrecy system, covering how it acts, how it works, and how it keeps secrets and what secrets it keeps.”

As many people know, Ellsberg — the legendary Pentagon Papers whistleblower and Freedom of the Press Foundation (FPF) co-founder — was diagnosed with terminal pancreatic cancer a few months ago and doesn’t have much more time left with us.

In our view, there is no better way to honor our friend and hero than to attempt to fulfill this wish.

Freedom of the Press Foundation will soon launch the “Daniel Ellsberg Chair on Government Secrecy.” This full-time staff position will be dedicated to what Ellsberg has spent a large portion of his life highlighting the need for: massive reform of the secrecy infrastructure in the United States. In the coming months, we’ll seek funds to fully endow this chair position so that it can live in perpetuity, and be free from changes in any fiscal or political climate.

Ellsberg has spent the last five decades drawing attention to the fact that overclassification is a fundamental problem for our democratic society. When so much information is classified, it becomes impossible for citizens, journalists, and oversight bodies to access vital facts about government activities. This lack of transparency undermines public trust in government institutions and hinders the ability of the public to hold officials accountable for their actions.

The United States government has nearly 3 million people with security clearances and classifies billions of pages of documents per year — including virtually everything in the foreign policy and national security realms. It constantly violates its obligations under the Freedom of Information Act and delays releases for years, uses the pernicious “state secrets privilege” to stop accountability in courts, layers on various restrictions to prevent Congress from learning what they need to know, and abuses the Espionage Act to threaten reporters and prosecute whistleblowers who go to the press with information of vital public interest.

Further, declassification and FOIA offices are severely underfunded. Add to this the fact that officials face no consequences for over-classifying information, but severe consequences for not classifying or for “leaking” improperly classified information. You’re left with a government with little reason to be transparent. And the tone set by the federal government inspires state and local governments to be equally secretive and misuse open records laws. Struggling media outlets often lack the resources to fight these abuses.

The Daniel Ellsberg Chair on Government Secrecy will be responsible for researching all aspects of government secrecy—from the problem of overclassification to the limitations of FOIA and the abuses of the Espionage Act.

This full-time position will be dedicated to turning the enigma of secrecy abuses into public conversation starters. They will work hand-in-hand with journalists to spotlight overlooked stories about classification system malpractices. They will also apply pressure where it needs to be by lobbying Congress for landmark changes to classification laws and the Espionage Act. This position aims to not just follow in Ellsberg's footsteps, but make strides forward, championing one of the causes he has dedicated his life to. This is more than a Chair, it's a crusade for transparency, continuing Ellsberg's half-century battle.

For now, our co-founder and our friend is still with us. And we dearly hope reading this announcement will make him smile, knowing we will do everything in our power to carry his torch in the years to come.

The restraining order obtained by Arizona Sen. Wendy Rogers against Arizona Capitol Times reporter Camryn Sanchez on April 19, 2023.

An Arizona judge struck down a restraining order against a journalist whose supposed offense was to knock on a state senator’s door to ask questions while investigating her residency. The judge ruled last week that the reporter, Camryn Sanchez of the Arizona Capitol Times, had a “legitimate” purpose for her actions and the senator, Wendy Rogers, did not have a “reasonable” basis to fear the journalist. Good news, but it’s troubling that the case got to this point.

As one court explained, journalists have an “undoubted right to gather news from any source by means within the law.” The restraining order, granted on April 19 by Judge Amy Criddle, impeded Sanchez’s ability to pursue her investigation for three weeks until the order was finally withdrawn. In news years, that can be a lifetime. It forced her and the Capitol Times to spend time and money preparing to testify rather than reporting the news. And it let Rogers shift attention from whether she lives in the district she represents to a silly debate over whether journalists can knock on people’s doors.

Our U.S. Press Freedom Tracker has no prior record of a government official obtaining a restraining order against a journalist since it began documenting violations in 2017. The closest case involved a cosmetic surgeon in Los Angeles. A judge quickly dissolved his restraining order upon learning that he’d neglected to mention that the people he sought to restrain were Los Angeles Times reporters. She then ordered the surgeon to pay the Times’ legal fees.

Judge Howard Grodman, who struck down the Arizona restraining order, reportedly expressed skepticism about granting a similar attorney’s fee award. His fear is that doing so might cause those who really need a restraining order to hesitate to seek one. It’s a legitimate concern, but it’s easily mitigated by making the reasons for the award clear. An attorney’s fee award is far more likely to dissuade other politicians from similar antics than it is to scare victims of real abuse away from the courthouse. Anyone who is not an elected official seeking to muzzle journalists investigating potential malfeasance should have nothing to worry about.

Other comments at the hearing were also concerning, despite the positive outcome. Rogers’ lawyer contended that the recent passing of state legislation to keep elected officials’ addresses and other personal information out of the public record meant that it was reasonable to bar journalists from politicians’ doorsteps. We’ve written that similar legislation, even where seemingly well-intended, creates a slippery slope that will ultimately reduce transparency and accountability. But we never imagined an argument quite so preposterous.

Fortunately this particular judge didn’t buy it. But what about the next one? After all, another judge, Criddle, granted the restraining order in the first place, despite Rogers making her intention to muzzle journalists clear, remarking, “The idea here is for the person to learn their lesson and then leave the situation alone, correct?”

Most judges (though, unfortunately, not all) understand that the First Amendment does not permit “prior restraints” barring journalists from publishing news. That was well-established even before the Pentagon Papers case, where the Supreme Court refused to enjoin publication of leaked documents despite the government’s claim of a national security threat.

But many judges, like Criddle, don’t realize the Constitution protects the right to gather news, not just publish it. That means requests for restraining orders, gag orders, closures of court files and other restrictions on journalists’ access to news often don’t set off the alarm bells they should. That’s why Rogers, previously known for calling for her opponents to be hanged at white nationalist gatherings, was able to obtain the unconstitutional order based on her allegation that Sanchez’s door-knocking and question-asking was “creepy” and not “normal” journalism.

Also worrisome was an exchange at the end of the hearing where the judge (perhaps inadvertently) implied that he may have ruled differently had Rogers posted “no trespassing” signs or instructed the journalist not to come to her homes. Rogers’ lawyer reportedly responded by announcing in open court that no journalists are welcome to knock on her door.

Of course, government officials have no power to unilaterally banish reporters who are investigating them. The courtroom was full of people with law degrees. It’s troubling that none of them questioned the suggestion that a senator could have obtained an order restraining routine newsgathering if only she’d first instructed the journalist to stop investigating.

Not to sound like a sore winner, but, despite Grodman’s correct ruling, the case laid bare the anti-press attitudes of far too many of our elected officials as well as the frequent disregard of the First Amendment by far too many judges. Sanctions against Rogers — including an order that she pay the Capitol Times attorneys’ fees — would send a strong message that the courts are not to be weaponized by politicians against journalists.

FOR IMMEDIATE RELEASE:

Last month, an Asheville, North Carolina, judge convicted two journalists of trespassing for doing nothing more than recording police conducting a homeless encampment sweep at a public park on Dec. 25, 2021. The journalists, Matilda Bliss and Veronica Coit, are entitled under North Carolina law to a second trial, this time with a jury.

Freedom of the Press Foundation (FPF) and the Committee to Protect Journalists (CPJ) led a coalition of over 45 organizations calling on Buncombe County District Attorney Todd Williams to drop the prosecution immediately. The letter, sent on World Press Freedom Day, explains that “[t]he journalists should be commended — not tried — for spending Christmas away from their families to perform the public service of documenting important news.”

Signers include everyone from press rights and civil liberties organizations like Reporters Without Borders (RSF), Society of Professional Journalists (SPJ), the National Press Club and the Foundation for Individual Rights and Expression (FIRE), to national media publishers like The Intercept, Penguin Random House, TEGNA and McClatchy.

“This prosecution is both unconstitutional and pointless. The First Amendment prohibits using trespassing laws as a pretext to retaliate against journalists for doing their jobs. And nobody in Asheville stands to benefit from government resources being wasted to criminalize journalism,” said FPF Advocacy Director Seth Stern. “The progressive image the city works to cultivate is further damaged every day the charges aren’t dropped.”

Katherine Jacobsen, U.S. and Canada program coordinator at CPJ, added, “We are gravely concerned about the press freedom implications of the continued prosecution of Asheville Blade reporters Veronica Coit and Matilda Bliss. Journalists should not be tried simply for doing their jobs and covering matters of public importance.”

The case has also caught the attention of activist, actor and FPF board member John Cusack, who tweeted that it “should be a national news story. Just because [the journalists] don't work for a mainstream news outlet doesn't mean their First Amendment rights are less important.”

The journalists are not accused of harming or obstructing police, yet Coit was given a suspended prison sentence and probation, while Bliss was fined. Police also extrajudicially banned them from city parks and unlawfully searched Bliss’s phone. Body camera footage, released after a petition filed by FPF, CPJ and the ACLU of North Carolina, shows officers deciding to arrest the journalists before clearing the camp “because they’re videotaping” and wondering aloud if one journalist would “wise up” after the other’s arrest.

You can read the full letter below.

A 2018 ICE summons demanded a law journal editor disclose the source of a leaked memo on Trump administration asylum policies. New reporting reveals other similar summonses to journalists.

Last year the Department of Justice enacted regulations restricting prosecutors from prying into journalists’ newsgathering. It was certainly a welcome development. But it seems like every week news breaks that underscores the need for a more widespread and permanent solution to the unfortunate tendency of public officials to abuse their offices to spy on journalists.

That solution is the PRESS Act — a bipartisan federal “shield” bill that almost became law last year and will likely soon be reintroduced in this Congress. It would prohibit the government from spying on journalists or threatening them with prison if they don’t burn their sources. In turn, it would allow sources wishing to expose malfeasance or bring other important news to light to do so without fearing for their livelihood or even their freedom.

The only exceptions to the PRESS Act’s proscription on surveilling “covered journalists” (which is broadly defined) are for imminent national security emergencies. The act would have far more permanence than the current agency rule, which a President Trump or DeSantis would almost certainly repeal. And it would extend across the federal government — not just to the DOJ. The following examples are just the latest incidents demonstrating the need to pass the act:

Congressional harassment of journalists

Last week Rep. Stacey Plaskett sent a letter to journalist Matt Taibbi demanding that he supplement prior Congressional testimony by answering questions about his newsgathering and discussions with his alleged source, Elon Musk. The letter then baselessly implies that Taibbi could be imprisoned for perjury should he not supplement his testimony. It’s the most recent of several attempts by the government to pry into Taibbi’s newsgathering.

At issue in the letter was Taibbi’s testimony around his reporting on the Twitter Files — internal Twitter documents that Taibbi and others contend evidence improper collaboration between government officials and Twitter to censor disfavored views. Sure, there are plenty of opinions on Taibbi’s reporting and whether the Twitter Files were as significant as he claims. Journalist communications that interest politicians tend to involve controversial stories and the First Amendment doesn’t limit its reach to exemplary reporting.

But does Rep. Plaskett — or anyone — believe Taibbi’s responses to her questions would stop an imminent terrorist attack or national security emergency? Of course not. Her (and other Democrats’) interest is in countering the politically damaging narrative arising from Taibbi’s reporting, a focus of the House Subcommittee on Weaponization of the Federal Government.

The PRESS Act rightly recognizes that politicians’ desires to defend their reputations, even against unfair attacks, do not justify intrusion into newsgathering. It would have stopped not only Plaskett’s questioning of Taibbi but a host of other examples of politicians from both parties harassing journalists whose sources cause them political headaches.

Administrative subpoenas demand journalists’ sources

Another recent news story by Wired revealed the extent of U.S. Immigration and Customs Enforcement’s use of a little-known legal tool, known as a 1509 summons, to improperly surveil journalists and others. The summons essentially function as subpoenas, but without judicial oversight. They’re only supposed to be used in investigations of customs violations, but numerous experts and insiders contacted by Wired say they’re frequently abused.

ICE’s use of 1509 summonses to target journalists and their sources is not news. Freedom of the Press Foundation’s U.S. Press Freedom Tracker reported in 2018 on one such summons issued to a law journal editor who published a leaked memo detailing the Trump administration’s decision to restrict asylum for victims of domestic and gang violence. The summons’ demands included “contact information of the source of the document.” In 2020, the Tracker reported another ICE summons seeking sources and more in connection with a BuzzFeed story about Trump’s expansion of fast-track deportations.

But the Wired story revealed just how widespread ICE’s abuse of the summons process may be. Wired turned up records of two more summonses issued to newspapers — the Bangor Daily News and Seattle Times — although neither paper confirmed receiving the summonses. It also found summonses targeting everyone from kids’ sports leagues to abortion providers to schools to boards of elections. PRESS Act co-sponsor Sen. Ron Wyden is well aware of the problem — his own investigation into 1509 summonses showed that ICE shared records of financial transfers with hundreds of law enforcement agencies nationwide.

It goes to show that federal prosecutors are far from the only ones looking to peer into newsrooms. But the PRESS Act would eliminate the need for agency-by-agency whack-a-mole which, even if successful, may be nullified by future administrations. The act has broad bipartisan support and should be brought to a vote as soon as possible once it’s reintroduced.