Freedom of the Press

Artist and actor David Choe, seen here working on a mural in 2008, claims footage of him describing raping a masseuse should not be taken literally. But he's using copyright law to stop people from deciding for themselves.

This week, artist and actor David Choe made headlines by citing alleged copyright violations to scrub the internet — including journalists’ social media accounts — of clips from a 2014 podcast where he seemingly admitted raping a masseuse. He later claimed that he made up the story for shock value and said it should be taken as performance art.

The incident exemplifies the frequent abuse of copyright law to silence the press. It also previews how public figures could abuse defamation law to do the same if Section 230 of the Communications Decency Act — which shields platforms from liability for defamatory posts by users — is either repealed or recklessly reformed.

Choe’s copyright claims are baseless for a number of reasons, first and foremost that it’s a “fair use” of copyrighted material to post and comment on excerpts of newsworthy footage of public figures. Recordings of alleged admissions of rape by a celebrity (Choe currently stars in the Netflix show “Beef”) are certainly newsworthy, regardless of how Choe spins his remarks. In fact, his explanation makes the recording even more central to the story because the public needs to hear, not just read, what he said to decide whether they believe he was being serious.

But Choe is far from the first to use copyright law to try to remove unflattering news stories from the internet. Earlier this year The Washington Post reported on a shadowy “reputation management” firm that specializes in sending frivolous copyright takedown notices to remove stories about its clients. It reported that from 2015-2021 the firm, Eliminalia, sent “thousands of bogus copyright infringement complaints to search engines and web hosting companies, falsely claiming that negative articles about its clients had been published elsewhere and stolen.”

And the problem extends beyond the United States. The BBC reported on oil lobbyists and former government officials in Equatorial Guinea using U.S. copyright law to force takedowns of critical news articles published by South African news outlets. There are countless other examples, like when Stevin John, who plays children’s TV star Blippi, tried to remove BuzzFeed’s reporting of a video that parents might find difficult to reconcile with his wholesome image.

The law enabling these censorship efforts is the Digital Millennium Copyright Act. It gives internet platforms immunity for user-posted copyright violations of which they don’t have “actual knowledge.” That immunity is necessary — otherwise it would be impossible for platforms to monitor millions of user posts for infringement.

But copyright holders can give platforms actual knowledge by filing a takedown request. Platforms that don’t comply risk liability, and they usually aren’t eager to stick their necks out for alleged infringers. There are procedures to challenge takedown requests and restore removed content, but even temporary takedowns are costly to journalists because news cycles move fast. And journalists might not have the time or the legal knowledge needed to file challenges — especially independent journalists and international journalists unfamiliar with US law.

Abuse of the DMCA is problematic in its own right but it also provides a preview of how online journalism might look without Section 230, the law that immunizes platforms from, among other things, defamatory content posted by users. It was relatively uncontroversial until recent years but now is the subject of bipartisan calls for reform as well as pending Supreme Court cases.

If it’s repealed, or if a knowledge-based standard similar to the DMCA is added (as some legislators and commentators have suggested), would platforms risk liability by keeping a post online after someone claims it defamed them? Of course not. They have no stake in individual posts and no interest in mediating defamation disputes. They’d err on the side of censorship.

And if platforms did attempt to police defamation, doing so would be even more inefficient and error-prone than policing copyright violations. While copyright violations can, at least sometimes, be self-evident, figuring out whether an allegedly defamatory statement is false (not to mention all the other gray areas in defamation law) is a fact-intensive inquiry that internet platforms are not qualified to undertake. A lot of judges can’t even get it right.

People who would like to know whether the star of the TV show they’re watching might be an admitted rapist, or about misconduct by crooked lobbyists and politicians, should oppose not only abuse of the DMCA’s procedures but also proposals to open the floodgates to similarly frivolous defamation takedown requests. We’re not saying Section 230 should be reformed at all (it shouldn’t) but, if it is, any reforms need to take into account the risk of enabling censorship of important news by people like Choe.

FOR IMMEDIATE RELEASE: Freedom of the Press Foundation director of advocacy Seth Stern issued the following statement on today’s trespassing conviction of Asheville Blade journalists Veronica Coit and Matilda Bliss for documenting a homeless encampment sweep at a public park after closing time on Christmas night of 2021:

It’s extremely disappointing that Judge James Calvin Hill overlooked the obvious First Amendment problems with convicting journalists for recording police conducting a homeless encampment sweep at a public park.

It’s particularly disturbing that the judge reportedly questioned whether Veronica Coit and Matilda Bliss are journalists. They literally report for a news outlet, the Asheville Blade. Whether it’s a mainstream outlet or one that public officials like is entirely irrelevant. They’re journalists under any definition of the word and entitled to the full protection of the First Amendment.

The judge also apparently ignored bodycam footage showing police arrested Bliss and Coit before clearing the camp’s residents “because they’re videotaping.” That confirms that police unconstitutionally targeted the press.

Even putting that aside, does the judge really want to set a precedent that journalists need to ignore news happening in plain sight on public land because it’s nighttime? Asheville residents deserve to know what their police department is up to at any hour.

Bliss and Coit were never accused of harming or obstructing police or anyone and it’s ridiculous the case even got to this point. Prosecuting victimless “crimes” by journalists does not serve the interests of justice and does not benefit the taxpayers funding the prosecution. And Asheville’s crackdown on free speech doesn’t end with journalists – the same prosecutors are trying mutual aid workers for “felony littering.” Seriously.

We’re glad to hear that Bliss and Coit are appealing to a jury trial under North Carolina procedures. We hope this awful ruling is reversed by citizen jurors who hopefully value the First Amendment more than Asheville police, prosecutors and judges.

The Espionage Act charges against Julian Assange have nothing to do with spying and everything to do with common journalistic practices.

The arrest of widely respected Wall Street Journal reporter Evan Gershkovich in Russia on bogus “espionage” charges has sent shockwaves through the journalism world.

And for good measure. Gershkovich’s disturbing imprisonment is the latest escalation in Russia’s effort to dismantle the little semblance of what’s left of press freedom in the country. Since its appalling invasion of Ukraine last year, Russia has censored television studios critical of its savage war, outlawed mentions of phrases like “occupation,” and has either arrested or forced the closure of almost all the country’s remaining independent outlets. Now, it seems it’s targeting foreign reporters as well.

US Secretary of State Anthony Blinken has rightly declared Gershkovich “wrongfully detained.” That status carries special meaning, because, as the Journal reported, the official designation “rev[s] up the U.S. government’s efforts to win Evan Gershkovich’s release.”

It is a welcome development; the White House and State Department can and should aggressively push for Gershkovich’s freedom. The charges are clearly a sham. There’s not one iota of evidence Gershkovich was doing anything other than his job as a journalist, and Putin is cruelly using him as a geopolitical tool. (The White House called accusations he’s a spy “ridiculous.”)

But the Biden administration’s calls to free Gershkovich would have a lot more meaning if they also weren’t attempting to prosecute a publisher for “espionage” here in the United States. WikiLeaks founder Julian Assange is currently sitting in a UK prison facing extradition to the US, after the Trump administration indicted him in 2019 on seventeen counts of violating the Espionage Act.

Don’t get me wrong: I’m not equating the work of Gerschkovich and Assange or alleging that press freedom in Russia and the U.S. is even remotely the same. What I’m saying is that many of the disturbing facts of Gershkovich’s imprisonment also apply to the facts of Assange’s case.

As in Russia, when a publisher or whistleblower is charged with “espionage” in the United States, it very much deserves to be described in scare quotes. The Justice Department hasn’t accused Assange of giving or selling information to foreign governments or anything of the sort. They’ve accused him of speaking with whistleblower Chelsea Manning in 2010 and 2011, and receiving hundreds of thousands of classified documents from her, which WikiLeaks later published for public consumption.

In other words: the same kind of thing newspapers that cover national security do all the time. Whatever you might think of Assange or his activities since 2011 is irrelevant because that’s not what he’s charged with and the precedent his prosecution would set isn’t limited to him.

If Assange is convicted under the Espionage Act for normal newsgathering activities, then reporters at the New York Times, Washington Post, and Wall Street Journal will be extremely vulnerable to the exact same type of charge here in the United States. Virtually every major press freedom, civil liberties, and human rights organization in the United States, as well as newspapers like the New York Times and the Guardian, has said the same thing. Shamefully, the Biden administration has ignored them. So far it’s also ignoring an April 11 letter from Rep. Rashida Tlaib and six other lawmakers calling on the administration to drop the prosecution. A DOJ spokesperson confirmed plans to proceed with the extradition just last week.

Just as it is outrageous that Russia has said it will ignore the pleas of major news outlets to release Gershkovich, the same can and should be said for the Justice Department, which is putting press freedom at dire risk in this country, with eerily similar charges to those Russia is pinning on Gershkovich.

This isn’t an exercise in hypotheticals either. Former President Donald Trump, who refers to journalists as “enemies of the people,” has rocketed to the top of 2024 Republican primary polls. Recently, he has taken to literally musing on stage at his rallies about how he could potentially throw reporters in jail. It is mind-boggling that the Biden administration may be handing him the ability to do just that on a silver platter.

Will dropping the Assange charges mean Russia will immediately release Gershkovich? Of course not. But if we all want the United States to have credibility on the world stage, and for their voice to carry weight not just with Russia but the rest of the world, it needs to practice what it preaches, and not open the door for the exact type of prosecution it is condemning Russia for.

The outpouring of support for Gershkovich has been inspiring: countless people tweeting “journalism is not a crime” and protests in his honor have been staged all over. Only time will tell if they will have an effect. Needless to say, Gershkovich is as loved in the journalism community as Assange is polarizing. But this much is true: If journalists banded together to protest the Assange prosecution in a similar fashion, we could end this dire threat to press freedom at home almost immediately.

FPF’s own safety guide for covering protests includes information about keeping legal contact information on your person.

Journalists covering protests often write phone numbers for their attorneys or legal helplines on their arms. Freedom of the Press Foundation (FPF) advises them to do so in our own guide. Other press freedom organizations provide similar advice.

It’s not because journalists intend to commit crimes — it’s because police have an unfortunate habit of arresting journalists for doing their jobs, and saved contacts aren’t much use if police seize your phone. Yet prosecutors in Atlanta, in pursuing charges against “Cop City” protesters accused of domestic terrorism, have argued that having a jail support phone number written on one’s body is evidence of criminal intent.

FPF joined a coalition of over 40 organizations, led by the National Lawyers Guild, to respond to these alarming prosecution arguments that ignore not only the First Amendment but the Sixth Amendment right to legal counsel. As the NLG explains, “[p]eople write these numbers on their arms in preparation for demonstrations precisely because they know they may be unjustly detained, and because they know that police use mass arrest as a form of crowd control that is calculated to disrupt protected speech.”

In other words, the only illegality reflected by the practice is not by journalists and protesters but by police officers who wrongfully arrest them.

If prosecutors succeed in criminalizing jail support numbers for protesters it’s just a matter of time before the same arguments are made against journalists. U.S. Press Freedom Tracker data shows that, for several years, the vast majority of journalist arrests have occurred during demonstrations. Seizures of cellphones are a legitimate concern for reporters. And we’ve already seen police detain and intimidate journalists while covering the Cop City protests specifically.

FPF Principal Researcher Dr. Martin Shelton, who co-authored the above-mentioned guide for journalists covering demonstrations, explained:

“Both for journalists covering protests and protesters themselves, these events can be unpredictable. Everyone in attendance is at risk of having their devices broken or seized, and that's why we can't rely on a smartphone contact list to maintain access to critical support. Going into a protest, writing a phone number on your body is not much different than committing that number to memory.”

Anyone who values the First Amendment should be alarmed by the suggestion that writing down legal support numbers evidences criminality — especially in the midst of a prosecution of protesters for “domestic terrorism” based on guilt by association.

Law enforcement should not be allowed to reward its own bad behavior by inferring criminality from practices journalists and protesters adopted precisely because of the long history of wrongful arrests at protests. And prosecutors should apologize for their ignorance of the Constitution they’re sworn to defend.

Sen. Mark Warner, a sponsor of the RESTRICT Act, claims we have nothing to worry about because the government will use its broad censorship and surveillance powers responsibly.

When we previously wrote about the talk of banning TikTok – which would be blatantly unconstitutional on its own — we did not anticipate the scope of the absolutely awful legislation that would soon pick up steam in Congress.

The RESTRICT Act — the bill purportedly intended to facilitate a TikTok ban — does not stop at TikTok. It gives the executive branch broad discretion, with little to no judicial review, to ban or restrict communications technologies from any country on an open-ended list of “foreign adversar[ies].” It’s incredible that a single elected official would think the bill could pass Constitutional muster but it appears to have significant bipartisan support.

Journalists routinely use TikTok and other foreign-owned technologies to gather and report news and communicate with sources. Sources from “foreign adversaries” often possess highly newsworthy information for foreign policy journalists. The ways the government could abuse the RESTRICT Act to stifle investigative reporting and public discourse during times of conflict are truly horrifying to contemplate.

That doesn’t mean that somehow exempting journalists would fix the bill — far from it. Free speech is not just for journalists. But the bill’s impact on press freedoms serves to compound its trampling on the First Amendment as a whole.

Broad and unchecked censorship authority

It is well-established that the government is required to show a grave, imminent danger to national security before imposing a “prior restraint” on speech. But the bill contains no such requirement. It allows the government to issue explanations for its actions but only if it deems doing so “practicable” and in the interests of national security.

All it requires is a unilateral determination, by non-elected officials, that the technology poses “an undue or unacceptable risk.” What does that mean? Whatever the government wants. The kinds of risks permitting invocation of the RESTRICT Act include, among other things, “steer[ing] policy and regulatory decisions in favor of the strategic objectives of a foreign adversary to the detriment of the national security of the United States.” Then the bill tacks on a catch-all for other risks to national security or the safety of “United States persons.”

The language is broad enough to encompass platforms hosting content that might persuade someone to oppose U.S. policy — or even information that just embarrasses officials. The First Amendment entitles Americans to access even false foreign propaganda if they so choose. But the RESTRICT Act would empower the government to ban, restrict and surveil platforms that host true information they would prefer Americans not know about.

No one in their right mind would ever suggest a similar legislative scheme for banning foreign newspapers, broadcasters or mail. But, for whatever reason, politicians seem unable or unwilling to apply analog precedents to digital times.

Had the RESTRICT Act (and the internet) existed during the Nixon administration, does anyone doubt it would have tried to ban foreign platforms hosting opposition to the Vietnam War, just as it sought to enjoin the Pentagon Papers? Could the government invoke the RESTRICT Act to ban Wikileaks? You might assume the government would never declare Iceland (where Wikileaks is based) an adversary. But the bill also allows restrictions on companies that adversaries “direct” or in which they have “an interest.” Is it that much of a stretch that the government might claim Wikileaks is “directed” by Russia?

Draconian penalties for common newsgathering methods

And what if a journalist, or anyone else, attempts to access a restricted platform through commonplace technologies like a VPN? Under the RESTRICT Act, they could spend 20 years in prison or pay up to a million dollars in fines. That’s especially disturbing to Freedom of the Press Foundation (FPF), where we often assist foreign journalists concerned about VPN restrictions by repressive regimes.

As FPF Principal Researcher Dr. Martin Shelton put it:

“When we conduct security trainings with journalists around the world, far too often we've seen how journalists and the communities around them feel they could be put at risk by using VPNs and other circumvention tools. It's horrifying to contemplate that possibility in the U.S.”

And the bill not only permits imprisonment of VPN users themselves but of people who “aid, abet, counsel, command, induce, procure, permit, or approve” their conduct (or other prohibited conduct). Publishers and editors beware.

Government: “Just trust us”

Sure, the bill’s sponsors, including Sen. Mark Warner, have disclaimed any intention to fine or imprison VPN users. But courts consider the words on the page over legislators’ intentions. The drafters of the Espionage Act could not have anticipated, let alone intended, that it would be used to charge someone like Julian Assange. Yet here we are.

Our current president insists on prosecuting Assange for routine newsgathering. Our last one wants journalists imprisoned and assaulted. The one before set records for whistleblower prosecutions. And a likely 2024 candidate wants to bankrupt his critics with litigation.

But those behind the RESTRICT Act say we should trust future administrations to use broad powers to silence dissent responsibly. Of course we shouldn’t. Especially when even the supposed “responsible” use of the bill — banning a platform used by half of the U.S. based on speculation — is already an unprecedented act of mass censorship.

There is far more wrong with the bill than the censorship powers it creates. Its allowance of secret evidence in legal proceedings raises alarming due process concerns. The surveillance it would enable, including by allowing the government to broadly demand that any company it is investigating hand over information, has led some to call it the “Patriot Act for the digital age.” It’s ironic that concerns about Chinese access to American user data ultimately prompted a bill that would grant our own executive branch surveillance authority reminiscent of China’s.

Yet some still insist the bill can be rescued through revision. It can’t. Nothing good can come of it. We say throw the whole thing out and pass serious digital privacy legislation instead.

The Pentagon Papers case famously established that, even in wartime, the government cannot prohibit speech by claiming a threat to national security. 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.”

Good thing that’s settled. Or so we thought.

Fast forward 50-plus years and officials from both parties, with White House support, want to ban a whole social media platform, TikTok. Around 150 million Americans, including plenty of journalists, use it to communicate. The proposed ban is based largely on speculation that its parent company, ByteDance, will share data with the Chinese government to spy on America and propagandize Americans.

There’s no public evidence that’s actually happening. Regardless, no one can explain how TikTok data in the hands of Chinese spies — as bad as that may be — would create the kind of grave, imminent and otherwise unavoidable threat required to justify upending First Amendment law and allowing for such an unprecedented “prior restraint.” Similarly, the U.S. government has released no proof that the Chinese government has hijacked TikTok’s algorithms to propagandize American citizens or that any such efforts are effective enough to threaten national security. Instead, censorship proponents seem to be advocating to ban the app just in case. That’s fundamentally unAmerican.

Of course, this ban will have a direct impact on journalism. Thousands of journalists and media outlets use TikTok to share news stories. Millions of Americans use it to consume news. And who knows how many sources find reporters through using the app.

But if we accept the arguments for banning TikTok, what might come next? The consequences are even more catastrophic. Bans on foreign news websites that track Americans' clicks and comments? For example, the Guardian must have a gold mine of information on the millions of Americans that read it every day. Now, you’ll probably say: That's absurd! There’s no evidence the Guardian is handing that information over to the U.K. government, and even if it was, we still have the right to read it!

Well, how is that different from TikTok?

Bans on foreign state-owned media based on fears they might propagandize Americans would also become a lot easier. Once TikTok, which isn’t even owned by the Chinese government, is defunct it’s not difficult to imagine political support for banning RT or Al Jazeera. Many U.S. allies have media outlets that operate in the U.S. as well. Is it just up to staying in the good graces of politicians or the White House that decides whether a communications platform can live or be banned in the U.S.? Like it or not, the First Amendment means Americans have the right to receive information they choose, even foreign propaganda.

Once we’ve destroyed all our credibility on the issue, why wouldn’t foreign countries reciprocate by barring American websites, platforms, and media outlets? The U.S. government already criticizes China for banning or censoring U.S. tech companies — as they should. The hypocrisy would become overwhelming.

Banning TikTok shouldn’t even be up for discussion because censoring communications from foreign countries — let alone entire platforms — is plainly unconstitutional. For example, the 1965 case Lamont v. Postmaster General rejected a law delaying delivery of mail containing “communist political propaganda.” The Supreme Court said the law was “at war with the ‘uninhibited, robust, and wide-open’ debate and discussion that are contemplated by the First Amendment.”

It seems doubtful that the law would have fared better if, instead of targeting communist propaganda, the postal service banned all mail from communist nations. Proponents of the TikTok ban cite worries that China will use TikTok for “malign influence campaigns” that are indistinguishable from the concerns that Lamont held could not justify censorship.

In fact, laws authorizing presidents to restrict foreign transactions have exempted publications and communications because Congress recognized the First Amendment required their exclusion. Congress may try to legislate around that exemption to enable a TikTok ban, but it can’t erase the First Amendment — which is what necessitated the exemption in the first place. And courts already rejected the Trump administration’s efforts to ban TikTok and other foreign apps on constitutional grounds. Trump cited the same vague privacy and security concerns being invoked now.

If susceptibility to “malign influence campaigns” is the new American standard for banning communications apps, then every U.S.-owned social media company would face a ban, too.

As Mike Masnick explained in Techdirt, the Supreme Court long ago rejected efforts to shut down, for example, entire book stores and media outlets because they allegedly carried some illegal content. A TikTok ban would cast an even wider net than those unconstitutional censorship campaigns. If there’s proof of illegal conduct on TikTok then Congress should specifically target the illegality — not ban the entire app.

This should be a major section of every news article on this debate, yet many leave it out of the discussion entirely.

Americans who value free speech should urge their representatives to address privacy concerns with stronger privacy laws, not mass censorship.

Twitter CEO Elon Musk made headlines in December when, despite his free speech proclamations, he suspended an account that tracked his private jet using only publicly available information. But what if billionaires who don’t own social media platforms could also conceal their newsworthy flight patterns from the press and public? And what if they could do so on the U.S. taxpayer dime?

Well, turns out they can. The Federal Aviation Administration began publishing flight location data in 1997 but, in 2000, it began scrubbing its data regarding private aircraft upon request from their owners. The owners don’t pay for the service. The Obama administration briefly required private jet owners to submit certifications justifying their requests, but, after pressure from industry groups, Congress reinstated the no-questions-asked policy.

The FAA’s funding is up for reauthorization later this year. Congress should take the opportunity to ensure that the new funding bill leaves these taxpayer-funded secrecy programs in the past. Flight tracking has enabled important investigative reporting for years and climate change means that the overuse of private jets will remain highly newsworthy for the foreseeable future. No other country besides the U.S. similarly restricts access to flight data.

The good news is that, for now, the FAA’s anti-transparency measures are not terribly effective because flight trackers have options besides FAA data. Private jets can also be tracked through wireless signals they transmit (called ADS-B), which can be detected by widely available censors. Communities of hobbyists track and share this data. It’s relatively easy to find online and includes jet owners whose flight information the FAA has scrubbed.

That’s how the owner of the account Musk suspended managed to track his flights. Journalists have since further reported on Musk’s prolific private jet usage — but it’s far from the first time that flight tracking has enabled valuable journalism.

There are websites that allow the press (and anyone else) to track movements of dictators through flight data. Journalists tracked a jet linked to an Israeli “spyware tycoon” to investigate which authoritarian regimes he did business with. The Wall Street Journal recently investigated PGA Tour commissioner Jay Monahan’s alleged personal use of the tour’s plane. There are plenty of other examples involving important news stories, including the Jeffrey Epstein case. People might also want to know which “civilian flights” the government is protecting when it spends millions to shoot down unidentified objects.

The aviation industry and its lobbyists nonetheless continue urging legislators to crack down on access, by both maintaining and expanding current secrecy policies. The Trump administration tried cutting off FAA data to sites that also use ADS-B signals, but some sites responded by opting to exclusively use ADS-B data. Other efforts have also failed to effectively conceal private flights information.

But governments will keep trying — both here and abroad. Saudi Arabia recently called for (PDF) international efforts to block flight tracking via ADS-B data.

Industry groups have argued that the government should protect the privacy of data it collects on private jet flights like it protects medical and tax information. But people need to see doctors and pay taxes. Private jets are optional. The press is entitled to investigate, for example, how much private jet owners pollute the air the rest of us breathe and whether executives of companies Americans work for and invest in divert corporate funds for personal travel.

It’s time for Congress to put an end to the taxpayer-funded secrecy program at home and ensure that the U.S. opposes any international efforts to help billionaires cover their tracks.

Screenshot of journalist Matt Taibbi testifying during Congressional hearings on the "Twitter Files," a set of internal documents on the social media platform now run by Elon Musk.

During last week’s congressional hearings on the Twitter Files, Democratic lawmakers called Matt Taibbi a "so-called journalist" while urging him to identify his sources despite his repeated refusals. Rep. Jim Jordan vocally defended Taibbi’s First Amendment rights, which are not dependent on politicians’ approval of his work. Right-leaning media outlets echoed Jordan’s outrage.

They’re right. Press freedom is not a partisan issue and is not limited to establishment-approved outlets. But currently there is no federal law protecting journalists from being forced to burn sources. Republicans should seize on this moment and quickly move to pass the PRESS Act — a strong federal “shield” bill that came within inches of becoming law last year. Everyone benefits when the press can expose government wrongdoing by working with sources who do not need to fear for their jobs or freedom.

We’ve previously explained why Americans of all political stripes should oppose government surveillance of journalists (including “so-called journalists”). If politicians think a reporter got a story wrong they can use their platform to correct the record rather than retaliating. The disturbing comments at the Twitter Files hearing underscore the urgency of passing the PRESS Act without delay.

Notably, the hearing came days after reports that the Federal Trade Commission demanded Twitter identify journalists to whom it provided information — a tactic that could enable further monitoring of those journalists. And the legislators who unsuccessfully pressured Taibbi to reveal his sources have admitted they want more than just names. They apparently hope to spy on “discussions” with sources to fish for information on some amorphous deal, of which no evidence exists. That should send a shiver down the spines of anti-surveillance conservatives.

The PRESS Act would bar the government from monitoring journalists’ conversations with sources outside national security emergencies. It defines journalists broadly enough to protect both mainstream and independent outlets, regardless of whether their reporting may upset politicians. It’s also unconcerned with whether sources may have political agendas. Virtually all sources do, but Democratic representatives suggested last week that journalists should only accept information from those who pass some kind of purity test. The PRESS Act would ensure politicians can never make those self-serving judgments.

The PRESS Act passed the House unanimously last year. It had bi-partisan support in the Senate, including from co-sponsors Ron Wyden and Mike Lee, but it was, unfortunately, omitted from the year-end omnibus package before the last Congress adjourned.

It will likely be reintroduced this year. Last week’s debacle is far from the first time Democratic officials have targeted conservative journalists but it once again underscores why Republicans should make passing the act a top priority.

Conservative support of shield legislation is nothing new. In addition to Jordan, Republicans from Lindsey Graham to Mike Pence to Bob Goodlatte have urged Congress to protect journalists and their sources from government snooping. With Jordan serving as House judiciary chair and Graham as the ranking Republican on the Senate committee, the PRESS Act should stand a strong chance of advancing. Senate Judiciary Chair Dick Durbin also supports the act.

Republicans will have to overcome resistance from a minority in Congress who are under the false impression that a shield law would favor the “liberal media.” But last week’s events should dispose of that argument.

Now’s the time to make the PRESS Act the law of the land and protect “so-called journalists” from government overreach for good. And last week's hearing can serve as "Exhibit A" in making the case for the act to any skeptical conservatives.

U.S./Mexico border

Laws that don’t directly target the press often pose hidden threats to First Amendment freedoms. That’s why Freedom of the Press Foundation (FPF) and a group of press freedom organizations filed a brief urging the Supreme Court to confirm the unconstitutionality of a law prohibiting “encouraging” or “inducing” unlawful immigration.

The case is called United States v. Hansen. It did not involve a journalist — the defendant ran an adoption agency accused of promising people citizenship to lure them across the border. But the law’s prohibitions are so broad they could enable prosecution of everyone from editorialists calling for more permissive immigration policies to investigative journalists exposing lapses in border security. It’s blatantly unconstitutional and has already been abused to monitor and interrogate journalists reporting on the 2018 “caravan” of migrants to the U.S.

That’s bad enough, but a ruling for the government in the Hansen case could also have serious repercussions for journalism outside the immigration context. For one, it could open the door to prosecutions of journalists for publishing truthful, newsworthy reporting.

If a news report can be deemed illegal for giving migrants ideas on how to cross the border, why can’t the same reasoning apply to, say, criticism of police departments that exposes incompetences that criminals might exploit? What about reporting of abuses that might lead protesters to trespass on government property, or stay out past curfews?

Sure, any convictions would likely be struck down as unconstitutional. The Supreme Court has repeatedly held that “state action to punish the publication of truthful information seldom can satisfy constitutional standards” absent a need “of the highest order,” although the court has declined to categorically pronounce that true reporting can never be punished.

But that doesn’t mean prosecutors won’t try. The mere prospect of arrest would surely encourage self-censorship. And that’s not the only risk.

A bad decision in Henson could also facilitate prosecution of routine newsgathering, including under the Espionage Act, by setting a precedent at the Supreme Court level that journalists may be prosecuted for the actions of others.

The 2001 Supreme Court case Bartnicki v. Vopper made clear that journalists cannot be punished for publishing records their sources obtained unlawfully, even when journalists have reason to know how their sources got the information. But at least one federal appellate circuit has held that, despite Bartnicki, journalists may be prosecuted when the law makes mere “obtainment” of the documents a crime in and of itself.

A ruling for the government in Hansen could allow prosecutors to further circumvent Bartnicki by charging journalists for “encouraging” sources to break the law (for example, by illegally recording conversations or leaking documents). Journalistic practices as common as asking government employees for information, or providing a means to transmit leaked records confidentiality, could theoretically suffice for an indictment.

It’s a boundary the government is already testing in its Espionage Act prosecution of Julian Assange, under the theory that he broke the law by receiving and publishing stolen documents that he did not himself steal. A ruling for the government in Hansen could embolden prosecutors to continue their pursuit of Assange and bring similar charges elsewhere.

Argument in the case is scheduled for March 27. Anyone interested in press freedom should pay close attention given what’s at stake. Any ruling striking down the law would be a win for the press, but an opinion that makes clear that Congress cannot legislate around the Bartnicki rule could be a game changer. It could cement Constitutional protections for common journalistic practices and rebuke prosecutors’ constant efforts to criminalize them.

The brief was written by Professor Penny Venetis, Director of the International Human Rights Clinic at Rutgers Law School, and her students.

Florida Gov. Ron DeSantis

Florida lawmakers have introduced legislation, with vocal support from Gov. Ron DeSantis, to make it easier for public figures to sue detractors for defamation. DeSantis, likely eyeing the presidential primaries, frames the proposal as an effort to fight back against misinformation from large left-leaning media conglomerates.

But disciplined conservatives thinking beyond 2024 should understand that expanding defamation liability would silence important voices across the political spectrum. It would cause the most harm not to mainstream media outlets that can afford lawyers but to independent news outlets and opinionated individuals, including conservatives, who cannot.

Here’s why conservatives should oppose every provision of the Florida legislation, including both the House version and the slightly scaled back, but still highly dangerous, Senate version.

The actual malice standard protects everyone. DeSantis casts the mainstream media as wilfully misleading the public, but victims of intentional defamation are, and always have been, free to sue. The protections DeSantis opposes only apply to accidental defamation, and only when the victim is a public figure.

Those who investigate the powerful are sure to make mistakes on occasion. It’s inevitable, especially when government officials do everything they can to limit access to official records and obscure the truth. Without some breathing room for errors, people would be so scared of being sued for criticizing deep-pocketed elites that they would censor themselves into silence.

That’s why, in the 1964 case New York Times Co. v. Sullivan, the Supreme Court unanimously endorsed the “actual malice” standard requiring public figures to prove their detractors not only erred but either knew their statements were false or recklessly disregarded the truth. In other words, intentional errors remain actionable, but honest mistakes are not.

The actual malice defense helps conservative media as much as anyone. Fox News is relying on the actual malice standard in court right now. It’s not the first time. Donald Trump Jr. and Rudy Giuliani used it to defeat defamation claims by Trump impeachment whistleblower Lt. Col. Alexander Vindman. Conservative commentators have cited the actual malice standard in response to alleged litigation threats by Hunter Biden over reporting on his laptop.

It also protects independent and alternative outlets, bloggers, political and religious radio hosts, YouTubers, pro-life activists and many others whose perspectives conservatives value. And its reach extends beyond partisan politics. For example, it’s the only thing stopping Brett Favre from weaponizing the courts to silence discussion of welfare fraud allegations against him.

Anonymous sources are crucial tools for conservative journalists. Both versions of the bill penalize journalists for relying on the kinds of anonymous sources that have brought down presidents in this country.

Journalists would love to quote their sources by name, but those with the most newsworthy information to share often have the most to lose by sharing it. And they have reason to be concerned — Democratic administrations, like Republican ones, have often overreached to learn the sources of damaging stories.

Right-leaning journalists rely as heavily on confidential sources as anyone. And conservative originalists might note that the Federalist Papers were written under a pseudonym.

Anonymous sourcing is merely a symptom of a lack of transparency. Conservatives bothered by anonymous sourcing should urge their government to make more records public and speak openly with the press so that journalists don’t need to rely on back channels. They should also insist on strong whistleblower protections and media relations policies that empower government employees to speak in their own names without fearing retribution.

Attorney’s fee awards would kill alternative media. The House bill’s provision that defamation plaintiffs could recover their attorney’s fees is an abdication of conservative principles. The party of tort reform should not be legislating gifts to plaintiffs’ lawyers.

In fact, Florida’s legislature is considering a tort reform bill intended to end a “cottage industry of litigation” while simultaneously seeking to become a destination for libel tourism.

There is no basis to single out defamation as an exception to the centuries-old "American rule" that litigants pay their own costs (as opposed to the “English rule,” favored by DeSantis, that the loser pays). Doing so would be fatal to free speech by independent outlets and individuals that can’t afford their own lawyers, let alone someone else’s. One error could silence them for good.

Even outlets that are never successfully sued for defamation could see their insurance premiums skyrocket due to the mere possibility. Non-journalists holding home and business insurance policies that cover defamation may well see their costs spike as well.

The bills would help elites cover up sex scandals. Both versions of the bill make it easier for public figures to sue for defamation if “the allegation does not relate to the reason for [their] public status.” Well, Bill Clinton did not become a public figure by having affairs with interns.

Should he have been able to sue his accusers for defamation (or intimidate them into silence) if their recollections were not 100% accurate? Should he have been able to bankrupt journalists who investigated him if their sources got some details wrong?

Similarly, Joe Biden did not become a public figure through his son’s foreign entanglements or the contents of his laptop. Presumably, conservatives would not want to stifle investigations into those matters either. But the Florida bills would do just that, blocking journalists and ordinary citizens alike from finding the skeletons in the closets of the wealthy and powerful.

Singling out discrimination will come back to bite conservatives. The House bill singles out allegations of discrimination based on race, sex, sexual orientation and gender identity, limiting available defenses to defamation suits and providing for additional damages.

That may appeal to some “culture wars” voters but it’s short-sighted and will end up punishing conservatives who, like DeSantis himself, oppose reverse racism and woke-ism. Authors whose works DeSantis has sought to keep out of schools because of content he characterized as racist might want to consult their lawyers if DeSantis’ proposals become law.

Plus, if DeSantis can carve out categories of speech he disfavors for special treatment, what’s to stop future Democratic governors or presidents from doing the same for, say, criticism of abortion providers? Instead of the government placing its thumb on the scale, the law should provide a level playing field for all litigants.

Anti-SLAPP laws protect everyone. Both bills, but especially the House one, would needlessly weaken Florida’s anti-SLAPP (Strategic Lawsuits Against Public Participation) law.

A majority of states, red and blue, have passed similar anti-SLAPP laws because it’s imperative that defendants of all political stripes can fight back against retaliatory litigation intended to silence them. For example, a defamation lawsuit against conservative commentator Candace Owens was recently dismissed, and she was awarded $115,000 in attorney fees and costs, under Tennessee’s anti-SLAPP law.

Utah, a red state by any definition, expanded its anti-SLAPP law earlier this month. Florida expanded its own anti-SLAPP law in 2015, declaring that “It is the intent of the Legislature to protect the right in Florida to exercise the rights of free speech in connection with public issues.”

There’s no reason that conservatives in Florida should be deprived of the protections against meritless defamation claims available elsewhere.

Reporter’s privileges counter surveillance and overreach. Both bills would restrict journalists accused of defamation from relying on the reporter’s privilege to keep their sources confidential. The Senate bill extends beyond defamation to “related” claims.

That means any public figure wanting to learn who is exposing their malfeasance can circumvent the privilege by filing a defamation action, especially if DeSantis succeeds in neutering the defenses that enable early dismissal of baseless claims.

Government insiders need to be able to speak to journalists confidentially without fearing for their careers and safety if they’re unmasked. That’s why 49 states, both red and blue, as well as several federal circuits, recognize reporter’s privileges.

Conservatives should reject ‘Europeanizing’ American law. America has long distinguished itself from Europe and elsewhere by taking pride in its protections for speech and press freedoms and its understanding that the fear of litigation promotes self-censorship.

That’s why Congress passed the bipartisan SPEECH (Securing the Protection of our Enduring & Established Constitutional Heritage) Act in 2010. It protects Americans from defamation judgments in jurisdictions that do not recognize the same safeguards as American courts, including the actual malice standard.

That means that if a foreign country passed either version of the Florida bill, U.S. courts could not enforce that country’s defamation judgments because Congress bipartisanly recognized that anything else would be unAmerican.

The Florida bill represents an abandonment of fundamental principles held dear not only by conservatives but by all Americans. Conservatives who are intentionally defamed by the media already have adequate recourse. Repeating Europe’s mistakes by expanding defamation liability for well-intended critics of government would be a gift to wealthy and powerful elites.

Twitter CEO Elon Musk

FOR IMMEDIATE RELEASE: We were disturbed by the revelation that the Federal Trade Commission, as part of its investigation into Twitter’s privacy and data practices, demanded Twitter identify all journalists granted access to company records, including in connection with the release of the “Twitter Files.”

Government-compelled identification of journalists is dangerous on its own and enables further surveillance of those identified. Administrations from both political parties have overreached to spy on journalists — especially journalists investigating those in power. The Department of Justice has adopted policies against surveilling journalists, but other agencies like the FTC have not. Congress should pass the PRESS Act and prohibit all presidential administrations, and all government agencies, from abusing their power to spy on journalists.

A statement from Freedom of the Press Foundation (FPF) advocacy director Seth Stern is below:

Anyone who cares about the free press should be concerned by the FTC’s demand that Twitter identify journalists who have received information that might embarrass the administration, regardless of what they think of Elon Musk or Twitter. The FTC should not have to violate the privacy of journalists to protect the privacy of Twitter users.

It’s especially disturbing that the demand could enable future efforts to obtain the journalists’ newsgathering materials. The Biden FTC’s actions add to the long list of reasons why conservatives, and all Americans, should support passing the PRESS Act. It’s the only way to ensure that all administrations, and all government agencies, are prohibited from surveilling or retaliating against journalists.

FOR IMMEDIATE RELEASE: An Asheville, North Carolina, police officer is shown suggesting his colleagues arrest journalists “because they’re videotaping” in new body camera footage of a homeless encampment sweep.

Police then arrested Asheville Blade journalists Matilda Bliss and Veronica Coit. They’re scheduled for trial on April 19 on trespassing charges because they documented the sweep from a public park shortly after its 10 p.m. closing time on Dec. 25, 2021.

Freedom of the Press Foundation (FPF) Advocacy Director Seth Stern said the footage, released on Feb. 27, “proves the reporters were singled out for doing their jobs. Police chose to round up journalists before conducting the sweep to stop them from recording. Targeting journalists is a clear violation of the First Amendment.”

Asheville released the footage following a court petition filed by FPF, the ACLU of North Carolina and the Committee to Protect Journalists. North Carolina law requires a judge to authorize the public release of body camera footage.

“Asheville cultivates a progressive image but the actions depicted in this footage tell another story,” Stern said. “There are few practices less progressive than prosecuting journalists. It’s common in authoritarian regimes but rare in the United States. It’s bad enough when rogue officers arrest journalists but the ongoing prosecution means the mayor, city council and District Attorney all endorse these unconstitutional arrests.”

According to the U.S. Press Freedom Tracker, Bliss and Coit’s trial will be only the fourth trial of journalists for offenses allegedly committed while gathering and reporting news since 2018. Arrests of journalists are also rare but in most instances authorities don’t proceed to trial. Authorities in Ohio dropped charges after Evan Lambert of NewsNation was arrested at a press conference earlier this month. In January, the mayor of Phoenix personally apologized for the detainment of Wall Street Journal reporter Dion Rabouin.

The footage, Stern said, confirms the journalists recorded the sweep from a distance and did not obstruct police. They’re not charged with any offense except trespassing.

Although the city has maintained that it’s Constitutionally permissible to prosecute journalists under “generally applicable laws,” the United States Court of Appeals for the Fourth Circuit held last week that a “state may not harness generally applicable laws to abridge speech without first ensuring the First Amendment would allow it.” The Court therefore barred North Carolina from enforcing a trespassing law to restrict newsgathering.

And even if the Constitution did permit prosecution of journalists, that doesn’t mean it’s a wise use of taxpayer funds. “These journalists did not cause any harm to anyone. They were just doing their jobs. The district attorney should prosecute real crimes, not journalism,” Stern said.

“Taking the City's position to its logical extension, if police had opened fire on the encampment sweep after the park closed, would the Buncombe County district attorney still prosecute journalists for documenting it? There’s no asterisk after the First Amendment that says it only applies during daylight hours,” he added.

Florida Gov. Ron DeSantis

FOR IMMEDIATE RELEASE: A Florida representative filed legislation today aimed at scaling back protections against public figures weaponizing the courts against their critics.

The bill echoes talking points discussed by Gov. Ron DeSantis and his guests during a roundtable discussion on defamation law earlier this month. Freedom of the Press Foundation (FPF) responded to that anti-press display in the Tampa Bay Times last week.

The bill would help powerful litigants evade the protections established by the landmark 1964 Supreme Court case New York Times Co. v. Sullivan which, along with subsequent cases, required public figures to prove “actual malice” in suits for defamation. It would stifle investigative reporting by presuming statements attributed to anonymous sources to be false.

It would also allow prevailing defamation plaintiffs to recover their attorneys’ fees, a rare exception to the “American rule” that litigants bear their own costs. The bill resembles a proposal DeSantis’ office considered, but ultimately did not introduce, last year.

A statement by Seth Stern, director of advocacy for Freedom of the Press Foundation (FPF) and a First Amendment lawyer, is below:

Gov. DeSantis continues to make clear his disdain for freedom of speech and the press and to prioritize censoring dissent over governing. This bill would do nothing for ordinary Floridians but would allow government officials and celebrities to harass and even bankrupt their critics with expensive litigation. It would stifle investigative reporting by presuming any statements attributed to anonymous sources to be false despite that (or, given DeSantis’ ambitions, maybe because) confidential sources have literally brought down presidents in this country.

The Florida legislature should reject this political stunt and Floridians should not tolerate their governor’s experiments in authoritarianism in their name and at their expense. The U.S. Congress should safeguard the First Amendment by codifying Sullivan and ensuring that the press and public are protected from politically-motivated defamation lawsuits.

Florida Gov. Ron DeSantis

Last week, Florida Gov. Ron DeSantis hosted a roundtable discussion to brainstorm on how politicians and celebrities can weaponize the courts against their critics. We responded to his stunt in an op-ed in the Tampa Bay Times.

But playing defense on newspaper pages is not enough — a legislative response is needed. Fortunately, a recent article in the Federal Communications Law Journal (PDF) proposed just that.

Authors Matthew Schafer and Jeff Kosseff explain that DeSantis is not the only one threatening established press freedoms. Supreme Court justices, including Clarence Thomas and Neil Gorsuch, have floated revisiting New York Times v. Sullivan – the seminal 1964 case requiring public figures to establish “actual malice” to sue for defamation. That means proving that defendants either knew their statements were false or recklessly disregarded the truth.

As explained in our op-ed, the actual malice rule prevents the rich and powerful from nitpicking at every hyperbolic statement and inconsequential error to punish their critics with expensive litigation. Without it, the prospect of having to prove the truth of every detail of a news story to a jury would deter already cash-strapped publishers — not to mention independent journalists who can’t afford lawyers — from challenging those in power with adversarial reporting.

Should DeSantis propose a Florida law to circumvent Sullivan (as he has considered before), it will likely end up before a Supreme Court with at least two sympathetic justices — maybe more.

Schafer and Kosseff explained in Slate that if Sullivan is overruled, defamation law would be left up to the states, similar to abortion laws without Roe v. Wade. “Some states may well be exceedingly protective of free speech/free press rights. But others might use the overruling of Sullivan to impose draconian measures meant to control political debate,” they wrote. And the state officials most interested in suppressing investigative reporting will likely be the same ones who most need to be investigated.

That’s why a legislative solution at the federal level is so crucial. Some who oppose Sullivan, like DeSantis and Donald Trump, do so for self-serving reasons — as part of ongoing crusades to stifle dissent. They’re not persuadable. But other critics have little problem with the substance of the actual malice rule. They just believe it should come from Congress and not the courts. That provides hope for bipartisan support for codification.

Like Sullivan, the legislation proposed by Schafer and Kosseff “would discourage baseless defamation actions altogether while leaving the courts open to plaintiffs with valid claims.” In addition to codifying the actual malice standard, it would make permanent the Supreme Court’s prohibition on liability for statements of opinion. That limitation is crucial to, among other things, creating adequate breathing room for heated campaign rhetoric.

As important as it is to codify current protections, recent history shows they are not enough. There has been a spike in politically-motivated defamation suits by powerful public figures, notwithstanding Sullivan, over the last few years. Billionaires with axes to grind against the press, but no viable claims of their own, have taken to funding surrogate plaintiffs to sue in their place, often without having to disclose who is pulling the strings. Politicians have even tried planting lawsuits by non-public figures so they can evade the actual malice requirement.

Schafer and Kosseff’s proposal would help prevent those abuses by imposing limitations on damages so that legitimate defamation plaintiffs can be compensated for actual harm they suffered but cannot shut down media outlets with punitive jury awards.

DeSantis and his ilk aside, there is reason for optimism that elected officials in this country still understand the need to restrict anti-press litigation. Most states now have laws against Strategic Lawsuits Against Public Participation (SLAPPs) that allow victims of frivolous defamation cases to promptly appeal adverse rulings and recover their attorneys fees.

Those anti-SLAPP laws have passed both Democratic and Republican legislatures. Like Sullivan, they recognize that many powerful defamation plaintiffs don’t care if they win — their entire objective is to punish those who criticize the government with litigation costs.

Congress also came within inches in December of passing the bipartisan PRESS Act — which would have ended abuse of the court system to surveil journalists and compel them to burn their sources. Efforts are underway to finally make it the law this year.

Perhaps 2023 could mark the end of both government surveillance of journalists and retaliatory defamation claims by public officials. That would make it one of the most significant years for First Amendment freedoms in the nation’s history. But either would be a good start in sending a clear message that the free press is not dependent on the whims of thin-skinned politicians.

Latah County Courthouse, Moscow, Idaho

Judicial gag orders are often unconstitutional even when they’re carefully crafted. But when they’re not, they can create widespread confusion and wreak havoc on the free press.

An order entered in the Idaho murder trial of Bryan Kohberger is the latest example. The embarrassingly incoherent document purports to bind everyone from “law enforcement personal (sic)” to attorneys for victims’ families and “any interested party in this case.”

Worse yet, Judge Megan Marshall used “including, but not limited to” language to introduce the list of those supposedly gagged, leaving anyone not expressly mentioned to wonder if they are also silently censored and at risk of being held in contempt of court.

For example, the mayor of Moscow, Idaho, reportedly told journalists he can’t comment on the effects of the murders on the community due to the order. The police department issued a press release that it will no longer discuss the case with the media or public. A victim’s relatives and their attorneys had to file a motion asserting their otherwise obvious right to speak for themselves. A local 911 service requested clarification on whether it can comply with open records laws and release tapes requested by the press without running afoul of the gag order. Other agencies denied records requests outright, citing the order.

Over two dozen media outlets have challenged the order because it “restrained [their] rights to gather and publish information about this newsworthy matter” by prohibiting potential sources from making any statements except direct quotes from the public court record.

Judges, of course, are not dictators, or even legislators. They have no authority to issue orders directed to the public at large, or, for that matter to miscellaneous attorneys and government employees with an “interest” in their cases. And they certainly have no business overriding open records laws from the bench.

Their power extends only to the parties and attorneys appearing before them in their courtroom, and even then they are subject to Constitutional limitations and required to specifically explain the necessity for any gag order. Marshall only vaguely alluded to “preserv[ing] the right to a fair trial,” but the Supreme Court has repeatedly cited studies confirming jurors’ ability to set aside pretrial publicity. It has also explained that there are plenty other ways to avoid juror bias without censorship, like sequestering the jury or changing the trial location.

In theory, those whom Marshall unconstitutionally gagged should just ignore her order. She has no legitimate means of enforcing it. But if a judge has gone far enough off the rails to issue a flagrantly unconstitutional order, who is to say they might not dispatch compliant law enforcement officers to carry out their unlawful edicts? It wouldn’t be the first time.

And officials who must know they won’t be arrested for defying the order, like the mayor, now have a handy excuse to avoid the press.

It’s great that media outlets and others are challenging the gag order. There is a good chance they’ll ultimately succeed. But the press can’t make up for lost time — important stories will go untold and valuable perspectives will be permanently suppressed.

That’s why judges need training so this doesn’t happen in the first place. And state bar associations and other power brokers need to stop endorsing judges like Marshall who either don’t understand or hold outright contempt for the First Amendment.

Chief Justice John Roberts, like Justice Clarence Thomas, faces questions about potential conflicts of interest arising from his spouse's work. A new federal law makes it harder for journalists to report on similar ethical concerns in the lower courts.

Government is often criticized for failing to offer creative solutions. Not so when it comes to circumventing freedom of information laws to hide official records from the public.

Government agencies abusing exceptions to open records laws is nothing new. But several recent developments illustrate how those in power are feeling increasingly emboldened to enact arbitrary rules declaring themselves exempt from transparency obligations in the first place.

This disturbing trend seems to be surfacing at all levels of government — state and federal, from the legislative branch to the judiciary to the military.

Legislatures and courts need to be prepared to address workaround tactics by those seeking to defy both the letter and the spirit of open records laws. Otherwise, hard-fought protections of the public’s right to know will continue to erode until they are rendered meaningless.

Missing meetings in Missouri: A Missouri judge acknowledged that “the Sunshine Law requires access to those public records which are not closed, i.e., open records.” Sounds good so far. But the judge went on to reason that officials can avoid the Sunshine Law by just not opening the records in the first place.

A 2018 amendment to the state constitution had clarified that the legislature was subject to open records laws (apparently some legislators previously had the nerve to claim otherwise). The following year, the Missouri House enacted a rule allowing itself to keep records, including those that contain “caucus strategy,” out of public view. The court upheld the move as within the House’s rulemaking authority, ignoring not only the constitutional amendment but the policies and public interests behind the Sunshine Law.

Document destruction in the desert: Arizona’s legislature went a step further. It exempted itself from the state’s open records laws altogether and granted legislators permission to destroy their emails. The House even empowered itself to delete texts and social media posts.

The Republican-led legislature cited “privacy” concerns. But open records laws reflect a consensus that government officials should not enjoy privacy when conducting official business. Critics noted that, had the rule changes been in place in 2020, they would have prevented investigation into the purported “audit” of Maricopa County intended to overturn the 2020 presidential election.

Frankly, there is no reason the Arizona legislature would have gone down this path unless it had something to hide. Hopefully the state’s investigative journalists can figure out what, despite their reduced access.

Pentagon privacy: The military is employing similarly dubious tactics to avoid a 2016 law requiring prompt access to court records “at all stages of the military justice system ... including pretrial, trial, post-trial, and appellate processes.”

The Pentagon, according to new guidelines, somehow took that to mean it could provide limited access only after the fact once a case has concluded (or, when cases end in acquittals, not at all). Transparency, however, is most vital during the trial and pretrial stage, before the damage has been done. And when defendants are acquitted, the press should be able to question what went wrong for prosecutors or why charges were brought in the first place.

The guidelines are irreconcilable with the law, which requires the military justice system employ, “insofar as practicable, the best practices of Federal and State courts.” No one would tolerate federal courts sealing their records until a verdict is handed down. A court martial should be no different. In fact, public access is even more vital in the absence of a civilian jury.

Covert courts: We wrote last month about the unconstitutional Judicial Security and Privacy Act which empowered judges to scrub public records and private websites of information about, for example, where their spouses work. We noted that the law creates “a backdoor Freedom of Information Act exemption outside FOIA’s appeal processes” and explained why its purported exception for matters of public concern is essentially useless.

Congress passed the act despite ongoing controversy regarding Ginni Thomas’ political activity and the potential conflicts it creates for her husband, Supreme Court Justice Clarence Thomas. This week, Jane Sullivan Roberts, wife of Chief Justice John Roberts, made headlines due to her legal recruiting for law firms that have business before the court. That means over 20% of Supreme Court justices face potential conflicts of interest due to their spouses’ employment. Journalists, fortunately, have managed to report those high profile instances despite the new law. But are we to believe that similar conflicts do not exist among district judges who, despite their lower public stature, have the power to sentence people to incarceration and even death?

Free Press fights fees: When government agencies cannot escape open records laws altogether they often turn to stall tactics or price gouging. The Nebraska Department of Environment and Energy attempted to charge the Flatwater Free Press $44,000 to produce requested records related to nitrates in the water supply.

Fortunately, the Free Press is suing. Its attorney noted that the NDEE is seeking to charge not just copying costs for records actually produced but for time spent deliberating whether to produce records at all. In other words, if the NDEE gets its way, the Free Press will have to pay for the time NDEE staff spent finding excuses not to comply with requests.

Two tiers in Texas: The Texas Senate made permanent COVID restrictions that barred reporters from the chamber floor and required them to instead observe proceedings from upstairs. It’s safe to assume the motivation was not public safety. At the federal level, Speaker Kevin McCarthy has so far ignored calls to allow C-SPAN to control its own cameras as it did during the negotiations over the speakership. This includes appeals from C-SPAN itself, Freedom of the Press Foundation (FPF) and numerous others, including several representatives.

Neither the Texas Senate nor the U.S. House cite any policy justification for reduced access. Texas allowed reporters on the floor until the pandemic and, to the best of our knowledge, nothing terrible happened. C-SPAN proved itself fully capable of operating its own cameras without causing any disruption (although some politicians may have been embarrassed).

It goes to show that, unless they foresee political consequences, government officials will almost always default to secrecy. That’s why merely having transparency laws on the books is not enough. Public pressure — and, often, litigation — is necessary to ensure that the laws survive constant and creative attempts to undermine their intent.

Sen. Lindsey Graham is one of many Republicans who have supported shield bills in the past.

The bipartisan PRESS Act is the strongest federal shield bill we’ve ever seen and would combat government overreach by ending surveillance of journalists except in national security emergencies. While the PRESS Act was introduced by a Democrat, Sen. Ron Wyden, it is by no means partisan legislation.

Even before Sen. Mike Lee co-sponsored the PRESS Act with Wyden, Republican former House Judiciary Chair Bob Goodlatte wrote in support of the bill. Conservatives, from Lindsey Graham to Mike Pence to Jim Jordan, have a long history of supporting similar “shield” legislation prohibiting newsroom surveillance by any administration. Forty-nine states, red and blue, protect reporters against government snooping, leaving the federal government — which has surveillance capabilities far superior to local authorities — as the outlier.

Here are just a few reasons why Republicans should prioritize passing the PRESS Act.

Conservative media is often the target of government surveillance

When the Obama administration wanted to uncover a source of then-Fox News journalist James Rosen in 2013, it secretly spied on him and read his emails.

At the time, Fox News and Rosen had no legal recourse when the government baselessly characterized Rosen as a criminal co-conspirator for doing his job — gathering and reporting the news.

Had the PRESS Act been in effect, Rosen would have received notice and a hearing before any warrant or legal order could be issued. And at that hearing, the government would have needed to prove that disclosure of Rosen’s records was necessary to prevent terrorism or imminent violence. It, of course, would never have met that burden, given it was investigating already 4-year-old reporting.

More recently, Yanping Chen, a Chinese-American scientist who is suing the FBI in federal court, has tried to compel Fox News and its former reporter Catherine Herridge to reveal their confidential sources. At a hearing on Chen’s demand in May 2023, the judge 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.” The judge also reportedly questioned if the threats to the First Amendment posed by Chen’s demand were “overstated.”

The PRESS Act would eliminate any question about whether Fox News and Herridge can be required to out their sources.

The PRESS Act protects all journalists – regardless of politics

The bill is broad enough to protect both mainstream and independent outlets, regardless of political leanings, so that no administration, present or future, can circumvent the law to retaliate against adversarial journalists.

Here’s how it defines a journalist: “a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, investigates, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.”

Simple as that. There are no loopholes, caveats or ambiguities that could conceivably allow the current administration, or a future one, to play favorites.

Many conservatives were outraged when, during Congressional hearings on the Twitter Files, Democratic representatives called Matt Taibbi a "so-called journalist" and urged him to reveal whether Elon Musk was his source. Jordan objected, citing Taibbi's First Amendment rights, but could not cite a shield law because, despite his past efforts, there is none. The PRESS Act would protect Taibbi from being compelled to disclose sources regardless of Democrats' opinions on his journalism.

The PRESS Act would help independent and alternative media thrive

The PRESS Act is neutral not only on the political leanings of the journalists it protects but on the size and reach of media outlets. Critics of the mainstream media should embrace the PRESS Act because it gives upstarts, who do not have armies of lawyers to fight subpoenas, room to grow unimpeded by official harassment.

The PRESS Act would protect, for example, Project Veritas — which claimed it was improperly surveilled after an FBI raid in 2021 — to the same extent as it would protect The New York Times, as long as they are all engaged in legal journalistic practices.

That’s because the act does not limit its reach based on who the journalist is or any official credentials they may or may not have — it instead focuses entirely on the act of newsgathering.

The PRESS Act is strong anti-surveillance legislation

Constitutional originalists should appreciate that the PRESS Act not only strengthens the First Amendment but the Fourth. Unlike many past shield bills, its protections against government overreach extend not only to journalists themselves but to their phone, email and other technology providers.

New technologies mean new ways to spy on citizens. The PRESS Act recognizes this by ensuring its protections cannot be evaded by targeting tech companies instead of newsrooms.

The PRESS Act recognizes national security concerns

A free and aggressive press benefits all aspects of government, including national security. That being said, the PRESS Act recognizes law enforcement concerns through exemptions when information in a journalist’s possession is necessary to prevent terrorism or imminent violence.

It then establishes common sense procedures to ensure that the exemption is not abused.

Most harassment of journalists isn’t political

Incidents that affect presidential politics tend to get the most attention. But most of the abuses the PRESS Act would curtail occur off the national stage. Journalist Joshua Miller broke the story of a father buying a coach’s home at a premium to get his son into Harvard, handing prosecutors the case on a silver platter. He was rewarded with a subpoena in October 2022 and ultimately forced to testify.

Music critic Jim DeRogatis received death threats and a bullet through his porch window after exposing musician R. Kelly’s abuse of underage women but he was forced to risk his safety to contest a subpoena at Kelly’s federal trial in Chicago in 2022.

Americans can all agree that the law should encourage — not impair — reporting of misconduct by elite universities and sex crimes by celebrities. That has nothing to do with politics.

The bottom line

The PRESS Act will vastly improve the quality of journalism — all journalism — and ensure citizens of all political stripes have access to the information they need to be informed participants in our democracy. It will protect journalists and their sources from government abuse — no matter the party in the White House.

We’ve allowed our journalists to operate too long without any legal guarantee that they won’t be spied on by the government and without the ability to assure potential sources that they won’t be unmasked in court. That’s not a tolerable status quo in a country that values free speech.

Everyone who believes in the First Amendment should contact their representatives today and let them know that protecting journalists from government overreach is absolutely vital and cannot wait.

This article was originally published on Dec. 14, 2022 and has been updated to account for current events. You can find the original version here.

Las Vegas Review-Journal journalist Jeff German was murdered last year, allegedly in retaliation for his investigative reporting.

News sources sometimes outlive the journalists they work with. That seems obvious enough. So why should a journalist’s death have any impact on the confidentiality of source identities and newsgathering materials?

It shouldn’t. But this week a Nevada judge questioned whether the Las Vegas Review-Journal could claim the reporter’s privilege after its investigative reporter, Jeff German, was murdered. Detectives in the homicide case want to search his devices. The suspect, a former county official, allegedly targeted German due to his reporting.

German was 69 years old when he died. Of course his sources could not have anticipated he’d be murdered for his work, but no one in their right mind would pass along a confidential news tip to a journalist pushing 70 if they believed confidentiality lasted only as long as the journalist.

Prosecutors have argued that Sixth Amendment fair trial rights trump First Amendment interests. The Supreme Court has made its disagreement with that premise clear but, in this case, it’s a red herring. The Review-Journal’s lawyer said the paper might ultimately agree to a targeted search — it just wants a seat at the table to ensure that sources aren’t outed. The paper requested that a “special master,” as opposed to homicide detectives, conduct the search to minimize those concerns.

The judge indicated she believed detectives should be allowed to conduct the search. She opined that a “protective order” restricting disclosure should suffice to protect German's sources. That would’ve been news to the sources, who may have included the detectives’ coworkers for all we know. They entrusted a reputable journalist and newspaper — not government officials — to safeguard their identities.

And trusting detectives to handle source communications sensitively seems particularly ill-advised when they can’t even get their story straight over whether they’ve already illegally searched German’s phone.

The predicament relates back to a fundamental misunderstanding of the reporter’s privilege. The primary purpose is to empower sources to communicate with journalists without fear that the government or the public will learn who they are or what they said in court proceedings.

For the privilege to be effective, anyone with an interest in preserving source confidentiality should be able to invoke its protections. That may include the journalist, the media outlet, communications providers or the source themselves (through John Doe proceedings).

A reporter’s privilege that only extends to reporters functions merely as a means of getting journalists out of inconvenient court dates and depositions. That’s important in its own right — journalists don't work for prosecutors and have better things to do with their time — but it’s not nearly as crucial as protecting confidential sources from losing their jobs or freedom.

The same problem has surfaced in Buffalo, New York, although in a far less morbid context. A federal judge allowed Starbucks broad discovery into labor organizers’ communications with the media to try to prove that organizers used the press to generate controversy regarding their working conditions (it’s unclear what would be wrong with that). He rejected the organizers’ opposition to the subpoena in September and declined to reconsider his ruling earlier this week.

The reporter’s privilege was hardly discussed (if at all) because the subpoenas were directed at the organizers and not the media. But the outcome is the same — potential retribution against Starbucks employees who sought to inform journalists of wrongdoing.

Media companies and their lawyers need to forcefully advocate for an expansive reporter’s privilege and state legislatures need to make sure privilege laws anticipate and prohibit workarounds. And Congress needs to pass the PRESS Act, which innovates by protecting against subpoenas not only to journalists but their email and phone providers.

Note: A prior version of this article stated that the Las Vegas judge ruled that a protective order would suffice to protect German's sources. Although the judge indicated a belief that a protective order would suffice, she did not actually rule on the issue, which is pending before the Nevada Supreme Court.

Two Asheville journalists arrested while covering an eviction of a homeless encampment are set to stand trial on Jan. 25.

FOR IMMEDIATE RELEASE: Two Asheville, North Carolina journalists are scheduled to go on trial on Jan. 25 for documenting a controversial Christmas night eviction of a homeless encampment. The public still has not seen body camera footage of their arrests.

That’s why Freedom of the Press Foundation partnered with the ACLU of North Carolina and the Committee to Protect Journalists to petition a North Carolina court for the full public release of the recordings.

“It’s a matter of the highest public concern when authorities not only arrest journalists but put them on trial for attempting to report the news,” said Seth Stern, advocacy director for Freedom of the Press Foundation. “The public should be able to see for themselves whether police retaliated against the press for critical coverage. And if police did nothing wrong, then they should want the footage released to clear their names.”

Authorities have never claimed the journalists, Veronica Coit and Matilda Bliss of the Asheville Blade, endangered anyone or obstructed the eviction. But police nonetheless arrested them for remaining at the park after its 10 p.m. closing time. They also seized Bliss’ phone — an act that the petition said “raises red flags that authorities intended not to enforce curfews but to suppress newsgathering.”

“At stake in this incident is public trust, freedom of the press, and police accountability,” said Muneeba S. Talukder, Staff Attorney at the ACLU of North Carolina. “We know that, especially now, all police conduct is of great public concern. The need for transparency is even more pressing in this case because the journalists were arrested while gathering and attempting to share news on the eviction of unhoused people from a city park. Arrests of journalists who are gathering and reporting news is and should be rare in a nation that values the freedom of press.”

As Stern previously noted in an op-ed for the Asheville Citizen Times, “No decent journalist would ignore newsworthy official conduct, in plain sight and on public land, just because it’s dark out. And no government that values transparency would expect journalists to do so.”

The Supreme Court has held that it is unconstitutional to target someone for arrest in retaliation for exercising their First Amendment rights even if there is, technically, probable cause for the arrest. Legalities aside, though, the petition explains that the public should be allowed to “decide for themselves … whether prosecuting journalists for merely documenting police conducting a newsworthy operation at a public park is a wise use of their money.”

The petition notes that, according to FPF’s U.S. Press Freedom Tracker, there have only been three trials of journalists arrested in the course of newsgathering since 2018.

North Carolina law does not consider body camera footage a public record and requires members of the public to petition a court for its release. In most other states the authorities bear the burden of proving that footage should not be released; the public does not need to convince a judge that it should be.

The court will next schedule a hearing to consider arguments from the petitioners, as well as prosecutors and police, and determine whether to release the footage.

You can read the full petition below.

House Speaker Kevin McCarthy

As House members dragged themselves through vote after vote in the tussle over the speakership in the first week of January, viewers got a rare glimpse of the intense negotiations. Cameras captured shouts and whispers between representatives as well as images of Representative-elect George Santos, mired in controversy over his largely fabricated resume, staring at his phone alone on the House benches.

The cameras, controlled by C-SPAN during the negotiations, achieved an unusual and vastly improved level of transparency. Unfortunately, the end of the days-long tussle, in which Republican Kevin McCarthy was ultimately successful, meant a return to the status quo: The political party in charge of the House controls the cameras. C-SPAN was once again restricted to permanent robotic cameras trained at the speaker’s dais and podium.

Today, Freedom of the Press Foundation and the Demand Progress Education Fund, along with a coalition of more than 40 partners, including advocacy organizations and media outlets, submitted a joint letter calling for McCarthy and Democratic Leader Hakeem Jeffries to restore C-SPAN’s right to control its own cameras, along with the transparency that Americans enjoyed during the speakership negotiations.

“People on both sides of the aisle agree that it’s un-American for politicians to control news cameras,” said Seth Stern, FPF’s advocacy director. “Transparency is vital to our democracy and there is no reason for House rules to restrict the press and public from viewing the best possible footage of their representatives in action.”

Signatories to the letter include Lincoln Network, TechFreedom, the Committee to Protect Journalists, Reporters Without Borders, Electronic Frontier Foundation, Free Press Action, the National Press Club, National Press Photographers Association, PEN America, and Project on Government Oversight.

“When C-SPAN is able to call its own shots, the American public benefits by getting an authentic and transparent view of how Congress functions and the mood of the chamber,” said Daniel Schuman, policy director at Demand Progress Education Fund. “We can see what really happens on the House floor, such as unexpected bipartisan negotiations like when Reps. Ocasio-Cortez and Gosar had a one-on-one conversation during the speaker vote-a-rama.”