Freedom of the Press

Local news outlets around the country are losing an important source of funding, as government officials withdraw contracts to publish public notices, sometimes in retaliation for critical reporting. woman reading newspaper by rawpixel.com is licensed under CC0 1.0.

The Reporter, a weekly newspaper in upstate Delhi, New York, had been publishing government notices for more than a century when Delaware County government officials yanked the notices away, allegedly in retaliation for the paper’s reporting. Now, the Reporter is suing.

It’s part of an alarming trend: Government officials are turning contracts to print official notices — an important source of revenue for many news outlets — into a carrot or stick to control news coverage. And since we last wrote about it, several other disturbing examples have come to light or developed further.

Retaliation against The Reporter

When the Delaware County Board of Supervisors revoked The Reporter’s designation as the official county newspaper in spring 2022 — and with it, the money the paper received to print local laws and notices — it said that the change was because of increased prices and the time it took to place the notices in the paper.

But a year later, the county changed its tune. The board of supervisors and other government employees sent a letter to The Reporter demanding that it change how it covers the county. They also admitted that their displeasure with the newspaper’s coverage was one of the reasons its designation was revoked.

Revoking the designation wasn’t the only step the county took against the paper. It also gagged county employees from speaking to The Reporter’s journalists. Just five days after a story in The New York Times about the decision to remove The Reporter’s designation, the county attorney issued a directive to county employees requiring that any communications or requests for comment from The Reporter be sent to her office.

The Reporter’s lawsuit challenging the revocation of its designation also argues that the gag order directive violates both its First Amendment rights and those of county employees who want to speak with the newspaper. Other courts have held that similar gag orders violate the First Amendment, even when they’re not issued in retaliation for critical coverage.

The press has a First Amendment right to gather information from government employees who want to speak to them. Those employees also have a constitutional right to speak about matters of public concern without their employer’s permission.

The outcome of The Reporter’s lawsuit could be important for other New York newspapers facing similar retaliation. Earlier this year, for example, the Putnam County legislature voted to revoke The Putnam County News and Recorder’s contract to publish county legal notices. The vote followed disputes between the newspaper and a newly elected county executive over The News and Recorder’s “highly critical” coverage of the executive’s administration.

Kansas contracts canceled

In Kansas — a state that recently embarrassed itself on the national stage for other press freedom violations — an advisory opinion issued by Attorney General Kris Kobach this summer said that smaller cities could exempt themselves from a state law requiring official notices to be printed by a designated newspaper.

As a result, several Kansas cities have voted to remove official notices from their local newspapers. For example, the city of Hillsboro decided in October to stop publishing public notices in the Hillsboro Star-Journal. The city of Westmoreland has done the same with respect to its local paper. Notices will instead be posted on government websites.

The loss of this revenue can threaten the existence of local news outlets serving the smallest communities. It also harms transparency. Unlike the permanent public record created when government notices are published in an independent newspaper, notices printed on government websites could be altered by agencies or officials.

Opacity in Ohio

Meanwhile, in Ohio, the state already passed a new law over the summer allowing municipalities to publish public notices on their own websites, rather than designated newspapers. Because the law was snuck into a budget bill more than 6,000 pages long, it went mostly unnoticed.

It hasn’t gone without impact, however. At least one Ohio municipality is already considering removing public notices from the local newspaper and publishing them on a government website instead. The Ohio legislature is also considering another bill that would allow counties, villages, or townships — which are not covered by the new law — to publish their public notices online as well.

If this new bill passes, it will further undermine revenue for local newspapers serving small communities. It will also give more jurisdictions in Ohio a powerful tool to use against newspapers whose coverage they dislike, just as has happened elsewhere around the country.

Fund local news

Public notices provide a small but steady income stream for many community news outlets, which often operate on a financial razor’s edge. That makes them especially vulnerable to government officials who use public notices contracts to retaliate, or to misguided attempts to “update” the law to encourage notices to be published online.

Finding ways to shore up funding for local news would go a long way toward solving this problem. One thing Congress could do is pass the Community News and Small Business Support Act, a bipartisan bill that would give tax credits to small businesses that advertise in local media and a payroll tax credit to local news outlets that employ reporters in their communities.

Of course, what local lawmakers must do is stop using public notice contracts to illegally retaliate against the press. We hope Delaware County will soon do so on its own. If not, the courts must make it.

Louisiana Attorney General Jeff Landry fashioned himself a defender of free speech when he sued the Biden administration for attempting to influence social media sites. Now he's one of many Republican politicians baselessly threatening to prosecute news outlets for terrorism. Jeff Landry by Gage Skidmore is licensed under CC BY-SA 2.0.

There’s been plenty of concern expressed in recent weeks about Donald Trump’s threats to “come after” the press in a potential second term. We certainly share those concerns.

But the Republican party is not waiting for Trump’s return to start weaponizing the law against journalism. For example, 14 state attorneys general and 15 members of Congress are already calling for news outlets to be investigated and even prosecuted for “material support” of terrorism by working with Palestinian freelance photojournalists. The attorneys general are arguably even threatening criminal charges against journalists for criticizing Israel.

Stunts prompted by debunked “report”

The politicians’ feigned indignation is over a November report baselessly suggesting that Reuters, CNN, The Associated Press and The New York Times must’ve had advance knowledge of Hamas’s attack on Israel when they bought photographs from the Gaza-based freelancers.

But here’s the problem: the organization that issued the report, ironically called HonestReporting, has already admitted that it was merely “raising questions” without evidence, and said it believed the journalists who denied advance knowledge of the attack.

Subsequent investigations have confirmed that the photojournalists did not accompany Hamas as it carried out its attacks — they got to the scene hours later. It’s journalists’ job to find and follow the news, even terrible news, often at great personal danger.

Don’t like Palestinian journalists? Then let others in

International outlets, it should be noted, have no choice but to rely on Palestinian freelancers because international journalists (except those that embed with Israeli troops) are not allowed into Gaza, despite their pleas for access.

It shouldn’t be surprising that Gaza-based journalists have had contact with Hamas — after all, it’s the government there. That doesn't mean they're supporters of the Oct. 7 terrorist attack any more than it means that conservative journalists with sources in the Biden administration are secret Democrats. The idea that news outlets commit crimes by buying photographs from anyone who has ever been in the presence of a member of Hamas is preposterous.

And tellingly, none of the politicians supposedly concerned about journalists’ alleged connections to Hamas have urged Israel and Egypt to let international journalists in (or to stop killing the journalists already there).

AGs threaten to criminalize critical reporting on Israel

The politicians must know that there’s no basis to even speculate that funds paid to freelancers made their way into Hamas’s coffers — let alone with news outlets’ knowledge. That's likely why they’re floating even more tenuous, and dangerous, interpretations of “material support.”

As our U.S. Press Freedom Tracker notes, the attorneys generals’ letter

"highlighted that 'material support' for terrorist groups — both a federal and state crime — can include 'writing and distributing publications supporting the organization.' It did not elaborate on what would be considered support, potentially chilling any reporting that does not unequivocally condemn Hamas or unilaterally support Israel."

The letter then concludes with “We will continue to follow your reporting … your organizations are now on notice. Follow the law.” How are news outlets supposed to take that other than as a threat to prosecute them for their reporting?

Other Republican officials double down

Accusing major news outlets of knowingly supporting terrorism is serious, and serious people wouldn’t base such claims on admitted (and debunked) speculation. But the members of Congress and State attorneys general behind these political stunts aren’t serious people.

Same goes for Republican lawmakers threatening to defund Voice of America over its editorial policies on the use of the word “terrorist.” That push comes just months after a federal investigation detailed the full extent of the Trump administration’s efforts to politicize VOA.

And then there’s Sen. JD Vance’s letter asking the Department of Justice why it isn’t prosecuting a journalist who called for “resistance” against a second Trump administration under the same legal theories being used to prosecute Trump.

We might be inclined to dismiss Vance’s somewhat tongue-in-cheek letter as trolling (albeit irresponsible trolling) if it wasn’t, by our count, the sixth Republican-led letter in the last month proposing to prosecute journalists, censor them or both.

With the barrage of new letters it’s easy to forget that Sen. Tom Cotton also threatened journalists with criminal charges over the HonestReporting hoax. And seven Republicans (and two Democrats) previously wrote to Reuters to raise “questions.”

Republicans: What happened to free expression?

Either these lawmakers don’t understand the First Amendment and the concept of editorial independence, or they don’t care. Our guess is it’s the latter.

After all, it’s not long since Republicans were outraged that government employees would dare communicate with social media companies to express concerns about content. Missouri Attorney General Andrew Bailey, who is pursuing a lawsuit against the Biden administration over social media "censorship," went as far to accuse it of “the worst First Amendment violation in our nation’s history.”

Just last week, the Republican-led House Select Subcommittee on the Weaponization of the Federal Government held a hearing to “examine the federal government's involvement in social media censorship, as well as the recent attacks on independent journalism and free expression.”

But days later, a member of that subcommittee, W. Gregory Steube of Florida, signed the letter demanding news organizations give lawmakers access to their files so they can fish for support for their sham investigation. Louisiana Attorney General Jeff Landry, who joined the lawsuit against the Biden administration, signed the letter threatening to prosecute four major news outlets over discredited speculation. What champions of free expression they are.

And Sen. Bill Haggerty, who this year pushed legislation to stop "secret government-directed speech suppression and viewpoint censorship," saw no contradiction in leading the letter threatening to defund VOA over its editorial decisions. Well, we've got to give him this: at least he's not keeping his brand of censorship a secret.

We’re not downplaying concerns about government interference with social media content. “Jawboning” is a complex but real First Amendment issue. It’s especially problematic when government officials “suggest” social media companies remove disfavored content at the same time lawmakers are threatening to legislate them out of existence. But that concern seems to pale in comparison to public threats to investigate, prosecute and defund news outlets — all to score cheap political points.

What about protecting sources?

And remember when, just a few short months ago, Republican members of Congress accused Democrats of betraying the First Amendment by asking journalist Matt Taibbi about his sources for his “Twitter Files” reporting?

We agreed with them then, and we still do. We called it “disturbing” when Democratic Rep. Stacey Plaskett again inquired about Taibbi’s sources in a letter alluding to the prospect of prosecuting him for perjury.

That’s why it’s particularly troubling that the letter from Republican lawmakers does the exact same thing, but far worse: Demanding that news outlets produce journalists’ newsgathering and source materials, including correspondence with government officials, so they can fish for evidence to support HonestReporting’s admitted speculation.

Like HonestReporting, they do not claim to have any evidence — merely “questions.” But they’re threatening to issue subpoenas to the news outlets if they don’t comply. And they’re not just alluding to potential perjury charges — they sent their letter knowing full well that a senator and 14 attorneys general have expressly threatened felonies.

We get it, hypocrisy from politicians should never shock anyone. But elected officials calling to imprison journalists always should. And the problem is clearly bigger than Donald Trump.

“Now, now, children, you know you’re not allowed to read the news on a school computer! It’s dangerous! You may learn something.” Teacher Helping Students Working At Computers In Classroom by City of Seattle Community Tech is licensed under CC BY-NC 2.0.

Tens of thousands of students have used the 1619 Project to learn about American slavery and its consequences for U.S. history. But not at Albuquerque Public Schools. There, the Pulitzer Prize-winning report was just one of the thousands of news stories blocked by web filters between January 2022 to August 2023, according to a new report from Wired.

In fact, the school’s filters blocked students from accessing news websites nearly 40,000 times. Some URLs seem to have been flagged for including a single “forbidden” word, like a Time magazine report on the fate of the Enola Gay after it dropped the atomic bomb on Hiroshima.

The web filtering company claims it uses sophisticated machine learning algorithms, not keyword blocking for terms like “gay.” But this and other examples of blocked news websites leave us skeptical.

Wired’s reporting adds to mounting evidence that efforts to stop kids from seeing “bad” content online almost always turn into censorship. Yet some lawmakers want to extend censorship in the name of kids’ safety beyond the classroom — to social media used by both minors and adults.

Defenders of proposals to control online content, whether just on school-issued devices or everywhere on the internet, argue that young people must be stopped from accessing inappropriate content like pornography or information that may harm them.

But study after study has shown that web filtering technology actually prevents kids from learning by blocking totally innocuous and even beneficial content or chilling their online research. It also leads to disproportionate harm to LGBTQ+ students, low-income students, and students of color.

KOSA would keep kids from informing themselves

This censorship of lawful, harmless content is exactly what will happen on the rest of the internet if Congress passes the Kids Online Safety Act. KOSA will create strong incentives for social media companies to remove wide swaths of legal content, including the news.

It does so by imposing a “duty of care” on platforms to act in minors’ best interests and requiring platforms to take reasonable measures to “prevent and mitigate” certain harms to minors. Those include “anxiety, depression, eating disorders, substance use disorders, and suicidal behaviors.”

That may sound like a good idea at first. But it will cause platforms to block a lot of content that kids should be able to access to inform themselves and participate in our democracy. Some experts say, for example, that exposure to news about racist violence against Black people on social media has harmed Black kids’ mental health. But it’s still important for Black youth — and teens of all races — to have access to news that impacts them, their communities, and the country, even if it can be depressing or anxiety-provoking.

Access to news and other information is what allows young people to push lawmakers to actually address the underlying issues impacting their mental health, rather than simply requiring that information be censored to avoid upsetting people.

Proposed law a pathway to censorship for all

But if KOSA becomes law, social media platforms may believe they have no choice but to block or remove news reports about racist violence and any news content that could be distressing for kids.

Or, even if platforms don’t intentionally target news content, it will likely still be swept up and removed by automated filters that can’t discern good content (e.g., news stories discussing racist incidents) from bad (e.g., racist posts), just like those being used in schools.

KOSA will also cause many social media companies to remove content for everyone, not just kids. Simply removing content from a platform entirely is easier than blocking content just for younger users.

KOSA’s sponsors say that the law doesn’t require platforms to censor anything. But even if the word “censor” doesn’t appear in the text of the law, it’s undoubtedly what platforms will do. For proof, look no further than the school web filters like those used in Albuquerque.

It hardly seems worth giving up our freedom to read the news and be informed just so children (and perhaps some adults) can be “protected” from content like a Washington Post article about the history of apple pie or the president visiting New Mexico to talk about climate change (both actual examples of stories blocked in Albuquerque).

It’s bad enough for this censorship to happen in our schools. Congress shouldn’t expand it to the entire nation.

Sunlight remains the best disinfectant in the Sunshine State. Last week, the Florida Supreme Court rejected a police union’s argument that a victims’ rights law shields the names of officers who kill on the job. Florida Supreme Court Building 2011 by Bruin79 is licensed under CC BY-SA 3.0.

The Florida Supreme Court decided last week that the names of two officers who shot and killed suspects in separate incidents can be released to the public, despite efforts by a police union to keep them secret.

The court rejected the union’s argument that the names could be shielded under Marsy’s Law, which is meant to protect the privacy of victims. (Yes, you read that right — cops who kill people are invoking victims’ rights laws).

In an op-ed in the Tampa Bay Times, Freedom of the Press Foundation (FPF) Deputy Advocacy Director Caitlin Vogus explains how police have used Marsy’s Law and other arguments to withhold officer names from public release or even censor the press from reporting information it already has.

Vogus wrote:

“These intense battles for secrecy by police in Florida raise the question of why officers are so worried about the public knowing their names and so willing to advance clearly disingenuous arguments to evade the public scrutiny they signed up for. … Floridians must demand that the law enforcement agencies drop their anti-transparency arguments that would shield the names of cops from the public. If they won’t, Florida courts must continue to rebuff them.”

You can read the full op-ed here.

Police reportedly teargassed journalists and activists at a protest earlier this month against the police training facility known as Cop City. Then reporters were told the area was a "crime scene," and they'd be arrested if they returned. "Cop City" by Chad Davis. is licensed under CC BY 2.0.

Protests are newsworthy. Police arresting and assaulting protesters is newsworthy. Journalists should be able to safely report on both protests and their aftermath.

None of that seems particularly controversial, especially when police departments nationwide are forced to pay large sums to settle claims arising from their illegal treatment of journalists covering protests after George Floyd’s murder. You’d think cops would learn their lesson.

Yet, law enforcement officials across the country continue to harass journalists as they attempt to document demonstrations, despite their posing no risk to police operations or public safety. Too often, authorities face no consequences for their actions.

The latest examples come from Washington, D.C., and Atlanta, Georgia. Unfortunately, neither case is receiving the kind of national attention that is needed to foster accountability or dissuade similar conduct going forward.

Muzzled at the museum

Freelance journalist Will Allen-DuPraw was assigned to film protesters handing out flyers encouraging patrons at Washington’s National Gallery of Art to call on President Joe Biden to declare a climate emergency. This wasn’t some out-of-control riot — there were two protesters. After one was arrested for refusing orders to leave the museum, Allen-DuPraw asked him for comment. Then a security guard blocked Allen-DuPraw’s camera and handcuffed him as well.

Allen-DuPraw was later released without charges, but he should’ve never been detained in the first place, especially at a museum run by the federal government. Says who? Says the federal government. A recent Department of Justice report on the Minneapolis Police Department’s response to Black Lives Matter protests says the following:

“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.”

Federal appellate courts have said the same, although, prior to the Minneapolis report, the DOJ disagreed.

Allen-Dupraw wasn’t even ordered to disperse — nor could he have (lawfully) been, given that he was causing no disturbance whatsoever. But the detainment unlawfully prevented him from exercising his constitutional right to report on the protesters’ arrests. He can sue to vindicate his own rights, and safeguard those of future journalists, if he chooses. But the public can never get back the news it missed out on.

It’s great that the DOJ has reversed its prior position and acknowledged the First Amendment freedoms of journalists covering protests. But if it only says so on page 52 of a report, unlikely to be read by people without a specific interest in the Minneapolis Police Department, what does that accomplish?

The DOJ needs to make clear to federal agencies and officials, including those working security at federal buildings, that the First Amendment requires them to allow journalists to report on protests and their fallout, and that the DOJ will not defend their actions if they don’t.

Cop City ‘crime scene’ con

At the same time, the protests against the Atlanta police training facility commonly known as “Cop City” continue to prompt outrageous First Amendment violations.

While the unprecedented anti-racketeering case against activists and protesters has rightfully received the lion’s share of attention lately, the press certainly has not been spared from authorities’ unconstitutional crackdown on dissent.

When police tear-gassed a protest against “Cop City” earlier this month, journalists and others on the scene said cops appeared to deliberately target the press with the first canister. If that’s correct it’s reprehensible and the journalists who were targeted absolutely should sue.

But police didn’t stop there. When reporters attempted to reenter the area where the protest occurred, gas-masked officers told them they couldn’t, and ordered them to disperse or be arrested because the area was a “crime scene.”

To the best of our knowledge, police were not attempting to, for example, preserve evidence as part of an investigation into any particular crime. They just called the entire area a crime scene, presumably based on claims that protesters had trespassed or gotten out of hand.

Even before the DOJ opined that dispersing journalists along with protesters is unconstitutional, authorities were required by the First Amendment to exclude journalists from public spaces only pursuant to reasonable “time, place, and manner” restrictions.

That means exclusions must be necessary, as narrow as possible, and leave journalists viable options to observe and report from elsewhere.

Cops can’t use “crime scene” as magic words to get around those well-established constitutional principles and evade media scrutiny. And when they try that or other illegal ploys to circumvent the Constitution, journalists and everyone who values the First Amendment should loudly and publicly call them out.

Update: Responding to harassment of journalists at protests can sometimes feel like a game of whack-a-mole. Immediately after publishing this article we learned that sheriffs in Arizona this morning arrested NPR reporter Alisa Reznick as she walked back to her car from covering a protest against the Israel-Gaza war. They said she didn’t leave quickly enough but the First Amendment says she shouldn’t have to leave at all.

Former President Donald Trump isn’t camera shy. His trials should be televised so the public can watch them and observe our justice system at work.

United States Department of Energy.

Journalists have spilled plenty of ink over the legal cases against former President Donald Trump. But because TV cameras have so far been largely shut out of the proceedings, video from those cases is rare.

American courts have long said that transparency helps public trust in them, something that Trump and his legal team are actively working to undermine. Televising or livestreaming Trump’s trials — so that as many members of the public as possible can watch and judge for themselves the evidence against the former president — would help protect the judicial system itself.

Unfortunately, many courts remain skeptical of televising courtroom proceedings. With the exception of one state case, most of the proceedings against Trump likely won’t be televised. Here’s the current status of TV cameras in the courtroom in each of the cases involving Trump:

Georgia election racketeering case

Judge Scott McAfee, who’s overseeing the state election racketeering case against Trump and others in Georgia, is the only judge so far to announce that he will allow at least certain parts of this trial against the former president to be televised.

Georgia law specifically allows for trials to be recorded with the approval of the judge and sets out strict criteria a judge must find are met in order to deny a request to record.

David E. Hudson, general counsel for the Georgia Press Association, told The New York Times that in his more than 40 years of experience representing the press, he could not recall one trial that had been closed to cameras. And yet the sky hasn’t fallen and justice is still being done in Georgia. Imagine that.

New York civil fraud case and criminal cases

Trump is a defendant in two cases in New York state courts, one a civil financial fraud trial that is already underway and another a criminal trial set to begin in March 2024 on charges related to the alleged payment of hush money to adult film actor Stormy Daniels.

None of Trump’s civil trial has been televised, including Trump’s testimony on Nov. 6, because of New York’s strict law prohibiting cameras in the courtroom. However, Judge Arthur Engoron did permit recording in the courtroom for a brief period before the start of opening statements in the fraud trial.

In the criminal case, Judge Juan Merchan denied the media’s request to allow TV cameras in the courtroom when Trump was arraigned.

While Trump’s New York cases aren’t going to be televised or streamed, a long-standing effort to change the New York law prohibiting recording of courtroom proceedings may be picking up steam. Earlier in 2023, a state lawmaker introduced a bill that would permit audio-visual recording and livestreaming of trial and appellate proceedings in New York. The bill can be taken up again when the legislature reconvenes in January 2024.

Washington, D.C., election obstruction case

In October, a coalition of media organizations asked the Judicial Conference of the United States to revise a decades-old rule that prohibits broadcasting (its term) criminal trials. It asked the Conference to authorize judges to permit all federal criminal trials to be broadcast or, alternatively, make an exception allowing it for Trump’s trial in Washington for federal election subversion — as well as a second federal trial in Florida (more on that below). The request was denied.

The Judicial Conference, the policymaking body for the federal courts, said it would study the issue of broadcasting of criminal trials, essentially kicking the can down the road (again). The Conference has been “studying” cameras in the courtroom for more than 30 years. It even rejected a recommendation from one of its previous studies that urged it to allow civil proceedings to be broadcast.

Not all hope for cameras in the courtroom is lost, however. A coalition of media organizations and, separately, NBC News have also asked Judge Tanya Chutkan to allow cameras to broadcast or record Trump’s election obstruction trial. As the news organizations wrote, “The Media Coalition believes that the more people who see the trial in real time, the stronger the case for public acceptance of the result.”

The news outlets note that the courthouse itself has cameras that send a live feed of the trial to an overflow room, which could also be used to livestream the trial to the public. NBC News also argued that, if the court isn’t going to allow live broadcast, it should at least allow the trial to be recorded for historical posterity.

Trump has supported the media’s request. In response to their motions, Trump railed against what he views as the unfairness of the prosecution and wrote that he “absolutely agrees, and in fact demands” that the trial be televised. Since Trump has agreed with the media’s motions, the court should have no basis to deny them on the grounds that televising the trial could somehow prejudice Trump.

However, despite Trump’s agreement and the fact that President Joe Biden’s administration has regularly stated its support for press freedom and transparency, the government has opposed the news media’s request, saying that the rules prohibit it.

Judge Chutkan has yet to hold a hearing to consider the motions or issue a ruling.

Florida classified documents case

In Trump’s criminal trial in federal court in Florida over his handling of classified documents, the court has shown some early hostility to cameras and other access measures requested by the press during pretrial proceedings.

A judge first denied a media coalition’s request to permit video recording or pictures during Trump’s arraignment, including in the corridor outside the courtroom. The court’s chief judge also banned all electronic devices from the courtroom during the arraignment, making it much harder for reporters to take notes and send real-time written reports.

Later, Judge Aileen Cannon denied a request from the press — which neither Trump nor the government opposed — to use electronic devices during Trump’s arraignment on new charges.

While there’s been no media request to televise Trump’s actual trial yet, the court’s initial rulings on cameras and press access more generally leave us pessimistic about the odds of cameras in the courtroom for Trump’s Florida trial.

Congress should step in

The press undoubtedly faces an uphill battle in convincing the federal courts in Washington, D.C., and Florida to allow Trump’s trials to be televised or livestreamed. But Congress could and should step in. The Sunshine in the Courtroom Act of 2023, a bipartisan bill that would allow cameras in federal courts, has gained support from some lawmakers following Trump’s indictments.

Experience from states that allow cameras in the courtroom shows the benefits of televising or streaming criminal trials. If the Judicial Conference and federal courts won’t act to allow cameras in courts, even in historic trials of a former president, Congress must.

This article was originally published on Nov. 8, 2023 and has been updated to account for current events. You can find the original version here.

A secret surveillance program that allows law enforcement agencies to monitor trillions of phone records without a warrant could be used to target journalists and sources. Woman talking on her mobile phone on outdoor by wuestenigel is licensed under CC BY 2.0.

A secret U.S. surveillance program revealed by Wired last week allows federal, state, and local law enforcement agencies to monitor trillions of phone records of Americans without a warrant. It’s a chilling reminder that Congress must take steps to rein in government spying powers. But instead, it is slow-walking reform. Indeed, some lawmakers are currently considering simply reauthorizing a controversial law that’s been abused to surveil Americans, including journalists.

The Wired report discusses Data Analytical Services, previously known as Hemisphere. With the cooperation of AT&T, DAS lets law enforcement agencies obtain phone records of both a specific target and of everyone they’ve communicated with. That means that even someone never suspected of a crime could be monitored.

DAS data can reveal highly sensitive and personal information, including names and addresses of subscribers, phone numbers, and the dates, times, durations, and locations of the calls. All of this can reveal callers’ location information and associations. For example, DAS data could be used to determine whether someone has spoken to a journalist on the phone, for how long, and on what dates, as well as the same information for everyone else that journalist has spoken to. (DAS data does not reveal the contents of communications.)

DAS is ostensibly aimed at drug trafficking, but journalists reporting on the drug trade — and their sources — shouldn’t be surveilled without a warrant. In addition, DAS isn’t limited to drug crimes. Law enforcement agencies can search the data for any reason, and police have requested DAS data for cases unrelated to drugs in the past.

It doesn’t take a huge leap to imagine that a power-hungry local police department determined to “investigate” journalists for newsgathering on a wide variety of topics could request DAS data to reveal reporters’ sources.

Other loopholes need to be closed

Wired’s reporting on DAS should be a wake-up call to every member of Congress that they need to put up guardrails to limit the government’s spying powers. But DAS isn’t the only massive loophole that allows the government to conduct mass warrantless surveillance on Americans.

We’ve written before about how Section 702 of the Foreign Surveillance Intelligence Act, or FISA, allows intelligence agencies to conduct “backdoor searches” to access the communications of Americans (including journalists) without a warrant, as long as they’re talking to someone outside the U.S. The sunset of Section 702 at the end of the year is a prime opportunity to end warrantless surveillance of Americans’ communications.

In addition, Congress must end other government spying powers like the “data broker loophole,” which lets law enforcement agencies simply buy data that they would otherwise need a warrant to obtain.

Surveillance reform bill on the table

The Government Surveillance Reform Act — a bill sponsored by Sens. Ron Wyden and Mike Lee and Reps. Warren Davidson and Zoe Lofgren — would address these concerns. Among other things, it would prohibit backdoor searches of Americans’ communications in criminal investigations without a warrant, with a few limited exceptions, and close the data broker loophole.

Instead, the Biden administration is pushing Congress to reauthorize Section 702 without significant reforms. FBI Director Christopher Wray has claimed that internal controls have increased agents’ compliance with the law, making legislative reforms unnecessary.

Yet it would be a mistake to reauthorize Section 702 without significant restrictions. The government has demonstrated that it can’t be trusted to police its own surveillance powers. Even after the internal controls touted by Wray were put into place, the FBI’s own audit found that there were 8,000 warrantless FBI searches last year that were out of compliance with FISA.

To buy themselves more time, some lawmakers are considering adding a short-term reauthorization of Section 702 to the National Defense Authorization Act, which Congress must pass by the end of the year. This, too, would be a mistake. To ram Section 702 reauthorization through Congress with the NDAA is unnecessary and risks encouraging further extensions of the law, as a coalition of civil society organizations including Freedom of the Press Foundation (FPF) have warned.

Congress shouldn’t need more evidence that government surveillance needs to be restricted, nor any more time to gather it. Congress must act now to reform Section 702 and close other surveillance loopholes to protect the civil liberties and privacy of millions of Americans — including journalists and their sources.

In 2023, Freedom of the Press Foundation (FPF) continued its mission of protecting and defending journalists, whistleblowers, and the fundamental rights of free speech. Here, we bring you five stories that showcase FPF's unwavering commitment to safeguarding journalists and their sources.

1. SecureDrop and the Vulkan Files: Unveiling Russian cyber espionage

The source interface for SecureDrop. This is what the anonymous whistleblower used to share leaked documents with reporters.

(SecureDrop Demo)

By design, FPF cannot access whistleblower submissions on any news outlet’s SecureDrop. This means that it is extremely rare for us to know what news stories come through the open source whistleblowing platform.

However, this year on the Lawfare podcast, we learned that an anonymous whistleblower used SecureDrop to provide over 5,000 pages of documents on Russia's intelligence agencies, including the notorious hacking group Sandworm, which was allegedly responsible for the two shutdowns of Ukraine's electrical grid, the disruption of the 2018 Winter Olympics and the catastrophic 2017 NotPetya cyberattack.

"I am angry about the invasion of Ukraine and the terrible things that are happening there,” said the anonymous whistleblower, "I hope you can use this information to show what is happening behind closed doors." The whistleblower declined to identify themselves, declaring the need to vanish “like a ghost” for security reasons. We’re glad SecureDrop was able to make that happen.

2. U.S. Press Freedom Tracker: The data backbone for advocacy across the country

Data visualization of all incidents documented by the U.S. Press Freedom Tracker from 2017 to Nov 16, 2023.

(U.S. Press Freedom Tracker)

When we established the U.S. Press Freedom Tracker in partnership with the Committee to Protect Journalists in 2017, no one knew what the data would reveal, since no one else was keeping tabs on when journalism was impeded. Now, six years later, the Tracker is relied on by organizations like the Reporter’s Committee for Freedom of the Press for its annual year-in-review analyses and by Reporters Without Borders for its ranking of America in the World Press Freedom Index.

The Tracker was also integral to the Knight First Amendment Institute’s report, “Covering Democracy: Protests, Police, and the Press,” which focused on the treatment of journalists during protests, a pattern our Tracker team has highlighted and analyzed in the past. Since 2020, the Tracker has documented over 700 assaults of journalists covering demonstrations — law enforcement is believed to be responsible for 77% of those.

Thanks in large part to the Tracker, we can understand these patterns and are better equipped to proactively address and minimize future threats. With ongoing civil unrest and an impending Presidential election, these insights are increasingly crucial, allowing us to provide journalists with the knowledge and tools to navigate potential risks.

3. Raid on Marion County Record: Leading national conversations on press freedom

Caitlin Vogus, FPF’s deputy advocacy director, joins Marion County Record editor Eric Meyer to talk with Chris Cuomo about the newsroom raid and its significance on press freedom.

(News Nation)

On Aug. 11, the entire police force of Marion County, Kansas, descended upon the Marion County Record newsroom, seizing equipment from reporters, and raiding the home of the editor, Eric Meyer, and Joan Meyer, his mother and newspaper co-owner (who passed away the next day). The raids, ostensibly related to computer abuse allegations, garnered swift action from FPF and were quickly documented by the U.S. Press Freedom Tracker with continuous updates for weeks.

FPF organized an urgent meeting among press freedom allies to strategize, share on-the-ground updates, and spotlight the work of a legal defense fund to help the Record. FPF's condemnation resonated across media giants like The New York Times, The Guardian, Fox News, and others, emphasizing the violation of the First Amendment, human decency, and federal law -– the Privacy Protection Act of 1980 — that bans newsroom searches except in limited circumstances that were clearly inapplicable in Marion.

FPF also led national discussions on NewsNation with Chris Cuomo, alongside editor Meyer, as well as on the Scripps News Morning Rush, The Lawfare Podcast, and the News in Context podcast. Due to the enormous outcry, the judge who approved the warrant, Laura Viar, is now the subject of a judicial ethics complaint, while journalists investigate her background and potential conflicts.

4. Installing tiplines: Securing source communication for newsrooms

After working with FPF’s Digital Security Training team, PublicSource, a nonprofit newsroom in Pittsburgh, now offers a Signal tipline for sources and whistleblowers.

(PublicSource)

Tiplines are vital avenues for whistleblowers to contact journalists and inform the public. However, in order to ensure the privacy and safety of sources, tiplines must be fortified with robust security measures, stringent confidentiality protocols, and user-friendly interfaces.

Setting up such tiplines can be a daunting task for many media organizations. PublicSource, a local nonprofit newsroom based in Pittsburgh, encountered such hurdles when establishing its own pathway for source communication. So, PublicSource reached out to our Digital Security Training team for help establishing secure communication channels using Signal, a widely recognized app that uses encrypted messaging.

The integration of Signal into the PublicSource newsroom came with a unique set of challenges and required a nuanced understanding of factors, from regional constraints to budget considerations. The Digital Security Training team’s write-up on this project serves as a valuable case study other newsrooms can look to, highlighting the importance of collaborative efforts and proactive adaptation to ensure the success of newsroom tiplines.

5. PRESS Act: Protecting journalists from exposing sources

The screenshot shows the top section of the PRESS Act bill, displaying its initial details.

(Congress.gov)

Journalists shouldn’t have to choose between protecting their confidential sources or going to prison — but right now, many do. This is why FPF has tirelessly campaigned for a reporter’s shield law known as the PRESS Act that would prohibit the government from spying on journalists or threatening them with prison if they don’t burn their sources.

In late 2022, FPF called on select leaders to support the bill via the Chicago Sun-Times, The Salt Lake Tribune, and an appeal by longtime FPF board member John Cusack. These calls to action, along with coalition letters and direct collaboration, got the bill farther than anyone expected and secured key support from major players including Sen. Ron Wyden, Sen. Mike Lee, and Sen. Dick Durbin (who credited us and called our work some of the best advocacy efforts he’d ever seen). As a result, the PRESS Act passed unanimously in the House. Sadly, it was killed last minute at the end of the year thanks to a nonsensical objection from a single senator.

The PRESS Act has since been reintroduced this year and we’ve continued to push it forward. Today, it maintains bipartisan support, with Sen. Lindsey Graham reportedly being added as a co-sponsor. This incredible progress shows the opportunity for systemic change through collaborative effort and strategy.

Lawmakers recently reconvened in the New Jersey State House, pictured here, for a lame-duck session. Hobbling the Open Public Records Act may be on the legislative agenda. New Jersey State House by Peter Miller is licensed under CC BY-NC-ND 2.0.

Journalists in New Jersey have long used the state’s public records law to shed light on everything from misspent taxpayer money and petty acts of political retribution to deadly uses of force by police. But a new plan to hobble New Jersey’s Open Public Records Act, or OPRA, threatens access to the public records that make this reporting possible.

Democratic lawmakers in New Jersey, meeting during the legislature’s lame duck session, reportedly are considering using the guise of “reforming” OPRA in order to gut it. While the proposed legislation isn’t public (never a good sign), it’s believed that the reforms will include measures that:

• Add exemptions to OPRA that allow additional records to be withheld from public disclosure. OPRA already has 27 exemptions.
• Prevent records requesters from directly challenging denial of access in Superior Court. Instead, requesters will first have to appeal denials to the Government Records Council, which — according to the state’s own report — fails to quickly resolve records disputes.
• Eliminate the requirement that a public agency that wrongfully denies access to a public record pay a requester’s legal fees if they have to hire a lawyer to win access to the records. This “fee-shifting” requirement encourages attorneys to take on legitimate OPRA cases and enforce the law, because they’re likely to be paid.

These changes will decrease transparency in New Jersey and undermine the public’s right to know — and journalists’ ability to expose — what their government officials are up to.

That’s why Freedom of the Press Foundation (FPF) joined more than 60 other organizations — led by the New Jersey Working Families Party, the ACLU of New Jersey, and League of Women Voters of New Jersey — in a letter urging the New Jersey legislature to stop its efforts to push through OPRA changes during the lame-duck session.

It’s disappointing but perhaps not surprising that lawmakers are trying to ram through changes to OPRA. Public records laws often reveal authorities’ politically unpopular decisions, embarrassing conduct, or even criminal wrongdoing. Of course, elected officials know it would be unpopular to criticize public records laws for being a thorn in their sides, so they rely on other reasons to justify trying to eviscerate them.

In New Jersey, some lawmakers have argued that commercial requesters are abusing OPRA to gather information at an unfairly high cost to taxpayers. Yet they haven’t offered specifics about just how much these allegedly “abusive” requests are costing. Given the state’s history of making ridiculous accusations about overly burdensome requests, it’s more than fair to ask lawmakers to justify their claims with some evidence.

It’s also not clear how the potential changes to OPRA that lawmakers are said to be considering would stop abusive requests from commercial entities or save the government money, other than by making it harder for all requesters to access records. Even if commercial requesters are costing the state money, that’s no reason to limit access and transparency for everyone. Lawmakers should also consider the money saved when journalists use public records to expose government waste, fraud, and abuse.

In addition, there are better solutions to burdensome commercial requests, like posting frequently requested records publicly online, improving technology used to maintain and search for records, or even charging commercial requesters (which should not include the press).

OPRA reforms that actually benefit the public wouldn’t have to be rushed through, behind the scenes, in a lame-duck session. If lawmakers are truly interested in improving the law, not weakening it, they should work openly and cooperatively with journalists, public interest groups, and members of the public to enact real reform in the next regular session. Otherwise, only secrecy is served.

"Vice President Joe Biden visit to Israel March 2016" by U.S. Embassy Jerusalem is licensed under CC BY 2.0.

The Israel-Gaza war is the deadliest conflict for journalists in modern memory, with 48 journalists killed to date, according to the Committee to Protect Journalists. Israel has said it can’t guarantee journalists’ safety and has not committed to any concrete steps to try to protect them.

Nonetheless, journalists from the U.S. and elsewhere are demanding access to the Gaza Strip so they can help local journalists document history. Reliable reporting is essential to counter government propaganda and social media disinformation coming from all sides of the conflict.

Meanwhile, the Biden administration has said little to nothing about the deadly attacks on journalists covering Gaza or the limitations on outside access.

It’s time for that to change. The administration needs to do everything it can to ensure that Americans have the information they need to decide whether they think our government’s support and funding for the war is a good idea (so far, they don’t). It needs to exert maximum pressure on its ally to protect press freedom and to allow transparency and accountability.

Here are 10 questions American journalists can ask U.S. officials — at White House or State Department press briefings, interviews, or wherever else the opportunity presents — about the threats facing journalists in Gaza.

1. What has President Biden said to Israeli Prime Minister Benjamin Netanyahu about the unprecedented killing of journalists during this war and what steps does Biden expect Israel to take to protect journalists?

2. Is Biden aware of reports that the Israeli Defense Forces has told news outlets it cannot guarantee the safety of journalists? What’s his response?

3. What steps does the United States take to protect journalists when it is at war? Does Biden believe that Israel’s military can and should take similar steps, given the funding, weaponry, and other assistance the United States provides to Israel?

4. Will Biden commit to conditioning further military aid to Israel on its respecting core democratic values like freedom of the press, including by not targeting journalists in attacks, undertaking reasonable efforts to keep journalists safe, and allowing international journalists access to Gaza without requiring them to embed with the IDF?

5. What is Biden’s reaction to the Reporters Without Borders’ investigation of the death of Reuters journalist Issam Abdallah in Lebanon, which concluded, based on the information available, that the IDF targeted Abdallah?

6. Will Biden consider the case of Shireen Abu Akleh in evaluating the credibility of denials by Israel that it targets or fails to protect journalists? (Abuh Akleh, a Palestinian American journalist, was killed in the West Bank last year. Israel initially blamed Palestinian militants but, after numerous investigations contradicted that claim, admitted its troops likely killed her).

7. Eleven major news outlets recently sent a letter to the Israeli and Egyptian governments asking for access to Gaza so they can counter disinformation and propaganda with reliable reporting. Will Biden urge Israeli and Egyptian officials to grant this request?

8. In the 2024 presidential election, Biden will need to make his case to a skeptical American public that his support for Israel’s war in Gaza is justified. How can he make that argument to Americans and expect them to believe it if U.S. media is not able to report firsthand on the war?

9. Recently, an organization called HonestReporting issued a report baselessly speculating that U.S. news outlets had advance notice of the Oct. 7 attack by Hamas on Israel. Netanyahu cited it to condemn the news outlets, and Sen. Tom Cotton said outlets should be investigated for aiding terrorism. Will Biden publicly defend U.S. news outlets against these accusations?

10. The United States has repeatedly condemned Russia’s efforts to degrade or block internet access in Ukraine as part of its war there, noting the need “for sharing and learning information, including about the war.” Does the president feel similarly about Israeli-imposed blackouts and other attacks on the internet infrastructure in Gaza? And what is he doing to stop further blackouts?

Calumet City, Illinois authorities recently hit Daily Southtown reporter Hank Sanders with a flurry of citations for asking too many questions. Mayor Thaddeus Jones, pictured here, reportedly also sought an order barring Sanders from city hall. The city dropped the citations after the ordeal made national headlines.

Photo via Calumet City Office of the Mayor.

Last month’s absurd citations of a Chicago area reporter for asking officials too many questions would’ve been easy to overlook as a fluke — if not for the arrests of Alabama journalists for reporting news earlier that month. And that’s not to mention the August police raid of the Marion County Record in Kansas, among other alarming press freedom violations this year.

Freedom of the Press Foundation (FPF) Director of Advocacy Seth Stern wrote in an op-ed for the Chicago Sun-Times that the press needs to use newsprint to fight back when officials attempt to retaliate against it for doing its jobs.

It’s no time for fence-sitting when a leading presidential candidate wants to investigate news outlets for treason and imprison reporters and a sitting U.S. senator is baselessly urging terrorism investigations of news outlets.

Fighting back with ink isn’t just about journalists. It’s about everyone who relies on a free press to stay informed.

You can read the full op-ed here.

Alsu Kurmasheva, an American journalist working for Radio Free Europe/Radio Liberty, has been wrongfully detained in Russia.

Deník N/Ludvík Hradilek, courtesy of Radio Free Europe/Radio Liberty

Russia is adding to its shameful tally of imprisoned American journalists with its detention of Alsu Kurmasheva, a reporter for Radio Free Europe/Radio Liberty. And there are simple steps the Biden administration can take -– but inexplicably hasn’t yet — to help her get home.

Kurmasheva, a dual U.S.-Russian citizen, was first prevented from leaving Russia in June, and she’s been imprisoned there since October. Russian authorities accuse her of failing to self-register under its “foreign agents” law. Kurmasheva is the second American journalist imprisoned in Russia this year, following the bogus espionage charges brought against Wall Street Journal reporter Evan Gershkovich in March.

Shortly after Russian security services arrested Gershkovich, the State Department appropriately designated him as “wrongfully detained.” That opened the door to additional U.S. resources dedicated to bringing Gershkovich home, including the involvement of the Office of the Special Presidential Envoy for Hostage Affairs.

Secretary of State Anthony Blinken should also designate Kurmasheva as wrongfully detained, and quickly, just as he did Gershkovich. Kurmasheva’s case meets the criteria set under federal law that the State Department uses to determine a wrongful detention of a U.S. national by a foreign government, but it has yet to act.

The spurious charge against Kurmasheva shows that Russian authorities are retaliating against her for being an American and a journalist. The “foreign agents” law is infamous for its use to crack down on independent journalism and civil society.

Kurmasheva is also known for her reporting on the Tatar people — an ethnic minority in Russia that is under increasing scrutiny and pressure from the Russian government — and is likely being targeted for this and other reporting the Russian government dislikes. And, of course, the Russian government is no fan of Radio Free Europe/Radio Liberty, which Russia has also labeled a “foreign agent” and forced out of the country.

President Joe Biden and U.S. lawmakers should also publicly condemn Kurmasheva’s imprisonment and demand her immediate release. Biden has said that he’s “serious” about bringing home Americans held illegally in Russia and elsewhere, and he’s specifically commented on Gershkovich’s detention. But he has yet to publicly mention Kurmasheva’s case.

The president must make clear that this issue has his attention, and that the U.S. government won’t stand idly by while Russia repeatedly locks up American journalists.

In Congress, Rep. Michael McCaul, the chair of the House Foreign Affairs Committee, has spoken out, as have several other lawmakers, but others have been silent. What are they waiting for?

Two so far this year is already far too many American journalists wrongfully detained in Russia. If the U.S. has any hope of keeping that number from growing in the future, it must use every method at its disposal to secure the release of both Kurmasheva and Gershkovich.

More than 50 organizations have demanded transparency over the FBI's May raid of journalist Tim Burke's home newsroom.

Courtesy of Tim Burke

The FBI raided Florida journalist Tim Burke’s home newsroom in May following publication of outtakes — which Burke says he obtained online through a publicly accessible URL — from Tucker Carlson’s interview with rapper and fashion superstar Ye, formerly known as Kanye West.

Following the raid, more than 50 press freedom organizations sent a letter to the Department of Justice demanding transparency about how the government believes Burke’s newsgathering broke federal computer hacking laws, and whether the DOJ followed the law and its own guidelines in authorizing the search on Burke’s home newsroom.

As Burke continues to fight for the return of his data and equipment, such as computers and hard drives, Freedom of the Press Foundation Deputy Director of Advocacy Caitlin Vogus spoke about the case and its connection to other recent press freedom threats on the National Press Club’s Update-1 podcast.

Vogus explained:

“[T]his is a really important issue for journalists working around the country. They need to know, especially if they’re freelancers, that the DOJ is going to apply the Privacy Protection Act and its own policies when it comes to investigations of journalists. And they need to know whether what they are doing in their online investigations could be considered to violate federal law in the eyes of the government.”

Listen to the full episode here.

U.S. Sen. Tom Cotton, a man with so much irrational hatred for the free press that he must have something awful to hide from it, baselessly called for an investigation of major news outlets for supporting terrorism. "Tom Cotton" by Gage Skidmore is licensed under CC BY-SA 2.0.

The Israeli government’s invasion of Gaza is already the deadliest event for journalists in decades, and now a malicious disinformation campaign has put the lives of even more journalists at severe risk, with zero evidence of wrongdoing by any news outlet.

A group calling itself HonestReporting, which claims to “combat ideological prejudice in journalism and the media, as it impacts Israel,” published a report insinuating that freelance photojournalists who took pictures during Hamas’ Oct. 7 attack on Israel were complicit with Hamas. HonestReporting has since backpedaled, admitting it had no proof.

Photojournalists risk their lives to document history. It’s absurd to suggest that photographing atrocities makes them complicit, or that they’re morally obligated to put their cameras down to fight terrorists armed with machine guns.

And it’s equally preposterous to suggest, as both Israeli and American officials have, that news outlets are responsible for all hypothetical misconduct by any freelancer from whom they buy a photograph.

The Jerusalem Post — where HonestReporting’s Executive Director Gil Hofman used to work — ran a headline that the journalists had “reportedly joined Hamas massacre.” And Israel’s embattled Prime Minister, Benjamin Netanyahu, seized on the spurious report to call the photojournalists “accomplices in crimes against humanity” and condemn the media outlets that published their work.

Others went even further. Former Israeli Minister of Defense Benny Gantz said journalists who photographed the attack “are no different than terrorists and should be treated as such.” Danny Danon, a member of Israel’s parliament and its former representative to the United Nations, said on X, formerly Twitter, that Israel's internal security agency would add the photojournalists named in HonestReporting’s report to its kill list. Presumably, there will be others.

But no one, apparently, stopped for a minute to check if the allegations were even remotely true.

In the U.S., Sen. Tom Cotton, a man with so much irrational hatred for the free press that he must have something awful to hide from it, sent a letter to the DOJ calling for an investigation of whether the Associated Press, CNN, The New York Times and Reuters “committed federal crimes by supporting Hamas terrorists.”

News outlets from the Times to the AP were forced to issue statements proclaiming that they didn’t have advance knowledge of the Hamas attacks.

And then HonestReporting essentially said never mind. Oops. After some backlash on social media, the group later told the AP it was simply “raising questions.” Hofman admitted there was no evidence to back up the insinuation that photojournalists had advance notice of the attacks or somehow collaborated with Hamas. Oh, and he also conceded: “We don’t claim to be a news organization.”

But the potentially lethal damage has already been done. It’s a virtual certainty that, despite HonestReporting’s about-face, its nonsense report will be cited to justify past and future attacks against journalists in what’s already by far the deadliest war for the press in modern memory.

If it hasn’t already been crystal clear, the Israeli government absolutely must now do everything in its power to undo the harm HonestReporting has caused and protect journalists covering the war, whether they are embedded with the IDF or not.

And the Biden administration has an obligation to pressure its close partner to protect press freedom in every way it possibly can. The amount of journalists killed in this conflict shocks the conscience, and turning a blind eye to this fact goes against every value and right the U.S. claims to hold dear.

Former President Donald Trump isn’t camera shy. His trials should be televised so the public can watch them and observe our justice system at work.

United States Department of Energy

Journalists have spilled plenty of ink over the legal cases against former President Donald Trump. But because TV cameras have so far been largely shut out of the proceedings, video from those cases is rare.

American courts have long said that transparency helps public trust in them, something that Trump and his legal team are actively working to undermine. Televising or livestreaming Trump’s trials — so that as many members of the public as possible can watch and judge for themselves the evidence against the former president — would help protect the judicial system itself.

Unfortunately, many courts remain skeptical of televising courtroom proceedings. With the exception of one state case, most of the proceedings against Trump likely won’t be televised. Here’s the current status of TV cameras in the courtroom in each of the cases involving Trump:

Georgia election racketeering case

Judge Scott McAfee, who’s overseeing the state election racketeering case against Trump and others in Georgia, is the only judge so far to announce that he will allow at least certain parts of this trial against the former president to be televised.

Georgia law specifically allows for trials to be recorded with the approval of the judge and sets out strict criteria a judge must find are met in order to deny a request to record.

David E. Hudson, general counsel for the Georgia Press Association, told The New York Times that in his more than 40 years of experience representing the press, he could not recall one trial that had been closed to cameras. And yet the sky hasn’t fallen and justice is still being done in Georgia. Imagine that.

New York civil fraud case and criminal cases

Trump is a defendant in two cases in New York state courts, one a civil financial fraud trial that is already underway and another a criminal trial set to begin in March 2024 on charges related to the alleged payment of hush money to adult film actor Stormy Daniels.

None of Trump’s civil trial has been televised, including Trump’s recent testimony, because of New York’s strict law prohibiting cameras in the courtroom. However, Judge Arthur Engoron did permit recording in the courtroom for a brief period before the start of opening statements in the fraud trial.

In the criminal case, Judge Juan Merchan denied the media’s request to allow TV cameras in the courtroom when Trump was arraigned.

While Trump’s New York cases aren’t going to be televised or streamed, a long-standing effort to change the New York law prohibiting recording of courtroom proceedings may be picking up steam. Earlier this year, a state lawmaker introduced a bill that would permit audio-visual recording and livestreaming of trial and appellate proceedings in New York. The bill can be taken up again when the legislature reconvenes in January.

Washington, D.C., election obstruction case

In October, a coalition of media organizations asked the Judicial Conference of the United States to revise a decades-old rule that prohibits broadcasting (its term) criminal trials. It asked the Conference to authorize judges to permit all federal criminal trials to be broadcast or, alternatively, make an exception allowing it for Trump’s trial in Washington for federal election subversion — as well as a second federal trial in Florida (more on that below). The request was denied.

The Judicial Conference, the policymaking body for the federal courts, said it would study the issue of broadcasting of criminal trials, essentially kicking the can down the road (again). The Conference has been “studying” cameras in the courtroom for more than 30 years. It even rejected a recommendation from one of its previous studies that urged it to allow civil proceedings to be broadcast.

Not all hope for cameras in the courtroom is lost, however. A coalition of media organizations and, separately, NBC News have also asked Judge Tanya Chutkan to allow cameras to broadcast or record Trump’s election obstruction trial.

Trump has officially taken no position on the request, though his lawyers have repeatedly called for his trials to be televised. Despite the fact that President Joe Biden’s administration has regularly stated its support for press freedom and transparency, the government has opposed the news media’s request, saying that the rules prohibit it.

The news outlets note that the courthouse itself has cameras that send a live feed of the trial to an overflow room, which could also be used to livestream the trial to the public. NBC News also argued that, if the court isn’t going to allow live broadcast, it should at least allow the trial to be recorded for historical posterity.

The news outlets have until mid-November to file briefs responding to the government, after which Judge Chutkan could hold a hearing to consider the issue before ruling.

Florida classified documents case

In Trump’s criminal trial in federal court in Florida over his handling of classified documents, the court has shown some early hostility to cameras and other access measures requested by the press during pretrial proceedings.

A judge first denied a media coalition’s request to permit video recording or pictures during Trump’s arraignment, including in the corridor outside the courtroom. The court’s chief judge also banned all electronic devices from the courtroom during the arraignment, making it much harder for reporters to take notes and send real-time written reports.

Later, Judge Aileen Cannon denied a request from the press — which neither Trump nor the government opposed — to use electronic devices during Trump’s arraignment on new charges.

While there’s been no media request to televise Trump’s actual trial yet, the court’s initial rulings on cameras and press access more generally leave us pessimistic about the odds of cameras in the courtroom for Trump’s Florida trial.

Congress should step in

The press undoubtedly faces an uphill battle in convincing the federal courts in Washington, D.C., and Florida to allow Trump’s trials to be televised or livestreamed. But Congress could and should step in. The Sunshine in the Courtroom Act of 2023, a bipartisan bill that would allow cameras in federal courts, has gained support from some lawmakers following Trump’s indictments.

Experience from states that allow cameras in the courtroom shows the benefits of televising or streaming criminal trials. If the Judicial Conference and federal courts won’t act to allow cameras in courts, even in historic trials of a former president, Congress must.

Texas Department of Criminal Justice Austin.jpg" by Larry D. Moore is licensed under CC BY-SA 4.0.

I sat at a table with the senior warden of my prison. He was livid that I had written a disturbing essay for The Marshall Project about mentally ill prisoners in solitary confinement. He threatened to fire me from the prison newspaper staff, with bogus disciplinary cases, as well as to force a prison transfer.

My editor took me out into the adjoining hallway for a heart-to-heart chat. “You can't write negative things about the prison,” he warned me. Those double barbed wire perimeter fences that surround this place are there not to keep prisoners in, he added, but to keep the general public out.

That chat completely transformed my entire journalistic perspective — before the warden completely transformed my prison life. My editor instilled within me a better understanding of the importance of my journalistic voice and how steep of a price I would have to pay if I elected to provide the general public with access to daily prison occurrences.

With publication, comes retaliation

That meeting was years ago. Since then, I’ve published a few more essays, and I have been subjected to a range of retaliation by prison staff. The administration has written bogus disciplinary infractions against me numerous times, including when I wrote a letter to the editor of a local newspaper, The Huntsville Item, praising a former warden who placed a high priority on treating prison employees and prisoners equally.

My personal property, including my manual typewriter, have been arbitrarily confiscated and never returned in retaliation for articles written for local human rights organizations that criticized ineffective prison practices. After my participation in an ABC News story highlighting the prison agency’s failed COVID-19 policies, I was tossed into solitary confinement for 23 months. Recently, a group of rogue prison guards showed up unceremoniously to my cell and viciously assaulted me with chemical agents as a result of my continuous coverage of a mass hunger strike by prisoners held in solitary confinement.

Since prisoners are not rendered much in regard to autonomy and worldly possessions, the thought of losing what little you have to mean-spirited and unforgiving prison officials is enough to discourage any prisoner from speaking truth to power.

My story — just like the countless other acts of intimidation and retaliation tactics that incarcerated journalists throughout the country are subjected to by prison officials — will probably not end up in your news feed. But these retaliatory practices are relentless in our nation's jails and prisons.

Incarcerated journalists do not have newsroom support and are oftentimes left to fend for themselves after reporting on inhumane conditions and corrupt practices. A combination of prison officials' unchecked autonomy on what information leaves the prison and the failure of the journalist community to erect institutions to protect their incarcerated colleagues, have contributed significantly to the routine targets and attacks.

Emerging awareness, support

The issue has been getting more attention. A recent article in Shadowproof about the retaliation against incarcerated journalists outlines an array of difficult hurdles that incarcerated writers face on a daily basis, with little to no free-world assistance or legal protections. Prison Policy Initiative also published a report detailing the ways prisons suppress journalism from the inside.

And there are organizations that have emerged to support journalists inside prison walls. Empowerment Avenue facilitates and supports incarcerated journalist/outside journalist partnerships to establish frameworks that remove barriers incarcerated journalists face and to hold systems accountable.

PEN America created its Prison Writing Program in 1971, after the infamous Attica prison riots, to empower incarcerated writers. In 2022, it released the book, “The Sentences That Create Us.” In it, current and former incarcerated writers highlighted the significance of the incarcerated writer to the profession of journalism, as well as the myriad of cruel tactics that prison administrators have utilized to suppress their voices.

For example, Thomas Whitaker, an incarcerated writer in Texas, wrote about how incarcerated writers have an obligation to report on prison conditions because no one else will. Whitaker warns the incarcerated writer should expect prison administrators to completely "mess up your life." In addition to attracting negative attention from wardens, he wrote that an incarcerated writer should expect to be written bogus disciplinary cases, subjected to countless unnecessary and senseless cell searches, and to prolonged stays in solitary confinement.

Since prisoners are not rendered much in regard to autonomy and worldly possessions, the thought of losing what little you have to mean-spirited and unforgiving prison officials is enough to discourage any prisoner from speaking truth to power. Replacing necessary material like expensive typewriters, and grammar and resource guides, along with having all your outgoing/incoming mail and visits highly censored, makes it extremely difficult to write quality articles.

How to help the incarcerated journalist

We need even more institutions like PEN America's Prison Writing Program to assist and protect their incarcerated fellow writers. I’ve seen the positive impact of this work firsthand. With The Marshall Project, we documented the inedible, non-nutritious food the prison was serving during the COVID-19 pandemic. After the story published, prison officials in Texas completely transformed the food-service operations and introduced more wholesome hot meals that included fresh fruit and real, instead of powdered, milk.

I often receive correspondence from journalists who have read my work. They want to know what could be done to help my journalism career. My response is simple: Advocate for the inclusion of incarcerated writers in your newsroom and writer’s groups; volunteer for progressive organizations like PEN America or Empowerment Avenue; mentor an incarcerated writer; and assist and report on their First Amendment freedom of speech violations with the same intensity that you would your free-world colleagues.

The incarcerated voice is paramount in the world of journalism. Without it, the world in general is left with a significant information void — what transpires behind the double-razor wire fence that surrounds each prison.

Jeremy Busby is a writer and activist incarcerated in Texas. He is currently seeking assistance with a civil rights lawsuit against Texas prison officials for numerous violations of his First and Eighth Amendment rights in retaliation for his journalism. The lawsuit is pending in the U.S. District Court for the Northern District of Texas, Wichita Falls Division, Civil Action No. 7:23-cv-024-O. He is a former staff writer for the Texas Prison Newspaper and can be reached directly through the Securus e-message system, Jeremy Busby #00881193 Texas.

An Alabama journalist is charged with “print[ing] an article containing grand jury information” while his publisher is charged with approving the article. As a term of their bail, they're both censored from reporting on criminal investigations.

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Court documents reveal that an Alabama newspaper publisher and reporter were ordered to refrain from “communication” about any criminal investigations as a condition of being released on bail. They were arrested last week for the “crime” of reporting on a grand jury investigation of a school board’s handling of COVID funds.

“It’s hard to believe that officials honestly think the First Amendment entitles them to arrest journalists for reporting news and then censor them as a condition of release,” said Freedom of the Press Foundation (FPF) Director of Advocacy Seth Stern. “There’s a pattern here that indicates an intentional abuse of power to retaliate against the press.”

The bail terms imposed on Atmore News publisher Sherry Digmon and reporter Don Fletcher essentially prohibit the paper from reporting on crime — an obviously core function of local journalism. As Stern explained, “The bail terms would be unconstitutional even if they only restricted the journalists from further reporting on the grand jury investigation of the school district, especially when there was no legal or constitutional basis to punish that reporting in the first place.”

But the order broadly prohibits all reporting on “ongoing criminal investigations,” regardless of whether they have anything to do with the charges against Digmon and Fletcher. According to Stern, “That overbreadth turns an already flagrantly unconstitutional gag order into a fundamentally un-American attempt at retaliatory censorship to silence the free press. Everyone involved should be ashamed of themselves.”

It’s also noteworthy that Escambia County District Attorney Stephen Billy, in what he must have believed was somehow a defense of his decision to bring charges against the journalists, complained that he believed the Atmore News’s coverage of him was unfair. Tellingly, a non-journalist who was also arrested for allegedly violating the grand jury secrecy law was not similarly gagged as a condition of bail.

Digmon and Fletcher were first arrested Friday (FPF’s statement on the arrests is available here). The complaint against Fletcher accuses him of “print[ing] an article containing grand jury information” while Digmon stands accused of “approv[ing] an article containing grand jury information and allow[ing] the article to be printed in the Atmore News.”

But Alabama’s grand jury secrecy statute only prohibits grand jurors, witnesses, and others directly involved in grand jury proceedings from disclosing information about a grand jury. It does not prohibit journalists from reporting information provided by sources, presumably because the legislators who drafted the law knew that would be unconstitutional.

As FPF Deputy Director of Advocacy Caitlin Vogus has explained, “The First Amendment protects journalists who publish information they lawfully obtain from sources,” even if the sources are alleged to have broken the law.

Nonetheless, after illegally arresting the journalists on felony charges for constitutionally protected news reporting, Escambia County authorities have now effectively silenced them as well, through their censorious and unconstitutional bail terms.

Atmore News journalist Don Fletcher and publisher Sherry Digmon were arrested after reporting on an investigation of a school board's handling of COVID funds.

Escambia County Sheriff's Office

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An Alabama newspaper publisher and reporter were arrested last week and charged under a grand jury secrecy statute for the “crime” of reporting on a grand jury subpoena provided by a source.

And today, the publisher, Sherry Digmon, was arrested again — this time for soliciting ads from the local school district while serving on the Board of Education.

“Arresting journalists for reporting the news is blatantly unconstitutional,” said Freedom of the Press Foundation (FPF) Director of Advocacy Seth Stern. “Grand jury secrecy rules bind grand jurors and witnesses, not journalists. The district attorney should blame himself for failing to maintain the secrecy of grand jury proceedings, not jail journalists for doing their jobs.”

“The First Amendment protects journalists who publish information they lawfully obtain from sources,” said FPF Deputy Director of Advocacy Caitlin Vogus. “We don’t arrest journalists in this country for reporting news that authorities would prefer to keep secret.”

Stern added, “Authorities should drop the charges immediately. But that’s not enough. The journalists should sue and those responsible should be investigated and disciplined. The officials involved either knew the arrests were unconstitutional and proceeded anyway or don't realize their actions are completely indefensible under the First Amendment. Either way, they have no business holding public office in the United States.”

Digmon was arrested along with journalist Don Fletcher over reporting by the Atmore News in Escambia County, Alabama, about an investigation into a local Board of Education’s handling of COVID funds. (Digmon also serves on the school board.)

The Atmore News story reported that District Attorney Stephen Billy had issued a grand jury subpoena for checks labeled as COVID payments. That, according to Billy, violated state law.

The problem is that Alabama’s grand jury secrecy statute prohibits grand jurors, witnesses and others directly involved in grand jury proceedings from disclosing information about a grand jury. It does not — and under the First Amendment, cannot — codify a prior restraint that bars the press from disclosing grand jury information it obtains from a source.

The Alabama statute also includes a provision barring grand jury outsiders from, for example, threatening or bribing grand jury participants for information. But according to Stern, “Any attempt to distort that vague provision to criminalize routine journalism would constitute an inexcusable abuse of power in clear violation of the First Amendment.”

And it does not appear that Digmon and Fletcher’s arrests were related to any alleged interactions with grand jury participants. Fox 10 News says court documents indicate Fletcher was arrested for printing grand jury information, and 1819 News reports that Digmon was charged for allowing Fletcher's article to be published. The Atmore Advance reports that Billy himself admitted the arrests stem from the article's publication and quotes him complaining about purported inaccuracies in Fletcher's reporting of his comments at a board meeting.

As for today’s arrest of Digmon over soliciting ads from the school, Stern commented, “It seems highly suspicious that prosecutors first objected to the school district’s presumably long-standing practice of advertising in a local paper immediately after the paper published content that angered the district attorney.” FPF will continue monitoring that story as it develops.

Authorities who have retaliated against journalists with unconstitutional arrests and criminal investigations have faced legal and other consequences in the past.

In 2013, Phoenix New Times journalists received a $3.75 million settlement following their wrongful arrest by Sheriff Joe Arpaio’s deputies for publishing grand jury information. In that case it turned out that the supposed grand jury hadn’t actually convened. A federal appellate court commented that “It is hard to conceive of a more direct assault on the First Amendment than public officials ordering the immediate arrests of their critics."

Earlier this year, a raid of the Marion County Record in Marion, Kansas, over alleged newsgathering crimes received national attention. The chief of police who orchestrated the unconstitutional raid was ultimately forced to resign.

Do not enter! Access to the Google antitrust trial in federal district court in Washington, D.C., pictured above, has been severely restricted. Thanks to the efforts of journalists and news outlets, that’s starting to change. Washington DC - USA - panoramio (10) by Paulo JC Nogueira is licensed under CC BY-SA 3.0 DEED.

On Monday, Google CEO Sundar Pichai testified as the star defense witness in the landmark antitrust trial against his company. And surprisingly — for this trial, at least — the public could actually watch his testimony.

That shouldn’t be unusual. American trials are supposed to be open to the public. The Google antitrust trial, however, has been marred by an unusual level of secrecy.

But now, eight weeks into this historic trial, it appears that the parties and the court may have finally learned some lessons about transparency. Better late than never — and thanks to the work of journalists and news outlets — public access to trial testimony, exhibits, and transcripts in the Google antitrust trial is improving.

Top secret testimony

One of journalists’ main complaints at the beginning of the trial was the amount of secret witness testimony. By mid-October, for example, witnesses testified at least partially in secret on seven days of the trial. At one point, “the Court excluded the public from the courtroom for the entire day,” according to a legal motion filed by The New York Times and other news outlets.

The media coalition also complained that the court wasn’t giving the press and the public enough notice of courtroom closures and the chance to object.

In response to the motion, Judge Amit Mehta instituted a new procedure that requires the parties to notify the court the night before if they believe testimony will need to be given in secret the next day. If the court gets such a notice, it will notify the public on the trial docket and hear objections to sealing in the morning.

Since then, there’s been just one notice posted on the public docket that sealed testimony is expected. It could be a coincidence — or it could be that requiring the parties to actually think about whether secrecy is needed and to announce plans for secret testimony in advance successfully discourages unnecessary sealing of witnesses’ testimony.

Undisclosed exhibits

The lack of access to trial exhibits has also frustrated journalists. While the government initially posted some of the exhibits online, it stopped after Mehta chastised it. Then, with Mehta’s approval, the government began posting exhibits again, but only selectively and sporadically.

Enter the media coalition again. Its motion asked Mehta to require all the parties to give the public access to trial exhibits in full and to make them available as soon as possible after they’re used in court.

In response, Mehta created another new process going forward that lets the press request exhibits from the parties, to be provided within two to four business days, depending on whether they contain any confidential information. Mehta’s order also set deadlines for the parties to provide copies of exhibits previously used and not yet available to the public.

Still, some transparency issues with exhibits persist. For example, attorney Megan Gray, who has been closely watching the trial, told me that some of the exhibits Pichai reviewed while on the stand weren’t shown to the public during his testimony, and it's not clear if the exhibits will be redacted when they’re entered into evidence.

Out-of-reach transcripts

In the absence of any video or audio livestream of the trial, journalists who couldn’t attend in public were left to rely on the written transcripts to understand what happened each day. But daily transcripts are incredibly expensive. One courtwatcher estimated that transcript costs would be “in the tens of thousands of dollars” by the end of the trial. That puts them out of reach for many journalists and members of the public who want to follow the trial.

Early in the trial, some journalists and observers considered the possibility of sharing transcripts or even posting them publicly but were hesitant due to vague rumors that they were somehow prohibited from posting them online. (When I called the court reporter’s supervisor’s office, the person who answered the phone wasn’t able to tell me whether any rule prohibited the posting of trial transcripts online.)

Now, in a victory for transparency, the investigative news outlet The Capitol Forum has begun posting the daily trial transcripts on its website. Teddy Downey, executive editor, told me the outlet began posting the transcripts to increase public knowledge about the trial. “The media can’t be there all the time, and ordinary citizens can’t reasonably be expected to attend,” Downey said. “This was the only way we could ensure there was broad public access to the trial proceedings.”

The transcripts provide a wealth of information for reporters or others who want to follow the day-by-day developments but can’t be in the courtroom in person. While a livestream of the trial would be better (and there’s no reason for court rules that forbid it), access to daily transcripts is the next best thing.

Fight for your right of access

These changes have significantly increased public access to the Google antitrust trial. But they probably never would have happened without public pressure on the court and legal filings demanding greater access.

As this case shows, the public and the press’s right of access to our justice system can’t be taken for granted. When courtroom doors are closed, journalists and news outlets must push them back open.

“Food Lion - Clarksville, VA” by Virginia Retail is licensed under CC BY 2.0 DEED.

If you’ve gone to journalism school in the last quarter century you’ve likely heard of the Food Lion case. A federal appellate court found that journalists who got jobs at Food Lion grocery stores to investigate food safety violations breached a duty of loyalty by misleading Food Lion and trespassed by entering employee areas they accessed under false pretenses.

Often presented to young journalists as a cautionary tale, the landmark case significantly slowed the once relatively common practice of “undercover” journalism. Lawyers who thought that the subjects of news reports could not recover damages in court as long as the facts reported were true, now saw a new risk: punitive damages based on newsgathering methods, as opposed to the content of the reporting.

As a result, hidden-camera and other surreptitious investigations were largely abandoned by many mainstream outlets and are now often associated with fringe (and often disreputable) platforms.

Appellate court says never mind

But this year, the Fourth Circuit — the same appellate court that decided Food Lion — all but overruled itself. The change of mind came in a case in which the People for the Ethical Treatment of Animals, or PETA, and others challenged a North Carolina “ag-gag” law against undercover investigations at agricultural facilities.

The appellate court agreed that the law could not be weaponized against constitutionally protected newsgathering. Freedom of the Press Foundation joined a brief by the Reporters Committee for Freedom of the Press supporting PETA’s position.

The government argued that the ag-gag law was passed to codify the Fourth Circuit’s decision in the Food Lion case. But the appellate court said that’s irrelevant because, in hindsight, Food Lion was wrong. As the North Carolina Supreme Court had already recognized, the journalists acting as food-counter clerks did not breach a duty of loyalty to the grocery chain and, therefore, could not have trespassed, because Food Lion let them in.

And this month, the Supreme Court declined to review the case. That leaves Food Lion seriously weakened if not dead altogether.

Food Lion’s significance was always overstated. While a jury verdict awarding Food Lion over $5.5 million in damages made headlines, the judge cut the damages to $315,000 and then the appellate court cut the total to a whopping $2.

One of the reasons lawmakers in North Carolina wanted to codify the case was so future Food Lions could recover real money. If Food Lion began as a $2 case, few would have given it much thought. But by the time the appellate court cut the damages (and by the time the North Carolina Supreme Court said that the Fourth Circuit got it wrong), the harm was already done by the publicity around the initial verdict.

There’s no telling how many stories the public missed out on as a result of the changes to journalism — both legal and cultural — brought about by Food Lion. We’re a long way from the days when a news outlet might go as far as to open a fake tavern so they could report firsthand on city officials’ shakedown attempts.

Don’t rush to put your hidden cameras back on

To be clear, we’re not suggesting that journalists everywhere start submitting false job applications and wearing hidden cameras. Please, talk to a lawyer before you do anything like that.

The PETA case clarified that the ABC journalists didn’t owe Food Lion a duty of loyalty when working as food-counter clerks, but the court might have viewed the issue differently if, for example, they’d falsely applied for a more senior role. There have been other cases decided and laws passed since Food Lion that may affect journalists’ rights in different jurisdictions. State laws on recording conversations without consent can also vary widely.

Unfortunately, cases involving unsympathetic outlets, which have taken the lead on undercover investigations since Food Lion, tend to yield bad outcomes. Last year, a federal jury in Washington, D.C. found Project Veritas liable after its operatives used fake names and backstories to obtain internships with Democratic consulting firms.

And the Ninth Circuit Court of Appeals held last year that the First Amendment did not protect anti-abortion activists who gained access to Planned Parenthood personnel by posing as exhibitors from a fake company. The Supreme Court also declined to review that decision, which relied on a questionable attempt to distinguish damages allegedly caused by the activists’ deceptive conduct itself from those caused by their subsequent publications.

And there may be ethical issues with surreptitious newsgathering even when it’s legal. The Society of Professional Journalists’ Code of Ethics advises journalists to “Avoid undercover or other surreptitious methods of gathering information unless traditional, open methods will not yield information vital to the public (emphasis added).”

But do consider if there’s a place for stealth journalism

But we do think it’s worth noting that journalists have been limiting their reporting techniques for decades based, at least in part, on an incorrect ruling that has essentially been rescinded.

And the PETA case isn’t the only recent crack in the supposed black-and-white rule that journalists can be punished under “generally applicable” laws. The Department of Justice recently admitted that protest dispersal orders need to accommodate journalists so they can report on the aftermath of a dispersal. The NYPD similarly agreed in a settlement to stop dispersing journalists covering protests.

Perhaps this is indicative of a broader acceptance that, especially with petty offenses like trespass, the public good of enforcing generally applicable laws needs to be weighed against the public harm of silencing journalists.

These days, everyone from political campaigns to sports leagues to government agencies is sealing off people and spaces to which the press used to have access, and the press’s response has often been limited to complaining in editorials. Perhaps it’s time for the press to — carefully and in close consultation with legal counsel — think creatively about ways to get in through the back door when newsmakers won’t let them in the front.