Freedom of the Press

This is the second in a series of profiles of independent journalists who use public records to hold local governments accountable. The first, about Lisa Pickoff-White of the California Reporting Project, is available here.

When enterprise and investigative reporter Hannah Bassett arrived in Arizona to report for the Arizona Center for Investigative Reporting, she was looking forward to helping the public understand some of the statewide health disparities affecting local communities through her stories. Just a few weeks into her beat, Bassett filed the first of many public records requests that helped piece together one of the largest Medicaid fraud campaigns in modern U.S. history.

Bassett’s story investigated a deadly scheme created by behavioral health providers who fraudulently billed Arizona’s Medicaid agency for services never provided. The scheme targeted Native American individuals by exploiting a Medicaid plan for which only American Indians and Alaska Natives are eligible, interrupting services and leaving health care and sober living homes with little to no regulation or oversight, with tragic results.

“It was apparent pretty early on that there was going to be a lot of unprecedented elements to this, in terms of what the public records showed,” said Bassett. “They showed there were signs early on that staff noticed and tried to report up escalating claims, which was sort of a canary in the coal mine, and that something wasn’t working.”

Requesting and collecting public records for Bassett’s story was a team effort. Bassett and her colleagues had to refine and amend multiple requests to get a response from the government. Eventually, Bassett said it felt like the Medicaid agency was dragging its feet, so she enlisted the help of the Reporters Committee for Freedom of the Press to send a demand letter and ultimately obtain records that pieced together a timeline.

“It’s understandable that some information coming out might not be in an agency’s interest, but that doesn’t mean it’s not in the public’s interest.”

“In Arizona, the public records statute allows for the state agencies to claim an exemption if a record is in the state’s interest to withhold,” Bassett said. “It’s understandable that some information coming out might not be in an agency’s interest, but that doesn’t mean it’s not in the public’s interest.”

Investigative reporting isn’t just about public records — it’s about trust. To build that trust among the Native communities she was covering, Bassett shadowed local Indigenous advocates in their outreach to individuals facing housing and food insecurity and leaned on her reporting partner, Mary Hudetz, who provided an essential perspective as an Indigenous person herself. Weaving Hudetz’s public records reporting on the death toll in these communities with the internal agency records Bassett obtained helped humanize and ground the story for readers.

“If it were just my line of reporting, that would have been really dry and hard for people to latch on to,” Bassett said. “Ultimately, being able to come out with that story that felt very complete with both sides and having stuck on the story long enough to get those records felt like a real win.”

Bassett’s interest in journalism piqued after a narrative and documentary class her senior year of college. She ultimately decided to pursue a reporting career and received her master’s degree from Stanford University’s journalism program, which puts emphasis on using data to tell stories.

“I was trying to find that balance of writing about issues that I felt were in the public’s interest, trying to break down complex policy matters to help the public understand what that meant on a more individual or community level,” Bassett said. “I had experience using public records requests already, and knowing how to use some programming languages and data analysis skills was going to help me know what to do with big sets of government data that I might get from an agency.”

Bassett is now based in Burlington, Vermont, where she covers the state legislature for an alternative, independent newspaper, Seven Days.

When The Associated Press didn’t bow to President Donald Trump’s demand to refer to the Gulf of Mexico solely as the “Gulf of America,” he barred the news service from events in the Oval Office and on Air Force One. And when a judge determined that Trump’s decision to do so was unconstitutional, he spiked the permanent press pool slot for wire services entirely.

These decisions to shun newsrooms may sound like the product of a tantrum — and they are — but there is also a pattern at play: Trump is testing the limits of the First Amendment.

This (un)constitutional experiment started in his first term, when he revoked the credentials of individual journalists he disliked. One of them was Brian Karem, a former White House correspondent who covered Trump for Playboy.

Karem spoke about that experience and today’s press restrictions in a webinar hosted by Freedom of the Press Foundation (FPF) on April 16, 2025. He was joined by Caitlin Vogus, senior adviser at FPF, and Stephanie Sugars, who regularly reports on issues of press access to the White House as senior reporter for the U.S. Press Freedom Tracker, a project of FPF.

Karem, who successfully sued the Trump administration three separate times to get his press pass reinstated, emphasized that Trump’s denial of access to the AP is also a broader attack on wire services like Reuters and Bloomberg. Cash-strapped local newsrooms often rely on wire reporting to fill pages and inform readers, which is much harder to do when those services are sidelined.

“The whole point of this is to limit those who will ask questions that Donald Trump doesn’t want to answer,” Karem said during the webinar. “The effect, of course, for people across the country, is a slanted view of the news.”

In cherry-picking who can cover him, Trump is restricting access to the White House to only those willing to stoop to his demands, Sugars said.

“It’s alarming when you see all of these things in conjunction with each other and just how effectively this administration is taking steps to ensure that the only message that is getting out is one that they approve of,” she said.

The consequences are grave, including less-experienced journalists in the press room and fewer outlets reporting on the administration with the required scrutiny, Karem said. That enables Trump to hide more from the American public, which is therefore less equipped to hold him accountable.

“Donald Trump is asking, ‘Who are you with? What company are you with?’ because he wants to know so he can come back and say, ‘Oh, I like you.’” Karem said. “He has turned himself into a dictator with sycophants asking him questions.”

Trump’s effort to exert control over the press extends to major networks, too, Sugars said. Brendan Carr, chair of the Federal Communications Commission, has opened investigations into outlets including NPR, PBS, CBS, ABC, and NBC, and the Trump administration recently gutted the U.S. Agency for Global Media, which oversees Voice of America.

“It’s been a bit of an onslaught and coming from a lot of different angles, from within the White House, the Trump administration, and his allies more generally in Congress,” Sugars said.

While Trump is the most vocal anti-press president in recent memory, Karem said he isn’t the first to retaliate against journalists and their sources. He noted that Barack Obama used the Espionage Act nearly a dozen times to target whistleblowers.

“I have covered every president since Ronald Reagan. Every one of them has been complicit and guilty about destroying the First Amendment, free speech, and destroying our ability to use confidential sources,” Karem said. “Donald Trump is merely a symptom of the problem.”

Restriction and intimidation aren’t excuses for the press to throw in the towel. Karem said that newsrooms must find other ways to retrieve vetted factual information, which he described as “the coin of the realm.”

If they can’t access a press briefing or pool reporting seat, reporters can still focus on sourcing, building deeper relationships with those on their beats, and gathering information from people and places where restrictions don’t apply, Karem said.

“You’ve got to stand up to a bully,” he added. “There is nothing that is more antithetical to the idea of free press, free speech, and speaking truth to power than the moves that Donald Trump has made in his second administration.”

Perhaps the most famous adage of journalism — get the truth and print it — continues to face attacks in our courts, and judges often fail to stop them.

A recent case comes from Victoria County, Texas, where last month a judge entered a temporary order preventing the publication of a book about alleged sexual harassment by former Phi Theta Kappa Honor Society director Rod Risley.

The court lifted the order on April 8, but only after the honor society had stopped the book from being published on the first day of its national convention, when it would have had the greatest impact.

Phi Theta Kappa, which sought the restraining order against author Toni Marek, hadn’t claimed that the information in her book is false. By its own admission, Marek received the information legally, either through public records requests or by speaking to former employees. But the honor society argued that the book shouldn’t be published because information in it is “confidential.” A judge initially agreed.

This isn’t the only order barring publication, known as a prior restraint, that Phi Theta Kappa has sought in recent times and won.

In a separate lawsuit, Phi Theta Kappa obtained an order prohibiting the competing HonorSociety.org from speaking about it online. Among other things, the order forbade HonorSociety.org from editing Phi Theta Kappa’s Wikipedia page or publishing independent reporting on Risley, regardless of whether those edits or publications were true.

A federal court of appeals recently struck down the order as overly broad.

The initial decisions granting the ban on Marek’s book and the gag on HonorSociety.org both suffer from the same glaring problem: the First Amendment.

The First Amendment prohibits prior restraints in all but the most extreme circumstances. In 1971, the Supreme Court even rebuffed the government’s attempt to stop the press from publishing the Pentagon Papers, documents the government claimed contained state secrets that could harm national security.

Censorship orders harm our freedom of speech no matter how long they last.

The Court has also repeatedly affirmed the First Amendment right to publish lawfully obtained, truthful information on matters of public concern.

But even though these censorship orders are supposed to be extremely rare and are almost always unconstitutional, prior restraints seem to be persisting.

One reason may be that judges are failing to recognize the First Amendment interests at stake when someone asks for a prior restraint on an "emergency" basis, as Phi Theta Kappa did in the case of Marek’s book. Because the honor society sought a temporary restraining order, Marek didn’t have a chance to appear in court and argue her side before the judge entered the initial order banning publication.

This isn’t a problem isolated to Texas. In February, a Mississippi court ordered The Clarksdale Press Register to remove an editorial criticizing Democratic Mayor Chuck Espy’s office for failing to properly notify the public of a special meeting, as required by state law. The city government claimed the editorial was defamatory, even though the city clerk admitted in an affidavit that she had failed to follow the notification law.

First Amendment experts immediately condemned the order. But as in Marek’s case, the city sought a temporary restraining order and the court granted it without giving the Press Register a chance to respond to the allegations or raise First Amendment arguments. Only after a national outcry did the city drop its suit and the court lift its censorship order.

Even though courts eventually ended the prior restraints on Marek, HonorSociety.org, and The Clarksdale Press Register, the fact that they entered them at all is a huge problem. Censorship orders harm our freedom of speech no matter how long they last.

It’s also a problem that nobody involved stopped to think about the First Amendment, at least at first. Both lawyers and judges need to do more to protect the constitutional rights of the public and the press.

Every lawyer in America is taught constitutional law, and even the most cursory legal research would turn up Supreme Court precedent on prior restraints. Lawyers seeking prior restraints have an ethical obligation to disclose law that cuts against their case to the court. But far too many emergency requests to censor speech fail to mention even the most well-known First Amendment decisions.

Judges, too, should hear First Amendment alarm bells ringing when they’re asked to restrain speech. When someone seeks an emergency order prohibiting speech, judges shouldn’t simply accept their arguments. They must independently research the law to be sure that their orders don’t violate the Constitution. They also can and should sanction lawyers who fail to mention any of the many cases prohibiting prior restraints.

Giving the proper attention and weight to freedom of speech isn’t too much to ask of our legal system. When lawyers and judges neglect their professional responsibility and neglect the Constitution, we all become vulnerable to censorship.

Dear Friend of Press Freedom,

Here are this week’s top press freedom stories, plus updates on our work at Freedom of the Press Foundation (FPF).

A series to spotlight public-records-based local journalism

A major reason why politicians are able to attack the press without much resistance is that the public distrusts the media. And one of the reasons for that distrust is that when people think “journalist,” they often think of partisan cable news pundits rather than the thousands of local investigative reporters serving communities across the country. 

We’re hoping to play a small part in changing that by profiling local journalists who use public records laws to hold local governments accountable (as well as other noteworthy reporters whose work flies under the radar). We’re starting the series this week with a profile of Lisa Pickoff-White, director of the California Reporting Project. CRP pools public records resources so California journalists can benefit from each other’s public records hauls. Read the profile here. 

Unjust law helps muzzle incarcerated journalists

With the Trump administration throwing abductees in shady jails and prisons from Louisiana to El Salvador, it’s essential that incarcerated journalists can expose the conditions they’re dealing with. 

But as incarcerated journalist Jeremy Busby explains in his latest article for FPF, not only do imprisoned journalists face relentless retaliation, they’re also systemically obstructed from seeking recourse from the courts by the Prison Litigation Reform Act. Read more here.

When it comes to issuing prior restraints, courts ‘just do it’ 

A recent decision from a federal appellate court related to the Oregonian’s quest for access to court records in a sexual harassment lawsuit against Nike means journalists who intervene in litigation to unseal court records could subject themselves to “prior restraints,” or judicial orders barring them from reporting news related to the case.

That’s why FPF joined a coalition of media companies and press freedom groups represented by attorneys at Davis Wright Tremaine to file an amicus brief supporting the Oregonian’s request that the full appeals court reconsider this unprecedented decision. Read more here.

An existential threat to congressional investigative powers

Secretary of Homeland Security Kristi Noem and Secretary of State Marco Rubio are just two of the officials ignoring congressional requests for information about their agencies. This stonewalling, combined with the mass firings at executive branch Freedom of Information Act offices, represents an existential threat to Congress’ investigative and oversight powers.

Every member should vocally defend FOIA offices. Not doing so could undermine the entire legislative process. Read more here from our Daniel Ellsberg Chair on Government Secrecy Lauren Harper.

What we’re reading 

El Salvador’s president says he won’t return mistakenly deported man to US (NBC News). This is the authoritarian ratchet. If Trump can arbitrarily “disappear” non-citizens in El Salvador, anyone else could be next — including journalists who report on his administration.

No evidence linking Tufts student to antisemitism or terrorism, State Department office found (The Washington Post). Congress must demand the full release of this memo. The administration can’t be allowed to justify abductions and deportations of op-ed writers with vague claims of antisemitism. 

White House moves to limit newswire access after AP lawsuit win (Bloomberg). This will harm local news outlets everywhere, but particularly in rural areas where Trump is popular and cash-strapped newspapers rely on wire services for national stories. 

State terror (Thinking About…). “The first part of controlling the language is inverting the meaning: whatever the government does is good, because by definition then its victims are the ‘criminals’ and the ‘terrorists.’ The second part is deterring the press.”

Trump’s FCC chairman is sporting a gold Trump-head pin, and it’s eerily similar to historical pins from world dictators (Buzzfeed). Trump keeps making ridiculous, illegal demands for the Federal Communications Commission to help him punish his enemies. Don’t hold your breath for the FCC chair to push back — he’s wearing a golden bust of Trump as a lapel pin. 

Mahmoud Khalil’s battle is not over (Jacobin). An immigration judge’s ruling that Mahmoud Khalil can be deported for his pro-Palestinian political speech —  during a hearing in which journalists were once again shut out of the virtual room — sets a dangerous precedent. 

A key fight over the most infamous police project in the country is coming to a head (Slate). A slush fund for corporations to secretly bankroll police projects is arguing against transparency because it might turn people against those projects. That’s absurd. There should be no tolerance for shell games to duck open records obligations.

Five Colorado Springs news outlets scrub their websites of an article about the arrest of former GOP council member (Colorado Times Recorder). Sealing arrest records doesn’t change the fact that someone was arrested. Good for the Colorado Times Recorder for standing up to a former city council member who tried to pressure it into removing an accurate story about her past arrest.

Here’s how to share sensitive leaks with the press.

When journalists at The Oregonian started reporting on a sexual harassment lawsuit against Nike, they knew that sealed documents in the case could provide vital information. Little did they know that going to court to get them could mean undercutting their First Amendment rights.

A recent decision from a federal appellate court related to the Oregonian’s quest for access means that journalists who intervene in court cases to try to unseal court records could subject themselves to “prior restraints,” or judicial orders barring them from reporting news related to the case.

That’s why Freedom of the Press Foundation (FPF) joined a coalition of media companies and press freedom groups to file an amicus brief supporting the Oregonian’s request that the full appeals court reconsider this unprecedented decision.

Fight for access to Nike lawsuit records

In 2022, The Oregonian moved to unseal certain documents from a lawsuit brought by four former female employees at Nike who claimed the sportswear company fostered a “culture of unequal compensation and sexual harassment.” Of central interest to the news outlet were the individuals named in internal company documents about allegations of discrimination and harassment.

Around the same time, an Oregonian journalist met with the lawyer for the plaintiffs as part of their reporting on the case. During the meeting, the lawyer inadvertently sent the reporter confidential documents from the lawsuit.

It can’t be right that journalists who go to court to vindicate the public’s First Amendment right of access to court records have fewer First Amendment protections than journalists who don’t.

Typically, when journalists receive secret documents, they want to report on them—and the First Amendment protects their right to do so. But in this case, the court ordered The Oregonian to return or destroy the documents and prohibited it from publishing any information obtained from them.

The Oregonian objected, but a panel of judges from the U.S. Court of Appeals for the 9th Circuit ruled that the news outlet could be required to return or destroy the documents. The appeals court said that The Oregonian became a party to the case when it intervened in the lawsuit to seek the unsealing of the records and, as a result, it could be restricted from publishing them without violating the First Amendment rights it would enjoy as a nonparty news outlet.

Losing First Amendment rights by exercising them

The Court of Appeals’ decision is yet another example of courts ignoring key precedent on prior restraints. The Supreme Court has made clear time and again that prior restraints can be justified in only the most extreme circumstances.

If the court didn’t approve of a prior restraint on publication of the Pentagon Papers — which the government claims contained national security secrets — it seems obvious that it wouldn’t approve of a prior restraint on documents describing sexual harassment complaints at a shoe company.

But perhaps even more worrying than the court’s ignorance of prior restraint precedent is its position that The Oregonian forfeits its First Amendment right to publish the documents because it intervened in the lawsuit to vindicate another First Amendment right — the right of access to judicial documents.

Journalists move to unseal court records all the time. While the First Amendment gives every member of the public the right to access court records and proceedings, the Supreme Court has specifically noted the special role journalists play in exercising that right and using it to inform the public.

But as the attorneys from Davis Wright Tremaine wrote in the amicus brief we joined, the appeals court’s decision “effectively penalizes news outlets that intervene to unseal court records while also gathering information on the same topic through other reporting methods.”

To understand why this punishes journalists, imagine if The Oregonian had never intervened in the Nike lawsuit to try to unseal documents. If everything else still played out the same — its reporter met with a lawyer and the lawyer inadvertently sent the reporter sealed court records—there would be no question that the reporter would have a First Amendment right to publish those documents.

But if the appeals court’s decision stands, journalists who go to court to unseal documents won’t have the same First Amendment right to publish documents they independently obtain through interviews, public records requests, or even anonymous leaks.

That’s a problem because, as our brief explains, many important news stories, from the Miami Herald’s reporting on the Jeffrey Epstein case to The Boston Globe’s Spotlight investigation of child sexual abuse by the Catholic Church, relied on both unsealing court records and shoe-leather reporting.

It can’t be right that journalists who go to court to vindicate the public’s First Amendment right of access to court records have fewer First Amendment protections than journalists who don’t. The full Court of Appeals must reconsider this case and right this backward decision.

This is the first in a series of profiles of independent journalists who use public records to hold local governments accountable. The second, about Hannah Bassett's investigation of Medicaid fraud in Arizona, is here.

Lisa Pickoff-White fell in love with — and experienced the hurdles of — records reporting as a journalism graduate student at the University of California, Berkeley, where she participated in a project to investigate and report on the 2007 murder of Oakland Post editor Chauncey Bailey.

The effort brought together newsrooms to finish Bailey’s reporting on violence and fraud in a San Francisco bakery, which the investigation revealed had long-standing ties with local politicians and police.

“That experience really opened up my eyes to both records reporting and data journalism,” Pickoff-White said. “I realized there was this whole other side of journalism that, even though I had been working in it, that I didn't even really know anything about, and it was something that I was excited to pursue. I immediately was like, ‘This is grueling, difficult work, but it’s work I really want to do.’”

Now, 15 years later, that training continues to pay off, as Pickoff-White’s California Reporting Project sends out more than 700 public records requests to law enforcement agencies each year. In fact, since its inception in 2018, the project has surpassed 3,500 records requests. Pickoff-White, the project’s director, doesn't plan on slowing down.

“One of the things that draws me to journalism is those known unknowns,” Pickoff-White said. “Like, making visible what is hard to see. Being able to connect the dots. I think systems reporting is one of the things that I love about reporting and records research. It allows you to take people’s lived experiences, back it up with data and say, this is occurring and it is occurring more than once, and to give people some context on why it might be occurring as well.”

Systems reporting "allows you to take people’s lived experiences, back it up with data and say, this is occurring and it is occurring more than once, and to give people some context."

The California Reporting Project was born after the state’s Right to Know Act was enacted in 2018, allowing the public to request police reports and reports related to law enforcement’s use of violence and other kinds of misconduct. Hosted by UC Berkeley’s Investigative Reporting Program, the project is a collaborative database with records shared from reporters at 40 news organizations across the state.

“One of the real successes of this project is we’ve already published more than 100 stories out of these records,” Pickoff-White said. “Ever since we started sending requests on January 1, 2019, people have had access to these records and have been able to report out of them. And that’s really important to me, because these are public records.”

With newsrooms increasingly cash-strapped, the cost and time it takes to make and appeal public records requests can be prohibitive. The reporting project’s database collects records obtained from records requests. It also monitors pending requests. That way, reporters can avoid duplicating efforts and instead rely on materials other requesters obtain to use for their own coverage.

“It’s really time-consuming and hard and can cost a lot to make a record request,” Pickoff-White said. “I really encourage other reporters to come together to collaborate on this, because together, we’re stronger. If you could find a way to work with people to invest in the time up front pays dividends in the end.”

With the Trump administration throwing its abductees in shady jails and prisons from Louisiana to El Salvador, it’s essential that incarcerated journalists and whistleblowers are able to expose the conditions they’re dealing with. That is unless you trust Donald Trump’s cronies to admit to abuses.

But incarcerated journalists nationwide face relentless retaliation for speaking truth to power, and they’re systemically obstructed from seeking recourse from the courts.

After I reported on Texas prison officials’ inadequate response to the COVID-19 pandemic, I was charged in bogus disciplinary cases, repeatedly transferred to different prison facilities, tossed into solitary confinement, assaulted with chemical agents, and held in a cell for weeks without basic necessities, like soap, toothpaste, deodorant, a mattress, and writing supplies.

When all my administrative complaints failed to stop the infringement upon my constitutional rights by rogue prison officials, I turned to my only other option — the federal courts.

Being a layman of the law, I failed to realize that my decision to file a civil rights lawsuit against prison officials came with insurmountable judicial hurdles and dire consequences. It was an awkward and untimely introduction to the Prison Litigation Reform Act.

Signed into law by President Bill Clinton in 1996, the PLRA placed extreme restrictions on incarcerated individuals’ ability to file, win, or settle civil rights lawsuits. Lawmakers argued that there were too many frivolous lawsuits against the government.

But the law severely obstructed the pathways for all incarcerated individuals to obtain justice and crippled incarcerated journalists’ ability to make human rights violations known to the public.

The Prison Litigation Reform Act severely obstructed the pathways for all incarcerated individuals to obtain justice and crippled incarcerated journalists’ ability to make human rights violations known to the public.

Historically, the federal courts were a major source of oversight for prisons and jails. In my home state of Texas, civil rights lawsuits filed by a handful of prisoners led to the class action litigation, Ruiz v. Estelle, that completely transformed the deplorable conditions inside Texas prisons and restored incarcerated constitutional rights.

Judge William Wayne Justice presided over one of the longest periods of federal judicial oversight of a prison in U.S. history, issuing a consent decree that spanned over three decades.

The Ruiz litigation, despite being credited as one of the glaring examples of judicial checks on violations of constitutional rights, would not have stood a chance today.

The PLRA imposes strict challenges on incarcerated litigants that are oftentimes impossible to meet. These limits force the court to dismiss the vast majority of legitimate complaints from incarcerated individuals over the smallest technical issues.

For incarcerated journalists, the unavailability of recourse when they’re retaliated against — as they so often are — exponentially increases the “chilling effect” of potential retaliation. The message is, if you criticize us in your writing, we can do whatever we want to punish you and, with the PLRA, there won’t be anything you can do about it.

Struggling with the ‘exhaustion doctrine’

The exhaustion doctrine mandates that all incarcerated individuals first present each of their grievances to prison administrators through the internal grievance system before suing. If they don’t, the courts are required to dismiss the lawsuit immediately.

This rule fails to consider how prison internal grievance systems are littered with indirect and direct obstructions. Accessing the approved grievance form, meeting deadlines, understanding the grievance process’s convoluted rules, and getting the grievance to the proper prison official are easier said than done.

For example, after I was transferred to three different prisons in five days and tossed into a solitary confinement cell without any personal property, I was a drowning man without a life preserver.

First, I knew none of the staff or incarcerated individuals to enlist them to provide me with an approved grievance form and a pen so I could fill it out.

Secondly, if I was successful in obtaining the form and a pen, the grievance rules only permit me to raise "one issue" per grievance, and one grievance per week, so I have to make the unfair decision of which constitution violations to seek redress for and which ones to overlook. If I cite two violations in one grievance I violate restrictions placed by the PLRA. Texas prison grievance rules allow only 15 days to file grievances about any violation.

Finally, after overcoming those hurdles, I would have to rely on the same guards who were responsible for the violations to process my grievance form, since I was locked in solitary confinement, prohibiting my access to the grievance staff or the designated filing box. There is no system set up to confirm if a grievance has been processed or not. The smallest misstep in this process renders your lawsuit moot by PLRA.

Insurmountable obstacles for legal layman

While I was a staff reporter at the prison newspaper, I was instructed to write all my articles on an eighth grade level. That was the level at which prison officials felt that an average incarcerated individual reads. I have a degree from the University of Houston-Clear Lake, and yet when I made the decision to file my civil rights complaints I could barely make sense of all the rules and statutory language of the courts.

Prison law libraries are stocked with complex and outdated legal books. Simplified DIY books are not available. There is no road map for where to begin. The PLRA requires that specific procedures are followed, which include very tight deadlines. Not understanding and following all of these procedures will result in the dismissal of an incarcerated individual’s lawsuit.

Very few incarcerated individuals, including educated journalists like myself, have the legal aptitude to navigate the complexities of the PLRA.

Very few incarcerated individuals, including educated journalists like myself, have the legal aptitude to navigate the complexities of the Prison Litigation Reform Act.

My lawsuit listed multiple prison officials from four different facilities as defendants. As a result of rules implemented following the passage of PLRA, the federal judge broke my lawsuit up into four separate proceedings and reassigned each of them to four different federal courts.

This process — the opposite of the Ruiz case, where multiple claims were joined together in a class action — completely overwhelmed my already disadvantaged ability to meet all the rigorous rules of the courts.

Despite all of the documented evidence of prison officials violating my constitutional rights by denying me freedom of speech and due process, discriminating against me, and subjecting me to cruel and unusual punishment, my lawsuit was dismissed over a procedural error before the merits were ever considered.

Disincentivizing lawyers from taking cases

Finally, because of restrictions imposed by the PLRA, attorneys are discouraged from taking cases on behalf of incarcerated individuals.

For example, the PLRA dramatically restricts financial compensation incarcerated individuals can be awarded for injuries resulting from constitutional violations, and the legislation places a cap on attorney’s fees incarcerated plaintiffs can recover at 150% of any financial damages awarded.

As the Prison Policy Initiative has explained, that cap is highly restrictive because damages awarded to incarcerated people, in the rare event that their cases get that far, are usually nominal at best.

That results in a mere 7.6% of incarcerated litigants being represented by attorneys in civil rights lawsuits as of 2020, compared to 89.8% of nonincarcerated litigants.

PLRA should be repealed

The PLRA has served no real societal interest since its passage. It has done nothing but stop incarcerated individuals from advocating for their inalienable human rights.

The outrageous abuses inside America’s prisons that have been exposed in recent years should motivate lawmakers to provide incarcerated people with more, not less, access to the legal system. Maybe some incarcerated people file frivolous lawsuits, but so do people on the outside — it’s not a reason to deprive everyone else of legal recourse.

The PLRA’s unreasonable restrictions have bound the hands of federal judges to consider legitimate complaints from incarcerated individuals, hold rogue prison officials accountable, enforce court orders, and compel policy change.

Simultaneously, it unleashed prison officials’ ability to violate incarcerated individuals’ basic constitutional freedoms — including the rights of incarcerated journalists.

It has also restricted the basic function of journalists outside prison, and the taxpayers who read the news, to monitor how public funds are spent.

Outside journalists’ access to incarcerated sources and prison records is severely limited. Trials and court files are among the few places they can find the truth about what goes on on the inside. But when cases are dismissed on technicalities before a judge or jury considers the merits, journalists can’t discern which allegations are true.

Repealing the PLRA is a step toward justice for all. Incarcerated journalists are routinely targeted and subjected to all types of cruelty. Like journalists on the outside who run into oppressive government officials, we depend on recourse from the federal courts to serve as our last line of defense, as our news reporting often does for the incarcerated population and the American public.

Dear Friend of Press Freedom, 

Protecting press freedom is protecting democracy — here are the latest issues to know about. 

Deportation hearings must be transparent

Nearly 600 people tried to watch an immigration hearing in the case of detained activist and U.S. legal permanent resident Mahmoud Khalil on April 8, only to find themselves shut out of the virtual room. 

We led a letter from press freedom organizations to the judge explaining that in-person access in rural Louisiana is not sufficient for a case of major national and international significance like Khalil’s. Interest in the case is only heightened now that the government has filed a memorandum conceding that its only “evidence” against Khalil is of his involvement in protesting the Israel-Gaza war. 

The government is likely to assert a similar theory in the case of Rümeysa Öztürk, a Tufts University graduate student who was also abducted by federal agents and brought to Louisiana, in her case apparently over an op-ed she co-authored criticizing the war. 

Attacks on law firms are attacks on the press

The Trump administration’s strong-arming of lawyers the president doesn’t like could have significant consequences for those he calls “the enemy of the people”: the press. 

That is why 61 media organizations and press freedom advocates, led by The Intercept’s Press Freedom Defense Fund and Freedom of the Press Foundation (FPF), filed a legal brief urging a court to strike down an executive order sanctioning a law firm for representing President Donald Trump’s political opponents. 

“Newsrooms are broke and FOIA is broken. Journalists face the threat of SLAPP suits, subpoenas, arrest, and, these days, even deportation, just for doing their jobs,” said Seth Stern, FPF’s advocacy director. “Now more than ever, reporters need access to quality pro bono representation to overcome these obstacles and hold the government accountable. If an anti-free speech president can shake down law firms that represent clients he doesn’t like, press freedom will suffer immeasurably, and the American public will be less informed.” 

Read more here. And thanks to the attorneys at Albert Sellars LLP for their great work on the brief and for responding to Trump’s bullying the right way.

Signalgate shows chilling effect of Assange prosecution 

There’s been plenty of speculation over how journalist Jeffrey Goldberg found himself on a Signal thread with top-level administration officials. But people don’t seem as curious about an arguably more consequential question: Why did Goldberg leave a chat that could have generated countless important scoops? 

Our guess is The Atlantic’s lawyers warned about the Espionage Act — the law used to prosecute WikiLeaks founder Julian Assange for obtaining and publishing government secrets. We should not have a purported “espionage” law on the books that is so vaguely drafted that it could conceivably give an experienced journalist pause when news falls in his lap. Stern has more here.

Firing FOIA officers is not ‘radical transparency’

“Hello, the FOIA office has been placed on admin leave and is unable to respond to any emails.”

This doesn’t sound like “radical transparency” to us.

Check out the latest edition of (and subscribe to) “The Classifieds,” a newsletter by our Daniel Ellsberg Chair on Government Secrecy Lauren Harper, to see which Freedom of Information Act offices have closed, and which might be next. 

And read more from Harper about this week’s congressional hearing on FOIA, where no FOIA officers could testify in the midst of widespread closures and firings. 

What we’re reading 

Judge orders White House ban on AP lifted (The Washington Post). “The judge got it right,” Stern told the Post, “but it should never have taken this long.”

Open letter to chair and ranking member of House Committee on Energy and Commerce (Internet Society). We joined with other rights groups to ask Congress to protect encryption and the journalists who rely on it by fixing the Take It Down Act. 

Lawyer for U-M protester detained at airport after spring break trip with family (Detroit Free Press). If this is happening to protesters’ lawyers now, there's no reason to think it won't happen to journalists or lawyers who represent them soon. 

US student journalists go dark fearing Trump crusade against pro-Palestinian speech (The Guardian). It’s a sad day in America when student journalists must resign or write anonymously because they fear government reprisals.

D.C. Attorney nominee’s threats against critics of Elon Musk and DOGE mire him in disqualifying ethics scandal (Demand Progress). Ed Martin’s conduct as interim U.S. attorney “shows that he intends to convert the office into a taxpayer-funded law firm for Trump and his friends,” Stern said.  

PSA from John Cusack

Democracy is under attack — and paywalls shouldn’t stand in the way of accessing vital public records. Our board member, activist and actor John Cusack, discussed why more news outlets need to follow the lead of Wired and 404 Media and give their public records reporting to the public. 

How to share sensitive leaks with the press

Nearly 600 people tried to watch an immigration court hearing in the case of detained activist and U.S. legal permanent resident Mahmoud Khalil on April 8, only to find themselves shut out of the virtual room.

Journalists have been working tirelessly to get the full story since Immigration and Customs Enforcement detained Khalil, who is the first person (but sadly not the last) the Trump administration has detained and attempted to deport based on pro-Palestinian activism and speech. There’s intense public interest in Khalil’s case and what it means for the First Amendment rights of both noncitizens and citizens.

So it’s understandable that a lot of people wanted to watch Khalil’s hearing before an immigration judge in rural Louisiana this week, occurring both in person and virtually. What’s not understandable is the judge’s decision to refuse to allow members of the press and the public to access the hearing through the publicly available online link. The judge also denied a request by Khalil’s lawyer to make future hearings accessible to the press and public online.

That’s why Freedom of the Press Foundation (FPF) and a coalition of press freedom groups sent a letter to the court April 10 asking it to allow the press and the public to attend future hearings in Khalil’s case virtually. The immigration court is expected to rule April 11 on whether Khalil can be deported. The public should be there — in person and virtually — when it does.

Some members of the press were able to attend the April 8 hearing in person. But we know of at least three journalists who tried to attend online and couldn’t. There were likely many more — most news outlets don’t have the resources to send reporters across the country for court hearings. As a result, members of the public lost out on the chance to observe the hearing for themselves or to hear the observations and perspectives of the journalists who attempted to cover it virtually.

Transparency promotes trust in our justice system by allowing members of the public and the press to observe it firsthand. Immigration courts should maximize access to their hearings as a way of reassuring the public that their proceedings are fair and just, not locking the public out of the virtual courtroom.

There’s been plenty of speculation over how The Atlantic editor Jeffrey Goldberg found himself on a Signal thread with top-level Trump administration officials. The latest version of the story is that national security adviser Mike Waltz inadvertently saved Goldberg’s phone number as an alternate number for a National Security Council spokesperson.

But people don’t seem as curious about an arguably more consequential question: Why did Goldberg leave the chat? Who knows how many more scoops he could have gotten about this secretive administration’s secretive bombing campaigns by sticking around?

Goldberg claims that once he confirmed the chat was real, his work was done — he had what he needed to report on the operational security breach. Plus, according to The Atlantic’s editor, the conversation was getting too sensitive for journalists’ eyes. Those explanations didn’t sit right with some reporters. The Iraq War was far from a golden age of American journalism, but imagine if a reporter took their BlackBerry and went home after finding themselves privy to a conversation between Dick Cheney and Donald Rumsfeld.

But what if that’s not really the reason Goldberg saw himself out? What if, instead, The Atlantic’s lawyers told him he could be prosecuted for involuntarily receiving text messages? As Neiman Lab noted, Trump has not exactly been subtle about his desire to prosecute journalists who publish leaks, and Goldberg’s legal team knows that.

Professors and editors can grapple with the ethics of publishing secrets the government itself discloses, but the law should have no role in the decision.

In the past, the federal government prosecuting a journalist for its own negligence would’ve seemed absurd. No more — and not only because of Trump. Press freedom organizations spent years warning about the risks of the Biden administration continuing Trump’s Espionage Act prosecution of WikiLeaks founder Julian Assange for obtaining and publishing government secrets from a source. The case — which ended up as the first successful prosecution of a publisher (as opposed to source) under the Espionage Act — set a precedent allowing criminalization of routine journalism at presidents’ whims.

The counterargument from Biden’s Justice Department was essentially that Assange was a bad journalist, or not a journalist at all. Yes, the Espionage Act’s text doesn’t distinguish between the Assanges and the Goldbergs. But Assange’s prosecution, it was argued, nonetheless need not concern “real” journalists, who could trust the government to leave them alone.

Officials made this case with a straight face even though they’d already experienced Trump 1.0 and knew he might win again. And Trump wouldn’t even be the first to go after journalists for receiving information the government accidentally gave them.

After the administration began lashing out at Goldberg, a reporter asked me what authoritarian regime its conduct most reminded me of. My answer was Los Angeles. That city sued journalist Ben Camacho for publishing records it gave him pursuant to a public records request. The case got thrown out last year. The Supreme Court has repeatedly rejected efforts to prosecute, censor, or sue journalists for reporting what the government itself released to them. But those weren’t Espionage Act cases and the Assange case leaves open the possibility that such a prosecution could succeed.

Goldberg (mostly) published the full chat after administration officials said its contents weren’t classified, but even that might’ve caused lawyers heartburn. That’s because under the Espionage Act, it doesn’t actually matter if documents are classified. The law, enacted before the modern classification system, refers only to national defense information.

A reporter asked me what authoritarian regime [Trump's] conduct most reminded me of. My answer was Los Angeles

And as attorney Mark Rasch explained in Slate, the Espionage Act isn’t the only law that might’ve raised concerns. The Biden administration’s theory in the ongoing prosecution of journalist Tim Burke was that one can violate computer crime laws by obtaining publicly available information against the wishes of its owner. Burke, unlike Goldberg, sought out the information that got him indicted (outtakes of a Tucker Carlson interview with Ye, the rapper formerly known as Kanye West). But there’s no reason — other than the boundaries of good faith, which this administration isn’t concerned with — why that distinction would exempt Goldberg from prosecution.

People can debate whether Goldberg was too risk averse. I think he was, but that’s easy for me to say — I wasn’t the one who had to decide whether to risk prosecution. Goldberg could’ve played it even safer by not reporting on the messages at all. Some right-leaning outlets have suggested that he should have left the chat and reported his inclusion to Trump officials even sooner. But that would’ve been outright journalistic malpractice. The second safest option was exiting the chat once he knew it wasn’t a hoax, and redacting texts that appeared sensitive.

What’s more important than why Goldberg held back, or what anyone thinks of him, is why we have a purported “espionage” law on the books that is so vaguely drafted that it could conceivably give an experienced journalist pause when news falls in his lap. Professors and editors can grapple with the ethics of publishing secrets the government itself discloses, but the law should have no role in the decision.

Dear Friend of Press Freedom,

Local officials with grudges, cowardly media executives, and MAGAfied regulators are all pushing around the free press. Freedom of the Press Foundation (FPF) is here to help you push back. Read the latest. 

Local news fights press threats

When authorities in Marion, Kansas, and Clarksdale, Mississippi, attacked their local newspapers, the outrage quickly ignited across the U.S.

We wanted to hear more about how local news can fight back against unconstitutional efforts to quash the free press, so last week, we spoke to Clarksdale Press Register Publisher Wyatt Emmerich and Marion County Record Publisher Eric Meyer.

In both cases, the officials involved had long-standing grudges with the newspapers over critical coverage long before the attacks made national headlines. But once the national spotlight turned to Marion and Clarksdale, officials’ attempts to silence local reporting failed. 

Still, if attacks like these can happen in Clarksdale or Marion, they can happen anywhere. For more on how Emmerich and Wyatt successfully pushed back, read more about our interview or watch it here.

When the First Amendment fails, try the Fifth

Chicago journalist Jim DeRogatis is no criminal, but in 2008 he pleaded the Fifth Amendment to avoid testifying at music superstar R. Kelly’s trial because the video of Kelly’s crimes that a source gave him was, technically, illegal to possess. Despite the unlikelihood that he’d be prosecuted for involuntary receipt of a newsworthy video, the mere possibility was enough to invoke his privilege against self-incrimination. 

It’s a strategy that more journalists unfortunately may need to consider, given the absence of a federal reporter’s privilege law and the inconsistency among state laws. And prosecutors and police around the country are giving reporters more justifications to plead the Fifth than ever before with their frequent efforts to criminalize routine newsgathering. If authorities keep claiming that journalism is a crime, journalists should take them at their word when asked to testify. Read more from our Advocacy Director Seth Stern. 

Shareholders can stop media bribes to Trump

As Paramount executives grapple with the decision of whether to settle President Donald Trump’s $20 billion lawsuit against the media conglomerate’s CBS News unit for allegedly editing an interview in favor of Kamala Harris, The Wall Street Journal has reported that at least some executives are hesitant to write a check.

It’s not because they care about the First Amendment or the precedent that settling would set for journalists. It’s because they’re scared of getting sued. As they should be.

As Stern and FPF Advocacy Intern Aleksandar Shipetich explain, settling the frivolous lawsuit to secure approval of a merger (the rumored motivation for settling the CBS News case) could amount to bribery. That would mean Paramount’s shareholders could use what’s known as a derivative lawsuit to hold executives accountable for harming the value of their shares. Read more here.

FCC’s investigation into CBS is a scare tactic

Federal Communications Commission Chair Brendan Carr’s decision to reopen the “news distortion” investigation into CBS over the editing of a “60 Minutes” interview with Kamala Harris is a scare tactic, spectacle, and a show trial intended to intimidate the press and chill free speech.

You don’t have to take our word for it — that’s how former broadcast journalists and organizations like the American Civil Liberties Union and the Foundation for Individual Rights and Expression have described the FCC’s unconstitutional “news distortion” investigation. 

We read the public comments in the FCC proceeding so you don’t have to. Check out the highlights on our website. 

What we’re reading

Indiana case against photographer dismissed (U.S. Press Freedom Tracker). Good news! Prosecutors have dropped their unconstitutional case against Chicago photojournalist Matthew Kaplan for covering an Immigration and Customs Enforcement protest in Gary, Indiana.

Indiana law protected my right to free speech. We need this protection in Iowa. (The Des Moines Register). Every state needs a strong law protecting journalists from strategic lawsuits against public participation, or SLAPPs, like the one that protected this journalist in Indiana.

The Atlantic editor who broke “Signalgate” did nothing wrong. He could be prosecuted anyway. (Slate). Hate to say we told you so, but … legal risks created by the Biden administration’s ill-advised journalist prosecutions might be why Jeffrey Goldberg voluntarily left a Signal chat with Trump administration officials that could’ve generated countless important stories.

Joint congressional letter on journalists endangered by shutdown of U.S. Agency for Global Media (PEN America). We joined PEN America and others to urge Congress to ensure the safety of journalists at Voice of America, Radio Free Asia, and Radio Free Europe/Radio Liberty who are in danger of deportation and imprisonment as the Trump administration guts those outlets. 

Trump’s attacks on press freedom are paving the way for authoritarianism (Vanity Fair). Joel Simon is right: “Media organizations across the country must rally to defend their rights, protect their people, and report the news with independence.”

How to leak to a journalist (Nieman Lab). No method of leaking is totally secure, but using SecureDrop, Signal, and the other tips offered here can help. For more on how to leak sensitive information to the press securely and anonymously, check out our video. 

Read more here on sharing sensitive leaks with the press.

We’re not your lawyers and this article isn’t legal advice. Talk to your attorney before taking any legal action.

Paramount executives are currently grappling with the decision of whether to settle President Donald Trump’s $20 billion lawsuit against the media conglomerate’s CBS News unit for allegedly editing an interview in favor of Kamala Harris. Companies including ABC’s parent, Disney, and Mark Zuckerberg’s Meta have already settled Trump’s legally dubious claims.

Federal Communications Commission Chair Brendan Carr has opened an investigation into CBS’ alleged “distortion” in conjunction with Trump’s lawsuit against Paramount, and has even threatened media outlets’ license renewals pending compliance with the administration’s policies. Paramount executives reportedly fear that Trump’s FCC will block its proposed merger with movie studio Skydance if it doesn’t settle Trump’s lawsuit.

Yet, The Wall Street Journal has reported that at least some Paramount executives are hesitant to write a check. Not because they care about the First Amendment or the precedent that settling would set for journalists. It’s because they’re scared of getting sued. As they should be — here’s why.

A settlement of a frivolous lawsuit by Trump to secure approval of a merger could amount to bribery. The case would be especially strong if Trump’s team has made clear to CBS, as it reportedly did to Meta before the social media platform settled its own litigation with Trump, that it needs to pay to play. Penalties can be imposed under both U.S. criminal law and the Sherman Antitrust Act.

But the Trump administration is unlikely to prosecute bribes it solicits. So the burning question (and the one that’s likely giving those executives cold feet) is: Can shareholders of Paramount, or other news publishers the administration extorts, do anything about it? After all, this is up to $20 billion of company funds we’re talking about.

The short answer is yes.

Shareholders can file what are known as derivative lawsuits when the company and therefore the values of their shares are harmed, even if the shareholders are not directly harmed. Any shareholder has the option to step into the shoes of Paramount and sue the board or officers on behalf of the company. The court docket would read Paramount v. Paramount.

That means shareholders who care about press freedom and want the press to thrive don’t need to worry about the economic implications of “suing the press” the way they might in other kinds of litigation. If the shareholder wins, the news outlet wins and recovers the monetary damages, not the shareholders.

Yes, the company might need to incur legal fees (although it can later sue to recover those from the executives), but in many cases that’s a drop in the bucket compared to the value recovered by holding executives accountable for waste and illegality.

A settlement of a frivolous lawsuit by Trump to secure approval of a merger could amount to bribery.

There are a few important legal requirements to be able to file a derivative suit. For example, one must be a shareholder at the time of the settlement and throughout the entire lawsuit. Selling all of one’s shares at any point in the process would invalidate the suit.

Technically, shareholders must also file a presuit demand letter on the company. This is a letter demanding that the board of directors bring the suit themselves instead of the shareholders. We say “technically” because filing this letter can be a strategic mistake that can cost the lawsuit, and there are exceptions to the requirement that can help avoid the land mines. It’s important to consult your lawyer about this requirement.

Importantly, if a court agrees that the settlement payment constitutes an illegal bribe, company officials cannot claim that paying was in the company’s best interests. An illegal act like bribery negates such defenses. The “business judgment rule,” which generally requires courts to refrain from second-guessing corporate officers’ good faith decisions, does not apply to bribery.

Derivative suits — and board elections — are the only real tools available to shareholders to keep their company executives in check. On their face, derivative suits seem complex and difficult to maintain, but in practice they’re an effective tool for regulating the behaviors of company officials.

For example, Trump ally and former casino boss Steve Wynn — another fan of frivolous defamation lawsuits against the press — knows a thing or two about shareholder’s derivative suits. Wynn Resorts’ officers and directors, including Wynn, agreed to pay $41 million in 2019 following a derivative shareholder suit for their failure to stop Wynn’s alleged sexual misconduct. It meant that the officers and directors, and not the shareholders, incurred the losses the company faced due to their wrongdoing.

At the end of the day, Paramount and its shareholders will be severely affected by a bribe costing even a fraction of the $20 billion Trump’s lawsuit demands, especially if paying off the government undermines CBS’ ability to report on it effectively or otherwise harms its reputation and reduces its viewership.

If those costs are borne by the company itself and not its directors, they could even lead to budget and job cuts, harming CBS journalists and journalism. It would also establish a dangerous precedent: that this administration can abuse its power to pressure media companies into doing its bidding.

Filing a derivative claim immediately after any settlement takes place could not only help shareholders minimize damages to media companies but also could help put a stop to these arguably illegal and definitely unethical settlement agreements. Corporate executives know that — they’re hoping you don’t.

In his short time as chair of the Federal Communications Commission, Brendan Carr has made so many MAGA moves contradicting what he’s previously claimed to believe in that it’s hard to pick the most hypocritical one. But high on the list is his decision to reopen the “news distortion” investigation into CBS over the editing of a “60 Minutes” interview with Kamala Harris, based on a complaint by the right-wing Center for American Rights.

The sham investigation is one of the many ways that Carr has used the FCC “to intimidate media organizations, influence editorial decisions, and suppress speech that’s critical of the administration,” as explained by a recent letter led by Public Knowledge and joined by Freedom of the Press Foundation (FPF) and other rights groups.

We’re not the only ones who think so. In an unprecedented move, Carr invited the public to weigh in on the CBS investigation, and they did. In addition to thousands of individual comments, groups on the right and the left, as well as nonpartisan organizations, expressed their views.

Many comments, including some from current and former journalists, highlighted how Carr is abusing FCC’s authority, chilling press freedom, and setting up conservative media for future regulatory retaliation. Here are excerpts from some of the best comments on those themes.

Current and former journalists tell Carr why he’s wrong:

• Christopher Terry and J. Israel Balderas, former broadcast journalists (reply comments): “The spectacle of government officials — many of whom couldn’t edit a 30-second news package if their careers depended on it — presuming to second-guess professional journalists’ editorial judgments would be laughable if it weren’t so constitutionally abhorrent. This proceeding isn’t about protecting the public from ‘distortion.’ It’s about intimidating journalists who don’t toe the preferred political line.”
• Javier Manjarres, publisher of The Floridian: “I’ve had the privilege of covering policy and politics for over a decade, interviewing dozens of conservative leaders and publishing countless articles. I firmly believe that conservatives win by countering bad ideas with better ones — not by inviting government bureaucrats to referee political media battles.”
• Christopher Arps, NewsTalkSTL host and NewsMax contributor: “If the FCC starts injecting itself as an arbiter of what is considered fair or biased and begins using that judgment as an impetus to regulate major news networks based on their editorial choices, we are no better than the ‘big brother’ government oppressors we have proudly stood up against under Democrat administrations.”

Carr’s abuse of the FCC’s authority:

• American Civil Liberties Union: “Baseless investigations are intended to scare those entities being investigated. And this investigation is just one of many that Chairman Carr has threatened since taking the Chairmanship. He has also threatened investigations against PBS/NPR, Comcast/NBC, and KCBS. Together, these investigations into disfavored media outlets send a message: say what we want you to say, or you will have to spend your resources defending yourself instead of reporting.”
• Center for Democracy and Technology: “This proceeding is not about news distortion. The publication of the full transcript and unedited video of the interview at issue lays that fact bare. CDT is concerned that the FCC’s reinstatement of this complaint is part of a systematic effort to extract favorable news coverage of the current Administration and negative coverage of its political opponents from broadcast journalists, contravening the First Amendment and exceeding the FCC’s authority over broadcast licensees.”
• Public Knowledge: “The timing and nature of these actions suggest that the technical machinery of media regulation might be transforming into something more problematic: a powerful lever that administrations can pull to intimidate media organizations they view as unfavorable — and thus undermine the very same democratic principles these independent agencies were designed to uphold.”
• The Media Institute: “The FCC simply cannot, and should not, set itself up to be an overseer of countless editorial decisions by news organizations. … Such a sweeping and constitutionally impaired role for the FCC was never the rationale for the policy, and it should not be routinely invoked at this time as a means of chilling or even outright censoring news coverage the government finds objectionable.”
• Former FCC Commissioners: “By reopening this complaint, the Commission is signaling to broadcasters that it intends to act at the behest of the White House by closely scrutinizing the content of news coverage and threatening the regulatory licenses of broadcasters whose news outlets produce coverage that does not pass muster in the President’s view.”

The investigation’s chilling impact on journalism and free speech:

• Foundation for Individual Rights and Expression: “There is a name for this kind of thing — it is called a show trial. When proceedings become a performative exercise conducted to further a political purpose, they forfeit any claim to legitimacy. Show trials tend to be retributive rather than corrective and are designed to send a message, not just to their unfortunate victims, but as a warning to other would-be transgressors.”
• Free Press (Reply Comment): “The very material burden this spectacle imposes on journalists cannot be overstated. As Commissioner Gomez has noted, the Commission’s speech-restrictive actions have already prompted broadcasters to tell ‘their reporters to be careful about how they cover stories because they fear government retribution.’ This is precisely the chilling effect … that the First Amendment guards against.”
• Reporters Committee for Freedom of the Press: “Interference by any regulatory body into the editorial judgments of journalists and news organizations threatens to both suppress news in the public interest and to interfere with the flow of information that the electorate needs to oversee the government.”
• Center for Democracy and Technology: “It does not matter if the FCC closes this proceeding without a finding that CBS violated FCC law or policy: the damage has been done. The reinstatement of the complaint and opening of this proceeding are intimidation tactics intended to pressure a news organization into providing the type and style of coverage that those currently holding political power would prefer.”

The impact on other news outlets, including conservative ones:

• Fair Media Council: “Ultimately, it must be noted that to curtail, chill, pressure or outlaw freedom of speech or of the press at any one particular network or outlet, or simply attempt to, will result in a trickle-down effect throughout all American media outlets, regardless of platform or channel: CBS, NBC, ABC, FOX, PBS, CW, NewsMax, NewsNation, One America News Network and the Christian Broadcasting Network, to name but a few, will be directly and irrevocably impacted.”
• Radio Television Digital News Association: “Make no mistake — once journalistic independence is eroded, the media will be ripe for abuse without regard for party or politics.”
• TechFreedom: “Finally, if the new standard for triggering a news distortion analysis is that any edits of raw interview video can be subject to challenge, then the FCC will spend the next four years, at least, fielding dozens, hundreds, thousands of news distortion complaints. … The news distortion complaint process will be weaponized by both political parties, and the business of the FCC will grind to a halt as it will have to assign more and more FTEs to processing these complaints.”
• Javier Manjarres, publisher of The Floridian: “The pendulum of political power shifts over time, and this action would set a dangerous precedent, allowing future Democratic administrations to target conservative media. If the FCC intervenes now, it is only a matter of time before media publishers like me find ourselves in the crosshairs.”

Dear Friend of Press Freedom,

Attacks on press freedom that used to seem outlandish or unlikely in the United States are happening across the country. Here’s the latest.

Targeting student op-ed writers threatens the free press

On Wednesday we published an article about how India’s revocation of American journalist Raphael Satter’s overseas citizenship to punish him for his reporting was a “not-so-farfetched” cautionary tale for the United States. “Once a government claims the power to use residency status as a cudgel to regulate speech, things escalate quickly and unpredictably,” wrote our advocacy director, Seth Stern. 

But cautionary tales become realities quickly these days. The same day we published that piece, news broke that the Trump administration had abducted Rumeysa Ozturk, a Tufts University graduate student from Turkey. Masked men grabbed her off the street after an organization called Canary Mission had flagged her “anti-Israel activism,” which apparently consisted solely of cowriting an op-ed that was critical of the Israel-Gaza war. She has reportedly been transferred to a facility in Louisiana, despite a court order against moving her out of Massachusetts. The arrest comes weeks after reports that Columbia University investigated an op-ed writer in response to pressure from the administration.

We said in a statement that “if reports that Ozturk’s arrest was over an op-ed are accurate, it is absolutely appalling. No one would have ever believed, even during President Donald Trump’s first term, that masked federal agents would abduct students from American universities for criticizing U.S. allies in student newspapers. Anyone with any regard whatsoever for the Constitution should recognize how fundamentally at odds this is with our values.” We also joined a letter from the Student Press Law Center and other press freedom and collegiate organizations condemning the abduction and calling upon Tufts and Congress to take action and put themselves on the right side of history.

Max Frankel’s press freedom legacy

Max Frankel, a New York Times reporter and editor who helped push for the publication of the Pentagon Papers, died Sunday at the age of 94. A Pulitzer Prize-winning journalist, Frankel was well known for his decades of reporting. But it’s another piece of writing, not initially published in a newspaper, that holds a special place in First Amendment history.

An affidavit by Frankel filed in New York Times Co. v. United States, better known as the Pentagon Papers case, has become one of the most important public documents laying out the realities of national security reporting and Washington’s unspoken rules around government secrecy and leaks. Read more about Frankel’s legacy from FPF Senior Advocacy Adviser Caitlin Vogus. 

NPR and PBS are just low-hanging fruit

At a congressional hearing this week, lawmakers attacked NPR and PBS for perceived bias and questioned whether there is still a need for the government to fund media these days. Trump separately said he wants both outlets defunded.

The stunt would’ve been concerning in normal times, but it’s particularly worrying now. Whether or not you think there’s a legitimate debate to be had about the government funding journalism, it’s clear that public media is just the low-hanging fruit — this administration intends to seize upon any and every legal theory, however far-fetched (or just ignore the law entirely), to punish the free press. 

We joined a letter with the Committee to Protect Journalists and Reporters Without Borders (RSF) about the dangers of the administration’s attacks on NPR and PBS. Stern also had more to say on DW’s The Day, which also airs on several PBS stations.

New executive order gives DOGE more control over agency records

A new executive order has the potential to grant the Department of Government Efficiency more control over agency records, and hints that the Trump administration may be considering issuing a new executive order on classification.

Both could spell bad news for the public’s right to know. Read more here from our Daniel Ellsberg Chair on Government Secrecy, Lauren Harper. 

Texas anti-SLAPP bill wouldn’t only impact journalists

The nonprofit consumer advocacy organization Public Citizen understands the importance of laws against frivolous lawsuits targeting speech, known as strategic lawsuits against public participation, or SLAPPs. 

That’s why their litigation group has represented several Texas consumers who have been sued over their speech. For the latest in a series of interviews about the implications of attempts to weaken Texas’ anti-SLAPP laws, Vogus talked to Public Citizen attorney Paul Levy. Read the interview here. 

What we’re reading

Israeli strikes kill two Gaza journalists, including Al Jazeera reporter (The Washington Post). Journalists are civilians, and targeting them is absolutely illegal and inexcusable. Everyone involved in these assassinations should be held accountable, including U.S. officials who bankroll war crimes.

Security lessons from a Signal group chat (FPF). Our digital security team explores what journalists can learn from this week’s big story — Atlantic editor Jeffrey Goldberg’s accidental inclusion in a sensitive Signal group chat about bombing apartment buildings and whatnot. 

The AP’s freedom of speech — and yours (The Wall Street Journal). “Today the U.S. government wants to control the AP’s speech. Tomorrow it could be someone else’s.” Read why you should care about the White House banning the Associated Press, regardless of your political views.

Leakers to Musk: We’re ‘not Elon’s servants’ (Politico). “The public deserves to know how dysfunctional, destructive, and deceptive all of this has been and continues to be,” a Food and Drug Administration employee told Politico.

Was chaotic JFK declassification marred by National Archives firings? (The Classifieds). Harper questions whether errors in the recent declassification of JFK records, including exposing social security numbers, had something to do with Marco Rubio taking over the National Archives while also serving as Secretary of State. 

Local newspapers play an indelible role in American journalism, reporting some of the country’s biggest stories from its smallest communities.

So when authorities in Marion, Kansas, and Clarksdale, Mississippi, attacked their local newspapers for coverage with which they disagreed, the outlets themselves became the story. And outrage quickly ignited across the U.S.

In February, a judge granted the City of Clarksdale an order requiring The Clarksdale Press Register to delete an editorial raising questions about transparency within the city’s government. And in 2023, police raided the Marion County Record’s newsroom and its publisher’s home over the paper’s use of a public website to verify a news tip.

In both cases, the officials involved had longstanding grudges with the newspapers over critical coverage long before the attacks made national headlines.

To get a first-hand perspective on the fight against these unconstitutional efforts to quash free speech, we spoke to Clarksdale Press Register Publisher Wyatt Emmerich and Marion County Record Publisher Eric Meyer in an online webinar on March 26, 2025.

Meyer said the similarities between his and Emmerich’s experiences are “just overwhelming.” One of those similarities was the backlash that followed.

“When they were raiding our office, I said, ‘This is going to be on the front page of The New York Times,’ and they laughed at me,” Meyer said. “It was on the front page of The New York Times.”

The police raid of the Marion County Record and the takedown order issued to The Clarksdale Press Register both stem from prior butting of heads with their local governments. In Meyer’s case, the paper had a “contentious” relationship with the town because “we had the audacity to actually report news and reported in a way that was not positive and uplifting to the city.”

Similarly, Emmerich said Clarkdale’s mayor took issue with their editorials “because he didn’t like our coverage,” and even organized a boycott against the paper. “The mayor offered me $30,000 to fire the editor,” Emmerich said. “We were the fly in the ointment, and he wanted to get rid of us as best he could.”

“He’s a younger mayor and just doesn’t understand the role of a traditional newspaper,” Emmerich continued. “He assumed that because he was mayor, the newspaper’s job was to do what he told us to do, and we didn’t do that.”

But even as tensions boiled over and the local governments in Marion and Clarksdale tried to throw sand in the gears of accountability, Emmerich and Meyer kept their papers’ presses rolling.

“It was two all-nighters to put out the paper because we lost everything,” Meyer said. “They took our backup drives. We didn’t even have our name plates.”

Emmerich said stunting a local paper like his, either in court through publishing gags or through other means, could decimate the community’s access to reliable information. Similarly, Meyer said he sees his paper as a challenger to assumption and an excavator of truth — not a placater to the public or the local government.

“We need to understand that there is a role for journalism in society, and that role is not necessarily being the cheerleader for the town,” he said. “We are here to present the views that aren't heard, to explore the facts that aren't explored.”

It’s been over a year since the police chief who led the raid on the Marion County Record resigned, but the fallout hasn’t ceased. Meyer said he is “keeping the lawyers busy” by suing the county, the city, the former police chief, and other individuals involved in the raid.

“We got so many subscriptions out of this. We’re the 121st largest town in Kansas, the 57th largest county. A year after the raid, we had the eighth largest paid circulation in the state.”

Meyer also plans on filing wrongful death suits. His 98-year-old mother, Joan Meyer, died a day after police executed a search warrant at the home they shared. Her death, he believes, was caused by the stress of the raid.

By standing up to intimidation that flew in the face of the journalism their papers produced, Emmerich and Meyer both experienced an outpouring of support thanks to the nationwide attention their cases received.

“We got so many subscriptions out of this. We’re the 121st largest town in Kansas, the 57th largest county,” Meyer said. “A year after the raid, we had the eighth largest paid circulation in the state.” Marion is a town of less than 2,000 residents.

Keeping a small town newspaper’s finances in check is essential, especially at a time when one-third of U.S. newspapers have shuttered since 2005. But Meyer and Emmerich agree that success isn’t just measured in dollar signs or subscriber rates. Their papers must hold power to account in order to fulfill their mandates.

“Because there's so little good local journalism, the good local journalism that is there tends to be very powerful and gets results,” Emmerich said. “And unfortunately, one of those results is pushback from the city council in the form of intimidation tactics and such.”

Despite being lifted, the publishing gag against The Clarksdale Press Register “did hurt us,” Emmerich said, but “we weathered that storm.” The paper is still vulnerable, however, because Mississippi is one of several states that lacks an anti-SLAPP law protecting journalists from legal actions known as strategic lawsuits against public participation that are brought in order to chill speech.

Still, both Emmerich and Meyer believe the risks they are taking to report the truth and hold officials accountable outweigh the consequences of playing it safe. After all, a public that is disengaged from its reality “sure as hell hurts democracy,” Meyer said. And in a country that routinely distrusts and villainizes local news, these attacks did not occur in a vacuum; if they can happen in Clarksdale or Marion, they can happen anywhere.

“People don’t think they can change things. I've written the same editorial probably 50 out of the 52 weeks in the year, just with different ways of expressing it,” Meyer said. “If you don't believe that you can make a difference in something, all you listen to are slogans. If you believe you can make a difference, you'll look at facts.”

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Chicago journalist Jim DeRogatis is no criminal, but in 2008 he invoked the Fifth Amendment to avoid testifying at music superstar R. Kelly’s trial. It’s a strategy that more journalists unfortunately may need to consider.

Years earlier, someone sent an unmarked VHS tape depicting Kelly abusing a young girl to DeRogatis. His reporting led to Kelly’s indictment and trial. (The musician was acquitted but is currently in prison for related convictions over a decade later.)

Subpoenaed to testify, DeRogatis, then with the Chicago Sun-Times, invoked Illinois’ reporter’s privilege law. Judge Vincent Gaughan ordered him to take the stand anyway.

But his lawyers (I was a clerk at the firm representing him) realized DeRogatis had potentially, albeit involuntarily, possessed a video containing child sexual abuse material, or CSAM. That is, of course, illegal. Gaughan had no choice but to acknowledge that the prospect that DeRogatis could be prosecuted, however remote, entitled him to invoke his Fifth Amendment protection against self-incrimination.

At the time, DeRogatis’ strategy might’ve been a stretch in non-CSAM cases. Newsgathering is generally safeguarded by the First Amendment. Most journalists need not worry about prosecution.

But things have changed, even if the constitution hasn’t. Here’s a non-exhaustive list of some ways officials around the country have tried to criminalize routine newsgathering in recent years.

• Prosecutors in Kansas claimed that using a government website violated state computer crime and identity theft laws.
• Prosecutors in Alabama charged journalists for reporting on a grand jury proceeding.
• A city attorney in San Francisco, California, accused a journalist of breaking the law by reporting on a tech executive’s sealed arrest report.
• A state senator in Arizona got a restraining order against a journalist who knocked on her door.
• A Tampa, Florida, fire chief called police on a journalist for asking for public records.
• A Chicago suburb ticketed a reporter for calling government officials too often.
• A Texas citizen journalist was arrested for asking police officers questions.
• Another Texas citizen journalist was arrested for filming police in public.
• The Los Angeles County Sheriff’s Department pushed for prosecuting a journalist who reported on a leaked list of problem deputies.
• Missouri’s governor sought to prosecute a journalist who alerted the state of a security vulnerability on its website.
• A California city sued a blog under computer crime laws for accessing a publicly available Dropbox.
• An Ohio journalist was charged for publishing a source’s recording of a court proceeding.
• Two North Carolina journalists were arrested for reporting on police operations after a park curfew.
• The federal government argued that publishers could be charged with possessing and transporting stolen property for acquiring documents a source stole.
• The Biden administration extracted a guilty plea from WikiLeaks founder Julian Assange under the Espionage Act for obtaining and publishing government documents from a source.
• It also prosecuted journalist Tim Burke under computer fraud and wiretapping laws for downloading publicly available materials on the internet. The case remains pending.
• The current interim U.S. attorney for the District of Columbia, Ed Martin, has suggested he believes naming federal employees or impeding government work to be illegal.
• President Donald Trump said in a nationally televised address that he thinks reporting he views as biased against him is against the law.
• Masked federal agents abducted a graduate student from Tufts University in Massachusetts, and the government revoked her student visa. Her friends think it’s because she cowrote a pro-Palestine op-ed.

If officials keep telling us they see journalism as criminal, journalists should believe them and exercise their rights accordingly. It’ll understandably leave a bad taste in journalists’ mouths to plead the Fifth, but doing so isn’t an admission that you’re guilty — only that the government might think so.

If nothing else, it’ll make quite a statement about the state of press freedom for journalists to have to plead the Fifth like criminals. And in light of the cases listed above, there are hardly any circumstances under which a journalist asked to testify about sources or newsgathering methods doesn’t have a legitimate concern about self-incrimination.

Published documents from the internet against someone’s wishes? Met a confidential source in the park after dark? Obtained names of government workers? Possessed and transported source documents? Your fear of being prosecuted may be every bit as legitimate as DeRogatis’, and arguably more so, since you can point to examples, not just hypotheticals.

If officials keep telling us they see journalism as criminal, journalists should believe them and exercise their rights accordingly.

This approach isn’t foolproof, particularly when journalists are subpoenaed by the government. Prosecutors can offer journalists immunity, mooting self-incrimination concerns. That’s what the Obama administration did when it wanted then-New York Times journalist James Risen to testify.

But prosecutors don’t always offer immunity, which may require approval from higher-ups and create administrative headaches. And in Trump’s made-for-TV administration, the optics of granting immunity to “enemies of the people” may be so unappealing that they’d rather forgo the testimony.

Plus, many subpoenas to journalists aren’t issued by the government. Some are issued by defense lawyers, others by private litigants in civil lawsuits. The government is unlikely to offer immunity under these circumstances. And agencies like U.S. Immigration and Customs Enforcement, known to issue its own administrative subpoenas to journalists, don’t have the authority to grant immunity on their own.

Even before the recent wave of anti-press criminal theories, journalists like the Detroit Free Press’ David Ashenfelter were able to successfully plead the Fifth in non-CSAM cases. He was subpoenaed in a federal Privacy Act lawsuit over his reporting on a terrorism investigation. After the court declined to apply the reporter’s privilege, he invoked his right against self-incrimination because he could, conceivably, be prosecuted for receiving confidential Justice Department materials.

And almost 20 years ago, Peter Scheer wrote that journalists should consider the Fifth in light of then-Attorney General Alberto Gonzales’ comments in an ABC News interview that journalists could be prosecuted for publishing government secrets.

That prospect is far more realistic now, after the Assange plea deal. We’re no longer talking about TV interviews, but an actual conviction.

I’m not your attorney. I’m not telling you what to do or how. Every case is different. But if you’re subpoenaed and a judge rejects the reporter’s privilege, consider asking your lawyer if the Fifth is an option.

It’s a shame that journalists need to even think about this kind of thing, but protecting sources is paramount, now more than ever.

FOR IMMEDIATE RELEASE:

Earlier today, Freedom of the Press Foundation (FPF) published an opinion piece about how India’s revocation of an American journalist’s overseas citizenship to punish him for his reporting was a “not-so-farfetched” cautionary tale for the United States. Turns out that was an understatement. 

The Trump administration has detained Rumeysa Ozturk, a Tufts University graduate student from Turkey. She was previously identified by a pro-Israel group called Canary Mission as having engaged in “anti-Israel activism.” The sole “offense” that Canary Mission flagged was an op-ed Ozturk cowrote criticizing Israel’s war in Gaza.

The following statement can be attributed to Seth Stern, director of advocacy of Freedom of the Press Foundation (FPF): 

“If reports that Ozturk’s arrest was over an op-ed are accurate, it is absolutely appalling. No one would have ever believed, even during President Donald Trump’s first term, that masked federal agents would abduct students from American universities for criticizing U.S. allies in student newspapers. Anyone with any regard whatsoever for the Constitution should recognize how fundamentally at odds this is with our values and should be deeply repulsed as an American, regardless of political leanings. Canary Mission is aptly named — it may serve as the canary in the coal mine for the First Amendment.” 

Video of the arrest is available here. 

The news from Tufts follows recent reports of Columbia University investigating an op-ed writer in response to pressure from the Trump administration, and journalism professors being forced to warn non-citizen students against criticizing Israel in articles or social media posts. 

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Free speech advocates are rightly outraged by the Trump administration’s arrest — no, abduction — of Columbia graduate Mahmoud Khalil. But it’s shortsighted to view the threat as limited to college students, immigrants, or pro-Palestinian activists.

Yes, it’s fair to say that the people most similarly situated to Khalil are the ones at the highest immediate risk. But authoritarianism is a slippery slope. President Donald Trump fantasized on social media last week about throwing people who protest Tesla into Salvadorian prisons, without regard for their citizenship status.

Raphael Satter, an American journalist who covers cybersecurity for Reuters, likely has a clearer view than most about where this could all be headed. Until his reporting led to its revocation, Satter also held overseas citizen of India status — a special multipurpose visa designation for certain people of Indian origin or those married to an Indian national.

In 2023, Satter reported on Indian tech executive Rajat Khare and his company Appin’s alleged hack-for-hire business. The revelations in Satter’s reporting prompted a global censorship campaign driven by Khare and his lawyers and facilitated by Indian courts. Through lawsuits and legal threats, they managed to have Satter’s article and other reports about Khare largely removed from the internet.

Reuters recently reposted Satter’s article after a judge lifted an order to delete it. But that wasn’t the end of the story. On the same day that censorship order was first issued, India revoked Satter’s overseas citizenship, stating in a letter that the revocation was the result of Satter “practicing journalism without proper permission,” which had been “maliciously creating adverse and biased opinion against Indian institutions in the international arena.”

Satter recently filed his own lawsuit to restore his status. He told The Guardian that the revocation of his OCI had “effectively cut me off from members of my family and a country I hold in great affection and respect.”

One thing that’s remarkable about Satter’s case is that his article didn’t criticize (or even mention) Indian Prime Minister Narendra Modi and his administration. Nor did it contradict the administration’s position on a major international issue, in contrast with Khalil’s disagreement with the Trump administration’s vision of obliterating Gaza to build resorts.

Once a government claims the power to use residency status as a cudgel to regulate speech, things escalate quickly and unpredictably.

Instead, it was critical of a corporation and business executive — one who, as far as we know, doesn’t even have close ties to the Modi administration. Most of the events Satter reported on occurred over a decade ago, before Modi came to power in 2014. Khare apparently lives in Switzerland these days.

But a journalist suggesting the mere existence of corporate crime in India was enough for the government to retaliate against him for making it look bad. It goes to show that once a government claims the power to use residency status as a cudgel to regulate speech, things escalate quickly and unpredictably.

Sure, India under Modi is, in many ways, further along on the path toward authoritarianism than the United States. The Modi administration censors its critics in ways that Trump perhaps can’t — at least not yet.

But it would be naive to think we’re that far behind. Case in point: in response to financial pressure from Trump, Columbia is reportedly (and inexcusably) investigating an op-ed writer who criticized Israel. As Chip Gibbons recently detailed in Jacobin, Khalil’s case is just the latest chapter in a long history of abuse of immigration laws to stifle dissent.

And Columbia’s journalism school is already telling non-American student journalists that they’re at risk of deportation for reporting on the Israel-Gaza war or related protests. Professors have been unfairly criticized for acknowledging this reality, but Satter’s case shows how right they are.

The administration publicly justifies its actions against Khalil by citing alleged support for terrorism, but tellingly, the authority the administration is actually using to deport him is not derived from anti-terrorism laws — which there is no evidence he violated.

Instead, it’s citing an amorphous immigration provision that Trump can invoke (unless the courts or Congress stop him) whenever he concocts “foreign policy” concerns. To Trump, that means disagreeing with him on foreign policy, as journalists are prone to do.

Journalists from around the world report from perspectives that American journalists can’t, and reach communities that American journalists don’t. To state the obvious, the ability to live here allows them to do a better job of that.

And in some cases, their work here could guarantee them a prison sentence, or worse, if they’re deported — that’s the situation Voice of America reporters from Russia and other antidemocratic regimes may find themselves in if Trump’s efforts to dismantle the agency are allowed to stand.

In the past, Americans could shake their heads when they read stories like Satter’s and assure themselves that, whatever problems we may have, that kind of thing won’t happen here. No more.

Satter’s case is a not-so-farfetched cautionary tale — if a few years down the line we’re expelling journalists who offend Trump or his oligarchs, we can’t say we weren’t warned.

This is the third in our series of Q&As with people who have firsthand experience with the Texas Citizens Participation Act. Read the first Q&A with Carol Hemphill here and the second Q&A with Charles Ornstein here.

The nonprofit consumer advocacy organization Public Citizen understands how important strong laws against frivolous lawsuits targeting free speech, known as strategic lawsuits against public participation, are when it comes to supporting people’s right to alert others about problematic business practices.

That’s why the Public Citizen Litigation Group has represented several Texas consumers sued over their speech. The state’s anti-SLAPP law, the Texas Citizens Participation Act, has been critical to those defenses.

For instance, the group successfully used the TCPA to defend Robert and Michelle Duchouquette, who were sued by the Dallas pet-sitting company Prestigious Pets for $1 million after posting a negative review of the company’s services on Yelp. Prestigious Pets had tried to silence the Duchouquettes using a nondisparagement clause inserted into the fine-print of the pet-sitting contract.

In another case, the group used the TCPA to ward off a legal claim against Michelle Lanum, a woman who was sued for criticizing a medical study she participated in on social media. The plaintiff dropped the case after Lanum’s lawyers informed her it would defend Lanum using the TCPA — which provides for the mandatory award of attorneys fees to SLAPP victims who win their case in court.

Now, however, the Texas legislature is changing the TCPA to make it more expensive for SLAPP victims to defend themselves and more difficult to recover their attorneys fees. We spoke to Public Citizen Litigation Group attorney Paul Levy about why the TCPA matters to consumers and what impact these changes could have on free speech. The interview has been lightly edited for length and clarity.

You’ve defended several people sued in SLAPPs in Texas using the Texas Citizens Participation Act. Can you explain how the law helps protect freedom of speech?

It does a few things. First of all, it provides an easy way out from non-meritorious claims, by putting the burden on somebody who has brought a claim to show that they have not only allegations but evidence to support their allegations, and giving the defendant an opportunity to show that it has valid defenses to claims that would make them untenable.

It also not only saves the courts from having to spend their time on frivolous matters, but much of the damage that frivolous or weak claims impose on free speech is the intimidating effect of making people spend their time and their good money on litigation, distracting them from what else is going on in their lives.

This is particularly problematic for people whose speech doesn't bring them any money, but who have just spoken out on a matter of public concern or public interest. If they have to spend a lot of money to defend what they've said, they've already lost in many ways. And the prospect of having to make these defenses shuts people up and deprives the public of the benefit of their speech.

And the final thing that these anti-SLAPP laws do is provide some financial recompense to the people who've had to defend their speech, and it encourages lawyers to take up these cases — just as, for example, the consumer laws provide a guaranteed source of an attorney fee award if lawyers are willing to bring consumer protection cases or wage and hour cases or discrimination cases.

In the same way, the anti-SLAPP laws in Texas and California — and the other jurisdictions that have good anti-SLAPP laws — have encouraged the creation of a bar that's ready to defend free speech. And that's a really important function.

Could you talk about the common types of SLAPP victims in your experience? Who is the type of person who gets SLAPPed and why?

It's somebody, for example, who's posted a comment on a review site about an experience they've had with a local merchant. The Prestigious Pets case is a perfect example of that. These are people who had a bad experience with a pet-sitting firm and got sued for a substantial amount of money for having dared to express negative comments — and really fairly mild negative comments — about this pet-sitting organization. They defeated the case and they were able to get their lawyers paid because they were able to use the anti-SLAPP law.

Another example is when people speak out about political figures. Political figures often have good access to lawyers, and they can bring these cases without much of a sweat because lawyers may owe them a lot and want to bring the cases, but when constituents speak out about public figures, they need assurance that they'll be able to defend themselves when they're sued.

I want to talk about some of the changes that are being proposed to the TCPA right now. The law currently provides for a pause on trial court proceedings when a motion to dismiss a lawsuit under the TCPA is denied and goes up on appeal. But there's a new bill that would remove that automatic stay of proceedings during certain appeals. What do you think the impact of that change would be?

That change would make the TCPA much less effective in achieving its purposes.

Much of the burden of weak or frivolous litigation over speech on a matter of public concern is the mere expense and time that a defendant has to spend dealing with a case. If the real facts in the case are such that the case would not likely succeed anyway, what the stay does is save the defendant from that expense, at least in the circumstances where they've got a valid argument that the case ought to be dismissed under the anti-SLAPP law.

Much of the burden of weak or frivolous litigation over speech on a matter of public concern is the mere expense and time that a defendant has to spend dealing with a case.

There are disincentives for filing frivolous motions to dismiss under anti-SLAPP laws, in that there can be an award of attorney fees for filing one. TCPA has such a rule and most anti-SLAPP laws do.

Another new bill would change the TCPA to make the award of attorneys fees to a SLAPP victim who wins discretionary. There have been two common criticisms of that proposal: One is that the mandatory fees discourage SLAPPs from being filed in the first place and discretionary fees wouldn't. The second is that the mandatory fees makes it easier for SLAPP victims to find a lawyer to defend them. Do you agree with either criticism?

Yeah, I think both. A lawyer in private practice has to figure out, “How am I going to make money from defending this case?” Much litigation on behalf of middle class people and working people is financed because the lawyer knows that if in the lawyer's evaluation of the case, it can produce a pot of money as damages, the lawyer can get a contingent fee out of the damages.

But for defendants, that possibility is not available. What you're trying to do as a defendant is avoid an award of damages and not obtain an award of damages. And so what the mandatory attorney fee provision does is create an incentive for lawyers to take cases for people who otherwise couldn't afford to defend themselves.

What the mandatory attorney fee provision does is create an incentive for lawyers to take cases for people who otherwise couldn't afford to defend themselves.

Deterrence doesn't work if the plaintiff is Elon Musk, doesn’t work if the plaintiff is George Soros. It's a nonpartisan thing. People for whom money is really no object aren't deterred by anti-SLAPP laws.

But most anti-SLAPP plaintiffs are small or middle-size businesses or folks who are wealthy enough to afford a lawyer charging by the hour or able to get lawyers because their influence makes them attractive clients, but for whom an award of $20,000 or $30,000 in attorney fees against them would be a major hit. So if there's an anti-SLAPP law that's effective and has a mandatory award of attorney fees, they have to take that into consideration in deciding whether to bring the case.

And I have no doubt, for example, that in the case involving Michelle Lanum, the threat that we sent to the plaintiff's lawyer that we would file an anti-SLAPP motion if he didn't quickly dismiss the case had a significant impact on his decision to dismiss the case and therefore save Lanum from having to defend herself in litigation over her criticism of a device that, to me, looked to be a prime example of medical quackery.

I've seen that work time and time again. It basically forces the plaintiff's lawyer into the position of having to explain to his client what the costs of a loss would be. That it's not only that you'll be out whatever fees you paid me but you might have to pay fees to the other side in addition.

What does it mean for freedom of speech if the Texas legislature makes it easier for regular people to be sued for exercising their freedom of speech, for example by posting a negative review of a business or speaking out against wrongdoing or falsehoods?

I believe in the marketplace of ideas. I think generally speaking, lots of nonsense gets spouted these days and it's often hard to sort the nonsense from the stuff that's worth seeing. But it's my view that more speech is better and that the best way to counter speech that you don't like is to speak out against it and explain your point of view instead of suing to stop it.

The public generally benefits from getting more facts on which they can make judgments about what businesses they ought to patronize, what goods they ought to purchase, what political figures they ought to support or what parties they ought to support, what sports they ought to play, and other topics of public concern.

The public benefits from getting more information and litigation that suppresses speech in an unwarranted fashion therefore hurts the public and it also hurts business. When one business sues to prevent valid criticism of its business activities, of its services, it actually gets an unfair benefit in its competition with other businesses that are operating on the up and up and selling useful goods and providing good services.

So in all these ways, litigation against speech is harmful to the public.

Max Frankel, a New York Times reporter and editor who helped push for the publication of the Pentagon Papers, died Sunday at the age of 94.

A Pulitzer Prize-winning journalist, Frankel was well known for his decades of reporting. But it’s another piece of writing, not initially published in a newspaper, that holds a special place in First Amendment history.

An affidavit by Frankel filed in New York Times Co. v. United States, better known as the Pentagon Papers case, has become one of the most important public documents laying out the realities of national security reporting and Washington’s unspoken rules around government secrecy and leaks.

Initially drafted as a memo to the Times’ lawyers, Frankel’s arguments schooled lawyers, the courts, and anyone who believed government secrets should always be off limits to the press.

“What Frankel wrote became one of the most important documents in history of press freedom,” said James Goodale, who was the general counsel for the Times during the Pentagon Papers case. “Not only did it sway our outside lawyers to defend the case in court, but we turned it into sworn statement which helped sway the district court judge to rule in our favor.”

Frankel wrote: “Without the use of ‘secrets’ … there could be no adequate diplomatic, military and political reporting of the kind our people take for granted, either abroad or in Washington and there could be no mature system of communication between the Government and the people.”

Importantly, Frankel explained how government officials routinely reveal “secrets” to the press for their own purposes:

“Presidents make ‘secret’ decisions only to reveal them for the purposes of frightening an adversary nation, wooing a friendly electorate, protecting their reputations. The military services conduct ‘secret’ research in weaponry only to reveal it for the purpose of enhancing their budgets, appearing superior or inferior to a foreign army, gaining the vote of a congressman or the favor of a contractor. The Navy uses secret information to run down the weaponry of the Air Force. The Army passes on secret information to prove its superiority to the Marine Corps. High officials of the Government reveal secrets in the search for support of their policies, or to help sabotage the plans and policies of rival departments. Middle-rank officials of government reveal secrets so as to attract the attention of their superiors or to lobby against the orders of those superiors.”

Of course, what Frankel was defending was not the publication of secrets leaked purposefully by government officials, but rather the publication of a classified study of the Vietnam War leaked without authorization by whistleblower Daniel Ellsberg. But Frankel and other reporters knew that if they relied only on the official leaks, the public would only be getting part of the story — the part that benefited the government.

They also knew that classification wasn’t all it was cracked up to be. As Frankel explained in his affidavit, classification decisions aren’t always based on the national interest. He wrote that:

“the Government and its officials regularly and routinely misuse and abuse the ‘classification’ of information, either by imposing secrecy where none is justified or by retaining it long after the justification has become invalid, for simple reasons of political or bureaucratic convenience. To hide mistakes of judgment, to protect reputations of individuals, to cover up the loss and waste of funds, almost everything in government is kept secret for a time.”

The manipulation of classification decisions and strategic leaks to the press remain commonplace in Washington today, more than fifty years after Frankel laid it all out. Officials from both parties routinely make public secret information when it serves their purposes, from former CIA director David Petraeus, who leaked classified information to his biographer and received just a slap on the wrist, to President Donald Trump himself.

But what may be changing is the courage of news outlets and other institutions to stand up to government officials, as The New York Times, The Washington Post, and numerous other newspapers did when they published the Pentagon Papers and exposed the government’s lies about the Vietnam War.

It’s not easy to challenge government authority today, especially when the President and his cronies have made no secret of their desire to throw publishers, reporters, and sources in jail. But it also wasn’t easy for journalists and news outlets to challenge President Richard Nixon, who, until Trump, was perhaps the most anti-press president in our history.

Still, Frankel and others who worked on the publication of the Pentagon Papers chose to stick out their necks and stick up for press freedom. The result was the Supreme Court’s decision repudiating government prior restraints on the press in almost all circumstances, perhaps the most important press freedom decision today.

Unfortunately, there’s no guarantee that the Supreme Court today will be as willing to defend the First Amendment and the free press. But that makes it all the more important that reporters defend press freedom to the public and explain why it matters loudly and repeatedly.

Defending press freedom must mean defending the right to publish government secrets, even when the government objects. It also means defending the brave whistleblowers who make sure that the government doesn’t get to control what the public knows.

Enough time has passed that we’re losing some of the journalists and whistleblowers who fought for press freedom during the Nixon era. Today, we must look to their examples, and their words, to make the case that it’s necessary and right for the press to publish government secrets that inform the public.