Freedom of the Press

Federal law enforcement officers patrol Washington, D.C., in 2021. A recent Supreme Court ruling closed the door on journalists seeking monetary damages for First Amendment violations by federal employees.

— REUTERS/JIM URQUHART

This article is cross-posted from U.S. Press Freedom Tracker.

In a Supreme Court term packed with controversial cases, one of the more-overlooked rulings has alarmed press freedom advocates as it gutted the legal mechanism used to hold federal officers liable for violating individuals’ constitutional rights.

The court ruled on partisan lines in Egbert v. Boule on June 8, 2022, significantly limiting the path for monetary damages following unlawful searches or excessive use of force and closing the door for First Amendment retaliation claims.

Reporters Committee for Freedom of the Press called the ruling an unfortunate blow to efforts to hold federal officers accountable. In its amicus brief to the court, it argued that the press is a “tempting target for federal officials seeking to retaliate against reporting on matters of public concern.” More than 30 media and advocacy organizations, including Freedom of the Press Foundation, signed on to the brief.

For documentary photographer Rian Dundon, the lawsuit he filed against more than 100 federal officers in April under similar precedents now faces an uncertain future.

Dundon is one of at least 50 journalists who have sued law enforcement officers, agencies or city officials for their treatment while covering the national protests sparked by the murder of George Floyd in May 2020. Dundon was assaulted by federal law enforcement twice that July while covering protests in Portland, Oregon.

Nicholas Kahl, an attorney representing Dundon, told the U.S. Press Freedom Tracker that Dundon’s suit aims to establish not only that the federal officers used excessive use of force but targeted Dundon because he is a journalist, in violation of the First Amendment.

“It isn’t about: Did this officer hit Rian? That’s obvious from the footage,” Kahl said. “The question is: Will we be able to get into why they did it? Will we be able to ask those questions? Will we get discovery on the motivations of the federal government in the policing of journalists around those protests and the Black Lives Matter movement?”

The majority of lawsuits filed by journalists have been against law enforcement agencies and officers at the state and local levels. While suits like Dundon’s are in the minority, the Tracker is aware of at least six other journalists suing federal officers, all of which now face a similarly limited path.

The path to holding federal officers accountable

The case before the court involved Robert Boule, the owner of a bed-and-breakfast abutting the Canadian border in Washington, who alleged that a U.S. Customs and Border Protection officer assaulted and retaliated against him after he filed a complaint with the agency. Boule’s claims for damages were made under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, a 1971 Supreme Court case that established that federal officers can be personally sued and held financially liable for conducting unreasonable searches.

Gillian Vernick, a Technology and Press Freedom Project Fellow at RCFP who helped author the organization’s amicus brief in Boule, told the Tracker that circuit courts across the country have largely recognized that Bivens logically extends to First Amendment violations.

“It plays a critical role in deterring unconstitutional misconduct by federal officers and compensating for those damages. It’s really a severe consequence,” Vernick said.

The Court of Appeals for the 9th Circuit came to that conclusion in 2020 when ruling in favor of Boule’s assertion that his freedom of speech was violated.

While the Supreme Court initially extended the Bivens remedy — allowing for monetary damages in claims against federal employees — to include other constitutional violations over the last 50 years, it made clear in a 2017 case that further expansions were unlikely.

The ruling in Egbert v. Boule went further, all but overturning the initial Bivens ruling; Justice Neil Gorsuch wrote that he was prepared to do just that. Justice Clarence Thomas wrote in the majority decision that moving forward all federal courts must reject Bivens lawsuits if even one “rational reason” can be found to do so.

A dark, uncertain future for Bivens

In her dissent, Justice Sonia Sotomayor reasoned that while almost all such claims may be dismissed under this new standard, the Bivens decision remains a viable pathway for relief for some.

“Although today’s opinion will make it harder for plaintiffs to bring a successful Bivens claim, even in the Fourth Amendment context,” Sotomayor wrote, “the lower courts should not read it to render Bivens a dead letter.”

Margaret Russell, an associate professor of law at Santa Clara University, took a more dour perspective, telling the Tracker that plaintiffs will face far more than an uphill battle even when making excessive use of force claims and that the future of Bivens is clearly under threat.

“It’s chopping Bivens to pieces without yet overruling it, but I think that clearly is the direction they’re going in,” Russell said. She added that the new directives may make it impossible for plaintiffs to make a successful claim unless the case is more or less identical to Bivens.

“Everyone is impacted by the narrowing of the Bivens decision,” Russell told the Tracker, “but journalists certainly, when they are the victims of excessive use of force by a federal officer. There is an ancillary effect on the news that they’re trying to report.”

Russell said that Bivens provides one of the only paths for holding federal agents accountable for constitutional violations. While a federal law authorizes suits against state and local authorities, no such statute exists for federal officers. The laws that do pertain to filing lawsuits against federal employees explicitly exclude any claims involving constitutional violations.

The shortcomings and failings of other remedies

Other remedies — such as filing a complaint with the agency or seeking a preliminary or permanent injunction — have significant limitations or pitfalls.

Kelly Simon, ACLU of Oregon Legal Director, is one of the attorneys representing a collection of media plaintiffs in a lawsuit against the City of Portland, the U.S. Department of Homeland Security, U.S. Marshals Service and 60 federal and local law enforcement officers.

The class action suit was filed in May 2020, following hundreds of assaults and arrests of journalists in the city while covering social justice protests. That July, a judge granted a preliminary injunction barring both the Portland Police Bureau and federal officers from arresting, harming or impeding the work of journalists or legal observers of the protests.

Simon told the Tracker that while preliminary injunctions can provide temporary relief from ongoing violations, they can only be granted in instances where plaintiffs are able to show that future violations against them are likely.

The order in the ACLU’s suit was lifted in March 2022, when the court deemed it moot, Simon said. “When circumstances change and there’s no longer a need for it or a case is no longer live between plaintiffs and defendants, when there’s no live controversy, the court essentially says no relief is available.”

The case is still in its early stages, Simon said, and they remain open to reaching a settlement agreement that will include concrete policy changes.

“I still have hope that the United States government will be willing to come to the table and consider very reasonable protections for journalists and legal observers trying to ensure that there is transparency in government operations,” Simon said.

While individuals can file a complaint with the agency itself when federal officers violate their rights, Santa Clara law professor Russell told the Tracker she doesn’t see it as an effective remedy.

“An agency determination of a grievance is not the same as a court action,” Russell said, “and the people who decide that claim come from that world of law enforcement itself.”

Turning the spotlight to the legislature

In the majority decision, Justice Thomas acknowledged that agency review may not be an adequate remedy and noted that officers might be too fearful of personal liability if Bivens were expanded to include First Amendment violations. All of the justices agreed that the answer to both is the same: that the legislature must ultimately establish how to effectively address constitutional violations.

The outlook for such legislation remains grim. For example, the Justice in Policing Act passed by the House of Representatives in June 2020 abolishes legal protections for state law enforcement officers who violate constitutional rights but does not extend the same provision to their federal counterparts.

Simon, of the ACLU of Oregon, told the Tracker that while the path to holding federal officers accountable for constitutional violations has become steeper, efforts must be redirected to the local level.

“A lot of the constitutional violations that we see in this country are the product of state and local law enforcement action,” Simon said. “We should still be focused on doing everything we can at the local level to protect civil rights against abusive law enforcement practices.”

The British home secretary has formally approved the extradition of WikiLeaks publisher Julian Assange to the United States, in the latest development in a dangerous and misguided criminal prosecution that has the potential to criminalize national security journalism in the United States.

Previously, a major coalition of civil liberties organizations, including Freedom of the Press Foundation, implored U.S. Attorney General Merrick Garland to drop the case against Assange in the name of protecting the rights of journalists everywhere. So, too, have the editors of major news outlets such as The New York Times and Washington Post.

By continuing to extradite Assange, the Biden DOJ is ignoring the dire warnings of virtually every major civil liberties and human rights organization in the country that the case will do irreparable damage to basic press freedom rights of U.S. reporters.

The prosecution, which includes 17 charges under the Espionage Act and one under the Computer Fraud and Abuse Act, covers events that took place more than a decade ago, but was brought only under the Trump administration — after the Obama Department of Justice reportedly considered charges but dismissed them for their dangerous First Amendment implications.

Reports suggest Assange may have at least one more avenue of appeal, so he may not be on a flight to the United States just yet. But this is one more troubling development in a case that could upend journalists’ rights in the 21st century.

You don’t have to like Assange or his political opinions at all to grasp the dangerous nature of this case for journalists everywhere, either. Even if you don’t consider him a “journalist,” much of the activity described in the charges against him is common newsgathering practices. A successful conviction would potentially make receiving classified information, asking for sources for more information, and publishing certain types of classified information a crime. Journalists, of course, engage in all these activities regularly.

There is some historical irony in the fact that this extradition announcement falls during the anniversary of the Pentagon Papers trial, which began with the Times publication of stories based on the legendary leak on June 13, 1971, and continued through the seminal Supreme Court opinion rejecting prior restraint on June 30, 1971.

In the months and years following that debacle, whistleblower (and FPF co-founder) Daniel Ellsberg became the first journalistic source to be charged under the Espionage Act. What many do not know is that the Nixon administration attempted to prosecute Times reporter Neil Sheehan for receiving the Pentagon Papers as well — under a very similar legal theory the Justice Department is using against Assange.

Thankfully, that prosecution failed. And until this one does too, we continue to urge the Biden administration to drop this prosecution. Every day it continues to further undermine the First Amendment.

Police in Uvalde, Texas, and Buffalo, New York, have used the aftermath of mass shootings to clamp down on press access and have threatened to violate the press freedom rights of journalists doing their jobs. According to recent reporting by the U.S. Press Freedom Tracker, as tragedy unfolded in each of these cities, reporters have faced unnecessary hurdles erected by law enforcement and public officials, with some going as far as warning the reporters will be arrested.

Nearly two weeks before the Uvalde school shooting, a gunman killed 10 people in a Buffalo, New York, supermarket. Los Angeles Times reporter Connor Sheets said he was in Conklin, New York, a few days after the shooting when Sheriff’s deputies escorted him away from the alleged shooter's high school. The next day, deputies demanded that he also leave the school district’s central office and once again escorted him away from the building. "This restriction of media access seems to be part of the post-mass-shooting playbook," Sheets wrote in a tweet.

“These kinds of practices limit access to public information and can make it harder for journalists to do their jobs,” Sheets told the U.S. Press Freedom Tracker.

Sheets’s reference to a “playbook” is salient — this can’t be written off as the missteps of a particular agency or official, given the similar events we’ve seen in Uvalde:

[O]n June 1, a CNN crew visited the Uvalde school district headquarters, where police officers told the journalists they were trespassing and threatened to arrest them if they stepped back on the property. Correspondent Shimon Prokupecz recorded the interaction with Producer Matthew Friedman and posted the video on Twitter.

[...]

On June 3, the Texas Tribune reported that Uvalde City Hall locked its doors during regular business hours and refused to “immediately provide any public records to reporters.” According to the Tribune, the move came as residents and journalists aim to hold Pete Arredondo, the chief of the Uvalde Consolidated Independent School District Police Department, accountable for waiting more than an hour for backup instead of immediately ordering officers to charge the gunman inside Robb Elementary School.

And in an op-ed in the San Antonio Express-News, journalist Michael Drudge cataloged some of the same behavior from public officials:

Adding to the problems journalists face is a virtual news blackout on the part of state and local authorities.

Texas state Sen. Roland Gutierrez represents Uvalde. He’s been a high-profile news source with contacts inside the Texas Department of Public Safety. He revealed Friday that a DPS official told him Uvalde County District Attorney Christina Mitchell Busbee ordered DPS not to release any more information to the senator or the public. The Associated Press reported Friday the DPS referred all questions to Busbee, who did not return phone calls and text messages from the Associated Press.

Unfortunately, the pattern encompasses even more examples over the course of several weeks. In the wake of a horrifying event, when the facts and truth are of critical importance, police and public representatives are interfering with crucial reporting.

Especially given the profound public questions about the actions of the Uvalde police and their role in the shooting, and the department’s constantly shifting stories about what actually took place, it’s essential that journalists are able to find answers. Interference with reporters doing their jobs is never OK for police. But in this case, it is absolutely unacceptable.

A new journalist surveillance scandal coming out of the Department of Justice drives home the need for a strong journalist shield law, but it’s worth taking a look at how the media guidelines work under the status quo. We’ve repeatedly argued that legislation is necessary to resolve questions about when those guidelines apply and to provide accountability in case of violations. So, what kind of accountability is there now?

One only needs to look at the DOJ's own legal filings to see that journalists have little recourse if the department decides to violate its own rules against surveilling reporters. One such example is the ongoing litigation over a warrant and FBI raid of the houses of several members of the right-wing group Project Veritas.

A government raid on a group engaging in journalistic activities — even a controversial group, even one many have accused of serious misrepresentations — requires significant evidence to not constitute a press freedom violation. (We have to speak with conditionals here because the government has thus far refused to unseal its search warrant application and related materials. Reporters Committee for Freedom of the Press originally filed for those documents to be unsealed, and ACLU has recently joined those efforts.)

We have been arguing similarly for months: Unless and until the Department of Justice provides evidence that Project Veritas was directly involved in a crime, its raid runs up against the spirit of its own guidelines intended to protect press freedom (and the Privacy Protection Act).

So, what do those guidelines do in practice? As litigation over the warrant and the raid winds through the courts, the DOJ has offered a clear answer — not much. Earlier this month, the DOJ filed a brief citing a series of cases for the “well-settled” proposition that the media guidelines specifically and the Justice Manual more broadly are “not intended to, and [do] not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.” Moreover, the media guidelines in the Justice Manual do not “create any rights, substantive or procedural, enforceable at law by any party in any matter, civil or criminal.”

In other words, if the DOJ decides to break its own guidelines and spy on a journalist, the journalist has no legal right under those guidelines to protest.

We raise these points not to quibble with the DOJ’s interpretation of the relevant regulations, but to underscore the need for real legislation. If the Department of Justice’s policies do not create any enforceable rights to support that position, Congress must do so. And the DOJ can follow through on its promise to support a strong federal shield law by throwing its weight behind Sen. Ron Wyden’s PRESS Act. If they don’t, their promises on press freedom are just empty rhetoric.

The U.S. Press Freedom Tracker, where we attempt to document virtually every press freedom violation in the country, has, for some time, made available its database of thousands of incidents for export via the API. We want all the data we’ve collected over the past five years to be available to journalists, advocates, and policy makers for their own analysis.

As an organization committed to helping journalists resist censorship and ensure information remains free, we’ve recently been exploring how we can use the decentralized web, and in particular IPFS, to more permanently store the vast wealth of information now on the Tracker. IPFS, for the uninitiated, is an innovative means to distribute data in a way that doesn’t depend on centralized infrastructure (such as a website).

In some ways similar to torrents, files shared on the IPFS network are mirrored among many nodes. This makes it a protocol particularly resistant to censorship or deletion, and may have other qualities significant to journalists as the internet evolves over time.

To this end, as a proof of concept, we’ve now published the Press Freedom Tracker’s incident database on IFPS. (You can, of course, still use the website API as well). You can view the database at this IPNS ID:

ipns://k51qzi5uqu5dlnwjrnyyd6sl2i729d8qjv1bchfqpmgfeu8jn1w1p4q9x9uqit

You can view the ID via an IPFS web gateway, such as the one provided by Cloudflare, via a browser extension like IPFS Companion, or via another IPFS client. The file is updated about every hour (more on that below), so you can ensure that the dataset you are downloading is the most current.

US Press Freedom Tracker data via IPFS, as viewed in Brave Browser.

A technical deep-dive into IPFS, IPNS, and keeping track of changes to the database

IPFS is an interesting protocol because its content identifiers (CIDs) or ‘hashes’ are cryptographically computed from the content of the file, not its name or other metadata.

This means that every time the file’s content changes, publishing it in IPFS gets a new CID.

There is nothing in the protocol that maintains any sort of ‘revision’ relationship between the old CID and the new one. It is up to the publisher to keep track of old versions of the file (if that’s important to them). Equally, it’s up to the publisher to tell people which CID is the new one, but it would be annoying to have to keep announcing new CIDs every time the file changes.

For this reason, the ID above is an ‘IPNS’ ID, which always points to the latest version of the folder and its contents, without itself ever having to change. IPNS is a little bit like DNS, in that it’s a sort of static ‘alias’ or pointer to another destination - in this case, the latest IPFS CID of the directory.

To maintain a sort of ‘revision’ log of changes to the incidents.csv database (and when it changed), we also publish a changelog file (incidents-log.csv) which shows the previous CIDs and a timestamp of when they were published. The last line in the file is always the latest version of the incidents.csv. You can also fetch the latest file directly (rather than view the directory) by using the IPNS hash, for example:

ipns://k51qzi5uqu5dlnwjrnyyd6sl2i729d8qjv1bchfqpmgfeu8jn1w1p4q9x9uqit/incidents.csv

Feel free to look at older CIDs to see the difference, or to consult the file to find out when the latest version was published.

How often is the data published to IPFS?

We attempt to publish the latest copy of the database to IPFS every hour, but realistically the database itself changes far less frequently. The database is only published (and the changelog updated) if its content changes.

Care to share some code?

We initially tried to use what seems to be the official Python library for working with the IPFS API, but found that it doesn’t seem to support the most recent releases of go-ipfs, and is possibly semi-abandoned.

Fortunately, the go-ipfs service provides its own HTTP RPC API, so we could use Python’s requests module to talk to it.

Publishing a single file to the IPFS API is quite easy, and there are simple examples of how to do it. However, it turns out that publishing a directory containing files was a little more tricky to achieve.

It took a bit of trial and error to work out how to send multiple files in a multipart request with the right tuple values per file, in a way that matched the IPFS API’s documentation, but we got there.

For those curious, here’s a sample of what worked for us. Happy hacking!

If you’re looking to install IPFS on a Linux server, we used an Ansible role for that, which worked great.

With a reporter surveillance scandal of its own embroiling Biden’s Department of Justice, it’s now more important than ever for his administration to throw its weight behind passing a strong journalist shield law, such as Senator Ron Wyden’s PRESS Act.

In the last week, the public learned that the DOJ secretly issued a subpoena seeking phone record information of Guardian journalist Stephanie Kirchgaessner in the course of a leak investigation by the Office of Inspector General, according to a report obtained through a Freedom of Information Act request by reporter Jason Leopold. Subsequent reporting has revealed that the subpoena was issued in February of 2021, in the early days of the Biden administration.

Guardian editor-in-chief Katharine Viner described the secret subpoena as “an egregious example of infringement on press freedom and public interest journalism by the US Department of Justice.” We agree — and it’s not an isolated incident.

This revelation follows a series of scandals surrounding the surveillance of journalists in the waning months of the Trump administration, which weren’t disclosed until May 2021 — nearly a year later. In the following weeks and months, the Biden administration and Attorney General Merrick Garland introduced new, stronger guidelines purporting to further restrict the Department’s surveillance powers with regard to journalists. At the same time, the White House and Garland called for legislation to codify these new guidelines — a proposal Freedom of the Press Foundation endorsed.

But as we reported this February, the Department of Justice has taken no action to support any such legislation since, leading Senator Wyden’s office to issue harsh criticism of the administration’s silence.

The difference between DOJ media guidelines and an actual law like the one proposed by Wyden’s PRESS Act is significant, in terms of both clarity and effectiveness. As it stands, the DOJ’s Inspector General could argue that the new media guidelines do not apply to them. Other federal agencies, like DHS, which also recently faced a spying-on-journalists scandal, could claim the policy doesn’t apply to them either. As we explained when the guidelines were adopted, action from Congress is vital for the policy to have any teeth.

The Biden administration has repeatedly sought to distinguish itself from its predecessors in terms of its respect for press freedom; making gains that can be undone at the stroke of a pen is insufficient. Unfortunately, as with the Biden DOJ’s decision to continue pursuing charges against Julian Assange, this new fact pattern reveals a disappointing continuity that challenges the press-friendly image this White House has aimed to cultivate.

The best time for the Biden White House to take meaningful action to support the PRESS Act would have been upon its introduction. Failing that, the next best time is now.

Making electronic documents safer to work with

Freedom of the Press Foundation is now the official home of Dangerzone, an open source tool developed by Micah Lee at First Look Media to make it safer for journalists to work with electronic documents sent to them by sources.

Hackers who target individual journalists or entire newsrooms often try to exploit security bugs in apps used to open common file types like PDFs or Word documents. What looks like a promising news tip may in fact be a carefully orchestrated attack. Dangerzone takes documents in many formats and converts them to safe PDF files.

“It’s almost like printing the document and then scanning it back in again,” said Lee. What remains is the same content displayed on your screen — nothing less and, crucially, nothing more.

Dangerzone takes potentially dangerous PDFs, office documents, or images and converts them to safe PDFs.

Lee, who served on FPF’s board of directors until last year, will continue to be the project’s lead developer. As part of stewarding development of the project, FPF is hiring a part-time developer to make long-awaited improvements, such as batch processing documents. Based on feedback from journalists and other newsroom staff, FPF will make further investments in the project.

With SecureDrop, FPF already manages the development of an open source whistleblower submission platform. Trevor Timm, FPF’s executive director, said the continued development and application of Dangerzone is the next logical step in defending public-interest journalism. “What happens after you receive a document? That’s where Dangerzone comes in. We’re honored to play a role in improving it, to protect journalists and sources alike,” Timm said.

You can download Dangerzone at https://dangerzone.rocks/.

In the week since Politico dropped its blockbuster reporting on a draft Supreme Court decision that would overturn Roe v. Wade, the floodgates of leaks have opened. Just today, Politico has reported on more confidential information regarding the status of that opinion, and at least The Washington Post and CNN appear to have anonymous sourcing close to the court.

These leaks, and the reporting they enable, are a good thing. The journalism we’ve seen on this important issue affecting the rights of hundreds of millions of Americans is a critical public service. Nevertheless, in the past week many political commentators have turned their attention to the leak itself and the perceived transgression from long-standing norms that it represents. One outlet memorably called the leak “the gravest, most unforgivable sin.”

These attacks on the leaks are nonsense. We've come to expect criticism of reporters who have unearthed sensitive or embarrassing information that is nonetheless newsworthy; it's no better to go after the source who provided those facts.

Others have argued that point vociferously in the past week. Matt Pearce at the Los Angeles Times has called for more leaks from the Supreme Court, while Jay Willis at the Supreme Court-focused publication Balls and Strikes has gone so far as to provide his Signal information for would-be leakers. At New York Magazine David Klion argues that even without the “who” and the “why” of the leak, we can describe it as a public service and “good, actually,” and at Politico, the outlet that kicked off this firestorm, Jack Shafer defended the leak and condemned the “veil of secrecy” that hangs over the deliberations from the highest court in the land.

In a sense, most of the arguments about the identity of the source behind these “unprecedented” leaks are a sideshow. (And in fact, leaks from the Supreme Court have happened before and already many times since!) This is not a whodunit story, but a significant legal development that could mean the restriction of long-established rights for hundreds of millions of Americans, with dangerous or lethal consequences. Ultimately, the story has informed the public of a consequential government decision of historic importance. That is what journalism is supposed to do.

We don't yet know — and indeed, may never know — the identity of the original leaker, or what motivated their disclosure. But the focus on their identity misses the point. We do know that in subsequent reporting, the pace of new reporting from inside the court has grown. And despite the hand-wringing from conservative commentators, at least some of the anonymous sourcing is coming from the political right.

For example, the Post has spoken with unnamed “conservatives close to the court” — apparently close enough to provide an account of a private conference among the justices. That account echoes earlier discussions on the conservative Wall Street Journal editorial page.

There's no ideological purity test for sources, nor should there be. Leakers, whistleblowers, and other sources frequently come with baggage or “impure” motivations for their disclosures. The job of the journalist is to distill the newsworthy information into a reported story.

Whether the leaker in this case was a liberal frustrated with the direction of the court, a conservative aiming to discipline a majority into holding together, or somebody else entirely, the reporters have an opportunity and a duty to report the facts they can provide.

As frequent Supreme Court litigator Theodore Boutrous put it, “Reporters have the right and indeed an obligation to try to get secret information from every branch of the government and the First Amendment protects their efforts to do so.”

The Supreme Court is a tremendously powerful and influential institution, and yet it has largely resisted the same forces toward transparency that have affected large parts of the executive and legislative branches. The people bound by its rulings deserve to know how it works.

The Los Angeles County sheriff’s public threat of retaliatory investigation into a reporter is an outrageous press freedom violation, and Freedom of the Press Foundation has joined more than two dozen groups last week in a letter condemning that action.

Sheriff Alex Villanueva, in a press conference on April 25, repeatedly pointed to a photo of Los Angeles Times reporter Alene Tchekmedyian and included her among the subjects of a criminal probe. Tchekmedyian reported on a leaked video showing a sheriff’s deputy kneeling on the head of a handcuffed inmate, and an apparent cover-up effort subsequently by Villanueva’s office.

After a public backlash from the Times and media and press freedom groups around the country, Villanueva has backpedaled on the actual investigation. The sheriff described the backlash as an “incredible frenzy of misinformation” in a tweet that included an image from the press conference cropped to remove the screen that displayed the reporter’s face. Still, as we explain in the letter, the very threat constitutes an unacceptable chilling effect:

Even where no charges are ultimately brought, the hostile signal sent by these incidents can have a chilling effect on newsgathering in Los Angeles and thus on the flow of information to the public your office serves. And your rhetoric sharpens, too, the acute physical risks that already face journalists engaged in on-the-ground reporting about law enforcement. See Kirstin McCudden, Another Record Year for Press Freedom Violations in the U.S., U.S. Press Freedom Tracker (Jan 10, 2022), https://perma.cc/HTD8-V759. We urge you to change course and take steps to ensure that reporters’ basic rights are given due respect at every level of the Department—from the deputy on the beat to the office of the Sheriff.

We’ve previously written about the shocking and shameful behavior of Los Angeles police, including the Sheriff’s Department, the Los Angeles Police Department, and several other law enforcement agencies in the area, when it comes to press freedom issues.

Read the full letter, organized by the Reporter’s Committee for Freedom of the Press and signed by FPF and 30 other organizations, below.

Freedom of the Press Foundation is thrilled to announce a new membership program to bring our community together in a world where press freedom is under constant threat. More than just a donation for a T-shirt, our membership program offers an opportunity for journalists, whistleblowers, experts and supporters to connect in new and dynamic ways in support of public-interest journalism.

Members who sign up by Tuesday, May 3 — World Press Freedom Day — will receive an invitation to a members-only event to hear from Daniel Ellsberg, whistleblower, First Amendment advocate, and co-founder of FPF. He’ll discuss leaks both past and present and how we can support the ongoing fight for press freedom. Details of this exclusive event will be shared with members via email after sign-up.

Members will also gain access to other exclusive FPF events. From remote digital security trainings to tailored seminars led by experts in privacy and technology, FPF has designed a program that encourages members to better arm themselves in the fight for press freedom.

“The membership program is a wonderful opportunity for us all to come together to do more for press freedom,” said Louise Black, FPF’s Vice President of Development and Operations. “I look forward to engaging with our community like never before. It’s thanks to our loyal supporters that we’re able to accomplish all that we do.”

Check out our new membership page to learn more about becoming a member today.

As a thank you for joining the program, members will receive newly designed FPF merchandise so they can wear their commitment to press freedom in style. Membership gifts include exclusive items like:

• Membership Cards
• Webcam privacy stickers
• FPF T-shirts
• FPF Emergency whistles
• FPF Tote bags
• FPF Sweatshirts (crewneck and hoodie options available)

Other FPF shirts, face masks, mugs, stickers and SecureDrop items are also available for direct purchase in our new store.

Your membership will directly support our mission to protect, defend, and empower public interest journalism in the 21st century. On behalf of FPF, we thank you for joining our community and we are excited to blow our whistles with you! Should you ever have questions or concerns, please feel free to contact membership@freedom.press.

FPF is a U.S. 501(c)(3) nonprofit organization and our tax ID number is 46-0967274. Your donation is tax-deductible to the full extent provided by law, less the value of any substantial gifts received.

New York City Hall is out of line in demanding information about the criminal backgrounds and open cases of journalists applying for press credentials.

Freedom of the Press Foundation was among the chorus of voices calling for press credentialing authority to be removed from the New York Police Department in 2020. That necessary change was passed by New York's City Council last year, moving the authority to the Mayor’s Office of Media and Entertainment.

But the mayor's office, now tasked with this role, has imposed new and unjustified hurdles in the process, a practice reported last week by New York Magazine’s Intelligencer. The rule for the first time requires applicants to provide information about felony convictions or any “open case for a lawful arrest for a misdemeanor while newsgathering.”

That last line is especially egregious, given that our call for a revamped press credentialing process followed well-documented incidents of journalists being improperly arrested at protests. According to our U.S. Press Freedom Tracker, 13 journalists have been arrested or detained while reporting in New York City since 2020.

City Hall reportedly emphasized to Intelligencer that the rules were implemented before Mayor Eric Adams took office in January. Regardless, this is Adams’ mess to clean up. And people will be watching especially closely, given his longstanding ties to the NYPD. (Adams was a New York City police officer for more than two decades before beginning his political career.)

Moving the press credentialing away from the police was a necessary step, but ensuring that the process is conducted fairly and with appropriate respect for press freedom requires more. As a key stakeholder in the lawmaking process put it, this implementation goes against the intent of the lawmakers who fought to move the credentialing process:

Keith Powers, the council member who sponsored the law, said he was caught by surprise by how [the Mayor’s Office of Media and Entertainment] interpreted its new authority. “I was not aware of this rule in the application process, and think it should be removed to uphold the intention of Local Law 46,” he said in a statement.

Others have threatened to take the mayor's office to court over this new guideline. We urge the agency to do the right thing and remove these criteria from their application.

In an important ruling for the press’s ability to report freely on the work of other outlets, the Second Circuit Court of Appeals has ruled that including a screenshot in an article commenting on another article's reporting is not copyright infringement. This is welcome news in an age where copyright can be used to restrict what newspapers can and can’t say about each other.

The article in question, a 2017 New York Post piece titled "Why I won't date hot women anymore," described three vignettes from people who had supposedly sworn off the very attractive. The leading anecdote concerned a 40-year-old private equity executive who, post-epiphany, had become engaged to a "merely beautiful" woman. The article was illustrated with a photograph of the exec that ran at the top of the story. Mic Network, a media company, reported on the backlash that the article had received and incorporated a screenshot that included part of that photograph.

Photographer Stephen Yang sued Mic for copyright infringement, and Mic moved to dismiss the case on the grounds that its inclusion qualified as a fair use — meaning, not copyright infringement. The Southern District of New York agreed, providing a fair use analysis that came to the conclusion that the purpose and character of Mic's use was clearly “transformative” and used to identify and provide commentary on the underlying article. (Whether a use is “transformative,” and how much that should affect the analysis, has been the subject of lots of legal analysis, including in a case headed to the Supreme Court in the next term. In this case, the court didn’t get bogged down in the details.)

Yang appealed, arguing that because his photograph was not the target of criticism, the use wasn't fair — an argument the Second Circuit has now rejected. That's an important win for the press and its ability to report on the media itself — in part, because copyright has long been one of the levers of control that the subjects of news stories use to exert influence over how they may be covered.

Notably, before the Hulk Hogan case in state court that ultimately bankrupted Gawker, the former wrestler and his attorney Charles Harder filed a federal lawsuit for copyright infringement over the same video that formed the basis of the later suit. And in just the past several years, a guest at Donald Trump’s private golf club sued outlets making use of his photos to report on the newsworthy actions of the then-president.

Photographs in particular have become recognized as a source of potential liability for news outlets who could face ruinous damages at worst, or expensive and stressful litigation at best. That sense has been heightened by an unusual ruling also in the Southern District of New York, finding that embedding a photo directly from a social media post could possibly constitute copyright infringement. (After that ruling, the parties settled out of court, which meant the Second Circuit did not get a chance to weigh in on an appeal.) One consequence of this uncertainty is that, likely in an effort to limit their possible exposure to lawsuits, some sites have taken to removing images from their archives en masse.

As we’ve long argued, news reporting relies on fair use. The actual practice of fair use, in turn, relies on firmly established principles and precedents that can ward off litigation — or at least limit its scope. Although it’s unfortunate that the current case has dragged on for nearly four years, its unambiguous result in Mic’s favor may discourage other plaintiffs from following suit.

Senator Sheldon Whitehouse asks a question of Director of the DOJ Office of Information Policy, Bobak Talebian.

Senators from both sides of the aisle took representatives from the executive branch to task at a Judiciary Committee Freedom of Information Act hearing this week. At the first hearing on FOIA since 2018, lawmakers raised serious issues with compliance and backlogs that have ballooned since the COVID-19 pandemic started.

FOIA requests as a transparency tool are available to everyone, but they are especially popular for journalists, who can use the responsive records as leads or to provide primary source support for reporting. For a working journalist, the glacial pace of document production found in some government departments is a non-starter — and clearly out of compliance with the text of the law, which requires results in weeks, not months or years.

Questions from senators focused on those long timelines and the resulting backlog, which a Government Accountability Office witness said was up 18% in September 2020 over a year before, after six months of pandemic working conditions. (We wrote in April 2020 about the collapse in government compliance with its transparency obligations as the pandemic began.)

Data journalists also frequently require records that are up-to-date and readily available in a machine-readable format — an issue that was raised by Senator Jon Ossoff, who asked the witnesses about the digitization of record storage and how it affects the government’s ability to produce those records digitally. Ossoff argued that this should be a fundamental consideration, calling it "a basic question about how FOIA is operating in the context of new technology."

Several senators also raised questions about legislative record requests, which have suffered many of the same foot dragging and excuse making as FOIA. Senator Sheldon Whitehouse asked a Department of Justice witness about the agency's position in CREW v. DOJ, an ongoing FOIA case concerning a Justice Department memo on whether President Trump's conduct described in the Mueller Report constituted obstruction of justice.

Whitehouse and a group of six other senators have filed a brief in that case, arguing that the department should not be allowed to withhold the memo. The litigation began during the Trump administration but the Department of Justice has continued to fight the memo's release after President Biden took office.

Senator Ossoff also asked about DOJ guidance on requests from individual lawmakers, which currently are treated differently than requests from committee chairs. That guidance in particular comes from a 1984 memo that, Ossoff suggested, should be revisited. This kind of internal DOJ guidance has major influence on policy and isn’t always even public — the Knight First Amendment Institute has challenged that secrecy for Office of Legal Counsel memos and, through FOIA litigation, has gotten hundreds of such memos released.

The Freedom of Information Act remains a critically important transparency tool — look no further to the stories surfaced by @FOIAFeed every day for evidence of that. But the senators are correct that it needs significant fixes to be a useful and modern one.

Russia has cracked down extensively on independent reporting within its borders since it invaded Ukraine last month, leading many outlets to cease publishing or pull editorial staff from the country entirely. Still, international and independent news outlets that would face official censorship within Russia are finding ways to distribute uncensored news to avid readers.

If you’re a journalist or represent a news org looking to circumvent censorship in Russia, please reach out to Freedom of the Press Foundation — we may be able to help.

In some cases, the solutions are high-tech. BBC and The New York Times, for example, both offer Tor onion services to make an encrypted connection to their site available to anybody with Tor browser access. Providing an onion address offers benefits above simply encouraging Tor usage for news sites, which we’ve explained in the context of tracking onion roll-outs and which security researcher Alec Muffett has recently described in more detail.

Importantly, these outlets didn’t start offering onion addresses with the invasion — rather, they’ve long provided Tor access as one channel to read their reporting, meaning the onion URLs have already been widely distributed and would be harder to substitute with spoofs.

For services that haven’t always been available over Tor, offering a new onion service is still a welcome development. Twitter somewhat quietly rolled out a long-anticipated onion service this month.

Independent news outlets on the ground in Russia may not have the infrastructure to launch an onion service, but Meduza — which long anticipated the ban that was issued against it this month — was able to educate readers about using VPNs or other circumvention techniques to continue accessing the site, and offers a mobile app that has not been as straightforward to restrict. It has continued to produce valuable reporting since the new restrictions and is looking to non-Russian audiences to help fund its continued existence.

Some outlets have embraced the platform Telegram, which is popular in both Russia and Ukraine, to distribute news through designated channels. Last week, The New York Times announced that it would begin offering updates through the app.

In addition to the channels which provide a sort of newsfeed, Telegram is advertised as a secure messenger, though security researchers have long cautioned about some of its security design decisions. Earlier this month EFF provided a guide to harm reduction for users of the app. (For encrypted communication, we recommend Signal and maintain a guide to maximizing its security.)

Finally, some of the censorship-circumvention techniques being practiced in Russia are decidedly much more old-school. This month the BBC revived its regional short-wave radio broadcasts — technology usually more associated with World War II than the Internet age — and is transmitting World Service news into Russia and Ukraine for hours each day.

Russia has long been a dangerous place for independent journalists. But in the past week, President Vladimir Putin’s government has swiftly stamped out any remaining semblance of press freedom, in an attempt to prevent its populace from learning the truth about its brutal invasion of Ukraine.

Almost immediately after tanks started rolling across the Ukrainian border, Russian government authorities reportedly started issuing ominous edicts to newspapers to stop using certain words and phrases in their reporting. Nobel Peace Prize winner Dmitry Muratov, who runs the Russian newspaper Novaya Gazeta, told The New Yorker on Feb. 28, “We received an order to ban the use of the words ‘war,’ ‘occupation,’ ‘invasion.’” He continued, “However, we continue to call war war. We are waiting for the consequences.” Many other publications received similar messages.

Putin quickly made these authoritarian “warnings” official policy. As the Washington Post reported, the Russian Parliament passed a new law “banning what it considers ‘fake’ news about the military, including any rhetoric that calls the invasion of Ukraine an “invasion” — the preferred language is “special military operation” — with a potential 15-year prison sentence.”

According to the Committee to Protect Journalists, only four days after the invasion began, five journalists were already facing charges “and dozens more were detained across Russia following their coverage of anti-war protests.” An independent newspaper, which put anti-war messages (rough translation: “the madness must be stopped!”) on its front page, found its offices raided by government authorities.

On March 1, two television networks which aired criticism of the invasion were reportedly taken off the air. By March 3, journalists from Dozhd, what CNN described as “the last remaining independent news network in Russia” fled the country over fears of their own safety. "After the blocking of Dozhd's website, Dozhd's social media accounts, and the threat against some employees, it is obvious that the personal safety of some of us is at risk," said Dozhd’s chief.

The so-called fake news law also forced foreign press outlets like CNN to cease broadcasting in Russia. Bloomberg and BBC stated they would suspend all work inside the country. Columbia Journalism Review has more details about the various outlets that have already started evacuating employees or are considering doing so. The New York Times announced on March 8 it is pulling editorial staff still in Russia.

News websites operated by independent news outlets both domestically and abroad were censored on a large scale so that they were unreachable by most of Russia’s population, including Meduza, which is tracking all the sites that have been banned, blocked, or shuttered on its English site.

The broader global information ecosystem has also largely been taken away from Russian citizens looking for accurate information, either by government censorship or companies pulling out of the country voluntarily. As the Times reported:

​​TikTok and Netflix are suspending their services in the country. Facebook has been blocked. Twitter has been partly blocked, and YouTube’s future is in doubt. Apple, Samsung, Microsoft, Oracle, Cisco and others have pulled back or withdrawn entirely from Russia. Even online video games like Minecraft are no longer available.

The Putin regime may crack down on the press and the open web in an attempt to momentarily contain the domestic political crisis its invasion of Ukraine has created, but it comes at great cost to the people of Russia. They need truth and independent reporting more than ever.

The Supreme Court upheld and potentially expanded its pernicious “state secrets” privilege in two opinions late last week relating to expansive government surveillance and anti-terrorism programs.

In United States v. Zubaydah, a divided court ruled that the government did not have to disclose information about its torture program at CIA “black sites” to a plaintiff who is currently detained in Guantánamo Bay. In United States v. Fazaga, the court issued a unanimous opinion ruling that a case against the FBI for unlawful surveillance of mosques should not proceed because it could raise national security concerns.

The state secrets privilege, invented in its modern form by the Supreme Court in the 1950s in a case in which it was later shown the government lied, essentially provides a shield to the federal government from accountability in civil courts for any activity it considers “classified.” As EFF has explained, the government often uses the state secrets privilege to argue that even if allegations of law breaking or constitutional violations are true, they are exempt from judicial review.

The issues raised in these particular cases are among the most significant possible constitutional concerns. Secret torture programs and religious discrimination through illegal surveillance are obviously matters of major importance. It’s crucial that they are subject to public scrutiny and examination, and that any misconduct meets appropriate accountability.

In these two decisions, the Supreme Court has effectively eliminated the possibility of that kind of accountability. A dissent by Justice Neil Gorsuch and joined by Justice Sonia Sotomayor in the Zubaydah case lays out the problem eloquently:

In the end, only one argument for dismissing this case at its outset begins to make sense. It has nothing to do with speculation that government agents might accidentally blurt out the word “Poland.” It has nothing to do with the fiction that Zubaydah is free to testify about his experiences as he wishes. It has nothing to do with fears about courts being unable to apply familiar tools to disaggregate discovery regarding some issues (location, foreign nationals) from others (interrogation techniques, treatment, and conditions of confinement). Really, it seems that the government wants this suit dismissed because it hopes to impede the Polish criminal investigation and avoid (or at least delay) further embarrassment for past misdeeds. Perhaps at one level this is easy enough to understand. The facts are hard to face. We know already that our government treated Zubaydah brutally—more than 80 waterboarding sessions, hundreds of hours of live burial, and what it calls “rectal rehydration.” Further evidence along the same lines may lie in the government’s vaults. But as embarrassing as these facts may be, there is no state secret here. This Court’s duty is to the rule of law and the search for truth. We should not let shame obscure our vision.

Justice Gorsuch describes the Supreme Court searching for truth and being frustrated by the government’s shame. The same dynamic, of course, is apparent when the government goes after whistleblowers who speak to the press, or even the publishers who release that critical information, with threats, condemnations, or even prosecution.

Sometimes those threats are petty, like the governor of Missouri promising prosecution for “hacking” against a journalist who reported on a security issue with the state’s handling of certain personal information. The state was embarrassed, and instead of owning that mistake, an official went after the proximate cause: reporting.

In other cases, the government pursues these grievances to extreme ends. Whistleblowers like Chelsea Manning and Reality Winner serve lengthy prison sentences, and Edward Snowden lives in exile facing Espionage Act charges after embarrassing the state.

The state secrets privilege is a specific legal argument that prevents a certain kind of accountability — namely, consideration by a court of law. The impulse that motivates its misuse, though, is much more general. It’s disappointing to see this abuse of power being upheld at the highest levels.

Fifty years ago the federal government tried to prosecute a New York Times journalist for publishing classified information. Since 2018, historians and press freedom advocates have been trying to unseal the mysterious grand jury case, but an appeals court has just ruled it will stay secret — public interest be damned.

Most everyone with an interest in press freedom knows about the seminal First Amendment Supreme Court case New York Times Co. v. United States, where then-President Richard Nixon and his administration notoriously attempted — and failed — to censor The New York Times for publishing the Pentagon Papers.

What many people do not know is that after that Supreme Court ruling, Nixon’s Justice Department also attempted to prosecute Times reporter Neil Sheehan, and potentially others, under the Espionage Act for gathering and publishing the classified study about the Vietnam War that would make up the Times’ legendary investigative series.

Former Times general counsel James C. Goodale recounted the events in 2013, which is one of the only contemporary descriptions of this important but oft-forgotten aspect of press freedom history:

The government's "conspiracy" theory centered around how Sheehan got the Pentagon Papers in the first place. While Daniel Ellsberg had his own copy stored in his apartment in Cambridge, the government believed Ellsberg had given part of the papers to anti-war activists. It apparently theorized further that the activists had talked to Sheehan about publication in the Times, all of which it believed amounted to a conspiracy to violate the Espionage Act.

Sheehan's wife, Susan, a reporter for The New Yorker, also was named in the government's case before the grand jury. A Who's Who of Boston-based reporters and anti-war activists were then forced to testify, including New York Times reporter David Halberstam, anti-war activists Noam Chomsky, Howard Zinn, and two senatorial aides to Mike Gravel and Ted Kennedy. Harvard Professor Samuel Popkin would even serve a week in jail for refusing to testify as to his sources, citing the First Amendment right to keep them confidential.

Thankfully, the grand jury failed to bring charges and the DOJ eventually dropped its case. But we largely do not know why, or the full extent of the DOJ’s investigation.

Historian Jill Lepore has been on a years-long legal quest to have documents from this same grand jury investigation unsealed once and for all. For a while it looked like she would succeed. A district court had previously granted at least some of her request. But the First Circuit Court of Appeals overturned that ruling earlier this week, making it uncertain whether the 50+-year-old documents will ever see the light of day. It is a disappointing ruling, one that also flies in the face of precedent in other circuits that says judges can indeed release this type of information to serve the public interest.

This case is particularly important because for the first time since then, the Justice Department is again trying to charge someone with “conspiracy to violate the Espionage Act” related to receiving and publishing classified information. WikiLeaks founder Julian Assange currently sits in prison in the United Kingdom, appealing extradition to the United States, where he faces 17 counts under that same law. Virtually every press freedom group in the world has condemned the charges as a threat to press freedom.

Supporters of the Assange prosecution often argue that “the U.S. would never prosecute a real journalist using these tactics.” Well, the Nixon administration attempted to do just that, and it’s vitally important for both the historical record and current events that we see exactly what happened 50 years ago. And use that information to make sure it never happens again.

You can read the full ruling by the First Circuit Court of Appeals via Reporters Committee for Freedom of the Press, below:

Since the Russian government’s appalling invasion of Ukraine, journalists on the ground have served a critical role for ordinary citizens in the region and around the world learning the full truth of what’s going on.

We join our friends at the Committee to Protect Journalists and Reporters Without Borders, who have both forcefully written about how journalists must be guaranteed safe haven and not targeted by militaries. Beyond the countless Ukrainian journalists bravely covering the invasion, there are reportedly as many as 1,000 foreign correspondents on the ground.

Two correspondents for the Daily Beast, have already been shot covering the conflict. They are thankfully OK and recovering. But now a television broadcast tower in Kyiv has reportedly been destroyed by a Russian airstrike, and a cameraman was reportedly killed while on the job yesterday. The Russian legislators also plan to criminalize “unofficial” information about the invasion this week. It will likely get worse before it gets better.

CPJ’s coverage, through the lens of press freedom, is particularly comprehensive. It just published an insightful article about “the view from Ukraine, through the eyes of local journalists,” and an alert about all of the journalists detained or threatened inside of Russia for not kowtowing to the government line. According to FT’s Moscow bureau chief Max Seddon, prosecutors are already attempting to ban independent media providers for so-called "calls to extremism" and "publishing false data about Russian soldiers."

Columbia Journalism Review’s Jon Allsop, in his always-excellent The Media Today column, has also rounded up some of the tactics the Russian government is using to stifle control its domestic media, including:

According to Meduza, an independent Russian outlet now based in Latvia, Russia’s media regulator this morning ordered news outlets to only report information about Ukraine from official sources, threatening them with fines and censorship if they spread “false information.”

In an incredibly dangerous place for reporters to do their job, press freedom will be critical. The whole world is watching.

An aerial view of downtown Phoenix features the Arizona State Capitol and the House and Senate buildings on either side.

A misguided Arizona bill would make it illegal to take photos or video of the police in certain circumstances, running directly against long-established constitutional protections for such recordings. Freedom of the Press Foundation has joined a coalition of two dozen media and press freedom groups opposing the proposal in a letter embedded below.

The house version of the bill, HB 2319, passed through the legislature's Appropriations Committee on Tuesday and through the full House on Thursday, despite its straightforward First Amendment problems. The House vote came down on party lines, with the body's Republican majority giving approval.

The original proposal would have rendered illegal recordings of police made without permission within 15 feet of an officer; as passed in the House, the limit is eight feet. Either limit is likely unconstitutional, as we explain in the letter:

We are extremely concerned that this language violates not only the free speech and press clauses of the First Amendment, but also runs counter to the “clearly established right” to photograph and record police officers performing their official duties in a public place, cited by all the odd-numbered U.S. Circuit Courts of Appeal including the Ninth Circuit. ... It is clear from well-established jurisprudence regarding this matter that officers performing their official duties in a public place do not have any reasonable expectation of privacy when it comes to being recorded and therefore taking enforcement action against someone who “fails to comply with a verbal warning of a violation of this section” is both impermissible and unconstitutional.

Nevertheless, the proposal now proceeds to the state Senate. We urge the lawmakers in that body to treat the Constitution and its press freedom guarantees with more respect than their colleagues in the House.

The case Sarah Palin lost against The New York Times this week was the first libel claim to even go to trial against the paper in nearly two decades. One might imagine these trials could be a lot more common: after all, the Times publishes constantly and there is no shortage of public figures who love to air complaints about critical reporting.

Some of those complaints even make it into legal claims. The Times was sued for libel in the United States 10 times between 2011 and 2017, for example, though none of those cases went to trial. That actual “close calls” are so rare reflects a critically important precedent in American law — one established by the Times itself.

That precedent, New York Times v. Sullivan, is a cornerstone of American press freedom, a unanimous 1964 Supreme Court decision that recognized the censorious possibility of libel litigation and adopted an appropriately high standard. Thanks to Sullivan, public figures need to show that publishers acted with “actual malice” to win a libel case. In legal terms, the actual malice standard means that the publishers must know the information they’re publishing is false, or act with reckless disregard of whether it’s true or false.

This technique for harassing and punishing a free press — now that it has been shown to be possible — is by no means limited to cases with racial overtones; it can be used in other fields where public feelings may make local as well as out-of-state newspapers easy prey for libel verdict seekers.

In Sullivan, Montgomery police had sued the Times over an ad placed by Martin Luther King Jr. supporters that described how civil rights activists had been treated during protests in Alabama. The Supreme Court recognized, however, that the same silencing tactics could be used in all sorts of cases. As one justice wrote: “This technique for harassing and punishing a free press — now that it has been shown to be possible — is by no means limited to cases with racial overtones; it can be used in other fields where public feelings may make local as well as out-of-state newspapers easy prey for libel verdict seekers.”

In Palin’s case, the Times and its supporters have always conceded that there was a factual error in the editorial in question, and ran a correction the day after its initial publication. Five years into the former governor’s litigation over the issue, the judge announced he would rule for the paper as a matter of law, and the jury ruled for the paper based on the specific facts. Palin, the 2008 Republican nominee for vice president, is very clearly a public figure, and her legal team simply could not show that the newspaper or its editors acted with actual malice towards her.

That high bar has been a critical press freedom protection for decades, and its value may be clearer now than ever. But it has come under unprecedented threat. Politicians — up to the former president of the United States — unhappy with the scrutiny of an independent press, have called for libel laws to be “opened up.” Two Supreme Court justices have suggested the Sullivan standard be revisited.

We’ve also witnessed litigants, bankrolled by billionaires, bringing ruinous suits against media outlets — such as the Florida case that bankrupted Gawker Media in 2016. In the Palin case, the Times likely paid a small fortune in legal fees, despite winning, and is likely to face more costs if Palin appeals. As the most financial stable newspaper in the country, it can afford it; there are countless media outlets that could not.

The intimidation effect of suing even when the Sullivan standard makes winning unlikely is common enough that there’s a name for these kinds of legal claims: a strategic lawsuit against public participation, usually abbreviated SLAPP. In some states, there are anti-SLAPP laws on the books to allow defendants to claim legal fees in cases they win — but these are limited in scope and only apply in those states. Passing a strong federal anti-SLAPP would be a major step forward for press freedom.

Until then, the Sullivan precedent is largely what stands between us and deep-pocketed plaintiffs from replaying the Gawker playbook against other news outlets. Palin’s attempted attack on the precedent should be understood as an effort to bring that grim future closer to reality.

We’re not the only ones to make that observation. Charles Harder, the attorney who led the Peter Thiel-funded team that brought down Gawker, was reportedly in attendance at the trial, taking very detailed notes.