Freedom of the Press

Indiana is one of two states with laws excluding the media from witnessing executions. The other, Wyoming, hasn’t executed anyone since 1992.

Indiana, however, executed Joseph Corcoran on Wednesday. Freedom of the Press Foundation (FPF) Director of Advocacy Seth Stern, along with George Hale, who covers the death penalty for Indiana Public Media, wrote for the Indianapolis Star about Indiana’s “dubious honor of being the national standard bearer for taxpayer-funded secret killings.”

It turned out that a journalist was able to attend the execution, but only because Corcoran and his lawyer gave one of the seats reserved for friends and family to a journalist. The state shouldn’t put the onus on the condemned to ensure transparency around their own killing. The law needs to change.

Read the Indianapolis Star op-ed here and more on the topic from The Associated Press here.

Austin Tice, a U.S. freelance journalist and former U.S. Marine, has been separated from his family and loved ones for a long time; 12 years to be exact. Tice was reporting on the Syrian civil war from outside the capital Damascus when he was abducted in August 2012.

The rebel-led collapse of Bashar Assad’s regime and the release of thousands of prisoners, including political prisoners, in Syria on Dec. 8 has renewed hopes of locating Tice and the tens of thousands of others who are missing.

Surprisingly, there is a connection between Tice — who was among the first U.S. journalists to make it into Syria after the outbreak of the civil war — and Taylor Swift: Tice is apparently a Swiftie. Now, the pop star could help bring one of her fans home.

Spent the day at an FSA pool party with music by @taylorswift13. They even brought me whiskey. Hands down, best birthday ever.

In Tice’s last tweet before his abduction on Aug. 11, 2012, which was also his 31st birthday, he mentioned Swift. Tice wrote that he’d spent that day listening to her music at a pool party with members of the Free Syrian Army, a coalition of rebel opposition groups, with which Tice was most likely embedded at the time. He even said it was his “best birthday ever.” A few days later, he disappeared.

Weeks later, a disturbing video emerged online showing Tice blindfolded and being led uphill by gun-clad captors wearing white robes. That 47-second clip, in which the journalist can be heard reciting an Arabic prayer and saying “Oh, Jesus,” was the last direct indication Tice was alive. That is until new information obtained by Reuters on Friday revealed that Tice escaped from his captors briefly in 2013 before being recaptured. Assad’s government repeatedly denied holding the journalist.

But since the fall of the Assad regime, the U.S. administration has intensified its search for Tice, the only missing American journalist that we know of. Both the State Department and the FBI are offering awards of $10 million and $1 million respectively for any information that leads to Tice.

The U.S. has been in direct talks about Tice with Hayat Tahrir al-Sham, the dominant rebel faction that currently leads the interim Syrian government.

HTS has offered to “cooperate directly” with the U.S. administration to locate Tice. A spokesperson for the new Syrian interim government told NBC News on Dec. 12 that the country’s new leadership blames Assad for the anguish of Tice's family.

In a press briefing soon after Assad fled to Russia, President Joe Biden said that despite his administration not having “direct evidence” that Tice is alive, his administration is “committed to returning him” home. Biden also sent U.S. officials to the region to help with the search effort. Tice’s parents maintain that their son is still alive.

The British newspaper The Times reported Wednesday that Syrian journalist and activist Saher al-Ahmad, who was imprisoned by Assad’s regime, believed he was held in the same Damascus jail as Tice as recently as 2022. He said he saw the American journalist a few times, which aligns with an unconfirmed U.S. intelligence report from 2022 in which a senior Syrian opposition leader stated that Tice had been in a Damascus prison since July 2021, according to The Washington Post.

For the past 12 years, successive U.S. administrations have tried and failed to bring Tice back home. Meanwhile, Tice’s parents and press freedom advocates, including Freedom of the Press Foundation (FPF), have worked on numerous advocacy campaigns and initiatives to raise awareness about his case.

Swift could help with those efforts at this critical time. If she learns about Tice’s abduction and publicly sympathizes with the American journalist and his family members who desperately want his return, she could give a huge boost to his chances of being found or released.

The superstar could express solidarity either online or offline. Her star power (and legions of fans) could encourage the Biden administration to do even more in its last remaining weeks to end Tice’s ordeal. Tice deserves to be home with his family for the holidays, safe and sound.

Taylor Swift, please help us find your fan, American journalist Austin Tice.

A recent federal court decision upholding the constitutionality of “Daniel’s Law” in New Jersey could embolden governments to restrict free speech by using privacy laws.

Daniel’s Law prohibits anyone from disclosing or publishing the home addresses and unlisted telephone numbers of government officials like judges, prosecutors, and police officers once the official sends a request asking for the information to be removed. After law enforcement and correction officers sued direct mail companies, data brokers, and similar entities under the law, the federal court rejected the defendants’ argument that it violates the First Amendment.

Daniel’s Law may sound like a reasonable way to protect government employees’ privacy. The law was enacted following a tragic attack at the home of a federal judge, in which her son was killed and her husband severely wounded. Public officials who face threats should receive enhanced security and protection, and those who threaten them should be punished.

We’re also certainly not here to defend data brokers, whose unregulated collection and sale of people’s data puts many people — including journalists — at significant risk. There’s no doubt that properly crafted privacy laws can be compatible with the First Amendment.

But we should be wary of laws that prohibit people from publishing or obtaining truthful information about government officials, even in the name of protecting privacy. For example, Daniel’s Law makes it far more difficult for journalists to investigate issues related to officials’ residency — such as whether they’re registered to vote where they live or have close family members living in a house owned by a billionaire — by allowing them to scrub their home addresses from most public records.

Courts must require the government to meet the highest constitutional burden to justify laws that protect the privacy of some of the most powerful government actors when those laws impact truthful speech. If not, we risk giving the government the power to limit or censor speech that’s embarrassing or sheds light on official wrongdoing.

Government shouldn’t get to decide what journalists can and can’t print

Data brokers aren’t the only ones affected by Daniel’s Law. Journalists are too. One New Jersey journalist, Charlie Kratovil, challenged Daniel’s Law on First Amendment grounds after a law enforcement official, Anthony Caputo, sent him a cease and desist letter for raising questions about Caputo’s place of residence. Kratovil, whose reporting revealed that Caputo lived more than two hours away from the community he served, had stated the name of the street (but not the specific address) listed on Caputo’s voter profile during a city council meeting.

So far, New Jersey courts have decided that Daniel’s Law can forbid publishing officials’ exact addresses, after Caputo and the state begrudgingly conceded that Kratovil could publish the name of the town he lived in. But Caputo first invoked Daniel’s Law after Kratovil mentioned just his street name, and other journalists will surely wonder how “exact” is too exact when it comes to discussing officials’ place of residence.

Kratovil has appealed to the New Jersey Supreme Court, arguing that the law violates the First Amendment by giving the government the power to say what the press can and can’t print.

Privacy laws must meet highest standards when government restricts speech

Daniel’s Law restricts speech based on its content (because it regulates disclosure of specific information about government employees). It also gives the government the power to prohibit the publication of true information. It should therefore be subject to the highest level of First Amendment scrutiny.

If we’re going to allow the government to infringe on free speech, it must have an extremely good reason and be required to write a law that affects the least amount of speech necessary to obtain its goals. That’s not just our opinion, it’s long been the Supreme Court’s standard.

But in its recent decision, the federal court held that Daniel’s Law isn’t required to satisfy this extremely high bar, simply because it’s a privacy law. Instead, the court applied a less strict balancing test that it said comes from past Supreme Court decisions involving a conflict between privacy and free speech.

That’s dangerous. Lowering the bar for privacy laws gives the government a freer hand to regulate speech as long as it says it’s doing it to protect privacy. Government officials and other public figures will inevitably abuse that power to stifle speech they dislike.

There’s no shortage of public figures and officials claiming that reporting on their illegal, hypocritical, or unsavory behavior violates their privacy. Some have even tried to use privacy as a justification for suing reporters. For instance, when Louisiana Gov. Jeff Landry was attorney general, he sued a reporter for requesting public records about sexual harassment allegations against one of his top deputies, arguing that their release would violate the deputy’s privacy. And just last year, an Arizona state senator claimed a journalist invaded her privacy by knocking on her door to see if she lived in the district she represented, and temporarily obtained a restraining order against the journalist.

The court’s decision is also wrong as a legal matter. The Supreme Court has repeatedly refused to allow litigants to characterize legal claims as about something other than speech — whether it’s emotional distress or even privacy — as workarounds to punish speech. The Supreme Court has also warned against expanding exceptions to the First Amendment and called ad hoc balancing tests weighing First Amendment rights against other competing interests “startling and dangerous.” The First Amendment already strikes the balance in favor of free speech.

The public’s interest in where officials live

Both of the courts that heard Kratovil’s challenge to Daniel’s Law concluded that the exact address and phone numbers of public officials aren’t matters of public concern or significance. That takes too narrow a view of the public interest. Sometimes journalists need to bring the receipts, and publishing details can be the most powerful way to demonstrate a news report is true.

For instance, when CNN exposed North Carolina gubernatorial candidate Mark Robinson’s offensive posts on online sex forums, it published his date of birth — information considered “private” under at least one law similar to Daniel’s Law — to prove the link between Robinson and the online accounts. It also published his unique online user name, information that some future privacy law could designate as private, as some have with email addresses.

That’s not to say that journalists should publish officials’ personal information without careful consideration and without good reason. But the First Amendment generally places the responsibility for making that decision in the hands of journalists, not judges, who may wrongly give greater weight to powerful people’s wish for secrecy than the value of public disclosure. We shouldn’t bend the rules to make it easier for the government to censor the press in the name of privacy.

FOR IMMEDIATE RELEASE:

New York, Dec. 18, 2024 — Congressional leaders in the House released a year-end spending bill yesterday that includes plenty of meaningless pet projects but not the most important press freedom bill in modern history, the PRESS Act.

But it isn’t over yet for the PRESS Act. Sen. Chuck Schumer could still include it in the Senate version of the spending bill, negotiate for the act’s passage before the holidays, or bring the measure to the floor by keeping the Senate in session past its anticipated end on Dec. 20.

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

“Congressional leaders found space in the end-of-year spending bill to give a football stadium to Washington, D.C. and rename buildings after former members of Congress. But they didn’t include the PRESS Act.

After campaigning and fundraising for months, warning of existential threats to our democracy, including the death of freedom of the press, Sen. Schumer and the other Senate Democrats must take advantage of the entire time they have left in power to pass the PRESS Act, even if that means senators have to work through the holidays just like most regular Americans.

The PRESS Act is bipartisan, it’s already passed the House, and it would provide essential protections for independent journalists no matter their politics. The Senate must not let this opportunity to pass the PRESS Act get away. If the rights of journalists are further curtailed in the next administration after years of inaction from those in power, Senate leadership will share a lot of the blame.”

The PRESS Act is a federal reporter-source shield bill that would protect journalists across the political spectrum from being spied on by the government and threatened with jail time to force them to testify against their sources.

White House national security adviser John Kirby recently downplayed growing interest in the mysterious drones spotted across the East Coast.

Kirby dismissed concerns despite reports the drones have been making unauthorized flights over defense facilities, and even though the House Intelligence Committee thought the drones were important enough for a classified hearing.

The Biden administration’s insistence there’s nothing to worry about, combined with its refusal to declassify any evidence supporting that claim, is drawing frustration from a wide variety of lawmakers.

New Jersey Rep. Chris Smith called Kirby’s statements “misleading at best” and demanded more information. Virginia Gov. Glenn Youngkin similarly lambasted the Federal Aviation Administration, the FBI, and other agencies for their reticence over the sightings.

The secrecy breeds mistrust at a time when trust in government is in a two-decade decline, particularly when it concerns a subject the government has admitted to lying about in the past.

It also feeds internet theories — some more out of left field than others — about what’s behind the lights in the night sky. The speculation from content creators on TikTok, X, and other platforms spreads most easily when the government doesn’t counter it with real information.

These are all self-inflicted wounds the government could heal by being more transparent.

Both the Biden administration and Congress should start today. The administration should tell the CIA, FBI, and Defense and Homeland Security departments to declassify any material they prepared for the recent House hearing on the drones. And Congress should follow suit and declassify the hearing transcript.

This joint effort would be a good first step to help the public and lawmakers understand if the drones are being piloted by someone benign, like an amateur or tech business, by some earth-based adversary, or by something else entirely.

ABC has settled a defamation lawsuit with President-elect Donald Trump, agreeing to pay $15 million for the establishment of Trump’s “presidential foundation and museum.”

Many report the money will go towards Trump’s presidential library, where the public will ostensibly be able to study his administration.

This would be a silver lining of Trump’s attacks on the press — especially if a portion of the settlement pays for Scotch tape so government librarians can patch up the records Trump is so fond of shredding.

But it’s not technically true.

The ABC settlement doesn’t mention a library. All it says is a Trump presidential foundation will establish something similar to what previous presidents have built.

That would be massive campuses with private office spaces, museums that have been criticized for misrepresenting history, and sometimes (although not always) government-run libraries that struggle to provide access to presidential records.

And they’ve been built with money that can come from anonymous donors, including from sources that might be eager to avoid normal campaign disclosure requirements.

The problems are so bad that presidential library experts have called the foundation-library system a scam and warned it is at a breaking point.

Why is the presidential foundation-library relationship so murky?

Congress appropriates very little money to the National Archives and Records Administration to build presidential libraries for the public to conduct research and access presidential records. As a result, NARA is dependent on the fundraising efforts of private presidential foundations to build them.

NARA takes control of the libraries once they are built, but they are often part of larger facilities, making it hard to know where the government’s work starts and private foundation work begins.

For example, the Ronald Reagan Presidential Library is just a part of a 250,000-square-foot complex that also houses the Boeing 707 that served as Air Force One, a banquet hall that can seat 1,600, and a reassembled Irish pub that Reagan had visited in the 1980s.

But presidential foundations don’t have to build government-run libraries on their campuses at all, even if it’s been a tradition.

President Barack Obama’s $700 million center doesn’t have a NARA presence, which may make it harder for historians to study the Obama administration. And Trump could follow suit.

Where does the foundation money come from?

Fundraising for presidential complexes is big business, but there are few rules or donation disclosure requirements for these facilities, whether they include government-run libraries or not.

This raises concerns about conflicts of interest from donors who want to win favor with current or former presidents, their family members who may still be in politics, or other elements of the government.

It’s not an abstract concern.

GOP lobbyist Stephen Payne promised foreign entities access to the George W. Bush administration in exchange for six-figure donations to its presidential center.

President Bill Clinton pardoned Marc Rich, a commodities trader who had been indicted on racketeering and other charges, around the same time that Rich’s ex-wife promised to donate nearly a half-million dollars to the 17-acre Clinton facility.

Other governments are also frequent donors. The Saudi royal family has reportedly donated nearly $10 million to both the Clinton and George H.W. Bush complexes.

Are the museums any good?

They can be. But the extent to which they accurately depict history largely depends on the integrity of the presidential foundation that builds it.

The Nixon museum, for instance, had a Watergate exhibit that baselessly accused Washington Post reporters Bob Woodward and Carl Bernstein of “‘offering bribes’ to further their famous coverage.” The inaccurate exhibit was on display for 17 years.

The George W. Bush Library faced criticism for not accurately addressing the administration’s use of torture.

The Clinton museum barely mentions the Monica Lewinsky scandal.

How about the libraries?

The NARA-run libraries that do get built struggle to provide public access to historical records.

Experts at the nonprofit National Security Archive (where I used to work) have repeatedly testified that the presidential libraries themselves are underfunded, understaffed, and on the verge of collapse.

Case in point: It is currently suing the George W. Bush Library for a 12-year wait on a single declassification request. And NARA’s own estimates state it will take over 100 years to make all of the Reagan White House documents publicly available.

Congress should help

Clearly, the current relationship between presidential foundations and libraries doesn’t work.

It is confusing, rife with corruption and bias, and doesn’t help the public access the most important records in government — those from the Oval Office.

Congress should keep working to pass legislation that reforms donations to presidential foundations. And it should seriously consider alternatives to the current foundation-library system to ensure presidents, including Trump, don’t pass private foundation work off as a public service.

Dear Friend of Press Freedom,

I’m Lauren Harper, the first Daniel Ellsberg Chair on Government Secrecy at Freedom of the Press Foundation (FPF), and welcome to “The Classifieds.” This is FPF’s weekly newsletter highlighting important secrecy news stories that show how the public is harmed when the government keeps too many secrets. Sign up here to receive “The Classifieds” in your inbox every week.

National security secrecy used to deny information to parents separated from their children at U.S. border

The Biden administration has quietly continued the long-standing policy of separating families at the U.S. border.

The government is supposed to report details about family separations so Congress can conduct oversight, except when it claims the cases involve national security. ProPublica’s Mica Rosenberg reports that when this happens, “the government is not required to provide documentation of the reason for its decision.” This loophole allows the government to hide whatever information it wants from families and their lawyers.

The government shouldn’t be withholding evidence from families with vague claims of national security secrecy, no matter who is president. The loophole should be shut as soon as possible.

You can help preserve federal data at risk of being taken down

All incoming presidential administrations revamp federal websites to align with their policy views, an overhaul that can include removing important information.

President-elect Trump’s first administration regularly took down information, particularly when it concerned environmental data and data regarding public health. And the second Trump administration will likely continue this trend. This practice can impede policymakers who rely on government data when crafting legislation.

Luckily, there is an ongoing effort by a group of archival organizations to save what’s called “end of term” data from each outgoing presidential administration. Visit the End of Term Web Archive’s website for information on how to nominate URLs and datasets for preservation.

U.S. should use declassification diplomacy often and proactively

Colombian President Gustavo Petro recently asked President Joe Biden to declassify U.S. records on one of Colombia’s most infamous human rights cases — its army’s 1985 siege of the Colombian Supreme Court.

Because of the quality of its archives, the U.S. has the distinctive ability to help Petro and conduct what policy experts call declassification diplomacy.

Biden should start the declassification process immediately. There is no danger in releasing the historical records being sought, it would help bring closure to families still searching for answers about what happened to their loved ones, and it might have foreign policy benefits down the road. Read more on our website.

What I’m reading

Congress keeps trying to hide the true Gaza death toll (The Intercept). The House recently passed its version of the National Defense Authorization Act. It contains a provision that would prevent the Defense Department from citing casualty data from the Gaza Health Ministry, as well as any other sources that rely on its data. The Intercept’s Jessica Washington says if this provision becomes law, it would effectively hide “the full extent of the death toll in Gaza in the military’s public communications.”

CIA official Asif Rahman pleads not guilty in leak of secret files on Israel (The Washington Post). U.S. District Judge Patricia Tolliver Giles has ordered pretrial detention for CIA analyst Asif Rahman, who is facing two charges under the Espionage Act for allegedly leaking top secret U.S. documents about Israeli plans to attack Iran. Rahman has pleaded not guilty to the charges, which carry a maximum prison sentence of 20 years.

Everybody loves FRED: How America fell for a data tool (The New York Times). Economic data published by the Federal Reserve Bank of St. Louis and nicknamed FRED has been a beloved source for reporters and economists since 1991 — it’s even been used to predict recessions. New York University Professor Emeritus Kim Schoenholtz says it's “It’s a public good. Arguably, the greatest public good the Fed has ever supplied.”

Biden's legacy: Enhancing the ‘state secrets privilege’ to protect the national security state (The Dissenter). Kevin Gosztola examines the Biden administration’s continued misuse of the “state secrets privilege,” which allows the government to hide information during litigation that it deems to be a “state secret.” Problematically, Biden’s Justice Department didn’t provide Congress with regular updates on its use of the privilege, even though it’s been required to do so since 2009.

Michael D. Thomas appointed director of the Information Security Oversight Office (ISOO Overview). Michael D. Thomas has been appointed the new head of the Information Security Oversight Office, a part of the National Archives and Records Administration that conducts oversight of the government-wide security classification system. Thomas will report on key classification issues and oversee the work of an interagency panel that handles certain declassification appeals. This panel overruled agencies a staggering 90% of the time in fiscal year 2023, showing the importance of appealing declassification denials and taking declassification decisions away from individual agencies.

When the bill to ban TikTok first was passed, we warned that its proponents had forgotten the lessons of the Pentagon Papers case, which cautioned against letting the government invoke “national security” as magic words that make the First Amendment disappear.

The appellate court that upheld the law last week proved our point.

The U.S. Court of Appeals for the District of Columbia Circuit failed to subject the ban to any meaningful scrutiny, deferring to the government’s position that TikTok damages national security. By refusing to “second guess” the government — or even question it at all — the court weakened the First Amendment and handed authorities expansive new powers over speech, including journalism.

Judges refuse to judge

For the TikTok ban, the court says it applied the highest level of constitutional scrutiny, which requires it to determine whether the law serves a compelling government purpose and is narrowly tailored. If this is the highest level of scrutiny, we’d hate to see what the lower ones look like.

When it comes to the First Amendment, a judge’s entire job is to scrutinize — and, yes, second-guess — the government’s justifications for banning speech. That’s because the government will often offer high-minded reasons for infringing on free speech like “national security concerns” when its real interest is in squelching speech it disagrees with or finds embarrassing.

The judges didn’t even need to look beneath the surface to see that happening in the TikTok case. The government admitted that the “national security” harm it fears comes not from bombs but ideas. And while the appellate court talked about covert Chinese manipulation of content on TikTok, it’s clear that what really got the bill over the hump was U.S. lawmakers’ fear of TikTok’s pro-Palestinian content, no matter whether it originates in Beijing or Baltimore.

But Americans are constitutionally entitled to read criticism of foreign wars that they’re paying for, no matter what lawmakers think of it. They’re also allowed to consume foreign propaganda.

The justices in the Pentagon Papers case — in which the court rejected the government’s attempt to bar The New York Times and The Washington Post from publishing a classified history of the Vietnam War — rightly took the exact opposite approach. Several justices were outwardly, and rightfully, skeptical of the government’s national security claims.

Justice Hugo Black, for instance, rejected the national security justification for a prior restraint on the newspapers, explaining, “The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.”

And Justice William J. Brennan Jr. summed up the government’s claims “that publication of the material sought to be enjoined ‘could,’ or ‘might,’ or ‘may’ prejudice the national interest in various ways” — and found them wholly insufficient to overcome the First Amendment.

Justice William O. Douglas wrote that the case exemplified “the widespread practice of governmental suppression of embarrassing information.”

Those justices were right. Even the government lawyer who argued the case before the Supreme Court later admitted that “he has ‘never seen any trace of a threat to national security’ since the papers became public.”

And we don’t need to look back to the ‘70s for examples of the government overstating national security risks. Successive administrations undermined the United States’ global standing on press freedom by prosecuting WikiLeaks founder Julian Assange, supposedly because of the harm his publications caused.

But then at Assange’s plea deal hearing in June, the judge explained that, based on the government’s own representation that Assange’s “crimes” had no “personal victim,” it was clear that “the dissemination of this information did not result in any known physical injury.”

Erik Wemple’s Washington Post column following the sentencing included a laundry list of recent examples of hyperbolic forecasts of hypothetical national security harms that never panned out. But Wemple couldn’t capture all of them, because they keep happening.

We’re still waiting for the government to substantiate its claims about the harms of last year’s so-called “Discord leak.” And at a recent hearing about a leak last October of Israeli plans to attack Iran, the government argued that Israel delaying its attack as a result of the leak somehow harmed America.

Hypothetical harms aren’t enough

Appellate courts are supposed to require proof of actual harm — not unrealized risks — before even entertaining the thought of censorship. But the judges who decided the TikTok case instead relied on hypothetical concerns of the type decried by Justice Brennan to justify the law.

No matter that the court acknowledged our government “lacks specific intelligence that shows [China] has in the past or is now coercing TikTok into manipulating content in the United States.” For this court, it was enough that the government “invokes the risk” that the PRC “might” manipulate content on TikTok.

The court also cited the vast amounts of data that TikTok collects from American users, but neither it nor the government ever explained how that data collection harms national security. As others have noted, it’s not exactly clear how China “can gain a national security advantage from knowing what Americans upload and watch on TikTok.” And anyway, there are noncensorial solutions to that problem.

A true “strict scrutiny” analysis would consider that, due to loopholes in U.S. law long predating the TikTok ban, China can easily buy the exact same information without TikTok’s involvement. Congress refuses to enact a privacy law to actually limit TikTok’s (or other platform’s) potential for surveillance or take other more serious measures to stop Chinese interference.

‘National security’ fears dreamed up against news outlets?

Unfortunately, if the appellate court’s opinion stands, it’s unlikely to be a one-off. Its analysis has concerning implications for both foreign and domestic news outlets and journalists.

Congress intended to target TikTok when it passed the ban. But, likely recognizing that a bill only targeting TikTok would be challenged as an unconstitutional “bill of attainder,” it granted future administrations the power to similarly censor other platforms from countries the government deems adversarial based on similarly shoddy national security claims.

That could include online news outlets based abroad, as long as they offer some kind of interactivity (for example, user comments). Ask The Associated Press — targeted under an Israeli law purportedly intended for Al Jazeera — if that slippery slope is far-fetched.

The court’s extreme deference to the government’s national security concerns also spells trouble for freedom of the press more broadly. For years, the Supreme Court has been shying away from questioning the government’s national security claims, despite the Pentagon Papers case. Will the current court stand up to a future president who claims he needs to ban a news outlet or throw a journalist in jail for the sake of national security? It’s worryingly uncertain.

President-elect Trump has said he’ll stop the TikTok ban, despite previously supporting it. It’s unclear how he can, though his administration could decline to defend the law before the Supreme Court. Regardless, the Supreme Court needs to take the next available opportunity to recommit to the skepticism judges are supposed to apply when the government trots out flimsy national security claims.

Arrests of U.S. journalists surge in 2024

The U.S. Press Freedom Tracker, a project of Freedom of the Press Foundation (FPF), just published a new report analyzing data it collected about U.S. press freedom violations this year, and the results are disturbing.

In 2024, journalists in the U.S. were arrested or detained by police at least 48 times, more than the previous two years combined. Nearly 90% of those arrests took place in connection with Israel-Gaza war protests.

To reach these numbers, police and other officials must be blatantly ignoring guidance from courts and the Department of Justice making clear that journalists have a First Amendment right to cover protests, including officers’ conduct after they issue dispersal orders. 

As stated by Kirstin McCudden, the Tracker’s managing editor and FPF’s vice president of editorial, each of these arrests “has serious consequences for our free press,” and the public’s right to know, since journalists arrested at protests are “often unable to freely cover stories deemed important by the public.” Read the full report here and check out yesterday’s Reddit AMA with Tracker Senior Reporter Stephanie Sugars.

New report shows need for PRESS Act

A new report from the Department of Justice’s Inspector General detailed how the DOJ spied on journalists during President Donald Trump’s first term and didn’t even bother to follow its own policies when it did.

Of course, Presidents Barack Obama and Joe Biden spied on journalists too, no matter what the toothless internal DOJ policies said. Our Director of Advocacy Seth Stern told The Intercept, “We don’t need to waste ink on years-late 100-page reports to confirm that the DOJ disregards these policies at its whim. We already know that.”  Instead, as Stern said, “We need to pass the PRESS Act.” 

Earlier this week, Sen. Tom Cotton blocked passage of the bill to protect journalist-source confidentiality in the Senate through unanimous consent, by objecting to it on totally spurious grounds.  But we told The Washington Post that it’s not over yet. “Leader Schumer needs to get the PRESS Act into law — whether by attaching it to a year-end legislative package or bringing it to the floor on its own — even if it means shortening lawmakers’ holiday break,” said Stern. Contact your Senator today to ask them to support the PRESS Act.

X goes ‘thermonuclear’ on media donors

Elon Musk — the world’s biggest free speech hypocrite — is at it again. This time, he isn’t just bringing a “thermonuclear” lawsuit against a media outlet that criticized social platform X. He’s going after all of its donors as well.

Last year, Musk’s X Corp. filed a “gloriously stupid” lawsuit against nonprofit journalism watchdog Media Matters for publishing a research report that found that advertisements for major brands appeared next to antisemitic and white nationalist posts on X. As part of discovery in its lawsuit, X has sought virtually every record Media Matters has about its donors.

Unfortunately, a lower court ordered Media Matters to turn over its donor information. The publication appealed, and this week FPF, represented pro bono by attorneys from Selendy Gay, filed an amicus brief in support of Media Matters. It pointed out how the lower court’s order would create a troubling way for future deep-pocketed litigants to target their perceived ideological enemies in the press by going after their donors. Read more (including the brief) here.

Bipartisan bill SLAPPs back against harassing lawsuits

Speaking of frivolous lawsuits, a new bipartisan bill could fix a big gap in federal law that leaves journalists and everyone else vulnerable to harassing lawsuits targeting their speech.

Reps. Jamie Raskin and Kevin Kiley and Sen. Ron Wyden introduced the Free Speech Protection Act last week. The bill gives victims of baseless lawsuits targeting their free speech, known as strategic lawsuits against public participation, a way to fight back in federal court.

SLAPPs use the time, expense — and stress — of lawsuits to punish free speech. Wealthy and powerful people and corporations have money to burn on lawyers to sue the journalists, activists, and regular people who criticize them. Those who have to defend themselves from these lawsuits often don’t. Even if they do defend themselves and win, they still lose. Read more about the much-needed legislation here.

Declassify records on Colombian Supreme Court attack

Colombian President Gustavo Petro is asking President Joe Biden to declassify U.S. records on one of Colombia’s most infamous human rights cases — its army’s 1985 siege of the Colombian Supreme Court.

Biden should agree to start the declassification process immediately. The U.S. has the unique ability to perform declassification diplomacy because of the quality of its archives, and it should engage in it regularly and proactively. There is no danger in releasing these 40-year-old records, and they would help bring closure to families still searching for answers about what happened to their loved ones.

Read more here about the need for more declassification diplomacy.

Israeli sanctions against the media should not be tolerated

We joined a statement led by Distributed Denial of Secrets objecting to Israel’s sanctions against its oldest newspaper, Haaretz, as well as its targeting of Palestinian journalists and refusal to allow international journalists into the Gaza strip. 

By ignoring assaults on press freedom by its close ally, the U.S. normalizes similar tactics at home. That's dangerous, especially with a president-elect who wants to punish journalists who won't kiss the ring. Columbia Journalism Review has more on the sanctions against Haaretz.

What we’re reading

The Supreme Court must intervene in the TikTok case (New York Times). In upholding the TikTok ban, the appellate court ignored long-standing Supreme Court precedent on the First Amendment and the stated intent of many lawmakers to censor U.S. TikTok users for their viewpoints. 

Should a student reporter face prosecution for embedding with protesters? (Columbia Journalism Review). The obvious answer is no. Stanford has plenty of classrooms for academic debates over whether Dilan Gohill went too far to get the news. That’s the only place where this case should be adjudicated. A university urging prosecution of a 19-year-old student journalist is bonkers. 

FAC leads press coalition in Stockton after sheriff threatens to investigate journalists (First Amendment Coalition). What's going on in California with government officials coming after journalists who report on public records? Ben Camacho, Jack Poulson, Maya Lau, and now this? Stop it already. All you're going to get is sued and publicly shamed. 

There's new hope for Austin Tice 12 years after he was kidnapped in Syria (NPR). In light of the collapse of the Assad regime in Syria, President Biden must do everything he can to find and free Austin Tice, an American journalist who went missing in 2012 while reporting in Syria.

404 Media objects to a Texas subpoena for our reporting (404 Media). Texas Attorney General Ken Paxton’s subpoena “seeks to turn 404 Media into an arm of law enforcement, which is not our role and which we have no interest in doing or becoming.”

Trump taps immigration hard-liner Kari Lake as head of Voice of America (TVNewsCheck).  You don't have to be a fan of state media to see the danger of appointing an anti-press extremist known for spreading falsehoods to lead VOA. With Lake in charge, the government can use VOA as a guinea pig for anti-press tactics and pro-Trump propaganda.

Freedom of the Press Foundation (FPF) on Dec. 12 launched a “starter pack” for press freedom organizations active on the social media platform Bluesky. We did so to curate a unified feed dedicated to press freedom, facilitate mutual following among community members, and contribute to the health of the conversation on the nascent platform.

What is Bluesky and why do we like it?

FPF joined the microblogging social media platform in July 2023, just a few months after Bluesky launched as an invite-only service in February 2023. The site opened registrations publicly in February 2024 and has seen exponential growth since the U.S. presidential election in November. Its user base is now inching toward 25 million, with daily active users increasing rapidly.

Bluesky was established in 2019 as a research effort within the company formerly known as Twitter to explore open communication protocols, and developed what later became known as the Authenticated Transfer Protocol as a result, which was released publicly in 2022.

In 2021, Seattle-based Bluesky became an independent company primarily owned by its 33-year-old chief executive, Jay Graber. Despite its ownership model, the key difference between current mainstream social media platforms — like Meta, X, and TikTok — is that Bluesky is based on an open communication protocol for distributed, or decentralized, social networks. The goal is, essentially, to shield the platform from being owned and controlled by just one person or group (like an enthusiastic, Trump-supporting, free speech-hypocrite billionaire), a concept that we hugely admire here at FPF.

What else are we doing?

Since the site allows independent developers to build apps and extensions on top of Bluesky's network, we will be exploring and experimenting with various ideas, including creating a custom press freedom feed. Feeds allow the site’s users to search for and save a stream of posts around a specific subject to their account without having to follow individual accounts. We hope to share more in 2025 about our work on this.

What can you do?

In the meantime, if you are on Bluesky or plan on creating an account, follow us and our press freedom reporting project and database, the U.S. Press Freedom Tracker. You can also follow the accounts on our press freedom starter pack, plus FPF’s staff, board members, and projects on this separate starter pack.

And if you are a press freedom organization on Bluesky, verify your domain, if you own one, for a couple of reasons. First, doing so confirms your identity on the platform, and second, it makes it easier for other members of our community, journalists, and the public at large to find you there. We did our best to locate press freedom organizations and add them to the starter pack, but if you are active on the platform and not in our press freedom pack, send us a message or contact us here and we will add you.

We are not leaving X anytime soon, because we think it’s still important to reach users there, but we’re excited to deepen our presence on Bluesky. We hope others will join us there in facilitating the conversation around press freedom and other issues critical to our democracy.

Elon Musk — the world’s biggest free speech hypocrite — is at it again. This time, he isn’t just bringing a “thermonuclear” lawsuit against a media outlet that criticized social platform X. He’s going after all of its donors as well.

You may recall that last year, Musk’s X Corp. filed a “gloriously stupid” lawsuit against nonprofit journalism watchdog Media Matters for publishing a research report that found that advertisements for major brands appeared next to antisemitic and white nationalist posts on X.

Unfortunately, despite the suit’s stupidity, it’s been an effective SLAPP. In May, Media Matters announced that it was laying off some staff, with its president blaming “legal assault on multiple fronts” that followed, such as the lawsuit by X and other legal actions by Republican state attorneys general.

Now, X is trying to expand the SLAPP to target not just Media Matters but anyone who’s donated to the publication. As part of discovery in its lawsuit, X has sought virtually every record Media Matters has about its donors, which would include its donors’ identifying information.

Coupled with Musk’s past legal actions and retaliation against the very long list of people who’ve questioned, criticized, or displeased him, it’s hard to see this demand as anything more than an attempt to intimidate Media Matter’s donors. The Supreme Court has disapproved of such tactics before. In cases both old and new, it’s decided that the First Amendment protects against the compelled disclosure of nonprofits’ membership and donor lists.

Unfortunately, a lower court ordered Media Matters to turn over its donor information. The publication appealed, and this week Freedom of the Press Foundation (FPF), represented pro bono by attorneys from Selendy Gay, filed an amicus brief in support of Media Matters. It pointed out how the lower court’s order would create a troubling legal path for future deep-pocketed litigants to target their perceived ideological enemies in the press by going after their donors.

With the economic collapse of many legacy media companies, Americans increasingly rely on nonprofit news outlets and freelancers supported by donations. If donors have to worry about being identified and sued by billionaires or corporations, or even just being ridiculed or ostracized for their support of a controversial news outlet, they may stop supporting journalists’ work. That would be ruinous for the media ecosystem and for the American public that gets its information from nonprofit news outlets and independent journalists.

Today, the target is Media Matters and its donors. Tomorrow it could be other news outlets disfavored by powerful people on the left or the right. The First Amendment must protect people’s right to read — and fund — the news.

Read the amicus brief here or below.

A new bipartisan bill could fix a big gap in federal law that leaves journalists and everyone else vulnerable to harassing lawsuits targeting their speech.

Reps. Jamie Raskin and Kevin Kiley and Sen. Ron Wyden introduced the Free Speech Protection Act last week. The bill gives victims of baseless lawsuits targeting their free speech, known as strategic lawsuits against public participation, a way to fight back in federal court.

SLAPPs use the time, expense — and stress — of lawsuits to punish free speech. Wealthy people, the powerful, and corporations have money to burn on lawyers to sue the journalists, activists, and regular people who criticize them. Those who have to defend themselves from these lawsuits often don’t. Even if they do defend themselves and win, they still lose.

Journalists are often the target of SLAPPs. For example, billionaire Sheldon Adelson filed multiple lawsuits against journalists and others based on dubious legal claims related to their criticism of him. One of Adelson’s lawsuits drove a Las Vegas Review-Journal columnist to bankruptcy as his daughter was undergoing treatment for cancer. Adelson ultimately dismissed the case and agreed to pay the columnist’s costs.

But it’s not only billionaires who file SLAPPs against reporters. For instance, earlier this year, a court threw out a University of Notre Dame professor’s SLAPP against The Irish Rover, a small Catholic publication at the college that reported on her abortion rights activism. She used the frivolous argument that the First Amendment doesn’t protect a student newspaper at a private university. The Irish Rover is now trying to recover the more than $175,000 it spent defending itself.

In the Irish Rover case, an Indiana state anti-SLAPP law empowered the publication to fight back. Many state legislatures — whether led by Republicans or Democrats — have passed state-level anti-SLAPP laws to help ensure that their citizens can speak freely without fear of being sued into oblivion.

The problem is that state anti-SLAPP laws don’t always apply when a journalist or someone else is sued in federal court over their speech. Some SLAPP plaintiffs even take advantage of that fact and specifically try to file their cases in the federal court system, clogging it with frivolous lawsuits.

That’s where the Free Speech Protection Act comes in. The bill would create protection at the federal level against SLAPPs. While there are some differences between the Free Speech Protection Act and some state anti-SLAPP laws, the bill provides important protections against SLAPPs by:

• Allowing defendants to file an early motion to dismiss, and then requiring expedited review of the motion by a judge, so that SLAPPs can be dismissed quickly, before the costs they impose can rise.
• Staying discovery — which can be expensive and privacy-invasive — while the motion to dismiss is pending.
• Creating a “rebuttable presumption” of fee-shifting, which allows judges to make SLAPP victims financially whole by requiring the plaintiff to pay them the fees they expended fighting the SLAPP.

The act isn’t going to pass this Congress, which is already winding down. But by introducing the bill now, Raskin, Kiley and Wyden kicked off an important conversation about what Congress should do to stop SLAPPs. You can contribute, too, by telling your members of Congress to support the Free Speech Protection Act.

Both Democrats and Republicans agree on the fundamental right of freedom of speech. Even President-elect Trump has used anti-SLAPP laws as part of his legal defense. The next Congress must take up the Free Speech Protection Act to protect Americans exercising that right.

Colombian President Gustavo Petro is asking President Joe Biden to declassify U.S. records on one of Colombia’s most infamous human rights cases — its army’s 1985 siege of the Colombian Supreme Court.

Biden should agree to start the declassification process immediately. The U.S. has the unique ability to perform declassification diplomacy because of the quality of its archives, and it should engage in it regularly and proactively.

There is no danger in releasing these 40-year-old records, and they would help bring closure to families still searching for answers about what happened to their loved ones.

‘A volcanic disaster’

On Nov. 6, 1985, members of Colombia’s M-19 guerrilla group occupied the country’s Supreme Court building in Bogotá. (Petro was a member of M-19 at the time, but was detained before the assault.)

The CIA called M-19’s operation a “publicity-generating” stunt, but then-Colombian President Belisario Betancur was concerned that showing leniency would anger military leaders, and ordered a ferocious, disproportionate response.

The Colombian army launched a 27-hour siege of the building that killed 11 justices and over 100 civilians. Eleven people working in the building still remain unaccounted for, and are believed to have been tortured and killed by Colombian army intelligence for being collaborators. The CIA deemed the military’s handling of the event a “volcanic disaster.”

To date, accountability and answers about what happened to those disappeared by the military have proved scarce.

Colombia, whose records are not nearly as complete as those of the United States, has repeatedly asked for help finding answers. The Colombian truth commission wrote a letter to Biden in 2021 stating “Colombian archives are far from complete,” and “the extraordinary care taken by U.S. federal agencies to preserve and organize their own archives” would help the commission — and victims’ families — understand what happened.

Biden didn’t respond to that request.

He should make up for the oversight and help Petro now.

The president should direct the National Security Council to initiate a special declassification project immediately to ensure that the CIA, State Department, and Defense Intelligence Agency expeditiously release their records on the case.

FOIA requesters help fill the void

Some important U.S. documents on Colombia and the Palace of Justice have been declassified. This is largely thanks to the indefatigable efforts of researchers at the National Security Archive, a nonprofit organization based in Washington, D.C., where I served for years as public policy director. They’ve been filing FOIA requests on Colombia for decades.

The archive’s FOIA requests have won the release of information showing that the U.S. sent a six-person explosives team to Bogotá during the Palace of Justice crisis, considered sending the Colombians “12 asbestos suits” to help carry out their assault, and provided important political context for the military’s response.

These documents and their insights are important. And if you want to know more about declassified U.S. documents on Colombian civil unrest, there’s no better place to visit than the National Security Archive.

But the efforts by individual researchers can’t replicate the power of the president telling agencies to release their records, especially about what happened to the fate of the disappeared.

Countries turn to U.S. for records on human rights abuses

This isn’t the first time another country has asked the U.S. for help uncovering evidence of past atrocities.

The U.S. has already provided governments across Latin America with declassified records, and this kind of declassification diplomacy has demonstrable impacts.

In 1998, President Bill Clinton overrode objections from the CIA and ordered the declassification of U.S. records on human rights abuses committed by the Pinochet regime in Chile. The project successfully released more than 23,000 records from the State Department, CIA, FBI, and more, which were used in criminal trials in Santiago.

In 2002, the U.S. began supporting Peru's Truth and Reconciliation Commission by providing the Peruvian Congress with declassified documents. Some of these declassified records, which were also obtained by National Security Archive researchers in response to FOIA requests, were used to help successfully convict former Peruvian President Alberto Fujimori of human rights abuses.

Special declassification projects have also been carried out for records on El Salvador and Guatemala.

But the largest effort is the Argentina declassification project. It was initiated by President Barack Obama and completed by President Donald Trump, and successfully released over 47,000 pages of records from the CIA, FBI, State Department, National Security Council, and more on human rights atrocities committed by the Argentine military dictatorship.

Declassification diplomacy is one of the United States’ most distinctive foreign policy tools, and it must be deployed as often as possible.

Biden should follow in the footsteps of Presidents Clinton, Obama, and Trump, and promise to release what the U.S. knows about the Palace of Justice tragedy.

FOR IMMEDIATE RELEASE:

Senate Democrats brought the PRESS Act to the floor for a unanimous consent vote today. As expected, Sen. Tom Cotton gave a speech objecting to the bill and so it failed to pass.

Sen. Schumer still has the time and the power to bring the bipartisan PRESS Act up for real consideration by the Senate before the congressional term ends — either by attaching it to a year-end spending bill or bringing it up for a stand-alone vote.

The following statement can be attributed to Freedom of the Press Foundation (FPF) Director of Advocacy Seth Stern:

"We need more than speeches about the PRESS Act’s importance. We need action. Senate Democrats had all year to move this bipartisan bill and now time is running out. Leader Schumer needs to get the PRESS Act into law — whether by attaching it to a year-end legislative package or bringing it to the floor on its own — even if it means shortening lawmakers’ holiday break. Hopefully, today was a preview of more meaningful action to come."

The PRESS Act, which has widespread support among both Democrats and Republicans in Congress, would protect reporters across the political spectrum from being spied on by the government, and from being threatened with jail time to force them to testify against their sources. It passed the House unanimously in early 2024.

Please contact us if you would like further comment.

Dear Friend of Press Freedom,

If you enjoy reading this newsletter, please support our work. Our impact in 2024 was made possible by supporters like you. Help us continue protecting press freedom in the year ahead — consider a year-end donation today. If someone has forwarded you this newsletter, please subscribe here.

Final push for bipartisan PRESS Act

Freedom of the Press Foundation (FPF) Advocacy Director Seth Stern, Axios journalist Sara Fischer, and former Fox and CBS journalist Catherine Herridge joined National Public Radio’s 1A this week to discuss the urgent need for the Senate to finally pass the PRESS Act and protect journalist-source confidentiality.

As Stern explained, the PRESS Act is bipartisan, common-sense legislation. “A subpoena is a subpoena. A contempt finding is a contempt finding, and jail is jail,” he said. “And whether it’s Donald Trump, Barack Obama, or somebody else who is coming after a journalist, the repercussions are the same.” Listen to the full episode here.

This week, Stern also wrote about an alarming court hearing in Herridge’s appeal of an order requiring her to name her confidential sources. Herridge appeared on System Update with Glenn Greenwald to discuss the need for the PRESS Act and her legal battle to protect her sources. Read Stern’s full op-ed, and watch Herridge’s interview with Greenwald here.

Classification is broken. Biden can still help fix it

Decade-long delays for declassification. Overclassification, even of publicly available records. Agencies refusing to exchange important information because of their excessive security rules. 

These are just a few of the well-known failures of our current classification system.

Now, Sens. Ron Wyden and Jerry Moran are calling on President Joe Biden to issue a new executive order that could help fix the government’s bloated and outdated classification system before time runs out. He should — and soon. Read more on our website.

Good news for reporters arrested for covering protests

These days some might assume the fight for press freedom is limited to playing defense and holding the line. Not so — we’ve got progress to report. 

Prosecutors have dropped charges against three journalists, Isaac White, Olga Fedorova, and Josh Pacheco, who were arrested for covering protests.

Unfortunately, there are still plenty of cases pending against other journalists who were just doing their constitutionally protected jobs. Read more on our website. 

Not in Kansas anymore: Alabama lawsuit echoes earlier anti-press attack

Last year, Atmore News reporter Don Fletcher and publisher Sherry Digmon were arrested on sham charges for allegedly revealing grand jury secrets. The charges were later dropped after the local district attorney, Stephen Billy, admitted to personal and professional conflicts of interest.

A new federal lawsuit brought by Fletcher and Digmon against Billy and his “allies” reveals startling similarities between their arrests and the raid on the Marion County Record last year. On the surface, both cases at first appeared to involve a few law enforcement officials abusing their power. A little digging reveals politically motivated multiparty schemes.

Read our article comparing the two cases — and highlighting the crucial need for accountability in Kansas and Alabama.

Our Bluesky starter pack for press freedom organizations, advocates

FPF Deputy Director of Audience Ahmed Zidan put together a new starter pack for press freedom organizations, advocates, and allies active on Bluesky. Check it out and jump-start your press freedom follows on Bluesky. While you’re at it, why not follow FPF on Bluesky, too?

What we’re reading

Bipartisan federal anti-SLAPP legislation reintroduced and improved (Forbes). A new bipartisan bill called the Free Speech Protect Act would allow reporters and others to fight back against billionaires and corporations who try to use the courts to silence them. Tell your representative to support this bill today.

US lawmakers urge Biden to pardon Assange to send ‘clear message’ on media freedom (The Guardian). Unless Biden has decided to limit his pardon power to family members, he should pardon Julian Assange to send a message that journalists shouldn’t be prosecuted for speaking to sources and publishing the news.

U.S. officials urge Americans to use encrypted apps amid unprecedented cyberattack (NBC News). The same FBI that routinely tries to destroy encryption is now recommending it to Americans after a massive hack of our telephone system by China. Maybe the FBI will remember that the next time it starts pushing to limit encryption. 

In Minnesota courts first, FOX 9 cameras allowed in murder trial under new rules (Fox 9). The public is more likely to trust that justice is being done if they can see it for themselves. More state and federal courts should follow Minnesota's lead in allowing cameras in the courtroom.

Volunteers thumbed through over a hundred annual reports to find out how agencies are using AI for FOIA. Here’s what they found (MuckRock). The public needs to know more about agencies’ use of AI for FOIA. Even agencies that say they’re using it often don’t specify whether it’s for generating response letters, searching for records, applying exemptions, or something else.

We explained in an op-ed in The Hill that ongoing efforts to force investigative journalist Catherine Herridge to burn her sources prove that — contrary to popular belief — journalist-source confidentiality bolsters, not hinders, national security.

Nonetheless, a federal appellate court last month was alarmingly skeptical of Herridge’s appeal of an order holding her in contempt of court for not outing sources. What’s worse, much of the hearing was held behind closed doors, outside the view of the journalists whose rights the case threatens.

The op-ed also explains how the case exemplifies the need to pass the PRESS Act.

Read it here.

“Where are all the good people who are supposed to stop this from happening?”

Marion County Record co-owner Joan Meyer asked that question repeatedly before her death — a day after local police illegally and unconstitutionally raided her community newspaper and home in response to the Record’s reporting about a local restaurant owner’s drunk driving convictions.

Alabama reporter Don Fletcher and newspaper publisher Sherry Digmon might have asked themselves that same question.

Last year, the two were arrested on sham charges for allegedly revealing grand jury secrets. Digmon, who also served on the local school board, was charged with violating an Alabama ethics law as well. It’s yet another unfortunate effort to make journalism a crime and silence reporters.

The bogus criminal investigation came after Atmore News, the local newspaper co-owned by Digmon, published Fletcher’s article about a school board meeting and a subpoena seeking school board financial records from the previous year. The subpoena was issued by Escambia County District Attorney Stephen Billy.

Four months after the arrests, Billy admitted to personal and professional conflicts of interest in the cases, and removed himself as prosecutor. The state attorney general’s office dropped the charges soon after.

Now, Digmon and Fletcher, joined by a school board member and a district employee also caught up in the investigation, have filed a federal lawsuit against Billy, Sheriff Heath Jackson, and “allies” for conspiring to violate their First and Fourth amendment rights.

On the surface, the attack on Atmore News — like that on the Marion County Record — may appear limited to a few law enforcement officials abusing their power. But in both cases, a little digging reveals politically motivated multiparty schemes.

The similarities between officials’ arrest of Fletcher and Digmon and the raid on the Record are startling and informative. After the Marion raid, the response and backlash seemed to make a repeat unlikely soon. But just months later, the Atmore News found itself at the center of a similar attack on press freedom.

Paper’s punishment motivated by politics

Like the former police chief and mayor in Marion, who allegedly sought both to punish the Record for investigating them and attack a political rival, local politics were at the heart of Billy and Jackson’s campaign against Atmore News, according to Digmon and Fletcher’s lawsuit.

The lawsuit claims that the two men took an “unusual personal interest” in the employment of Michele McClung, the local superintendent, and carried out a “convoluted conspiracy of retaliation” ripe with press freedom violations and a complete disregard for state and federal law.

Billy allegedly used his power as DA to protect McClung’s job after an audit revealed issues with her management of financial records.

Among other actions, Billy sent what the lawsuit calls a “threatening letter” to school board members ahead of a meeting about McClung’s employment. At the meeting, he also threatened retaliation against board members who opposed McClung — including Digmon — claiming, “I don’t control much, but I do control the grand jury of Escambia County.”

Fletcher’s reporting on this local political spat in the Atmore News triggered the later arrests of Fletcher and Digmon.

Of course, it is plainly unconstitutional to arrest journalists for publishing truthful information on matters of public concern — even if public officials don’t like what was printed. Grand jury secrecy laws bind grand jurors and witnesses, not journalists.

Yet Fletcher and Digmon weren't only arrested, they were ordered, as a condition of bail, to stop reporting on local criminal investigations.

Bad legal theory behind illegal search warrant

Police also obtained a warrant to seize and search Digmon’s cellphone. The warrant was based on allegations that she and another board member had private conversations about the board’s vote on McClung’s employment and the vote’s outcome in violation of Alabama’s public records law.

This is yet another startling similarity to the Record case. There, Marion County police relied on a similarly nonsensical theory — connected to a Record journalist’s alleged misuse of public records — to justify an illegal search warrant granting them authority for a newsroom raid.

Digmon and Fletcher’s lawsuit, meanwhile, alleges that the search and seizure of Digmon’s cellphone violates the Fourth Amendment. They’re right. The Fourth Amendment requires probable cause to obtain a warrant — an element absent from this investigation.

There are many reasons why it doesn’t make sense to issue a search warrant for a journalist’s phone based on an alleged violation of the Alabama Open Records Act.

For starters, the act isn’t a criminal law. Even if it was, the law doesn’t apply to phone calls. And the Alabama Open Meetings Act only applies to government meetings when a quorum is present — which it isn’t during a phone call between just two school board members.

All of that should have been obvious to the officer who sought the warrant and especially the judge who signed off on it.

Police and the judge should also have known that the Privacy Protection Act of 1980 guards against searching and seizing materials from journalists unless they are under investigation for a crime.

Sham criminal charges

Police in Marion used laws prohibiting identity theft and unlawful use of a computer as an excuse to raid the Record’s newsroom, based on sham allegations about what the laws prohibited.

Similarly, Billy and his allies arrested Fletcher and Digmon under Alabama’s grand jury secrecy statute based on made-up facts and bad faith interpretations of the law.

Police claimed that Fletcher and Digmon revealed grand jury secrets by reporting on the subpoena issued to the school board. It turns out there never was a grand jury. The lawsuit explains that the subpoena Fletcher reported on was instead issued by Billy under a provision in the law that gives the DA power to do so when a grand jury is not in session.

Even if a grand jury had issued the subpoena, it isn’t illegal for a journalist to report on it when they obtain it lawfully. Grand jury secrecy laws bind grand jurors and witnesses, not journalists.

Neither Fletcher nor Digmon were bound by any secrecy laws, privy to any grand jury secrets, or part of a grand jury in any capacity. It’s simply not a crime to disclose to the public information that powerful people want hidden.

There must be consequences

Billy has announced his plan to retire at the end of the year, but he shouldn’t be allowed to remain DA of Escambia County for a moment longer after his repeated and blatant disregard of press freedom.

He knew what he was doing and has acknowledged his conflicts of interest. But without accountability, these kinds of attacks on the press become normalized and will happen more often.

That’s where Fletcher and Digmon’s lawsuit comes in. Holding Billy and others who violated their constitutional rights accountable through civil liability will help make other public officials think twice before targeting the press as part of petty political schemes or to retaliate against critical reporting.

It’s also where the criminal justice system has a potential role. In Marion County, former Police Chief Gideon Cody faces a felony charge for his actions after the raid. Similarly, Alabama state officials should conduct an independent investigation of Billy and others who participated in the scheme against Fletcher and Digmon, and prosecutors should consider whether they broke state law. Billy should also be disciplined by the Alabama State Bar, regardless of his upcoming retirement.

Unfortunately, the good people weren’t there to stop this from happening to the Marion County Record or Atmore News, as Joan Meyer had hoped. Now, we need honest officials and judges to make sure these attacks on small-town newspapers and press freedom cease. Joan Meyer’s memory deserves as much.

Freedom of the Press Foundation (FPF) Advocacy Director Seth Stern joined National Public Radio’s 1A to discuss the urgent need for the Senate to finally pass the bipartisan PRESS Act and protect journalist-source confidentiality.

Stern emphasized that the PRESS Act is a bipartisan solution to a bipartisan problem — administrations from both political parties have come after journalists’ sources, as have local prosecutors and litigants in cases that have nothing to do with presidential politics.

“A subpoena is a subpoena. A contempt finding is a contempt finding, and jail is jail,” Stern explained. “And whether it's Donald Trump, Barack Obama, or somebody else who is coming after a journalist, the repercussions are the same."

He added that Trump, who recently called for Republicans to kill the PRESS Act, “should consider that this is not only about the mainstream media, not only about the journalists that he personally dislikes. It's about all journalists, including journalists who benefit him by exposing the stories that he wants told."

Axios journalist Sara Fischer and former Fox and CBS journalist Catherine Herridge — who is currently appealing an order holding her in contempt of court for not burning a source — also joined the show.

Herridge, who has requested a conversation with Trump to explain why he should support the PRESS Act, explained that if she hadn't had a credible pledge of confidentiality, she would never have been able to expose what she characterized as defects in the Russia collusion case.

You can listen to the full episode here.

President Joe Biden still has time to issue a new executive order that could help fix the U.S.’s bloated and outdated classification system. He should. And soon.

The failures of the current classification system are well known. Its biggest offenses include decade-long delays when declassifying records; overclassifying records, even when they are publicly available; and agencies refusing to share important information with one another because their security rules encourage excessive secrecy.

Biden administration officials have testified repeatedly since 2021 that they are working on revising the executive order to fix these problems.

Yet, with less than two months remaining in Biden’s term, there’s nothing to show for these efforts, and the standing EO still dates to the first year of the first Obama administration.

Sens. Ron Wyden and Jerry Moran are calling on Biden to publish the EO his team has allegedly been working on before time runs out.

Their recent letter to the president says, “Completing the work of modernizing the Executive Order and fundamentally reforming the country’s broken classification and declassification system would be a historically significant part of your legacy.”

He should take Wyden and Moran’s advice.

What are the necessary fixes?

To be effective, the new Biden EO should include the following reforms:

• Require agencies to report annually how many secrets they keep, both in number of pages and bytes of data, and how much these secrets cost. We currently do not have reliable estimates for any of these figures. Without them, there will be no practical way to measure how successful efforts are (or aren’t) to rein in overclassification.
• Specifically state that violations of law may not be classified at all. The current EO says material may not be classified with the specific intent of hiding wrongdoing, but agencies can still classify records showing they broke the law so long as they are not classifying information specifically to hide that fact. This loophole should be closed.
• Clearly define what “damage to national security” means. The vagueness of this phrase, which is used to justify classification levels in the standing EO, gives agencies too much latitude when making classification decisions. This has led to a classification environment where documents are needlessly stamped classified between 75% and 90% of the time. Egregious overclassification examples range from the absurd, like the Defense Intelligence Agency classifying information showing that Chilean General Augusto Pinochet’s favorite drink was a pisco sour, to the serious, like the government hiding its report on the CIA’s torture program.

Why now?

If Biden issued the new order, even during his final days, agencies would immediately have to begin changing their classification policies, and these new guidelines could be used when conducting oversight or making classification challenges.

One way to help ensure a Biden EO wouldn’t be immediately (or ever) rescinded by President-elect Donald Trump when he takes office would be to incorporate some of the ideas put forth in The Heritage Foundation’s Project 2025 chapter on intelligence.

The author of that chapter, Dustin Carmack, says a new EO should include tighter restrictions about what can be classified, reducing the number of people who can classify records, and improving metrics for tracking classification decisions.

These are all improvements that transparency advocates across the political spectrum have been urging the government to adopt for years.

An eleventh-hour EO from Biden, especially one that includes some of the suggestions from The Heritage Foundation, makes it less likely that Trump’s national security team would prioritize the laborious task of crafting a new executive order from scratch.

This would be a good thing, because while Trump’s EO could include some of The Heritage Foundation’s reasonable fixes, it’s equally possible it would include bad things, like harsher punishments for whistleblowers who leak classified information for the public’s benefit, or for the press they leak the information to.

If Biden really has been drafting a new EO to fix classification, he should issue it now and ensure fixing the system is part of his legacy.

Dear Friend of Press Freedom,

If you enjoy reading this newsletter, please support our work. Our impact in 2024 was made possible by supporters like you. Help us continue protecting press freedom in the year ahead — consider a year-end donation today. If someone has forwarded you this newsletter, please subscribe here.

Time is closing in on the PRESS Act

Donald Trump may have called on Republicans to kill the PRESS Act, but it’s not too late for him to reconsider — or for the PRESS Act to pass. The bipartisan bill would be the most important press freedom legislation in modern history and safeguard journalist-source confidentiality — regardless of politics. That’s precisely why lawmakers from Sen. Chuck Schumer to Rep. Jim Jordan support it.

Call or email your member of Congress and urge them to support the PRESS Act before time runs out. Federal law should protect journalists and sources who expose newsworthy information the public needs to know.

Gifts for the journalist in your life

If you know any journalists, you know that most of them don’t get into this line of work for the overwhelming paycheck. That means they don’t always treat themselves to gadgets and services that will make their jobs safer and easier. Dr. Martin Shelton, FPF’s deputy director of digital security, put together a guide featuring the best gadgets to gift this season.

Stay up-to-date with all things free press

FPF offers weekly and monthly newsletters compiling a selection of news along with commentary, guides, and our favorite free press and digital security stories from across the internet. Sign up for them here.