Freedom of the Press

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Here are some of the most important stories we’re following from the U.S. and around the world. If you enjoy reading this newsletter, please forward it to friends and family. If someone has forwarded you this newsletter, please subscribe here.

US hides its best hurricane predictions

We’re in the middle of an especially dangerous hurricane season, but the government’s weather forecaster won’t release its most accurate predictions.

A new Washington Post report reveals that the National Oceanic and Atmospheric Administration says it can't disclose potentially lifesaving data because it promised not to in an agreement with a private vendor.

This arrangement wrongly places commercial interests above public safety. People shouldn’t die in hurricanes in the name of corporate secrecy. Read more on our website about why public-private industry partnerships must be open and transparent to the public.

US silence over Al Jazeera speaks volumes about policies on TikTok, RT

We’ve said before that Israel’s assaults on Al Jazeera provide a real-time illustration of the dangers of the U.S.'s TikTok ban legislation and the power it gifts the government to muzzle its critics by invoking vague security threats.

But even as the U.S. government does nothing about Israel’s latest raid on Al Jazeera, it expects Americans to believe that its intentions are pure in its efforts to punish foreign platforms and news outlets like TikTok and RT. Read more on our website about why we remain skeptical.

Knee-jerk secrecy keeps prepublication review broken

A new directive aims to streamline the prepublication review process for former intelligence community employees looking to write about their time in government. But it doesn’t address the main problem: The government calls too many things secrets.

The government classifies more and more information every year, often needlessly. Until agencies reduce the number of secrets they generate, prepublication review will continue to be an unwieldy, quixotic effort.

Lauren Harper, our Daniel Ellsberg chair on government secrecy, explains the prepublication review process’s flaws, the new guidance, and the directive’s failure to address the crisis of overclassification and the knee-jerk secrecy that permeates the government.

Court says First Amendment means less free speech

If it sounds backward to use the First Amendment to undermine a law meant to protect free speech, that’s because it is.

Yet that’s just what a federal court of appeals did in a recent decision on Section 230 of the Communications Decency Act — the federal law that shields online services from legal liability for posts made by their users.

We explain on our website how the court’s nonsensical decision threatens online freedom of speech by journalists and everyone else.

What we’re reading

By storming our Al Jazeera offices in Ramallah, Israel has stepped up its assault on press freedom (The Guardian). Asef Hamidi is right: World leaders must immediately and decisively stand up for press freedom, including in Gaza and the West Bank, where Israel is deliberately targeting journalists.

As president, Trump demanded investigations of foes. He often got them (The New York Times). “Secret White House documents” help show Trump's political persecution of his enemies. The public is entitled to this information, and the current secrecy around presidential and White House records is bad for democracy.

N.J. high court will hear reporter’s challenge to law shielding public officials’ addresses (New Jersey Monitor). It’s vital that the New Jersey Supreme Court reverse the appeals court’s ridiculous decision and protect journalists’ right to publish public records about government officials. Secrecy laws that claim to protect officials’ safety but instead stop journalists from investigating abuses are dangerous.

Threatened with jail over a scandal headlined by Brett Favre (ESPN). Whether it’s reporting on a welfare fraud scandal in Mississippi involving Brett Favre or steroids in baseball, no reporter should ever face jail for refusing to burn their sources. Every state needs a strong reporter’s shield law, and Congress must pass the PRESS Act.

Ark. Supreme Court refers justice for disciplinary investigation after FOIA dispute (KAIT). It’s good that the Arkansas Supreme Court ordered an investigation of a judge who ignored its directive by stopping the release of government records. But judges who trample on press rights should be investigated and punished even when they don’t insult higher courts in the process.

The National Archives: A small agency with a big responsibility safeguarding American and world history (60 Minutes). This report by 60 Minutes says what advocates have been shouting from the rooftops for years: The National Archives can't succeed, and the public will lose its history, if it does not get more and better resources and a more aggressive mindset to combat secretive agencies and presidents.

Come see us in Washington or London

The Double Exposure Festival & Symposium Nov. 7-10 in Washington, D.C., will have panels, workshops, and master classes focused on investigative storytelling. Don’t miss our Director of Advocacy Seth Stern, who will discuss dangerous government efforts to limit who is a journalist — such as by excluding documentary filmmakers. Purchase your tickets or passes here.

Or come see us in London, where we’re co-hosting Source! the London Logan Symposium with The Centre for Investigative Journalism Nov. 14-15. Hear from journalists from all over the world about press freedom issues and the challenges they face in protecting themselves and their sources. Register to attend here.

Follow us on TikTok and Instagram

FPF is now live on Instagram and TikTok. Click the links to follow us and see our latest posts about press freedom.

A new directive aims to streamline the prepublication review process for former intelligence community employees looking to write about their time in government.

In theory, prepublication review ensures current and former officials don’t publish information that damages national security. In practice, it routinely infringes on First Amendment rights. The process has served partisan agendas, withheld public information, and stifled debate.

Attempting to fix the process is a good thing — but the new reforms don’t address a fundamental problem: The government classifies more and more information every year, often needlessly.

Until agencies reduce the number of secrets they generate, prepublication review will continue to be an unwieldy, quixotic effort.

What is prepublication review?

Prepublication review requires a wide range of former officials to submit written works to the government for vetting before publication. The process began with a small number of CIA officials in the 1950s and now covers employees across the intelligence agencies, as well as components of the departments of State, Justice, Defense, and Homeland Security.

When the government considers everything a secret, the task of identifying secrets in manuscripts becomes extraordinarily time-consuming. It delays or prevents publication of unclassified material, information that is already public, and information that embarrasses the government.

The tenuous legality of the review is based in the nondisclosure agreements agency employees must sign, but the requirements on who must submit what varies between agencies and are often difficult to find. (A Freedom of Information Act request from the ACLU and Knight First Amendment Institute found the CIA deliberately kept submission requirements secret.)

The Supreme Court has not considered the constitutionality of the prepublication review process since the 1980s and declined to do so as recently as 2022. And anyone who does not submit their manuscript for review runs the risk of the government seizing the proceeds from their book after it's published, having their security clearance revoked, and possibly being prosecuted.

Here are just a few examples of how flawed the system is:

• Prepublication review of former National Security Advisor John Bolton’s memoir was mired in delays and political interference from the Trump White House and Justice Department.
• The CIA ordered former FBI agent Ali Soufan to cut significant portions of his book, “The Black Banners,” even information that had already been disclosed in congressional hearings, public records, and prior books.
• Former Defense Secretary Mark Esper sued his old agency over delays reviewing his manuscript, stating that, “Significant text is being improperly withheld … under the guise of classification.”
• The Naval Criminal Investigative Service’s Mark Fallon had to remove information “already in the public record and some seemingly intended only to protect the government from embarrassment” from his book.

Double standards

The system is overwhelmed by the amount of material submitted. As of 2015, the CIA alone was reviewing 184,000 pages a year. The sheer volume creates delays, which is a feature — not a bug. Delays discourage authors with deadlines to meet from appealing redactions.

And overclassification compounds the delay — not only do reviewers need to read thousands of pages of manuscripts, they need to cross-reference them with millions of often needless classification decisions.

Not everyone faces delays, though. While it may take years for some authors to get manuscripts back, it only took the State Department two months to return former Secretary Hillary Rodham Clinton’s. There was so much pressure for a quick turnaround that State’s prepublication review board warned: “If you are tardy in your response, you may get a high-level Department official call.”

What is in the new prepublication review directive?

The Brennan Center for Justice’s Elizabeth Goitein and former National Security Council official John P. Fitzpatrick have an excellent summary of the key items in the new directive in Just Security. Key improvements include:

• Requiring agencies to publish information on the prepublication review process on front-facing websites.
• Building and maintaining searchable datasets to track prepublication review requests and metrics.
• Mandating that agencies build appeals processes for denied material and appoint a prepublication review liaison.

They also note a number of limitations. The new guidelines:

• Only apply to members of the intelligence community, not other agencies that conduct prepublication reviews.
• Do not require a uniform appeals process across the intelligence community.
• Mandate no firm deadlines for agencies to complete reviews.
• Continue to allow agencies to withhold unclassified material that may be protected under other federal law or regulation, including exemptions to the inapplicable FOIA. That rationale is used to withhold everything from information pertaining to defense contractors to watermelon growing under FOIA’s Exemption 3.

These are missed opportunities. But the overarching problem is the directive’s failure to address the crisis of overclassification and the knee-jerk secrecy that permeates the government.

Until agencies face meaningful consequences for inappropriately withholding information, the prepublication review process will remain broken.

The CIA’s internal report on its prepublication review process, “Protecting Secrets,” was released through a Freedom of Information Act request. SCREENSHOT

A new directive aims to streamline the prepublication review process for former intelligence community employees looking to write about their time in government.

In theory, prepublication review ensures current and former officials don’t publish information that damages national security. In practice, it routinely infringes on First Amendment rights. The process has served partisan agendas, withheld public information, and stifled debate.

Attempting to fix the process is a good thing — but the new reforms don’t address a fundamental problem: The government classifies more and more information every year, often needlessly.

Until agencies reduce the number of secrets they generate, prepublication review will continue to be an unwieldy, quixotic effort.

What is prepublication review?

Prepublication review requires a wide range of former officials to submit written works to the government for vetting before publication. The process began with a small number of CIA officials in the 1950s and now covers employees across the intelligence agencies, as well as components of the departments of State, Justice, Defense, and Homeland Security.

When the government considers everything a secret, the task of identifying secrets in manuscripts becomes extraordinarily time-consuming. It delays or prevents publication of unclassified material, information that is already public, and information that embarrasses the government.

The tenuous legality of the review is based in the nondisclosure agreements agency employees must sign, but the requirements on who must submit what varies between agencies and are often difficult to find. (A Freedom of Information Act request from the ACLU and Knight First Amendment Institute found the CIA deliberately kept submission requirements secret.)

The Supreme Court has not considered the constitutionality of the prepublication review process since the 1980s and declined to do so as recently as 2022. And anyone who does not submit their manuscript for review runs the risk of the government seizing the proceeds from their book after it's published, having their security clearance revoked, and possibly being prosecuted.

Here are just a few examples of how flawed the system is:

• Prepublication review of former National Security Advisor John Bolton’s memoir was mired in delays and political interference from the Trump White House and Justice Department.
• The CIA ordered former FBI agent Ali Soufan to cut significant portions of his book, “The Black Banners,” even information that had already been disclosed in congressional hearings, public records, and prior books.
• Former Defense Secretary Mark Esper sued his old agency over delays reviewing his manuscript, stating that, “Significant text is being improperly withheld … under the guise of classification.”
• The Naval Criminal Investigative Service’s Mark Fallon had to remove information “already in the public record and some seemingly intended only to protect the government from embarrassment” from his book.

Double standards

The system is overwhelmed by the amount of material submitted. As of 2015, the CIA alone was reviewing 184,000 pages a year. The sheer volume creates delays, which is a feature — not a bug. Delays discourage authors with deadlines to meet from appealing redactions.

And overclassification compounds the delay — not only do reviewers need to read thousands of pages of manuscripts, they need to cross-reference them with millions of often needless classification decisions.

Not everyone faces delays, though. While it may take years for some authors to get manuscripts back, it only took the State Department two months to return former Secretary Hillary Rodham Clinton’s. There was so much pressure for a quick turnaround that State’s prepublication review board warned: “If you are tardy in your response, you may get a high-level Department official call.”

What is in the new prepublication review directive?

The Brennan Center for Justice’s Elizabeth Goitein and former National Security Council official John P. Fitzpatrick have an excellent summary of the key items in the new directive in Just Security. Key improvements include:

• Requiring agencies to publish information on the prepublication review process on front-facing websites.
• Building and maintaining searchable datasets to track prepublication review requests and metrics.
• Mandating that agencies build appeals processes for denied material and appoint a prepublication review liaison.

They also note a number of limitations. The new guidelines:

• Only apply to members of the intelligence community, not other agencies that conduct prepublication reviews.
• Do not require a uniform appeals process across the intelligence community.
• Mandate no firm deadlines for agencies to complete reviews.
• Continue to allow agencies to withhold unclassified material that may be protected under other federal law or regulation, including exemptions to the inapplicable FOIA. That rationale is used to withhold everything from information pertaining to defense contractors to watermelon growing under FOIA’s Exemption 3.

These are missed opportunities. But the overarching problem is the directive’s failure to address the crisis of overclassification and the knee-jerk secrecy that permeates the government.

Until agencies face meaningful consequences for inappropriately withholding information, the prepublication review process will remain broken.

As Hurricane Helene batters the Southeast, leaving at least six dead and millions without power, it leaves no doubt we are in the middle of an especially dangerous hurricane season. So why won’t the government’s weather forecaster release its most accurate predictions?

The National Oceanic and Atmospheric Administration says it can't disclose potentially lifesaving data because of stipulations in a 2020 agreement it signed with a private vendor, whose proprietary prediction analysis technique is incorporated into the NOAA-developed forecast model.

This secrecy wrongly places commercial interests above public safety.

NOAA’s misguided approach became clear this week, thanks to The Washington Post’s reporting on its Freedom of Information Act request to NOAA about why the agency is endangering families planning for deadly hurricanes. In response, NOAA released the terms of the agreement with the vendor, RenaissanceRe Risk Sciences, which specifies that forecasts using its prediction analysis are “trade secrets and confidential information” that must be withheld from the public until 2025.

It’s hard to imagine that, with all the bargaining leverage the federal government holds, it could not have negotiated a way to release the model’s final predictions without revealing trade secrets. NOAA should publish the agreement with RenaissanceRe Risk Sciences so the public can see what information the agency bargained away, to the detriment of its safety.

The PR nightmare that RenaissanceRe Risk Sciences is likely (hopefully) enduring following the Post's reporting is a perfect opportunity for agency lawyers to right this wrong and renegotiate so that people don't die in hurricanes in the name of corporate secrecy.

Exemption 4, Supreme Court worsen the problem

The contract’s dangerous language mirrors FOIA’s Exemption 4, which allows agencies to withhold trade secrets and confidential business information that have been submitted to the government. This exemption has been abused to hide information on the Supplemental Nutrition Assistance Program (more commonly known as food stamps), federal contractor diversity data, and privately run federal prisons.

The Supreme Court made matters worse by further expanding the interpretation of “confidential business information” in a controversial 2019 ruling. Justice Department guidance now gives federal agencies permission to call almost anything they receive from private industry confidential, as long as the government does not explicitly say it will publish the information when it receives it.

Placing business interests over public disclosure cannot be the precedent for public-private industry partnerships, and certainly not for projects that have the ability to save lives. It also goes against the United States’ commitment to open data and making taxpayer-funded research available to the public.

Withholding information on hurricanes also makes the work of other federal agencies, like the Federal Emergency Management Agency, more difficult. If people are not given the most accurate information to escape a natural disaster, it increases the likelihood they will need to rely on FEMA assistance to replace what they could not evacuate.

Going forward, it should not preemptively agree to withhold vital information from the public. NOAA should immediately reverse course and make its best hurricane predictions available, citing the clear and immediate harm members of the public will face if they do not have access to the data.

Hurricane Helene slammed Valdosta, Georgia, this morning. But NOAA hasn’t released the most accurate forecasting predictions for the storm. It keeps these and other models secret on spurious grounds of “confidential business information.”

As Hurricane Helene batters the Southeast, leaving at least six dead and millions without power, it leaves no doubt we are in the middle of an especially dangerous hurricane season. So why won’t the government’s weather forecaster release its most accurate predictions?

The National Oceanic and Atmospheric Administration says it can't disclose potentially lifesaving data because of stipulations in a 2020 agreement it signed with a private vendor, whose proprietary prediction analysis technique is incorporated into the NOAA-developed forecast model.

This secrecy wrongly places commercial interests above public safety.

NOAA’s misguided approach became clear this week, thanks to The Washington Post’s reporting on its Freedom of Information Act request to NOAA about why the agency is endangering families planning for deadly hurricanes. In response, NOAA released the terms of the agreement with the vendor, RenaissanceRe Risk Sciences, which specifies that forecasts using its prediction analysis are “trade secrets and confidential information” that must be withheld from the public until 2025.

It’s hard to imagine that, with all the bargaining leverage the federal government holds, it could not have negotiated a way to release the model’s final predictions without revealing trade secrets. NOAA should publish the agreement with RenaissanceRe Risk Sciences so the public can see what information the agency bargained away, to the detriment of its safety.

The PR nightmare that RenaissanceRe Risk Sciences is likely (hopefully) enduring following the Post's reporting is a perfect opportunity for agency lawyers to right this wrong and renegotiate so that people don't die in hurricanes in the name of corporate secrecy.

Exemption 4, Supreme Court worsen the problem

The contract’s dangerous language mirrors FOIA’s Exemption 4, which allows agencies to withhold trade secrets and confidential business information that have been submitted to the government. This exemption has been abused to hide information on the Supplemental Nutrition Assistance Program (more commonly known as food stamps), federal contractor diversity data, and privately run federal prisons.

The Supreme Court made matters worse by further expanding the interpretation of “confidential business information” in a controversial 2019 ruling. Justice Department guidance now gives federal agencies permission to call almost anything they receive from private industry confidential, as long as the government does not explicitly say it will publish the information when it receives it.

Placing business interests over public disclosure cannot be the precedent for public-private industry partnerships, and certainly not for projects that have the ability to save lives. It also goes against the United States’ commitment to open data and making taxpayer-funded research available to the public.

Withholding information on hurricanes also makes the work of other federal agencies, like the Federal Emergency Management Agency, more difficult. If people are not given the most accurate information to escape a natural disaster, it increases the likelihood they will need to rely on FEMA assistance to replace what they could not evacuate.

Going forward, it should not preemptively agree to withhold vital information from the public. NOAA should immediately reverse course and make its best hurricane predictions available, citing the clear and immediate harm members of the public will face if they do not have access to the data.

Israeli troops raid Al Jazeera's bureau in the West Bank on September 25, 2024.

We’ve said before that Israel’s assaults on Al Jazeera provide a real-time illustration of the dangers of the U.S.'s TikTok ban legislation and the power it gifts the government to muzzle its critics by invoking vague security threats.

Now Israel has escalated its efforts to silence Al Jazeera, raiding its newsroom in the West Bank and ordering it closed for 45 days. At the same time, the U.S. has expanded its targeting of foreign-owned platforms beyond TikTok, taking aim at Russian state media outlet RT with investigations and sanctions.

TikTok is not the same as RT — the latter is a state-owned media outlet that broadcasts Russian propaganda every day, while the former is a privately owned social media platform that China might or might not use to propagandize Americans.

But all three of these crackdowns — on TikTok, Al Jazeera, and RT — share two things in common. One, their proponents justify censorship by citing national security concerns stemming from the platforms’ alleged collaboration with adversaries, whether China, Hamas, or the Kremlin. Two, they cite no specifics, apparently hoping people will take for granted that their governments are cracking down on dissent with their interests in mind.

Israel sets a low bar

Any credibility Israel had when it comes to Al Jazeera (and it had very little) has unraveled since it first banned the network in May.

Its raid on The Associated Press the following month, based on the AP having sold pictures to Al Jazeera (as well as to thousands of other clients), clearly had nothing to do with Hamas or any other supposed national security concerns unique to Al Jazeera.

And any excuse for Israel’s latest raid on Al Jazeera’s Ramallah office was undermined when soldiers tore down the newsroom’s images of perhaps its best-known reporter, Shireen Abu Akleh. She’s the Al Jazeera journalist Israel previously apologized for killing in 2022 (although it still denies targeting her, despite investigations suggesting otherwise).

And it’s not as if Israel has limited its attacks on the press to Qatari-funded outlets like Al Jazeera. Its communications minister even tried sanctioning Israel’s own oldest newspaper, Haaretz, for criticizing the same war that Israelis themselves now protest en masse.

U.S. intentions in doubt

The U.S. has not raised any serious concerns about its close ally’s actions with respect to Al Jazeera (or any of its other press freedom violations, for that matter, from killing journalists to excluding them from the Gaza Strip). In fact, U.S. officials have themselves reportedly pressured Al Jazeera to soften its coverage of Israel.

So why should Americans believe that their government’s plans to ban TikTok, or, for that matter, to sanction RT, are any better intentioned or better supported by the facts?

On paper, the legislation authorizing the TikTok ban is, in many ways, worse than the Israeli law authorizing the Al Jazeera ban — at least Israel’s law requires the prime minister to obtain approval from the security cabinet or the government before any specific outlet is banned.

And our government has hardly articulated any stronger justification for banning TikTok than Israel has for banning Al Jazeera. The focus has been on things TikTok hypothetically could do — spy on or propagandize Americans — rather than anything it actually does.

But censorship in the name of national security, if it’s ever permitted at all, requires a concrete, imminent and severe threat — not the mere prospect of one. The government has not alleged — let alone proven — a threat from TikTok anywhere near as serious as the parade of horribles it claimed would unfold if the Pentagon Papers were released. Of course, the Supreme Court rejected those claims, the papers were published, and the sky didn’t fall.

The right to consume propaganda

The same goes for RT. We’re certainly not here to defend RT’s journalistic integrity (or lack thereof). But the First Amendment protects Americans’ right to consume foreign propaganda if they so choose. And that right is not dependent on whether the propaganda comes from an adversary or an ally.

As the Supreme Court said in 1945 — not a time when our government was unconcerned about foreign propaganda — the First Amendment “rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.”

Lauren Harper, our Daniel Ellsberg chair on government secrecy, wrote last week that the government has selectively declassified its conclusions about the threats posed by RT but not the underlying documents that might (or might not) substantiate them, and might (or might not) mitigate First Amendment concerns about sanctioning a news outlet for its content.

Why should Americans take officials at their word that the investigation is about anything more sinister than the network’s spreading of Kremlin propaganda?

They shouldn’t, especially when the same government asking for their trust says nothing as its ally abuses similar authority in plain sight to retaliate against journalists who criticize it.

A new decision by a federal court of appeals on Section 230 isn’t just nonsense; it could seriously undermine free speech online, including by journalists.

If it sounds backward to use the First Amendment to undermine a law meant to protect free speech, that’s because it is.

Yet that’s just what’s been done in a recent decision on Section 230 of the Communications Decency Act — the federal law that shields online services from legal liability for posts made by their users. A federal court of appeals used the First Amendment itself to sweep away many of the law’s protections for online content, including posts by journalists.

In late August, the court held that Section 230 doesn’t apply to claims based on platforms’ recommendation algorithms. Its decision allowed a case against TikTok to go forward, based on its algorithm recommending a “blackout challenge” video to a child who later died attempting it.

Distorting the First Amendment

The court of appeals claimed it was being guided by the Supreme Court, despite the fact that the justices have never weighed in on Section 230’s applicability to recommendation algorithms and even went so far as to sidestep the question last year.

Nevertheless, the appeals court said that a different Supreme Court decision holding that the First Amendment protects platforms’ choices about whether and how to display online content means Section 230 doesn’t protect them from being sued for those very choices.

Many have pointed out how nonsensical the court’s reasoning is, especially because Congress passed Section 230 to ensure First Amendment rights were protected online.

It’s possible the decision will be reversed, but if not, its practical effects could have dire consequences for journalists and everyone else who uses the internet.

To appreciate why, you need to understand two things: First, how much online speech the court of appeals’ decision applies to, and second, how platforms will likely respond to the court’s ruling.

Inevitable censorship of news

On the first point, the court of appeals’ decision seems to apply to everything posted on social media, because it’s all been sorted by some kind of algorithm. Platforms have to make choices about what content to display and how to display it, and they use algorithms to do it. If Section 230 doesn’t apply to content that platforms recommend, it’s hard to see what content it applies to at all.

Platforms can’t avoid this result by shutting off what most people think of when they hear about recommendation algorithms: those annoying systems that push content that users never asked to see. Even simple algorithms — like ones that show you only content posted by the people you follow or display content in reverse-chronological order — are still types of recommendation algorithms.

On the second point, how are platforms likely to respond to this decision? Because it means that platforms can’t rely on Section 230 for any user-generated content they recommend (which, again, is all content), they’ll be much more likely to aggressively remove content they believe could get them sued. But they’re not going to have a legal team parse every single post for liability risk — that would be prohibitively expensive. They’ll use flawed technological tools to detect risk and will err on the side of takedowns.

That, in turn, will lead to the overremoval of news from social media, especially news that’s critical of wealthy or powerful people or corporations who may sue. Imperfections in content moderation will also mean that platforms will overremove news stories about controversial or illegal matters even more than they already do.

It’s not just news on social media that will be impacted. Other online services, like search engines, also rely on Section 230 and also use recommendation algorithms. If Google or DuckDuckGo know they can be sued for “recommending” a news report that is potentially defamatory by ranking it highly in a user’s search results, they may delist it, making it much harder for users to find.

Without Section 230’s protections for content they algorithmically recommend, platforms will also remove content posted by regular internet users for fear of potential liability, meaning that everyday people will be less able to make their voices heard online. It will also mean that journalists may have a harder time finding information and sources about controversial topics online because it’s been removed.

The right way to respond to algorithmic abuses

While the court of appeals’ decision will be disastrous for online free speech if allowed to stand, that doesn’t mean that anger and concern over how platforms moderate content or use recommendation algorithms are unjustified. The toxic content allowed and recommended by platforms is horrifying, as journalists and researchers have repeatedly exposed.

The press must continue to investigate recommendation algorithms to uncover these problems. The public must pressure platforms to improve. Congress needs to pass comprehensive privacy legislation that prevents platforms from hoovering up the private information that powers some of the most noxious recommendation algorithms.

But excluding algorithmically sorted content from Section 230 won’t end recommendation algorithms, which are baked into how platforms sort and display content online. Instead, it creates a strong incentive for powerful platforms to silence journalism and the voices of individual users.

The court of appeals’ decision isn’t the end of online algorithms. But it may be the beginning of the end of online free speech.

RT’s office in Moscow. The Biden administration recently declassified intelligence findings to support new sanctions against RT, but did not declassify the documents themselves.

The Biden administration last week declassified information alleging that Russian state media outlet RT has, in the words of Secretary of State Antony Blinken, “engaged in covert information and influence operations and military procurement” on behalf of the Kremlin. The newly public information, released to bolster new sanctions against the news organization, did not include declassification of the underlying documents — only their findings.

This is the latest example of the Biden administration strategically declassifying U.S. secrets. It is a good initiative — and one that would be strengthened by declassifying the records themselves.

Failing to do so is a missed opportunity in the RT case for two reasons.

The first is that declassifying the records could help shore up support for a move that raises serious First Amendment concerns or questions of cherry-picked evidence. Releasing the underlying documents could also empower press advocates and other potential skeptics to mount an informed opposition to the administration’s efforts. That might not further the administration’s strategic goals but it is (or it should be) the American way.

Charges of military procurement and “information and influence operations” sound bad, but such allegations — and the documents they are based on — must be analyzed and challenged. Press freedom advocates have often been worried about these types of cases because it puts state-funded journalists in countries like Russia at risk of serious retaliation. Vetting the evidence is important for this reason, as is remembering that the documents in and of themselves should not be taken as the unbiased truth. They are pieces of evidence recording oftentimes subjective interpretations of events.

Americans should know exactly what kind of “information and influence” operations by state-sponsored media the government deems worthy of punishment. All state media outlets, including our own, seek to advance the interests of the government in some way, and Americans are constitutionally entitled to consume foreign propaganda if they so choose. If RT's alleged conduct is not starkly different from what other government media outlets do, then the investigation puts outlets worldwide at risk of retaliation.

Cherry picking evidence is also not an abstract concern. In 2003, for example, the Bush administration used bad intelligence from a debunked informant, codenamed Curveball, to justify its long-standing plan to invade Iraq. And the Biden administration has previously shown willingness to overlook free speech concerns when it contends that national security is imperiled without sharing any underlying evidence, including by supporting banning TikTok and prosecuting WikiLeaks founder Julian Assange.

The second reason is that declassifying documentary evidence is important during a presidential election season where one candidate has repeatedly made baseless and threatening claims about the press. Showing the public the details of Russian state media’s abuses — assuming the documents do so — would undercut politicians’ false equivalencies to conduct by American news outlets they don’t like.

The Biden administration’s secret-sharing program

The RT declassification is not the first time the administration has selectively downgraded classified information.

The Biden administration has repeatedly declassified intelligence on Russian activities in Ukraine. The effort was deemed so successful at countering Russian disinformation that it prompted the White House to build a “broad program to share secrets when it serves strategic goals,” according to a deep dive by Time magazine into the program. And while this approach to declassification is not new, the Biden administration’s method is unique both because it is a formal process that is centralized in the White House (as opposed to the intelligence community), and is used regularly, sometimes multiple times a day.

This effort has released information that helped de-escalate Serbian military buildup along the Kosovo border; undercut Chinese attempts to retaliate against the U.S. for then-House Speaker Nancy Pelosi’s visit to Taiwan; and persuaded Iran to stop supporting Houthi attacks on merchant ships in the Red Sea.

The National Security Council leads the program, but individual agencies like the CIA make the ultimate decision about whether information is declassified. This presents a challenge because “Intelligence officers who had classified secrets to begin with were loath to declassify them,” the Time report found. To address agency concerns, the Biden administration does not ask for full or finished reports, opting instead to ask for individual facts or data points. It then usually combines the declassified intelligence with open-source information for release to the press.

Show your work

White House-led declassification efforts should continue, but the administration itself has concluded that the program will only succeed if it has “enough credibility to overcome the U.S. history of bad intelligence and propaganda abuse.”

The solution is straightforward. Declassify the documents themselves. This would rebuff arguments that the intelligence being presented is cherry picked or weak.

The next time — and I do hope there is a next time — the administration strategically declassifies information, it should show its work and let the public see the documents. This won’t solve the crisis of overclassification, and declassifying strategically important documents should not take precedence over releasing records that reveal uncomfortable or politically inconvenient truths, but it is a step in the right direction.

Official Seal of the Muscogee (Creek) Nation, by Muscogee Red - Own work, is licensed under CC BY-SA 4.0.

The award-winning documentary “Bad Press” told the story of journalist Angel Ellis and her colleagues' fight to protect press freedom in the Muscogee (Creek) Nation, a Native American tribe based in Oklahoma.

It was one of a handful of tribes to codify protection for press freedom. And Mvskoke Media, the outlet Ellis works for, took full advantage of its rights, publishing the kind of critical reporting on tribal government that is sorely needed elsewhere in Indian Country.

But then the tribe’s lawmakers decided to repeal the Free Press Act, a move that allowed the tribal government to oversee and interfere in Mvskoke Media’s editorial decision-making, and withhold funding if it didn’t like the outlet’s content.

You can (and should) watch the film on The Criterion Channel for the rest of the story (use the code BadPress24 for a 20% discount). But the struggle for a free press on tribal land is by no means limited to one tribe or one outlet.

There's just no clear cut path to go into any of our tribal communities and accurately report on issues that could really raise the quality of life for our people.

We hosted an X Space conversation last week with Ellis, as well as Becca Landsberry-Baker, executive director of the Indigenous Journalists Association and Muscogee (Creek) Nation citizen, and Jodi Rave Spotted Bear, executive director of the Indigenous Media Freedom Alliance and citizen of the Mandan, Hidatsa and Arikara Nation.

Ellis explained that the development of press freedom protections on tribal land are, to an extent, in its infancy. “Reporting on indigenous issues is not emerging, but protecting it by policy is,” she said. “The most significant challenge for indigenous press freedom right now … is really access to information and having the safe space to advocate for good press freedom policy.”

Spotted Bear agreed, noting the absence of laws to ensure government records and meetings are open to the public. “There's just no clear cut path to go into any of our tribal communities and accurately report on issues that could really raise the quality of life for our people.”

That tribal citizens are also U.S. citizens protected by the First Amendment does not resolve the need for protections at the tribal level. First of all, tribal media outlets are usually dependent on tribal government for funding. “It's very hard to compete with the established news ecosystem for independent money. It's very hard to get,” Ellis explained.

She added, “I could go out and I could try to sell advertising to businesses, but they look at me and they say, hey, I'm trying to sell Ford pickups here. Why would I put an ad in your paper when I don't think the people who read your newspaper have enough money to buy my pickup?”

Seeking traditional legal remedies also poses challenges. “Can I appeal to the federal government as an American citizen, say that this tribe has violated my rights? Yes, it can be done, but you will be a pariah in your own community. Culturally speaking, you're going to be the person who has brought a federal suit against your family, basically,” Ellis said.

Further complicating things, Spotted Bear noted that each tribe is different. In her tribe, it’s more common to appeal to outside courts due to the lack of an independent tribal judiciary. But people attempting to do so are frustrated by seemingly never-ending inquiry about whether they’ve sufficiently exhausted their remedies at the tribal level first.

There are cultural issues in addition to legal ones, especially when it comes to contemporary notions of objectivity in journalism. Ellis used the example of a meeting followed by a meal: a mainstream journalist might skip the meal to retain their neutrality, but it’s “really rude not to [eat] in our community – if you’re coming to the meeting and there’s food, you’d better sit and eat, or else you’re pretty snobby.”

Every time an elected official of our tribe came to a community meeting to campaign, they were asked about press freedom, and they couldn't ignore it.

In Ellis’ view, connecting with communities she covers “enforce[s] that relationship of, hey, I'm a journalist, and I work for you to tell your story.” It’s a contrast from mainstream journalists who sometimes “come into a community, take some notes, take some names, and bounce the fuck out.”

While hesitating to disparage her colleagues, she noted that “the big consensus out there … as [to] what stories get precedence, and what stories get told is the only time mainstream cares about the reservation is when there's a big, sexy, scandalous story. Is the chief in handcuffs? They will show up then.”

Landsberry-Baker also highlighted the difference between tribal journalists who are accountable to their fellow citizens and outside journalists who are accountable to their news outlet. “You're able to do more nuanced coverage if you're a part of that community, because you know the tribal citizens, you know what your work is impacting. You know the stories, you know the history, you know the culture,” she said.

But tribal journalists need to balance that with the reality that many in the journalistic establishment – as well as law enforcement officers tasked with distinguishing journalists from activists – might not see it that way.

Bad Press was intended to show other tribal journalists a path toward overcoming the obstacles they face without relying on either U.S. courts or mainstream journalists. “We appealed to the community …Every time an elected official of our tribe came to a community meeting to campaign, they were asked about press freedom, and they couldn't ignore it. And so I think that when you talk about really advocating for good policy in Indian Country, it kind of starts and stays in the tribe,” Ellis explained.

But the film is relevant to all journalists and others who value press freedom, native or not. Landsberry-Baker called it a “beautiful tribute to the boots on the ground journalists.”

Ellis hopes the film will inspire all journalists to advocate for their own rights. Journalists “cannot be complicit in our own demise,” she said. “You can’t be a journalist without advocating for [press freedom], because that’s the world we live in.”

You can listen to the whole conversation here, or read an (imperfect AI-generated) transcript here, even if you don’t use X.

Director of National Intelligence Avril Haines before the Senate Armed Services Committee’s worldwide threats hearing this May. Haines has repeatedly said overclassification is a national security concern

Government secrecy functions as a control mechanism, and one that prevents the public from basic self-governance. That was the key takeaway from a 9/11 anniversary interview by Truthout with Lauren Harper, the first Daniel Ellsberg chair on government secrecy at Freedom of the Press Foundation (FPF).

On whistleblowers, Harper noted their fundamental importance but stressed that their protections “are not as robust as they should be, and these individuals should not face — or be expected to carry — the burden of fixing a system-wide crisis.”

She also highlighted the need for ongoing reporting on entrenched government secrecy. “People in the intelligence community and elsewhere work tirelessly their entire careers to keep information secret,” Harper explained. “Occasional reporting on specific examples of excessive secrecy is not enough to challenge that systemic tide.”

You can read the full interview here.

Los Angeles police and county workers remove a homeless encampment at a California state beach in August.

In recent weeks, police across California have threatened journalists with arrests for covering evictions of homeless encampments. It’s unclear why — the journalists aren’t interfering with the evictions. But they are documenting them, and clearly officers don’t want that.

We joined a coalition of over 20 press freedom and transparency organizations to warn authorities from Los Angeles to Sacramento that their own state law supplements constitutional protection of journalists’ right to access restricted areas where newsworthy events occur.

This is not a new problem. Police also violated the same law “left and right” earlier this year to arrest journalists covering protests against the Israel-Gaza war on college campuses and elsewhere. Check out our May interview with Susan Seager, an adjunct professor of law at University of California, Irvine School of Law, for more on that.

But it’s not just one law that police are violating. As the coalition explained, federal appellate courts nationwide have also protected the First Amendment right to record police.

The 9th U.S. Circuit Court of Appeals — the one with jurisdiction over California – has specifically ruled that even if police are entitled to disperse an unpermitted protest, encampment, or other allegedly unlawful assembly, they can’t disperse law-abiding journalists. Even the Department of Justice agrees.

Police in California have struggled repeatedly to cite any legal basis for their actions, because there is none. They’ve accused journalists of unlawfully intruding on their “work zones” — whatever that means. And they’ve claimed large areas are “crime scenes,” presumably because an allegedly unlawful encampment was set up there. That’s a tactic we also saw in Atlanta last year, when police illegally dispersed journalists covering protests against the police training facility commonly referred to as “Cop City.”

Sure, police may close off limited spaces in order to preserve evidence, but there’s no precedent for declaring large areas where low-level nonviolent offenses occurred to be “crime scenes” in order to arbitrarily banish the media for no legitimate law enforcement purpose.

Officers test these spurious legal theories at their own risk. Freelance photojournalist Jeremy Portje sued the City of Sausalito, California, as well as numerous police officials over a 2021 arrest while reporting from an encampment. Court records show the case recently settled, although the details haven't been made public.

April Ehrlich, another journalist arrested while covering an encampment sweep in 2020, also sued after the bogus charges against her were dropped. She was arrested in Oregon, not California, but Oregon also answers to the 9th Circuit.

Public radio reporter Josie Huang reached a $700,000 settlement agreement with Los Angeles County and the Los Angeles County Sheriff’s Department over her 2020 arrest. She was covering a protest, not an encampment sweep, but the same principles apply — police conduct, whether evicting people without homes or dispersing protesters, is newsworthy, and the First Amendment demands that journalists be able to cover it.

Last year, Stephanie Sugars of the U.S. Press Freedom Tracker, a project of Freedom of the Press Foundation (FPF), called the Los Angeles Police Department among the most “atrocious” of press freedom violators nationwide. They’ve lived up to that billing in the last year, including with the ridiculous failed lawsuits against journalist Ben Camacho for publishing pictures the police department gave him, which ended in another $300,000 settlement bill for taxpayers.

But that may have underestimated other law enforcement agencies in the state, from the San Francisco Police Department’s unlawful warrant to search an independent newsroom’s files to the revelation that the Los Angeles County Sheriff’s Department secretly investigated reporter Maya Lau on the plainly unconstitutional theory that her source materials constitute stolen goods. And now Sacramento is getting in on the action, intimidating reporters for covering news.

Let’s hope the coalition statement gets through to the offending agencies, even though the courts and legislature have not. Otherwise, Californians will not only miss out on important news, they’ll have to continue spending their money to pay for settlements.

Senate Select Committee on Intelligence’s Report of the Central Intelligence Agency’s Detention and Interrogation Program

The U.S. keeps too many secrets about its actions in the aftermath of 9/11. There’s no better example of this than the CIA’s torture program, which can trace its beginnings to a still-classified September 2001 memorandum of notification signed by President George W. Bush. This memo granted the agency “unprecedented authorities” to capture and detain suspected terrorists.

The outgoing Biden administration should commemorate the 23rd anniversary of the terrorist attacks by ordering the declassification of the Senate’s report on the CIA’s torture program. A fitting date for the declassification to be completed is Sept. 11, 2026 — the 25th anniversary of the attacks. This would not only help the public hold the government accountable for abhorrent human rights violations but would counter overwhelming evidence that the CIA has become too powerful for oversight.

The CIA knowingly destroys torture evidence

The late Sen. Dianne Feinstein, D-Calif., initiated what would become the Senate Select Committee on Intelligence’s Torture Report — arguably the most consequential congressional report ever compiled — after word emerged that the CIA had destroyed key evidence of its torture program.

The initial Senate investigation began in 2007, after Feinstein and her committee received a briefing from then-CIA Director Michael Hayden. The briefing concerned a 2005 order by CIA official Jose Rodriguez, who ran the agency’s torture program, to destroy 92 videos of agency officials waterboarding Abu Zubaydah. Rodriguez ordered the destruction of the evidence even after he and his then-chief of staff “repeatedly sought permission to have the tapes destroyed but were denied.” (His chief of staff at the time was Gina Haspel, who went on to run the agency despite her own concerning record on torture.)

Rodriguez later justified his behavior, saying that “the heat (from destroying the videos) is nothing compared to what it would be if the tapes ever got into the public domain.”

The Department of Justice investigated the destruction of the videotapes at least twice, but no charges were ever brought.

Congress tries to document abuse

The Senate Intelligence Committee voted to broaden its investigation beyond the videotape destruction in 2009, with Senate staff ultimately reviewing over 6 million pages of records across five years and producing the 6,700-page report.

This mammoth achievement was accomplished in spite of the CIA 1) misleading Congress and the White House about the program, 2) pushing misleading narratives about the torture program to the media, and 3) spying on Senate staff who were attempting to conduct oversight of the program. (After first denying it even happened, former CIA director John Brennan eventually apologized for the spying, but the agency and responsible officials faced no meaningful disciplinary measures).

The Senate Intelligence Committee shared the report with several federal agencies and the Obama White House with the eventual hope that it would be public. But a byzantine — and ultimately ineffective — effort to have the report declared a federal record subject to the Freedom of Information Act and eventually disclosed to the public failed under President Obama’s watch.

Litigation brought by members of the public has also proved unsuccessful. As recently as this summer, the U.S. Court of Appeals for the District of Columbia upheld the classification of the full report as a legislative branch record exempt from disclosure by the Constitution’s speech or debate clause.

The final report is still secret, but the conclusions from the 500-page, highly redacted executive summary are so damning they demand further disclosure. The findings include:

• The CIA’s own officers found torture to be ineffective and the agency failed to adequately evaluate its techniques.
• The CIA lied to lawmakers about the brutality of its program and the conditions of detainees’ confinement.
• The Department of Justice’s Office of Legal Counsel did not independently verify or conduct independent analysis of the CIA’s claims.
• The CIA’s management of the torture program hindered other national security missions.
• The CIA’s torture program damaged the United States’ global standing.

Is the CIA too powerful for oversight?

Additional bits of information about the torture program have come to light through Freedom of Information Act lawsuits. These revelations include:

• Photos of torture and abuse at Abu Ghraib prison.
• Detainee transcripts of torture.
• Information on conditions that led to the death of detainee Gul Rahman at a CIA black-site prison in 2002.
• Torture cables that were either authored or authorized by Haspel.

These piecemeal disclosures are not enough.

For the public to effectively self-govern, it must be able to engage in meaningful public debate about U.S. actions. It cannot do so if agencies like the CIA are allowed to flout congressional oversight and willfully destroy important documentary evidence with no meaningful consequence.

President Biden has the opportunity to make a difference. He should do what President Obama did not, and mandate the declassification of the torture report. In so doing, he could help show the CIA is not more powerful than Congress, the White House, or the best interest of the public.

***

More resources

Researchers and journalists should visit the following for reputable information on torture:

• The Rendition Project
• The National Security Archive’s Torture Archive
• The ACLU’s torture court cases website
• Carol Rosenberg’s reporting on Guantanamo Bay for both The New York Times and the Miami Herald

New York Gov. Kathy Hochul, above, ignored opposition from open-government and free speech organizations to sign an anti-transparency, anti-accountability bill into law yesterday.

New York Gov. Kathy Hochul signed into law an anti-transparency and anti-accountability bill that will compound existing problems with New York’s Freedom of Information Law, further delaying the release of important public records.

By doing so, Hochul ignored a memo of opposition from 10 open-government and free speech organizations, including Freedom of the Press Foundation (FPF).

The bill requires the government to inform employees (possibly including former employees) when their disciplinary records are requested. Don’t be fooled by the bill’s proponents – it has nothing to do with personal privacy and everything to do with government secrecy.

As Reinvent Albany – which led opposition to the bill – explained in a statement, “FOIL processes are grossly underfunded, understaffed, politicized, and overwhelmed by the volume of requests.” That means compliance with legitimate public records requests for important, newsworthy documents can take months or years.

Now, short-staffed agencies will have to track down employees’ contact information before complying with public records requests. In some cases where the requester names a specific employee, that might be relatively simple. But most requests are far broader than that.

Let’s say a reporter were to request, for example, all disciplinary records involving state police accused of mistreating journalists and protesters during Black Lives Matter protests in 2020. Who knows how many officers would need to be notified?

A similar proposal in California failed earlier this year, thanks to the work of advocates from the First Amendment Coalition and several other organizations.

While fast-tracking a bill to needlessly delay FOIL compliance, New York’s legislature ignored four bills that would have strengthened the state’s public records laws, also supported by FPF.

Among other things, these bills would have allowed requesters to quickly appeal “constructive denials” when agencies ignore their requests, increased transparency about how agencies handle requests they received, made it easier for people whose requests were baselessly denied to recover attorney’s fees, and limited businesses’ ability to shield information from disclosure that they submit to the government.

Public records laws aren’t working at either the state or federal levels. Instead of attempting to fix the problem, New York officials are inventing new ways to sabotage transparency, at a time when many media outlets can hardly afford litigation to recover public records.

Bills bolstering transparency are difficult to advance for obvious reasons — government officials have every incentive not to pass them, especially when they don’t anticipate much political cost.

We commend outlets like the Niagara Gazette, The Buffalo News, Adirondack Daily Enterprise, The Daily Gazette, and Newsday for urging lawmakers to do the right thing. We can’t help but wonder if this story would’ve ended differently had some of the state’s largest newspapers also used their news and editorial pages to stand up for transparency and accountability.

Chicago Police Superintendent Larry Snelling talks to officers after demonstrations near the Israeli Consulate during the Democratic National Convention in August.

Last week, we hosted an X Space forum for independent journalists who reported on protests outside the Democratic National Convention to discuss their experiences dealing with the Chicago police.

To sum things up, the journalists did not give the police positive reviews. That may not be surprising, but the examples they raised show problems exceeding the usual tensions between officers and reporters at protests.

Journalist Ford Fischer kicked off the discussion by noting his alarm at threats from Tom Ahern, deputy director of news affairs and communication for the Chicago Police Department, to take away press passes from journalists who didn’t obey unconstitutional orders to disperse. “In 10 years of doing this kind of work, of covering protests, I don’t think I’ve heard this specific kind of claim,” Fischer said.

I’ve never heard, ever, any police officer anywhere, anywhere, in 20-plus years threaten to revoke press credentials.

Another journalist who encountered Ahern, Tina-Desiree Berg, agreed that Ahern’s antics were unprecedented. “I’ve never heard, ever, any police officer anywhere, anywhere, in 20-plus years threaten to revoke press credentials,” she said. Berg was particularly alarmed by Ahern not only failing to exempt the press from dispersal orders but expressly directing orders at journalists. “He literally said into the bullhorn, ‘Media, you need to disperse. Now, if you don't disperse, we're going to arrest you.’ That to me, was very shocking.”

Videojournalist Sean Beckner-Carmitchel also objected to the threats to seize credentials, noting that they are “not property that belongs to the Chicago Police Department. That would actually, in my opinion, be theft.” He also called out efforts to limit the space from which he could film the protests. “My assignment was to cover the protest, and anything that makes it difficult to do so is not just a violation of First Amendment rights, but also adds to a lack of transparency within the Chicago Police Department,” he said.

Beckner-Carmitchel and others pointed to the Chicago Police Department’s role in issuing press credentials — a procedure that other cities, like New York, have reformed. “The police department is not the arbiter of the media,” he said.

Mel Buer, who reports for The Real News Network, added, “The police presence in the city was meant to overwhelm not just protesters, but also press, and the way that they did this … made it extremely difficult for us to do our jobs and for these protesters to assemble and march.”

Kevin Gosztola of The Dissenter agreed on that point: ”All of these police are there for the purposes of showing off their overwhelming force.” He acknowledged that he opted against covering a protest on the evening of Aug. 20 because he “didn’t trust the CPD not to escalate it into a riot.” Multiple journalists ended up being arrested at that protest.

Buer also called out Ahern, for both his actions and his temperament. “Out of all the people who should be calm, cool, and collected,” it should be him, Buer said. “I don’t think he did his job correctly. … I’m surprised he still has his job.” But Ahern wasn’t the only one. Buer also recalled CPD Superintendent Larry Snelling telling her “I see your press pass, but you’ve got to move,” ignoring the Department of Justice’s instructions not to disperse journalists covering protests.

We agree and have previously said Ahern’s handling of the protests – which included not only threatening journalists but reportedly ripping off at least one journalist’s press badge – should disqualify him from his role with the police department.

Photo and videojournalist Mostafa Bassim, who documented arrests of journalists during the convention, recalled similar experiences, including officers telling him he needed to leave or they’d take his press pass. “Where? There is no place to go,” he recalled responding. “I am press! I am press!”

Independent journalist Talia Jane Ben-Ora pointed to the lack of clarity from police on how journalists could do their jobs while avoiding arrest or dispersal, alleging that police acted “wildly incoherently throughout the whole week.”

I was just at the wrong place at the wrong time, and then, well, nine hours in the slammer

She also noted that, when they weren’t threatening to seize journalists’ press passes, police photographed them, leading journalists to flip their passes over so as not to be visible.

Freelance journalist Olya Fedorova, one of the journalists arrested on Aug. 20, said that having CPD credentials was “making it more difficult” to report because it placed a target on her back.

“When Tom Ahern ordered my arrest, it seemed that he was just personally frustrated by the fact that the press is present,” she said. “I was just at the wrong place at the wrong time, and then, well, nine hours in the slammer,” despite commitments from police to avoid taking journalists off the scene over minor offenses.

The U.S. Press Freedom Tracker’s Stephanie Sugars was not in Chicago for the DNC, but she spent the week monitoring press freedom violations and talking to reporters on the scene for the Tracker, a project of Freedom of the Press Foundation (FPF). She observed that “it should not have come as a surprise that there would be the number of journalists present that there was. That is something that they could have and should have easily accounted for and created a more coherent plan,” she said. She noted numerous accounts of confusing directives from officers.

“You would be directed to get on the sidewalk. Oh, no, you can't be on the sidewalk. Get in the street. Oh, not on this side of the street. Go that direction. Yes, you have to disperse as a member of the media and be outside of this kettle, or we're not going to call it a kettle, because that's illegal. But we're not going to tell you where you can actually exit.”

Some journalists also urged their colleagues to reconsider their approach to dealing with police. Brian Karem noted that having covered every convention since 1984, “I want to tell you, that what we saw was not unusual. … What I always tell journalism groups beforehand is reach out ahead of time and say, ‘Listen, I know you all are going to be worried about us there. We should be involved in that planning.’ Sometimes they'll listen to you. Sometimes they won't.”

if you had seen a cop act that way to anyone else, you would videotape it. You would interview them. You would report it. Don't take yourself out of that mix.

When dealing with police on the scene, he said journalists should “be nice, but be firm,” and must be willing to be arrested. And when police act inappropriately, report it, he said. “If it had happened to anyone else, if you had seen a cop act that way to anyone else, you would videotape it. You would interview them. You would report it. Don't take yourself out of that mix. You're also a human being that deserves to be treated with respect,” Karem said.

“But never get rude or combative with them, because that only plays against you. You've got to maintain that sense of decorum, which is really hard when they're being assholes to you,” he added.

Chicago-based journalist Raven Geary of Jinx Press raised concerns about “parachute journalism” and unnecessary agitation by out-of-town reporters. “You guys get to go home, and we still have to deal with these police,” she said.

“I think as journalists, we have a very big responsibility to the communities we cover not to raise the temperature and not to agitate, because when that police violence comes down, it's going to come down on people who have less resources than us, and are more marginalized than us, and more vulnerable than us, and these police are now amped up after everything that happened,” she said.

You can read and listen to the conversation here, even if you don’t use X. Note that the transcript is AI-generated and imperfect.

Protesters clash with police during a demonstration outside the Democratic National Convention on Aug. 22, 2024, in Chicago.

We wrote last week about the Chicago Police Department’s “abysmal failure” to respect journalists’ rights during protests outside the Democratic National Convention.

We followed that up this week with an Aug. 26 “X Space” conversation featuring Mickey Osterreicher, general counsel for the National Press Photographers Association, and Katherine Jacobsen, the Committee to Protect Journalists’ U.S. and Canada program coordinator.

Jacobsen attended the convention, while Osterreicher worked with local lawyers to free journalists arrested covering protests.

On the inside

Jacobsen noted that protests were audible from the convention hall, and commented on the “jarring contrast” between the protests outside and the “very scripted programming” inside. That may have been good news for demonstrators, who weren’t sure whether they could be heard from the highly contested protest route.

Jacobsen commented on the widely reported chaos for journalists and others attempting to get through security and into the convention hall, as well as the high cost for journalists to obtain basic workspaces and internet connectivity at the convention: “It's really unfortunate that the cost was so high because it does make it so much more difficult for local news outlets to be able to cover something that is … of national, international importance that's happening in their own community.”

Social media influencers, on the other hand, were given “great access” and “nicer facilities” while journalists were “packed into the press section like sardines most nights,” said Jacobsen.

Asked if the convention gave any indication of whether the Harris campaign would make itself more accessible to the media going forward, Jacobsen said it was difficult to tell. But she pushed back against false contrasts between Harris and her opponent, Donald Trump, when it comes to interactions with the press.

“Access doesn't necessarily equate to quality discussion,” she said. “What kind of interactions does the media get from Trump? And are those constructive for furthering political discourse?” she asked. “Should there be more access from the Democrats? Absolutely, going forward. I hope we see that. But are all the criticisms of saying, you know, that Trump has granted so much more access than the Democrats have? Well, sure. But to what end?”

In the streets

Osterreicher said he, along with the Reporters Committee for Freedom of the Press, had trained Chicago police on press freedom at protests prior to past major events. They also trained Milwaukee police prior to this year’s Republican National Convention.

But this time, Chicago officials said they’d conducted their own First Amendment training and did not need any outside help. Turns out they did — they repeatedly dispersed law-abiding journalists along with protesters, depriving them of the ability to cover police conduct. “As we've seen through a number of previous court cases over the years, especially during the Black Lives Matter protests, … the courts ruled that journalists are not participants” in unlawful assemblies and therefore not subject to dispersal, Osterreicher explained.

Tom Ahern, the Chicago Police Department’s deputy director of news affairs and communications, repeatedly threatened to confiscate press passes from journalists who didn’t abide by his unconstitutional dispersal orders, and in at least one instance reportedly ripped a press pass away from a journalist.

In addition to those dispersed, the U.S. Press Freedom Tracker, a project of Freedom of the Press Foundation (FPF), has reported the arrests of three journalists, and is researching more potential cases. Osterreicher said police had committed to avoid detaining journalists and instead issue citations so the journalists could get back to doing their job. They didn’t honor that commitment.

By arresting them and keeping them detained for hours, he said, police imposed a “constructive prior restraint, because these journalists have been taking pictures … and because they were in custody, they couldn't get those pictures out to their news outlets.”

Jacobsen agreed, citing “the newsgathering that was lost by having reporters … removed from the scene.” As a result, she said, “We don't have documentation of what happened from certain hours,” particularly when police dispersed protesters.

Police often argue that, especially these days when anyone with a phone can report news, it’s impossible to distinguish between journalists and protesters. Adding to that, some journalists intentionally try to blend in to avoid making themselves targets. Osterreicher said, in the absence of bright-line tests, officers should assume someone acting like a journalist is one.

“Just as our criminal justice system works as we would rather let 99 guilty people go free than convict one innocent person, assume that they're journalists and let them do their jobs” he added.

Even if you don't use X, you can listen to the full conversation, and read an (AI generated and imperfect) transcript, here.

A World War I-era document containing a secret ink recipe that the federal government deemed worthy of classification for nearly 100 years.

The government has too many secrets, and most of them shouldn’t be secrets in the first place.

How much information is overclassified? Our best guesses range from 75% to 90%. If the conservative estimate that the classification system costs $18 billion a year is taken at face value, this means the government could be overcharging taxpayers nearly $16 billion annually to hide information that doesn’t need protection (like the sex of the dog that participated in the raid to kill ISIS leader Abu Bakr al-Baghdadi, which U.S. Special Operations Command deemed classified national security information).

It also means the government is overclassifying information whose release would be in the public interest (like the photos the U.S. Marines took in the aftermath of killing 24 unarmed people in 2005 in Haditha, Iraq).

A new bipartisan bill from the Senate Committee on Homeland Security and Government Affairs attempts to fix this. Introduced by Chairman Gary Peters, D-Mich., and John Cornyn, R-Texas, the Classification Reform for Transparency Act of 2024 has a lot to like — but it falls short in a crucial way: There is currently no way to tell if the bill would actually reduce the number of unnecessary secrets, because we don’t know how many there are in the first place.

The good news

The classification bill would, among other things:

• Establish an interagency task force that would clearly define the terms used to designate classification categories. This is important because most classification decisions are subjective, relying on vague interpretations of “damage to national security” to bolster their claims. Tighter and more precise definitions of the terms used to justify secrecy decisions should result in fewer secrets.
• Create consequences for federal employees who willfully classify information that should not be classified, as well as cash incentives for people who file good-faith classification challenges. This should help address the current culture of risk avoidance, which has created a situation where there are no carrots to promote good classification challenges, and few meaningful sticks to avoid overclassifying.
• Call for explicit funding for classification and declassification programs. This is a big step in the right direction because the government currently has no reliable figures for what the classification system truly costs. The bill would address that problem by requiring agencies to assess and report on estimated expenditures for classification programs, and calling for at least 10% of these totals to be dedicated to declassification efforts.

The not-so-good news

The intent of the bill is to reduce the number of secrets the government generates. Unfortunately, we don’t actually know how many documents are classified across the government, and there are no reporting requirements in the bill that would allow us to see if the government was hiding more or less information from one year to the next. This undercuts the bill’s intentions.

Take, for example, the bill’s tasking of the interagency task force mentioned above to create a plan to phase out the “confidential” classification category, which is the lowest of the three classification categories, below “secret” and “top secret.”

The hope is that by removing the confidential category, fewer things would be classified. It is possible, however, that if the confidential level were phased out, some agencies would simply classify more information at the higher secret level, rather than classifying less information to begin with. To make sure this doesn’t happen, we would need to know how many records are currently classified, and at what level they are classified.

This is where we run into trouble.

How to fix it

The Information Security Oversight Office, which oversees government-wide compliance with the security classification program, used to report on the number of classification decisions made across the government every year. In fiscal year 2017, the last year the data is available, it reported 58,501 original classification decisions made across the government (1,398 top secret, 48,056 secret, and 9,047 confidential). In addition, 49 million derivative classification decisions were made (9,615,440 top secret, 36,115,33 secret, and 3,710,737 confidential).

Original classification decisions are those made by a designated agency official who is responsible for deciding if something should be classified and at what level, and derivative decisions are made by agency employees who paraphrase, restate, or otherwise repurpose that information.

Unfortunately, ISOO has not reported on the number of government-wide classification decisions — by classification level or otherwise — in over five years. This is ostensibly because the data it received from agencies on the number of classification decisions they were making was so poor, and so inconsistent from one agency to the next, that ISOO found reporting these figures to be unreliable.

Put more simply: The government doesn’t know how many secrets it has, and there is currently no quantifiable way to tell if eliminating a classification category — or enacting any of the bill’s other components — would reduce the number of secrets agencies generate.

Sen. Peters’ news release for his bill acknowledges this information gap, suggesting 50 million new classified records are created every year, but this projection is likely based on historical trends that do not adequately account for the explosion of electronic records, and the impact this has on the number of derivative classification decisions in particular.

Congress should work with officials at ISOO as part of this legislative effort to understand why agencies don’t — or can’t — accurately and consistently track the number of classification decisions they make, and chart a path forward that ensures that agencies can successfully do so.

Without this practical metric to measure against, we would be hard-pressed to assess the impact of the necessary and well-intended legislation.

Democratic presidential nominee Vice President Kamala Harris talks to the media in Michigan on Aug. 8, 2024.

Plenty has been said about Vice President Kamala Harris’ media availability, or lack thereof, during her presidential campaign so far. She hasn’t given interviews yet and hasn’t answered questions from the press nearly as often as past candidates for the nation’s highest office.

The criticism continued at the Democratic National Convention, where some observed that organizers seemed to be pricing out journalists, prioritizing social media influencers over reporters, and otherwise treating the press as an unwelcome nuisance.

We agree that anyone auditioning to be the world’s most powerful person should demonstrate to the public that they can handle tough questions. But here’s the thing: Harris is far from the first internet-era politician to avoid journalists.

Politicians aren’t concerned with political fallout from shutting out reporters. They instead believe that new ways to communicate mean they no longer need journalists to reach the electorate.

Political campaigns don’t make these kinds of decisions with press freedom principles in mind — they’re only concerned with winning. Until they think avoiding journalists will harm them politically, they’re not going to change course.

Harris’ approach shows that politicians currently aren’t concerned with political fallout from shutting out reporters. They instead believe that new ways to communicate mean they no longer need journalists to reach the electorate. Many decide that the hit they’ll take for avoiding the press is a small price to pay to deliver their message in ways they can better control.

Journalists need to change that equation by loudly calling out all politicians who attempt to duck scrutiny — not just presidential candidates. It seems to be working, to some extent, with Harris. She has committed to begin sitting for interviews. It can also work at the local level.

Governors, local officials stonewall press

I joined the Poynter Institute for a symposium in Miami in 2023 focusing on the growing trend of public officials “bypassing independent reporting.”

At the time, the presidential candidate refusing to play ball with the media was Florida Gov. Ron DeSantis. Florida journalists described how he’d replaced news conferences in the state’s Capitol with rallies packed with supporters in locations far away from the Tallahassee press corps. Our U.S. Press Freedom Tracker has documented several instances of DeSantis not just avoiding the press but removing or barring journalists from his events.

DeSantis, unfortunately, is proudly anti-press. Journalists should still call him out so his constituents know about his antics, but he probably enjoys seeing the tears of his victims.

But other governors more likely to value a good relationship with the press, including California’s Gavin Newsom, have also stonewalled reporters. David Loy, legal director of the California-based First Amendment Coalition, told CalMatters that officials’ “message control practices do real harm to the public interest. … Because the people need to know the full story, not just the official story.”

It’s not just governors. Poynter’s report on the symposium cited examples involving lower-level public officials, like a sheriff in Florida refusing to alert the local paper to news conferences. It also noted that many government agencies made permanent cutbacks on transparency during the COVID-19 pandemic that were, ostensibly, temporary public safety measures.

Journalists concerned that they’ll be accused of whining or navel-gazing should make clear to the audience how official stonewalling impacts the quality of the news they ultimately consume

Just this week, the Las Vegas Review-Journal reported on local police denying independent journalists access and information available to legacy media outlets, effectively shrinking the pool of reporters with the ability to fully scrutinize them. And the Society of Professional Journalists condemned the Oklahoma State Department of Education’s denial of access to news conferences after the agency admitted it was retaliating for an outlet’s coverage.

Only journalists can hold officials accountable

“The result of these and similar practices is to replace journalistic scrutiny with stagecraft,” Poynter’s report rightly noted. And that’s not to mention the similarly widespread practice of routing information requests through spin-spewing public information officers rather than people with firsthand knowledge of the issues.

The report is worth reading in full – several intrepid local journalists describe reporting techniques they employ to get around public officials’ avoidance and find the news through other means. But in a case like the Harris campaign, there’s really no viable substitute for getting the candidate to speak off the cuff and on the record.

In instances like those, the report suggested that,

Journalists should make an effort to explain to the audience not only that the source is unwilling to participate, but also the context and ramifications of that decision. That shows the reporter is holding the newsmaker accountable and explaining that by withholding information from the journalist, they are also shutting out the public.

Although we absolutely encourage newspapers to editorialize about transparency and other press freedom issues, those editorials are not necessarily read by the same people who read the reporting that was impacted. Journalists concerned that they’ll be accused of whining or navel-gazing should make clear to the audience how official stonewalling impacts the quality of the news they ultimately consume — not just theoretically, but with specific examples.

Journalists should also make the connection when the same politicians who shut them out accuse them of bias. “Make clear in the story that you would’ve liked to attend the event yourself or speak to the official or their staff but you weren’t allowed to do so. If they believe the coverage is biased, they have themselves to blame,” I told Poynter.

As the saying goes, all politics is local. If journalists allow politicians in their communities to get away with avoiding the press, it’s not surprising if the practice spreads to the presidential level.

Freedom of the Press Foundation (FPF) co-founder and legendary Pentagon Papers whistleblower Daniel Ellsberg, left, and FPF's first Daniel Ellsberg Chair on Government Secrecy Lauren Harper, right.

Freedom of the Press Foundation (FPF) is excited to welcome its Daniel Ellsberg Chair on Government Secrecy, Lauren Harper.

Last year, FPF announced the creation of the Ellsberg Chair in honor of the legendary whistleblower and FPF co-founder, Daniel Ellsberg, who passed away in June 2023. As the first Ellsberg Chair, Harper’s work will focus on highlighting and fighting the multitude of ways the government keeps secrets — from the press, from the public, and from congressional overseers. Her work will also illuminate how rampant overclassification negatively impacts everything from public health to national security.

Daniel Ellsberg knew better than most that there are too many secrets, and they make us less safe. I’m honored, humbled, and excited to continue the fight against the secrecy system.

“We are so proud to further the legacy of our late co-founder Daniel Ellsberg with this important position,” said FPF Executive Director Trevor Timm. “Dan tirelessly and eloquently fought for secrecy reform for more than 50 years; we are extremely grateful that Lauren Harper will carry the torch in his name.”

Harper joins FPF after a decade fighting excessive government secrecy with Washington, D.C.-based nonprofit, the National Security Archive. There she served as public policy director and helped historians, journalists, and the public win the declassification of historically significant government documents. She has extensive experience with the Freedom of Information Act, both as a prolific FOIA requester and former member of the Federal FOIA Advisory Committee, and is an expert on the classification system, the Presidential Records Act, and records management issues. She holds a master’s in public policy and a master’s in Middle Eastern studies, both from the University of Chicago.

“Daniel Ellsberg knew better than most that there are too many secrets, and they make us less safe,” Harper said. “I’m honored, humbled, and excited to continue the fight against the secrecy system. I hope that my work will help more people understand and question the mechanisms of government secrecy, as well as the validity (or lack thereof) of those secrets.”

For more information about the Daniel Ellsberg Chair on Government Secrecy, or if you’d like to interview Lauren Harper for a story, please reach out to media@freedom.press.

Pro-Palestinian demonstrators and pro-Israel demonstrators clash at the University of California, Los Angeles on April 25, 2024.

Spring semester is typically filled with talks of finals and impatient waiting for summer to start. But last April, more than six months into Israel’s war in Gaza, students frustrated with university leadership for ignoring calls to divest from companies supporting the war effort filled campus streets and lawns with pro-Palestinian demonstrations and encampments.

Many of those demonstrations resulted in unwarranted and unnecessary arrests, assaults, and abuses of both student and professional journalists after college administrations deployed local and campus police to dampen student activism.

Four months later, the war is still happening — and the protests are likely to return. As students make their way back to campus for the 2024-25 academic year, Freedom of the Press Foundation (FPF) authored letters to universities around the country, outlining the constitutional framework that protects the press and providing guidelines for university leaders and law enforcement to follow to allow journalists to cover protests freely and safely.

From the Vietnam War to climate change to the Black Lives Matter movement, college and university campuses have historically served as gathering places for students, faculty, and community members alike to assemble and protest their grievances. These moments shape history, and journalists must be allowed to report on them. Universities play up past student anti-war activism for nostalgia-based marketing and PR campaigns, but when that history repeated itself during the Israel-Gaza war, schools suppressed coverage by arresting journalists.

Colleges should not repeat the same mistakes. In the letter, FPF explains that even when protests get out of hand, journalists have the right to remain on-site, and are entitled by law to document, record, or film any officer performing their duties without facing fear of arrest. Student journalists reporting on pro-Palestinian encampments last year were met with spray irritants, fireworks, police kettling, and arrests — all of which are violations of their First Amendment rights, particularly if journalists were targeted. As the letter explains,

Protecting the press is not about elevating journalists above others, but upholding the First Amendment right of the public to receive information. Without journalists present on the scene and able to report freely, officers are less accountable, and abuses of non-journalists are more likely. Incidents of harassment or violence against journalists have a “chilling effect” that dissuades other journalists from doing their jobs effectively.

Recipients of the letter include the University of Texas at Austin, Columbia University, Stanford University, the University of California, Los Angeles, and many more.

As an example, you can read our correspondence to UCLA here or below. And if you think your school’s administrators could use a reminder about press rights, please reach out and let us know.

Police disperse both protesters and journalists at a demonstration during the Democratic National Convention on Aug. 19, 2024, in Chicago.

The First Amendment prohibits police from dispersing law-abiding journalists covering protests, even in circumstances where lawbreaking protesters can be dispersed. Everyone from the Department of Justice to federal appellate courts agrees on that.

Nonetheless, the Chicago Police Department repeatedly dispersed, arrested, and threatened journalists at protests during the first two days of the Democratic National Convention.

They can’t claim they weren’t warned. I joined WBEZ Chicago’s Reset with Sasha-Ann Simons on the first day of the convention to remind CPD officers responding to demonstrations of journalists’ rights.

By dispersing and arresting journalists, police are effectively censoring newsworthy, vital information, including about their own conduct and potential misconduct.

I explained that “the aftermath of a protest is every bit as much the news as the protest itself. The police response to a protest is a huge part of the story, (and) that story can't get out if journalists are dispersed along with protesters.”

It wasn’t the first time we've cautioned Chicago police about this. We also wrote an op-ed in the Chicago Sun-Times, quoting the DOJ’s proclamation last year that “blanket enforcement of dispersal orders and curfews against press violates (the First Amendment) because they foreclose the press from reporting about what happens after the dispersal or curfew is issued, including how police enforce those orders.” We emailed that op-ed to numerous police and city officials to make sure they saw it, but received no response.

It’s not that we’re offended that police brass don’t read our emails and op-eds. We all get too many emails. But we’re offended that we even need to write them, given how easy it would be for officials to educate themselves about press freedom if they cared.

Mickey H. Osterreicher, general counsel for the National Press Photographers Association, told us on Wednesday that the NPPA had conducted a training on press rights for Milwaukee police in advance of the Republican National Convention and offered to do the same in Chicago.

“They told me that they had been providing First Amendment training and they didn’t need anything from NPPA. Given the events of last night, I would have to say that that alleged training was an abysmal failure,” he said.

Indeed, hours after the WBEZ broadcast, Deputy Director of News Affairs and Communications Thomas Ahern was filmed warning journalists that if they failed to disperse from a city park along with protesters their press passes would be revoked.

That alone should disqualify Ahern from serving as a news affairs and communications official for CPD or any other police department. But he doubled down the next day, reportedly ripping press credentials off of journalist Josh Pacheco, one of at least three arrested after police dispersed protesters. Pacheco's and another journalist's seized credentials were later returned, after the NPPA and lawyers for the journalists intervened.

Several more protests are planned during the remainder of the convention. In light of the events of this week, and CPD’s long history of First Amendment violations when policing protests, from the DNC in 1968 to Black Lives Matter demonstrations in 2020, we’re not optimistic that officers will change their unconstitutional ways.

This won’t just impact journalists – reporters who are needlessly detained can’t report on police response to protests in a city on edge about a potential repeat of 1968. By dispersing and arresting journalists, police are effectively censoring newsworthy, vital information, including about their own conduct and potential misconduct.

We’ve asked Ahern and others at CPD if they have some sort of legal or constitutional basis for disagreeing with the DOJ and appellate courts about the unlawfulness of stopping journalists from reporting news through dispersal orders. Let’s see if they read that email.

This article has been updated to note the return of journalists' seized credentials.