Biden opposes charging journalists with espionage while prosecuting Assange

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Credit: Cvent Inc. RESTRICT Act sponsor Sen. Mark Warner claims we have nothing to worry about because the government will use its broad censorship and surveillance powers responsibly.

Legislators have seized on fears of Chinese surveillance on TikTok ([link removed]) to rally behind a bill that would grant unelected officials unprecedented censorship and spying powers.

We wrote on our blog ([link removed]) about how the RESTRICT Act could empower government officials to ban and censor foreign platforms based on flimsy and unproven “national security” concerns — including that such platforms might host true information that undermines US foreign policy.

The bill is a blatantly unconstitutional mess and there’s far too much wrong with it to cover in one article. We noted that “no one in their right mind would ever suggest a similar legislative scheme for banning foreign newspapers, broadcasters or mail. But, for whatever reason, politicians seem unable or unwilling to apply analog precedents to digital times.”

That said, the bill’s provisions allowing draconian penalties against journalists and others who use VPN and other common technologies to circumvent censorship are of particular concern to us at Freedom of the Press Foundation (FPF). The issue hits close to home because we often work with ([link removed]) foreign journalists concerned about similar restrictions by repressive regimes in their countries. Assurances from ([link removed]) the bill's proponents that the government won't do what the bill empowers it to do mean nothing to us.

As FPF Principal Researcher Dr. Martin Shelton ([link removed]) put it: “When we conduct security trainings with journalists around the world, far too often we've seen how journalists and the communities around them feel they could be put at risk by using VPNs and other circumvention tools. It's horrifying to contemplate that possibility in the U.S.”


** U.S. prosecutes Assange despite opposing espionage charges abroad
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Poynter rightly asked ([link removed]) the Biden administration whether its opposition to Russia’s espionage charges against Wall Street Journal reporter Evan Gershkovich would have any effect on its own prosecution of Julian Assange under the Espionage Act for routine newsgathering.

The response from the Justice Department’s spokesperson? “I can confirm we are continuing our efforts to seek the extradition of Julian Assange.” The administration’s hypocrisy is unfortunate, although unsurprising. Whatever you think of Assange, the legal theory behind his prosecution is indistinguishable from Russia’s sham charges against Gershkovich, and Biden’s credibility in opposing the latter is compromised.

Poynter asked us if there’s a difference between prosecuting a WSJ reporter and a non-conventional journalist like Assange. Here’s what we told them: “Debating whether [Assange] is a journalist is a distraction from the indisputable fact that he’s being prosecuted for committing acts of journalism. The First Amendment doesn’t limit itself to protecting card-carrying journalists. It says ‘Congress shall make no law … abridging the freedom of speech, or of the press.’ Assange is being prosecuted under a law that not only abridges freedom of the press but criminalizes essentially the dictionary definition of investigative journalism. If that’s permitted by the First Amendment then the First Amendment does not mean much.”


** City of LA frivolously sues journalist for keeping files it gave him
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The City of Los Angeles admits that it inadvertently gave journalist Ben Camacho records identifying undercover police officers. Now the city is suing ([link removed]) Camacho, claiming he is in wrongful possession of the records it handed over to him.

The lawsuit is frivolous and the city and its lawyers should be sanctioned for filing it. The Supreme Court has repeatedly held that the First Amendment entitles journalists to keep and publish records provided to them by the government, even by accident.

Sure, identities of undercover cops are sensitive, but the landmark case ([link removed]) on the issue involved identities of underage crime victims. The Supreme Court held that the newspaper could not be punished despite a state law against identifying minor victims. It explained that the press is entitled to “rely on the government’s implied representations of the lawfulness of dissemination” as opposed to needing to “prune out material arguably unlawful for publication.”


** What we’re reading
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Right-wing media splits from DeSantis on press protections ([link removed]) . The New York Times covered the growing conservative backlash against the Florida bill, favored by ([link removed]) Governor Ron DeSantis, to help the rich and powerful bankrupt their critics with litigation. We wrote last month ([link removed]) about why conservatives should oppose the bill. Zealous advocates ([link removed]) in Florida have explained how the state’s conservative talk radio stations would suffer the greatest harm if the bill became law. Now conservatives are rightly turning against
([link removed]) the legislation. Let’s hope the bill dies in committee and DeSantis learns not to play partisan games with press freedoms.

There was no good reason offered, it turns out, for the gag order on students in Doe v. UNC ([link removed]) . FPF joined Eugene Volokh and the ACLU of North Carolina to oppose a broad gag order in a case involving a student expelled over sexual assault allegations. The order went as far as instructing parties to tell media outlets not subject to the court’s jurisdiction that they were barred from covering the case. Volokh discusses how the unsealed court papers reveal that the court entered the order at the request of the parties, without any real legal analysis and without citing any conceivable basis for censorship. Unfortunately this is all too common — far too many judges lack a basic understanding ([link removed]) of the First Amendment.

Judge strikes down unconstitutional “fake news” law in Puerto Rico. ([link removed]) A federal court struck down a Puerto Rico law criminalizing “false alarms” about public emergencies. Crackdowns on press freedoms often occur exactly when freedom is most needed. The court rightly agreed with the ACLU that transparency, not censorship, is the answer.


** New Digital Security newsletter
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FPF has a new weekly newsletter on digital security and journalism! It includes a short update on digital security news, what you can do about it, and other news from our team. Subscribe here ([link removed]) .
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