Pentagon Papers whistleblower and Freedom of the Press Foundation (FPF) co-founder Daniel Ellsberg recently remarked that U.S. journalists are making a serious mistake “in not investigating the secrecy system, covering how it acts, how it works, and how it keeps secrets and what secrets it keeps.”

We couldn’t agree more. We’re honoring Ellsberg, who is dying of pancreatic cancer, by launching the “Daniel Ellsberg Chair on Government Secrecy.” We’ll be seeking to fully endow this position so we can take the lead in fighting for massive reform of the secrecy infrastructure in the United States. You can read more about the position, as well as the overclassification and secrecy problems the Chair will shine a light on, on our blog. 

FPF welcomes new deputy director of advocacy

This week FPF welcomes our new Deputy Director of Advocacy, Caitlin Vogus. Caitlin will help FPF expand its work defending the rights of journalists and whistleblowers in a world growing increasingly hostile to press freedoms. We’re thrilled to have her on board.

Prior to joining FPF, Caitlin was the deputy director of the Free Expression Project at the Center for Democracy & Technology, a senior staff attorney at the Reporters Committee for Freedom of the Press, an attorney advisor at the Federal Communications Commission, and a law clerk at the Virginia Court of Appeals. Caitlin received her J.D. from Harvard Law School and bachelor’s degree from the University of Virginia. Caitlin is based in Washington, D.C. 

SCOTUS declines to limit online free speech … for now

Journalists can breathe a temporary sigh of relief after the Supreme Court passed on an opportunity to scale back Section 230 of the Communications Decency Act, which immunizes online platforms from liability for content posted by users. The court found it unnecessary to consider Section 230's scope after deciding that legal claims based on allegations that content the platforms hosted radicalized terrorists failed for other reasons.

Caitlin wrote on our blog that, without Section 230, “the #MeToo movement, and all of the investigative reporting it spurred, may never have gotten off the ground if Twitter removed user’s posts because it was worried about its own potential liability for defamation.” We’ve previously explained that, in the event of a repeal or poorly thought out reform of Section 230, risk averse platforms will likely err on the side of removing news content anytime someone claims that an article defamed them or otherwise violated their rights. 

While the Supreme Court may have provided a respite, the threat to online free speech isn’t over when there remains support on the court itself, and in Congress and the White House, for repealing or reforming Section 230. Officials may like the politics of appearing tough on “big tech” by taking aim at Section 230, but they need to make sure journalism and online free speech aren’t caught in the crossfire. 

St. Louis judge issues unconstitutional prior restraint 

A St. Louis judge issued a plainly unconstitutional “prior restraint” prohibiting the St. Louis Post-Dispatch from reporting on a mental health evaluation of a man accused of killing a police officer, apparently because the judge believed publication could interfere with the man’s right to a fair trial. The report was likely accidentally filed as a public document.

The Supreme Court has repeatedly upheld the press’s right to publish information that the government accidentally releases, no matter the consequences. A Los Angeles court recognized as much this week, rejecting the LAPD’s efforts to claw back photographs of undercover officers that they inadvertently released to a journalist.

And prior restraints on publication are unconstitutional even when national security is allegedly at risk. The Supreme Court instructs trial judges to deal with potential prejudice to defendants’ fair trial rights from media publicity through the jury selection process or even by moving the trial elsewhere rather than censoring the press.

Far too many judges are either ignorant of or unconcerned with the First Amendment and seem to view any inconvenience as sufficient reason to restrain press freedom. It needs to stop.

Warrant to search Asheville journalist’s phone reveals additional abuses

Asheville Blade journalist Matilda Bliss finally obtained a copy of a nearly 1.5-year-old warrant to search their phone seized during their arrest on Christmas night of 2021 for the “crime” of documenting a police sweep of a homeless encampment. 

Bliss, fellow Blade journalist Veronica Coit, and Blade Editor David Forbes joined us this week for an FPF Member event at which they further discussed the warrant and everything else they’ve been through since Bliss and Coit’s arrests. 

The warrant violates federal law and the First Amendment in any number of ways. First, the sole justification for the search asserted by police is that Bliss is allegedly linked to “extremist anarchist groups.” The primary evidence of Bliss’s “extremism” is posting to a publicly available social justice event calendar. It’s perfectly lawful to be an anarchist and the warrant application does not contend that Bliss was involved in anything illegal. But apparently, the police department considers any views they don’t like “extremism.”  

Second, the warrant application conveniently neglects to mention that Bliss is a journalist. If it had mentioned that fact then perhaps the reviewing judge would have realized that approving a warrant to search a journalist’s newsgathering materials for evidence of crimes by others violates federal law — namely, the Privacy Protection Act of 1980.   

Authorities should end the pointless prosecution of Bliss and Coit before further evidence of their misconduct emerges. The journalists are scheduled for a jury trial on June 12.  

What we’re reading

Superior Court judge holds The Californian in contempt of court for refusing to turn over unpublished notes.  A California judge held a journalist in contempt of court after the journalist did not comply with an order to turn over notes of a jailhouse interview with a suspect in a murder. The interviewee’s co-defendant had issued a subpoena for the notes. It appears that the contempt order was more of a procedural mechanism to allow the journalist to appeal under California law than a punishment for noncompliance. That said, any law that requires a journalist to be held in contempt of court to qualify for protection is in need of reform. It’s not contemptuous for a journalist to refuse to burn sources. It’s admirable.

As staff shield Feinstein from the press, a picture really is worth a thousand words. Journalists are taking note of unusual efforts to shield Sen. Dianne Feinstein from the press since her return to the Senate after a bout with shingles. Staffers should be seeking ways to assure citizens of the 89-year-old’s competency to serve rather than attempting to hide her from public view.

Iowa courts hit with First Amendment action over delayed access. Courthouse News and Lee Enterprises are suing over Iowa’s delays in “processing” electronically filed court papers before they become available to the press and public. Good. New technologies should increase transparency rather than enable stall tactics. The news cycle moves quickly and prompt access to court filings is essential.

George Santos secures three mystery guarantors for $500,000 bail in fraud case. In an unusual move, a federal judge has sealed the identities of three co-signers for embattled Rep. George Santos’s $500,000 bond in his fraud case. No reason for the secrecy has been reported but it’s hard to imagine a good one. 

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