Hi friend of press freedom, I’m Caitlin Vogus, the new Deputy Director of Advocacy at Freedom of the Press Foundation (FPF). Advocacy Director Seth Stern kindly introduced me in last week’s newsletter, and I wanted to say hello and how excited I am to be part of the FPF team. I’m looking forward to working with all of you to advance press rights. Drop me a line at [email protected] with any suggestions for our advocacy work.

This week I wrote about how a recent decision by a Pennsylvania appellate court may make it harder for journalists and the public to use the state’s Right-to-Know Law to get access to social media posts by public officials from their personal accounts, even when officials are discussing government business.

As we explain on our blog, the decision establishes a complex three-part test for determining when posts are public records. One Pennsylvania attorney told Spotlight PA that the decision is a significant change to Pennsylvania law, which had previously been interpreted to presume that a record is public “anytime a public official communicates about public business.”

If courts won’t protect public access to officials’ online statements on government affairs, then legislatures must act to update the laws for the digital age and preserve the public’s right to know. 

Attempt to change Texas anti-SLAPP law for the worse fails 

The Texas legislative session ended with a bang with the House vote to impeach Texas Attorney General and free speech foe Ken Paxton, but one anti-press bill went out with a whimper. The bill would have changed for the worse the Texas Citizens Participation Act, a law that protects news outlets and others from frivolous lawsuits known as strategic lawsuits against public participation, or SLAPPs. 

SLAPP plaintiffs, who are often wealthy and powerful people or corporations, use the fear of high legal costs and lengthy court proceedings to chill the free expression of journalists and others whose speech they dislike. The TCPA, like other anti-SLAPP laws around the country, protects journalists and others from SLAPPs by allowing for an early motion to dismiss baseless lawsuits targeting speech. It also lets defendants appeal immediately if they lose the motion to dismiss, and pauses the case while the appeal is pending. 

A coalition of news media outlets led by Texas attorney Laura Prather opposed the bill, because it would have weakened the TCPA’s protections. Thankfully, with the end of the Texas legislative session on May 29, the bill is officially dead — for now. We’ll be watching in the next session. The inability of red state legislatures to pass anti-press bills like this one and Florida’s failed defamation bill, despite the rhetoric of Republican presidential frontrunners, provides reason for optimism that Americans of all political stripes continue to value press freedom. 

FPF joins coalition opposing the Cooper Davis Act

FPF joined a letter led by the Electronic Frontier Foundation opposing the Cooper Davis Act, a bill in Congress that would require social media companies to report certain drug crimes on their services to the Drug Enforcement Agency. As the letter explains, because online platforms won’t be able to discern illegal drug deals from other speech that just discusses or mentions drugs, they’re likely to report users to the DEA for protected speech. This could include journalists’ communications with a source for news reports about drug trafficking or addiction. The bill will also encourage online services to digitally scan users’ communications, undermining confidentiality.  

What we’re reading

How should journalists cover Pride in states that have passed anti-LGBTQ+ laws? June is Pride Month, and journalists will be covering Pride events and issues impacting the LGBTQ+ community, such as the “more than 450 anti-LGBTQ+ bills in statehouses across the country.” In addition to the tips from this article, journalists should consider their digital security and source protection methods when covering the LGBTQ+ community, who may have safety or other concerns about talking to the press or wish to speak to reporters confidentially for fear of stigmatization or criminalization. FPF’s guides & trainings can be a good place to start for general security information, and the Journalists Toolbox by the NLGJA: The Association of LGBTQ+ Journalists has information about how to cover the LGBTQ+ community.

How the new Justice Department media guidelines might work in close cases. The Department of Justice adopted new policies in 2022 restricting subpoenas and seizures from journalists. But how would the new “News Media Guidelines” have applied to past attempts to seize journalist’s records or reveal confidential sources? The Reporters Committee for Freedom of the Press’s analysis of four past examples reinforces the need for a federal shield law, like the PRESS Act, to both codify the guidelines so they can’t be ignored or changed with the stroke of a pen by a future administration, and to strengthen them in areas where they may fall short. 

FBI restarts Julian Assange probe despite hopes of release. The FBI reportedly sought to interview novelist Andrew O’Hagan in connection with its investigation of Julian Assange. O’Hagan has been critical of Assange, and presumably investigators were hoping to dig up dirt, but he admirably refused to cooperate, stating that “I might have differences with Julian, but I utterly oppose all efforts to silence him.” The Biden administration should immediately drop the case against Assange — universally acknowledged to be a direct threat to press freedom — not fish for new reasons to keep it going. 

How an OTM reporter became part of one of the biggest January 6th trials. On the Media reporter Micah Loewinger gave a first-person account of being required to testify in a criminal trial arising from the January 6, 2021, attack on the Capitol. Federal prosecutors subpoenaed Loewinger to authenticate recordings he made of communications by Oath Keepers members using the walkie talkie app Zello during the attack. Despite reservations about his journalistic independence, Loewinger ultimately complied with the subpoena because he didn’t believe he could win a legal challenge. While Loewinger had no confidential source to protect and made the entire recording available online (rather than be forced to turn over unaired segments to the prosecution), it’s still concerning to see a journalist hauled into court to testify in a criminal case. Journalists work for the public, not the government, and prosecutors shouldn’t be relying on reporters to make their cases. (For a bonus listen, check out another segment from the same OTM episode, about the history of Civil Rights reporter Earl Caldwell and a notable Supreme Court case about the reporter’s privilege.)

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