Officials keep ignoring the Constitution to claw back documents from press

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Dear friend of press freedom,

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 ([link removed]) .

Image created using Midjourney, CC BY-NC. A legal loophole that lets the government buy location information, browsing history, and more from data brokers creates risks for journalists and whistleblowers.

Close the data broker loophole

Following a recently declassified government report ([link removed]) revealing that federal intelligence agencies are gobbling up massive amounts of data from shadowy companies known as data brokers, Congress is considering closing ([link removed]) this surveillance loophole, at least for the Department of Defense.

For years, intelligence and law enforcement agencies at the federal ([link removed]) and local levels ([link removed]) have been using data brokers to get around legal restrictions on accessing information for their investigations.

As we explain on our blog ([link removed]) , the data broker loophole poses dangers for journalists and whistleblowers caught up in government leaks investigations. Using data brokers, the government could, for example, buy browsing and search history or even detailed location data of journalists and whistleblowers without a warrant or other court approval.

We shouldn’t let the government buy its way out of honoring the First and Fourth amendments. Closing the data broker loophole for the Department of Defense is a good start, but Congress must also prohibit intelligence agencies and state and local law enforcement from buying Americans’ data.

St. Louis judge upholds unconstitutional prior restraint

Last month, we wrote ([link removed]) about a blatantly unconstitutional gag order prohibiting the St. Louis Post- Dispatch from reporting on a mental health evaluation of a high-profile murder suspect after it was accidentally included in a public court file.

The order violates at least three of the best-established First Amendment principles in existence: One, that judges may not ([link removed]) issue prior restraints that bar the press from publishing information in its possession. Two, that the government cannot claw back ([link removed]) documents after releasing them, even accidentally. And three, that courts must try ([link removed]) every alternative to ensure fair trials — from sequestering jurors to moving trial venues — before censoring the press.

But last week, Judge Elizabeth Hogan nonetheless denied ([link removed]) the Post-Dispatch’s motion to dissolve the prior restraint. She can no longer claim ignorance of the law following briefs from the paper. The only explanation is that she is choosing to wilfully disregard the Constitution. The next hearing is scheduled for July 27. Let’s hope she comes to her senses.

Ruling allowing journalist convictions gets the Constitution backward

Last month, a North Carolina judge reportedly ([link removed]) instructed a jury not to consider the First Amendment in deciding whether two journalists could be convicted for recording police evicting a homeless encampment and dispersing protesters. He said he would resolve constitutional issues in deciding the journalists’ motion to dismiss the charge that they broke a park curfew.

But Judge Tommy Davis’s ruling ([link removed]) on the motion is full of troubling biases and fundamental legal errors, as we discuss in further detail on our blog ([link removed]) . First, he expressed largely pointless reservations about whether the journalists were actually journalists. Second, he bizarrely reasoned that the First Amendment requires police arresting protesters to also arrest journalists, out of fairness.

Academic debates about the outer reaches of what constitutes journalism aside, the reporters at issue here write regularly for an established news outlet. There’s no legitimate basis to doubt their entitlement to the protection of the First Amendment’s press clause. And arresting protesters does not obligate cops to also arrest journalists. We can’t believe we have to say this, but the First Amendment should never be cited as a reason to criminalize more speech.

Freedom of the Press Foundation Guías en Español

This week, Freedom of the Press Foundation released our first set of digital security training guides en Español ([link removed]) , to expand our impact by reaching Spanish-speaking journalists. The translated articles give advice on maximizing account security and how to use popular encrypted messaging apps, and are especially useful for journalists working outside the United States.

Thank you to FPF intern David Aragort, who helped us put together the first wave of translations during his internship in 2022.


** What we’re reading
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Ninth Circuit guts Oregon recording law ([link removed]) . A federal appellate court struck down an Oregon law that required consent to record public conversations, holding that it violates the First Amendment. According to Courthouse News Service, Oregon is one of five states that prohibit individuals from recording public conversations without notice or consent. The ability to record in public is crucial to news reporting. While journalists commonly seek consent before recording, in some cases it may be necessary to engage in undercover reporting and record surreptitiously. The law should protect reporters’ and everyone’s First Amendment right to record in public.

Judge rules Charleston County Sheriff’s Office violated FOIA law ([link removed]) . A judge rightly rejected the sheriff’s attempt to deny a newspaper’s request for the same documents the sheriff had previously released to a television station. The sheriff claimed the initial release was accidental and “has been mitigated by a clawback request.” But the government has no right to request “clawbacks” of records it has released to the press, as officials in Los Angeles recently learned ([link removed]) and as the St. Louis judge discussed above hopefully will too.
Conservative group withdraws lawsuit against left-wing podcast ([link removed]) . A conservative organization, Young America’s Foundation, sued the hosts of a left-leaning podcast for trademark infringement over its satirical use of the phrase “Young Americans for Freedom.” As ACLU lawyer Brian Hauss explained: “I don’t think it’s possible people are genuinely confused about whether Young Americans for Freedom sponsors the ‘Know Your Enemy’ podcast. … What this really is, is bullying people who are commenting critically on the conservative movement, and using the cost of litigation to do that.” We’ve written about abuses of copyright law ([link removed]) to silence journalists — this goes to show that abusive trademark claims can be equally dangerous.
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