Deferred prosecution agreements silence and extort journalists
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Courtesy of Tim Burke. Over 50 organizations are demanding transparency regarding the FBI's May raid of journalist Tim Burke's home newsroom. The government's failure to explain how it believes Burke broke the law threatens to chill reporting by journalists who dig for news online.
** Press orgs demand answers about raid of journalist’s home
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An FBI raid on the home newsroom of Florida journalist Tim Burke in May prompted Freedom of the Press Foundation (FPF) to lead more than 50 organizations in demanding transparency from the Department of Justice ([link removed]) about the government’s suggestion that Burke broke the law while digging for news on the internet.
Burke is perhaps most well known for his 2013 reporting ([link removed]) revealing the Manti Te'o catfishing hoax and a widely circulated 2018 video compilation ([link removed]) showing dozens of Sinclair Broadcasting Group anchors reciting the same script.
The FBI raided ([link removed]) Burke’s home after he obtained outtakes of Tucker Carlson’s interview with Ye (formerly known as Kanye West) where Ye made antisemitic and other offensive remarks. According to court filings, the government is investigating alleged violations of the Computer Fraud and Abuse Act and a federal wiretapping law.
According to Burke ([link removed]) , he got the outtakes from unencrypted websites that anyone could access using publicly accessible login credentials. As FPF’s Advocacy Director Seth Stern explains ([link removed]) , “If that’s true, it’s highly problematic for press freedom. Journalists cannot be expected to refrain from using the internet to find newsworthy content just because powerful companies would prefer to keep it private.”
In addition to the lack of transparency, FPF’s letter to the DOJ ([link removed]) takes issue with prosecutors’ arguments that Burke isn’t really a journalist and demands answers about whether the government followed its own procedures for searches ([link removed]) of journalists’ newsgathering materials.
The DOJ must provide more public information about the Burke case so journalists don’t need to worry that their internet research may bring the feds to their door.
Deferred prosecution agreements silence journalists
Arizona journalist Lucas Mullikin ([link removed]) — who was arrested ([link removed]) in May for the “crime” of trying to record a violent trespassing arrest by the Yuma, Arizona, police — recently accepted ([link removed]) a “deferred prosecution” agreement whereby charges against him will be dismissed if he isn’t arrested again for a year. He also had to pay a “fee” for the privilege of essentially being placed on probation for exercising his constitutional rights.
As we explain on our blog ([link removed]) , prosecutors are increasingly ([link removed]) using deferred prosecution agreements in frivolous cases against reporters, chilling journalism in the process. To avoid prosecution, reporters must ensure they’re not arrested again by the same police department that already demonstrated it will target them for doing their jobs. How could any journalist not think twice about reporting that might anger police under those circumstances?
Police departments that wrongly arrest journalists need to own up to it, apologize, and discipline the officers involved — not attempt to extract obedience and money from journalists they know did nothing wrong.
Hidden press implications of Supreme Court social media cases
Two new cases before the Supreme Court about the First Amendment rights of social media platforms to moderate content could have big consequences for journalists and the news media.
In NetChoice v. Paxton ([link removed]) and Moody v. NetChoice ([link removed]) , the court will consider whether platforms have a First Amendment right to engage in content moderation. But because the platforms are relying on landmark free press decisions ([link removed]) to make their cases, the court’s decisions could also reshape fundamental First Amendment protections for the press.
News media should monitor these cases especially closely when presidential candidates, including Donald Trump, have made clear ([link removed]) their intentions to punish the press for coverage they claim is unfair. Read our blog post ([link removed]) unpacking the potential impacts of these cases on the press to learn more.
Judges should have to go to law school. And no, that's not as obvious as it sounds.
The fallout from the illegal police raid of the Marion County Record continued this week with the better-late-than-never suspension and resignation ([link removed]) of the police chief who led the raid. The judge who approved the warrant, Laura Viar, is also the subject of a judicial ethics complaint ([link removed]) over her decision to authorize the raid, while journalists investigate her background ([link removed]) and potential conflicts.
Viar happens to be a lawyer — but she didn’t have to be in order to become a magistrate judge in Kansas, one of several states where nonlawyer judges are empowered to, among other things, issue warrants authorizing seizures of journalists’ materials. The Marion ordeal led lawmakers in Kansas to introduce a bill ([link removed]) to prevent magistrates from issuing warrants.
We write on our blog ([link removed]) how requiring a law degree to serve on the bench is a good place to start when it comes to protecting press freedom and other constitutional rights. But we also need to have a larger conversation around why many judges — lawyers or not — can’t seem to get press freedom ([link removed]) right these days.
** What we’re reading
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Return cameras to C-SPAN control and restore transparency ([link removed]) . Remember the last time we didn't have a speaker of the House? C-SPAN’s cameras were able to show the entire chamber, not just the person addressing the floor. Enjoy this #TBT to FPF’s blog post and coalition letter (along with the Demand Progress Education Fund) about why allowing C-SPAN to control the cameras during the negotiations over the last speaker vacancy achieved an unusual and vastly improved level of transparency. How about a repeat this time around? And then let’s permanently free the House cameras from the control of politicians.
Knight Institute and Reporters Committee File Amicus Brief in Case Challenging Electronic Device Searches at the Border ([link removed]) . Journalists often cross the U.S. border as part of their reporting, and when they do, they’re likely to carry electronic devices containing confidential information about sources and newsgathering. But the government has repeatedly argued that it can conduct warrantless searches of literally anyone’s devices at the border. That’s wrong. Border guards rifling through devices of journalists and others without a warrant violates the Fourth Amendment. Hopefully this time the court will agree.
Five years after the Khashoggi murder: No justice, no closure ([link removed]) . "No one should accept the Saudi whitewash. MBS stole Jamal Khashoggi from his family, friends and colleagues; escaped accountability for his murder; and continues to torment Saudis who dissent," writes The Washington Post editorial board.
** FPF Live: Police Search and Seizure in Marion
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On October 18, 2023, from 7-8 p.m. EDT, join FPF Deputy Advocacy Director Caitlin Vogus for a virtual event, “Police Search and Seizure in Marion: New — or Expanded — Front on Press Freedom ([link removed]) .” Caitlin will be part of a panel including Marion County Record Editor and Publisher Eric Meyer and other experts to discuss changing attitudes by officials and the public toward the free press, recent attacks on journalism, and chilling effects on aggressive reporting. Register here ([link removed]) .
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