SCOTUS should strike down immigration law that punishes journalism

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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]) .

Florida Capitol Building. Credit: Jonathan Kramer

Freedom of the Press Foundation (FPF) Executive Director Trevor Timm wrote an op-ed for the Guardian ([link removed]) about the persistent efforts by Gov. Ron DeSantis and Florida legislators to weaken First Amendment freedoms for journalists, bloggers and everyone else.

This includes a proposal, endorsed by DeSantis ([link removed]) , to scale back the Supreme Court’s “actual malice” standard to protect against liability for honest mistakes while discussing public figures, as well as an absurd bill that would require paid bloggers to register with the state.

Trevor noted that, while the blogger bill is “so chilling that it would make Vladimir Putin proud ([link removed]) ,” it’s likely a mere “sideshow” (DeSantis has since distanced himself from the bill). The actual malice proposal has a far greater chance at becoming law, and if it does, it may lead to copycat legislation, particularly in other Republican-controlled states.

We wrote on our blog about the numerous reasons why conservatives should oppose ([link removed]) the bill, which would harm conservative journalists as much as, if not more than, establishment media. It’s anyone’s guess whether the legislation would survive a Supreme Court challenge but it would wreak havoc on journalism in Florida in the meantime.


** FPF opposes law that could criminalize reporting on immigration
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FPF and a group of press freedom organizations filed a brief ([link removed]) (PDF) urging the Supreme Court to affirm an appellate decision striking down a law broadly prohibiting “encouraging” or “inducing” unlawful immigration.

The law’s language is vague and ambiguous enough to criminalize reporting and opinion writing from across the political spectrum. It could enable prosecution of editorialists calling for more permissive immigration policies, on the one hand, and investigative journalists exposing lapses in border security, on the other.

Abuse of the law to retaliate against journalists is not just hypothetical — it’s already happening. The brief, written by Prof. Penny Venetis, Director of the International Human Rights Clinic at Rutgers Law School, and her students, explains that the government has cited the law to monitor and interrogate journalists reporting on the 2018 “caravan” of migrants to the U.S.

The case could also have implications for journalism outside the immigration context. The Supreme Court has never before allowed truthful reporting on matters of public concern to be punished. And, with the government already attempting to criminalize newsgathering through the prosecution of Julian Assange ([link removed]) , it’s not hard to imagine arguments that reporters “induce” sources to break the law by leaking documents.


** Twitter investigations bring disturbing attacks on journalists
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News broke this week that the FTC demanded Twitter identify journalists to whom it granted access to company records as part of its investigation into Twitter’s privacy practices.

We explained to Common Dreams ([link removed]) that, regardless of what one thinks about Elon Musk, Twitter, or the journalists involved, “the FTC should not have to violate the privacy of journalists to protect the privacy of Twitter users.” We noted that demands to identify journalists often lead to further surveillance of journalists and their sources. Then the very next day, at a hearing on the "Twitter Files," a representative tried to pressure ([link removed]) Matt Taibbi to confirm whether Musk was his source.

Relatedly, we were disturbed by representatives questioning ([link removed]) , during the same hearings, whether journalists should accept documents from sources with political agendas. Purity tests for sources would have killed investigative reporting that helped shape U.S. history. Elected officials should stay out of journalistic ethics and keep their self-serving judgments about who qualifies ([link removed]) as a journalist to themselves.

These incidents add to the long list of examples of why conservatives, and all Americans, should support the PRESS Act ([link removed]) , which would prohibit the government from spying on journalists outside national security emergencies.


** What we’re reading
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FOIA backlogs on the rise after record number of requests ([link removed]) : Freedom of Information Act backlogs are at an all-time high at several government agencies following a record number of requests last year. The increase in requests means that access to records is worth investing in because it’s clearly a priority to citizens. The government should respond by hiring more FOIA officers, training them not to waste time finding reasons to unnecessarily reject requests, and making more records easily accessible online without the need for a request.

U.S. Embassy in Niger threatens a pesky American journalist and then backs down ([link removed]) : The Intercept reports that embassy security personnel threatened a journalist that “if you won’t leave, we’ll go to the host nation,” after he showed up for a meeting. Embassy staff was, presumably, aware when making the remark of Niger’s history of human rights abuses against journalists. The State Department needs to investigate and improve training for all employees who deal with the press.
How fake copyright complaints are muzzling journalists ([link removed]) : The BBC reports on abuses of the U.S. Digital Millennium Copyright Act’s takedown procedures to remove critical coverage of a Cameroonian businessman and an Equatorial Guinean politician. This follows a recent Washington Post piece ([link removed]) on similar frivolous demands by reputation management firms. These stories should serve as a warning to politicians on both sides of the aisle who want to repeal or reform Section 230 of the Communications Decency Act, which protects internet platforms from liability for defamation by their users. Do we want risk-averse platforms taking down news reports anytime some PR firm baselessly claims their clients were libeled?


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

— Seth Stern, Director of Advocacy
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