​Happy World Press Freedom Day! If you are a journalist heading out to do an interview, please be careful in your movements, your digital security, and the protection of your sources. In some countries, you might want to check under your car before starting the ignition.
 
But be advised that even these safety measures may not be enough to protect you.
 
Like many declarations of the United Nations, the 30th anniversary of World Press Freedom Day is observed in the breach in many UN member countries. The UN Secretary General Antonio Guterres said that the number of journalists killed in 2022 was 50 percent higher than the previous year. UNESCO reports that in all, 86 journalists were killed last year.
 
That’s a reporter killed every four days.
 
In Mexico, where many journalists have been murdered, the government and the cartels are the most prolific users of Pegasus, surveillance software that can transform any smartphone into a comprehensive 24/7 surveillance device. This spyware reveals one’s texts, emails, images, and calendar, while turning a smartphone’s microphone and camera against its owner. The New York Times reports that Mexico’s federal spy agency has “targeted more cellphones with the spyware than any other government agency in the world.”
 
And, of course, criminal actors have full use of this technology in much of the world. Cartels used Pegasus to track down journalist Cecilio Pineda Birto hours after he accused the state police force and local politicians of conspiring with violent criminals. He was gunned down while waiting for his car to come out of a carwash. Twenty-six Mexican journalists were targets of interest by a buyer of this technology in recent years.
 
This is in keeping with Secretary Guterres’ statement that “90 percent of the journalists killed” are “covering local issues, human rights violation, corruption, illegal mining, environment problems.” He added that many of the killers “are not only state actors, they are organized crime, drug lords, environmental criminals.”
 
In some parts of the world, the line between state actors and thuggery is nonexistent. Witness the ordeal of Evan Gershkovich of The Wall Street Journal, arrested on specious charges of being an American spy by the judicial puppets of the Vladimir Putin regime. Or Jimmy Lai, the Hong Kong publisher who bravely defied the Chinese Communist Party and has disappeared behind bars.
 
In other parts of the world, journalists are intimidated by online attacks and loose libel laws that keep journalists legally and psychologically intimidated.
 
Throughout, the marriage of increasingly potent surveillance technology and illiberal regimes is making the practice of journalism more difficult. This is true even in the United States. A Texas journalist was arrested for – get this – “misuse of official information.” A Wall Street Journal reporter in Arizona was arrested for doing man-on-the-street interviews.
 
The press can often come at the truth with a slant or a sensational angle. The press can just get a story wrong. But the free and open practice of journalism is in the long run the only way for a free society to self-correct and sift out the truth. As the founders insisted, freedom of the press safeguards society against official corruption, malfeasance, and the lawless exercise of power.
 
While 49 U.S. states have press shield laws, there is no federal law that protects the notes and sources of a journalist from being seized by a federal prosecutor. All the more reason to celebrate World Press Freedom in America by asking Congress to get behind the PRESS Act, which would extend these basic protections to the federal government.

Prosecutors in Asheville, North Carolina, are insisting on pressing forward with the prosecution of two journalists for daring to document a police sweep of a homeless encampment.
 
Matilda Bliss and Veronica Coit were arrested and charged for trespassing on Christmas night, 2021. Their crime? They stood on a rise above the scene in a city park after the park’s 10 p.m. closing time. By the admission of all, the journalists could not have seen the eviction, must less filmed it, from a public sidewalk or lower down in the park. They were where they needed to be to document this story.
 
On April 19, Bliss and Coit were finally convicted of trespassing in a bench trial. They are now exercising their rights to appeal their case before a jury. The U.S. Press Freedom Tracker, which maintains data on press freedom violations, reveals that this is only the fourth such trial in the United States in the last five years. The Tracker has no record of a journalist being sentenced to jail or probation for trespassing since it began documenting the arrests of journalists in 2017.
 
Concerned about the chilling effect such prosecutions have on a free press, Protect The 1st joined with a coalition of civil liberties organizations, in a letter organized by the Freedom of the Press Foundation, to protest these prosecutions to the Asheville city attorney, the police chief, and the Buncombe County district attorney. The letter states that “a government interested in transparency should not want to set a precedent that journalists cannot cover newsworthy events, in plain sight and on public land, at night.
 
“The news does not keep regular business hours and citizens are entitled to know what police are doing at any hour.”
 
The actions of local officials and statements by police, caught on body-cam footage, show no love lost for The Asheville Blade. It is easy to see why. The Blade advertises itself as “a leftist local news co-op focusing on hard-hitting journalism, in-depth investigation and sharp views from our city.” The Blade’s critical eye may make it the bête noir of city and law enforcement officials. But having a point of view doesn’t make this news outlet any less of a journalistic enterprise than the National Review or The Nation.
 
“The continued prosecution of the two Asheville Blade reporters sends a message that authorities can cherry-pick who qualifies as a journalist based on personal preference,” the letter concludes.
 
Protect The 1st will follow the case and report on the outcome of the appeal.

​The victory of Dominion Voting Systems in securing a $787.5 million settlement against Fox News over its false claims about the election demonstrates that even high-profile plaintiffs can prevail under today’s libel law, despite the higher bar a “public figure” must clear to win.
 
There has been some concern over whether the distinction between public and private figures has been so blurred by the courts that the prevailing NYT v. Sullivan standard may reach too far beyond its original application, making it too difficult for severely libeled private parties to obtain redress. But Dominion certainly qualified as the corporate equivalent of a “public figure.” And yet it managed, in the court of public opinion at least, to clear that high bar showing “actual malice” on the part of the defendant, Fox News.
 
Tuesday’s settlement – even though it was not a verdict – shows that it is still possible to win under Sullivan. What about the impact of this settlement on a free press? Will this lawsuit have a chilling effect? Probably not. The statement put out by Fox acknowledged the facts of the case, and those facts were egregious.
 
Overall, the outcome appears to be the functioning of a legal principle that worked as intended.

​We were relieved to hear Gov. Ron DeSantis repudiate the bill introduced in the Florida legislature that would have required bloggers who write about state-elected officials to register with the state government. The bill, which the American Civil Liberties Union says is “un-American to its core,” will not enjoy the governor’s support or signature. What the news giveth with one hand, however, it taketh with the other.
 
The Federal Trade Commission is now demanding that, in the wake of Twitter’s release of data about government coordination with its content management, the company must now “identify all journalists” granted access to company records, including the “nature of access granted each person.” FTC also asked if Twitter had conducted background checks on the journalists, among other things. The Wall Street Journal observed: “So here we have a federal agency demanding that a private company disclose its interactions with a free press, including how much it snooped on those reporters. None of this is the business of the government.”
 
It certainly isn’t the business of the Federal Trade Commission, any more than a blogger in Florida should have to comply with a Republican state senator’s proposal that former House Speaker Newt Gingrich called “insane.”
 
First Amendment, folks. Not that hard.

​Last year, Attorney General Merrick Garland announced an investigation into whether the Phoenix Police Department “engages in a pattern or practice of violations of the Constitution or federal law.”
 
As if to say, “I resemble that remark,” a Phoenix police officer was recently revealed by local TV news as having handcuffed a Wall Street Journal reporter doing man-on-the-street interviews with customers in front of a bank. “No journalist should ever be detained simply for exercising their First Amendment rights,” The Journal reacted to this event in a public statement.
 
The reporter, Dion Rabouin, was approached by bank executives but was not asked to leave the premises. When confronted by a Phoenix Police officer, Rabouin offered to leave – which was appropriate, given that he was on private property. But Rabouin was handcuffed nevertheless. No less important, a bystander who recorded the incident on a video phone was ordered to stop by the police officer.
 
“You wanna get arrested as well?” the police officer asked.
 
There are several important takeaways from this incident. First, the officer had no authority to tell the bystander to quit filming.
 
Last summer, we reported on Arizona’s space-squeezer law on citizens’ right to record the police. The law was an Arizona statute that allowed police to charge citizens who record them within eight feet, or who don’t stop recording when told to do so by an officer, with a misdemeanor. News organizations protested that this prohibition would easily dragoon protestors and news photographers on the move in an active protest.
 
But later in the year, a federal judge blocked the law, and the Arizona legislature declined to defend it. The arrest of the reporter that was recorded by the bystander demonstrates the need to respect citizens’ right to record. 
 
Second, this incident is Exhibit A in a pattern identified by the Reporters Committee for Freedom of the Press that there is an “alarming number of incidents we’ve seen over the last several years where police have detained, arrested, or assaulted journalists who were doing their jobs.” Witness the treatment of local Laredo, Texas, news blogger Priscilla Villarreal (aka “La Gordiloca”), who was arrested and humiliated in a police station for “misuse of official information.” Villarreal did beat the rap in court, but she did not beat the ride, enduring jeers and insults as she went through the booking process.
 
The Freedom of the Press Association recently reported that two North Carolina reporters who were filming an eviction of people from a homeless encampment were arrested after police instructed the crowd to disperse. Police seized one of the reporters’ phone, even though she identified herself as a reporter.
 
“Regardless of the outcome, the fact that these charges were even filed, let alone brought to trial, is an affront to press freedoms, and everyone involved should be ashamed,” wrote Seth Stern of the Freedom of the Press Association. “The First Amendment requires the government to let reporters gather news firsthand – not rely on self-serving spin from official sources. Courts tolerate restrictions on reporters’ access to public land only in exceptional circumstances, like serious public safety risks, and then restrictions must be narrow enough to avoid unduly interfering with newsgathering.”
 
In the DOJ’s Arizona investigation, the department says it is interested in investigating the Phoenix PD for violating “conduct protected by the First Amendment.” The Phoenix New Times – a long-time critic and bête noir of the local police – reports that DOJ may be interested in exploring overly aggressive use of rubber bullets and tear-gas against protestors, as well as the alleged targeting of activists for arrest and smearing them as gang members.
 
These concerns should lead Congress to renew and pass the PRESS Act, which would bar prosecutors, except in exigent circumstances, from requiring the revelation of the notes and sources of journalists in court – as 49 states already do. While this law curbs the actions of prosecutors, not police, and does so in court, not on the streets, the impulse of authorities to suppress the press is the same. So is the need to protect one of the most sacred guarantees of the First Amendment: freedom of the press.

​The freedom of the press is a First Amendment right that protects the ability of every American to know what our government is doing in our name. Reporters expose much of what the powerful in government and in corporations would rather keep quiet, and in doing so, journalists face a variety of threats in the performance of their jobs:  harassment, assault, improper legal action, and even death threats.
 
The Freedom of the Press Foundation has been monitoring and logging these dangers for several years now. They provide hard data on their U.S. Press Freedom Tracker, a database of incidents involving journalists in the United States. It is an indispensable tool for anyone who wants to preserve, protect, and enhance civil liberties by protecting a free and unencumbered press.
 
The U.S. Press Freedom Tracker tracks the arrests of journalists, the seizure of their equipment, assaults, and interrogations at the U.S. border. It also tracks legal actions, such as subpoenas and prior restraint orders. The database extends back to 2017, grouping its data by well-defined categories. Altogether, the database offers a comprehensive understanding of the threats to press freedom at a glance.
 
For example, one can see the explosion in assault incidents that coincided with the protests and riots of the summer of 2020. The tracker data are complemented by up-to-date reporting on these incidents.
 
Among the events it tracks and reports on are legal actions that threaten to intimidate reporting. In October, for example, Ohio’s Scioto Valley Guardian Editor-in-Chief Derek Myers was charged with felony wiretapping for publishing a recording of witness testimony from an ongoing trial in Ohio.
 
After judicial back-and-forth on whether to bar recordings of testimony in a murder trial, someone did just that. Myers was out of the country when he was provided a secret recording of the testimony taken by someone in the courtroom. Myers later published condensed portions of that recording.
 
Judge Anthony Moraleja responded by issuing a search warrant for the Guardian equipment. A laptop was seized, along with Myers’ cellphone. Myers was then charged with interception of wire, electronic, or oral communications. Myers’ attorneys pointed to the Supreme Court case Bartnicki v. Vopper, which ruled that the media cannot be held liable for publishing information that was obtained illegally by a source.
 
All this information was logged and reported by the U.S. Press Freedom Tracker, just one example of the rich resources civil liberties advocates can find here.

​Protect The 1st today joined with almost 40 other civil liberties and news organizations, led by the Freedom of the Press Foundation, in a letter urging Senate Majority Leader Chuck Schumer to include the PRESS Act in any year-end omnibus spending bill.
 
The PRESS Act, which passed the House in September, would provide a federal shield law protecting journalists from surveillance or compelled disclosure of source materials, except in emergency situations.
 
Other signers include the American Civil Liberties Union, the Center for Democracy & Technology, the Electronic Frontier Foundation, The Knight First Amendment Institute at Columbia University, PEN America, and the Project for Privacy and Surveillance Accountability.
 
Read the whole letter here.

​“The First Amendment bars the government from deciding for us what is true or false, online or anywhere,” the ACLU recently tweeted. “Our government can’t use private pressure to get around our constitutional rights.”
 
The ACLU responded to a report from Ken Klippenstein and Lee Fang of The Intercept news organization that the federal government works in secret to suggest content that social media organizations should suppress. The Intercept claims that years of internal DHS memos, emails, and documents, as well as a confidential source within the FBI, reveal the extent to which the government works secretly with social media executives in squashing content.
 
After a few days of cool appraisal of this story, we have to say we have more questions than answers. It is fair to note that The Intercept has had its share of journalistic controversies with questions raised regarding the validity of its reporting. It also appears that this report is significantly sourced on a lawsuit filed by the Missouri Attorney General, a Republican candidate for the U.S. Senate. We’ve also sounded out experts in this space who speculate that much of the content government is flagging is probably illegal content, such as Child Sexual Abuse Materials.
 
There is also reason for the government to track and report to websites state-sponsored propaganda, malicious disinformation, or use of a platform by individuals or groups that may be planning violent acts. If Russian hackers promote a fiction about Ukrainians committing atrocities with U.S. weapons – or if a geofenced alert is posted that due to the threat of inclement weather, an election has been postponed – there is good reason for officials to act.
 
The government is in possession of information derived from its domestic or foreign information-gathering that websites don't have, and the timely provision of that information to websites could be helpful in removing content that poses a threat to public safety, endangers children, or is otherwise inappropriate for social media sharing. It would certainly be interesting to know whether the social media companies find the government’s information-sharing efforts to be helpful or whether they feel pressured.
 
The undeniable problem here is the secret nature of this program. Why did we have to find out about it from an investigative report? The insidious potential of this program is that we will never know when information has been suppressed, much less if the reason for the government’s concern was valid.
 
The Intercept reports that the meeting minutes appended to Missouri Attorney General Eric Schmitt’s lawsuit includes discussions that have “ranged from the scale and scope of government intervention in online discourse to the mechanics of streamlining takedown requests for false or intentionally misleading information.”
 
In a meeting in March, one FBI official reportedly told senior executives from Twitter and JPMorgan Chase “we need a media infrastructure that is held accountable.” Does she mean a media secretly accountable to the government? Klippenstein and Fang report a formalized process for government officials to directly flag content on Facebook or Instagram and request that it be suppressed. The Intercept included the link to Facebook’s “content request system” that visitors with law enforcement or government email addresses can access.
 
The Intercept reports that the purpose of this program is to remove misinformation (false information spread unintentionally), disinformation (false information spread intentionally), and malinformation (factual information shared, typically out of context, with harmful intent). According to The Intercept, the department plans to target “inaccurate information” on a wide range of topics, including “the origins of the COVID-19 pandemic and the efficacy of COVID-19 vaccines, racial justice, U.S. withdrawal from Afghanistan, and the nature of U.S. support to Ukraine.”
 
The Intercept also reports that “disinformation” is not clearly defined in these government documents. Such a secret government program may include information gathered from activities that violate the Fourth Amendment prohibition on accessing personal information without a warrant. It would also be, to amplify the spirited words of the ACLU, a Mack Truck-sized flattening of the First Amendment.
 
One cannot ignore the potential that the government is doing more than helpfully sharing information with websites along with a suggestion that it be taken down. Is the information-sharing accompanied by pressure exerted by the government on the website? From the information now available, we simply don't know.
 
Bottom line: if these allegations are true, the U.S. government in some cases may be secretly determining what is and what is not truth, and on that basis may be quietly working with large social media companies behind the scenes to effect the removal of content. So, the possible origin of COVID-19 in a Chinese laboratory was deemed suppressible, until U.S. intelligence agencies reversed course and determined that a man-made origin of the virus is, in fact, a possibility. And the U.S. withdrawal from Afghanistan? Is our government suppressing content that suggests that it was somehow a less-than-stellar example of American power in action?
 
If these allegations are true, Jonathan Turley, George Washington University professor of law, is correct in calling this “censorship by surrogate.”
 
This program, which Klippenstein and Fang report is becoming ever more central to the mission of DHS and other agencies, is not without its wins. “A 2021 report by the Election Integrity Partnership at Stanford University found that of nearly 4,800 flagged items, technology platforms took action on 35 percent – either removing, labeling, or soft-blocking speech, meaning the users were only able to view content after bypassing a warning screen.” On the other hand, the Stanford research shows that in 65 percent of the cases websites exercised independent judgment to maintain the content unmoderated notwithstanding the government's suggestion.
 
After mulling this over for a few days, we propose the following:
 

• Congressional hearings into the nature of these programs and what kinds of content has been flagged. It would be helpful if the likely new Republican majority makes this a deep dive into all the parameters of this government program, one that Democrats should be invited to join.

 

• Congressional hearings should elicit detailed answers from social media executives about how they respond to government takedown requests. And do these companies, most of which have large government contracts, feel pressure when offered “suggestions” by the government or do they believe that the government program is helpful to their content moderation efforts?

 

• If the hearings validate the story, we propose that when government flags content, it should be publicly labeled with a stated reason why it is being flagged. Social media companies can then remove or flag that information in response to a publicly posted request. And the decision to flag a post should be contestable by an identifiable person.

 
There is no reason why the government cannot stand behind its finding that a given post is the product of, say, Russian or Chinese disinformation, or a call to violence, or some other explicit danger to public safety. But we need to know if the most powerful media in existence is subject to editorial influence from the secret preferences of bureaucrats and politicians. If so, this secret content moderation must end immediately or be radically overhauled.

​A recent Los Angeles Times editorial recounted how The Baltimore Sun won a Pulitzer Prize this year for unearthing a scandal that forced the resignation of Baltimore’s mayor. The editorial also told of The Boston Globe’s Pulitzer finalist series on how that city’s public schools fail to help even its best students succeed. And yet, The Times revealed, dogged shoe-leather reporting has not been enough to stem the tide of pay cuts, layoffs and furloughs with these and other newspapers. Across the nation, newsroom employment dropped 23 percent from 2008 to 2018.
 
What to do about the disintegration of local journalism in the face of the digital dominance of Google, Facebook, and Twitter, and the loss of classified advertisement to digital platforms?
 
The Times recommends federal and state support, stating this could be done in way that wouldn’t compromise the independence of local news. We respectfully disagree. Taking government money would create the appearance of being in the bag for the powers that be, whether that is true or not.
 
A better solution is emerging – of all places – in Washington, D.C. The full Senate will soon consider a bill sponsored by Sen. Amy Klobuchar (D-MN) that recently moved out of the Senate Judiciary Committee with strong bipartisan support from Sens. John Kennedy (R-LA) and Ted Cruz (R-TX). The Journalism Competition Preservation Act would grant news organizations with fewer than 1,500 full-time employees and non-network news broadcasters a narrow exemption from antitrust law to collectively negotiate payment for their content.
 
On the other side of the table would be companies that have at least 50 million U.S.-based users or subscribers or market cap greater than $550 billion. Translation – Google, Facebook, and Twitter.
 
Sen. Cruz had blown up an earlier version of this bill, which secured an agreement from Sen. Klobuchar that the bill would not extend antitrust protection to discussions of content moderation and censorship. That won him over and launched the bill with Republican support.
 
The bill as it exists now makes great sense. One reason local journalism is ailing is that Big Social Media has been displaying the fruits of local investigative reporting and writing for free. Journalists should be allowed to ask these companies to pony up for the use of their content.
 
That is one way to create a revenue stream for local journalism that won’t make the news dependent on handouts from government or grants from people and foundations with agendas.
 
“The Journalism Competition and Preservation Act is a needed correction to the free use of local news by digital giants,” said Rick Boucher, former U.S. Representative from Virginia, and Protect The 1st Senior Policy Advisor. “We wholeheartedly endorse it to protect the role of local journalists in exploring local issues and holding government accountable.”

​The U.S. House of Representatives passed the Protect Reporters from Exploitative State Spying (PRESS) Act with unanimous, bipartisan support today.
 
This bill, long supported by Protect The 1st and civil liberties sister organizations, would protect journalists and their sources by granting a privilege to protect confidential news sources in federal legal proceedings. Former Rep. Rick Boucher (D-VA), PT1st Senior Policy Advisor and the original author of an earlier version of this bill, said:
 
“Kudos to Rep. Jamie Raskin for shepherding this bill through the House in such a busy season. The PRESS Act passed unanimously today because courts continue to hold journalists in contempt and even jail them for refusing to reveal their confidential sources. The House today made a bold statement that this is not acceptable. I am heartened to see such a strong, bipartisan stand for a free and unintimidated press.”
 
PT1st general counsel Gene Schaerr, said:
 
“Today’s approval reflects the common sense behind this bill. Passage of this bill with unanimous, bipartisan support is a reaffirmation of the First Amendment’s guarantee of protection for a free press. If such a law works well for the vast majority of states, there is no excuse for the federal government to be so far behind the times.”
 
Former Rep. Bob Goodlatte who served as Chairman of the House Judiciary Committee, and now as PT1st Senior Policy Advisor, said:
 
“When a bill passes so easily after being praised by two of my former colleagues, House Judiciary Committee Chairman Jerry Nadler and Ranking Member Jim Jordan, that tells you something about the need for this bill to become law.
 
“The question now is will the U.S. Senate respond to the enthusiastic, bipartisan support displayed by the House? This bill has been sponsored in the past by now-Senate Majority Leader Chuck Schumer and Sen. Lindsey Graham. Enacting this bill into law would be a positive message that every senator can take home.”

When a federal district court upholds the First Amendment rights of a person or organization, can it enforce those rights in the future? The answer by The Protect the First Foundation before the U.S. Court of Appeals for the 11th Circuit is a resounding “yes.”
 
The Hillsborough Area Regional Transit Authority (HART) of Tampa runs ads on its vehicles and bus shelters but prohibits ads that “promote a religious faith or religious organization.” When Young Israel of Tampa, an Orthodox synagogue, tried to place an ad for its “Chanukah on Ice” event, HART rejected those ads under its no-religion policy.
 
A district court came down on the side of Young Israel on First Amendment grounds and issued a permanent order or injunction forbidding HART from “rejecting any advertisement on the ground that the advertisement primarily promotes a religious faith or religious organization.” HART appealed, arguing that the district court’s injunction was an abuse of its powers and that HART’s advertising policy was constitutional.
 
The PT1st Foundation counter, filed Wednesday evening, demonstrates:
 
“First Amendment rights are fundamental rights essential to every other form of freedom. As a result, First Amendment rights warrant special protection. Because courts cannot enjoin conduct and do not ‘strike down’ unconstitutional laws, a court cannot adequately protect First Amendment interests without including prohibitions against future illegal conduct in its injunction.
 
“Without such preventative relief, governments would be free to repeat the same constitutional violation in the future. Any resolution of this case that fails to prevent future harm does not adequately vindicate the First Amendment.”

PT1st believes remedies to violations of the First Amendment should be as enduring as our right to free speech.