NJ court to journalist on publication of official’s address: Do you feel lucky, punk?
Laws that prohibit journalists from reporting truthful information about public officials are unconstitutional censorship. Redacted by opensource.com is licensed under CC BY-SA 2.0.
If the head of the police department in your town lived so far away that he couldn’t be bothered to attend city council meetings and other community events, you’d want to know about it, right?
That’s exactly what New Jersey journalist Charlie Kratovil thought when he used a public record to reveal that Anthony Caputo, the New Brunswick, New Jersey, police director and head of a powerful city board, actually lived more than two hours away, in Cape May.
As thanks, Kratovil got a cease-and-desist letter from Caputo, who has since retired, threatening him with civil fines and even criminal prosecution under a state statute known as Daniel’s Law that prohibits the publication of the home address or telephone number of certain public officials.
Now, a new decision by New Jersey’s court of appeals in a case brought by Kratovil over Daniel’s Law has set a concerning precedent that could embolden lawmakers in the state and elsewhere to take up the censor’s pen against journalism.
Kratovil, represented by the ACLU of New Jersey, argued that Daniel’s Law was unconstitutional as applied to his reporting. While he hadn’t yet published Caputo’s exact street address in his reporting, he argued that prohibiting him from doing so violated the First Amendment.
The lower court and court of appeals rejected Kratovil’s argument that applying Daniel’s Law to his reporting violates the First Amendment. The appeals court concluded that the government has a compelling interest in protecting public officials from threats that could occur if their addresses are revealed. It also said that publishing Caputo’s exact address isn’t in the public interest, because all that really matters is the fact that he lives in Cape May, which the city of New Brunswick and Caputo begrudgingly conceded Kratovil could publish.
Laws that restrict truthful reporting are a bad idea
Protecting public officials from safety threats is important. But the answer isn’t to restrict truthful reporting. Kratovil’s dispute with Caputo shows exactly why government secrecy laws are a bad idea.
When we give officials the power to tell journalists what they can and can’t print, even in the name of privacy, officials inevitably try to stop reporting that they find embarrassing or inconvenient. That’s precisely what happened in this case.
When Kratovil first reached out to Caputo to ask if he lived in New Brunswick, the police department responded that his place of residence couldn’t be released under Daniel’s Law. Caputo then sent his cease-and-desist letter after Kratovil, at a city council meeting, said the street name where Caputo lived in Cape May, not his exact address.
Using a broad interpretation of Daniel’s Law, Caputo tried to bully Kratovil from reporting that he lived too far away to regularly attend city meetings. Caputo and the city didn’t change their tune until they were sued and it became clear how bad it would look to argue that a reporter can’t even name the city where the director of police lives.
But other journalists might not have the resources to fight back like Kratovil did. New Jersey officials who want to kill a news story raising questions about where they live, questionable real estate deals, or potential conflicts of interest can use Daniel’s Law to threaten reporters with fines or even jail time every time they want a news story killed.
Government secrecy laws like Daniel’s Law open the door to government censorship, either in law or through official pressure.
Court gets it wrong on the First Amendment
These kinds of government secrecy laws are also unconstitutional, despite what the New Jersey appeals court held in Kratovil’s case.
Kratovil got Caputo’s address from a public record. The Supreme Court has specifically held that a reporter can’t be held criminally or civilly liable for publishing truthful information obtained from public records, even in the face of privacy concerns.
The appeals court tried to brush Supreme Court precedent aside by deciding that Caputo’s exact address isn’t a matter of public concern. But being allowed to report where an official lives in vague terms isn’t as powerful as being able to prove it with specific information from public records, especially in an age when people often try to discredit journalism they dislike by labeling it “fake news.”
The First Amendment also requires that Daniel’s Law doesn’t restrict more speech than necessary to serve its goal of protecting public officials. But Daniel’s Law prohibits publishing an official’s address in the newspaper or just to a neighbor and regardless of the actual risks. It also doesn’t consider any alternatives, like providing additional protection to officials who are threatened.
Finally, the court of appeals said that Kratovil was not prohibited by Daniel’s Law from reporting Caputo’s address, because he remained free to publish it and face punishment after the fact. This was, essentially, the legal equivalent of, do you feel lucky, punk?
But numerous courts — including the Supreme Court — have held that government officials who try to shut down speech by threatening sanctions are imposing a prior restraint. When Caputo — the head of the police department — sent a letter to Kratovil threatening him with civil and criminal prosecution for publishing his address, it was a prior restraint. No journalist would feel free to try their luck publishing the address in the face of such a threat.
Copycat laws could be next
Kratovil has vowed to appeal to the New Jersey Supreme Court. It’s essential that he does, not just to challenge the law in New Jersey, but to stop a wave of copycat laws from springing up around the country.
Lawmakers are clamoring to make information about themselves and their fellow government officials off limits to the public. Congress previously enacted a federal equivalent of Daniel’s Law that bans basic facts about judges from being reported online. Last summer, it tried to sneak an equivalent provision into national defense legislation that would have censored information about members of Congress. That attempt failed, thankfully.
States other than New Jersey are also considering laws similar to Daniel’s Law. Maryland, for example, is working on a bill to prohibit the personal information of judges from being published.
These bills are popular because people rightfully want government officials to be safe. But that safety can’t come at the expense of the public’s ability to oversee the people who govern or police them. If upheld, New Jersey’s Daniel’s Law may become a model for chilling journalism around the country. The New Jersey Supreme Court must strike it down.
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Felony charges against Austin journalist are authoritarian bullying
"The University of Texas at Austin" by nick.amoscato is licensed under CC BY 2.0.
FOR IMMEDIATE RELEASE:
Authorities should immediately drop all charges against Carlos Sanchez, the photojournalist arrested last week while covering a pro-Palestine protest at the University of Texas at Austin. Sanchez has reportedly been charged with assault on a peace officer, a second-degree felony.
“Violently arresting journalists and then charging them with felonies is unacceptable, authoritarian bullying,” said Freedom of the Press Foundation (FPF) Director of Advocacy Seth Stern. “It’s doubly bad when police were there to shut down free speech in the first place.”
Contrary to the police affidavit in support of the arrest, video of the incident does not show Sanchez intentionally hitting an officer with his camera, and there is no reason why a local television journalist, who was there to cover the protests, not participate in them, would strike an officer.
That’s likely why Sanchez was initially only hit with a trespassing charge (which was dropped) before officers tacked on the ridiculous assault charge.
“Even after law enforcement assaults of journalists covering protests in 2020 resulted in millions in settlement payments, many officers clearly haven’t learned their lesson,” Stern added.
“As even the U.S. Department of Justice has acknowledged, protests are newsworthy, and journalists need to be allowed to cover them and their aftermath, even when protesters are dispersed,” Stern said.
“It’s important to keep in mind that none of this would have happened if American universities weren’t inviting militarized police forces onto campuses to break up student protests,” he added. “The police response to the protests — against journalists and students alike — has been far more violent than the protests ever were.”
Authorities should drop the charges and apologize to Sanchez. Those involved in this needless assault on press freedom need to be held accountable.
http://freedom.press/news/felony-charges-against-austin-journalist-are-authoritarian-bullying/
SCOTUS needs to hold officials who ignore press freedom accountable
Citizen journalist Priscilla Villareal of Laredo, Texas was arrested in 2017 for asking public officials questions. She's asking the Supreme Court to hold authorities responsible for the outrageous ordeal. Lights On Laredo Police by Phil's 1stPix is licensed under CC BY-NC-ND 2.0.
We’ve often commented on the alarming increase in frivolous attempts by local prosecutors to criminalize routine acts of journalism. The trend escalated last year, but the 2017 arrest of Laredo, Texas, citizen journalist Priscilla Villarreal was an early harbinger.
Seven years later, lawyers from the Foundation for Individual Rights and Expression (FIRE) are hoping to take her case to the Supreme Court. It’s an opportunity for the justices to make clear to local authorities, from Kansas to Alabama, that they’ll be held accountable when they abuse their authority to retaliate against journalists and attack press freedom.
Villarreal was charged under an obscure Texas law making it a crime to ask government officials for nonpublic information for personal benefit. It does not appear that anyone has ever been successfully prosecuted under the law. Any prosecutor — and we’d hope any American — should recognize that it’s unconstitutional to arrest someone for doing nothing more than requesting information from the government.
A judge dismissed the case against Villarreal in 2018, rightly finding the law she was accused of violating unconstitutional. She sued, but the court determined that city officials were protected by qualified immunity. That legal doctrine shields government officials from lawsuits, even when they violate the Constitution, except when a court finds the illegality of their actions should have been obvious.
A panel of judges from the 5th U.S. Circuit Court of Appeals initially reversed that decision and ruled Villarreal’s lawsuit could proceed. But then the full court reversed again, agreeing that police are entitled to arrest journalists for asking questions with impunity as long as they can dust off some archaic law to justify their actions.
One of seven dissenting judges, James C. Ho, put it well: “In the upside-down world of qualified immunity, everyday citizens are demanded to know the law's every jot and tittle, but those charged with enforcing the law are only expected to know the ‘clearly established’ ones. Turns out, ignorance of the law is an excuse—for government officials.”
The decision was particularly outrageous because it reasoned that the existence of “official” channels for journalists to get some government information, like public records requests, made it reasonable for police and prosecutors to assume unofficial channels can be outlawed. The First Amendment protects journalists’ right to gather news through any lawful means — not just to file public records requests and hope for the best.
Citing transparency laws as a basis to criminalize newsgathering gets it entirely backward. As another dissenting judge, James E. Graves Jr., put it, “the government’s power to protect certain information,” through exceptions to public records laws, has nothing to do with “a person’s right to ask for it.”
Equally ridiculous was the 5th Circuit’s suggestion that officials had reason to believe Villareal had illegally “benefited” from the information she sought, since her reporting drove traffic to her Facebook posts. The press freedom clause of the First Amendment wouldn’t mean much if it permitted an exception for news outlets that make money.
We hope the Supreme Court accepts review of this case and makes clear that public officials are expected to have a basic understanding of the most fundamental First Amendment principles, like the right of journalists (or anyone) to ask questions.
This isn’t only a Laredo, Texas, problem — last year, police in Calumet City, Illinois, cited a journalist for asking too many questions. And last month, a Tampa fire chief called police on a journalist who requested public records (so much for those official channels).
The court needs to fix this mess, not only for Villarreal’s sake but for the sake of all journalists victimized by local authorities who think they’re above the Constitution.
http://freedom.press/news/scotus-needs-to-hold-officials-who-ignore-press-freedom-accountable/
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TikTok ban would weaken press freedom
Journalists have good reason to be skeptical of TikTok, but a government ban on the app could empower the government to censor or outlaw news outlets, too. Public domain image via Flickr.
On Wednesday, President Biden signed legislation that would force the Chinese-based owner of TikTok to sell the app or face a ban in the United States.
We’re not here to tell journalists — or anyone else — to use TikTok. (Though if you do, be sure to check out our security tips for newsrooms that use the app.) In fact, there’s plenty of reason to recommend against using the platform, from its mining of users’ highly personal data to its disturbing content. TikTok has admitted that employees have spied on reporters and cut back on its already minimal commitment to transparency.
Nevertheless, banning TikTok is wildly unconstitutional. Worse yet, it could set a precedent that empowers the government to censor or outlaw news outlets, too.
Congress and President Biden would apparently rather look tough on China than take a stand for free expression. But the First Amendment may still end up stopping the TikTok ban in court. Here are the five strongest arguments for why the law is unconstitutional.
1. The First Amendment forbids the government from banning speech it disagrees with, even if the government labels it foreign propaganda.
Lawmakers say that they’re justified in forcing a sale of TikTok because China could require its current owner to push pro-Chinese Communist Party propaganda. But even if there was evidence that TikTok was promoting Chinese propaganda (more on that later), this justification wouldn’t pass First Amendment muster.
As we and others have repeatedly pointed out, Americans have a First Amendment right to receive information, including from foreign governments. There’s good reason that the Supreme Court has protected that right: Allowing the government to forbid Americans from hearing whatever the U.S. deems “propaganda” would give our government the power to censor any foreign viewpoint it finds objectionable, such as op-eds by a foreigner.
Simply put, trying to stop Americans from being exposed to Chinese propaganda because you’re concerned they may be persuaded by it isn’t an acceptable reason to ban speech.
2. The government can’t get around the First Amendment by forcing divestment, rather than banning TikTok outright.
Some have argued that the TikTok law is on stronger First Amendment footing because it doesn’t outright ban TikTok — it merely forces it to be sold.
That’s wrong. TikTok’s content moderation decisions are editorial judgments that are protected by the First Amendment, just like a newspaper’s decisions about what stories to print. When the government tries to change those editorial decisions by forcing a change in who is making them — which is exactly what it’s said it wants in the case of TikTok — that implicates the First Amendment, even if the app isn’t banned.
Still not sure? Just look at how much Twitter changed when Elon Musk bought it and transformed it into X. Or imagine if a Republican president forced The Guardian to sell itself to an "approved buyer" because its editorial board is too left-leaning. Even if it’s not a ban, it’s still government interference with The Guardian’s speech.
3. Americans have a First Amendment right to speak using TikTok.
Americans don’t just have a First Amendment right to receive information through TikTok. They also have a First Amendment right to speak there. Millions of Americans use TikTok to express themselves, including journalists. Banning TikTok would act as a prior restraint on users, preventing them from speaking before they can even post.
The Supreme Court has held that prior restraints are forbidden in all but the most extraordinary circumstances. It’s impossible to imagine that most users’ posts would meet that standard. Banning TikTok would impose a prior restraint on users without regard to whether their speech, specifically, threatens national security (the claimed justification for the TikTok law) or presents any risk at all.
It’s true that TikTok users could post elsewhere. But the First Amendment forbids the government from banning an entire medium of expression without a very good reason.
This protection prevents the government from cutting people off from expressing themselves using the methods that they believe are most effective. Many people use TikTok because it provides them with something unique — whether it’s the large audience and particular demographics that use the app or the format of TikTok posts.
4. “National security” isn’t a magic wand that the government can waive to nullify the First Amendment.
On rare occasions, First Amendment rights can be overcome by a government interest that’s important enough. When laws target speech based on their viewpoint or content, they must be justified by a compelling government interest.
The TikTok ban law is both viewpoint- and content-based. The government has made clear that it wishes to change TikTok’s owner to one approved by the U.S. because it objects to the content of speech on the service and the viewpoints it believes TikTok is pushing on users.
To justify banning TikTok, the government claims that it threatens American national security by allowing the Chinese government to influence TikTok users. The problem with this argument is twofold. First, it’s basically just a rehash of the claim that the government can ban foreign propaganda, which it can’t. Second, the government hasn’t presented any evidence that TikTok harms national security.
The government has loudly and repeatedly proclaimed that China has the capability to use TikTok’s algorithmic amplification to promote pro-Chinese propaganda, to the detriment of American interests. But when it comes to actual evidence that the Chinese government is actually doing this, and that our security is at risk as a result, the record is scant.
The government often claims that speech could pose a national security threat, but that threat almost never materializes.
Does the government have any actual evidence this time that TikTok poses a threat? Unfortunately, the public isn’t allowed to know. In March, the Senate held a closed-door hearing where senators were reportedly briefed on the national security risks TikTok creates, but ordinary Americans remain in the dark about what was discussed at the briefing.
Public comments by senators, however, offer hints. And the evidence basically boils down to this: TikTok is collecting Americans’ data and has the ability to target and amplify pro-Chinese propaganda. This is already public information, and it doesn’t show a concrete threat.
5. There are less restrictive means to deal with TikTok’s problems.
Finally, the First Amendment often requires the government to show that speech-restrictive laws are narrowly tailored to prevent a particular harm.
Concerns about TikTok’s data collection and sharing with the Chinese government could be addressed in multiple ways that don’t restrict speech, from requiring TikTok to store data in the United States to actually enacting a real privacy law that would prohibit all social media companies from amassing troves of sensitive personal data on users.
Foreign propaganda can be addressed by counterspeech and reducing government secrecy, rather than banning speech.
Instead of trying to deal with TikTok’s very real issues in any of these ways, Congress has wasted time passing an unconstitutional ban. Courts will have ample reasons to strike down the TikTok law, and everyone who cares about the First Amendment and press freedom should hope that they do.
http://freedom.press/news/tiktok-ban-would-weaken-press-freedom/
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Accountability needed after charges dropped against AL journalists
Charges have finally been dropped against Atmore News journalist Don Fletcher and publisher Sherry Digmon, who were unlawfully arrested for reporting on an investigation of a school board's handling of COVID funds. Escambia County Sheriff's Office
Almost six months ago, the arrests of Alabama reporter Don Fletcher and newspaper publisher Sherry Digmon made national headlines. Last week, charges that Fletcher and Digmon broke the law by reporting on a grand jury subpoena were finally dismissed.
That’s good news. But answers and accountability are still needed. The case against Fletcher and Digmon — which rivaled the raid of the Marion County Record for the most egregious U.S. press freedom violation of 2023 — was frivolous from the start.
The grand jury secrecy law they were charged under was plainly inapplicable to journalists, as opposed to grand jurors and others with direct access to grand jury proceedings. Anyone who read the text — let alone an experienced attorney like Escambia County District Attorney Stephen Billy — could have figured that out.
And Billy certainly should have known that the First Amendment does not permit arresting journalists for reporting the news. Nor does it permit what happened next: the imposition of a prior restraint prohibiting Digmon and Fletcher from doing their jobs as a condition of being bailed out of their illegal imprisonment.
Just like in Marion, local journalists have spent the months after the incident shedding light on what led authorities to target the press. And just like the former police chief and mayor in Marion, it sure looks like Billy had a personal grudge that led him to abuse his authority.
When Billy recused himself from the case in February, he cited “both a legal and a personal conflict.” He didn’t specify the nature of the conflict, but Billy was a vocal supporter of a former superintendent of the local school district who Digmon, in her capacity as a member of the school board, voted against retaining.
It’s unclear why Billy was so interested in the superintendent’s employment but let’s assume he legitimately believed she was the best qualified person for the job. It’s fine for him to advocate for her in his capacity as a citizen, but it’s another thing altogether to use his perch as district attorney to micromanage the board’s affairs under the threat of prosecution.
He gave a speech before the vote on the superintendent’s retention implying that letting her go would violate board members’ oaths of office, because he thought retaining her was in the district’s best interests. The threat was hardly veiled when he reportedly commented at the meeting that “I don’t control much, but I do control the grand jury of Escambia County.” If it wasn’t clear what he meant then, it certainly is now.
The dangers are obvious when officials try to mandate that others share their opinions by claiming anyone who disagrees must be a malicious actor. That’s authoritarian stuff. So is how, after the vote, deputy sheriffs reportedly obtained search warrants and seized the cellphones of all four board members who voted against retention.
Billy even used the criminal justice system to seek Digmon’s impeachment for, in his opinion, ignoring “all the positive things” he superintendent had done and “refusing to publish articles which promoted the school system and the superintendent, which were written by a contract writer of the school system.” The impeachment charge has also reportedly been dismissed.
It would be bad enough if Billy had filed these charges in good faith. That level of ignorance of the Constitution is inexcusable for any elected official, especially a prosecutor. But the evidence makes a strong showing that he wasted taxpayer money, and made a mockery of the First Amendment, to settle personal scores.
Fletcher, finally free of the illegal prior restraint that barred him from commenting on the case, isn’t letting Billy’s antics get in his way. “It will take a lot more than this to keep me from trying to dig up stories, especially when I think the people of this county are getting taken for a ride," he said. He added that Billy “needs to be out of that office because he's shown that he will abuse his power," calling the allegations Billy brought to the grand jury a combination of “misinformation,” “half-truth,” and “just lies.”
He’s right. The case shows Billy is both unqualified and unfit to hold his position as a district attorney — or any public office, for that matter. The dismissal of the charges against Digmon and Fletcher shouldn’t be the end of this story. Real accountability is needed.
http://freedom.press/news/accountability-needed-after-charges-dropped-against-al-journalists/
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New York law to fund journalists’ jobs should be model for rest of US
New York is the first state to give local news outlets a tax credit for hiring journalists to cover community news. The legislation should be a model for other states looking to fund news outlets facing increasingly dire financial prospects. Subway Newsstand; New York, NY by John Blandino is licensed under CC BY-NC-ND 2.0.
Journalists’ First Amendment rights seem to be constantly under threat in the United States these days, whether it’s police arresting or attacking reporters or government officials digging into their sources and editorial decisions. But one of the most alarming threats to freedom of the press today has nothing to do with the First Amendment.
The abysmal financial state of the news media industry is just as worrying as violations of reporters’ legal rights. After all, freedom of the press only really matters if there are reporters left to use it. But mass layoffs of journalists and shuttering of news organizations have led some to ask whether journalism is headed toward an “extinction-level event.”
Thankfully, policymakers are waking up to this threat to press freedom. Some are even finding creative ways to help fund local news media. Lawmakers around the country should take note.
New York law could be a model for the country
Last week, New York became the first state to give news outlets a tax break for hiring or employing journalists, after a coalition of local news organizations championed new legislation. The financial support can’t come soon enough; between 2004 to 2019, 40% of New York newspapers were shuttered.
As part of the state budget, eligible news outlets in New York could receive up to $300,000 in refundable tax credits for employees’ salaries. The legislation also splits the available tax credits between larger media outlets and those with 100 employees or fewer, ensuring that smaller news outlets have a chance to benefit.
Some parts of the New York law will be fleshed out by later regulation. For example, regulators will have to decide whether digital-only news outlets focused on the state can qualify for the tax credit. Given the important role online news sources play in informing the public, regulators should allow them to qualify.
But a law that encourages news organizations to hire more reporters can only be a good thing for journalists and for those who rely on local reporting. As Steven Waldman, the president of Rebuild Local News, a coalition of journalism organizations that supported the New York legislation, said, “An employment credit places the incentives in the right place: hiring of local reporters.”
Other content-neutral ways to fund local journalism also hold promise
The tax credit idea isn’t new. Several states have introduced similar bills to the one that just passed in New York. The federal Community News and Small Business Support Act, introduced in this Congress, would not only give a payroll tax credit to local news outlets that employ reporters in their communities but also provide tax credits to small businesses that advertise in local media.
Other jurisdictions are also experimenting with additional ways to fund local news. Lawmakers in California and New Mexico have provided additional funding for fellowships run by journalism schools in their states. An executive order in Chicago directed the city to spend at least half of its advertising budget in community news outlets, modeled on a policy already in place in New York. In Washington, D.C., City Council members introduced a bill that would give residents a “voucher” they could donate to local news outlets of residents’ choice.
While the details of these laws or bills differ, one essential feature of all of them is that they’re content-neutral. In other words, they don’t allow the government to use funding to put a thumb on the scale of news coverage. That neutrality is necessary to protect the independence of local media. Community news serves an essential role as a watchdog of local government. It must be insulated from threats that funding provided by tax credits or other government-involved methods could be slashed or withdrawn as punishment for publishing news that powerful people dislike.
According to Northwestern’s Medill School of Journalism, one-third of the U.S. newspapers in operation in 2005 will be gone by the end of this year. The silencing of so many journalists is a press freedom emergency, and we need lawmakers to act now. The Community News and Small Business Support Act, for example, was introduced in July 2023 but hasn’t been advanced in the House since.
Thankfully, we have plenty of models for how governments at the state and local levels can help shore up funding for local news in ways that maintain journalistic independence. Other states must follow New York’s lead and help fund local news.
Editor’s note: Freedom of the Press Foundation (FPF) is based in New York and operates the U.S. Press Freedom Tracker as a news site. FPF is evaluating whether the Tracker meets eligibility requirements for the New York tax credit discussed in this post.
http://freedom.press/news/new-york-law-to-fund-journalists-jobs-should-be-model-for-rest-of-us/
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