In January, Joseph R. Biden became President, following the one-term presidency of Donald J. Trump. The first months of the Biden presidency have appeared to signal, in large part, a return to a pre-Trump dynamic between the administration and the press, seen most prominently through the return of regular White House press briefings and an absence of anti-press rhetoric from the administration.
Nevertheless, the Biden administration has thus far continued the Trump administration's efforts to extradite Julian Assange in order to pursue charges against him for, among other things, the act of publishing government secrets—a historic indictment that implicates the constitutional right of news outlets to do the same. And in a blow to press freedom globally, the Biden administration declined to sanction Saudi Crown Prince Mohammed bin Salman for his involvement in the murder of U.S. resident and Washington Post columnist Jamal Khashoggi.
Journalists have also continued to face the threat of arrest and assault while covering protests, as evidenced by a protest in Los Angeles in March, where at least fifteen journalists were arrested, and several reported being assaulted.
On January 6, 2021, supporters of then-President Trump stormed the U.S. Capitol building in a violent attempt to overturn the results of the 2020 presidential election. Journalists covering the insurrection were threatened and attacked—with at least nine reports of physical assault, according to the U.S. Press Freedom Tracker, while many more were threatened.
The words "Murder the Media" were carved into a door in the Capitol. Several journalists had equipment destroyed at the hands of insurrectionists, and a stolen camera cable was tied into a noose and hung from a tree. Similar threats and violence against the press occurred that same day elsewhere in the country, including in Portland, Oregon, and Charlotte, North Carolina.
At the end of February, the Biden administration chose not to directly sanction Crown Prince Mohammed bin Salman of Saudi Arabia for the 2018 murder of Washington Post columnist Jamal Khashoggi. While the Biden administration approved the release of a report concluding that Crown Prince Mohammed ordered Khashoggi's murder and ordered sanctions on lower-level Saudi officials, it stopped short of sanctioning the crown prince himself—a decision criticized by press freedom advocates in the United States and around the world.
Former President Trump continued his verbal attacks on the press, most often via Twitter, through the end of his term in office. In total, the U.S. Press Freedom Tracker tallied over 600 anti-press tweets during Trump's fourth and final year as president, the highest count of his term. Twitter permanently suspended his account on January 8, 2021, based on his support for and encouragement of violent acts, including the January 6, 2021 insurrection at the U.S. Capitol.
Twitter's decision to suspend Trump's account was criticized by some both in and outside the United States, including by foreign leaders German Chancellor Angela Merkel and Mexican President Andres Manuel Lopez Obrador. Within the American legal framework, however, the First Amendment does not prohibit a private company such as Twitter from making and enforcing decisions about what kind of speech to allow on its site.
In March 2021, a federal appellate judge on the influential D.C. Circuit Court of Appeals authored a dissent in a libel case in which he criticized the news media extensively, accusing major news outlets of political bias. The judge called for the U.S. Supreme Court's landmark 1964 First Amendment ruling in New York Times v. Sullivan to be overturned. That decision requires a public official or public figure plaintiff to prove that a defendant acted with "actual malice"—that is, knowledge of falsity or reckless disregard for the truth—in order to prevail in a defamation case.
In the first few months of the Biden administration, the White House Press Secretary has resumed regular press briefings, both on the Covid-19 pandemic and on other matters of national concern. After a historic, more than two-month delay, President Biden gave his first press conference on March 25, 2021.
At the state level, a significant positive decision on access to government proceedings during the Covid-19 pandemic came when a Minnesota trial court opted to allow live video streaming during the trial of Derek Chauvin, which began on March 29, 2021. Chauvin, a former Minneapolis police officer, is charged with the May 2020 murder of George Floyd that ignited nationwide protests over police treatment of Black Americans, and the trial (which is ongoing at the time of this report) is a matter of significant nationwide interest and concern.
Other state courts have been less willing to facilitate press access during the pandemic, however. In December 2020, a North Carolina judge barred members of the press from attending a hearing in the case of a white woman accused of assault for driving her car at two 12-year-old Black girls. When a newspaper editor attempted to deliver a letter from his attorney requesting a hearing to address whether the courtroom closure was proper, he was handcuffed and threatened with contempt of court. After an emergency appeal by the news outlets involved, and an amicus brief filed by the Reporters Committee for Freedom of the Press, the state court opened its proceedings to the public.
Threats and forced ejection have also been used against journalists covering the legislative branch. At a town hall meeting with U.S. Representative Marjorie Taylor Greene in Tennessee, two journalists covering the event were told upon their arrival that they could not ask questions or speak to anyone in attendance. When the journalists attempted to ask Representative Greene a question, they were told to leave under threat of arrest.
The U.S. Press Freedom Tracker reported a total of 133 arrests or detainments of journalists while on the job during 2020, most during the Black Lives Matter protests that swept across the nation during the summer. This number of arrests represents an enormous increase from prior years. While the pace has initially slowed in 2021, at least fifteen journalists were arrested or detained on March 25, 2021, while covering protests in Los Angeles.
In the vast majority of cases in 2020, prosecutors declined to bring charges against journalists who had been arrested while covering protests. However, in Iowa, prosecutors pursued criminal charges against Andrea Sahouri, a journalist for the Des Moines Register, who was arrested while covering a Black Lives Matter protest last summer and charged with failure to disperse and obstruction of official acts. Fortunately, the jury acquitted her in early March, but it is troubling that prosecutors pursued her case at all.
Another troubling potential prosecution is that of WikiLeaks founder Julian Assange. In 2019, the Trump administration obtained a federal grand jury indictment against Assange under the Espionage Act, which included three charges based only on the publication of government secrets online—the first time in history the federal government has secured an indictment on that theory. This indictment set a chilling precedent for journalists who report on government affairs, as the Espionage Act contains no exceptions for the disclosure of newsworthy information to or by members of the press. The Biden Justice Department stated in February 2021 that it will continue to seek Assange's extradition from the United Kingdom, indicating that it will continue to pursue his prosecution, should he be extradited to the United States.
The Espionage Act has also been used to prosecute whistleblowers for leaking classified information to journalists. Daniel Hale, a former Air Force intelligence analyst, was charged under the Act in May 2019 for sharing information about the military's drone warfare program with a journalist. He pleaded guilty to one count of violating the Espionage Act on March 31.