Under the new administration of President Joseph R. Biden, the U.S. Department of Justice has strengthened internal guidelines protecting journalists from having their records seized in federal investigations, but, at the same time, has been criticized by press freedom advocates for pursuing the prosecution of Julian Assange in connection with charges for the publication of classified government information.
In addition, the U.S. Supreme Court has continued to provide live audio of oral arguments, a welcome practice it adopted during the pandemic. However, two Supreme Court justices have called for revisiting a landmark First Amendment decision that provides critical protections for the press from libel suits by public officials. At the same time, we have continued to see numerous defamation suits against the news media. And journalists have continued to be arrested and attacked while covering protests, particularly at rallies against COVID-related regulations and racial justice protests.
According to the U.S. Press Freedom Tracker, 100 journalists from 54 news organizations have been physically attacked in 2021 so far. Many were assaulted while covering protests against COVID-19 vaccination requirements, mask mandates, and other pandemic-related restrictions. For example, on August 15, at least three journalists were punched, kicked, or pepper-sprayed at an anti-vaccine rally in Los Angeles—the latest in a string of similar incidents over the past few months. Journalists have also been targeted and assaulted by protestors at anti-vaccine rallies in Oregon, Florida, and Michigan.
For one week in mid-April, police officers punched, pepper-sprayed, and arrested numerous journalists during protests in Brooklyn Center, Minnesota, that erupted after a police officer killed Daunte Wright, a 20-year-old Black man, during a traffic stop. Although a Minnesota federal judge issued a restraining order blocking state police from arresting or using physical force against journalists simply for failing to disperse, the journalists reported that the police could not obey the order.
In July, the Justice Department began prosecuting some individuals who attacked journalists and destroyed their equipment during the rally that stormed the U.S. Capitol building on January 6.
Although the Biden administration has left behind the anti-press rhetoric of the Trump administration, some public officials have not. For example, in March, a judge on the influential U.S. Court of Appeals for the D.C. Circuit criticized the news media as biased and questioned the validity of the Supreme Court's landmark, decades-old ruling in New York Times v. Sullivan, 376 U.S. 254 (1964). Sullivan and subsequent decisions by the Supreme Court imposed First Amendment limits on state libel laws, requiring public officials and figures to prove that speech was made with "actual malice"—knowledge of falsity or reckless disregard for the truth. In addition, a study released in spring 2021 found an uptick in anti-press rhetoric at the Supreme Court over time. And in July, Supreme Court Justices Neil Gorsuch and Clarence Thomas issued dissents calling for Sullivan to be revisited.
At the same time, legal protections for journalists facing defamation and related lawsuits based on their reporting are as crucial as ever. In September, former President Donald Trump filed a $100 million lawsuit against The New York Times, three of its journalists, and his niece Mary Trump, claiming they plotted to obtain his tax records improperly—an investigation for which the reporters had won a Pulitzer Prize. Federal courts also allowed dubious libel claims against reporter Ryan Lizza (brought by U.S. Representative Devin Nunes) and CNN (brought by attorney Alan Dershowitz).
At the same time, however, states have continued to enact and strengthen laws protecting journalists and other speakers from meritless lawsuits aimed at silencing them—called anti-SLAPP laws, referring to the phenomenon of "strategic lawsuits against public participation." Washington state's law took effect in July. In addition, some federal courts have narrowed the reach of anti-SLAPP laws by holding that parts of them do not apply in federal court, while others have used their protections.
During the first year of the Biden administration, White House Press Secretary Jen Psaki has resumed regular press briefings. However, in September, White House press corps members filed a complaint with Psaki when only British reporters were called on to ask questions at a meeting between President Biden and British Prime Minister Boris Johnson. In addition, at the state level, Florida Governor Ron DeSantis barred all press except Fox News from covering his May signing of controversial election law, an act legal experts called unconstitutional.
Press access has sometimes been flagged during the pandemic in the courts. However, at the high-profile August trial of singer R. Kelly on racketeering and sex trafficking charges in New York federal court, the presiding judge rejected reporters' requests for courtroom access, citing COVID concerns. In addition, the U.S. Supreme Court has continued to broadcast live audio of oral arguments—a practice that began during the pandemic—but is limiting in-person access to the justices, court staff, and Supreme Court press corps, citing continued concerns over COVID.
The U.S. Press Freedom Tracker reported a total of 55 arrests or detainments of journalists while on the job during 2021 so far; 142 in 2020. These numbers represent a stark increase from prior years—there were nine arrests of journalists in 2019, for example. In most cases, prosecutors declined to bring charges against journalists arrested while covering protests, and in other cases, prosecutors pursued charges but dropped them months later. However, prosecutors have set a trial date for charges against Oregon-based journalist April Ehrlich, who was arrested in September 2020 while reporting on law enforcement efforts to evacuate a homeless encampment. And a North Carolina state judge jailed an editor overnight for contempt of court when his reporter unwittingly violated courtroom rules by using a tape recorder while covering a murder trial, prompting an outcry over what many saw as excessive punishment.
At the federal level, the potential prosecution by United States authorities of WikiLeaks founder Julian Assange continues to concern press freedom advocates. In 2019, the Trump administration obtained a federal grand jury indictment against Assange under the Espionage Act that included three charges based solely on the publication of government secrets online—the first time the federal government had secured an indictment on such a theory. This indictment set a chilling precedent for journalists who report on government affairs, as the Espionage Act contains no exceptions for disclosing newsworthy information to or by members of the press. The Justice Department under the Biden administration has continued to seek Assange's extradition from the United Kingdom to pursue his prosecution in the United States. A September report by Yahoo News revealed that officials in the Trump administration had debated kidnapping or killing Assange and labeling WikiLeaks and some high-profile journalists "information brokers" to make additional investigative tools available and potential prosecution.
In July, the Justice Department updated and significantly strengthened internal guidelines to bar prosecutors from seizing source information and records from journalists in federal investigations. The change followed alarming reports that the Justice Department under Presidents Trump and Biden had secretly held—or sought to seize—email and phone records from reporters at The New York Times, Washington Post, and CNN in connection with leak investigations. Press freedom advocates praised the new policy but have called on Congress to codify its protections, given that internal rules are subject to change by future administrations.