As U.S. President Joseph R. Biden enters his second year in office, media organizations have continued to see a decline in anti-press rhetoric, attacks, and arrests. At the same time, the news media still faces a high number of defamation lawsuits, in addition to subpoenas of journalists and a prior restraint blocking the publication of lawful, newsworthy information. At the state level, more states are enacting key legal protections against meritless lawsuits aimed at silencing reporters, yet restrictions on press access to legislative chambers and general anti-media sentiment persist.
According to the U.S. Press Freedom Tracker, 144 journalists from 57 news organizations were physically attacked while on the job in 2021. Although these statistics represent a decline from 2020, they are much higher than in prior years. Seven journalists from five organizations have been attacked in 2022 to date. A number of these attacks occurred while journalists were covering protests, including those related to COVID-19 vaccination requirements and controversial court cases.
Courts have, however, stepped in to prohibit and punish attacks and threats against journalists. In December 2021, a man was sentenced to three years in prison for threatening journalists, politicians, and others who had said President Trump lost the 2020 election. In February 2022, a federal judge approved a settlement barring Minnesota police and other authorities from using force or chemical agents against journalists, seizing journalists' equipment, threatening to arrest, or arresting journalists. The case stemmed from Minnesota police's attacks on and arrests of journalists during racial justice protests in 2020. Courts also continue to hear the criminal cases of the Trump supporters who, on January 6, 2022, stormed the U.S. Capitol building in a violent attempt to overturn the results of the 2020 presidential election. Journalists on the scene that day were threatened and attacked —with at least nine reports of physical assault, according to the U.S. Press Freedom Tracker. In the ensuing months, the U.S. Justice Department has prosecuted around ten individuals who attacked journalists and destroyed their equipment during the insurrection. At the same time, some of the individuals being prosecuted for their acts on January 6 have attempted to mount free-speech defenses themselves, though courts have so far rejected these efforts.
Over a year into the Biden presidency, anti-press rhetoric coming from the White House has faded, but state officials have continued to make concerning statements about the media. In October 2021, Missouri Governor Mike Parson accused a reporter of "hacking" for uncovering a publicly accessible security flaw in a state government website. Investigators found the journalist —who only reported on the flaw after alerting state officials and allowing them time to fix it—did nothing wrong, and prosecutors declined to file charges, though Governor Parson refused to apologize. In January 2022, a Tennessee state lawmaker introduced a resolution to "reprimand" the Associated Press for its reporting on racism in the U.S. military. He withdrew the bill in February.
In 2021, two U.S. Supreme Court Justices criticized the news media and questioned the validity of the Supreme Court's landmark, decades-old ruling in New York Times v. Sullivan, 376 U.S. 254 (1964), which imposed First Amendment limits on state libel laws. In addition, a study published earlier this year found an uptick in anti-press rhetoric at the Supreme Court over time. In her March 2022 confirmation hearings, U.S. Supreme Court nominee and current D.C. Circuit Judge Ketanji Brown Jackson affirmed her commitment to free-press principles, though a Reporters Committee analysis found she has ruled against publishers in libel suits. The Senate voted to confirm Judge Jackson on April 7, 2022. She is expected to be sworn in as an Associate Justice after late June, when the Court's current term ends and Justice Stephen Breyer retires.
In court, media organizations are facing an increasing number of lawsuits arising out of their reporting. The New York Times was placed under prior restraint for months, with a court order blocking it from publishing materials related to the controversial conservative group Project Veritas. The Times had published excerpts of memoranda written by a Project Veritas attorney in November 2021. Meanwhile, the Times was also facing an unrelated defamation suit from Project Veritas. The trial judge in the defamation case found that the memoranda were attorney-client privileged and issued an order preventing the Times from publishing, reporting on, or keeping copies of such documents. The Times quickly appealed. On February 10, 2022, the appeals court temporarily lifted the prior restraint while it decides the Times's appeal, which remains pending. This was the Times' first prior restraint since its 1971 publication of the Pentagon Papers. Prior restraints are especially disfavored under the First Amendment, as they punish lawful and newsworthy speech before it has occurred.
Also in February, the Times prevailed in a libel trial against former vice-presidential candidate Sarah Palin, though she is seeking a new trial. The long-running case racked up high legal bills for the Times and put it in front of a jury for the first time in decades, sparking concerns among First Amendment experts. Additionally, CNN obtained the dismissal of a libel suit by Project Veritas, and Yahoo! News's parent company won an appeal in a defamation suit by former Trump aide Carter Page.
The continuing prevalence of libel lawsuits against the press illustrates the importance of states' so-called "anti-SLAPP" laws, referring to "strategic lawsuits against public participation." Such laws enable journalists and other speakers to quickly obtain the dismissal of meritless, yet costly lawsuits aimed at silencing them. Thirty-one states and the District of Columbia currently have anti-SLAPP laws, and five states so far this year are considering enacting or improving anti-SLAPP laws. 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 disagreed and applied their protections.
During the first year of the Biden administration, journalists have had trouble obtaining access to the president and his top officials. President Biden had given just 22 media interviews by the end of 2021, as compared to President Trump's 92 and President Obama's 150 during the same time in their presidencies. At the state level, lawmakers in Utah, Iowa, and Kansas enacted policies limiting journalists' access to state legislative chambers, turning temporary COVID-related restrictions into permanent measures.
In the courts, press access is increasing as pandemic concerns decrease. A coalition of news outlets recently prevailed in their bid to obtain in-person access to the first trial of a defendant on charges related to the January 6 insurrection. The U.S. Supreme Court has continued to broadcast live audio of oral arguments —a practice that began during the pandemic— but is still limiting in-person access to the justices, court staff, and Supreme Court press corps due to COVID.
Access to public records continues to be a concern at the state and federal level. In March 2022, U.S. Attorney General Merrick Garland issued a memorandum setting forth guidance for agency compliance with the Freedom of Information Act (FOIA), the core law governing access to federal agency records. Although the memorandum is generally pro-disclosure, open-government groups criticized it for merely encouraging, instead of requiring, reform. A federal judge recently rejected the Food and Drug Administration's request to take up to 75 years to process scientists' FOIA request for COVID vaccine data, giving the agency a few months instead. Meanwhile, in Washington, D.C., a lawsuit filed in February 2022 contends that the city's police department kept a "watchlist" of reporters, lawyers, and activists whose records requests it would delay or deny in an effort to avoid embarrassment and scrutiny. And a Reporters Committee study on the FOIA decisions of recently confirmed U.S. Supreme Court nominee Judge Ketanji Brown Jackson found she has often ruled in agencies' favor and permitted them to withhold records.
The U.S. Press Freedom Tracker reported a total of 59 arrests or detainments of journalists on the job in 2021, as compared to 143 in 2020 and just nine in 2019. Most recently, three journalists were arrested while reporting from homeless encampments: two in North Carolina and one in California. Criminal charges are still pending against the North Carolina-based journalists.
At the federal level, the potential prosecution by U.S. authorities of WikiLeaks founder Julian Assange continues to trouble 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 the disclosure of newsworthy information to or by members of the press. In December 2021, a U.K. court held that the U.S. government could proceed with extraditing Assange in order to pursue his prosecution stateside. In March 2022, Assange lost his appeal of that ruling, bringing him one step closer to extradition. Advocacy groups have repeatedly urged the Biden administration to halt the extradition efforts due to fears that Assange's prosecution endangers press freedoms.
The U.S. Justice Department has not brought any leak prosecutions under Biden's presidency to date, and the known number of reporters facing subpoenas decreased last year. In July 2021, the Justice Department strengthened its internal guidelines to largely 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 seized —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 and the Department to codify its protections, given that internal rules are subject to change by future administrations.
Additionally, 2021 ended with several events raising concerns among press freedom advocates. In December 2021, freelance photojournalist Amy Harris sued the U.S. House committee investigating the January 6 insurrection to quash its subpoena of her phone records. That same month, a federal judge upheld a subpoena of podcast producers' records related to a U.S. Navy bribery scandal, leading the producers to release the materials publicly instead of only to the naval officers' attorneys. Also in December, reporting revealed that a secretive unit inside the U.S. Customs and Border Protection Agency had investigated up to 20 U.S. journalists.
