The past six months were marred by the murder of investigative journalist Jeff German in connection with his work, a tragic but rare occurrence in the country. Overall, on-the-job arrests and attacks on journalists are down this year from 2021 and 2020. As President Joseph R. Biden heads toward the halfway mark of his term in office, media organizations have also continued to see a decline in anti-press rhetoric. Nevertheless, the news media still faces many defamation lawsuits and difficulty obtaining timely access to public records. More states are enacting critical legal protections against meritless lawsuits to silence reporters, and federal legislators are also considering such measures.
On September 3, 2022, veteran investigative journalist Jeff German was stabbed to death outside his home; a local official he had reported stands accused of his murder. German, a reporter for the Las Vegas Review-Journal, had published a story detailing claims of workplace mismanagement and harassment involving the alleged killer, county official Robert Telles. Telles subsequently lost his reelection bid. Telles has been arrested and charged with German's murder and is being held without bail. The killing has raised the alarm among journalists and press-freedom advocates nationwide. German would be only the ninth U.S.-based journalist in the past three decades to be killed because of their work.
Thirty journalists were assaulted while on the job in 2022 to date. In 2021, 145 journalists were physically attacked. Although these statistics represent a decline from 2020, when 630 journalists suffered on-the-job attacks, they are much higher than in prior years. Some of these attacks occurred while journalists were covering protests, including protests of the U.S. Supreme Court's controversial ruling overturning the abortion-rights decision Roe v. Wade and against Puerto Rico's private electric company.
Courts oversee the criminal cases of those who harm journalists, including the supporters of former President Donald J. Trump who, on January 6, 2021, 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. The first January 6 rioter to be charged with attacking a news media member pleaded guilty in September 2022 to felony assault charges. He faces a possible prison sentence of around 33 to 41 months. Around ten other rioters have been charged with assaulting journalists or destroying their equipment.
The U.S. Press Freedom Tracker has reported 11 arrests or detainments of journalists on the job in 2022 so far, compared to 59 in 2021, 144 in 2020, and just nine in 2019. All 2022 arrests have occurred within the past six months, mostly at protests supporting reproductive rights following the Supreme Court's reversal of Roe v. Wade.
During Biden's presidency, anti-press rhetoric from the White House has faded. Still, politicians and candidates for office have continued to make concerning statements about the media, including those running for office in the 2022 midterm elections.
The U.S. Supreme Court declined to hear a case requiring it to revisit its 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 2021, two Justices criticized the news media and the Sullivan decision's protection.
In Court, media organizations face substantial lawsuits arising from their reporting. For example, in early October, Trump sued CNN for defamation, alleging the network had conducted a "smear campaign" against him and seeking $475 million in damages. Similar suits of his have been dismissed, but such litigation remains costly and time-consuming for media organizations to fight. CNN is also facing a long-running libel lawsuit from attorney Alan Dershowitz related to its coverage of Trump's first impeachment trial.
The continuing prevalence of libel lawsuits against the press illustrates the importance of 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 lawsuits aimed at silencing them. Thirty-two states and the District of Columbia currently have anti-SLAPP laws, including three that have recently strengthened older laws to cover a wider range of speech. Some federal courts have narrowed the reach of state anti-SLAPP laws by holding that parts do not apply in federal Court, while others have disagreed and applied their protections. In September 2022, federal anti-SLAPP legislation was introduced in Congress.
Under the Biden administration, journalists have had trouble obtaining access to the President and his top officials. Biden gave just 23 media interviews between January 2021 and April 2022, compared to 95 for Trump during the same period after he took office in January 2017 and 187 for Obama during the equivalent timeframe. In June 2022, around 70 journalists signed a letter to the White House press secretary calling for an end to a policy limiting press attendance at certain White House events.
In October 2022, the U.S. Supreme Court reopened its oral arguments to members of the public for the first time since it closed due to the COVID-19 pandemic in March 2020. The Court will continue to broadcast live audio of oral arguments, which began during the pandemic. In addition, legal news outlet Courthouse News Service has won numerous recent victories in lawsuits seeking timely access to newly filed civil complaints in state courts.
At the state and local level, the Philadelphia District Attorney expelled an independent journalist from a press conference, and the media was barred from attending meetings of the Tennessee courts and an Iowa school board. Likewise, journalists covering the tragic school shooting in Uvalde, Texas, were threatened with arrest, barred from government meetings, and harassed.
Access to public records continues to be a concern. 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 directive is generally pro-disclosure, open-government groups criticized it for merely encouraging, instead of requiring, reform. For example, in a case seeking access to clinical trial data, a federal appeals court rejected the government's attempt to withhold the information solely because it was confidential, finding that 2016 FOIA amendments required the government to show disclosure would also cause harm. In addition, a Washington State research center sued the Department of Homeland Security and Immigration and Customs Enforcement for failing to respond to more than a dozen FOIA requests over the past three years, including deleting requests from the system without explanation.
At the federal level, the potential prosecution by U.S. authorities of WikiLeaks founder Julian Assange continues to trouble press freedom advocates. Advocates have repeatedly called on the Biden administration to halt the extradition efforts due to fears that Assange's prosecution endangers press freedoms.
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 press members. Nevertheless, in December 2021, a U.K. court held that the U.S. government could proceed with extraditing Assange to pursue his prosecution stateside. The U.K. government approved his extradition in June 2022, and Assange filed an appeal in August.
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 primarily bar prosecutors from seizing source information and records from journalists in federal investigations. In May 2022, it came to light that the Justice Department had issued a secret subpoena for a Guardian reporter's phone records in February 2021. On September 19, 2022, the U.S. House of Representatives voted unanimously to pass a bill shielding journalists from being forced to reveal protected information, including confidential sources. The bill was then sent to the U.S. Senate, which must also pass the bill for the President to sign it into law.
CNN successfully quashed a subpoena seeking raw footage of an interview with a police officer about the January 6 insurrection. One newspaper was subpoenaed by a Georgia grand jury investigating Trump's potential criminal interference in the 2020 election and chose to comply but also published the requested audio recording online. And the Las Vegas Review-Journal is seeking to block police from searching the electronic devices of slain reporter Jeff German to protect confidential newsgathering and source information.
