United States

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Report to the Midyear Meeting 2023
April, 25-27
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On-the-job arrests and attacks on journalists are down so far this year from 2022 and 2021 levels, though the past six months were marred by the on-the-job killing of reporter Dylan Lyons, a tragic but thankfully rare occurrence in the United States.

As President Biden passes into the second half of his term in office, media organizations have continued to see a decline in anti-press rhetoric at the federal level. The news media still faces a large number of defamation lawsuits and difficulty obtaining timely access to public and court records. More states are enacting legal protections against meritless lawsuits aimed at silencing reporters, and federal legislators are also considering such measures, though elsewhere politicians seek to roll back those protections.

On February 22, 2023, local broadcast reporter Dylan Lyons was shot and killed while covering a shooting outside Orlando, Florida. Lyons, 24, was a reporter for Spectrum News 13. Lyons and Spectrum News photojournalist Jesse Walden were shot when the suspect in the first killing returned to the scene and opened fire. Walden was critically injured but survived. Authorities stated that it was unclear whether the shooter knew Lyons and Walden were journalists because they were not in a clearly marked news van. The shooter also killed a woman and her nine-year-old daughter nearby. He was charged with first-degree murder and awaits a hearing.

Lyons is the seventh journalist in the U.S. Press Freedom Tracker to be killed during or because of their reporting. The sixth was veteran investigative journalist Jeff German, who was stabbed to death outside his home on September 3, 2022. A local official he had reported on stands accused of his murder, and awaits trial. 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. The killing raised alarm among journalists and press-freedom advocates nationwide.

Six journalists, including Lyons and Walden, have been assaulted while on the job in 2023 to date. One was forced to the ground and arrested while covering a press conference given by the Ohio governor. The charges were later dismissed. In 2022, 40 journalists were physically attacked, compared with 145 in 2021. Although these statistics represent a decline from 2020, when 631 journalists suffered on-the-job attacks, they are much higher than in prior years.

Courts are overseeing 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, attacked, and had their equipment destroyed—with at least nine reports of physical assault, according to the U.S. Press Freedom Tracker. On February 2, 2023, a rioter who admitted to destroying thousands of dollars of journalists' equipment was sentenced to 32 months in prison.

During Biden's presidency, anti-press rhetoric coming from the White House has faded, but politicians and candidates for office have continued to make concerning statements about the media. Florida governor and Republican presidential candidate Ron DeSantis has repeatedly expressed antipathy toward the press and called for rolling back press freedoms, including through pending legislation that would make it easier to pursue defamation suits against the news media. Among other changes, the legislation would remove some of the speech protections created by the U.S. Supreme Court's landmark ruling in New York Times v. Sullivan, 376 U.S. 254 (1964), which imposed federal constitutional First Amendment limits on state libel laws but which some conservative judges and politicians have increasingly called for revisiting.

The continuing prevalence of libel lawsuits against the press —and the threats of legislation to make such lawsuits easier— illustrates the importance of so-called "anti-SLAPP" laws, referring to "strategic lawsuits against public participation." Anti-SLAPP 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 four states that recently strengthened older laws to protect a wider range of speech.

In court, media organizations continue to face libel lawsuits. For example, CNN recently defeated a long-running libel lawsuit from attorney Alan Dershowitz related to its coverage of Trump's first impeachment trial, though the court's opinion also extensively criticized the New York Times v. Sullivan case. Voting machine companies Dominion Voting Systems and Smartmatic are seeking to recover billions of dollars in damages in defamation cases against Fox News related to its coverage of President Trump's baseless claims that he had won the 2020 election.

Under the Biden administration, journalists have had trouble obtaining access to the president and his top officials. President Biden has held fewer press conferences than his predecessors, and often leaves without taking questions from reporters. He did not hold his first press conference for over two months after taking office, marking the longest period a new president had gone without holding a press conference in a century.

During the Covid-19 pandemic, courts nationwide moved to conducting virtual proceedings, often giving the public increased access. For example, the U.S. Supreme Court began broadcasting live audio of oral arguments during the pandemic and will continue to do so even as in-person arguments have resumed. As pandemic-related concerns fade, courts are continuing to use a mix of virtual and in-person proceedings. Two state legislatures, however, recently extended pandemic-related restrictions on what areas of statehouses journalists may access.

Legal news outlet Courthouse News Service has won a string of recent victories in lawsuits seeking timely access to newly filed civil complaints in state courts.

Access to public records continues to be a concern at the state and federal level. Recently, following two bank failures, Congress introduced legislation that would subject regional Federal Reserve banks to the Freedom of Information Act (FOIA), the core law governing access to federal agency records.

The U.S. Press Freedom Tracker reported two arrests or detainments of journalists on the job in 2023 so far, as compared to 15 in 2022, 59 in 2021, 145 in 2020, and just nine in 2019. The 2023 arrests were of journalists covering a press conference held by the Ohio governor and a council meeting of a Native American tribe.

American journalist Evan Gershkovich was recently arrested and jailed by Russian authorities on espionage charges widely seen as false, prompting international demands for his release.

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. Assange is fighting extradition in England's High Court and the European Court of Human Rights. Advocates, journalists, and legislators have repeatedly called on 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 new leak prosecutions under Biden's presidency to date, but has faced criticism for continuing cases filed during the Trump administration and declining to pardon defendants. News that classified documents had been found at Presidents Trump and Bidens' residences —though President Trump had many more such documents and may have obstructed efforts to locate the documents— also led to commentary about how the U.S. government overclassifies documents and treats high-level officials who leak classified documents far more leniently than lower-level whistleblowers.

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. In October 2022, the Justice Department formally codified the new rules, strengthening these important press protections.

Ohio journalist Derek Myers was arrested and charged with wiretapping after his outlet published leaked audio recordings of a murder trial, and his phone was seized, despite U.S. Supreme Court precedent holding that journalists cannot be held liable for publishing information that their sources obtained illegally. Additionally, three local journalists were subpoenaed to provide evidence in citizens' lawsuits involving people the journalists had interviewed, and a filmmaker was subpoenaed for footage of the January 6 riots. 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.

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