freedom of the press
Here’s Merrick Garland’s Orientation Memo for the Trump-Era Hangover on Press Freedom
When President Biden announced the nomination of Merrick Garland as the next attorney general, Biden criticized incendiary rhetoric against the press as contributing to the Jan. 6 assault on the U.S. Capitol. A new president—and new leadership at the Department of Justice—will mean turning a corner on a strenuous four years, in which the Justice Department was repeatedly drawn into then-President Trump’s attacks on journalists and First Amendment rights.
The most prominent of these cases are well known: During Trump’s time in office, the Justice Department moved to suspend White House press credentials, attempted to prevent the publication of a preelection book that was critical of Trump, and flexed the department’s antitrust muscle to try to block a major merger involving CNN.
But never fully appreciated was the fact that Trump’s Justice Department was litigating against the press in a wide range of cases during his administration. And these cases aren’t just disappearing on Garland’s first day in the job. Indeed, the incoming Garland team has inherited, and now must grapple with, several thorny questions at the intersection of the news media and the law.
While many readers might think that the highly visible indictment against Julian Assange for publishing government secrets is the most important of these holdover matters, it is only one of the hard cases that Garland will confront when he becomes attorney general. One of these—a quirky situation that would effectively make the Biden Justice Department Trump’s law firm in a private defamation case—places the new leadership in the surreal position of having to decide whether to continue to defend the former president’s use of sovereign immunity to jockey for advantage in his long-running libel wars.
Traditionally, Justice Department officials are reluctant to abandon cases and litigation positions from a prior administration. But there are decisions Garland can make immediately in pending cases and proactively as well—including, for instance, ordering an investigation into arrests and uses of force against journalists during the turmoil of the last year—that would help bolster newsgathering protections at a time when they are sorely needed. With a judicial record that shows a strong commitment to transparency and press rights, Garland may just be the attorney general the moment calls for.
The Nixon presidency, the last remotely comparable administration in terms of hostility and vindictiveness toward the press, witnessed three existential showdowns at the Supreme Court testing press rights. In the Pentagon Papers case, Nixon’s Justice Department failed to muzzle reporting in the New York Times and the Washington Post that was critical of the government’s Vietnam War strategy. In Branzburg v. Hayes, Nixon’s solicitor general urged the court to reject a First Amendment-based reporter’s privilege to protect confidential sources. And in Miami Herald v. Tornillo, decided just weeks before Nixon’s resignation, the court knocked down Florida’s “right of reply” statute. While the Justice Department did not participate in Tornillo, Nixon publicly embraced Florida’s effort to handcuff newsrooms—and the justices voted 9-0 against him.
The Trump years did not produce these kinds of Supreme Court cases. But the Trump Justice Department more than made up for it with a lower court press docket that kept growing. These cases were, by turns, both ordinary and extraordinary. Some of them—such as those that built on the recent trend in leak cases of prosecuting reporters’ sources as spies—reflect the unfortunate reality that certain norms governing the news media and its relationship to the government have eroded over time. Others, including the Assange prosecution, are truly anomalies in American legal history.
Then there are cases where the line is blurry, where some form of the case wouldn’t be that much of a surprise under recent administrations, but where the Trump Justice Department has taken an unusually maximalist position. The civil suit against former National Security Adviser John Bolton for allegedly disclosing classified information in his memoir probably fits here. The action against Bolton—which claimed he violated the terms of his security clearance—isn’t unprecedented. But the Trump Justice Department went further and sought a global ban on the sale of a book embarrassing to the president before an election. That was a big swing.
Even as the fears ease, this review of the Trump Justice Department’s record offers a sobering message for press rights going forward. The threats to legal protections for journalists predated Trump and they will postdate him as well. Prioritizing national security at the expense of confidential source relationships will continue to squeeze newsrooms. The expansion of media law has stalled at the Supreme Court, with no new cases in decades. Financial challenges industrywide mean fewer resources for the big First Amendment fights. While new precedents for the digital age could be around the corner, the arrival of a Biden team at the Justice Department does not mean a quick escape from the press rights challenges of the present.
Leak Cases and Gathering Evidence From Reporters
The Justice Department under President Trump prosecuted eight journalistic sources for leaking government secrets to the press. President Obama’s prosecutors charged ten. While these prosecutions amount to a significant uptick (the past two administrations pursued far more cases than all other administrations combined), the Trump administration’s approach was marked by more aggressive sentencing and it brought those eight cases in half the time.
That said, the impact of the leak cases on news organizations during the Obama years was substantial. In one case, then-Attorney General Eric Holder’s Justice Department secretly seized Associated Press phone records covering more than a hundred reporters. The same department also sought an FBI warrant for a reporter’s emails under the theory that the journalist was a “co-conspirator” who illegally conspired with a source by encouraging the source to provide information.
These controversies led Holder to toughen a set of decades-old internal guidelines limiting when and how prosecutors can obtain information from journalists. And despite concerns that Attorney General Jeff Sessions would walk them back, these reforms remained in place during the Trump administration. Importantly, Garland said he was “deeply committed” to the guidelines in response to a question from Sen. Amy Klobuchar during his confirmation hearing on Feb. 22. Garland additionally said he would “expect to re-up” those guidelines, though he shares our understanding that they weren’t rescinded or amended by the Trump Justice Department.
As it turned out, the Trump administration’s record on seeking evidence from the press wasn’t that different compared to previous presidencies. It didn’t issue any subpoenas attempting to compel reporters to identify confidential sources, as the Obama administration did with reporter James Risen. (The government won at the U.S. Court of Appeals for the Fourth Circuit but didn’t force Risen to reveal his source at trial.)
Trump’s Justice Department did, however, secretly demand the production of a reporter’s electronic communications records in a leak investigation that ultimately centered on James Wolfe—the former security director at the Senate Select Committee on Intelligence—who pleaded guilty in 2018 to making false statements to FBI agents. Further, the department may have violated the news media guidelines in that case—when reporter Ali Watkins, who was in a personal relationship with Wolfe, was questioned about her sources by Customs and Border Protection agent Jeffrey Rambo, as well as in a separate 2019 case in which FBI agents interrogated freelance journalist Bryan Carmody during the search of his home in San Francisco.
As Garland takes office as attorney general, he will inherit three leak cases, including the still-pending indictment of Edward Snowden. Given the trajectory of criminal leak prosecutions over the past decade, institutional pressures greeting the new leadership will tug the department toward the continued use of investigative tools to gather evidence from reporters.
But Garland’s judicial record contains a decision in which he took a strong stand in favor of newsgathering protections. First Amendment lawyers remember that case well: Fifteen years ago, in the Wen Ho Lee Privacy Act case, when a former Los Alamos scientist won the right to subpoena information from journalists, Garland dissented, citing the Pentagon Papers ruling and arguing that the law must “protect the press ‘so that it could bare the secrets of government and inform the people.’” Garland’s appointment as attorney general provides a real opportunity to push for even stronger protections under the guidelines at the Justice Department.
(Authors’ Note: The Reporters Committee for Freedom of the Press, where we work, has coordinated a dialogue between news outlets and the Justice Department over the implementation of the media subpoena guidelines and has also filed amicus briefs in many of the cases mentioned in this post.)
Much like in the leak cases, there hasn’t been much daylight between Trump and his predecessors when it comes to open records law. We continue to see the Justice Department (and government agencies across the board) fail to comply with basic requirements under the Freedom of Information Act (FOIA)—a stain on every administration’s record.
That said, Garland has authored several opinions supportive of access to government records under the FOIA and, indeed, pointed to two of those cases as among his important rulings in the questionnaire he completed when he was nominated to the Supreme Court in 2016. As part of his commitment to ensuring the Justice Department’s independence from partisan influence, Garland also pointed to policies that “read” the FOIA “generously” as an important check against political meddling during his confirmation hearing.
Fortunately, there are plenty of ways for the Justice Department to take up that call and make up lost ground, including improving slow response times, addressing the significant backlog of cases and stopping the overuse of exemptions to the FOIA.
Garland should also reverse course on one discrete open records issue. The Trump Justice Department resisted complying with several FOIA requests related to Jamal Khashoggi, the Saudi dissident journalist, who was brutally murdered in the Saudi consulate in Istanbul. President Biden, by contrast, has vowed to ensure accountability for Khashoggi’s killing. In late February, his administration released a declassified report from the Office of the Director of National Intelligence, which concludes that Crown Prince Mohammed bin Salman approved the operation to assassinate Khashoggi in Istanbul. As attorney general, Garland should act immediately to ensure that other Khashoggi records are released (particularly in a case brought by the Committee to Protect Journalists, which concerns the government’s “duty to warn” when it has indications of a threat to an individual’s physical safety).
Technology and Surveillance
Finally, the incoming leadership at the Justice Department will confront a number of cases and policy issues implicating technology and the press.
For instance, the Trump administration attempted to use emergency national security economic authorities to effectively shutter the Chinese-owned communications apps WeChat and TikTok from use within the United States. In cases that have since challenged those moves, government lawyers have taken an absolutist litigation position in their defense—arguing that “business-to-business” transactions can be regulated under these authorities without any First Amendment scrutiny. The government’s argument here could logically extend to the use of emergency economic powers to block a newspaper from contracting for the purchase of ink or newsprint and thus interfere with its publication. As of this writing, the government has sought to stay proceedings in the WeChat and TikTok cases, which may presage a rethinking by the Biden administration of the underlying executive orders.
Then there is the First Amendment challenge to President Trump’s blocking of followers on his personal Twitter account under the theory that, by using the account for official business, the president created a “public forum” in which he can’t exclude people because he perceives their tweets as critical.
Just prior to President Biden’s inauguration, the Justice Department filed a brief in its appeal of a loss at the U.S. Court of Appeals for the Second Circuit, urging the Supreme Court to order the Second Circuit to “vacate”—effectively void—its decision. The department is arguing that the change in presidents has mooted this specific case but that leaving the Second Circuit ruling on the books could, among other things, tie President Biden’s hands. It is conceivable that the change in Justice Department leadership could prompt the solicitor general’s office to amend its position, though it seems unlikely. (The Knight First Amendment Institute at Columbia University, which brought the case, agreed that the case is moot because of Twitter’s decision to permanently ban Trump from the platform but has asked the Supreme Court to preserve the Second Circuit’s opinion.)
The new Justice Department will also inherit policy debates, particularly those involving Fourth Amendment privacy rights and online content regulation. The Trump Justice Department’s positions on electronic surveillance authority, for instance, have been largely consistent with the Obama and Bush administrations. Further, both the Obama and Trump administrations argued aggressively for encryption “backdoors,” which would give law enforcement agencies access to secure communications with a warrant or other legal process. That’s unlikely to change.
Similarly, in a January 2020 interview with the New York Times, then President-elect Biden said that Section 230 of the Communications Decency Act should be “revoked, immediately,” noting his concern with what he believes is the inability or unwillingness of platforms to effectively combat false information online. Section 230 provides liability protections for online platforms that host third party content, like public comments on social media and news websites.
While it is unclear whether President Biden actually meant “revoke” the law in its entirety—most of the debate is around providing certain carve-outs or reforms—the pressure on both sides to amend the law, including pressure at the Justice Department, seems unlikely to abate. President Trump of course had been a ferocious critic of Section 230, and former Attorney General William Barr lobbied aggressively to limit 230 protections. The safe money would have a Garland Justice Department continuing some of that work.
Next, there are several cases where the Trump Justice Department ventured into undiscovered territory. The first category of such cases involves legal actions that are truly unprecedented, while the others are so wrapped up in President Trump’s attacks on the press that one wouldn’t expect to see them but for President Trump himself.
With respect to the first category, the clearest example is the Julian Assange spying prosecution. As noted above, recent administrations have expanded the use of federal spying laws, and especially the World War I-era Espionage Act, in attempts to criminalize the disclosure of national defense secrets to the press. Never before, however, has the Justice Department secured an indictment against an individual outside of government based on the mere act of publishing those secrets. But that is exactly what the Trump Justice Department succeeded in doing in the Assange case after the Obama team declined to indict.
It very much remains to be seen what will happen with the Assange case. In early January 2021, a British court denied an extradition request from the Justice Department, citing a high risk that Assange might kill himself in U.S. custody, but otherwise endorsing the government’s legal theories in the case, including its “pure publication” claims. And there will undoubtedly be some pressure to pursue the case, given that the government has long taken the position, though never in the direct prosecution of a reporter, that the act of disclosing secrets to the public, even by the press, is indeed covered by the Espionage Act. The Justice Department has vowed to continue to pursue extradition and appealed the lower court’s denial in February.
Voice of America
The Trump administration took novel and distressing steps to politicize Voice of America and other publicly funded broadcasters administered by the U.S. Agency for Global Media (USAGM).
In June 2020, the president’s nominee to run the USAGM—Michael Pack—took office and immediately began efforts to dismantle the editorial firewall that preserves the broadcasters’ independence from political interference. Pack purged senior leadership, denied wholesale the renewal of foreign journalists’ visas (forcing several to return to their home countries and face possible retaliation for their work), launched investigations by USAGM leadership into editorial decisions by the newsrooms, and rescinded a regulation preventing editorial interference by the CEO while expressly asserting his right to police “bias” at the broadcasters.
Among other blowback, Pack’s actions prompted a lawsuit by senior USAGM officials he suspended and a senior editor at Voice of America. The case presented the question of whether the First Amendment protects journalistic independence at the broadcasters, a question never before addressed by the courts. Chief Judge Beryl Howell, of the U.S. District Court for the District of Columbia, held that, in many instances, it does and that Congress intended to insulate journalists at the broadcasters from political influence.
The Justice Department has appealed the decision, but this is a case where the Justice Department should see that the practical and legal equities favor abandoning the appeal as moot, given that Pack resigned at President Biden’s request on Jan. 20. If the Justice Department agrees that the case is moot, Howell’s opinion will remain on the books; it would remain one of a number of cases in which overreach by the Trump administration led to improvements in the law.
Retaliation Against the Press Corps
In the second year of the Trump presidency, the White House went after one of his favorite targets, CNN correspondent Jim Acosta. After he tried to ask the president a follow-up question about the migrant “caravan” during a press conference, the White House suspended Acosta’s security badge (or “hard pass”), alleging, falsely, that he had “placed his hands” on an intern who tried to take his microphone. The next year, the White House again pulled a reporter’s hard pass—this time that of Playboy’s White House correspondent Brian Karem—after Karem got into a shouting match with former Trump aide Sebastian Gorka following a Rose Garden event.
Both Acosta and Karem sued successfully. In Karem’s case, the White House appealed its loss to the D.C. Circuit, prompting a strong opinion by Judge David Tatel affirming the district court and revisiting a case from the 1970s, Sherrill v. Knight, which prohibited the arbitrary denial of White House press credentials. Not only did Judge Tatel add weight to the holding in Sherrill, but his opinion also memorably rejected the government’s “sky is falling” argument that a contrary holding would render the White House helpless to address real misconduct by journalists. The White House would always be well within its authority, Tatel wrote, to remove true “rogue, mooning journalists.” The powerful decision in Karem echoes the lesson of the USAGM case: Executive overreach sometimes leads to improvements in the law.
President Trump’s retaliation against the press, including pulling Acosta’s credentials, prompted another defining lawsuit of the Trump era. In 2018, PEN America sued Trump, arguing that such conduct violated the First Amendment. In addition to citing the president’s rhetoric, PEN pointed to Acosta’s suspension, to threats to revoke security clearances, and to other regulatory moves targeting news outlets the president criticized. PEN sought a declaration by the court that Trump’s actions were unconstitutional and an injunction against Trump to force him to stop.
In March 2020, on the government’s motion to dismiss, Judge Lorna Schofield of the U.S. District Court for the Southern District of New York allowed the press pass and security clearance claims to proceed. Last month, with Biden now in office, PEN America and the government agreed to voluntarily dismiss the lawsuit, which will leave Schofield’s decision on the books and allow the Justice Department to avoid the uncomfortable bind of defending Trump’s attacks against the press while president.
The Schofield ruling is a partial victory for First Amendment interests. On the one hand, the court agreed that an advocacy organization has standing to seek a declaratory judgment that attacks from the president that chill speech by the media—or to the media—violate that organization’s First Amendment right to receive information. “Receipt-of-information” is a well-settled basis for standing, but applying it to presidential intimidation is a welcome outcome.
Schofield, however, upheld direct organizational standing only on that “chilling effect” theory, which may not be available in future cases, and rejected a “diversion of resources” theory, which would allow free speech organizations to sue on their own behalf if, for instance, novel moves by the government against press freedom forced them to reallocate resources in response.
She also, as a matter of law, denied PEN America’s request for injunctive relief, which took a big bite out of the case. The court wrote (with emphasis added): “Any injunction” concerning the president’s exercise of his authority over security clearances or press passes “implicates Defendant’s discretionary responsibilities, and is therefore improper.” (Under current law, injunctions against the president based on acts within executive discretion, versus those that are nondiscretionary or “ministerial,” are strongly disfavored.)
By contrast, when the district court at the merits stage in the Twitter blocking case declined to order injunctive relief, it explained that it expected declaratory relief to be sufficient. It also pointedly refused to rule out injunctive relief against the president for brazenly unconstitutional conduct. Indeed, the court in the Twitter case noted that were the president to violate the Constitution in the exercise of discretionary functions, they would no longer be discretionary: “No government official, after all, possesses the discretion to act unconstitutionally.”
Schofield unfortunately offered no such caveat. Further, the fact that her March 2020 decision predated some of the more egregious overreach by the Trump administration demonstrates why injunctive relief, as requested by PEN America, is essential against a rogue chief executive. The efforts to dismantle the firewall at the USAGM broadcasters occurred over the course of this past spring and summer, and the Justice Department’s suit to block the Bolton memoir took place in July. While Schofield’s holding on the receipt-of-information theory was helpful, the prospect of declaratory judgment in this case did not chasten the Trump administration’s worst impulses on press freedom.
Punishing News Organizations With Regulatory Actions
The PEN case also highlights another question for the new Justice Department team. In court, the Trump Justice Department aggressively fought efforts to ascertain whether certain administration actions were tainted by bias against the press.
As a candidate and later as president, Trump railed against the merger of AT&T and Time Warner, and surrogates expressly linked his opposition to the deal with the president’s animosity toward CNN, which is owned by Time Warner. Further reporting revealed that Trump told Gary Cohn, then the director of the National Economic Council, to pressure the Justice Department to sue to block the merger. When the Trump Justice Department did just that, AT&T sought discovery into its motive, which was denied by Judge Richard Leon of the federal court in Washington, D.C.
Although Leon ruled against the government on the merits of the merger challenge, the Reporters Committee filed a friend-of-the-court brief in the Justice Department’s unsuccessful appeal, noting that presidents of both parties had used antitrust enforcement to try to coerce more favorable news coverage, and arguing that, when First Amendment retaliation is at issue, a viable selective enforcement defense is a crucial protection for press rights.
Though the concern over politicized regulatory actions will wane with Trump’s departure, we urge the Biden administration to support concrete steps to prevent antitrust or other common regulatory tools (for instance, the securities laws, tax audits by the IRS, or oversight of the telecommunications industry) from being misused in this way. In their recent book “After Trump,” which was published by the Lawfare Institute, former White House counsel Bob Bauer and Harvard law professor Jack Goldsmith propose amending the Inspector General Act to empower inspectors general to investigate official acts that constitute a “reprisal against or an attempt to harass or intimidate” news media organizations or journalists.
Given the Justice Department’s resistance to permitting discovery into facts that might support selective enforcement defenses, the Bauer-Goldsmith proposal would be a welcome check against executive branch overreaching in any administration.
Private Defamation Suits Against and by Trump
Finally, there is advice columnist E. Jean Carroll’s defamation suit against Trump. In the lawsuit, Carrol alleges that Trump falsely called her a liar after she wrote that Trump raped her in a department store dressing room in the 1990s. That case also presents the incoming Justice Department with a singularly unpleasant quandary.
Carroll had sought a DNA sample from the president to test against genetic material found on the dress Carroll says she was wearing during the alleged rape. When President Trump’s personal lawyers failed to halt the proceeding on the grounds of presidential immunity, the White House asked the Justice Department to intercede, arguing that Trump was acting in his official capacity when he made the allegedly defamatory statements about Carroll, and that the appropriate defendant therefore was the United States itself. Had the Justice Department been successful in this maneuver, the trial court could have dismissed the case on sovereign immunity grounds.
In late October 2020, however, Judge Lewis Kaplan of the U.S. District Court for the Southern District of New York ruled against the Justice Department, finding that the president was not an “employee of the government” under the relevant statute and, even if he were, the statements he made “have no relationship to the official business of the United States.” The Trump Justice Department appealed that decision to the Second Circuit.
The Biden Justice Department will have to decide whether to maintain this appeal, one that is even weirder than the PEN America case because it would put the incoming Justice Department in the position of essentially serving as the outgoing president’s law firm in what is now a dispute between two private parties. Though it contradicts its prior position, the best course now would be for the Justice Department to drop the appeal, similar to its decision a few weeks ago to abandon a lawsuit to seize the proceeds of a book by Stephanie Winston Wolkoff, an unpaid adviser to former First Lady Melania Trump. (The Justice Department under President Trump had argued that Winston Wolkoff violated her “fiduciary duty” to the first lady and a nondisclosure agreement; now it says that dismissal is “in the best interests of the United States.”)
It is true that when federal employees commit torts in the course of their employment, the Justice Department will seek to substitute the U.S. government as the appropriate defendant under a law called the Westfall Act. But Carroll’s defamation claim is unusual because the Justice Department waited 10 months before acting and did so at the White House’s request, and because Trump’s statements—calling Carroll a liar and commenting unfavorably on her appearance—are so attenuated from official government business.
Moreover, even though this case is a private defamation suit against the former president, it goes to the core of the damage Trump tried to inflict on the First Amendment. The U.S. cannot permit a president to sue for libel and then hide behind sovereign immunity when he himself is sued.
Heading into the 2020 election, Trump’s campaign sued the New York Times, the Washington Post and CNN in connection with stories and op-eds concerning the campaign’s interactions with Russia. It later sued a Wisconsin broadcaster for airing an advertisement critical of the administration’s response to the coronavirus pandemic. None of these cases has been successful, but all raised the specter of more attempts to head off other critical coverage.
The Justice Department’s intervention in the Carroll case thus runs counter to the beating heart of Justice William Brennan’s opinion in New York Times v. Sullivan, the 1964 Supreme Court ruling that required public officials to meet a daunting standard when they sue for defamation. The underlying theory of Sullivan is that because government actors have strong legal protections from libel suits, the press must be similarly protected to keep elected officials accountable. Otherwise, those in power could use defamation law as a sword to pursue critics but then use their official positions as a shield when their critics come after them.
The “central meaning” of the First Amendment, in Brennan’s majestic view, was to preserve the very concept of self-government: that citizens must remain free to speak out and speak up because the sovereign power resides within them, not within their elected leaders. The central legacy of Trump’s attacks on the press, as seen in the cases of his Justice Department, was to put the interests of the president above the interests of the people. No suit exposes the perversion of this project quite like Carroll’s bizarre journey through the court system. The Justice Department should drop its efforts to substitute the United States as the defendant.
Ordinary Cases but Extraordinary Arguments
Finally, we come to the “blurry” cases, where the legal issues raised are relatively routine but where the Trump Justice Department laid down expansive and unusual litigation positions. In some of these cases, the department has taken an established legal theory and expanded it in unprecedented ways. In others, government lawyers likely had to choose extreme positions by dint of defending particularly toxic actions with respect to the First Amendment and the press.
The Bolton Book Ban
The Bolton case wins pride of place in this category. As noted above, the Justice Department sued the former national security adviser after he moved to publish his memoir, “The Room Where It Happened,” without receiving a formal clearance from the White House under his pre-publication review agreements. The suit itself—which sought to seize Bolton’s proceeds from the book—isn’t all that extraordinary. But the Justice Department also moved for an emergency court order to halt distribution and sale of the book by the publisher and downstream resellers. Put simply, and chillingly, it tried to block publication of a book critical of the president on the eve of an election that would determine whether voters would remove Trump from office.
While raising concerns about the sensitivity of the information allegedly disclosed, Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia denied the request for the injunction out of hand, writing: “For reasons that hardly need to be stated, the Court will not order a nationwide seizure and destruction of a political memoir.”
Of all the legal arguments over the past four years, the attempted Bolton book ban is arguably the one most difficult to envision under another administration of either party—though the case is “blurry” because suing to seize an author’s profits in a clearance dispute isn’t that unusual. It is also notable that this wasn’t the only flagrant attempt at a prior restraint during the Trump presidency. While not a Justice Department lawsuit, President Trump’s late brother Robert tried to stop publication of Mary Trump’s book “Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man” in the lead-up to the election. This effort also failed.
The Protest Cases
Next are the cases that present otherwise unexceptional legal issues, but difficult facts and therefore more aggressive litigation positions by the Justice Department. These cases arose mainly in the context of the protests over the spring and summer of 2020.
Most notable is a lawsuit filed by journalists and legal observers who were arrested or subjected to the use of force by federal officers during the protests in Portland, Oregon. In Index Newspapers v. United States Marshals Service, plaintiffs successfully sought an injunction barring federal officers from using dispersal orders to interfere with newsgathering activities.
Refusing to block preliminary relief ordered by Judge Michael Simon of the U.S. District Court of the District of Oregon, a divided panel of the U.S. Court of Appeals for the Ninth Circuit found that plaintiffs presented “exceptionally strong evidentiary support for the district court’s finding that some of the Federal Defendants were motivated to target journalists in retaliation for plaintiffs’ exercise of their First Amendment rights.”
The key takeaway here is that while the Justice Department is obligated to defend the federal agencies, many of the arguments from the Trump Justice Department were sweeping in their implications. The government argued that even if reporters are off to the side of a protest, are otherwise compliant with lawful police orders, and are clearly identifiable as journalists, officers can still use force to run them off the scene. In February, the Justice Department asked the Ninth Circuit to halt proceedings on the appeal, which had been moving toward a possible ruling on the merits.
Additionally, the Justice Department is defending numerous federal officers, including former Attorney General Barr, in a lawsuit stemming from the clearing of Lafayette Square in Washington, D.C., in early June. The case involves claims under the Supreme Court’s decision in Bivens, which permits lawsuits for money damages against federal officials in their individual capacities for violating the Constitution.
Here, too, the Justice Department under Trump made exceptionally broad arguments. For instance, Barr and the alleged incident commander for the U.S. Park Police, Maj. Mark Adamchik, are asserting that Bivens claims are unavailable for any First Amendment violation when it happens as part of an effort to protect the president (or perhaps for any First Amendment violation at all).
That is a troublingly expansive reading of recent Supreme Court and D.C. Circuit cases concerning Bivens, which have urged caution in extending Bivens relief to what the Supreme Court has deemed “new contexts” but have never held that First Amendment claims are entirely outside of Bivens’s orbit. Indeed, the department’s position is doubly concerning given the alleged facts—the violent dispersal of peaceful protesters and journalists engaged in lawful newsgathering. The implication of the government’s position—that Bivens remedies cannot be awarded even if a federal police officer deliberately targets a journalist with the use of force—is extreme and one that Garland cannot ignore.
* * *
During President Trump’s administration, some analysts argued that, while Trump inveighed almost daily against the press, calling mainstream media the “enemy of the people” and “fake news,” what mattered as much or more was what the president actually did with the awesome power of his office. As it turns out, he did a fair bit.
The Garland Justice Department has a chance to reset. While the department faces several challenging choices about the pending cases it has inherited, it can nonetheless approach these choices proactively and strategically.
Under President Obama, for example, the Justice Department filed briefs in several cases presenting the federal government’s view that the First Amendment protects the press’s right to document law enforcement activity in public. As attorney general, Garland should restore and expand this practice—particularly in lawsuits around the country filed by journalists who have been arrested or injured by police.
Similarly, the record of this last terrible year for press rights must be formally documented, for posterity and to prevent it from happening again. As of this writing, according to the U.S. Press Freedom Tracker, 392 journalists were assaulted in 2020—a large majority by police while covering protests—compared to 34 in 2019. More than 120 were arrested, compared to nine in 2019.
While the Garland Justice Department grapples with its inheritance from the past administration, a clear path forward exists for the department to mend the norms that President Trump frayed. It should launch a comprehensive investigation into this surge in arrests and the use of force against journalists covering protests;; take enforcement action where warranted; and ensure that law enforcement at all levels of government, coast to coast, understands the proper scope of newsgathering protections under the First Amendment.
To paraphrase the Washington Post’s Marty Baron, reporters may not exactly have been at war with Trump, but they need a Justice Department that defends their right to get back to work.