It is not a great time to be a journalist in America.
The assault on the First Amendment by militarized police in Ferguson, Mo., continues unabated, and the press is not spared. Since the start of protests against the August 9 killing of Michael Brown, journalists in Ferguson have been arrested, fired on, threatened, and assaulted.
After more than a week of heavy-handed police violence – through the use of tactics and weapons better suited for a warzone than an American suburb – freedoms of speech and the press were dealt a major legal blow on Tuesday. A federal court denied a motion from the ACLU of Missouri for an emergency order to prevent police from enforcing a ban on standing in place for more than five seconds. The "keep-moving mandate" (also known as the five-second rule) remains in place, criminalizing constitutionally protected activity and placing a dangerous barrier on the ability of the media to bring us stories from this city under siege. As Tony Rothert, the legal director of the ACLU of Missouri, told MSNBC, "In many ways, the First Amendment has been suspended in Ferguson."
This defeat came on the heels of an earlier victory, in which the ACLU of Missouri reached an agreement with the police, stating that members of the public and the press can record on-duty police officers. That was good news – except it should never have been up for debate, because you always have the right to photograph what's plainly visible in public. Including the police.
Addressing events in Ferguson, President Obama had some encouraging words last week that defended this country's proud tradition of media freedom. "Here, in the United States of America," he said, "police should not be bullying or arresting journalists who are just trying to do their jobs and report to the American people on what they see on the ground."
But those strong words, a reflection of the foundational role of the media in our democracy, belie what has become a sustained attack by the government on press freedoms.
The Obama administration is the most aggressive in U.S. history when it comes to prosecuting journalists' sources for disclosing unauthorized leaks. It has gone after the journalists, too. In just one example, it continues to pursue a Bush-era subpoena of James Risen, a New York Times journalist, to testify against a source accused of leaking information about CIA efforts to derail Iran's nuclear program. In an effort to sever journalists from their sources, Director of National Intelligence James Clapper recently went so far as to sign a directive forbidding intelligence officials from talking to the press – even about unclassified matters – without securing permission in advance.
Widespread government surveillance, in addition to imperiling the privacy rights of millions of Americans, has also severely undermined the freedom of the press. A recent ACLU-Human Rights Watch report shows that many journalists have found information and sources increasingly hard to come by. To make matters more burdensome, they've had to resort to elaborate techniques to keep their communications secret. The result? We get less information about what our government is doing in our name.
The right to record the actions of the government without it interfering is a basic prerequisite to a functioning democracy. Restrictions on media freedom – whether via surveillance, prosecutions, or tear gas – rob us of the information we need to engage in informed debates, assess our government's policies and practices, and hold it to account. Journalists aren't criminals, and they shouldn't have to act like spies.
But there's still a fight to be fought. A media shield law taken up last year by the Senate gives journalists important protection from having to disclose their sources (though it does have some problems, including a deeply concerning national security exception).
In Ferguson and elsewhere, the ACLU remains vigilant, making sure protesters and journalists know their rights and challenging restrictions on speech. So be sure to brush up – and if your rights have been violated, we want to know about it.
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News & CommentaryDec 2024
Civil Liberties
National Security
Where Defense Secretary Nominee Pete Hegseth Stands on Civil LibertiesWhere Defense Secretary Nominee Pete Hegseth Stands on Civil Liberties
The ACLU has more than 100 years’ experience holding power accountable. As President-elect Donald Trump rolls out his cabinet picks, we analyze how his nominee for secretary of defense will impact civil liberties. -
Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions.