Alliance President and CEO Danielle Coffey stated, “The PRESS Act provides a vital safeguard for the important work of the free press in reporting on matters important to our communities, without fear of government interference or intimidation. The Alliance thanks Representatives Kevin Kiley and Jamie Raskin for their leadership on this bill in the House and we look forward to supporting this important bi-partisan bill advancing in the Senate.”

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On August 7th, the Alliance joined a brief in Sawyer v. Virginia, filed in the Virginia Court of Appeals. The case concerns a series of public records requests by nonprofit watchdog American Oversight (“AO”), submitted to the Virginia Office of the Governor, seeking information about a “Tip Line” set up by the Youngkin administration to end the use of what it termed “inherently divisive concepts” in state education. The requests were made under the Virginia Freedom of Information Act, Va. Code Ann. § 3700, et seq. (“VFOIA”), which creates a broad presumption in favor of unimpeded public access to government records. The Governor’s office withheld several hundred pages of records claiming they were exempt from disclosure under the VFOIA’s “working papers exemption”. AO narrowed the scope of its requests to ensure they do not fall within the scope of that exemption, but the Governor’s office continued to withhold the records. AO filed suit in Arlington County Circuit Court and the court ruled in AO’s favor, ordering the Governor’s office to disclose responsive records. The Governor’s office is appealing that decision, arguing an overly broad interpretation of the exemption that would result in essentially any record or communication merely passing through the office to be exempt from disclosure. The brief, filed by RCFP, urges the Court of Appeals to uphold the Circuit Court’s ruling and argues that the Governor’s interpretation would fly in the face of the intent of the VFOIA. Public access to government records is not only vital to the work of journalists but is also essential to democracy in allowing oversight of the actions of government agencies. Read more.

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Facts of the case
Over four years, Helaman Hansen ran a phony “adult adoption” program giving undocumented immigrants the false impression that he could help them become United States citizens. In a 2017 trial in the U.S. District Court for the Eastern District of California, the jury convicted him of fraud and encouraging illegal immigration, violating 8 U.S.C. § 1324(a)(1)(A)(iv). Hansen argued to the Ninth Circuit that the statute was too broad and violated his First Amendment rights, and the Court of Appeals ruled in his favor. After the court denied a rehearing, the government petitioned to the Supreme Court.

Question for the Court
This case asks the court to determine whether a statute criminalizing “encouraging” or “inducing” an undocumented immigrant to unlawfully reside in the United States (8 U.S.C. § 1324(a)(1)(A)(iv)) is unconstitutionally overbroad and violates the First Amendment’s guarantee of free speech.

Decision
In a 7-2 opinion, authored by Justice Barrett, the Supreme Court sided with the Biden administration and upheld Hansen’s conviction, ruling that the statute does not unconstitutionally infringe upon free speech rights. Justice Jackson filed a dissenting opinion, in which Justice Sotomayor joined.

Free press implications
The Court acknowledged that if read literally, the statute would raise concerns for free speech. Thus, they ruled that the statute extends “no further than the purposeful solicitation and facilitation of specific acts known to violate federal law.” However, the ruling leaves journalists with some uncertainty as to what they can say when reporting on the issue of illegal immigration, and the mere prospect of arrest or prosecution could chill free speech. As Jackson and Sotomayor pointed out in their dissent, the court’s ruling “leaves many things about future potential prosecutions up in the air.” The government has already read the statute broadly in the past to defend the surveillance of journalists reporting on immigration, including a secret database of activists and reporters discovered in 2019.

For further reading, please visit

• SCOTUSblog: United States v. Hansen
• RCFP: United States v. Hansen
• Courthouse News Service: Press rights in crosshairs as justices tackle those who aid illegal immigration
• Courthouse News Service: Supreme Court endorses criminalization of speech linked to illegal immigration

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The PRESS Act, which unanimously passed the House last Congress, ensures that journalists can perform their work without fear of government overreach by prohibiting government officials from exposing confidential sources or subpoenaing for protected information. The bill allows the free press to continue their important investigative work to shed light on public matters critical to preserving our democracy, while still enabling enforcement officials to obtain the information they need to investigate and prosecute crimes to keep the nation secure.

Danielle Coffey, News/Media Alliance President & CEO, stated, “The News/Media Alliance proudly supports the PRESS Act and commends Senators Wyden, Durbin and Lee, and Representatives Raskin and Kiley for their leadership and commitment to protecting a free and independent press. The PRESS Act will ensure that journalists can maintain editorial independence and protect confidential sources which are a vital part of producing quality news. We encourage Congress to swiftly pass this important bi-partisan legislation.”

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In 2020, Congress passed the Fallen Journalists Memorial Act, allowing for a memorial dedicated to journalists who have died while reporting the news and in recognition of the vital role that the free press plays in our democracy. Now, according to The Washington Post, the future memorial has found a home, with the U.S. Commission of Fine Arts last week approving a location in Washington, DC.

The future memorial, which will be funded through private donations, is expected to be completed in 2028. It will be housed between the National Museum of the American Indian and the Voice of America building on the National Mall with a direct view of the Capitol, which was “chosen to evoke journalists’ role as government watchdogs.”

Throughout our nation’s history, hundreds of U.S. journalists have lost their lives while doing their jobs so that the American public could stay informed on important matters affecting our country. The Fallen Journalists Memorial will serve as much-deserved recognition and acknowledgement of their sacrifice.   Read more.

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Update: On September 12, 2023, the North Carolina Court of Appeals issued an opinion awarding summary judgement and attorney fees to WBTV. The Court reiterated that the North Carolina Public Records Act must be “liberally construed to ensure that governmental records be open and made available to the public” and that the Act applies even if the agency only has constructive control of records.

On March 23, the Alliance joined a brief, filed in the North Carolina Court of Appeals, arguing that the North Carolina Public Records Act requires a government agency to disclose records that are in the possession of a third-party contractor, but that are still within the agency’s control. In Gray Media Group (WBTV) v. City of Charlotte, the City of Charlotte (“City”) denied WBTV’s request for documents related to a contract with consulting firm Ernst & Young (“EY”), arguing that the records were in EY’s possession and not in the City’s custody, control, or possession as defined by the Act. WBTV sued and the City subsequently issued a subpoena duces tecum to EY, which produced the records. The lower court awarded summary judgement to the City, finding that WBTV’s motion for injunctive and declaratory relief was moot. The brief, filed by RCFP, argues that the Act requires that an agency disclose documents that are within their constructive control, even if they are in the actual possession of a third party. This case is important in protecting the ability of journalists to rely on the Act as a powerful tool for government oversight and accountability. Read more.

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The Alliance is part of the News Media Coalition, which submitted comments on March 9, regarding the Federal Communication Commission’s (FCC) proposal to allow unmanned aircraft systems (UAS or drones) to conduct licensed operations in the 5030-5091 MHz spectrum band. The Notice of Proposed Rulemaking did not raise significant concerns; therefore, comments emphasize issues consistent with those we raised last year:

• Newsgatherers are unique end-users and have worked with the government toward sensible drone regulation and policy that is consistent with First Amendment principles.
• The FCC rulemaking should provide maximum flexibility to accommodate breaking-news coverage.
  The privacy of journalism drone operators’ PII must be preserved.
• To preserve independence in news reporting on government and others, any rulemaking should permit the FCC to share news drone operational information only where necessary to protect safety.
• Compliance with any rulemaking should not impose significant costs on journalists because, unlike other end users, news organizations cannot pass those costs on to consumers.

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On February 16, the Alliance joined a brief, filed in the Supreme Court of the United States challenging the constitutionality under the First Amendment of a national park’s permit-and-fee requirements for commercial filmmakers. In Price v. Garland, an independent filmmaker filmed in a national park without obtaining a filming permit. The government charged him with a misdemeanor, but later dismissed the charge. The filmmaker sued, arguing that the permit requirements are unconstitutional under the First Amendment. The District Court agreed, but the U.S. Court of Appeals for the District of Columbia Circuit reversed, holding that filmmaking is “merely a non communicative step in the production of speech”. The brief, filed by NPPA, argues that the Circuit Court improperly separated the act of filming from the definition of speech in determining that the act of filming is not protected speech. The Alliance supports protecting the creation of speech, by journalists, filmmakers and photographers alike, at every step of the process under the First Amendment.

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Alliance President and CEO David Chavern stated, “A free and independent press is vital to democracy, and the PRESS Act ensures that journalists maintain editorial independence by protecting their confidential source information. Without these protections, journalists are at risk of government intimidation, losing sources and being unable to produce quality news. The Alliance is proud to support these bi-partisan protections, and we encourage the Senate to follow swiftly so it can be enacted into law.”

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