The Federal Bureau of Investigation (“FBI”) recently subpoenaed USA Today seeking information on readers of a story about a botched FBI raid in Florida that killed two agents and wounded three other agents. It asked the news outlet to keep the subpoena quiet, but instead, the newspaper published details of the subpoena.
Shocking as this story seems, it’s not the first time a government agency has subpoenaed the news media for information on readers of stories and the sources that journalists rely on for those stories. It’s shocking because the First Amendment to the U.S. Constitution guarantees the right to free speech, which includes the right of the press to publish stories criticizing the government—and the right of the public to read those stories.
“Being forced to tell the government who reads what on our websites is a clear violation of the First Amendment,” Maribel Perez Wadsworth, USA Today’s publisher, said about the recent FBI subpoena. She said the subpoena asked for “private information about readers” of the botched raid in Sunrise, Florida, on February 2, 2021. The paper, which is owned by Gannett, also challenged the subpoena in court.
In a motion filed in the U.S. District Court for the District of Columbia on May 28, 2021, the day before the FBI’s requested deadline for the information, Gannett’s lawyers wrote: “A government demand for records that would identify specific individuals who read specific expressive materials, like that subpoena at issue here, includes the First Amendment rights of both publisher and readers, and must be quashed accordingly.”
Gannett’s lawyers also argued that the FBI had failed to follow Department of Justice (“DOJ”) policy in seeking the subpoena. That policy requires the FBI to first notify and work with the media before resorting to a subpoena and further requires the personal approval of the Attorney General before applying for the subpoena.
Issued in April, the subpoena demanded USA Today’s records identifying information “for computers and other electronic devices” that were used to access the story about the raid during a certain time frame. The day after USA Today published details of the subpoena, the FBI withdrew it.
This all came in the middle of publicity about other incidents where the DOJ, under the Trump Administration, secretly sought personal information on reporters from the Washington Post, CNN, and the New York Times, after they reported on stories critical of the government. When President Biden was approached by CNN about the DOJ’s tactics to silence the news media, he called it “simply wrong.”
Adding to this disturbing trend is that most subpoenas are filed under seal, meaning the news media usually never knows when the DOJ is targeting their reporters or readers. “These things are routinely filed under seal and kept under seal and maintained under seal indefinitely,” noted Katie Townsend, legal director for the Reporters Committee for Freedom of the Press.
During the Trump Administration, DOJ had subpoenaed numerous media outlets that criticized Trump, including Washington Post and New York Times reporters covering the Russia investigation and Twitter for a user’s account information after he posted a parody of Rep. Devin Nunes, a loyal Trump supporter.
In the beginning of June, the DOJ issued a statement that reporters who were the subject of any subpoenas or investigations by the Trump Administration during 2019 and 2020 “have now been notified.”
It’s not just the federal government that uses subpoenas to scare the news media into silence. In 2007, controversial Maricopa County (Arizona) Sheriff Joe Arpaio appointed a special prosecutor who obtained a subpoena to silence reporters who wrote a story that criticized Arpaio’s questionable dealings with some real estate investments. The subpoena demanded that reporters turn over their sources and their personal notes on the story. This subpoena, however, fell apart when the newspaper exposed that the special prosecutor, Dennis Wilenchik, skirted the law on obtaining the subpoenas. It was revealed that Wilenchik had faked that the subpoenas were approved by a grand jury, as required by law, but they never were. Arpaio then arrested the reporters who later sued after the charges were dropped. The federal court held that the prosecutor was not entitled to absolute immunity from suit since he violated the law in enforcing the fake subpoenas which led to the bogus arrests. Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012) (en banc).
Five decades ago in New York Times Co. v. United States, 403 U.S. 713 (1971), Justice Hugo Black warned of the government using scare tactics to silence the media: “The government’s power to censor the press was abolished [under the First Amendment] so that the press would remain forever free to censure the government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in the government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people.”
The DOJ’s subpoenas to scare the media lately prove those words still hold great weight.
Sources: usatoday.com, cnn.com, nypost.com
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