U.S. Press Freedom Tracker

A worrisome pace for gag orders

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Published On
March 28, 2024
Press freedom incidents documented in Tracker as of March 2024

A snapshot of all incidents documented in the U.S. Press Freedom Tracker so far this year.

— U.S. Press Freedom Tracker

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A worrisome pace for publishing gag orders

Just last week, unsealed court documents revealed that A&E Television Networks had been temporarily prevented from airing “Where Is Wendy Williams?” a documentary on the former talk show host. The gag was quickly lifted on appeal, and the Lifetime network, which produced the documentary, aired it in late February. Notably, in his lifting of the prior restraint, New York State appellate Justice Peter H. Moulton wrote that blocking the release of the project would be an “impermissible prior restraint on speech that violates the First Amendment of the Constitution.”

That prior restraint — though quickly overturned — already marks the third publishing gag in the first three months of this year. At this pace, we’re on track to surpass last year’s 11 documented in the Tracker, which was itself a record.

Publishing gags on the press, 2017-today

Contempt charge for refusing to reveal a confidential source

It’s now been a month since journalist Catherine Herridge was held in contempt of court for refusing to reveal a confidential source. On Feb. 29, a U.S. district judge ordered that Herridge be fined $800 a day until she complies with a subpoena, which she has been fighting through the appeals system; the fine is currently on hold.

Some background: The subpoena and subsequent contempt ruling stem from a series of Fox News investigative articles and broadcast reports by then-correspondent Herridge in early 2017 about a federal investigation into the possible foreign military ties of a Chinese American scientist, Yanping Chen.

In 2018, Chen filed a lawsuit against the departments of Justice, Defense and Homeland Security for violations of the Privacy Act, alleging that a government official had leaked materials from an investigation into Chen’s possible foreign military ties, excerpts of which were included in the Fox News articles. As part of that lawsuit, Chen subpoenaed Herridge in June 2022, seeking documents and testimony about the federal investigation and enough information to identify her source. Fox News and two of its producers received similar subpoenas for documents and testimony.

By 2023, all the other requests for testimony or documents were quashed or dropped, except the request for Herridge’s testimony. In September 2023, she sat for a deposition, but refused to answer questions about the identity or intent of her sources. Herridge also attempted then to appeal the ruling, but was told by the District of Columbia Circuit Court of Appeals that the proper procedure required her to refuse to comply and then appeal the resulting contempt order.

Which brings us up to today, one month into a contempt charge. There’s no indication of when the court may hear an appeal on the ruling.

Subpoenas/legal orders for journalists’ information

Sunshine, the time-tested disinfectant

To honor this year’s Sunshine Week (March 10-16), we published a new analysis by Tracker Senior Reporter Stephanie Sugars about the costs of public records lawsuits.

“When journalists must sue for access to public records after they’re wrongfully withheld by state and local officials, it’s a raw deal for taxpayers,” Sugars wrote. “Not only are they denied information that is public under state law, but their tax money foots the legal bills.”

Read the analysis here: The public is paying the price for local government secrecy

We also hosted an X Space on the topic with Sugars and David Cuillier, director of the Freedom of Information Project at the Brechner Center for the Advancement of the First Amendment.

Tracker in the news

A few of the news outlets using Tracker data in their reporting this month: