Garland makes good on Biden’s promise to stop harassing the press

Attorney General Merrick Garland. Photo (cc) 2016 by Senate Democrats.

Give President Joe Biden credit for having a keen understanding of what it takes to hold together his Democratic-liberal-progressive coalition.

When he said in May that it was “simply, simply wrong” for the government to spy on journalists, I was skeptical that he would follow up his sentiment with concrete action. After all, he was vice president under Barack Obama, whose harassment of reporters in his campaign against leaks was legendary. Other presidents also thought nothing about going after reporters, including Donald Trump, George W. Bush and, of course, Richard Nixon.

But press secretary Jen Psaki followed up by assuring reporters that Biden meant what he said. And, on Monday, it came to fruition with Attorney General Merrick Garland’s announcement that the administration would stop attempting to seize journalists’ records in nearly all circumstances. In a memo quoted by The New York Times, Garland wrote:

The Department of Justice will no longer use compulsory legal process for the purpose of obtaining information from or records of members of the news media acting within the scope of news-gathering activities.

Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, issued a statement of approval, saying:

The attorney general has taken a necessary and momentous step to protect press freedom at a critical time. This historic new policy will ensure that journalists can do their job of informing the public without fear of federal government intrusion into their relationships with confidential sources.

Technically, Garland was acting on his own. The attorney general is supposed to be independent of the president. But Garland could hardly continue with the anti-press policies of Biden’s predecessors after Biden himself had spoken out so strongly in favor of reform.

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Garland’s actions come in response to some truly shocking actions undertaken by the Trump administration, some of which spilled over into the first few months of the Biden presidency. Acting on what appeared to be political motivations, the Trump Justice Department sought phone and email records from journalists at The Washington Post, The New York Times and CNN. Judging from the timeline, the Trumpsters seemed to be looking into those news organizations’ reporting on the 2016 Trump campaign’s ties to Russian interests.

There are some exceptions to Garland’s order in the case of life-or-death situations, or if a reporter is believed to be actively helping a source obtain classified information. But these exceptions strike me as reasonable rather than being easily exploited loopholes.

Garland’s memo also says that the Justice Department will support efforts to pass legislation making the guidelines permanent so that they don’t expire as soon as Biden leaves office. That’s really the key, since future presidents and attorneys general would otherwise not be bound by Biden and Garland’s good intentions.

Muzzle follow-up: New Hampshire adopts ban on ‘divisive’ antiracism education

I posted this at the bottom of my GBH News column for today, but I want to publish it here as well.

The GBH News 2021 New England Muzzle Awards, published on July 1, singled out former President Donald Trump for whipping up fears about race in the classroom. As I noted at the time, New Hampshire was one of several states considering a ban on the teaching of “divisive concepts” about race and gender in public schools and in the workplace.

Trump won. Last Friday, the Portsmouth Herald reported that the ban was inserted into the state budget by Republican legislators, and Gov. Chris Sununu, also a Republican, signed it into law. Oyster River Superintendent James Morse called the new law “a fundamental affront to academic freedom in teaching in terms of teachers making decisions on how they apply the curriculum set by the school board.”

This is a blow against local autonomy, coming from the “Live Free or Die” state.

In a related development, Boston Globe columnist Yvonne Abraham starts to connect the dots with Parents United, a group of wealthy white parents who are so, so concerned about antiracism education. Follow the money, as they say, and Abraham documents ties to the Club for Growth and the Federalist, two formerly conservative organizations that have moved to the Trumpist right in recent years.

The Supreme Court may be poised to weaken libel protections for the press

Photo (cc) 2005 by zacklur

If we’ve learned anything about right-wing politics in the Age of Trump, it’s that what once seemed impossible becomes plausible — and then morphs into a new reality. We’ve seen it with the refusal to accept the outcome of a democratic election. We’ve seen it with attacks on face masks and vaccines. And now we may be seeing it with libel law.

Read the rest at GBH News.

Trump’s postmaster general targets journalism with a devastating rate hike

Painting by J.C. Leyendecker (1874-1951). Uploaded (cc) 2020 by Halloween HJB.

As scholars from Paul Starr to Victor Pickard have observed, newspapers in the United States have benefited mightily from postal subsidies since the earliest days of the republic.

Starting in the Reagan era, though, the U.S. Postal Service has been run under the misguided notion that it should break even or turn a profit rather than be operated as a public service. As a result, postal rates for periodicals have been rising for more than a generation, putting additional pressure on newspaper and magazine publishers who are already straining under the economic challenges posed by technology, cultural shifts — and, now, the post-pandemic recovery.

The latest bad news comes in the form of a report from The Associated Press that rates on periodicals are scheduled to rise by more than 8% on Aug. 29. The AP story, by David Bauder and Anthony Izaguirre, says the increase is “part of a broad plan pushed by Postmaster General Louis DeJoy to overhaul mail operations.”

DeJoy, you may recall, is the ethically challenged Trump appointee who slowed down mail service last year, thus imperiling vote-by-mail efforts in the midst of the pandemic. For some reason, he appears to have more job security than Vladimir Putin.

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Now, you might think that rising postal rates would simply push publishers to hasten their transition to digital. But it’s a simple matter of reality that print advertising continues to play an important role in keeping newspapers and magazines afloat. For instance, earlier this year, Ed Miller, the co-founder and editor of start-up Provincetown Independent, explained that he offers a print edition alongside a robust website because otherwise it would be just too difficult to make money.

Northwestern University Professor Penelope Muse Abernathy tells the AP that the effect of higher postal rates could be devastating for small local news projects that are already struggling. “It is one of several nicks and slashes that can damage the bottom line, especially if you are an independent publisher who is operating at break even or in the low single digits of profitability,” she says. “And most are.”

Ironically, a section of the Postal Service’s website sings the glories of how subsidies helped foster robust journalism, quoting George Washington and Thomas Jefferson. The essay starts like this:

From the beginning of the American republic, the Founding Fathers recognized that the widespread dissemination of information was central to national unity. They realized that to succeed, a democratic government required an informed electorate, which in turn depended upon a healthy exchange of news, ideas, and opinions.

At a time when the idea of government funding for journalism is being debated in the public square, postal subsidies stand out as a particularly benign way to go about doing that. As with tax benefits for nonprofit news organizations, postal subsidies are indirect. That makes it difficult for the government to punish individual media outlets for tough coverage — as is happening right now in Western Pennsylvania, where the Republican-dominated state legislature has eliminated funding for public broadcasters even as one station has persisted in calling out the Republicans for touting the “big lie” about the 2020 election. (Republican officials deny there’s a connection.)

It’s long past time for Louis DeJoy to hit the bricks and for the post office to be reorganized as a public service. Foremost among those services should be helping to provide the public with reliable, affordable journalism.

In Georgia, a partisan news site replaces local journalism with false election claims

Here’s what happens when you don’t have a reliable source of local news in your community: partisan websites that look like local news pop up in order to push a political point of view. Most of them are right-wing, although there are also a few that lean left.

Last week NPR’s Stephen Fowler had a terrific piece about The Georgia Star News, a Trump-oriented project that is aligned with Steve Bannon, although it doesn’t sound like Bannon has an official role. “It’s very populist, it’s very nationalist, it’s very MAGA, it’s very American First,” Bannon reportedly said.

The lead story right now: “Merrick Garland’s Case Against Georgia Is a Loser, According to Legal Scholars and Journalists,” aggregated from The Federalist and opinion pieces in The Wall Street Journal and USA Today.

What the Star News and sites like it do is work the media food chain. The website’s publisher, John Fredericks, has a radio talk show whose guests have included Bannon and former Trump campaign manager Corey Lewandowski. Fredericks’ talk show and website haved pushed false information about absentee ballots. (According to Fredericks’ website, his show was recently booted off YouTube. Gee, I wonder why?)

Secretary of State Brad Raffensperger, who stood up for the integrity of Georgia’s elections when it really mattered, nevertheless called for an investigation based on the Star News’ story. From there the story was injected into the mainstream, since legitimate media outlets are in the habit of quoting Raffensperger. And, before you know it, Trump himself was praising the Star News for “the incredible reporting you have done.”

Fredericks claims his operation is profitable thanks to an injection of ads from Republican politicians.

As these “pink slime” operations go, Fredericks’ is rather modest — eight sites, compared to the 1,300 documented last fall by The New York Times. And Fredericks’ sites are statewide — they’re not promising the sort of hyperlocal news that, say, a right-wing site like the Macon (Georgia) Times does.

Still, the Star News points to the dangers of what can happen when we lose reliable local and regional news.

The post-Trump media slump creates an opportunity for local news

A report from Axios on the end of the Trump effect is getting a lot of attention. What I’m referring to is the enormous boost that the Trump presidency gave the national media, especially in 2020 and into January 2021, as we tried to absorb a presidential election ending in insurrection, a global pandemic, an economic collapse, and a coming to terms with racial justice and police violence.

As I noted several months ago, news audiences were falling off as early as March. What’s notable about the Axios story is that the shrinkage has followed a pattern. Mainstream, relatively nonpartisan media outlets such as The New York Times, The Wall Street Journal, USA Today and Reuters experienced the lowest amount of deterioration, a relatively modest 18%. Liberal and progressive media such as Mother Jones and Raw Story were off by 27%. And right-wing media such as Newsmax and The Federalist dropped by 44%.

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There have been some complaints about methodology — especially the decision to label Mother Jones as “far left” but Fox News as merely “right-leaning.” Clara Jeffery, the editor-in-chief of Mother Jones, certainly has a legitimate complaint:

Still, the notion that quality news has suffered less than right-wing outlets promoting Trump’s Big Lie about his election defeat certainly has some merit. The mainstream media are far from perfect, but the journalism they practice is built to last.

Another point: What this really speaks to is the nationalization of the culture and the opportunity this moment might present. For the past five years, Donald Trump has sucked all the oxygen out of the room. This has coincided with the collapse of local news — a collapse that began around 2005, but that accelerated during the Trump years.

The decline of interest in national news documented by Axios ought to be seen as healthy. Quality local news outlets can take advantage of this moment to re-engage their communities. Of course, local newspapers owned by corporate chains will do no such thing. But the rising number of independent news projects are already finding ways of connecting with their audience.

What local news can offer is journalism that’s relevant to people’s everyday lives.

Ron DeSantis’ latest stunt would make Joe McCarthy proud

Joseph McCarthy. Painting via the National Portrait Gallery.

Florida Gov. Ron DeSantis, who’s running hard for the 2024 Republican presidential nomination, signed a bill this week that is a masterpiece of performative McCarthyism. Ana Ceballos of the Tampa Bay Times reports that the legislation will require the state’s public colleges and universities to conduct an intrusive survey into the beliefs of students, faculty and staff.

The survey, Ceballos writes, will be used to determine “the extent to which competing ideas and perspectives are presented” and whether “intellectual diversity” is supported on campus. The new law could be the basis for budget cuts “if universities and colleges are found to be ‘indoctrinating’ students,” according to Ceballos.

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Josh Kovensky of Talking Points Memo reports that, at a news conference following the signing, DeSantis castigated many colleges and universities as “intellectually repressive environments. You have orthodoxies that are promoted and other viewpoints are shunned or even suppressed.”

DeSantis’ action, needless to say, is a grotesque violation of the First Amendment. But that’s nothing new for him, as I’ve written previously.

DeSantis has also banned public school curriculum based on The New York Times’ 1619 Project, which he falsely calls “false history,” as well as instruction in critical race theory — an academic concept that, as Kovensky notes, has little to do with the diversity training and teaching about systemic racism that school systems actually engage in.

In a straw poll of potential 2024 candidates held last weekend at the Western Conservative Summit in Denver, DeSantis narrowly beat Donald Trump, according to The Hill. But first he has to win re-election as governor.

Florida had been trending bluish in recent years but appears to be moving back into the Republican column based on the past several elections. Still, a number of Democrats are lining up to challenge DeSantis, including Democratic congressman Charlie Crist, a former Republican governor himself.

The problem with McCarthy-style populism is that it’s popular — until it isn’t. We’ll see how DeSantis’ latest attack on freedom of expression plays with Florida voters.

How minority rule is turning the U.S. into an undemocratic country

Photo (cc) 2014 by the National Museum of American History

This essay was first published in the Media Nation member newsletter. To become a member for $5 a month, please click here.

Like many of us, I worry about the state of our democracy. I write about it from time to time, but what concerns me especially is that it’s almost impossible to see any way out of our dilemma. That’s because we need systemic reform in order to move toward democracy. Not only is it in the interest of Republicans to oppose that reform, but there’s also no way of overcoming their opposition.

Obviously a lot of attention has been focused on Democratic Sen. Joe Manchin’s opposition to getting rid of the filibuster, which means that President Joe Biden won’t be able to pass any of his non-budget priorities through a simple majority. But we all know the problem goes deeper than that, because the Constitution is heavily tilted toward the small-population states, which are overwhelmingly Republican.

At the presidential level, we need to get rid of the Electoral College, a vestige of slavery that resulted in the elections of George W. Bush in 2000 and Donald Trump in 2016 even though they lost the popular vote. Yes, the Electoral College has always been with us. But before Bush, the last time a candidate was elected president despite losing the popular vote was in 1888. Because of shifting demographics, such outcomes have become increasingly likely.

Nor is the problem solely at the presidential level. The 50 Republican senators represent just 43.5% of the electorate, according to calculations by the Daily Kos, whereas the 50 Democratic senators represent 56.5%. That’s an enormous gap, yet between the filibuster’s requirement of 60 votes to move forward on anything and the small-state advantage, Chuck Schumer might as well hand his gavel over to Mitch McConnell.

The House is at least theoretically democratic since districts are drawn on the basis of population. But partisan gerrymandering has resulted in Republicans having more seats to which they should be entitled. That will certainly prove to be a factor in the midterm elections, when the Republicans will in all likelihood regain their majority.

And I haven’t even mentioned Republican efforts across the country to pass voter-suppression laws that would disproportionately affect people of color.

This state of affairs would be bad enough if Republicans were committed to our democratic system. But we can see that they’re not, and their willingness to repeat the Big Lie that Trump won re-election last fall has become a loyalty test within the party.

We can all think of ways to solve these problems, but even to write about them seems like an exercise in futility. The Republicans would block any changes that would diminish their power. And we will continue to move deeper into minority rule.

It’s time for the feds to stop hassling and spying on the press

FBI headquarters. Photo (cc) 2008 by zaimoku_woodpile.

Previously published at GBH News.

It was a move reminiscent of the post-9/11 Patriot Act, which allowed federal investigators to spy on the reading habits of library and bookstore customers in the name of fighting terrorism.

Last week we learned that the FBI had subpoenaed USA Today in pursuit of Internet Protocol addresses and other data. The goal was to help the agency figure out the identities of people who had read a story last February about a Florida shootout in which two FBI agents were killed and three were wounded. The subpoena specifically cited a 35-minute time frame on the day that the shootings took place.

Fortunately, USA Today’s corporate owner, Gannett Co., the nation’s largest newspaper chain, took a principled stand and fought the subpoena. On Saturday, the FBI backed down. There’s already little enough privacy on the internet without having to worry about the possibility that government officials will be looking over our shoulders as we’re reading.

We are in the midst of a systematic assault on the media’s role in holding the powerful to account. And it’s long past time for our elected officials to do something about it by passing legislation rather than relying on assurances by President Joe Biden that he’s ending these abuses. After all, Biden’s assurances can be undone by the next president with the flick of a pen. We need something stronger and more stable.

Barely a month ago I wrote about the revelation that the Trump Justice Department had spied on three Washington Post reporters’ phone records. I observed that Trump’s actions were in line with a long string of presidential attacks on the media, from Richard Nixon to George W. Bush to Barack Obama.

Since then, the revelations have come at a dizzying pace. In addition to the USA Today subpoena, which strikes me as especially egregious since it targets readers rather than journalists, there have been at least two other noteworthy instances of abuse:

• In late May, CNN reported that the Trump administration had secretly obtained 2017 email and phone records of Barbara Starr, a longtime reporter for the network. The period in question was June 1 to July 31, 2017.

• In a particularly noxious abuse of the government’s power, The New York Times reported several days ago that the Justice Department had subpoenaed Google for the email records of four Times reporters — and that, though the inquiry had begun under former President Donald Trump, it continued under Biden. As recently as March, the Justice Department obtained a gag order prohibiting Google from informing the Times. That order was later amended so that a few top officials at the Times could be told, but not executive editor Dean Baquet.

“It is urgent that we hear from the attorney general about all three Trump-era records seizures, including the purported reasoning behind them and the rationale for not notifying the journalists in advance,” said Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, in a statement released last week. “The goal must be to ensure that such abuses never occur again.”

Compounding the problem is the widely misunderstood belief that government officials are violating the First Amendment. For instance, on CNN’s “Reliable Sources” this past Sunday, Adam Goldman, one of the four Times reporters targeted in the Google probe, said, “The U.S. attorney’s office in D.C. has a history of trampling on the First Amendment, so that’s why I wasn’t surprised. They treat the media, they treat newspapers like drug gangs.”

In fact, over the past century the Supreme Court has interpreted the First Amendment in such a way that the protections for news gathering are exceedingly weak.

Protections for publication and broadcast are strong, which is why the press has been able to report on secret stolen documents — from the Pentagon Papers to the Snowden files — with few concerns about facing prosecution.

But the court has ruled that journalists have no constitutional right to protect their anonymous sources. And with regard to the current string of spying revelations, the court has held repeatedly that journalists enjoy no special rights that would not be available to ordinary citizens.

President Biden recently pledged to end the practice of seizing reporters’ records, saying the practice is “simply, simply wrong.” Some observers questioned whether he actually meant it, since he’d be breaking not just with Trump’s abuses but with longstanding practice. That, in turn, led press secretary Jen Psaki to assure journalists that Biden planned to follow through on his pledge.

But what a president does, a future president can undo. To guarantee that the press will be able to perform its watchdog role, we need a federal shield law so that reporters won’t be compelled to reveal their confidential sources. Such protections — either by law or by court decision — are already in place in 49 states, with the sole exception being Wyoming.

We also need legislation that prevents the government from secretly spying on journalists’ online activities — and on readers’ activities as well.

No doubt opponents will insist that the government needs to be able to spy in order to keep us safe. But the Post, CNN and Times cases appear to involve the Trump administration’s politically motivated attempts to learn more about the origins of the Russia probe, including the activities of former FBI Director James Comey. The USA Today case did involve a much more serious matter. But after dropping its demands, the FBI told the BBC that “intervening investigative developments” made the information unnecessary.

Which is nearly always the case. Rarely does the government’s desire to interfere with the press’ role involve a situation that’s literally a matter of life or death. And the law can accommodate those rare instances.

In general, though, the government should go about its business without compromising the independence or freedom of the press.

Why it matters: Tracking the media’s dismissal of the Wuhan lab theory

Illustration by the Centers for Disease Control and Prevention

Previously published at GBH News.

Howard Kurtz was in high dudgeon. The Fox News media critic opened his Sunday program, “Media Buzz,” this past weekend by blasting the press for dismissing the possibility that COVID-19 had its origins in a leak from a lab in Wuhan, China. That possibility is suddenly very much on the table, and President Joe Biden has ordered an investigation.

“It was a whack-job theory, right? It was Looney Tunes. It was trashy Trump talk, surely not worthy of serious journalistic attention,” Kurtz said. He added: “If President Trump said it, the media dismissed it. If conservatives embraced it, liberal pundits mocked it. This just speaks volumes about our media establishment. Now, nothing’s been proven, but the circumstantial evidence is growing. Will there be any soul-searching about what amounted to media malpractice? Don’t hold your breath.”

Kurtz’s monologue oversimplified what we know, but he was largely correct. In fact, the media sloppily mashed together two different stories about Wuhan — a legitimate line of inquiry that the virus had accidentally escaped from the lab and a conspiracy theory that Chinese scientists at the lab were developing COVID-19 as a bioweapon.

As a result, with just a few lonely exceptions, the mainstream press over the course of the past 15 months has dismissed any suggestion that COVID-19 came from the lab as so ludicrous that it was unworthy of coverage. The media’s credibility is taking yet another hit — this one entirely legitimate — at a moment when it is already at an all-time low. And their “shameful dereliction of duty,” as conservative Washington Post columnist Marc Thiessen put it, may make it that much harder to persuade Trump supporters to get over their skepticism about vaccinations.

The media’s dismissive attitude toward the lab-leak theory was grounded in their distrust — often warranted — of anything that came out of President Donald Trump’s mouth. After all, during the course of the pandemic Trump dismissed the seriousness of COVID-19 repeatedly, pushed unproven, potentially dangerous remedies like hydroxychloroquine, and even suggested at one memorable press briefing that injecting bleach might help.

So when Trump would use racist terms like the “China virus” in referring to COVID-19, the media were already primed to accept the consensus view touted by Dr. Anthony Fauci and the World Health Organization that the disease had, in fact, jumped from bats to humans in China and from there spread throughout the world.

Indeed, the possibility that COVID-19 had its origins in a Wuhan lab came to be seen as so thoroughly discredited that Facebook began taking down posts about it on the grounds that it was misinformation. The social-media giant reversed itself recently.

A few journalists, including Washington Post columnist Josh Rogin, kept the lab-leak theory alive. Rogin exploded on Saturday with a bitter tweet complaining that most mainstream reporters “actively crapped all over it for over a year while pretending to be objective.”

The tide finally started to turn when a pair of former New York Times reporters, first Nicholas Wade and then Don McNeil, wrote several weeks ago that they had come to regard the possibility of a lab leak as being as plausible as the bats-to-humans theory.

“I now agree with Nick’s central conclusion: We still do not know the source of this awful pandemic. We may never know,” McNeil wrote. “But the argument that it could have leaked out of the Wuhan Institute of Virology or a sister lab in Wuhan has become considerably stronger than it was a year ago, when the screaming was so loud that it drowned out serious discussion.”

Matthew Yglesias, a prominent member of the Substackerati, has offered what I think is the most useful and detailed analysis of what went wrong from a journalistic point of view. He traces much of it to inept reporting about U.S. Sen. Tom Cotton, an Arkansas Republican, who made some provocative statements early on about the possibility of a lab leak. Cotton is well-known as a China hawk, and pretty soon the media were falsely claiming that Cotton had touted the bioweapons fantasy, starting with a sensationalized account in Business Insider and then spreading from Politico and into the mainstream.

“At this point,” Yglesias wrote, “Cotton had achieved what’s really the greatest achievement possible for a Republican Party politician — he was unfairly maligned by the MSM.”

Also getting at an important part of what went wrong is Jonathan Chait of New York magazine, who points to Twitter as the place where mainstream journalists reinforced their views, making it that much harder to re-examine the lab-leak theory.

“Media coverage of the lab-leak hypothesis was a debacle, and a major source of that failure was groupthink cultivated on Twitter,” Chait said, calling the platform “a petri dish of tribalism and confirmation bias.”

So where does all this leave us? I’ll end where I began — with Howard Kurtz. Yes, he’s a conservative, and yes, he’s on Fox News. But he’s also a serious observer of the media who spent years at The Washington Post and CNN. His analysis can’t be easily dismissed. And I think he’s correct that animus toward Trump played a huge role in the media’s consensus that the lab-leak explanation for COVID was propaganda put out by the Trumpist right to deflect attention away from Trump’s numerous failures.

There’s a context that can’t be ignored, of course. Trump lied constantly. His horrendous mismanagement of the pandemic might go down as the greatest failure of any American president — unless you want to count his failure to abide by the results of a democratic election. It’s not difficult to see why journalists decided to accept Fauci’s word on the origins of the pandemic.

But they were wrong. The reality is that we don’t know where COVID-19 came from. The bats-to-humans explanation might be right. The lab possibility might be right. There’s a good chance that we’ll never know.

The whole point of journalism is to seek truth and report it. We failed to do that in this instance. And it ought to remind us of why we need to go about our jobs with humility and an open mind.