The Media Today

The Supreme Court stamps on freedom of information

June 25, 2019

In 2011, the Argus Leader, a newspaper in Sioux Falls, South Dakota, was at work on a project about access to food and potential fraud in the food stamp program, which retailers administer in cooperation with the government. Jonathan Ellis, a reporter at the paper, requested data from the Department of Agriculture, which runs the program at the federal level, under the Freedom of Information Act, or FOIA. The department said no; the data Ellis requested, it argued, pertained to businesses, and was confidential. In response, the Argus Leader sued; it won, and the government decided not to appeal the verdict. But Ellis still did not get the data. The Food Marketing Institute, an industry group representing retailers, picked up the case and took it to an appeals court; when that court, too, upheld the Argus Leader’s request, the group—backed by the US Chamber of Commerce—escalated its secrecy fight all the way to the Supreme Court.

The court, which heard arguments in the case in April, issued a ruling yesterday against the Argus Leader. The Freedom of Information Act has always allowed private government contractors to claim an exemption on confidentiality grounds, but—under a precedent set in 1974—contractors have had to show that disclosing the requested information would cause them competitive harm. Yesterday, in a 6-3 vote, the Supreme Court ruled to make that test substantially less strict: going forward, contractors will be able to keep any “commercial and financial information” they give to the government secret at their discretion, as long as the government gave them an “assurance” that it will remain private. As Justice Stephen Breyer wrote in his dissent, the ruling establishes certain information as “confidential” not because it is legitimately sensitive, but because those who possess it want to keep it that way. The ruling, Breyer fears, “will deprive the public of information for reasons no better than convenience, skittishness, or bureaucratic inertia.”

ICYMI: Our Times public editor on ignoring a scoop that’s not your own

The Argus Leaderand press-freedom advocates—expressed similar concerns. Cory Myers, the paper’s editorial director, called the verdict “a massive blow to the public’s right to know how its tax dollars are being spent, and who is benefiting.” Ellis, who filed the initial FOIA (and co-wrote yesterday’s Argus Leader piece on the ruling), tweeted that while the Department of Agriculture’s denial of his request was never legitimate, “today, six members of the US Supreme Court used it as a vehicle to wipe out more than 40 years of established FOIA precedent.” Later, Ellis said he was “truly sorry to my colleagues who work to hold government accountable that my FOIA request was used to undermine our work. If I could go back in a time machine and change this I would.”

Clearly, none of this is Ellis’s fault. But experts fear that the court’s ruling will make journalists’ lives more difficult. “Businesses in regulated industries will be the main beneficiaries of this decision, while the press and public will have a harder time using the FOIA to investigate such businesses and their interactions with government agencies,” Jonathan Peters, a media law professor at the University of Georgia and CJR’s press freedom correspondent, tells me in an email. Michael Morisy, founder of MuckRock, a collaborative news site focused on FOIA and transparency, adds that the ruling will be particularly damaging in a climate of increasing privatization of government services. “Already, at the state level, we see contractors push the meaning of confidential trade data to include everything from how much they charge agencies (and therefore, the public) to the header columns of spreadsheets that summarize public data,” he tells me in an email.

While this is a federal ruling on a federal law, local reporters will not be spared the impact. State governments have their own freedom of information laws which will not directly be affected by the Supreme Court’s decision. But reporters such as those at the Argus Leader commonly look at the local footprint of federal programs. And, as Avi Asher-Schapiro, of the Committee to Protect Journalists, reported ahead of the Argus Leader hearing in April, some states lack significant case law around access to information, and thus often use comparable federal laws as guidance.

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Ultimately, the Supreme Court’s decision only adds to the mounting impediments American journalists face at work. Trump’s anti-press attacks grab the headlines, but subtler trends like the weakening of transparency laws may have a deeper impact. “This decision is of a piece with government efforts nationwide to shield information and events from public view,” Peters says. “It’s offensive to the basic idea that our democratic system is based on the will of the people… The Argus Leader case does even more damage to that idea.”

Below, more on the Argus Leader, FOIA, and the Supreme Court:

  • “There’s hope!”: On Twitter, Ángel S. Díaz, a lawyer at the Brennan Center for Justice, argues that laws should be passed to ban the government from promising secrecy to contractors—thus circumventing the “assurance of privacy” exemption outlined in the Argus Leader ruling. An example, per Díaz: “Oakland’s ordinance regarding the acquisition and use of surveillance technology prohibits the city from entering into contracts that conflict with the law’s transparency and oversight requirements.”
  • FUCT check: There were some victories for transparency at the Supreme Court yesterday. The court granted a motion, filed by NPR and the Reporters Committee for Freedom of the Press (which also supported the Argus Leader in its case) to unseal documents related to Alabama’s use of a controversial execution method. And it struck down a federal provision barring the registration of “scandalous” trademarks, ruling that it violates the First Amendment. Clothing designer Erik Brunetti can now apply to register his brand, FUCT.
  • Trying to FOIA Mueller: Also yesterday, a federal judge in Washington released new information about the “scope and speed” of Robert Mueller’s investigation, granting a request from CNN. Meanwhile, BuzzFeed’s Jason Leopold and the Electronic Privacy Information Center filed an opening brief in their bid to further unredact Mueller’s report.
  • Further impediment: According to a recent report by CNN’s Ellie Kaufman, the Interior Department developed a policy requiring political appointees to sign off on certain documents requested under FOIA—“a process critics say is injecting politics into what is supposed to be a nonpolitical process.” After the story published, an Interior spokesperson denied such a review process exists.

Other notable stories:

  • I noted in yesterday’s newsletter that on Friday, the New York Post took down articles about E. Jean Carroll’s allegation that Trump raped her. Now CNN’s Oliver Darcy and Marianne Garvey report that the story was ordered removed by Col Allan, the former Post editor who came back as an adviser earlier this year. Allan is a vocal Trump supporter and key lieutenant of Rupert Murdoch. Across town, Dean Baquet, editor of the Times, admitted that his paper’s coverage of Carroll’s account was “overly cautious”; the Times downplayed it because it could not locate additional sources to corroborate it, he explained. Gabriel Snyder, CJR’s public editor for the Times, responded to Baquet: “The public loses out when institutional ego displaces readers as top priority,” he wrote.
  • Meanwhile, Maria Bustillos, CJR’s public editor for MSNBC, writes that a recent focus on “meaningless polls and predictions” has led the network to pay disproportionate attention to Joe Biden among the Democratic candidates for president. Last week—after Biden attested to the “civility” of his working relationships with segregationist senators—MSNBC’s coverage reflected “the San Andreas fault line” in the Democratic Party, but evolved to find “a newly pluralistic, thoughtful, and nuanced footing,” Bustillos writes. (If you’re wondering what “CJR’s public editor” means, you can find details here.)
  • Facebook is building its own “Supreme Court,” Bloomberg’s Kurt Wagner reports. The exact structure has yet to be decided, but the company plans to appoint a 40-person “Content Oversight Board” that would review controversial decisions made by Facebook content moderators. Groups such as the Electronic Frontier Foundation have given Facebook feedback on the proposal. “Our biggest concern is that social media councils will end up either legitimating a profoundly broken system (while doing too little to fix it) or becoming a kind of global speech police,” the EFF’s legal director wrote.
  • An odd-couple moment: Joseph Romm, a climate writer at liberal website ThinkProgress, and Carl Cameron, a former Fox News reporter, are teaming up to launch, a self-styled “liberal antidote” to the Drudge Report, The Washington Post’s Erik Wemple writes. Where Drudge aggregates news reports with a conservative spin, Romm sees FrontPageLive as “a ‘viralizing engine’ for the other side.”
  • For New York’s The Cut, Allison P. Davis charts the decline and fall of, a “millennial/Gen-Z-oriented website” whose controversial #MeToo story about Aziz Ansari went viral in January 2018. Thirteen months later, the site shuttered. It’s unclear, Davis writes, whether Babe’s inexperienced staff “recognized the parallels between the gray-area #MeToo themes of its Ansari piece and the complicated sexual power dynamics of their own office, the ones that would partly lead to the collapse of the site.”
  • Texas Monthly is exploring a sale. “The magazine was bought for about $25m three years ago by a private equity firm run by Paul Hobby, the scion of a well-connected Texas family,” the Financial Times’s Mark Vandevelde and Sujeet Indap report. “A sale could be announced as early as next week… although no deal has been agreed and Mr Hobby could yet elect to retain ownership.”
  • In Australia, the Herald Sun—a Murdoch-owned tabloid that recently laid off 55 editorial staffers who lacked digital skills—will pay its reporters bonuses if their stories drive online subscriptions and traffic, The Guardian’s Amanda Meade reports. “The danger of a rewards scheme based on popularity is that sensational stories and stories on crime and entertainment are often better read than policy or political analysis,” Meade writes.
  • And for CJR’s print issue on journalism around the world, Andrew Curry profiles Axel Springer, the publishing giant that owns Business Insider and Politico Europe as well as newspapers in multiple European countries. “A journalistic force in Germany since the late 1940s, Axel Springer has achieved, thanks in large part to digital classifieds, what few other media companies have managed: to adopt a new, online identity,” Curry writes.

ICYMI: E. Jean Carroll’s Trump rape claim did not get enough coverage

Jon Allsop is a freelance journalist whose work has appeared in the New York Review of Books, Foreign Policy, and The Nation, among other outlets. He writes CJR’s newsletter The Media Today. Find him on Twitter @Jon_Allsop.