The US government has allegedly targeted journalists, activists, reporters, and lawyers to raise awareness of issues facing migrants at the US-Mexico border in what appears to be a concerted assault on constitutional rights. What are the limits of the freedom of the press?
2nd week of March 2021, the NBC affiliate in San Diego released leaked documents revealing that officials, including US Customs and Border Protection and the FBI, targeted these journalists and activists for border scrutiny. They also created a secret database containing dossiers containing personal information, social media information, and their migrant-related work descriptions.
This comes after reports in February that CBP subjected journalists to prolonged interrogations and confiscation of their cameras and notes at border facilities. The US government also collaborates with Mexican authorities to prevent photojournalists from reporting on migrant issues in Mexico.
The First Amendment prohibits the government from interfering with press freedom or retaliating against people for their political beliefs. That means the government cannot single out individuals for punishment or harsher treatment merely because it disagrees with their messages.
In this case, the reported facts appear to be a First Amendment disaster. Officials from the Department of Homeland Security compiled a list of activists, advocates, and journalists working with or covering the migrant caravan to flag them for detention and questioning at the US border. And it appears that many activists and lawyers were singled out solely for engaging in First Amendment-protected speech and association, such as speaking out against government policies regarding asylum seekers’ treatment or providing legal representation to asylum seekers.
The Department of Homeland Security also singled out journalists who covered migrant issues. Many journalists were interrogated for hours about what they were reporting and who they had spoken to at the border. Some people were even denied entry to Mexico, ostensibly at the request of US officials.
Such actions jeopardize press freedom as well as the First Amendment rights of individual journalists. Using the border’s coercive environment to force journalists to disclose sources or other sensitive information may deter other journalists from reporting on topics that the US government is interested in. It also raises the possibility that the government would use its authority to suppress reporting on issues. It would prefer the American public didn’t know about the conditions facing migrants at the US border, putting democratic accountability in jeopardy.
CBP claimed that it wanted to interview the advocates and journalists in part because they were on the ground during the border unrest and thus may have witnessed criminal activity. This argument does not hold water. If it did, any journalist in the United States who sees or reports on pressing issues or possible illegal activity could be obliged to hand over sources and information. That would be an end-run around the Department of Justice’s rules for when the government will compel journalists to hand over data for a criminal investigation. According to the guidelines, before forcing journalists to provide information, the government must meet a higher threshold of need. They also serve as a bare minimum for ensuring press freedom.
The boundary is not and cannot be used to justify the government ignoring the Constitution. That would be an end-run around the Department of Justice’s rules for when the government will compel journalists to hand over information for a criminal investigation. According to the guidelines, before forcing journalists to provide information, the government must meet a higher threshold of need. They also serve as a bare minimum for ensuring press freedom.
The boundary is not and cannot be used to justify the government ignoring the Constitution. Even if CBP has the power to stop people at the border to ensure they’re admissible to the US and aren’t transporting contraband, it doesn’t mean it can violate their rights or collect intelligence in the process.
The US government’s retaliation against journalists and activists at the border is alarming and unacceptably harsh. We’re looking into all of our options for holding it accountable.
Journalists covering the arrival of Central American migrant caravans along the US-Mexico border have been harassed, subjected to extra screenings, and targeted by US and Mexican officials.
Since December 2018, the US Press Freedom Tracker has identified at least five journalists detained on the US side of the border while doing their work covering the migrant caravan. Some have been stopped multiple times and placed in situations that jeopardize their privacy, reporting procedures, and confidential sources.
In 2019, Mexican authorities denied entry to at least two journalists and two immigration lawyers trying to travel to the country, causing controversy and raising concerns about public access and press freedom along the border.
The accounts of the journalists — Kitra Cahana and Daniel Ochoa — and the attorneys were nearly identical. When they tried to enter Mexico, Mexican officials arrested them, told them that their passports had been “flagged,” and then turned them away.
Cahana told the Los Angeles Times, “I’m in limbo.” “How do I know what kind of list I’m on? Who put me on this list in the first place? And how many journalists are affected by this?”
It’s unclear whether the alert was put on their travel documents by the Mexican or US governments. Still, both journalists said their passports had previously been photographed by both US and Mexican authorities.
Journalists seeking to enter Mexico and those attempting to enter the United States have been affected by these passport alerts. Border officials told freelance journalist Ariana Drehsler that her passport had been flagged but that they didn’t know why she entered the country via San Diego at the end of last year.
Customs and Border Protection did not say what these “flags” on passports like Drehsler’s were for or why they were placed there. However, every time she has entered the United States since then, she has been subjected to secondary screenings, including questionings that made her feel like an “informant” and searches. She isn’t the only one who feels this way.
Manuel Rapalo, a freelance journalist for Al Jazeera, said he had been stopped at the US-Mexico border three times this year. (The US Press Freedom Tracker has more information on each border stop.)
He said he had changed his behavior to protect his sources and reporting materials because of the frequency of equipment searches during these stops. On each reporting trip, he takes new memory cards to reduce the amount of information that could end up in border officials’ hands.
CBP has recently targeted several journalists who were stopped at the border and questioned their work while covering Central American immigrants’ arrival in Mexico. In January, a filmmaker’s phone was taken by order officials who requested that he unlock it and then take it to a different room.
CBP officers questioned an Al-Jazeera anchor about his social media accounts after his device was confiscated at the border. According to a recent report by the Committee to Protect Journalists, the 37 journalists polled for the information were stopped for screenings more than 110 times between 2006 and June 2018. Journalists were frequently asked to unlock their devices, answer intrusive questions about their reporting, and have their personal belongings searched. Ed Ou, a well-known photojournalist and Canadian citizen, was denied entry to the United States in a particularly egregious case in 2016. CPJ found that CBP’s broad and largely unchecked powers pose a severe threat to press freedom, especially since the agency can share information obtained from journalists’ devices with other federal agencies, including sources and sensitive documents.
“With an administration that is openly hostile to the press and leaks, CBP should implement stricter guidelines to protect all individuals crossing the border’s First Amendment rights,” CPJ concluded.
What are the limits of the freedom of the press? “Press freedom rights should not end at the border,” said Trevor Timm, Executive Director of Freedom of the Press. “These egregious and intrusive border stops endanger both journalists and their sources,” says the report. They also provide authoritarian countries with an excuse to use similar tactics on their borders. CBP and the Trump administration must take responsibility for these upsetting events in public.”
President Biden is facing backlash from the leftover lack of transparency regarding the border crisis. At the same time, other liberals are irritated that he has yet to hold a formal press conference two months after taking office.
On Sunday, The Daily Beast cited an unnamed “veteran White House correspondent” who slammed the Biden administration for not holding a formal press conference yet.
“It’s a problem,” said the anonymous correspondent. “Who are we kidding in this situation? After more than two months, there hasn’t been a press conference. Let’s get this party started!”
According to the correspondent, the lack of availability is “stretching the boundaries of access and transparency,” accusing Biden of “ducking” duties.
“It makes perfect sense from a strategic perspective because why would he want to be constantly asked about his predecessor? Hunter Biden, perhaps? Uncomfortable questions will still arise, regardless of who is in office, “the anonymous correspondent went on. “But there’s a responsibility problem here that he’s been avoiding like the plague. It’s a tad too adorable. They appear to be doing this because they believe it will simply throw them off message.”
“Reporters call out Biden administration for lack of transparency at the US-Mexico border,” a CNN article titled “Reporters call out Biden administration for lack of transparency at the US-Mexico border,” detailed journalists’ dissatisfaction with the lack of access to the cage-like structures holding migrant children.
According to the press, members of the mainstream media are fed up with the lack of access to both Biden and the border crisis.
“I’ve photographed CBP under Bush, Obama, and Trump, but now — zero access is granted to media,” Getty Images special correspondent John Moore tweeted, which was one of CNN’s picks.
“I respectfully request that US Customs and Border Protection stop barring journalists from covering their border operations.”
The situation at the US-Mexico border is becoming so bad that CNN’s Pamela Brown chastised the Biden administration for denying migrants access to the airwaves.
In a segment over the weekend, Brown looked at the migrant surge and overburdened Border Patrol facilities, telling viewers that “as the situation at the US-Mexico border gets worse, the media is being kept away from it.”
The Biden administration was also chastised by the Radio Television Digital News Association over the situation. “The Border Patrol’s and Department of Homeland Security’s lack of information and cooperation has created a void that conventional biased sources are filling with information that serves only their political interests. This dynamic is not conducive to journalists’ attempts to transmit unbiased information to the public, nor is it conducive to heated debate among elected officials at both the local and national levels “In a letter to the administration, RTDNA executive director Dan Shelley requested greater Border Patrol access for journalists.
“At a time when the United States’ southern border is experiencing a historic surge of migrants, it is more crucial than ever that journalists be given the level of access to accurately report and independently on the Border Patrol’s reaction to the increased arrival of migrants and the well-being of those housed in Border Patrol facilities,” Shelley continued.
What are the limits of the freedom of the press? It is a dangerous road to trample on the civil liberties our great nation were founded upon.
President Biden will hold his first official news briefing on Thursday afternoon, marking the first time in the last 100 years that a new president has gone without one. People on both sides of the aisle are concerned about a lack of transparency.
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