In the second half of 2019, legal action continued in cases stemming from the murder of a Saudi journalist and the detaining of a Salvadoran journalist. On Aug. 6, 2019, U.S. District Court for the Southern District of New York Judge Paul A. Engelmayer denied a request by two federal agencies to reduce the quantity of records they needed to process in response to Freedom of Information Act (FOIA), 5 U.S.C. § 552, requests stemming from October 2018 murder of journalist Jamal Khashoggi. In July 2019, the U.S. Department of Justice (DOJ) Bureau of Immigration Appeals (BIA) reopened the case of detained Spanish-language journalist Manuel Duran Ortega.
Meanwhile, on Aug. 19, 2019, the Malheur Enterprise, a local weekly newspaper in Malheur County, Ore., reported that local public officials had requested a criminal investigation into whether the newspaper violated harassment laws by contacting public officials and employees through personal channels outside of work hours, prompting criticism from media experts. Finally, on October 13, The New York Times reported that at a conference held by a group supporting President Donald Trump, a video was played depicting a fake President Trump shooting, assaulting, and stabbing individuals with logos of different media outlets superimposed on their heads, prompting concerns from media advocates and experts.
Court Doubles Down on Processing of 5,000 Pages of Records Each Month in FOIA Case Stemming from Khashoggi Murder
On Aug. 6, 2019, a federal judge denied a request by two federal agencies to reduce the quantity of records they needed to process in response to Freedom of Information Act (FOIA), 5 U.S.C. § 552, requests regarding the murder of journalist Jamal Khashoggi. Open Society Justice Initiative v. Central Intelligence Agency, 399 F.Supp.3d 161 (S.D.N.Y Aug. 6, 2019). U.S. District Court for the Southern District of New York Judge Paul A. Engelmayer ordered the U.S. State Department and the U.S. Department of Defense (DOD) to continue processing at least 5,000 pages of potentially responsive records per month.
The case arose from a FOIA request filed in December 2018 by the Open Society Justice Initiative (OSJI), a human rights organization, seeking records related to the killing of Khashoggi, a Saudi national and U.S. resident who wrote a column for The Washington Post. Khashoggi was last seen going into the Saudi consulate in Istanbul on Oct. 2, 2018. (For more information on the background of Jamal Khashoggi’s murder, see Washington Post Columnist Jamal Khashoggi Killed in Saudi Consulate in Istanbul in “Journalists in the United States and Abroad Face Threats of Violence and Incarceration,” in the Fall 2018 issue of the Silha Bulletin.)
OSJI filed the lawsuit in January 2019 after the statutory 20-day response period to make a disclosure determination elapsed, according to the complaint. As the litigation ensued, the State Department requested a processing rate of 300 pages per month while OSJI asked for a processing rate of 7,500 pages per month.
In May 2019, Judge Engelmayer ordered the State Department to process 5,000 pages per month. He also required the DOD to process 5,000 pages per month from July onward. Both departments filed a motion asking Engelmayer to reconsider.
Under FOIA, an agency must process an expedited request “as soon as practicable.” The State Department argued that it was not “practicable” to process 5,000 pages per month, citing its experience complying with the order for the first month, which it said was difficult and had an adverse effect on its FOIA operations overall. Engelmayer rejected this argument, finding that the word “practicable” “must be read in the context of FOIA’s aims to provide timely information on government activities to the public.” He added that the 5,000-page-per-month processing rate “still contemplates a protracted period of review and production” and “appropriately balances agency constraints against that aim.”
The DOD argued, in part, that it could not meet the processing requirement because it lacked e-discovery software and, therefore, all records must be reviewed on a line-by-line basis by staff members. Engelmayer also rejected this argument, calling the department’s FOIA review capabilities “antiquated.” He contended that the department could upgrade its technology to meet the demands of the court order. “DOD’s decision to thus far deny itself the technologic capacity to speed its review cannot dictate the Courts assessment of the review pace that is ‘practicable’ under FOIA,” Engelmayer wrote.
In upholding the 5,000-page-per-month processing rate, Engelmayer noted that the departments would be processing the records for a significant period of time, which meant the processing rate should not be lowered. At the time of the initial order, the State Department estimated there were 63,000 pages of potentially responsive records. That estimate grew to 288,000 pages, which would take slightly less than five years to complete. The DOD estimated there were 22,637 potentially responsive records, which would take more than five months to process.
Engelmayer continued, “The outcome struck by the Court attempted to balance the paramount interest in visibility — in public access to non-exempt records bearing on this consequential topic of urgent public concern — against the State Department’s resource constraints and competing priorities.” He added, “The Court is respectful of these limitations. The Court does not minimize that compliance with this request will draw more heavily on the State Department’s FOIA resources than most other requests.” The full ruling is available online at: https://www.justiceinitiative.org/uploads/2a3eafeb-175e-4005-a882-14bd2aded52c/US-SDNY-8-6-19-Decision.pdf.
In a statement to the Associated Press (AP), OSJI attorney Amrit Singh said the opinion was “a clarion call for accountability at a time when [President Donald Trump’s] administration is doing everything possible to hide the truth on who is responsible for Khashoggi murder.”
Manuel Duran Ortega Freed on Bond as Asylum Case Proceeds
On July 11, 2019, Spanish-language journalist Manuel Duran Ortega was released from jail on bond as the federal government considered his request for asylum in the United States. Nine days earlier, the U.S. Department of Justice (DOJ) Bureau of Immigration Appeals (BIA) reopened Duran Ortega’s case after being required to do so by the U.S. Court of Appeals for the Eleventh Circuit.
Previously, on Sept. 4, 2018, U.S. District Court for the Western District of Louisiana Judge Dee D. Drell denied the Salvadoran journalist’s habeas corpus petition, finding that the detention of Ortega was not retaliation for the journalist’s critical stories about the Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), and local police. Duran Ortega v. U.S. Department of Homeland Security, No. 1:18-cv-00508 (W.D. La. 2018).
Duran Ortega was arrested by Memphis police on April 3, 2018 while reporting on a protest against the alleged practice of turning detained immigrants over to ICE, instead of releasing them. Duran Ortega was charged with obstruction of a highway and disorderly conduct, both misdemeanor charges. Although the charges were dropped two days later, Ortega was transferred into DHS custody.
On April 13, 2018, Duran Ortega filed a petition for a writ of habeas corpus, which are used in order to allow detainees to challenge the legality of their detention. In the petition, Duran Ortega asserted that he was being detained “in order to punish and suppress his speech as a journalist, in violation of the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution.”
A June 20, 2018 amici curiae brief filed by the Society for Professional Journalists (SPJ) and several additional media organizations explained that “[b]oth journalist organizations and the media itself have documented a recent and alarming rise in incidents of violence against [El Salvador’s] journalists, particularly those who report on organized crime and government corruption.”
The brief also argued that in addition to Duran Ortega’s risk of death in El Salvador, attempting to deport him also ran afoul of the First Amendment because it would be retaliation for his news coverage of immigration issues and the Memphis Police Department (MPD), which arrested him. Duran Ortega regularly published investigative and hard-hitting stories about the department’s relationship with ICE and its treatment of racial minorities. In 2017, Duran Ortega revealed that contrary to the Memphis mayor’s public statements, the MPD was collaborating with ICE; the police department asked Duran Ortega to remove the story and he refused. According to the brief, Duran Ortega’s reporting also got national attention in 2018 when he exposed how MPD had left a murder victim’s body in van for nearly 50 days.
“There is substantial evidence that both the MPD and ICE are seeking Mr. Duran Ortega’s removal to punish him for his constitutionally protected speech and to prevent him from engaging in such speech in the future,” the brief stated. “Official conduct with such a retaliatory and censorial purpose is patently unconstitutional, both squelching Mr. Duran Ortega’s speech and interrupting the flow of information to the community about matters of indisputable public concern.” The full brief is available online at: https://www.spj.org/pdf/ldf/ortega-brief.pdf.
On Sept. 4, 2018, Drell denied Duran Ortega’s habeas petition, finding first that Duran Ortega’s claims against the MPD for “retaliation and press suppression” were “moot.” (For more information on Duran Ortega and Drell’s ruling, see Judge Allows ICE to Detain Salvadorian Journalist Who Spoke Out Against the Agency in “Journalists in the United States and Abroad Face Threats of Violence and Incarceration” in the Fall 2018 issue of the Silha Bulletin.)
However, on July 2, the BIA agreed to reopen his case. The move came after the Eleventh Circuit ordered the BIA to reopen Duran Ortega’s removal proceedings. The Eleventh Circuit panel did not opine as to the basis for its decision, but in a concurrence, Judge Beverly B. Martin wrote that BIA erroneously denied Duran Ortega’s motion to reopen his case by failing to consider evidence of an uptick in attacks on journalists. The Eleventh Circuit’s decision is available online at: https://www.splcenter.org/sites/default/files/documents/duranortega_stay_11thclean.pdf.
In a statement after his release, Duran Ortega said: “I feel like I’m reborn. I am happy for this day. It has been a very difficult time but thanks to God, this is the day I waited for. I am grateful for my team, family, and my community for all the help.”
As the Bulletin went to press, the BIA had not yet ruled in Duran Ortega’s asylum case.
Local Officials Sought Criminal Probe into Whether Newspaper Harassed Them; Press Freedom Experts Call Investigation was Intimidation Tactic
On Aug. 19, 2019, the Malheur Enterprise, a local weekly newspaper, reported that officials in Malheur County, Ore. had requested a criminal investigation into whether the newspaper violated harassment laws by contacting public officials and employees through personal channels outside of work hours. The request for an investigation came after the newspaper raised questions about economic development projects in the county. On August 21, the sheriff announced his determination that there was no basis to open a criminal investigation.
Malheur County Counsel Stephanie Williams asked Sheriff Brian Wolfe to investigate whether the Enterprise violated a state law criminalizing telephone harassment, according to the newspaper’s reporting. The law states that someone has committed telephonic harassment “if the caller intentionally harasses or annoys another person” by calling a number the caller has been forbidden to dial. The same prohibition applies to text messages. 2017 ORS § 166.090.
Greg Smith, the county’s economic development director, had asked the newspaper to restrict its contact with his office by limiting communications to office hours and to one official email address. “It is not appropriate that you are sending emails to employees using their personal email accounts on the weekends,” Smith wrote to the newspaper. Smith claimed that he and other economic development staff had been targeted by emails “at all hours of the day,” and he asked the newspaper “to not have our employees contacted outside of their work place.” Smith said his office was “instructed” to produce emails from the newspaper to the sheriff’s office.
According to the newspaper, Smith had disclosed his personal mobile phone number at a public meeting. He said he was available “24-7” and added, “At any time that anyone has any questions or concerns, please call me directly.” His personal cell phone number also was listed on official news releases. Williams’ referral to the sheriff’s office said Smith asked that he not be called and that this request was “disregarded,” according to The Washington Post on Aug. 20, 2019. The Post also reported that Smith previously stonewalled Enterprise journalists in the course of reporting. In one instance, he replied to a query by writing, “Should economic harm occur from your story, I will be happy to provide you the names of my legal team.” Smith also reportedly ignored written questions from reporters.
Malheur Enterprise editor Les Zaitz asserted that neither the newspaper nor any of its staff broke any laws in the course of reporting. “Our news staff has sought information from county officials concerning important public business using standard and professional methods,” Zaitz said in the newspaper’s account of the controversy. “At no time has anyone from the Enterprise abused any personal cell number of a government official.”
Zaitz also questioned the timing of the complaints, which came after the newspaper ran investigative stories about Smith’s actions and the county’s economic development efforts. The reporting raised questions as to whether Smith had a conflict of interest between his business, the county’s economic development efforts, and his role as a state legislator. “Suggesting that professional journalists are behaving as criminals in gathering vital information for the community appears to be an effort to silence and intimidate the Enterprise,” Zaitz said. He added that he was concerned the sheriff’s office would use the harassment complaint as a pretext to execute a search warrant in the newspaper’s offices.
In a story about the case, Reporters Committee for Freedom of the Press (RCFP) attorney Adam Marshall told the newspaper that seeking comment from officials is not a crime. He said the sheriff’s investigation “seems like an intimidation tactic that is deeply disturbing.” The job of the press, Marshall said, is “to ask questions of public officials, to inform the community as to what’s going on, and that a public official would dream of referring that to law enforcement is absurd.”
On Aug. 21, 2019, the Enterprise reported that Wolfe determined there was “no basis to open a criminal investigation” into the newspaper. “We will not be opening an investigation,” Wolfe told the Enterprise. Williams, the county attorney, provided emails but no phone records or other evidence of alleged telephonic harassment.
The sheriff’s office had been contacted by people from around the United States about the inquiry. “We believe in free speech and freedom of the press,” Wolfe told the Enterprise. “As long as I’m here, that will not be violated.”
University of Oregon Professor Kyu Ho Youm told The Washington Post that Malheur officials were “undoubtedly overreaching their boundaries as government officials and criminalizing ordinary phone calls and emails that are a part of news reporting. It is fundamentally antithetical to freedom of the press in the United States, and this is more intimidation than anything that responsible government authorities [would do].”
Video Depicting Violence Against News Outlets Shown at a Pro-Trump Event
On Oct. 13, 2019, The New York Times reported that it had obtained footage of conference proceedings held by a group supporting President Donald Trump in which a video was played depicting a fake President Trump shooting, assaulting, and stabbing individuals with logos of different media outlets superimposed on their heads. Observers noted that the video marked the latest instance of supporters of the President depicting violence against the media, with some arguing that the President’s past anti-press rhetoric fueled such actions and beliefs.
The video was a clip edited from a church massacre scene in the 2014 movie “Kingsman: The Secret Service.” It depicted “a fake Trump’s head edited onto the body of a man opening fire in the ‘Church of Fake News’ on a group whose faces were edited to appear as a group of Trump critics and news organizations,” according to CNN on October 13. The clip ended with President Trump “driving a stake into the head of a person who has the CNN logo for a face before standing and smiling as he looks around.” The Times also reported that the clip included the logo for Trump’s 2020 reelection bid.
According to the Times, an individual “who attended the conference last week took a video of the clip on his phone and had an intermediary send it to a reporter for [the Times].” The clip was shown at President Trump’s National Doral Miami hotel during a three-day conference held by American Priority. According to the Times on October 15, the creator of the video operated online under the name “The GeekzTeam” and had previously stated that Twitter was to be a “red blooded American with ZERO tolerance for the liberal agenda.” The Times contended that this individual was one of many that “specializes in creating pro-Trump internet content, often by remixing the president’s image into clips from popular movies and television shows.”
According to the Times, several of President Trump’s supporters at the event, including Florida Gov. Ron DeSantis (R), former White House press secretary Sarah Huckabee Sanders, and Donald Trump Jr., said they did not condone the violence portrayed in the video and that they were not aware it was being played. As the Bulletin went to press, President Trump had not commented on the video.
In a statement, Alex Phillips, the organizer of the event, asserted that “an unauthorized video was shown in a side room” at the event, but that it “was not approved, seen, or sanctioned” by organizers, according to CNN.
In an October 13 statement, CNN wrote, “Sadly, this is not the first time that supporters of the President have promoted violence against the media in a video they apparently find entertaining — but it is by far and away the worst. The images depicted are vile and horrific.” The statement continued, “The President and his family, the White House, and the Trump campaign need to denounce it immediately in the strongest possible terms. Anything less equates to a tacit endorsement of violence and should not be tolerated by anyone.”
The White House Correspondents’ Association (WHCA) agreed in a separate statement, contending that “[a]ll Americans should condemn this depiction of violence directed toward journalists.” In the statement, Jonathan Karl, the president of the association, added, “The WHCA is horrified by a video reportedly shown over the weekend at a political conference organized by the President’s supporters at the Trump National Doral in Miami.. . . We have previously told the President his rhetoric could incite violence. Now we call on him and everybody associated with this conference to denounce this video and affirm that violence has no place in our society.”
Previously, on July 2, 2017, President Trump garnered criticism for tweeting a video in which he was portrayed wrestling and punching a man whose face was superimposed with the CNN logo. The New York Times reported on July 2 that President Trump tweeted “#FraudNewsCNN #FNN,” which was accompanied by an edited clip from President Trump’s appearance at WrestleMania, an annual professional wrestling event. At the event, Trump wrestled World Wrestling Entertainment (WWE) CEO Vince McMahon, whose head was replaced with the CNN logo in the 28-second clip.
According to the Times, the video first appeared in June 2017 on a Trump-dedicated page on Reddit. The video became @realDonaldTrump’s most-shared tweet, according to The Hill on July 5. Journalists and media advocates denounced the president’s tweet as a threat to their safety and an unpresidential move. “I think it is unseemly that the president would attack journalists for doing their jobs, and encourage such anger at the media,” New York Times executive editor Dean Baquet said in a July 2 statement. (For more information on the 2017 video, see Trump Tweets Video Depicting Himself Wrestling “CNN”; CNN’s Decision to Withhold Reddit User’s Name Prompts Ethical Concerns in “Journalists Face Physical Restraints and Arrests; Trump Video Raises Further Concerns about Violence Against the Media” in the Summer 2017 issue of the Silha Bulletin.)
— Jonathan Anderson
Silha Research Assistant