Freedom of the Press Foundation’s Seth Stern on the Controversy Around WIRED’s Reporting on DOGE

By Susanna Granieri

Last month, WIRED reporters exposed the identities of six engineers in Elon Musk’s Department of Government Efficiency, leading to a flurry of online chatter.

In one instance, an anonymous account on X reportedly encouraged users to “Doxx them,” further amplifying their identities. According to The New York Times, Musk replied “You have committed a crime.”

The next day, interim U.S. Attorney for the District of Columbia, Ed Martin, Jr., posted an image of a letter to Musk on X, in which he offers his legal services.

Dear @elon, Please see this important letter. We will not tolerate threats against DOGE workers or law-breaking by the disgruntled. All the best. Ed Martin pic.twitter.com/jIgMPVbPT5

— Ed Martin (@EagleEdMartin) February 3, 2025

“I ask that you utilize me and my staff to assist in protecting the DOGE work and DOGE workers,” Martin wrote. “Any threats, confrontations, or other actions in any way that impact their work may break numerous laws. Let me assure you of this: we will pursue any and all legal action against anyone who impedes your work or threatens your people.”

But on Feb. 4, nearly 50 civil rights and free speech organizations, including Freedom of the Press Foundation, signed onto a letter sent to Martin, expressing concerns over his posts on X and the First Amendment implications of any actions taken against WIRED reporters, requesting he “publicly commit to abide by the First Amendment.”

“Threatening to prosecute First Amendment speech and activity is not only at odds with the U.S. Constitution, it is also entirely inconsistent with Musk’s own stated principles and the right of the American people to know what the government is up to,” the letter stated. “Threatening to file frivolous charges against Americans and vaguely insinuating that wide swaths of constitutionally-protected speech and activity could invite criminal investigations and prosecutions may already violate these and other rules of professional conduct. Actually doing so almost certainly would.”

Photo courtesy of Seth Stern

First Amendment Watch spoke with director of advocacy at Freedom of the Press Foundation, Seth Stern, about the First Amendment issues baked into the online exchange. Stern described Martin’s letter as intentionally ambiguous, argued that confusion over DOGE as a quasi-government agency brings its transparency responsibilities into question, and described the free speech issues that may arise from Musk’s roles as a social media platform owner and advisor to the president.

Editor’s note: This interview has been edited and condensed for length and clarity.

FAW: Is DOGE a government-funded agency and is Elon Musk paid as a federal employee?

Stern: ​​I don’t think anyone really knows exactly how DOGE is structured, and I think that that is somewhat intentional. It’s up in the air. But I think that for purposes of the First Amendment, I would submit that someone who is doing work on the government’s behalf, who has access to the public’s records and has been delegated by the president’s authority to make decisions about governance, you are dealing with a public official. And to the extent that ambiguities about whether they are or not part of the government would create problems in determining what their obligations are in terms of transparency. That is an indication that the entire thing is improper in the first place for DOGE to be doing the work it is doing. It should be subject to all of the transparency obligations that come along with being an agency of the government. If it’s not, it shouldn’t be doing that work.

Martin’s letter arises from an assumption that naming or reporting on DOGE agents or employees constitutes doxxing, harassment, concepts that you might apply to private citizens. Of course, nobody was doxxed, nobody listed these people’s home addresses. But putting that aside, the entire framework of Martin’s thinking is based on concepts that usually you would talk about in reference to private citizens. It’s absurd to suggest that government employees at the center of a public controversy cannot be identified or criticized. Martin’s letter and similar sentiments that Musk himself has expressed seem to take for granted the obligations that come with being a public servant, and the extent to which that relates to ambiguity about the exact status of DOGE employees, versus just an ignorance about the transparency obligations of public employees. But the whole thing seems to arise from a belief that DOGE’s people are not subject to the same standards as the rest of the government.

FAW: Is this threat directed towards the WIRED reporting that identified DOGE employees, or could this have been more of an umbrella-type threat towards all press or media covering the efficiency group?

Stern: I think it was intentionally ambiguous. The threat followed an exposé. Elon Musk responded with something to the effect of “You’ve committed a crime.” Pretty much immediately right after that, Martin fired off his first letter, essentially offering his services to Elon Musk to investigate alleged crimes. So taken in that context, it sure seems like the letter was premised on a belief that Musk was correct, that tweeting out the names of DOGE employees originally identified in the WIRED post would be a crime. He did not direct his threat of prosecution to WIRED journalists expressly, but if it is his belief that identifying those employees is criminal, then look, WIRED did that. No doubt about it. As did many people who posted about the WIRED article. Beyond that, it’s just quite disturbing to see a prosecutor offer up his services, and do so publicly. It’s disturbing to see — absent a pending investigation, absent any of the normal formalities that come along with an investigation — a prosecutor using a public platform to offer up their services to a particular individual. DOGE itself also has been credibly accused of illegality on several fronts, and might end up as a defendant at some point before Mr. Martin’s office. So for him to so expressly align himself with somebody so wealthy, somebody so political, somebody at the center of such a heated controversy, based on such frivolous accusations of wrongdoing, is the polar opposite of what you expect from an impartial prosecutor charged with upholding the Constitution and seeking justice apolitically. He phrased his letter, as inartful as it was, ambiguously enough that he could probably deny having specifically threatened WIRED journalists. But that doesn’t really resolve the concern. There are any number of levels of problematic-ness when it comes to that letter.

FAW: Can you summarize the First Amendment implications of Martin’s letter?

Stern: It’s the right to report critically on and identify government employees and public figures more generally, of course, and is ironclad and well-established, as is the right to publish information obtained from the government, or obtained from a source, as long as the journalists themselves or the publisher themselves didn’t participate in any illegal obtainment of that information. So here, there’s no allegation, as far as I know, that WIRED and certainly not any X poster who repeated information reported by WIRED, that anyone had stolen that information, hacked that information, otherwise engaged in any illegality to obtain that information. That means that they are constitutionally entitled to publish it, no questions whatsoever. Doesn’t matter how sensitive the information is. One of the leading cases on this issue, Florida Star v. B.J.F, involved journalists who obtained the names of victims of sex crimes. Hard to imagine anything more sensitive. Is it a good idea for a journalist to publish victims of sex crimes that they obtained from the government? No, probably not. That’s not good journalistic ethics. But as a matter of constitutional law, they’re fully entitled to do it. And this, of course, doesn’t involve victims of sex crimes. It involves quite the opposite extreme. It involves workers at the center of a national controversy. The idea that there’s anything wrong with publishing their names is preposterous. Now it’s possible that he will claim his target was actually posters who had said some threatening or unkind things about these DOGE workers. But first of all, that seems unlikely, given the timing. His letter followed Musk’s accusation that posters had committed a crime by merely identifying the DOGE employees. But even assuming that he is only talking about unfortunately phrased tweets, tweets that say ‘These people should be executed,’ or something to that effect, that is still constitutionally protected speech. There are exceptions for true threats. There’s no indication those people had serious intentions of going and doing anything violent, and the Constitution does make that distinction, the Supreme Court has made that distinction between hyperbolic, violent, even deplorable speech, and actual true threats. And a sitting U.S. attorney should know that.

FAW: Have you received a response from Martin?

Stern: No, and I honestly never expected to receive a response from Martin for sending that letter. The purpose of the letter is more to raise awareness about what Martin’s office is up to, and perhaps to put him on notice of some constitutional law that he might be unfamiliar with. As I said, I think that his letter was intended to chill speech beyond even arguable true threats. I think his letter was intended to chill any criticism of DOGE.

FAW: As the Supreme Court decided in Moody v. NetChoice, social media platforms have a First Amendment right to editorial curation, meaning private companies can moderate content as they see fit. But the court has also decided that public officials can be sued for blocking their critics on social media. Where does Musk fall here? Does he have a First Amendment right, as the private business’ owner, to remove user content from X? Or would he be considered a public official who is therefore infringing on the First Amendment rights of his users?

Stern: It just gets back to the problems that arise from somebody so conflicted playing such a prominent role in government. He not only operates X, he operates numerous entities that get tons of government contracts. But, yeah, it’s not only a matter of speech being removed from X, he is attempting, beyond blocking critics, to make X into essentially state social media. They’re no longer going to email reporters information that they have in the past. They’re going to only post via X. So if you want to follow what that agency has to say, you’re going to have to make an X account, and put money in Elon Musk’s pockets essentially. With Martin’s letter, specifically, you’ve got the interim U.S. Attorney for D.C. advertising to the world that he only sends his correspondence via X. So at what point does this become a government platform rather than a private platform, and to what extent does that impact where it fits in under the First Amendment? A very interesting question. I am not sure I’ve got the answer for it. I think it just highlights the extremely problematic nature of Elon Musk and X’s relationships to the U.S. government at this moment, and let’s not forget, Trump’s got a social media platform, too.

The other issue there is, let’s say that he does have a heightened obligation under the First Amendment when it comes to content moderation, let’s say we analogize X more to a public official blocking folks from their own Facebook page than to the case law governing content moderation by social media platforms. Does that mean that Elon Musk can’t even enforce X’s Terms of Service in good faith? Let’s say he wanted to enforce them in good faith. Can he? It’s all just a big constitutional mess.