Journalists play an important role in our nation’s democracy. By gathering and reporting the news, they ensure that Americans are educated about current events in their communities and how the government is responding to events of the day. Journalists report from the front lines to cover news events, often putting their health and safety at risk. Fact-based, credible news has never been more important as citizens in our country crave information about what is going on around them.
The News Media for Open Government advocates for policies that would protect reporters and enable them to carry out their newsgathering responsibilities without the threat of violence, actions that disrupt the newsgathering process, or measures that chill the communications between the press and the public, including whistleblowers. That is why our coalition supports the enactment of the Journalist Protection Act, the Right to Record Police Act, and the enactment of a federal shield law.
Journalist Protection Act
Journalists serve the public by seeking and reporting the truth. Over the past year, our world has changed dramatically, and journalists are helping us understand it. The pandemic, the call for racial justice, and the rapidly changing political dynamics are all seen through the lenses and keyboards of journalists across the country.
However, it has never been more dangerous to be a journalist in America. The U.S. Press Freedom Tracker recorded 438 physical attacks on journalists in 2020, more than three times as many as the previous three years combined. It is equally troubling that journalists’ First Amendment rights have been disregarded by law enforcement. According to the Freedom Tracker, 139 journalists were detained or arrested by law enforcement while reporting on public events in 2020 — a 15-fold increase over the previous year.
The Journalist Protection Act (JPA), sponsored by Sen. Richard Blumenthal (D-CT) and Rep. Eric Swalwell (D-CA), would make it a federal crime to intentionally cause bodily harm or threaten a journalist in a manner designed to intimidate them from gathering or reporting the news. NMOG believes that enactment of the Journalist Protection Act will send a strong message by reaffirming the First Amendment protections granted to our nation’s journalists and give federal prosecutors the ability to prosecute individuals who assault or intimidate journalists. The Journalist Protection Act will uphold the principles of the free press and help reporters feel safer as they carry out their journalistic duties.
Right to Record Police Act
During the public protests against racial inequality during the summer of 2020, many journalists covering the demonstrations were prevented from doing their jobs when law enforcement confiscated their smartphones and digital cameras. These actions by law enforcement impinge upon the ability of journalists to report on newsworthy events and are a violation of the freedom of the press granted by the First Amendment.
Some federal appeals courts have upheld the right to record police, but considerable ambiguity remains. NMOG believes it is essential that the federal government reform and remove any vagueness about journalists’ rights to record and photograph police in public spaces, subject to reasonable time, place, and manner restrictions.
The Right to Record Police Act, sponsored by Rep. Eric Swalwell (D-CA), would protect journalists’ rights to record and photograph police activity in public — an essential piece of legislation that is vital for both democracy and for preventing police from abusing their power. The bill would create a federal right to record law enforcement, allowing individuals to sue for damages if their rights are violated. It also would create an incentive for states to adopt similar laws.
A Federal Shield Law
When necessary, journalists rely on confidential sources to produce groundbreaking investigative reporting and shed light on wrongdoing or mismanagement by the government or private actors. If potential sources, including government and corporate whistleblowers, fear that journalists will be forced to reveal their identities, these sources will not come forward, and the public will lose the ability to hold the government and corporations accountable. Whether it is the mistreatment of soldiers at Walter Reed Army Medical Center, safety problems at nuclear power plants, the National Security Agency’s secret and warrantless wiretapping program, or rampant steroid abuse in major league baseball, groundbreaking stories would have remained unknown both to the public and to Congress without information from journalists’ confidential sources. In addition to chilling potential whistleblowers, lack of protection for sources could lead to journalists not pursuing investigative stories to minimize the risk of being subpoenaed, increased costs to media outlets responding to or challenging subpoenas, and time away from newsgathering — all of which negatively impact the public’s right to accurate, trustworthy news.
Shield laws allow journalists an absolute or qualified privilege to refuse to disclose their sources and information discovered in their research. Nearly all 50 states have enacted some variation of shield law, but there is no protection against prosecutors or civil litigants seeking confidential source information in federal court.
Over the years, bipartisan members of Congress have introduced the Free Flow of Information Act, which would establish a qualified privilege for reporters. The legislation sets forth reasonable and well-balanced ground rules for when a journalist can be compelled to testify about confidential sources, including where information is needed to prevent an act of terrorism or other significant harm to national security. The House of Representatives passed the Free Flow of Information Act twice: once when the Democrats controlled the House, and once when the Republicans controlled the chamber. The legislation also passed the Senate Judiciary Committee twice but was not considered by the full Senate.
News Media for Open Government believes it is time for Congress to enact legislation that would establish reasonable standards that will inform prosecutors, civil litigants, and journalists of when confidential source information from a reporter can be sought and when it must be protected.