In July, Senator Ron Wyden (D-OR) and Representative Jamie Raskin (D-MD) introduced the Protect Reporters from Excessive State Suppression (PRESS) Act (S. 2457) and the Protect Reporters from Exploitative State Spying (PRESS) Act (H.R. 4330), respectively, which would establish reasonable rules for how and when the government can use a compulsory process to obtain information about journalists working within the scope of newsgathering. This Shield Law is critical to supporting and maintaining a free and independent press.
The previous DOJ, under former president Donald Trump, misused its statutory authority to obtain otherwise confidential information from journalists, posing a major threat to journalists. If sources fear losing their anonymity, it will be increasingly difficult for reporters to gather the news and accurately report, as there will be a constant fear of retribution for both journalists and sources.
Unfortunately, there were recent reports of the current DOJ, under President Joe Biden, using its authority to improperly obtain information from and about journalists. While the DOJ’s investigative functions are necessary for certain criminal proceedings, there must be strict measures in place to ensure they aren’t used to harass, intimidate, or thwart journalists in the newsgathering process, as the result would be less news, less transparency, and an uninformed citizenry.
The PRESS Act prevents government overreach in obtaining information that will expose sources, while simultaneously allowing law enforcement officials to get the information they need to investigate and prosecute crimes. The PRESS Act also imposes notice requirements, giving the journalist an opportunity to be heard as well as places limits on the content that government officials can obtain to only that which is necessary for the ongoing investigation.
Following reports that it misused its authority, the DOJ issued a new policy restricting its use of certain provisions against members on the press. This policy limits the DOJ’s ability to use compulsory legal processes to reporters directly, their employers, or to third-party services that may electronically store the reporters’ confidential information. Attorney General Merrick Garland requested that the Deputy Attorney General “further explain, develop, and codify the policy,” including tightening current regulations. The DOJ also vocalized its “support” for “congressional legislation to embody protections [for journalists] in law.”
While these policies are a great way to show that the current DOJ believes in and respects a free and independent press, it is insufficient to fully protect journalists. And, as mentioned above, the DOJ’s own support for legislation indicates it agrees that the policy is insufficient.
The PRESS Act is still necessary to protect the press for three reasons:
- Agency policies and regulations are fairly easy to change. Different administrations’ DOJ policies, goals, and practices can vary heavily. Journalists’ protection from improper investigation should not vary with administration. Preserving the free press requires permanence.
- This new policy is internal to DOJ, fostering a lack of accountability. The federal Constitution was designed with balance of powers in mind, and the DOJ is not exempt. Any agency faces the threat of bad actors, bad choices, and cover-ups. There are countless stories of improper probes and unlawful operations being concealed within an agency to avoid scrutiny. A federal law with appropriate enforcement mechanisms, like the PRESS Act, adds additional accountability and ramifications for bad actors.
- The DOJ isn’t the only agency with the ability to investigate and potentially threaten the free and independent press. While the DOJ’s new policy is a great step towards better protecting journalists, it is not the only federal power that could intimidate the press. The PRESS Act imposes liability across the board—to any “federal entity”—fostering accountability, transparency, and quality journalism.