PRESS Act needed now to preserve First Amendment freedoms, stop surveillance of journalists
In today’s polarized political climate, Sen. Mitch McConnell has a unique opportunity to support a completely bipartisan proposal to enhance constitutional protections in the Senate’s end-of-year omnibus bill: the PRESS Act.
The PRESS Act would finally put a stop to the federal government’s increasingly common practice of abusing its power to spy on journalists, and threatening them with arrest if they don’t give up their sources. Government surveillance not only intimidates journalists, it scares citizens out of risking their jobs or freedom to come forward with newsworthy information that we all have a right to know.
The bipartisan act passed the House unanimously in September but, unless it is included in a year-end omnibus bill, it will likely die a quiet death when the 117th Congress adjourns. It could be years before a similar opportunity arises.
McConnell, along with other congressional leaders, should take the opportunity to send a strong message of support for free speech rights by making the PRESS Act the law of the land.
Nothing about the PRESS Act should be controversial. It protects all journalists and media outlets, regardless of political leanings or credentials, so that no administration, present or future, can circumvent the law to pursue adversarial reporters.
Every Republican in the House voted for it. Forty nine states, including Kentucky, recognize similar privileges for journalists. Coalitions of major media outlets, civil liberties organizations, and good government groups have come out in support of the act, which is co-sponsored in the Senate by Republican Mike Lee and Democrat Ron Wyden.
Those who believe the mainstream media is too cozy with the establishment should embrace the PRESS Act – it would allow journalists to dig deeper by relying on unofficial sources without fear of arrest. It would also empower alternative outlets that don’t have the resources to fight subpoenas and court orders.
That’s among the reasons conservatives from Mike Pence to Lindsey Graham to Jim Jordan have supported similar “shield” legislation in the past and the PRESS Act has been lauded by prominent Republicans including former House Judiciary Chair Bob Goodlatte. Current Senate Judiciary Chair Dick Durbin announced his strong support in a letter this week to the Chicago Sun-Times, noting the act’s common sense exemptions to alleviate any national security concerns.
There is momentum behind protecting journalists after the Department of Justice implemented a new policy earlier this year restricting reporter subpoenas because government surveillance “impair[s] newsgathering.” Those policies are easily repealable, though.
More permanent protections are necessary because, despite nearly unanimous agreement that surveilling journalists is wrong, the government can’t seem to kick the habit. Both parties have proven unable to resist the temptation to abandon their principles and harass (or worse) reporters.
The DOJ may have adopted its new policy in response to Trump administration secretive seizures of records from journalists, but this is not a Trump issue, by any means.
The Obama administration, for example, seized records from the Associated Press and Fox News’s James Rosen, calling him a criminal “co-conspirator” because he obtained documents from a source. This alleged “crime” had previously been known as journalism. The PRESS Act would not have permitted that ordeal.
Cases with presidential implications get the most attention but journalists are even more often harassed in local prosecutions. In just the last few months, a Boston reporter who broke a Harvard admissions scandal and the Chicago journalist who exposed musician R. Kelly’s sex crimes were both rewarded for their efforts with federal subpoenas. There are too many other examples to list.
Journalists, of course, do not work for the government and need independence to thrive. They cannot be truly independent when prosecutors can piggyback on their hard work by seizing their notes, emails and metadata and involuntarily enlisting them to prove their cases. There is no telling how many important stories the public has missed out on because of the chilling effect of these all-too-frequent intrusions.
The time is now for the federal government to implement these long overdue protections for First Amendment freedoms.
To quote McConnell, “our First Amendment freedoms are key to who we are in this country. They are precious. They face threats. Every future generation is counting on us to stand up and defend them. So let us rise to meet the moment.”
Seth Stern is the Director of Advocacy for Freedom of the Press Foundation, a non-profit organization that protects, defends and empowers public-interest journalism. He is also Of Counsel to the law firm Funkhouser Vegosen Liebman & Dunn Ltd.
