Biden’s Justice Dept. promised to support a strong journalist shield law. So why hasn’t it?
Trevor Timm
February 2, 2022
More than six months ago, the Department of Justice (DOJ) announced sweeping changes to its “media guidelines” — the agency’s internal rules for when and how it can spy on reporters. In a memo to all its staff, Attorney General Merrick Garland barred the surveillance of journalists who were engaged in ordinary newsgathering in all but the most extreme scenarios.
As we said when the initial announcement was made, the DOJ’s new guidelines were potentially a sea change for press freedom rights — and we called for Congress to quickly enshrine them into law. We explained how action from Congress is vital for the policy to have any teeth.
Sen. Wyden called the Justice Department's inaction 'frustrating and unacceptable.'
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At the time, Garland appeared to agree. The attorney general explicitly stated the DOJ would support congressional legislation to bring the force of law to his new rules: “[T]o ensure that protections regarding the use of compulsory legal process for obtaining information from or records of members of the news media continue in succeeding Administrations,” he wrote, “the Department will support congressional legislation to embody protections in law.”
But from what we can tell, the DOJ has not lifted a finger publicly or privately in order to help get its new media rules passed by Congress since — despite the fact that multiple bills have been introduced that would do just that.
The DOJ could easily lend its support to Sen. Ron Wyden’s PRESS Act, which Freedom of the Press Foundation endorsed last year. Sen. Wyden’s bill—which was also introduced in the House by Rep. Jamie Raskin—closely hews to the language the DOJ now supposedly abides by, and it provides law enforcement narrow but legitimate exceptions in cases of emergency.
“The Justice Department’s failure to engage on one of the attorney general’s own priorities is extremely frustrating, and frankly unacceptable,” Sen. Wyden said in a statement released to Freedom of the Press Foundation. He continued:
"Attorney General Garland asked Congress to pass a journalist shield law just a few days before I introduced the Press Act to put protections similar to DOJ’s current policies into black letter law. My office reached out to the Justice Department half-a-dozen times over the past six months to work together on my bill with Rep. Raskin, but has gotten zero response."
Through the DOJ’s press office, we also asked the agency’s legislative affairs team whether they have weighed in publicly or privately on any bill since Garland’s promise six months ago. As of press time, we have not heard back either.
Why is this step so important? As it stands, the DOJ media policy is nearly unenforceable; if the DOJ breaks its word, there is no clear avenue to accountability, since the guidelines are only internal to the agency. Indeed, the DOJ has been accused of breaking previous iterations of its own media policy many times over the years. The rules can also be changed at any time by the current attorney general, or the next one, with just a flick of the pen. And the DOJ’s endorsement of any bill could mean the difference between it sailing through Congress and languishing in committee indefinitely.
The DOJ’s internal media policy changes were certainly a welcome break from both the Trump and Obama administrations, where secret and invasive surveillance of journalists became increasingly prevalent. But as of now, it's a half-measure — one that can be taken away from us at any time.
Lest our caution be interpreted as undue cynicism: we’ve seen this movie before — and even played a role in it.
In 2009, to great fanfare, Obama’s Justice Department released new internal guidelines for the Freedom of Information Act (FOIA), as part of President Obama's promise to be the most transparent administration ever. But when Congress tried to pass DOJ’s guidelines — almost word for word! — into law, DOJ vociferously opposed the bill in private. It was only after our successful FOIA lawsuit exposing the DOJ’s hypocrisy that the agency was forced to drop its protest to its own rules, and Congress finally passed them.
We hope this time is different, but we fear it is not. The DOJ needs to follow through on its promise, and it can start by immediately endorsing the PRESS Act and helping the bill make its way through Congress.