The need to protect journalists from government surveillance and from court orders to burn their sources is urgent, but that doesn’t mean we support just any journalist shield bills. Some past bills purporting to protect journalist-source confidentiality don’t go far enough, or contain exceptions so robust that they can actually be harmful.
But the PRESS Act, which passed the House of Representatives without objection last week, is different. It’s the strongest shield bill we’ve ever seen. As it heads to the Senate, we don’t see enough room for improvement to hold out for a hypothetical better one.
Here are a few of the questions we’ve seen asked about the PRESS Act, along with our answers, which should help explain why we see it as the most important press freedom legislation in modern times.
Will the PRESS Act only protect established media outlets? No. Legislative definitions of journalism have always been tricky, and some bills have defined it far too narrowly. The PRESS Act, however, gets it right by protecting anyone who engages in journalism, not just professional journalists. That means its protection will extend to unconventional journalists and upstart outlets for which the expense of battling a subpoena can pose an existential threat. It defines “covered journalist” to mean “a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, investigates, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.”
Why should journalists get special treatment? They don’t. Numerous legal privileges having nothing to do with journalists protect confidential communications from being introduced in court. If you’ve seen a psychologist, your communications are privileged. If you’ve retained a lawyer, your communications are privileged. In fact, if you’ve ever been married, your communications are privileged. The PRESS Act recognizes that journalists depend on sources who come forward at great personal risk, and that society benefits from the resulting reporting — just like society benefits from people being able to seek counseling without fearing that their therapist will have to spill their secrets in a public courtroom.
Will the PRESS Act help reporters make up sources? No. Most journalists who cite confidential sources do so cautiously, in consultation with ethical guidelines. Sure, some unscrupulous reporters make things up. But that has nothing to do with the PRESS Act. Officials surveil journalists to find out who is talking to them — often because they reported something they only could've learned from an insider. If no one is talking to a journalist, there’s nothing to surveil. The only time a litigant might want to discover the absence of a source is if they’re suing a journalist for defamation. But the federal PRESS Act expressly carves out defamation cases because defamation is a matter of state law.
What if a journalist’s testimony is needed to prevent disaster? We’re not aware of any instance where the keys to stopping a catastrophe were found in a journalist’s notebook. Murderers and terrorists aren’t in the habit of letting the press in on their future plans. That being said, the PRESS Act contains exemptions for scenarios where information in a journalist’s possession is necessary to prevent terrorism or imminent violence. It then establishes commonsense procedures to ensure that the exemptions are not abused.
Can investigators accuse journalists of crimes to get around the PRESS Act? The PRESS Act does clarify that it doesn't prohibit investigations of journalists suspected of crimes, which makes sense. No one is suggesting journalists should be able to rob banks. But if the government tries to circumvent the PRESS Act by characterizing lawful newsgathering as a crime, the PRESS Act would entitle the journalist to notice and a hearing in front of a judge. That would allow the journalist to argue that the government's criminal theory violates the First Amendment and that, therefore, the "crime" carve-out doesn't apply.
Couldn’t investigators still get reporter-source communications from tech providers? No. The PRESS Act is the first shield bill we know of that expressly restricts using phone and email providers as a workaround to access journalists’ communications. It would’ve stopped those kinds of abuses by both the Trump and Obama administrations had it been in effect then.
Is the PRESS Act a gift to the “liberal media”? The PRESS Act is entirely apolitical. Nothing in the bill would allow Fox News to be treated any differently than The New York Times. No Republicans in the House objected to the act and its Senate co-sponsors include Republicans Lindsey Graham and Mike Lee. Other prominent Republicans like Mike Pence, Bob Goodlatte, and Jim Jordan have supported shield legislation, because, again, both Republican and Democratic administrations have abused their power to snoop on journalists who embarrassed them.
Why do we need the PRESS Act if states and some federal courts already recognize a privilege? It's true that 49 states already recognize the need to protect journalist-source confidentiality, leaving the federal government as an outlier. But state law doesn't apply to federal agencies or courts. And, while some federal appellate circuits recognize limited reporter's privileges, those limited privileges are wildly inconsistent between the circuits, and some recognize none at all. The PRESS Act is stronger than any privilege recognized in any federal court, and would bring much-needed consistency. Journalists don't know where investigations and lawsuits might arise and can't meaningfully assure sources of confidentiality when they don't know what law could apply.
The PRESS Act failed in the last Congress. Is it doomed to fail again? It’s true that the PRESS Act also breezed through the House in 2022 before dying in the Senate due to a rambling objection from one anti-press senator, Tom Cotton. But history doesn’t need to repeat itself. In 2022, the Senate bill picked up its only Republican co-sponsor, Lee, in November, leaving a month for it to be fast-tracked for inclusion in a year-end legislative package. This time, it’s only January, and both Lee and Graham are already on board on the Republican side, plus Sen. Dick Durbin has joined Sen. Ron Wyden on the Democratic side. One lone senator shouldn’t be able to derail a bill with that much bipartisan support — but it’s essential that senators hear from their constituents that this bill is a priority.
What can I do to help? Rightly or wrongly, journalist-source confidentiality is seen as a niche issue and it’s unlikely to be first on any senator’s agenda. That means it’s important for senators to know that their constituents — whether they’re journalists or just people who value press freedom — care about the PRESS Act. Call or write your senator, or, if you’re able, write a letter or op-ed for your local paper. Don’t think it can work? Consider this: Durbin, the chair of the Senate Judiciary Committee, proclaimed his support for the PRESS Act in response to an op-ed urging him to do so.
