Journalist protections excluded from omnibus bill after nonsensical objection
Seth Stern
December 21, 2022
FPF published numerous op-eds and articles advocating for the PRESS Act, and organized a coalition of almost 40 press rights and civil liberties groups, but unfortunately one anti-press senator was able to block the bill's passage this year.
Freedom of the Press Foundation and other free press advocates were extremely disappointed that the PRESS Act was omitted from Congress’s year-end omnibus package.
The PRESS Act was the strongest “shield” bill we’d ever seen and would have finally protected journalists from federal surveillance and from being threatened with arrest for refusing to burn their sources. In short, it would have been the best press freedom legislation to pass Congress in modern history.
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A little background on what went wrong: After Ron Wyden, the bill’s original sponsor in the Senate, requested a unanimous consent to vote on the bill, Sen. Tom Cotton objected. His floor speech was premised on the absurd notion that the reporting of the Pentagon Papers was a bad thing — according to Cotton, the media’s objective was not to expose decades of government lies about the war, but to demoralize the troops.
He offered no evidence — as none exists — for his assertion that Iraq and Afghanistan war reporting helped terrorists, and he ignored the PRESS Act’s terrorism exemptions that should satisfy any rational national security hawk.
That a sitting senator holds such disdain for the free press only serves to illustrate why the PRESS Act is so vital. Cotton has considered running for president himself. The last Republican president still regularly threatens journalists with arrest and assault. And President Obama was no friend of journalists or whistleblowers either.
To the best of our knowledge, no other Senator from either party has endorsed Cotton’s ramblings but, as the senior Republican on the judiciary committee, Sen. Chuck Grassley reportedly felt that he owed Cotton, who is also on the committee, the courtesy of not clearing a bill to which he objected for inclusion in the omnibus package.
That left it up to minority leader Mitch McConnell to override Grassley and Cotton. We published an op-ed in the Lexington Herald Leader to persuade McConnell, along with a piece making the case for Republican support, but to no avail. McConnell proved unwilling to make waves in his party to advance press freedom.
The takeaway from all of this is that the PRESS Act failed for procedural reasons, not substantive ones. So, despite the setback, we now put our frustration aside and fight for the PRESS Act’s passage in 2023.
Thankfully, the PRESS Act is far better positioned than it was when we began our advocacy campaign last month. We will enter the next Congressional session with Senate Judiciary Chair Dick Durbin strongly supporting the PRESS Act and with a Republican co-sponsor in Sen. Mike Lee alongside Wyden.
Durbin credited Chicago Sun-Times op-eds by FPF’s advocacy director and its board member, John Cusack, with persuading him to “hotline” the bill, and Lee joined shortly after FPF’s op-ed in the Salt Lake Tribune and other Utah-focused outreach.
Our focus next year will be twofold: One, doing our part to help advance the bill through Congress, and two, monitoring any revisions to the bill to ensure that it remains as strong as it is today. Past shield bills have been ruined by, for example, narrow definitions of “journalist” and overbroad national security exemptions that lend themselves to abuse by prosecutors and investigators.
We have not supported all past shield bills and won’t support just any shield bill in the future. We will, however, continue doing everything in our power to support this bill as long as it resembles its current form.
We hope that, with the momentum the bill has gained in recent weeks, Congress will make it a priority early in the next session and will not feel compelled to weaken it to appeal to the likes of Cotton. That way, it won’t run into further deadlines where the only options for passage are fast-tracking mechanisms and year-end packages.
It would also help if the press itself would join the fight. We commend The Intercept, Common Dreams and a couple other outlets for their coverage in recent days but it is unfortunate that, in 2022, John Cusack wrote as much about the PRESS Act as all the nation’s editorial boards combined. That needs to change in 2023 for the bill to succeed.