Lawmakers who want to show support for journalism — after a year that saw a record number of press freedom violations — have plenty of options.
They could strengthen public records and Freedom of Information laws. They could prevent law enforcement from engaging in invasive surveillance that sweeps up communication with sources. They could strengthen whistleblower protections for people who go to the press. They could hold accountable police departments that have arrested and assaulted journalists in record numbers.
Instead, many lawmakers around the country are grabbing headlines for proposing redundant and unnecessary criminal statutes that do almost nothing to protect press freedom.
In the past two months, lawmakers in Florida and New Jersey have advanced misguided proposals that would effectively classify assaults on journalists as hate crimes, by adding press employment to the list of protected classes in those states. These proposals follow an effort in 2019 by New York governor Andrew Cuomo to automatically classify any assault on a journalist as a felony regardless of whether the assault would otherwise have been a misdemeanor, and federal bills introduced in 2018 and 2019.
As we’ve documented extensively on the U.S. Press Freedom Tracker, reporters have faced unusually difficult and dangerous conditions over the past 18 months — working on the journalistic front lines through a pandemic and a summer of historic protests and brutal police responses, amidst a climate of rising antagonism from the highest levels of government — but these proposals would do little to fix those issues and would likely create a host of new problems.
First, assault is already illegal. No private citizen about to punch a journalist will think: “Oh wait, this could get me three years in jail instead of one,” and reconsider. No one believes this will actually prevent assaults. And there’s a special irony to any proposal that creates more felonies, as most of the attacks on journalists have occurred at events protesting the excesses of the criminal justice system.
More broadly, bills like these require the government to define “journalism,” which inevitably leads to unintended exclusions. As one critic of the Cuomo proposal put it: “the constitutional guarantee of a free press extends to all people. Professional journalists don’t deserve special treatment, and no self-respecting one wants it.”
While journalists have become a symbolic ally of certain political movements, it's important to remember that press freedom is much more than a bargaining chip in a culture war. Making it easier for journalists to do their jobs effectively is important, and state lawmakers could take any number of steps to do so. They should start with holding the police more accountable for violating First Amendment rights.
In fact, some 80% of recent recorded assaults on journalists can be traced to the police. This month alone, the U.S. Press Freedom Tracker reports six assaults against journalists by law enforcement, with hundreds more in the past several years.
Still, some of these lawmakers may be well intentioned and simply misguided. Maybe others are cynically trying to exploit the public’s concern about press freedom without actually doing anything to solve the problem. Perhaps the best response to the Florida proposal comes from Orlando Sentinel reporter Desiree Stenett: "We don't need this. If you want to help journalists, expand public records laws."
Over 125 journalists have been arrested over the past year and many of them have been charged with crimes over the past year simply for doing their jobs. In one prominent case last month, prosecutors took a notably flimsy case all the way to trial, only to have all charges rejected by a jury within two hours. In numerous other cases, trials have only recently been discounted or remain a possibility.
Against this backdrop, few journalists want to increase the involvement of prosecutors into their work, and that holds even more true for the unevenly and often counterintuitively applied category of hate crime laws.
There is room for legal reforms to empower both professional reporters and investigative researchers alike to be able to more safely and effectively do their journalistic work. These reforms are more likely to succeed, and to be embraced by the people they are meant to help — but only if they reflect the actual stated priorities of that community, and not a politician’s abstract notion of what “supporting journalists” looks like.