Why all Republicans should support the PRESS Act
Seth Stern
January 27, 2023
Sen. Lindsey Graham is a senate co-sponsor of the PRESS Act.
The PRESS Act is the strongest federal shield bill we’ve ever seen and would combat government overreach by ending surveillance of journalists except in national security emergencies. The bill passed the House without objection in both this Congress and the last one. That's because regardless of political affiliation or opinions about specific media outlets, all Americans who value the Constitution recognize that a free and robust press is essential for our democracy to thrive.
Conservative support for the PRESS Act is widespread. Republican Sen. Mike Lee has co-sponsored the PRESS Act in the Senate for two consecutive sessions. This year, he's joined by Sen. Lindsey Graham. Rep. Kevin Kiley was the first of many Republican co-sponsors in the House.
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Other conservatives, from Mike Pence to Jim Jordan to Bob Goodlatte, have a long history of supporting bills to protect journalist-source confidentiality. Forty-nine states, red and blue, protect reporters against government snooping, leaving the federal government — which has surveillance capabilities far superior to the local authorities constrained by state laws — as the outlier.
Here are just a few reasons why Republicans should prioritize passing the PRESS Act.
When the Obama administration wanted to uncover a source of then-Fox News journalist James Rosen in 2013, it secretly spied on him and read his emails.
At the time, Fox News and Rosen had no legal recourse when the government baselessly characterized Rosen as a criminal co-conspirator for doing his job — gathering and reporting the news.
Had the PRESS Act been in effect, Rosen would have received notice and a hearing before any warrant or legal order could be issued. And at that hearing, the government would have needed to prove that disclosure of Rosen’s records was necessary to prevent terrorism or imminent violence. It, of course, would never have met that burden, given it was investigating already 4-year-old reporting.
More recently, Yanping Chen, a Chinese-American scientist who is suing the FBI in federal court, has tried to compel Fox News and its former reporter Catherine Herridge to reveal their confidential sources. At a hearing on Chen’s demand in May 2023, the judge mulled the impact of Congress’ failure to adopt legislation like the PRESS Act, noting that lawmakers have “not seen fit to pass a reporters’ shield law.” The judge also reportedly questioned if the threats to the First Amendment posed by Chen’s demand were “overstated.” Herridge has been held in contempt of court for refusing to burn sources.
The PRESS Act would eliminate any question about whether Fox News and Herridge can be required to out their sources.
The bill is broad enough to protect both mainstream and independent outlets, regardless of political leanings, so that no administration, present or future, can circumvent the law to retaliate against adversarial journalists.
Here’s how it defines a journalist: “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.”
Simple as that. There are no loopholes, caveats or ambiguities that could conceivably allow the current administration, or a future one, to play favorites.
Many conservatives were outraged when, during Congressional hearings on the Twitter Files, Democratic representatives called Matt Taibbi a "so-called journalist" and urged him to reveal whether Elon Musk was his source. Jordan objected, citing Taibbi's First Amendment rights, but could not cite a shield law because, despite his past efforts, there is none. The PRESS Act would protect Taibbi from being compelled by a judge to disclose sources regardless of Democrats' opinions on his journalism.
The PRESS Act is neutral not only on the political leanings of the journalists it protects but on the size and reach of media outlets. Critics of the mainstream media should embrace the PRESS Act because it gives upstarts, who do not have armies of lawyers to fight subpoenas, room to grow unimpeded by official harassment.
The PRESS Act would protect, for example, Project Veritas — which claimed it was improperly surveilled after an FBI raid in 2021 — to the same extent as it would protect The New York Times, as long as they are all engaged in legal journalistic practices.
That’s because the act does not limit its reach based on who the journalist is or any official credentials they may or may not have — it instead focuses entirely on the act of newsgathering.
Constitutional originalists should appreciate that the PRESS Act not only strengthens the First Amendment but the Fourth. Unlike many past shield bills, its protections against government overreach extend not only to journalists themselves but to their phone, email and other technology providers.
New technologies mean new ways to spy on citizens. The PRESS Act recognizes this by ensuring its protections cannot be evaded by targeting tech companies instead of newsrooms.
A free and aggressive press benefits all aspects of government, including national security. That being said, the PRESS Act recognizes law enforcement concerns through exemptions for scenarios, however unlikely, where information in a journalist’s possession is necessary to prevent terrorism or imminent violence.
It then establishes common sense procedures to ensure that the exemption is not abused.
Cases that affect presidential politics tend to get the most attention. But most of the abuses the PRESS Act would curtail occur off the national stage. Journalists have served time for refusing to disclose sources for stories about everything from steroids in baseball to local crime.
More recently, journalist Joshua Miller broke the story of a father buying a coach’s home at a premium to get his son into Harvard, handing prosecutors the case on a silver platter. He was rewarded with a subpoena in October 2022 and ultimately forced to testify.
Music critic Jim DeRogatis received death threats and a bullet through his porch window after exposing musician R. Kelly’s abuse of underage women but he was forced to risk his safety to contest a subpoena at Kelly’s federal trial in Chicago in 2022.
Americans can all agree that the law should encourage — not impair — reporting of misconduct by elite universities and sex crimes by celebrities. That has nothing to do with national politics.
The PRESS Act will vastly improve the quality of journalism — all journalism — and ensure citizens of all political stripes have access to the information they need to be informed participants in our democracy. It will protect journalists and their sources from government abuse — no matter the party in the White House.
We’ve allowed our journalists to operate too long without any legal guarantee that they won’t be spied on by the government and without the ability to assure potential sources that they won’t be unmasked in court. That’s not a tolerable status quo in a country that values free speech.
Everyone who believes in the First Amendment should contact their senators today and let them know that protecting journalists from government overreach is absolutely vital and cannot wait.
This article was originally published on Dec. 14, 2022 and has been updated repeatedly to account for current events. You can find the original version here.