This is the fourth and final installment of our newsletter series analyzing U.S. press freedom violations in 2022. You can find links to all four parts in this blog post.
In 2022, the U.S. Press Freedom Tracker documented 30 incidents in which journalists were subpoenaed or faced other legal orders forcing them to testify in court or turn over journalistic records or work product. The good news: That’s down slightly from the previous three years. The bad news: 30 is still way too many, and some of the cases are particularly egregious, especially the ongoing efforts by Las Vegas law enforcement to search the electronic devices of murdered journalist Jeff German.
But perhaps the biggest news on the subpoena front last year came straight from the federal government’s top prosecutor: Last October, U.S. Attorney General Merrick Garland formally approved a historic Justice Department policy that — in most cases where journalists are acting within the scope of “newsgathering,” as defined — expressly prohibits federal prosecutors from using subpoenas, search warrants, and other investigative tools to demand records from or of members of the news media, including journalists who possess and publish classified information obtained in newsgathering.
The changes to the news media guidelines followed years of advocacy efforts by attorneys from the Reporters Committee for Freedom of the Press and other news media leaders who have long sought increased protections for journalists — calls that grew especially loud after revelations in 2021 that the Justice Department under the Trump administration had authorized the seizure of reporters’ phone and email records as part of leak investigations.
“This is a watershed moment,” Reporters Committee Executive Director Bruce Brown said after the Justice Department unveiled the changes. “The new policy marks a historic shift in protecting the rights of news organizations reporting on stories of critical public importance.”
It’s hard to overstate the significance of the Justice Department’s revised news media guidelines. Thanks to the strengthened protections, journalists no longer have to fear being targeted by federal prosecutors for reporting sensitive information about the war in Ukraine, conflicts with China, and many other stories in the public interest. Without that looming threat, journalists’ sources are freer to share information that could help the public better understand the actions of the federal government. But the new bright line in the policy does not apply to decisions to charge a journalist with a crime if the Justice Department independently has sufficient evidence against the journalist.
Could federal prosecutors still conceivably get around these new guidelines? In some cases, it’s possible. As Brown and Gabe Rottman, director of RCFP’s Technology and Press Freedom Project, explain in the first installment of a two-part analysis for Lawfare, exclusions and exceptions apply, but there aren’t many of them. (The main concern is that the act of soliciting information from sources could be deemed outside of the guideline’s definition of the scope of newsgathering and thus outside the prohibition on issuing subpoenas or other forms of compulsory process.) And the guidelines include important checks against overreach, in some cases requiring approval from the attorney general himself before prosecutors can pursue a subpoena or other order seeking a journalist’s records.
But the fact that the new policy isn’t perfect shouldn’t distract us from what makes it so historic. The new policy’s key innovation is that the Justice Department will no longer weigh journalists’ First Amendment rights against the law enforcement interests of prosecutors, as the department had done since the news media guidelines were first created in the 1970s.
“For the first time, the new policy defines a lane of total protection for journalism — where the department has almost entirely relinquished its discretion to use investigative tools against the press despite the power to do so handed to it by the courts,” Brown and Rottman wrote in an op-ed for CNN last year. They concluded: “The new Garland rule reflects the best version of the U.S. as a democracy, comfortable enough with freedom to keep the press free.”
All that said, the policy is subject to change by future leaders at the Justice Department, is not enforceable by courts, and it only covers federal agencies under the umbrella of the Justice Department. At the very least, all federal law enforcement agencies should follow the DOJ’s lead and issue clear, public guidelines that protect journalists from investigations. (Documents the Reporters Committee obtained through Freedom of Information Act litigation provided insight into how a failure to establish proper guidelines at Department of Homeland Security agencies could open the door to improper investigations of journalists and their sources.)
What would be even better, though, is a strong and sturdy federal law, one that ensures such protections cannot be changed under a new administration.
We almost got there last year.
For the first time in roughly a decade, lawmakers from both sides of the aisle focused their attention on passing a federal shield bill: the Protect Reporters from Exploitative State Spying Act, or PRESS Act.
The bill, which attracted broad bipartisan support, would have shielded journalists against the disclosure of newsgathering information, including information that could identify confidential sources. It also would have barred the government from requesting similar information from cell phone providers, social media companies, and other third parties. In other words, it would have enshrined in federal law many of the robust protections included in the Justice Department’s new policy.
The Reporters Committee and other press freedom groups strongly urged Congress to pass the legislation. As the Reporters Committee and a coalition of more than a dozen news organizations wrote in a letter to the U.S. Senate after the bill passed the House of Representatives, “The PRESS Act would provide essential protections for the public’s right to know.”
But in the end, the bill didn’t make it across the finish line before the end of the legislative session, and was blocked on the Senate floor by Sen. Tom Cotton (R-Ark.), who, among other comments, assailed the reporting on the Pentagon Papers as an effort to “demoralize the American people” during the Vietnam War.
While it’s certainly disappointing that the bill never reached a vote in the Senate, the end-of-year push showed that many lawmakers from both parties understand the need for increased protections for journalists. And it showed that a federal shield law could soon become a reality if Congress keeps its eye on the ball.
Here’s to hoping that finally happens in 2023.
As a member of the U.S. Press Freedom Tracker’s advisory board, the Reporters Committee for Freedom of the Press has published annual reports analyzing press freedom violations confirmed by Tracker researchers each year and highlighting the Reporters Committee’s work to protect journalists and the public’s right to access information. You can find reports from 2017, 2018, 2019, 2020, and 2021 on our website.