A nationwide movement protecting the student press from censorship gains momentum

Demi Vitkute | Prior Restraints | News | September 8, 2017
September 8, 2017

Laws designed to protect the student press from censorship by school officials are gaining traction around the country, and the American Bar Association recently lent its support to the cause with a unanimous resolution.

Rhode Island passed a new law on July 18 that protects the free expression rights of student journalists, becoming the third state to do so this year after similar laws passed in Nevada and Vermont, and the thirteenth state overall to enact statutory protection for student journalism.

Carpenter v. United States

August 14, 2017

This case asks the U.S. Supreme Court to answer whether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment. RCFP and 19 media organizations joined as amici in support of petitioner, arguing that the Fourth Amendment requires law enforcement to obtain a warrant to get cellphone location information. The brief explained the historic connection between the First and Fourth Amendments, and argued that long-term tracking of cellphone location information could reveal First Amendment-protected activities and threaten the confidentiality of the newsgathering process. 

How Do Leak Investigations Work?

Selina MacLaren | News | August 8, 2017
August 8, 2017

On Friday, Attorney General Jeff Sessions announced efforts to a crack down on unauthorized disclosures to the news media, citing an uptick in "leaks" investigations and a plan to revisit policies on obtaining journalists' records.  President Trump, who has routinely castigated disclosures to the news media, praised the threatened crackdown in a tweet:

Letter to DHS Inspector General on border searches of journalists

June 13, 2017

The Reporters Committee for Freedom of the Press wrote to the Department of Justice's Inspector General to express our concern about United States Customs and Border Protection (CBP) policies and practices that affect journalists at the border. The Office of the Inspector General had earlier announced that it is looking into border inspection procedures.

A. Electronic Surveillance Authorities: Criminal Investigations

May 9, 2017

Journalists seeking to protect confidential sources need to be aware of the full range of legal authorities for surveillance in the context of criminal investigations as well as national security investigations.  For example, government investigations of unauthorized leaks may use both criminal and national security investigative tools.  Three of the most significant information-gathering authorities in the criminal context are the Stored Communications Act, the Pen Register Act, and the Wiretap Act.

III. Electronic Communications Surveillance Authorities

Journalists in the U.S. face numerous challenges when striving to protect their sources.  These challenges include, but are not limited to, collection and interception of communications by the U.S. government and prosecutors’ aggressive pursuit of sources for government leaks.  Combined, these factors greatly challenge journalists’ ability to communicate securely with sources, assure sensitive sources that the communications will be confidential, and gather news vital to the public interest.

C. Regulatory protection: The Department of Justice’s media subpoena and search warrant guidelines.

As mentioned earlier, the Department of Justice has issued guidelines governing the use of certain law enforcement tools to obtain records of or pertaining to the news media.[1]  Prior to 2014, the guidelines covered subpoenas; today, they cover search warrants, subpoenas, and court orders issued under the Stored Communications Act.[2]  The guidelines are not legally enforceable but might be considered a “social contract” between the news media and the government.

B. Statutory and common law protections: state shield laws, testimonial privileges, and the Privacy Protection Act.

The majority of states recognize a reporter’s privilege based on state law.[1]  Thirty-nine states and the District of Columbia have shield laws, which give media varying degrees of protection for confidential source information.[2]  Some shield laws protect reporters from forced disclosure of their sources.  Other shield laws provide qualified or absolute protection that varies depending on the type of legal proceeding (civil or criminal), the scope of the statute’s definition of “journalists,” whether material is confidential and/or published, and whether the journalist is a defendant or an independent third party.

A. Constitutional protection: The First and Fourth Amendments.

The First Amendment to the U.S. Constitution guarantees freedom of expression by, among other things, prohibiting any law that infringes the freedom of the press, or the rights of individuals to speak freely.  The First Amendment affords broad protection to journalists and news organizations engaged in the gathering and dissemination of news, and a core purpose of the First Amendment is the fostering of robust and uninhibited debate on public issues.[1]  For example, in Bartnicki v. Vopper,[2] the U.S. Supreme Court held that the First Amendment protected a news organization from liability for the publication of information of public interest that had been obtained unlawfully by a source.

II. Legal and Regulatory Protections for Journalists

In the United States, journalists have constitutional, statutory, common law, and regulatory protections that help ensure their ability to gather and report the news without government interference.  Two of the most important legal protections available to U.S. journalists include the First Amendment and state shield laws.  In the regulatory sphere, the aforementioned updated protections in Justice Department guidelines require the government to meet certain conditions before using common investigative tools to obtain records belonging to or relating to journalists.[1]

[1] See generally 28 C.F.R. § 50.10 (discussed infra at 7).