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For the second time in as many Congresses, the House of Representatives passed last week, without objection, a federal reporter’s privilege bill under suspension of the rules, a procedure reserved for conspicuously noncontroversial, bipartisan legislation.
As we’ve written many times, the Protect Reporters from Exploitative State Spying Act, or PRESS Act — led by Reps. Jamie Raskin (D-Md.) and Kevin Kiley (R-Calif.) and co-sponsored by a group of 18 other members, nine Republicans and nine Democrats — is the strongest federal shield legislation proposed to date. The bill, H.R. 4250, would bar the federal executive agencies and courts from forcing reporters to identify confidential sources or disclose sensitive newsgathering material, except in very limited circumstances.
Crucially, the bill includes a broad, functional definition of “covered journalist” that applies to anyone 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.” As such, it avoids certain artificial constraints that featured in past bills, including a requirement that the covered journalist earn a living from reporting or be employed professionally by an institutional news organization. As we wrote recently in a friend-of-the-court brief in the Tim Burke case in Tampa, a functional approach is the best one.
One thing that we haven’t covered as closely is that the bill avoids a major pitfall in earlier versions of the legislation: a broad exception for national security “leak” cases. In 2013, the last time a federal shield bill really saw movement in the Senate Judiciary Committee, one of the sticking points was that carve-out. While most civil liberties and press freedom groups still supported the bill (given that it would provide important protections outside the national security context), it effectively excluded cases involving the unauthorized disclosure of “properly classified information” to the media from its scope, so long as prosecutors could point to a “significant and articulable harm to national security” from its disclosure, a relatively low bar. Given that, on a federal level, most controversies involving subpoenas or court orders for reporters’ records occur in that context, it was an unfortunate absence.
The PRESS Act, by contrast, includes only two exceptions for subpoenas, court orders, or search warrants directed at a journalist: to (1) prevent or identify the perpetrator of an act of terrorism, or (2) to prevent a threat of imminent violence, significant bodily harm, or death, including specified offenses against a minor. For legal process directed at a third party for a reporter’s records, the only exception is when there is a reasonable threat of imminent violence. And even when records demands are allowed, there are notice provisions that ensure an affected journalist or news organization can go to court to challenge the legal demand, again with only limited exceptions.
As for next steps, the bill is now on to the Senate, where it stalled last Congress after Sen. Tom Cotton (R-Ark.) objected to a motion from lead sponsor Sen. Ron Wyden (D-Ore.) to have the bill pass under “unanimous consent.” (While an Army infantry officer in 2006, Cotton wrote an open letter critical of The New York Times’s disclosure of a secret surveillance program involving the SWIFT financial network.)
The bill does have notable Republican support, though. Sen. Mike Lee (R-Utah) joined Wyden both last Congress and this time around as an original co-sponsor. Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) is also an original co-sponsor and Ranking Member Sen. Lindsey Graham (R-S.C.) — an original co-sponsor of the 2013 bill — has joined.
We’ll keep a close eye on how things play out. While the conventional wisdom has always been that federal shield legislation faces an uphill climb, particularly in the Senate Judiciary Committee where certain members (in both parties) have historically voiced national security concerns about recognizing a reporters’ privilege in leak cases, 2024 is a long way from 2013 and aggressive leak-hunting by both the Obama and Trump administrations has sharpened arguments in favor of a robust bill. Maybe this time will be the charm.
The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.