The last couple of weeks in Congress have been the biggest for press freedom all year.
First, on Sept. 19, the House passed H.R. 4330, the Protect Reporters from Exploitative State Spying Act, which would create a privilege for journalists that shields them from being forced to reveal protected information, including about confidential sources.
The bill passed by a unanimous vote, and it defines protected information as “any information identifying a source who provided information as part of engaging in journalism,” and “any records, contents of a communication, documents, or information that a covered journalist obtained or created as part of engaging in journalism.” This protects against virtually all electronic device searches of journalists. It includes a few exceptions, but they are narrow (when a court determines disclosure is necessary to prevent an act of terrorism, for example).
This bill is timely and critical. In recent years, the federal government has on a few occasions sought sensitive records from or of journalists as a way of weeding out leakers. And even though the U.S. Department of Justice has adopted a new policy that is expected to sharply limit this practice, these news media guidelines can be changed by the Department at any time. They are also guidelines, so violations are only subject to internal discipline. Statutory protection would be more durable.
Absent a federal law, it has fallen to federal and state courts and state legislatures to define the extent of a reporter’s privilege. The U.S. Supreme Court has refused to recognize a general reporter’s privilege, but a concurring opinion in that case, Branzburg v. Hayes, by Justice Lewis Powell Jr. has been read by some federal courts as supporting the existence of a qualified privilege. State courts are a mixed bag, but some recognize a reporter’s privilege of some sort. And, for the rest of the states, all but two have some kind of shield law protecting reporters from giving up information about confidential sources, but they vary considerably in the extent of their protection.
The PRESS Act would clear all this up. It would provide robust protection against compelled disclosure of protected information and create uniformity among states.
Second, on Sept. 15, Rep. Jamie Raskin (D-Md.) introduced a federal anti-SLAPP bill. (Raskin was also the lead sponsor of the PRESS Act, so he deserves much credit for this great week.) SLAPPs — or strategic lawsuits against public participation — are meritless lawsuits filed to suppress constitutionally protected speech.
These include suits by public officials against the journalists who cover them, and they have become more common in the past few years. Former Rep. Devin Nunes (R-Calif.), for instance, has been a frequent filer of defamation suits against journalists.
The harm of SLAPP suits is hard to overstate. They impose severe, potentially ruinous, financial burdens on news organizations. In recent years, environmentalists have become a target, and have had to pour money into defending against them.
Many states have anti-SLAPP laws that give courts the power to dismiss suits like these early, before the litigation becomes too costly. Some states have strong anti-SLAPP laws that protect against them, and some do not. This predictably leads to forum shopping. Defamation plaintiffs looking to sue a journalist for defamation go to states like Virginia (Nunes v. CNN and Nunes v. Washington Post).
The Reporters Committee has long argued for a federal anti-SLAPP law to create national, uniform rules on this instead of the current patchwork. It’s heartening that one has been introduced, and we will keep a close eye on how it progresses.
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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 Press Freedom Project Fellow Emily Hockett.