On Wednesday, freelance photojournalist Amy Harris sued the House select committee investigating the Jan. 6 attack on the U.S. Capitol after it served a subpoena on her phone provider for three months worth of call records, which would disclose who called whom and when, and could thus be used to identify confidential sources. Harris had done extensive reporting on the Proud Boys, and covered the Capitol attack.
Aside from the obvious issues with a subpoena targeting a reporter’s telephone metadata, congressional subpoenas involving the press are extraordinarily rare.
To our knowledge, the last time something like this happened was when a special counsel appointed by the Senate to investigate leaks during Justice Clarence Thomas’s confirmation hearings sought to depose National Public Radio’s Nina Totenberg and Newsday’s Timothy Phelps, as well as issue a subpoena for their phone records. Leaders on the Senate Rules Committee explicitly acknowledged the sensitivity of dragooning the press as an investigative arm of the legislature and rejected the request (after major public outcry).
There are only a few other cases in the 20th century. The two most notable were major news at the time.
In 1976, the House ethics committee tried to force CBS correspondent Daniel Schorr to disclose his sources after he obtained the Pike Committee report on intelligence abuses, which the Pike Committee had voted to make public but was then overridden by the full House.
And, in 1971, CBS President Frank Stanton famously refused to provide the House with outtakes from the documentary “The Selling of the Pentagon,” which was seen by some as suggesting that the Pentagon had used its public relations apparatus to promote militarism for budgetary reasons and where the film’s producers had been accused of selective editing.
In both of those cases, after significant debate, the House dropped the demands. (For more on Schorr, Stanton and the other two cases in the last century — a subpoena to Thomas Brandt at the Washington Times and the Irvine Lenroot investigation during the Hoover administration — see the Reporters Committee’s leak case tracker.)
Interestingly, congressional inquiries involving press leaks were more common in the 19th century, as the Senate used to consider nominations and treaties in secret (prompting the losers in those debates to leak like sieves). There are a couple of cases where journalists were actually jailed by Congress in an attempt to force them to divulge their sources. There’s a fascinating book examining those cases by Donald A. Ritchie, the historian emeritus of the U.S. Senate, called “Press Gallery.” Highly recommended.
In any event, the House select committee should immediately withdraw this subpoena. There is no question that the work of the committee is vital, and journalists themselves were attacked on Jan. 6. But the stakes here are too high. The subpoena is a direct threat to newsgathering.
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 Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Gillian Vernick.