In connection with his nomination to be the next attorney general of the United States, Judge Merrick Garland went before the Senate Judiciary Committee last week in an appearance that largely avoided setting off fireworks. Reporters Committee staff tuned in with an eye to Judge Garland’s record on media law and technology issues while on the bench, which my colleagues previewed in a special analysis last month. (Disclosure: Because I clerked for Judge Garland and that article focused on his time as a judge, I played no role in writing it.)
Judge Garland signaled his attention to those issues in his opening statement, emphasizing that policies “that ensure the respectful treatment of the press” and “that read the Freedom of Information Act generously” are among the foundational norms that “ensure the [Justice] Department’s adherence to the Rule of Law.” (As a coalition letter to President Biden — led by the American Civil Liberties Union and Knight First Amendment Institute and joined by the Reporters Committee — recently emphasized, the Justice Department plays a central role in ensuring faithful implementation of FOIA throughout the federal government.) Only on a handful of occasions, though, did senators on the Committee take an interest in questioning Judge Garland on those topics.
Sen. Amy Klobuchar (D-Minn.) pressed Judge Garland, for instance, on his commitment to the Justice Department’s news media guidelines, which limit the circumstances under which Department personnel can use certain law enforcement tools to seek information from the press. Judge Garland indicated that he “would expect to re-up those guidelines” and wasn’t aware whether the previous administration had formally made any changes to them. As the Reporters Committee has documented, the FBI appears to have failed to abide by the media guidelines in at least one 2019 case involving the questioning of a freelancer (and they may also have been sidestepped when national security reporter Ali Watkins was questioned about her sources by a Customs and Border Protection special agent).
In other instances, the hearing touched more obliquely on questions of interest to the press. Judge Garland affirmed, for instance, that he sees the Justice Department’s authority to conduct “pattern or practice” investigations of state and local law enforcement agencies as an important tool in protecting civil rights and civil liberties. While that power was largely dormant under former President Donald Trump, previous administrations have used it to advance, among other things, the right to report on police activity in public. Judge Garland was also questioned about his views on antitrust policy in light of the increasingly hot topic of competition in Silicon Valley.
The Judiciary Committee is expected to advance Judge Garland’s nomination on March 1, with a vote of the full Senate to follow that week. We’ll learn more about Judge Garland’s views on these issues as Attorney General, then, when he formally takes the helm of the Justice Department.
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 Mailyn Fidler.