Journalist’s shield law, passed unanimously in the House, needs a boost in the Senate

U.S. Sen. Dick Durbin. Photo (cc) 2018 by Kurman Communications.

You wouldn’t think the MAGA-controlled U.S. House could do much of anything on a bipartisan basis. Back in January, though, the chamber passed a bill that would enact a shield law protecting journalists from having to identify their confidential sources. Now the bill is in danger of dying in the Senate, and the Freedom of the Press Foundation is calling for action. More on that in a moment. First, though, what would the PRESS Act accomplish?

As described by Gabe Rottman, writing for the Reporters Committee for Freedom of the Press, it would protect journalists from subpoenas, court orders or search warrants unless there is reason to believe that the names of the anonymous sources being sought would help prevent a terrorist attack or identify the perpetrator of such an attack, or prevent “a threat of imminent violence, significant bodily harm, or death, including specified offenses against a minor.”

Second, the shield would protect not just professional journalists working for a recognized news organization but also 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.” In other words, solo newsletter writers, bloggers and folks who run tiny news sites would be covered.

There is no First Amendment provision for journalists seeking to protect their confidential sources. The Supreme Court saw to that in its 1972 Branzburg v. Hayes decision. But 49 states offer some of protection, sometimes referred to as “the reporter’s privilege,” either through a shield law or a ruling by its highest court (Massachusetts is in the latter category). The sole exceptions: Wyoming and the federal government.

The PRESS Act (“PRESS” stands for Protect Reporters from Exploitative State Spying) was passed unanimously by the House in January. But according to a press release from the Freedom of the Press Foundation, the bill is in danger of falling victim to inaction. The nonprofit organization has called on Sens. Dick Durbin, D-Ill., and Lindsey Graham, R-S.C., the chair and ranking member of the Senate Judiciary Committee, to move the bill forward so that it can come to a vote, calling it the “strongest shield bill we’ve ever seen” and “the most important press freedom bill in modern times.”

What follows is the full text of the foundation’s press release.

Sen. Durbin should advance the PRESS Act before time runs out

NEW YORK, May 30, 2024 — Sen. Dick Durbin has a rare chance to strengthen freedom of the press right now by advancing the bipartisan PRESS Act, a bill to protect journalist-source confidentiality at the federal level. Freedom of the Press Foundation (FPF) has called it the “strongest shield bill we’ve ever seen” and “the most important press freedom bill in modern times.”

But Durbin needs to act quickly. Today, a coalition of 123 civil liberties and journalism organizations and individual law professors and media lawyers wrote to Durbin, who chairs the Senate Judiciary Committee, and ranking member Sen. Lindsey Graham, urging them to schedule a markup of the PRESS Act right away.

Among the signers is acclaimed First Amendment lawyer Floyd Abrams, who said that “The PRESS Act has long been needed and the time to enact it is now.” 

Another noteworthy endorser is the Marion County Record. Last year, a baseless and retaliatory police raid of the Record’s newsroom and the home of its publisher, Eric Meyer, made national headlines. Meyer was an associate professor of journalism and associate dean of the College of Media at University of Illinois Urbana-Champaign for over 25 years.

Meyer said the Record signed the letter because:

As last summer’s raid on the Marion County Record proved, freedom of expression faces unprecedented challenges from unscrupulous people willing to weaponize the justice system to bully and retaliate against those attempting to report truth. Existing remedies might be fine for huge media organizations, but community journalists and people like the students I used to teach at the University of Illinois shouldn’t have their rights be dependent on whether they can afford to hire massive legal teams. Clear protections like those in the PRESS Act would block future attempts to trample on the First Amendment in ways that once were unfathomable to all who support democracy.

Other organizational signers include the American Civil Liberties Union, FPF, Illinois Press Association, and Chicago Headline Club.

Durbin and Graham are already co-sponsors of the legislation, with Durbin announcing his support for the bill in the Chicago Sun-Times in 2022. But, as the letter explains, if the Senate Judiciary Committee does not review the bill in the next couple of weeks, the clock could run out.

FPF director of advocacy and Illinois resident Seth Stern said:

Illinois news outlets are giving everything they’ve got to make sure that people are informed about what’s happening in their communities.

Yet journalists and whistleblowers in Illinois remain vulnerable to invasive subpoenas demanding that reporters burn their sources. Our federal appellate court is one of the few that doesn’t recognize a journalist-source privilege. That means everyone from prosecutors to private plaintiffs can haul reporters into federal court and demand to know who they’re talking to and what information they have. Whistleblowers don’t talk to journalists when they’re afraid of being outed, and the result is that official misconduct goes unchecked and important stories go untold.

Sen. Durbin can change that. He already supports the PRESS Act and should advance it through the Judiciary Committee so it can become the law of the land.

“The Senate should not squander this rare opportunity to defend the First Amendment and protect press freedom through bipartisan legislation. The PRESS Act is bipartisan, commonsense legislation that would protect journalists, sources, and Americans’ right to know,” said FPF Executive Director Trevor Timm, a Springfield, Illinois native. 

Clayton Weimers, executive director of Reporters Without Borders USA and a Chicago native, explained in a letter to the Sun-Times yesterday that Durbin can “help reverse the decline of American press freedom” by advancing the PRESS Act.

Illinoisian actor and activist John Cusack, a founding board member of FPF, has also written op-eds and letters in support of the act.

In addition to protecting journalists from subpoenas, the PRESS Act would shield them from government surveillance through their phone and email providers. It contains commonsense exceptions for emergencies: for example, terrorism and threats of imminent violence.

The bill was the subject of a recent congressional hearing featuring testimony from former CBS News and Fox News journalist Catherine Herridge, who has been held in contempt of court for refusing to reveal sources. “If confidential sources are not protected, I fear investigative journalism is dead,” she said during her testimony.

The PRESS Act passed the House unanimously in January. Durbin and Graham are joined by Sens. Ron Wyden and Mike Lee as Senate sponsors of the PRESS Act. Major media publishers, press freedom and civil liberties organizations and editorial boards around the country have endorsed the PRESS Act, and Senate Majority Leader Chuck Schumer has said he supports the bill and hopes to bring it to President Joe Biden’s desk this year.

But he can’t do that unless Durbin, Graham, and the Senate Judiciary Committee advance the bill first. They should do so without delay.

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