PRESS Act – Media Nation

A proposed federal shield law dies; plus, The Onion v. Alex Jones, and Krugman’s awkward farewell

Sen. Tom Cotton. Photo (cc) 2016 by Michael Vadon.

The PRESS Act, which would protect reporters from being forced to identify their anonymous sources or turn over confidential documents, appears to be dead despite passing the House on a unanimous vote earlier this year.

Clare Foran and Brian Stelter report for CNN that the bill died Tuesday after Republican Sen. Tom Cotton of Arkansas objected to an attempt to pass it by unanimous consent. Cotton said that passage would turn senators “into the active accomplice of deep-state leakers, traitors and criminals, along with the America-hating and fame-hungry journalists who help them out.” President-elect Donald Trump has demanded that Republicans defeat the measure, so that would appear to be the end of the road.

Meanwhile, the Reporters Committee for Freedom of the Press, a staunch supporter of the bill, noted that the U.S. Justice Department’s Inspector General’s office released a report Tuesday finding that journalists’ records had been sought during Trump’s first term in violation of internal guidelines. CNN, The New York Times and The Washington Post were targeted along with members of Congress and congressional staffers.

In a statement, RCFP executive director Bruce Brown said:

The government seizure of reporters’ records hurts the public and raises serious First Amendment concerns. This investigation highlights the need for a reasonable, common-sense law to protect reporters and their sources. It’s time for Congress to pass the PRESS Act, which has overwhelming bipartisan support, to prevent government interference with the free flow of information to the public.

The PRESS Act, which stands for Protect Reporters from Exploitative State Spying, would add the federal government to the 49 states that already have some form of shield protection for journalism. The sole exception is Wyoming.

Trump is hardly alone in his contempt for the importance of journalistic anonymity in holding government accountable. Former President Barack Obama was so aggressive in demanding that reporters identify leakers that I once wrote a commentary for The Huffington Post headlined “Obama’s War on Journalism.”

Under President Biden, though, Attorney General Merrick Garland issued guidance prohibiting federal prosecutors from seizing journalists’ records except in a few narrow cases involving terrorist investigations or emergencies — the same exceptions that are spelled out in the PRESS Act. Now it seems virtual certain that Trump will return to his previous repressive practices, with Tom Cotton cheering him on.

Media notes

• Peeling back The Onion. The internet exploded in celebration recently when The Onion won a bid to purchase Infowars from right-wing conspiracy-monger Alex Jones, who was sued into bankruptcy by the families of children who were killed in the Sandy Hook school massacre of 2012. Jones had spread false stories that the shootings were somehow faked. Now, though, a bankruptcy judge has ruled the Infowars auction was improperly conducted in secret and may have resulted in less money for the families than an open process, David Ingram reports for NBC News.

• Krugman’s awkward farewell. Longtime New York Times columnist Paul Krugman, surely the only opinion journalist to have won a Nobel Prize, wrote a heartfelt farewell column (gift link) on Monday. But though all was sweetness and light publicly, independent media reporter Oliver Darcy writes that Krugman may have left earlier than he would have liked because he regarded opinion editor Katie Kingsbury as heavy-handed, demanding a “far more thorough edit” (including the vetting of pitches) of all Times columnists than had previously been the case.

I’m looking forward to seeing what Krugman does next. I thought his column had become somewhat repetitive in recent years, but I’d welcome longer pieces from him published less frequently. He remains one of our most vital public intellectuals.

Update: Well, that didn’t take long. Krugman started a Substack newsletter in 2021, let it wither, and has now revived it.

Despite bipartisan support, a proposed federal shield law may fall by the wayside

Sen. John Cornyn. Photo (cc) 2012 by Gage Skidmore.

Time is running out for the PRESS Act, which would protect journalists from being forced to identify their anonymous sources or turn over confidential documents. The measure is crucial to preventing the government from hauling journalists into court in order to identify whistleblowers who leak information.

Incredibly enough, the bill was passed unanimously by the House last January. But it has since stalled in the Senate, and you can be sure that it will die once that chamber flips from Democratic to Republican control and the press-hating Donald Trump returns to the White House.

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Earlier this week, Jodie Ginsberg, CEO of the Committee to Protect Journalists, called for passage of the PRESS Act in an interview on the “PBS NewsHour.” She told co-anchor Geoff Bennett:

It’s really urgent that we pass this federal shield law.

So, some states have these federal protections, which essentially means that journalists’ information, journalists’ sources can’t be subpoenaed. Information from whistle-blowers can’t be subpoenaed. It’s really important that we have that federal shield law to protect journalists at the federal level.

We know that Trump is interested in going after whistleblowers, people who leak. And it’s absolutely essential that they are protected and that journalists’ sources are protected and that journalists are allowed to do their job.

As Ginsberg notes, 49 states have some form of shield protection for journalists either in the form of a law or a ruling in the state courts. The only exceptions are Wyoming and the federal government, although the shield protection in Massachusetts is so weak that a Boston magazine reporter may be forced to turn over audio of off-the-record interviews she conducted with murder suspect Karen Read. (The PRESS Act would not affect that, which shows why we need a state shield law as well.)

On Oct. 8, 107 news media and press freedom organizations sent letters to the Senate urging passage and to the House urging that it pass the bill again should it return to that body. Among the local signatories: Boston Globe Media, the Massachusetts Press Association and the New England Newspaper and Press Association. The letter says in part:

The PRESS Act is timely and critical. Absent a federal law, journalists’ protections in federal courts against the compelled disclosure by federal officials of confidential source information or sensitive newsgathering materials vary considerably by jurisdiction. And, in recent years, under administrations of both parties, the Justice Department and other federal agencies have sought sensitive records from or of journalists on multiple occasions. While the Department of Justice adopted new internal guidance in 2021 sharply limiting that practice at DOJ, the policy remains subject to change at the department’s discretion and other federal agencies are not bound by it.

According to the Society of Professional Journalists, the main obstacle at this point is Sen. John Cornyn, R-Texas. SPJ is urging supporters to write letters to Cornyn via his website, warning, “Time is running out. It is crucial that this bipartisan federal shield bill advances this week.”

Crucially, the PRESS Act would protect not just professional journalists but anyone engaged in acts of journalism. It’s also important to note that the act would not provide blanket protection — there are a few narrow exceptions involving terrorism, emergencies or instances in which the journalists themselves are suspected of committing a crime.

Here is more background on the PRESS Act.

The Herald’s print numbers keep dropping while digital holds steady; plus, media notes

The Boston Herald Traveler plant sometime in the 1950s. Photo (cc) 2013 by City of Boston Archives.

Paid print circulation continues to fall at the city’s second daily newspaper, the Boston Herald, while paid digital subscriptions are essentially unchanged over the past year. That information was gleaned from published statements that the Herald filed with the U.S. Postal Service this past September as well as the previous September.

Last week I reported that the dominant daily, The Boston Globe, is losing print customers more quickly than it’s adding digital subscribers — a departure from previous years, when digital was growing rapidly. The paper is predicting a return to faster growth in 2025.

I’m reporting on the Herald’s numbers with less information than I would like, but I believe I have enough to make some accurate apples-to-apples comparisons.

Unlike the Globe, and unlike virtually every daily newspaper I’ve ever looked at, the Herald’s postal statements include Sunday numbers in its average circulation totals. If I had access to the Alliance for Audited Media’s reports, I could find separate totals for Sundays and weekdays. Last October, for instance, Mark Pickering, writing for Contrarian Boston, found that the Herald’s average paid weekday print circulation was 16,043, a decline of more than 20% over 2022. Sunday circulation, he reported, was 19,799 last year, a drop of more than 16%.

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Pickering was relying on numbers that the Herald had reported to AAN. Unfortunately, AAN ended free log-ins for journalists and researchers a couple of years ago. And when I asked for four reports last week regarding the Herald and the Globe, I was told that it would cost me $200. No thank you.

So that brings us to the seven-day print numbers that the Herald reported to the Postal Service. According to reports filed on Sept. 20, 2024, the Herald’s average print circulation during the preceding 12 months was 13,092 — a substantial drop of 2,566, or more than 16% over the previous year.

Now for digital circulation. As I wrote last week, the digital numbers that newspapers report to AAN and the Postal Service involve some double-counting and are actually higher than the internal numbers. Globe spokeswoman Carla Kath told me that the paper’s paid digital circulation is currently 261,000, an increase of 6.5% over the previous year but substantially below what’s on the postal (and AAN) statements.

Given that, I’d like to know what the Herald’s internal count of digital circulation shows. But publisher Kevin Corrado did not respond to an email seeking clarification, so I’m going to go with the postal statement. And according to that statement, the Herald’s average seven-day digital paid circulation is now 27,894, just 655 more than it was a year ago.

For some reason, the 2023 number is slightly lower than what Pickering reported at Contrarian Boston a year ago for both weekdays and Sundays, which suggests an unexplained discrepancy between what the Herald reported to the postal service and to AAN.

All told, the Herald’s average paid circulation as reported to the postal service, print plus digital, is now 40,978, a decline of 1,919, or about 4.5%.

Media notes

• Media critic Margaret Sullivan, whose lengthy résumé includes a stint as The New York Times’ public edtior, weighs in with some thoughts on a bizarro juxtaposition of Times headlines about presidential candidates Kamala Harris and Donald Trump. The headlines: “In interviews, Kamala Harris continues to bob and weave” and “In remarks about migrants, Donald Trump invoked his long-held fascination with genes and genetics,” which is another way of saying that the Orange Authoritarian is a fan of eugenics.

As Sullivan writes, the Harris head is “unnecessarily negative, over a story that probably doesn’t need to exist,” while the Trump head “takes a hate-filled trope and treats it like some sort of lofty intellectual interest.” Liberals and progressives on social media, especially on Threads, have been up in arms at what they see as the Times’ soft treatment of Trump. Though I think much (OK, some) of that criticism is overwrought, there’s no disputing that the paper blew it with the two headlines Sullivan cites.

• Speaking of the Times, executive editor Joseph Kahn was interviewed on NPR in recent days by “Morning Edition” co-host Steve Inskeep. Kahn was asked to address criticism from the left, including the Times’ obsessive coverage of President Biden’s age and its weird both-sidesy treatment of the candidates’ housing plans. (Harris: Build more; Trump: Deport the occupants.)

“In people’s minds, there’s very little neutral middle ground. In our mind, it is the ground that we are determined to occupy,” Kahn said. He added: “It’s not about implying that both sides have absolutely equal policies on all the issues. It’s about providing well-rounded coverage of each of the two political parties and their leading candidates.” Read or listen what Kahn has to say and see if you agree.

• This blog is built on WordPress, open-source software that powers many news websites. Unlike Twitter, Meta or Substack, WordPress has always seemed like a non-evil alternative. You can set up your blog at WordPress.com, a commercial hosting service, or do it yourself using the free WordPress.org software. I’ve done both, and currently Media Nation uses dot-org.

Now all that is being threatened. Longtime digital journalist Mathew Ingram, who’s gone independent, has a terrific post up about the battle between Matt Mullenweg, a wealthy entrepreneur who controls both dot-com and dot-org, and WP Engine, a major third-party hosting service that I don’t use. “In a word, it’s a godawful mess,” Ingram writes. “And every user of WordPress has effectively been dragged into it, whether they wanted to be part of it or not.”

Beehiiv, anyone?

• The PRESS Act, which would create a federal shield law to protect journalists from being forced to identify their anonymous sources except in rare cases, has been endorsed by The New York Times. I’ve written more about it here.

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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A Mass. judge weighs whether to compel a journalist to turn over her interview notes

An important press freedom case is playing out in a Dedham courtroom, where a prosecutor has asked a judge to force a reporter for Boston magazine to turn over her interview notes.

The magazine reporter, Gretchen Voss, wrote a lengthy article last September about Karen Read, a Mansfield woman who’s been charged with second-degree murder in the 2022 death of her boyfriend, Boston Police Officer John O’Keefe. The case is massively complicated and has become emotionally fraught, as supporters of Read have accused authorities of staging an elaborate coverup. Essentially, though, Read has been charged with running over O’Keefe with her SUV while under the influence of alcohol and leaving him to die in a snowbank. Read and her supporters counter that O’Keefe was severely beaten inside the Canton home of a fellow officer and dragged outside, where he died.

Ironically, a hearing into whether Voss would be compelled to turn over the notes of her interviews with Read was held on the same day that Congress took a rare bipartisan step toward granting journalists the right to protect their sources. More about that below.

According to an account by Ivy Scott and Travis Andersen in The Boston Globe, Norfolk District Attorney Michael Morrissey has asked Superior Court Judge Beverly Cannone to demand that Voss cooperate with the prosecution by producing her notes of what Read told her off the record. Voss replied that she would be willing to testify about the article that Boston published, but that going beyond that would be a violation of her First Amendment right to protect her sources. The magazine’s attorney, First Amendment lawyer Robert Bertsche, said the prosecution was demanding that Voss help them compile evidence to help with their case, “which was outside the scope of the law,” as the Globe summarized Bertsche’s argument.

“You can be sure if Karen Read confessed in her interview with Gretchen Voss,” Bertsche added, “that would have made it into the article.”

The Globe also quoted Assistant District Attorney Adam Lally as saying that there is “no reporter privilege in the Commonwealth of Massachusetts.” That’s true, but it’s also complicated.

Massachusetts is one of 49 states that offer some protection to journalists to protect their sources, either through a shield law or rulings by their state’s courts. (Wyoming, by the way, is the sole exception.) There is no shield law in Massachusetts, nor has the state’s Supreme Judicial Court ever ruled that there is a reporter’s privilege. But according to an overview compiled by the Reporters Committee for Freedom of the Press (RCFP), the courts in Massachusetts have recognized that journalists may have a limited right to protect their sources. The overview begins:

Massachusetts does not have a shield law, and the Supreme Judicial Court of Massachusetts has not been willing to recognize a reporter’s privilege under either the Massachusetts or U.S. Constitution. Nevertheless, Massachusetts courts have been willing to use a common law balancing test based on general First Amendment principles to protect reporters’ confidential sources in some circumstances.

That balancing test is about as good as it gets in any state, since the reporter’s privilege is not absolute. Way back in 1972, the U.S. Supreme Court ruled in Branzburg v. Hayes that the First Amendment provides no such protection, although the convoluted ruling suggested that judges should balance concerns about press freedom with the need to compel testimony. What will happen in the Karen Read prosecution is that Judge Cannone will decide whether the information Voss has is so important to the case, and unobtainable from any other non-journalistic source, that she should be compelled to turn it over.

A complicating factor is that no journalist would cooperate with such a demand, leading to the possibility that Voss could be held in contempt of court. One of the more notable Massachusetts examples of that took place in 1985, when WCVB-TV (Channel 5) reporter Susan Wornick narrowly avoided a three-month jail sentence when the source she was protecting in a police corruption case came forward and agreed to cooperate with the prosecution.

As anyone who’s been following the Karen Read case knows, I’m only chipping away at a tiny piece of it. Also on Thursday, Read’s lawyers argued that correspondence between District Attorney Morrissey and the U.S. attorney’s office should be made public and that Morrissey should be disqualified. Federal authorities are investigating how the district attorney’s office has handled the case, although the nature of their investigation has not been made public.

Finally, blogger Aidan Kearney, who goes by Turtleboy, and who has taken Read’s side, is currently being held in custody on charges of witness intimidation and domestic assault and battery. Kearney and his supporters claim those charges were filed in retaliation for his crusade on Read’s behalf.

As I wrote up top, all of this is playing out against the background of a positive step taken by Congress. Despite the existence of some shield protections in 49 states, there is no shield law at the federal level. On Thursday, though, the House unanimously passed the PRESS Act, which the the RCFP describes as “a bipartisan federal reporter’s shield law that would protect journalists from being forced to name their sources in federal court and would stop the federal government from spying on journalists through their technology providers.” The sole exceptions, according to a summary of the bill, would be in “limited circumstances such as to prevent terrorism or imminent violence.”

Given that the Republican House was able to act for all its dysfunction, there would appear to be reason for optimism that the Senate will approve the measure as well.

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