Should the government be free to dig into the records, notes, phone logs and emails of journalists or subpoena them into federal court to catch a leaker?
In almost all states, the answer is “no.” Most states, including Virginia, and the District of Columbia have a law to shield journalists from being forced to disclose their sources. The federal government has no such law, despite the broad public benefits of journalistic exposures of wrongdoing and malfeasance at the national level demonstrated time and again with healthy disclosures, from the Pentagon Papers, to Watergate, to the investigations into the January 6, 2021, Capitol assault.
Perhaps with the embarrassing disparity between federal and state law in mind, the House Judiciary Committee recently acted to bring federal law up to speed. Chair Jerry Nadler, a liberal Democrat from New York, and Republican Ranking Member Jim Jordan, conservative from Ohio, joined together in vocal support of the Protect Reporters from Exploitive State Spying (PRESS) Act, introduced by Sen. Ron Wyden (D-OR) and Rep. Jamie Raskin (D-MD). Their bill would establish a federal statutory privilege shielding journalists from being compelled to reveal confidential sources. It would also block attempts to compel disclosure of account information from the communications services used by reporters.
In a time when Congress can barely agree on anything, it was heartening to hear Judiciary Committee members from both sides of the aisle and across the ideological spectrum voice their strong support for the legislation. The PRESS Act was approved by the committee on a unanimous voice vote in April.
Absent from the committee debate was any suggestion that such a law isn’t needed because Attorney General Merrick Garland issued a directive last year prohibiting federal investigators and prosecutors from investigating the records of journalists. Directives frequently and easily change from administration to administration, and the committee approval is strong affirmation of the need for these safeguards to have the permanence of a federal statute.
The committee action occurs against a backdrop of federal intrusion into the records of the AP, CNN, The Washington Post and The New York Times. Over the years, many journalists have been held in contempt and jailed for refusal to reveal their confidential news sources. With each such event, people with knowledge of wrongdoing inside government or corporations grow ever more reluctant to share information with reporters. These people have a lot to lose. If their identities become known, they can lose their means of livelihood. They need the assurance that the reporters with whom they speak in confidence cannot be compelled to disclose the source of the information. Passage of the PRESS Act into law would mean that people on the inside will have greater willingness to bring to light information of vital interest to the public. After all, the most important information about the largest scandals, corruptions and misdeeds doing grievous harm to the public interest comes to light comes when someone on the inside is willing to speak to a reporter.
Admittedly, it is not easy for law enforcement to engage in an all-out pursuit of a leaker, while keeping hands off the journalists who know the person’s identity and whose telecom accounts in the cloud contain enough digital crumbs to lead back to the source. But this is a balance that must be managed, as the members of the Judiciary Committee recognized.
The acceptance of shield laws by most states shows that the PRESS Act is popular legislation – sure to pass by a wide margin when it comes to the House floor. But it will never become law unless it gets on the legislative calendar. It is a matter of urgency that the House leadership schedule the bill for floor consideration – and inspire action in the Senate – before the rancor of the coming midterm elections freezes the legislative process.
Voters watch the news. They understand that the ability of journalists to grant confidentiality to whistleblowers enables the exposure of hidden abuses by the powerful. They will respond well to those who stand up to refresh democracy and enable journalists to provide insights into government action to stimulate reform, debate, and improvement.
Rick Boucher of Abingdon, a Democrat, represented the Ninth Congressional District of Virginia and was a member of the House Judiciary Committee and served in the House of Representatives for 28 years. Bob Goodlatte of Roanoke, a Republican, represented the Sixth Congressional District of Virginia and was Chairman of the House Judiciary Committee and served in the House of Representatives for 26 years. Both are now senior policy advisors for Protect the First, a nonprofit dedicated to supporting our First Amendment freedoms. Both are also members of Cardinal’s community advisory committee but committe members have no role in news decisions; see our policy.