If we want the media to live up to its role, then we have to provide them with the necessary protections.
Federal legislation to protect the media’s ability to serve the public and democratic process is making progress in the Senate.
The Protect Reporters from Exploitative State Spying (PRESS) Act would establish robust buffers between the government and the free press. More specifically, it would prevent the government from surveilling journalists and forcing the disclosure of confidential sources — a dangerous practice that has become routine over the past few presidential administrations. The bill was passed by the House of Representatives earlier this year and is now being considered by the Senate Judiciary Committee.
The PRESS Act would shield journalists — as well as phone and internet companies — from compelled disclosure of information identifying a confidential source and other work-related records. It also shields third parties, such as telecommunications and social media companies, from forced testimony about files and communications they store on behalf of journalists. The proposed legislation has exceptions for the prevention of terrorism and imminent violence, which the government must demonstrate by a preponderance of evidence. In these circumstances, reporters will receive notice and have an opportunity to be heard.
Such protections are necessary to ensure a thriving and independent press. During the Obama presidency, the Justice Department secretly obtained two months of phone records belonging to Associated Press reporters and editors. Under the Trump administration, the DOJ covertly seized email and phone records from journalists at The New York Times, The Washington Post and CNN. Federal authorities said it was necessary to obtain the information for a criminal investigation, even though the journalists were not subjects in any proceedings.
As administrations change, the only difference is who becomes a target. Let’s not forget how the FBI raided the homes of Project Veritas staff and seized their phones for information about a stolen diary belonging to President Biden’s daughter. Project Veritas argued that the diary was given to them by two individuals who said it was not stolen. It did not publish the contents and turned the diary over to law enforcement.
According to the congressional report accompanying the bill, numerous journalists have faced legal consequences for refusing to disclose the names of their sources. For example, in 2004, reporter Jim Taricani was sentenced to six months of home confinement because he would not reveal the identity of the person who gave him an FBI surveillance tape showing a mayoral aide accepting a $1,000 bribe.
In these instances and many others, authorities use lawful means to obtain the evidence they want. But the methods feel extreme and extra-constitutional because they are. If First Amendment protections for the press can be so easily sidestepped for political reasons, then does this constitutional safeguard actually constrain the government?
These civil liberties violations will do little to restore declining trust in the government and the media. Ultimately, the public loses out. When the government impedes newsgathering, especially in the context of politically relevant news, it deprives the American people of the tools they need to make informed decisions and engage thoughtfully in civic duties.
Even worse, it fundamentally erodes the freedom of the press, which is a necessary predicate for the preservation of the democratic process, since it is one of the few public “checks” on an overzealous executive branch.
It is in the public interest for the media to play a strong role in promoting government accountability. However, it cannot fulfill this purpose when federal authorities brazenly use dishonest yet lawful means to subvert information access for their own benefit. If we want the media to live up to its role, then we have to provide them with the necessary protections. If enacted, the PRESS Act will be an important step in preserving the First Amendment and its press freedom guarantees.
Rachel Chiu is a visiting fellow at the Independent Women’s Forum and a contributor for Young Voices. She tweets @rachelhchiu.
