​The PRESS Act – Protect Reporters from Exploitive State Spying Act – was introduced in the U.S. House and Senate this morning.
 
This legislation would limit the ability of prosecutors to expose the sources and notes of journalists in federal court. While 49 U.S. states have such press “shield laws,” the federal government has no such protections. This has led to federal intrusions into the records of the Associated Press, The Washington Post, and The New York Times, as well as advocacy journalists on the left and right.
 
The PRESS Act had previously passed the House with unanimous, bipartisan support in September 2022. Today, it was introduced by Rep. Kevin Kiley (R-CA) and Rep. Jamie Raskin (D-MD), and in the Senate by Sen. Ron Wyden (D-OR), and Sen. Mike Lee (R-UT).
 
“Support for the PRESS Act sweeps across ideological divisions in both houses of Congress because it is widely recognized that the basic liberties of all are at stake,” said Bob Goodlatte of Virginia, former Chairman of the House Judiciary Committee and Senior Policy Advisor of Protect The 1st. “At a time when voters and constituents in both parties are concerned about the potential for federal power to be abused and misused, passing the PRESS Act into law this year should be a point of pride for any incumbent.”
 
Rick Boucher, former Virginia congressman, member of the House Judiciary Committee, and now Senior Policy Advisor of Protect The 1st, also stressed the need to pass this legislation in 2023. He was also the lead sponsor of a forerunner bill, the federal press shield legislation that passed the House in 2007 and 2009.
 
“Journalists have been held in contempt and jailed for refusing to reveal their confidential news sources,” Boucher said. “When big scandals, corruptions, and misdeeds that harm the public interest come to light, it is usually because some brave soul on the inside was willing to speak to a reporter.
 
“Let’s protect that whistleblower,” Boucher said. “And let’s protect that journalist as well. By doing so, we protect all our rights.”

​The Educational Choice for Children Act is a House-Senate bill that aims to provide tax credits for charitable donations to expand choices in quality education. The legislation, introduced by Sens. Cassidy, Scott, Daines, and Young, and Reps. Owens and Smith, would allow individuals and businesses to receive tax credits for donations to Scholarship Granting Organizations (SGOs) that provide scholarships to eligible students for attending private or religious schools, homeschooling, or other non-public educational options.
 
The bill’s supporters make the point that private options are often superior choices over available public schools.
 
“I’ve always said that when you give parents a choice, you give kids a better chance at achieving their dreams,” said Senator Scott. “By empowering families with more education resources, this bill could change the lives of millions of high-potential students who deserve every opportunity to succeed.”
 
The bill includes provisions that would allow SGOs to determine the amount of scholarship awards given to individual students. An estimated two million students in any elementary or secondary education setting, including homeschooling, would be eligible to receive scholarships that can cover tuition, fees, books, supplies, and equipment necessary for enrollment or attendance in non-public educational options.
 
The bill is supported by religious and educational organizations. Rabbi Abba Cohen of Agudath Israel of America said: “We encourage lawmakers, Republican and Democratic, to put a bipartisan stamp on the common-sense policy that is at the heart of this bill: assisting parents to access the learning environment and the educational benefits that are best suited for their children, and that will enhance educational achievement for all of America’s students. We call for its favorable consideration and passage by both House and Senate.”
 
The bill was also endorsed by the U.S. Conference of Catholic Bishops.
 
“Like other private schools, religious schools fulfill a critical role in the education of our youth,” said Gene Schaerr, Protect the First general counsel. “Religious schools provide state-mandated instructional material while allowing parents to raise their children in accordance with their faith, a vital component of the free exercise of religion protected by the First Amendment. The Educational Choice for Children Act would provide parents with more educational options that are consistent with their religious beliefs.”

In just our second year as a civil liberties organization, Protect The 1st enjoyed great success in advancing and protecting the principles and spirit of the First Amendment in Congress, the courts, and the media.
 
The Press Act

In 2022, Protect The 1st supported a bill, introduced by Rep. Jamie Raskin of Maryland, to bring the federal government up to the same standard as 49 states by protecting journalists’ notes and sources in court proceedings.
 
Persistent advocacy of the Press Act by Protect The 1st Senior Policy Advisors Rick Boucher and Bob Goodlatte, both former House Members from Virginia, was instrumental in securing passage of the bill in the House and advancing it with bipartisan support in the Senate. “The PRESS Act passed unanimously because courts continue to hold journalists in contempt and even jail them for refusing to reveal their confidential sources,” said Rick Boucher. “The House made a strong statement today that this is not acceptable.”
 

• In an op-ed, Boucher and Goodlatte detailed all the reasons why Congress should pass the PRESS Act, including federal snooping into the records of the AP, CNN, The Washington Post and The New York Times.

• With co-sponsorship of the Press Act by Sen. Ron Wyden of Oregon and Sen. Mike Lee of Utah, the Press Act has a high likelihood of passing in the new Congress. Protect The 1st expects this bill to be introduced early in the 118th Congress and passed into law later this year.

 
Religious Liberty

The free exercise of religion is one of the principal guarantees of the First Amendment. Thus, every religious group has a stake in the ability of the people of the Apache Stronghold to continue observing their ancestral religion at their sacred site in Oak Flat, a large parcel of land in the Tonto National Forest in Arizona. As a result of a midnight deal in Congress, that land is slated to be transferred to a foreign mining consortium to mine copper. That operation would transform the Apache’s sacred land into a crater as long as the Washington Mall and as deep as two Washington Monuments.
 
“Imagine doing that to any other community or religious group — to pulverize St. Patrick’s Cathedral in New York City, or the Touro Synagogue in Rhode Island — and not only destroy an irreplaceable site of worship but leave behind an ugly and enormous gash in the earth,” Rick Boucher wrote in an Earth Day op-ed in The Hill.
 
In this and many other ways, Protect The 1st strongly advocated on behalf of the Apache, including advocacy on Capitol Hill and in amicus briefs in the courts.
 
For most of the year, Oak Flat seemed like a lost cause. The Apache lost their case in the Ninth Circuit Court of Appeals, only to have a rare decision by that same court to revisit its ruling later in the year. While the court ponders the religious liberty implications of the destruction of land sacred to these Americans’ religion, Protect The 1st will take the opportunity to press Congress to pass the Save Oak Flat Act.
 
Religious liberty scored a touchdown when the U.S. Supreme Court, in a 6-3 opinion, upheld the rights of a coach to pray after games. In its opinion, the majority adopted a view that is almost a verbatim quote from the amicus brief Protect The 1st filed in the case of the “praying coach.”
 
Protect The 1st in the Courts
​
Protect The 1st filed a brief in FEC v. Cruz, a case asking the U.S. Supreme Court to invalidate limits on the amount candidates for federal office can recover from their personal donation to their campaigns. In the majority opinion, Chief Justice John Roberts cited Protect The 1st’s brief on removing limits on the right of candidates to personally support their campaigns and their political speech.
 
Protect The 1st petitioned the U.S. Supreme Court to determine if local authorities can regulate speech on public sidewalks, testing the scope of the public forum doctrine in Keister v. Bell. This petition was selected as Petition of the Week by the respected SCOTUSBlog. Our petition also drew the support of multiple First Amendment organizations.
 
Protect The 1st filed multiple briefs asking the U.S. Supreme Court to clarify the rights of public-sector employees to opt-out of being forced to pay for political speech through compelled membership in unions. Protect The 1st ended the year with a filing, Kurk v. LRCEA, that challenges such compulsion and violation of workers’ First Amendment rights.
 
In 2022, Empirical SCOTUS ranked Protect The 1st sixth in the nation in filing amicus briefs. Only five organizations, which included the U.S. government and the U.S. Chamber of Commerce, filed more briefs.
 
Much of the logic and actual language offered by Protect The 1st appeared not only in FEC v. Cruz, but in four important religious liberty cases Ramirez v. Collier, Carson v. Makin, Kennedy v. Bremerton School District, and Shurtleff v. Boston. In each case, Protect The 1st anticipated the Supreme Court majority’s reaction against sudden and dramatic curtailments of the freedom of speech and religion.
 
In all these ways – from the court of public opinion, to the U.S. Supreme Court, to Capitol Hill – Protect The 1st is building on our early successes to support the guarantees of free speech, a free press, and the free exercise of religion.

​Protect The 1st has long supported the people of the Apache Stronghold as they’ve faced the gut-churning prospect that the government will allow a foreign mining consortium to transform their ancient site of worship into a giant crater as long as the Washington Mall and deep as two Washington Monuments.
 
Over the summer, a three-judge panel of the Ninth Circuit Court of Appeals issued a ruling that refused to protect Oak Flat, a large swath of the Tonto National Forest that the federal government recognized in a 19th century treaty as land held sacred by the Apache. The court ruled that the transfer of this land to a copper mining consortium resulting from a midnight deal in Congress did not substantially burden the First Amendment right to religious exercise of the Apache. Protect The 1st objected that the absolute destruction of a religious minority’s site of worship, the Apache’s equivalent of the Vatican or Temple Mount, was a “substantial burden” of the right of religious freedom guaranteed by the First Amendment and the Religious Freedom Restoration Act (RFRA).
 
In our view, the Ninth’s ruling would not only destroy the centerpiece of one religion, but would erode all religious protections guaranteed by RFRA. We weren’t alone in our thinking: Judge Marsha Berzon of the Ninth Circuit dissented, called her peers’ ruling “absurd,” “illogical,” “disingenuous,” and “incoherent.”
 
In August, the judges of the Ninth Circuit called for a vote to rehear the case en banc, in front of a full court of 11 judges. Such requests for a rehearing are exceedingly rare, limited to about one-half of one percent of cases. Legal observers welcomed the maneuver as a chance for dissenting judges to get their opinions on record as fodder for a bid for certification for oral argument before the U.S. Supreme Court. Few legal observers gave Oak Flat a realistic chance for an actual rehearing.
 
The Apache people, undaunted, responded in a positive and hopeful way by organizing a caravan to San Francisco to urge the court to go ahead and reconsider its ruling.
 
On Thursday, the full court voted to grant Oak Flat a full en banc rehearing.
 
Gene Schaerr, PT1 general counsel, congratulated the Becket law firm for its strong representation of the Apache.
 
“This is a very encouraging day for religious liberty, the Religious Freedom Restoration Act, and the rights of religious minorities in America,” Schaerr said. “It is remarkable that the Ninth Circuit itself sought this review of its decision.
 
“We congratulate the Ninth for this bold decision and look forward with enthusiasm to supporting the Apache’s case.”

​Attorney General Merrick Garland this week formalized a policy he announced early in his tenure that restricts the use of legal tools by federal prosecutors to force journalists to divulge their notes and sources.
 
This new rule precludes “the use of compulsory legal process, including subpoenas, search warrants, and certain court orders for the purpose of obtaining information from or records of members of the news media.”
 
Such protections are sorely needed. We’ve seen federal intrusion into the records of the AP, CNN, The Washington Post, The New York Times, and even morning raids to confiscate the phones of activist journalists. Over the years, journalists have been held in contempt and jailed for refusing to reveal their confidential news sources. Most U.S. states have “press shield” laws that protect journalists’ sources and notes, with reasonable exceptions. But the federal government has no such law.
 
It is heartening to see the Attorney General make this directive a formal rule. We should remember, however, that Department of Justice rules can change with the next Attorney General and the next administration — or even if the current Attorney General changes his mind.
 
We value the ability of journalists to shield confidential sources because so many times revelations from whistleblowers have revealed wrongdoing or dysfunction that the American people need to know about. Recognition of a shield law as essential to freedom of the press explains why Reps. Jerry Nadler and Jim Jordan, Chair and Ranking respectively of the House Judiciary Committee, led a bipartisan group to vocally support the Protect Reporters from Exploitive State Spying (PRESS) Act, introduced by Sen. Ron Wyden (D-OR) and Rep. Jamie Raskin (D-MD). The PRESS Act passed the House with unanimous support in September.
 
Attorney General Garland deserves our gratitude for pushing this issue forward and underscoring its importance. All that’s left is for the Senate to seal the deal and join the House in sending the PRESS Act to the president’s desk for signature.

​The U.S. Senate today rejected the Disclose Act, a bill that would have violated the privacy of donors and exposed them to threats against their livelihoods, businesses, and very lives.
 
The proponents of the bill did not lack for colorful (or actually, colorless) metaphors. Proponents have succeeded in persuading the media to call private, confidential donations to political causes as “dark money.” Sen. Sheldon Whitehouse (D-R.I.) called these donations “a dark octopus of corruption and deceit.” Such funds, said Majority Leader Chuck Schumer (D-NY) are “drowning out the views of citizens” and “disfiguring our democracy.”
 
This view overlooks the actual threat of disfigurement in this age of cancel culture, doxing, and the normalization of taking protests (and sometimes guns) to the homes of officials, including Supreme Court justices.
 
Consider what happened in 2009 after California donors who had given $100 or more in favor of a statewide amendment on marriage had their identities disclosed. Common web tools revealed their home addresses and other personal information. With their privacy exposed, donors experienced intimidation, hostility at the workplace, vandalism, slurs, and violence. Donors from the Church of Jesus Christ of Latter-Day Saints were systematically targeted by one website. A Lutheran pastor was threatened with gun and firebomb violence.
 
The power of doxing can work against people of all political persuasions. A website called the Nuremberg files identified roughly 200 abortion providers, along with their personal information, home addresses, phone numbers and photographs. Some physicians targeted in this way were forced to resort to wearing disguises and spending thousands of dollars on home security systems.
​
Respect for donor privacy has a venerable history based on necessary concerns. In 1958, the U.S. Supreme Court protected the anonymity of donors to the NAACP from being reviewed by the State of Alabama, no doubt protecting those donors from harassment and worse.
 
Despite the partisan framing and party-line vote on this bill in this election season, people of all ideologies and both parties continue to have a stake in donor privacy. ACLU, hardly a bastion of corporate apologists, has opposed past versions of the Disclose Act. The donors at risk today may be well-heeled or not, but if you think the threat of violence, economic retaliation and social intimidation is not real, you’ve not been paying attention to the current state of the culture.
 
Today’s vote was a positive development. Next perhaps we can persuade the media to begin referring to the issue as one of “donor privacy” instead of “dark money” surrounded by evil octopi.

​The U.S. House of Representatives passed the Protect Reporters from Exploitative State Spying (PRESS) Act with unanimous, bipartisan support today.
 
This bill, long supported by Protect The 1st and civil liberties sister organizations, would protect journalists and their sources by granting a privilege to protect confidential news sources in federal legal proceedings. Former Rep. Rick Boucher (D-VA), PT1st Senior Policy Advisor and the original author of an earlier version of this bill, said:
 
“Kudos to Rep. Jamie Raskin for shepherding this bill through the House in such a busy season. The PRESS Act passed unanimously today because courts continue to hold journalists in contempt and even jail them for refusing to reveal their confidential sources. The House today made a bold statement that this is not acceptable. I am heartened to see such a strong, bipartisan stand for a free and unintimidated press.”
 
PT1st general counsel Gene Schaerr, said:
 
“Today’s approval reflects the common sense behind this bill. Passage of this bill with unanimous, bipartisan support is a reaffirmation of the First Amendment’s guarantee of protection for a free press. If such a law works well for the vast majority of states, there is no excuse for the federal government to be so far behind the times.”
 
Former Rep. Bob Goodlatte who served as Chairman of the House Judiciary Committee, and now as PT1st Senior Policy Advisor, said:
 
“When a bill passes so easily after being praised by two of my former colleagues, House Judiciary Committee Chairman Jerry Nadler and Ranking Member Jim Jordan, that tells you something about the need for this bill to become law.
 
“The question now is will the U.S. Senate respond to the enthusiastic, bipartisan support displayed by the House? This bill has been sponsored in the past by now-Senate Majority Leader Chuck Schumer and Sen. Lindsey Graham. Enacting this bill into law would be a positive message that every senator can take home.”