“If we don’t have free speech, then we just don’t have a free country,” Donald Trump declared in a campaign speech. “When I am president, this whole rotten system of censorship and information control will be ripped out of the system at large.”
 
Now President Donald Trump has taken a strong step toward fulfilling that promise. We urge him to continue his defense of free speech by protecting another part of the First Amendment, a free press, by supporting the PRESS Act.
 
But first, let’s celebrate this welcome recognition for the central place of the First Amendment in American life. In his inaugural address, President Trump denounced “illegal and unconstitutional federal efforts to restrict free expression.” He said “never again will the immense power of the state be weaponized to persecute political opponents.”
 
Hours later President Trump issued an executive order that begins by denouncing government trampling of “free speech rights by censoring Americans’ speech on online platforms, often by exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve.”
 
The executive order declares: “Government censorship of speech is intolerable in a free society.” We certainly agree and look forward to such practices ending under the current and all future administrations.
 
Congress prepared the president’s way by defunding the State Department’s Global Engagement Center (GEC) that distributed blacklists of American publications to advertisers. The GEC had coordinated in secret with the FBI, CIA, and the rest of the alphabet to collect content government agents found objectionable, then issued threats to social media companies to censor those views.
 
The GEC shuttered its operation before the beginning of the year. Better to quit than wait around to be fired.
 
The president’s executive order now forbids any officer, employee, or agent to engage in or facilitate any conduct that would unconstitutionally abridge the free speech of any American citizen. The use of the word “agent” is a shrewd choice, since it would cover groups like the UK-based NGO Global Disinformation Index, which received direct State Department grants to compile that enemies list of U.S. publications, including RealClearPolitics, Reason, and The New York Post. This prohibition should stand against any administration’s future violation of these principles.
 
The next order of business, we respectfully suggest, is for President Trump to extend and enforce the Justice Department News Media policy that prevents the government from seizing the notes and sources of journalists. For similar reasons, this is also the moment for President Trump to announce his support for the Protect Reporters from Exploitive State Spying (PRESS) Act, which was passed by a Republican House last year and essentially codifies the Department’s policy.
 
Rule-making is not enough and won’t bind the next administration. Consider: outgoing Attorney General Merrick Garland first formalized the Justice Department’s News Media Policy, forbidding compulsory legal processes to obtain the newsgathering records of journalists in 2022. But this rule did not deter the FBI from raiding the Tampa home of journalist Tim Burke the following year to seize his computer, hard drives, cellphone and all they contain.
 
Clearly, a mere departmental rule is not enough to keep the FBI and some in the Department of Justice from interfering in journalism, just as the GEC interfered with free speech in social media. Surely President Trump appreciates the courageous reporters who revealed IRS persecution of conservative non-profits, the highly politicized FBI investigation of the Trump campaign in 2016, and the truth behind the Hunter Biden laptop. Many of President Trump’s media allies – small, thinly funded independent journalists – have a lot to fear from federal agents pawing through their personal effects.
 
Such protections extend to Donald Trump’s media critics as well as his media fans. That is the essence of free speech. And supporting those measures would be a courageous example for Donald Trump to set and in keeping with his pledge to end the weaponization of the power of the state, whether against him and his supporters, or against his own political opponents.
 
We can’t think of another president who came to the defense of the First Amendment in his inaugural address and then followed up on it with an executive order just hours later. We respectfully suggest that President Trump’s support for the PRESS Act would be a great addition to this legacy.

One reason why Donald Trump won his second presidential term – against the expectations of notable mainstream commentators and respected pollsters – is that a small, independent group of influencers and online conservative news outlets went around the mainstream media to keep Americans informed of the candidate’s policy responses to the failures of the Biden Administration.
 
The 2024 election announced the arrival of the small, independent journalistic outfit, from Breitbart on the right to the streaming Young Turks show on the left. These independent voices have their slant on the news and their biases about candidates, but they have been effective in challenging the monolith of reporting from mainstream news organizations.
 
Protecting this ecosystem of independent, pluralistic voices is one reason why soon-to-be President Trump should support the Protect Reporters from Exploitive State Spying (PRESS) Act.
 
Without reporters relying on whistleblowers, we might never have learned about many recent scandals, ranging from the Fast and Furious gun-walking scandal under the Obama Administration to the IRS targeting of conservative non-profits under the direction of Lois Lerner, to the FBI’s highly politicized secret surveillance of Carter Page and the Trump campaign, to the truth behind the Hunter Biden laptop scandal. In each instance, brave whistleblowers came forward to set the record straight, often as sources for independent journalists.
 
“If you cannot offer a source a promise of confidentiality as a journalist, your toolbox is empty,” celebrated investigative journalist Catherine Herridge told members of a House Judiciary subcommittee. “No whistleblower is coming forward, no government official with evidence of misconduct or corruption. And what that means is that it interrupts the free flow of information to the public ...”
 
Herridge is currently fighting for her freedom in the face of a contempt charge regarding an investigative piece she did for Fox News concerning the possible penetration of U.S. higher education by Chinese intelligence. During the Obama administration, government lawyers also issued a search warrant for the emails of Fox News journalist James Rosen. Such aggressive legal tactics threaten to shut down the media’s ability to hold the federal government accountable.
 
It is for reasons like these that Republicans supported the PRESS Act, which this year passed the House with the sponsorship of Republican Rep. Kevin Kiley (R-CA) and the enthusiastic support of conservatives such as House Judiciary Chairman Jim Jordan (R-OH), as well as with the bipartisan support of many House Democrats. The PRESS Act also has the support of Sens. Lindsey Graham (R-SC) and Mike Lee (R-UT).
 
Catherine Herridge can rely on the generosity of Fox News for supporting her defense in facing down contempt charges. But few independent outlets have such deep pockets. A federal prosecutor seeking their sources would force a blogger or small outlet to immediately decide whether to rat out whistleblowers or spend every last dollar of their savings mounting a defense in court and still possibly go to prison.
 
President-elect Trump, supporting the PRESS Act in this Congress or the next would be a way for you to stand by the small, independent, online journalists and commentators who got your campaign appeals to the American people. To oppose the PRESS Act would be to score a goal for those who want to use this power to silence these voices. 

A recent piece in the Duluth News Tribune argues that the Protect Reporters from Exploitive State Spying (PRESS) Act would effectively grant reporters special Brahman status, making them “immune to investigations by federal law enforcement, including grand juries” and allowing them “to withhold vital evidence of crimes, government corruption, and wrongdoings.”
 
This argument is wrong on all counts.
 
On the contrary, the PRESS Act is a necessary bulwark against egregious government snooping and surveillance, as well as increasingly weaponized judicial (and extrajudicial) harassment that undermines the sanctity of constitutionally protected newsgathering efforts.
 
The PRESS Act has two major components. First, it would prohibit federal authorities from spying on journalists through collection of their phone and email records. Second, it would impose strict limitations on when the government can require a reporter to give up their sources.
 
The bill makes clear that “[n]othing in this act shall be construed to … prevent the federal government from pursuing an investigation of a journalist or organization that is
… suspected of committing a crime ...” Further, it contains specifically enumerated exemptions for information necessary to prevent imminent violence or acts of terrorism.
 
The article’s author suggests that the PRESS Act would somehow grant reporters greater First Amendment protections than other Americans. He fails to recognize the many other situations in which communications are legally recognized as privileged – such as those between husband and wife, patient and therapist, or attorney and client.
 
Enshrining such a right for journalists and their sources is a logical policy prescription designed to protect newsgathering, which is our primary means of directing the disinfecting rays of sunlight towards government corruption and malfeasance. Such a shield is in harmony with the aims of our Founders, who made sure the First Amendment had pride of place in the Bill of Rights.
 
Forty-nine states and the District of Columbia already have some version of a press shield law. Why, then, is a federal law needed? Look no further than a congressional report on the PRESS Act, which documents numerous instances of improper attacks against journalists by recent presidential administrations. On at least a dozen occasions since 1990, journalists have been threatened with jail or other harsh punishments for refusing to reveal their sources.
 
Attorney General Merrick Garland announced in 2022 that the Department of Justice would no longer paw through reporters’ phone records in the event of leaks – but it’s an exception that very much proves the rule. Government abuse has gone too far – and could go much further in the future.
 
Consider Catherine Herridge, the courageous former Fox News reporter who is facing jail time and potential fines of $800/day for refusing to give up her sources. Her stories embarrassed the government but also highlighted some very real potential national security risks surrounding a school with ties to the Chinese Communist Party. We’re better off for having this information, and she shouldn’t be punished for doing her job.
 
One factor often lost amidst all this debate about the PRESS Act – the government can absolutely still punish leakers. The Obama administration harassed reporter James Risen of the New York Times for years after he wrote about a U.S.-backed espionage effort in Iran. Despite Risen’s refusal to give up his source, the government eventually found the leaker and threw him in jail anyway.
 
Government surveillance and intimidation of reporters threatens to chill constitutionally protected newsgathering efforts by spooking sources and discouraging journalists on shoestring budgets. We need the PRESS Act to protect against increasing constitutionally illiterate and illegal acts by government officials against reporters.
 
The PRESS Act has sailed through the U.S. House of Representatives twice. We urge the members of the Senate to likewise pass the PRESS Act.
 
And if that doesn’t happen this year – we urge President-elect Donald Trump to support passage of the PRESS Act in the 118th Congress. The PRESS Act is a natural for President-elect Trump’s support.

​Award-winning journalist Catherine Herridge, who is being pressed by a federal judge to reveal her source for an investigative journalism series, has a lot on her plate.
 
She is walking the marbled halls of the U.S. Senate advocating passage of a bill, the PRESS Act, that would protect journalists and their sources. She is doing this while also facing the possibility of an $800 a day fine and jail time for not revealing the source behind her series of stories for Fox News in 2017.
 
Now Herridge is asking President-elect Trump to hear her out on why Senate passage of the PRESS Act is so important to independent, non-mainstream journalists who were so prominent in the last election. This new, rising sector of independent journalists, lacking the deep pockets of a newspaper or a network, are particularly vulnerable to government harassment. They are perhaps the most in need of a limited right to refuse demands from government prosecutors to reveal their sources. Here’s what Herridge told NewsNation:

​John Oliver implores the Senate to pass the PRESS Act! It's already passed the House unanimously.

It would protect journalists across the political spectrum from spying and the threat of jail time for doing their jobs.

​In the minds of many Americans, including some in high office, the First Amendment is synonymous only with free speech. It is easy to forget that freedom of speech is only one of the five freedoms guaranteed by the First. The others are freedom of religion, freedom of assembly, the right to petition the government… and freedom of the press.
 
Lawyer and legal scholar Floyd Abrams is consulting with historians, media lawyers, and journalists in a Yale Law School project to assess whether one of these freedoms – that of the press – has been protected to the extent that freedom of speech has been. Abrams reports in The Wall Street Journal on many issues we’ve covered, such as reporters being arrested for violating curfews to report on protests and civil unrest, and the exposure of confidential sources “who provide information about government misconduct or other sensitive information.”
 
In his piece, Abrams looks to the Supreme Court to bring the same force and clarity for press freedoms that it has brought to protecting speech overall. We agree and look forward to his forthcoming report. But there is another way forward.
 
This year, for the fourth time, with strong bipartisan support, the U.S. House of Representatives passed the PRESS Act, which shields the confidential sources and notes of reporters from the prying eyes of prosecutors. This bill allows for reasonable exceptions for emergencies. The PRESS Act is now before the U.S. Senate. With a little leadership from the Senate Judiciary Committee, it could be well on its way to becoming the law of the land before the end of the year.
 
So we don’t have to wait for the right cases to appear before the Supreme Court, at least as far as the protection of reporters’ confidential sources are concerned, we can contact our senators now and demand they pass the PRESS Act in the coming lame duck session.

​Earlier we compared the First Amendment records of Sen. J.D. Vance and Gov. Tim Walz, finding the two vice presidential candidates problematic with notable bright spots.
 
So how do the two candidates at the top of the ticket compare on defending speech? Answer: Even more problematic, but also with some bright spots.
 
Vice President Kamala Harris
 
As a U.S. Senator, Harris in 2017 co-sponsored an amendment with her fellow Californian and leading Democrat, the late Sen. Dianne Feinstein, that would have required federal agencies to obtain a probable cause warrant before the FISA Court could allow the government to review the contents of Americans’ emails. Protecting Americans from warrantless surveillance of their private communications concerning personal, political, and religious lives is one of the best ways to protect speech.
 
As a senator, Harris also defended the First Amendment rights of social media platforms to moderate their content. This is not surprising given that she was from California and big tech is one of her best backers. The Washington Post reports that Karen Dunn, one of Google’s top attorneys in against the Biden administration’s antitrust case, is a top Harris advisor. This closeness suggests a danger that a Harris administration might lean heavily in support of using friendly relations with big tech as a backdoor way to censor critics and conservative speech.
 
Consider that Harris once called for the cancellation of former President Donald Trump’s then-Twitter account, saying:
 
“And the bottom line is that you can’t say that you have one rule for Facebook and you have a different rule for Twitter. The same rule has to apply, which is that there has to be a responsibility that is placed on these social media sites to understand their power … They are speaking to millions of people without any level of oversight or regulation. And that has to stop.”
 
Why does it have to stop? Americans have spoken for two centuries without any level of oversight or regulation. You might find the speech of many to be vile, unhinged, hateful, or radical. But unless it calls for violence, or is obscene, it is protected by the First Amendment. When, exactly, did liberals lose their faith in the American people and replace it with a new faith in the regulation of speech?
 
Worse, as California Attorney General, Harris got the ball rolling on trying to force nonprofits to turn over their federal IRS Form 990 Schedule B, which would have given her office the identities of donors.
 
Under Harris’s successor, this case went to the U.S. Supreme Court. Protect The 1st was proud to submit an amicus brief, joined with amici from a coalition of groups from across the ideological spectrum. We demonstrated that the likely exposure of donors’ identities would result in various forms of “cancellation,” from firings and the destruction of businesses, to actual physical threats. A Supreme Court majority agreed with us in Americans for Prosperity Foundation v. Bonta in 2021 that the same principle that defended Alabama donors to the NAACP extends to all nonprofits.
 
The Biden-Harris administration has also been mum on worldwide crackdowns on speech, from a Brazilian Supreme Court Justice’s cancellation of X, to hints from the French government that this U.S.-based platform might be the next target after the arrest of Telegram CEO Pavel Durov.
 
Former President Donald Trump
 
This is a harder one to judge. It’s long been said that Donald Trump wears better if you turn the sound off.
 
On the plus side, President Trump took a notably strong approach in supporting surveillance reform. A victim himself of illicit surveillance justified by the FBI before the FISA Court with a doctored political dossier and a forged document, President Trump was sensitive to the First Amendment implications of an overweening surveillance state. To his credit, he nixed the reauthorization of one surveillance authority – Section 215, or the so-called “business records provision.”
 
During the pandemic, Trump issued guidance in defense of religious liberty. He said: “Some governors have deemed liquor stores and abortion clinics essential but have left out churches and houses of worship. It’s not right. So I’m correcting this injustice and calling houses of worship essential.” He backed up his defense of religious liberty by appointing three Supreme Court Justices – Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh – who have been strong defenders of religious liberty.
 
But turn the sound back on and you will hear Donald Trump call the American press “the enemy of the people.” Call the media biased, corrupt, in the bag for the Democrats, whatever you like … but “enemy of the people?” Trump’s rhetoric on the media often edges toward physical hostility. As president, he mocked a CNN reporter who was hit with a rubber bullet while covering the 2020 riots in Minneapolis. “Remember that beautiful sight?” Trump asked.
 
At a time when journalists are under threat in America and around the world, this is a decidedly un-American way to confront media bias.
 
Donald Trump has also called for a loosening of the libel laws to allow elected officials to more easily pursue claims against journalists without having to meet the Supreme Court’s “actual malice” standard. We agree that there is room for sharpening libel law in the age of social media amplification, but allowing wealthy politicians to sue news outlets out of business would be one effective way to gut the First Amendment.
 
So what should we conclude? Both Harris and Trump have mixed records. Both have taken bold stands for speech. Both have treated the opposition as so evil that they do not deserve legal protections. Both seem capable of surprising us, either by being more prone to censorship or to taking bold stands for free speech.
 
Whatever your political leanings, urge your candidate and your party to lean on the side of the First Amendment.

​We’ve already heard a lot of rowdy speech from the two vice-presidential candidates, Democratic Minnesota Gov. Tim Walz and Republican U.S. Sen. J.D. Vance. Would they be as generous in applying the First Amendment to others as they do to themselves?
 
Tim Walz, who, despite correct opinions regarding the tragedy of Warren Zevon being left out of the Rock and Roll Hall of Fame, hasn’t been as on the money when it comes to which types of speech are protected and which are not. In 2022, Walz said on MSNBC:
 
“There's no guarantee to free speech on misinformation or hate speech, and especially around our democracy. Tell the truth, where the voting places are, who can vote, who's able to be there….”
 
As PT1st senior legal advisor Eugene Volokh points out in Reason: “Walz was quite wrong in saying that ‘There's no guarantee to free speech’ as to ‘hate speech.’ The Supreme Court has made clear that there is no ‘hate speech’ exception to the First Amendment (and see here for more details). The First Amendment generally protects the views that the government would label ‘hateful’ as much as it protects other views.”
 
Legal treatment of misinformation is more complicated. In United States v. Alvarez, the Supreme Court held that lies “about philosophy, religion, history, the social sciences, the arts, and the like” are largely constitutionally protected. Libel, generally, is not – though, in a defamation case, a public official can only succeed in their claim if they can show that a false statement was published with “actual malice” – in other words, “with knowledge that it was false or with reckless disregard of whether it was false or not.” Categories of intentional misinformation that are patently not protected include lying to government investigators and fraudulent charitable fundraising.
 
Walz may be on firmer ground when it comes to lies about the mechanics of voting – when, where, and how to vote. Thirteen states already ban such statements. As Volokh writes, “[I]f limited to the context that Walz seemed to have been describing – in the Court's words, ‘messages intended to mislead voters about voting requirements and procedures’ – Walz may well be correct.”
 
On freedom of religion, Walz’s record as governor is concerning. During the pandemic lockdowns, the governor imposed particularly harsh restrictions on religious gatherings, limiting places of worship to a maximum of ten congregants, while allowing retailers to open up at 50 percent capacity. An ensuing lawsuit, which Walz lost, resulted in an agreement granting religious institutions parity with secular businesses.
 
Walz also signed a law prohibiting colleges and universities that require a statement of faith from participating in a state program allowing high school students to earn college credits. As the bill’s sponsor conceded, the legislation was intended in part to coerce religious educational institutions into admitting students regardless of their beliefs – diluting their freedom of association. That controversy is currently being litigated in court. Little wonder the Catholic League declared that “Tim Walz is no friend of religious liberty.”
 
The Knights of Columbus might agree – at least as pertains to the broader ticket. In 2018, during the federal judicial nomination hearing for Brian Buescher, then-Sen. Kamala Harris criticized the organization for its “extremist” (read: traditional) views on social issues. Harris also sponsored the “Do No Harm” Act, which would have required health care workers to perform abortions in violation of their religious beliefs. 
 
Regarding Vance, the former Silicon Valley investor is hostile to the speech rights of private tech companies (who certainly enjoy the same First Amendment protections as any other person or group). In March, the senator filed an amicus brief in support of the State of Ohio’s lawsuit against Google, which seeks to regulate the company as a common carrier. In his brief, Vance argues Google’s claim that it creates bespoke, curated search results that directly conflict with its past claims of neutrality. Sen. Vance writes:
 
“[Google’s] functions are essentially the same as any communications network: it connects people by transmitting their words and exchanging their messages. It functions just like an old telephone switchboard, but rather than connect people with cables and electromagnetic circuits, Google uses indices created through data analysis. As such, common carrier regulation is appropriate under Ohio law.”
 
Vance’s argument creeps in the direction of Texas and Florida laws that seek to regulate social media companies’ internal curation policies. Both laws were found wanting by the Supreme Court. The Court in a strongly worded remand on both laws wrote:
 
“[I]t is no job for government to decide what counts as the right balance of private expression – to ‘un-bias’ what it thinks is biased, rather than to leave such judgments to speakers and their audiences.”
 
Yet Vance also attempts to “un-bias” social media platforms, leaving little to no room for independent curatorial judgment.

On the plus side, Vance has cosponsored numerous bills aimed at curtailing government censorship, including the “Free Speech Protection Act,” which prohibits government officials from “directing online platforms to censor any speech that is protected by the First Amendment.” He also sponsored the PRESERVE Online Speech Act, which would force social media companies to disclose government communications urging the censoring or deplatforming of users.
 
As the election season progresses, we can hope for more clarity on the candidates’ positions regarding our First Amendment freedoms. It is already clear, however, that both candidates are far from purists when it comes to protecting other people’s speech.

​Who qualifies as a journalist? Do you have to work for a mainstream media outlet? If you don’t have the imprimatur of an award-winning newspaper like The New York Times or Washington Post, does that negate your right to gather and convey information?
 
That seems to be the case in certain parts of Texas, where police have twice recently arrested private citizens for committing the crime of journalism. In 2021, the Fort Bend County Sheriff’s Office arrested and strip-searched Justin Pulliam – who posts on the YouTube channel Corruption Report – for filming police during a mental health call. Despite following police instructions to stand away from the interaction, Pulliam was charged with “Interference with Public Duties,” a Class B misdemeanor under Texas state law.
 
It wasn’t the first time Pulliam had been legally harassed – earlier that year he was ejected from a press conference because authorities said he did not qualify as a journalist.
 
A similar situation happened back in 2017, when Laredo police arrested citizen journalist Priscilla Villareal under a statute prohibiting the solicitation of nonpublic information where there is “intent to obtain a benefit.” AKA journalism. The Fifth Circuit initially sided with Villareal, with Judge Ho writing:
 
“If the First Amendment means anything, it surely means a citizen journalist has the right to ask a public official a question, without fear of being imprisoned. Yet that is exactly what happened here: Priscilla Villarreal was put in jail for asking a police officer a question. If that is not an obvious violation of the Constitution, it’s hard to imagine what would be.”
 
Unfortunately, the full court backtracked during an en banc appeal, finding that city officials had qualified immunity. As we wrote at the time, that ruling set a terrible precedent for freedom of the press – sending a message that reporters should be wary of arrest and reprisal for daring to ask questions of government officials.


Now, Pulliam’s case is up before the Fifth Circuit too, following a Texas district court’s rejection of the defendants’ qualified immunity argument. We’ll see whether the judges get it right this time and acknowledge that Corruption Report constitutes a “legitimate” media outlet. In Villareal’s case, Judge Edith Jones suggested that her Lagordiloca page was not.
 
We respectfully disagree. Courts should not be in the business of determining who is and who is not a “legitimate” reporter according to platform or reporting style. The changing technological landscape has enfranchised a new class of citizen journalists no less deserving of respect and the protections of the First Amendment than their more well-heeled counterparts.
 
Offering a step in the right direction, the Protect Reporters from Exploitive State Spying (PRESS) Act, introduced by Sen. Ron Wyden and Rep. Jamie Raskin, brings all sorts of journalists into the fold and provides a shield for reporters’ notes and sources from prying prosecutors. The PRESS Act defines a covered journalist as someone who “gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns news events or other matters of public interest for dissemination to the public.” That would certainly include Pulliam and Villareal.
 
The House passed the PRESS Act by unanimous voice vote earlier this year. The Senate should follow up and send it to the president’s desk for signature.
 
As for the Fifth Circuit, the Pulliam case is a great chance to revise its stance and catch up with the evolution of the fourth estate.

​Reporters Without Borders dropped the United States 10 places on its annual rankings from last year, from 45th to 55th place out of 180 countries in its 2024 World Press Freedom Index. This is part of a trend. This NGO has downgraded the United States, which enshrines freedom of the press in our Constitution, from 17th best for press freedom in 2002 to that 55th place now.
 
To be fair, some of the organization’s metrics are questionable. For example, Argentina fell from 40th place last year to 66th place in 2024 after newly elected President Javier Miliei shuttered news outlet Télam and put its 700 journalists on the street. It should be noted, however, that Télam was a money-losing, state-funded news agency founded by Juan Perón and known for being a government and Peronista mouthpiece under previous administrations.
 
So how fairly did Reporters Without Borders treat the United States? It seems overkill to us to rank the United States below the Ivory Coast, where reporters are routinely called in by prosecutors and newspapers are suspended – or Romania, where a prominent journalist who investigated the government had her personal images hacked and uploaded to an adult website.
 
At the same time, while we can take issue with the overall ranking of the United States, this NGO is correct on what the British call the direction of travel. Protect The 1st has reported what Reporters Without Borders states: “In several high-profile instances, local law enforcement has carried out chilling actions, including raiding newsrooms and arresting journalists.” We would add to that the lack of a federal press shield law also leaves reporters vulnerable to being wiretapped and worse.
 
The good news is that protections for reporters have a strong basis of public support in the United States. A recent survey by the Pew Research Center reveals robust support among Americans for the principle of press freedom, underscoring its vital role in our democracy. It’s heartening to note that nearly three-quarters of U.S. adults (73 percent) consider the freedom of the press — enshrined in the First Amendment — extremely or very important to the well-being of society.
 
Still, we have reason for caution. While a significant majority of Americans acknowledge the importance of a free press, many are concerned about threats to journalistic freedom. Notably, a substantial portion of the population believes U.S. media is influenced by corporate and political interests — 84 percent and 83 percent respectively. In our polarized society, partisan differences color these perceptions of press freedom. Republicans and Independents consistently express greater concern over media restrictions and the influence of political interests compared to Democrats.
 
Equally concerning is the broader debate over the balance between safeguarding press freedom and curbing “misinformation.” Approximately half of the American population is torn between the necessity to prevent the spread of false information and the imperative to protect press freedoms, even if it means some false information might circulate.
 
While it's encouraging to see strong support for journalistic freedoms among Americans, local authorities must understand that raids and legal threats against reporters is intolerable under our Constitution and under the press shield laws of 49 states. And we need a federal press shield law – the PRESS Act, which recently passed the U.S. House – to reduce the shadow the Department of Justice can cast over the free exercise of journalism.
 
We’ve got work to do.

​Like many declarations of the United Nations, the 31st anniversary of World Press Freedom Day is more aspirational than reality in many UN member countries.
 
In some countries, journalists are routinely killed for reporting on corrupt politicians and police agencies. UN Secretary-General Antonio Guterres’ says that violence is also common among journalists covering local environmental issues like illegal mining, logging, poaching and other acts of “environmental vandalism.”
 
Much of the repression comes from sophisticated state actors. In China, imprisoned Hong Kong publisher Jimmy Lai stayed in that jurisdiction to bravely stare down official repression after his newspaper, Apple Daily, was shuttered. In Russia, Evan Gershkovich of The Wall Street Journal remains held on specious charges of spying for the CIA by Vladimir Putin’s judicial puppets.
 
“Journalism should not be a crime anywhere on the earth,” President Biden declared today. We agree and would only add, for unfortunately necessary emphasis, “including the United States.”
   
While 49 U.S. states have press shield laws, there is no federal law that protects the notes and sources of a journalist from being seized by a federal prosecutor. Many U.S. reporters have gone to jail rather than bow to a prosecutor’s demand to reveal his or her sources. All the more reason to celebrate World Press Freedom in America by asking Congress to get behind the PRESS Act, which would extend these basic protections to the federal government.
 
“If you cannot offer a source a promise of confidentiality as a journalist, your toolbox is empty,” celebrated investigative journalist Catherine Herridge told members of a House Judiciary subcommittee. “No whistleblower is coming forward, no government official with evidence of misconduct or corruption. And what that means is that it interrupts the free flow of information to the public … Journalism is about an informed electorate, which is the bedrock of our democracy.”
 
We urge Congress to honor the First Amendment and the freedom of the press by passing the PRESS Act.

Former U.S. Representatives, Bob Goodlatte (and our senior policy advisor) and Barbara Comstock, provide insight in The Hill about the latest House hearing highlighting the latest threat to journalism and why the Senate should finally pass the PRESS Act. ​

Gene Schaerr, our general counsel, co-authored a piece in The Dallas Morning News with Seth Stern, the director of advocacy for Freedom of the Press Foundation and a First Amendment lawyer, on The PRESS Act. 

The PRESS Act is the strongest federal “shield” bill for journalists ever introduced. Not only would it stop the government from compelling journalists themselves to burn sources, but it would also bar officials from surveilling phone and email providers to find out who is talking to journalists. 

​The growth of the surveillance state in Washington, D.C., is coinciding with a renewed determination by federal agencies to expose journalists’ notes and sources. Recent events show how our Fourth Amendment right against unreasonable searches and seizures and our First Amendment right of a free press are inextricable and mutually reinforcing – that if you degrade one of these rights, you threaten both of them.
 
In May, we reported that the FBI raided the home of journalist Tim Burke, seizing his computer, hard drives, and cellphone, after he reported on embarrassing outtakes of a Fox News interview. It turns out these outtakes had already been posted online. Warrants were obtained, but on what credible allegation of probable cause?
 
Or consider CBS News senior correspondent Catherine Herridge who was laid off, then days later ordered by a federal judge to reveal the identity of a confidential source she used for a series of 2017 stories published while she worked at Fox News. Shortly afterwards, Herridge was held in contempt for refusing to divulge that source. This raises the question that when CBS had earlier terminated Herridge and seized her files, would network executives have been willing to put their freedom on the line as Herridge has done?
 
In response to public outcry, CBS relented and handed Herridge’s notes back to her. But local journalists cannot count on generating the national attention and sympathy that a celebrity journalist can. Now add to this vulnerability the reality that every American who is online – whether a national correspondent or a college student – has his or her sensitive and personal information sold to more than a dozen federal agencies by data brokers, a $250 billion industry that markets our data in the shadows.
 
The sellers of our privacy compile nearly limitless data dossiers that “reveal the most intimate details of our lives, our movements, habits, associations, health conditions, and ideologies.” Data brokers have established a sophisticated system to aggregate data from nearly every platform and device that records personal information to develop detailed profiles on individuals. To fill in the blanks, they also sweep up information from public records. So if you have a smartphone, apps, or search online, your life is already an open book to the government. In this way, state and federal intelligence and law enforcement agencies can use the data broker loophole to obtain information about Americans that they would otherwise need a warrant, court order, or subpoena to obtain.
 
Now imagine what might happen as these two trends converge – a government hungry to expose journalists’ sources, but one that also has access to a journalist’s location history, as well as everyone they have called, texted, and emailed. It is hardly paranoid, then, to worry that when a prosecutor tries to compel a journalist to give up a source through legal means, purchased data may have already given the government a road map on what to seek. 
 
The combined threat to privacy from pervasive surveillance and prosecutors seeking journalists’ notes is serious and growing. This is why Protect The 1st supports legislation to protect journalistic privacy and close the data broker loophole. The Protect Reporters from Exploitive State Spying, or PRESS Act would grant a privilege to protect confidential news sources in federal legal proceedings, while offering reasonable exceptions for extreme situations. Such “shield laws” have been put into place in 49 states. The PRESS Act, which passed the House in January with unanimous, bipartisan support, would bring the federal government in line with the states.
 
Likewise, the Fourth Amendment Is Not For Sale Act would close the data broker loophole and require the government to obtain a warrant before it can seize our personal information, as required by the Fourth Amendment of the U.S. Constitution. The House Judiciary Committee voted to advance the Fourth Amendment Is Not For Sale Act out of committee with strong bipartisan support in July. The Judiciary Committee also reported out a strong data broker loophole closure as part of the Protect Liberty Act in December. 
Now, it’s up to Congress to include these protection and reform measures in the reauthorization of Section 702.
 
Protect The 1st urges lawmakers to pass measures to protect privacy and a free press. They will rise or fall together.

​Reporters treat promises of confidentiality to potential sources as sacred for a reason. The promise of anonymity is the bedrock upon which investigative journalism rests. This promise is so central to a free press that a bill to codify its protection is currently wending its way through Congress. The PRESS Act would protect journalists and their sources by granting a privilege to shield confidential news sources in federal legal proceedings.
 
CBS went one step further after it terminated investigative journalist Catherine Herridge: the news division reportedly seized her files, including private information about privileged sources. Lawyer Jonathan Turley writes CBS is “moving toward a resolution,” with some reports indicating CBS has already returned the files. But the initial action, which sparked widespread concern among CBS employees, is instructive about the need to protect reporters and sources.
 
Turley in The Hill wrote that the “the timing of Herridge’s termination immediately raised suspicions in Washington. She was pursuing stories that were unwelcomed by the Biden White House and many Democratic powerhouses,” which landed her in hot water with CBS executives. After she was terminated, the network seized her notes and files, informing her that it would decide what would be released to her.
 
Such an action defied established media tradition.
 
“Journalists are generally allowed to leave with their files,” Turley writes. “Under the standard contract, including the one at CBS, journalists agree that they will make files available to the network if needed in future litigation. That presupposes that they will retain control of their files.” CBS also suggested that it would allow unnamed individuals to look through Herridge’s files to determine what she would have been allowed to keep.
 
A former CBS manager said that he had “never heard of anything like this.” The Screen Actors Guild-American Federation of Television and Radio Artists union (SAG-AFTRA) has raised the issue with CBS, noting the effect of this action could have on journalistic practices and source confidentiality. If this issue is, in fact, not resolved as reported, the union could well take this to court to test Herridge’s claim to her notes.
 
Why did CBS News risk tarnishing its own legacy? It shouldn’t matter if Herridge’s investigation is of Hunter Biden’s laptop, Donald Trump, Robert F. Kennedy Jr., or the My Pillow Guy. By originally suggesting that CBS will unilaterally decide the fate of Herridge's files, including those originating from her tenure at Fox News, the network risked undermining the willingness of sources to come forward with sensitive information for all news gatherers.
 
This is one more reason why Protect The 1st stands firmly in favor of The PRESS Act. As we wrote last November, ironically about Catherine Herridge in a different context, the PRESS Act would have made a difference when she was ordered by a federal judge to reveal the identity of confidential sources she used for a series of 2017 stories published while she worked at Fox News.
 
If CBS did hold on to the files, it could easily lose control of them through a leak or litigation. If ordered by a court to reveal these documents, would executives have risked jail time like Herridge has done? Although the First Amendment does not apply to a private company, CBS News should not be less supportive of a free press than the government.

​The Fifth Circuit Court of Appeals just dealt a serious blow to the freedom of the press, endorsing immunity for arresting a reporter for simply asking questions of the government and publishing the answers. The case, Villarreal v. City of Laredo Texas, arose when Facebook vlogger-journalist Priscilla Villarreal, who goes by the self-deprecating nickname Lagordiloca (“crazy, fat woman”) was detained for her coverage of a traffic accident and the suicide of a U.S. Border Patrol employee in Laredo.
 
Villarreal swore that she corroborated the names of the deceased individuals in the suicide and traffic accident with a source in the Laredo Police Department – taking this step after independently verifying these identities. In response to her reporting, Villarreal was detained and charged with violating a Texas law that makes it a crime to solicit nonpublic information from a public servant “with intent to obtain a benefit.” During the booking process, officers surrounded Villarreal, mocked her, and took cellphone photos of her while she was being fingerprinted.
 
The case had already appeared before the Fifth Circuit Court of Appeals in 2022, when a panel of judges originally sided with Villarreal. Judge Ho, writing for the court, held that “if the First Amendment means anything, it surely means that a citizen journalist has the right to ask a public official a question, without fear of being imprisoned.” The en banc appeal, which was decided recently, held that city officials were entitled to qualified immunity and that “Villarreal sought to capitalize on others’ tragedies to propel her reputation and career.” Such weaponized language could easily be leveled against any news outlet in the country.
 
This case sets a bad precedent for the freedom of the press if reporters can’t ask government officials questions without fear of arrest and other reprisals, with the police inflicting such injury held immune for any consequences. Consider one case in November, when reporter Hank Sanders was cited for persistently asking Calumet City officials for a comment about flooding in the town. The citation was ultimately dropped after city officials realized that enforcing the citation would prove to be more of a hassle than simply responding to Sanders and his questions.
 
Or consider the rural Kansas police department that ransacked the offices of the Marion County Record in execution of a search warrant to track down an informant. The leaked information? A local restauranteur’s DUI record that the newspaper had already decided not to print. Computers were seized, cell phones were snatched, all just to bully the press.
 
We have long counted on a judicial buffer to correct local abuses. Thanks to the Fifth Circuit’s expansive view of qualified immunity, and seemingly narrow view of First Amendment rights, that buffer just became thinner.
 
If the same standard that the Fifth Circuit endorsed were to be adopted across the country, journalists would be left with little recourse when law enforcement comes crashing through their doors, but ultimately declines to prosecute them. In his dissent in the Villarreal case, Judge James Graves wrote that the Fifth’s opinion means journalists “will only be able to report information the government chooses to share” lest they face arrest and other harassment. Villarreal has already declared her intent to appeal to the U.S. Supreme Court.
 
Protect The 1st supports Villarreal’s appeal and looks forward to her vindication for the sake of all American journalists.

​“Once again, the House has passed the Protect Reporters from Exploitive State Spying (PRESS) Act with unanimous, bipartisan support. Forty-nine states have press shield laws protecting journalists and their sources from the prying eyes of prosecutors. The federal government does not. From Fox News to The New York Times, government has surveilled journalists in order to catch their sources. Journalists have been held in contempt and even jailed for bravely safeguarding the trust of their sources.
 
“The PRESS Act corrects this by granting a privilege to protect confidential news sources in federal legal proceedings, while offering reasonable exceptions for extreme situations. Such laws work well for the states and would safeguard Americans’ right to evaluate claims of secret wrongdoing for themselves.
 
“Great credit goes to Rep. Kevin Kiley and Rep. Jamie Raskin for lining up bipartisan support for this reaffirmation of the First Amendment. As in 2022, the last time the House passed this act, the duty now shifts to the U.S. Senate to respond to this display of unanimous, bipartisan support. I am optimistic. At a time of gridlock, enacting this bill into law would be a positive message that would reflect well on every Senator.”

​The Freedom of the Press Foundation reports a disturbing trend at the county and municipal levels: governments pulling official notices from local papers in retaliation for unfavorable reporting.
 
In Delaware County, New York, the board of supervisors dropped local newspaper The Reporter as the official county paper for printing local laws and notices in 2022, citing increased prices for advertising. A year later, however, the board wrote a letter to The Reporter’s publishers to complain about its coverage, specifically stating the true reason for the county’s decision: displeasure over certain elements of the paper’s reporting. The New York Times picked up the story. Days later, the Delaware County Attorney issued a gag order on all county employees prohibiting them from speaking to The Reporter at all.
 
Now, the paper is suing, alleging First and Fourteenth Amendment violations. In addition to police raids of newsrooms and arrests of journalists by local governments, the defunding movement is gaining steam against already financially stressed local newspapers across the country.
 
In Putnam County, New York, the local government terminated The Putnam County News and Recorder’s contract to publish county legal notices following supposedly critical coverage of the newly elected county executive. As in Delaware County, it seemed a blatant attempt to use the power of the purse strings to manipulate local media.
 
Similarly, in Kansas, the attorney general issued an advisory opinion suggesting that local governments could exempt themselves from a state law requiring official notices to be published in a designated newspaper. Since then, the cities of Hillsboro and Westmoreland have done exactly that, creating heightened concerns about a lack of government transparency in the process.
 
In Ohio, the state passed a little noticed new law in its 6,000-page budget permitting cities and towns to publish notices on their official websites rather than in local papers. (A similar action also took place in Florida.) There are benign explanations for this move. But these new standards give local governments new ammunition to employ against newspapers in an effort to control the narrative.
 
It’s a storied tradition for municipalities to post public notices in newspapers (in fact, most cities and towns have laws requiring them to do so). The purpose is to keep residents and voters informed of official government actions – local meetings, land sales, zoning changes, and the like. And while failing to uphold this practice does not violate the Constitution, government retaliation against newspapers based on their reporting certainly does. Gagging county employees willing to speak on matters of public concern, moreover, violates both the newspapers’ First Amendment rights and those of the prospective speakers and whistle-blowers. 
 
We applaud the Freedom of the Press Foundation’s efforts to support local papers and fight back against officials more concerned with consolidating power than protecting speech.

​Last month, Los Angeles County reached a $700,000 settlement agreement with a radio journalist who was accosted and arrested by police while attempting to document law enforcement’s response to a local protest. It’s a significant sum that will deter future government hostility against reporters who are simply doing their jobs.
 
Most critical of all, the settlement includes new training requirements for law enforcement personnel about the media and the First Amendment, as well as policies and laws governing interactions with the press.
 
We wrote recently about a series of similar incidents across the country in which government officials have misused their authority to punish journalists. This includes an FBI raid of a Florida journalist’s home, a retaliatory raid in Kansas preceding an elderly publisher’s death, and the arrest of a publisher in Alabama for lawfully reporting on leaks from a grand jury about the mishandling of COVID funds.
 
Even in Washington, D.C., the media is not immune from such abuses. Consider the case of CBS News Correspondent Catherine Herridge, who was ordered by a U.S. district court judge to reveal the identity of confidential sources she used for a series of 2017 stories. She has, laudably, refused to do so, risking imprisonment in the process.
 
In Herridge’s case – and in many other similar cases – the passage of the Protect Reporters from Exploitive State Spying (PRESS) Act would be a major step in the right direction, limiting the ability of prosecutors to expose the sources and notes of journalists in federal court. More fundamentally, however, what we need most is better education and constitutional literacy.
 
That’s why the recent events in Los Angeles County are so important. In that case, LAist journalist Josie Huang briefly filmed sheriff’s deputies arresting a protester when she was ordered to “back up.” Before Huang could respond, she was brutally slammed to the ground and subsequently taken to jail and charged with obstructing a peace officer.
 
Outcry was swift, with the Reporters Committee for Freedom of the Press and 65 other media organizations quickly mobilizing to demand that charges against Huang be dropped. The district attorney’s office, likely recognizing the unconstitutional actions of the sheriff’s deputies, declined to prosecute. A court later found her factually innocent of the charges.
 
The resolution in Los Angeles is a good outcome, but it shouldn’t take a crisis to require law enforcement officers to have some semblance of understanding of the First Amendment. With any luck, the Huang incident can serve as a lesson – in civics as much as in consequences.

​That a free press is integral to free speech was obvious to the founders, who guaranteed both in the First Amendment. But is it so obvious today? Under both Democratic and Republican presidents, federal investigators have helped themselves to the private records of the AP, CNN, The Washington Post, and The New York Times, as well as those of activist journalists on both the left and right.
 
In Kansas, police raided a small-town newspaper over a minor story involving public records and a DUI. The police confiscated newsroom computers containing reporters’ notes and source materials and putting the very existence of the paper at risk. Fortunately, Kansas has a state press shield law that grants media the right to keep source identities confidential. Journalists enjoy no such protections at the federal level. It is not clear what recourse, for example, Tampa-based journalist Tim Burke has after the FBI stormed his home in May, confiscating his computer, cellphone, and information on multiple stories and their sources. 
 
If trust is the coin of the realm, then the federal government’s coinage is debased. The Pew Research Center reports that only 2 percent of Americans trust the government in Washington to do what is right “just about always.” Only 19 percent believe the government acts correctly “most of the time.” 
 
To be sure, cynicism about government results from spectacular failures of competent governance. The cynicism also reflects the loudly proclaimed belief by political leaders that the other party, once in control, will weaponize investigations and prosecutions, while thumbing the scale for its friends and allies. While these fears are sometimes overstated, the solution is not to weaponize government for one side against the other, but to hold government accountable to everyone.
 
One of the best ways to restore trust is to protect the freedom of journalists to do their jobs. From Watergate to the Pentagon papers, to the depredations of Harvey Weinstein, to the roiling controversies of our day, journalists’ revelations have been enabled by whistleblowers, brave men and women willing to risk it all to reveal wrongdoing. 
 
All states save Wyoming offer greater journalist protections than the federal government. South Carolina, to cite just one of 49 examples, enacted a press shield law in 1993 to protect journalists from being compelled to divulge their sources. The preface to the law boldly states: “The General Assembly finds that it is vital in a democratic society that the public have an unrestricted flow of information on matters of concern to the public and that the threat of compelled testimony … interferes with the free flow of information to the public.”
 
The good news is that as events spin into overdrive in the nation’s capitol, congressional leaders in both parties are coming to see the wisdom of following South Carolina’s example. They are ready to temper government actions to protect journalists and press freedom from overweening federal prosecutors by passing a federal press shield law, the Protect Reporters from Exploitive State Spying (PRESS) Act. 
 
The PRESS Act protects both journalists and their sources. The latter is important, because whistleblowers need the assurance that the reporter with whom they speak in confidence cannot be compelled to betray their trust. The PRESS Act offers that promise by establishing 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 communications services used by reporters.
 
In 2007 and again in 2009 as a member of the House, Protect The 1st Senior Policy Advisor Rick Boucher was the primary author of the forerunner to the PRESS Act. He saw it pass the House twice with large bipartisan majorities, and then die – as so many good bills do – in the Senate.
 
This time, the stars seem to be aligning in the Senate for passage of the PRESS Act. Lindsay Graham, South Carolina’s senior senator and the Ranking Member of the Judiciary Committee, is cosponsoring the measure. Sen. Graham joins a strong bipartisan team that includes Senate Judiciary Chairman Dick Durbin (D-IL), Sens. Ron Wyden (R-OR) and Mike Lee (R-UT). 
 
The PRESS Act also enjoys strong bipartisan leadership in the House from Rep. Kevin Kiley (R-CA) and Rep. Jamie Raskin (D-MD). House support ranges from conservative Rep. Jim Jordan (R-OH), Chairman of the House Judiciary Committee, to liberals like former committee Chairman Jerry Nadler (D-NY). During the last Congress, the House approved the PRESS Act by a bipartisan, unanimous voice vote. 
 
The acceptance of press shield laws by 49 states demonstrates sweeping public support for freedom of the press. At a time when trust is scarce, wouldn’t it be refreshing to see national leaders in both parties pass a popular measure that enhances a fundamental freedom and holds government accountable?

​Across America, from small towns to Washington, D.C., officials are misusing their authority to punish journalists.
 
In April, Protect The 1st reported that on at least two occasions, agents at ICE used a legal tool meant to aid in criminal investigations to pressure news organizations into revealing information about their sources.
 
In May, we reported that the FBI raided the home of a journalist, seizing his computer, hard drives, and cellphone, after he published embarrassing outtakes of a Fox News interview – which had already been posted online.
 
In August, Protect The 1st reported on the death of an elderly publisher in rural Kansas shortly after local police raided her home.
 
In November, we reported on an Alabama district attorney who arrested a publisher and a reporter for reporting on leaks from a grand jury about the mishandling of Covid funds.
 
Also this month we reported on the “ticketing” of a local journalist by Calumet City, Illinois, for having the temerity to send 14 emails over a nine-day period to city officials seeking comment on local flooding.
 
The First Amendment is clear, but the trend against it continues in the wrong direction, with such incidents piling up recently. The question is: why? We believe these clumsy attempts to punish the press can only be the result of the poor civics education of these officials in their youth. It also reflects an increasing appetite by politicians of all stripes to weaponize the law.
 
There is, fortunately, a bulwark against such local abuses. Forty-nine states have passed press shield laws that protect journalists and their sources. Yet Congress has not enacted a national shield law to protect reporters from federal prosecutors and courts. The Protect Reporters from Exploitive State Spying (PRESS) Act would limit the ability of prosecutors to expose the sources and notes of journalists in federal court. The PRESS Act passed through the House Judiciary Committee to the full House by a unanimous 23-0 vote in July.
 
The PRESS Act would have made a difference in the case of CBS News senior correspondent Catherine Herridge who, earlier this year, was ordered by a judge for the U.S. District Court for the District of Columbia to reveal the identity of a confidential source or sources she used for a series of 2017 stories published while she worked at Fox News. Her stories covered Chinese-American scientist Yanping Chen, subject of a federal counterintelligence probe. Chen subpoenaed Herridge and Fox News, with the hope of unmasking the source(s) for the stories. Herridge has since refused to reveal her source(s), and Chen’s lawyers are asking the judge to hold the journalist in contempt of court.
 
The Herridge case is all the more reason for a federal shield law in the form of the PRESS Act. No federal legislation, however, can change the dysfunctional, constitutionally illiterate, and illegal acts by government officials against reporters. That is not a matter of law, but of culture and education. Press freedom is strong only when people and the powers that be understand it and respect it.

​Much digital ink has been spilled about the arrest of a small-town publisher and reporter in Atmore, Alabama, for reporting on a grand jury leak about the alleged mishandling of COVID relief funds in the local school district. But events surrounding the arrests of these two journalists should be of even greater concern to First Amendment advocates.
 
While Alabama law makes it a crime for grand jurors, witnesses, and others directly involved in a grand jury proceeding to disclose information from these secret hearings, this prohibition does not include journalists. Moreover, a long line of U.S. Supreme Court precedents, harking back to the Pentagon Papers, make it clear that journalists can report leaks, even when the leak is illegal. This is judged necessary for freedom of the press. Time and again, such reporting has broken loose the logjam of secrecy, incompetence, and inside-dealing that often hardens inside powerful institutions.
 
But the plain facts and the law did not stop Escambia County District Attorney Stephen Billy from charging Atmore News publisher Sherry Digmon and reporter Don Fletcher with a felony charge of reporting grand jury information, carrying a penalty of between one to three years imprisonment and a fine of $5,000.
 
Worse, from a constitutional perspective, are bail terms that prohibit the journalists from reporting on “ongoing criminal investigations.” In this one brilliant move, District Attorney Billy ventured from criminalizing reporting into the worst offense against free speech – prior restraint.
 
“The bail terms would be unconstitutional even if they only restricted the journalists from further reporting on the grand jury investigation of the school district, especially when there was no legal or constitutional basis to punish that reporting in the first place,” said Seth Stern, director of advocacy at the Freedom of the Press Foundation. “That overbreadth turns an already flagrantly unconstitutional gag order into a fundamentally un-American attempt at retaliatory censorship to silence the free press. Everyone involved should be ashamed of themselves.”
 
The Atmore News today posts a straightforward, factual account of the arrests of its publisher and reporter. Could that be construed by the district attorney as a bail violation? It is not clear. And when legal standards are not clear, the free practice of journalism suffers.
 
In a separate action, District Attorney Billy dispatched sheriff’s deputies with search warrants to seize the cellphones of four members of the Escambia County Board of Education who voted not to renew the contract of the local school superintendent. One of the board members was publisher Sherry Digmon. The stated purpose of the raid was to investigate a possible telephone violation of Alabama’s Open Meetings Law by the four board members, even though violations are a civil matter under Alabama law. It is not a crime.
 
It would be easy to dismiss this case as an outlier by a bumbling local district attorney. As the Dude says in The Big Lebowski, “this aggression will not stand, man!” It is all but certain District Attorney Billy and his case will not fare any better than did that of the small-town police chief in Kansas who raided the local newspaper and seized all its equipment over the reporting of a local businesswoman’s DUI record.
 
But even when intimidation fails, the hassle and embarrassment of an arrest and the confiscation of phones and equipment cannot be far from the minds of local journalists these days.
 
That such cases are beginning to pop up around the country is one more sign that America is drifting away from our constitutional moorings.

​The Protect Reporters from Exploitive State Spying, or PRESS Act, now has strong bipartisan support, with 20 co-sponsors. This milestone comes shortly after the bill received unanimous support from the House Judiciary Committee back in July.
 
The breadth of support for this measure is impressive. It was introduced by Rep. Kevin Kiley (R-CA) and Rep. Jamie Raskin (D-MD). Co-sponsors range from Rep. Darrell Issa (R-CA), to Rep. Ted Lieu (D-CA), from Rep. Ben Cline (R-VA) to Rep. Zoe Lofgren (D-CA), from Rep. Harriet Hageman (R-WY) to Del. Eleanor Holmes Norton (D-DC).
 
They support one answer to the following question: Should the government be free to dig into the records, notes, phone logs and emails of journalists or subpoena them into federal courts to catch a leaker? Their answer is a resounding “no.”
 
Perhaps it is no coincidence that many of the sponsors hail from California, which has strong laws that protect journalists, their notes and by implication, their sources.
 
The California Constitution and the California Evidence Code, as interpreted by the California Supreme Court, are “shield laws” that give broad protection to journalists’ notes and sources. Throughout the Golden State, reporters, editors, publishers, and others employed by all forms of media are immune from being held in contempt for protecting “confidential sources” and “unpublished information,” including their notes.
 
Every state has such a law except for Wyoming. The federal government does not.
 
As events spin into overdrive in Washington, D.C., Congressional leaders in both parties are coming to see the wisdom of following California’s example and tempering government actions by protecting the ability of journalists to get the straight, inside skinny from whistleblowers.
 
Whistleblowers need the assurance that the reporter with whom they speak in confidence cannot be compelled to betray their trust. The PRESS Act protects journalists and their sources. The PRESS Act establishes 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 communications services used by reporters.
 
This is a reasonable bill, one that would allow the breaking of this privilege only in extreme circumstances. During the last Congress, the House approved the PRESS Act with a bipartisan, unanimous voice vote.
 
Rep. Kiley said: “As acknowledged by America’s founders, the freedom of the press to report on and disseminate information is critical to our republic. Our bipartisan legislation further codifies these First Amendment principles into law and will mitigate infringement upon the Constitution by the federal government.”
 
The acceptance of shield laws by the states shows that the principles of the PRESS Act are popular. At a time when trust is scarce, wouldn’t it be refreshing to see federal leaders in both parties pass a popular measure that enhances freedom and holds government accountable?

​Bipartisan support for the Protect Reporters from Exploitive State Spying (PRESS) Act just became stronger after Sen. Lindsey Graham (R-SC) signed on as a co-sponsor.
 
Sen. Graham and Protect The 1st’s own Senior Policy Advisor Rick Boucher – a long-time Democratic U.S. Representative from Virginia – were co-sponsors of an earlier version of the bill. In the current Congress, Reps. Kevin Kiley (R-CA) and Jamie Raskin (D-MD) are working across the aisle to secure wide support for the bill in the House, as are Sens. Dick Durbin (D-IL), Mike Lee (R-UT), and Ron Wyden (D-OR) in the Senate.
 
The PRESS Act would provide a federal shield law protecting journalists from surveillance or compelled disclosures of source materials, except in emergency situations. Forty-nine states have such a law, but the federal government does not.
 
The PRESS Act appeals to conservatives, who remember the Obama Administration’s targeting and spying on James Rosen of Fox News for reporting on North Korea’s nuclear program. And it appeals to liberals who want to safeguard the investigative role of reporters. Jenna Leventoff, senior policy counsel of the American Civil Liberties Union, said the “PRESS Act creates critical protections for the fearless journalists who act as government watchdogs and keep us all informed.”
 
“The PRESS Act passed the U.S. House unanimously last year and was recently favorably reported again without dissent by the House Judiciary Committee,” said Rick Boucher. “We are heartened to see Sen. Graham join so many other leaders in both houses and both parties in standing up for a free press that enforces accountability on the government.”
 
Bob Goodlatte, Protect The 1st Senior Policy Advisor and former Chairman of the House Judiciary Committee, also hailed Sen. Graham’s support for the PRESS Act.
 
“When the House again passes the PRESS Act, which seems likely, it is encouraging to also see strong bipartisan support emerging in the Senate,” Goodlatte said. “Sen. Graham’s leadership on the PRESS Act is a very welcome development.”

​National outrage over a rural Kansas police department’s ransacking of a newspaper, the Marion County Record, will almost certainly result in a massive legal reckoning. But will its larger implications prompt Congress to move to protect journalists from similar interference by federal authorities?
 
Here’s the background: On Friday, the Marion police department launched simultaneous raids on the homes of a reporter, an 80-year-old councilwoman, and The Record’s 98-year-old co-owner, Joan Meyer, mother of editor Eric Meyer. According to the account in The Record, the trauma left Joan Meyer “stressed beyond her limits,” prompting her to quit eating, and to collapse and die the next day.
 
And for what? The Marion police launched this extreme execution of a search warrant to track down an informant who revealed a letter from a state agency about a local restauranteur’s DUI to a Record reporter. The newspaper ultimately chose not to print this story out of concern that the informant acted maliciously in revealing the restauranteur’s personal information.
 
“The police confiscation of virtually all of the equipment of a 4,000-circulation newspaper will be one for the textbooks in both law and journalism schools,” said Rick Boucher, Senior Policy Advisor to Protect The 1st and a former U.S. Representative from Virginia and Member of the House Judiciary Committee. “The seizure of a newsroom is an outrage that demonstrates that absent proper legal restraints, and sometimes even with them, some in officialdom will use a petty excuse to pry open a reporter’s notebooks.
 
“These events triggered a raid in which the police seized computers, servers and snatched cellphones,” he said. “The Record reports that one reporter’s hand was reinjured by having her phone forcibly jerked out of her hand. The police took so much equipment that the staff is scrambling to find a way to publish the newspaper’s next edition.
 
“The police did not just raid The Record, they potentially put it out of print. And as a result, the police – and the politicians they work for – now have ready access to vast amounts of confidential interviews, official contacts, and other investigations that any local paper customarily conducts into city hall.”
 
Boucher noted that the raid is likely a violation of the federal Privacy Protection Act of 1980, opening the door to significant liability for the town.
 
“The larger takeaway from this event is the appetite that some in authority have to bully a sometimes nettlesome press,” Boucher said.
 
“Kansas, like most states, has a shield law that protects journalists and their sources,” he said. “Rather than taking the extreme step of raiding the newspaper’s office and seizing all of its records, if the police had probable cause to believe that stolen property was in the possession of the paper, a subpoena for the record in question would have put in motion a court proceeding at which a judge could have decided whether the Kansas shield law applies. It will be instructive to read the probable cause affidavit behind the search warrant that was issued.”
 
Boucher noted that the federal government, with its huge apparatus of prosecutors and surveillance, is restrained by no such law. While lawmakers and journalists in Kansas sort out how to avoid events like this, Congress should take this opportunity to pass the Protect Reporters from Exploitive State Spying (PRESS) Act to give journalists at least some protection from official intimidation.
 
The PRESS Act passed the U.S. House unanimously last year and was recently favorably reported again without dissent by the House Judiciary Committee.
 
“The House should schedule a full vote when it returns in September,” Boucher said. “Action in the Senate should swiftly follow.”