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?