No, the PRESS Act Does Not Grant Blanket Immunity to Journalists

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.

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