Speaking of the First: How the PRESS Act Looks from Behind Bars

Journalist Judith Miller recently published an op-ed in The Wall Street Journal recounting her 2005 incarceration for protecting confidential sources. She says that her experience 21 years ago and the recent Air Force One subpoena drama involving The New York Times starkly illustrate that, then as now, internal Justice Department policies are not enough.

“Reporters – and the public,” she writes, “need a federal shield law” to protect confidential sources. In short, we need the PRESS Act.

Miller points out that “Justice Department guidelines call for issuing subpoenas to journalists only as a last resort and after a thorough investigation fails to determine the source of the leak,” she notes. Yet those guidelines were ignored: “These subpoenas were issued two days after the paper published the first of two stories about the Qatari-donated plane.”

The House unanimously passed the Act in 2024, but it died ignominiously in the Senate. Miller writes that current objections to the legislation are nothing new – and nothing to fear, because the PRESS Act fully accounts for them:

1. As for compromising information vital to national security, the Act “would permit subpoenas to journalists to identify a perpetrator of terrorism, or to prevent a threat of terrorism, imminent violence, significant bodily harm or death.”
   
   
2. Miller admits that a second concern is a more daunting problem to solve in the digital era – defining who is a “journalist.”
   
   

She writes that the PRESS Act mirrors state shield laws and defines “journalist” as broadly and democratically as possible, as “someone who ‘regularly gathers, prepares, collects, photographs, records, writes, edits, reports, investigates, or publishes news or information that concerns local, national or international events or other matters of public interest for dissemination to the public.’”

It’s a much-needed evolution that prevents government foxes from guarding the chicken coop and deciding “who qualifies and who doesn’t.” Just as importantly, Miller adds, the Act “excludes earlier definitions that required a journalist to earn a living from reporting or be employed by an institutional news organization.”

Finally, she issues an important reminder: press shields need not come in either Republican red or Democratic blue, as administrations from both parties are equal-opportunity offenders, particularly when it comes to using subpoenas as political weapons.
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It would therefore be a mistake, Miller writes, to see the need for the PRESS Act and other protections “as a response to Mr. Trump’s obvious disdain for reporters. President Obama, who had promised to run the most ‘open’ and ‘transparent’ government possible, prosecuted more leak cases than all previous administrations combined.”

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