House tries again on federal law to protect journalists and sources

WASHINGTON (April 27, 2022)—Members of Congress have tried for five decades to craft a federal law that would protect journalists from revealing confidential sources—and they are trying again.

The latest proposed shield law, called the Protect Reporters from Exploitative State Spying (PRESS) Act, is sponsored by Rep. Jamie Raskin, D-Rockville, Rep. John Yarmuth, D-Kentucky, and Rep. Ted Lieu, D-California. It passed the House Judiciary Committee unanimously on April 6.

"Without a federal shield law, we render reporters and journalists vulnerable to threats of prosecution or jail time simply for doing their jobs," Raskin said in a statement to Capital News Service. "I introduced the PRESS Act to make good on the constitutional promise of a free press, and I look forward to the bill moving for a vote before the full House of Representatives."

Shield laws protect journalists in legal proceedings from revealing their sources of information acquired during the reporting process. Reporters sometimes use confidential sources to obtain important information that would otherwise not be publicly available.

Efforts to pass a federal shield law date to the 1970s and have involved some prominent lawmakers—among them then-Rep. Mike Pence, R-Indiana, the late Senate Majority Leader Harry Reid, D-Nevada, and the late Sen. Richard Lugar, R-Indiana—but all have ended in failure.

Raskin previously sponsored a shield bill in 2017. The measure was based on one Pence proposed a decade earlier.

Sen. Ron Wyden, D-Oregon, last year introduced a version of Raskin's bill but so far it has not had a Senate Judiciary Committee hearing.

Kevin Goldberg, an attorney and First Amendment specialist at the Freedom Forum, told CNS he remains skeptical that the latest legislation will pass the Senate.

Goldberg noted that the Free Flow of Information Act, a predecessor to the current bill, passed the House by voice vote on Mar. 31, 2009, but never left the Senate.

"This time around I am hopeful that it can pass because from what I've seen, Raskin has taken steps to address some of the usual concerns involved here," Goldberg said.

Opponents of previous shield law proposals raised concerns over language regarding exceptions in situations where journalists gathered confidential information concerning national security, terrorism, or the potential loss of life.

Goldberg said the PRESS Act is "slightly narrower" than previous legislation and includes limited exceptions in which the qualified privilege would be waived for journalists.

Reporters still would be compelled to disclose information necessary "to prevent, or to identify any perpetrator of, an act of terrorism against the United States" and "to prevent a threat of imminent violence, significant bodily harm, or death," according to the text of the legislation.

Shield laws not only protect journalists from revealing sources during legal proceedings but also ensure that the press doesn't become an investigative arm of the government, according to Gabe Rottman, director of the Technology and Press Freedom Project for the Reporters Committee for Freedom of the Press (RCFP).

He told CNS that shield laws were "crucially important for the free flow of information."

"If sources are concerned that speaking to a reporter will subject them to investigative scrutiny, they won't talk to reporters and then the public loses out on newsworthy information in the public interest," Rottman said.

Yarmuth, the chairman of the House Budget Committee, has more familiarity with the inner workings of journalism than many of his colleagues in Congress. He founded the Louisville Eccentric Observer (LEO) in 1990 and was a columnist there for 16 years.

"As the first Society of Professional Journalists member to be elected to Congress, I know how important it is that we protect journalists and their ability to speak truth to power without fear of retaliation or retribution," Yarmuth said in a statement.

Forty-nine states and the District of Columbia have shield laws in place to protect journalists.

Goldberg noted that even if all 50 states had shield laws, without federal protection, a reporter's promise of confidentiality cannot be guaranteed.

"You could be in a state like Maryland that has the oldest and one of the strongest shield laws, but if you end up in federal court, that goes away, it doesn't apply, because Maryland law only applies in the state of Maryland courts," he said.

"Nobody loves to use confidential sources," Goldberg added. "When (reporters) do, it's because the public is truly benefiting from the information that is being obtained."

The Society for Professional Journalists is one of the media advocacy organizations that has endorsed the legislation.

"The Society of Professional Journalists applauds the House Judiciary Committee that voted unanimously to pass the PRESS Act," said SPJ President Rebecca Aguilar in a statement to CNS.

Aguilar added: "Journalists are one step closer to doing their jobs, knowing the federal government cannot force them to reveal their confidential sources or research documents. The goal of all journalists is to seek the truth without obstacles that can prevent us from doing so."

The reporter's privilege, similar to doctor-patient privilege and the attorney-client privilege, is widely recognized as critical for a functional press, Goldberg said.

"Privileges exist under law…because somebody has made the recognition that the flow of information between two people is so fundamentally important to those people, to those relationships, and to society at large," he said. "It is instantly recognizable as to why they exist and why they're important. There is a good case to be made that the reporter's relationship is that valuable to society that we need to protect it."

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