ARTICLE 19 and 37 other civil liberties organisations have called on United States Senate Majority Leader Chuck Schumer to ensure the PRESS Act, a comprehensive shield law protecting journalists, passes urgently as part of an end-of-year bill to Congress.
The PRESS Act, which the House passed unanimously in September 2022, will bar the surveillance of journalists’ email and phone records in all but emergency situations. It will also bar prosecutors from forcing journalists to testify against their sources.
The letter follows below:
12 December 2022
Re: Pass the PRESS Act (H.R. 4330/S. 2457)
Dear Leader Schumer:
We, the undersigned press freedom and civil liberties organisations, urge you to include the PRESS Act (H.R. 4330/S. 2457) in a 2022 end-of-year omnibus bill. The PRESS Act is a strong shield law protecting journalists from surveillance or compelled disclosure of source materials except in emergency situations.
The PRESS Act is a bipartisan bill. The House passed the PRESS Act unanimously in September and Americans of all political leanings agree on the need to reduce government surveillance. The Reporters Committee for Freedom of the Press and major media outlets nationwide have come out in support of the PRESS Act.
We know you understand the importance of this legislation – as well as its bipartisan appeal – because you and Senator Lindsey Graham sponsored a similar shield bill, the Free Flow of Information Act, almost a decade ago. You rightly recognised then that shield legislation like the PRESS Act ‘would provide clear and meaningful protection at the federal level for journalists against improper intrusion into the free press’.
Forty nine states, red and blue alike, have either passed shield laws or recognised some form of reporter’s privilege. The federal courts are the outlier and protections vary widely between appellate circuits, creating unpredictability for journalists and their sources. One federal appellate court admitted that journalists’ investigative capabilities ‘would be enhanced’ if they were shielded from government-compelled disclosure. ‘But they are not,’ it concluded, leaving journalists subject to intimidation and arrest for protecting sources.
This year, the Department of Justice (DOJ) took a step towards remedying the problem by adopting new policies restricting subpoenas and seizures from journalists (28 CFR 50.10). Attorney General Garland released the following statement in connection with those policies:
‘Because freedom of the press requires that members of the news media have the freedom to investigate and report the news, the new regulations are intended to provide enhanced protection to members of the news media from certain law enforcement tools and actions that might unreasonably impair newsgathering.’
The PRESS Act would codify the DOJ’s policies so they cannot be changed or repealed by future administrations.
A ‘cantankerous press, an obstinate press, a ubiquitous press’ that promotes transparency and accountability benefits all facets of government, including national security. Nonetheless, the PRESS Act recognises law enforcement concerns through an exemption when information is necessary to ‘prevent, or to identify any perpetrator of an act of terrorism against the United States.’ It then establishes common sense procedures to ensure that the exemption is not abused. S .2457, 117th Cong. §§ 3, 4.
The DOJ now recognises that ‘freedom of the press can be no broader than the freedom of members of the news media to investigate and report the news’. The Fourth Estate is not free as long as prosecutors and investigators are empowered to commandeer newsrooms in disregard of the media’s Constitutionally-recognised independence.
It is crucial that you act before this Congress adjourns so that journalists do not need to wait another decade or more for the protections they need to do their jobs effectively. By reaffirming your longtime commitment to First Amendment freedoms, you will be a hero not only to journalists but to all Americans who rely on a free and vibrant press to participate in democracy.
Advocacy for Principled Action in Government
American Civil Liberties Union
Arizona Press Club
Center for Democracy & Technology
Center for Media at Risk
Coalition for Women in Journalism
Committee to Protect Journalists
Defending Rights and Dissent
Electronic Frontier Foundation
Eye on Ohio, the Ohio Center for Journalism
Fight for the Future
First Amendment Coalition
Freedom of the Press
Good Morning Wilton
Government Information Watch
Institute for Nonprofit News
- The Jewish News of Northern California
Knight First Amendment Institute at Columbia University
National Coalition Against Censorship
National Freedom of Information Coalition
Online News Association
New York News Publishers Association
Project for Privacy & Surveillance Accountability
Protect The 1st
Public News Service
Radio Television Digital News Association
Reporters Without Borders
Surveillance Technology Oversight Project