In September, the House of Representatives quietly passed a piece of legislation unanimously that stands up for the right of a free press against intrusions by the federal government.
That legislation, the Protect Reporters from Exploitative State Spying Act, or PRESS Act, stands a real chance of becoming law if the Senate takes it up before the expiration of the lame-duck session. The No. 2 Senate Democrat, Dick Durbin of Illinois, who chairs the Senate Judiciary Committee, has said he supports the bill, which gives it a boost in its quest for a floor vote.
The PRESS Act is sponsored by Maryland Democratic Rep. Jamie Raskin, and it effectively blocks the federal government from using subpoenas, jail, or the threat of jail to force reporters to turn over sources, and it blocks tech companies from sharing sensitive information from journalists’ devices with the federal government.
This week, Durbin announced in the Chicago Sun-Times that he would be pushing for a vote by unanimous consent on the bill. “At a time when the former president is calling for journalists to be jailed and referring to the press as the ‘enemy of the people,’ it’s critical that we protect this pillar of our democracy,” he wrote. “That’s why I support the PRESS Act and have cleared it for fast-track consideration on the Senate ‘hotline.’”
On Wednesday, Sen. Ron Wyden, D-Ore., who co-sponsored the bill with Sen. Mike Lee, R-Utah, tried to move the bill through the Senate by unanimous consent, like had been done in the House, but it was blocked by Sen. Tom Cotton, R-Ark. “The press unfortunately has a long and sordid history of publishing sensitive information from inside the government that damages our national security,” Cotton said on the Senate floor, going on to cite the Pentagon Papers, revealed by Daniel Ellsberg, as an example of such a leak, which he claimed was published by the New York Times in order to turn the public against the war effort. He also criticized reporting on the wars in Afghanistan and Iraq, which he claimed similarly undermined those war efforts. “Yet the PRESS Act would immunize journalists and leakers alike from scrutiny and consequences for their actions.”
The act would not, in fact, immunize leakers. The government would still be able to hunt and prosecute them as they do now; they just wouldn’t be able to threaten to jail journalists to pressure them to turn in their sources, as they did to The Intercept’s James Risen. And the laws that criminalize whistleblowing, including the Espionage Act, are themselves constitutionally suspect at best.
“To say, in other words, unequivocally, that it is a crime [to leak classified information] confronts very strong arguments by constitutional lawyers,” Ellsberg said on the Deconstructed podcast last year, noting that the Supreme Court has never weighed in on the Espionage Act. “One is that as an abridgment of free speech and against the First Amendment, that using the Espionage Act against any release of classified information amongst the criminalization of all sources, regardless of the intent, the motive, the impact — and thus, too much of an abridgment, it can’t be allowed of the First Amendment. And I think that’s very solid.” He added that federal agencies under the First Amendment are free to enforce administrative penalties like termination or suspension of a security clearance, but not criminal penalties.
As for consequences for journalists, the First Amendment already bars the government from restricting the publication of any material, including classified information. The government can criminalize leaking but not publishing. That 200-year-old First Amendment protection is currently under threat by the prosecution of WikiLeaks co-founder Julian Assange for publishing national security secrets, though the PRESS Act itself would not cover the case, because the government uncovered his source, Chelsea Manning, without relying on Assange.
“This effectively would grant journalists special legal privileges to disclose sensitive information that no other citizen enjoys,” Cotton falsely claimed. Indeed, all citizens have the right to publish classified information; the crime, again, is in the leaking of it.
Cotton added that he had a particular grievance with the Fourth Estate itself. “If recent history has taught us anything, it’s that too many journalists these days are little more than left-wing activists who are at best ambivalent about America and are cavalier about our security and about the truth,” Cotton said, ironically attacking under the guise of patriotism those working under the First Amendment.
“The PRESS Act does not say, ‘Let’s have a fast-track for the liberals,’” Wyden told The Intercept.
The bill does not restrict protections to professional journalists but to any “person 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.”
Given Cotton’s objection, the remaining viable path for the bill is to get included in the year-end omnibus spending legislation, according to congressional sources and those working on the outside to push the bill through. A floor vote, given the need to overcome a filibuster, would eat up too much of the little floor time left in the session. Durbin’s support is crucial for such an inclusion, and the bill would also likely need the backing of Sen. Chuck Grassley, R-Iowa, who told The Intercept he was still reviewing requests for the omnibus. Wyden said that he didn’t want to get into individual conversations with other senators but expressed optimism about the potential for the omnibus.
“After the PRESS Act passed the House with unanimous bipartisan support this fall, it came closer than ever to becoming law,” said Raskin. “A federal law to protect journalists in their work against the political whims of the day is a necessary step to defend press freedom. I am hopeful this measure can be included in a year-end omnibus package. It would be a great unifying statement.”
A spokesperson for Senate Majority Leader Chuck Schumer, D-N.Y., wasn’t immediately able to comment on the status of the talks, and Senate Minority Leader Mitch McConnell, R-Ky., declined to do so. “I don’t have anything to say about it right now,” McConnell said Thursday afternoon.
A second problem that has stalled previous press shield bills like this one is fearmongering about a terrorist with a ticking bomb somewhere, along with vague claims like Cotton’s that reporting on Iraq and Afghanistan empowered terrorists. The ticking-bomb situation has likely never occurred in the real world, but Raskin’s bill writes an exception directly into the law for that fantastical scenario.
The bill makes an exception if “disclosure of the protected information is necessary to prevent, or to identify any perpetrator of, an act of terrorism against the United States; or disclosure of the protected information is necessary to prevent a threat of imminent violence, significant bodily harm, or death.”
The final important question the bill addresses is what information is protected, and it arrives at an impressively sweeping definition. “The term ‘protected information’ means any information identifying a source who provided information as part of engaging in journalism, and any records, contents of a communication, documents, or information that a covered journalist obtained or created as part of engaging in journalism.”
Previous press shield laws have included huge gaping loopholes, written into the law at the behest of the national security establishment, which end up gutting the law. James Risen, back when he was at the New York Times, was in a long-running legal battle with the Bush administration and then the Obama administration in which they repeatedly threatened him with jail time for not revealing sources. He refused, and they eventually backed off, but if this bill were passed into law, prosecutors would not have been able to come after Risen. In Risen’s case, there was no imminent threat claimed by the government, just vaguely worded assertions about national security that shouldn’t be taken seriously coming from a government that lies regularly about such threats.
None of this is new for Cotton. He rose to right-wing fame writing to the New York Times from active duty in Iraq, calling for the jailing of Risen and two of his Times colleagues. “I hope that my colleagues at the Department of Justice match the courage of my soldiers here and prosecute you and your newspaper to the fullest extent of the law. By the time we return home, maybe you will be in your rightful place: not at the Pulitzer announcements, but behind bars,” Cotton wrote.
Wyden rejected Cotton’s argument. “You can’t get 435 members of Congress to vote for something if the intelligence community is saying it’s going to tie their hands,” Wyden said, pointing to the bill’s exceptions, and noting that he may be the longest-serving member of the Senate Intelligence Committee in American history.
The bill would have also protected Risen from government prosecutors looking to go straight to tech companies for his data. Before a tech company could turn anything over under the new law, they’d have to let the journalist know about the subpoena and give them a chance to respond in court, unless doing so would undermine an ongoing investigation, in which case the government can get a delay of no more than 90 days.
The bill also narrows what can be requested by subpoena down to information needed to confirm that what was reported is true. In other words, if a journalist exposes a crime with his or her reporting, that’s often not enough for a prosecutor to use against the perpetrator, because a news article is technically hearsay. This bill limits what can be obtained “to the purpose of verifying published information,” which would block fishing expeditions from prosecutors trying to find out the identity of every person a journalist spoke to over a specific period of time.
A coalition of advocates of press freedom is urging the Senate to move the bill before the term expires. Wyden said he plans to stay in Washington the next few days to work on the upcoming tax package and will be focused on the PRESS Act as well. “We’re going to pull out all the stops to get this in,” he said.
Update: December 16, 2022
This article has been updated to include a quote by Daniel Ellsberg.