The Editorial Board of The New York Times called last month for the passage of the PRESS Act, namely the “Protect Reporters from Exploitative State Spying Act,” which it described as “essential” to supplying the federal “shield law” critically needed to protect journalists from the compulsory disclosure of their confidential sources. Originally introduced in the 117th Congress by Representative Jamie Raskin and then reintroduced in the current Congress in June 2023 by Representative Kevin Kiley, the bill represents the most recent effort by journalists and news organizations to produce a federal shield protecting journalists against the compulsory disclosure of their confidential sources, notwithstanding the Supreme Court’s 1972 decision in Branzburg v. Hayes that such protection is not required by the First Amendment. An exception in that case, however, allowed Congress the “freedom to determine whether a statutory newsman’s privilege is necessary and desirable,” thus seemingly paving the way for legislation. For the past half-century, news organizations and industry coalitions have lobbied Congress to produce such a statutory federal privilege—entreaties that Congress has wisely rebuffed. After cursory consideration by the House Judiciary Committee, the PRESS Act passed the House of Representatives and is now awaiting further proceedings in the Senate. Should it become law in substantially the form presently drafted, its passage would represent a serious impediment to enforcing the laws designed to protect the nation’s security.
In 2008, news organizations promoted another version of a federal shield law entitled the Free Flow of Information Act. The shortcomings of that legislation prompted the Attorney General and Director of National Intelligence to write jointly to Congress identifying serious concerns with the bill’s content including overly restrictive provisions handicapping the government’s efforts “to obtain testimony, documents, and other information from journalists related to national security investigations.” The PRESS Act contains no provision whatsoever furnishing any exception to its sweeping protections shielding journalists from compulsory process in national security investigations including those involving the unauthorized disclosure of classified national security information. The only instances in which the government can seek to compel disclosures from those within the expansively defined “covered journalists” in this bill are (1) investigations involving acts of terrorism against the United States and (2) investigations directed to preventing a threat of imminent violence, significant bodily harm, or death. As such, this bill assures one with access to classified information that he can breach his nondisclosure agreement and freely share classified secrets with “covered journalists” secure in the knowledge that the only person(s) with knowledge of his identity and criminal disclosures can never be compelled to disclose that identity.
Defining who deserves the protection of a privilege
As with all prior efforts to enact a federal shield law, it is critical to define who is a “journalist.” In its Branzburg decision, SCOTUS acknowledged that “the administration of a constitutional newsman’s privilege would present practical and conceptual difficulties of a high order.” A statutory privilege like that proposed by the PRESS Act is no less fraught as demonstrated by the contention surrounding the recently concluded prosecution of Julian Assange. Even as it prosecuted Assange, the Justice Department insisted that Assange was not a “journalist” although “mainstream” national security reporters acknowledged the uncomfortable truth that the charges against Assange “rely almost entirely on conduct that investigative journalists engage in every day.” Not surprisingly, Assange felt quite differently, telling the court at the allocution hearing addressing his guilty plea to violating the Espionage Act that “working as a journalist I encouraged my source to provide information that was said to be classified in order to publish that information.”
The PRESS Act defines a “covered journalist” as:
A 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.
while providing that “journalism” means
gathering, preparing, collecting, photographing, recording, writing, editing, reporting, investigating, or publishing news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.
The broad scope of “covered journalist” reflects the instinct to extend shield protections to cover not only institutional news organizations and their reporters but also the proverbial “lonely pamphleteer who uses carbon paper and a mimeograph” who is equally deserving of First Amendment protection. In today’s digital age, that “lonely pamphleteer” may be a blogger, an occasional commentator on social media, or one expressing viewpoints through posting TikTok videos; but, given its expansive reading, “covered journalist” might also include foreign agents or terrorists who engage in some of the trappings of journalism while disseminating Russian disinformation or recruiting adherents to their violent ideologies. The PRESS Act fails to include any language that even attempts to draw a functional distinction separating an investigative blogger from, for example, an internet account serving as an anonymous commentator propagating Russian falsehoods and disinformation or a terrorist group seeking to radicalize new followers.
Practically speaking, a broad interpretation of the First Amendment’s terms is better construed as protecting “journalism” and its associated activities rather than attempting to pigeonhole who is a “journalist.” As national security reporter for The New York Times, Charlie Savage has written, “for the purposes of press freedom, what matters is not who counts as a journalist, but whether journalistic-style activities—whether performed by a journalist or anyone else —can be treated as crimes.” Whether approached by defining the actor or that actor’s activities (“journalist” or “journalism”), these terms are necessarily broadly defined because news organizations want the most expansive shield protection possible, but that breadth protects actors like Assange as surely as it protects those reporting for The New York Times.
What need is the PRESS Act filling?
The absence of a federal shield law is often contrasted with the existence of some form of reporter’s privilege in 49 states and the District of Columbia, but state shield laws have no need to wrestle with the protection of classified national security information. Every prior effort to enact a federal shield law included some form of exception to the privilege created by the legislation for matters affecting national security. In 2013, for example, when the Obama administration resurrected another version of the Free Flow of Information Act, the bill specifically provided that the statutory protections against compelled disclosure from “covered journalists” did not apply where the protected information would materially assist in preventing or mitigating acts likely to cause significant and articulable harm to the national security. Even with this and other exceptions to the shield provisions included in the legislation, that bill was never enacted into law.
The absence of a federal statutory reporter’s privilege has hardly left journalists struggling under the weight of federal subpoenas seeking the compelled disclosure of the identities of their confidential sources. Instead, through multiple administrations spanning decades, the Department of Justice (DoJ) has maintained regulations specifying the narrowly circumscribed circumstances where the government may use compulsory process to pursue information or records from members of the news media. As currently configured after modifications implemented at the direction of Attorney General Merrick Garland, these Justice Department regulations restrict the use of compulsory legal process (e.g., subpoenas, search warrants, interception orders and civil investigative demands) whenever the information or records sought by the government have been acquired by “members of the news media” (a term left undefined by the regulations) engaged in “newsgathering,” which is defined as “the process by which a member of the news media collects, pursues, or obtains information or records for purposes of producing content intended for public dissemination.”
Definitionally, the scope of the PRESS Act is more likely to cover the “lonely pamphleteer” than the more restrictive “member of the news media” used in the DoJ regulations, but the PRESS Act’s more expansive definition presents the previously identified problem of providing shield protection to individuals whose activities are serving interests other than those promoted by the First Amendment. The actual activities covered by the proposed statute and the DoJ regulations, the definition of “journalism” found in the PRESS Act, and the description of “newsgathering” contained in the regulations seem largely congruent.
The absence of a national security exception in the PRESS Act is a serious flaw
Both the PRESS Act and the DoJ regulations fail to provide for the use of compulsory process in pursuing the unauthorized disclosure of classified national security information, especially classified information concerning the communications intelligence activities of the United States. The PRESS Act would codify the lacuna in the existing DoJ regulations that vitiates the ability to enforce 18 U.S.C. § 798, an espionage statute passed by Congress specifically to protect, inter alia, the “communications intelligence activities” of the United States. As Harold Edgar and Benno Schmidt observe in their seminal work, “The Espionage Statutes and Publication of Defense Information,” § 798 is, at least when compared to other espionage statutes, including those sections of 18 U.S.C. § 793 that created such controversy in the Assange prosecution, a “model of precise draftsmanship” that (1) makes evident that violation occurs upon knowing engagement in the proscribed conduct, and (2) through its use of the term “publishes” is intended to bar public speech regarding a specific category of classified information that is both “vital and vulnerable to an almost unique degree.” When considered by Congress in 1950, this most recent of the nation’s espionage laws and the only one to specifically criminalize the act of publishing was endorsed by the American Society of Newspaper Editors which, at that time, included as active members leading editors of The New York Times.
Despite this history, the government has never employed §798 to prosecute a media entity for publishing “information concerning the communication intelligence activities of the Unites States,” and there is nothing to suggest that this is likely to change. Logic suggests that if The New York Times’ publication revealing the Stellar Wind program in 2005 and The Washington Post’s publication of the unauthorized Snowden disclosures in 2013, both of which revealed classified information concerning the communications intelligence activities of the United States, prompted no prosecutorial response, it is difficult to conjure a scenario that would rouse the DoJ from its Section 798 torpor. While critics may argue that such a prosecution aimed directly at the act of publication would expose §798 as constitutionally vulnerable, it bears remembering that not only did Congress specifically include “publishes” as a criminal act in §798, but two former Supreme Court justices, Byron White and Potter Stewart, are on record in the Pentagon Papers case as acknowledging that they would have “no difficulty in sustaining convictions under” §798 where a newspaper knowingly published classified communications intelligence information.
Ironically, this reluctance to employ all the criminal sanctions embodied in Section 798 provides the most compelling justification for ensuring that any federal shield law like the PRESS Act include a national security exception that exempts shield protection in those instances where a prosecution is predicated upon an unauthorized disclosure of classified national security information concerning the communications intelligence activities of the United States or any other conduct proscribed by 18 U.S.C. 798. The principal impact of the PRESS Act’s creation of a statutory reporter’s privilege is most likely to torpedo investigations where the publication of classified information concerning the nation’s communications intelligence activities is clearly the product of an unauthorized disclosure by someone with access; i.e.,a leak. In practice, the essence of the vast majority of leak investigations is the pursuit of unknown perpetrators whose unauthorized disclosures come to light only when published by the media, thereby making it readily apparent to investigators that the journalist likely knows the identity of the leaker or has relevant information that will facilitate making that identification. Without a clear exception for investigations involving the unauthorized disclosure of classified information, the PRESS Act effectively immunizes such disclosures because seldom, if ever, will the identity of the leaker making the unauthorized disclosure be known to anyone but the “covered journalist.”
One might argue, as The New York Times did in its editorial, that the free flow of information and the need to “keep a sharp eye on government” warrants such blanket protections, but prudence and logic dictate that a more balanced approach is justified. As SCOTUS has presciently observed, “It is thus not surprising that the great weight of authority is that newsmen are not exempt from the normal duty of appearing before a grand jury and answering questions relevant to a criminal investigation.” Nowhere is this investigative avenue more important than in the area of pursuing the unauthorized disclosure of classified national security information. Moreover, while proponents of a federal privilege also insist that it is essential to shield the anonymity of those confidential sources who choose to breach their nondisclosure obligations by surreptitiously speaking to journalists, other statutory protections exist affording alternative avenues for reporting instances of wrongful conduct. Congress has enacted a series of intelligence community whistleblower provisions specifically designed to furnish a “safe harbor” alternative to avoid wrongdoing going unreported or of classified information being compromised through disclosures made outside of proper channels.
Conclusion
Since SCOTUS’ 1972 conclusion that the First Amendment does not implicitly include a reporter’s privilege, Watergate, Iran-Contra, Enron, Abu Ghraib, the CIA’s secret detention and extraordinary rendition activities, and countless other stories all have demonstrated that the absence of a federal shield law has not interfered with either aggressive reporting or the free flow of information to the public.
The PRESS Act bestows such a privilege upon people who may or may not actually practice “journalism” without affording any accompanying protection, or even consideration, to its impact on the efforts to prevent leaks and protect classified national security information concerning the communications intelligence activities of the United States. Unless Congress is prepared to include an exception for investigations involving these unauthorized disclosures as proscribed in 18 U.S.C. § 798, this overbroad piece of legislation is best consigned to the waste bin holding all of the previous editions of unnecessary and unwise federal “shield” laws.
George W. Croner was the principal litigation counsel in the Office of General Counsel at the National Security Agency (NSA). He is a senior fellow at the Foreign Policy Research Institute (FPRI) in its national security program and a member of CERL’s Advisory Council. You can follow him on X (@GeorgeCroner) and find a list of his publications at FPRI.org. Read his full bio here.
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