Will the Senate finally move to protect small and independent journalists?
“If you cannot offer a source a promise of confidentiality as a journalist, your toolbox is empty.”
Forty-nine states have press-shield laws that allow journalists to resist government lawyers who would compel them to reveal their sources and notes. The federal government, however, has no such law.
What came to light in a recent House hearing was the human cost of leaving reporters vulnerable to legal harassment by government. This represents an especially grave threat to independent journalists and small outlets.
To be sure, the cases that make news involve big media outlets. In recent years, federal prosecutors have sought the records of reporters at the New York Times, the Washington Post, CNN, and the Associated Press. During the Obama administration, government lawyers issued a search warrant for the emails of Fox News journalist James Rosen. Such aggressive legal tactics threaten to shut down the media’s ability to hold the federal government accountable.
“If you cannot offer a source a promise of confidentiality as a journalist, your toolbox is empty,” celebrated investigative journalist Catherine Herridge told members of a House Judiciary subcommittee. “No whistleblower is coming forward, no government official with evidence of misconduct or corruption. And what that means is that it interrupts the free flow of information to the public....Journalism is about an informed electorate, which is the bedrock of our democracy.”
In a Sisyphean effort, the House of Representatives has repeatedly voted to bring the federal government up to the same standard as the states. Four times, the House has passed a press shield law, which would grant journalists in federal court proceedings a privilege to refrain from revealing confidential news sources, with reasonable exceptions for emergencies.
The PRESS Act last passed the House in January with the sponsorship of Republican Rep. Kevin Kiley (R-Calif.) and the enthusiastic support of conservatives such as House Judiciary Chairman Jim Jordan (R-Ohio), but also with bipartisan support of House Democrats. In the Senate, it has the support of Sens. Lindsey Graham (R-S.C.) and Mike Lee (R-Utah). Catherine Herridge’s powerful testimony should encourage other Republicans to join them.
Senators should take note that Herridge is currently being held in contempt for refusing to reveal her source in a 2017 series she wrote about a national security investigation. Herridge first spoke of her judicial ordeal in very personal terms.
“I think my current situation can help put the importance of the PRESS Act into context,” she told House Members about the costs of defending her source and her freedom in a federal courtroom for two years. “One of our children recently asked me if I would go to jail, if we would lose our house, and if we would lose our family savings to protect my reporting sources. I wanted to answer that in the United States, where we value democracy and the role of a vibrant and free press, it was impossible. But I couldn’t offer that assurance.”
Herridge then testified that the prospect of having to pay an $800 per day fine — currently stayed while she appeals — would be “crippling.” Some fines on journalists who protect their sources have been higher, up to $5,000 a day. Herridge can at least count on the generosity of her former employer, Fox News, which has commendably stepped forward to pay for her costly legal defense and help her protect her source.
“These fines are designed so that you have to disclose your sources, you have to burn them,” Herridge said. “And in a marketplace where we have this explosion in independent journalism and smaller outfits, they cannot withstand these fines. They cannot mount a costly and vigorous legal defense of the First Amendment.” This is doubly true of citizen-journalists who would be protected by the PRESS Act.
Many Republicans were outraged by the way in which CBS News, which recently laid off Herridge, seized notes on her investigation into Hunter Biden’s business dealings as well as notes on other stories. CBS refused to give Herridge access to her notes until the news organization faced a firestorm of criticism. Herridge provided the subcommittee with the sound bite of the day by saying that having her notes seized by CBS felt like “journalistic rape.”
When Herridge worked at ABC News and Fox News, she conducted investigations — “calling balls and strikes” — regardless of which party was in power. This is the real spirit of journalism, an endangered code of conduct that deserves protection, not prosecution.
The Senate has a golden opportunity to protect independent journalism and promote media diversity. This is the time for Republicans to join reform-minded Democrats to finally pass the PRESS Act into law.
Bob Goodlatte served as the House Judiciary Chairman and is now a senior policy advisor to the Project for Privacy and Surveillance Accountability. Barbara Comstock represented Virginia’s Tenth Congressional District from 2015 to 2019.