We’ll codify protection of journalism and newsgathering

“We’re on the cusp of federal protections with the PRESS Act.”

We’re going to see permanent, federal protections for journalists and newsgathering.

Here at Freedom of the Press Foundation, I oversee the U.S. Press Freedom Tracker, the news site that systematically documents aggressions against journalists and news organizations in the United States, which means I see the myriad threats to press freedom and the First Amendment every day.

I am not always a lot of fun at parties. It’s also a niche perch from which to monitor responses, accountability and press protections.

Since the Tracker launch in 2017, the team has documented nearly 300 arrests or detainments of journalists and nearly 1,000 assaults.

The majority of those came in 2020, as journalists covered national social justice and Black Lives Matter protests, sparked by the killing of George Floyd. We documented more than 600 assaults and 140 arrests of journalists — extraordinary numbers, as journalists reported under extraordinary physical duress.

There are hints of accountability from that time: At least 53 journalists have filed lawsuits following their treatment at BLM protests, and nearly $2 million has been awarded in settlements of these suits so far.

At the state level, California responded by passing SB 98 in 2021, which enshrined protections for the press while covering demonstrations. (The question of efficacy remains: Six journalists were arrested or detained while covering protests in the state this year, with 10 assaults.)

There are other types of threats to press freedom. Not all states have strong shield laws and there is no federal law, meaning that federal courts are inconsistent in recognizing protections for journalists against subpoenas and seizures. Many courts don’t acknowledge any protections at all. That means journalists and news organizations can be compelled to identify their sources, testify about their reporting or turn over notes or other privileged source material. Or the government can secretly ask Google or Facebook for journalists’ email or messaging records.

More than 150 subpoenas and legal orders have been issued to journalists and news organizations for this sort of information, and those are just the ones we know about.

In 2021, the U.S. Department of Justice let The New York Times know that — as part of a leak investigation during the Trump administration — it secretly obtained phone records of four of the newspaper’s reporters more than a year before. That DOJ also obtained a court order — and a gag order — demanding Google secretly turn over the email logs of those four reporters. (That particular effort continued into the Biden administration, which later issued a statement that no one at the White House was aware of the gag order until it was lifted. The court order was dropped.)

By mid-2021, the Biden DOJ announced it would no longer seize journalists’ records during leak investigations through a memorandum from Attorney General Merrick Garland. The DOJ codified the memorandum this October, officially revising the rules around seeking information and records from members of the news media except under “limited, specified circumstances.” Garland said the policies were needed because “freedom of the press requires that members of the news media have the freedom to investigate and report the news.”

But administrations change, which means so, too, can that newly revised DOJ policy. Fortunately, we’re on the cusp of federal protections with the PRESS Act.

The Protect Reporters from Exploitative State Spying Act is legislation that would prohibit the government from seizing records from journalists or their phone and email providers, except in a few emergency situations. It unanimously passed the House this September and is now awaiting Senate approval.

There’s a chance that the Senate Judiciary Committee will push it through to a full Senate vote before the session ends in January. Freedom of the Press Foundation and many others are advocating for that to happen.

Which means this prediction could become outdated even before we pop open the New Year’s champagne. Sorry, Nieman Lab, not sorry.

Kirstin McCudden is vice president of editorial for Freedom of the Press Foundation and managing editor of its U.S. Press Freedom Tracker

We’re going to see permanent, federal protections for journalists and newsgathering.

Here at Freedom of the Press Foundation, I oversee the U.S. Press Freedom Tracker, the news site that systematically documents aggressions against journalists and news organizations in the United States, which means I see the myriad threats to press freedom and the First Amendment every day.

I am not always a lot of fun at parties. It’s also a niche perch from which to monitor responses, accountability and press protections.

Since the Tracker launch in 2017, the team has documented nearly 300 arrests or detainments of journalists and nearly 1,000 assaults.

The majority of those came in 2020, as journalists covered national social justice and Black Lives Matter protests, sparked by the killing of George Floyd. We documented more than 600 assaults and 140 arrests of journalists — extraordinary numbers, as journalists reported under extraordinary physical duress.

There are hints of accountability from that time: At least 53 journalists have filed lawsuits following their treatment at BLM protests, and nearly $2 million has been awarded in settlements of these suits so far.

At the state level, California responded by passing SB 98 in 2021, which enshrined protections for the press while covering demonstrations. (The question of efficacy remains: Six journalists were arrested or detained while covering protests in the state this year, with 10 assaults.)

There are other types of threats to press freedom. Not all states have strong shield laws and there is no federal law, meaning that federal courts are inconsistent in recognizing protections for journalists against subpoenas and seizures. Many courts don’t acknowledge any protections at all. That means journalists and news organizations can be compelled to identify their sources, testify about their reporting or turn over notes or other privileged source material. Or the government can secretly ask Google or Facebook for journalists’ email or messaging records.

More than 150 subpoenas and legal orders have been issued to journalists and news organizations for this sort of information, and those are just the ones we know about.

In 2021, the U.S. Department of Justice let The New York Times know that — as part of a leak investigation during the Trump administration — it secretly obtained phone records of four of the newspaper’s reporters more than a year before. That DOJ also obtained a court order — and a gag order — demanding Google secretly turn over the email logs of those four reporters. (That particular effort continued into the Biden administration, which later issued a statement that no one at the White House was aware of the gag order until it was lifted. The court order was dropped.)

By mid-2021, the Biden DOJ announced it would no longer seize journalists’ records during leak investigations through a memorandum from Attorney General Merrick Garland. The DOJ codified the memorandum this October, officially revising the rules around seeking information and records from members of the news media except under “limited, specified circumstances.” Garland said the policies were needed because “freedom of the press requires that members of the news media have the freedom to investigate and report the news.”

But administrations change, which means so, too, can that newly revised DOJ policy. Fortunately, we’re on the cusp of federal protections with the PRESS Act.

The Protect Reporters from Exploitative State Spying Act is legislation that would prohibit the government from seizing records from journalists or their phone and email providers, except in a few emergency situations. It unanimously passed the House this September and is now awaiting Senate approval.

There’s a chance that the Senate Judiciary Committee will push it through to a full Senate vote before the session ends in January. Freedom of the Press Foundation and many others are advocating for that to happen.

Which means this prediction could become outdated even before we pop open the New Year’s champagne. Sorry, Nieman Lab, not sorry.

Kirstin McCudden is vice president of editorial for Freedom of the Press Foundation and managing editor of its U.S. Press Freedom Tracker

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