Bill shielding press from feds could reach Biden’s desk this year, Schumer says
WASHINGTON — Majority Leader Chuck Schumer told The Post that the Senate could send the country’s first federal press shield law to President Biden’s desk after the legislation quietly passed the House by a voice vote in January.
“Yes, I am hopeful [that it will pass this year],” the Brooklyn Democrat said in an exclusive interview.
“Most of what I’ve accomplished — and we had a record amount of accomplishment in the past two years — has been bipartisan and so has been the [foreign aid] supplemental [bill]. But I’m hopeful that this bill could pass with bipartisan support.”
The so-called PRESS Act would build upon the 233-year-old First Amendment by restricting the government from snooping on journalists and by extending legal protection to source confidentiality agreements.
The nine-page bill, whose name is an acronym for Protect Reporters from Exploitative State Spying, has support from diverse ideological camps and is sponsored by Reps. Kevin Kiley (R-Calif.) and Jamie Raskin (D-Md.).
“I have to talk to some of my members about Raskin’s bill, but I’ve always been a supporter of the shield law. I was one of the authors of the original shield law,” Schumer said.
What the bill does
The PRESS Act would bar the feds from forcing journalists or their service providers to turn over evidence in cases such as leak investigations — with exceptions if the reporter is suspected of a crime or suspected of working as a foreign agent or for a terrorist organization.
The bill specifies “protected information” includes “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.”
The term “journalist,” significantly, covers people who are not paid full-time media employees — meaning that freelancers, self-styled “citizen journalists” and primary-source publishers such as WikiLeaks may be protected.
A “covered journalist” is defined 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.”
The bill states that “a Federal entity may not compel a covered journalist to disclose protected information, unless a court in the judicial district in which the subpoena or other compulsory process is, or will be, issued determines by a preponderance of the evidence, after providing notice and an opportunity to be heard to the covered journalist, that … 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, including specified offenses against a minor.”
Similar protections would apply to information held by service providers, and journalists in some cases could challenge the proposed taking of those records.
The lack of a federal reporting shield law has led to a number of high-profile cases in recent years.
On Feb. 29, veteran journalist Catherine Herridge, formerly of CBS News and Fox News, was held in civil contempt by DC US District Judge Christopher Cooper for refusing to identify who told her about an FBI investigation into a Chinese American scientist, who is seeking the information in a deposition as part of a lawsuit against the Justice Department.
Cooper is fining Herridge $800 per day for not naming her source.
In other instances, reporters have risked prison in standoffs over such information.
In a seven-year struggle that ended in 2015, reporter James Risen, formerly of the New York Times, refused to say who told him about a bungled CIA plot to undermine Iran’s nuclear program by sending flawed warhead designs, errors in which were then detailed to Tehran by the agency’s middleman.
Judith Miller, then of the Times, served 85 days in jail for contempt of court in 2005 for refusing to say who told her the identity of CIA operative Valerie Plame. Plame’s husband, diplomat Joseph Wilson, had investigated and raised internal objections to President George W. Bush’s claim that Iraqi dictator Saddam Hussein was seeking weapons of mass destruction.
In other instances, journalists have had their communications records seized without their knowledge — something the legislation also seeks to prevent aside from exceptional cases.
In 2010, then-Fox News reporter James Rosen had his email records and phone logs seized by the FBI, which described him in a search warrant affidavit as a possible “co-conspirator” with his source when reporting on a planned nuclear test by North Korea.
If a journalist is “suspected of committing a crime,” the new protections would not apply, the bill says — which means that WikiLeaks publisher Julian Assange, who is fighting US attempts to extradite him from the UK for allegedly encouraging Army intelligence analyst Chelsea Manning to leak classified documents in 2010, likely would not benefit, despite press groups arguing he was performing journalism.
The proposed law would not apply to state-level defamation lawsuits and also would not grant absolute protections. For example, it would allow journalists to argue against the compelled disclosure of their records by service providers in some cases, but not if they would not be notified if there was a “clear and substantial threat to the integrity of a criminal investigation.”
Republicans: Thanks, Chuck
The bill’s Republican backers and press-freedom advocates cheered Schumer’s upbeat assessment.
“Rep. Raskin and I authored the PRESS Act to protect liberty and freedom of the press for all Americans, and the House approved it unanimously. If there was ever a bill deserving a quick Senate approval, it’s this one. I’m grateful for Senator Schumer’s encouraging words,” Kiley said.
“Getting this landmark legislation signed into law will protect a vital First Amendment freedom, while showing it is still possible in Washington to work across party lines to advance the public interest.”
Rep. Russell Fry (R-SC), a co-sponsor and member of the prominent House Judiciary and Oversight committees, said “the PRESS Act has the power to stop government abuse and protect journalists’ ability to report freely.”
“Freedom of press is a basic principle of democracy and is something that is clearly defined in our Constitution,” Fry said. “Government overreach and surveillance of journalists threatens this right and in turn, limits Americans’ access to information.”
Although the bill sailed through the House without a recorded vote, there’s no guarantee of similar action in the Senate — and if changes are made by the Senate Judiciary Committee, the measure would have to go back to the House for another vote, where greater focus and debate could yield more opposition.
“Pushing forward this legislation would send a strong message about the vital role that journalists play in a democracy,” said Katherine Jacobsen, the US, Canada and Caribbean program coordinator for the Committee to Protect Journalists.
“The current patchwork of protection from state shield laws creates vulnerabilities for journalists, their sources, and the free flow of information,” Jacobsen added.
“We urge the Senate to prioritize the passage of the PRESS Act to create uniform federal protections for journalists and the public’s right to know.”
The White House did not immediately respond to The Post’s request for comment on Biden’s position on the bill.
