A New Federal Press Shield Bill Falters Just Before the Finish Line in Congress

A law to protect people engaged in journalism from having to reveal sources gets blocked by Sen. Tom Cotton.

Lost in the incredibly expensive fight over how many billions of dollars the federal government can waste is any number of more modest bills—some of which wouldn't add to our nation's debt and would help protect Americans from that very expensive government.

Consider the PRESS Act—officially the Protect Reporters From Exploitative State Spying Act. The PRESS Act is intended to stop the federal government from attempting to force journalists to divulge the identities of anonymous sources, like government whistleblowers. There are exceptions if the government can show that disclosing the identity of the source is necessary to identify a terrorist or to prevent violent crime or crime against a child.

More importantly, the bill also prevents federal agencies from bypassing the above protections by turning to third-party service providers (like messaging apps or social media platforms) to get the journalist's communications. Again, there's an exemption for threats of imminent violence, and there's a process involved that requires a subpoena and a court hearing. Essentially, it would serve as a federal "shield law." Nearly every state has some sort of law that stops journalists from being forced to reveal sources, but there is currently no federal version.

The bill was introduced in the House by Rep. Jamie Raskin (D–Md.) and sailed through entirely by a voice vote. But in the Senate last week, where it was sponsored by Sens. Ron Wyden (D–Ore.) and Mike Lee (R–Utah), an attempt to get it passed by unanimous consent during the lame duck session was derailed by Sen. Tom Cotton (R–Ark.). He objected on national security grounds, going so far as to use the release of the Pentagon Papers by Daniel Ellsberg, which revealed secrets of America's handling of the Vietnam War, as an example of why it's actually bad to protect journalism and journalists from government authority or prosecution.

"This essentially will grant journalists special legal privileges to disclose sensitive information that no other citizen enjoys," Cotton said.

But Cotton is wrong just on the facts. Journalism is a career for some, but it's also an activity or action that everybody can perform. The PRESS Act defines a 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." The bill uses a similar definition for journalism itself. It does not require a person to be employed by a media outlet as a reporter to claim its protections. Anybody who performs the act of "journalism," even if he's not paid and even if he has political biases or agendas, is protected by the law.

Given the state of the media today and the decline of Americans' trust in the press, it's tempting to buy into critiques that the last thing we need is to give journalists greater privileges and powers. It's also not a new line of attack—Reason's Matt Welch took note of anti-press sentiment back in 2005 with Judith Miller, who spent 85 days in jail for refusing to reveal that Scooter Libby leaked to her the identity of CIA officer Valerie Plame.

Don't succumb to such short-sighted thinking about who is actually served by media protections. Who are the actual beneficiaries when press shield laws stop the government from forcing journalists into revealing their sources? Who were the beneficiaries of the leaking and publishing of the Pentagon Papers? It's the American public that gains the most when the government's power to punish anybody who engages in journalism is restricted. It's the public that gains when sources can turn to journalists and reveal the truth of what the government is keeping secret.

Cotton's position about the release of the Pentagon Papers and his general support of the security state is anti-democratic and anti-liberty, treating American citizens as though their need for information is subservient to whatever the federal government and military desire. Americans—not just foreign enemies—are being deprived of important information about what their own government is doing.

"This bill is a no-brainer to protect free press in America, but I'm not giving up. I'm going to keep fighting until we get this across the finish line," Wyden tweeted after Cotton blocked the bill. Wyden's office did not respond to a call from Reason for an update on the bill's status.

The current (sometimes miserable) state of the press shouldn't distract from the fact that we all benefit from press shield laws, as they help journalists reveal to the public what people with power are doing. This bill is particularly good because it protects not just "professional" journalists who work for major media outlets, but anybody who engages in the act of journalism.