Opinion: A major step in the fight for press freedom
Editor’s note: Bruce D. Brown is the executive director of the Journalists Committee for Freedom of the Press. Gabe Rottman leads the Committee of Journalists’ Technology and Freedom of the Press Project. The Journalists’ Committee helped coordinate discussions between members of the news media and senior Ministry officials. The opinions expressed in this commentary belong to the authors. See more opinion on CNN.
In a 1974 speech, US Supreme Court Justice Potter Stewart laid down some famous markers involving press rights. “As far as the Constitution is concerned,” he said, “the autonomous press can publish what it knows and can seek to learn what it can.”
But for the press, it has been difficult to fully exercise these rights with the government’s subpoena power hanging over journalists and threatening their confidential sources. In recent years it was easy to despair that the Justice Department’s aggressive pursuit of reporters’ sources in the name of plugging up “leaks” would forever undermine the freedoms envisioned by Justice Stewart.
On Wednesday, that changed. After a decade of intrusive leak probes, including three at the end of the Trump administration which took away Barbara Starr Records at CNN as well as those of New York Times and Washington Post reporters, Attorney General Merrick Garland issued a new rule banning subpoenas and other types of legal proceedings against the press in all but narrow circumstances.
For the first time, the new policy sets out a pathway of full protection for journalism – where the department has almost entirely given up its discretion to use investigative tools against the press despite being given the power to do so. conferred by the courts. It’s historic.
Under the previous policy, which dates back to 1970federal prosecutors could ask the attorney general for permission to obtain a journalist’s tapes if they asserted that the need for investigation was strong enough. It was a so-called balancing act, pitting First Amendment protections against the interests of prosecutors.
Now, when journalists receive, possess and publish government secrets, prosecutors cannot use subpoenas, court orders or search warrants to obtain their records or compel them to testify. The only exceptions are when failure to do so presents an imminent threat to life or limb or other bona fide emergencies (with a requirement for Attorney General approval), and when journalists are asked to verify publicly reported information . The policy does not contain a catch-all exception for national security information.
Regarding their newsgathering activities, the rule does not provide shelter for journalists who violate the law to obtain a story, and in these cases, journalists cannot expect to be sheltered. government investigations. Nor does it protect a journalist who solicits an illegal act from someone else, which the Ministry would consider a crime.
But at the same time, the rule attempts to address the inevitable tensions between national security and press freedom in two crucial ways. First, when there is a “close or novel“Whether a member of the news media is acting within the scope of newsgathering, that determination is elevated to DOJ leadership. And when there isreal uncertainty” on this issue, the Attorney General must make the call, a key policy check.
Second, the policy guidance on the meaning of newsgathering realistically recognizes that it includes when a journalist”continues» information, even national security information – as part of actively seeking information, not just passively receiving it.
So in the future, forcing journalists to release sensitive information just to identify or confirm sources in routine leak cases would go against Garland’s promise of a fresh start. Thus, the new policy, which is based on a Memorandum 2021, should finally break the repetitive cycle of government overreach, excuses and reform that has characterized the last half-century (and even if policy could be changed under a future attorney general, that sets a firm marker).
From the 1960s, the The CIA illegally monitored journalists to identify the sources, which caused a public outcry. In the early 1970s, contempt Attempts by prosecutors to force journalists to name their sources led to the creation of DOJ’s first media subpoena guidelines. The policy was tightened in 1980. In the mid-2010s, a subpoena telephone recordings from the Associated Press and a controversial search warrant involving a Fox News reporter produced additional changes under Attorney General Eric Holder, Jr.
But these ever-changing levels of protection never worked. While the Holder’s reforms were an improvement, they weren’t enough to stop the trump administration secret espionage in newsrooms. If it had been in place, the Garland policy should have been.
In fact, the department went further than even Judge Stewart did in his dissent by Branzburg vs. Hayes, the 1972 ruling refusing to recognize a First Amendment right for journalists to protect their sources in court. Stewart supported an approach that would allow subpoenas only when strictly necessary and when no alternative exists. His balance test fell into old Justice Department policy and was similar to the one Garland just improved with the new light shields.
If you wonder how this policy affects you, we write during a European war, with Washington on shaky foundations, while pressure on press freedom – and the temptation to drop a leak that challenges administrative orthodoxy – is almost always at its peak. Today, journalists who follow these leads should not fear subpoenas. The new Garland Rule reflects the best version of the United States as a democracy, comfortable enough with freedom to keep the press free.