Legal Alert

Congress Moves to Protect Journalists from Secret Subpoenas

by Charles D. Tobin and Lynn Oberlander
July 6, 2021

Following revelations about secret Trump Administration subpoenas for journalists’ phone and email records, Congress has introduced a bill to curb the government’s power to investigate the news media.

The PRESS Act – which stands for “Protect Reporters from Exploitative State Spying” in the House version –has been introduced in both houses of Congress and would limit all federal agencies from compelling the disclosure of  journalists’ confidential sources and material obtained during newsgathering. The bills contain narrow exceptions for terrorism investigations or where necessary to prevent a threat of imminent violence, significant injury, or death.

The bill’s protections also would extend to journalists’ service providers, such as email, telephone, and cloud computing companies, unless a court finds by a preponderance of the evidence “that there is a reasonable threat of imminent violence.” The bill also requires that the government provide notice to the journalist and an opportunity to be heard–unless it can establish clear and convincing evidence that “notice would pose a clear and substantial threat to the integrity of a criminal investigation, or would present an imminent risk of death or serious harm”before the testimony or document is compelled. Finally, the bill provides that any compelled disclosure should be narrowly tailored to avoid production of non-related matters.

The PRESS Act would not apply to civil defamation claims or prevent the government from investigating a journalist or organization who is: suspected of committing a crime; a witness to a crime unrelated to engaging in journalism; suspected of being an agent of a foreign power; or connected to a terrorist organization.

Congress introduced the PRESS Act the same week as testimony from Ballard Spahr attorney Lynn Oberlander before the House Judiciary Committee Hearing. Ms. Oberlander, along with other experts, testified about the need for enhanced legal protections for journalists in the wake of the Trump Administration’s subpoenas to telephone and computer companies in investigations to uncover the identities of government whistleblowers.

Previous efforts at a federal “shield law” for journalists were unsuccessful in 2007 and 2017, despite passage of a bill by the House in 2007. That House bill was sponsored by then-Republican Congressman Mike Pence. The bipartisan recognition of the problem at the recent House hearing may signal better chances for success with the PRESS Act.

Ballard Spahr's Media and Entertainment Law attorneys represent clients across platforms and industries in navigating their most challenging issues—during newsgathering, the editing process, and in court.

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