Press freedom in the United States just got its biggest boost in years with the Department of Justice’s new policy limiting its own power to seize records and notes from journalists.
After decades in which federal prosecutors took steps to try to unmask confidential sources who speak to reporters, Attorney General Merrick Garland on Monday largely removed that threat and enhanced the free flow of information to the public. It’s not an overstatement to say that the new rule will increase transparency about the government’s own workings, rather than allow them to be cloaked in secrecy.
When sources fear that their confidences may be compromised by law enforcement — even if actual seizures of records are relatively rare — they may decline to come forward, leaving the public in the dark about vital issues. That’s why the new rule, which replaced a policy that was more favorable to the purposes of law enforcement, is so important to the press and the public.
Nonetheless, uncertainty hangs over the new policy: It is an internal rule, and it can be changed under any subsequent attorney general. With the country’s political direction up for grabs in 2022 and 2024, it is time for Congress to enhance the public’s right to know by turning the Justice Department rule into federal law.
Journalists today already face an array of legal, political and operational challenges, among them: preserving the First Amendment protections from libel suits established in The New York Times Company v. Sullivan, but recently questioned by two Supreme Court justices; retaining the ability to obtain public records and attend trials and public meetings in the face of secrecy at all levels of government; and defending against violent attack in the streets and toxic harassment on social media.
That’s partly why the new policy is so welcome. Moreover, that the Justice Department has committed not to seek reporters’ communications, notes, electronic records or other information related to news-gathering, including in national security leak cases, is significant. The policy has just a few clear and narrow exceptions, as when a reporter is engaged in ordinary criminal activity, such as insider trading. The rule is an extraordinary exercise in self-restraint: The Justice Department has restricted itself far more than federal courts have when it comes to shielding reporters’ records.
It may not seem obvious that this restraint is in the public interest, given that the news media is beset by criticism, both fair and unfair, for its coverage of everything from the Trump presidency to climate change to Covid-19 vaccines. Yet the press’s ability to report robustly on public affairs, without risking the confidentiality of its sources, enables it to play its essential role of uncovering governmental wrongdoing and providing other useful information to voters.
The disclosure of the Pentagon Papers, for example, fostered a healthy skepticism of the government’s preferred narrative in wartime. In Watergate, diligent reporting, often based on secret government sources, helped topple a president who had lied to the public about criminal activity in service of his political fortunes. And the list goes on: warrantless surveillance by the National Security Agency, C.I.A. “black site” prisons, internal protocols for “targeted killings” using drones. All were presented for public debate because of confidentially sourced news-gathering.
Importantly, the new policy doesn’t cover national security reporting alone. It would apply, for instance, to proceedings like the BALCO case, in which the government tried to unmask how two journalists learned about grand jury testimony on the use of performance-enhancing drugs in professional sports. Both reporters were facing jail for protecting their sources before the leaker’s identity was revealed. The new rules also would shield journalists over recent, explosive reporting on tax loopholes for the wealthy, coverage that has prompted an important public debate and that was based, in part, on leaked I.R.S. records.
The Justice Department’s urgency to elevate the protections was spurred by recent events: In May and June, the department notified CNN, The New York Times and The Washington Post that the Trump administration had authorized the secret seizure of eight reporters’ phone and email logs as part of sweeping national security leaks investigations.
Outcry was swift, with President Biden himself calling the practice “simply, simply wrong.” The Justice Department stated that it had adhered to its policy on obtaining press records and acknowledged that these efforts had spilled into the new administration before asserting, with Mr. Garland leading the charge, that the policy simply needed to be changed.
Now we need to take the next step: legislation. In the absence of a law that enshrines the Justice Department’s policy, the courts can’t be counted on to help.
It’s true that some federal judges have granted journalists legal protection from forced testimony — a “shield” that gives way only when the information sought is truly necessary and unavailable from nonmedia sources. But the limits of even these modest protections have become more apparent in the last two decades as the number of leak investigations has grown. Key appellate court rulings went against the journalists Judith Miller in 2005 and James Risen in 2013. (Ms. Miller spent 85 days in jail for contempt of court for resisting a judge’s order.) And while most states have laws protecting media sources in state courts, Congress has never passed a federal shield statute.
The new Justice Department rule marks the latest chapter in a 50-year struggle between the press and the federal government over protection for journalists’ sources. If Congress acts promptly, the Justice Department policy, rather than just a temporary fix, can become a durable part of our nation’s core press freedoms.
Stephen J. Adler, who recently retired as editor in chief of Reuters, is chairman of the Reporters Committee for Freedom of the Press, where Bruce D. Brown is the executive director.
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