A bill that would provide greater protections for journalists is currently making its way through Congress. The Protect Reporters from Exploitative State Spying (PRESS) Act (H.R. 4330) would create a federal law shielding journalists from having to divulge confidential information, including information from sources, except in cases where the information relates to an act of terrorism or imminent violence.

“With the PRESS Act closer than ever to becoming law, a federal press shield law is within reach that affords journalists protection from government overreach and abuse of the subpoena power,” said Rep. Jamie Raskin (D-Md.) in a statement after the bill passed the House in September 2022. “I urge our colleagues in the Senate to advance the central, bipartisan mission of protecting a truly free and unmuzzled press — by sending this legislation to the president’s desk.”

Raskin introduced the bill with Reps. John Yarmuth (D-Ky.) and Ted Lieu (D-Calif.). The bill passed the House unanimously and now goes to the Senate. Sen. Ron Wyden (D-Ore.) has introduced a similar bill titled the Protect Reporters from Excessive State Suppression (PRESS) Act (S. 2457). It has yet to be taken up by the Senate Judiciary Committee.

The bills come in response to concerns about whether journalists could face legal trouble for doing their jobs. In 2017, then-Attorney General Jeff Sessions testified before the House Judiciary Committee that he would not commit to not jailing journalists. “Well, I don’t know that I can make a blanket commitment to that effect,” Sessions said as part of his testimony. “But I would say this: We have not taken any aggressive action against the media at this point.

But we have matters that involve the most serious national security issues, that put our country at risk, and we will utilize the authorities that we have, legally and constitutionally, if we have to.” There have also been several instances over the last several years, under both Republican and Democratic presidential administrations, when reporters’ phone records were secretly obtained by the U.S. Justice Department in efforts to try and uncover leaks. There is no federal law governing this issue, so it is up to state legislatures and courts to define reporters’ privilege when it comes to protecting sources.

Currently, 48 states have a type of shield law protecting journalists from having to reveal confidential source information, but those laws vary in terms of how much protection they provide. A previous version of Raskin’s bill — the Free Flow of Information Act — passed the House in 2017, and a similar version of the bill was introduced in the Senate but was not taken up for debate. Media groups and free speech advocates have said that it is increasingly important to get a federal law on the books to combat challenges from politicians and an anti-media sentiment on the right.

“A free and independent press is vital to democracy, and the PRESS Act ensures that journalists maintain editorial independence by protecting their confidential source information,” the News/Media Alliance said in a statement. “Without these protections, journalists are at risk of government intimidation, losing sources and being unable to produce quality news.” Seth Stern, advocacy director for the nonprofit organization Freedom of the Press Foundation, said in a separate statement that the time journalists spend fighting government subpoenas could be better used gathering and disseminating news.

He added that not only are government subpoenas and potential intimidation a waste of time, but they can be intimidating to potential sources as well. “Government intrusions intimidate ordinary citizens as much, if not more, than journalists,” Stern wrote. “There is no telling how many stories have not been told — or have not been told as well as they should have been — because someone with important information to share feared coming forward absent adequate assurance that the government would not unmask them.

Politicians on all sides have spent plenty of time in recent years complaining about the media. This is an opportunity to meaningfully improve it.”

While the U.S. Department of Justice recently adopted a new policy that would limit the federal government’s ability to subpoena journalists’ records, the policy can be changed by the agency at any time. It is also based on guidelines rather than stemming from a statute, making it harder to enforce given that violations of the policy are subject only to internal disciplinary action.

For more background, see the December 2005 issue of Congressional Digest on “Journalistic Privilege.”