By The Editorial Board
Governments often chafe at the presence of a free press. The reason is simple: A robust and independent news media keeps a sharp eye on government and, when necessary, exposes abuse of power, corruption, incompetence and waste.
Exposing such things depends, of course, not just on journalists but also on brave officials willing to sound the alarm about government misconduct. Even when their disclosures are clearly in the public interest, these whistleblowers — or sources, in the journalistic parlance — often hide their identities to avoid punishment or retaliation. In this way, bringing essential information to the public often depends on protecting the identity of the person sharing it.
Safeguarding the anonymity of reporters’ sources is essential in the exercise of this critical role, a need that several federal courts have found is implicit in the First Amendment. It has been recognized by governments or courts in 49 states and the District of Columbia as a form of protection for journalists and news outlets against unfair or overbearing efforts by government to ferret out their sources, punish whistleblowers and scare off others who might consider speaking up about wrongdoing.
There is nothing of the sort, however, on the federal level, where the need is arguably greatest, in part because of the rapid evolution of electronic snooping and the fallout of sharply polarized politics. Having a federal law on the books would provide a higher level of protection than the recognition now provided by most federal circuit courts.
That could change before the year is out if the Senate Judiciary Committee releases a strong bipartisan bill that has already sailed unopposed twice, in this session and the last, through the House of Representatives. Called the Protect Reporters From Exploitative State Spying Act, or PRESS Act, it would shield reporters from court-ordered disclosure of their sources of information, except in the rare cases in which disclosure is necessary to prevent an act of terrorism or imminent violence.
The New York Times is clearly not a disinterested bystander on this issue. It is this board’s conviction, shared by most independent news media, that governmental restrictions on freedoms of the press are a certain route to abuse of power and authoritarianism. The Times and its reporters have been involved in numerous legal battles to ensure that the press remains free and independent.
But this is not purely a matter of press versus government. This law would effectively protect those who serve the public interest by blowing the whistle on government wrongdoing. And it would help protect all Americans, who deserve nothing less than the full truth about the officials they elect and the government they fund.
The nation’s founders saw freedom of expression as a critical component of democracy. George Washington’s formulation is almost biblical: “The freedom of speech may be taken away, and dumb and silent we may be led, like sheep, to the slaughter.”
Today, every member of the House, some themselves targets of sharp investigative reporting or frequent critics of the news media, has supported swift passage of the PRESS bill. There are three Republican sponsors of the bill in the Senate, but it is opposed by a small clutch of conservative senators — most notably Tom Cotton, a hard-right Republican from Arkansas — attempting to keep the legislation bottled up in the Judiciary Committee.
Cotton’s argument is that the PRESS Act would open a floodgate to leaks that would undermine law enforcement and national security. That argument, however, is based not on evidence but on a visceral hostility to the news media, which he has made clear he views largely as an ideological foe. Too many reporters, he said in a statement, are “little more than left-wing activists who are, at best, ambivalent about America and who are cavalier about our security and the truth.”
Leaks and whistleblowers have often proved essential to the public’s understanding of major events and the workings of government at all levels. There is nothing ideological about their usefulness; they can be just as effective in exposing the unwelcome truth about Democratic administrations as Republican ones. By protecting reporters from having to reveal their sources, the bill would ideally encourage more whistleblowers to help shine a light on government abuses.
Administrations of both parties — and especially those of Barack Obama and Donald Trump — have tried varying means to block leaks that would be in the public interest and to pressure reporters into revealing their sources. Attorney General Merrick Garland ended these abuses for the duration of President Joe Biden’s administration, announcing that the Justice Department would no longer dig through the phone records of reporters to identify sources for leak investigations. Without a law in place, though, a future administration could easily reinstate that practice.
Nothing in the PRESS Act would prevent the government from prosecuting leakers, and the government has vast powers to monitor its officials without demanding that reporters divulge the information they seek.
There is no evidence that states with press shield laws have been hamstrung in combating crime, and the federal government has identified and prosecuted major leakers without information coerced from reporters. The Obama administration spent years trying to force reporter James Risen, formerly of the Times, to identify his source for a book in which he detailed a failed CIA plan to undermine Iran’s nuclear program. Though required by a subpoena to testify, Risen steadfastly refused to identify his source and was not compelled to do so. The leaker was arrested and imprisoned anyway.
The PRESS Act would not protect journalists who violate laws to acquire information, and the exceptions for national security are broad. But hostility toward the news media in the polarized politics of the day makes it more urgent than ever to ensure that reporters can continue to pursue their essential role as watchdogs over the government without the threat of court-ordered demands for their sources and information. The PRESS Act is needed now.
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