Reporters surround Rep. Jamie Raskin (D-MD) as he speaks in the Canon House Office Building on Capitol Hill on Dec. 19, 2022, in Washington, D.C. (Drew Angerer/Getty Images)
Former Vice President Mike Pence and Sen. Ron Wyden (D-OR) disagree about many things. But they both introduced bills to protect reporters and their sources from government surveillance.
One may finally pass.
You might be surprised to learn that in 2005, then-U.S. Rep. Mike Pence (R-IN) introduced the Free Flow of Information Act (H.R. 581). His proposed legislation had the support of 54 bipartisan cosponsors. Its purpose, to provide journalists/reporters protection from punishment in any federal criminal or civil action if they refused to name their confidential news sources, unless “(judicial) authorities meet strict criteria.”
When Sen. Richard Green Lugar (R-IN) brought the bill (S. 340) to the Senate, he reminded legislators:
The Constitution makes very clear that freedom of the press should not be infringed. A cornerstone of our society is the open market of information which can be shared through ever expanding mediums. The media serves as a conduit of information between our governments and communities across the country.
It is important that we ensure reporters certain rights and abilities to seek sources and report appropriate information without fear of intimidation or imprisonment. This includes the right to refuse to reveal confidential sources. Without such protection, many whistleblowers will refuse to step forward and reporters will be disinclined to provide our constituents with the information that they have a right to know.
The bill never passed, but a successor of it may be on the verge of doing so.
The Protect Reporters from Exploitative State Spying Act, H.R. 4250, more commonly referred to as the PRESS Act — a descendant of the Free Flow of Information Act — unanimously passed the House in January 2024. The PRESS Act is necessary to ensure journalists will not have to worry “that under a future repressive administration federal law enforcement agencies might secretly subpoena their emails and phone records even though journalists depend on confidentiality to keep the American public informed,” according to Rep. Jamie Raskin, D-MD.
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Wyden introduced the PRESS Act into the Senate in June 2023 with support from Sens. Mike Lee (R-UT), Lindsey Graham (R-SC), and Richard Durbin (D-IL), but there has been no action since.
Is there any American who doubts that a free, fair, truthful, pluralist and lawfully protected media, holding itself to the highest journalistic standards, is essential to our democracy? Media’s credibility also depends, in large measure, on its independence (actual and perceived). Critically, a free (independent) media serves as both a watchdog and a rampart against possible government malfeasance. Notable historic examples include publication of the Pentagon Papers and Deep Throat’s Watergate revelations.
Journalists rely on various sources to inform their reporting. When freedom of the press is threatened, there is the possibility that potential news sources may be fearful of retaliation and hesitate to share their information without assurances of anonymity. Journalists have an increasingly challenging job given the rise of social media. Moreover, they risk being pressured to reveal confidential news sources, while also risk being sued by a confidential news source for revealing them!
Thus, I support the PRESS Act.
It’s been almost two decades since Pence introduced the Free Flow of Information Act. The U.S. House has passed it. It has bipartisan support in the Senate. Several news outlets — such as the Boston Globe, Dallas Morning News, The Hill, CNN, and others — have expressed strong support for the PRESS Act. The Media and Democracy Project (a nonpartisan, nonprofit) joined more than 80 civil liberties, press freedom, and journalism organizations in a letter to Senate Judiciary Committee leaders expressing strong support, which was also signed by 33 lawyers and law professors.
And, currently, interested citizens are emailing Kadeem Cooper, senior counsel for the Senate Judiciary Committee, at Kadeem_Cooper@judiciary-dem.senate.gov, asking the Committee to schedule S. 2074 for markup in June so it can be sent to the floor for a vote.
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