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Lawmakers seek redo on federal freedom of the press protections

The Justice Department during the Trump administration had seized phone records from reporters

Legislation from Sen. Ron Wyden, D-Ore., and others would prevent the government from obtaining reporters' communication records.
Legislation from Sen. Ron Wyden, D-Ore., and others would prevent the government from obtaining reporters' communication records. (Bill Clark/CQ Roll Call file photo)

A bipartisan group of senators and House members reintroduced legislation Wednesday that would prohibit the government from seeking confidential information and sources from reporters. 

The measure is aimed at strengthening the freedom of the press by protecting journalists from government efforts to compel them to disclose the identities of their sources, according to Sens. Ron Wyden, D-Ore., Mike Lee, R-Utah, and Richard J. Durbin, D-Ill., who are leading the Senate bill, and Reps. Jamie Raskin, D-Md., and Kevin Kiley, R-Calif., who introduced the House companion.

First introduced in 2022, the legislation came on the heels of revelations that the Department of Justice under former President Donald Trump had seized records from reporters at outlets including CNN, the Washington Post and the New York Times.

“Spying on reporters to learn the identity of their sources is a finger in the eye of the First Amendment,” Wyden said in a statement Wednesday. “Unnecessary surveillance of journalists makes it harder to bring waste, fraud and abuse to light, by scaring off sources and reporters who are essential to a well-functioning democracy.”

“As acknowledged by America’s founders, the freedom of the press to report on and disseminate information is critical to our republic,” Kiley said in a statement he and Raskin released. “Our bipartisan legislation further codifies these First Amendment principles into law and will mitigate infringement upon the Constitution by the federal government.”

A nearly identical measure introduced in the 117th Congress unanimously passed the House — with all Democratic cosponsors — but was stymied in the Senate by Sen. Tom Cotton, R-Ark., who argued it “would open a floodgate of leaks damaging to law enforcement and our nation’s security.”

A spokesperson for Cotton said his stance on the proposal has not changed.

In a December floor speech, Cotton cited the press’ history of publishing sensitive information that concerns national security, including the publication of the Pentagon Papers during the Vietnam War and stories about the country’s efforts to track down terrorists during the wars in Iraq and Afghanistan. 

The bill would “immunize journalists and leakers alike from scrutiny and consequences for their actions,” according to Cotton, who blocked a unanimous consent vote on the bill in December. Subsequent efforts to fold it into an end-of-year spending package ultimately fell short. 

In addition to protecting reporters from subpoenas, it would prevent federal law enforcement from accessing protected information or sources via third-party computing or communications companies. It also would require the federal government to provide journalists the opportunity to respond to demands for records, information or other communications.

Forty-eight states and Washington D.C. have some form of shield law, giving journalists the right to refuse to sources or information obtained during news gathering, according to a statement from the senators. Those state laws do not apply to investigations by federal entities, like the Justice Department, which adopted a rule in 2022 barring department employees from secretly seeking records from journalists in most circumstances.

There are no current legal restrictions preventing the government from secretly obtaining a reporter’s records directly from phone companies, email providers and other third-parties, according to the statement.

“Not only is this legislation imperative to shield journalists from unnecessary government surveillance, but it is also necessary to protect the public’s right to access information, hold their elected officials accountable, and actively participate in representative government,” Lee said in the statement. “We must seize this opportunity and ensure that the Fourth Estate remains an indomitable force in its quest for truth.”

“Our Constitution provides that no law shall abridge the freedom of the press and inspires us to protect journalists against government overreach and abuse of the subpoena power,” Raskin said in his statement.

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