The House Judiciary Committee recently passed – on a unanimous and bipartisan basis – the Protect Reporters from Exploitive State Spying (PRESS) Act. This measure would establish a federal statutory privilege that would shield journalists from being compelled to reveal confidential sources and would protect those sources from federal law enforcement subpoenas.
This is popular legislation – sure to pass by a wide margin should it come to the House floor. Most Members of Congress, like the voters who elected them, understand that the ability of journalists to grant confidentiality to whistleblowers and other sources enables the exposure of hidden abuses by the powerful. This practice, well in place since the Pentagon Papers, refreshes democracy, stimulating reform, debate and improvement.
This practice sounds great to most everyone, until it is one’s own ox that gets gored by someone whose politics you dislike.
Consider Project Veritas. When we criticized the FBI for its lengthy, intrusive violation of Project Veritas’ notes, emails, calls, and confiscation of their digital devices, some of our liberal friends raised an eyebrow. Project Veritas exists at the intersection of conservative activism and journalism, prompting liberal targets into admitting things in private they’d never say in public.
Many liberals continue to argue Project Veritas should be investigated in the case of the missing diary of President Biden’s daughter, though the group insists it reported the diary to the authorities.
Now, it is the turn of many conservatives to demand a strenuous investigation into the leaking of Justice Samuel Alito’s draft opinion overturning Roe v. Wade. For the record, we agree that the Marshal of the Supreme Court should investigate and expose the person who leaked this opinion to Politico. That was a vile act, one that undermines the Court’s professional culture of civility. The leaker deserves to be punished.
The danger in this case is that the Court’s urgent need to find the leaker, and the anger of many powerful conservatives, could persuade the FBI it has carte blanche to secretly examine phone logs and old emails traded by journalists Josh Gerstein and Alexander Ward with their source.
Using such a subpoena might expose a wrongdoer working in the Supreme Court. It would also have the effect of degrading the ability of journalists in the future to protect their sources.
Admittedly, there is a thin and uncomfortable line between trying to catch a leaker on the administrative side, while protecting that same person when he or she becomes a source on the journalistic side. It is also a difficult line to walk when you despise the politics of the side that benefits from the leak. But it is a line that must be respected for the sake of us all, on all sides of every debate.
“Our liberty depends on the freedom of the press,” Thomas Jefferson said, “and that cannot be limited without being lost.”
The surest way to ensure we don’t have to continually face these temptations to intrude into the freedom of journalists is to pass the PRESS Act.