Seth Stern: Senate passage of PRESS Act is vital to limit government overreach

Utah’s Sen. Mike Lee has been rightly suspicious of government surveillance and should support this bill.

The U.S. House of Representatives’ unanimous passage of the Protect Reporters from Exploitative State Spying (PRESS) Act in September largely went unnoticed. It shouldn’t have.

The act would block government seizure of records from journalists or their phone and internet providers, and protect journalists from being forced to disclose news sources, in all but the most emergency situations. It is one of the most comprehensive First Amendment safeguards proposed in Congress in modern times.

The protections afforded by the act are essential because a free press is not truly free if the government can commandeer newsrooms to further its whims. Utah’s Supreme Court recognized as much in 2008 when it adopted some of the country’s strongest restrictions on forced disclosures of reporters’ sources.

Now, Utah’s elected officials — specifically, Sen. Mike Lee — have an opportunity to similarly advance constitutional freedoms at the federal level.

As Lee eloquently stated at a recent congressional hearing, “Healthy news industries are, of course, really important in a system of government like ours. In order for the people to have access to their ability to self govern, they have to have access to the facts.”

Strong protections against government intrusions into the newsgathering process are critical to that health.

Lee sits on the Senate Judiciary Committee, chaired by Democratic Sen. Dick Durbin of Illinois. Durbin can “hotline” the act so that it can advance through the committee and receive a Senate vote before Congress adjourns in January. The success of that strategy, however, likely depends on a Republican senator co-sponsoring the bill. Lee, a proponent of limited government who has long opposed excessive state surveillance, should be that senator.

The PRESS Act is not partisan legislation. It passed the House on a bipartisan basis and Republicans from Mike Pence to Lindsey Graham have been strong supporters of similar “shield” legislation in the past.

Every recent presidential administration, Democrat or Republican, has had its share of scandals involving improper intrusions into the affairs of the Fourth Estate. State laws in effect in Utah and elsewhere, while valuable, do not bind federal prosecutors and investigators. They also do not prevent the government from obtaining reporters’ records directly from phone companies, email providers and other third parties in order to identify their sources. The PRESS Act does both.

Lee, like many Republicans, has been critical of the media establishment, but the PRESS Act’s protections are not limited to mainstream outlets. They cover anyone who gathers and publishes news to the public, regardless of political leanings, so that the government cannot deny the act’s protections to its adversaries. The act is particularly vital to alternative outlets without armies of lawyers. It gives upstarts and disruptors breathing room to grow unimpeded by government harassment. Outlets from the New York Times to Project Veritas have been targeted by federal investigators in recent years.

Utahns may have diverse opinions on which media to trust, but we all rely on some media.

From the journalists’ perspective, fighting government subpoenas and seizures occupies time better spent gathering important news. Journalists are not government employees and should not be commanded to drop their important work at the demand of federal investigators.

But government intrusions intimidate ordinary citizens as much, if not more, than journalists. 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. We urge Sen. Lee and, for that matter, all Utahns, to support this historic legislation.

Seth Stern | Director of Advocacy Freedom of the Press Foundation

Seth Stern is the director of advocacy for Freedom of the Press Foundation, a nonprofit organization dedicated to defending the rights of journalists and whistleblowers. Before joining FPF he worked as a First Amendment lawyer and as a reporter and editor.