Journalists in the United States could be one step closer to enjoying better legal protections thanks to two separate bills making their way through Congress.
The legislation — the Protect Reporters from Exploitative State Spying (PRESS) Act and a federal anti-SLAPP (Strategic Lawsuits Against Public Participation) bill — would, respectively, block federal law enforcement from subpoenaing journalist records and protect media against certain lawsuits.
Democratic Representative Jamie Raskin, who sponsored the PRESS Act, described its bipartisan support and passage through the House on a September 19 voice vote as “a triumphant day for press freedom.”
The bill now goes to the Senate, where its passage would provide a federal-level privilege protecting reporters’ records. The bill would also have to be signed by President Joe Biden before becoming law.
The bill comes at a time of increased subpoena requests for journalist records. The U.S. Press Freedom Tracker has documented 155 subpoena and legal orders filed to news organizations since the media freedom coalition started documenting such requests in 2017.
In 2021, the Department of Justice announced a policy to prevent federal prosecutors from seizing journalist information. Under most circumstances, federal authorities are no longer able to seize phone or email records or use third parties to obtain the records of journalists.
The policy came after the Justice Department informed journalists at CNN, The Washington Post and The New York Times that it had secretly obtained records during the administration of former President Donald Trump.
The second proposed bill was introduced in the House of Representatives last month. It seeks to protect media from so-called strategic lawsuits against public participation, or SLAPPs. These are mass lawsuits filed with the intent to intimidate and harass.
The nonprofit Reporters Committee for Freedom of the Press (RCFP) describes SLAPPs as expensive and baseless legal proceedings intended to intimidate and silence critics.
Forcing media outlets to go through a long and resource-draining legal battle sends a message to others considering reporting on similar issues, experts say.
Several states already have their own anti-SLAPP laws, but the proposed bill introduced to the House in September would offer federal-level protections.
In an interview with VOA, Lisa Zycherman, RCFP’s deputy legal director, says the anti-SLAPP bill and the PRESS Act are crucial for journalists in the U.S.
The interview has been edited for length and clarity.
VOA: What is the PRESS Act and why is it important for journalists?
Zycherman: The PRESS Act would give journalists across the country a high degree of protection against government requests for information. It's essentially a federal shield law that would protect journalists from being forced to reveal information about their sources, which is incredibly important and necessary.
VOA: How does the PRESS Act differ from the Department of Justice guidelines on record requests?
Zycherman: The DOJ guidelines are an internal document to advise prosecutors in the department on how and when they can seek subpoenas and information held by journalists. The PRESS Act is federal legislation. It would establish reporter's privilege and shield journalists in the U.S. from being forced to reveal protected information, whereas the [DOJ] guidelines limit the practice of seeking protected information. But they're not guaranteed, and they're not enforceable in court.
VOA: In the U.S., 32 states and the District of Columbia have state-level anti-SLAPP laws. How will a federal level law work to block the practice of filing mass lawsuits?
Zycherman: A federal anti-SLAPP statute would be an extraordinary opportunity to protect the First Amendment rights (constitutional protections guaranteeing freedom of speech and press) of not just journalists, but all speakers and citizens in the United States. It would seek early dismissal of lawsuits intended to stymie their ability to speak out on public issues. It would clarify at the federal level that these kinds of protections can be invoked, even when claims are brought in federal court. State anti-SLAPP laws in some federal circuits are limited to state court and would not be accepted as a defense in federal court.
VOA: What is the purpose of filing SLAPPs or filing mass lawsuits against media or critics?
Zycherman: Generally, to bring a claim that would chill or silence speakers from criticizing the plaintiff in that lawsuit. And they're used against journalists to squelch reporting on issues of incredibly high public concern. I don't really have metrics to give a definitive answer [on whether more lawsuits are being filed]. I would say that it's a notable uptick over the past five to 10 years in suits brought by public officials, specifically libel suits, to silence their critics and allege that statements made about them are false or defamatory.
VOA: How will the anti-SLAPP legislation work to protect media from mass lawsuits and ensure legitimate cases of defamation can be heard?
Zycherman: One of the key features of any anti-SLAPP law, either in the states or the legislation introduced in Congress, is a provision that would afford a defendant who prevails for early dismissal of a claim to seek their attorney fees. And this is key, because this sort of substantive opportunity to seek fees can deter would-be plaintiffs from bringing claims because of the risk that they will have to pay the fees of the party that they're suing. It also gives a SLAPP defendant the opportunity to cover their fees in what is otherwise going to be costly litigation, which frankly is oftentimes the very point of a SLAPP lawsuit.
VOA: What happens next with the proposed laws?
Zycherman: The PRESS Act has passed the House; the anti-SLAPP bill has only just been introduced in the House.
My organization, which works to support the interests of news gatherers and journalists in the U.S., would love to see each of these bills advanced in Congress to further the rights afforded to journalists in our country.