Gag orders that the U.S. Justice Department imposed on lawyers representing two prominent news outlets fighting subpoena requests have raised concerns about First Amendment protections.
The broadcaster CNN reported this week that its top lawyer was subjected to a gag order in 2020, when the Justice Department under then-Attorney General William Barr sought the email records of a national security correspondent.
Under it, their lawyer said he was prevented from knowing what the investigation was about, what reporting it related to, and from speaking with the reporter so the broadcaster could narrow the impact on its coverage.
The New York Times was placed under a similar order in March of this year, at the same time a few top executives were informed of an ongoing government effort to secure the email logs of four reporters, the Times reported last week. The newspaper said even its executive editor was unaware of the legal battle — which began in the final weeks of the Trump administration — until the gag order was lifted last week.
The outlets, along with The Washington Post, all have reported in recent weeks on efforts by the Justice Department to seize journalist records as part of investigations into leaks of material. The Times reported that the department sought the reporters’ email logs in an attempt to identify their sources.
Media experts and lawyers have condemned the Justice Department’s actions.
“It’s hard to believe that in the year 2021 — at [a] time where we have made so many strides in this country — that the news media is still plagued by attempts at infringement on basic press freedom by our own government,” Lisa Matthews, president of the National Press Club, told VOA in an email.
Theodore Boutrous, a partner at Gibson, Dunn & Crutcher who represented The New York Times, told VOA the gag order was “unprecedented.”
“When there's a leak investigation, usually everybody knows about it,” Boutrous said.
The lawyer, who has been honored for his work representing high-profile media cases, including defending CNN correspondent Jim Acosta, after his White House credentials were revoked, said the approach by the Justice Department “is highly offensive to the First Amendment.”
Gibson, Dunn & Crutcher represented USAGM executives in 2020 when they filed a complaint against then-CEO Michael Pack. USAGM is the parent agency to VOA.
The Justice Department declined to respond to VOA’s request to comment.
Under Justice Department guidelines, the attorney general must sign off on a subpoena for reporter records and any seizures of news records should be treated as "extraordinary measures, not standard investigatory practices."
The guidelines state that a journalist or outlet must be notified unless "such notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm."
In the cases revealed in recent weeks, none of the outlets was informed of the subpoena requests, and two were subject to gag orders.
Though a settlement was reached in the CNN case in January, executives who knew about the months-long battle for tens of thousands of emails were relieved of the gag order only this week.
News outlets affected by the latest subpoena requests were told the dates of the sought-after records, but not what reporting was being investigated.
In the Washington Post case, the paper reported last month that it had just learned that the Justice Department obtained phone records from three national security reporters, covering a period from April to July 2017.
The Post cited a Justice Department spokesperson as saying that the journalists were not the target of the investigation.
Boutros said that with The New York Times, “everybody knew” the Justice Department was looking into a leak investigation related to former FBI director James Comey. An internal investigation found Comey leaked information to the media but the Justice Department in 2019 announced the former director would not be prosecuted.
CNN reported that in July 2020, Barr’s Justice Department fought for Pentagon correspondent Barbara Starr’s email records from 2017, but that the organization’s general counsel was unable to discuss the matter with anyone.
The additional imposition of a gag order has added to concerns by experts, who point out that it prevented reporters from knowing for months that lawyers were fighting to protect their emails.
“The decision to pursue gag orders is an extraordinary measure. The consequences are extensive and the practice really does run counter to the transparency the federal court system is built on,” Matthews, of the National Press Club, said.
Some of the journalists affected have commented on their cases on social media.
“Federal judge says pursuit of my records and CNN ‘unanchored in facts’ and I was not allowed to even be aware due to gag order,” Starr wrote on Twitter on Wednesday. “#FirstAmendment today, tomorrow and always,” she added.
Starr’s colleagues at CNN expressed similar sentiments.
“The words ‘gag order’ don't belong in the same sentence as ‘news organization’,” the network’s chief media correspondent Brian Stelter wrote on Twitter.
Mathews said the Justice Department’s actions are damaging to journalism.
“It hurts source relationships for reporters, not to mention our democracy. The recent disclosures that the Justice Department sought and obtained secret court orders to collect email and phone records of reporters at CNN and The New York Times, based only on the representations made by the government, are alarming and undercut the foundation of openness within the justice system.”
The Biden administration said it would forbid the Justice Department from seizing reporter records in attempts to identify their sources—a stark change from previous administrations of both parties.
Media rights groups say that leak prosecutions ramped up under the Obama presidency, a trend that continued under the Trump administration.
While many welcome Biden’s assertion that this practice would stop in his administration, free speech advocates have called for more concrete measures.
Arguing that the increased prosecutions by recent administrations were “chilling investigative reporting,” the Freedom of Press Foundation warned “the devil is—of course—in the details.”
“The Justice Department must now write this categorical bar of journalist surveillance into its official ‘media guidelines,’ and Congress should also immediately enshrine the rules into law to ensure no administration can abuse its power again,” the foundation’s executive director, Trevor Timm, said in a June statement. The nonprofit defends public interest journalism.
“If they follow through, this commendable and vitally important decision by the Biden administration has the potential to stem the tide of more than 10 years of erosion of press freedom,” Timm added.