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Freedom of the Press Extended by Latest Department of Justice Policy: The Legal Ins and Outs

AG Garland Announce Litigation To Protect Access To Reproductive Healthcare

U.S. Attorney Merrick Garland attends a news conference at the U.S. Department of Justice Aug. 2, 2022 in Washington, D.C.

Famed writer and political commentator Walter Kippmann once said: “There can be no higher law in journalism than to tell the truth and to shame the devil.” That is a sentiment that elicits belief from many reporters, who understand the way they need to move through the nuances of the law in order to do their jobs. In fact, the professions of journalism and law intersect much more often than people would believe, and that was made especially clear just a few weeks ago. In late October, the Justice Department formally banned the use of subpoenas, warrants, or court orders to uncover confidential sources in leak investigations by reporters. Now fully shaped from a 2021 policy from Attorney General Merrick B. Garland, it is no longer permissible to use legal enforcement tactics to seek reporters’ communication records, demand their notes, or pursue their testimony to determine where they are getting their information from when conducting their work, particularly if that includes leaks on government tactics.

While many members of the press are heralding this new policy change, some in other industries are wondering what exactly brought it on, and what it will mean for journalists, lawmakers, and government officials moving forward?

Lay of the Land & the Law

It is critical to understand both what this policy is specifically banning, as well as its exceptions (as is often the case in law, every rule does have an exception). On July 19, 2021, Garland issued a policy memorandum which prohibited prosecutors from trying to get a hold of phone records, emails, and other communications obtained from “members of the news media acting within the scope of newsgathering activities.” The policy further clarified that prosecutors could not seek to obtain reporters’ records, notes, or communications just because those journalists were publishing or “leaking” classified information. The policy was finalized after the Justice Department held meetings with numerous media executives, sought consultation from press freedom advocates, and Garland met with representatives from entities such as CNN, NBC, and The New Yorker, to name a few. On October 26, 2022, Garland made the policy official when he announced that revisions would be made to the Justice Department’s regulations, which would codify the policy originally announced in his July 19, 2021 memorandum.

The policy is not without its limitations, however, as the protections are not afforded to journalists who are the target of criminal investigations (who can have their records not connected to newsgathering activities seized), nor are they extended to any person who is a foreign government agency, a terrorist organization member, or if their life is at immediate risk of death or serious bodily harm.

History Leading Up to Policy

While it took a little over a year for the Justice Department to formalize Garland’s policy into its regulations, concerns regarding targets against journalists doing their jobs have been brewing for quite a while.  For years, the Justice Department heavily refrained from interfering with journalists’ reporting tactics, sources, or works. Yet, that apparently began to change during the second term of the Bush administration in the early to mid 2000s, with the Department trying to “investigate and prosecute leaks of national security secrets.” With technology, social media, and electronic communications significantly advancing through the years, this type of tracking even reportedly continued through the country’s Barack Obama and Donald Trump eras.

By late 2020, reports and court documents surfaced showing that during the last legs of William Barr’s tenure as Attorney General in the Trump administration, the Justice Department filed a court order to obtain records of three reporters from The Washington Post to uncover the source of classified leaks that were made to the media. Once the Biden administration was fully ushered in by January 2021, Garland began focusing on setting forth his policy, meeting with top media executives and federal prosecutors alike to gain valuable input from both sides of the issue. After he published his memorandum revising the Justice Department’s then policy regarding its legal process of obtaining information from the media in July 2021, he asked the Deputy Attorney General Lisa O. Monaco to “undertake a review to further explain, develop, and codify” those protections. This review was completed a year later and by October 2022, deputy Attorney General Monaco indicated the policy was “the result of a rigorous, year-long review process informed by multiple perspectives,” citing to the revised policy as now published in the Code of Federal Regulations under 28 C.F.R. § 50.10.

Benefits & Concerns

Immediately when Attorney General Garland issued his July 19, 2021 policy, many members of the press praised this as a step forward, as it ensured protections to them and their publishers, companies, and bosses. Garland himself offered this as a main driving point behind the change, in that journalists would now be afforded wider ability to perform their jobs without fear of prosecution, stating: “the new regulations are intended to provide enhanced protection to members of the news media from certain law enforcement tools and actions that might unreasonably impair news gathering.” Another benefit he discussed was preserving the “free and independent press” which he cited as vital to the functioning of democracy, as journalists through the new policy would undoubtedly feel more free to report on matters of public interest, such as government affairs and discussions between politicians.

In July 2021, it was revealed that the Justice Department, during the Trump administration, sought to find out who informed reporters about classified details related to several stories, including conversations between then senior Trump advisor Jared Kushner and Russian ambassador to the U.S. Sergey Kislyak and “how the Obama administration handled Russian interference in the 2016 US election.” Garland’s policy will now help to put an end to such governmental inquiries into journalists’ sources and reporting, enabling them to investigate their stories and speak to sources without fear of incrimination.

Thirdly, many have long viewed journalism as a tool to shine light on injustice, and through these new regulations, industry professionals believe reporters will be better equipped to speak truth to power. Jameel Jaffer, director of the Knight First Amendment Institute at Columbia University, lauded the policy as an important step forward, remarking in 2021: “This will help ensure that journalists can do the work we need them to do — shine a light on government conduct, inform public debate and hold the powerful accountable — no matter which party is in control of the executive branch.”

Despite all of the praise in this advancement of reporters’ rights, some concerns and even confusion regarding the policy still remain. Specifically, several individuals have remarked that the “new policy includes plenty of vague language” which would still enable “eager prosecutors to go after reporters’ sources.” Another concern is that the “policy lacks the force of law,” and is susceptible to change by the next attorney general who takes over, which has prompted industry insiders such as The New York Times publisher A.G. Sulzberger to call for actions to implement these regulations in a more finite, wider way, stating: “We encourage Congress to enact a federal shield law to help ensure that these reforms are lasting.”

Finally, even Garland himself admitted in his July 2021 memorandum that the U.S. does also have a significant interest in “protecting national security information against unauthorized disclosure.” Some believe that the policy would implement obstacles for prosecutors or government officials who are trying to validate or verify the sources of information from media coverage or articles, particularly ones regarding matters of national interest or the safety of the American public. Garland himself deemed this push and pull between the protection of journalists and conservation of sensitive or classified information as a “balancing test,” but emphasized the ultimate goal is to “protect members of the news media in a manner that will be enduring.”

Looking Ahead

The free press has been a critical part of pursuing American ideals such as democracy, justice, and equality, and many view Garland’s new policy as playing a major role in pushing those forward. While many reporters and members of the media now welcome and celebrate this new change, others are still holding out hope that it will still be upheld should a new presidential administration take over.

[Image via Drew Angerer/Getty Images]

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