Reporter’s privilege can’t end when the reporter dies

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Dear friend of press freedom,

Here are some of the most important stories we’re following from the U.S. and around the world. If you enjoy reading this newsletter, please forward it to friends and family. If someone has forwarded you this newsletter, please subscribe here ([link removed]) .
Screenshot of our petition arguing that the public has a right to see for themselves whether Asheville police targeted journalists for arrest in retaliation for reporting.

Freedom of the Press Foundation (FPF) spearheaded a campaign to secure the release ([link removed]) of body camera footage from the arrests of two Asheville journalists who were attempting to document an eviction of a homeless encampment at a public park.

Our court petition, filed along with ([link removed]) the American Civil Liberties Union of North Carolina and the Committee to Protect Journalists, argues that the public should be allowed to “decide for themselves … whether prosecuting journalists for merely documenting police conducting a newsworthy operation at a public park is a wise use of their money.”

The petition was necessary because North Carolina is one of the only states that does not consider body camera footage a public record.

The journalists, Matilda Bliss and Veronica Coit of the Asheville Blade, were scheduled for trial on Jan. 25. The trial was continued to April 19 after prosecutors attempted to duck First Amendment defenses by merging their trials with non-journalists arrested the same night.

Fortunately, the judge saw through those antics but the repeated delays (the arrests occurred well over a year ago) are offensive under the Sixth Amendment. FPF will continue pushing for prosecutors ([link removed]) to drop the charges.


** Reporter’s privilege must outlive the reporter
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A judge this week questioned whether the Las Vegas Review-Journal can assert reporter’s privilege — the right to refuse to reveal confidential sources — in response to detectives’ efforts to search devices belonging to slain journalist Jeff German ([link removed]) .

It’s a novel question but the answer has to be yes. Otherwise the reporter’s privilege offers little assurance of confidentiality to any news source who might outlive the journalists they work with.

Judges considering when to apply the reporter’s privilege should not lose sight of the underlying objective of the privilege. It is meant not just to keep journalists from having to testify, but to prevent the “chilling effect” that occurs when sources are scared to come forward by the risk that they’ll be outed and lose their jobs or their freedom.

We argue on our blog ([link removed]) that any reporter’s privilege that a newspaper cannot assert after the reporter’s death — or that can be circumvented by seeking the same information from someone other than the reporter — fails to serve that purpose.


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** Sen. Graham should support the PRESS Act
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The PRESS Act – the strongest shield bill we’ve ever seen at the federal level – nearly became law ([link removed]) in December. It would have ended the federal government’s ability to surveil journalists in all but the most emergency situations.

Ultimately, Sen. Chuck Grassley, then the senior Republican on the judiciary committee, would not move it forward out of sympathy for Sen. Tom Cotton and his nonsensical objections ([link removed]) . But this year the senior Republican on the committee is Lindsey Graham, who has himself supported shield legislation ([link removed]) in the past.

We are optimistic that this can be the year the PRESS Act succeeds. Judiciary chair Sen. Dick Durbin is already on board ([link removed]) thanks to FPF’s efforts, but Graham’s support is essential to bipartisan passage. More to come, but for now, we encourage all our readers, especially anyone in South Carolina, to reach out to Graham ([link removed]) and express their support for the PRESS Act.

— Seth Stern, Director of Advocacy


** What we’re reading

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Routine journalism or felony solicitation? Fifth Circuit hears case of jailed reporter ([link removed]) . A Texas citizen journalist was arrested in 2017 ([link removed]) under a state law that makes journalism illegal. That’s not hyperbole. It literally bars soliciting information from a public servant “that has not been made public” to “obtain a benefit.” That means you can’t ask public officials questions if you get paid to do so. She sued and an appellate panel agreed the arrest was so obviously unconstitutional that officials could not claim immunity. But others on the Fifth Circuit see it differently. Now the full court is reconsidering the case and might change its mind. It’s absurd that this is even a question and the federal government should think hard about the message it
sends the states when it prosecutes Julian Assange ([link removed]) and others for routing newsgathering.

The most important Supreme Court precedent for freedom of the press is in jeopardy ([link removed]) . Slate rightly rings the alarm over the growing movement to overrule New York Times v. Sullivan. That’s the 1964 Supreme Court case holding that public figures suing for defamation need to prove defendants knew their statements were false or recklessly disregarded the truth. It allows journalists, for example, to cover heated political campaigns and raise questions about potential corruption and malfeasance without fearing retaliatory lawsuits quibbling over secondary details. It’s especially vital in an era where billionaires with axes to grind fund surrogate plaintiffs ([link removed]) to retaliate against critical media. Repealing it would be disastrous for press freedom.

Wyoming lawmakers once again consider journalist protections ([link removed]) . Wyoming is the last state without any reporter's privilege but it's considering a bill to change that. If the bill passes, the federal government will be a complete outlier on protecting the press from surveillance and retaliation. It's time for the federal government to get in line with the states by finally passing the bipartisan PRESS Act ([link removed]) .
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