Despite last-minute press, reporters' source shield faces hard deadline in Senate

WASHINGTON — Prospects for getting a federal press source shield measure enacted this year appear to be waning, even though the bill already sailed through the House and has just one public opponent in the Senate.

Supporters of the bill, which would prevent the federal government from compelling journalists to reveal their sources except when doing so might prevent imminent violence or identify a terrorist, want the Senate to pass it before the end of this congressional session.

“Given that we have both parties telling the public that should the other win [the upcoming elections], the United States will turn into an authoritarian country where there will be crackdowns on speech and crackdowns on the press, both parties should be commonly interested in getting this bill through right away as a safeguard,” said Seth Stern, director of advocacy at Freedom of the Press Foundation. “It’s not a hypothetical: Pretty much every administration has at some point attempted to find out who journalists’ sources were for stories that embarrassed them.”

But time is running out. Lawmakers have now left Washington for a preelection recess, meaning the bill’s last chance this Congress will be during the lame-duck session.

The House passed the bill, known as the PRESS Act and backed by Reps. Kevin Kiley, R-Calif., and Jamie Raskin, D-Md., in January.

The Senate version was led by a bipartisan group — Sens. Ron Wyden, D-Ore., Mike Lee, R-Utah, and Richard J. Durbin, D-Ill. — and Sen. Lindsey Graham, R-S.C. is also a co-sponsor.

“The Republican-controlled House of Representatives has twice passed the PRESS Act on unanimous votes, because protecting journalists from government surveillance is a bipartisan issue,” Wyden said in a recent statement. “That’s why our coalition will keep pushing to put commonsense protections for journalists into black-letter law. I’m confident this bill will pass on an overwhelming bipartisan margin when it eventually comes to a vote.”

While the Biden administration hasn’t said that the president would sign the bill, the Department of Justice under Attorney General Merrick B. Garland adopted similar regulations limiting the DOJ’s power to seize journalists’ records, which it did during Donald Trump’s term in office. But the next attorney general could reverse those rules.

The House passed this bill in the last Congress as well, but it was stymied in the Senate when Sen. Tom Cotton opposed a unanimous consent vote in December 2022. “The so-called PRESS Act … would open a floodgate of leaks damaging to law enforcement and our nation’s security,” Cotton said at the time. To date, no other senators have spoken against the bill in public.

Cotton’s office did not respond to requests for comment.

Even though Senate Judiciary Chairman Durbin and ranking member Graham are both signed on to the current bill, it hasn’t been scheduled for a markup. According to Graham’s office, Cotton’s not the only Republican opposed to advancing the legislation.

“We got a request [Tuesday] at the staff level to run the normal committee approval process on the Republican side and there were multiple objections,” said Taylor Reidy, a Graham spokesperson.

Meanwhile, even though Senate Majority Leader Charles E. Schumer publicly supports the bill, with only five weeks in the lame-duck session, floor time is in short supply. Taking up the bill for debate on the floor could allow Republicans to eat up that precious floor time that Democrats want to spend on judicial confirmations. Schumer’s office did not respond to a request for comment.

The proposal could theoretically hitch a ride on a “must-pass” bill, like fiscal 2025 appropriations legislation. But multiple Republicans opposing the press source shield measure makes that path harder.

“The First Amendment’s guarantee of a free press is fundamental to holding politicians and others in power accountable,” Durbin said in a statement. “Journalists rely on sources to ensure that the public has the full story. I joined my colleagues in introducing the PRESS Act to ensure that journalists have the necessary protections to speak with their sources and do their jobs effectively without undue government interference. And I will continue to work with my colleagues to see this bill advance.”

Reporter privilege, akin to attorney-client or doctor-patient privilege, is recognized in 49 states. In addition to Freedom of the Press Foundation, the legislation is backed by dozens of news organizations and civil rights groups.