U.S. Dept. of Justice Plan to Reconsider Subpoena Guidelines Threatens Journalism and the Public’s Right to Know

CONTACT Justin Silverman | 774.244.2365 | justin@nefac.org

The New England First Amendment Coalition on Friday expressed strong concern over plans by the U.S. Department of Justice to revisit internal guidelines intended to protect journalists against federal subpoenas.

Attorney General Jeff Sessions announced in an Aug. 4 press conference a more aggressive effort by the Trump Administration to investigate leaks by government employees. Part of this effort, Sessions said, is to reconsider the guidelines limiting ways journalists are subpoenaed and forced to reveal their sources.

“Those guidelines are in place to help protect journalists and the right of all Americans to know what their government is doing,” said Justin Silverman, NEFAC’s executive director. “Any plan to weaken those protections threatens our ability to gather news and hold elected leaders accountable.”

Revisions to the guidelines were made in 2015 after criticisms by the press over tactics used by the Obama Administration during its own leak investigations. Under then-Attorney General Eric Holder, for example, the Dept. of Justice seized the phone records of The Associated Press and threatened then-New York Times reporter James Risen with prosecution after he refused to reveal a confidential source.

During that time, NEFAC called for a federal shield law to protect journalists and demanded Holder to withdraw the subpoena against Risen, a Stephen Hamblett First Amendment Award recipient. More recently, Vermont enacted a shield law in May to protect journalists in the state from revealing sources to government prosecutors and agencies.

The changes made to the Dept. of Justice guidelines in 2015 limited the circumstances in which a subpoena could be issued to a journalist and provided other First Amendment safeguards for the press.

The plan to reassess those safeguards is particularly concerning for two reasons, said Robert A. Bertsche, a media attorney at Prince Lobel Tye and NEFAC’s treasurer.

“Unfortunately, the Trump Administration has proven itself to be an unreliable reporter of the news, with the result that leaks are increasingly the only reliable sources of information about what the government is up to,” Bertsche said. “Second, this crackdown appears to be politically motivated in response to pressure from a president who, according to The New York Times, has previously told the former FBI director to consider jailing reporters who publish classified information.”

Added Silverman: “The 2015 revisions were the product of prolonged discussions between former Attorney General Holder’s office and a coalition of media entities. To backtrack on those protections now, at a time when the Trump Administration has reduced the flow of official communications to the public, would come at a great cost to media organizations and those that depend on their reporting.”

NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Please make a donation here.

Major Supporters of NEFAC for this year include the Barr Foundation, The Providence Journal Charitable Legacy Fund, The Robertson Foundation, Lois Howe McClure, The Boston Globe and Boston University. Celebration Supporters include The Hartford Courant and the John S. and James L. Knight Foundation.