RICHMOND — Journalists could have more federal protections if a reintroduced shield law bill can pass Congress this term.
The PRESS Act would protect journalists, including citizen journalists, from federal court-ordered disclosure of information about a source. There are a handful of limitations such as information that could prevent an act of terrorism against the U.S., according to the bill.
The bill would also prevent important data on a reporter’s personal device from being seized without notice. The same would apply to data held by a covered service provider like a telecommunications company.
Both the House and Senate versions of the bill have bipartisan support. U.S. Rep. Ben Cline, R-Va, is a cosponsor of the current iteration of the House bill. The House passed the original resolution introduced in 2021, but it failed to advance from a Senate committee. The Senate bill also did not advance last term.
Virginia is one of 10 states without a formal shield law, according to the legal group Reporters Committee for Freedom of the Press. Currently, Virginia courts recognize a reporter’s privilege, meaning the right not to be compelled to testify or disclose sources and information in court. The proposed federal law may provide a model or incentive for a shield law at the state level, according to Mechelle Hankerson, president of the Society of Professional Journalists Virginia Pro Chapter.
“We’re sort of at the mercy of the courts’ whims and interpretations of situations and the First Amendment when we don’t have a shield law,” Hankerson said. “Even though the courts have ruled favorably for us as journalists, there’s no guarantee that that will continue.”
The national SPJ organization has advocated for a federal shield law for the past two decades, Hankerson said. One of the reasons it has been a slow process at both the federal and state levels is because many courts have ruled in favor of protecting journalists, which obscures the need for shield laws.
Del. Danica Roem, D-Prince William, attempted three times to establish a state shield law. A version that passed in 2020 was amended to apply protections in a criminal proceeding. The bill has specific parameters for the definition of a working journalist that is not found in the PRESS Act, such as that they must belong to a news organization.
“I don’t think that there is anything on the horizon or that has happened super recently in Virginia that makes us feel like we’re in danger if we don’t get a shield law on the books,” Hankerson said. “But it is something, the longer it’s not there, the more vulnerable we are as journalists.”
Protections given by shield laws such as the PRESS Act allow journalists and news organizations to establish trusted relationships with sources, according to Lin Weeks, a senior staff attorney at the Reporters Committee for Freedom of the Press.
The organization provides free counsel and legal resources to journalists to protect First Amendment freedoms and newsgathering rights, according to its website.
“If the government for courts or civil litigants can compel journalists to reveal the subjects of those conversations of their unpublished work product, that undermines journalists’ ability to do their job,” Weeks said.
The PRESS Act would codify some of the guardrails the Department of Justice has in place through its updated news media guidelines, which limits access to journalists’ records.
“With something like the DOJ guidelines, those can be changed without a legislative vote from administration to administration,” Weeks said. “Whereas, the PRESS Act would last through multiple administrations.”
The bill shields both professional and citizen journalists from being forced to disclose their sources through broadly defining a journalist to include any person who regularly gathers or records information with the intention of public dissemination.
Genelle Belmas holds a doctorate in mass communication and is a professor of media law at the University of Kansas. A broad definition is a good thing, Belmas said. Any individual who gathers and organizes information to disseminate it to the public should be protected in the same way as a journalist with a major or local news organization.
“The bigger question, as some people have suggested, is: ‘Are you committing acts of journalism?’” Belmas said.
The First Amendment doesn’t make those distinctions, she said.
A number of trade organizations have endorsed the bill, including the News/Media Alliance, Radio Television Digital News Association and the National Association of Broadcasters. Two international journalism educator organizations recently announced support.
The Association for Education in Journalism and Mass Communication and the Association of Schools of Journalism and Mass Communication stated the bill “empowers the media to play its essential role as a watchdog holding our government accountable.”
AEJMC and ASJMC announced to its members that they plan to lobby in support of the bill.
Capital News Service is a program of Virginia Commonwealth University’s Robertson School of Media and Culture. Students in the program provide state government coverage for a variety of media outlets in Virginia.