It wasn’t just The New York Times, The Washington Post and CNN that officials of the Trump and Biden administrations were gunning for. It was every American who wants information delivered by journalists who are determined to inform their readers, including about facts that public officials don’t want them to know.
But what happened to those news organizations – especially The Times – raised the stakes. It unequivocally makes the case that the country needs a federal shield law that understands and respects the role of a free press, even – or maybe especially – when it discomfits public officials.
While beneficiaries of such a law would include news organizations and the reporters who dig for information, its primary purpose is to serve Americans who depend upon reliable news that goes below the surface and, with that, the needs of a government that is supposed to be of, by and for the people.
Recent disclosures have revealed that the Trump administration acquired the phone records of three reporters at The Washington Post and the phone and email records of a CNN reporter. That was a troubling enough intrusion on the First Amendment, but the Machiavellian attack on The New York Times demonstrated the depths that ignorant or indifferent officials are willing to plumb.
In the case of The Times, not only did the Trump administration seek to get its hands on the email records of four reporters, but in March – two months into the Biden administration – the Justice Department obtained a gag order that barred the newspaper’s leadership from publicizing it. The order prevented Times executives from disclosing the government’s efforts even to the paper’s executive editor, Dean Baquet, and other newsroom leaders.
A federal court recently rescinded that order, which the Biden White House has disavowed, claiming it didn’t know of either the effort to obtain the emails or the gag order. If true, that suggests that someone in the Justice Department was acting in an unsupervised manner, a circumstance that only adds to the argument for an effective shield law.
Through its surreptitious efforts, the Trump administration tried an end run around the First Amendment. That it failed – Google refused to cooperate – in no way lessens the need for the federal government to put into law that which the First Amendment intends. Thomas Jefferson understood the need. “Our liberty depends on the freedom of the press, and that cannot be limited without being lost,” he wrote to a correspondent in 1786. As president, Jefferson came to dislike the press, but the observation remains true.
New York State has a shield law in place, and while it is lacking in some areas, it does protect professional journalists from compulsory disclosure of confidential sources. Biden and his attorney general, Merrick Garland, have said they respect the First Amendment and have forsworn assaults such as the Trump administration – and the Obama administration before it – undertook.
That’s helpful, but Americans clearly cannot rely on any individual president’s commitment to a free press. Congress needs to pass a shield law this year.
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