The following is a statement by the New England First Amendment Coalition about the recent federal subpoenas served on reporters from The New York Times.
Responding to recent reporting on the security vulnerabilities of President Donald Trump’s new Qatari-donated Air Force One, federal authorities served subpoenas on several New York Times reporters last week.
The subpoenas — which seek to force the reporters to testify before a federal grand jury in New York on Wednesday — will undoubtedly chill critical, fact-based news reporting on national and local levels. They are also an unfortunate reminder that a federal shield law and stronger state protections are needed, like in Massachusetts where legislation is currently being considered to protect journalists and their sources.
Concern over the recent federal subpoenas should be shared by all Americans. It is not limited to President Trump and The New York Times. This is neither a Democrat versus Republican fight, nor a left-right, conservative-liberal battle. Any attempt to use the legal system to thwart the free press, is an offense against the people and undercuts our collective ability to hold those in power accountable.
Ever since the U.S. Supreme Court in Branzberg v. Hayes failed to find a First Amendment right to keep confidential sources secret, reporters have risked — and even served — jail time in absence of strong shield laws. Local examples include Boston reporter Susan Wornick who was sentenced to three months in jail in 1985 for refusing to identify a source who claimed to see police officers looting a drug store. The late Rhode Island reporter Jim Taricani served four months of home confinement after a federal judge convicted him of criminal contempt for not revealing a source in 2004.
Nationally, the list is longer and includes the high-profile cases of Pulitzer Prize-winning journalists Judith Miller and James Risen, both former reporters for The New York Times. In 2014, NEFAC demanded the U.S. Dept. of Justice under the Obama Administration withdraw its subpoena of Risen. The U.S. Press Freedom Tracker launched three years later and has documented more than 300 subpoenas or similar legal orders involving the press to date.
Just last spring, The Wall Street Journal received subpoenas seeking records of reporters in connection with a story about the U.S. military campaign in Iran. Earlier this month, the U.S. Supreme Court rejected an appeal by former Fox News reporter Catherine Herridge to prevent an $800-a-day fine for refusing to disclose a source in one of her stories.
While we recognize that the threat of subpoenas against journalists is not new, it appears to be an increasingly common practice among those in power and must be stopped. Fortunately, there are solutions if we can find the political willpower to protect the press and the public’s right to know.
- The federal PRESS Act would protect journalists from being forced to reveal their confidential sources in federal court and would stop the federal government from spying on journalists. It remains stalled in Congress despite bipartisan support.
- Massachusetts House Bill 4638 and Senate Bill 1253, both titled “An Act Relative to the Free Flow of Information,” would establish a statutory reporter’s privilege and protect journalists from being compelled to disclose confidential sources or unpublished information except in narrowly defined circumstances.
In remarks applicable to all levels of government, NEFAC Executive Director Justin Silverman testified last year in support of the Massachusetts legislation.
“A source is less likely to come forward with information vital to the public’s interest if their anonymity cannot be protected,” Silverman told state lawmakers. “A journalist may be less inclined to pursue a sensitive story if they know their sources and notes may ultimately be disclosed in court.”
Regardless of our political leanings, we must recognize that this is not just to the detriment of journalists but also to those depending on the information they report. While many including NEFAC are rightfully calling the most recent subpoenas an escalation of President Trump’s attempts to intimidate the press, the threat they pose transcends politics and presidential administrations. It is in all of our interests to demand they be addressed.
“The weaponization of subpoenas may not have started with President Trump, but it’s here they need to end,” NEFAC President Gregory V. Sullivan said. “The danger to our free press and the ability to stay informed is too great to ignore.”