First Amendment Under Fire: Lawmakers and Journalists Speak Out at Capitol Hill Hearing

Freedom of the press is established in the First Amendment of the Constitution, but government surveillance of journalists continues to threaten that constitutional right more than 230 years later. That was the topic of a House Judiciary Subcommittee hearing regarding the Press Act (Protect Reporters from Exploitative State Spying) that would establish further protections for journalists in the wake of government overreach during the 2020 election campaign and in the years following.

A high-profile story involving the Hunter Biden laptop was suppressed during the 2020 election campaign, but that wasn’t the only malice that transpired from that story. The journalist who broke the story, Catherine Herridge, was working for CBS at the time. CBS decided to seize the files she obtained, an action she referred to as “journalistic rape” during the Senate hearing last week.

Herridge explained how the network stole the source information, including the confidential sources that provided her with the information. Protecting sources is an important aspect of the journalistic code of ethics as it protects whistleblowers who may be targeted for leaking information that is harmful to high-profile individuals. A journalist’s right and duty to protect his or her sources is one of the foundational blocks that allows for the press to monitor government and corporate malfeasance. “Forcing a reporter to disclose confidential sources would have a crippling effect on investigative journalism because without reliable assurances of confidentiality, sources will not come forward.” Herridge emphasized, “The First Amendment provides protections for the press because an informed electorate is at the foundation of our democracy.” Meanwhile a judge has ordered fines of $800 per day against Herridge until she discloses her confidential sources.

The Congressional summary of the Press Act describes the law as “This bill prohibits the federal government from compelling journalists and providers of telecommunications services (e.g., phone and internet companies) to disclose certain protected information, except in limited circumstances such as to prevent terrorism or imminent violence. Specifically, the bill protects from disclosure any information identifying a source, as well as any records, contents of a communication, documents, or information obtained or created by journalists in the course of their work. Further, the bill protects specified third parties, such as telecommunications carriers or social media companies, from being compelled to provide testimony or any document consisting of a record, information, or other communication that is stored by the third party on behalf of a journalist.”

This law provides more protection for journalists that isn’t being upheld by the first amendment rights of the constitution. The case of Herridge would not have reached the point it has today with these protections in place. The law still does allow the government to “compel” journalists in certain circumstances to prevent terrorism or imminent violence. This is an understandable exception, but there is no guarantee that it can’t still be abused by a powerful government authority.

One of the more famous cases of the U.S. government abusing its power to intimidate journalists is the espionage charges against Julian Assange for publishing classified U.S. documents that were leaked by Chelsea Manning. Manning was given a 35-year sentence that was commuted to seven years by President Obama in 2017. Assange is still facing 17 charges of espionage for his role in the document leak.

Assange has been imprisoned without conviction for the last five years in the place that is referred to as Britain’s Guantanamo Bay. President Biden recently said he would consider bargaining the charges down to a misdemeanor charge of mishandling classified documents. The charges were brought by the Trump administration many years after the document leak.

In another story, investigative journalist James O’Keefe obtained Ashley Biden’s diary while he was still working with Project Veritas. The diary was stolen and sold to Project Veritas for $40,000. O’Keefe’s house was raided as part of the criminal theft case in which Aimee Harris pleaded guilty for stealing the diary. The judge in the case ruled against O’Keefe’s First Amendment claims and allowed prosecutors to gain access to files from Project Veritas related to the stealing of the diary. No charges have been filed against O’Keefe. Harris was given a sentence of one month in jail for her role in the theft of the diary.

In the 21st century, this is not the only type of attack that has occurred against the press and against the First Amendment in general. Thomas Jefferson once said, “Our liberty depends on the freedom of the press, and that cannot be limited without being lost.” The intent behind the Press Act may be genuine, but the main argument still stands that the constitutional protections provided by the First Amendment should have been enough to prevent the $800 per day sanctions against a journalist for not providing her confidential sources.

Meanwhile, there are still cases in 2024 in which journalists are being arrested for being on the ground and covering protests or other newsworthy topics. The Freedom of the Press Foundation has at least four examples of this happening so far this year. There were three arrests in which the journalist was released without charges. One journalist was detained momentarily on site but not arrested. In all of these cases, despite charges, journalists were doing their jobs to report about a protest. A police officer temporarily cuffing a journalist is still a violation of the First Amendment, and it prevents that journalist from potentially catching important details that are happening on the ground.

The Murthy v. Missouri case (originally filed as Missouri v. Biden) has become known as one of the most important First Amendment cases in modern history. This case involves government censorship of freedom of speech and, ultimately, freedom of the press. While newspapers are the press of the past, news is frequently shared and spread via social media platforms. When those platforms are regulated through government intervention, that constitutional freedom has been demolished.

The Ford Foundation refers to freedom of speech as a “prerequisite for all of our other freedoms.” This means that it is required to get equal representation, to protest, and to vote, among many other important rights that exist in the United States. While Ford Motor Company is tied to CATL, a battery plant with ties to the Chinese Communist Party, it has been operating independently from the Ford Foundation for over 50 years.

The constitutional rights given to citizens in the United States are one of the key differences from major countries like China. Passing the Press Act may provide more protections to journalists and citizens doing the work of the press, but why wasn’t the constitutional protection enough to prevent government harassment of the press? The vote on the Press Act has not yet taken place in the Senate, and there is no word on whether President Biden will sign off on the legislation.