The time is right for the Journalist Protection Act. But we need a federal shield law

Rep. Eric Swalwell (D-CA) speaks on April 5, 2017 on Capitol Hill in Washington, DC. (Photo by Zach Gibson/Getty Images)

CALLING OUT PRESIDENT TRUMP for “creat[ing] a climate of extreme hostility to the press,” US Representative Eric Swalwell, a Democrat from California, introduced a bill this week to make it a federal crime to assault a journalist. Titled the “Journalist Protection Act,” the bill would amend the chapter of the federal code that includes, among other things, penalties for assaults against certain government officials, such as judges, prosecutors, and members of Congress.

And yet my opinion of the bill is mixed. Although it has some symbolic and practical value, the bill strikes me as mostly redundant, and it comes at the expense of expanded federal power—while missing, at the same time, an opportunity to try to get a federal shield law passed to protect journalists from compelled disclosure of their confidential sources and unpublished materials.

ICYMI: Shield law and journalist’s privilege: The basics every reporter should know

With that said, let’s unpack the bill.

Swalwell’s bill makes it a federal crime to intentionally commit, or attempt to commit, an act that causes bodily injury to a journalist, with “knowledge or reason to know” that the person is a journalist—provided that the act is committed with the “intention of intimidating or impeding newsgathering,” or while the “journalist is taking part in newsgathering.”

According to data collected by the US Press Freedom Tracker, a nonpartisan website launched in August that documents press freedom violations nationwide, there were 44 physical attacks on journalists in 2017, most of which occurred at demonstrations. In more than a third of those attacks, the assailant was a protester hostile to the journalist’s reporting. (CJR is a partner of the Press Freedom Tracker.)

Political capital is so fleeting and scarce that, to the extent the press has any right now, it should be used first to address the most urgent threats for which the law doesn’t already provide meaningful protection

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The bill defines “journalist” pretty broadly, to cover freelancers and all manner of media, and it defines “newsgathering” as “regular gathering, preparation, collection, photographing, recording, writing, editing, reporting, or publishing concerning local, national, or international events or other matters of public interest.”

The bill has 12 co-sponsors, all Democrats, and support among press associations. For example, the Society of Professional Journalists endorsed it, and so did the Radio Television Digital News Association. The president of the National Association of Broadcast Employees and Technicians said in a statement, “The [bill] will permit the authorities to properly punish people who attempt to interfere with our members as they work in dynamic and challenging situations.”

The Journalist Protection Act is symbolically important; it underscores that the press is democratically essential and deserving of protection. Pointing to the federal penalties for assaults against government officials, media lawyer Jean-Paul Jassy told me, “Members of the Fourth Estate serve a vital and increasingly threatened role in our republic, [so] there is good reason to offer them added protection for doing their jobs, particularly in this climate.”

The bill might also be practically important. It would create dual jurisdiction, allowing the feds to prosecute if the state refuses (e.g., for political reasons), or if the state prosecution fails to obtain a conviction. “If someone’s going to take a swing at a journalist for being a journalist, there’s probably a political or ideological motive, so perhaps the concern is to make those cases easier to prosecute through the more insulated federal system,” Frank LoMonte, executive director of the Brechner Center for Freedom of Information at the University of Florida, told me.

However, and outside of those unusual circumstances, the bill seems unnecessary and even unwise in some respects. State laws already cover assault and battery, and state prosecutors writ large have not been refusing to file charges in cases involving journalist victims. Nor is there a critical mass of failed prosecutions in such cases.

The criminal justice system ought to adequately punish physical attacks on journalists anyway. The far more worrisome concern is the pursuit of leakers and sources, directly by pressuring journalists and indirectly by obtaining data from digital intermediaries who might not adequately protect it.

Then there is the downside of dual jurisdiction. As Ken White, the First Amendment lawyer and former federal prosecutor, told me, the bill gives federal prosecutors “more power and discretion.”

“Not every person who assaults a journalist will get federally prosecuted,” said White. “The decision about which ones [do] will be about power and politics. For instance, betcha Black Lives Matter marchers assaulting a journalist are more likely to get tagged by the feds than, say, white nationalists. There are too many federal criminal laws, giving federal prosecutors too much power and discretion.”

Further, the bill is very clearly leveraging the press’s political capital of the moment, born of the anti-press rhetoric and behavior making headlines around the country. That capital could be better spent on a federal shield law. Political capital is so fleeting and scarce that, to the extent the press has any right now, it should be used first to address the most urgent threats for which the law doesn’t already provide meaningful protection.

As I’ve written before, there is no federal shield law, and the First Amendment offers highly inconsistent protections against compelled disclosure of sources and materials (and none at all, in some places). Yet the Department of Justice has subpoenaed numerous journalists in the past 20 years to try to compel them to testify about their confidential sources (see James Risen). Attorney General Jeff Sessions has peacocked recently, too, about the DOJ’s ongoing leak investigations, and he equivocated when asked if he would guarantee that journalists would not be imprisoned for doing their jobs. This is a critical problem calling out for legislative action.

The better use of resources is to pursue a shield law,” LoMonte says of Swalwell’s bill. “The criminal justice system ought to adequately punish physical attacks on journalists anyway, and the far more worrisome concern is the pursuit of leakers and sources, directly by pressuring journalists and indirectly by obtaining data from digital intermediaries who might not adequately protect it.”

ICYMI: ‘Put the camera down’: Covering protests has become the riskiest job in journalism

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Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.