Two days before Christmas in 2020, the Fallen Journalists Memorial Act was signed into law. The act authorizes a monument in the District of Columbia to commemorate “America’s commitment to a free press” and honor “journalists who sacrificed their lives in service to that cause.”
Part of the impetus for the law was the 2018 mass shooting at the Annapolis Capital Gazette. And in the months leading up to the passage of the act, images of journalists being beaten and bloodied went from surreal to near-routine. The U.S. Press Freedom Tracker documented 593 assaults against journalists in 2020–nearly a 1,400 percent increase over the year before.
This was just violence caught on camera. Online insults and threats against journalists—particularly against women—exploded. According to one recent study abuse is so rampant that it is part of the “daily work lives” of women journalists. Researchers worry that the line between online attacks and offline violence is faint.
Indeed, some individual journalists have suffered severe injuries. Photo journalist Linda Tirado was blinded in one eye. Los Angeles Times reporter Molly Hennessy-Fiske was bloodied and bruised by rubber bullets.
Making good on a commitment to a free press and the protection of journalists will require far more than a memorial from Congress. One place to start would be with actually curbing the violence. A legal model already exists: obstruction of justice. Obstruction of justice laws are aimed at safeguarding the courts and justice system from threats against them. Specifically, the broadest of the suite of federal obstruction of justice statutes outlaws threats, force, or threatening communications intended to influence, obstruct, or impede the administration of justice. The law has been most famously invoked against those who lie to thwart the process. Martha Stewart’s prosecution is perhaps the best-known example. But the statute also criminalizes the use of violence to corrupt the justice system.
Its language could be readily adapted to cover journalism. An “obstruction of journalism” statute could bar particularly severe use of force and threats (whether spoken or written) aimed at obstructing or impeding journalists’ newsgathering or publishing.
Obstruction of journalism would go beyond the limited reach of existing law. Yes, federal and state laws already bar assault, battery, cyberstalking, and threats. Yet, these laws do not recognize the sweep of the harm perpetrated against the press. Obstruction of journalism would.
Unlike more generic assault or anti-threat laws, obstruction of journalism would be aimed at addressing the systemic harm that this violence causes to the press and freedom of expression.
The impact of violence against journalists radiates. It can alter the scope of news and information in our public sphere. That is, in fact, its goal. It is meant to frighten, shame, intimidate and, ultimately, to silence.
There are some signs that it is having its intended effect. Women are leaving or considering leaving journalism in response to online abuse. This is especially true of younger journalists.
Women journalists also describe a chilling effect on their reporting. For example, Lauren Kirchner said she received rape and death threats for weeks after Tucker Carlson criticized her reporting for ProPublica on hate groups. Of the experience she wrote, “I confess that it made me want to avoid reporting on that topic again. And that’s exactly why they do it.”
Obstruction of journalism would also be an important deterrent. Now, virtually nothing impedes these attacks—not newsrooms, not social media platforms, not law enforcement. Although some news organizations have started to address violence against their journalists, many reporters still feel vulnerable and that they are professionally tethered to the most prolific font of abuse—social media. In an internal report by the Washington Post on its social media policies, one anonymous reporter said, “If I’m deathly afraid of driving, I can opt not to drive. I can take the bus. I feel like I don’t have the option to opt out of tweeting.” And even if reporters do forego social media platforms, abuse can still be transmitted via voicemail and email.
As social media platforms have brushed off responsibility for myriad ills metastasizing on their sites, they have done the same with respect to abuse against journalists. Amnesty International has called out Twitter for failing to protect women’s rights. And women reporters themselves have said Facebook is the site on which they feel least safe.
By borrowing from obstruction of justice, an obstruction of journalism law would signal that our news and information system is essential to democracy. A recognition that our news and information system is as worthy of protection seems past due.
A law would be politically challenging to pass, but not impossible. Some vocal support for protecting the press exists among lawmakers. Although it has not yet been successful, legislation that would help to protect journalists from physical violence has been proposed at the federal level. That the Fallen Journalists Memorial Act received bi-partisan support and President Trump’s signature is, perhaps, noteworthy.
But to protect working journalists, press freedom, and freedom of expression will take far more. Congress needs to begin investing.Erin Carroll Erin Carroll is a professor at Georgetown University Law Center.