Unfinished Business on Press Freedom

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[Commentary] Attorney General Eric Holder Jr., who announced his planned resignation in September, bears responsibility for undermining robust journalism by his overzealous leak investigations and his opposition to recognizing a reporter’s constitutional or common law privilege to protect sources. Perhaps seeking to improve on that dismal record, AG Holder issued new guidelines in February concerning prosecutors’ use of subpoenas and search warrants to obtain information from reporters. Those guidelines include some valuable changes, but they also contain a central flaw that requires prompt correction, as a group of media representatives will be urging at a meeting with Justice Department officials.

Instead of retaining straightforward language telling prosecutors not to “impair the news-gathering function” from the previous set of guidelines, new wording unveiled with release of the overhauled guidelines in February calls for avoiding the issuance of subpoenas that “might unreasonably impair ordinary news gathering.” The change could invite prosecutors in the future to claim that news gathering that entails the disclosure of classified information (as national security reporting typically does) is out of the “ordinary” and, therefore, exempted from the guidelines.


Unfinished Business on Press Freedom