Fred Ryan is publisher of The Post.
Opinion | Fred Ryan: Garland stands up for the First Amendment and our democracy
We at The Post were disturbed by revelations in May 2021 that the Trump Justice Department had secretly obtained the home, cell and office telephone records of three Post journalists in an effort to identify confidential sources who had informed their reporting. A month later, we discovered that, instead of immediately suspending attempts to interfere in journalists’ work, the Biden Justice Department had continued to target other news outlets.
As I wrote at the time, these practices indicated a worrying disregard for the First Amendment — and posed a serious threat to the free flow of information upon which our democracy relies.
Incompetence and abuses of power don’t reveal themselves; exposing them requires the courage of witnesses in government to assume the personal and professional risk of speaking out. If these individuals know that no contact with a reporter can be considered confidential, they simply will not come forward. Citizens will lose access to the information they need to decide whether those they’ve entrusted with power should keep it.
As soon as the administration’s efforts were brought to light, the attorney general and his staff responded. They sought input from news organizations and other institutions devoted to press freedom and worked to address issues of concern. On Wednesday, the department issued historic updates to its regulations that will protect newsgathering from the government overreach that has proved so troubling in the past.
Under the new rules, the Justice Department will no longer use compulsory legal process — including subpoenas, search warrants and certain court orders — to obtain information or records relating to newsgathering activities by members of the media. Whereas previously, federal law enforcement could seek this information if it was deemed important to a leak investigation, now these measures will be reserved for extremely narrow circumstances, typically involving immediate danger to citizens’ lives and safety.
The Post and other responsible news organizations appreciate the tension between the government’s constitutional obligations to respect the First Amendment and to provide for the common defense. We recognize that balancing these imperatives can be difficult. This is why the journalists we entrust with covering our national security agencies are among our most experienced and discreet. And it’s why news organizations take great care to ensure that our reporting does not recklessly put lives at risk. The new regulations attend to this balance: They do not inhibit the government’s ability to act on immediate threats or give reporters license to break the law or special treatment outside the scope of their constitutionally protected work.
The new rules also reflect a more accurate understanding of how today’s reporters operate. Protections have been expanded to include not just the passive receipt of information but also the proactive working of sources that encourages those who have observed wrongdoing to step forward. Acknowledging the changing nature of journalism in the 21st century, actions like setting up a secure channel for receiving classified information — such as Signal or anonymous digital drop-boxes — are recognized by the new rules to be a normal, protected part of reporters’ jobs. And in an era when the images recorded by a bystander with a mobile phone can revolutionize the world, “close or novel” questions about what counts as “newsgathering” will now be elevated directly to the attorney general — ensuring they receive the attention and prioritization they deserve.
The fact that these crucial protections are now enshrined in federal regulation is important. These rules will be official procedure for the Justice Department, and we trust that staff at all levels will apply them. Yet there remains the risk that a future administration — one less respectful of citizens’ First Amendment rights — might eliminate these new safeguards. The best way to defend against this vulnerability is for Congress to give these protections the force of law.
Just as self-government requires citizens to know when officeholders abuse their power, democracy requires that the people know when their leaders wield power wisely and well. While it gives those of us in the news media no pleasure to report the former, it’s worth celebrating examples of the latter — occasions when those in government stand up for the values that make our country unique. The attorney general’s new safeguards for press freedom certainly qualify.