Proposed U.S. Journalist Protection Act has more drawbacks than benefits

Journalist Moisés Sánchez Cerezo was kidnapped and murdered in Veracruz, Mexico, a little over three years ago, for the reporting what he did in La Union, a tiny newspaper that he painstakingly cobbled together by hand. He had been critical of Omar Cruz Reyes, the mayor in his small hometown of Medellín de Bravo, about everything from the security situation to garbage disposal. The mayor was eventually convicted of the crime, although not before he fled, escaping justice.

In Mexico, we know that the most dangerous beat for journalists is the link between organized crime and politics. Local police officers, mayors, and governors have all been implicated in the deadly crisis gripping Mexico’s press. Sánchez was one of 20 journalists who disappeared or were killed while former Veracruz state Gov. Javier Duarte de Ochoa was in office. CPJ has confirmed that at least six of these crimes were in direct reprisal for the journalists’ work.

For this reason, CPJ has campaigned for over a decade to make crimes against free expression a responsibility of the federal government. While the federal prosecutor’s office that was eventually created in Mexico to investigate crimes against free expression is deeply flawed and ineffective in practice, it is at least a partial response to the concern about having state governments investigate the same crimes that they sometimes helped commit.

In countries around the world, international press freedom groups often turn to the federal government to solve cases where local prosecutors are ineffective, or worse. Mexico isn’t the only case; CPJ has also pushed for attacks on journalists to be dealt with on the federal level in places like Pakistan, where 60 journalists have been killed in reprisal for their work since 1992.

So when Rep. Eric Swalwell (D-Calif.) introduced the Journalist Protection Act last month, the arguments were familiar to us. The bill would make it a federal crime to intentionally cause “bodily harm” to reporters in the United States. It’s a timely response to an increasingly hostile environment for reporters, but unlike efforts to make attacks on journalists a federal crime in Mexico and Pakistan, it’s probably unnecessary.

The United States does not compare to many countries around the world when it comes to deadly violence against reporters. In 1994, CPJ released a report about the murders of 12 journalists in the United States between 1976 and 1992, all in the non-English language press, but very few journalists have been killed for their work in recent years.

That doesn’t mean that violence is not a crucial issue facing the American news media. Physical attacks and death threats are common. The U.S. Press Freedom Tracker (of which CPJ is a partner) documented 44 instances where journalists have been physically attacked or had their equipment purposefully damaged in 2017. These range from relatively minor cases of a smashed phone, which would not fall under the scope of the new bill, to more serious cases of a smashed rib.

But unlike in Mexico or Pakistan, there is no reason to believe that the state prosecutors are unable or unwilling to investigate. In the most serious recent case involving a government official physically attacking a reporter, that of now-Rep. Greg Gianforte (R-Mont.) body-slamming Guardian reporter Ben Jacobs, prosecutors convicted him of misdemeanor assault—even if the judge ultimately decided on a light penalty. Until we see a pattern of cases that are going unaddressed on the state level, there’s no reason to believe that existing laws are inadequate.

Even in cases where state prosecutors are unable or unwilling to press charges, the new law is unlikely to lead to federal action. At least 12 cases on the tracker last year involved law enforcement officials. These include cases where journalists appeared to be singled out and selectively pepper sprayed, as well as a case where a journalist was shot by a police officer in Ohio who mistook his camera for a gun. Existing law already gives the Justice Department the authority to prosecute law enforcement individuals for civil rights violations, but in practice such prosecutions have been few and far between. Police are granted wide latitude to respond to situations in the course of their duty, and prosecutors must show that police willfully broke the law.

The bill has bigger drawbacks. Any law to protect journalists as a special class needs to define who is a journalist, and this leaves an opening for the government to start making judgement calls about who is not a journalist. While the definition adopted in the bill is fairly broad, and would encompass freelancers and all kinds of media, there are still concerns about defining who is and who is not a reporter.

This is especially true because 31 of the 44 attacks documented on the U.S. Press Freedom Tracker occurred during protests. As more livestreamers and citizen journalists show up at protests, it can be tricky, even for press freedom groups, to determine who to count as a journalist. The government is often far more conservative. In December, federal prosecutors tried photojournalist and livestreamer Alexei Wood on chargers of riot, conspiracy, and destruction of property. Even though Wood’s video footage from the day shows that he took no part in any vandalism, the prosecution tried to make the entire case about whether he was a journalist or not.

The definitional issue exists with other legislation to protect reporters. A shield bill, for instance, would also require the government to define journalists. This was one of the major areas of debate in 2013 when there was serious energy to put in place a bill protecting journalists from federal subpoenas that would require them to divulge their sources.

In the end legislation is always about weighing the costs versus the benefits. In the context of an attorney general who claims to have 27 open leak investigations and wants to make it easier to subpoena reporters, a shield law would at least have immediate concrete benefits to weigh against potential drawbacks.

The Journalist Protection Act is an effort in the right direction, and there is an argument that it could serve as a useful global model. The diagnosis of increased hostility bleeding into physical threats is spot on, given what we’ve seen in the data. However, Swalwell’s proposed legislation would not offer journalists any material benefit, even as it would allow the federal government to define who is and who is not a journalist. In the current climate, that may not be a worthwhile tradeoff.

Alexandra Ellerbeck is CPJ North America Program Coordinator.