The raft of subpoenas issued by the House panel investigating the Capitol riot has prompted, in turn, a raft of suits hoping to block the demands. But alongside the predictable lineup of plaintiffs—former National Security Advisor Michael Flynn, or former White House Chief of Staff Mark Meadows—one stands out.
In Harris v. U.S. House Select Committee, independent photojournalist Amy Harris alleges that the Committee’s subpoena to her phone provider, Verizon, threatens to expose the confidential sources she relies on in connection with her reporting on the Proud Boys. As the Reporters Committee for Freedom of the Press and more than 50 other organizations argued in a recent letter, Harris’s challenge raises important press freedom concerns. The Committee should withdraw the demand, which sets Congress on a dangerous path and will raise thorny constitutional questions if litigation is forced to proceed.
Of course, it should go without saying that the panel’s interest in investigating the events of January 6 is legitimate and important. But there’s likewise little doubt that Harris—in her capacity as a member of the press—has made important contributions to our understanding of that day in her own right. As her complaint details, Harris’s photos of the riot ran in a slew of major news outlets, including the Washington Post, and she was present in the first place to continue reporting a profile on Proud Boys leader Enrique Tarrio. In other words, what distinguishes Harris’s suit from the other subpoena challenges is that the public’s interest in coming to terms with an event of clear public concern appears on both sides of the case caption.
For much the same reason, the subpoena for Harris’s records is a historical anomaly. While collisions between Congress’s investigative powers and the freedom of the press aren’t unheard of, in the modern era clashes have been exceptionally rare.
To our knowledge, the last such confrontation took place fully three decades ago, when the special counsel appointed by the Senate to investigate leaks during Justice Thomas’s confirmation issued subpoenas to Timothy Phelps of Newsday and Nina Totenberg of National Public Radio, as well as a subpoena for their phone records. Both Phelps and Totenberg testified before the special counsel but refused to identify their confidential sources or reveal any unpublished information. Ultimately, the Senate Rules Committee refused to authorize an effort to secure contempt citations, with Chair Wendell Ford of Kentucky explicitly resting the decision on the First Amendment. As he put it, the subpoenas’ chilling effect could “close a door where more doors need opening.”
There have been only a handful of other subpoena conflicts between Congress and the press in the twentieth century. Arguably the most high-profile one was a demand to CBS president Frank Stanton, requiring the production of outtakes from The Selling of the Pentagon, a documentary critical of military public relations activities that some members of Congress and other public officials said were selectively edited. At the same moment the Pentagon Papers case was racing through the courts, Congress was debating holding Stanton in contempt. In early July 1971, the House commerce committee voted 25 to 13 to hold Stanton in contempt, but the full House refused to do so by a vote of 226 to 181. That rare rebuke of a committee by the body as a whole was widely interpreted as a landmark press-freedom precedent.
A few subsequent cases nevertheless marred Congress’s relationship with the press, including an unsuccessful attempt by the House to force CBS correspondent Daniel Schorr to reveal his source for the leaked Pike committee report on intelligence abuses in the mid-1970s, as well a quickly withdrawn subpoena to a Washington Times reporter in the early 1980s. But the key point is that such confrontations have been the exception rather than the rule, and in the modern era have uniformly been resolved in favor of press freedom. That history adds up to what Professor Christina Koningisor, chronicling the emergence of Congress’s sensitivity toward press rights in the nineteenth century, has called a “de facto reporter’s privilege.”
Hopefully the January 6 panel will take this history to heart and withdraw the Harris subpoena. If not, though, Harris’s suit will raise difficult constitutional questions that remain largely unresolved. We know of no case on all fours with this one—a pre-enforcement suit seeking review of a congressional subpoena to a third-party for a reporter’s records. And while actions like this one raise a tangle of complicated legal issues, some road to First Amendment review must exist to prevent an obvious chilling effect on reporter-source contacts.
The Supreme Court has made clear that Congress’s subpoena powers—though broad—are qualified by the First Amendment, because “the Bill of Rights is applicable to investigations as to all forms of governmental action.” And there can be little question that a subpoena for a journalists’ phone records raises First Amendment concerns since, as the U.S. Court of Appeals for the D.C. Circuit has noted, “journalists frequently depend on informants to gather news, and confidentiality is often essential to establishing a relationship with an informant.”
It’s easy to imagine in that vein that Harris’ sources—members of the Proud Boys, say—might have been unwilling to speak to her in the first instance if they saw her as a potential arm of law enforcement, or someone who might down the road be conscripted by it. And, of course, the consequences of this demand will extend beyond Harris’s particular case. If the Committee succeeds in obtaining her call records, the precedent set will puts reporters’ work more generally in jeopardy. Based on much the same concern, the Justice Department recently adopted strict new policies on subpoenas targeting the press, whether issued directly to reporters or served on third parties.
But the specific shape the reporter’s privilege should take in a case involving a congressional subpoena remains unsettled, and Congress’s immunities under the Speech & Debate Clause may, for that matter, present something of a constitutional thicket for Harris’s particular suit. While the D.C. Circuit has recognized that “the fortuity that documents sought by a congressional subpoena are not in the hands of a party claiming injury from the subpoena should not immunize that subpoena from challenge,” the Supreme Court has circumscribed courts’ latitude to review First Amendment objections when lawmakers themselves are named as defendants. Harris may ultimately need to ask for relief against Verizon as well (or instead) in light of the panel’s legislative prerogatives.
But procedural issues aside, it should be plain that the Committee’s demand raises serious constitutional difficulties that Congress has successfully avoided in decades of accommodations with the press. With few exceptions—none in modern memory—efforts to use reporters as an investigative arm of Congress have ultimately run aground. There is no reason to think the confrontation couldn’t and shouldn’t be avoided here, and no clear explanation of the Committee’s decision to steer into it.
Doubtless, the public interest in investigating the origins and execution of the January 6 attack is of paramount importance. But for that very reason, Congress shouldn’t lightly chill the press’s efforts to uncover the truth of that day.