Earlier this month, U.S. Attorney General Jeff Sessions signaled a potential sea change in the Department of Justice’s treatment of the news media. Sessions proclaimed that the Justice Department will pursue leak investigations with increased vigor and will not shy away from subpoenaing or indicting working journalists in doing so.

Previous administrations gave great latitude to newsgathering activities under the First Amendment, although that started to change in 2006, when the G. W. Bush administration created a dedicated task force to pursue high-level leaks following the New York Times’ reporting of an NSA warrantless surveillance program. The Obama Administration initiated eight leak investigations, more than all previous administrations combined, and Sessions stated in early August that the number of leak investigations being pursued by the DOJ has tripled since Trump took office. Now, the Trump administration’s stated intent to diminish DOJ policy protections, along with increased willingness of federal officials to subpoena or prosecute the news media, will almost certainly encroach upon the ability of news organizations and reporters to protect the confidentiality of their sources.

Efforts to restrain or punish the news media in publishing classified information may run headlong into well-established First Amendment doctrine. For example, the U.S. Supreme Court held in Florida Star v. B.J.F (1989) that the First Amendment protects the news media in publishing truthful information of legitimate public concern that was lawfully obtained by a journalist. The principle applies even if the journalist’s source may have broken the law in obtaining it, according to the Court’s 2001 decision of Bartnicki v. Vopper. In the Pentagon Papers case of 1971, the Supreme Court refused to restrain newspapers from publishing a classified study of the Vietnam War that a Defense Department consultant removed from the Pentagon without authorization, although two justices pointedly reserved reaching the question of whether the executive branch may ever restrain the news media for reasons of national security.

Despite these strong First Amendment protections of the right of the media to lawfully receive and publish classified information, the Trump/Sessions DOJ’s expected diminishment of policies in place to protect the media from government seizure of information will almost certainly have immediate consequences.

For example, DOJ regulations concerning grand jury subpoenas to the media (in force for years before the Trump administration) required federal prosecutors to:

• specifically articulate the information sought from the news media (as opposed to their usual, broadly stated grand jury subpoenas),
• demonstrate that alternate investigative methods were unsuccessfully attempted,
• obtain written approval from their U.S. Attorney (or Assistant Attorney General for DOJ “trial attorneys”),
• provide prior notice to the media (in order to permit the media to object), and,
• finally, after all of that, to obtain the written approval of the Attorney General (a task commonly weighed down in more bureaucratic review at “Main Justice”). See U.S. Attorney’s Manual 9-13.400.

The media subpoena policy, along with the media policies governing search warrants, 2703(d) orders (subscriber information from phone and internet providers), and 3123 orders (pen registers and trap-and-trace device), imposed procedural hurdles designed to prevent interference with newsgathering and, admittedly, to provide formidable First Amendment protections. If the Trump administration dilutes these policies, thus making it easier for the government to seize or compel information from the media, then federal prosecutors will be more likely to use these tools than previously to obtain information from the news media about confidential sources or information provided by leakers from within the administration … especially when encouraged to do so by the Attorney General.

Again, a change in DOJ policy does not change well-established First Amendment law. Nevertheless, scaling back of policies designed to protect the media may cause members of the press to resort to litigation in federal court to protect their First Amendment rights far more frequently than we have seen in the last 40 years.