“A Fourth Amendment Press Clause,” in National Security, Journalism, and Law in an Age of Information Warfare, Ethics, National Security, and the Rule of Law (2024)

Hannah Bloch-Wehba, “A Fourth Amendment Press Clause,” in Marc Ambinder, Jennifer R. Henrichsen, and Connie Rosati (eds), National Security, Journalism, and Law in an Age of Information Warfare, Ethics, National Security, and the Rule of Law (New York, 2024; online edn, Oxford Academic, 20 Feb. 2025) at 43-60. Abstract:

Programmatic national security surveillance and criminal leak investigations have created substantial uncertainty about practical and legal protections for the press against governmental investigative activity. Statutory and regulatory guidelines, such as the Privacy Protection Act of 1980, the Department of Justice Media Subpoena Guidelines, and the FBI’s Domestic Investigations and Operations Guide, suggest that there are clear rules in place to shield journalists from unfettered investigations and demands for documentary materials, communications records, and work product. But existing protections for the press are weak and insufficient. Statutory protections are incomplete, and executive branch guidelines are typically hortatory or riddled with exceptions. And, in legal contexts in which journalists may wish to assert their own rights to be free from unlawful surveillance, First and Fourth Amendment doctrine frequently prevents them from doing so. This chapter argues that the Fourth Amendment’s overarching requirement that searches be “reasonable” can serve as a much-needed “Press Clause” for criminal procedure, enabling courts to incorporate First Amendment analysis where it is urgently needed. Fourth Amendment “reasonableness” requires courts to balance the intrusiveness of a search, the kind of information sought, and the First Amendment rights implicated by investigative activity. Although existing regulatory protections are motivated by this kind of balancing, they are wholly inadequate to vindicate First Amendment rights. The chapter thus provides a pathway toward First Amendment protections that are enforceable, strong, and predictable.