The Nuts and Bolts of the Revised Justice Dept. News Media Guidelines

Editor’s note: This piece provides an overview and interpretation of the Justice Department’s news media guidelines. For the authors’ consideration of how these guidelines might work in practice, especially in edge cases, see here.

In October 2022, the Department of Justice released its long-awaited regulation codifying a new policy prohibiting the use of subpoenas, search warrants, and other compulsory process to demand records from or of members of the news media, with only narrow exceptions. The reforms followed revelations in 2021 of sweeping subpoenas and court orders for phone and email records in three leak investigations, all authorized in the final year of the Trump administration. 

The new Justice Department protections for journalists are effectively a complete revamp of the byzantine previous regulation. In this piece, we provide something of a user guide for the new policy. 

Our acquaintance with the subject matter stems in part from our work at the Reporters Committee for Freedom of the Press, where we assist in coordinating the U.S. Attorney General’s News Media Dialogue Group. Then-Attorney General Eric Holder formed that entity in 2013, which includes members of the news media, attorneys from various department components, and the director of the Office of Public Affairs. The group reconvened in the wake of the 2021 revelations, following calls from news media representatives for a tightening of the policy. One of the authors of this piece attended several meetings with Attorney General Merrick Garland as part of these renewed discussions. Upon the revised policy’s release, the Reporters Committee described the new guidelines as “a historic shift in protecting the rights of news organizations reporting on stories of critical public importance.”

This piece proceeds in four parts. First, we discuss the main innovation in the new guidelines: the creation of a bright-line rule with respect to subpoenas, search warrants, or other compulsory legal process. That is, the policy bars the use of such process completely for members of the news media “acting within the scope of newsgathering,” with only narrow exceptions.  Previously, if the investigative need was deemed great enough, the attorney general could authorize process employing the balancing test that used to govern these decisions. 

Second, we summarize exclusions and exceptions to the policy.

Third, we explore how the three main checks against overreach in previous versions of the guidelines—advance notice to the affected member of the news media, senior-level approval, and exhaustion—now operate in the limited scenarios where process is still available.

Last, we note some miscellany in the new regulations. 

Before diving in, however, it is important to emphasize two points about the guidelines. 

First, they are just that: a voluntary internal policy at the Justice Department that can be changed at will. They are not enforceable in front of a judge. For this reason, we have long advocated for a strong federal shield law to protect journalists from having to identify sources or disclose sensitive work product in court. Attorney General Garland and the Justice Department have also expressed support for “legislation” to make the new policy “durable.”

Second, the protections of the bright-line rule extend only to legal process. Accordingly, journalists should be aware that, even though their records may be insulated from legal process, if the Justice Department independently has evidence sufficient to pursue an arrest or charge based on other sources, they should not expect the bright line in the guidelines to shield them. 

With those qualifications, however, we would note that the revised bright-line policy—which was initially announced in a short memorandum from the attorney general in the summer of 2021—does appear to be limiting legal demands on the press. Except for a Boston Globe reporter subject to a trial subpoena under the exception for authenticating already published material, there have been no public reports since of legal process for records from or of a journalist. (There may be “friendly” process, where members of the news media voluntarily agree to cooperate with a subpoena, but certainly no controversies akin to the 2020 sec