In late November, the U.S. House Select Committee to Investigate the January 6 attack on the U.S. Capitol subpoenaed the cell phone provider of freelance photojournalist Amy Harris seeking data on calls and texts she made during a three-month period around the time of the alleged insurrection.
Harris is a freelance photographer who photographed some of the Proud Boys during the events of January. 6. However, she says that she did not enter the Capitol building, as reported by Just the News.
Harris is no random freelancer. Her work has been in the Washington Post, Vanity Fair and Time. She is also a member of National Press Photographers Association, according to Just the News. In fact, her photos from January 6 were used by major new outlets like Politico, CNN and Rolling Stone, Politico reported.
But the committee wants her phone records because prior to the January 6 events, Harris had met the far-right Proud Boys leader Henry “Enrique” Tarrio and had been documenting some of the group’s actions, as USA TODAY reported.
Harris went to Washington, D.C. on January 4 to keep covering the Proud Boys. She went around the city covering “Stop the Steal” rallies and then went to the Capitol.
The Select Committee issued a subpoena to Harris’ cell phone provider, Verizon, for records of calls and texts she received and made in the three months prior to January 31, 2020.. Verizon said it had planned to comply with the subpoena unless Harris took legal action, which she did.
On December 15 Harris sued the committee for issuing the subpoena over its demands for her telephone records, and arguing that her communications are protected by the First Amendment, common law, and the District of Columbia’s shield law.
Harris’ lawsuit argues that not only does this subpoena violate her First Amendment rights; it also violates other laws that protect journalists from revealing confidential sources, according to a Washington Post report.
“Demanding journalists’ telephone records reveal confidential sources from third parties is tantamount to demanding the records from the journalists themselves. A journalist’s promise to maintain confidentiality would be meaningless if a source’s identity could be discovered,” part of her complaint argues.
The lawsuit reads, “The subpoena violates the core protections afforded to journalists pursuant to the First Amendment. “Furthermore, it seeks to undermine these fundamental protections without affording Harris fair notice and opportunity to challenge its legality by demanding the records be turned over just two weeks after the subpoena was issued.”
Since Harris has been covering and photographing the Proud Boys as a journalist, she has the right to protect her sources and information gathered during her reporting.
This is in accordance with what is known as “shield laws” for journalists. There is no federal law shield law, but 30 states have some form of shield laws. These statutes are drawn out of the First Amendment and allow “journalists to refuse to disclose or testify about confidential or unpublished information, including identity sources,” the Columbia Journalism Review explained.
In Washington, D.C. particularly, the shield laws not only absolutely protect journalistic sources (meaning that under no circumstance can courts compel a journalist to divulge a source’s identity); they also protect unpublished information.
“D.C.’s shield law protects information gathered or prepared for a story, post, or other work, which is not ultimately published. The shield covers all types of materials, whether written, audio, video, or any other format. It applies in both criminal and civil cases, and it applies whether or not the newsgatherer is a party to the case in which information is sought,” the Digital Media Law Project reported.
Harris’ lawsuit against the January 6 committee has strong grounding. As a journalist, she is shielded not just by arguments of journalistic integrity and ethics, but also by law.
As Harris’ lawsuit outlines, “During the time frame of the Verizon subpoena, Haris was a journalist acting in a news gathering and news disseminating capacity. She was documenting Tarrio and the Proud Boys and used her phone to communicate with confidential and nonconfidential sources in support of that story. Therefore, the telephone records sought by the House Select Committee contain information sufficient to reveal the identities of Harris’ confidential sources and are absolutely protected.”
Interestingly, the Reporters Committee for Freedom of the Press (RCFP) and a coalition of 55 media organizations are urging the congressional committee investigating the January 6 attack on the U.S. Capitol to withdraw its subpoena for a photojournalist’s telephone toll records.