For years, press freedom advocates warned the Biden administration not to hand future authoritarians weapons to wield against their critics in the media. No-one listened, and now we’re all going to face the consequences. But it’s not too late for the Democrats to avert some of the harshest repercussions.
Here are a few of the lowlights: Biden’s Department of Justice continued Donald Trump’s prosecution of Julian Assange, and most Democrats went along with it. Under Biden, for the first time, the DOJ extracted a guilty plea under the Espionage Act for talking to a source and publishing classified documents. Assange’s plea may not set a legal precedent, but it sets a historical one—Trump can use it to prosecute journalists he doesn’t like for publishing government secrets, or to claim false equivalencies when his fascist friends lock up reporters.
The Biden administration has offered nothing but thoughts and prayers over the killings of over 130 journalists in Israeli strikes in Gaza, the West Bank and Lebanon, and has ignored calls from dozens of lawmakers to pressure its ally to allow US journalists access to Gaza. This cowardice will give Trump cover to stand by when Putin or other authoritarians he admires commit atrocities outside the view of the press.
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Democrats have also stayed silent about Republican calls to prosecute American journalists under anti-terrorism laws for criticizing Israel. Some even supported legislation that would allow Trump’s Treasury Secretary to revoke the tax exempt status of nonprofits that don’t toe this line. Republicans are wasting no time taking advantage of that opening—the bill is back on the congressional agenda and scheduled for a vote today.
There’s more still: Democrats’ support of legislation expanding Section 702 of the Foreign Intelligence Surveillance Act (FISA), which could see Americans conscripted into spying on their local news outlets; their backing a TikTok ban, precedent which could empower Trump to ban foreign news outlets; their attempts to stamp out encryption, which could leave journalists and their sources even more vulnerable to investigations into leaks and whistleblowers.
So what now? Come January, the second Trump administration will not only largely control all three branches of government, it’ll have an arsenal of new tools to punish the Fourth Estate.
Still, there are some things Democrats can do to at least mitigate the damage they’ve enabled.
First, Senate Democrats need to pass the bipartisan PRESS Act, a “shield” bill that would protect journalist-source confidentiality and end federal surveillance of journalists. The PRESS Act would go a long way toward reining in Trump’s plans to punish journalists who refuse to reveal their sources, and would be a check on future administrations too, whether Democrat or Republican.
The bill passed the House unanimously in January, and it has strong Republican support in the Senate. But so far, Democrats have been unwilling to devote much energy to getting it over the finish line, despite Project 2025’s call to repeal existing protections against subpoenaing reporters. This is legislative recklessness.
Another way to protect whistleblowers is to increase transparency—so they don’t have to blow the whistle in the first place. Democrats need to limit Trump’s ability to needlessly classify documents or otherwise remove them from the public record. Among other things, Biden must immediately amend the executive order on classified national security information to prohibit classifying evidence of illegality.
There’s plenty more that could be done to Trump-proof the press, like reforming the Espionage Act and fixing their sloppily drafted FISA amendment so it’s not abused to surveil journalists. They must work to protect end-to-end encryption, crack down on SLAPPs (Strategic Lawsuits Against Public Participation) and do everything possible to stop Trump from siccing the Federal Communications Commission, the Federal Elections Commission, the Department of Justice and the Internal Revenue Service on his enemies, including in the press.
Even if they can’t get all of that done, there’s time to check some important items off the list. Hopefully they’ll at least go out fighting for the rights they claim Trump threatens.
But it’s the Democrats. If they’ve earned anything—and they haven’t—it’s lowered expectations.
Seth Stern is the director of advocacy at the Freedom of the Press Foundation and a First Amendment attorney.
