[Congressional Record: October 16, 2007 (House)]
[Page H11587-H11603]
FREE FLOW OF INFORMATION ACT OF 2007
Mr. CONYERS. Mr. Speaker, pursuant to House Resolution 742, I call up
the bill (H.R. 2102) to maintain the free flow of information to the
public by providing conditions for the federally compelled disclosure
of information by certain persons connected with the news media, and
ask for its immediate consideration.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 2102
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Free Flow of Information Act
of 2007''.
SEC. 2. COMPELLED DISCLOSURE FROM COVERED PERSONS.
(a) Conditions for Compelled Disclosure.--In any proceeding
or in connection with any issue arising under Federal law, a
Federal entity may not compel a covered person to provide
testimony or produce any document related to information
possessed by such covered person as part of engaging in
journalism, unless a court determines by a preponderance of
the evidence, after providing notice and an opportunity to be
heard to such covered person--
(1) that the party seeking to compel production of such
testimony or document has exhausted all reasonable
alternative sources (other than a covered person) of the
testimony or document;
(2) that--
(A) in a criminal investigation or prosecution, based on
information obtained from a person other than the covered
person--
(i) there are reasonable grounds to believe that a crime
has occurred; and
(ii) the testimony or document sought is essential to the
investigation or prosecution or to the defense against the
prosecution; or
(B) in a matter other than a criminal investigation or
prosecution, based on information obtained from a person
other than the covered person, the testimony or document
sought is essential to the successful completion of the
matter;
(3) in the case that the testimony or document sought could
reveal the identity of a source of information or include any
information that could reasonably be expected to lead to the
discovery of the identity of such a source, that--
(A) disclosure of the identity of such a source is
necessary to prevent imminent and actual harm to national
security with the objective to prevent such harm;
(B) disclosure of the identity of such a source is
necessary to prevent imminent
[[Page H11588]]
death or significant bodily harm with the objective to
prevent such death or harm, respectively; or
(C) disclosure of the identity of such a source is
necessary to identify a person who has disclosed--
(i) a trade secret of significant value in violation of a
State or Federal law;
(ii) individually identifiable health information, as such
term is defined in section 1171(6) of the Social Security Act
(42 U.S.C. 1320d(6)), in violation of Federal law; or
(iii) nonpublic personal information, as such term is
defined in section 509(4) of the Gramm-Leach-Bliley Act (15
U.S.C. 6809(4)), of any consumer in violation of Federal law;
and
(4) that nondisclosure of the information would be contrary
to the public interest, taking into account both the public
interest in compelling disclosure and the public interest in
gathering news and maintaining the free flow of information.
(b) Limitations on Content of Information.--The content of
any testimony or document that is compelled under subsection
(a) shall, to the extent possible--
(1) be limited to the purpose of verifying published
information or describing any surrounding circumstances
relevant to the accuracy of such published information; and
(2) be narrowly tailored in subject matter and period of
time covered so as to avoid compelling production of
peripheral, nonessential, or speculative information.
SEC. 3. COMPELLED DISCLOSURE FROM COMMUNICATIONS SERVICE
PROVIDERS.
(a) Conditions for Compelled Disclosure.--With respect to
testimony or any document consisting of any record,
information, or other communication that relates to a
business transaction between a communications service
provider and a covered person, section 2 shall apply to such
testimony or document if sought from the communications
service provider in the same manner that such section applies
to any testimony or document sought from a covered person.
(b) Notice and Opportunity Provided to Covered Persons.--A
court may compel the testimony or disclosure of a document
under this section only after the party seeking such a
document provides the covered person who is a party to the
business transaction described in subsection (a)--
(1) notice of the subpoena or other compulsory request for
such testimony or disclosure from the communications service
provider not later than the time at which such subpoena or
request is issued to the communications service provider; and
(2) an opportunity to be heard before the court before the
time at which the testimony or disclosure is compelled.
(c) Exception to Notice Requirement.--Notice under
subsection (b)(1) may be delayed only if the court involved
determines by clear and convincing evidence that such notice
would pose a substantial threat to the integrity of a
criminal investigation.
SEC. 4. DEFINITIONS.
In this Act:
(1) Communications service provider.--The term
``communications service provider''--
(A) means any person that transmits information of the
customer's choosing by electronic means; and
(B) includes a telecommunications carrier, an information
service provider, an interactive computer service provider,
and an information content provider (as such terms are
defined in sections 3 and 230 of the Communications Act of
1934 (47 U.S.C. 153, 230)).
(2) Covered person.--The term ``covered person'' means a
person engaged in journalism and includes a supervisor,
employer, parent, subsidiary, or affiliate of such covered
person.
(3) Document.--The term ``document'' means writings,
recordings, and photographs, as those terms are defined by
Federal Rule of Evidence 1001 (28 U.S.C. App.).
(4) Federal entity.--The term ``Federal entity'' means an
entity or employee of the judicial or executive branch or an
administrative agency of the Federal Government with the
power to issue a subpoena or issue other compulsory process.
(5) Journalism.--The term ``journalism'' means the
gathering, preparing, collecting, photographing, recording,
writing, editing, reporting, or publishing of news or
information that concerns local, national, or international
events or other matters of public interest for dissemination
to the public.
The SPEAKER pro tempore (Mr. Serrano). Pursuant to House Resolution
742, the amendment in the nature of a substitute printed in the bill is
adopted and the bill, as amended, is considered read.
The text of the bill, as amended, is as follows:
H.R. 2102
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Free Flow of Information Act
of 2007''.
SEC. 2. COMPELLED DISCLOSURE FROM COVERED PERSONS.
(a) Conditions for Compelled Disclosure.--In any matter
arising under Federal law, a Federal entity may not compel a
covered person to provide testimony or produce any document
related to information obtained or created by such covered
person as part of engaging in journalism, unless a court
determines by a preponderance of the evidence, after
providing notice and an opportunity to be heard to such
covered person--
(1) that the party seeking to compel production of such
testimony or document has exhausted all reasonable
alternative sources (other than the covered person) of the
testimony or document;
(2) that--
(A) in a criminal investigation or prosecution, based on
information obtained from a person other than the covered
person--
(i) there are reasonable grounds to believe that a crime
has occurred; and
(ii) the testimony or document sought is critical to the
investigation or prosecution or to the defense against the
prosecution; or
(B) in a matter other than a criminal investigation or
prosecution, based on information obtained from a person
other than the covered person, the testimony or document
sought is critical to the successful completion of the
matter;
(3) in the case that the testimony or document sought could
reveal the identity of a source of information or include any
information that could reasonably be expected to lead to the
discovery of the identity of such a source, that--
(A) disclosure of the identity of such a source is
necessary to prevent an act of terrorism against the United
States or its allies or other significant and specified harm
to national security with the objective to prevent such harm;
(B) disclosure of the identity of such a source is
necessary to prevent imminent death or significant bodily
harm with the objective to prevent such death or harm,
respectively; or
(C) disclosure of the identity of such a source is
necessary to identify a person who has disclosed--
(i) a trade secret, actionable under section 1831 or 1832
of title 18, United States Code;
(ii) individually identifiable health information, as such
term is defined in section 1171(6) of the Social Security Act
(42 U.S.C. 1320d(6)), actionable under Federal law; or
(iii) nonpublic personal information, as such term is
defined in section 509(4) of the Gramm-Leach-Biley Act (15
U.S.C. 6809(4)), of any consumer actionable under Federal
law; and
(4) that the public interest in compelling disclosure of
the information or document involved outweighs the public
interest in gathering or disseminating news or information.
(b) Limitations on Content of Information.--The content of
any testimony or document that is compelled under subsection
(a) shall--
(1) not be overbroad, unreasonable, or oppressive and, as
appropriate, be limited to the purpose of verifying published
information or describing any surrounding circumstances
relevant to the accuracy of such published information; and
(2) be narrowly tailored in subject matter and period of
time covered so as to avoid compelling production of
peripheral, nonessential, or speculative information.
(c) Rule of Construction.--Nothing in this Act shall be
construed as applying to civil defamation, slander, or libel
claims or defenses under State law, regardless of whether or
not such claims or defenses, respectively, are raised in a
State or Federal court.
SEC. 3. COMPELLED DISCLOSURE FROM COMMUNICATIONS SERVICE
PROVIDERS.
(a) Conditions for Compelled Disclosure.--With respect to
testimony or any document consisting of any record,
information, or other communication that relates to a
business transaction between a communications service
provider and a covered person, section 2 shall apply to such
testimony or document if sought from the communications
service provider in the same manner that such section applies
to any testimony or document sought from a covered person.
(b) Notice and Opportunity Provided to Covered Persons.--A
court may compel the testimony or disclosure of a document
under this section only after the party seeking such a
document provides the covered person who is a party to the
business transaction described in subsection (a)--
(1) notice of the subpoena or other compulsory request for
such testimony or disclosure from the communications service
provider not later than the time at which such subpoena or
request is issued to the communications service provider; and
(2) an opportunity to be heard before the court before the
time at which the testimony or disclosure is compelled.
(c) Exception to Notice Requirement.--Notice under
subsection (b)(1) may be delayed only if the court involved
determines by clear and convincing evidence that such notice
would pose a substantial threat to the integrity of a
criminal investigation.
SEC. 4. DEFINITIONS.
In this Act:
(1) Communications service provider.--The term
``communications service provider''--
(A) means any person that transmits information of the
customer's choosing by electronic means; and
(B) includes a telecommunications carrier, an information
service provider, an interactive computer service provider,
and an information content provider (as such terms are
defined in sections 3 and 230 of the Communications Act of
1934 (47 U.S.C. 153, 230)).
(2) Covered person.--The term ``covered person'' means a
person who, for financial gain or livelihood, is engaged in
journalism and includes a supervisor, employer, parent,
subsidiary, or affiliate of such covered person. Such term
shall not include--
[[Page H11589]]
(A) any person who is a foreign power or an agent of a
foreign power, as such terms are defined in section 101 of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801); or
(B) any organization designated by the Secretary of State
as a foreign terrorist organization in accordance with
section 219 of the Immigration and Nationality Act (8 U.S.C.
1189).
(3) Document.--The term ``document'' means writings,
recordings, and photographs, as those terms are defined by
Federal Rule of Evidence 1001 (28 U.S.C. App.).
(4) Federal entity.--The term ``Federal entity'' means an
entity or employee of the judicial or executive branch or an
administrative agency of the Federal Government with the
power to issue a subpoena or issue other compulsory process.
(5) Journalism.--The term ``journalism'' means the
gathering, preparing, collecting, photographing, recording,
writing, editing, reporting, or publishing of news or
information that concerns local, national, or international
events or other matters of public interest for dissemination
to the public.
The SPEAKER pro tempore. After 1 hour of debate on the bill, as
amended, it shall be in order to consider the amendment printed in
House Report 110-383 if offered by the gentleman from Virginia (Mr.
Boucher) or his designee, which shall be in order without intervention
of any point of order or demand for division of the question, shall be
considered read, and shall be debatable for 10 minutes, equally divided
and controlled by the proponent and an opponent.
The gentleman from Michigan (Mr. Conyers) and the gentleman from
Texas (Mr. Smith) each will control 30 minutes.
The Chair recognizes the gentleman from Michigan.
General Leave
Mr. CONYERS. Mr. Speaker, I ask unanimous consent that all Members
may have 5 legislative days in which to revise and extend their remarks
on H.R. 2102.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Michigan?
There was no objection.
Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
Ladies and gentlemen of the House, in recent years, the press has
been under assault as reporters are increasingly being imprisoned,
imprisoned for obstruction of justice and other charges. There are many
causes of these attacks, including an increasingly consolidated media,
abuse of position of power to intimidate members of the press, and a
co-opting of the media as an investigative arm of the government.
Today, we are here in an attempt to reclaim one of the most
fundamental principles enshrined by the Founding Fathers in the first
amendment to the Constitution. Freedom of the press is the cornerstone
of our democracy. Without it, we cannot have a well-informed electorate
and a government that truly represents the will of the people.
This measure before us, H.R. 2102, the Free Flow of Information Act,
helps restore the independence of the press so that it can perform its
essential duty of getting information to the public. The bill will
ensure that members of the press are free to utilize confidential
sources without causing harm to themselves or their sources by
providing a qualified privilege that prevents a reporter's source
material from being revealed except under certain narrow circumstances.
This measure balances the public's right to know against the legitimate
and important interests that society has in maintaining public safety.
After the hearing and markup of this legislation, the sponsors of the
bill worked hard to accommodate the concerns of all that were raised.
While several good changes were made, I want to focus my comments today
on the issue of national security and why I believe concerns about
national security have been very effectively addressed in the bill and
in the proposed manager's amendment.
The bill provides that disclosure of a source can be compelled where
necessary to prevent an act of terrorism or significant specified harm
to national security. The manager's amendment that will be offered by
our colleagues, Mr. Boucher and Mr. Pence, specifically addresses the
Department of Justice and DNI's primary concern, which is that the
bill's exception for national security concerns would hinder efforts to
investigate and prosecute leakers of classified information.
In response to this concern, the manager's amendment provides that
disclosure of a source can be compelled in a criminal investigation or
prosecution of an unauthorized disclosure of properly classified
information when such disclosure will cause significant harm to
national security.
The bill defines a covered person to exclude foreign powers or agents
of foreign powers, so that, for example, a government-controlled
newspaper of a foreign nation does not receive the protections of the
act. This provision insures that our national security and law
enforcement efforts will not be flouted by foreign governments that try
to hold themselves out as covered journalists and claim entitlement to
the act's protections.
The bill makes it clear that any foreign terrorist organization
designated by the Secretary of State is excluded from the protections
of the act.
In addition, the manager's amendment adds three more exceptions to
the definition of ``covered person,'' so the privilege does not apply
to any person designated as a specially designated global terrorist by
the Treasury Department, any person who is specially designated a
terrorist under FISA, and any terrorist organization as defined in the
Immigration and Nationality Act.
Each of these exceptions were proposed by the Department of Justice
and accepted by us. So, as you can see, the bill provides broad
protection for national security.
{time} 1545
If the exceptions were any broader, it would swallow up the rule
itself. And for those who claim that the national security exception
should not also be subject to the balancing test, I have no doubt that
if a court finds that the disclosure of the source is necessary to
prevent an act of terrorism or other harm to national security, it will
also find that disclosure outweighs the public interest in gathering
and disseminating the information.
So it is our responsibility, Congress's responsibility, to ensure the
press is able to perform its job adequately. The Free Flow of
Information Act is an important part of fostering the continued growth
of a free and independent press in the United States. It will encourage
increased dialogue on the issues that face this country; and, in doing
so, it will strengthen the foundation of our democracy.
This legislation receives wide support. Over 100 editorial boards, a
diverse group of over 50 media companies and organizations, including
the Newspaper Association of America, the National Association of
Broadcasters, the Associated Press, News Corp, the Newspaper Guild,
ABC, NBC, and journalist organizations like the Reporters Committee for
Freedom of the Press and the American Society of Newspaper Editors.
Please join with us on both sides of the aisle so that we can support
and pass this important piece of legislation.
Mr. Speaker, I reserve the balance of my time.
Mr. SMITH of Texas. Mr. Speaker, I yield myself such time as I may
consume.
First of all, I would like to say to my colleagues that beginning
last night in the early evening and continuing and extending to this
morning, a number of us have been in touch with each other about the
provisions of this bill with the hope and expectation that we might be
able to resolve our differences. I have been in touch with the White
House. I have been in touch with the principal sponsors of the
legislation; and I think we had engaged in some good-faith efforts to
try to, as I say, resolve our differences.
Specifically, I had been hopeful that the other side would accept
some of the provisions that had been in an amendment that I had hoped
to offer today. Unfortunately, that amendment was not allowed by the
Rules Committee. So Members of the House are not going to be able to
vote on that amendment, which, in my judgment, would have improved the
bill. There were a couple of provisions in that amendment, though, that
I thought would be of interest to the sponsors of the bill and to the
other side, and I regret that we were not able to come to a meeting of
the minds, because I think that would have improved the bill and also
yielded a better result when the bill perhaps becomes law.
[[Page H11590]]
Mr. Speaker, I also want to say to my colleagues that, if anything, I
have a sympathy for the media, for the press. Long ago and far away, I
was a newspaper reporter and spent 2 years writing articles, and so I
have stood in the shoes of those who are reporters today. After being a
reporter for a couple of years, I went to law school; and while in law
school I actually wrote an article for the Texas Bar Journal called
``Politicians Versus the Press: Libel in Texas,'' and I actually came
down on the side of the press. So that is where my sympathies lie.
However, in the case of this bill, I am afraid I cannot support it.
And because we were not able to reach a compromise on the bill, I
remain opposed to the bill, the White House remains opposed to the
bill, the Director of National Intelligence remains opposed to the
bill, and the Department of Justice remains opposed to the bill.
Unfortunately, it is still so flawed that we cannot support it.
Mr. Speaker, a free press strengthens democracy. In our Nation the
first amendment of the Constitution guarantees the press their freedom
to report. And for 200 years in this Nation, the press, in fact, has
flourished. Information has flowed freely. And that is why I believe
this bill is simply a solution in search of a real problem.
Members of the private sector and law enforcement officials believe
H.R. 2102 diminishes legal rights, public safety, and our national
security. We must ensure that whistleblowers can expose crimes, waste,
and wrongdoing. But we should not create a protection so broad that
those who would destroy people's reputations, businesses, and privacy
can hide behind it.
The Federal Government defends our national security; so we must
weigh the benefits of a reporter's privilege with the problems it may
cause for those who protect our country.
I thank the primary authors of H.R. 2102, Mr. Boucher and Mr. Pence,
for working with the Department of Justice, interested groups, and
Members to develop alternative language to address legitimate concerns
of industry and law enforcement authorities. Despite efforts to
accommodate their concerns, the Justice Department and the acting
Director of National Intelligence, as I mentioned a while ago, still
oppose this bill for very good reasons. The White House also opposes
the bill and a veto is likely. The President's senior advisers, in
fact, have recommended a veto of this bill. They believe the stakes are
too high in a post-9/11 world to support the Free Flow of Information
Act.
For example, they have pointed out that the exceptions language fails
to address misconduct that the Justice Department confronts on a daily
basis. To illustrate, neither the bill nor the manager's amendment that
will be offered contains exceptions language allowing DOJ to obtain the
identity of a new source with the knowledge of a child prostitution
ring, an online purveyor of pornography, gang violence, or alien
smuggling, all examples.
And the text governing source disclosure exceptions only addresses
prospective events, not past events. For example, the Department may be
able to acquire information about a source's identity to prevent a
terrorist attack like September 11; but if al Qaeda decides to tell a
media outlet on September 12 how it planned and carried out the attack,
DOJ could not compel that media outlet to reveal its terrorist sources
while conducting an investigation.
If a child molester spoke to a journalist and revealed that he
molested a child yesterday, under this bill Justice officials could not
compel that journalist to reveal his sources and cooperate in the
investigation. The Department of Justice will be hamstrung as it goes
about the business of conducting investigations and prosecuting
criminals.
Yes, numerous States have shield laws, but they run the gamut; and
many are not near as broad as the Federal shield law proposed today.
But the key difference is that the States are not entrusted with the
responsibility of defending our country; the Federal Government is.
Under the bill, DOJ carries the burden of trying to establish a
national security imperative which can still be negated by a judge's
subjective notion of what constitutes the public interest in news
gathering. The bill's terms will be subject to the different opinions
of hundreds of Federal judges across the country.
The bill is simply a solution in search of a problem. It has been 35
years since the Supreme Court ruled that the first amendment does not
shield journalists in grand jury proceedings. The Justice Department
has issued only 19 subpoenas to reporters seeking confidential source
information since 1991. Only 19 subpoenas since 1991. The system is not
broken. So why are we trying to fix it?
I simply believe we must err on the side of caution and not support
legislation that could make it harder to apprehend criminals and
terrorists or to deter their activities.
Mr. Speaker, I reserve the balance of my time.
Mr. CONYERS. Mr. Speaker, I yield myself 1 minute before turning to
the gentleman from Virginia (Mr. Boucher).
I want to just take this time to say to the distinguished ranking
member of Judiciary, Lamar Smith, how much we appreciate his
constructive work with the working group that has been trying to come
together to reach an agreement on this bill. At all times he has been
straightforward, candid; and we think that the work that we are doing
should go on, even though we are bringing the bill up today and it is
moving forward. And I invite his continued working with us so that we
can reach as much conclusion as we can on the several points that are
outstanding.
Mr. Speaker, I now yield 4 minutes to the gentleman who has put so
much work into this matter, the distinguished gentleman from Virginia,
Rick Boucher, the author of this bill.
(Mr. BOUCHER asked and was given permission to revise and extend his
remarks.)
Mr. BOUCHER. Mr. Speaker, I thank the gentleman from Michigan, the
distinguished chairman of the House Judiciary Committee, for yielding
this time to me. I want to thank Chairman Conyers also for his strong
leadership and his persistent effort that has resulted in this
bipartisan measure's coming to the floor of the House this afternoon.
His leadership has been invaluable to the success that we will
experience when this measure is approved by the House later today.
I also want to commend the outstanding work of the gentleman from
Indiana (Mr. Pence), who has devoted his personal time and his
commitment to this bipartisan undertaking. He is the lead Republican
sponsor of this bill, and I want to say to him how much I appreciate
the productive partnership that he and I have formed and the tremendous
work that he has done in moving this measure forward. We truly would
not be where we are today without the constructive work of Mr. Pence.
He and I are joined by a total of 71 House cosponsors, who, on a
bipartisan basis, believe that the time has arrived for the Congress to
extend to journalists a privilege to refrain from revealing their
confidential sources of information in Federal court proceedings.
The privilege our bill provides is similar to those currently
extended by statutes in 34 States and in the District of Columbia. The
ability to assure confidentiality to people who provide information is
essential to effective news gathering and reporting. Typically, the
best information that can be received about events like corruption in
government or misdeeds in a large private organization, such as a
corporation or a large public charity, will come from someone on the
inside who feels a responsibility to contact a reporter and bring that
sensitive information to public scrutiny.
But that person has a lot to lose if his or her identity becomes
known. In many cases the person responsible for the corruption or the
misdeeds can punish that individual through dismissal from employment
or through more subtle means if the identity of that confidential
source is disclosed. In most sensitive cases it is only by assuring
anonymity to the source that a reporter can gain access to the
information and bring that information to public light.
By granting to reporters a qualified privilege to refrain from
revealing their confidential news sources, we are clearly protecting
the public's right to know. And public knowledge of misdeeds can lead
to the corrective action
[[Page H11591]]
of criminal charges or of the passage, perhaps, of legislation.
While extending a broad privilege, we have included some exceptions
for instances in which source information can and should be disclosed
where a strong public interest compels that disclosure. The exceptions
include disclosures to prevent an act of terrorism or to prevent an
imminent and actual harm to national security, to prevent imminent
death or significant bodily harm, or to determine who has disclosed
trade secrets or personal health or personal financial information in
violation of law.
{time} 1600
An amendment that I will be offering shortly, along with Mr. Pence,
will permit disclosure in a number of other instances, including the
instance of the leak of certain kinds of classified information.
In every instance, an exception to the privilege will only apply if
the court determines that the public interest and disclosure outweighs
the public interest in protecting news gathering and news
dissemination. Our measure extends a needed privilege; it will protect
the public's right to know.
I again want to thank Chairman Conyers and his outstanding staff for
the work that they have done which leads to this measure arriving on
the floor today. And I thank my partner, Mr. Pence, for his outstanding
efforts.
Mr. SMITH of Texas. Mr. Speaker, before I yield to a colleague, I
want to yield myself 1 minute.
Mr. Speaker, what I want to do is read an excerpt from the Statement
of Administration Policy that might respond to some of the points that
have been made.
The administration said that if H.R. 2102 were presented to the
President in its current form, his senior advisers would recommend that
he veto the bill, and here's one of the reasons why:
``The bill would impose an unreasonable and unjustified evidentiary
burden on prosecutors seeking to issue a subpoena to a member of the
news media, placing authorities in an untenable position.
``In order to satisfy the bill's requirements, prosecutors
essentially must prove the existence of specific criminal activity in a
hearing before a judge, with notice to the subjects of the
investigation, before they will be able to undertake the necessary
investigative steps to determine whether a crime has occurred. Thus, in
many cases, prosecutors will have to conduct a minitrial before their
investigation has concluded, and in some cases, even before their
investigation has gotten off the ground.''
Mr. Speaker, I am now happy to yield to the gentleman from Missouri,
the minority whip (Mr. Blunt).
Mr. BLUNT. Mr. Speaker, I thank the gentleman for yielding.
I want to also thank my good friends, Mr. Pence and Mr. Boucher, for
working so hard on this legislation. I think it was first introduced 3
years ago. I was a cosponsor of it at the time and I am a cosponsor
today. And I want to mention the hard work that Mr. Conyers has done to
get this legislation to this point today after a long effort, and also
to suggest that the hard work of my good friend, Mr. Smith, is deeply
appreciated.
I'm always hesitant when I rise on the House floor with any position
that's different than his, but this is a place where I really do think
that it's important to draw a line, and important, a bright line,
between the information that people have access to and how they get it.
I certainly can't say that I agree with everything I read in a
newspaper article or that I see on the evening news or that I hear on a
local radio program, but I can say that the public is best served by
maintaining the free flow of information on matters of public interest.
As James Madison said in the report of 1800, arguing against the
Sedition Act, ``To the press alone, checkered as it is with abuses, the
world is indebted for all the triumphs that have been gained by reason
and humanity over error and oppression.'' Madison, Jefferson and our
history lead to the conclusion that a free press is essential for a
free people.
In the past few years, there have been too many instances where the
pendulum has swung against the free flow of information and in favor of
the government. I was troubled by the instances I've seen where
reporters have been jailed or threatened with jail for simply
protecting their sources. Journalists should be the last resort, not
the first stop, for civil litigants and for prosecutors attempting to
obtain the identity of confidential sources.
In my view, continuing to compel reporters to reveal the identity of
their confidential sources will result in a chilling effect on the free
flow of information and be detrimental to the public interest.
Nevertheless, the privileges that reporters have should not be
unlimited, they should not be absolute, and this bill defines those
exceptions in an important way. This bill says that in cases where it's
necessary to reveal a source to prevent an act of terrorism, to prevent
other significant harm to national security, to prevent imminent death
or significant bodily harm, the reporter can be compelled. It also
includes an exception in cases where a properly classified national
security secret along with financial information, a trade secret or
personal medical information has been improperly leaked, where that
reporter can face a penalty.
Finally, it excludes from protection terrorists and their media arms.
Yes, there are times when confidentiality must be breached, and I
believe this bill strikes that balance. Forty-nine States and the
District of Columbia have legislation similar to this, but this
establishes a national standard.
Again, I thank my colleagues for the hard work to bring this to the
floor. I look forward to the vote today, and I urge my colleagues to
support this bill.
Mr. CONYERS. Mr. Speaker, I am pleased now to yield 1 minute to Ms.
Shelley Berkley of Nevada.
Ms. BERKLEY. I thank the gentleman from Michigan for being in the
forefront of this issue as well as all other issues regarding the civil
liberties of our fellow Americans, and a special thank you to Mr.
Boucher and Mr. Pence for their outstanding work on this particular
piece of legislation.
Mr. Speaker, I rise in strong support of the Free Flow of Information
Act. This legislation strikes a careful balance by protecting
journalists from being forced to reveal confidential sources unless
there is an imminent threat to our national security.
I've heard from journalists and broadcasters in my district about the
importance of being able to protect their sources without risking
prosecution. Without this protection, stories involving conditions at
the Walter Reed Army Medical Center, prisoner abuse at Abu Ghraib, and
the unmasking of the culprits behind the Enron scandal might never have
been written.
I wholeheartedly support this legislation, and I urge my colleagues
to do the same.
Mr. SMITH of Texas. Mr. Speaker, I yield 3 minutes to the gentleman
from Indiana, a distinguished member of the Judiciary Committee and one
of the original sponsors of the legislation we are debating today.
(Mr. PENCE asked and was given permission to revise and extend his
remarks.)
Mr. PENCE. I thank the gentleman for yielding.
I want to thank Ranking Member Smith for his spirit of cooperation on
this legislation. While we may differ ultimately on the vote today, he
is a public-minded man deeply committed to the free press, and I
appreciate his engagement.
My heartfelt thanks to Chairman Conyers for his yeoman's work in
moving this legislation forward. And I also want to express my profound
gratitude to the gentleman from Virginia, Congressman Rick Boucher, who
is the lead sponsor of this legislation today and has been my partner
these last 3 years as we've moved the Free Flow of Information Act to
this moment on the House floor.
This legislation today is a direct result of his bold and thoughtful
leadership, and it is a result of a bipartisan partnership that has
been a singular, personal and professional pleasure for me.
As a conservative who believes in limited government, I believe the
only check on government power in real time is a free and independent
press. The Free Flow of Information Act is not about protecting
reporters; it's about protecting the public's right to know.
[[Page H11592]]
Not long ago, reporters' assurance of confidentiality was
unquestionable, but today the press cannot currently make the same
assurances, and we face a time when there may never be another Deep
Throat. Compelling reporters to testify, in particular, compelling them
to reveal the identity of confidential sources is a detriment to the
public interest.
The Free Flow of Information Act has been carefully crafted after
reviewing internal Department of Justice guidelines, State shield laws,
and other gathering input from interested parties. In most instances,
under our bill, a reporter will be able to use the shield provided to
refrain from testifying or providing documents or revealing a source,
but the privilege is not absolute or unlimited. Testimony or documents
can be forced if all other reasonable alternative sources have been
exhausted, it's critical to a criminal prosecution, and a judge
determines, through a balancing act, that its disclosure is in the
public interest.
In a situation where a reporter is being asked to reveal the identity
of a source, the bill provides several exceptions where a reporter can
be compelled to reveal a source, and in the Boucher-Pence manager's
amendment we will add additional exceptions to this bill under which
compelled disclosure of a source will be permitted in cases of
unauthorized leaks of national security secrets.
It is important to know what the bill does not do. It does not give
reporters a license to break the law, the right to interfere with
police or prosecutors; it simply gives journalists certain rights and
abilities to seek sources and report information without intimidation.
Lastly, let me say how humbling it is for me to have played a small
role in moving this legislation forward. From my youth, I have enjoyed
a fascination with freedom and the Constitution. I learned early on
that freedom's work is never finished, that it falls on each generation
to preserve the freedoms we inherit. The banner of the Indianapolis
Star in my home State reads below the name, ``Where the spirit of the
Lord is, there is freedom.'' I opened my Bible this morning for my
devotions, and it was that verse that happened to be in my daily
readings; just happened to be. It reminded me of when we do freedom's
work by putting a stitch in a tear in the fabric of the Bill of Rights,
His work has truly become our own.
I urge my colleagues and both parties to join us in freedom's
unfinished work. Say ``yes'' to the Free Flow of Information Act.
Mr. CONYERS. Mr. Speaker, I am pleased to have the gentleman from
Kentucky working with us (Mr. Yarmuth) and I yield to him 2 minutes in
support of this measure.
Mr. YARMUTH. I thank the chairman. And I also want to thank Mr.
Boucher and Mr. Pence for inviting me to become an original cosponsor
of this important piece of legislation.
As the only member of the Society of Professional Journalists in
Congress and as a former journalist, I fully understand how assurances
of anonymity put a frightened insider at ease and turn a reluctant
source into an eye-opening wealth of information.
At my newspaper in Louisville, we were able to open doors for the
community on several occasions due to confidential accounts of
protected sources which would have otherwise remained closed to us
forever. Also, at Louisville, we saw what happens when we fail to
protect a source's identity. There, Jeffrey Wigand, the famous tobacco
whistle-blower, was victimized by threats and intimidation, ultimately
losing his job, his family and his home. He is considered a hero today,
but for many the lesson from that episode was, if you have
incriminating information that will benefit the American public, just
keep it to yourself.
The first amendment to the Constitution demands the right to free
press. Now it falls on Congress to help facilitate that freedom
pursuant to our authority vested in us by the first article of the
Constitution. And speaking of article I of the Constitution, the
article vests all legislative power in the Congress of the United
States. It doesn't ask us to ask the White House first whether it
approves of what we do. It actually imposes on us, not just the right,
but the responsibility to legislate in the best interests of the
country. And that's what we are doing with this legislation.
Without the Free Flow of Information Act, we, as a country, will be
in the dark on certain issues, conscientious journalists will be
imprisoned, and potential sources will remain tight lipped.
I urge my colleagues to join me in supporting this crucial measure.
Mr. SMITH of Texas. Mr. Speaker, I yield 1 minute to my friend from
North Carolina (Mr. Coble), a distinguished member of the Judiciary
Committee and the ranking member of the Intellectual Property
Subcommittee of the Judiciary Committee.
Mr. COBLE. I thank the gentleman.
H.R. 2102 was approved by the House Committee on the Judiciary by
voice vote.
I feel strongly, Mr. Speaker, that the administration's opposition to
this legislation is misguided.
Former Solicitor General of the United States, Theodore Olson, wrote
that ``the legislation is well balanced and long overdue, and it should
be enacted.''
The bill is good policy, and I urge all Members to vote in support of
final passage and in support of the manager's amendment.
In closing, I want to thank the sponsors of the legislation, the
distinguished gentleman from Virginia, the distinguished gentleman from
Indiana, Representatives Boucher and Pence, respectively. Both have
been champions for H.R. 2102 and have diligently worked to address all
concerns throughout the legislative process, as have Chairman Conyers
and Ranking Member Smith.
Mr. SMITH of Texas. Mr. Speaker, I yield 1 minute to the gentleman
from Florida (Mr. Keller), a diligent member of the Judiciary
Committee.
Mr. KELLER of Florida. I thank the gentleman for yielding.
Mr. Speaker, I rise in strong support of the Free Flow of Information
Act. This media shield legislation is important because off-the-record,
confidential sources are needed to help journalists get to the truth,
and I don't want reporters thrown in jail for doing their jobs.
Our history is full of examples of confidential sources exposing
corruption, fraud and misconduct. For example, the Watergate scandal
was blown wide open by Deep Throat, a confidential source we now know
to be Mark Felt, the number two person at the FBI. Confidential sources
also exposed the cooked books at Enron, and the unacceptable treatment
of soldiers recovering at Walter Reed.
A free and independent press which protects the public's right to
know is needed for a healthy democracy and government accountability.
That's why a majority of States already have media shield laws on the
books, and why we need this law on the Federal level.
I urge my colleagues to vote ``yes'' on the Free Flow of Information
Act.
{time} 1615
Mr. SMITH of Texas. Mr. Speaker, I yield myself 1 minute.
Mr. Speaker, I would like to read an excerpt from the Department of
Justice's letter in opposition to the bill we are discussing: ``Given
the extensive safeguards already in place, the Department strongly
opposes H.R. 2102 and similar legislative efforts to provide a
`journalist's privilege' that would prevent the disclosure of relevant
testimony and evidence critical to the fair disposition of
investigations and trials.
``H.R. 2102 would make it virtually impossible to enforce certain
Federal criminal laws, particularly those pertaining to the
unauthorized disclosure of classified information, and would seriously
impede other national security investigations and prosecutions,
including terrorism prosecutions.
``H.R. 2102 would undermine national security and other law
enforcement investigations by permitting compelled disclosure of a
media source only when necessary to prevent a terrorist attack against
the United States and only when the bill's other burdensome
prerequisites are satisfied.''
But the problem here is that it would not allow us to get to the
information after the fact. You could not force a journalist to
disclose information, for instance, after a terrorist attack when you
want to find out who was involved
[[Page H11593]]
in that attack. For that reason, we should oppose the bill.
Mr. CONYERS. Mr. Speaker, I yield myself 5 minutes.
Mr. Speaker, I would like to begin by complimenting Mike Pence of
Indiana, a distinguished member of the Judiciary Committee who has been
working on this bill before the 110th Congress. He was a leader in
supporting this legislation in the 109th Congress and may have been
working on it even before then. So when I listened to my other
colleagues on the other side who have been working on and continue to
support this legislation, I think it is very easy to perceive that with
the working group, with the leaders on both sides of the aisle working
with Rick Boucher on this for so long, we have now come to a point
where most of the concerns have been addressed; and I deeply thank my
colleagues on the Judiciary Committee for the constructive role they
played not only in their independent capacity, but in the working group
that has been working behind the scenes on this, as well.
Now, Members of the House, there has been something said about the
importance of national security information. Sometimes it is just as
important that the press report on information that the government has
tried to hide in the name of national security. Because the problem
frequently is that if we keep going after journalists trying to shut
them up, trying to put them in jail, or threatening to prosecute them,
they will be afraid to report some of the important stories that I am
going to relate to you that up until now journalists have had to take
it on their own risk to decide what to do. I don't think that is
appropriate, nor is it necessary, nor is it contrary to any of our
concerns about national security.
The history of the American press provides ample evidence of certain
stories that would have never been known to the general public without
the news media's use of confidential sources. Oftentimes these stories
shed light on government misconduct, on corporate waste, fraud and
abuse, and other matters of concern. The free flow of information to
the public is vitally important to the operation of our democracy and
to oversight our most powerful public and private institutions.
Now, here are a few examples of issues that were made known to the
public through news reports based on confidential source information.
Reporters decided that they would honor the confidence of their
resources no matter what happened to them. These are courageous people
of the media that had to take this on themselves. So this shield law is
to take people out of this bind, out of this fear of having to be
coerced because we don't know what is going to happen. This draws a
very bright line for everybody to understand how we should proceed in
the future.
Here is a matter that is important: the unsafe and deteriorating
conditions at the Walter Reed Army Medical Center. Here is another
public interest matter: the exposure of fertility fraud in Southern
California based upon clinical records provided by anonymous sources,
reporting more than 250 accounts of fertility fraud and revealed
coverups, intimidation of clinical employees and bribery. Because of
this reporting, the American Medical Association issued new guidelines
for fertility clinics.
Here is another story that was of some consequence: a hospital
scandal of patient dumping by a Los Angeles County emergency aid
program. Reporting that article prompted a government investigation
that brought it to an end. Rampant steroid use in Major League Baseball
by world-class athletes which, in part, led Major League Baseball and
its players union to open up its labor contract and adopt a steroid
testing policy.
Mr. Speaker, I reserve the balance of my time.
Mr. SMITH of Texas. Mr. Speaker, I yield 1 minute to my friend and
colleague from Texas (Mr. Poe).
Mr. POE. Mr. Speaker, I thank the gentleman for yielding.
Mr. Speaker, The Free Flow of Information Act helps ensure that our
press remains free. Our Constitution provides for a free press in the
first amendment. The first amendment is first for a reason. It is the
most important. Without the first amendment freedom of press, speech,
religion and assembly, all the rest of the amendments are meaningless.
A free press provides for a free flow of information.
I agree with the doctrine: a free press will ensure a fair press. The
president and publisher of the Houston Chronicle, Jack Sweeney, said
today: ``Journalists should be the last resort, not the first stop for
civil litigants and prosecutors attempting to obtain the identity of
confidential sources. This bill would protect the public's right to
know, while at the same time honoring the public interest in having
reporters testify in certain circumstances.''
This bill really does not create a new special protection. It gives
journalists the protection that is already afforded to them in 49
States which protect the confidentiality of reporters' sources. Federal
protection is long overdue.
Mr. Speaker, I gladly cosponsor this bill, and that's just the way it
is.
Mr. SMITH of Texas. Mr. Speaker, I yield 1 minute to my distinguished
colleague from Oregon (Mr. Walden).
Mr. WALDEN of Oregon. Mr. Speaker, as a graduate of the School of
Journalism at the University of Oregon and as the owner of radio
stations with award-winning journalists, I am a firm believer in the
need for journalists to be able to protect their confidential sources
so they can have a vibrant and free press in America.
This bill is about much more than simply shielding reporters. It is
about protecting the public's right to know. Jailing reporters to force
them to divulge their sources has a chilling affect on whistleblowers
and investigative reporters.
Thomas Jefferson said: ``Our liberty cannot be guarded but by the
freedom of the press nor that be limited without danger of losing it.''
A vote for the Free Flow of Information Act is a vote to protect
citizens and taxpayers from an ominous and oppressive government that
seeks to silence its critics. And in America, such government power
would threaten our freedom and our informed democracy.
Mr. SMITH of Texas. Mr. Speaker, may I ask how much time remains on
each side.
The SPEAKER pro tempore (Mr. Serrano). The gentleman from Texas has
11 minutes remaining. The gentleman from Michigan has 9\1/2\ minutes
remaining.
Mr. SMITH of Texas. Mr. Speaker, I yield myself 2 minutes.
Mr. Speaker, I would like to read for my colleagues an excerpt of a
letter we received from the Office of the Director of National
Intelligence:
``We are joining the Department of Justice in opposing H.R. 2102, the
Free Flow of Information Act of 2007. We share the Department's strong
opposition to H.R. 2102 articulated in its letter of July 31, 2007.
``The government must retain the ability to obtain information from
the press that would both prevent harm to the United States and its
citizens and to identify and bring to justice those who cause such
harm. Unfortunately, press reports on U.S. intelligence activities have
been a valuable source of intelligence to our adversaries. Former
Russian military intelligence Colonel Stanislav Lunev wrote: `I was
amazed, and Moscow was very appreciative, at how many times I found
very sensitive information in American newspapers. In my view,
Americans tend to care more about scooping their competition than about
national security, which made my job easier.''
What an indictment.
Finally, and I am quoting from the letter: ``The bill, as drafted,
would require that identification of the source be necessary to prevent
an act of terrorism or other significant and specified harm to the
national security. It would not, however, allow the government to
compel the identification of a source if it was necessary to identify
the perpetrators of a completed act of terrorism or an act that harmed
the national security. Similarly, the bill could authorize the
government to compel the identification of a source in order to prevent
imminent death or bodily harm, but would not allow the government to
compel disclosure of a source in order to identify a murderer.
``For these reasons and for the reasons set out in the letter from
the Department of Justice, we urge the Congress to reject this bill.''
Mr. Speaker, that is a letter from the Office of the Director of
National Intelligence.
Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
[[Page H11594]]
Mr. Speaker, during our negotiations led by the Boucher-Pence team, I
would like to bring to the attention of the ranking member and manager
of this bill before us an important change that was made in the
manager's amendment which may or may not have come to his attention
because it was made so late in the day. We now have a manager's
amendment that would allow the government to pierce the journalistic
shield to prevent a terrorist attack, but also to identify any
perpetrators of a terrorist attack. I wanted to make sure that my
friend and colleague was aware of this very important change because it
was made at the very last minute.
Mr. Speaker, I will submit a number of articles from newspapers,
mostly editorials, that deal with the support of the shield law that is
before the Congress at this time.
We have a contribution from the Post-Standard in Syracuse, New York,
entitled, ``The Shield Law Moves Closer to Reality,'' dated 14 October
of this year.
In the Baltimore Sun, we had an opinion written yesterday in that
newspaper, ``In Search of Shield,'' in support of the legislation.
We have heard from the Detroit Free Press from today's paper, ``Vote
to Pass Law to Shield Reporters,'' in support of this legislation.
The Los Angeles Times earlier in May wrote an article: ``Shielding
Journalists: Reporters, and the Country, Would Benefit from a Proposed
Federal Law to Protect Confidential Sources.''
The Detroit News in May of this year wrote, ``Why a Federal Shield
Law is Necessary,'' authored by Christine Tatum.
The New York Times in two different instances in September and
October of this year, ``A Shield for the Public,'' was the editorial
page comment, and in October, ``The Public's Right to Know,'' another
important article in support of this legislation.
{time} 1630
Here's one that the ranking member would be interested in. The San
Antonio Express-News: ``Smith's Decision on Shield Law Critical.'' We
hope that had come to his attention before today.
The Washington Post, in September: ``Protecting Sources.''
Another important contribution: ``A Much-Needed Shield for
Reporters,'' written by Theodore B. Olson in The Washington Post in
June of this year.
Finally, from USA Today: ``Our Views on Prosecutors and the Press:
Jailing of Reporters Chills Free Flow of Information.''
These are only a few of a notebook full of materials that we wouldn't
dare introduce this many pieces of material into the Congressional
Record. I will include for the Record the items that I cited.
Submissions to Record on H.R. 2102
``Shield Law Moves Closer to Reality.'' The Post-Standard.
Syracuse, NY: Opinion Section. 14 October 2007.
``In Search of Shield.'' The Baltimore Sun, Baltimore, MD:
Opinion Section. 15 October 2007.
``Vote to Pass Law to Shield Reporters.'' Detroit Free
Press. Detroit, MI: Opinion Section. 16 October 2007.
Shielding Journalists: Reporters, and the Country, Would
Benefit from a Proposed Federal Law to Protect Confidential
Sources.'' The Los Angeles Times. Los Angeles, CA: Editorial
Page. 27 May 2007.
Tatum, Christine. ``Why a Federal Shield Law Is
Necessary.'' The Detroit News. Detroit, MI. 23 May 2007.
``A Shield for the Public.'' The New York Times. New York,
NY: Editorial Page. 20 September 2007.
``The Public's Right to Know.'' The New York Times. New
York, NY: Editorial Page. 9 October 2007.
``Smith's Decision on Shield Law Critical.'' San Antonio
Express-News. San Antonio, TX: Editorial Page. 28 July 2007.
``Protecting Sources.'' The Washington Post. Washington,
DC: A-18. 21 September 2007.
``Olson, Theodore B. ``A Much-Needed Shield for
Reporters.'' The Washington Post. Washington, DC: A-27. 29
June 2007.
``Our Views on Prosecutors and the Press: Jailing of
Reporters Chills Free Flow of Information.'' USA Today.
McLean, VA: Editorial page. 14 May 2007.
____
[From the Detroit News, May 23, 2007]
Why a Federal Shield Law Is Necessary
(By Christine Tatum)
Regardless of whether you think journalists use too many
anonymous sources, it's hard to argue that they don't need to
promise confidentiality sometimes.
Many of the biggest investigative stories of our age have
been based in part on information shared with a reporter by
someone who wanted to keep his or her identity a secret.
Anonymous sources handed over the Pentagon Papers and
unmasked the culprits behind Watergate and Enron. They have
outed some of the nation's worst corporate polluters. They
have helped inform Americans' debates about the Iraq War, the
proliferation of nuclear weapons and global warming.
Yes, sources almost always have an agenda when they speak
up, but sometimes they have information of vital interest to
the general public and much to lose if they're caught passing
it along. If journalists can't protect their sources'
identities, you will be much less informed about the world.
Currently, 49 states (Wyoming is the only unenlightened
one) have shield laws or operate under court rulings that
grant journalists and their sources a ``privilege'' much like
those afforded to clergy, lawyers and their clients and
therapists and their patients. This protection applies only
to local and state cases, not federal ones.
Lately, federal prosecutors have dragged too many
journalists into court, flaunting subpoenas for notes, work
product and recollections of private conversations. The feds'
arrogant insistence that journalists should be compelled to
act as arms of law enforcement undermines free speech, a free
press and an informed citizenry.
Journalists need a federal shield law. Thankfully, one has
been reintroduced in Congress. The Free Flow of Information
Act of 2007 has bipartisan support in the House and Senate.
The bill's sponsors include Reps. Mike Pence, R-Ind., and
Rich Boucher, D-Va., and Sens. Richard Lugar, R-Ind., and
Christopher Dodd, D-Conn. All four have fought for a federal
shield law for a couple of years, arguing that transparency
is good for democracy even if it exposes politicians to more
scrutiny.
Among the bill's provisions: The federal government could
not compel a person covered by the shield to provide
testimony or produce documents without first showing the need
to do so by a ``preponderance of evidence.''; Journalists can
be compelled to reveal the identity of sources when the court
finds it necessary to prevent ``imminent and actual harm to
national security'' or ``imminent death or significant bodily
harm.'' Journalists also may be compelled to identify a
person who has disclosed trade secrets, health information or
nonpublic personal information of any consumer in violation
of current law; and people covered by the shield would be
those ``engaged in journalism.'' Journalism is defined as
``the gathering, preparing, collecting, photographing,
recording, writing, editing, reporting or publishing of news
and information for dissemination to the public.'' The bill
does not explicitly protect bloggers, but to the extent a
court determines they are engaged in the practice of
journalism, they are likely to be shielded.
Even with the protection of a federal shield law,
journalists should use anonymous sources sparingly and take
great care to explain to the public why a source's identity
needs to remain secret. More Capitol Hill reporters should
insist their conversations are on the record. Newsrooms
should tighten rules regarding the use of anonymous sources,
which undermine the credibility of the news and leave
journalism with black eyes at the hands of more reporters
than we have the space to name here.
A federal shield law won't end journalists' abuse of
anonymous sources, and it won't end prosecutorial witch
hunts. It will, however, help the public have access to
important information, and that, in the end, is what really
matters.
____
[From the New York Times, Sept. 20, 2007]
A Shield for the Public
For freedom of the press to be more than a promise and for
the public to be kept informed about the doings of its
government, especially the doings that the government does
not want known, reporters must be able to pursue the news
wherever it takes them. One of the most valuable tools they
have is the ability to protect the names of confidential
sources--people who provide vital information at the risk of
their jobs, their careers, and sometimes even their lives.
That is why it is so important for Congress to finally pass
a federal shield law for journalists and why we commend
Senators Arlen Specter, Republican of Pennsylvania, and
Charles Schumer, Democrat of New York, for a compromise bill
designed to achieve passage.
The bill would create a qualified privilege, which is what
this newspaper and other news organizations have sought, not
an absolute protection against revealing a source's name
under any conceivable circumstance.
The new measure does not contain everything we would have
liked. The shield for sources in the sphere of national
security is weaker than in a bill approved by the House
Judiciary Committee in August and an earlier proposal by
Senators Richard Lugar, Republican of Indiana, and
Christopher Dodd, Democrat of Connecticut.
Under the new bill, in order to compel disclosure of a
source, the government would have to show that withholding
the information is necessary to prevent a specific act of
terrorism against the United States or would create
``significant harm to national security'' that outweighs the
public interest in maintaining the flow of information. That
is a broad standard and much will depend on judges exercising
care to ensure that the government meets its burden to prove
that the alleged harm to national security is real.
However, some tweaking was necessary to reassure hesitating
senators that the bill
[[Page H11595]]
would not permit journalists to withhold information that is
truly necessary to protect the United States.
The compromise has the support of dozens of news
organizations, including The New York Times Company. Having
worked for months to achieve this accord, Senators Specter
and Schumer, and the chairman of the Senate Judiciary
Committee, Patrick Leahy of Vermont, must do everything in
their power to make sure that there is no further watering
down of the protection for reporters and the whistle-blowers,
or other insiders who will not speak without a pledge of
confidentiality.
Passage of a federal shield law would be a major
achievement. Some 32 states and the District of Columbia have
such laws, and 17 other states have recognized a reporter's
privilege to maintain the confidentiality of sources through
judicial decisions. Prosecutions have not suffered, and it is
past time for Congress to act.
In fact, a virtue of the Specter-Schumer bill is that it
removes any excuse by lawmakers to avoid taking a step vital
for the press's ability to report, so the public can exercise
its right to know what government is doing and to make
informed judgments.
____
[From the Washington Post, Sept. 21, 2007]
Protecting Sources: Preserving the Free Flow of Information
Next week, the Senate Judiciary Committee is scheduled to
take up the Free Flow of Information Act of 2007, sponsored
by Sens. Arlen Specter (R-Pa.) and Charles E. Schumer (D-
N.Y.). This finally would bring to the federal government
something that exists in 49 states and the District of
Columbia: clear protection for the relationship between
journalists and their sources.
Sometimes people who speak to journalists don't want it
publicly revealed that they were the source of information
that exposed ethically sketchy behavior or criminality; one
common reason is a fear of reprisals. The relationship
between reporters and confidential sources is rooted in
trust, and the accountability it fosters is a foundation of a
thriving democracy.
As with a bill approved last month by the House Judiciary
Committee, the Senate measure does not give to reporters a
blanket protection against disclosure of sources but instead
offers a reasonable balancing of competing interests.
Information identifying sources who were promised
confidentiality would be covered by the new law. But courts
would still be able to compel disclosure in certain
circumstances--for example, if national security interests at
stake in the case outweighed ``the public interest in
gathering news and maintaining the free flow of
information.'' The Washington Post Co. and other media
organizations that have lobbied for a bill might want more
protection, but this represents a reasonable compromise that
many legislators, including Sens. Richard G. Lugar (R-Ind.)
and Christopher J. Dodd (D-Conn.), have labored to get right.
More than 40 reporters have been questioned in recent years
by federal prosecutors about their sources, notes and reports
in civil and criminal cases. No doubt those who would talk to
the media confidentially have been chilled by such action.
Without adequate protection on the federal level, much
information that Americans have a right to know might never
be known. That's not good for journalism--and it isn't good
for the republic, either.
____
June 29, 2006
A Much-Needed Shield for Reporters
(By Theodore B. Olson)
Journalists reporting on high-profile legal or political
controversies call1lot function effectively without offering
some measure of confidentiality to their sources. Their
ability to do so yields substantial benefits to the public in
the form of stories that might otherwise never be written
about corruption, misfeasance and abuse of power. A person
with information about wrongdoing is often vulnerable to
retaliation if exposed as an informant.
Yet it has become almost routine for journalists to be
slapped with subpoenas seeking the identity of their sources
when their reports make it into print or onto the air. From
the Valerie Plame imbroglio and the Wen Ho Lee investigation
to the use of steroids by professional baseball players, it
is now de rigueur to round up the reporters, haul them before
a court, and threaten them with heavy fines and jail
sentences if they don't cough up names and details concerning
their sources.
Unfortunately, the rules regarding what reporters must
disclose, and under what circumstances, remain a hopelessly
muddled mess. Ask any reporter today, or his publisher, or
his publisher's lawyer, whether a reporter must testify about
his sources and you will get a litany of ambiguity. The
answer may depend on which court issued the subpoena or the
predilections of the judge before whom the reporter is
summoned. State courts have their rules and federal courts
have another set of standards that differ from one part of
the country to another. That means that the journalist cannot
tell sources whether promises of confidentiality have any
teeth. And that, in turn, means that information vital to the
public concerning the integrity of government, or of the
national pastime, may never see the light of day.
It certainly doesn't have to be this way. Reporters do not
expect to be above the law. But they should be accorded some
protection so that they can perform their public service in
ensuring the free flow of information and exposing fraud,
dishonesty and improper conduct without being exposed to an
unanticipated jail sentence. A free society depends on access
to information and on a free and robust press willing to dig
out the truth and spread it around. This requires some
ability to deal from time to time with sources who, for one
reason or another, require the capacity to speak freely but
anonymously.
This is not a novel or threatening concept. Forty-nine
states and the District of Columbia have laws protecting the
confidentiality of reporters' sources. The Justice Department
has had internal standards providing protection to
journalists and their sources for 30 years. Yet no such
protection exists in federal law. Thus reporters may be
protected if they are subpoenaed in state court, but not
protected at all if the same subpoena is issued by a federal
court. No one benefits from that patchwork of legal
standards.
Congress is moving forward to regularize the rules for
reporters, their sources, publishers, broadcasters and
judges. The Senate Judiciary Committee will soon take up a
bill entitled the Free Flow of Information Act of 2006,
sponsored by a bipartisan group of legislators and modeled in
large part on the Justice Department guidelines. It does not
provide an absolute privilege for confidential sources, but
it does require, among other things, that a party seeking
information from a journalist be able to demonstrate that the
need for that information is real and that it is not
available from other sources. Matters involving classified
information and national security are treated differently.
The current controversy over publications relative to the
administration's efforts to deter terrorists does not,
therefore, provide any basis for delaying or rejecting this
needed legislation.
This legislation is long overdue and should be enacted. It
will not, contrary to its opponents' arguments, hamper law
enforcement. The 49 states and the District of Columbia that
have such protection have experienced no diminution of law
enforcement efforts as a result of these shield laws. Nor
will it give reporters any special license beyond the type of
common-sense protection we already accord to communications
between lawyers and clients, penitents and clerics, doctors
and patients and among spouses--where we believe that some
degree of confidentiality of communications furthers broad
social goals.
The same is true for journalists and their sources. We all
know of stories that we might never have heard but for
hardworking reporters who were able to pry vital information
from reluctant sources. Watergate, of course, is the most
memorable and important example, but others occur every day.
There is utterly no value served by the current state of
confusion regarding when a meaningful promise of
confidentiality may be made, or when it will simply be a
prelude to a jail sentence for a conscientious reporter.
____
Smith's Decision on Shield Law Crucial
[From the San Antonio Express-News, June 28, 2007]
Freedom of the press is crucial to the survival of American
democracy.
And part of that freedom must be allowing journalists to
protect confidential sources.
Whistle-blowers aren't as likely to reveal what is actually
happening in government if they are forced to risk all
through exposure.
Knowing as much as possible about government activities is
the best way for the public to get a true picture and protect
itself from official malfeasance.
That's why a federal shield law is crucial to preserving a
free press.
Media organizations have been hit with an exponential
number of subpoenas from public and private entities seeking
to learn about confidential sources in recent years. The
harassment is costly, time-consuming and carries a chilling
effect on the flow of important information to the public.
San Antonio Rep. Lamar Smith, the ranking Republican on the
House Judiciary Committee, is in a position to protect the
free press and the flow of information to the public.
The panel is scheduled to consider a proposed federal
shield law, known as the Free Flow of Information Act, this
week.
As the senior GOP leader on the judiciary panel, Smith's
vote will be closely watched.
The Bush administration opposes the bipartisan legislation,
but committee leaders already have made changes to deal with
administration concerns about national security. Other
objections forwarded by the Justice Department frankly are
far-fetched.
The legislation would allow prosecutors and others to
compel a journalist to testify if the information can't be
obtained elsewhere and they convince a judge that the
testimony is necessary.
The legislation would not provide blanket protection for
journalists. But it would reduce efforts by lawyers to
undermine confidentiality agreements and take shortcuts in
the discovery process of routine cases.
Smith has a record as a friend of a free press and open
government. He has advocated improvements in the Freedom of
Information Act to allow journalists and the public better
access to government records.
It is vital that Smith again stand up for the public's
right to know by preserving the flow of information with the
shield law.
Mr. Speaker, I reserve the balance of my time.
[[Page H11596]]
Mr. SMITH of Texas. Mr. Speaker, I yield 5 minutes to the gentleman
from Iowa (Mr. King), who is the ranking member of the Immigration
Subcommittee of the Judiciary Committee.
Mr. KING of Iowa. Mr. Speaker, I thank the ranking member from Texas
(Mr. Smith) for yielding to me. I do appreciate the privilege to serve
on this committee.
Mr. Speaker, I rise in opposition to H.R. 2102, the Free Flow of
Information Act. It would protect journalists in most circumstances
from having to reveal their sources or produce documents and notes to
government.
This is not a problem. The press has flourished for over 200 years
without a Federal privilege. The Department of Justice reports that
since 1991 they have issued only 19 subpoenas to reporters seeking
information. Only 19 since 1991. No one is above the law. Even
reporters, as the Supreme Court has held, sometimes need to divulge
information during the investigation of crimes. We have not seen the
level of professionalism in journalism that we see in the medical
profession, for example, and I think that is an argument we ought to
weigh also.
Mr. Speaker, I would bring up the issue of our national security.
Some of the people who hide behind the shield of journalism today
routinely release classified national security data and publish it as
if it were their patriotic duty and hide behind the shield of
journalism.
H.R. 2102 places a heavy burden on the Department of Justice to
demonstrate a compelling need for a reporter's source, which can be
negated by the personal whims of hundreds of Federal judges who would
handle these cases. The shield bill also makes it more difficult for
the Department of Justice and other government agencies to fight crime
and protect our national security. For example, the bill contains a
limited number of examples where the privilege doesn't apply. Most of
the Department of Justice crime fighting activity, such as efforts to
combat child pornography or alien smuggling, is not addressed under
this bill.
For example, there is a flaw in the bill because the Department of
Justice could obtain source information to prevent a terrorist attack
but not acquire the same information after the fact, after an attack,
say, on the Twin Towers or on the Capitol. Additionally, H.R. 2102's
definition of a journalist is so broad it would protect the media
outlets of designated terrorist organizations, even terrorists
themselves. I know the chairman has addressed that issue, but the
language still remains broad.
Congress, State legislatures, and the courts have taken significant
steps in certain circumstances to assure confidentiality, as have 49
States. Examples of protected information include pre-patent research,
a person's medical records, the fact that someone may have sought
medical health care, information related to a victim of sexual
violence. The list goes on.
Mr. Speaker, with these very private subjects, there are significant
legal, moral, or fiduciary obligations granted to protect people when
their disclosure could cause serious and irrevocable hardships. People
who improperly disclose them should not be protected through a media
shield law just because they gave the information to a reporter or
blogger, not someone else.
Historically, when Congress has enacted public access legislation, it
has balanced the competing rights of personal and business privacy.
Consider the Freedom of Information Act. It is one of the most
important ``public right to know'' statutes in this country's history.
FOIA specifically exempts from disclosure information protected by law,
proprietary or privileged business information, and information that
could lead to unwarranted invasions of personal privacy. Similarly,
whistle-blower laws only protect the reporting of information related
to suspected wrongdoing, not the disclosure of all private information.
Congress's long-standing commitment to these distinctions in protecting
confidential and proprietary information can and should be continued.
Mr. Speaker, H.R. 2102 protects the inappropriate leaking of a good
deal of legitimately private information in the same way it protects a
source who has disclosed information in an appropriate situation. For
example, if a source told a reporter the name of a victim of a sexual
assault, H.R. 2102 would block the victim from holding the leaker-
source accountable for any harm such a story could cause.
The same would be true for information related to the location of a
domestic violence safe house or employee records that might include
Social Security numbers and credit information from stores and credit
bureaus. It could also provide an absolute privilege when a source for
purely personal purposes leaked information in violation of a specific
court order protecting the contents of discovery or settlements that
were sealed by a court. When and if such information appears in the
media, the person harmed would be unable to use the judicial process to
assure that the law fulfilled its purpose, even when every other avenue
had been pursued to no avail.
So my question is, Mr. Speaker, what are we trying to fix? What is
the problem? Nineteen subpoenas since 1991, a handful of cases stacked
up against a mountain of information that has been pored through in the
public media, classified information leaked into the New York Times,
for example, jeopardizing our national security, and what is Congress
doing about that? We are coming here to produce a shield law to protect
even more of the same behavior.
Mr. CONYERS. Mr. Speaker, it is now my privilege to recognize the
Speaker of the House, Ms. Nancy Pelosi, for 1 minute.
Ms. PELOSI. Mr. Speaker, I thank the distinguished chairman for
yielding, and I appreciate his strong leadership in protecting and
defending the Constitution of the United States. He leads us well in
honoring our oath of office that we take.
I commend the cosponsors of this bipartisan legislation, Mr. Boucher
and Mr. Pence, for their leadership and commitment to working in a
bipartisan way on an issue central to our democracy.
Thomas Jefferson once wrote, ``Our liberty depends on the freedom of
the press, and that cannot be limited without being lost.'' Freedom of
the press, protected by the first amendment, has been a cornerstone of
our democracy, one that we cherish and promote around the world.
A free press keeps our Nation informed and holds those of us in
government accountable. It is critical to freedom of speech and
expression in our country. Freedom of the press is fundamental to our
democracy and it is fundamental to our security.
Speaking truth to power is vital to our democracy today, as it has
been throughout our history.
Mr. Speaker, the recent contracting scandals in Iraq, the appalling
care of our wounded soldiers at Walter Reed Hospital, and the hidden
Medicare drug prescription estimates a few years ago are several of the
many examples where press coverage shaped our debate and our actions.
These stories are central to accountability, the accountability
necessary to make our Nation stronger and to be better stewards of the
taxpayers' dollars.
However, the essential work of the press has been severely hampered
by the lack of a consistent Federal standard or a federally recognized
privilege concerning the disclosure of confidential sources by
journalists. As a result, in recent years, more than 40 reporters have
been subpoenaed for the identities of confidential sources in nearly a
dozen cases.
Former Solicitor General Ted Olson, who served under President George
W. Bush, wrote recently in The Washington Post, ``Journalists reporting
on high-profile controversies cannot function effectively without
offering some measure of confidentiality to their sources. Their
ability to do so yields substantial benefits to the public in the form
of stories that might otherwise never be written about corruption and
abuse of power.''
Nearly all States have some form of press shield protecting the
confidentiality of journalist sources; however, that protection is
lacking at the Federal level and in the Federal courts.
It is for this reason that I have long supported a Federal press
shield law, without which freedom of the press is threatened. The
Federal Government's policies and actions should protect and preserve
the press's ability to speak
[[Page H11597]]
truth to power. And this legislation does so with appropriate national
security safeguards, striking a careful balance between liberty and
security.
Freedom of the press has long been an issue of importance to many of
us in this body. When I was the ranking member of the Intelligence
Committee, I encouraged President Clinton to veto the Intelligence
Committee authorization bill one year because it made it easier to
prosecute journalists. We fixed those provisions and passed a bill that
both protected our Nation and protected our fundamental freedoms.
Mr. Speaker, we seek today to protect the freedom of the press that
has served our Nation so well. We also seek to make clear to
confidential sources that they will be protected in most circumstances
when they bring forward public evidence of waste, fraud and abuse in
government and in the private sector.
As we protect and defend our Nation, we must now protect and defend
the Constitution by enabling our press to be free, as our Founders
envisioned.
I urge my colleagues to support this legislation.
Mr. SMITH of Texas. Mr. Speaker, I yield myself 2 minutes for the
purpose of engaging in a colloquy with my friend from Indiana (Mr.
Pence). I have a question I would like to ask him.
The bill states that the determination as to whether the testimony or
document is critical to the underlying matter is to be made ``based on
information obtained from a person other than the covered person,'' the
covered person being the journalist. There has been some confusion as
to what is meant by ``information from the covered person.''
In the Washington Post on October 4, Patrick Fitzgerald, who was the
U.S. Attorney in the Scooter Libby case, wrote, ``The bill puzzlingly
requires that agents prove that the leak occurred without relying on
the newspaper article.''
Is Mr. Fitzgerald right? Does this provision mean that the party
seeking the subpoena cannot use the very newspaper article at issue in
the lawsuit to show why the reporter's testimony is needed?
I yield to the gentleman from Indiana.
Mr. PENCE. I thank the gentleman for yielding, and I thank him for a
thoughtful question.
The answer would be no, that was not our intent and it is not how
this provision should be read. This provision is meant to close a
potential loophole in the bill. Without this provision, we were
concerned that a person would be able to call a journalist to testify
or provide documents for the purpose of showing why the journalist's
testimony or documents are needed in the litigation. That obviously
would short-circuit the statute and would not make sense.
The news article would be a matter of public record and would not be
obtained from the journalist, and therefore could be used at such a
hearing.
Mr. SMITH of Texas. I thank the gentleman from Indiana for his answer
to my question. That is much appreciated.
Mr. Speaker, I am the last speaker on this side, and I know the
chairman of the Judiciary Committee has the right to close. I wonder if
he has any additional speakers.
Mr. CONYERS. I have none.
Mr. SMITH of Texas. Mr. Speaker, I yield myself the balance of my
time.
Mr. Speaker, let me summarize the objections to this legislation. The
White House, the Justice Department, the Acting Director of National
Intelligence and many law enforcement officials oppose H.R. 2102
because they believe it diminishes legal rights, public safety and
endangers national security. The Department of Justice is concerned
that this legislation will impede its efforts to conduct investigations
and prosecute criminals.
For 200 years, information has flowed freely to the press. Congress
need not enact H.R. 2102, when the status quo is working and the
legislation's potential harm to our national security is so
significant.
Our Founders created a legal system where no one is above the law.
But if the media shield bill passes, we will be carving out a special
exception to that rule for reporters, tabloids and bloggers.
{time} 1645
This is not what our Founders intended when they created a free
press. No one should be above the law, not even the press. We must err
on the side of caution and not support legislation that could make it
harder to apprehend criminals and terrorists or deter their activities.
I urge my colleagues to oppose this legislation.
Mr. Speaker, I yield back the balance of my time.
Mr. CONYERS. Mr. Speaker, I yield myself the balance of my time and
just want to say that we have not given up on the possibility of
winning some modest support from the ranking member of the Judiciary
Committee. He has negotiated with us in good faith. We continue to work
on any improvements. I am very proud of the work that the gentleman
from Virginia (Mr. Boucher) and the gentleman from Indiana (Mr. Pence)
have put forward, and I want to thank Members of the House on both
sides. There is apparently a large number of bipartisan supporters for
this measure. I want to assure the House that we are moving forward
with deliberate speed, and it is in that sense that I continue to urge
support for the measure.
Ms. JACKSON-LEE of Texas. Mr. Speaker, I rise to speak in strong
support of H.R. 2102, the Free Flow of Information Act of 2007, which I
am proud to co-sponsor. This legislation provides a qualified immunity
from prosecution or contempt to journalists for refusing to disclose
confidential sources or information.
Let me say, Mr. Speaker, that I am confident that this legislation
adequately addresses and resolves the conflict between society's
competing interests in a free and vigorous press, on the one hand, and
not unduly hampering the ability of law enforcement to investigate and
prosecute crimes.
Mr. Speaker, when it comes to the freedom of the press, the
Department of Justice's Statement of Policy is clear. It states
``Because freedom of the press can be no broader than the freedom of
reporters to investigate and report the news, the prosecutorial power
of the government should not be used in such a way that it impairs a
reporter's responsibility to cover as broadly as possible controversial
public issues.'' 28 C.F.R. 50.10.
I have long been a strong proponent of a qualified privilege for
journalists. Indeed, in 2001 I spoke out in favor of the need for such
a privilege when I went to the Federal Detention Center in Houston
today to support the efforts of Professor Vanessa Leggett, a 33-year-
old freelance non-fiction writer who had been jailed without bond since
July 20, 2001 for asserting her journalistic privilege and First
Amendment right not to reveal confidential source information.
After visiting Professor Vanessa Leggett I became convinced of the
justice of her cause and the importance of her case. Professor Leggett
had spent four years researching the 1997 murder of Doris Angleton.
When she refused to give in to threats and intimidation by an
overzealous prosecution, and asserted her First Amendment rights in a
grand jury investigation, she was found in contempt and jailed.
Mr. Speaker, like you I believe the First Amendment is the most
important amendment in the Bill of Rights. And it is not a coincidence
that the freedoms of speech and press are the first freedoms listed in
the First Amendment.
I believe allowing journalists the right to maintain the
confidentiality of their sources when doing research must be protected
because it is indispensable to a free press which is the sine qua non
of a free society. We must heed the counsel of Justice
Douglas's dissent in Branzburg v. Hayes, 408 U.S. 665 (1972): ``The
people, the ultimate governors [of our democracy], must have absolute
freedom of and therefore privacy of their individual opinions and
beliefs.'' Justice Douglas reminds us that ``effective self-government
cannot succeed unless the people are immersed in a steady, robust,
unimpeded, and uncensored flow of opinion and reporting which are
continuously subjected to critique, rebuttal, and re-examination.''
Again, this principle, codified at Title 28 CFR 50.10 of the
Department of Justice Statement of Policy, clearly recognizes and
protects one of our most sacred democratic institutions: the media.
It requires, for example, that the Department of Justice ``strike the
proper balance between the public's interest in effective law
enforcement and the fair administration of justice,'' while other
subsections clearly require that sanctions, such as those administered
by the Department of Justice in this case, shall be reviewed by the
Attorney General. As such, this Section presents a tension with the
Court precedents set in Branzburg and in Jascalevich.
The Supreme Court's decisions in Branzburg v. Hayes, 408 U.S. 665
(1972), and New York Times v. Jascalevich, 439 U.S. 1331 (1978)
establish the precedent that a
[[Page H11598]]
journalist cannot rely upon an absolute First Amendment-based privilege
to justify refusal to testify when called by a grand jury, unless the
grand jury investigation is instigated in bad faith. However, since the
Court handed down its decision in Branzburg, 49 states and the District
of Columbia now recognize some version of a shield law protecting the
press, to varying degrees, from unfettered disclosure of sources, work
product, and information generally.
These various state protections range in type and scope, from broad
protections that provide an absolute journalistic privilege to shield
laws that offer only qualified protection. The majority of state shield
laws currently in place offer some form of a qualified privilege to
reporters, protecting source information in judicial settings, unless
the compelling party can establish that the information is: (1)
relevant or material; (2) unavailable by other means, or through other
sources; and (3) a compelling need exists for that information. There
is considerable variation among the states on the last prong, with some
requiring the party seeking disclosure to establish a compelling need
for the information. Other states require a compelling showing that
disclosure is needed to achieve a broader and greater public policy
purpose.
In Federal courts, however, there is no current uniform set of
standards to govern when testimony can be sought from reporters.
Rather, the Federal jurisprudence has developed on an ad hoc, case-by-
case basis. That is why we need, and I support, H.R. 2102.
H.R. 2102 establishes a procedure by which disclosure of confidential
information from a journalist may not be compelled to testify or
provide documents related to information obtained or created by the
journalist unless the following conditions are met by a preponderance
of the evidence and after notice to be heard: (1) The party seeking
production must have exhausted all reasonable alternative sources of
the information; (2) in the case of a criminal investigation, the party
seeking production must have reasonable grounds to believe a crime has
occurred and the information sought is critical to the case; (3)
disclosure is necessary to: prevent an act of terrorism against the
United States or other significant specified harm to national security
or to prevent imminent death or significant bodily harm or to identify
a person who has disclosed a trade secret actionable under 18 U.S.C.
Sec. 1831 or Sec. 1832; or (4) the party seeking production must prove
that the public interest in compelling disclosure outweighs the public
interest in gathering or disseminating news or information.
Mr. Speaker, section 4 of the bill defines the key terms used in this
bill. A ``Covered Person'' is a person who, for financial gain or
livelihood, is engaged in journalism, including supervisors, employers,
parents, subsidiaries, or affiliates of a covered person.
``Journalism'' is defined as the ``gathering, preparing, collecting,
photographing, recording, writing, editing, reporting, or publishing of
news or information that concerns local, national, or international
events or other matters of public interest for dissemination to the
public.''
Mr. Speaker, I applaud and commend Mr. Boucher's efforts to address
the many concerns of his colleagues relating to the scope of a
``covered person'' and the definition of ``journalism.'' Initially, I
was troubled that one day in the future some runaway court or wayward
judge may construe these definitions so narrowly that situations like
the one involving Vanessa Leggett that I have previously discussed
would be excluded. However, based on my consultations with the lead
sponsors, as well as my detailed discussions and consultations with
groups like the Reporters Committee for Freedom of the Press, I am
satisfied that the proposed language is broad enough to cover
journalists who are in Vanessa Leggett's situation.
Under this legislation, a freelance journalist facing a similar
subpoena will be able to represent to a judge that at the time she was
talking to sources, she represented to them that she was working on a
story or non-fiction book that she planned to sell to a newspaper or
magazine or publisher. A reasonable judge would have little choice but
to find her to be covered by the statute.
Mr. Speaker, it is interesting to note that the District Court and
the 5th Circuit never questioned Vanessa Leggett's status as a
journalist. Rather, the court assumed she was a journalist using the
test of In re von Bulow, 828 F2d 94 (2d Cir. 1987). If the issue of a
freelancer being covered was found to be vague in the statute, I
believe a court would revert to the von Bulow standard, which holds
someone is a journalist if she represented to her sources at the time
of the interview that she was a journalist and was gathering
information intending to write a story to disseminate to an audience.
In short, Mr. Speaker, because I believe the language of the bill now
leaves no doubt that the Congress specifically intends the Free Flow of
Information Act to cover situations similar to the Vanessa Leggett
case, I strongly support this legislation and urge my colleagues to
join me in voting for H.R. 2102.
Mr. UDALL of Colorado. Mr. Speaker, I support this legislation and
urge its passage.
The bill is intended to provide journalists with a limited, qualified
shield against efforts by prosecutors or other officials to compel
public disclosure of the identities of whistleblowers or other sources
of information.
Like 48 other States (and the District of Columbia), Colorado has
already provided a similar protection for journalists, but of course
that State law does not apply in Federal cases--for that a Federal
statute is required, which is the purpose of this legislation.
And while I recognize that the Justice Department thinks no such law
is needed--their view is that their own guidelines adequately deal with
the subject--I think our experience in Colorado shows that it is
possible to provide the assured protection that comes with a statutory
shield without compromising the investigation of wrongdoing or the
vigorous prosecution of crime.
I think this legislation does a good job of achieving a similar
balance between protection for investigative journalists and their
sources while maintaining the ability of the government to protect
national security and conduct effective law enforcement.
Under the bill, journalists would be required to testify if a judge
finds that a prosecutor, criminal defendant or civil litigant has shown
by a preponderance of the evidence that an applicable test for
compelled disclosure has been met.
For a prosecutor, that means showing that he or she had exhausted
alternative sources before demanding information, that the sought-after
material was relevant and critical to proving a case, and that the
public interest in requiring disclosure would outweigh the public
interest in news gathering.
The bill includes special rules for cases involving leaks of
classified information or involving a journalist's being an eye witness
to a crime.
The bill will enable federal law enforcement authorities to obtain an
order compelling disclosure of the identity of a source in the course
of an investigation of a leak of properly classified information. It
also provides that disclosure of a leaker's identity can be compelled
whenever the leak has caused or will cause ``significant and
articulable harm to the national security.''
And the bill also permits law enforcement to obtain an order
compelling disclosure of documents and information obtained as the
result of eyewitness observations by journalists of alleged criminal or
tortious conduct, as well as cases involving alleged criminal conduct
by journalists themselves.
And, in addition to provisions designed to guard against impairing
efforts to prevent acts of terrorism, threats to national security, and
death or bodily harm to members of the public, there are similar
provisions to guard and make sure the legislation will not thwart
efforts to identify those who disclose significant trade secrets or
certain financial or medical information in violation of current law.
Mr. Speaker, the need for this legislation was well expressed by
former Solicitor General Theodore B. Olsen in an article published in
the October 4th edition of the Washington Post.
In that article, Mr. Olsen said:
. . . journalists reporting on high-profile controversies
cannot function effectively without offering some measure of
confidentiality to their sources. Their ability to do so
yields substantial benefits to the public in the form of
stories that might otherwise never be written about
corruption and abuse of power. A person with information
about wrongdoing is often vulnerable to retaliation if
exposed . . . Yet it has become almost routine for
journalists to be slapped with federal subpoenas seeking the
identity of their sources.
Reporters do not expect to be above the law. But they
should receive some protection so they can perform their
public service in ensuring the free flow of information and
exposing improper conduct without risking jail sentences.
The lack of federal protection makes for an especially
strange state of affairs because the Justice Department has
had internal standards providing protection to journalists
and their sources for 35 years, and Special Counsel Patrick
J. Fitzgerald claimed to be adhering to those standards when
he subpoenaed reporters in the Plame affair. Thus, as Judge
Robert Sack of the U.S. Court of Appeals for the 2nd Circuit
has noted, the only real question is whether federal courts
should be given some supervisory authority to ensure that
prosecutors have, in fact, met governing standards before
forcing reporters to testify. The answer seems obvious: yes.
The District and the 49 states with shield laws have
experienced no diminution of law enforcement efforts as a
result of those laws. The legislation would not give
reporters special license beyond the type of common-sense
protection we already accord to communications between
lawyers and clients, between spouses and in other contexts
where
[[Page H11599]]
we believe some degree of confidentiality furthers societal
goals.
This legislation is well balanced and long overdue, and it
should be enacted.
I agree with Mr. Olson, and I urge all our colleagues to join me in
voting for this bill.
Mr. ISSA. Mr. Speaker, I rise in opposition to H.R. 2102, the Free
Flow of Information Act. This bill goes too far in jeopardizing our
national security.
The freedom of the press is an immensely important principal in our
democratic society. That is why the Department of Justice (DOJ) has for
the past 35 years followed a policy that strictly limits when Federal
prosecutors are allowed to issue subpoenas to the press. These
standards are so difficult to meet that prosecutors, under this current
policy, are commonly discouraged from even seeking a subpoena for a
reporter in the first place.
These protections, which are far reaching, should not be absolute.
When critical, highly sensitive national security information is
illegally disclosed to members of the news media and published for
every enemy of America to see--Federal prosecutors must be empowered to
aggressively investigate the disclosure of that information and the
prosecution of those responsible. We simply cannot erect obstacles
which hamstring Federal law enforcement when sensitive government
secrets are divulged. Such disclosure can be treasonous, and reporters
should not be able to protect individuals who jeopardize our national
security. American lives are more important than the privilege of
anonymity that reporters promise to a source who is compromising our
nation's secrets.
According to the DOJ, the ``unduly narrow exception to the
legislation's broad prohibition on compelled disclosure would hinder
efforts to investigate and prosecute those who have leaked classified
information, undermine the ability of law enforcement to investigate
national security breaches that have already occurred, and weaken
Federal efforts to mitigate damage to national security that has
already taken place.'' As a member of both the Committees on Judiciary
and the Permanent Select Committee on Intelligence, I find these faults
with the bill unacceptable.
While I do not stand in opposition to my friends Representatives Mike
Pence and Rick Boucher, the primary sponsors of this legislation, I
must ask my colleagues to vote no on this bill. H.R. 2102 establishes
new dangers without sufficient justification.
Mr. STARK. Mr. Speaker, I rise today in support of freedom of the
press and an informed public.
The Free Flow of Information Act (H.R. 2102) is a straightforward
bill that will protect journalists from being legally obligated to
disclose their confidential sources of information. This will allow
sources to speak more freely, allowing for the vibrant exchange of
important information between reporters, their contacts and the public.
Predictably, George Bush's Department of Injustice opposes today's
legislation, in part because the Administration issued more than 300
subpoenas last year alone. That's understandable. If I had a track
record of wasting money on a failing war, abusing civil liberties,
suppressing scientific research, and failing to enforce important
consumer protections and environmental regulations, I too would want to
keep the press and the public in the dark.
But it is also despicable. Forty-nine states and the District of
Columbia already recognize a reporter's privilege to keep confidential
sources, and to do so without risking interrogation or prosecution. A
federal media shield law would further protect the public's right to
know about corruption, waste and mismanagement in and out of
government.
In the past few years, journalists have depended on confidential
sources to inform them about the torture of Iraqi prisoners at Abu
Ghraib, the disclosure of CIA prisons in Eastern Europe, and the
President's warrantless wiretapping program. If we left it up to the
administration to decide what went into news stories, we would have
headlines that told us the war in Iraq is a smashing success and that
Dick Cheney's hunting technique is unparalleled.
The Constitution guarantees the right to a free press. That freedom
depends on not having to worry about being punished for revealing
information that the public has a right to know. I urge my colleagues
to vote in support of this bill.
Mr. HOLT. Mr. Speaker, I am pleased the House is taking action today
to help protect reporters from prosecutions simply for doing their
jobs.
Over the last few years, more than forty reporters have been
subpoenaed for the identities of confidential sources in nearly a dozen
cases. Although the Department of Justice has promulgated voluntary
guidelines for issuing subpoenas to the media and reporters, these
guidelines do not apply to civil litigants in federal court and give
unreviewable discretion to special prosecutors.
H.R. 2102 would establish a Federal standard for all parties--
prosecutors, civil litigants, journalists and sources--and send a
signal to potential sources that they will be protected in most
circumstances when they pass to news organizations evidence of waste,
fraud and abuse in government and in the private sector.
The bill requires journalists to testify at the request of criminal
prosecutors, criminal defendants and civil litigants who have shown by
a preponderance of the evidence that they have met the various tests
for compelled disclosure. The bill contains provisions to ensure that
the privilege would not impair law enforcement's efforts to identify a
person who has disclosed significant trade secrets or certain financial
or medical information in violation of current law.
In the case of national security issues, the test is that
``disclosure of the identity of such a source is necessary to prevent
an act of terrorism against the United States or its allies or other
significant and specified harm to national security with the objective
to prevent such harm.'' It is the latter half of this clause that would
allow the Justice Department to compel testimony from reporters in
national security leak cases.
It is important that we ensure that information that is properly
classified be protected from unauthorized disclosure. However, as we've
seen repeatedly over the last century, too often government officials
will misuse the classification system to hide evidence of their own
lawbreaking. It will be important for Congress to carefully monitor how
this particular provision is employed by the Department of Justice to
ensure it is not abused in a way that prevents Congress and the public
from learning about violations of law carried out in the name of
protecting the nation's security.
Organizations representing publishers, broadcasters, and journalists
agree that this legislation provides a suitable framework for balancing
the needs of a free press with the need to uphold our laws, and on
balance, so do I. I urge my colleagues to vote for this important
legislation.
Mr. SHAYS. Mr. Speaker, as a cosponsor of H.R. 2102, the Free Flow of
Information Act, I am pleased to support this legislation on the House
floor today.
I support this bill because I believe news reporting fosters public
awareness of important public issues and is an important means of
ensuring government accountability.
This legislation would create criteria that must be met before a
Federal entity may subpoena a member of the news media in any
government, criminal or civil case.
H.R. 2102 closely follows existing Department of Justice guidelines
for issuing subpoenas to members of the news media.
It simply makes the guidelines mandatory and provides protection
against compelled disclosure of confidential sources.
In doing so, I believe this legislation strikes a balance between the
public's need for information and the fair administration of justice.
Mr. Speaker, I urge support for this bill.
Mr. CONYERS. Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore. All time for debate on the bill has expired.
Amendment No. 1 Offered by Mr. Boucher
Mr. BOUCHER. Mr. Speaker, I have an amendment at the desk.
The SPEAKER pro tempore. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 1 printed in House Report 110-338 offered by
Mr. Boucher:
Page 3, line 24, strike ``to prevent'' and insert ``to
prevent, or to identify any perpetrator of,''.
Page 4, line 6, strike ``or''.
Page 4, line 22, strike ``and'' and insert ``or''.
Page 4, after line 22, insert the following:
(D)(i) disclosure of the identity of such a source is
essential to identify in a criminal investigation or
prosecution a person who without authorization disclosed
properly classified information and who at the time of such
disclosure had authorized access to such information; and
(ii) such unauthorized disclosure has caused or will cause
significant and articulable harm to the national security;
and
Page 5, after line 19, insert the following:
(d) Exception Relating to Criminal or Tortious Conduct.--
The provisions of this section shall not prohibit or
otherwise limit a Federal entity in any matter arising under
Federal law from compelling a covered person to disclose any
information, record, document, or item obtained as the result
of the eyewitness observation by the covered person of
alleged criminal conduct or as the result of the commission
of alleged criminal or tortious conduct by the covered
person, including any physical evidence or visual or audio
recording of the conduct, if a Federal court determines that
the party seeking to compel such disclosure has exhausted all
other reasonable efforts to obtain the information, record,
document, or item, respectively, from alternative sources.
The previous sentence shall not apply, and subsections (a)
and (b) shall apply, in the case that the alleged criminal
conduct observed
[[Page H11600]]
by the covered person or the alleged criminal or tortious
conduct committed by the covered person is the act of
transmitting or communicating the information, record,
document, or item sought for disclosure.
Page 7, strike lines 14 through 18 and insert the
following:
(2) Covered person.--The term ``covered person'' means a
person who regularly gathers, prepares, collects,
photographs, records, writes, edits, reports, or publishes
news or information that concerns local, national, or
international events or other matters of public interest for
dissemination to the public for a substantial portion of the
person's livelihood or for substantial financial gain and
includes a supervisor, employer, parent, subsidiary, or
affiliate of such covered person. Such term shall not
include--
Page 7, line 22, strike ``or''.
Page 7, line 26, strike the period and insert a semi-colon.
Page 7, after line 26, insert the following:
(C) any person included on the Annex to Executive Order
13224, of September 23, 2001, and any other person identified
under section 1 of that Executive order whose property and
interests in property are blocked by that section;
(D) any person who is a specially designated terrorist, as
that term is defined in section 595.311 of title 31, Code of
Federal Regulations (or any successor thereto); or
(E) any terrorist organization, as that term is defined in
section 212(a)(3)(B)(vi)(II) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)(3)(B)(vi)(II)).
The SPEAKER pro tempore. Pursuant to House Resolution 742, the
gentleman from Virginia (Mr. Boucher) and a Member opposed each will
control 5 minutes.
The Chair recognizes the gentleman from Virginia.
Mr. BOUCHER. Mr. Speaker, I yield myself such time as I may consume.
(Mr. BOUCHER asked and was given permission to revise and extend his
remarks.)
Mr. BOUCHER. Mr. Speaker, the amendment I am pleased to offer at this
time, along with the principal co-author of this legislation, the
gentleman from Indiana (Mr. Pence), incorporates recommendations that
were made to us by a number of members of the House Judiciary Committee
and other interested Members of the House both during the extensive
markup of this legislation in the committee and in the time intervening
between then and now.
The legislation was broadly supported in that committee and was
approved by voice vote in that committee, and the recommendations that
we have received now incorporated into this manager's amendment came
from members of the committee and other Members of the House both on
the Democratic and Republican sides. We have folded those various
recommendations into the manager's amendment.
These amendments that are folded into the manager's amendment further
limit the scope of the privilege that is conferred by the legislation
itself.
First, the amendment expands the instances in which source disclosure
can be compelled to include a leak by the source of properly classified
information where the leak has caused a significant and articulable
harm to national security.
Secondly, source disclosure could be compelled when the reporter
personally witnesses criminal conduct or when the reporter is himself
involved in criminal conduct.
Third, source disclosure could occur when necessary to identify any
perpetrator of an act of terrorism against the United States or other
significant and specified harm to national security.
The amendment also narrows the definition of the individuals who may
assert the privilege to refrain from revealing confidential sources in
Federal court proceedings. Under the amendment, only people who are
regularly engaged in news gathering and reporting and who receive
substantial financial gain or receive a substantial portion of their
livelihood from the journalistic activity will qualify.
The amendment will also deny the privilege to journalists who have
been designated as terrorists pursuant to law or who are employed by a
terrorist organization as designated pursuant to law.
We offer this amendment on a bipartisan basis, and we ask for its
approval by the House.
Mr. Speaker, I reserve the balance of my time.
Mr. SMITH of Texas. Mr. Speaker, although I am not opposed to the
amendment, I ask unanimous consent to control the time in opposition to
the amendment.
The SPEAKER pro tempore. Without objection, the gentleman is
recognized for 5 minutes.
There was no objection.
Mr. SMITH of Texas. Mr. Speaker, I yield 3 minutes to the gentleman
from Indiana (Mr. Pence).
(Mr. PENCE asked and was given permission to revise and extend his
remarks.)
Mr. PENCE. Mr. Speaker, under the provisions of the Free Flow of
Information Act where a reporter is being asked to reveal the identity
of a confidential source, the underlying bill here provides several
exceptions where a reporter may be compelled to reveal a source.
Sources can be revealed under exceptions for the prevention of
terrorism, other harm to the Nation's security, to prevent bodily harm,
in cases where trade secrets and personal health information are
revealed.
As a result of Chairman Conyers' bipartisan working group, we have
conceived of the Boucher-Pence bipartisan manager's amendment, and I
rise to support it.
It adds additional exceptions to the bill. Under it, compelled
disclosure of a source will be permitted in cases of unauthorized leaks
of national security secrets. Also, if a journalist is an eyewitness to
a crime or tortious conduct, the journalist cannot claim the privilege
of the shield and can be required to turn over information documents.
Also, as Mr. Boucher said, the amendment makes two changes regarding
the definition of a covered person. Covered persons are those who are
able to use the shield, and we have been discussing how we define
journalists throughout the history of this debate. In the manager's
amendment, we restrict coverage to those people who regularly engage in
journalism for substantial financial gain or a substantial part of
their livelihood. And this way, the definition will exclude casual
bloggers but not all bloggers, criminal offenders or the media wings of
terrorist groups who are not practicing journalism. It also adds
further exclusions to the list of terrorist organizations which are
excluded in order to supplement the language already there to make it
100 percent clear that terrorists cannot claim the privilege of this
bill.
I believe the Boucher-Pence manager's amendment, as the entirety of
the bill, is a result of bipartisan cooperation. I believe the Boucher-
Pence manager's amendment improves the Free Flow of Information Act. I
urge my colleagues on both sides of the aisle to support it.
Mr. SMITH of Texas. Mr. Speaker, I yield myself the balance of my
time.
I support the manager's amendment offered by the gentleman from
Virginia (Mr. Boucher). The provisions of the amendment do improve the
bill by addressing some of the Justice Department's concerns. Despite
this, it still does not cure the bill's fundamental flaws.
The legislation will still make it impossible to enforce certain
criminal laws and will impede national security investigation. While I
commend the sponsors of the amendment for trying to address the Justice
Department's concern, even if the amendment is adopted, the bill should
still be opposed. So I urge Members to support the amendment and oppose
the underlying bill.
Mr. Speaker, I yield back the balance of my time.
Mr. BOUCHER. Mr. Speaker, I am pleased to yield such time as he may
consume to the distinguished chairman of the House Judiciary Committee,
the gentleman from Michigan (Mr. Conyers).
Mr. CONYERS. Mr. Speaker, I am delighted and I congratulate the
ranking member for joining us in supporting the Boucher-Pence manager's
amendment. We think that we can move even further. Here is an amendment
that alters the standard for piercing the shield where national
security is involved. Also, it enables law enforcement to obtain an
order compelling disclosure of the identity of a source in the course
of a leak investigation.
So I am very happy about this. I think that it portends that there
may be other areas of agreement that we will be able to reach. I thank
the gentleman for yielding me the time.
Mr. BOUCHER. Mr. Speaker, I yield back the balance of my time.
[[Page H11601]]
The SPEAKER pro tempore. Pursuant to House Resolution 742, the
previous question is ordered on the bill, as amended, and on the
further amendment by the gentleman from Virginia (Mr. Boucher).
The question is on the amendment offered by the gentleman from
Virginia.
The amendment was agreed to.
The SPEAKER pro tempore. The question is on the engrossment and third
reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.
Motion to Recommit Offered by Mr. Smith of Texas
Mr. SMITH of Texas. Mr. Speaker, I offer a motion to recommit.
The SPEAKER pro tempore. Is the gentleman opposed to the bill?
Mr. SMITH of Texas. I am opposed in its current form.
The SPEAKER pro tempore. The Clerk will report the motion to
recommit.
The Clerk read as follows:
Mr. Smith of Texas moves to recommit the bill H.R. 2102 to
the Committee on the Judiciary with instructions to report
the same back to the House forthwith with the following
amendment:
Page 5, after line 2, insert the following subsection (and
redesignate subsequent subsections accordingly):
(b) Authority To Consider National Security Interest.--For
purposes of making a determination under subsection (a)(4), a
court may consider the extent of any harm to national
security.
Mr. SMITH of Texas (during the reading). Mr. Speaker, I ask unanimous
consent that the motion be considered as read and printed in the
Record.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Texas?
There was no objection.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Texas is recognized for 5 minutes in support of his motion.
Mr. SMITH of Texas. Mr. Speaker, H.R. 2102 presumes that a journalist
is entitled to a reporter's privilege unless the government can show a
court otherwise. The government can only do this by meeting certain
threshold requirements set forth in the bill.
After all those requirements are met, the judge must then apply a
balancing test. The judge must find that ``the public interest in
compelling disclosure of the information or document involved outweighs
the public interest in gathering or disseminating news or
information.''
My motion to recommit provides further guidance to the judge as to
what criteria should be considered in weighing that decision.
The motion to recommit simply states that the judge may consider the
extent of any harm to national security. It does not dictate any
result.
The manager's amendment partly addresses this issue by creating an
additional exception to the privilege that excludes from the privilege
leaks of classified information that harm national security in criminal
cases. I agree with that idea as far as it goes.
This motion to recommit, though, goes further. It allows the judge to
consider this factor in any case, not just a criminal case. It allows a
judge to consider any leak that harms national security, not just a
leak in violation of the laws on classified information.
There are many kinds of information that can harm national security.
One example is grand jury information. Suppose that the government is
conducting a grand jury investigation of a suspected terrorist ring. If
a grand juror were to reveal that to a reporter, it might allow the
terrorist to escape to strike another day.
Another example is information covered by various common law
privileges like the attorney/client privilege. Suppose that an attorney
knew his client, a former terrorist, was cooperating with authorities
to avoid prosecution. If he revealed this to the press, it could reveal
to the terrorist's former compatriots that they needed to change their
plans.
Another example is confidential business information that is
protected by contractual relationships. Employees of a computer company
might know and reveal without authorization that a certain new chip is
coming to the market in a matter of months. This might allow a foreign
enemy to stop their research on that type of chip and devote their
resources to some other project.
The problem is that any of these kinds of information could harm
national security. If they do, a judge ought to be able to consider
that in deciding what the public interest requires.
In short, I think we are going in the same direction, but the
manager's amendment does not go far enough. The motion to recommit
protects national security against harmful leaks in all cases, not just
criminal cases. When national security is threatened by leaks, we must
protect ourselves in all cases, not just criminal cases.
I urge my colleagues to adopt this motion and protect our national
security.
Mr. Speaker, I yield back the balance of my time.
{time} 1700
Mr. CONYERS. Mr. Speaker, I rise in support of the motion to
recommit.
The SPEAKER pro tempore. Without objection, the gentleman from
Michigan is recognized for 5 minutes.
There was no objection.
Mr. CONYERS. Mr. Speaker, I thank the Speaker and note his surprise,
and I want everyone to know that this motion is one that we on this
side can concur with. We think it's thoughtful and appropriate and
indicates the kind of rapprochement that we are trying to reach on any
other matters of difference that might be outstanding.
Allowing a court to take into account national security when
considering the balancing test and allowing the court to retain full
discretion on whether to consider this information, and it may consider
this along with any other information it deems relevant, means that the
ranking member's continued commitment to work on this issue is going on
even now, and I thank him for his constructive efforts.
Mr. Speaker, I yield to the author of the manager's amendment, Mr.
Boucher of Virginia.
Mr. BOUCHER. Mr. Speaker, I thank the gentleman from Michigan for
yielding to me, and I concur in his statement that this motion to
recommit is acceptable on our side, and in accepting this motion to
recommit, we are clearly acting in furtherance of the bipartisan
rapport that underlays the construction of the Free Flow of Information
Act and its consideration here in the House today.
The motion to recommit provides that in performing the balancing test
under the bill, which weighs whether the public interest in disclosure
outweighs the public interest in news gathering and dissemination, the
court may consider the extent of any harm to national security.
The extent of any harm to national security is clearly a relevant
consideration when determining key questions relating to what is or is
not in the public interest, and for that reason, Mr. Speaker, I'm
pleased to join with the gentleman from Michigan in urging acceptance
of the motion to recommit.
The SPEAKER pro tempore. Without objection, the previous question is
ordered on the motion to recommit.
There was no objection.
The SPEAKER pro tempore. The question is on the motion to recommit.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. SMITH of Texas. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 9 of rule XX, the Chair
will reduce to 5 minutes the minimum time for any electronic vote on
the question of passage.
The vote was taken by electronic device, and there were--yeas 388,
nays 33, not voting 10, as follows:
[Roll No. 972]
YEAS--388
Ackerman
Aderholt
Akin
Alexander
Allen
Altmire
Andrews
Arcuri
Baca
Bachmann
Bachus
Baird
Baker
Baldwin
Barrett (SC)
Barrow
Bartlett (MD)
Barton (TX)
Bean
Becerra
Berkley
Berman
Berry
Biggert
Bilbray
Bilirakis
Bishop (GA)
Bishop (NY)
Bishop (UT)
Blackburn
Blumenauer
Blunt
Boehner
Bonner
Bono
Boozman
Boren
Boswell
Boucher
Boustany
Boyd (FL)
Boyda (KS)
Brady (PA)
Brady (TX)
Braley (IA)
Broun (GA)
Brown (SC)
Brown, Corrine
[[Page H11602]]
Brown-Waite, Ginny
Buchanan
Burgess
Burton (IN)
Butterfield
Buyer
Calvert
Camp (MI)
Campbell (CA)
Cannon
Cantor
Capito
Capps
Capuano
Cardoza
Carnahan
Carney
Carter
Castle
Chabot
Chandler
Cleaver
Coble
Cohen
Cole (OK)
Conaway
Conyers
Cooper
Costa
Costello
Courtney
Cramer
Crenshaw
Crowley
Cuellar
Culberson
Cummings
Davis (AL)
Davis (CA)
Davis (KY)
Davis, David
Davis, Lincoln
Davis, Tom
Deal (GA)
DeFazio
DeGette
Delahunt
DeLauro
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Dicks
Doggett
Donnelly
Doolittle
Doyle
Drake
Dreier
Duncan
Edwards
Ehlers
Ellison
Ellsworth
Emanuel
Emerson
Engel
English (PA)
Eshoo
Etheridge
Everett
Fallin
Farr
Fattah
Feeney
Ferguson
Flake
Forbes
Fortenberry
Fossella
Foxx
Frank (MA)
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Giffords
Gilchrest
Gillibrand
Gingrey
Gohmert
Gonzalez
Goode
Goodlatte
Gordon
Granger
Graves
Green, Al
Green, Gene
Hall (NY)
Hall (TX)
Hare
Harman
Hastert
Hastings (WA)
Hayes
Heller
Hensarling
Herger
Herseth Sandlin
Higgins
Hill
Hobson
Hodes
Hoekstra
Holden
Honda
Hooley
Hoyer
Hulshof
Hunter
Inglis (SC)
Inslee
Israel
Issa
Jackson (IL)
Jefferson
Johnson (GA)
Johnson (IL)
Johnson, Sam
Jones (NC)
Jones (OH)
Jordan
Kagen
Kanjorski
Kaptur
Keller
Kennedy
Kildee
Kilpatrick
Kind
King (IA)
King (NY)
Kingston
Kirk
Klein (FL)
Kline (MN)
Knollenberg
Kuhl (NY)
LaHood
Lamborn
Lampson
Langevin
Lantos
Larson (CT)
Latham
LaTourette
Levin
Lewis (CA)
Lewis (KY)
Linder
Lipinski
LoBiondo
Loebsack
Lofgren, Zoe
Lowey
Lucas
Lungren, Daniel E.
Lynch
Mack
Mahoney (FL)
Maloney (NY)
Manzullo
Marchant
Markey
Marshall
Matheson
Matsui
McCarthy (CA)
McCarthy (NY)
McCaul (TX)
McCollum (MN)
McCotter
McCrery
McDermott
McGovern
McHenry
McHugh
McIntyre
McKeon
McMorris Rodgers
McNerney
McNulty
Meek (FL)
Melancon
Mica
Michaud
Miller (FL)
Miller (MI)
Miller (NC)
Miller, Gary
Mitchell
Mollohan
Moore (KS)
Moran (KS)
Moran (VA)
Murphy (CT)
Murphy, Patrick
Murphy, Tim
Murtha
Musgrave
Myrick
Nadler
Neal (MA)
Neugebauer
Nunes
Oberstar
Obey
Ortiz
Pallone
Pascrell
Pastor
Pearce
Pence
Perlmutter
Peterson (MN)
Petri
Pickering
Pitts
Platts
Poe
Pomeroy
Porter
Price (GA)
Price (NC)
Pryce (OH)
Putnam
Radanovich
Rahall
Ramstad
Regula
Rehberg
Reichert
Renzi
Reyes
Reynolds
Richardson
Rodriguez
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Roskam
Ross
Rothman
Roybal-Allard
Royce
Ruppersberger
Rush
Ryan (OH)
Ryan (WI)
Salazar
Sali
Sanchez, Linda T.
Sanchez, Loretta
Sarbanes
Saxton
Schiff
Schmidt
Schwartz
Scott (GA)
Scott (VA)
Sensenbrenner
Serrano
Sessions
Sestak
Shadegg
Shays
Shea-Porter
Sherman
Shimkus
Shuler
Shuster
Simpson
Sires
Skelton
Smith (NE)
Smith (NJ)
Smith (TX)
Smith (WA)
Snyder
Solis
Souder
Space
Spratt
Stearns
Stupak
Sullivan
Sutton
Tanner
Tauscher
Terry
Thompson (CA)
Thompson (MS)
Thornberry
Tiahrt
Tiberi
Tierney
Towns
Turner
Udall (CO)
Udall (NM)
Upton
Van Hollen
Visclosky
Walberg
Walden (OR)
Walsh (NY)
Walz (MN)
Wamp
Watson
Watt
Waxman
Weiner
Welch (VT)
Weldon (FL)
Weller
Westmoreland
Wexler
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Wu
Wynn
Yarmuth
Young (AK)
Young (FL)
NAYS--33
Abercrombie
Castor
Clarke
Clay
Davis (IL)
Dingell
Filner
Grijalva
Gutierrez
Hastings (FL)
Hinchey
Hinojosa
Hirono
Holt
Jackson-Lee (TX)
Kucinich
Larsen (WA)
Lee
Lewis (GA)
Meeks (NY)
Miller, George
Moore (WI)
Napolitano
Olver
Paul
Payne
Rangel
Schakowsky
Slaughter
Stark
Velazquez
Wasserman Schultz
Waters
NOT VOTING--10
Carson
Clyburn
Cubin
Jindal
Johnson, E. B.
Peterson (PA)
Tancredo
Taylor
Wilson (OH)
Woolsey
Announcement by the Speaker Pro Tempore
The SPEAKER pro tempore (during the vote). Members are advised that 2
minutes remain in this vote.
{time} 1727
Ms. MOORE of Wisconsin, Messrs. HOLT, DAVIS of Illinois, HINCHEY,
GUTIERREZ, Ms. VELAZQUEZ, and Mr. MEEKS of New York changed their votes
from ``yea'' to ``nay.''
Ms. DeGETTE, Mrs. CAPPS, and Mr. JACKSON of Illinois changed their
votes from ``nay'' to ``yea.''
So the motion to recommit was agreed to.
The result of the vote was announced as above recorded.
Mr. CONYERS. Mr. Speaker, pursuant to the instructions of the House
in the motion to recommit, I report the bill, H.R. 2102, back to the
House with an amendment.
The SPEAKER pro tempore. The Clerk will report the amendment.
The Clerk read as follows:
Amendment:
Page 5, after line 2, insert the following subsection (and
redesignate subsequent subsections accordingly):
(b) Authority To Consider National Security Interest.--For
purposes of making a determination under subsection (a)(4), a
court may consider the extent of any harm to national
security.
The SPEAKER pro tempore. The question is on the amendment.
The amendment was agreed to.
The SPEAKER pro tempore. The question is on the engrossment and third
reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.
The SPEAKER pro tempore. The question is on the passage of the bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Recorded Vote
Mr. CONYERS. Mr. Speaker, I demand a recorded vote.
A recorded vote was ordered.
The SPEAKER pro tempore. This will be a 5-minute vote.
The vote was taken by electronic device, and there were--ayes 398,
noes 21, not voting 12, as follows:
[Roll No. 973]
AYES--398
Ackerman
Aderholt
Alexander
Allen
Altmire
Andrews
Arcuri
Baca
Bachmann
Bachus
Baird
Baker
Baldwin
Barrett (SC)
Barrow
Bartlett (MD)
Bean
Becerra
Berkley
Berman
Berry
Biggert
Bilbray
Bilirakis
Bishop (GA)
Bishop (NY)
Bishop (UT)
Blackburn
Blumenauer
Blunt
Boehner
Bonner
Bono
Boozman
Boren
Boswell
Boucher
Boustany
Boyd (FL)
Boyda (KS)
Brady (PA)
Brady (TX)
Braley (IA)
Broun (GA)
Brown, Corrine
Brown-Waite, Ginny
Buchanan
Burgess
Burton (IN)
Butterfield
Calvert
Camp (MI)
Campbell (CA)
Cannon
Cantor
Capito
Capps
Capuano
Cardoza
Carnahan
Carney
Castle
Castor
Chabot
Chandler
Clarke
Clay
Cleaver
Coble
Cohen
Cole (OK)
Conaway
Conyers
Cooper
Costa
Costello
Courtney
Cramer
Crenshaw
Crowley
Cuellar
Cummings
Davis (AL)
Davis (CA)
Davis (IL)
Davis (KY)
Davis, David
Davis, Lincoln
Davis, Tom
Deal (GA)
DeFazio
DeGette
Delahunt
DeLauro
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Dicks
Dingell
Doggett
Donnelly
Doolittle
Doyle
Drake
Dreier
Duncan
Edwards
Ehlers
Ellison
Ellsworth
Emanuel
Emerson
Engel
English (PA)
Eshoo
Etheridge
Everett
Fallin
Farr
Fattah
Feeney
Ferguson
Filner
Flake
Forbes
Fortenberry
Fossella
Foxx
Frank (MA)
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Giffords
Gilchrest
Gillibrand
Gingrey
Gohmert
Gonzalez
Goode
Goodlatte
Gordon
Granger
Graves
Green, Al
Green, Gene
Grijalva
Hall (NY)
Hall (TX)
Hare
Harman
Hastert
Hastings (FL)
Hastings (WA)
Hayes
Heller
Hensarling
Herseth Sandlin
Higgins
Hill
Hinchey
Hinojosa
Hirono
Hobson
Hodes
Hoekstra
Holden
Holt
Honda
Hooley
Hoyer
Hulshof
Hunter
Inglis (SC)
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson (GA)
Johnson (IL)
Jones (NC)
Jones (OH)
Jordan
Kagen
Kanjorski
Kaptur
Keller
Kennedy
Kildee
Kilpatrick
Kind
Kingston
Kirk
Klein (FL)
Kline (MN)
Knollenberg
Kucinich
Kuhl (NY)
LaHood
Lamborn
Lampson
Langevin
Lantos
Larsen (WA)
Larson (CT)
Latham
LaTourette
Lee
Levin
Lewis (CA)
Lewis (GA)
Lewis (KY)
Linder
Lipinski
LoBiondo
Loebsack
Lofgren, Zoe
Lowey
Lucas
Lynch
Mack
Mahoney (FL)
Maloney (NY)
Manzullo
Marchant
Markey
Marshall
Matheson
Matsui
McCarthy (CA)
McCarthy (NY)
McCaul (TX)
McCollum (MN)
McCotter
McCrery
McDermott
McGovern
McHenry
McHugh
McIntyre
McKeon
McMorris Rodgers
McNerney
McNulty
Meek (FL)
Meeks (NY)
Melancon
Michaud
Miller (FL)
Miller (MI)
Miller (NC)
Miller, Gary
Miller, George
Mitchell
Mollohan
Moore (KS)
Moore (WI)
Moran (KS)
Moran (VA)
[[Page H11603]]
Murphy (CT)
Murphy, Patrick
Murphy, Tim
Murtha
Musgrave
Myrick
Nadler
Napolitano
Neal (MA)
Neugebauer
Nunes
Oberstar
Obey
Olver
Ortiz
Pallone
Pascrell
Pastor
Paul
Payne
Pearce
Pence
Perlmutter
Peterson (MN)
Pickering
Pitts
Platts
Poe
Pomeroy
Porter
Price (GA)
Price (NC)
Pryce (OH)
Putnam
Radanovich
Rahall
Ramstad
Rangel
Regula
Rehberg
Reichert
Renzi
Reyes
Reynolds
Richardson
Rodriguez
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Roskam
Ross
Rothman
Roybal-Allard
Ruppersberger
Rush
Ryan (OH)
Ryan (WI)
Salazar
Sanchez, Linda T.
Sanchez, Loretta
Sarbanes
Saxton
Schakowsky
Schiff
Schmidt
Schwartz
Scott (GA)
Scott (VA)
Serrano
Sessions
Sestak
Shadegg
Shays
Shea-Porter
Shimkus
Shuler
Shuster
Simpson
Sires
Skelton
Slaughter
Smith (NE)
Smith (NJ)
Smith (WA)
Snyder
Solis
Souder
Space
Spratt
Stark
Stearns
Stupak
Sullivan
Sutton
Tanner
Tauscher
Terry
Thompson (CA)
Thompson (MS)
Tiahrt
Tiberi
Tierney
Towns
Turner
Udall (CO)
Udall (NM)
Upton
Van Hollen
Velazquez
Visclosky
Walberg
Walden (OR)
Walsh (NY)
Walz (MN)
Wamp
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Welch (VT)
Weller
Westmoreland
Wexler
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Wu
Wynn
Yarmuth
Young (AK)
Young (FL)
NOES--21
Abercrombie
Akin
Barton (TX)
Brown (SC)
Buyer
Carter
Culberson
Herger
Issa
Johnson, Sam
King (IA)
King (NY)
Lungren, Daniel E.
Mica
Petri
Royce
Sali
Sensenbrenner
Smith (TX)
Thornberry
Weldon (FL)
NOT VOTING--12
Carson
Clyburn
Cubin
Gutierrez
Jindal
Johnson, E. B.
Peterson (PA)
Sherman
Tancredo
Taylor
Wilson (OH)
Woolsey
Announcement by the Speaker Pro Tempore
The SPEAKER pro tempore (during the vote). Members are advised that
there is 1 minute remaining on this vote.
{time} 1736
So the bill was passed.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
____________________
