[Congressional Record: September 10, 2007 (Senate)]
[Page S11328-S11330]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. SPECTER (for himself, Mr. Lugar, and Mr. Schumer):
S. 2035. A bill 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; to the
Committee on the Judiciary.
Mr. SPECTER. Mr. President, I have sought recognition to introduce
legislation to establish a reporter's privilege. The situation in the
United States today is that newspaper reporters, journalists, are
subject to a compulsory process to disclose confidential informants.
The matter came to a head with the incarceration of a New York Times
reporter, Judith Miller, for an extended period of time.
Last year, Senator Lugar and I introduced legislation to establish a
reporter's privilege. Since that time, the legislation has been revised
to provide limitations where national security is involved or where the
reporter may be the eyewitness to a specific event.
This legislation differs from S. 1267, the bill which has been
introduced by Senator Lugar and Senator Dodd, in that it tightens up
exceptions where, for reasons of substantial public importance, the
privilege will be limited. But today, there is a patchwork quality in
the law, with the circuits going in different directions. Privileges
are accorded under many State laws.
This bill has very widespread support. So on behalf of Senator
Schumer, Senator Lugar, and myself, I introduce this bill.
I ask unanimous consent that the full text of my prepared statement
be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Mr. President, I seek recognition today to introduce, with
Senators Schumer and Lugar, the Free Flow of Information Act
of 2007. This bill would establish a Federal reporter's
privilege to protect the free flow of information between
journalists and confidential sources. It seeks to reconcile
reporters' need to maintain confidentiality, in order to
ensure that sources will speak openly and freely with the
media, with the
[[Page S11330]]
public's right to effective law enforcement and fair trials.
Senator Lugar and I introduced a similar bill last year,
which garnered the support of 10 cosponsors from both sides
of the aisle, as well as 39 media organizations, including
the Washington Post, The Hearst Corporation, Time Warner, ABC
Inc., CBS, CNN, The New York Times Company, and National
Public Radio.
There has been a growing consensus that we need to
establish a Federal journalists' privilege to protect the
integrity of the news gathering process, a process that
depends on the free flow of information between journalists
and whistleblowers, as well as other confidential sources.
Under my chairmanship, the Judiciary Committee held three
separate hearings on this issue at which we heard from 20
witnesses, including prominent journalists like William
Safire and Judith Miller, current and former Federal
prosecutors, including Deputy Attorney General Paul McNulty,
and First Amendment scholars.
These witnesses demonstrated that there are two vital,
competing concerns at stake. On one hand, reporters cite the
need to maintain confidentiality in order to ensure that
sources will speak openly and freely with the news media. The
renowned William Safire, former columnist for the New York
Times, testified that ``the essence of news gathering is
this: if you don't have sources you trust and who trust you,
then you don't have a solid story--and the public suffers for
it.'' Reporter Matthew Cooper of Time Magazine said this to
the Judiciary Committee: ``As someone who relies on
confidential sources all the time, I simply could not do my
job reporting stories big and small without being able to
speak with officials under varying degrees of anonymity.''
On the other hand, the public has a right to effective law
enforcement and fair trials. Our judicial system needs access
to information in order to prosecute crime and to guarantee
fair administration of the law for plaintiffs and defendants
alike. As a Justice Department representative told the
Committee, prosecutors need to ``maintain the ability, in
certain vitally important circumstances, to obtain
information identifying a source when a paramount interest is
at stake. For example, obtaining source information may be
the only available means of preventing a murder, locating a
kidnapped child, or identifying a serial arsonist.''
As Federal courts have considered these competing
interests, they adopted rules that went in several different
directions. Rather than a clear, uniform standard for
deciding claims of journalist privilege, the Federal courts
currently observe a ``crazy quilt'' of different judicial
standards.
The current confusion began 33 years ago, when the Supreme
Court decided Branzburg v. Hayes. The Court held that the
press's First Amendment right to publish information does not
include a right to keep information secret from a grand jury
investigating a criminal matter. The Supreme Court also held
that the common law did not exempt reporters from the duty of
every citizen to provide information to a grand jury.
The Court reasoned that just as newspapers and journalists
are subject to the same laws and restrictions as other
citizens, they are also subject to the same duty to provide
information to a court as other citizens. However, Justice
Powell, who joined the 5-4 majority, wrote a separate
concurrence in which he explained that the Court's holding
was not an invitation for the Government to harass
journalists. If a journalist could show that the grand jury
investigation was being conducted in bad faith, the
journalist could ask the court to quash the subpoena. Justice
Powell indicated that courts might assess such claims on a
case-by-case basis by balancing the freedom of the press
against the obligation to give testimony relevant to criminal
conduct.
In attempting to apply Justice Powell's concurring opinion,
Federal courts have split on the question of when a
journalist is required to testify. In the 33 years since
Branzburg, the Federal courts are split in at least three
ways in their approaches to Federal criminal and civil cases.
With respect to Federal criminal cases, five circuits--the
First, Fourth, Fifth, Sixth, and Seventh Circuits--have
applied Branzburg so as to not allow journalists to withhold
information absent governmental bad faith. Four other
circuits--the Second, Third, Ninth, and Eleventh Circuits--
recognize a qualified privilege, which requires courts to
balance the freedom of the press against the obligation to
provide testimony on a case-by-case basis. The law in the
District of Columbia Circuit is unsettled.
With respect to Federal civil cases, nine of the 12
circuits apply a balancing test when deciding whether
journalists must disclose confidential sources. One circuit
affords journalists no privilege in any context. Two other
circuits have yet to decide whether journalists have any
privilege in civil cases. Meanwhile, 49 States plus the
District of Columbia have recognized a privilege within their
own jurisdictions. Thirty-one States plus the District of
Columbia have passed some form of reporter's shield statute,
and 18 States have recognized a privilege at common law.
There is little wonder that there is a growing consensus
concerning the need for a uniform journalists' privilege in
Federal courts. This system must be simplified.
Today, we move toward resolving this problem by introducing
the Free Flow of Information Act. The purpose of this bill is
to guarantee the flow of information to the public through a
free and active press, while protecting the public's right to
effective law enforcement and individuals' rights to the fair
administration of justice.
This bill also provides ample protection to the public's
interest in law enforcement and fair trials. The bill
provides a qualified privilege for reporters to withhold from
Federal courts, prosecutors, and other Federal entities,
confidential source information and documents and materials
obtained or created under a promise of confidentiality.
However, the bill recognizes that, in certain instances, the
public's interest in law enforcement and fair trials
outweighs a reporter's interest in keeping a source
confidential. Therefore, it allows courts to require
disclosure where certain criteria are met.
In most criminal investigations and prosecutions, the
Federal entity seeking the reporter's source information must
show that there are reasonable grounds to believe that a
crime has occurred, and that the reporter's information is
essential to the prosecution or defense. In criminal
investigations and prosecutions of leaks of classified
information, the Federal entity seeking disclosure must
additionally show that the leak caused significant, clear,
and articulable harm to the national security. In noncriminal
actions, the Federal entity seeking source information must
show that the reporter's information is essential to the
resolution of the matter.
In all cases and investigations, the Federal entity must
demonstrate that nondisclosure would be contrary to the
public interest. In other words, the court must balance the
need for the information against the public interest in
newsgathering and the free flow of information.
Further, the bill ensures that Federal Government entities
do not engage in ``fishing expeditions'' for a reporter's
information. The information a reporter reveals must, to the
extent possible, be limited to verifying published
information and describing the surrounding circumstances. The
information must also be narrowly tailored to avoid
compelling a reporter to reveal peripheral or speculative
information.
Finally, the Free Flow of Information Act adds layers of
safeguards for the public. Reporters are not allowed to
withhold information if a Federal court concludes that the
information is needed for the defense of our Nation's
security, as long as it outweighs the public interest in
newsgathering and maintains the free flow of information to
citizens, or to prevent an act of terrorism. Similarly,
journalists may not withhold information reasonably necessary
to stop a kidnapping or a crime that could lead to death or
physical injury. Also, the bill ensures that both crime
victims and criminal defendants will have a fair hearing in
court. Under this bill, a journalist who is an eyewitness to
a crime or tort or takes part in a crime or tort may not
withhold that information. Journalists should not be
permitted to hide from the law by writing a story and then
claiming a reporter's privilege.
It is time to simplify the patchwork of court decisions and
legislation that has grown over the last 3 decades. It is
time for Congress to clear up the ambiguities journalists and
the Federal judicial system face in balancing the protections
journalists need in providing confidential information to the
public with the ability of the courts to conduct fair and
accurate trials. I urge my colleagues to support this
legislation and help create a fair and efficient means to
serve journalists and the news media, prosecutors and the
courts, and most importantly the public interest on both ends
of the spectrum.
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