111th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 111-61
======================================================================
FREE FLOW OF INFORMATION ACT OF 2009
_______
March 30, 2009.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Conyers, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 985]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 985) 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, having considered the same, reports favorably
thereon without amendment and recommends that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 6
Committee Consideration.......................................... 7
Committee Votes.................................................. 7
Committee Oversight Findings..................................... 7
New Budget Authority and Tax Expenditures........................ 7
Congressional Budget Office Cost Estimate........................ 7
Performance Goals and Objectives................................. 9
Constitutional Authority Statement............................... 9
Advisory on Earmarks............................................. 9
Section-by-Section Analysis...................................... 9
Dissenting Views................................................. 11
Purpose and Summary
H.R. 985, the ``Free Flow of Information Act of 2009,''
ensures that members of the press may engage in effective
journalism and utilize confidential sources without harming
themselves or their sources, by providing a qualified privilege
that prevents a reporter's source material from being revealed
except under certain circumstances, such as where it is
necessary to prevent an act of terrorism or other significant
and specified harm to national security, or imminent death or
significant bodily harm. The bill thus strikes a careful
balance with respect to promoting the free dissemination of
information and ensuring effective law enforcement and the fair
administration of justice, while containing substantial
protections for law enforcement and ensuring that information
needed to protect the national security or other critical
interests will be accessible when needed.
H.R. 985 is identical to H.R. 2102 from the 110th Congress,
in the amended form in which it passed the House of
Representatives on October 16, 2007, by a recorded vote of 398-
21.
Background and Need for the Legislation
BACKGROUND
The First Amendment and Freedom of the Press
The First Amendment of the Constitution states that
``Congress shall make no law . . . abridging the freedom of
speech, or of the press.''\1\ Historically, the press has
played an essential role in disseminating information to the
public.\2\ In addition to providing general news about crimes
against the state, the press has been thought to further the
values of the First Amendment by providing information on
issues of public concern, including the conduct and actions of
public officials and instances of government corruption.\3\
Thus, it has been recognized that the press should be protected
from undue government interference when gathering and
disseminating information if it is to provide newsworthy
information to the general public.\4\ The Supreme Court has
recognized this and has struck down laws that have restricted
the press's ability to broadcast information of public
concern.\5\ Since confidential sources are thought to be
particularly important to bringing unrestricted information of
public interest to light, it has been argued that the First
Amendment offers protection against the compulsory disclosure
of these confidential sources by the Federal Government.\6\
---------------------------------------------------------------------------
\1\U.S. Const. amend. I.
\2\See Bradley S. Miller, The Big Chill: Third-Party Documents and
the Reporter's Privilege, 29 U. Mich. J.L. Ref. 613, 623 (1995-96)
(discussing the importance of the press in getting useful information
about government to the people); see also Citizen Pub. Co. v. United
States, 394 U.S. 131, 139-40 (1969) (explaining that a free press is
key to a free society as it ensures widespread and diverse dispersal of
information).
\3\See New York Times v. Sullivan, 376 U.S. 254, 270 (1964)
(stating that ``debate on public issues should be uninhibited, robust,
and wide-open''); see also Mills v. Alabama, 384 U.S. 214, 218 (1966)
(asserting that ``a major purpose of that Amendment was to protect the
free discussion of government affairs''); Garrison v. Louisiana, 379
U.S. 64, 77 (1964) (suggesting that there is ``paramount public
interest in a free flow of information to the people concerning public
officials''). See generally David A. Anderson, The Origins of the Press
Clause, 30 UCLA L. Rev. 455 (1983) (detailing history of Press Clause).
\4\See Bradley S. Miller, The Big Chill: Third-Party Documents and
the Reporter's Privilege, 29 U. Mich. J.L. Ref. 613, 623 (1995-96)
(arguing that the press must be free of governmental restrictions so it
can remain the ``investigative arm of the people,'' uncovering
government corruption and other crimes detrimental to American people);
see also New York Times v. United States, 403 U.S. 713, 728 (1971)
(Stewart, J., concurring) (arguing that in certain areas of government,
the only checks and balances against government power may be
``enlightened citizenry,'' and an alert and free press is essential to
bestow knowledge on the public).
\5\See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,
580 (1980) (overruling limitations on press access to judicial
proceedings); Sullivan, 376 U.S. at 281 (establishing ``actual malice''
standard for defamation claims by public officials).
\6\Mark Gomsak, Note, The Free Flow of Information Act of 2006:
Settling the Journalist's Privilege Debate, 45 Brandeis L.J. 597, 601
(2007).
---------------------------------------------------------------------------
There are typically two bases in the First Amendment
supporting the privilege: (1) the need to protect the free flow
of information and ideas, and (2) the need to keep the
government from interfering with the press or commandeering it
as an investigative arm.\7\ With respect to the first point,
the right to publish is worthless without the right to gather
information; shield law protection is necessary because some
reporting is dependent on informants, and some informants are
unwilling to be named because of fear of retribution,
embarrassment, or harm. Those informants could be deterred by
the risk of being compulsorily named; as a result, reporters
would neither have access to nor be able to publish important
information.
---------------------------------------------------------------------------
\7\Id. at 601.
---------------------------------------------------------------------------
With respect to the second point, it is often argued by the
press that the extent of interference with the journalistic
process is significant, as ``subpoenas are inherently,
invariably, inescapably burdensome.''\8\ Responding to
subpoenas requires much time and expense, and the subpoenas
often seek information that is only marginally relevant.\9\ The
press further asserts that complying with a subpoena may also
have an adverse impact on a journalist's credibility, as
testifying for one side may make the journalist appear
biased.\10\
---------------------------------------------------------------------------
\8\Id. at 608 (arguing that subpoenas devour time and resources
better used for other purposes and entangle people in the criminal
process).
\9\See id. at 609 (citing Judge Richard Posner's statement that
subpoenas can lawfully require testimony about activities both
``intensely private and entirely marginal to the purpose of the
inquiry'').
\10\Bradley S. Miller, The Big Chill: Third-Party Documents and the
Reporter's Privilege, 29 U. Mich. J.L. Ref. 613, 623 (1995-96)
(suggesting that the subpoena threat may puncture the cooperative
atmosphere between reporter and source by redirecting attention to the
question of the reporter's loyalties); see, e.g., Cohen v. Cowles Media
Co., 501 U.S. 663, 665 (1991) (concluding that the First Amendment does
not prohibit a plaintiff from recovering damages for a reporter's
breach of a promise of confidentiality).
---------------------------------------------------------------------------
The Issue of Journalistic Privilege
In Branzburg v. Hayes,\11\ the Supreme Court ruled on a
claim of journalists' privilege for the first time.\12\ In an
opinion by Justice White, the Court held that a journalist
could not rely on an absolute First Amendment-based privilege
to refuse to testify when questioned by a grand jury, unless
the grand jury investigation was ``instituted or conducted
other than in good faith.''\13\ The Court reasoned that the
public's interest in prosecuting crime outweighed its interest
in journalists' being permitted to preserve their confidential
relationships. The Court, however, noted that there was ``merit
in leaving state legislatures free, within First Amendment
limits, to fashion their own standards'' regarding journalists'
privilege.\14\
---------------------------------------------------------------------------
\11\408 U.S. 665 (1972).
\12\The first claim by a reporter that the First Amendment
justified a refusal to provide information came in a case in which a
columnist reported several allegedly defamatory statements from an
anonymous CBS source about actress Judy Garland. Garland v. Torre, 259
F.2d 545, 547 (2d Cir. 1958). Garland sued CBS; in her deposition, the
reporter refused to answer questions about the source of the
statements. Id. The Second Circuit held that the First Amendment did
not confer a right to refuse to answer questions, at least when the
questions ``went to the heart of the . . . claim.'' Id. at 548-50.
\13\408 U.S. 665, at 707.
\14\Id. at 706
---------------------------------------------------------------------------
Justice Powell's concurrence in Branzburg stressed the need
for a test to strike the ``proper balance between freedom of
the press and the obligation of all citizens to give relevant
testimony with respect to criminal conduct.''\15\ He explained
that a court could quash a subpoena where ``legitimate First
Amendment interests require protection.''\16\ In his dissent,
Justice Stewart went a step further and proposed a specific
balancing test.\17\ Under his test, in order to make a
journalist comply with a subpoena to appear before a grand jury
and reveal confidential sources and information, the government
must: (1) show that there is probable cause to believe that the
reporter has information that is clearly relevant to a specific
probable violation of law; (2) demonstrate that the information
sought cannot be obtained by alternative means less destructive
of First Amendment rights; and (3) establish a compelling and
overwhelming interest in the information.\18\
---------------------------------------------------------------------------
\15\Id. at 726 (Powell, J., concurring).
\16\Id.
\17\Id. at 743 (Stewart, J., dissenting).
\18\Id.
---------------------------------------------------------------------------
In the aftermath of Branzburg, there have been recurring
calls for a Federal shield law or for a reconsideration of that
decision.\19\ Although nearly one hundred bills was introduced
in the 6 years after the Branzburg decision,\20\ none of these
measures was passed, a failure that is partially attributed to
an inability to reach consensus on the definition of
``journalist,'' and to the insistence of the press on an
absolute privilege, not a qualified one.\21\ In 1970 the
Attorney General promulgated guidelines to govern the issue for
the Department of Justice.\22\ These guidelines require the
Department to: balance First Amendment values with the need for
the information sought by the subpoena; make a reasonable
attempt to get the information from alternative sources;
negotiate with the news media before issuing a subpoena; obtain
Attorney General approval before issuing a subpoena; and
specify reasonable grounds for the Department's belief that the
information sought by the subpoena is essential.\23\
---------------------------------------------------------------------------
\19\Paul Marcus, The Reporter's Privilege: An Analysis of the
Common Law, Branzburg v. Hayes, and Recent Statutory Developments, 25
Ariz. L. Rev. 815, 866-67 (1984) (calling for a uniform national
standard for the national news-gathering media).
\20\Id. at 867.
\21\23 Charles Alan Wright & Kenneth W. Graham, Jr., Federal
Practice and Procedure 5426, at 738-39 (1980) (concluding that the
press eventually lost interest in seeking a Federal legislative
solution to the subpoena problem).
\22\See 28 C.F.R. 50.10 (1970).
\23\Id.
---------------------------------------------------------------------------
Also since the Branzburg decision, Federal courts have
continued to develop a common law privilege on a case-by-case
basis.\24\ Some Federal courts have recognized a qualified
journalist's privilege in non-grand jury settings, some have
extended it to both civil and criminal proceedings, and some
have even extended the privilege to non-confidential
sources.\25\ This lack of uniformity among the Federal courts
has prompted calls from journalists and scholars for Federal
legislation.
---------------------------------------------------------------------------
\24\See Riley v. City of Chester, 612 F.2d 708, 714 n.6 (3d Cir.
1979) (quoting a comment by the principal drafter of the Federal Rules
of Evidence that ``the language of Rule 501 permits the courts to
develop a privilege for newspaperpeople on a case-by-case basis'').
\25\Paul Marcus, The Reporter's Privilege: An Analysis of the
Common Law, Branzburg v. Hayes, and Recent Statutory Developments, 25
Ariz. L. Rev. 815, 864 (1984).
---------------------------------------------------------------------------
The Federal Rules of Evidence
Federal Rule of Evidence 501 states that except as provided
by an Act of Congress or in rules prescribed by the Supreme
Court, Federal privileges should be governed by the principles
of common law. When courts recognize a privilege, it has been
for the purpose of protecting information shared in the context
of a special relationship, such as that between attorney and
client, or between husband and wife. Privileges are created to
promote sharing information without the fear that either party
will be forced to disclose to a third party.
In 1996, the Supreme Court issued a three-part test for
when a new privilege may be created: 1) whether the proposed
privilege serves significant public and private interests; 2)
whether the recognition of those interests outweighs any burden
on truth-seeking that might be imposed by the States; and 3)
whether such a privilege is widely recognized by the States.
State Shield Laws
Since 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. While 16 of these States
recognize a reporter's privilege as a result of judicial
decisions, only 13 States and the District of Columbia accord
an absolute privilege for a journalist to withhold information,
regardless of the State's demonstration of need for the
information.
The various State statutes range in scope, from broad
protections that provide an absolute journalistic privilege, to
shield laws that offer a qualified privilege.\26\ The majority
of State shield laws currently in place offer some form of a
qualified privilege to reporters that protects source
information in judicial settings, unless the compelling party
can establish (1) that the information is relevant or material;
(2) that it is unavailable by other means, or through other
sources; and (3) that a compelling need exists for the
information.\27\ The States tend to vary on the last element,
with some requiring the compelling party to establish whether
the need exists as to the party's case, and others whether the
need serves a broader public policy.\28\ In Federal courts,
however, there is no uniform set of standards governing when
testimony can be sought from reporters.
---------------------------------------------------------------------------
\26\Carey Lening & Henry Cohen, Journalists' Privilege to Withhold
Information in Judicial and Other Proceedings: State Shield Statutes,
Congressional Research Service Report for Congress, Mar. 8, 2005.
\27\Id.
\28\Id.
---------------------------------------------------------------------------
NEED FOR THE LEGISLATION
This legislation is essential for journalists to be able to
protect confidential sources. Without this protection, many
sources of information may be unwilling to come forward with
critical information. The privilege is necessary to preserve
the free flow of information.
Many people view the press as the fourth branch of
government, serving in the checks and balances system that
underlies our democracy. Over the years, the press has
uncovered scandals and corruption in the government, and
criminal behavior, often attributable to an undisclosed source.
In fact, many stories would not have been published without a
promise of confidentiality of sources--Watergate and Iran-
Contra come to mind, among many others. More recent news
stories brought to light based on confidential sources include
the conditions at the Walter Reed Army Medical Center, the Abu
Ghraib prison scandal, and the abuse of steroids by baseball
players.
A Federal shield law is also needed because of the lack of
uniform standards--at both the Federal level and State level--
to govern when testimony can be sought from reporters. This
argument was made by 34 State attorneys general, including the
District of Columbia, in an amicus brief filed May 27,
2005.\29\ In the brief, the attorneys general recognized that
49 States and the District of Columbia had some form of a
shield law, and state that ``[l]ack of a corresponding Federal
reporter's privilege undercuts the States' privileges
recognized in forty-nine States and causes needless
confusion.'' The attorneys general also suggested that three
decades after Branzburg, the change in the State law landscape
and the confusion in the Federal circuits made the
consideration of a Federal reporter's privilege ripe for
review.\30\
---------------------------------------------------------------------------
\29\Brief for the State of Oklahoma, et al. as Amici Curiae
Supporting Petitioners, Miller v. United States, No. 04-1507 (May 27,
2005).
\30\Id.
---------------------------------------------------------------------------
Because the privilege is not absolute, this law will
prevent law enforcement officials from using journalists and
the results of their fact-gathering as a shortcut to a proper
investigation, but will not prevent law enforcement or civil
litigants from obtaining information that is truly needed to
protect the national security or other significant interests
and that is not reasonably available from any other source.
H.R. 985 contains significant provisions carefully crafted
during the last Congress to ensure a fair and practical balance
between the public's right to know and the need to protect
national security and other critical interests--provisions that
resulted in a consensus measure that passed the House by an
overwhelming margin of 398-21.
Hearings
The full Committee on the Judiciary held 1 day of hearings
on a predecessor bill, H.R. 2102, during the 110th Congress, on
June 14, 2007. Testimony was received from Rachel Brand,
Assistant Attorney General for Legal Policy, U.S. Department of
Justice; William Safire, columnist, N.Y. Times; Lee Levine,
partner, Levine, Sullivan Koch and Schultz, LLP; Randall
Eliason, Professional Lecturer in Law, George Washington
University Law School and Washington College of Law, American
University; and Jim Taricani, reporter, WJAR TV, Providence,
Rhode Island.
Committee Consideration
On March 25, 2009, the Committee met in open session and
ordered the bill, H.R. 985, favorably reported without
amendment by voice vote, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that there
were no recorded votes during the Committee's consideration of
H.R. 985.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 985, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, March 27, 2009.
Hon. John Conyers, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 985, the ``Free
Flow of Information Act of 2009.''
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Leigh Angres,
who can be reached at 226-2860.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure
cc:
Honorable Lamar S. Smith.
Ranking Member
H.R. 985--Free Flow of Information Act of 2009.
CBO estimates that implementing H.R. 985 would have no
significant effect on the federal budget. H.R. 985 would exempt
journalists from being compelled to produce documents or
provide testimony unless a court finds that one of the
following exceptions apply:
LThe party seeking information has exhausted
all reasonable alternative sources;
LIn criminal investigations or prosecutions,
there are reasonable grounds to believe a crime has
occurred, and the testimony or document sought is
critical to the investigation, prosecution, or defense;
LIn all other matters, the information sought
is critical to the completion of the matter;
LIn cases where a source's identity could be
revealed, the document or testimony sought is necessary
to prevent certain actions, including an act of
terrorism, among others; and
LThe public interest in compelling disclosure
of the document or information involved outweighs the
public interest in gathering or disseminating news
information.
The bill also would limit the content of subpoenaed
testimony or documents. Finally, under the bill, communication
service providers (i.e., telecommunications carriers and
Internet service providers) could not be compelled to provide
testimony or documents relating to a reporter's phone, email,
and computer use, unless one of the above exceptions applies.
Under current law, requests to subpoena journalists on
matters related to federal cases typically originate within the
Department of Justice (DOJ). Federal prosecutors can request a
subpoena of a journalist from a court after an internal review
by DOJ. Information from DOJ indicates that very few subpoena
requests seeking confidential source information are approved
each year (there were a total of 19 over the 1991-2007 period)
and that it is unlikely that the bill would substantially
increase such requests. Thus, CBO assumes that there would be
very few instances each year when such a subpoena could be
challenged in court.
Journalists already challenge some subpoenas under current
law, and H.R. 985 would clarify the instances when a journalist
would be compelled to produce information or testify. The bill
might increase federal attorneys' litigation duties if more
subpoenas would be challenged than under current law, but given
the small number of potential cases, CBO estimates that any
increase in federal spending would be insignificant. In
addition, based on information from the Administrative Office
of the United States Courts, CBO expects that the bill would
not appreciably increase the courts' workloads. Therefore, CBO
estimates that implementing H.R. 985 would have no significant
budgetary impact.
H.R. 985 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Leigh Angres.
This estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
985 is intended to ensure the free flow of information to the
public by setting conditions on federally compelled disclosure
of information from certain persons connected with the news
media.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 8, clause 18 of the
Constitution and the First Amendment.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 2102 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee:
Section 1. Short Title--Section 1 sets forth the bill's
short title as the ``Free Flow of Information Act of 2009.''
Section 2. Compelled Disclosure from Covered Persons--
Section 2 establishes a procedure by which disclosure of
confidential information from a journalist may be compelled.
Subsection (a) states that a Federal entity may not compel a
journalist 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 and an opportunity to be heard:
1)
LThe party seeking production must have exhausted
all reasonable alternative sources of the information.
2)
LIf it is 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. If it is a civil
investigation, the information must be critical to the
successful completion of the case.
3)
LIf the information could reveal the identity of a
confidential source, disclosure is only allowed when
necessary to:
(A) Lprevent an act of terrorism against the United
States or its allies, other significant harm to
national security, or to identify the perpetrator of
such an act;
(B) Lprevent imminent death or significant bodily
harm;
(C) Lidentify a person who has disclosed a trade
secret actionable under 18 U.S.C. Sec. 1831 or
Sec. 1832; individually identifiable health information
as defined in section 1171(6) of the Social Security
Act; or nonpublic personal information as defined in
section 509(4) of the Gramm-Leach-Bliley Act; or
(D) Lidentify for purposes of criminal prosecution a
person who made unauthorized disclosure of properly
classified information, where the disclosure caused or
will cause significant harm to national security.
4)
LIf the three requirements above are met, the party
seeking production must also establish by a
preponderance of the evidence that the public interest
in compelling disclosure outweighs the public interest
in gathering or disseminating news or information.
Subsection (b) of this section expressly permits the
court to consider the extent of any harm to national
security in conducting this balancing.
Subsection (c) states that, where disclosure is ordered,
the content of any information ordered to be produced should
not be overbroad, unreasonable, or oppressive, and should,
where appropriate, be limited to the purpose of verifying
published information or describing surrounding circumstances
relevant to the accuracy of the published information.
Subsection (c) also states that the content should be narrowly
tailored in subject matter and period of time so as to avoid
the production of peripheral, nonessential, or speculative
information.
Subsection (d) states that nothing in the bill should be
construed to apply to state-law defamation, slander, or libel
claims or defenses.
Section 3. Compelled Disclosure From Communications Service
Providers--Section 3(a) provides that the protections of
section 2 apply equally to an attempt by a Federal entity to
get information from a communication service provider (``CSP'')
that relates to a business transaction between the CSP and a
covered person as to an attempt to get the information directly
from the covered person--for example, if the government
attempts to obtain a reporter's e-mails from the reporter's
Internet service provider instead of directly from the
reporter.
Subsection (b) requires that a court give the covered
person notice and opportunity for hearing before ordering a CSP
to disclose information described in subsection (a). Notice
must be given no later than the time the subpoena or request is
issued. Subsection (c) provides that notice may be delayed only
if the court determines by clear and convincing evidence that
not delaying it would pose a substantial threat to the
integrity of a criminal investigation.
Section 4. Definitions--Section 4 defines the following
terms:
1)
L``Communications service provider'' is a person
that transmits information of a customer's choosing by
electronic means and includes a telecommunications
carrier, an information service provider, and an
information content provider (as those terms are
defined in the Communications Act).
2)
L``Covered person'' is a person who, for a
substantial portion of the person's livelihood, or for
substantial financial gain, is regularly engaged in
journalism (including supervisors, employers, parents,
subsidiaries, or affiliates of a covered person). A
covered person does not include any person who is a
foreign power or agent of a foreign power under Section
101 of the Foreign Intelligence Surveillance Act; any
foreign terrorist organization as designated by the
Secretary of State in accordance with section 219 of
the Immigration and Nationality Act; any person
identified as a financial supporter of a terrorist
organization in the Annex to Executive Order 13224, or
whose assets are blocked under that order; any person
designated as a terrorist under 31 C.F.R. 595.311; or
any terrorist organization as defined in Section
212(a)(3)(B)(vi)(II) of the Immigration and Nationality
Act.
3)
L``Document'' means writings, recordings, and
photographs (as defined in the Federal Rules of
Evidence).
4)
L``Federal entity'' is an entity or employee of the
judicial or executive branch or an administrative
agency with subpoena power.
5)
L``Journalism'' is gathering, preparing, collecting,
photographing, recording, writing, editing, reporting,
or publishing of news of information that concerns
local, national, or international events or other
matters of public interest for dissemination to the
public.
Dissenting Views
The United States has enjoyed a free press for over 200
years because it is guaranteed by the First Amendment in the
Constitution. Our Founders understood that a free press
protects and perpetuates our democracy.
There has been no federal media shield law to protect
journalists' sources because there has been no evidence of a
need. No more than 17 journalists during the past 25 years have
been jailed for refusing to testify before a grand jury. They
were not singled out for punishment. Every American called to
testify before a grand jury must cooperate or face this
consequence.
Nor is there any evidence that potential sources have
withheld critical information from reporters because of a fear
of being revealed. Just look at the examples that are regularly
revealed--from Watergate to the mistreatment of soldiers at
Walter Reed Medical Center.
H.R. 985 creates a press ``privilege'' under which courts
cannot compel reporters, tabloids, or even some professional
bloggers to provide information needed to fight crime.
In the 37 years since the Supreme Court ruled that the
First Amendment does not shield a reporter from testifying in a
grand jury proceeding, the media have had no problem exposing
corruption and injustice.
While confidentiality is vital to the work of a reporter,
national security is essential to the preservation of a free
nation.
Protecting anonymous sources should never be more important
than protecting the American people or solving crimes that can
help save lives.
Unfortunately, this bill raises serious law enforcement and
national security concerns.
However well-intentioned, H.R. 985 will compromise the work
of the Justice Department and other federal agencies charged
with crime-fighting, intelligence-gathering, and national
security matters.
For example, the prospective nature of some of the most
important exceptions in this bill--to prevent a terrorist
attack or imminent bodily harm--will not help in investigations
after the attack has occurred.
Under the bill, law enforcement officials could have
acquired relevant information identifying a reporter's source
on September 10, 2001--to prevent the terrorist attacks--but
could not have acquired that same information on September 12
to track down terrorists.
Similarly, officials could acquire information regarding a
reporter's source to prevent the molestation of a child, but
they could not get that same information to bring a sexual
predator to justice after the assault.
And in cases involving the identity of a reporter's source,
look at the range of misconduct that falls outside the ``death
or imminent bodily harm'' exception: corporate and financial
crimes, human trafficking, gun and drug trafficking, gang
activity, and other criminal activity that might not result in
a direct risk of ``imminent death or significant bodily harm,''
even when such harm is a predictable result of the crime.
This new privilege has no precedent in American legal
history.
All H.R. 985 does is create a privilege that allows
reporters to avoid a civic duty. The bill goes beyond promoting
a free press; it confers on the press a privileged position. It
exempts journalists from the same responsibilities that we are
all held to in the context of an investigation.
And the media should be more forthcoming about their
methods in promoting H.R. 985. We hear a lot from the media
about the evils of lobbying and how Congress is captive to
special interests.
But media outlets, in a very self-serving way, are lobbying
House Members to support H.R. 985 or face the consequences--
irate hometown newspaper editors and local TV and radio
reporters.
These media proponents are a lot like the lobbyists the
media regularly criticize--those who advocate for their special
interests without disclosing campaign contributions. But there
is no way to quantify or report the value of a journalist's
``in-kind'' contribution--a positive editorial if the Member
supports the bill--or a negative editorial if the Member
opposes the bill.
There is an absence of transparency and accountability
here. It is unseemly, and possibly unethical, to make phone
calls and write editorials in support of this bill when the
motive is so clearly one of self-interest.
This bill is not about protecting the public's right to
know about corruption or malfeasance. It is about giving a
reporter a special privilege at the expense of our national
crime-fighting efforts.
Also, we have a new President who has said he generally
supports the legislation. But conceptual support is not an
unqualified endorsement of the bill's language. We may very
well benefit from listening to the President and his Attorney
General about the specific text of H.R. 985.
As we have seen in recent days, the President sometimes
modifies his support of legislation he has previously
encouraged.
To illustrate, it is very possible that the Justice
Department may advocate that we change a number of provisions.
This may include minimizing the restrictions on disclosure of
source identification, eliminating the public interest
``balancing test'' when national security is involved, and
deleting the ``necessity'' standard when the government is
trying to acquire information to prevent a terrorist attack.
These and other changes would improve the bill. We hope the
Administration and the bill supporters are open to working with
us on further refinements to H.R. 985.
We sympathize with journalists not wanting to reveal their
sources. But as Members of Congress, we have a responsibility
to see that the law enforcement and intelligence officials who
keep us safe can do their jobs. H.R. 985 creates serious law
enforcement and national security problems without sufficient
justification.
Lamar Smith.
F. James Sensenbrenner, Jr.
Darrell E. Issa.
Steve King.
Gregg Harper.
