[Congressional Record: March 31, 2009 (House)]
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FREE FLOW OF INFORMATION ACT OF 2009
Mr. CONYERS. Madam Speaker, I move to suspend the rules and pass 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.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 985
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 2009''.
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, or to identify any perpetrator of, 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;
(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; or
(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
(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) 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.
(c) 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.
(d) 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.
(e) 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 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.
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 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--
(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);
(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);
(C) any person included on the Annex to Executive Order No.
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)).
(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,
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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. Pursuant to the rule, the gentleman from
Michigan (Mr. Conyers) and the gentleman from Texas (Mr. Smith) each
will control 20 minutes.
The Chair recognizes the gentleman from Michigan.
General Leave
Mr. CONYERS. I ask unanimous consent to revise and extend my remarks
and that all Members have 5 legislative days to revise and extend their
remarks as well and include extraneous material on the bill under
consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Michigan?
There was no objection.
Mr. CONYERS. I yield myself such time as I may consume.
Members of the House, the Free Flow of Information Act creates a
qualified privilege to protect journalists from being compelled to
disclose confidential sources or other than nonpublic information that
they have collected in the course of their reporting.
This is a very important and sensitive matter. I want to point out
that the gentleman from Virginia, a senior member of the Judiciary
Committee, has worked on and authored this bill for a number of years.
It has been modified and brought before us. I think that it's of
critical importance and continues to deserve the overwhelming support
of this body, which it has received.
Right at this moment, a Pulitzer Prize-winning reporter from the
Detroit Free Press, David Ashenfelter, faces possible contempt charges
for refusing to disclose sources who exposed serious prosecutorial
misconduct. The bill has been carefully tailored, as will be explained.
There's one other person I would like to single out for their
excellent testimony in the last Congress, and that is Pulitzer Prize
winner William Safire, who gave some very important insights into the
scope and significance of this bill.
We think that this is critical. It's supported by editorial boards,
media companies, organizations, associations, News Corp, and all
broadcast networks. We urge that this measure be given the careful
consideration that it is due.
I would also like to single out the gentleman from Indiana, Mike
Pence, a distinguished member of the committee, and Bob Goodlatte of
Virginia, whose efforts were vitally important in strengthening the
bill and ensuring that it is a truly bipartisan measure that comes
before the House today.
Madam Speaker, I reserve the balance of my time.
Mr. SMITH of Texas. Madam Speaker, I yield myself such time as I may
consume.
Madam Speaker, the United States has enjoyed a free press for over
200 years because it is guaranteed to us 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 very same consequence.
Nor is there any evidence that potential sources have withheld
critical information from reporters because of a fear of being
identified. Just look at the scandals that are regularly uncovered--
from Watergate to the recent mistreatment of soldiers at Walter Reed
Medical Center.
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.
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.
The bill we are considering today creates a press ``privilege'' under
which courts cannot compel reporters to provide information they need
to fight crime.
Protecting anonymous sources should never be more important than
protecting the American people or solving crimes that can save lives.
While confidentiality is vital to the work of a reporter, national
security is essential to the preservation of a free nation.
For example, the exception to the privilege in this bill--to prevent
a terrorist attack or imminent bodily harm--will not help in
investigations after the attack has already occurred.
Under the bill, law enforcement officials could have obtained
information identifying a reporter's source on September 10, 2001, for
example, to prevent the terrorist attacks, but could not have acquired
that same information on September 12 to track down the 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.
Concerning classified information leaks, former Attorney General
Michael Mukasey wrote in an editorial following the House vote in 2007:
``Leaking classified information is itself a crime, but in order for
the government to get source information from a journalist in a leak
investigation, it must show that the leak caused significant
articulable harm to national security, that the information was
properly classified, and the person who leaked it was authorized to
have it.
``Thus, a would-be leaker of classified information could simply give
it to someone not authorized to have it, urge that person to leak it,
and thereby prevent the government from investigating the crime.
``This bill effectively cripples the government's ability to identify
and prosecute leakers of classified information. Ironically, a bill
styled as a `reporter's shield' would have the perverse effect of
shielding would-be leakers.''
Look at the range of crimes where a reporter would be able to hide
his source: Corporate and financial crimes--very relevant these days;
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 though we all have a strong
interest in preventing such crimes.
H.R. 985 creates 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 all others have in a criminal investigation. This
new privilege has no precedent in American legal history.
This bill is not about protecting the public's right to know about
corruption or malfeasance that already exists. It's about giving a
reporter a special privilege at the expense of our national crime-
fighting efforts.
To quote a high-ranking official from the Office of the Director of
National Security during last Congress' debate, the media shield bill
``makes it very difficult to enforce criminal laws involving the
unauthorized disclosure of classified information and could seriously
impede other national security investigations and prosecutions,
including terrorism prosecutions.''
As a former reporter, I sympathize with journalists not wanting to
reveal their sources. But as a Member of Congress I have a
responsibility to see that law enforcement and intelligence officials
who keep us safe can do their jobs. This bill creates serious law
enforcement and national security problems without sufficient
justification.
Madam Speaker, I reserve the balance of my time.
The SPEAKER pro tempore. Without objection, the gentleman from
Virginia will control the time of the gentleman from Michigan.
There was no objection.
Mr. BOUCHER. Madam Speaker, I yield myself 6 minutes.
(Mr. BOUCHER asked and was given permission to revise and extend his
remarks.)
Mr. BOUCHER. I want to begin by extending my personal appreciation to
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the chairman of the House Judiciary Committee, the gentleman from
Michigan (Mr. Conyers) for his determined effort to bring the Free Flow
of Information Act to the floor of the House today and for the strong
support in the last Congress and again in this Congress that he and his
outstanding staff are providing to protect the public's right to know.
The bill that is before the House today is identical to the bill that
passed the House in the last Congress by a vote of 398-21. It is a
bipartisan measure which, this year, as in the previous Congress, I was
pleased to introduce and partner with our Republican colleague, the
gentleman from Indiana (Mr. Pence), and 49 other cosponsors in the
House.
I want to acknowledge Mr. Pence's leadership and his deep commitment
to protecting freedom of the press. It has been a tremendous privilege
to have this opportunity to work with him toward the passage of this
needed measure.
I also want to thank our Virginia colleague, Bob Goodlatte, for his
leadership and his strong support of the bill in this Congress. Mr.
Goodlatte and I have worked together to promote a range of national
policies. We cochair, for example, the Congressional Internet Caucus.
It is also a pleasure to work with him in this Congress in order to
promote passage of the Free Flow of Information Act.
I want to comment for a moment today on the fact that in 2007 on this
floor this bill received the outstanding vote of 398-21. That sweeping
majority occurred by virtue of the careful work that was done by the
House Judiciary Committee 2 years ago when the committee considered
this legislation.
Members on both sides of the aisle participated. They offered good
suggestions for improving the legislation--for the addition of
circumstances when disclosure of information could be compelled,
including numerous provisions of compelled disclosure for the purpose
of protecting the national security. Those national security
protections are deeply embedded in the bill that we are considering
today.
It was an excellent committee process, rewarded on this House floor
by a vote of 398-21 in favor. The measure was not considered on the
Senate floor in the last Congress and so we begin the process again
today with House consideration.
The Free Flow of Information Act protects the public's right to know.
This is really not about protecting journalists, as my friend from
Texas would suggest. The privilege is conferred upon journalists, but
it is for the purpose of protecting the public's right to know.
The bill promotes the flow of information to the public about matters
of large public interest where public disclosure is needed so that
corrective action can be taken in order to prevent or correct a deep
harm to society, so that legislation can be introduced to correct that
harm, so that a lawsuit can be filed or a criminal prosecution be
launched once the public is apprised of what in fact is happening that
constitutes a harm to society.
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Journalists serve as public watchdogs, bringing sensitive matters to
light, and the bill before us enables them to do a better job of it.
Often, the best information that can be obtained about matters of
large public interest that involve corruption in government or misdeeds
in a large organization like a corporation or a large public charity
will come from a person on the inside of that organization who knows
what is happening, who knows about the harm to the public interest that
is occurring, and feels a public responsibility to pick up a telephone
and call a reporter and bring that critical information to public
scrutiny. But that person has a lot of lose.
If his or her identity becomes known, that person can become
punished, often by the individual who is responsible for the wrongdoing
inside that organization. And so, in the absence of the ability of
reporters to extend a pledge of confidentiality to protect the identity
of that person on the inside, that information will never come to
public light, and there will never be an opportunity for the public to
take corrective action.
This is why we call our bill the Free Flow of Information Act.
Passing this measure, conferring upon journalists a limited privilege
to refrain from revealing confidential source information, will ensure
that that vital information flows freely to the public so that
corrective action in this Congress or in other legislative forums or in
the courts can thereafter be taken.
The measure extends in Federal court proceedings a qualified
privilege for reporters to refrain from testifying or producing
documents, and a qualified privilege to refrain from revealing the
identity of confidential sources.
Throughout the bill, there are provisions protecting the national
security; and where it is appropriate to protect national security,
disclosure of information can be compelled, disclosure of source
information can be required, and reporters can in fact be required to
testify in Federal court proceedings. The bill very carefully balances
the need to protect the national security with the need to assure the
free flow of information.
Madam Speaker, it is a carefully written measure which strengthens
freedom of the press and protects the public's right to know. I
strongly urge its approval today by the House.
I reserve the balance of my time.
Mr. SMITH of Texas. Madam Speaker, I yield 3 minutes to the gentleman
from Iowa (Mr. King), a member of the Judiciary Committee.
Mr. KING of Iowa. Madam Speaker, I thank the gentleman for yielding
and for his leadership on this issue.
This is one of those issues that has a lot of support across the
country because there are a lot of reporters across the country that
are interested in making sure they have the last full measure of
protection they can possibly have for their particular profession. And
all of us, in whatever profession we are, see ourselves as the
consummate professionals without regard to competing professions.
I would ask the question, what are we trying to fix here? What is the
problem that this legislation seeks to address? And one of those is the
lack of conformity between the States; I recognize that. But we only
have, in the last 25 years, 17 incidents of reporters that have been
incarcerated for their refusal to divulge their sources. The most
public of those would be the case of Judith Miller in the Scooter Libby
investigations that were conducted by the Special Prosecutor, Patrick
Fitzgerald, Madam Speaker. And I asked myself during that entire
investigation, why didn't they just ask Robert Novak? That would have
answered the question.
And if I ask the question today, what was truth and what was fiction
in all that? That may be a matter of record, but it is not a matter of
public knowledge, even among us here. So it turned out it was Richard
Armitage and not Scooter Libby. Scooter Libby was still prosecuted and
convicted. I think that Judith Miller's 85 days in jail, if she had
that to do over again, she still testified and she still had her
agreement with her source.
This goes on and on, 200-plus years, and now we have journalists that
have to have special protection without having at least a breadth of
statistical data that would support this advocacy that is part of this
bill.
And I will tell you, as one who has been in the public eye for some
time today, Madam Speaker, that I don't think I am treated objectively
by all of the media. I don't think I need to bring a law to this
Congress and ask that, for example, to give a Member of Congress a
cause of action to bring litigation against a journalist if they happen
to be unethical or inaccurate or untruthful. We just go ahead and take
that, because that is part of being in the public eye.
The protections are there. There is already sufficient judicial
restraint on moving to bring to cause these journalists who speak.
Their sources are protected substantially by the tradition and the
effects of the court.
And I will submit also another argument, Madam Speaker, and that is
that special professional protection is preserved by the States for
certain professions. Priests and pastors, for example. They are
considered to have a certain privilege with the people that they
counsel and minister to, and we try not to crack into that source. And
there will be other examples.
For example, a medical doctor or any type of a doctor who has
patients. The
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patient and the doctor relationship is protected in confidentiality.
And we have attorney-client relations, too, that we are very well
familiar with in this Congress. All of those are professional
relationships. All of those are relationships with people who are
skilled.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. SMITH of Texas. I yield the gentleman an additional 2 minutes.
Mr. KING of Iowa. I thank the gentleman from Texas.
Madam Speaker, all of those professions that I mentioned are
professions where we have people that are trained, that are essentially
certified, whether it is by their denomination, by their education, or
by their licensing, and those privileges are preserved for clear
reasons. This is a privilege that is preserved for the sake of
protecting the journalist only, and without an abuse of that
confidentiality at this point, without a judicial abuse.
Seventeen cases in 25 years, I would make the argument that this is a
solution in search of a problem. It is something that I think sends a
message out to the journalistic world. And maybe those of us who will
stand up against it will be subject to a certain amount of public
criticism. I can face that. I have faced a lot of it. It is part of the
price of being in the public eye. Part of the price of being a
journalist then is to on a rare occasion, out of the thousands of
journalists, 17 in a quarter of a century have been brought forward and
said it is in the interests of the court that you go ahead and divulge
your source, or at least divulge the information.
And I know that there has been an effort made to tighten this
legislation up a little bit, and I appreciate the gentleman's work and
due diligence on this. One of the words that was added to the
definition of a covered person is the word a person who regularly, the
word ``regularly'' gathers, prepares, collects, photographs, records,
writes, edits, reports, or publishes news or information.
This definition of a covered person is tightened up because they have
to be regular rather than irregular in their behavior; but I think this
covers about anybody that is a journalist, unless they are listed in
the exemptions rather than the definition of the bill, Madam Speaker.
So I will submit that the level of professionalism that has been
demonstrated, although there are many high-quality professionals in the
journalistic business, has not risen to the level where I am willing to
give that kind of professional special protection, especially because
we have had national secrets that have been divulged into the national
and international media arena, done so out of this posturing of it is a
public service to divulge national secrets. And I will submit, Madam
Speaker, that that is not in our national interest, and I oppose this
bill.
Mr. BOUCHER. Madam Speaker, this is a deeply bipartisan measure with
bipartisan participation in the construction, committee consideration
and drafting of the legislation.
I am pleased now to recognize for 5 minutes the principal Republican
sponsor of the measure, who has long been committed to freedom of the
press and promoting the public's right to know, the gentleman from
Indiana (Mr. Pence).
(Mr. PENCE asked and was given permission to revise and extend his
remarks.)
Mr. PENCE. I thank the gentleman for yielding.
Madam Speaker, I come to the floor today in support of the Free Flow
of Information Act of 2009. I do so with a profound sense of humility
and with a sense of privilege about being able to come to the floor
today in support of this thoughtful and bipartisan measure that may,
may well, be a lasting contribution to the vitality of liberty in this
Nation.
The Constitution of the United States provides: Congress shall make
no law abridging the freedom of speech or of the press. Not since those
words were adopted has this body needed to legislate to ensure the
freedom of the press. Not until today. We do so because, sadly, the
free and independent press in this country is under fire. In recent
years, more than 30 journalists have been subpoenaed, questioned, or
held in contempt for failure to reveal their confidential sources.
For a journalist, maintaining the assurance of confidentiality of a
source is sometimes the only way to bring forward news of great
consequence to the Nation. Being forced to reveal sources chills the
reporting of the news and restricts the free flow of information to the
public.
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. A free press ensures the flow of information to the public. And,
let me say, during a time when the role of the government in our lives
and in our enterprises seems to grow every day, ensuring the vitality
of a free and independent press is more important than ever.
In order to maintain this charge, I coauthored the Free Flow of
Information Act with my colleague from Virginia, Congressman Rick
Boucher. I would like to take a moment to thank my partner in this
legislation. He is truly the gentleman from Virginia. For over 4 years,
we have worked on this issue in a spirit of bipartisanship. Rick
Boucher is a champion of the first amendment. It has been my great
privilege to work with him.
I also want to commend the chairman of this committee, Chairman
Conyers, Vice Ranking Member Bob Goodlatte, and Representatives Coble
and Blunt, without whose efforts in the last Congress the bipartisan
compromise in this bill would not have been possible.
The bill is known as the Federal Media Shield. It provides a
qualified privilege of confidential sources to journalists, enabling
them to shield sources in most instances from disclosure. But the bill
is not about protecting journalists; it is about protecting the
public's right to know.
It received wide bipartisan support in the last Congress, and I hope
in this, because we addressed the very real and legitimate concerns
about how a privilege for journalists could impact security at the
national level. The Federal Government, we acknowledge, is tasked with
the tremendous responsibility of protecting our country, and we must
also keep national security concerns in the forefront. I submit, the
Free Flow of Information Act does just that.
Many Americans will assume that the fining and imprisonment of
journalists is something confined to tyrannical regimes in far corners
of the world. They might be surprised to learn that the United States
does not have a Federal law on the books that prevents that from
occurring. More than three-fourths of State Attorneys General have
written Congress in support of this legislation. In fact, 49 States and
the District of Columbia had already recognized a journalist's
privilege to protect confidential sources.
It is important to emphasize, this bill only provides a qualified
privilege; meaning, the disclosure of a source's identity may be
required in certain situations, as described by my colleague from
Virginia.
With this I close: Long ago, Thomas Jefferson warned, ``Our liberty
cannot be guarded but by the freedom of the press nor that limited
without danger of losing it.'' Jefferson's words ring into this chamber
today.
The passage of the Free Flow of Information Act I believe is
necessary and consistent with that charge to not only explicitly and
fully provide for the freedom of the press in our Nation but protect
the liberty of future generations.
With the bipartisan support of my colleagues and Congress and this
new administration, let us seize this opportunity to put a stitch in
this tear in the first amendment, freedom of the press, and let us do
our part to ensure the vitality of a free and independent press for
ourselves and our posterity.
I urge my colleagues to join me and our bipartisan support for the
Free Flow of Information Act of 2009.
Mr. SMITH of Texas. Madam Speaker, I yield 2 minutes to the gentleman
from Texas (Mr. Poe), who is also a member of the Judiciary Committee
and a member of the Crime Subcommittee. And I am yielding him 2 minutes
in the hopes that he will reconsider his position.
Mr. POE of Texas. I thank the gentleman for yielding. I have the
greatest
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respect for the ranking member, my friend, Mr. Smith from Texas, and I
appreciate his legal analysis of this legislation. But I do rise in
support of the Free Flow of Information Act.
This act is a Federal shield law that would protect the identities of
reporters' confidential sources. By protecting the sources of
reporters, we protect the public interest and the free flow of
information to the public. Forty-nine States and D.C. have some form of
protection for reporters' confidential sources, but there is no Federal
standard in place. This lack of consistency actually weakens State
shield laws.
Madam Speaker, if reporters back in Texas are worried about reporting
the whole story to the public because someone might slap a subpoena in
their face, the public suffers. Whistleblowers and other potential
sources are more hesitant to come forward with information.
Even though I am a former prosecutor, prosecutors should not make
their criminal cases based upon confidential information that is given
to reporters by forcing those reporters before grand juries to reveal
the names of those sources.
This bill protects the first amendment; in fact, it encourages the
first amendment, while making appropriate exceptions for some serious
criminal investigations.
{time} 1745
I want to thank my colleague from Virginia for introducing this
important piece of legislation that supports the first amendment
provision of a free press and encourages free speech by citizens.
Therefore I urge the adoption of this legislation.
Mr. BOUCHER. Madam Speaker, at this time, I'm pleased to yield 3
minutes to the vice ranking member of the House Judiciary Committee, a
distinguished Republican Member of this House and a good friend with
whom I'm pleased to serve in the Virginia delegation, the gentleman
from Virginia (Mr. Goodlatte).
Mr. GOODLATTE. I thank the gentleman for yielding.
Madam Speaker, I rise in support of H.R. 985, the Free Flow of
Information Act, which will encourage whistleblowers by protecting
journalists' confidential sources. This bipartisan bill will bolster
the free press as a very important check on government power.
I had concerns with this legislation last year when we considered it
in the Judiciary Committee, and I worked with my good friends,
Representatives Boucher and Pence, to have many of these items
addressed before it reached the House floor.
For example, the bill now requires that in order to receive the
protections of the media shield law, a journalist must be engaged in
the ``regular'' practice of journalism for ``a substantial portion of
the person's livelihood'' or ``for substantial financial gain.'' This
will help ensure that an individual who has no journalistic experience
cannot attempt to protect himself by creating a blog overnight.
In addition, the bill contains a broader exception that allows
compelled disclosure of information when national security is at stake,
when there are leaks of classified information, and when the journalist
was an eyewitness to a criminal act or tort.
This legislation will enhance the freedom of the press and thus
provide for a more informed and engaged citizenry. In addition, the
improvements to the bill will help ensure that the interests of justice
and national security are protected.
It is for these reasons that I support the Free Flow of Information
Act and urge my colleagues to support it as well. I want to thank all
those who have worked on this measure on both sides of the issue. I
think we have created an improved bill and one that I am very pleased
and proud to support.
Mr. SMITH of Texas. Madam Speaker, we just have one more speaker on
this side, so I will reserve the balance of my time.
Mr. BOUCHER. Madam Speaker, at this time, I'm pleased to yield 2
minutes to the gentleman from Kentucky (Mr. Yarmuth).
Mr. YARMUTH. Thank you for yielding. And I want to congratulate my
friend, Mr. Boucher and also Mr. Pence for this terrific piece of
legislation.
Madam Speaker, I rise as a proud member of the Society of
Professional Journalists in strong support of the Free Flow of
Information Act.
As a former journalist, I have seen the assurance of anonymity put a
frightened insider at ease and turn a reluctant source into an eye-
opening wealth of information.
In my hometown of Louisville, we witnessed what happens when a
source's identity is not protected. There, Jeffrey Wigand, the famous
tobacco whistleblower, was victimized by threats and intimidation,
ultimately losing his job, his family and his home. His selfless
efforts are largely seen as heroic, but for many, the lesson is: If you
have sensitive information that would benefit the American public, keep
it to yourself.
We also know that if it had not been for the confidence of sources
that they wouldn't be revealed that the incident at the Watergate and
the more recent scandals at Walter Reed Hospital might never have come
to light.
In a time when we have seen how the inner workings of corporations
and government can have catastrophic effects on our country as a whole,
it is as important as ever to protect this conduit to information, the
anonymous source. Until we can guarantee that security, good
journalists will be jailed, conscience-driven and law-abiding Americans
will be silenced, and information that is critical to all of our lives
will be locked away from the American people.
I would like to respond quickly to two things that were said by my
colleague from Iowa (Mr. King). One is that there is no need to give
special protection to the media. As Mr. Pence pointed out, the Founding
Fathers decided to give special protection to the media. They granted
them freedom of the press. And there is no freedom of the press without
the ability to protect your sources. And secondly, there was a question
raised as to whether there was an abundance of information that would
demonstrate a need. We don't know how many thousands of potential
sources have been silenced by fear that they might be revealed in the
press. It is kind of like saying ``we haven't been attacked since 9/
11.'' We don't know. But we do know, as in the case of Jeffrey Wigand,
what happens when a source is revealed.
So once again, as someone who has spent many years as a writer and
editor in the United States and who is very grateful for the
protections of the first amendment, I strongly urge my colleagues to
support this important legislation.
Mr. SMITH of Texas. Madam Speaker, I yield myself the balance of my
time.
Madam Speaker, Congress should not legislate in the absence of a
problem. And here, there is no problem. The Supreme Court ruled in 1972
that no reporter's privilege is found in the Constitution or the common
law.
In the past 37 years, thousands of stories about malfeasance and
scandals have been reported by local, national and international news
outlets in the United States. These stories have covered a variety of
subjects, many with the participation of anonymous sources.
Yet the premise of H.R. 985 is contradicted by the facts. These
stories were written despite no Federal shield bill. In fact, let's
examine a real-world example illustrating how the media might use this
privilege. Supporters of H.R. 985 often cite the so-called ``BALCO
case'' as a justification for the bill. But what really happened? BALCO
was an organization involved in the illegal distribution of steroids to
professional athletes. Reporters for the San Francisco Chronicle wrote
more than 100 stories on the case without benefit of illegally leaked
grand jury testimony. But an attorney for one of the defendants
eventually leaked testimony, which the reporters used in other stories.
During an investigation, the lawyer stated under oath that he had not
leaked information. In fact, he claimed the government leaked it,
thereby creating a pretext for him to request that the court dismiss
the case against his client. He was eventually exposed and prosecuted.
Nothing was done to the reporters who refused to identify their source.
In other words, the BALCO reporters used illegally-leaked information
they didn't need to report on the
[[Page H4209]]
case, all the while protecting a disreputable attorney who perjured
himself before a Federal Court. Yet this case is cited as a modern-day
justification for a shield bill to protect reporters and ``the public's
right to know.''
But what happened in BALCO pales in comparison to what may happen to
crime-fighting and national security if this bill becomes law. The
Justice Department has developed internal guidelines that govern how
they interact with reporters during investigations. For example, these
guidelines require U.S. Attorneys to obtain information through
alternative sources when possible. But the biggest difference between
the guidelines and the bill is that the guidelines are administered
flexibly. In an age of terrorism when the timely acquisition of
information is indispensable to crime-fighting, U.S. Attorneys should
not have to spend time satisfying the multipart test of H.R. 985.
The entire structure of the bill inflexibly requires the Department
of Justice to meet certain threshold requirements before they can
acquire some information. Exceptions in the bill to provide greater
access to such information are limited and do not cover a wide range of
Federal criminal investigations. And the prospective nature of some of
the exceptions, to prevent a terrorist attack or imminent bodily harm,
will not help in investigations after an attack has already occurred.
We have seen time and time again in the last few weeks where rushing
legislation through without benefit of a hearing or expert testimony
has led to unintended consequences. Regarding this bill, we still
haven't heard what the Attorney General or the Director of National
Intelligence thinks about it. We do know that in the last
administration, all these individuals opposed it.
Today, only 20 minutes are allowed in opposition to this bill. Yet it
might well lead to heinous crimes that could have been prevented or
solved. Terrorism hasn't gone away since the election. Neither has
domestic crime. The primary function of government is to protect
people. And this bill greatly complicates the ability of the government
to prevent and solve crime. The press doesn't need H.R. 985 to do its
job. And the public can't afford to have the government make it easier
for terrorists and other criminals.
Madam Speaker, I hope my colleagues will oppose this well-intentioned
but ultimately misguided piece of legislation.
With that, I will yield back the balance of my time.
Mr. BOUCHER. Madam Speaker, I yield myself the balance of my time.
Madam Speaker, I strongly urge the passage of the Free Flow of
Information Act. It is legislation which confers upon reporters a
privilege either to refrain from testifying in certain circumstances or
to refrain from revealing confidential information sources. But the
purpose of our legislation is not to protect reporters. It is to
protect the public's right to know, to ensure that sensitive
information that can only come from an inside source reporting on
something that is happening to the disadvantage of government, because
of corruption in a bureau or agency, or a harm to society that is
occurring because of misdeeds in a large organization like a
corporation or a large public charity can, because of an act of
conscience by that inside person, come to public scrutiny in a way that
the public can then take corrective action by passing a statute, by
initiating a lawsuit, or by initiating a criminal prosecution. And if
that inside person is not assured confidentiality, if there is an
opportunity for that person's identity to be exposed, that person is
going to be very reluctant to share information with a reporter to
bring that information to public light. That person has a tremendous
amount to lose if his or her identity is revealed. That person can be
punished by firing from his or her job or through more subtle means.
So, in the absence of the ability of the reporter to extend the
pledge of confidentiality, there is the very real risk that that vital
information will never come to public light.
This legislation is carefully balanced. It has protections for the
national security which are deeply embedded within the measure. And
those were placed there through the careful bipartisan work of the
House Judiciary Committee when we had our extensive markup of this
measure 2 years ago. The bill before us today is identical to that
measure. It passed the House 2 years ago by a vote of 398-21. And it is
deserving today of the same strong support by the House of
Representatives.
So, Madam Speaker, I strongly encourage the passage of the Free Flow
of Information Act. I thank the bipartisan cosponsors and all of those
who have participated with us as this measure has been written.
Ms. PELOSI. Madam Speaker, I rise today in strong support of
legislation that helps to ensure freedom of the press. This right is a
cornerstone of our democracy, and a principle that we cherish and
promote around the world.
Arthur Hays Sulzberger once said, ``Freedom of the press . . .
belongs to everyone--to the citizen as well as the publisher . . . The
crux is not the publisher's `freedom to print'; it is, rather, the
citizen's `right to know.' ''
The right to know, as provided by a free press, keeps our nation
informed and holds those of us in government accountable.
It is appropriate that we debate media shield legislation in the same
week that we will debate the federal budget. Because this legislation
will 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.
News organizations are facing serious economic challenges across the
country. Our policies should enable our news organizations to thrive
and engage in the news gathering and analysis the American people
expect.
Essential to this effort is the media shield law we debate today.
Nearly all states have recognized the importance of a free press with
some form of a press shield protecting the confidentiality of
journalists' sources. However, that protection is lacking at the
federal level and in federal courts.
This has hampered the essential work of the press. In recent years,
more than 40 reporters have been subpoenaed for the identities of
confidential sources in nearly a dozen cases.
The federal government's policies and actions should protect and
preserve the press's ability to speak truth to power. 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 Ranking Member of the Intelligence
Committee, I encouraged President Clinton to veto an Intelligence
Authorization bill that would have made it easier to prosecute
journalists. We fixed those provisions and passed a bill that both
protected our nation and protected our fundamental freedoms.
Madam Speaker, today we have an opportunity to strengthen and protect
the freedom of the press that has served our nation so well and to
protect all journalists.
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 give this legislation the strong
bipartisan vote it deserves.
Mr. WU. Madam Speaker, I rise today in strong support of the Free
Flow of Information Act, and I thank the chairman for his work on this
important legislation.
Madam Speaker, our nation's founders understood that a free and
independent press is the lifeblood of a functioning democracy.
Confidential sources supply journalists with critical information on
matters of public importance. The freedom of the press to cultivate
relationships with confidential sources facilitates this vital
exchange.
These relationships should be protected, because it is fundamentally
in the interest of our republic that the free exchange of ideas and
information remain unadulterated.
We must never silence those who inform our democracy.
I urge my colleagues to join me in supporting this important
legislation.
Mr. BOUCHER. I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Michigan (Mr. Conyers) that the House suspend the rules
and pass the bill, H.R. 985.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the bill was passed.
A motion to reconsider was laid on the table.
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