[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
FREE FLOW OF INFORMATION ACT OF 2007
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
ON
H.R. 2102
__________
JUNE 14, 2007
__________
Serial No. 110-30
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
MARTIN T. MEEHAN, Massachusetts CHRIS CANNON, Utah
WILLIAM D. DELAHUNT, Massachusetts RIC KELLER, Florida
ROBERT WEXLER, Florida DARRELL ISSA, California
LINDA T. SANCHEZ, California MIKE PENCE, Indiana
STEVE COHEN, Tennessee J. RANDY FORBES, Virginia
HANK JOHNSON, Georgia STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Joseph Gibson, Minority Chief Counsel
C O N T E N T S
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JUNE 14, 2007
Page
THE BILL
H.R. 2102, the ``Free Flow of Information Act of 2007''.......... 2
OPENING STATEMENT
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Chairman, Committee on the
Judiciary...................................................... 1
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Ranking Member, Committee on the Judiciary. 9
The Honorable Rick Boucher, a Representative in Congress from the
State of Virginia, and Member, Committee on the Judiciary...... 11
The Honorable Mike Pence, a Representative in Congress from the
State of Indiana, and Member, Committee on the Judiciary....... 12
The Honorable Darrell Issa, a Representative in Congress from the
State of California, and Member, Committee on the Judiciary.... 15
The Honorable Steve Cohen, a Representative in Congress from the
State of Tennessee, and Member, Committee on the Judiciary..... 16
The Honorable F. James Sensenbrenner, Jr., a Representative in
Congress from the State of Wisconsin, and Member, Committee on
the Judiciary.................................................. 16
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Member, Committee on the Judiciary 17
WITNESSES
Ms. Rachel Brand, Assistant Attorney General for the Office of
Legal Policy, U.S. Department of Justice
Oral Testimony................................................. 18
Prepared Statement............................................. 20
Mr. William Safire, Chairman, The Dana Foundation
Oral Testimony................................................. 29
Prepared Statement............................................. 31
Mr. Lee Levine, Levin Sullivan Koch & Schulz
Oral Testimony................................................. 32
Prepared Statement............................................. 35
Mr. Randall Eliason, Professor, George Washington University Law
School
Oral Testimony................................................. 52
Prepared Statement............................................. 54
Mr. Jim Taricani, Investigative Reporter, WJAR/NBC10 Providence,
New Bedford, RI
Oral Testimony................................................. 63
Prepared Statement............................................. 65
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Steve Cohen, a Representative
in Congress from the State of Tennessee, and Member, Committee
on the Judiciary............................................... 99
Letter from the American Beverage Association, the Association
for Competitive Technology, the Chamber of Commerce of the
United States, the National Association of Manufacturers, and
the Rubber Manufacturers Association, dated June 14, 2007, to
Chairman Conyers and Ranking Member Smith...................... 100
Prepared Statement of the National Association of Broadcasters... 101
Letter from Denis A. Cardman, Acting Director, American Bar
Association, dated June 13, 2007, to Chairman Conyers.......... 105
FREE FLOW OF INFORMATION ACT OF 2007
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THURSDAY, JUNE 14, 2007
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to call, at 10:06 a.m., in Room
2141, Rayburn House Office Building, the Honorable John
Conyers, Jr. (Chairman of the Committee) presiding.
Present: Representatives Conyers, Berman, Boucher, Scott,
Lofgren, Jackson Lee, Delahunt, Cohen, Johnson, Sherman,
Ellison, Smith, Sensenbrenner, Coble, Keller, Issa, Pence,
Franks, and Jordan.
Staff present: Stacey Dansky, Majority Counsel; Blaine
Merritt, Minority Counsel; and Matt Morgan, Staff Assistant.
Mr. Conyers. The Committee will come to order. Good
morning.
Without objection, the Chair is authorized to declare a
recess, if necessary.
This is quite an unusual cause that brings us together in
the Committee on the Judiciary today. We consider the import of
the Nation's core liberties: freedom of the press and the right
of reporters to maintain confidential sources.
So the first question that comes to my mind is, could we
have freedom of the press if reporters aren't allowed to
maintain confidential sources, and what are the implications of
which way we go?
So to my colleagues, Rick Boucher, and my friend, Mr.
Pence, the legislation they put together has been very
important to me.
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Mr. Conyers. Freedom of the press is the cornerstone of our
democracy. Without it, we can't have a well-informed electorate
and a Government that truly represents the will of the people.
And so this cornerstone is, to me, very carefully, very
deliberately under siege today.
And there are a lot of reasons: an increasingly
consolidated and corporate media. And I am in a funny position
today, because, as a friend of the media, I know what the state
of the media really is. It is corporatized and intimidation of
the press by those in power and a lot of other little shaping
of ideas and attitudes and positions of our Government. And the
treatment of journalists as people to be utilized and used as
they think necessary is really under reexamination.
Just now, the name of William Randolph Hearst comes to
mind, a media person who could start a war and did.
So I hope this hearing will raise three discussions, and I
know everyone is not in agreement with what I am saying, but
that is what freedom of the press is about.
Why is it that a shield law will definitely not impede
legitimate law enforcement efforts, and what are the
appropriate safeguards to be put on shield legislation? Why is
a shield law necessary? Why will it not impede legitimate
enforcement efforts? And what are the safeguards we want to
consider?
I have a lot to say about that and I think I will be able
to do it without taking any more time.
So I am happy to recognize the Ranking Member of the House
Judiciary Committee, the gentleman from Texas, Lamar Smith.
Mr. Smith. Thank you, Mr. Chairman.
Mr. Chairman, in our democracy, the press is guaranteed
their freedom by the first amendment to the Constitution. As
Thomas Jefferson once said, ``The only security of all is in a
free press.''
Our Nation would be much poorer if we did not allow a forum
where wrongdoing could be exposed and minority opinions could
be expressed without fear of Government interference or
retribution. However, our Nation also cannot exist if we do not
have the ability to protect certain confidential information.
Often, information related to our national security, a
defendant's criminal case, or a company's trade secrets or
personal customer information should remain confidential. And
while H.R. 2102 does a better job than last year's bill of
addressing these concerns, the legislation still has its
critics.
Some in the private sector and, also, law enforcement
officials believe it diminishes legal rights, public safety and
national security.
The hearing today will shed some light on the many issues
we must face when deciding whether to create a new Federal
privilege for reporters. One matter we must address is whether
Congress should legislate in an area that has been the
traditional domain of common law and the courts.
In addition, how do we draft a law that defines a real
journalist? Traditional print media has been joined by blogs,
podcasts, instant messages and online newspapers. They bring us
the news on demand anywhere in the world. Also, the Federal
Government defends our national security.
Pardon me, I skipped a sentence here.
Bloggers are playing a larger role in news-gathering, and
any legislation we consider should look at them as an emerging
news source. But are they really in the category of
journalists?
It is also important to remember that, for better or for
worse, Congress creates legislation that paints with a broad
brush. Legislation giving protections to the press would not
only extend to well-respected publications but also to tabloids
that thrive on gossip and misinformation.
We must ensure that whistleblowers can expose crimes, waste
and wrongdoing, but we should not create a loophole so broad
that it becomes a tool for those who would purposely destroy
people's reputations, businesses and privacy.
Also, the Federal Government defends our national security.
So in the Federal realm, we must weigh the benefits of a
reported privilege with the problems it may cause for those who
protect our country.
Finally, Mr. Chairman, I urge the Committee to remain open-
minded about the bill's text. My home state of Texas was
recently confronted with the same task before us today: how to
draft a shield bill that appropriately addresses the needs of
reporters, businesses, law enforcement authorities and the
general public.
The Texas legislature considered a statute that
accommodated all these diverse parties, and I am relieved that
H.R. 2102 incorporates some of the same ideas. These include
qualifying the privilege, ensuring the bill does not override
protections for medical and financial records as well as trade
secrets, creating a balancing test to weigh the interests of
all parties, and changing the burden of proof.
I hope the primary sponsors of H.R. 2102, both Mr. Boucher
and Mr. Pence, with whom I have spoken, are willing to consider
further modifications along the way.
Mr. Chairman, before I yield back the balance of my time,
let me make a confession both to our colleagues and to perhaps
our witnesses, as well, and that is that for many, many years,
at least I considered myself a reporter. I was editor of the
newspaper in high school and in law school.
And in law school, I actually wrote an article for the
Texas Bar Journal that was called, ``Politicians Versus the
Press: Libel in Texas.'' And I further confess that I came down
on the side of the press, not the politicians.
So I sort of have a longstanding interest in this subject.
And, in fact, for 2 years after college, I worked as a reporter
for a newspaper, as well. So I have certain sympathies, shall
we say, but the sympathies are somewhat qualified, as I feel
that our privilege that we are discussing today should be, as
well.
Mr. Chairman, I will yield back the balance of my time.
Mr. Conyers. What a confession. We have got to watch you
more carefully on this bill than any that we have ever worked
on before. Some of your past is now coming out. [Laughter.]
Rick Boucher, Virginia, not always progressive, but a heck
of a great guy to work with when we are on the same page. I am
so proud that he is a sponsor of this legislation. And I am
happy to recognize him now.
Mr. Boucher. Well, thank you very much, Mr. Chairman, I
think. [Laughter.]
I appreciate your holding today's hearing, and I
particularly want to thank you for your co-authorship of the
legislation that we have put forward, the ``Free Flow of
Information Act.''
And today I also want to commend our Committee colleague,
the gentleman from Indiana, Mr. Pence, for his devotion of time
and effective effort to this cause. He is the lead Republican
sponsor of our bill, and I can say that it has been a
tremendous privilege and pleasure to work with Mr. Pence as we
have put this measure forward.
We are joined by 43 other Members of the House as co-
sponsors of the bill, who, on a bipartisan basis, believe that
the time has arrived for Congress to extend to journalists a
privilege to refrain from revealing their confidential
information sources in Federal court proceedings.
The privilege our bill provides is similar to those
currently extended by 33 States and the District of Columbia.
The ability to assure confidentiality to people who provide
information is essential to effective news-gathering and
reporting on highly sensitive and important issues. Typically,
the best information about corruption in Government or misdeeds
within a large private organization, whether that is a large
charity or a corporation, will come from someone on the inside
who feels a responsibility to call a reporter and bring that
matter to public scrutiny.
But that person truly has a lot to lose if his or her
identity becomes known. In many cases, the person responsible
for the corruption or the misdeeds can punish the source by
dismissal or some more subtle form of retribution in the event
that that individual's identity is revealed.
In the most sensitive cases, it is only by assuring
confidentiality to the source that a reporter is able to
understand what has happened and bring that information to
public scrutiny.
I personally long thought that the ability to protect the
confidentiality of sources is so essential to effective news-
gathering that the first amendment the U.S. Constitution should
be interpreted in a way that extends that protection as a
matter of constitutional law.
Now, unfortunately, the Supreme Court has not to date
extended that protection, at least not to the extent that we
think is appropriate. And given the increasing use of subpoenas
in recent years to extract confidential information in Federal
court proceedings, I think the time has clearly arrived for
Congress to adopt this statutory privilege.
And so we have put forward the ``Free Flow of Information
Act'' in pursuit of the extension of that privilege to
reporters.
While extending a broad privilege, we have included some
exceptions, for instance, in which source information can be
disclosed, where a strong public interest compels that
disclosure. The exceptions are three in number, and they are
carefully tailored.
The first is to prevent an imminent and actual harm to
national security. And in including this exception, we have
taken notes of the requests that have been made by the
Department of Justice in order to protect national security. We
think we do so fully through this exception.
Secondly, to prevent imminent death or significant bodily
harm; and, third, to determine who has disclosed trade secrets
or personal health or financial information where that
disclosure is in violation of law.
An exception to the privilege would only apply if the court
determines that the public interest in disclosing the
information outweighs the public interest in protecting news-
gathering and the free flow of information. And so, where any
of those three exceptions is asserted, the balancing test would
then have to be applied by the court.
The bill is a carefully crafted measure which will provide
a needed privilege, and its passage clearly is necessary to
protect the public's right to know.
I again want to thank Mr. Pence for his longstanding
effective advocacy of this measure. It is a pleasure working
with him, and I look forward to our further steps in this
process.
I would note that a measure identical to ours has been
introduced in the Senate by Senators Dodd and Lugar, and I
thank them for their leadership also.
I point out for the benefit of Members that numerous
journalistic organizations, ranging from the National
Association of Broadcasters and the largest association of
newspaper publishers to individual news organizations,
including News Corp and the New York Times, have urged passage
of this bill. And I thank each of them for their efforts, as
well.
Your assistance, Chairman Conyers, has been absolutely
invaluable to this effort. And I want to thank you for the
helpful suggestions that you and your staff have made, which
are reflected in the legislation before us. And I want to thank
you for your co-sponsorship and also for scheduling today's
hearing.
I welcome today's witnesses, and I want to thank them for
taking time to share their views on this matter with us.
And I am pleased, Mr. Chairman, to yield back at this time.
Mr. Conyers. Thank you very much, Rick Boucher.
I am now pleased to recognize the gentleman from Indiana,
Mike Pence, for his great work on this measure.
Mr. Pence. Thank you, Mr. Chairman. I am very humbled by
your comments and the importance that you have personally
placed on this legislation. Your sponsorship and your
leadership has been seminal, and I am grateful for your support
for the ``Free Flow of Information Act.''
I also want to welcome the qualified sympathies of the
Ranking Member for this qualified privilege and would assure
him of my desire, as I do on every issue before this Committee,
to work closely with him.
Let me also say what a genuine pleasure it has been to work
with Congressman Rick Boucher of Virginia on this issue. I will
concede, Mr. Chairman, that it was my intention that this
legislation be the Pence-Boucher bill. [Laughter.]
But I am honored to work on the Boucher-Pence version of
the legislation, the American people having rearranged the
order.
So, Mr. Boucher, our witnesses may be glad to know and
those looking in, I saw Mr. Boucher work through extraordinary
tragedy in his district in Virginia Tech but never lose sight
on this issue and so many other issues of the work of the
American people. And I am grateful to have the opportunity to
partner with him on this.
Also, I would like to acknowledge our partners in the
Senate, my senior Senator from Indiana, Senator Richard Lugar,
and Senator Chris Dodd of Connecticut.
And one last indulgence, Mr. Chairman. The son of one of my
great inspirations in life is in the audience today, Jeff
Brown, the head of a newspaper organization in the state of
Indiana. His father, the late Robert N. Brown, had an enormous
impact on my life and continues to be a loadstar to me of what
it is to have integrity in journalism. And very much his
example inspired my work on this.
As a conservative who believes in limited Government, I
know that the only check on Government power in real-time is a
free and independent press. The ``Free Flow of Information
Act'' is not about protecting reporters. It is about protecting
the public's right to know.
Our founders did not add the freedom of the press to the
Constitution because they got good press, and I am certainly
not advocating a free and independent press because I always
get good press.
Enshrined in the first amendment are these words--
``Congress shall make no law abridging the freedom of the
press.''
We all remember when, not long ago, a confidential source
brought to light abuses at the highest levels of our
Government, in the long national nightmare of Watergate.
History, though, records, with the revelation of the identity
of W. Mark Felt, that he would have never come forward without
the absolute assurance of confidentiality.
But 30 years later, the press cannot make such assurances
to sources, and we face the real danger that there may never be
another Deep Throat. Protections provided by the ``Free Flow of
Information Act,'' I submit, are necessary. The members of the
media can bring forward information to the American people
without fear of retribution or prosecution.
In recent years, reporters such as Judith Miller have been
jailed, Mark Fainaru-Wada and Lance Williams have been
threatened with jail sentences. They are but a few names among
many who have been subpoenaed for taking a stand for the first
amendment and refusing to reveal confidential sources.
Compelling reporters to testify and, in particular,
compelling them to reveal the identity of their confidential
sources is a detriment to the public interest. Without the
promise of confidentiality, many important conduits of
information about our Government will be shut down.
The dissemination of information by the media to the public
on matters ranging from the operation of our Government to
events in our local communities is invaluable to the operation
of democracy. Without the free flow of information from sources
to reporters, the public can be ill-equipped to make decisions
as an informed electorate.
And it is important to note, Mr. Chairman, that this bill
is not a radical step. Thirty-two States and the District of
Columbia have various statutes that protect reporters from
being compelled to testify or disclose sources of information
in court. The Ranking Member just favorably made reference to a
recent compromise bill that passed in his home state of Texas.
Seventeen States have protections for reporters as a result of
judicial decisions. The ``Free Flow of Information Act'' would
set simply national standards to those that are already in
effect in most States.
And most of the provisions of this bill come from the
internal Department of Justice guideline instituted more than
30 years ago during the Nixon presidency. Strengthened in the
1980's, the guidelines have been maintained by Republican and
Democrat administrations ever since. In doing so, this
legislation strikes a balance between the public's need for
information and the fair administration of justice.
But in response to issues raised last year by the
Department of Justice, the bill has been revised, not once, but
twice, to narrow the scope of the privilege and create an
exception to allow for compelled disclosure of a source that is
necessary to prevent imminent or actual harm to national
security, and this is altogether appropriate.
This year, the bill, again, has been revised and updated in
order to address legitimate concerns that were raised with
regard to the scope of the privilege. The national security
exception has been maintained and additional exceptions have
been added to allow for compelled disclosure of a source,
situations involving imminent bodily harm or death, or in cases
where a trade secret or personal medical or financial
information are revealed in violation of the law.
In such cases, a judge will perform a balancing test to
determine whether compelling disclosure of the source would be
contrary to the public interest, taking into account the
public's interest in compelling disclosure and the
countervailing interest in maintaining the free flow of
information.
It is also important to note what the bill does not do. It
does not give reporters a license to break the law in the name
of gathering news. It does not give them the right to interfere
with police or prosecutors who are trying to prevent crime. It
leaves laws on classified information unchanged.
It simply gives journalists certain rights and abilities to
seek sources and report information without fear of
intimidation or imprisonment, much as in the public interest,
we allow psychiatrists, clergy, social workers to maintain
confidences.
With this qualified privilege, reporters will be ensured
the ability to get the American people the information they
need. A free and independent press is the only agency in
America that has the complete freedom to hold Government
accountable.
And let me close with this, Mr. Chairman. Integrity in
Government is not a Democrat or Republican issue. Corruption
cannot be laid at the feet of one party or another. When
scandal hits our national Government, whoever is responsible,
it wounds our Nation.
As a conservative, I believe the concentrations of power
should be subject to great scrutiny. The longer I serve in
Congress, the more firmly I believe in the wisdom of our
founders, especially as it pertains to the first amendment and
freedom of the press.
It is important that we preserve the transparency and
integrity of our American Government. And the only way to do
that ultimately is by preserving a free and independent press.
Thomas Jefferson warned, ``Our liberty cannot be guarded
but by the freedom of the press, nor that limited without the
danger of losing it.'' This Congress would be wise to heed
those words.
Now is the time to repair this tear in the first amendment,
pass a Federal media shield law. I look forward to working with
the Chairman, my partner, Mr. Boucher, and many on this
distinguished panel of witnesses to achieve just that.
And I yield back.
Mr. Conyers. I thank you so much.
Darrell Issa?
Mr. Issa. Thank you, Mr. Chairman. I guess I will be the
first to speak that hasn't co-sponsored the bill, because I
have some concerns about it.
I, too, like the authors, believe that the first amendment,
in no uncertain terms, should shield the right for discovery
purposes of the press. No member of the press should ever be
forced to reveal a conversation they have with a source or
potential source.
However, in the language as drafted, not the principal
behind it, but the language as drafted, I fear that what we are
doing is creating a situation in which known, what I would
call, mischief becomes condoned.
It is not, in fact, the press's ability to glean
information that I am concerned about or their right to protect
the sources that they hear. It is, in fact, the fruit of that
misused should not be protected.
Just yesterday, 25 feet on the other side of my left, I saw
Administrator Doan of the GSA forced to answer a Washington
Post article that released the names and activities of people
that she commented to in a private deposition, under oath.
Those names were released and her comments. She was held to
have released, at least in the opinion of the Chairman,
confidential information, when, in fact, The Washington Post
released those informations based on the fruit of a known
illegal leak.
Information was given to The Washington Post before it was
even given to the people involved in the case, and it was
published.
Now, The Washington Post could have redacted the names.
They could have done what was appropriate to recognize that
they had a fruit that, in fact, was illegal to be released. An
individual who was releasing it in the Office of Special
Counsel, a part of our Government, was releasing it for some
purpose to promote their prosecution, I would believe. And they
released that information, and then they used it
inappropriately.
Even though I appreciate a great deal what The Washington
Post does, The Washington Post had an opportunity to make it
better. The reporter had an opportunity to recognize that they
could get the entire story that the special counsel was doing
something and that that activity, in that reporter's opinion,
was extremely important to the balance of Government.
I have no objections to the article, but the release of the
information and the source that gave them that information,
that now has tarnished multiple individuals who worked for the
GSA--is, in fact, under this bill, the way I read it,
unreachable.
I believe it is, in fact, that we must re-draft in order to
make it clear that if, not just all the sources, but the fruit
harms no one or is harming them only to the extent necessary
for a free press, that we should shield that, but we should
shield no more than that. Because, again, it is not the
chilling effect on the press that we can only be concerned
about.
We must be concerned about the chilling effect on people in
their day-to-day lives or in Government service doing their job
and finding a press often misused and, in many cases, by their
very enemies within the Government using the press for this
purpose.
So I hope to take a positive role here in the hearings
today and in such drafting changes as would be necessary to
protect against exactly what happened 20 feet over yesterday.
With that, I yield back.
Mr. Conyers. Thank you, Darrell. Thanks so much.
Steve Cohen?
Mr. Cohen. Thank you, Mr. Chairman. I appreciate your
having this hearing and the gentlemen from Indiana and Virginia
bringing us this bill.
I am a co-sponsor, and, like the Ranking Member, I have a
confession. Although not Catholic, but it is still good for the
soul, I am an admitted press sympathizer, having a history in
high school and college with the press.
I think this is a good thing. Watergate has been brought
up. Nobody has brought up Mark Foley, but there are all kind of
incidences that we have had in Government where, if it weren't
for the press, they probably wouldn't have come to light.
Watergate probably being a seminal event that changed the
course of this country, and we would not have known of that
illegal conduct otherwise.
I would hope, in your testimony--and I know you have
written testimony--that you all would give us some clear
examples of instances and cases where you think this would have
indeed benefited the American people, having shield laws in
other States or where the shield law might have been helpful.
And also the Scooter Libby situation, how that might have
affected that case, if we would have gotten to the bottom of
that or not.
And I appreciate your being here.
Thank you, Mr. Chairman.
Mr. Conyers. Thank you.
The former Chairman of this Committee, Jim Sensenbrenner.
Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
As you know, I am not a co-sponsor of this legislation, and
I have serious concerns about it. With every right is to be
given a responsibility. And my view of some of the things
certain elements of the news media have done certainly hasn't
been responsible, in terms of publishing information. And let
me give two examples.
The New York Times published how our Government tracks
money laundering by terrorists and other people who are
contributing to illegal activities through a system that is
located in Brussels, Belgium.
There was no allegation of illegality on the part of
anybody in the Government. This was a perfectly legal request
for information that the Government had subpoenaed, and the
subpoena was complied with, and as a result of that
publication, anybody that wanted to transfer money would be
using other means for that, because it simply was tipped off.
And, again, there was no allegation of misconduct. This was
just a newsworthy story.
Now, what is the difference between shielding who leaked
that information and which newspaper reporters got that
information with who leaked the information and which newspaper
reporters got the identity of an undercover CIA agent?
Now, their leaking the undercover identity of the CIA agent
was a crime, it was misconduct, but here we saw the press harm
the national security when there was no misconduct involved. It
might have been a good story, but the people who are trying to
blow us up or the people who are trying to launder money for
illegal purposes were simply tipped off by the gratuitous
publication by the New York Times of the story on the check
clearing or the money transfer clearing operation in Belgium.
I don't see very much responsibility there. And it seems to
me that the burden of proof in showing that a press shield will
be used responsibly should be on the news media.
Thank you.
Mr. Conyers. Thank you so much.
Howard Coble?
Mr. Coble. Thank you, Mr. Chairman. I will be very brief. I
won't use my 5 minutes.
Mr. Chairman, I traditionally----
Mr. Conyers. You don't have 5 minutes.
Mr. Coble. I am glad to know that. Thank you, Mr. Chairman.
I traditionally do not sponsor legislation. To get me to
sponsor legislation, you have to put a gun to my head. But on
this legislation, you would probably have to put a gun to my
head to keep me off of it, because I see far more good than bad
in this bill put together by Congressman Pence and Congressman
Boucher.
Mr. Chairman, I think it establishes a national standard
for dealing with confidential media sources. And the standard,
it is my belief, will give reporters and their sources a safe
harbor to freely discuss sensitive legislation, which would
also provide several exceptions for national security, imminent
death, bodily harm, trade secrets.
I think there is a provision about medical information that
should be protected, but other than that, I think it provides a
lot of sunlight and transparency that is badly needed.
And I yield back, Mr. Chairman.
Mr. Conyers. Thanks, Howard Coble.
Our first witness is the Assistant Attorney General for
Legal Policy at the Department of Justice, Rachel Brand. She
was previously Principal Deputy Assistant Attorney General and
then Associate Counsel to the President.
And so we are delighted to start off our testimony. We have
a distinguished group of witnesses.
And we are happy to have you representing the Department of
Justice. Please begin.
TESTIMONY OF THE HONORABLE RACHEL BRAND, ASSISTANT ATTORNEY
GENERAL FOR THE OFFICE OF LEGAL POLICY, U.S. DEPARTMENT OF
JUSTICE
Ms. Brand. Thank you, and good morning to all the Members
of the Committee.
This hearing touches on two matters of paramount concern to
the Department of Justice--protecting the safety and security
of the Nation and protecting freedom of speech and of the
press.
We appreciate that H.R. 2102 is motivated by a genuine
interest in balancing these values, but we believe the existing
legal and policy framework strikes a better balance.
We also have a number of specific concerns with the way
this particular bill is formulated. We do not believe the case
has been made that any legislation is necessary on this
subject. It has been suggested that subpoenas to the media are
on the rise. But at least as to subpoenas from the Department
of Justice, the numbers contradict that claim.
Evidence gathered by the Department's Criminal Division
reflect that the Attorney General has approved subpoenas to the
media seeking source-related information in only 19 cases since
1991. Only four of those cases have occurred since 2001.
The Department's record of restraint in this area is a
result of adherence to longstanding guidelines. These
guidelines require the Attorney General to approve personally
any contested subpoena to the media and require that the
prosecuting office seeking the subpoena show, among other
things, that the information sought is essential to the
investigation and cannot be obtained through other means.
The Department's policy stresses the need to balance the
public interest in the free dissemination of information and in
effective law enforcement and fair administration of justice.
I would like to point out a few of the Department's most
significant concerns about this particular legislation. First,
we believe the bill will make it virtually impossible to
investigate and prosecute many leaks of classified national
security information to the press.
There is broad recognition of the serious harm that these
leaks can cause. In many such cases, there is no way to
determine the source of a leak without testimony from the
person to whom it was leaked.
This bill would place the Department in a catch-22 when we
tried to investigate these cases. The bill would allow a
subpoena to issue for source-related information only where the
Government could show by a preponderance of the evidence that
disclosure of the information was necessary to prevent imminent
and actual harm to national security.
In a case where a leak had already been made, the
classified information already published, and the harm already
done, the Government could never meet this standard, because it
would be attempting to bring a leaker to justice, not
necessarily to prevent additional harm.
Even in cases where the classified information had been
published and the Government believed that grave harm was still
likely to occur, the Government might not have evidence that
the harm was imminent and, therefore, could not bring a leaker
to justice in that case either.
Even assuming the Department could show that obtaining the
information would prevent imminent harm to the national
security, in practice the bill would require the Government to
produce even more classified information in court, compounding
the harm that had already occurred when the leak was made.
Moreover, in a case in which truly imminent harm to the
national security could be abated by obtaining source
information from a reporter, it is unlikely that the judicial
proceeding required by the bill could move quickly enough to
allow the harm to be averted.
We are concerned that the bill would encourage more leaks
of classified information by giving someone considering a leak
comfort that it would be so difficult for the Government to
investigate the leak that he almost certainly would never be
found out or prosecuted.
These concerns do not apply only in the national security
context. Also of significant concern is the damage this
legislation would cause to our ability and the courts' ability
to investigate leaks of grand jury information. Disclosure of
grand jury information jeopardizes criminal investigations,
shows contempt for the court, and can damage the reputations of
individuals who are under investigation, but later exonerated.
In some grand jury leak cases, the courts order the
Department to investigate the leak. The bill would make it
virtually impossible for either the Department or the court to
investigate such a case for the same reasons it would make it
very difficult to investigate leaks of classified information
to the press.
Nor would the bill prevent only the Government from
obtaining information. It might also violate the sixth
amendment in cases in which its procedures prevented a criminal
defendant from obtaining information for their defense.
These concerns are compounded by the bill's very broad
definition of journalism, which includes anyone who publicly
disseminates any news or information that he has written or
gathered on any matter of public interest. This would enable
many millions of people in the United States and abroad,
including, for example, the media components of terrorist
organizations, to refuse to provide testimony or evidence in
criminal investigations.
We are concerned that this legislation would scrap a system
that has successfully balanced the competing interests of
Federal law enforcement and the free flow of information to
replace it with one that, at best, will yield inconsistent
results in 94 judicial districts around the country and it
would do so without evidence that the freedom of the press is
being impaired by the efforts of law enforcement to investigate
and prosecute crime.
For these reasons and others discussed in my written
statement, we oppose this legislation.
I am happy to be here, and I am happy to take your
questions.
[The prepared statement of Ms. Brand follows:]
Prepared Statement of Rachel L. Brand
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Mr. Conyers. Thank you so much for giving us the
Department's position.
We were debating whether we have ever had a Pulitzer Prize
winner before the Committee, and we are checking it out, but we
know we have one this morning. And we are honored to have
William Safire with us.
I don't like to bring this up, but I see you so little.
Now, when you put this famous quote into American political
discourse, ``the nattering nabobs of negativism,'' were you
talking about the press?
Mr. Safire. May I answer right now? That was in a speech I
wrote for Vice President Agnew in San Diego, and it was not
about the press. It was about the defeatists in America. And I
was looking for a phrase that I admired in Adlai Stevenson's
speech, where he talked about the prophets of gloom and doom.
And so, looking around for a similar either rhyme or
alliteration, I came up with ``the nattering nabobs of
negativism.''
Mr. Conyers. We are so honored to have you here, William
Safire. I hope we don't inspire some other phrase after this
hearing. [Laughter.]
Welcome.
TESTIMONY OF WILLIAM SAFIRE, CHAIRMAN,
THE DANA FOUNDATION
Mr. Safire. Thank you.
Mr. Chairman, Committee Members, I am here today to urge
Congress to pass a law to stop the Federal Government and the
courts from continuing down the dangerous path of denying
Americans our right to the free flow of news.
For 30 years, I was a political columnist for the New York
Times and now write a weekly language column for the Times
Magazine. Before that, I was a speech writer in the Nixon White
House. The opinions I express today are my own.
For the past few years, the process of gathering the news
has been under unprecedented attack. That is because
prosecutors and judges have been stripping away the single most
important tool a reporter has for digging out information--the
ability to gain the trust of a source by promising to keep his
or her identity confidential.
The movement to force journalists to reveal their sources
is an attempt to turn the press into an arm of the law. That
trend defeats the administration of justice. The reason that
almost all of the States have set up shields for journalists is
that the exposure of corruption, malfeasance, official
incompetence and stultifying secrecy often starts with the
press. It helps the law because it is independent of the law.
I am here as a journalist to testify from my real world
that ``a chilling effect,'' in Justice Brennan's phrase, is
being felt by today's reporters and columnists. Believe me,
when a journalist is threatened with jail or, indeed, is jailed
for refusing to blow the whistle on a whistleblower or to
betray a trusting source, he or she feels a coercive chill.
And when a reporter is faced with legal expenses that his
midsized publication cannot afford to pick up and the choice is
ratting out a source or going into bankruptcy, that hits home.
Don't believe that ordinary citizens, as well as public
officials, won't think twice about trusting a reporter to
respect the confidence. It is happening right now as never
before.
Here is something else I hope you won't believe: that a
Federal shield law, like those now helping police and
prosecutors in almost all the States, means that journalists
will be placed above the law that requires other citizens to
give testimony.
That is a slogan, not an argument. Lawyers have that
privilege and are not above the law, same with clergy of all
faiths, same with doctors and, since 1996, same with
psychotherapists. And that same right to clam up exists with
husbands and wives, including, I think, divorced spouses, not
to be forced to betray confidences about each other.
When you stop to think about it, it means that more than
half the people in America must have the privilege. Are they
all above the law? Of course, those time honored protections
are in effect because our society, in many cases, for good
reason, puts trust and mutual confidence first. There are
always practical limitations. For example, you cannot refuse to
testify in order to help commit a future crime.
That sense of balance is why the bill before you makes
sense and is overdue. It takes the public interest in
compelling disclosure of the source and balances it with the
public interest in gathering news.
Last year, the Justice Department's central objection to a
journalist shield was national security. This bill responds to
that concern by making it possible to break confidence ``when
necessary to prevent imminent and actual harm to national
security.''
I am in the word business. ``Imminent,'' rooted in the
Latin for ``threat,'' does not mean ``soon.'' It means about to
happen, without delay. If the Committee is interested, I have a
few concrete insider examples to illustrate the connection
between source and reporter.
Under Department of Justice guidelines about subpoenas to
journalists, I have some information about how and why they
were drawn up and how they have been subverted and made
meaningless; on the latest chilling effect technique, how a
prosecutor can play the media hostage card, the spiteful
criticism of him by an otherwise gutsy columnist; on how a
reporter makes and keeps contact with sources instead of
relying on that old over-the-transom missive that cannot be
verified and should be distrusted.
How many people remember what a transom was?
On the long-term relationship between source and reporter
that led to the story of the first use of poison gas at Halabja
in Iraq, which was broadcast on CBS and ignored, and I have
information to partake and pass along on how much to trust a
source and when to stop trusting him in connection with the
director of CIA in Iran.
Finally, how and when a prosecutor got to a source with the
help of a reporter in connection with the U.N. oil for food
scandal.
My purpose in offering you these tidbits is to take the
subject out of the legal and academic area for a few moments
and give you a sense of life in the real world of news
gathering. It is a cityscape of two-way streets, sometimes
frowned upon as symbiotic relationships, under attack by well-
meaning people, eager to penetrate confidence to protect
secrecy.
It needs the protection of a new Federal law to give
clarity to the present confusion in the minds of judges,
prosecutors, litigants, and, yes, deepening concern in the
world of reporters and the sources who trust them.
[The prepared statement of Mr. Safire follows:]
Prepared Statement of William Safire
Mr. Chairman, committee members: I am here today to urge Congress
to pass a law to stop the Federal government and the courts from
continuing down the dangerous path of denying Americans our right to
the free flow of news.
For thirty years, I was a political columnist for the New York
Times, and now write a weekly language column for the Times magazine.
Before that, I was a speechwriter in the Nixon White House. The
opinions I express are my own.
For the past few years, the process of gathering the news has been
under unprecedented attack. That's because prosecutors and judges have
been stripping away the single most important tool a reporter has for
digging out information: the ability to gain the trust of a source by
promising to keep his or her identity confidential.
The movement to force journalists to reveal their sources is an
attempt to turn the press into an arm of the law. That trend defeats
the administration of justice. The reason that almost all of the states
have set up shields for journalists is that the exposure of corruption,
malfeasance, official incompetence and stultifying secrecy often starts
with the press. It helps the law because it is independent of the law.
I'm here as a journalist to testify from my real world that a
``chilling effect'', in Justice Brennan's phrase, is being felt by
today's reporters and columnists. Believe me, when a journalist is
threatened with jail, or indeed is jailed, for refusing to blow the
whistle on a whistleblower, or to betray a trusting source, he or she
feels a coercive chill. And when a reporter is faced with legal
expenses that his mid-sized publication cannot afford to pick up, and
the choice is ``ratting out'' a source or going into bankruptcy, that
hits home hard. Don't believe that ordinary citizens as well as public
officials won't think twice about trusting a reporter to respect a
confidence--it's happening right now as never before.
Here's something else I hope you won't believe; that a Federal
shield law--like those now helping police and prosecutors in almost all
the States--means that journalists will be placed ``above the law''
that requires other citizens to give testimony. That's a slogan, not an
argument. Lawyers have that privilege and are not ``above the law''.
Same with clergy of all faiths; same with doctors, and since 1996, same
with psychotherapists. And the same right to clam up exists with
husbands and wives, including divorced spouses, not to be forced to
betray confidences about each other. When you stop to think about it,
it means that more than half the people in America must have the
``privilege''; are they all ``above the law''?
Of course, those time-honored protections are in effect because our
society, in many cases and for good reason, puts trust and mutual
confidence first. But there are always practical limitations; You
cannot refuse to testify in order to help commit a future crime.
That sense of balance is why the bill before you makes sense. And
is overdue. It takes the public interest in compelling disclosure of
the source and balances it with the public interest in gathering news.
Last year the Justice Department's central objection to a journalists'
shield was ``national security''. This bill responds to that concern by
making it possible to break confidence when ``necessary to prevent
imminent and actual harm to national security''. I'm in the word
business: ``imminent'', rooted in the Latin for ``threat'', does not
mean ``soon''--it means ``about to happen, without delay.''
If the committee is interested, I have a few concrete ``insider's''
examples to illustrate the connection between source and reporter.
On the Department of Justice ``guidelines'' about subpoenas to
journalists: I have some information about how and why they were drawn
up and how they have been subverted and made meaningless.
On the latest ``chilling effect'' technique: how a prosecutor can
play the media hostage card to stifle criticism of him by an otherwise
gutsy columnist.
On how a reporter makes and keeps contact with sources instead of
relying on the old ``over the transom'' missive that cannot be verified
and should be distrusted.
On the long-term relationship between source and reporter that led
to the story of the first use of poison gas at Halabja in Iraq--
broadcast on CBS and ignored.
On how much to trust a source and when to stop trusting him, in
connection with the director of CIA and Iran.
On when and how a prosecutor got to a source with the help of a
reporter, in connection with the UN oil-for-food scandal.
My purpose in offering you these tidbits is to take the subject out
of the legal and academic area for a few moments and give you a sense
of life in the real world of newsgathering. It's a cityscape of two-way
streets, sometimes frowned upon as ``symbiotic relationships''. Under
attack by well-meaning people eager to penetrate confidence to protect
secrecy, it needs the protection of new Federal law to give clarity to
the present confusion in the minds of judges, prosecutors, litigants
and yes--deepening concern in the world of reporters and the sources
who trust them.
Mr. Conyers. Thank you so much. Appreciate your being with
us for this discussion.
Lee Levine has been in the Supreme Court on the subject
matter that brings us here more times than anyone I know. He is
teaching at Georgetown University Law Center, and we are very
pleased to have him with us today.
TESTIMONY OF LEE LEVINE,
LEVIN SULLIVAN KOCH & SCHULZ
Mr. Levine. Thank you, Mr. Chairman, Members of the
Committee.
For almost three decades following the Supreme Court's 1972
decision in Branzburg v. Hayes, subpoenas issued by Federal
courts seeking disclosure journalists' confidential sources
were very, very rare. It appears that no journalist was finally
judged in contempt, much less imprisoned, for refusing to
disclose a confidential source in a Federal criminal matter
during the last quarter of the 20th century.
That situation has now changed. An unprecedented number of
subpoenas seeking the names of confidential sources have been
issued by Federal courts in a remarkably short period of time.
Three Federal proceedings in Washington, D.C. alone generated
such subpoenas to roughly two dozen reporters and news
organizations, seven of whom were held in contempt in less than
1 year.
Since 2001, four Federal Courts of Appeals have affirmed
contempt citations issued to reporters, each court imposing
prison sentences on reporters more severe than any previously
known in American history.
Decisions such as these have emboldened private litigants
as well, especially since they, like special prosecutors, are
not bound by the Department of Justice guidelines. In one civil
suit, five reporters, including two that I represented, were
held in contempt for declining to reveal their confidential
sources in litigation instituted against the Government by Dr.
Wen Ho Lee.
They were spared the imposition of judicial sanctions only
because the news organizations for whom they worked paid a
total of $750,000 to Dr. Lee, even though neither the reporters
nor their employers were or lawfully could have been held
liable to Dr. Lee in that case.
Now, the plaintiff in another civil suit, Dr. Steven
Hatfill, has issued subpoenas and/or moved to compel disclosure
of the identities of confidential sources from eight news
organization and six reporters, several of whom I also
represent.
There could be no dispute that this deluge of subpoenas in
the Federal courts has now reached epidemic proportions. This
should be a matter of great concern to the Congress and to the
public.
In recent proceedings in Federal courts, journalist after
journalist has convincingly testified about the important role
confidential sources play in enabling them to do their jobs. In
my written testimony, I recount several such examples.
Consider just one. In 1977, Walter Pincus, of The
Washington Post, relied on confidential sources in reporting
that President Carter planned to move forward with plans to
develop a so-called neutron bomb, a weapon that could inflict
massive casualties through radiation without extensive
destruction of property.
The public and congressional outcry in the wake of these
news reports spurred the United States to abandon plans for
such a weapon and no Administration has since attempted to
revive it.
Mr. Pincus, who never received a subpoena about the neutron
bomb or any other matter in the course of his distinguished
decades long career, has now received two, one from the special
counsel in the Valerie Plame matter and another from Dr. Lee.
Needless to say, the prospect of substantial prison terms
and escalating fines for honoring promises to sources threatens
this kind of journalism. As Los Angeles Times reporter and
Pulitzer Prize recipient Bob Drogin, who himself was held in
contempt in the Wen Ho Lee case, has testified, ``I have
thought long and hard about this and unlike you attorneys here
in the room, I do not have subpoena power or anything else to
gather information. I have what credibility I have as a
journalist. I have the word that I give to people to protect
their confidentiality. If I violate that trust, then I believe
I can no longer work as a journalist.''
Indeed, in the wake of some of the judicial decisions about
which I have spoken this morning, the Cleveland Plain Dealer,
to cite just one example, decided that it was obliged to
withhold from publication two investigative reports because
they were predicated on documents provided by confidential
sources.
Doug Clifton, the newspaper's editor, explained that the
public would have been well-served to know about these stories,
but that publishing them would ``almost certainly lead to a
leak investigation and the ultimate choice: talk or go to jail.
Because talking isn't an option and jail is too high a price to
pay, these two stories will go untold for now.''
The situation that currently exists in the Federal courts
has not been replicated in the States. In fact, 49 States and
the District of Columbia recognize some form of reporter's
privilege. Thirty-four of them have now enacted shield laws.
In a submission to the U.S. Supreme Court, the attorneys
general of those States, each of whom is responsible for the
enforcement of the criminal law in their respective
jurisdictions, have convincingly demonstrated that their shield
laws have had no material impact on law enforcement or on the
discovery of evidence in judicial proceedings, civil or
criminal.
Up until now, journalists have looked to the Supreme Court
to address the confusion that now surrounds that reporter's
privilege. The court, however, has consistently declined to
intervene. In Branzburg, itself, Justice White's opinion for
the court emphasized that ``Congress has the freedom to
determine whether a statutory newsman's privilege is necessary
and desirable and to fashion standards and rules as narrow or
broad as deemed necessary to deal with the evil discerned.''
Members of the Committee, the time has now come for
congressional action.
Thank you.
[The prepared statement of Mr. Levine follows:]
Prepared Statement of Lee Levine
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Mr. Conyers. Thank you, sir.
Randall Eliason lectures at the Washington University Law
School and was Chief of the Public Corruption Government Fraud
section in the U.S. attorney's office in the District of
Columbia. He is well-known for his work in this area, and I am
very pleased to have him before the Committee this morning.
TESTIMONY OF RANDALL ELIASON, PROFESSOR,
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
Mr. Eliason. Thank you very much, Mr. Chairman. Good
morning.
Mr. Chairman and Members of the Committee, thank you for
asking me to be here today.
As a former Federal prosecutor of public corruption cases,
I have a great respect and admiration for the importance of a
free press and for the power of investigative journalism. But I
do not support the Federal reporter's privilege, and the reason
is that I am convinced it won't do what the law says it will
do.
It will not affect the flow of information to the public,
and it will not keep reporters from going to jail. The law
will, however, impose substantial costs, both by excluding
relevant evidence in a wide variety of cases and by encouraging
or by increasing litigation costs and delays as parties battle
over the privilege's terms.
The main rationale for the privilege has always been that
without it, there will be a chilling effect on confidential
sources, who will not come forward without a privilege for fear
of having their identities revealed.
Although this chilling effect is widely assumed to exist, I
believe it is very unlikely that the presence or absence of a
Federal privilege statute would have any significant role in a
source's decision about whether or not to come forward.
In the 35 years since the landmark case of Branzburg v.
Hayes, there has been no Federal reporter's privilege law.
During that time, the press in this country has flourished.
Major stories from Watergate and Iran Contra up through Abu
Ghraib, secret CIA prisons, and unlawful surveillance by the
Government, all have been reported without a Federal privilege
law.
Confidential sources are indeed important to journalism,
but that doesn't mean that a privilege law is required. A
reporter can promise a great deal of confidentiality simply by
promising not to name a source in an article and never to
reveal her name voluntarily. A source given this promise knows
that she would be identified by the reporter only if, at the
end of a long, drawn-out legal process, the court ordered the
reporter to name her.
The odds of that happening are extremely remote, and thus
the source can be assured of a high degree of confidentiality
from the reporter's promise alone.
And the flipside of this argument is that even if we had an
ironclad, airtight shield law, a reporter can't really promise
a source confidentiality or that she will never be identified.
People who leak information to the press face many risks
that they will be discovered through internal leak
investigations, through investigations by third parties or
other lawsuits that don't involve compelling the reporter to
testify, and other means, Compared to those risks, the risk
that a court someday a year or 2 or more down the road might
order the reporter to testify is actually very small.
And a source who has decided to face those much more
significant risks and to come forward, I submit, is very
unlikely to be deterred by the far more remote chance that
someday a judge might order the reporter to testify.
A final fact that cuts against this chilling effect
argument is the availability of anonymous tips. Advocates of
the privilege like to analogize it to the attorney-client
privilege, the doctor-patient privilege, the spousal privilege.
Well, you can't have an anonymous communication with your wife
or husband or your doctor or your lawyer, but you can give an
anonymous tip to a reporter.
And so any sources that truly are chilled by the absence of
a privilege law can always leak information to the press by
providing documents or making a call without identifying
themselves.
A Federal privilege law also will not keep reporters out of
jail. Because the privilege will not be absolute, there will be
cases where a court overrides the privilege and orders the
reporter to testify. And if that happens, history shows us that
many reporters will refuse to honor that court order and will
be held in contempt and will go to jail.
Reporters don't go to jail because of the lack of a Federal
privilege law. They go to jail because they are placing
themselves above the law that does exist and refusing to honor
valid court orders, even when there is a privilege.
Finally, concerning H.R. 2102 in particular, I believe that
the nearly absolute protection for the identity of sources is a
concern, particularly where the leak to a reporter is itself a
crime, as with the leak of classified information. This
provision would effectively grant immunity from prosecution to
a great many offenders.
The exceptions to the privilege also seem, to me, difficult
to justify. For example, a source could be identified if
necessary to discover who leaked a corporate trade secret, but
not to obtain critical evidence to prosecute terrorism or other
serious crimes.
The bill's definition of journalism is also, I think,
problematic. It is extremely broad and includes essentially
anyone who gathers information and disseminates it to the
public. In the age of the Internet, we are all journalists
under this bill, and this renders the potential scope of the
privilege, I believe, unacceptably broad.
And my final point relates to a case I know you are all
familiar with, the BALCO case from San Francisco. I know that
case has been cited by many as evidence that we need a Federal
privilege law.
I would be happy to discuss that case in more detail, but
in short, I don't believe that case demonstrates the privilege
law would be a good thing. In fact, I think it demonstrates
just the opposite.
Thank you again for the opportunity to be here, and I look
forward to answering any of your questions. Thank you.
[The prepared statement of Mr. Eliason follows:]
Prepared Statement of Randall D. Eliason
Mr. Chairman and Members of the Committee: Thank you very much for
inviting me to be here today to testify concerning the proposed federal
reporter's privilege or shield law. I am a former federal prosecutor,
and worked as an Assistant United States Attorney in the District of
Columbia for more than twelve years. From 1999 to 2001, I served as the
Chief of the Public Corruption/Government Fraud section of that office.
I now teach a course on white collar crime at the George Washington
University Law School and at the American University, Washington
College of Law.
As a former prosecutor of public corruption cases, I am a great fan
of investigative journalism. Many significant corruption cases are
first exposed through reports in the press; the Jack Abramoff and Randy
``Duke'' Cunningham scandals are just two of the most recent examples.
I believe that a vigorous, free press is vital to our democracy, and I
fully appreciate the critical role the press plays as a watchdog over
both the government and the private sector.
Nevertheless, I do not support a federal reporter's shield law. I
believe such a law is extremely unlikely to achieve its stated goals:
to encourage and increase the free flow of information to the public
and to keep reporters from going to jail to protect their sources. The
law will, however, impose substantial costs, both by excluding relevant
evidence from consideration in particular cases and by adding to
litigation expense and delays as parties battle over the privilege's
terms. In addition, I believe that technology, particularly the rise of
the Internet, has so fundamentally transformed journalism that a
reporter's privilege today is neither practical nor constitutionally
workable.
costs and benefits of a privilege
The primary rationale for a reporter's privilege is that, in the
absence of a privilege, confidential sources will not speak to the
press for fear of having their identities revealed. This claimed
``chilling effect'' on sources will supposedly hamper the ability of
the press to uncover sensitive information and report it to the public.
Accordingly, the argument runs, the privilege is necessary to encourage
sources who wish to remain anonymous to share information with the
press. Virtually all judicial, academic, and policy discussions of the
privilege proceed from the assumption that this chilling effect is
real; rarely is the claim held up to any critical scrutiny. I would
like to challenge this assumption. I submit there is little or no
evidence that this chilling effect exists, and thus little reason to
believe that any real benefits would flow from the passage of a
privilege law.
By contrast, there can be no doubt that privileges have costs, and
this law would be no exception. All evidentiary privileges shield
relevant evidence from consideration by a jury or other fact-finder; as
the Supreme Court has noted, privileges are in derogation of the search
for truth. The exclusion of relevant evidence may directly impact the
rights of criminal defendants or civil litigants, or may prevent
prosecutors from bringing criminals to justice. As a result, privileges
have the potential to lead to errors or injustice in any given case.
Privileges also result in litigation costs, as parties and the courts
devote time and resources to resolving questions concerning the
privilege's applicability. Before creating new privileges, therefore,
we should be fairly confident that the resulting benefits will outweigh
the costs. The reporter's privilege inspires no such confidence.
history suggests the privilege is not necessary
In 1972, in the landmark case of Branzburg v. Hayes, the United
States Supreme Court held that the First Amendment does not provide a
privilege for reporters to refuse to testify, at least in grand jury
proceedings. The majority in Branzburg was quite skeptical of the
underlying factual premise of the proposed privilege; namely, that in
the absence of a privilege sources would be deterred from speaking to
the press. The Court observed that the nation's history of a vigorous
free press seemed to undercut that claim. The Court also noted that
claims about the effect of a privilege on newsgathering were largely
speculative and consisted primarily of the opinions of journalists
themselves, and thus had to be viewed in light of the professional
self-interest of those making the claims.
In the thirty-five years since Branzburg, there has been no federal
reporter's privilege statute. Yet the country has been blessed with a
robust free press, with great ability to ferret out and publish
information from confidential informants and other sources. The
examples are legion: from the Watergate scandal which exploded in the
media around the time Branzburg was decided, to recent press
revelations concerning Abu Ghraib prison, potentially unlawful domestic
surveillance by the government, and secret overseas CIA prisons.
Indeed, the latter stories were published by journalists who apparently
received confidential leaks even while the highly-publicized CIA leak/
Valerie Plame case was going on and journalists were being jailed and
compelled to reveal their sources. The Plame case was a very visible
demonstration that reporters often cannot protect their sources, and
yet other sources were not deterred. It would appear that sources are
quite impervious to the chills.
Proponents of a privilege often cite the importance of confidential
sources to the reporting of such historic events as Watergate, the
Pentagon papers, or the Iran-Contra scandal. What they usually fail to
note is that those stories all were reported despite the lack of any
federal reporter's privilege law. Leaking to the press is widespread,
occurs for many reasons, and is a pervasive part of our culture. As a
historical matter, it's hard to make the case that the free press in
this country has suffered as a result of the lack of a federal
privilege.
the meaning and limits of confidentiality
There is little doubt that confidential sources are important to
journalism. Clearly many sources request confidentiality, and
presumably most do so for a reason. Journalists seem to be virtually
unanimous in their belief that the use of confidential sources is
essential to their work. This may be true as well, although there is
currently a healthy debate taking place within the journalism community
itself over whether reliance on confidential sources has become
excessive.
But granting that reporters need to be able to promise
``confidentiality'' leaves unanswered the question of exactly what that
means. Privilege proponents argue that, in the absence of a privilege,
reporters will be unable to promise confidentiality and thus their
craft--and the public's right to know--will suffer. The necessary
corollary to this argument is that with a privilege, reporters will be
able to assure confidentiality and the problem will be solved. But
these claims are misleading for two different reasons: first, a
reporter can promise a great deal of confidentiality even in the
absence of a privilege law; and second, even with an ironclad privilege
law, a reporter cannot really guarantee confidentiality.
It is important to distinguish between a reporter's promise of
confidentiality and the existence of a legal evidentiary privilege. The
former may indeed be quite important in encouraging sources to come
forward; the latter seems unlikely to play much of a role in a source's
decision. Therefore, even granting that reporters sometimes need to
promise confidentiality and that confidential sources are essential to
journalism, it does not follow that a reporter's privilege is necessary
or even particularly important. We may assume for argument's sake that
confidential sources are, as former New York Times reporter Judith
Miller testified before the Senate, the ``life's blood of journalism.''
The question still remains whether the presence or absence of a
reporter's privilege has any effect on the blood flow.
There are many different degrees and types of confidentiality.
Presumably the most pressing concern for any confidential source is
that he not be named in an article the reporter writes tomorrow, not
that a judge might order the reporter to testify in some hypothetical
case months or even years in the future. Typically a journalist is
speaking with a source in connection with a story that will appear
fairly soon. The first and foremost meaning of a guarantee of
confidentiality is that, in any story the journalist prepares, the
source will not be identified. In the overwhelming majority of cases,
in fact, that is the end of the matter: the information is relayed, the
story is reported, no one seeks to identify the source, and
confidentiality is maintained.
By simply promising never voluntarily to reveal a source's name,
therefore, a reporter can assure a high degree of confidentiality. Even
if there is no privilege statute, a reporter may tell a source: ``I
will do all I can to protect your identity. I will not publish it, will
not reveal it to anyone else voluntarily, and if I am ever subpoenaed I
will fight as far and as hard as I can to avoid having to divulge it.
Only if I'm compelled to do so by a valid court order after exhausting
all of my appeals would I reveal your name.'' A source given these
assurances knows that he will be identified by the reporter only if: 1)
the reporter actually writes a story that includes the source's
information; and 2) the story results in a lawsuit or investigation;
and 3) a party to that case actually subpoenas the reporter; and 4) the
reporter and the party are unable to reach some compromise that would
still shield the source's identity; and 5) the party chooses to pursue
the matter to the bitter end and not simply give it up in light of the
reporter's refusal; and 6) all relevant trial and appellate courts
eventually agree there is no basis for the reporter to withhold the
information. The odds of all this happening are extremely remote.
Relative to the total number of press reports involving confidential
sources, the number of cases in which a reporter is actually compelled
to testify is vanishingly small. Even if the reporter is ultimately
forced to testify, it will likely be a year or more after the story
appears. Thus for the vast majority of sources, the reporter's simple
promise not to reveal the source's name voluntarily can satisfy any
reasonable concern for confidentiality, quite independent of the
existence of a privilege law.
Equally important, it is false to suggest that if we have a
privilege law a reporter will be able to guarantee a source that her
identity will remain a secret. Even if there were an ironclad, absolute
reporter's privilege, a source could hardly breathe easily. A potential
leaker faces many risks of exposure if she decides to pass information
along to a reporter, even under the reporter's promise of
confidentiality. Court-ordered compulsion of the reporter is only one
way that the source's identity may be revealed, and is actually one of
the least likely avenues.
First, the source's identity may be discovered through
investigative methods that do not involve testimony from the reporter.
Perhaps the most significant risk is that the source's company or
agency will conduct an internal investigation of the leak. Such an
investigation may include taking employee statements under oath,
examining e-mail or telephone records, and other methods. For example,
in one recent case, a career intelligence officer was fired by the
Central Intelligence Agency for leaking classified information to
reporters about secret overseas CIA prisons. Her identity was
discovered through an internal CIA investigation that included the
administration of polygraph examinations to employees. As a result of
that investigation the leaker was exposed, with no need to seek to
compel the reporter to reveal her sources.
In addition to internal investigations, there may be investigations
of the leak launched by outside parties. If a reporter's article
results in civil litigation or a criminal investigation, those may lead
to discovery of the source's identity through many means other than
subpoenaing the reporter. Civil discovery or a grand jury investigation
may uncover e-mails, computer files, or other documents or witnesses
that identify the source. The source may be deposed or subpoenaed to
testify in the grand jury, and will then be forced to admit her role in
the leak (unless she is willing to commit perjury).
In any serious case, a thorough investigation of the leak is almost
guaranteed. Companies and agencies concerned with safeguarding their
secrets have a great incentive to track down the source of any leaks.
In addition, courts that do recognize the privilege, as well as the
Department of Justice guidelines for media subpoenas, require a party
to exhaust all reasonable efforts to obtain the information from other
sources before seeking to compel testimony from a reporter. A source
can therefore be almost certain that before any issue of subpoenaing
the reporter will even arise, the party seeking the information will
exhaust every other reasonable means to discover the leaker's identity.
A potential source faces other significant risks as well. The
reporter may in fact reveal the source's identity, either deliberately
or inadvertently, or may waive the privilege by disclosing the source's
identity to a third party. For example, in a recent, highly-publicized
case in Rhode Island, reporter Jim Taricani was sentenced to six months
home confinement after being convicted of criminal contempt for
refusing to identify a confidential source who illegally provided him
with an FBI videotape from a corruption probe. Shortly before he was
convicted, however, Taricani made an inadvertent comment to an FBI
agent about a document he had seen, which allowed the agent to deduce
the identity of Taricani's source. The source then came forward and
admitted leaking the videotape, after learning he was about to be
subpoenaed by prosecutors.
There are still other risks. Details in the reporter's article may
make it possible for others to guess the source's identity. Others may
overhear the source's conversations with the reporter, or may stumble
across an e-mail or document revealing the conversations. The source's
colleagues may be contacted by a reporter who is trying to investigate
further, and may deduce from those contacts the identity of the
reporter's source. Others who knew about or participated in the
source's conversations with the reporter may later decide to turn on
the source and expose him, as recently happened in the BALCO case in
San Francisco.
All of these risks exist whether or not there is a privilege or a
subpoena to the reporter. A reporter therefore could not guarantee a
source that her identity would remain a secret, even if there were an
absolute, airtight privilege law. There are far too many ways for a
source's identity to be discovered that are simply out of the
reporter's hands. Leaking will never be free from risk, regardless of
the state of the law on reporter's privilege.
An individual who has decided to leak confidential information to
the press has necessarily decided to assume a significant risk that she
will be exposed, and presumably has determined the public good (or
personal gain) that will result from bringing the information to light
outweighs those risks. Proponents of a reporter's privilege are
therefore necessarily arguing that some substantial number of
confidential sources, having otherwise decided to assume all of these
more immediate and concrete risks of exposure, would be dissuaded from
coming forward solely by the very slight, incremental additional risk
that the reporter might be compelled to testify in some hypothetical
litigation sometime well off in the future. This seems very unlikely.
It is also reasonable to assume that those potential sources most
likely to be deterred by the small additional risk resulting from the
absence of a privilege would be those sources with the most to fear
personally from having their identities revealed. That presumably would
be those who fear not merely embarrassment, opprobrium in the eyes of
their colleagues, or loss of a job, but criminal prosecution. The
sources who are apt to be most concerned about being exposed will be
those who either have engaged in prior criminal conduct or are
committing a criminal act by disclosing the information to the
reporter. But society has little interest in providing a shield for
communications from those engaged in criminal activity. As the Supreme
Court said in Branzburg, upholding a privilege in such cases would be
to argue that it is more important to write about crime than to do
something about it. A reporter's privilege may well have the perverse
effect of being most likely to promote the types of communications that
society has the least interest in encouraging or shielding from
disclosure.
uncertainty undercuts the ability of a privilege to encourage sources
The existence of a privilege will only encourage confidential
sources to come forward if they can be relatively certain the privilege
will apply. At the time they are considering reaching out to a
reporter, sources have to be confident that the privilege will protect
them. An absolute privilege, or one that is virtually absolute, would
be the most likely to accomplish this goal. As outlined above, I
believe it is extremely unlikely that the presence or absence of a
legal privilege (as opposed to a reporter's promise of confidentiality)
plays a significant role in a source's calculations. However, if we
assume for argument's sake that the privilege can encourage otherwise
reluctant sources to come forward, then I agree with privilege
advocates that the only type of privilege likely to do this is one that
is virtually absolute. As the Supreme Court has noted, an uncertain
privilege, or one that is applied inconsistently by different courts,
is little better than no privilege at all.
The Free Flow of Information Act does not provide for an absolute
privilege. There are a number of exceptions to the privilege that apply
in certain types of cases. A source considering whether to talk to a
reporter would therefore be forced to look into the future to guess
whether a judge, some months or years down the road, might decide that
one of those exceptions applies. It's very unlikely that a source can
do this in a meaningful way. The more uncertainty and exceptions there
are in a privilege, the less likely it is to give a source any
confidence that his identity will be protected. Adding to the
uncertainty is the fact that a source can't know in advance whether any
suit seeking the source's identity will be filed in federal or state
court--and if the latter, which state. State privilege statutes and
court rulings vary widely in terms of what is protected. Accordingly,
even if the Free Flow of Information Act were to become law, the
overall state of the law on reporter's privilege would still be so
uncertain that sources could not have any confidence that a legal
privilege would ultimately shield them from exposure. In the face of
such uncertainty, otherwise reluctant sources will not be moved to
reveal what they know.
concerned sources have the option of remaining anonymous
A final factor that undercuts the assumption about sources needing
a privilege before they will come forward is the availability of
anonymous tips. It is impossible to have an anonymous communication
with your spouse, doctor, or attorney, or in other relationships
traditionally protected by an evidentiary privilege. By contrast, a
source who wants to leak information to a reporter but is worried about
being identified always has the option of making an anonymous phone
call.
Reporters presumably would argue that an anonymous tip is not as
useful or reliable as a known source, and that is probably true. But
the issue should be whether the press gets the information at all, not
whether it gets the information in what the press considers to be an
ideal form. Once information from an anonymous source is in their
hands, diligent journalists may start digging to verify the tip.
Reporters may contact other potential sources, some of whom may not
have the same hesitation about speaking out. They may conduct
additional research to attempt to verify the anonymous information
through documents, public records, and the like. Even when a
confidential source's identity is known, responsible journalists will
rarely run a story without doing some additional investigation to
attempt to corroborate the source. The same investigation may be done
even when the initial source has chosen to remain anonymous.
Any potential confidential sources who are truly ``chilled'' by the
absence of a privilege statute, therefore, can always slip their
documents over the proverbial transom. Given a choice between not
revealing the information at all and doing so anonymously, most sources
who are eager to see the information made public presumably will choose
the latter. The public interest in giving the press access to the
information is served, and the source need not worry about having her
identity revealed--at least by the reporter--because the reporter does
not know it. This alternative, which is unavailable for any of the more
traditional privileged relationships, further undercuts the argument
that a reporter's privilege is essential to encourage these particular
communications.
a federal shield law will not keep reporters out of jail
Many recent calls for a federal reporter's privilege statute have
been fueled by the jailing of former New York Times reporter Judith
Miller. Supporters maintain a federal law is necessary in order to
avoid the specter of journalists being jailed to protect their sources.
Passage of the Free Flow of Information Act will not, however,
accomplish this goal.
When reporters are jailed in privilege disputes, they are not being
punished for newsgathering or for the content of anything that they
wrote. They are being held in contempt for refusing a valid court order
to testify. In that regard, they are being treated no differently from
any other witness who asserts an unsuccessful privilege claim. For
example, if I am subpoenaed to a grand jury and believe that my
testimony would incriminate me, I have a right to assert my Fifth
Amendment privilege to remain silent. If a court disagrees with my
claim and orders me to testify, I may appeal that order. If I am
unsuccessful, however, I must comply with the court order and testify,
no matter how firmly convinced I am that the court is wrong. If I
refuse, I will be held in contempt and likely jailed until I agree to
testify. The courts are the final arbiters of the privilege question,
and the rule of law requires that their orders be obeyed.
Journalists who assert a privilege, however, frequently do not
abide by this legal process. They appear to believe that their
professional obligations require them to refuse to reveal their sources
regardless of what a court says. Even where there is a privilege,
therefore, if a court rules it does not apply in a given case, the
reporter will often refuse to obey the court's order. Doctors, lawyers,
and others in privileged relationships routinely honor judicial
decisions about whether the privilege applies; many members of the
media, however, believe they are acting nobly when they decide for
themselves what the law should require.
The Free Flow of Information Act provides for a qualified
privilege. That means there will be cases where a court rules that,
under the terms of the statute, the privilege may be overridden and a
reporter may be ordered by a court to testify. History demonstrates
that, when that happens, many reporters will refuse to comply and will
be jailed for contempt. Indeed, the Reporter's Committee for Freedom of
the Press has advised on their website that if Congress passes a
qualified privilege law, reporters who want to protect a source must
still be prepared to go to jail if a court rules that the privilege
does not apply.
Journalists rely on our legal system to protect them from
unjustified libel suits, or from those who would impose prior
restraints on the press to keep certain material from being published.
When it comes to decisions about reporter's privilege, however, many
journalists refuse to accept the judgments of that same legal system.
Reporters expect their adversaries to honor court rulings upholding the
privilege, but many will not themselves honor court rulings that go
against them. In seeking passage of the Free Flow of Information Act,
therefore, journalists are asking Congress for a new legal protection,
while at the same time preparing to defy that law themselves when they
don't agree with a judge's decision.
Supporters of the privilege have argued that the jailing of
journalists in this country is a disgrace and places us in the company
of regimes that oppress the media, such as China, Burma, or Cuba. I
believe these arguments miss the mark. In totalitarian societies,
journalists are jailed because of the content of what they write. When
journalists are jailed in the United States, it is because they are
refusing to abide by a lawful court order, entered after a full and
fair hearing and due process of law. Rather than demonstrating that the
United States is akin to a totalitarian regime, these jailings
demonstrate just the opposite: that we are a society governed by the
rule of law, and that no one gets to pick and choose for herself which
laws she will obey.
Journalists don't go to jail simply because of the lack of a
federal reporter's privilege. They go to jail in part due to a
professional culture that insists on an absolute privilege, chastises
reporters who comply with court orders to testify, and lionizes those
who defy the law as martyrs for the First Amendment. Passage of a
federal privilege law will not alleviate that problem.
particular concerns about h.r. 2102
Scope of Protection for Sources of Information
The proposed legislation provides extremely broad protection for
sources. Under Section 2(a)(3), a reporter may be compelled to identify
a source only: 1) when necessary to prevent imminent and actual harm to
national security; 2) when necessary to prevent imminent death or
significant bodily harm; or 3) when necessary to identify a person who
has illegally disclosed: a) a trade secret, b) individually
identifiable health information, or c) nonpublic personal information.
Unless a case falls into one of these categories, the protection for
the identity of sources is absolute. There is no requirement that
confidentiality was requested by the source or promised by the
journalist; presumably a reporter could refuse to identify a source
even if the source had expressed no desire to remain anonymous.
This protection for sources is much broader than that provided for
in the Department of Justice guidelines for subpoenaing members of the
media. Under those guidelines, the ability to obtain a subpoena for
information from a reporter, including confidential source information,
is not limited to particular categories of cases. A subpoena may be
sought in any type of case, provided the need for the information is
sufficiently compelling, other avenues for obtaining the information
have been exhausted, and other requirements of the guidelines have been
satisfied.
In my view, the proposed legislation's sweeping protection for
source identities is unwise. For example, assume a heinous crime has
been committed, such as a mass murder, the bombing of a public
building, or a child abduction and rape. The Department of Justice
learns that a reporter has spoken with a confidential source who either
participated in the crime or has critical information about it. All
other attempts to obtain that information have been unsuccessful. Under
this legislation, assuming that the death or significant bodily harm
has already happened and no new injury is imminent, the reporter could
not be compelled to reveal that source--even if that means the
criminals are never brought to justice. This would be true no matter
how serious the crime or how severe the harm that resulted.
There is a special concern when the leak to a reporter is itself a
crime. For example, suppose a source illegally provides classified
information to a reporter. Suppose further that as a result of the
reporter's story based on that information, significant harm results;
perhaps troops are killed or a covert investigation of terrorist
activity is compromised. Assuming that the harm to national security
has already taken place and no further harm is imminent, under this
legislation the reporter could not be compelled to identify the
lawbreaker.
In a case where the leak to a reporter is itself a crime, there
often will be only two witnesses: the reporter and the source. Even if
the source's identity is suspected, he or she will have a Fifth
Amendment privilege not to testify. That leaves the reporter as the
only witness to the crime--and under this legislation, the reporter
usually could not be compelled to testify. This would effectively grant
immunity from prosecution to many who leak classified information, no
matter how grave the resulting harm, provided they are careful to leak
it only to a journalist (which, as discussed below, under this statute
could be virtually anyone with an Internet connection). As a result,
this legislation may well have the undesired effect of increasing
illegal leaks of classified information or other illegal communications
with reporters, by assuring potential leakers that the reporter will
not be forced to identify them. A privilege should not shield and
encourage conduct that has already been determined to be unlawful.
The response to this argument is often, ``What about the next
Pentagon Papers case?'' It is true that the most difficult cases are
those where it seems that an illegal leak of classified information
ended up serving the larger public good. At the same time, presumably
all agree that, in the interest of national security, the government
must be able to keep at least some secrets. As a matter of policy, it
makes no sense to criminalize the disclosure of classified information
and then, in a different statute, effectively to immunize those who
disclose such information to the media. Part of the solution may lie in
a re-examination of what materials actually deserve to be classified.
It may be, though, that those who wish to leak such material in the
name of the public interest must be willing to run the risk of exposure
and prosecution, trusting that public opinion will support them and
history will judge them kindly. Alternatively, those wishing to leak
such material may do so anonymously, avoiding the risk that they will
be identified by the reporter (although not, as detailed above,
avoiding the more substantial risk that they will be exposed in some
other way).
The list of exceptions to the privilege provided in the proposed
legislation is also open to question. Why, for example, would we allow
the privilege to be overcome and a confidential source to be discovered
in a civil suit concerning trade secrets or private health information,
but not in a criminal investigation of a large-scale terrorist attack?
Surely the public interest in obtaining the information is far greater
in the latter case than in the former. Crime victims and the general
public will be hard-pressed to understand why the privilege is
allegedly so important that we must allow criminals to walk free to
preserve it if necessary, and yet that same privilege can be breached
in order to protect a corporation's trade secrets.
If a federal shield law is to be enacted, it would be more
appropriate to track the Department of Justice guidelines so that, in
any type of case in which a court finds that the need is sufficiently
compelling, the privilege may be overridden, even where the identity of
a confidential source is involved. A judge should have the power to
determine in any given case whether the overall public interest weighs
in favor of the privilege or in favor of disclosure.
Who May Invoke the Privilege
One of the most difficult challenges in crafting a federal
reporter's privilege in the age of the Internet is deciding to whom the
privilege should apply. Even more than thirty years ago in Branzburg,
the Supreme Court observed that trying to define who was a ``newsman''
deserving of the privilege would be extremely problematic. In the
simpler Branzburg era of daily newspapers and three television
networks, determining the proper scope of a privilege was challenging
enough; in the age of the Internet, satellite communications, and cable
television, that question is exponentially more complicated.
With other evidentiary privileges, it is generally not difficult to
determine whether the person involved in the communication is a member
of the class the privilege is designed to protect. Lawyers, doctors,
and social workers all have certain educational and licensing
requirements, and are monitored by professional associations to ensure
their credentials; whether or not someone is a witness's spouse
likewise is usually easy to determine. Anyone, however, can call
himself a journalist. There are no particular educational requirements,
and no licensing regulations. I may set up a blog on my home computer,
or use desktop publishing to create my own local newspaper, and claim
the First Amendment's protection as legitimately as the Washington
Post.
The traditional approach to limiting the scope of the reporter's
privilege has been to focus on the format of the journalism in
question. Many state statutes specify the types of media that qualify
for the privilege; for example, limiting its application to those who
work for newspapers, magazines, television, or other periodical
publications. This approach may have made sense when most of the
statutes were drafted, before the rise of the Internet and modern
communications. Today, though, any statute that sought to limit its
application only to certain forms of the media would be
constitutionally suspect. The legislative creation of a favored class
of journalists entitled to a legal benefit would be incompatible with
First Amendment values. What's more, a statute that included, for
example, newspapers and television but excluded Internet bloggers,
would be difficult to justify. If the purpose of the privilege is to
increase the flow of information to the public, on what rational basis
could the law grant the privilege to a reporter for a small local
newspaper with a few hundred readers but deny the privilege to the
proprietor of a political blog read by hundreds of thousands of people
each day?
H.R. 2102 avoids this dilemma by adopting a functional approach to
defining who qualifies as a journalist. The bill provides that the
privilege may be invoked by anyone ``engaged in journalism,'' which is
defined to mean ``the gathering, preparing, collecting, photographing,
recording, writing, editing, reporting, or publishing of news or
information that concerns local, national, or international events or
other matters of public interest for dissemination to the public.''
Sec. 4(5). There is no requirement that a person be earning their
livelihood as a journalist or be employed by or contracted to a media
company. There is also no requirement that the information be
disseminated through a particular format, such as a newspaper or
television station. This definition effectively avoids discriminating
among different types of media and journalists, and would appear to
apply equally to an individual pajama-clad blogger and a reporter for
the New York Times.
But although this broad definition of a journalist avoids one
dilemma, it creates another: the scope of such a privilege in the
Internet age is breathtaking. The essence of journalism is, as the bill
recognizes, the gathering and transmission of information to the
public. When Branzburg was decided, this usually required at least some
capital investment or material not readily accessible to the general
public: a printing press, a book contract, or a job with a newspaper or
television station. Now, however, all it requires is a computer and an
Internet connection, which may be obtained for free at the public
library. In the Internet age, anyone can be a journalist. A citizen can
gather information, post it on the Internet, and thereby disseminate it
to hundreds of millions around the world. If, for example, someone
takes a video of a public event with his cell phone and posts it on his
MySpace page, there is no apparent reason he could not claim the
protections of this statute. Millions of people who share information
on-line could potentially invoke this privilege if for any reason they
did not want to testify or turn over evidence in their possession. This
will result in an enormous amount of information potentially being
excluded from the justice system, and an enormous amount of additional
litigation over the privilege.
The statute will also invite litigation over what constitutes
``news'' or ``matters of public interest,'' as parties challenging the
privilege try to narrow its terms. This will necessarily place courts
in the position of making judgments about the importance to the public
of particular reporting, based on its content. This also is
incompatible with First Amendment values, under which the worth of
particular information is to be evaluated by the public in the free
marketplace of ideas, not by judicial referees.
The reality is that technology may have outstripped the law to such
a degree that the entire notion of a journalist's privilege today is no
longer workable. A narrow privilege that applied only to certain media
formats would likely be unconstitutional, but a broader privilege such
as that proposed in H.R. 2102 is far too sweeping to be acceptable.
Technology has transformed journalism and has eroded the traditional
lines between the institutional press and the overall public
marketplace of ideas. As those lines break down, so does the rationale
for special legal protections for the press not enjoyed by the millions
of other contributors to the information age.
the balco case
I would like to conclude by discussing one of the most significant
recent disputes concerning the reporter's privilege, the Bay Area
Laboratory Co-Operative (BALCO) steroids case. In that case, two San
Francisco Chronicle reporters were held in contempt by a federal judge
and were facing jail for refusing to identify a confidential source for
some of their BALCO reporting. As their case was about to be argued in
the U.S. Court of Appeals for the 9th Circuit, their source, defense
lawyer Troy Ellerman, was identified by other means. On Feb. 15, 2007,
Ellerman pleaded guilty to obstruction of justice and related charges.
As a result, prosecutors withdrew their subpoenas of the reporters.
The BALCO case is frequently cited as evidence that the federal
reporter's privilege is needed. The BALCO reporters themselves have
been advocates for the federal privilege law. Far from demonstrating
the need for the privilege, however, BALCO highlights the damage to the
justice system that can occur when a sweeping claim of reporter's
privilege is abused by journalists. I submit that the BALCO saga does
not demonstrate that enacting a federal reporter's privilege would be
good public policy; in fact, it suggests just the opposite.
In 2002, a federal grand jury in San Francisco began investigating
allegations that BALCO employees had illegally supplied anabolic
steroids and other performance-enhancing drugs to a number of
professional athletes. On Feb. 12, 2004, the grand jury indicted the
head of BALCO, Victor Conte, and three other defendants for illegal
distribution of steroids and other offenses. Troy Ellerman represented
one of the defendants.
The Chronicle reporters, Mark Fainaru-Wada and Lance Williams, had
been reporting on the BALCO investigation for some time and had written
dozens of articles about it. In June and December of 2004, however,
they wrote articles that included verbatim excerpts from the
confidential grand jury testimony of several star athletes, including
sprinter Tim Montgomery and Major League Baseball sluggers Barry Bonds
and Jason Giambi. It was clear from the articles that the reporters had
been given unlawful access to grand jury material that was subject to a
federal judge's protective order.
After the first articles appeared, all parties and lawyers involved
in the case--including Ellerman--filed sworn declarations with the
court denying responsibility for the leaks. In October 2004, the
defense lawyers--again including Ellerman--filed a motion accusing the
government of leaking grand jury material to the press. They claimed
that the resulting publicity had made it impossible for their clients
to obtain a fair trial, and they argued that the court should dismiss
the indictment based on this ``outrageous government misconduct.'' The
court ultimately denied their motion, and the BALCO defendants later
pleaded guilty to various charges.
The BALCO judge asked the Justice Department to investigate the
illegal leaks. During that investigation, the reporters refused to
testify before the grand jury, citing their obligation to protect the
identity of their confidential source. The judge ruled that there was
no privilege and ordered the reporters to testify. When they refused,
the judge held them in contempt. They were prepared to go to jail
rather than comply with the court's order, until Ellerman's guilty plea
made that unnecessary.
It's now clear exactly what the Chronicle reporters were
protecting. Ellerman admitted during his guilty plea that he had
illegally allowed Fainaru-Wada to review copies of the grand jury
testimony on two occasions. Ellerman thus leaked the grand jury
information to the media himself, denied doing so in a sworn statement
to the judge, and then tried to get his client's criminal case
dismissed by pointing to the resulting newspaper articles and blaming
the government for the leaks. This is the scheme that ultimately
resulted in Ellerman's guilty plea to obstruction of justice and
related charges.
The Chronicle reporters knew that Ellerman had committed a fraud on
the court, and that he had used their own reporting as a means to
execute that fraud. They did not come forward to expose this criminal
use of their work; in fact, they continued to deal with Ellerman as he
committed additional crimes. After Ellerman had lied to the judge and
filed his motion falsely accusing the government of the leaks, Fainaru-
Wada met with him again, reviewed more grand jury transcripts, and
published more articles with Williams disclosing additional grand jury
information.
Fainaru-Wada and Williams also wrote a successful book about the
BALCO scandal. They accepted prestigious journalism awards for their
reporting, and were generally seen as heroes by many in the journalism
community for their refusal to testify.
Now that the facts have come to light, the reporters no longer look
so noble. Their source was not some selfless whistle-blower intent on
informing the public about the evils of steroids, but a defense lawyer
who manipulated the media and committed perjury in an unlawful attempt
to thwart his client's criminal prosecution. For their part, the
reporters went to great lengths to prevent Ellerman from being brought
to justice, while profiting from his crimes and portraying themselves
as victims.
Supporters argue that the Chronicle reporters were only protecting
the public's right to know. They claim that because the steroids
scandal was such an important story, it was appropriate for the
reporters to encourage Ellerman to break the law and then help to
conceal his crimes. This ``ends justify the means'' argument is more
than a little self-serving. If a reporter hired a burglar to break into
a private residence, or set up an illegal wiretap, we would not excuse
that conduct on the grounds that it resulted in an important story.
Why, then, would we laud reporters who encouraged and then shielded a
criminal who used their work to defraud the criminal justice system?
The public generally does not have a ``right to know'' what happens
inside a grand jury. That is the whole point of grand jury secrecy,
which exists for a number of good reasons, including protecting the
rights of criminal suspects. Grand jury witnesses are assured that
their testimony will be confidential, which allows them to feel
comfortable being completely forthcoming. If grand jury witnesses see
that their testimony may in fact be splashed on the front pages of the
newspaper, they may be much more likely not to reveal what they know
about a criminal matter. The irony of a case like BALCO is that in the
next investigation involving high-profile witnesses, those witnesses
may be much more likely to lie in the grand jury or conceal information
relevant to the criminal investigation, out of fear that their
testimony may be leaked to the media. We can't consider the public good
that may have resulted from exposure of the steroids scandal without
also considering the harm that may have been done to future cases and
investigations by this very public breach of grand jury secrecy.
Publishing grand jury information was not in fact necessary in
order to inform the public about steroid use and BALCO. Williams and
Fainaru-Wada wrote more than 100 articles about BALCO that did not
contain illegally leaked grand jury material. The public was already
receiving a wealth of information from these articles, the ongoing
criminal case, and other sources. Even the particular details about
big-name athletes using steroids almost certainly would have come to
light eventually. Information that explosive does not stay buried
forever. There were (and are) multiple investigations, hearings, civil
suits, and criminal proceedings exploring the facts related to BALCO.
The lead defendant, Victor Conte, even began giving television
interviews about his conduct.
Working with Ellerman and concealing his criminal scheme was not
essential to the public's ultimate right to know. It did, however,
allow the Chronicle reporters to get the ``scoop'' by reporting certain
information first, and to obtain exclusive material and greater
publicity for their book. All of this advanced their careers
considerably. It appears that the reporters' desire to be out front on
this story and their zeal to protect their source at any cost led them
to close their eyes to Ellerman's crimes and to the significant harm
caused by their own actions.
Some sources don't deserve to be protected. At some point,
reporters have an obligation to refuse to shield those who manipulate
the media for their own improper or illegal ends. In my view, the
actions of the reporters in the BALCO case were deplorable, not heroic.
Under H.R. 2102, the reporters would have been free to remain silent
even if Ellerman's scheme to obstruct justice had succeeded and the
criminal case against the BALCO defendants had been dismissed. Federal
law should not provide a cover for such behavior.
Mr. Conyers. And thank you for your presentation.
Jim Taricani, award-winning investigative reporter from
Providence, RI, with a career in the print media, radio,
television, and who has written and taught extensively.
We are delighted that you are our final witness for the
morning.
TESTIMONY OF JIM TARICANI, INVESTIGATIVE REPORTER, WJAR/NBC10
PROVIDENCE, NEW BEDFORD, RI
Mr. Taricani. Thank you, Mr. Chairman, and thank you,
Members of the Committee, for inviting me here to testify.
My testimony today is that of a working reporter and, like
my written statement, it is based on my memory and not a review
of the official court record. Because of that and because I am
not a lawyer, I would refer you to the court record for details
of the proceeding in which I was involved.
Despite my own experience, nothing I say here today should
be considered disrespect for our Federal judiciary.
In February of 2001, when my station was owned and operated
by NBC News--it is now owned by Media General, Inc.--I heard a
videotape made by the FBI. The tape showed an FBI informant
bribing then Providence Mayor Vincent ``Buddy'' Cianci's right-
hand man with a $1,000 cash bribe to get a city contract.
While the videotape had been put under court seal, the
sealing order did not pertain to the press or the public. I had
obtained the tape from a confidential source. This tape showed
the most vivid example of public corruption I had seen in my
three decades as a reporter.
The trial justice in this case prior to trial told the
press that even after he introduced his evidence, these tapes
would still not be made public. So my station, along with NBC
News, decided to air the tape. A special prosecutor was
appointed by the Federal judge overseeing the case, code named
Operation Plunder Dome, to find out who gave me the tape. I
refused to disclose my confidential source to the special
prosecutor and was found, first, in civil contempt of court and
fined a total of $83,000.
Eventually, I was found guilty of criminal contempt of
court. On December 9, 2004, U.S. District Court Judge Earnest
Torres, in Providence, Rhode Island, sentenced me to 6 months
home confinement, even though my source came forward 5 days
before my sentencing.
The judge said he would have sent me to prison, but he took
into account the fact that I am a heart transplant recipient
and out of concern for my health, he sent me home wearing an
ankle bracelet.
I was ordered to disconnect my internet. I was confined to
the inside of my house. I was not allowed to talk to the press.
I was not allowed to do any work the court considered
professional. I was subjected to drug tests every week.
In other words, I was treated as a common criminal, all for
airing a story of great importance to the public.
Sending journalists to prison might be the remedies courts
use in Russia or China, but here in America? Sending
journalists to prison, in my opinion, flies in the face of the
freedom of press clause in the first amendment.
I am just one of several reporters in recent years that
have been sent to prison or threatened with subpoenas for
refusing to disclose a confidential source.
I feel, along with many of my fellow journalists, that we
need shield laws both in the State and Federal levels in order
to do our job the way the founding fathers would have wanted us
to do our job. We in the press are supposed to be the watchdogs
over our Government, yet we are being forced to be de facto
investigators every time we are ordered to reveal a
confidential source that was used for a story that allowed the
public to be better informed.
We are supposed to have a free press in this country. The
first amendment should give us the protection we need to pick
our sources. The Federal court interpretations have left
journalists out in the cold.
Every time a reporter or news organization doesn't do a
story because of fear of being held in criminal contempt, it is
the public that loses.
Despite claims by those who oppose a Federal shield law, I
have personal knowledge of news organizations that are
withholding publishing or broadcasting stories of public
importance because they fear costly fines or, worse, seeing
their reporters to go to prison.
Sending reporters to prison for protecting their sources
results in a chilling effect on the press.
I spent 121 days in home confinement and, as you know, Judy
Miller, formerly of the New York Times, spent the same amount
of time in jail over the Scooter Libby case.
Two reporters from the San Francisco Chronicle are facing
18 months in jail for exposing the baseball steroid scandal.
Some 33 States have some form of shield law for reporters. On
behalf of my fellow journalists, it would be wonderful and
pleased to have Congress pass the proposed ``Free Flow of
Information Act of 2007.'' If you do, it will help journalists
do their jobs without fear of prison or outrageous fines.
The press has a vital role to play in our democracy. If
Congress passes the shield law, it will go far in preserving
that role and will help keep the public informed on their
Government.
Thank you.
[The prepared statement of Mr. Taricani follows:]
Prepared Statement of James Taricani
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Mr. Conyers. Thank you so much, all of you.
The honorable William Safire, we don't get this opportunity
to talk much in public. Synthesize for us, if you will. You
have heard us up here. You have heard a lot of discussion here.
What is your feeling about the prospects and the significance
of this kind of a measure that we are examining today?
Mr. Safire. Well, the prospects you would know better than
me. The significance, I think I can best express it by----
Mr. Conyers. Pull the mike a little closer, sir.
Mr. Safire. Let me give you, what we do in journalism, a
specific in answer to that.
I visited Judy Miller in jail a few times. It was not a
walk in the park. It was a real Federal prison. She slept on a
two-inch mattress. She was losing weight. She looked, in her
own words, terrible, and she was suffering. Eighty-five days is
a long time.
At that point, I had, in the very beginning, criticized the
prosecutor, who had no guidelines to follow. As you know, the
Department of Justice has these guidelines, created, curiously
enough, by John Mitchell. He did not promulgate them. He felt a
little guilty about what was going on with subpoenas and
wiretaps, and so he drafted it and Elliot Richardson, after
Mitchell went to jail, put them into effect.
But they are meaningless, because whenever a criticism
arises or a fear of criticism arises in an Attorney General, he
simply appoints a special counsel, who is not affected by these
guidelines.
And so what happened was I, at the very beginning, in the
New York Times, denounced the idea of a runaway prosecutor.
That is what columnists do. It was a legitimate thing. I took a
pop at him, because, frankly, I read the law and saw there was
no possibility of prosecution under that act, because there was
no intention to harm the United States.
Plus, as we later learned, the Department of Justice
already knew who the leaker was. The Under Secretary of State
had come forward and told them.
So it was a process crime. It was a crime committed by the
result of the investigation.
So here I am visiting my colleague in prison and I wanted
to give them a real zap. But I was chilled. And what chilled
me? The prospect of the prosecutor getting angry. And under the
law, he had the right then to go not just keep her in jail for
the length of the grand jury, but to take the next step and
cite her for criminal contempt and keep her in jail for years.
And so what effect did that have on a supposedly gutsy
columnist? Am I going to take this hostage and endanger her
more or am I going to shut up? And I elected to shut up. And am
I ashamed of myself for that? No, but I would hate to see other
reporters and columnists subjected to that chill and that
shouldn't be happening in America.
That is happening now. The Justice Department can say,
``Gee, there are very few cases.'' We have just seen an example
of somebody incarcerated at home and although these are
individual cases, we live with individual cases and these
cases, I think, militate toward dealing with this terrible
trend and that is what responsibility this Committee carries.
Mr. Conyers. Thank you so much.
Lamar Smith?
Mr. Smith. Thank you, Mr. Chairman.
Ms. Brand, you mentioned three flaws that the Department of
Justice sees in this legislation. How, generally, would you
correct them and how briefly would you correct them?
Ms. Brand. Well, as I said in my testimony, we don't think
a case has been made for any legislation in this area. So I
don't want to give you the wrong impression. There may be ways
to fix some of the language here, but I am not sure that
would--in fact, I know it wouldn't entirely eliminate our
concerns with the bill.
But one of the specific objections that we had was the--and
we appreciate the effort to put a national security exception
in the bill, but the exception is no narrowly tailored that it
would really only apply in cases where prospective harm was
going to be averted and only where the prospective harm could
be shown to be imminent. As Mr. Safire noted, imminence is a
fairly high standard to meet. It is not that it is going to
happen soon, it is going to happen right away.
So in the case of a leak of classified national security
information that already had resulted in death or had resulted
in other obvious harm to the national security, this exception
wouldn't apply.
So if there were a case where, having exhausted all other
means of determining who the leaker was, the only way to do it
was talk to the reporter, we wouldn't be able to issue a
subpoena in that type of case, That is one of our significant
concerns.
Mr. Smith. Thank you.
Mr. Eliason and Mr. Levine, if someone were to illegally
leak employee records, other than perhaps medical records,
would their identity be protected under this legislation?
Mr. Levine?
Mr. Levine. I have a little difficulty with the question,
Congressman, because it is unclear what law we would be talking
about being violated here.
Mr. Smith. It would be various privacy laws on leaking
information about employees, personal information.
Mr. Levine. I am unaware of Federal legislation, other than
the legislation that is specifically identified in the statute
now as an exception, Federal law, that would provide a
safeguard for private employee information.
There are various State statutes that provide protection in
those circumstances. And I think it is very important to
emphasize and for the Committee to understand that this bill
only provides a reporter's privilege in cases arising under
Federal law.
So if someone was prosecuted in a State court or there was
a civil litigation in a State court involving the situation
that you have just posited, the reporter could not come in and
raise this shield law as a protection to prevent him from
testifying.
Mr. Smith. More generally, do you or Mr. Eliason see any
areas of confidentiality that are not protected by this
legislation that you feel should be protected by this
legislation?
Mr. Eliason?
Mr. Eliason. I am sorry, Congressman. Confidentiality in
terms of information related to the reporter or confidentiality
in terms of personal privacy?
Mr. Smith. In terms of personal privacy.
Mr. Eliason. I am sorry. I am not sure I understand what
you are asking me, Congressman.
Mr. Smith. What I was trying to get at was, should this
legislation be modified in any as far as making sure that
confidentiality is protected in ways that are not already
covered by the legislation?
Mr. Eliason. I think when it comes to the disclosure of
information or, frankly, any kind of disclosure, if there is
going to be a bill, it seems to me it is more appropriate to
have one that actually more closely follows the Department of
Justice guidelines that allow the court, not depending on a
certain kind of case or not only when we have a certain kind of
information leaked or not that we apply it, but allow the court
to look at any kind of case and balance the interests and
decide whether or not the privilege should be upheld.
So it seems to me when you start carving out exceptions,
that that becomes more problematic. So for the reasons I have
said, I don't believe there is need for a bill at all. But if
there were going to be one, I think it would be more
appropriate to more closely follow the Department of Justice
guidelines.
Mr. Smith. It sounds to me like both you and Ms. Brand are
saying the same thing. It is hard to make the modifications
necessary in this bill to craft a bill that you all would
support, even though you have suggestions as to how we might
improve it. Is that a fair statement?
Mr. Eliason. I think that is a fair statement, yes.
Ms. Brand. I would add that we are, obviously, always happy
to look at any language that you have. I wouldn't totally
preclude the idea that there might be some acceptable language,
but we would, obviously, have to see it first.
Mr. Smith. Thank you, Mr. Chairman.
Mr. Conyers. The Chairman of the Courts and Intellectual
Property Subcommittee, Howard Berman.
Mr. Berman. Thank you, Mr. Chairman.
Ms. Brand, is Mr. Safire correct that a special prosecutor
is not bound by the guidelines of the Justice Department on
this issue?
Ms. Brand. Well, the Department's guideline require the
personal approval of the Attorney General for the issuance of a
contested subpoena and in a case where the Attorney General is
recused from the investigation, he would not be able to provide
that approval.
So I think that is what takes a case involving a special
prosecutor outside of the regular Department of Justice
process.
Mr. Berman. Is he bound by the standards of the guidelines
in terms of weighing and balancing?
Ms. Brand. I am not sure what the legal answer to your
question is. I can tell you that just based on what I have seen
publicly, Pat Fitzgerald said that he considered himself bound
by them and that the judge in the District of D.C. found that
he had complied with them. But I would have to go back and get
you a legal answer to your question.
Mr. Berman. I guess perhaps to Mr. Levine, on the national
security issue, I want to make sure I understand what, on the
surface, seems like a very simple phrase, to prevent imminent
and actual harm.
This is not that use of ``and'' that says imminent or
actual harm, right? It is both. The harm has to be quite real
and it has to come almost immediately. Is that the right
interpretation?
Mr. Levine. I would concur in Mr. Safire's definition of
imminent, meaning that it has to be both actual and something
that is going to----
Mr. Berman. It is the word ``actual'' here. Actual means it
is not an incidental harm, it is a real harm or it is a harm
that already happened?
Mr. Levine. It is looking prospectively. It is not looking
in the past. But I think it is important to emphasize that in
determining whether or not a source of information to a
reporter is necessary to prevent imminent future harm, the
history of what has happened, that is, if there has been past
harm, will certainly be a relevant consideration in making that
determination.
Mr. Berman. In terms of actual harm.
Mr. Levine. And the imminence of it.
Mr. Berman. Well, does it? I guess that is my question.
A story comes up that causes one to reasonably conclude
that involved real harm, perhaps including death and injury to
people as a result of it coming out, the belief is that only
someone with access to extremely sensitive, classified, secret
information could have been the source of that. And the
prosecutor now and the investigative agencies think the person
who could have done that could do something else. And in order
to prevent that something else from happening, not to punish
him for what he did, but to prevent it from happening again, we
want to find out who that source is.
How does imminent fit in that context?
Mr. Levine. I think the argument, as you have articulated
it, is exactly the argument that the prosecutor or the Justice
Department in that case would make to the court and would make
the case that because this person has leaked in the past,
because this person, based on the information we have, likely
has access to information that----
Mr. Berman. But the most he can say is it may never happen,
it may happen sometime in the future, or it might happen
imminently. I have no idea whether it is going to happen
imminently. It is the potential that it could happen and happen
imminently that I want you to come down on the side of forcing
that reporter to disclose.
Mr. Levine. I think it is fair to say that the language
here is designed to track the language in several Supreme Court
decisions that talk about the circumstances in which the
publication of information relating to the national security or
threatening other kinds of harm can be prescribed in some way.
And those cases require an imminence in the sense that
there needs to be not just conjecture and not just hypothesis,
but a real reason to believe that something is about to happen
or could reasonably be presumed to happen.
And I would also add that even in the cases that the
Justice Department cotes in its written testimony, I am
thinking specifically of the Morrison case in the Fourth
Circuit, courts emphasize how much deference they pay to the
Government in matters of national security.
A judge getting a plea from the United States that there is
about to be serious and imminent harm to the national security
is not easily going to say, ``I disagree, and we are not going
to allow you to compel the disclosure of this source.'' Courts
defer on national security issues within the realm of reason.
What this legislation does is, in that area, I think,
provide a very mild check on the unilateral ability of the
Department of Justice to make that determination on its own.
And if I could just take 1 more second and respond to your
question to Ms. Brand. In the Valerie Plame investigation, all
of the journalists who were subpoenaed, including Ms. Miller,
made arguments to the court that Mr. Fitzgerald needed to be
bound by the Justice Department guidelines and that the court
needed to review whether or not he had, in fact, complied with
the guidelines. And the courts unanimously held that special
counsel and special prosecutors are not bound by the
guidelines.
Mr. Conyers. Thank you very much.
The distinguished gentleman from North Carolina, Howard
Coble.
Mr. Coble. Thank you, Mr. Chairman. You are giving me 5
minutes this time, right, Mr. Chairman?
Mr. Conyers. You get 5 this time.
Mr. Coble. I probably won't use 5.
Good to have you all with us, folks.
Ms. Brand, can reporters use information from the
confidential source without fear of being prosecuted for
failure to disclose the source's identity?
Ms. Brand. Are you asking whether the reporter can be
prosecuted for publishing the information or for refusing to--
--
Mr. Coble. Well, for using the information he or she
received and then failing subsequent to identify the source.
Ms. Brand. Well, I think those are two different questions.
The first question is whether, if you are talking about
classified information, for example, publishing that
information could subject a reporter to prosecution. That is
theoretically possible under the espionage laws.
Mr. Coble. You said classified. I said confidential, not
necessarily the same.
Ms. Brand. Well, then that would depend. In a non-
classified setting, no, they could not. As for the question
about whether they could be prosecuted for failure to disclose
a source, the only thing I can think of is if they were in
criminal contempt of court, but that would be further down the
line.
Mr. Coble. Well, that is a vague answer, but maybe that is
my fault in not--Mr. Safire, do you want to weigh in on----
Ms. Brand. I may not have answered your question either.
Mr. Coble. I see your body language telling me you may want
to weigh in.
Mr. Safire. My body language just came from an itch.
[Laughter.]
Mr. Coble. Mr. Levine, you will recall I listed some
exceptions in my opening statement. Do you believe these
exceptions will strengthen the reporter's privilege?
Mr. Safire. There is no question in my mind, Congressman.
Mr. Coble. That it will.
Mr. Safire. That it will.
Mr. Coble. I concur with that. That was a rhetorical
question, and I thought that was the answer.
Mr. Levine. Happy to oblige.
Mr. Coble. All right. Thank you, sir.
Mr. Safire, let me come back to you. How does access to
information impact what stories are covered by the media and is
it your belief that this bill will necessarily increase
reporters' access to information?
Mr. Safire. I think it will definitely help reporters who
are digging in investigative work in doing their job, no doubt
about it.
When you talk about access to information, information is
all over the place. It comes in in handouts. We get calls from
everybody, and too many of us just react to that and cover what
is accessible and easy.
But what distinguishes a journalist is going beyond what is
accessible, readily accessible, and reaching out and getting
the confidential sources.
Now, I don't want to take up your whole 5 minutes, but
there is a process, a mysterious process that goes on between
sources and reporters. If you are in this business for a long
time, you develop these sources.
I used to go to the golden place for sources, which was at
RFK Stadium, the Vince Lombardi room, where senators and
congressmen and reporters and CIA operatives would all gather
before a ballgame or at halftime. And over the years, there
developed a certain not just camaraderie but trust, mutual
trust, and we could call each other and bump into each other.
These were not anonymous sources. These were people that
you trusted, and that is what goes on in this city, and it goes
on in every American city. So the access is based on mutual
trust, and that is what this bill will support.
Mr. Coble. Thank you, Mr. Safire.
Mr. Taricani, I had a similar question to you, and I
suspect you would concur with what Mr. Safire said, would you
not?
Mr. Taricani. Sure, absolutely. I have talked to people who
are very aware of all the ongoing highly publicized cases of
reporters being found in contempt or being sent to jail and
some of these people who could provide information are not.
They are very leery about what might happen, what they might
get tangled up with. So, sure, this bill would go a long way in
allaying those fears.
Mr. Coble. I thank you, sir.
And before the Chairman drops the hook on me, I am going to
yield back my time before that red light illuminates.
Mr. Conyers. I was going to give you 6 minutes.
Mr. Coble. Now you tell me, Mr. Chairman.
Mr. Conyers. The author of this bill, Rick Boucher?
Mr. Boucher. Thank you very much, Mr. Chairman.
Mr. Levine, you mentioned in your testimony that there has
been a cascade of subpoenas to reporters to reveal their
confidential sources during the course of this decade, and you
compared that to the previous quarter of a century, when there
were a few, if any.
Can you quantify how many there have been in the last 7
years?
Mr. Levine. In the past 7 years, I don't know that I can
give you a precise number. I can tell you that, especially when
you are talking about confidential sources, we used to talk
about--in my written testimony, I think I have the numbers of
reported decisions involving confidential sources for the
period of years before 2001, and I forget the exact number of
years, but there were two reported decisions involving
confidential sources issued by Federal courts.
Since 2001, we have not only had several reporters sent to
jail by Federal courts, we have had at least a dozen held in
contempt. We have had at least two dozen that are currently the
subject of subpoenas or have recently been the subject of
subpoenas involving confidential sources specifically.
And search your own memories. This is in stark contrast to
what happened in the period following Branzburg v. Hayes and up
until starting with the 2001 incarceration of Vanessa Leggett.
Mr. Boucher. So you are talking about numbers in the mid
30's over the last 6 years or so, as compared to only two, I
think you mentioned, in the quarter-century or so prior to
that.
Mr. Levine. I hesitate to quote an exact number, because it
is very hard to get data on this. The Reporters Committee for
Freedom of the Press did a FOIA request to the Department of
Justice and got some data only with respect to subpoenas issued
by the Criminal Division in proceedings in which the Department
of Justice was a party. I believe I cite those in my written
testimony.
Mr. Boucher. That is good enough for now. Thank you. We
will make a further inquiry in order to refine that
information, to some extent.
Mr. Safire, let me ask you to talk a little bit about how
the flow of information really is chilled in the absence of
this kind of statutory protection. I think in your opening
statement, you recited an instance in which you yourself felt
chilled in the willingness to pursue a series of questions.
But let's talk about it from the other perspective. What
about the source? Is the source chilled in the absence of a
statute that assures that the reporter cannot be held in
contempt and placed in jail until that reporter is willing to
reveal a source?
Mr. Safire. I think, definitely, yes. The idea that it is
easy for a source to simply send in anonymous document and
expect any results from it is unrealistic. No good reporter
will take a tip or a document from an anonymous source that he
can't get back to and ask questions of and check out. That is
the whole idea of reporting, is to see if you can trust our
source.
Now, there are times you can trust a source and times when
you can't. Let me give you an example. Bill Casey was an old
friend of mine. I handled his congressional campaign back in
the 1970's and worked with him in the Nixon administration when
he was running the SEC, and he was a good source over the
years.
When he became the director of CIA, I could call him and
get some good inside information, and I trusted him. Then I got
a tip from the FBI saying, ``Hey, you know, your friend Casey,
he has been meeting with Bob Woodward late at night, often.
Just thought you would like to know.''
Well, here is a competitor. So I said to Bill, ``Look, I
don't care if you are talking to Woodward, he is a good
reporter, but shouldn't you be talking to me, as well?'' And he
said, ``It is not true. I am not talking to Woodward.''
So he lied in his teeth. That put a little note in my head
saying, ``Watch out. Bill's trust with you is changing.'' And
then during the Iran-Contra business, he called me with a story
that I felt was wrong, and I countered him on it, and he blew
up at me. And later on, it turned out that he indeed was trying
to sell me something that wasn't so, and it had to do, I think,
with his brain tumor at the time. There was a physical reason
for this change.
But what I am trying to get at here is the trust that is
generated between reporter and source changes necessarily. You
don't trust anybody implicitly, and that person doesn't trust
you implicitly.
Now, what does this latest trend, which the Justice
Department denies is a trend but it is a trend, what does that
do to the source? Is he more likely or less likely to trust a
reporter's confidence?
And I think it is demonstrable that the leaks, the
whistleblowings are drying up. People are more cautious about
talking to reporters and there has been testimony in Congress
about that very thing.
Mr. Boucher. Thank you, Mr. Safire. That is very helpful.
Thank you, Mr. Chairman.
Mr. Conyers. Mr. Ric Keller, the gentleman from Florida?
Mr. Keller. Thank you, Mr. Chairman.
I want to appreciate my colleague, Mike Pence, for working
on this issue for many years and, also, Mr. Boucher for their
great work in trying to move this forward.
Overall, I believe it is a very important and positive
thing for our free press to have access to off-the-record
confidential sources to get to the truth. On the other hand, I
think this bill should be modified to make sure that a
newspaper cannot defame the heck out of a public figure with a
false controversial story without having to reveal their
sources.
Let me give you a simple example. Imagine there is a
conservative family-value Congressman Jones from Florida, and a
rumor is going around that he was picked up for drunk driving,
with a prostitute, and the cops let him go because of his great
power, and that is why there are no records about it. And the
political opponents are whispering that into every reporter's
ears, and the newspapers are salivating over this story, and
they have competitive pressures.
And, finally, let's say the New York Times and the New
Republic publish a story, ``Congressman Jones caught with a
prostitute, drunk driving.'' The story, it turns out, is 100
percent false, and it was spread by political opponents, two of
whom claimed they had information about it and whispered
confidentially in the reporter's ears.
Congressman Jones turns around and files a suit in Federal
court against the New York Times and the New Republic. He uses
the Federal rules of civil procedure to get access to this
information about who spread this information. He gets a
Federal judge to issue a court order.
What would the newspapers likely do? They would likely hold
up New York Times v. Sullivan and say, ``This is a public
figure. You have got to show that it is false, and it is, but
also that we recklessly disregarded the truth. And we didn't
recklessly disregard the truth. We had two sources. They told
us they saw it. They had inside information.'' ``Well, who are
those sources?'' ``Well, we don't have to tell you. We have a
shield bill, and we are not going to have to reveal those
sources.''
Now, some might say that would never happen. These are good
newspapers, and they are not going to allow some renegade
reporter to go off and write some scandalous story based on
flimsy sources, that they would have adult supervision from
editors, and you would never get that into the paper. Really?
You ever heard of Jason Blair of the New York Times? You ever
heard of Stephen Glass of the New Republic?
I like the idea of the media having as much information as
possible, and I think it is pretty true that folks are often
more candid off the record. But let me ask you, Mr. Eliason, do
you have concerns about the possibility that this privilege
could tempt newspapers to publish controversial stories that
are false?
Mr. Eliason. I think it certainly has the potential to have
that effect, Congressman. I think, again, the breadth of the
privilege is a concern for any type of case, I think not simply
in a libel case, that it makes it just difficult, if not
impossible, to discover information about sources and----
Mr. Keller. Let me cut you off, because I am focusing on
that narrow issue.
Mr. Safire, you have listened to me. We are in sync with
you totally about getting you the best possible information.
But what do you think about some sort of language in the bill
that would make it crystal clear that there would be no free
rein here for newspapers to be able to publish false,
defamatory information about public figures and then be able to
use this bill as the shield to say, ``We don't have to disclose
who these weak sources are''?
Mr. Safire. I think that would be putting too much into the
bill. What you are doing is picking several instances of the
failures of journalism, and you can go back over 250 years and
find a lot more, but you can't shoot an elephant gun off at a
rabbit.
Mr. Keller. What about that poor Congressman Jones? I mean,
what do you say to him when he said, ``I want you to tell me,
New York Times, who these people are, because I know that was
false. I was with my family in Europe. I couldn't have been
pulled over with a cop. Tell me who your sources are.''
Mr. Safire. It wouldn't have happened in the Times.
Mr. Keller. It wouldn't have happened at the Times?
Mr. Safire. No. And I can't speak for the New Republic, but
I doubt it would have happened there.
There are shortcomings that happen in every institution,
whether it is a newspaper or a Congress, and you can't pass
laws to make sure that every single thing is covered.
Mr. Keller. Where did Jason Blair work?
Mr. Safire. He worked at the New York Times, and that was
covered by the Times, a front page, 6,000-word story laying out
what we did wrong, and we didn't try to cover it up. I am very
sensitive to cover-up.
But I think in trying to do too much in a bill and cover
all possibilities, you vitiate the most important thing you are
doing, which is reestablishing the trust between sources and
reporters.
Mr. Keller. Thank you, Mr. Chairman. My time has expired.
Mr. Conyers. The Chair recognizes the Chairman of the
Subcommittee on Crime and Judiciary, Bobby Scott of Virginia.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Chairman, the problem I have with this legislation is
it attempts to try to codify common sense. If you look through
the past, as Mr. Levine has mentioned, you go through past
Democratic and Republican administrations, we haven't needed to
try to legislate common sense.
But if you look at the bill, it has got reasonable all over
it, public interest, the kinds of things that you would have
thought would have been considered before we got into this
thing.
But the problem we have with this Administration is not
whether the policies are consistent with precedent. The
question of standard is, has it ever happened before?
You have picked up people as enemy combatants, United
States citizens, lock them up, no trial, no charges, searches.
And the news this week is there have been abuses in searches,
wiretapping without probable cause, the invasion in
congressional office, never done before.
Maybe it is okay, maybe it isn't, but has it ever been done
before? And so maybe we need to legislate some common sense. I
don't know, after this Administration, whether it is going to
make any difference, because it appears to just codify the
practice that has been going on for a couple hundred years.
I have a couple of questions. One, if any of the panelists
can help on, with the State laws, has there been any problem
interpreting what a journalist is and what is a journalist and
what isn't, whether a blogger is a journalist? And I assume
that has been worked out over the States, and maybe it is a
problem, maybe it isn't.
But before we get to that, I wanted to go back and talk
about some of the problems in a criminal case. If a person has
been indicted on a criminal case and there is a news report
that the evidence was planted, we have inside information that
the evidence was planted, can the reporter--I mean, the way the
bill is written, you have to satisfy one, two, three and four,
which means there has got to be imminent death or bodily harm
and public interest.
Can you make the reporter reveal who knows that the
evidence was planted, if this bill passes?
Ms. Brand. I don't see that as falling within any of the
exceptions to the bill. I wouldn't read any of the exceptions
to cover that circumstance.
Mr. Scott. So the defendant is on trial. What happens in
the trial? Can he use the hearsay, a reporter said the evidence
was planted?
Mr. Safire. Congressman, the rules governing what is
admissible in a trial in a criminal case are totally unaffected
by this statute.
Mr. Scott. Well, then you have got hearsay, and you can't
admit it.
Mr. Safire. Right.
Mr. Scott. Then what? Does he go to jail, can't get the
evidence of his innocence?
Mr. Safire. No. He can undertake discovery from the
Government itself in the context of the discovery rules. And,
in fact, the press would serve a vital function in that case by
reporting that story and alerting the defense that that issue
was out there for them to explore through their own resources.
What they couldn't do is go and get that information
compelled from the reporter who dug it out in the first place.
Mr. Scott. And if you can't find out who they talked to and
who told them, what happens?
Mr. Safire. That would be an issue for the trial judge. If
it was established that the information was, in fact, planted,
it would seem to me that the source of the information would be
almost beside the point. But that would be an issue for the
trial judge to work out in the context of the case separate and
apart from----
Mr. Scott. If you can't get to the bottom of the story,
what happens?
Mr. Safire. In the context of the criminal prosecution
itself?
Mr. Scott. Right.
Mr. Safire. If the defendant cannot establish evidence,
then, of course, he can't admit evidence on the point. But he
is not powerless in his ability to establish and seek out
evidence simply because he can't get that from the source.
Mr. Scott. So the reporter would be shielded in that case.
In a civil case, if a news report says essentially that the
defendant has been negligent and there is no public interest
and no imminent harm involved and the only issue is whether the
plaintiff gets the money, there is not a whole lot of public
interest there, what happens in that civil trial? Is the
reporter shielded, the information shielded in that case?
Mr. Safire. As I read the bill, Congressman, in most civil
cases, the identities of confidential sources will be protected
for the very good reason that you just articulated, that if you
weigh the public interest and, presumably, information about
public concern, about a matter of public concern being
disseminated against the pecuniary interest of a civil litigant
in recovering money damages, the public interest ought to, it
seems to me, win out.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Conyers. Darrell Issa from California?
Mr. Issa. Thank you, Mr. Chairman.
I think since the Chairman noted the presence of a Pulitzer
Prize winner, I am going to start, put you on the spot.
Mr. Safire, the balance between the right and, for that
matter, the unquestioned integrity of the New York Times, if
somebody is going to spend 1 day in jail, 1 day in jail as a
result of the inability to get a source, or 100 days or 1,000
days or the rest of their life or have a needle put in their
arm, at what point does the balance switch toward that
individual who will be incarcerated or executed from the right
of a reporter to not reveal a source?
Mr. Safire. Well, if you are dealing with the principle,
the principle is you don't reveal your source and you hang
tough and----
Mr. Issa. So I am going to take you at your word and I am
going to put words in your mouth, if you don't mind, because
this is Congress after all. It is okay for someone to get a
needle in their arm and be executed if it preserves the
principle that a reporter not reveal their source.
Mr. Safire. You are talking about the death penalty.
Mr. Issa. Well, I started with 1 day, then 100 days and
1,000 days, and I ended up with a needle in the arm. I asked
you, for good reason, at what point does the balance of the
individual to be able to prove--and Mr. Scott started off this
very well--at what point does it switch?
I am concerned. I don't want to see any reporter ever put
in jail again. I want to see every reporter know, if possible,
that there is a bright line: Here you have to answer, here you
don't have to answer.
I would hope that the shield law helped do that, not just
by saying when you don't have to, in which case a judge not put
them in jail, but, also, if you are not covered by it, then put
it out.
I want to make sure that we are not going to provide a
shield today and the industry from which you come say, ``Well,
that shield is only partially right and, therefore, we have
everything Congress gave us and everything else.''
Mr. Safire. I think what we are talking about here is a
balance of interests and just as we have had the balance
between the first amendment and the sixth amendment. That is
decided in courts, and you don't just say, ``This is the way it
has got to be'' and take an absolute 100 percent view.
What you are doing here is working out an arrangement where
you don't undermine the freedom of the press and, at the same
time, you don't codify it to such an extent that you can
uncodify it later.
Mr. Issa. But as of right now--and maybe I will go to Ms.
Brand--as of right now, as I understand the legislation, it is
silent as to this. If I am going to face a 5-year prison
sentence and a news article indicates that, by its article,
that a source would be able to free me, but it is hearsay,
right now I can't get to that under this statute.
I am not having any harm, because it doesn't define a day,
a week, a month or life in jail as harm, does it?
Ms. Brand. That is right. I would read the bill the same
way that you read it.
There are two problems there. One is the sixth amendment
problem, and presumably courts would find the law
unconstitutional as applied if it were infringing upon a
defendant's sixth amendment rights, but query whether Congress
wants to enact a law where courts would have to go through that
exercise.
And, secondly, the definition of journalism in this bill is
so broad that we are not talking about the New York Times
alone. I have to think that some New York Times reporters might
have a conscience that would prevent them from allowing someone
to be executed in the circumstances you mentioned, but----
Mr. Issa. They might leak the source to somebody else, and
somebody else could do it.
Ms. Brand. Well, I don't know, but I have a hard time
believing that someone would actually be executed because the
New York Times was sitting on a source, but----
Mr. Issa. Thanks for that.
Ms. Brand [continuing]. The definition in the statute----
Mr. Issa. Mr. Safire, I wanted you to say that you wouldn't
let someone be executed.
Ms. Brand. The definition is just so broad that it really
includes anybody who wants to post something to the Web. So if
you want to protect yourself from having to provide evidence in
a grand jury or a criminal trial, make yourself a journalist by
posting something to the Web.
Mr. Issa. My final question in the remaining time is it
also doesn't have an in camera discussion. It doesn't talk
about, if you will, an absolute right for at least the judge to
be able to determine through getting sufficient information in
camera.
And that is one of the protections I am hoping we add to
this, is that no matter what the first test, second test,
hopefully, and it doesn't say it right now, I just want to
confirm that, the idea that the source can be revealed to the
judge in camera and that that source then is still protected,
but at least you can go through the procedure of finding out,
in the case of the examples we were given, whether or not those
sources exist.
Is that also correct, that it is not in the bill?
Ms. Brand. Yes. There is no ex parte or in camera provision
in this bill.
Mr. Issa. Mr. Chairman, hopefully, those are the two areas
that we will work on between now and the time it hits the
floor.
Thank you. I yield back.
Mr. Conyers. I thank the gentleman.
Sheila Jackson Lee, the gentlelady from Houston, Texas?
Ms. Jackson Lee. Mr. Chairman, thank you.
I cannot imagine, in this climate of national security
issues and cloak-and-dagger matters that seem to confront of
our White House, to have chosen a better time for this very
important discussion and this very important legislation.
And I thank both the Chairman and the Ranking Member, but I
also want to thank the proponents of this legislation. Many of
us have engaged in initiatives like this in the past, and it is
now very good that we can come together.
I do want to indicate that my distinguished friend from
California may have missed the direct language, and I am not
sure if the representative from the Department of Justice might
have missed it as well, but in the bill, there are two distinct
provisions that I think are key in this backdrop of post-9/11.
And it is, in fact, an issue, a disclosure provision that
talks about to prevent imminent and actual harm to national
security. Obviously, that is the glaring war on terror. And
then it also indicates that there should be disclosure if that
is necessary to prevent imminent death or significant bodily
harm, with the objective to prevent such death or harm.
So I think, although all legislative initiatives can be
made better and more defined, that there is that element.
Let me just pose this framework for you. I think Texas
raises itself as a center of an issue or a particular
individual, Professor Vanessa Leggett, in my district, who,
after 4 years researching the question of a death in Texas, was
asked by a local newspaper to reveal sources or the law
enforcement, but, by the way, had all the information, and
found herself locked up in the Federal detention facility for a
very long time.
We spent time together. I visited her and expressed the
outrage as we pursued her release. We have seen that happen
over and over again. And so I think we are here at this place
because there is some value to the first amendment.
Mr. Safire, if I might ask you, because we are now in a
technological atmosphere, and so would you consider the
journalism definition to cover bloggers and Internet messaging
and others who proliferate by the second?
And I yield to you.
Mr. Safire. I would always resist the Government saying,
``This is what a journalist is.'' And the only thing I liked
about Justice Byron White's decision was the reference to ``the
lonely pamphleteer,'' who has to be covered, as well as the
great newspapers.
I think that the definition you have here is a good one,
because it goes to: Who is this aimed at? What do you do as a
journalist? What you do as a journalist is gather information
for the public. You don't gather information for a private
enterprise or a private source or a private or secret
organization.
The whole purpose of, whether you are a blogger or whether
you are the New York Times or CBS or the Wall Street Journal,
if what you are doing is aimed at informing the public, then
you are a journalist, whether you get paid for it or not.
Ms. Jackson Lee. I can't see your name, the last gentleman,
if you would answer, and I apologize.
Mr. Taricani. Taricani.
Ms. Jackson Lee. Thank you. I can't see it turned around.
Thank you. If you would answer the same question. Do you
consider bloggers, Internet messengers and others----
Mr. Taricani. Yes. I agree with Mr. Safire, but the key
there, as Mr. Safire said, is people who gather information and
I would add that the information goes through some type of an
editing process in most cases or some type of verification
process and is dispensed for the public.
Instant messenging is not necessarily meant to be dispensed
to the public and other forms of electronic communication, but
in the spirit of our original pamphleteer, sure.
Ms. Jackson Lee. You have no fear then that legislation
like this that would cover that expanse would be jeopardizing
one's life and limb or the national security of this Nation.
Mr. Taricani. No. They would be held to the same standards
by a court, I would imagine. I am not a lawyer. That they would
have to conform to this bill and if they are acting as a
journalist, then they would fall under the bill. But, again, I
am not a lawyer. That is just my own point of view.
Ms. Jackson Lee. Ms. Brand, could you find comfort in the
exemptions that are here and see any reason why the first
amendment should not be upheld for the protection of the press,
which has been a sacred right of this country?
Ms. Brand. Well, with respect to the definition of
journalism, I think I understand why the drafters of the bill
made it so broad. Presumably you want to avoid the first
amendment problem that you would have if you tried to define
who the press was, because like Mr. Safire said, it ranges from
the lonely pamphleteer to the New York Times.
But the problem then, and this is something that the
Supreme Court recognized in Branzburg, when they talked about
the difficulties of drawing lines about who is a journalist,
because the definition must be so broad to capture all
legitimate journalists, is that it captures almost everybody
else too.
And so you then have a situation where, if the Government
needs critical evidence in a criminal investigation, they have
to go through the procedures of this bill for anybody who
decides that they want to try to avoid giving it to the
Government by posting that information to the web or labeling
themselves a journalist.
And so you are between a bit of a rock and a hard place. It
is difficult to define the press narrowly without implicating
the first amendment, but if you define it broadly, you cause
significant problems for law enforcement.
Ms. Jackson Lee. Thank you, Mr. Chair. It is difficult, but
not impossible. I think that is the basis framework of this
legislation. I yield back.
Mr. Conyers. Thank you.
Mr. Trent Franks, Ranking Member on the Constitution
Subcommittee, from Arizona.
Mr. Franks. Well, thank you, Mr. Chairman.
And thank you for the courtesy here, Mr. Pence.
Mr. Chairman, I know all of us have a deep commitment to
freedom of the press, certainly I do, and I suppose, like many
Members of the Committee, we are having a little difficult time
wrapping our brain completely around this one.
But it occurs to me that we have been without a shield law
on the Federal level, as I understand, for about 200 years and
that the ostensible rationale for this bill, again, very well-
meaning, is that there is a surge in subpoenas for reporters to
reveal their sources and I think at least there is some
indication that there is more than perhaps there has been in
recent years.
But I am wondering if that could be traced to perhaps the
post-9/11 environment that we live in. Is there any historical
precedent, Ms. Brand, related to, say, when we were dealing
with World War II or other conflicts that required intense
press activity that had to do with national security?
Because my concern here is simply this. I know there has
been some discussion about who becomes a journalist, but it
occurs to me that Hamas outlets certainly would be covered
under this, that they would be--and I am sure that we would
have probably responsible judiciary that would try to sort
through all of that.
But I do think that there are some national security
components here and I am just wondering, number one, is this
surge, is it--I know there is debate, but give me your
perspective. Is it real? Is the rationale for this needed now
something that is real?
And, number two, the implications as far as national
security especially as it relates to someone like--outlets like
Hamas that could really have a lot more latitude under this,
unless I am just completely misunderstanding the situation.
So I will give you a shot here.
Ms. Brand. With respect to the number of subpoenas, the
only information I can provide relates to subpoenas issued by
the Department of Justice through our process that I described
earlier.
So whether courts are appointing special prosecutors who
are issuing more subpoenas or whether private litigants are
issuing more subpoenas, that I can't answer because I don't
have that information in hand.
But I can tell you that with respect to source-related
subpoenas, in particular, there have only been those subpoenas
in four matters since 2001. And since 1991, when the Department
started keeping that information, it has happened in 19 cases.
So I don't view that as a surge, at least with respect to
Department of Justice.
And to go to your second point, we are very concerned,
about the broad definition of journalism for a variety of
reasons, but specifically including the one you mentioned.
Terrorist organizations do have media components, some of them
do.
For example, Hezbollah's media arm has been separately
designated as a terrorist organization. Other terrorist
organizations have newsletters or other media outlets. All of
those entities are covered by this bill.
Mr. Franks. Well, Mr. Chairman, let me just say I think it
might be a wise thing for the Committee to ask both like Mr.
Levine and Ms. Brand to give us, number one, what you think is
the core most important need in the bill that you think needs
to be addressed.
In your case, Ms. Brand, what you think is some type of an
amendment or some type of modification that might address the
concerns that you have about the over-broad definition of
journalism and, also, perhaps even some of the underlying
elements of the bill.
Because I think that while I support deeply the commitment
to freedom of the press, that the New York Times--I know we are
not talking about what they did with information they had, but
I think that in revealing some of our NSA terrorist
surveillance programs and things of this nature, I think they
broke the law.
I think that they harmed national security, and I think it
is very important that we tread very carefully on something
that has been in place for 200 years and make sure that we are
acting wisely.
And I would hope that there would be some input on the part
of those on the panel that have relevant information to make
sure that when we go to markup here, that we have the best bill
possible.
Thank you, Mr. Chairman.
Mr. Conyers. Thank you, sir.
A former State prosecutor, in his earlier life, William
Delahunt.
Mr. Delahunt. Thank you, Mr. Chairman.
I just would note for the record that included in the bill
is a national security exception, in an effort to respond to my
friend from Arizona.
And I would note he uses the term ``surge.'' I think what
we are confronting here, as we step back and look at the
current scene, is a surge in secrecy. And let me pose this to
the panel and maybe the journalists on the panel can respond.
Mr. Leonard, who heads the National Archives, indicated
that there has been an explosion in the number of documents
that are now classified and he indicated concern about that. We
have had our own experiences here in Congress dealing with the
executive branch in terms of information coming to Congress.
It certainly hasn't been an Administration or a Justice
Department that has been forthcoming. Let me just cite one
example.
There were a series of hearings conducted by the Government
Reform Committee about misconduct in the Boston office of the
FBI. There was a 40-year-old memorandum, prosecutorial
memorandum. The then-Chairman of the Committee, Congressman
Burton, certainly no, he wouldn't describe himself as some
liberal from the Northeast, had to threaten contempt to get
that before the Committee.
So I think what we have here is really an obsession with
secrecy in terms of this Administration. It goes, it comes
depending on the Administration. But what I find particularly
interesting, for example, is there has been information that
was classified, that was then declassified and months, even
years later, is reclassified.
I think that can only be described as absurd. It has a
certain ``Alice in Wonderland'' quality to it; up is down, and
down is up.
But the title of this bill--and I intend to support the
bill, and I think we can tweak it. I think, Ms. Brand, you
mentioned the fact that there is no in camera provision in the
bill to deal with sensitive issues. I would hope that one would
infer that that would be within the discretion of the trial
judge.
Do you agree with that?
Ms. Brand. It would depend on the circumstances, I think.
Mr. Delahunt. Maybe, okay. I understand that. Well, then I
think that we can work with the sponsors of the legislation and
put that in this particular bill.
Mr. Safire. Sir, can I just respond to the basic point that
you make, which is absolutely right, that----
Mr. Delahunt. Well, I am glad that you agree with me, Mr.
Safire.
Mr. Safire. It is so easy to classify and so difficult to
declassify. I remember I was working on a speech on Vietnam for
Nixon, and I had a bunch of documents, and I wrote my speech
and then I sent it in to him to edit, and I put on the top of
it, ``Top-secret eyes only.''
And I waited to get the draft back from the President, and
nothing happened for a couple of days, and the speech was about
to be made, and I went to Bob Haldeman and I said, ``Hey, where
is the draft of the speech? I have to incorporate the
President's edition.''
And he said, ``Look, you typed 'top-secret eyes only' on
the top, and you are not cleared for top-secret eyes only.''
And that is there today, and nobody can get at it.
Mr. Delahunt. There is an excellent op-ed piece by Bruce
Fine in the June 13th edition of the Washington Times. It is
entitled ``Secret Government.'' And he indicates when--we here
on this Committee inquired of a representative of the Justice
Department when the Department of Justice and the
Administration decided that the authorization to use military
force, allowing us to go into Iraq, when that date became a
rationale for the so-called terrorist surveillance initiative,
simply the date. And their response was, ``We cannot discuss
the operational details or history of the terrorist
surveillance program,'' just the date. I mean, common sense
would tell you that is absurd.
So what we have is a growing sense of secrecy or growing
secrecy within the executive branch. It could be true of this
Administration or the next one or those in the past, and the
American public is being denied information that they have to
have to make informed decisions.
It is the predicate, if you will, for the need for this
law, in my judgment, and until we address it, we are putting at
risk our democracy.
And I yield back.
Mr. Conyers. Anyone want to comment on that before his time
has expired?
Mr. Eliason. My only comment on that would be that there
may well be an issue about what material gets classified, but I
would just suggest that a bill like this is not the best way to
address that issue. Because, assuming we all agree that there
are some things that do deserve to be classified, then what
this bill does is make it much easier for people to leak that
kind of information, as well, and effectively immunize them
from prosecution if they do.
And so it leaves in the hands of sources and journalists
the sort of decision about what should be classified and what
isn't. So if we think there is a problem with too much material
being classified, I would suggest there may be better ways to
approach that problem.
Mr. Safire. Mr. Chairman, could I take some issue with
that? The premise of a lot of this discussion and what Mr.
Eliason just said is that short of compelling a reporter to
disclose the identity of a source, you are immunizing criminal
conduct or immunizing the person who discloses classified
information, that is simply not true.
The Federal Government has awesome prosecutorial powers at
its disposal to investigate leaks internally. It can do that
without going after the reporter. And more importantly, what is
missed in this discussion is that when a reporter writes a
story that exposes some information of public importance, by
definition, that scoop, if you will, is the way the public is
learning about the information.
Without that source coming forward, nobody would ever know
about the information. It would remain secret. So there would
be no information out there for people to act upon.
In the criminal context, the hypothetical that was given
earlier about the person on death row, if the press didn't come
forward--if a source didn't feel comfortable going to the press
and disclosing that information that exculpates the person on
death row, he would remain silent. No one would ever know about
it.
You need the press to be able to disclose that information
and you need people feeling comfortable that their confidences
are going to be kept secret and protected.
Ms. Brand. Can I jump in there, with the leave of the
Chairman?
I think that Mr. Levine overestimates the ease with which
the Government can internally investigate leaks. It is often
very difficult to investigate those leaks. And the Department's
guidelines already require that before a subpoena to the media
can be considered, the prosecutor and the investigators have
considered and exhausted all other sources of information.
So we are only talking about a subpoena to the media when
the Government can't get the information any other way.
And the second point I would make is that it is not
accurate to say that leaking information to the media is the
only way for information to get out or for an employee to come
forward and blow the whistle. There is an Intelligence
Committee Whistleblower Protection Act of 1998 that applies to
many of the intelligence community's agencies. It allows
employees to talk to their agency's inspector general and, if
that person does nothing, to come to the intelligence
committees of Congress.
All the other agencies of Government have their own
inspectors general to whom employees can go. And employees can
go to Congress. It is just not the case that leaking classified
information to the press is the only way to be a whistleblower.
Mr. Conyers. You really raised the important question, Mr.
Delahunt. I am glad that you did.
Before I call on the author of the bill, Mike Pence, who is
acting Ranking Member, I want to acknowledge the presence of
Martha Reeves, the Councilwoman from Detroit, who is here on a
completely different matter, trying to get royalties from
performances of music. She is a Motown star, a constituent of
mine, and I am going to ask her to meet with my staff while we
continue this hearing.
And I thank you for coming and joining us. I know you have
to leave at 12:30. So if you would, they will take you back to
the back where we meet, and thank you for being with us.
Mike Pence, author of the measure before us, we thank you
so much for the work that you have done.
Mr. Pence. Thank you, Chairman, and I really want to thank
this entire panel and your leadership in assembling these very
thoughtful voices on this issue.
I keep going back to the actual Ranking Member's comments
that he had qualified enthusiasm for this bill and my friends
at the Department of Justice might know that my enthusiasm is
qualified. I understand that different from the 49 States that
have protections either in statute or in common law today, none
of them are charged with the protection of the Nation and our
national defense.
There are unique challenges, and I want to recognize that.
I want to thank you, Ms. Brand, for your service to the
country as Assistant Attorney General, but your testimony
today, as well as the balance of this panel.
I would like to direct my question first to you. It may be
helpful to point out that the legislation specifically as to
your most immediate point that you made about the DOJ
guidelines, under the Boucher-Pence bill, the party seeking to
compel production would have to show that they had ``exhausted
all reasonable alternative sources,'' as well, and that very
much is among many of the provisions of our legislation that is
reflective of the DOJ guidelines, and I want to encourage you
with that.
My question is there clearly is a dispute over whether this
is a solution in search of a problem or whether this is an
avalanche, as one of the witnesses testified. I know that in
response to a 2006 Freedom of Information request from the
Reporters Committee, they were informed that there were some 65
requests for media subpoenas that were approved by the Attorney
General.
I don't want to get into the numbers game here.
Ms. Brand. The 19 I mentioned are source-related
information. So that may be a different----
Mr. Pence. Maybe source-related. Thank you. That is
helpful.
Ms. Brand. I don't know.
Mr. Pence. In any event, I guess my question would be very
basic and then I really want to shift, if I can, to this issue
of the chilling effect and whether it exists or doesn't exist.
You have testified, as others have, and Mr. Comey last year
before the Senate testified that the DOJ guidelines--it is the
judgment of the Department that they are working well.
If that is the case, why not just codify the guidelines so
that they apply to special prosecutors and civil litigants? Is
there a sense in the Justice Department that creating statutory
certainty to otherwise internal guidelines of the Department is
contrary to the public interest or could you speak to that
briefly?
Ms. Brand. Well, we appreciate that the bill takes a lot of
the language from the DOJ guidelines. It doesn't quite codify
the guidelines, though. It is different in a couple of
important respects.
Mr. Pence. That is true.
Ms. Brand. The flexibility point that you mention is one
issue. But the way the process works now, the Department gets
approval from the Attorney General in a case where a subpoena
is issued to the media, and then the media can move to quash.
In that case, the burden of proof is on the media to show that
the subpoena was burdensome or oppressive.
The other issue is that this bill would require the
Government to show by a preponderance of the evidence that
certain things have been done, that certain conditions have
been met.
The preponderance of the evidence standard is an
evidentiary standard that usually applies at the end of a trial
or proceeding. The standard at the beginning stages of an
investigation, when you might be using a subpoena, is usually
relevance or a much lower standard. And so those are a couple
of issues that we have concerns about.
Mr. Pence. Let me raise one more question before my time is
up.
Mr. Safire. Can I answer that one a little bit more?
Mr. Pence. Most certainly.
Mr. Safire. The Government is not just the Justice
Department and when you talk about codifying the Justice
Department's guidelines, what about the guidelines throughout
the rest of the Government?
The only way you can do that is through a law and there are
subpoenas, administrative subpoenas issued by agencies and
other departments of Government that we haven't even discussed
at all today. And the only way you can get at that is for
Congress to step up to the plate.
Mr. Pence. Thank you. Let me shift to the next question.
There is really a startling and interesting contrast in the
testimony today, and that is that, Mr. Safire, you testified
that you perceive that in the marketplace of the national
Government today, there is a ``coercive chill.'' I think to
borrow from your testimony, you said that it is happening right
now.
By contrast, Professor Eliason testified that with regard
to a chilling effect, that the current law or the possibility
of disclosure by a source would have, I think your phrase was,
``very little role in a source's decision to come forward.''
I would observe that in the wake of seeing an American
journalist incarcerated for 85 days, in the wake of an
extraordinary trial that just came to conclusion that found, at
its genesis, a Chief of Staff of the Vice President of the
United States who told a reporter something off the record and
that reporter was unable to protect the identity of their
source, not speaking to the perjury charges or the validity
thereof.
I am speaking at the very essence, reporters in this city,
it seems to me, and, more importantly, public men and women,
people working in Government are getting something of a
deafening message that off the record ain't off the record.
And I really would like to ask--and maybe, Mr. Safire, you
first, and I would love to hear from Mr. Taricani--in the real
world, ought the public to be concerned today that there is a
coercive chill that is beginning to settle on Washington, D.C.,
that will act as a barrier to the free flow of information to
the public in the future?
And I would be happy to let the professor address this.
Does the reality of this present progeny of cases and
subpoenas and incarcerations have, in the real world, little
effect on people's----
Mr. Safire. Well, I would point out the professor is not
chilled, and good for you, Professor. I am chilled. I have seen
it happen, and I have seen it happen all across the country
among reporters who read about what has happened, who saw the
Judy Miller case come to fruition and what happened in it.
And maybe we should get away from the word ``chilled,''
Justice Brennan's word, and get to what it really is, and that
is scared. We don't want to go jail. We don't want to be
bankrupted. And certainly the publishers of our newspapers
don't want huge fines coming from contempt citations.
This is a problem. This is not a fake problem. This is not
a tangential problem. This goes right to the heart of gathering
news.
And the only way to handle it is to do for the national
Government what the States have done for the State governments,
and it works there. And all the give-and-take that is required
in developing case law is being done in the States, and what we
have happen now is in the Federal system. And the only way that
we are going to make that happen is to take up the Supreme
Court on its challenge to the Congress, which is if you want to
fix this, you fix it.
It is not a constitutional issue. It is something that
Congress can handle, and it hasn't had to handle it before,
because the problem didn't emerge. It has emerged now, and I
say it is up to you to fix it.
Mr. Pence. Mr. Taricani or the professor, I would be happy
to hear from either one.
Mr. Taricani. Sure. In a very real-world example, many news
organizations, like the one I work for, because of these cases,
when we sit face-to-face with a potential source now, I have to
tell that source, before they give me any information, that my
company will back up my promise of confidentiality and, in my
region, up until the First Circuit of Appeals, and if we lose
there, then we are going to ask you to sign an affidavit saying
that you will come forward.
Well, you can imagine the chilling effect on that source.
Most sources are just going to laugh it off and walk away.
So that is what is happening all across the country.
Obviously, I don't work for a national news organization, but I
serve my community and that is a definite chilling effect on
our ability to gather information and dispense it to the
public.
Mr. Pence. Professor, since I paraphrased you, I wanted to
give you a chance to speak.
Mr. Eliason. Thank you, Congressman. A couple of different
points.
First of all, as I said in my written testimony, I just
don't think history really bears out the idea of the chilling
effect. And just look at the most recent history, for example.
While the Judith Miller case was going and there was this very
public demonstration of a journalist being jailed and
journalists being compelled to give up their sources, we had a
lot of new leaks about secret CIA prisons and unlawful
surveillance by the Government and other stories. So it is not
as though sources sort of dried up, even when that high-profile
case was going on.
I think another important point is that sources face a lot
of risks. Leaking is never going to be risk-free, and, frankly,
most sources are exposed by something other than the reporter
having to testify.
So when they are looking at this whole basket of risks that
they are facing when deciding whether or not to talk to a
journalist, really, the fact that the journalist might be
compelled to testify is one of the most remote risks. And even
if there is a law, they can't look at it and say, ``Well, 2
years from now, will a judge say one of these exceptions
applies and so they are going to make the reporter testify
anyway?''
So it is not likely to have a substantial effect on their
decision. And then a final thing I think that is important to
remember about this handful of high profile cases we have had
in the last few years--and it really is a handful, I think we
have to recognize, in terms of the thousands and thousands of
stories reported each day.
You have heard everybody here talk about the same three or
four cases all morning. It really is a handful of cases and, by
and large, those cases involved sources that were committing
wrongdoing by leaking to the press.
In the Judith Miller case, you had a source leaking
classified information about the CIA. In BALCO, you had a
source committing perjury and obstruction of justice and
violating a court order. Mr. Taricani's case was the same
thing, violating a court protective order.
And as Judge Tatel pointed out in the Judith Miller case--
or Wen Ho Lee, sources violating the Privacy Act. These are
sources that are committing misconduct by their very
conversation with the reporter, and as Judge Tatel pointed out
in the Judith Miller case, if those kind of leaks are chilled,
that is a good thing. That is what the public interest
requires.
Mr. Boucher. [Presiding.] Mr. Eliason, our time is growing
a bit short here.
Mr. Eliason. Thank you.
Mr. Boucher. And we have exhausted the time for this
question period.
Mr. Pence. Thanks, Mr. Chairman.
Mr. Boucher. Thank you very much, Mr. Pence.
The gentleman from Georgia, Mr. Johnson, is recognized for
5 minutes.
Mr. Johnson. Thank you.
Today, in a climate where we have had consolidation of
media interests to where you have one company that owns the
means of media in--or you have one or two companies may be the
sole sources of information for people, both print, radio, TV,
all of these things being consolidated and you are starting to
get your news through and your information through a smaller
funnel, if you will, and then the media basically in bed with
the public officials, public officials leak information to the
press to achieve a shaping of public opinion and the press is a
willing participant, because the more inside information they
have, then the more news that they can--or ``news'' that can be
generated and ratings are increased.
And the news and information that we get is, a lot of
times, biased. It is not fair. It is in favor of the
conservative viewpoint, sometimes the liberal viewpoint or
progressive viewpoint, whatever one might want to call it.
But this is where we find ourselves now. It is not a pure
pursuit that we find the media in at this time. And then we
have got a number of different areas of concern here. We have
got Government leaks and the pursuit of information by the
Government as to who leaked the information.
We have got those classes of issues. We have got the issue
of whether or not there should be immunization of the press
from having to reveal sources in criminal cases where an
accused is seeking to defend themselves or where the Government
is trying to prosecute someone.
We have got the whistleblower cases. We have got other
civil cases involving trade secrets, which, by the way, are
included in this new legislation. And then we have this
legislation which seeks to apply a one-size-fits-all approach
to all of these issues that I just raised and this legislation
would provide that instead of the issuance of a subpoena and
then a motion to quash the subpoena, as would be done now, it
would impose a new scheme where a subpoena-er would have to go
into court and get pre-clearance to get the subpoena issued.
And I am pretty skeptical about that new approach and the
fact that when it comes down to a criminal case, the only way
that you could get the source of the information from the press
would be if there is a national security issue or if the
information is necessary to prevent imminent death or bodily
harm or is necessary to help identify a person who disclosed
trade secrets. For some reason, that is thrown in right there.
But a commercial situation, in other words.
And so I feel that with our current system of being able to
issue a subpoena, with the Government being able to issue a
subpoena and then the person who has been subpoenaed or entity
that has been subpoenaed have the option of going into court to
quash the subpoena based on rules now in effect, that has held
us in good stead up to this point and I think we can look
forward to do the same thing in the future.
I am concerned about the assertions that we are having an
upsurge in the number of subpoenas being issued for source
information. There is a dispute about it.
You say, Ms. Brand, that there are only 19 cases since
1991, four matters since 2001. And you, Professor Levine,
assert that it is much more than that. I am concerned about
that discrepancy, and I would look for us to be able to be a
little bit more discriminatory in terms of what areas are
covered by this legislation.
So as it is proposed now, I don't see myself being in
support of it.
And if anyone would like to comment, if we have time, I
certainly would like to hear it.
Mr. Levine. Congressman, can I just offer two observations?
One is that there is no pre-clearance requirement in this
statute. Procedurally, it would work exactly the way things
work now. Somebody would issue a subpoena. The person receiving
it would have to bring a motion to quash. It would be litigated
before a judge pursuant to the substantive criteria as laid out
in this statute. All this does is put a judicial check on the
process. It doesn't require somebody to go to court and say,
``Please allow me to issue a subpoena.''
The second thing is with respect to the criminal cases that
you have expressed concern about, I think it is important to
emphasize that this is a statute. This statute has to be
construed consistently with the Constitution of the United
States, including the sixth amendment.
If there were a criminal case in which an accused's right
to a fair trial was, in fact, jeopardized by the application of
this statute in that particular case, a court would have the
authority to say the sixth amendment trumps. That is what
happens in those States now where shield laws provide absolute
protection against disclosure of confidential sources in any
circumstances, much more broadly than this proposed statute.
In California, for instance, where that is the case, the
California Supreme Court has said, ``But in a criminal case,
where it is the criminal defendant who is asking to have the
source disclosed, if the failure to compel the disclosure of
that information would deprive him of his right to a fair
trial, the statute has to give way.''
And because this is a statute that is similarly subject to
the Constitution, the same process would apply here.
Ms. Brand. Can I jump in there? I guess we read the bill
very differently than Mr. Levine does. The issuance of a grand
jury subpoena, we refer to that as compulsory process.
It would be interesting for us to know, I guess, whether
the drafters of the bill did not intend the Department of
Justice or another litigant to have to go to the court for pre-
approval to issue a subpoena. We read the bill to require us to
do that, and maybe that is something that we could get
clarification on later.
Mr. Boucher. Thank you very much, Mr. Johnson.
The gentleman from California, Mr. Sherman, is recognized
for 5 minutes.
Mr. Sherman. I thank the Chair.
We are here dealing with journalists, sources and the
Government and we want to avoid chilling those sources who
might be chilled for fear of revelation.
The first comment that we have in this country (or at this
time around the world), the strangest communication system one
can imagine, where so much of our information comes from
sources that want to be anonymous, but validated.
We have always had people writing things on the walls
anonymously and we have always had people who will stand up and
say what they want to say in their own voice. It is just now we
have people who want the credibility of speaking in their own
voice and the anonymity of being the unnamed source.
Second, I would observe that usually we have witnesses
there in front of us who are in the best position to tell us
how to achieve the goal. The strange thing here is, here, it is
up here we have perhaps the people most familiar with what we
are trying to do, in that we are all sources. And the goal of
this statute is source comfort, not so much journalist comfort.
In fact, I have never seen a source who wanted to leak
something and, well, one journalist wouldn't take it, so they
go to another one. There are lots of journalists, but for some
stories, there is only one source. So the goal is to make us
sources comfortable.
And I would say, Professor Eliason, you have it right. When
I, as a source, choose, as so many of those with a little bit
of authority here in Washington do, to try to reveal something
without putting my name on it, the least thing I am worried
about is the Justice Department.
I believe someone used the figure that there have been 19
cases since 1991 where sources have faced revelation from the
Justice Department. I have been outed 19 times since 1991 and
the Justice Department has had no role.
How many times does a journalist say it is on background
and then publish your name? Whoops, happens all the time. We
had a case just last week where an aide in my office was told,
``Well, thanks for the information and we won't identify you by
name or by title.'' They just identified them as an aide to
Congressman Sherman.
I would say that for every time a source's name is revealed
by action of the Justice Department, there are 10,000 times or
100,000 times when a source is revealed because of
miscommunication between the source and the journalist, where
you though it was off the record and, whoops, it wasn't or the
journalist was wrong on that or the source was wrong on that or
the journalist made a mistake or the journalist's notes went to
another journalist and whether intentionally or with great just
zeal to make it a good story.
So I would say you would have to be crazy to be a source
and worry about the Justice Department. It is like worrying
about being hit by lightning as opposed to all the other ways
in which a source's name can be revealed.
I would like to focus on the definition of journalism found
in the bill that this hearing focuses on.
Ms. Brand, the definition of journalism in the bill would
include almost everyone I know would qualify as a journalist,
certainly every Member of Congress. We are all engaged in
gathering, preparing, collecting, recording and writing and
publishing news and information of concern on local, national
or international events or matters of public interest.
That certainly covers every blogger. It certainly covers
everybody with a Web site that deals with issues of national
concern. It may cover everybody who just contributes to other
folks' blogs.
The Justice Department has guidelines. Who qualifies as a
journalist under those guidelines?
Ms. Brand. I don't believe that the Department's guidelines
define the media. I think everyone sort of understands what the
media----
Mr. Sherman. That would give me a grave risk, because I
would think Attorney General Gonzales would consider certain--
in drawing the line, might exclude from journalists some of my
liberal and progressive friends and include some folks with
conservative views.
So as long as we have extremely vague standards in the
Justice Department, I would hate to be a stringer for the
Trotskyite newspaper and love to be a stringer for Fox News if
human beings at the Justice Department was going to determine
who qualified.
Ms. Brand. I am quite sure that distinctions are not made
on the basis of an impression of the bent of a paper one way or
the other. Our primary concern with the definition of
journalism in the bill is that it would enable anyone who
doesn't want to provide evidence, for one reason or another, to
find a way to put themselves within that broad category.
Mr. Sherman. Yes. I would say anyone engaged in any illegal
action would immediately put up a blog and try to get
journalistic protection, because--and all of us could be--as I
think all of my friends are journalists and anybody who wanted
to avail themselves of this bill could easily qualify as a
journalist under this definition.
I look forward to trying to find a better definition. And I
believe my time has expired.
Mr. Boucher. Thank you very much, Mr. Sherman.
The gentleman from Minnesota, Mr. Ellison, is recognized
for 5 minutes.
Mr. Ellison. Thank you, Mr. Chair.
I just have a few questions about the bill, just to be
clear.
Could someone help me understand why, in section two, that
one of the exceptions would include or is necessary to identify
a person who has disclosed trade secrets? What is the theory
behind including that provision of the bill?
Is there someone who could share that with me?
Mr. Safire. Perhaps one of the bill's drafters.
Mr. Boucher. Would the gentleman yield?
Mr. Ellison. Certainly.
Mr. Boucher. I guess I will be a witness for a moment.
The purpose of including that exemption, as well as the
exemption for personal financial information and personal
health information that is disclosed in violation of law, is to
address what are really very serious kinds of disclosures for
which there really is no public policy underlying the
disclosure.
And in these instances, we thought it was appropriate, in
part, to encourage nondisclosure that we provide these
exceptions.
Mr. Ellison. Claiming my time back. I don't see disclosure
of personal health information and a trade secret quite the
same.
Do you think there is a distinction to be made between
those two things? Because I can see circumstances under which
it might be a very good trying for the public to know--for a
trade secret to be disclosed, if there is some sort of--do you
want to respond to that?
Mr. Boucher. Well, if the gentleman will yield.
Mr. Ellison. I will.
Mr. Boucher. I would point out the rest of that clause,
which says that the disclosures have to be in violation of law.
And so I think by definition, any disclosure that is in
violation of law probably does not serve a valid public
purpose.
And so some policymakers, State legislatures or this
congress will have made a decision that that information should
remain private and that its disclosure is not in pursuit of a
public purpose.
I would say to the gentleman that I would be happy to have
further conversations with him perhaps beyond this hearing
about our intent with regard to these provisions and try to
answer any further questions that he has and receive any
suggestions you might have for possible modifications.
Mr. Ellison. Thank you.
Ms. Brand, earlier in your presentation, you pointed out
that perhaps Hezbollah might claim that they are a journalist
enterprise and, therefore, use that as a means to not disclose
information.
Wouldn't the third provision that talks about national
security--yes, yes. Wouldn't that national security provision
sort of deal with this question of some sort of a terrorist
organization claiming that it is a journalism enterprise?
Isn't that addressed in the bill?
Ms. Brand. It might address certain situations, but this
national security exception is so narrow. It is limited to
where the Government can show by a preponderance of the
evidence that imminent and actual national security harm is
going to occur.
If information has already been disclosed and harm has
already occurred, for example, this exception wouldn't apply.
If the harm is likely to occur, but somewhat speculative or not
going to occur right away, again, that wouldn't fall within the
exception.
So this is just very narrow.
Mr. Ellison. But you would agree with me that a court would
be construing this provision and I think I would feel pretty
comfortable that a judge is going to read this provision in a
way that it is going to protect national security.
Wouldn't you agree?
Ms. Brand. I guess I would assume that the court would read
the language on it face. And Congress must have meant
something, if this bill were enacted, by mentioning imminent
harm to the national security.
Judges don't just read words out of the statute, so----
Mr. Ellison. Well, I mean, you agree, though, that judges
do apply canons of statutory interpretation, which would go
beyond simply what is written on the page, right?
Ms. Brand. The canons of statutory construction, there is a
saying that you can find a canon to support any interpretation
you want, but----
Mr. Ellison. I guess my point is, Ms. Brand, that I--is it
legitimate to say that the terrorists are going to get us and
so we shouldn't have this law? I mean, that struck me as
somewhat hyperbole and I just want to know what your reaction
is.
Ms. Brand. Well, one of the interests that we think is
undermined by this bill is the Government's interest in
punishing leaks that have already damaged national security.
It is a crime to disclose, in an unauthorized way,
classified national security information, and sometimes those
disclosures cause harm to the national security. The only way,
in some cases, for the Government to bring someone to justice
who has caused that kind of harm by a leak is to talk to a
reporter.
Those cases are very rare, but they do occur, and this bill
would effectively prevent the Government from investigating
those cases. This imminent harm to the national security
exception would not help us prosecute that type of case.
Mr. Ellison. Mr. Eliason, how might we improve the
definition of journalist in order to make it a little bit
narrower?
I think that Representative Sherman's point is pretty well-
taken. It is pretty broad. I was thinking that some language in
there that might refer to an agency dedicated to the enterprise
of news gathering, not simply anyone who does it.
Have you thought about how this definition might be made a
little better?
Mr. Eliason. Yes, Congressman. As I said in my written
testimony, I think this is actually a good definition in terms
of defining a journalist, because anything narrower, I think,
is going to run into severe first amendment problems. But that
is part of the problem, I think, with the notion of drafting a
Federal privilege today.
I mean, at the time of Branzburg, we had newspapers and
television and even then the Court noted that it is really hard
to define who would actually deserve to claim this privilege,
who would be a newsman worthy of the privilege.
Now, with the rise of the Internet and satellite and cable
television and everything else, to adequately protect the first
amendment, I think you need a definition that is this sweeping.
Otherwise, the bill would be open to serious constitutional
challenge.
But then the flipside is, it has already been mentioned, by
defining it that way, you make the bill so broad that anybody
who films a public event with their cell phone and posts it on
their MySpace page is probably a journalist.
And so today, when we are all journalists, I think it has
become very difficult, if not impossible, to draft a bill that
accomplishes both of those purposes, staying reasonably narrow
and, at the same time----
Mr. Ellison. But you would agree that we are not really all
journalists. I mean, we might all do things that are
journalistic sometimes, but that is quite a bit different from,
for example, what Mr. Safire has dedicated his life to.
Mr. Eliason. Absolutely.
Mr. Ellison. Don't you think there is a difference to be
made?
Mr. Eliason. Absolutely, practically speaking, there is,
and there are some State statutes that refer to people making
their livelihood from journalism.
Mr. Ellison. Well, Mr. Safire, maybe you could jump into
this. Is what you have dedicated your life to the same thing as
somebody filming a political rally and putting it on MySpace?
It is a little different, wouldn't you say? And my question is,
can we craft language that would make the difference?
Mr. Safire. I think there are journalists and there are
journalists.
Mr. Ellison. Thanks for your precision.
Mr. Safire. And I think the attempt to define it is a
mistaken attempt. I would, in this case, agree with Professor
Eliason for the only time this morning.
Mr. Boucher. Well, on that pleasing note, we are going to
conclude today.
The time of the gentleman from Minnesota has expired.
I want to say thank you on behalf of the Committee to our
witnesses. You have been here now for 3 hours. You have shared
thoughtful commentary with us, and we are most appreciative of
your prepared testimony and even more so of your very candid
answers provided to the questions that we posed to you.
Members of the Committee may have additional questions that
they would like to pose. And so, without objection, the record
of this hearing will remain open for a period not to exceed 10
days, during which time questions can be propounded to you and
answers can be received.
With this Committee's thanks once again to the witnesses,
this hearing stands adjourned.
[Whereupon, at 12:55 p.m., the Committee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Prepared Statement of the Honorable Steve Cohen, a Representative in
Congress from the State of Tennessee, and Member, Committee on the
Judiciary
H.R. 2102, the ``Free Flow of Information Act of 2007,''
establishes a long overdue federal reporter's privilege that protects,
among other things, against the compelled disclosure of a confidential
source's identity except under a few limited circumstances. A federal
reporter's shield law is needed to ensure that confidential sources are
encouraged to divulge information that may be of public concern to a
journalist. Ensuring meaningful confidentiality to a source is critical
to allowing the press to fulfill its role as a check on government and
on other powerful institutions.
Contrary to what critics claim, H.R. 2102 will not hamper effective
law enforcement. The bill contains several clearly defined exceptions
to the federal reporter's privilege where disclosure of certain
information, including the identity of a confidential source, can be
compelled from a journalist. Moreover, empirical evidence does not
support the critics' argument. Almost every state and the District of
Columbia recognize some sort of journalist's privilege against being
compelled to disclose the identity of a confidential source, and none
of these jurisdictions has seen any real impediments to law enforcement
as a result of that privilege.
For all of these reasons, I am a co-sponsor of the ``Free Flow of
Information Act of 2007'' and I urge its passage.
Letter from the American Beverage Association, the Association for
Competitive Technology, the Chamber of Commerce of the United States,
the National Association of Manufacturers, and the Rubber Manufacturers
Association, dated June 14, 2007, to Chairman Conyers and Ranking
Member Smith
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Prepared Statement of the National Association of Broadcasters
The National Association of Broadcasters (NAB) respectfully submits
this statement for the record in the Judiciary Committee's June 14,
2007 hearing on the Free Flow of Information Act of 2007 (H.R. 2102).
NAB is a trade association that advocates on behalf of more than 8,300
free, local radio and television stations and also broadcast networks
before Congress, the Federal Communications Commission and other
federal agencies, and the Courts. Radio and television broadcasters
provide a free, over-the-air service that reaches virtually every
household in America, keeping local communities--and your
constituents--informed and connected. Our members serve listeners and
viewers throughout the country with the news and public affairs
programming vital to a well-functioning democracy.
NAB wishes to commend Chairman Conyers, Representatives Boucher and
Pence, and all co-sponsors for your collective leadership on the
critical and timely issue of protecting the free flow of information to
journalists and ultimately to the public we serve through a federal
shield law. As you have recognized in your statements, the need for
such protection is compelling. Increasingly, subpoenas to journalists
have become a weapon of first resort for those seeking information
concerning confidential sources. Without the ability to protect the
identity of sources, newsrooms are less able to gather the facts
necessary to bring to light injustice, fraud and abuse in both
government and private sector. As crafted, the Free Flow of Information
Act of 2007 strikes the appropriate balance between preserving the flow
of information from a free press to the public and protecting other
important governmental interests, including national security. The
legislation also brings federal law into better conformance with state
law in this area.
passage of h.r. 2102 will help ensure that the public is informed
of vitally important matters
Enactment of the Free Flow of Information Act of 2007 will further
the ability of the press to perform fully its role in our democracy--
serving as a surrogate for the public. Over two hundred years ago, in
drafting our Bill of Rights, the Founders singled out the press as the
only private industry to merit its own specific guarantee against
government intrusion.\1\ The Supreme Court has consistently recognized
this unique role that the press plays in ``informing and educating the
public, offering criticism, and providing a forum for discussion and
debate.'' \2\ The Court has also noted that media entities differ from
other companies and institutions ``in that their resources are devoted
to the collection of information and its dissemination to the public.''
\3\ Indeed, just last month, Secretary of Defense Robert Gates told the
graduating U.S. Naval Academy Class of 2007 that the press is a
``critically important guarantor of our freedom.''
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\1\ See Mills v. Alabama, 384 U.S. 214, 219 (1966) (the ``Framers
of our Constitution thoughtfully and deliberately selected'' the press
``to play an important role in the discussion of public affairs'' and
to ``keep [our society] free'').
\2\ First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 781
(1978). See also Mills, 384 U.S. at 219 (the press ``was designed to
serve as a powerful antidote to any abuses of power by governmental
officials and as a constitutionally chosen means for keeping officials
elected by the people responsible to all the people whom they were
selected to serve'').
\3\ Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 667
(1990).
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At times, members of the press must rely on confidential sources to
fulfill their important role of informing and educating the public.
Confidential sources have been vital to a number of groundbreaking
stories, ranging from Watergate to illegal accounting practices at
Enron to the abuse of steroids in baseball. Stories based on
confidential source material have regularly received the most coveted
journalism awards, including the Pulitzer Prize and the George Polk
Awards for Excellence in Journalism.\4\ As broadcast television
reporter James Taricani has previously attested, during his 30-year
career in journalism, he has relied on confidential sources to report
well over 100 stories on diverse issues of public concern, including
public corruption, sexual abuse by clergy, organized crime, misuse of
taxpayers' money, the misuse of union funds leading to the ouster of a
union president, and the ethical shortcomings of a Chief Justice of the
Rhode Island Supreme Court.\5\
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\4\ For example, the Pulitzer Prize in Investigative Journalism for
2005 was awarded to Nigel Jaquiss, of Willamette Week, who relied on
confidential sources in his investigation exposing a former governor's
long-concealed sexual misconduct with a 14-year-old girl. The 1999
Pulitzer for National Reporting went to Jeff Gerth and staff at The New
York Times for a series of articles disclosing the government-approved
sales of American technology to China, despite these sales' national
security risks--stories that prompted investigations and significant
changes in policy. This series relied heavily on confidential source
material, both interviews and documents. In 2005, the George Polk
Awards for Magazine Reporting, Military Reporting and Sports Reporting
all went to articles based on confidential source material. See Brief
Amicus Curiae of 36 News and Journalist Organizations in In re Grand
Jury Subpoenas to Mark Fainaru-Wada & Lance Williams and In re Grand
Jury Subpoena to the San Francisco Chronicle, Nos. 06-16995 & 06-16996
(9th Cir. Dec. 8, 2006), at 21-25 (discussing these and other
significant and prize-winning stories that depended on confidential
sources).
\5\ Brief Amici Curiae of 24 News and Journalist Organizations in
Judith Miller v. USA and Matthew Cooper and Time Inc. v. USA, Nos. 04-
1507 & 04-1508 (Sup. Ct. May 18, 2005), at 7.
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Investigative journalists in particular perform a great deal of the
press's vital work. Unfortunately, nearly a dozen of them have recently
faced criminal prosecution and other severe consequences simply for
doing their jobs. Overall, more than 30 reporters have been subpoenaed
or questioned about their confidential sources, their notes, and their
work product over the past few years in civil and criminal cases in
federal court.
For example, in November 2004, U.S. District Judge Ernest C. Torres
found Jim Taricani, an investigative reporter for WJAR-TV in
Providence, RI, in contempt of court for refusing to reveal the source
of a videotape that aired on his television station. Three years prior,
a confidential source gave Taricani the videotape, which showed a city
official receiving cash. The tape was later used as evidence in the
corruption trial of former Providence mayor Buddy Cianci and his aide,
who accepted the money. Both were convicted and served federal prison
sentences.
A special prosecutor pursued Taricani, trying to force him to
reveal his source. Judge Torres imposed $1,000 a day in fines, and,
when Taricani refused to identify his source, Judge Torres gave
Taricani two weeks to change his mind or face jail time.
Taricani, however, took a courageous stand over a very important
principle. When he accepted the videotape from his source, he promised
not to disclose the source's identity. He kept his promise even though
time in jail could endanger his health. Taricani received a heart
transplant in 1996, and was vulnerable to infection.
For refusing to name his source, Judge Torres sentenced Taricani to
confinement for six months. Fortunately, Judge Torres permitted
Taricani to serve his sentence at home, but with restrictions. Taricani
was denied access to the Internet, could leave home only to visit
doctors, and could receive visitors only during specific hours. And
during his confinement, the residents of Providence were denied the
benefits of Taricani's investigative reports.
Less than two weeks after he was set free, Jim Taricani spoke to a
large group of broadcasters at the RTNDA@NAB 2005 annual convention in
Last Vegas. He provided a clear explanation of the immediate need for a
federal shield law. Recognizing that courts must work with the current
law, Taricani told us that he had been threatened with contempt of
court three times during the course of his career. The first two cases
were state cases, and state shield laws kept him out of prison.
Interestingly, in one of those state cases, the judge was the very same
one who sent Taricani to prison several years later from the federal
bench.
Jim Taricani's sobering story illustrates the most important point
in this discussion. In two cases involving protection of his sources,
Taricani was faced with the same judge, but two different sets of laws,
and the outcomes were dramatically different. The state law protected
Taricani and recognized his and his profession's significant
contributions to democracy. The federal law, however, failed to protect
him from punishment for simply doing his job.
passage of h.r. 2102 will bring federal law into conformance with the
states, which consistently recognize that the failure to protect
reporters' sources will reduce the flow of information to the public
Thirty-three states and the District of Columbia have shield laws
enabling journalists to protect the identity of sources. Seventeen
other states have judicially recognized reporter's privileges, and
legislation is pending in several of these states to codify the
privilege. Clearly, the overwhelming sentiment among state legislators
and judges in this country is that shield laws are necessary to further
the public interest.
Significantly, 34 state attorneys general joined forces in 2005 to
urge the Supreme Court to recognize a reporter's right to keep sources
confidential in a case involving the leak of an undercover Central
Intelligence Agency officer's identity. These attorneys general
stressed that the states' recognition of a reporter's shield rested on
the belief that an ``informed citizenry and the preservation of news
information sources are of vital importance to a free society.'' \6\
Without a federal reporter's shield, journalists ``would find their
newsgathering abilities compromised, and citizens would find themselves
far less able to make informed political, social and economic
choices.'' \7\ Moreover, according to the state attorneys general, the
lack of a federal reporter's shield undermined the legislative and
judicial determinations of all the states recognizing such a shield.\8\
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\6\ Brief Amici Curiae of 34 States and the District of Columbia in
Judith Miller v. USA and Matthew Cooper and Time Inc. v. USA, Nos. 04-
1507 & 04-1508 (Sup. Ct. May 27, 2005), at 3-4 (State Attorneys General
Brief).
\7\ Id. at 4.
\8\ Id. at 3.
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Some have questioned whether requiring confidential sources to
disclose information would in fact impair investigative journalism and
the flow of information from sources to the public. For example, Judge
Torres wrote that the claim that disclosure of confidential sources
chills newsgathering is a ``myth'' perpetuated by the news media. Those
who believe that this is a ``myth'' are mistaken.
An article in the most recent American Journalism Review documented
recent changes that have occurred in the relationships between
journalists and their sources.\9\ The article explains that, while
journalists used to be able to promise simply that they would protect
their sources unconditionally, the emerging practice involves holding
more explicit conversations about the extent of the protections being
offered to a source and even requests to sources to sign written
agreements. These agreements define exactly under what circumstances
the source is or is not protected. By obtaining detailed agreements
from sources, the theory goes, reporters protect themselves from
threats of imprisonment and protect their employers from incurring
hefty fines.
---------------------------------------------------------------------------
\9\ See Lori Robertson, Kind of Confidential, American Journalism
Review (June/July 2007).
---------------------------------------------------------------------------
But these agreements can also chill newsgathering. It is myth to
suggest that journalists will be able to unearth the information they
need from sources when they must explain the procedures of a grand jury
proceeding and a subpoena before every interview. Just imagine the
important stories (including those discussed above) that would in all
likelihood have been lost if the sources had been asked to review a
detailed written agreement each time they met with a journalist.
Clearly, it is time for the federal government to bring itself in
line with the states and ensure that news sources feel safe in giving
information to journalists about issues of public concern. Passage of
the Free Flow of Information Act will ensure that sources with
information about fraud, waste, abuse and injustice in government and
the private sector are not inhibited from communicating with the news
media--and thus with the public as a whole.
h.r. 2102 strikes the appropriate balance between preserving the flow
of information to the public and protecting other governmental
interests
With regard to the bill itself, NAB believes that it strikes a
reasonable balance between the need to preserve a free flow of
information to the public and our collective concern in protecting
national security and other significant government interests. The
legislation essentially does no more than codify and make binding the
Department of Justice's established policy on issuing subpoenas to
reporters. The privilege it provides is qualified--it would require
journalists to testify at the request of criminal prosecutors, criminal
defendants and civil litigants who have shown by a preponderance of the
evidence that they have met the various tests for compelled disclosure.
A confidential source's identity can be compelled if disclosure is
necessary to prevent ``imminent and actual harm'' to national security,
to prevent ``imminent death or significant bodily harm,'' or to
identify a person who has disclosed significant trade secrets or
certain financial or medical information in violation of current law.
Importantly, the legislation provides a uniform set of standards to
govern when testimony can be sought from reporters.
NAB emphasizes that passage of this bill should not be delayed. As
the state attorneys general have stressed, the ``present confusion and
lack of clarity as to the existence and the scope of a federal''
reporter's shield ``disserve[s] the public, sources and reporters.''
\10\ If Congress does not ensure that journalists retain access to
confidential sources without fear of legal reprisal, we can rest
assured that sooner rather than later another journalist will face a
dilemma like the one that faced Jim Taricani. Forcing reporters to make
choices between going to jail or breaking promises of confidentiality
will increase the reluctance of potential sources to come forward with
information about matters of public concern. All of us will be less
informed about important issues as a result.
---------------------------------------------------------------------------
\10\ State Attorneys General Brief, at 8.
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conclusion
Again, NAB commends the sponsors of this bill from both parties for
their efforts to protect the flow of vital information to journalists
and ultimately to the public we serve through a federal shield law.
H.R. 2102 strikes the appropriate balance between promoting an informed
public and other governmental interests, and will bring federal law
into conformance with the states on this important issue. NAB urges the
Committee to swiftly pass the Free Flow of Information Act of 2007 and
bring it to the House floor.
Letter from Denis A. Cardman, Acting Director, American Bar
Association, dated June 13, 2007, to Chairman Conyers
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