[Congressional Record Volume 160, Number 88 (Monday, June 9, 2014)]
[Extensions of Remarks]
[Pages E931-E932]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES APPROPRIATIONS ACT,
2015
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speech of
HON. ALAN GRAYSON
of florida
in the house of representatives
Wednesday, May 28, 2014
The House in Committee of the Whole House on the state of
the Union had under consideration the bill (H.R. 4660) making
appropriations for the Departments of Commerce and Justice,
Science, and Related Agencies for the fiscal year ending
September 30, 2015, and for other purposes:
Mr. GRAYSON. Madam Chair, the Commerce, Justice, Science, and Related
Agencies Appropriations Act, 2015 (H.R. 4660) is an appropriations bill
that funds various Federal Government programs and entities, including
the Department of Justice and the Federal Bureau of Investigation.
My amendment reads as follows, ``None of the funds made available by
this Act may be used to compel a journalist or reporter to testify
about information or sources that the journalist or reporter states in
a motion to quash the subpoena that he has obtained as a journalist or
reporter and that he regards as confidential.''
For purposes of this amendment, the definition of a ``reporter''
includes: any person, natural person, or entity who releases, reports
on, or provides information of a classified or unclassified nature to a
public audience or on the internet, does so on a regular basis, and
receives compensation for doing so. The term ``reporter'' is a
description of a profession.
For purposes of this amendment, the definition of a ``journalist''
includes: any person, natural person, or entity who releases, reports
on, or provides information of a classified or unclassified nature to a
public audience or on the internet, and does so on a regular or an
irregular basis. The term ``journalism'' describes an act, not a
profession. A person, entity, or natural person is a journalist so long
as he or she is engaged in the act of journalism. An act of journalism
involves the collection, analysis, description, dissemination, and/or
publication of information.
James Risen, Julian Assange, Wikileaks, and Glenn Greenwald meet the
definitions of reporters and journalists under these definitions.
This amendment also prohibits the use of any funds made available by
this Act to compel testimony from any individual who is engaged in
journalism in any supporting role, such as assisting a journalist with
analysis, collection, description, dissemination, and/or publication of
information to a public audience.
Funds appropriated under this Act may not be used to compel testimony
by journalists or reporters to reveal confidential sources.
This amendment mirrors the language supplied in other federal
statutes defining journalism. For instance, the Freedom of Information
Act defines a ``representative of the news media'' as ``any person or
entity that gathers information of potential interest to a segment of
the public, uses its editorial skills to turn the raw materials into a
distinct work, and distributes that work to an audience.'' 5 U.S.C.
Sec. 552(4)(A)(ii)(IIII).
This amendment also follows the spirit of the United States Supreme
Court and Circuit Court precedents, which have widely and historically
protected the vital newsgathering function performed by journalists.
The patriot pamphleteers had no corporate affiliations, no professional
societies, and no journalism degrees. The key test is whether
individuals are engaged in news-related activities. Former Chief
Justice Warren Burger observed that adopting a narrower definition
would be ``reminiscent of the abhorred licensing system of Tudor and
Stuart England--a system the First Amendment was intended to ban from
this country.'' First National Bank of Boston v. Bellotti, 435 U.S.
765, 801 (1978) (Burger, C.J., concurring).
Early Supreme Court jurisprudence recognized a broad definition of
journalism, noting
[[Page E932]]
that the function of the press is ``performed by lecturers, political
pollsters, novelists, academic researchers, and dramatists.'' Branzburg
v. Hayes, 408 U.S. 665, 705 (1972) (Powell, J., concurring); see also
Lovell v. Griffin, 303 U.S. 444, 452 (1932) (``The liberty of the press
is not confined to newspapers and periodicals. It necessarily embraces
pamphlets and leaflets. These indeed have been historic weapons in the
defense of liberty, as the pamphlets of Thomas Paine and others in our
own history abundantly attest. The press in its connotation comprehends
every sort of publication which affords a vehicle of information and
opinion.'')
This amendment is consistent with the holdings of several federal
appellate circuits which take a functional view of journalism, defining
a reporter as an individual who engages in news-related activities to
disseminate information to an audience. For example, the First Circuit
Court of Appeals has held that reporters should be protected based on
function, rather than credentials or status. Glik v. Cunnille, 655 F.3d
78, 84 (1st Cir. 2011) (``Changes in technology and society have made
the lines between private citizen and journalist exceedingly difficult
to draw [and] news stories are now just as likely to be broken by a
blogger at her computer as a reporter at a major newspaper. Such
developments make clear why the news-gathering protections of the First
Amendment cannot turn on professional credentials or status.''); see
also Von Bulow v. Von Bulow, 811 F.2d 136, 144 (2d Cir. 1987) (``The
individual claiming the privilege must demonstrate, through competent
evidence, the intent to use material--sought, gathered or received--to
disseminate information to the public and [] such intent existed at the
inception of the newsgathering process.'').
The Second Circuit's standard, based on newsgathering function
articulated in Von Bulow, was reiterated by the Ninth and D.C. Circuit
Courts. See Shoen v. Shoen, 5 F.3d 1289, 1293 (9th Cir. 1993);
Alexander v. FBI, 186 F.R.D. 21, 50 (D.D.C. 1998). A similar bar is set
in the Tenth Circuit. Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 436-
37 (10th Cir. 1977) (concluding that a documentary filmmaker was not
precluded from the privilege because his mission was investigative
reporting for use in preparing a documentary film, regardless of the
fact that he was ``not a salaried newspaper reporter'').
Finally, this amendment is consistent with the views of First
Amendment scholars, who agree that a functional definition is most
appropriate. See generally Sonja R. West, Awakening the Press Clause,
58 UCLA L. Rev. 1025, 1065-66 (2011) (``[The functional] approach
avoids some of the pitfalls of the definition-by-affiliation
approach.''); see also Linda L. Berger, Shielding the Unmedia: Using
the Process of Journalism to Protect the Journalist's Privilege in an
Infinite Universe of Publication, 39 Houston L. Rev. 1371, 1407 (2003)
(``[N]o patriot printer or colonial pamphleteer had a journalism
degree. Certification by a government agency or by a professional group
carries the possibility of de-certification based on value judgments or
viewpoints.'').
This amendment was passed in an environment in which the Department
of Justice has increased pressure upon journalists and their sources.
Many of the nation's most respected reporters have characterized this
as an assault on press freedom that chills investigative reporting and
the public's right to know.
Recent revelations that the Department of Justice secretly subpoenaed
twenty phones lines at the Associated Press, and a legal brief filed by
the Justice Department calling a Fox News journalist a ``co-
conspirator'' for simply protecting a source, have provoked widespread,
bipartisan criticism. Many are concerned that the Department of Justice
is actively impeding newsgathering activities protected by the First
Amendment. The House of Representatives intends, by passing this
amendment, to reject this harassment of journalists by the Department
of Justice.
Moreover, recently-disclosed digital surveillance activities by the
United States government have had an inherent chilling effect on the
act of journalism and the exercise of the First Amendment. This
amendment is intended to ensure that the rights and newsgathering
activities of reporters and journalists are not chilled when uncovering
information involving or implicating the United States government or
associated institutions. Furthermore, both Congress and the President
have recognized the problem of `over-classification' of documents by
agencies across the Federal Government. If journalists are prevented
from publishing classified information, and the government classifies
enormous quantities of information that should rightfully be in the
public domain, the public is prohibited from knowing the workings of
its government. Using Federal Government resources to undermine
legitimate news-related activities or chill journalism, particularly
when those activities aim to disclose the workings of government
because that information is classified, constitutes a threat to the
self-government of the American public. Federal government attempts to
undermine legitimate news-related activities and/or chill journalism,
are prohibited by this amendment.
Finally, the act of journalism has been transformed by the internet.
New methods for uncovering and publishing newsworthy information, and
for financing such newsgathering and dissemination, are now available.
This amendment protects the ability for those who may not have
traditionally been considered journalists to engage in journalism. It
is further intended to allow for experimentation in publication and
dissemination of news without the threat of the Department of Justice
using its resources to compel the revelation of journalistic sources
through legal coercion.
This amendment is to be construed liberally and broadly, to
effectuate its purpose of protecting journalists and their sources from
any coercive action taken by the government and the legal system. Its
spirit applies to other government agencies, and to litigation between
private parties. The terms ``information or sources'' and
``confidential'' are to be given the widest possible construction. The
limitation applies not only to the quashing of subpoenas, but also to
every form of discovery, civil and criminal contempt, arrest and
imprisonment, and any form of coercion within the legal system.
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