[Congressional Record Volume 150, Number 134 (Friday, November 19, 2004)]
[Senate]
[Pages S11646-S11648]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DODD:
  S. 3020. A bill to establish protections against compelled disclosure 
of sources, and news or information, by persons providing services for 
the news media; to the Committee on the Judiciary.
  Mr. DODD. Mr. President, I am going to send a copy of this bill to 
the desk to be printed in the Record. It is not going to be referred to 
any committees in the waning minutes of this 108th Congress, but I will 
submit it for the Record. My plans are to reintroduce this legislation 
in January when we reconvene for the 109th Congress.
  I thought it might be helpful to have this legislation in the Record 
for my colleagues to review. It is called the Free Speech Protection 
Act of 2004.

[[Page S11647]]

  This bill is designed to ensure that the free speech guarantees 
enshrined in the First to the Constitution will be strong and effective 
for many generations to come. After all, it is the free flow of news 
and information to the public on a wide variety of concerns which makes 
our democracy vibrant and alive.
  Indeed, the very design of our democratic institutions is premised in 
large part upon an informed citizenry that could exercise informed 
judgments.
  As James Madison once observed:

       Knowledge will forever govern ignorance: And apeople who 
     mean to be their own Governor, must arm themselves with the 
     power that knowledge gives.

  Madison and the other Founders of our great Republic understood full 
well that the best guarantee of a knowledgeable citizenry is a free 
press and a public free to speak to the press. The press must be free 
to report on the human condition, the conduct of public officials, 
matters of business and corporate governance, as well as the strengths 
and weaknesses of our society and its institutions.
  A free press must also be able to access a broad spectrum of views 
from a wide variety of sources. Once individuals deliberate over such 
information, they are able to make more educated decisions. In 
addition, they can also more effectively and intelligently participate 
in matters of public concern. To quote Madison once again:

       Popular government without popular information or the means 
     of acquiring it is but a prologue to a farce, or a tragedy, 
     or perhaps both.

  In fact, one of the hallmarks of a totalitarian government is that 
the state controls the press and similar sources of public information. 
Such regimes are characterized by extreme levels of secrecy and a total 
lack of transparency. The free flow of information to the public is 
greatly restricted. Criticism of the government could result in 
imprisonment or even death.
  In recent memory, such regimes existed in Nazi Germany, the Soviet 
Union, and Saddam Hussein's Iraq, where the press was often used as a 
tool for propaganda. Unfortunately, there are still a number of 
governments around the globe today that greatly restrict the flow of 
news and information to their citizens.
  The United States, in its formative years, never chose that path. The 
Founding Fathers of this great Nation of ours knew the value of a free 
press because they had often been denied it by their colonial rulers. 
Repressive measures had long been part of English history in this 
regard, such as the censorship of published materials and a licensing 
system whereby nothing could get published without the government's 
consent.
  Our Founding Fathers recognized then that for a society to remain 
free, it must also allow for divergent views and opinions to be 
expressed, and for ideas to be openly exchanged. In many respects, the 
rights of free speech and a free press protect the government from 
trampling on the other political and personal liberties all Americans 
hold so dear.
  Freedom of speech and freedom of the press are like the government 
watchdog that shines a spotlight when other rights are being 
threatened. Without this, the press becomes an extension of the 
government and the people know only what the government wants them to 
know. As Jefferson once commented:

       When the press is free and everyone is able to read, all is 
     safe.

  Congress cannot afford to stand idly by and allow our sacred First 
Amendment freedoms to be threatened. Let me be clear. The legislation I 
submitted to the desk, the Free Speech Protection Act of 2004, is not 
merely about protecting the press. Instead, this legislation is about 
consumer protection. It is about openness, debate, the free flow of 
information and deliberation--the very ideals that the Senate holds so 
dear.
  It is also about ensuring that our constituents, the American 
citizenry, have access to the knowledge and information they need to 
make educated decisions and fully participate in our democracy.
  Yet these freedoms which we hold so dear are not as safe as they have 
been in other times in the life of our Nation. They have come under 
attack by the heavy hand of Government in a manner not seen since the 
height of the Watergate scandal 30 years ago.
  The press today is frequently being subpoenaed to appear in Federal 
court and threatened with fines and/or imprisonment if they refuse to 
reveal a confidential source to the prosecutor or attorneys involved in 
the lawsuit. In some instances, the prosecutor or attorneys might also 
request the reporter's notes, video outtakes, or other unpublished 
information.
  In recent months, the press has come under intense pressure to reveal 
the identity of their confidential sources, threatening the public's 
right to know.
  In Providence, RI, WJAR-TV reporter Jim Taricani aired an FBI 
surveillance tape in 2001 that showed an aide to Mayor Vincent 
``Buddy'' Cianci accepting a bribe from a local businessman. Taricani 
broke no law in airing the tape, but a special prosecutor was 
subsequently brought in to investigate who leaked the information. He 
refused to identify the source and was convicted of criminal contempt 
yesterday in Federal court. Taricani now faces 6 months in prison when 
he is sentenced in December.
  Perhaps the most alarming instance in recent months of the growing 
threat to the sacred right to freedom of speech in America is the case 
of Judith Miller of the New York Times. Last month, a Federal judge 
held Miller in contempt of court for refusing to name her sources to 
prosecutors investigating the disclosure to syndicated columnist Robert 
Novak and to other journalists of Valerie Plame's identity as a covert 
CIA agent. Plame's husband, former Ambassador Joseph Wilson, IV, had in 
a New York Times editorial criticized the Bush administration for 
claiming that Iraq had tried to buy uranium from Niger.
  Unidentified senior administration officials revealed Plame's 
identity to Robert Novak and other Washington area journalists, 
allegedly as an act of revenge for Wilson speaking out against 
President Bush's rationale for invading Iraq.
  Mr. Novak then published Plame's identity in a July 2003 column, 
which prompted an investigation by the Justice Department and the 
subpoenaing of several journalists before a Federal grand jury, 
including Judith Miller, Tim Russert of NBC's ``Meet the Press,'' 
Walter Pincus and Glen Kessler of the Washington Post, and Time 
magazine reporter Matthew Cooper.
  Some of these reporters have talked to the prosecutors after the 
alleged Government sources signed waivers releasing the journalists 
from any pledge of confidentiality. New York Times reporter Judith 
Miller, however, has refused to testify, even under the limited terms 
of the waiver. As a result, she is being held in contempt of court and 
could face up to 18 months in jail unless she agrees to testify.
  What is so surprising about this case is that Judith Miller never 
even published an article in the New York Times, or any other newspaper 
or magazine for that matter, about Valerie Plame. The mere fact that 
Miller contemplated writing such an article and had conducted 
interviews for it was enough for the judge to hold her in contempt of 
court for refusing to name sources.
  Currently, 31 States and the District of Columbia have enacted 
protections for gatherers and disseminators of news and information. 
They include red States, blue States, Alabama, North Carolina, and 
Montana, for example.
  Why then is there a need for a Federal statute in this area? A strong 
and uniformed Federal law on shielding would provide uniformity and 
consistency to the patchwork of inconsistent court decisions and State 
statutes currently in place.
  In many instances, whether the disclosure will be compelled and how 
much information will be disclosed depends upon the particular State in 
which the journalist is pursuing a story when he or she is subpoenaed. 
The different potential outcomes affect reporters' practices, the flow 
of information, the articles written or not written, in various news 
media. It ultimately impacts the public's ability to learn about 
matters of interest and importance as well.
  The protections that these laws and court rulings provide vary widely 
in detail and in scope. For example, some States grant nearly complete 
protection for sources and information, while

[[Page S11648]]

others provide little or none. In addition, the protections may differ 
in their applicability to criminal and/or civil proceedings.
  In the Federal court system, for instance, most have interpreted 
Branzburg, a 1972 United States Supreme Court decision, to provide at 
least qualified news gathering protection--that is, a protection that 
can be overcome in certain circumstances. A few Federal courts, 
however, such as the Seventh Circuit, have rejected such protection, or 
have limited it only to when the subpoenas are being used to harass the 
press.
  For those reasons, I think it is quite clear that a national standard 
would protect gatherers and disseminators of information from the 
varying State statutes and their interpretations by State courts. This 
goal is exactly what the Free Speech Protection Act of 2004 would 
achieve.
  Under the legislation, the protection against compelled disclosure 
for sources would be absolute. The protection against compelled 
disclosure of news and information, however, is qualified. That is, an 
individual involved in gathering news would be required to reveal their 
unpublished material only under certain circumstances. The legislation 
requires three criteria to be met before such news or information can 
be disclosed.
  First, the person seeking the news or information must prove by clear 
and convincing evidence that the news or information is critical or 
necessary to significant legal issues before a judicial, legislative, 
or administrative body that has the power to issue a subpoena.
  Secondly, the news or information could not be obtained by 
alternative means. Finally, there is an overriding public interest in 
the disclosure that must exist.
  The legislation I am introducing this evening is a work in progress. 
Obviously, in the coming weeks I intend to further refine it, and in 
the 109th Congress to seek out my colleagues' advice and counsel on how 
we might proceed. I am nevertheless introducing this bill in the 
closing hours of this Congress because I believe the Senate discussion 
of this matter is urgent. The public's right to know is under attack. 
When that happens, all Americans suffer since they are deprived of 
knowledge and information which affects their lives.
  There are countless examples of information that we have received 
because there have been confidential sources who have come forward. 
Certainly, we can go back to Watergate, Whitewater, or Iran-Contra, Abu 
Ghirab--the prison scandal in Iraq--Enron, WorldCom, corporate 
governance issues, the list is almost endless. Had it not been for 
confidential sources coming forward and sharing information with a free 
press that would then share that with the public, if we had to rely 
exclusively on government press releases or press conferences, then we 
might never have learned anything about some of these issues which have 
been so vitally important to make our Government and our Nation 
stronger.
  I urge my colleagues to take a look at this proposal and urge them to 
consider it when we return in January. I will reintroduce it again and 
urge them to support it.
  I ask unanimous consent that the text of the bill be printed in the 
Record.

                                S. 3020

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Free Speech Protection Act 
     of 2004''.

     SEC. 2. DEFINITIONS.

       In this Act:
       (1) Covered person.--The term ``covered person'' means a 
     person who--
       (A) engages in the gathering of news or information; and
       (B) has the intent, at the beginning of the process of 
     gathering news or information, to disseminate the news or 
     information to the public.
       (2) News or information.--The term ``news or information'' 
     means written, oral, pictorial, photographic, or 
     electronically recorded information or communication 
     concerning local, national, or worldwide events, or other 
     matters.
       (3) News media.--The term ``the news media'' means--
       (A) a newspaper;
       (B) a magazine;
       (C) a journal or other periodical;
       (D) radio;
       (E) television;
       (F) any means of disseminating news or information gathered 
     by press associations, news agencies, or wire services 
     (including dissemination to the news media described in 
     subparagraphs (A) through (E)); or
       (G) any printed, photographic, mechanical, or electronic 
     means of disseminating news or information to the public.

     SEC. 3. COMPELLED DISCLOSURE PROHIBITED.

       (a) In General.--Except as provided in section 4, no entity 
     of the judicial, legislative, or executive branch of the 
     Federal Government with the power to issue a subpoena or 
     provide other compulsory process shall compel any covered 
     person who is providing or has provided services for the news 
     media to disclose--
       (1) the source of any news or information procured by the 
     person, or any information that would tend to identify the 
     source, while providing services for the news media, whether 
     or not the source has been promised confidentiality; or
       (2) any news or information procured by the person, while 
     providing services for the news media, that is not itself 
     communicated in the news media, including any--
       (A) notes;
       (B) outtakes;
       (C) photographs or photographic negatives;
       (D) video or sound tapes;
       (E) film; or
       (F) other data, irrespective of its nature, that is not 
     itself communicated in the news media.
       (b) Supervisors, Employers, and Persons Assisting a Covered 
     Person.--The protection from compelled disclosure described 
     in subsection (a) shall apply to a supervisor, employer, or 
     any person assisting a person covered by subsection (a).
       (c) Result.--Any news or information obtained in violation 
     of the provisions of this section shall be inadmissible in 
     any action, proceeding, or hearing before any entity of the 
     judicial, legislative, or executive branch of the Federal 
     Government.

     SEC. 4. COMPELLED DISCLOSURE PERMITTED.

       (a) News or Information.--A court may compel disclosure of 
     news or information described in section 3(a)(2) and 
     protected from disclosure under section 3 if the court finds, 
     after providing notice and an opportunity to be heard to the 
     person or entity from whom the news or information is sought, 
     that the party seeking the news or information established by 
     clear and convincing evidence that--
       (1) the news or information is critical and necessary to 
     the resolution of a significant legal issue before an entity 
     of the judicial, legislative, or executive branch of the 
     Federal Government that has the power to issue a subpoena;
       (2) the news or information could not be obtained by any 
     alternative means; and
       (3) there is an overriding public interest in the 
     disclosure.
       (b) Source.--A court may not compel disclosure of the 
     source of any news or information described in section 
     3(a)(1) and protected from disclosure under section 3.

     SEC. 5. ACTIVITIES NOT CONSTITUTING A WAIVER.

       The publication by the news media, or the dissemination by 
     a person while providing services for the news media, of a 
     source of news or information, or a portion of the news or 
     information, procured in the course of pursuing professional 
     activities shall not constitute a waiver of the protection 
     from compelled disclosure that is described in section 3.

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