[Congressional Record Volume 153, Number 71 (Wednesday, May 2, 2007)]
[Senate]
[Pages S5504-S5505]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LUGAR (for himself, Mr. Dodd, Mr. Graham, Mr. Domenici, 
        and Ms. Landrieu):
  S. 1267. A bill to maintain the free flow of information to the 
public by providing conditions for the federally compelled disclosure 
of information by certain persons connected with the news media; to the 
Committee on the Judiciary.
  Mr. LUGAR. Mr. President, I am pleased to rise today with my 
colleagues Senators Dodd, Graham, Domenici, and Landrieu to introduce 
the Free Flow of Information Act.
  The free flow of information is an essential element of democracy. A 
free press promotes an open marketplace of information and provides 
public and private sector accountability to our Nation's electorate. By 
ensuring the free flow of information, citizens can work to bring about 
improvements in our governance and in our civic life. It is in our 
nation's best interest to have an independent press that is free to 
question, challenge, and investigate issues and stories, without 
concern for political party, position or who holds power. The role of 
the media as a conduit between government and the citizens it serves 
must not be devalued.
  This principle that we practice at home is also one that we promote 
abroad. Spreading democracy abroad has become a pillar of United States 
foreign policy, and we have recognized that a free and independent 
press is both essential to building democracies and a barometer of the 
health of young and often imperfect democratic systems. The example of 
press freedom we set in this country is an important beacon to guide 
other nations as they make the transition from autocratic forms of 
government.
  Unfortunately, the free flow of information to citizens of the United 
States is inhibited and our open market of information is being 
threatened. While gathering information on a story, a journalist is 
sometimes required to accept information under a promise of 
confidentiality. Without assurance of anonymity, many conscientious 
citizens with evidence of wrongdoing would stay silent. Restricting the 
manner in which appropriate news is gathered is tantamount to 
restricting the information that the public has the right to hear.
  After a long period when there were few clashes between the media and 
authorities, a disturbing new trend has developed. More than 30 
reporters have recently been served subpoenas or questioned in at least 
four different Federal jurisdictions about their confidential sources. 
From 1991 to September 6, 2001, the Department of Justice issued 88 
subpoenas to the media, 17 of which sought information leading to the 
identification of confidential sources. In fact, three journalists have 
been imprisoned at the request of the Department of Justice, U.S. 
attorneys under its supervision, or special prosecutors since 2000. As 
a result, the press is hobbled in performing the public service of 
reporting news. I fear the end result of such actions is that many 
whistleblowers will refuse to come forward and reporters will be unable 
to provide the American people with information they deserve.
  Most jurisdictions in our country have recognized that confidential 
sources are integral to the press's role of keeping the public 
informed, and have provided some kind of shield so that journalists can 
keep secret the names of such sources. Every State and the District of 
Columbia, excluding Wyoming, has, by legislation or court ruling, 
created a privilege for reporters not to reveal their confidential 
sources. My own State of Indiana provides qualified reporters 
appropriate protection from having to reveal any such information in 
court.
  The Federal courts of appeals, however, have an inconsistent view of 
this matter. Some circuits allow the privilege in one category of 
cases, while others have expressed skepticism about whether any 
privilege exists at all. It does not make sense to have a Federal 
system of various degrees of press freedom dependent upon where you 
live or who provides the subpoena. In fact, 34 State attorneys general 
have argued that the lack of a clear standard of Federal protection 
undermines state laws.
  In addition, there is ambiguity between official Department of 
Justice rules and unofficial criteria used to secure media subpoenas. 
The Department of Justice guidelines also do not apply to special 
prosecutors or private civil litigants. There is an urgent need for 
Congress to state clear and concise policy guidance.
  In response to this situation, 2 years ago, I was pleased to join 
with my colleague Congressman Mike Pence, and Congressman Rick Boucher 
in the House of Representatives and Senator Chris Dodd in the Senate to 
introduce the Free Flow of Information Act. This legislation provides 
journalists with certain rights and abilities to seek sources and 
report appropriate information without fear of intimidation or 
imprisonment. The bill sets national standards which must be met before 
a Federal entity may issue a subpoena to a member of the news media in 
any Federal criminal or civil case. It sets out certain tests that 
civil litigants or prosecutors must meet before they can force a 
journalist to turn over information. Litigants or prosecutors must 
show, for instance, that they have tried, unsuccessfully, to get the 
information in other ways and that the information is critical to the 
case. These standards were based on Justice Department guidelines and 
common law standards.
  Subsequently, additional protections have been added to this bill to 
ensure that information will be disclosed in cases where the 
information is critical to prevent death or bodily harm or in cases 
which relate to the unlawful disclosure of trade secrets. The bill also 
permits a reporter to be compelled to reveal the source in certain 
national security situations. Finally, the bill would provide 
protections to ensure that source information can be provided when 
personal health records and financial records were disclosed in 
violation of Federal law.
  By providing the courts with a framework for compelled disclosure, 
our legislation promotes greater transparency of government, maintains 
the ability of the courts to operate effectively, and protects 
whistleblowers who identify government or corporate misdeeds.
  It is also important to note what this legislation does not do. The 
legislation neither gives reporters a license to break the law, nor 
permits reporters to interfere with criminal investigation efforts. 
State shield laws have been on the books for years, and I have not seen 
any evidence to support a correlation between reporter privilege laws 
and criminal activity or threats to public safety. Furthermore, the 
Free Flow of Information Act does not weaken our national security. The 
explicit national security exception will ensure that reporters are 
protected while maintaining an avenue for prosecution and disclosure 
when considering the defense of our country. This qualified privilege 
has been carefully crafted to balance the distinct and important roles 
of both the press and law enforcement.

[[Page S5505]]

  As ranking member of the United States Senate Foreign Relations 
Committee, I believe that passage of this bill would have positive 
diplomatic consequences. This legislation not only confirms America's 
Constitutional commitment to press freedom, it also advances President 
Bush's American foreign policy initiatives to promote and protect 
democracy. Our Nation always leads best when it leads by example.
  Unfortunately, the press remains under siege in a number of foreign 
countries. For instance, Reporters Without Borders points out that 125 
journalists are currently in jail around the world, with more than half 
of these cases in China, Cuba, and Burma. This is not good company for 
the United States of America. Global public opinion is always on the 
lookout to advertise perceived American double standards.
  I would like to thank my colleague, Senator Chris Dodd as well as 
Mike Pence and Rick Boucher, in the House of Representatives for their 
tireless work on this issue. I look forward to continuing work with 
each of them to protect the free flow of information.
  Mr. DODD. Mr. President, I rise to join my colleague Senator Lugar, 
along with Representatives Boucher and Pence in the House of 
Representatives, in introducing the Free Flow of Information Act. This 
bill would protect journalists from being forced to reveal their 
confidential sources, not as an end in itself, but as a means to a 
well-informed public. I applaud the tireless efforts of the senior 
Senator from Indiana, Mr. Lugar, in once again bringing this important 
issue to the attention of Congress and indeed the nation.
  I hardly have to read the litany of grave wrongs that have been 
exposed because journalists called the powerful to account. And I don't 
have to remind you how many of those exposures relied on confidential 
sources. Without confidential sources, would we still be ignorant about 
abuse of power in the Watergate era? Without confidential sources, 
would Enron still be profiting from fraud? How long would torture at 
Abu Ghraib have persisted, if proof hadn't been provided to the press?
  The free flow of information provides the American people its most 
meaningful check on abuses such as those. Thomas Jefferson said it 
best: ``If I had to make a choice, to choose the government without the 
press or to have the press but without the government, I will select 
the latter without hesitation.'' Jefferson clearly understood that a 
free Government cannot possibly last without a free press.
  But today, we find this cornerstone of self-government facing a new 
threat. This threat has not come from the dictates of a dangerous 
government, but from the best of intentions. In a spate of recent 
cases, prosecutors have used subpoenas, fines, and jail time to compel 
journalists to reveal their anonymous sources. Judith Miller of The New 
York Times was jailed for 85 days for refusing to reveal a source. Two 
San Francisco Chronicle reporters were found in contempt of court for 
refusing to identify sources and hand over material related to the 
BALCO steroids investigation. A Rhode Island journalist was sentenced 
to home arrest on similar charges. Last year alone, a total of some two 
dozen reporters have been subpoenaed or questioned about confidential 
sources. They were all journalists prosecuted only for the offense of 
journalism.
  The impact of these subpoenas on the broader issue of freedom of 
information is undeniable. Last summer, for instance, the editor-in-
chief of Time magazine testified before the Senate Judiciary Committee. 
This is what he said about the fallout from the Justice Department's 
efforts to obtain confidential information from a Time reporter: 
``Valuable sources have insisted that they no longer trusted the 
magazine and that they would no longer cooperate on stories. The 
chilling effect is obvious.''
  The chilling effect is obvious. Experience has shown us that the most 
effective constraint on free speech need not be blatant censorship: A 
few cases like Ms. Miller's and the San Francisco Chronicle's, and news 
will begin censoring itself. We can only speculate as to how many 
editors and publishers put the brakes on a story for fear that it could 
land one of their reporters in a spider web of subpoenas, charges of 
contempt, and prison. When we minimize the impact of confidential 
sources, serious journalism is crippled. We will find our papers full 
of stories more and more palatable to the powerful and secretive. No 
one argues that that is the intention of those prosecuting these cases; 
but few deny that it could, in time, be their effect.
  When journalists are hauled into court and threatened with 
imprisonment if they don't divulge their sources, we are entering 
dangerous territory for a democracy. The information we need to remain 
sovereign will be degraded; the public's right to know will be 
threatened; and I suggest to you that the liberties we hold dear will 
be threatened as well.
  That is exactly why we need a Federal reporter shield. Forty-nine 
States and the District of Columbia have already recognized that need 
by enacting similar protection on the state level either through 
legislation or court decisions; the Free Flow of Information Act simply 
extends that widely recognized protection to the Federal courts.
  The new version of this bill expands coverage in two significant 
ways. First, it will not only protect the information journalists 
obtain under the promise of confidentiality; it will also cover the 
``work product'' of journalists as well, whether or not it was subject 
to that promise. And second, it no longer limits protection to 
mainstream reporters; the new version also shields any person ``engaged 
in journalism.'' In today's expansive media environment, it would be 
unacceptable to deny the shield to our citizen-journalists.
  Of course, the reporter shield is not absolute. The public's need to 
know must be weighed against other goods, and that is why the bill 
establishes a balancing test that takes into account ``both the public 
interest in compelling disclosure and the public interest in gathering 
news and maintaining the free flow of information.'' Specifically, the 
bill will not protect anonymity when disclosure of a source would 
prevent imminent harm to national security, imminent death or bodily 
harm, or the release of personal or health related information. In 
other words, we are balancing our right to know with our need for 
security, whether physical or economic. Secrecy is as necessary in 
extreme circumstances as it is dangerous on the whole.
  It is on the idea of balance that I would like to conclude. A 
prosecution, whatever its individual merits, sacrifices something 
higher when it turns on reporters; and so those merits must be balanced 
against the broader harms such a prosecution can work. If a free press 
inexorably creates a free government, as Jefferson suggested, then the 
agents of that free government, prosecutors included, owe a high debt 
to journalism. When prosecutors threaten journalism, they have begun to 
renege on that debt. So I am proud to support this valuable bill, a 
step toward rebalancing the pursuit of justice and the diffusion of 
truth.
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