[Congressional Record Volume 153, Number 133 (Monday, September 10, 2007)]
[Senate]
[Pages S11329-S11330]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SPECTER (for himself, Mr. Lugar, and Mr. Schumer):
  S. 2035. 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. SPECTER. Mr. President, I have sought recognition to introduce 
legislation to establish a reporter's privilege. The situation in the 
United States today is that newspaper reporters, journalists, are 
subject to a compulsory process to disclose confidential informants. 
The matter came to a head with the incarceration of a New York Times 
reporter, Judith Miller, for an extended period of time.
  Last year, Senator Lugar and I introduced legislation to establish a 
reporter's privilege. Since that time, the legislation has been revised 
to provide limitations where national security is involved or where the 
reporter may be the eyewitness to a specific event.
  This legislation differs from S. 1267, the bill which has been 
introduced by Senator Lugar and Senator Dodd, in that it tightens up 
exceptions where, for reasons of substantial public importance, the 
privilege will be limited. But today, there is a patchwork quality in 
the law, with the circuits going in different directions. Privileges 
are accorded under many State laws.
  This bill has very widespread support. So on behalf of Senator 
Schumer, Senator Lugar, and myself, I introduce this bill.
  I ask unanimous consent that the full text of my prepared statement 
be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Mr. President, I seek recognition today to introduce, with 
     Senators Schumer and Lugar, the Free Flow of Information Act 
     of 2007. This bill would establish a Federal reporter's 
     privilege to protect the free flow of information between 
     journalists and confidential sources. It seeks to reconcile 
     reporters' need to maintain confidentiality, in order to 
     ensure that sources will speak openly and freely with the 
     media, with the

[[Page S11330]]

     public's right to effective law enforcement and fair trials. 
     Senator Lugar and I introduced a similar bill last year, 
     which garnered the support of 10 cosponsors from both sides 
     of the aisle, as well as 39 media organizations, including 
     the Washington Post, The Hearst Corporation, Time Warner, ABC 
     Inc., CBS, CNN, The New York Times Company, and National 
     Public Radio.
       There has been a growing consensus that we need to 
     establish a Federal journalists' privilege to protect the 
     integrity of the news gathering process, a process that 
     depends on the free flow of information between journalists 
     and whistleblowers, as well as other confidential sources.
       Under my chairmanship, the Judiciary Committee held three 
     separate hearings on this issue at which we heard from 20 
     witnesses, including prominent journalists like William 
     Safire and Judith Miller, current and former Federal 
     prosecutors, including Deputy Attorney General Paul McNulty, 
     and First Amendment scholars.
       These witnesses demonstrated that there are two vital, 
     competing concerns at stake. On one hand, reporters cite the 
     need to maintain confidentiality in order to ensure that 
     sources will speak openly and freely with the news media. The 
     renowned William Safire, former columnist for the New York 
     Times, testified that ``the essence of news gathering is 
     this: if you don't have sources you trust and who trust you, 
     then you don't have a solid story--and the public suffers for 
     it.'' Reporter Matthew Cooper of Time Magazine said this to 
     the Judiciary Committee: ``As someone who relies on 
     confidential sources all the time, I simply could not do my 
     job reporting stories big and small without being able to 
     speak with officials under varying degrees of anonymity.''
       On the other hand, the public has a right to effective law 
     enforcement and fair trials. Our judicial system needs access 
     to information in order to prosecute crime and to guarantee 
     fair administration of the law for plaintiffs and defendants 
     alike. As a Justice Department representative told the 
     Committee, prosecutors need to ``maintain the ability, in 
     certain vitally important circumstances, to obtain 
     information identifying a source when a paramount interest is 
     at stake. For example, obtaining source information may be 
     the only available means of preventing a murder, locating a 
     kidnapped child, or identifying a serial arsonist.''
       As Federal courts have considered these competing 
     interests, they adopted rules that went in several different 
     directions. Rather than a clear, uniform standard for 
     deciding claims of journalist privilege, the Federal courts 
     currently observe a ``crazy quilt'' of different judicial 
     standards.
       The current confusion began 33 years ago, when the Supreme 
     Court decided Branzburg v. Hayes. The Court held that the 
     press's First Amendment right to publish information does not 
     include a right to keep information secret from a grand jury 
     investigating a criminal matter. The Supreme Court also held 
     that the common law did not exempt reporters from the duty of 
     every citizen to provide information to a grand jury.
       The Court reasoned that just as newspapers and journalists 
     are subject to the same laws and restrictions as other 
     citizens, they are also subject to the same duty to provide 
     information to a court as other citizens. However, Justice 
     Powell, who joined the 5-4 majority, wrote a separate 
     concurrence in which he explained that the Court's holding 
     was not an invitation for the Government to harass 
     journalists. If a journalist could show that the grand jury 
     investigation was being conducted in bad faith, the 
     journalist could ask the court to quash the subpoena. Justice 
     Powell indicated that courts might assess such claims on a 
     case-by-case basis by balancing the freedom of the press 
     against the obligation to give testimony relevant to criminal 
     conduct.
       In attempting to apply Justice Powell's concurring opinion, 
     Federal courts have split on the question of when a 
     journalist is required to testify. In the 33 years since 
     Branzburg, the Federal courts are split in at least three 
     ways in their approaches to Federal criminal and civil cases.
       With respect to Federal criminal cases, five circuits--the 
     First, Fourth, Fifth, Sixth, and Seventh Circuits--have 
     applied Branzburg so as to not allow journalists to withhold 
     information absent governmental bad faith. Four other 
     circuits--the Second, Third, Ninth, and Eleventh Circuits--
     recognize a qualified privilege, which requires courts to 
     balance the freedom of the press against the obligation to 
     provide testimony on a case-by-case basis. The law in the 
     District of Columbia Circuit is unsettled.
       With respect to Federal civil cases, nine of the 12 
     circuits apply a balancing test when deciding whether 
     journalists must disclose confidential sources. One circuit 
     affords journalists no privilege in any context. Two other 
     circuits have yet to decide whether journalists have any 
     privilege in civil cases. Meanwhile, 49 States plus the 
     District of Columbia have recognized a privilege within their 
     own jurisdictions. Thirty-one States plus the District of 
     Columbia have passed some form of reporter's shield statute, 
     and 18 States have recognized a privilege at common law.
       There is little wonder that there is a growing consensus 
     concerning the need for a uniform journalists' privilege in 
     Federal courts. This system must be simplified.
       Today, we move toward resolving this problem by introducing 
     the Free Flow of Information Act. The purpose of this bill is 
     to guarantee the flow of information to the public through a 
     free and active press, while protecting the public's right to 
     effective law enforcement and individuals' rights to the fair 
     administration of justice.
       This bill also provides ample protection to the public's 
     interest in law enforcement and fair trials. The bill 
     provides a qualified privilege for reporters to withhold from 
     Federal courts, prosecutors, and other Federal entities, 
     confidential source information and documents and materials 
     obtained or created under a promise of confidentiality. 
     However, the bill recognizes that, in certain instances, the 
     public's interest in law enforcement and fair trials 
     outweighs a reporter's interest in keeping a source 
     confidential. Therefore, it allows courts to require 
     disclosure where certain criteria are met.
       In most criminal investigations and prosecutions, the 
     Federal entity seeking the reporter's source information must 
     show that there are reasonable grounds to believe that a 
     crime has occurred, and that the reporter's information is 
     essential to the prosecution or defense. In criminal 
     investigations and prosecutions of leaks of classified 
     information, the Federal entity seeking disclosure must 
     additionally show that the leak caused significant, clear, 
     and articulable harm to the national security. In noncriminal 
     actions, the Federal entity seeking source information must 
     show that the reporter's information is essential to the 
     resolution of the matter.
       In all cases and investigations, the Federal entity must 
     demonstrate that nondisclosure would be contrary to the 
     public interest. In other words, the court must balance the 
     need for the information against the public interest in 
     newsgathering and the free flow of information.
       Further, the bill ensures that Federal Government entities 
     do not engage in ``fishing expeditions'' for a reporter's 
     information. The information a reporter reveals must, to the 
     extent possible, be limited to verifying published 
     information and describing the surrounding circumstances. The 
     information must also be narrowly tailored to avoid 
     compelling a reporter to reveal peripheral or speculative 
     information.
       Finally, the Free Flow of Information Act adds layers of 
     safeguards for the public. Reporters are not allowed to 
     withhold information if a Federal court concludes that the 
     information is needed for the defense of our Nation's 
     security, as long as it outweighs the public interest in 
     newsgathering and maintains the free flow of information to 
     citizens, or to prevent an act of terrorism. Similarly, 
     journalists may not withhold information reasonably necessary 
     to stop a kidnapping or a crime that could lead to death or 
     physical injury. Also, the bill ensures that both crime 
     victims and criminal defendants will have a fair hearing in 
     court. Under this bill, a journalist who is an eyewitness to 
     a crime or tort or takes part in a crime or tort may not 
     withhold that information. Journalists should not be 
     permitted to hide from the law by writing a story and then 
     claiming a reporter's privilege.
       It is time to simplify the patchwork of court decisions and 
     legislation that has grown over the last 3 decades. It is 
     time for Congress to clear up the ambiguities journalists and 
     the Federal judicial system face in balancing the protections 
     journalists need in providing confidential information to the 
     public with the ability of the courts to conduct fair and 
     accurate trials. I urge my colleagues to support this 
     legislation and help create a fair and efficient means to 
     serve journalists and the news media, prosecutors and the 
     courts, and most importantly the public interest on both ends 
     of the spectrum.

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