[Congressional Record Volume 155, Number 56 (Thursday, April 2, 2009)]
[Extensions of Remarks]
[Pages E853-E854]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  FREE FLOW OF INFORMATION ACT OF 2009

                                 ______
                                 

                               speech of

                         HON. JOHN CONYERS, JR.

                              of michigan

                    in the house of representatives

                        Tuesday, March 31, 2009

  Mr. CONYERS. Madam Speaker, H.R. 985, the Free Flow of Information 
Act of 2009, creates a qualified privilege to protect journalists from 
being compelled by Federal authorities to disclose confidential sources 
or other non-public information they have collected in the course of 
their reporting.
  A court could still compel disclosure when the public interest 
justifies it--in cases of terrorism or other significant national 
security threats, for example, or to prevent imminent death or 
significant bodily harm, or in pursuit of individuals who have 
illegally revealed confidential private information or sensitive 
national security secrets.

[[Page E854]]

  In this way, the bill strikes a careful balance between the public's 
right to know and the needs of law enforcement, national security, and 
the fair administration of justice.
  The protections of this bill have never been more crucial to a free 
press and an informed public. In recent years, the press has been under 
assault, as reporters are increasingly being subpoenaed--and in some 
cases imprisoned--for refusing to open their notebooks and disclose 
their confidential sources.
  Right now, for example, a Pulitzer Prize-winning reporter for the 
Detroit Free Press named David Ashenfelter faces possible contempt 
charges for refusing to disclose sources who exposed serious 
prosecutorial misconduct. In the last Congress, Pulitzer Prize-winner 
Bill Safire and others testified on the importance of this bill. 
President Bush's Solicitor General Ted Olson also strongly supports 
press shield legislation.
  H.R. 985 has been carefully tailored through the legislative process 
and represents a well-considered, bipartisan, consensus approach. The 
bill was significantly revised and amended during the proceedings of 
the last Congress to address concerns of Members and the Executive 
Branch that it strike a more sensitive balance in the areas of 
terrorism, national security, and other critical areas. These changes 
and revisions markedly strengthened the bill, and it passed the House 
by an overwhelming bipartisan vote of 398 to 21.
  This legislation has the strong support of members on both sides of 
the aisle. It is also supported by more than 100 editorial boards, and 
a diverse group of over 50 media companies and organizations, including 
the Newspaper Association of America, the Associated Press, the 
National Association of Broadcasters, News Corp., as well as CNN and 
all the broadcast networks. This broad and bipartisan support only 
underscores the importance of this measure.
  Even a bill with such strong support is still open to improvement, 
however, and I would like to identify one aspect of the revisions 
introduced during the last Congress that may have some unwelcome and 
unintended consequences. At that time, we appropriately revised the 
definition of a ``covered person'' to include the requirement that the 
person be ``regularly'' engaged in journalism. That limitation ensures 
that a person cannot claim the protections of the Act by simply putting 
up a Web site and claiming to be a reporter after receiving a Federal 
subpoena.
  At the same time, however, we also added a requirement that, to be 
covered by the Act, a person must earn a ``substantial portion of the 
person's livelihood'' or ``substantial financial gain'' from reporting 
activities. I appreciate the effort to strike a careful balance 
reflected in this change, but I have some concern that, as media 
evolves and online reporting and citizen journalism become more and 
more prominent, this definition may deny credible, responsible 
reporters and commentators the protection of the Act, which I do not 
believe is Congress's intent.
  Furthermore, in an era of mass layoffs in the news business, some 
displaced journalists may elect to continue their reporting on a part-
time or freelance basis, or may simply carry on their work in the 
public interest on their own time even if they obtain other employment 
outside the professional press. To my mind, such persons should retain 
the protection of the Act, but the language may be ambiguous in this 
type of situation.
  Finally, while I appreciate that the current definition of ``covered 
person'' will cover many responsible, established bloggers, more and 
more good and significant reporting is being done by small, local blogs 
or by true volunteers who engage in journalism on their own time, but 
do so with credibility, professionalism, and integrity. Not all 
bloggers meet these standards, of course, but many do, and I would hope 
they will be entitled to the protections of the Act in its final form. 
Indeed, given the sensationalistic quality of a good deal of modern 
professional ``journalism,'' it strikes me as somewhat arbitrary to 
exclude serious political reporters and commentators from coverage 
simply because of the technology they use or the price they charge.
  I note that the Senate version of this legislation uses a more 
functional test to define a ``covered person,'' focusing on the nature 
and regularity of the person's activities rather than the financial 
compensation that they earn. Such an approach appears to strike a 
thoughtful balance between covering people who have the earned the 
right to be considered journalists, but denying coverage in situations 
where it is more likely to be inappropriate or exploited. I am hopeful 
that as this bill continues through the legislative process, we will 
look closely at the Senate language and consider adopting it into the 
final law.
  I would like to commend my Judiciary Committee colleague Rick Boucher 
of Virginia, the lead sponsor of this bill, for his tireless work on 
this issue.
  I would also like to recognize Mike Pence of Indiana and Bob 
Goodlatte of Virginia for their efforts in strengthening the bill and 
ensuring that we could bring a truly bipartisan measure to the House.

                          ____________________