[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

                                 ______
                                 

                               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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