Statement Of Sen. Patrick Leahy,
 Senate Judiciary Committee,
Executive Business Meeting
September 27, 2007 

I had hoped to see the Committee consider and report a bill on establishing a statutory privilege to safeguard freedom of the press last week.  The matter was held over so that will be the first topic for the Committee today.  We now have a bipartisan coalition -- Senator Lugar, Senator Dodd, Senator Specter, Senator Schumer, Senator Graham and myself – united to cosponsor a version of the Free Flow of Information Act.   

Senator Lugar and Senator Dodd are not members of this Committee but they have been leaders in this effort and I begin by acknowledging their leadership and commitment to this issue.  Last Congress, it was Senator Lugar who introduced the Free Flow of Information Act in February 2005.  Senator Dodd, who has also long been an advocate in this area, reintroduced a second version of the bill in July 2005.  And then in May 2006, they introduced a third version of the bill having been joined by Senators Specter, Schumer and Graham.   

During the last Congress, Senator Specter worked extremely hard on this issue and held a number of hearings before this Committee as its chairman. I believe the first was in July 2005 at which Senators Lugar and Dodd were our lead off witnesses.  He was right to schedule a second hearing in October, as Senators Feinstein and I had requested, in order to hear from the Department of Justice, which had decided at the last minute not to appear at the initial hearing.  The third hearing was after the bill reintroduction in May 2006 and concerned, in part, revelations about FBI demands to search the files of journalist Jack Anderson shortly after his death.  The fourth hearing was then held in September 2006.  I noted in my statement for that hearing that after four hearings and hearing from a dozen journalists, First Amendment experts, numerous prosecutors, it was unfortunate that “a minority of the majority” was still holding up action on the bill on behalf of the Bush Administration.  

Today, after years of effort, the Senate Judiciary Committee is convening to do what it was prevented from doing last year -- to consider, and I hope report out a solid, bipartisan federal privilege law.  Over the past several weeks and month the six sponsors have joined together to work out the compromise bill that we consider today.  It is fair.  It is balanced.  It is bipartisan.   

This bill would create, as a matter of federal law, a qualified privilege for journalists to protect the identity of their confidential sources.   

Before I turn to Senator Specter and then Senator Schumer for their opening remarks and to offer the bipartisan substitute I would like to discuss a bit of the history that has led us here.  The question of whether or not to enact some form of privilege for journalists has been around at least since the Supreme Court decided Branzburg v. Hayes in 1972.  Today, 33 States and the District of Columbia have shield laws that protect journalists from disclosing their confidential sources and many other States, including Vermont, recognize a common law reporters’ privilege.  Nonetheless, at least half a dozen journalists have been jailed or fined for protecting their confidential sources during the last few years.  And, according to the National Newspaper Association of America, more than 40 reporters have been subpoenaed or questioned about their confidential sources, notes and work product in federal criminal and civil cases over the past several years. 

Sadly, the press has become the first stop -- rather than the stop of last resort -- for our government and private litigants when it comes to seeking information.  And, this trend can have a chilling effect on the press and the public’s right to know.  In fact, while the federal leak investigation involving former CIA agent Valerie Plame and the BALCO steroid case are perhaps the most well-known examples, these two cases do not begin to tell the full story of the difficulties and dangers posed when the press can be routinely compelled to disclose the identity of confidential sources.  We simply have no idea how many other newsworthy stories have gone unreported out of fear that a reporter would be forced to reveal a source, or face jail time.   

We also do not know how many potential whistleblowers, or other confidential sources, have chosen to remain silent, out of fear that a journalist could be compelled to disclose their identity. 

As the son of a Vermont printer who instilled in me the importance of the First Amendment’s guarantee of a free and vibrant press, I understand that investigative journalism and a vibrant First Amendment are vitally important to our American democracy.  Vermont famously re-elected Matthew Lyon to Congress while he was in jail for writing what the Administration of that time thought were unflattering remarks about the President in a letter.    

Just recently, investigative journalism and confidential sources have helped uncover significant government failures in Iraq and in New Orleans, as well as government neglect at the Walter Reed Medical Center.   

Still, as a former prosecutor, I also understand the importance of making sure that the government can effectively investigate criminal wrongdoing, combat terrorism and preserve national security.  The consensus federal shield legislation before the Committee today strikes the proper balance among these important objectives. This bill addresses the legitimate need for law enforcement to obtain information from reporters to prevent a crime or a national security threat.  In addition, by providing a qualified and not an absolute privilege to withhold the identity of confidential sources, the bill also advances other important law enforcement objectives, such as encouraging whistleblowers to disclose fraud, waste and abuse that might otherwise go unreported. 

This legislation is also strongly supported by more than 50 news media and journalism organizations, including the National Newspaper Association, the Coalition of Journalists for an Open Government, the Magazine Publishers of America and the National Press Club.  The call for action extends to editorial pages across the country.  I will submit several letters of support for this bill that I have received for the record. 

I believe that the consensus Free Flow of Information Act takes important steps to ensure a free and vibrant press, so that Americans are informed about matters that affect their lives.  I am pleased to cosponsor this legislation and I urge the Committee to support this bill and report it to the Senate without further delay. 

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