Senate Committee Passes Press Shield Law
Leahy Forges Bipartisan Consensus,
Sending Bill To Senate Floor
 

WASHINGTON (Thursday, Oct. 4) – The Senate Judiciary Committee Thursday passed bipartisan legislation to establish a federal qualified reporters’ privilege law to protect and encourage the exchange of information between journalists and confidential sources in defense of the public’s right to know. The panel approved the Free Flow of Information Act (S. 2035) Thursday morning in a vote of 15 to 2.

Committee Chairman Patrick Leahy (D-Vt.) shepherded the legislation to a strong bipartisan consensus through lengthy negotiations and then through two weeks of intensive debate among committee members. Dozens of media organizations across the country support the legislation, including the Vermont Press Association, the New England Press Association, the Associated Press, the American Society of Newspaper Editors, The New York Times Company, and The Washington Post.

“In a time when the public’s right to know has often been under siege, the American people finally can celebrate some progress,” said Leahy. “Through arduous and exacting negotiations, we have produced a consensus Free Flow of Information Act that takes careful and tangible steps to help ensure a free and vibrant press.”

A companion bill is making its way through the House of Representatives.

The legislation will:
* Establish a federal qualified reporters’ privilege to protect and encourage the free flow of information between journalists and confidential sources;
* Reconcile a reporter’s need to maintain confidentiality -- in order to ensure that sources will speak openly and freely -- with the public’s right to effective law enforcement and fair trials;
* Balances the public interest in combating crime and protecting national security and the public interest in ensuring a free and vibrant press by providing that a federal court can only force a journalist to reveal confidential source information when the information is truly crucial to a case or investigation;
* Requires the party seeking a reporter's confidential information to exhaust all reasonable alternative sources before turning to the media;
* Contains exceptions to the privilege for those situations where information sharing is critical. For example, a reporter may not withhold source information where such information is needed to prevent a terrorist attack, significant harm to our national security, death, kidnapping, or substantial bodily harm. Journalists who witness crimes also cannot refuse to share their eyewitness observations;
* Defines “journalist” to include anyone who regularly engages in journalistic activities -- so that legitimate bloggers that disseminate information about matters of public interest are covered by the qualified privilege.


Leahy’s statement follows:

Statement of Chairman Patrick Leahy
Senate Judiciary Committee
Executive Business Meeting
October 4, 2007

Today, the Committee returns to complete its consideration of the bipartisan bill to establish a statutory privilege to safeguard the freedom of the press. I first gave notice that we would be considering the Free Flow of Information Act back on September 12. We were finally able to begin marking up that measure last Thursday. We did make some progress last week adopting amendments offered by Senator Specter, Senator Feinstein, Senator Brownback and Senator Kyl. I hope and trust that we can complete our consideration today and move forward on this important matter.

As I noted last week, we now have Senator Specter, Senator Schumer, Senator Lugar, Senator Dodd, Senator Graham and me all uniting to cosponsor a version of the Free Flow of Information Act that is fair, that is balanced and that is bipartisan. It would create as a matter of federal law a qualified privilege for journalists to protect the identity of their confidential sources, with certain exceptions. In so doing, we would be following the lead of 33 States and the District of Columbia, which have shield laws that protect journalists from disclosing their confidential sources, and many other States, including Vermont, which recognize a common law reporters’ privilege.

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.

When he testified before this Committee in favor of a federal shield law in 2005, William Safire told us that the essence of newsgathering 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.

Bill Safire is exactly right. We simply have no idea how many newsworthy stories have gone unwritten and 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. 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.

The belated opposition to this carefully crafted bill by the Department of Justice and Office of the Director of National Intelligence is simply misplaced. Although 49 states and several federal courts have recognized a reporters’ privilege either by statute or common law for years, the Department of Justice and the ODNI have not cited a single circumstance where the privilege caused any harm to national security or to law enforcement. In fact, the legitimate concerns about the need to effectively combat crime and protect national security have been adequately addressed in the bill and by amendments to this bill offered several Senators Feinstein, Brownback and Kyl. I have received two excellent letters from the Newspaper Association of America rebutting the unfounded concerns raised by the Justice Department and the ODNI, and I will submit these letters for the record. I have also received a letter of support for this bill from the Vermont and New England Press Associations which I will also submit for the record.

The Free Flow of Information Act is 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, including the Washington Post, Arizona Republic, Salt Lake Tribune, San Francisco Chronicle and New York Times.

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. The time for needless delay of this legislation has passed. I urge all Members to favorably report this bill today, so that it can be considered by the full Senate.

 

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