Leahy Urges Senate To Debate Media Shield Bill

 

Vermont Senator Presses Republicans To Support Motion To Debate Legislation

 

WASHINGTON (Tuesday, July 29, 2008) – Senator Patrick Leahy (D-Vt.) today urged Senators to proceed to debate pending legislation that would establish a federal qualified reporters’ shield law.  The Senate Judiciary Committee, which Leahy chairs, reported the Free Flow of Information Act last October, and Leahy has pressed for Senate consideration of the bill.  The House of Representatives has passed legislation similar to the bill reported by the Senate Judiciary Committee in October.

 

“I support the Free Flow of Information Act,” said Leahy.  “I hope the Senate will be permitted by the minority to consider this important legislative effort.  After months and months of delaying tactics and opposition by the Bush administration, the time has come to pass a federal shield law.”

 

In March, Leahy and Judiciary Committee Ranking Member Arlen Specter (R-Pa.) sent a letter to Senate’s majority and minority leaders requesting floor time for a full Senate debate on the bill, which would establish a federal reporters’ privilege to protect the exchange of information between journalists and confidential sources. 

 

The bipartisan legislation is supported by a wide array of media organizations including the Vermont Press Association, the New England Press Association, the Newspaper Association of America, the Associated Press, the American Society of Newspaper Editors, The New York Times Company, and The Washington Post.

 

Leahy spoke Tuesday on the Senate floor about the Free Flow of Information Act.  His prepared statement follows.

 

# # # # #

 

Statement Of Senator Patrick Leahy (D-Vt.),

Chairman, Senate Judiciary Committee,

On Senate Consideration Of The Free Flow Of Information Act

July 29, 2008

 

I support the Free Flow of Information Act, S.2035.  I hope the Senate will be permitted by the minority to consider this important legislative effort, and I thank the Majority Leader for his willingness to bring this matter before the Senate.  I have worked with him on this matter to find an opportunity for Senate action since the Judiciary Committee reported this bill last October, and I appreciate his support.  He has offered a generous response to the bipartisan request Senator Specter and I made to him and the Republican Leader earlier this year to proceed to this bill.  Our bill has 20 Senate cosponsors.  I hope the Republican cosponsors will join us in moving to the bill and will bring along the seven or eight Republicans we will need to overcome yet another filibuster and make progress.

 

I have also supported and urged the Senate to proceed to the strong, House-passed version of the Free Flow of Information Act, H.R.2102, which passed overwhelmingly by a vote of 398 to 21 in the House last fall.  The House bill has more than 70 sponsors from both sides of the aisle.   

 

A free and vibrant press is essential to a free society.  That has been demonstrated again and again over the last eight years.  That is why I cosponsored the Senate version of this bill and I have worked hard to enact a meaningful reporters’ shield law this year.  That is why I made sure that for the first time ever the Senate Judiciary Committee reported a media shield law to protect the public’s right to know.  The Judiciary Committee reported a bill sponsored by Senators Lugar, Dodd, Specter, Schumer, Graham and me with a strong, bipartisan 15 to 4 vote.

 

I also want to commend the leadership of Senator Lugar and Senator Dodd in connection with this matter.  They began this quest for fairness when it seemed an impossibility several years ago.  They have worked diligently to bring us to where we are today – at the cusp of achieving a Federal shield law – if only the Senate gets the support of a handful of Republican Senators to proceed to the bill.

 

The Shield Law Protects the Public’s Right to Know

 

All of us – whether Republican, Democrat or Independent -- have an interest in enacting a balanced and meaningful shield bill to ensure a free flow of information to the American people.  Forty-nine States and the District of Columbia currently have codified or common law protections for confidential source information.  But even with these State law protections, the press remains the first stop, rather than the stop of last resort, for our government and private litigants when it comes to seeking information. 

 

Earlier this year, Toni Locy, a professor of journalism at West Virginia University and a former USA Today reporter, was held in contempt of court for refusing to divulge her confidential sources.  There are also scores of other reporters who have been questioned by Federal prosecutors about their sources, notes and reports in recent years.  This is a dangerous trend, that can have a chilling effect on the press and the public’s right to know. 

 

Enacting the Free Flow of Information Act – which carefully balances the need to protect confidential source information with the need to protect law enforcement and national security interests – would help to reverse this troubling trend and benefit all Americans.  The bill creates a qualified privilege to protect journalists from being forced to reveal their confidential sources.  The bill contains exceptions to the privilege for criminal conduct, or national security.  The legislation also requires that Federal courts weigh the need for the information with the public’s interest in the free flow of information, before compelling reporters to disclosure their confidential sources.

 

Although I strongly support the enactment of a Federal shield law, I have some reservations about possible revisions to the Committee-passed bill.  I am pleased that language has been drafted to address my concerns about making sure that legitimate bloggers and freelance journalists are included in the definition of the persons covered by this bill.  However, I hope that any amendment to this legislation will include stronger protections for journalists and their sources with regard to matters of national security and classified information.  No one would quibble with the notion that there are circumstances when the government can and should have the right to compel information in order to keep us safe.  But many newsworthy stories concerning national security issues – such as the exceptional reporting on the CIA secret prisons and warrantless wiretapping by the National Security Agency – were published with the help of confidential sources, to the great benefit of the general public and the accountability that ordinary Americans deserve from their government.  I fear that proposals from some in this body do not go far enough to protect against government abuse in this area, or to protect the public’s interest in the dissemination of newsworthy information.

 

Not all reporters will be as lucky as Bill Gertz of The Washington Times was when a judge recently upheld his claim in a case in a California Federal court.  Even with this victory, however, the government has responded by broadening its inquiries.  To prevent further intrusions on our fundamental first amendment rights we need uniform standards and procedures to evaluate claims of privilege and protect the public’s right to know.  To do this, Congress must act. 

 

In a much touted speech to the American Enterprise Institute last week, Attorney General Mukasey, who still opposes a Federal shield law, articulated principles that argue for enacting one.  Attorney General Michael Mukasey endorsed congressional legislative action where there exists a “serious risk of inconsistent rulings and considerably uncertainty.”  He noted that congressional action to provide procedures in national security cases is “well within the historic role and competence of Congress.”  Although he was proposing action in another setting, the Attorney General’s remarks likewise support congressional action to standardize and clarify the procedures governing a Federal statutory press shield law.  In view of the disparate rulings and outcomes that have developed in the courts since the Supreme Court’s Branzburg decision 36 years ago, it is now time for Congress to establish a framework for the courts to resolve press privilege assertions fairly and consistently, while preserving our national security.
 

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 do not have sources you trust and who trust you, then you do not 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 and corruption at the Department of Justice and the Environmental Protection Agency.

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 Federal shield legislation we are seeking to bring before the Senate strikes a balance among these important objectives.  The 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 opposition to this carefully crafted bill by the Department of Justice and Office of the Director of National Intelligence (ODNI) is simply misplaced.  Although 49 states, the District of Columbia 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 satisfied by the bill and by amendments to this bill offered by Senators Feinstein, Brownback and Kyl.

 

The Time Has Come To Pass a Shield Law

 

After months and months of delaying tactics and opposition by the Bush administration, the time has come to pass a Federal shield law.  I thank and commend the more than 60 news media and journalism organizations including ABC News, the Associated Press, CNN, the National Newspaper Association, the Society of Professional Journalists and the Vermont Press Association that have worked so hard to get us to this point. 

 

I ask that a copy of a support letter from the Media Coalition Supporting the Free Flow of Information Act be printed in the Record following my statement.                

 

# # # # #