Congressional Record: May 18, 2006 (Senate)
Page S4800-S4803               

      By Mr. LUGAR (for himself, Mr. Specter, Mr. Dodd, Mr. Graham, and 
        Mr. Schumer):
  S. 2831. A bill to guarantee the free flow of information to the 
public through a free and active press while protecting the right of 
the public to effective law enforcement and the fair administration of 
justice; to the Committee on the Judiciary.
  Mr. LUGAR. Mr. President, the bill at the desk is introduced on 
behalf of myself, Senators Specter, Dodd, Graham, and Schumer. I am 
pleased to join my good friends and colleagues, Senators Specter and 
Dodd, in introducing a revised version of the Free Flow of Information 
  I believe that the free flow of information essential element of 
democracy. In order for the United States to foster the spread of 
freedom and democracy globally, it is incumbent that we first support 
an open and free press nationally. The role of the media as a conduit 
between government and the citizens it serves must not be devalued.
  Unfortunately, the free flow of information to citizens of the United 
States is inhibited. Over 30 reporters were recently served or 
threatened with jail sentences in at least four different Federal 
jurisdictions for refusing to reveal confidential sources. I fear the 
end result of such actions is that many whistleblowers will refuse to 
come forward and reporters will be unable to provide our constituents 
with information they have a right to know.
  In 1972, the Supreme Court held in Branzburg v. Hayes, that reporters 
did not have an absolute privilege as third party witnesses to protect 
their sources from prosecutors. Since Branzburg, every State and the 
District of Columbia, excluding Wyoming has created a privilege for 
reporters not to reveal their confidential sources. My own State of 
Indiana provides qualified reporters an absolute protection from having 
to reveal any such information in court.
  The Federal courts of appeals, however, have an incongruent view of 
this matter. Each circuit has addressed the question of the privilege 
in a different manner. Some circuits allow the privilege in one 
category of cases, while others, have expressed skepticism about 
whether any privilege exists at all.
  Congress should clarify the extraordinary differences of opinion in 
the Federal courts of appeals and the effect they have on undermining 
the general policy of protection already in place among the States. 
Likewise, the ambiguity between official Department of Justice rules 
and unofficial criteria used to secure media subpoenas is unacceptable.
  There is an urgent need for Congress to state clear and concise 
policy guidance.
  Senators Specter, Dodd, and I have introduced legislation today that 
preserves the free flow of information to the public by providing the 
press the ability to obtain and protect confidential sources. It 
provides journalists with certain rights and abilities to sources and 
report appropriate information without fear of intimidation or 
imprisonment. This bill sets national standards, based on Department of 
Justice guidelines, for subpoenas issued to reporters by the Federal 

[[Page S4801]]

  Our legislation promotes greater transparency of government, 
maintains the ability of the courts to operate effectively, and 
protects the whistleblowers that identify government or corporate 
misdeeds and protect national security.
  It is also important to note what this legislation does not do. The 
legislation does not permit rule breaking, give reporters a license to 
break the law, or permit reporters to interfere with crimes prevention 
efforts. Furthermore, the Free Flow of Information Act does not weaken 
national security nor restrict law enforcement. Additional protections 
have been added to this bill to ensure that information will be 
disclosed in cases where the guilt or innocence of a criminal is in 
question, in cases where a reporter was an eye witness to a crime, and 
in cases where the information is critical to prevent death or bodily 
harm. The national security exception and continued strict standards 
relating to classified information will ensure that reporters are 
protected while maintaining an avenue for prosecution and disclosure 
when considering the defense of our country.
  Reporters Without Borders has reported that more than 100 journalists 
are currently in jail around the world, with more than half in China, 
Cuba, and Burma. This is not good company for the United States of 
America. Global public opinion is always on the lookout to advertise 
perceived American double standards.
  I believe that passage of this bill would have positive diplomatic 
consequences. This legislation not only confirms America's 
constitutional commitment to press freedom, it also advances President 
Bush's American foreign policy initiatives to promote and protect 
democracy. When we support the development of free and independent 
press organizations worldwide, it is important to maintain these ideals 
at home.
  In conclusion, I thank, again, my colleagues, Senator Specter, the 
distinguished chairman of the Judiciary Committee, and Senator Dodd for 
their tireless work on this issue. With their assistance, I look 
forward to working with each of my colleagues to ensure that the free 
flow of information is unimpeded.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I am pleased to join with Senator Lugar, 
the principal sponsor, and Senators Dodd, Graham, and Schumer on the 
introduction of legislation which will codify a reporter's privilege, 
something that is very necessary. The matter came into sharp focus 
recently with the contempt citation and the incarceration of New York 
Times reporter, Judith Miller, for some 85 days. The Judiciary 
Committee held two hearings on this subject. Senator Lugar, with 
Congressman Pence in the House, introduced legislation which has formed 
the nucleus of the bill we are introducing today.
  The Branzburg v. Hayes case, 33 years ago, which was a 5-to-4 
decision, with a concurring opinion by Justice Powell, has led to what 
is accurately called a ``crazy quilt'' situation in the circuits--five 
circuits going one way, four circuits going another way, and laws 
unsettled in some circuits. This bill, modeled significantly after the 
Department of Justice regulations, will codify this important issue.
  There is an exception on reporter's privilege for national security 
cases. Keeping in mind the incarceration of Judith Miller, this bill 
makes a sharp distinction between national security and an inquiry in 
the grand jury for obstruction of justice or perjury. As a prosecutor 
in the past, I have great appreciation for the offenses of obstruction 
of justice and perjury. But in my judgment, they do not rise to the 
level of importance as a national security case. When a special 
prosecutor's investigation shifts from the disclosure of a CIA agent, 
to a question of obstruction of justice, it is a very different 
situation. This bill would not permit, would not compel the disclosure 
of a source for obstruction of justice or perjury, but would compel the 
disclosure of a source for a national security case.
  This legislation has the endorsement of 39 of the major media 
organizations in the United States: The New York Times, the Washington 
Post, the Associated Press, Time, Hearst Corporation, Philadelphia 
Inquirer, Newspaper Association of America, ABC, NBC, and CBS. It goes 
a long way to protecting sources, but it also leaves latitude, in the 
form of a balancing test, for Federal prosecutors to gain information 
under limited circumstances for plaintiffs and defendants in civil 
cases to have access to sources. And, it does not have a shield if a 
reporter is a witness to some criminal incident.
  In recent months, there has been a growing consensus that we need to 
establish a Federal journalists' privilege to protect the integrity of 
the newsgathering process--a process that depends on the free flow of 
information between journalists and whistleblowers, as well as other 
confidential sources. I do not reach this conclusion lightly. The 
Judiciary Committee held two separate hearings in which it heard from 
sixteen witnesses. Included in this number were seven journalists, six 
attorneys, including current or former prosecutors and some of the 
Nation's most distinguished experts on the first amendment.
  These witnesses demonstrated that there are two vital, competing 
concerns at stake. On one hand, reporters cite the need to maintain 
confidentiality in order to ensure that sources will speak openly and 
freely with the news media. The renowned William Safire, former 
columnist for the New York Times, testified that ``the essence of news 
gathering 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.'' Reporter Matthew Cooper of Time magazine said this to the 
Committee: ``As someone who relies on confidential sources all the 
time, I simply could not do my job reporting stories big and small 
without being able to speak with officials under varying degrees of 
  On the other hand, the public has a right to effective law 
enforcement and fair trials. Our judicial system needs access to 
information in order to prosecute crime and to guarantee fair 
administration of the law for plaintiffs and defendants alike. As a 
Justice Department representative told the committee, prosecutors need 
to ``maintain the ability, in certain vitally important circumstances, 
to obtain information identifying a source when a paramount interest is 
at stake. For example, obtaining source information may be the only 
available means of preventing a murder, locating a kidnapped child, or 
identifying a serial arsonist.''
  As Federal courts considered such competing interests, they adopted 
rules that went in several different directions. Rather than a clear, 
uniform standard for deciding claims of journalist privilege, the 
Federal courts currently observe a ``crazy quilt'' of different 
judicial standards.
  The current confusion began 33 years ago, when the Supreme Court 
decided Branzburg v. Hayes. The Court held that the press's first 
amendment right to publish information does not include a right to keep 
information secret from a grand jury investigating a criminal matter. 
The Supreme Court also held that the common law did not exempt 
reporters from the duty of every citizen to provide information to a 
grand jury.
  The Court reasoned that just as newspapers and journalists are 
subject to the same laws and restrictions as other citizens, they are 
also subject to the same duty to provide information to a court as 
other citizens. However, Justice Powell, who joined the 5-4 majority, 
wrote a separate concurrence in which he explained that the Court's 
holding was not an invitation for the government to harass journalists. 
If a journalist could show that the grand jury investigation was being 
conducted in bad faith, the journalist could ask the court to quash the 
subpoena. Justice Powell indicated that courts might assess such claims 
on a case-by-case basis by balancing the freedom of the press against 
the obligation to give testimony relevant to criminal conduct.

  In attempting to apply Justice Powell's concurring opinion, Federal 
courts have split on the question of when a journalist is required to 
testify. In the 33 years since Branzburg, the Federal courts are split 
in at least three ways in their approaches to Federal criminal and 
civil cases.
  With respect to Federal criminal cases, five circuits--the first, 
fourth, fifth, sixth, and seventh circuits--have

[[Page S4802]]

applied Branzburg so as to not allow journalists to withhold 
information absent governmental bad faith. Four other circuits--the 
second, third, ninth, and eleventh circuits--recognize a qualified 
privilege, which requires courts to balance the freedom of the press 
against the obligation to provide testimony on a case-by-case basis. 
The law in the District of Columbia Circuit is unsettled.
  With respect to Federal civil cases, nine of the twelve circuits 
apply a balancing test when deciding whether journalists must disclose 
confidential sources. One circuit affords journalists no privilege in 
any context. Two other circuits have yet to decide whether journalists 
have any privilege in civil cases. Meanwhile, 49 States plus the 
District of Columbia have recognized a privilege within their own 
jurisdictions. Thirty-one States plus the District of Columbia have 
passed some form of reporter's shield statute, and 18 States have 
recognized a privilege at common law.
  There is little wonder that there is a growing consensus concerning 
the need for a uniform journalists' privilege in Federal courts. This 
system must be simplified.
  Today, we are taking the first step to resolving this problem by 
introducing the Free Flow of Information Act. This bill draws upon 33 
years of experience, as embodied in the Department of Justice's 
regulations, the law established by the Federal courts of appeals, 
State statutes, and existing national security provisions. The purpose 
of this bill is to guarantee the flow of information to the public 
through a free and active press, while protecting the public's right to 
effective law enforcement and individuals' rights to the fair 
administration of justice.
  This bill provides ample protection for the Nation's journalists, as 
demonstrated by the fact that it has been endorsed by 39 news 
organizations identified in a list I will include at the end of my 
  This bill also provides ample protection to the public's interest in 
law enforcement and fair trials. In drafting this legislation, we 
started with what works. Both the Department of Justice and the vast 
majority of journalists with whom we have met--in individual meetings 
and over the course of two hearings--have generally voiced strong 
support for the regulations that the Department of Justice currently 
applies to all of its prosecutors. Moreover, time has proven that these 
regulations are workable. The Department of Justice has been 
effectively prosecuting cases under these regulations for 25 years and 
a majority of State prosecutors carry out their duties under similar 

  I have two concerns with the Department's regulations, however. 
First, under current law, these regulations do not apply to special 
prosecutors. Special prosecutors are often called upon in cases that 
are politically sensitive, may potentially be embarrassing to senior 
government officials, and are high profile--those cases that seem to 
carry the greatest risk of an overzealous prosecutor needlessly 
subpoenaing journalists.
  Second, the Department regulations are presently enforced by the 
Attorney General, not a neutral court of law. This places the Attorney 
General in a difficult position; namely, the primary check on Federal 
prosecutors' ability to subpoena journalists is the nation's highest 
Federal prosecutor. Most Americans, I believe, would feel more 
comfortable having the competing interests weighed by a neutral judge 
instead of a political appointee who answers to the President. 
Accordingly, this bill, in large part, codifies the Department of 
Justice's regulations into law; applies them to all Federal 
prosecutors, including special prosecutors; and provides that the 
courts, not a political official, shall decide whether the public's 
need for information outweighs the interest in allowing a journalist to 
protect a confidential source.
  The Free Flow of Information Act addresses two additional areas of 
considerable confusion and concern. First, it addresses the situation 
of a criminal defendant who subpoenas a journalist. To ensure that 
every criminal defendant has a fair trial, a criminal defendant has 
less of a burden than a prosecutor does, to show that the journalist's 
privilege should be waived. This is consistent with our long standing 
belief as a nation that a criminal defendant must be given ample 
opportunity to defend himself.
  Second, it addresses private civil litigation. This bill provides 
that before a private party may subpoena a journalist in a civil suit, 
the court must find that the party is not trying to harass or punish 
the journalist, and that the public interest requires disclosure. 
Again, this should help clarify the existing law in federal courts.

  Finally, the Free Flow of Information Act adds layers of safeguards 
for the public. Reporters are not allowed to withhold information if a 
federal court concludes that the information is important to the 
defense of our Nation's security or is needed to prevent or stop a 
crime that could lead to death or physical injury. Also, the bill 
ensures that both crime victims and criminal defendants will have a 
fair hearing in court. Under this bill, a journalist who is an 
eyewitness to a crime or takes part in a crime may not withhold that 
information. Journalists should not be permitted to hide from the law 
by writing a story and then claiming a reporter's privilege.
  It is time to simplify the patchwork of court decisions and 
legislation that has grown over the last three decades. It is time for 
Congress to clear up the ambiguities journalists and the Federal 
judicial system face in balancing the protections journalists need in 
providing confidential information to the public with the ability of 
the courts to conduct fair and accurate trials. I urge my colleagues to 
support this legislation and help create a fair and efficient means to 
serve journalists and the news media, prosecutors and the courts, and 
most importantly the public interest on both ends of the spectrum.
  I ask unanimous consent to print the list of organizations and 
companies that support the legislation in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 Organizations/Companies Supporting ``Free Flow of Information Act of 

       ABC Inc.; Advance Publications, Inc.; American Business 
     Media; American Society of Newspaper Editors; Associated 
     Press; Association of American Publishers, Inc.; Association 
     of Capitol Reporters and Editors; Belo Corp.; CBS; CNN; 
     Coalition of Journalists for Open Government; The Copley 
     Press, Inc., Court TV; Cox Enterprises, Inc.; Freedom 
     Communication, Inc.; Gannett Co., Inc.; The Hearst 
     Corporation; Magazine Publishers of America; The McClatchy 
     Company; The McGraw-Hill Companies.
       Media Law Resources Center; National Newspaper Association; 
     Nation Press Photographers Association; National Public 
     Radio; NBC Universal; News Corporation; Newspaper Association 
     of America; Newsweek; The New York Times Company; Radio-
     Television News Directors Association; Raycom Media, Inc.; 
     The Reporters Committee for Freedom of the Press; E. W. 
     Scripps; Society of Professional Journalists; Time Inc.; Time 
     Warner; Tribune Company; The Washington Post; White House 
     Correspondents' Association.

  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. DODD. Mr. President, let me express my gratitude to my colleague 
from Indiana, Senator Lugar, and his colleague from Indiana, 
Congressman Pence, and his colleague, Congressman Boucher of Virginia, 
who are drafting similar legislation and propose similar legislation in 
the other body and, of course, Senator Specter, the chairman of the 
Judiciary Committee, my colleague from New York, Senator Schumer, and 
the Presiding Officer for their work on pulling together this bill 
which is a very sound proposal. As the Senator from Pennsylvania has 
explained, it deals with an issue that many were concerned about, and 
that is the national security question.
  The point I would like to make is that while this is about 
journalists and the collection of information and revealing stories 
that might otherwise not be told, the real winners of this proposal are 
not journalists or news media outlets, television stations, or the 
like. The real winners are the people we represent, our constituents, 
and the consumers of information. This is most important for them. It 
is really not that significant. If it were only about journalists, 
frankly, we might have second questions about it.
  Jefferson, of course, said it better than anyone many years ago when 
he said if he had to choose between a free country and a free press, he 
would select the latter. Madison, on the same

[[Page S4803]]

subject, talking about freedom of information, freedom of the press, 
had this quote:

       Popular government without popular information or the means 
     of acquiring it is but a prologue to a farce, or tragedy, or 
     perhaps both.

  Today, that fundamental principle--that a well-informed citizenry is 
the cornerstone of self-government--is at risk in a manner in which it 
has not been at risk previously.
  In the past year alone, some two dozen reporters have been subpoenaed 
or questioned about their confidential sources. Most of theme face 
fines or prison time. Seven have already been held in contempt. One has 
been jailed. Another was found guilty of criminal contempt for refusing 
to reveal a confidential source and served 6 months under house arrest. 
Why? Because they received information from confidential sources and 
pledged to protect the confidentiality of those sources. In other 
words, they have committed the ``offense'' of being journalists.
  These actions by our Government against journalists are having a 
profound impact on news gathering. For example, in testimony last 
summer before the Senate Judiciary Committee, Norman Pearlstine, the 
editor in chief of Time, Inc., said this about the fallout from the 
Justice Department's efforts to obtain confidential information from a 
Time reporter:

       Valuable sources have insisted that they no longer trusted 
     the magazine and that they would no longer cooperate on 
     stories. The chilling effect is obvious.

  Confidential evidence may be just the tip of the iceberg. We have no 
way of knowing for certain the number of journalists who have been 
ordered or requested to reveal confidential sources. We can only 
speculate as to how many editors and publishers put the brakes on a 
story for fear that it could land one of their reporters in a spider 
web spun by the Federal prosecutors that could include prison. If 
citizens with knowledge of wrongdoing could not or would not come 
forward to share what they know in confidence with members of the 
press, serious journalism would cease to exist, in my view. Serious 
wrongs would remain unexposed. The scandals known as Watergate, the 
Enron failure, the Abu Ghraib prison photos--none of these would have 
been known to the public but for good journalists doing their work.
  That scenario is no longer purely hypothetical. It is, in some 
respects, already a reality. When journalists are hauled into court by 
prosecutors and threatened with fines and imprisonment if they don't 
divulge the sources of their information, we are entering a dangerous 
territory for a democracy. That is when not only journalists, but 
ordinary citizens, will fear prosecution simply for exposing 
wrongdoing. When that happens, the information our citizens need to 
remain sovereign will be degraded, making it more and more difficult to 
hold accountable those in power. When the public's right to know is 
threatened, then I suggest to you that all of the liberties we hold 
dear are threatened, as well.
  Again, I thank Senator Specter for working out this compromise, and I 
emphasize that the issue of national security, which was a very 
legitimate concern, has been handled by this proposal. The underlying 
issue is the right of citizens to have access to important information 
that might otherwise never become available were it not for the ability 
to have confidential sources share that information and the ability of 
these journalists to protect the confidentiality of those sources. 
Thirty-nine States have provisions dealing with the shield law. I think 
10 States have regulations regarding the same matter.
  I think it is long overdue that the Federal Government have a similar 
piece of legislation to protect the kind of information we seek. I 
commend my colleagues for their efforts in this regard. I am happy to 
join them.
  Mr. SESSIONS. Mr. President, I say with regard to what has just taken 
place, these are complex areas, and we need to be careful about 
protecting our free speech rights. Nobody denies that. But you have to 
be careful, too. I was thinking that if a spy comes into our country 
and gets secure information and gives it to our enemy, we put him in 
jail, and they can be convicted, I guess, of treason. If a reporter 
gets information and publishes it to our enemies and to the whole 
world, they get the Pulitzer prize.
  I think we have to be careful about how we word this. I am sure we 
will come up with a pretty good solution.
  Mr. SPECTER. Mr. President, I ask unanimous consent that Senator 
Schumer be recognized for 4 minutes to speak on the Lugar-Specter-Dodd 
  The PRESIDING OFFICER. The Senator from New York is recognized.
  Mr. SCHUMER. Mr. President, I join as a cosponsor of the bill just 
introduced because I think it really cuts the Gordian knot. There has 
been a deadlock on improving the shield law for the very reason that 
not all disclosures by Government officials to members of the press are 
equal. We certainly want to protect a whistleblower. We certainly want 
a person, if they work at the FDA and see that tests are being short-
circuited and they go to higher-ups and get nowhere, to be able to go 
to the press and expose it. It is a far different matter when something 
is prohibited by statute from being made public, such as with grand 
jury minutes. Frankly, that dealt with the Plame case. In both cases 
making that information public was a violation of law. There was a 
public policy against disclosure, which there is not in the typical 
whistleblower case.
  I believe the reason that the legislation my colleagues from Indiana 
and Connecticut put in didn't get as much support is that it failed to 
distinguish that difference. We need to protect the press, especially 
with a large Government that keeps things secret more and more. But we 
also have to have some respect for the fact that there are certain 
things that should not be made public by statute in open debate.
  As I said, this legislation cuts the Gordian knot. It protects those 
matters that should not be made public and doesn't put them under the 
shield of law but strengthens the protections for whistleblowers and 
others who might want to expose Government wrongdoing when there is no 
other way to expose it.
  This is a large step forward. It is legislation I am proud to 
cosponsor. I am very glad that the deadlock has been broken by this 
thoughtful legislation, which I now believe will garner enough support 
to become law. Whereas, the previous legislation, as sweeping as it 
was, would not.
  I compliment my colleagues from Indiana, Connecticut, Pennsylvania, 
and South Carolina, with whom I join as lead cosponsors because it is 
going to make our country a better place.