[Congressional Record: February 13, 2009 (Senate)]
[Page S2340-S2342]


      By Mr. SPECTER (for himself, Mr. Schumer, Mr. Lugar, and Mr.
  S. 448. A bill to maintain the free flow of information to the public
by providing conditions for the federally compelled disclosure of
information by certain persons connected with the news media; to the
Committee on the Judiciary.
  Mr. SPECTER. Mr. President, I sought recognition to introduce the
Free Flow of Information Act of 2009. I am honored to be joined in my
efforts by Senators Schumer, Lugar and Graham, who are original
cosponsors. Some 242 years ago, on January 16, 1767, Thomas Jefferson
remarked in a letter to Col. Edward Carrington, ``Were it left to me to
decide whether we should have a government without newspapers, or
newspapers without a government, I should not hesitate a moment to
prefer the latter.'' We take our free press for granted because it is
so ingrained in our history. But we need only look at free press
movements in fledgling democracies to appreciate how sometimes fragile
and easily chilled freedom of press truly is.
  The Free Flow of Information Act protects the public interest by
ensuring an informed citizenry. In the past three years the Department
of Justice has provided inconsistent numbers of subpoenaed journalists
to the Judiciary Committee. We know from the public record, however,
that at least 19 journalists have been subpoenaed by federal and
special prosecutors for confidential source information since 2001
claim. Among them are Judith Miller, Matt Cooper, Tim Russert, Lance
Williams, Mark Fainaru-Wada, and Philip Shenon. We also know 4
journalists have been imprisoned at the request either of the DoJ, U.S.
Attorneys, or special prosecutors since 2000. Josh Wolf, Judith Miller,
Jim Taricani, Vanessa Leggett. Collectively, these journalists have
spent over 19 months imprisoned. Journalists who are not jailed for
failing to comply with subpoenas still suffer the prospect of being
held in contempt. Several have suffered this fate: Toni Locy, James
Stewart, Walter Pincus, Jim Taricani.
  In addition to the subpoenas from special prosecutors mentioned
above, more than a dozen reporters have received subpoenas in civil
suits, such as the Wen Ho Lee and Hatfill privacy lawsuits against the
government. A preliminary report on the 2007 Media Subpoena Survey
conducted by Professor RonNell Andersen Jones at the Law College
Foundation at the University of Arizona states: 761 responding news
organizations reported receiving a total of 3,602 subpoenas seeking
information or material relating to newsgathering activities in
calendar year 2006. Of these, 335 were subpoenas arising out of
proceedings that took place in a federal forum. Sixty-four percent of
responding newsroom leaders believe the frequency of media subpoenas to
be greater than it was five years ago. Fifty percent of the media
companies believe the risk of their own organization receiving a
subpoena is greater than it was five years ago, while only 5 percent
believe the risk to be less.
  This bipartisan legislation would establish a qualified reporters'
privilege protecting them from being compelled to identify confidential
source information. The bill seeks to reconcile reporters' need to
maintain confidentiality, in order to ensure that sources will speak
openly and freely with the media, with the public's right to effective
law enforcement and fair trials. The situation in the United States
today is that journalists are subject to a compulsory process to
disclose confidential informants--at least in Federal courts. At the
State level, there are many laws providing qualified privileges for
journalists. Prior versions of this bill garnered the support of
numerous bipartisan cosponsors, as well as 39 media organizations,
including the Washington Post, The Hearst Corporation, Time Warner, ABC
Inc., CBS, CNN, The New York Times Company, and National Public Radio.
  In 2005 I cosponsored two prior bills and was principle author of yet
another. In the 110th Congress, I introduced S. 1035 the Free Flow of
Information Act of 2007, along with Senator Schumer, and Senators
Lugar, Graham, and Dodd other senators to join as cosponsors were
Senators Leahy, Johnson, Boxer, Klobuchar, Salazar, Obama, Clinton,
Dole, Murray, Landrieu, Webb, Tester, Lieberman, Durbin, Baucus, and
Lautenberg. On October 4, 2007, the Committee on the Judiciary
favorably reported S.2035 out of committee by a 15-4 vote, which marked
the first time a reporters' privilege bill had ever passed out of the
Senate Judiciary Committee.

[[Page S2341]]

  On March 6, 2008, I, along with Senator Leahy, sent a letter to
Majority Leader Reid and Minority Leader McConnell asking that S. 2035
receive floor time for full Senate consideration. They answered our
call. On July 30, 2008, the Senate entertained a cloture vote on the
motion to proceed to the measure that failed by a vote of 51-43.
Nonetheless, the bill continues to enjoy broad bipartisan support--
including the pledged support of former Senator, now--President Barack
Obama. I urge all of my colleagues to join me in passing the Free Flow
of Information Act of 2009, its high time we stop jailing or holding in
contempt reporters who, in good faith, protect their confidential
sources even in the face of a government subpoena.
  There has been a growing consensus that we need to establish a
Federal journalists' privilege to protect the integrity of the news
gathering process, a process that depends on the free flow of
information between journalists and whistleblowers, as well as other
confidential sources.
  Under my chairmanship, the Judiciary Committee held three separate
hearings on this issue at which we heard from 20 witnesses, including
prominent journalists like William Safire and Judith Miller, current
and former Federal prosecutors, including former Deputy Attorney
General Paul McNulty, and First Amendment scholars.
  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
Judiciary 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 anonymity.''
  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 have considered these 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 confusion began 36 years ago, when the Supreme Court decided
Branzburg v. Hayes. The Court held that the press' 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 more than three decades 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 apply Branzburg
so as to not allow journalists to withhold information absent
governmental bad faith. Four other 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, 9 of the 12 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 some form of reporters' 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 move toward resolving this problem by introducing the Free
Flow of Information Act of 2009. 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
  The bill provides a qualified privilege for reporters to withhold
from Federal courts, prosecutors, and other Federal entities,
confidential source information and documents and materials obtained or
created under a promise of confidentiality. However, the bill
recognizes that, in certain instances, the public's interest in law
enforcement and fair trials outweighs a source's interest in remaining
anonymous through the reporter's assertion of a privilege. Therefore,
it allows courts to require disclosure where certain criteria are met.
  Under the legislation, in most criminal investigations and
prosecutions, the Federal entity seeking the reporter's source
information must show that there are reasonable grounds to believe that
a crime has occurred, and that the reporter's information is essential
to the prosecution or defense. In criminal investigations and
prosecutions of leaks of classified information, the Federal entity
seeking disclosure must additionally show that the leak caused
significant, clear, and articulable harm to national security. In
noncriminal actions, the Federal entity seeking source information must
show that the reporter's information is essential to the resolution of
the matter.
  In all cases and investigations, the Federal entity must demonstrate
that nondisclosure would be contrary to the public interest. In other
words, the court must balance the governmental need for the information
against the public interest in newsgathering and the free flow of
  Further, the bill ensures that Federal Government entities do not
engage in ``fishing expeditions'' for a reporter's information. The
information a reporter reveals must, to the extent possible, be limited
to verifying published information and describing the surrounding
circumstances. The information must also be narrowly tailored to avoid
compelling a reporter to reveal peripheral or speculative information.
  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 needed for the defense
of our Nation's security, as long as it outweighs the public interest
in newsgathering and maintains the free flow of information to
citizens, or to prevent an act of terrorism. Similarly, journalists may
not withhold information reasonably necessary to stop a kidnapping or a
crime that could lead to death or physical injury. Also, the bill
ensures that both crime victims and criminal defendants

[[Page S2342]]

will have a fair hearing in court. Under this bill, a journalist who is
an eyewitness to a crime or tort or takes part in a crime or tort may
not withhold that information on grounds of the qualified privilege.
Journalists should not be permitted to hide from the law by writing a
story and then claiming a reporter's privilege.
  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.