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Spreading Press Freedom:America Must Set the Standard at Home

The free flow of information is an essential element of democracy. In order for the United States (US) 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, American citizens today are in danger of losing some of that information flow. More than two dozen reporters were served or threatened with jail sentences last year in at least four different federal jurisdictions for refusing to reveal confidential sources. Judith Miller of The New York Times spent 85 days in jail because she refused to release the name of her source or sources for a story she did not write.*

Matt Cooper of Time magazine was likewise threatened with imprisonment but is not in jail because of a release from his obligation to his confidential source. 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.

How did the United States, where freedom of the press is enshrined in our Constitution, get to this point? 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, except 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, like the 7th Circuit based in Chicago, have expressed skepticism about whether any privilege exists at all.

I believe that Congress should address the differences of opinion in the federal courts of appeals and the effect this has on undermining the general policy of journalist 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.

Accordingly, Senator Christopher Dodd (D-CT) and I have introduced legislation in the Senate that offers the press the ability to obtain and protect confidential sources. It provides journalists with certain rights and abilities to seek 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 government.

Our legislation promotes greater transparency of government, maintains the ability of the courts to operate effectively, and protects the whistleblowers that identify govern-ment or corporate misdeeds.

It is equally important to note what this legislation does not do. The legislation does not permit rule breaking, give reporters a license to violate the law, or permit reporters to interfere with crime prevention efforts.

Most significantly, the Free Flow of Information Act does not weaken national security. This has been perhaps the most intensely debated aspect of our bill since we introduced it in February of this year. We listened closely to the views of our colleagues in Congress and officials from the Justice Department, as well as our constituents and representatives of the news media. In July, Senator Dodd and I, along with our colleague Representative Mike Pence (R-IN), introduced revised versions of the legislation in the Senate and House reflecting many of the concerns that were raised.

In the revised bill, we have carefully constructed a three-part test that permits the revelation of a confidential source in any matter where disclosure would be “necessary to prevent imminent and actual harm to the national security.” 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 the defense of our country is at stake.

Our Senate bill has ten co-sponsors, the companion House legislation 54, including Democrats, Republicans, conservatives, moderates and liberals. The Senate Judiciary Committee has held two hearings on our bill. Senator Arlen Specter (R-PA), the Chairman, has expressed interest in the legislation, despite the demands on his committee of two Supreme Court nominations and the annual crush of year-end business on the Senate floor.

This legislation has important international implications as well. For some time now, the United States has supported efforts to promote free and independent press organizations in developing countries and those building new democracies. It is no secret that these nations look to our constitutional structure and the limits it is supposed to place on government as a model for their own burgeoning press corps.

Recently, Reporters Without Borders reported that 107 journalists are currently in jail around the world, including 32 in China, 21 in Cuba, and eight in Burma. This is not good company for the United States to keep. Global public opinion is always on the lookout to advertise perceived American double standards. For instance, The Moscow News has reported that “the Russian Interior Ministry has denounced the arrest of US journalist Judith Miller…[saying] ‘The journalist’s right to keep his sources secret is part of the press freedom mechanism in a democratic society.’” (“Russia Says US Journalist’s Arrest Violates Press Freedom,” The Moscow News, July 7, 2005). The Guardian in London wrote “The American Constitution no longer protects the unfettered freedom of the press. That is the only conclusion that can be drawn from the remarkable case of The New York Times journalist Judith Miller.” (Comment, “Miller’s Tale,” The Guardian, Friday, July 8, 2005).

I have argued to my colleagues in Congress 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 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.

* Editor’s Note: After receiving from her source a signed letter and a telephone call releasing her from her confidentiality pledge, Judith Miller was released from jail on September 29, 2005, and agreed to testify before the federal grand jury investigating whether any US government officials illegally leaked the identity of CIA operative Valerie Plame to the media.

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Chairman, Committee on Foreign Relations, United States Senate