PENCE ADDRESSES NATIONAL PRESS CLUB
The following are remarks made by Congressman Mike Pence and Senator Richard Lugar, both of Indiana, at the National Press Club on July 25, 2006 about the need for a federal media shield.
Let me begin by saying how honored I am to work with Senator Richard Lugar to ensure that reporters maintain their rights without fear of retribution or prosecution. Senator Lugar is a true statesman and we need look no further than his work as Chairman of the Senate Foreign Affairs Committee to find evidence of his commitment to maintaining a free press.
Senator Lugar was the primary force behind legislation that Congress enacted last year directing the State Department to promote international initiatives to support the development of free, fair, legally protected and sustainable media in developing countries.
It is precisely that level of leadership that will no doubt help ensure the first amendment rights of a free press are protected here in America.
When Senator Lugar and I stand in our respective chambers to take the oath of office before each session of Congress, we pledge ourselves to support and defend the Constitution of the United States of America. And enshrined in its First Amendment are these words:
"Congress shall make no law abridging the freedom of speech, or of the press."
It is for that very reason that I introduced the Free Flow of Information Act in the United States House of Representatives along with my colleague Rick Boucher of Virginia. As a conservative who believes in limited government, I believe that the only check on government power in real time is a free and independent press.
The Freedom of speech and the press are two of the most important rights we Americans possess under our Constitution. They form the bedrock of our democracy by ensuring the free flow of information to the public.
Although Thomas Jefferson warned that, "Our liberty cannot be guarded but by the freedom of the press, nor that limited without danger of losing it," today these rights are under attack.
In late 2003, politicians engaged in the familiar clash along the fault lines of the politics of personal destruction special counsel was appointed, testimony was given, indictments were handed down, and book deals were signed all the while a much greater scandal languished for 85 days in a quiet prison cell in suburban Washington in the sad image of an American journalist behind bars, who's only crime was standing up for the public's right to know.
And Judith Miller is not alone.
In just the past few years, many other journalists have been given or threatened with jail sentences for refusing to reveal confidential sources and at least a dozen more have been questioned or are on the receiving end of subpoenas.
Compelling reporters to testify, and in particular, compelling reporters to reveal the identity of their confidential sources intrudes on the newsgathering process and hurts the public interest.
Without the assurance of confidentiality, many whistle-blowers will simply refuse to come forward, and reporters will be unable to provide the American public with information they need to make decisions as an informed electorate.
I'm sure we all remember the images from last summer of 91-year old W. Mark Felt waving to news crews from his Santa Rosa home. The Washington Post ran the accompanying headline: "Deep Throat Revealed."
Two things are clear about the role that the former FBI Assistant Director played in the infamous Watergate scandal:
1) Deep Throat exposed corruption in high places because of his absolute confidence that his identity would be protected; and
2) Deep Throat would not have that protection today.
However motivated by patriotism and high ideals, it is unlikely that Felt would reveal confidential information to Bob Woodward today. As a litany of federal prosecutions attests, under current law, reporters may be forced to reveal the identity of confidential sources under circumstances similar to the Deep Throat case.
While I am relieved that W. Mark Felt stepped forward and Judith Miller was released from jail, the American people should know that the freedom of the press is still very much behind bars.
With much of the focus of the past year on Felt, Miller and the newsgathering process, it is important that we state clearly that a federal shield law is NOT about protecting a journalist's right to keep a news source confidential. NOR is it about protecting reporters. Rather, it's about protecting the public's right to know.
The Free Flow of Information Act does not give reporters a license to break the law in the name of gathering news. It does not give them the right to interfere with police and prosecutors who are trying to prevent crimes.
It simply gives journalists certain rights and abilities to seek sources and report appropriate information without fear of intimidation or imprisonment.
As many of you know, there were legitimate national security questions raised by some Members of Congress concerning the scope of the original Act. We address those questions in the revised bill while maintaining the ultimate goal of protecting the public's right to know.
Under the revised language, a reporter cannot be compelled to reveal a source unless the disclosure of the identity of a source is necessary to prevent "imminent and actual harm to the national security."
In the case of other information, it sets out certain tests that prosecutors must meet before they can force a journalist to turn over information. They must show they have tried unsuccessfully to get the information in other ways and that the information would be crucial to "an issue of substantial importance" in the case. If they seek confidential information in a criminal case, they would have to show that a crime had been committed and that the information being sought was essential to the investigation.
These protections are enough to ensure that a whistle-blower's identity would be protected when he or she comes forward with information about corporate or government misdeeds, but they would still allow the courts and other federal agencies to do their jobs.
The bill strikes the proper balance between the public's interest in the free dissemination of information and the public's interest in effective law enforcement and the fair administration of justice.
In short, the Free Flow of Information Act protects the public's right to know.
So where do we stand?
The United States Senate held a pair of hearings on the idea of a federal media shield law and has twice scheduled S. 2831 for a mark-up, but has yet to get the working quorum of Members necessary for passage.
In the House, Chairman Jim Sensenbrenner remains open to the idea of a federal media shield law and has assured me there will be a hearing on the subject before the end of the 109th Congress.
To close, I'd like to share with you my experience in Chicago last October. I was there for a meeting with the Editorial Board at the Tribune. Located on the 400 block of Michigan Avenue is the Tribune Tower - a Gothic building that for all intents and purposes serves as a monument to the First Amendment.
Because emblazoned on the lobby wall are the words of Colonel Robert R. McCormick, whose grandfather founded the paper in 1847.
"The newspaper is an institution developed by modern civilization to present the news of the day and to furnish that check upon government which no constitution has ever been able to provide."
McCormick's words are joined by those of other notable Americans.
James Madison, the Father of the Constitution said, "To the press alone, checkered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity over error and oppression."
Senator Daniel Webster said, "The entire and absolute freedom of the press is essential to the preservation of government on the basis of a free constitution."
And, of course, inscribed on the Liberty Bell are the ancient words of the Lord speaking to Moses on Mt. Sinai.
"Proclaim liberty throughout all the land unto all the inhabitants thereof."
Now is the time for Congress to proclaim liberty and reaffirm our commitment to the ideal of a free and independent press. Now is the time for the Free Flow of Information Act. Nothing less than the public's right to know is at stake.
The free flow of information is an essential element of democracy. A free press promotes an open marketplace of information and provides public and private sector accountability to our nation's electorate. By ensuring the free flow of information, citizens can work to bring about improvements in our governance and in our civic life. It is in our nation's best interest to have an independent press that is free to question, challenge, and investigate issues and stories- without concern for political party, position or who holds power. The role of the media as a conduit between government and the citizens it serves must not be devalued.
This principle that we practice at home is also one that we promote abroad. Spreading democracy abroad has become a pillar of United States foreign policy, and we have recognized that a free and independent press is both essential to building democracies and a barometer of the health of young and often imperfect democratic systems. The example of press freedom we set in this country is an important beacon to guide other nations as they make the transition from autocratic forms of government.
Unfortunately, the free flow of information to citizens of the United States is inhibited and our open market of information is being threatened. While gathering information on a story, a journalist is sometimes required to accept information under a promise of confidentiality. Without assurance of anonymity, many conscientious citizens with evidence of wrongdoing would stay silent. Restricting the manner in which appropriate news is gathered is tantamount to restricting the information that the public has the right to hear.
After a long period when there were few clashes between the media and authorities, a disturbing new trend has developed. More than 30 reporters have been recently served subpoenas or questioned in at least four different Federal jurisdictions about their confidential sources. From 1991 to September 6, 2001, the Department of Justice issued 88 subpoenas to the media, 17 of which sought information leading to the identification of confidential sources. In fact, three journalists have been imprisoned at the request of the Department of Justice, U.S. Attorneys under its supervision, or special prosecutors since 2000. As a result, the press is hobbled in performing the public service of reporting news. I fear the end result of such actions is that many whistleblowers will refuse to come forward and reporters will be unable to provide the American people with information they deserve. As my friend and colleague Senator Chris Dodd stated during a hearing last year before the Senate Judiciary Committee, "Today, the principle of a well-informed citizenry as the cornerstone of self-government is at risk."
Most jurisdictions in our country have recognized that confidential sources are integral to the press's role of keeping the public informed, and have provided some kind of shield so that journalists can keep secret the names of such sources. Every state and the District of Columbia, excluding Wyoming, has, by legislation or court ruling, created a privilege for reporters not to reveal their confidential sources. My own state of Indiana provides qualified reporters appropriate protection from having to reveal any such information in court.
The federal courts of appeals, however, have an inconsistent view of this matter. Some circuits allow the privilege in one category of cases, while others have expressed skepticism about whether any privilege exists at all. It does not make sense to have a federal system of various degrees of press freedom dependent upon where you live or who provides the subpoena. In fact, 34 state attorneys general have argued that the lack of a clear standard of federal protection undermines state laws.
In addition, there is ambiguity between official Department of Justice rules and unofficial criteria used to secure media subpoenas. The Department of Justice guidelines also do not apply to special prosecutors or private civil litigants. There is an urgent need for Congress to state clear and concise policy guidance.
In response to this situation, last year, I was pleased to join with my colleague Congressman Mike Pence, and Representative Rick Boucher in the House of Representatives and Senator Chris Dodd in the Senate to introduce the Free Flow of Information Act. This legislation provides journalists with certain rights and abilities to seek sources and report appropriate information without fear of intimidation or imprisonment. The bill sets national standards which must be met before a federal entity may issue a subpoena to a member of the news media in any federal criminal or civil case. It sets out certain tests that civil litigants or prosecutors must meet before they can force a journalist to turn over information. Litigants or prosecutors must show, for instance, that they have tried, unsuccessfully, to get the information in other ways and that the information is critical to the case. These standards were based on Justice Department guidelines and common law standards.
Subsequently, I have worked with Senators Arlen Specter and Chris Dodd, in coordination with Congressman Mike Pence, to craft a revised Free Flow of Information Act to address some of the concerns expressed by the members of the Senate Judiciary Committee. 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 eyewitness to a crime, and in cases where the information is critical to prevent death or bodily harm. The bill also permits a reporter to be compelled to reveal the source in certain national security situations. The language makes clear that the testimony of a journalist concerning the unauthorized disclosure of properly classified government information can be obtained.
By providing the courts with a framework for compelled disclosure, our legislation promotes greater transparency of government, maintains the ability of the courts to operate effectively, and protects whistleblowers who identify government or corporate misdeeds.
It is also important to note what this legislation does not do. The legislation neither gives reporters a license to break the law, nor permits reporters to interfere with criminal investigation efforts. State shield laws have been on the books for years, and I have not seen any evidence to support a correlation between reporter privilege laws and criminal activity or threats to public safety. As the American Bar Association points out in a recent letter to the Senate Judiciary Committee, the fact that not one of the state shield laws has been repealed serves as further evidence that shield laws and law enforcement priorities can be properly balanced. Furthermore, the Free Flow of Information Act does not weaken our national security. The explicit 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. This qualified privilege has been carefully crafted to balance the distinct and important roles of both the press and law enforcement.
As Chairman of the United States Senate Foreign Relations Committee, 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. Our nation always leads best when it leads by example.
Unfortunately, the press remains under siege in a number of foreign countries. For instance, Reporters Without Borders points out that 129 journalists are currently in jail around the world, with more than half of these cases 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.
Just look, for instance, at the international commentary when Judith Miller, a reporter for the New York Times, was jailed for 85 days last year. Moscow news reported that "the Russian Interior Ministry has denounced the arrest of U.S. journalist Judith Miller. ... [saying] 'The journalist's right to keep his sources secret is part of the press freedom mechanism in a democratic society.'" Furthermore, 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."
In fact, earlier this summer, a Japanese court upheld a qualified right of reporters to protect their anonymous sources as an "occupational secret." Likewise, Mexico recently passed the Professional Secrecy Act which allows for journalists to protect their sources.
The United States has long funded efforts to train journalists around the world and to assist new democracies in adopting laws protecting press freedoms. Several years ago, I became concerned that those programs were not adequately coordinated and often fell short of guaranteeing that the United States helped build a free, fair and sustainable media in countries and regions emerging from dictatorship. A Government Accountability Office study confirmed my views.
To address this shortcoming, I introduced legislation to establish a Free Media Center at the National Endowment for Democracy. This legislation was approved, and today I'm proud to announce that the State Department has now funded the establishment of the Free Media Center. The National Endowment for Democracy will begin this important initiative in September.
The Free Media Center will bring together many media assistance practitioners and experts now working around the world to coordinate their activities, establish best practices, and serve as a clearinghouse for information and programs. The Center will also seek to enlist the involvement of America's media companies to ensure that our mutual commitment to a free press is promoted worldwide.
While this initiative is important, U.S. advocacy of freedom and democracy abroad will not be fully effective unless we first support an open and free press at home.
In conclusion, I would like to thank my Hoosier colleague, Mike Pence, and his partner Rick Boucher, in the House of Representatives as well as my colleagues Chris Dodd and Arlen Specter in the Senate for their tireless work on this issue. I look forward to continuing work with each of them to ensure to all citizens the free flow of information.