Specter, Schumer, Lugar Announce Agreement on Modified Shield Law for Reporters

Press Release

U.S. Senators Arlen Specter (R-PA), Ranking Member of the Senate Judiciary Committee, Charles E. Schumer (D-NY), and Richard Lugar (R-IN) - the principal authors of the Free Flow of Information Act, a bill that would codify a legal privilege for reporters who seek to protect the identity of their sources - today announced they have introduced a modified version of their legislation, replete with revisions to resolve lingering concerns raised by law enforcement officials.

The original bill, which passed the Senate Judiciary Committee last year by a bipartisan vote of 15-4, is set for a procedural vote on the Senate floor this morning. If the vote succeeds, the three Senators' modified proposal would be offered in the form of a substitute amendment to the bill.

"We turn the first part of every day to the newspapers to see what is occurring, and frequently in the mix of the news there are investigative reports which tell Senators more than even our expert staffs know," Senator Specter said. "This legislation is very important to maintain the flow of information to the American people from the newspapers, radio and television stations. It is necessary because we have seen in recent times a flurry of subpoenas being issued to reporters to disclose their confidential sources, and a reporter's source of information really depends upon their being able to fulfill a commitment of confidentiality."

"A truly free press is the lifeblood of our democracy. This compromise bill takes a reasonable and balanced approach to keeping us free and safe," Senator Schumer said. "We have worked closely together to craft a careful bill that protects both the freedom of the press and the safety of our citizens. In a free and democratic country, we should be able to do both - and this bill does."

"This legislation confirms America's Constitutional commitment to press freedom and advances our foreign policy initiatives to promote and protect democracy," Senator Lugar said. "We must lead by example and the role of the media as a conduit between government and the citizens it serves cannot be devalued."

Currently, 49 states, plus the District of Columbia, provide some measure of legal protection to reporters who decline, even under the threat of being held in contempt of court, to disclose the identity of confidential sources. The legislation championed by Specter, Schumer and Lugar would establish a federally recognized privilege to standardize the protection afforded to journalists.

The shield bill has been endorsed by a bipartisan collection of 43 state attorneys general. It also enjoys the formal support of more than 100 media organizations. Both presumptive nominees for president, Senators Barack Obama and John McCain, have declared their intention to vote for the legislation as well.

A similar bill passed the House of Representatives last year by a 398-21 vote.

Despite the widespread support, Bush administration officials have raised concerns about unintended impacts the journalistic protection may have on national security matters. In light of those concerns, Specter, Schumer and Lugar have incorporated a number of revisions to their proposal. Among the revisions made in the new compromise announced Wednesday:

* Leaking of Classified Information. To resolve worries expressed by intelligence officials that the bill would make it too difficult to prosecute leaks of classified information, the new bill removes two major hurdles for federal prosecutors. Under the new bill, prosecutors will not have to prove any longer that they have exhausted all other options for finding the information at issue or show that the information is "essential" to their investigation, but classified information is defined as including only information that has been classified according to applicable regulations.

* Definition of a journalist. In the revised bill, the definition of a "covered person" has been narrowed to ensure that it covers only legitimate journalists who regularly gather information of public interest with the intent of disseminating it to the public. This definition reflects the court standard first established in the Second Circuit case of von Bulow vs. von Bulow.

* Exceptions to the privilege. The revised bill makes clear that no absolute privilege exists; rather, a series of exceptions are enumerated in cases involving reporters who are eye-witnesses to crimes, harm to national security, an act of terrorism, and other matters such as kidnapping, murder, or incapacitation of critical infrastructure.

* Preventing the Disclosure of Sensitive Information in Open Court. The substitute explicitly provides that sensitive government information will not be disclosed in open court.

* Impact on FISA. The revised bill includes a new provision that explicitly states that the legislation will have no impact on intelligence gathering under the Foreign Intelligence Surveillance Act of 2008.

* Expedited appeals process. The substitute creates an expedited appeals process ensuring that litigation regarding whether the protection applies will be resolved as quickly as possible.

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