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Public Statements

Free Flow Of Information Act Of 2009

Floor Speech

Location: Washington, DC

Free Flow Of Information Act Of 2009


Mr. SMITH of Texas. Madam Speaker, I yield myself such time as I may consume.

Madam Speaker, the United States has enjoyed a free press for over 200 years because it is guaranteed to us in the Constitution. Our Founders understood that a free press protects and perpetuates our democracy.

There has been no Federal media shield law to protect journalists' sources because there has been no evidence of a need. No more than 17 journalists during the past 25 years have been jailed for refusing to testify before a grand jury. They were not singled out for punishment. Every American called to testify before a grand jury must cooperate or face this very same consequence.

Nor is there any evidence that potential sources have withheld critical information from reporters because of a fear of being identified. Just look at the scandals that are regularly uncovered--from Watergate to the recent mistreatment of soldiers at Walter Reed Medical Center.

In the 37 years since the Supreme Court ruled that the first amendment does not shield a reporter from testifying in a grand jury proceeding, the media have had no problem exposing corruption and injustice.

Unfortunately, this bill raises serious law enforcement and national security concerns. However well-intentioned, H.R. 985 will compromise the work of the Justice Department and other Federal agencies charged with crime-fighting, intelligence-gathering, and national security matters.

The bill we are considering today creates a press ``privilege'' under which courts cannot compel reporters to provide information they need to fight crime.

Protecting anonymous sources should never be more important than protecting the American people or solving crimes that can save lives. While confidentiality is vital to the work of a reporter, national security is essential to the preservation of a free nation.

For example, the exception to the privilege in this bill--to prevent a terrorist attack or imminent bodily harm--will not help in investigations after the attack has already occurred.

Under the bill, law enforcement officials could have obtained information identifying a reporter's source on September 10, 2001, for example, to prevent the terrorist attacks, but could not have acquired that same information on September 12 to track down the terrorists.

Similarly, officials could acquire information regarding a reporter's source to prevent the molestation of a child, but they could not get that same information to bring a sexual predator to justice after the assault.

Concerning classified information leaks, former Attorney General Michael Mukasey wrote in an editorial following the House vote in 2007: ``Leaking classified information is itself a crime, but in order for the government to get source information from a journalist in a leak investigation, it must show that the leak caused significant articulable harm to national security, that the information was properly classified, and the person who leaked it was authorized to have it.

``Thus, a would-be leaker of classified information could simply give it to someone not authorized to have it, urge that person to leak it, and thereby prevent the government from investigating the crime.

``This bill effectively cripples the government's ability to identify and prosecute leakers of classified information. Ironically, a bill styled as a `reporter's shield' would have the perverse effect of shielding would-be leakers.''

Look at the range of crimes where a reporter would be able to hide his source: Corporate and financial crimes--very relevant these days; human trafficking, gun and drug trafficking; gang activity; and other criminal activity that might not result in a direct risk of imminent death or significant bodily harm, even though we all have a strong interest in preventing such crimes.

H.R. 985 creates a privilege that allows reporters to avoid a civic duty. The bill goes beyond promoting a free press. It confers on the press a privileged position. It exempts journalists from the same responsibilities that all others have in a criminal investigation. This new privilege has no precedent in American legal history.

This bill is not about protecting the public's right to know about corruption or malfeasance that already exists. It's about giving a reporter a special privilege at the expense of our national crime-fighting efforts.

To quote a high-ranking official from the Office of the Director of National Security during last Congress' debate, the media shield bill ``makes it very difficult to enforce criminal laws involving the unauthorized disclosure of classified information and could seriously impede other national security investigations and prosecutions, including terrorism prosecutions.''

As a former reporter, I sympathize with journalists not wanting to reveal their sources. But as a Member of Congress I have a responsibility to see that law enforcement and intelligence officials who keep us safe can do their jobs. This bill creates serious law enforcement and national security problems without sufficient justification.

Madam Speaker, I reserve the balance of my time.

The SPEAKER pro tempore. Without objection, the gentleman from Virginia will control the time of the gentleman from Michigan.

There was no objection.


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