Thursday, December 02, 2004

Free Speech Protection Act of 2004

"Our Founding Fathers recognized then that for a society to remain free, it must also allow for divergent views and opinions to be expressed, and for ideas to be openly exchanged. In many respects, the rights of free speech and a free press protect the government from trampling on the other political and personal liberties all Americans hold so dear.
Freedom of speech and freedom of the press are like the government watchdog that shines a spotlight when other rights are being threatened. Without this, the press becomes an extension of the government and the people know only what the government wants them to know. As Jefferson once commented:
When the press is free and everyone is able to read, all is safe.
Congress cannot afford to stand idly by and allow our sacred First Amendment freedoms to be threatened. Let me be clear. The legislation I submitted to the desk, the Free Speech Protection Act of 2004, is not merely about protecting the press. Instead, this legislation is about consumer protection. It is about openness, debate, the free flow of information and deliberation--the very ideals that the Senate holds so dear."
-- Senator Christopher Dodd (D-CT)

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By Mr. DODD:
S. 3020. A bill to establish protections against compelled disclosure of sources, and news or information, by persons providing services for the news media; to the Committee on the Judiciary.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Free Speech Protection Act of 2004''.
SEC. 2. DEFINITIONS.
In this Act:
(1) COVERED PERSON.--The term ``covered person'' means a person who--
(A) engages in the gathering of news or information; and
(B) has the intent, at the beginning of the process of gathering news or information, to disseminate the news or information to the public.
(2) NEWS OR INFORMATION.--The term ``news or information'' means written, oral, pictorial, photographic, or electronically recorded information or communication concerning local, national, or worldwide events, or other matters.
(3) NEWS MEDIA.--The term ``the news media'' means--
(A) a newspaper;
(B) a magazine;
(C) a journal or other periodical;
(D) radio;
(E) television;
(F) any means of disseminating news or information gathered by press associations, news agencies, or wire services (including dissemination to the news media described in subparagraphs (A) through (E)); or
(G) any printed, photographic, mechanical, or electronic means of disseminating news or information to the public.
SEC. 3. COMPELLED DISCLOSURE PROHIBITED.
(a) IN GENERAL.--Except as provided in section 4, no entity of the judicial, legislative, or executive branch of the Federal Government with the power to issue a subpoena or provide other compulsory process shall compel any covered person who is providing or has provided services for the news media to disclose--
(1) the source of any news or information procured by the person, or any information that would tend to identify the source, while providing services for the news media, whether or not the source has been promised confidentiality; or
(2) any news or information procured by the person, while providing services for the news media, that is not itself communicated in the news media, including any--
(A) notes;
(B) outtakes;
(C) photographs or photographic negatives;
(D) video or sound tapes;
(E) film; or
(F) other data, irrespective of its nature, that is not itself communicated in the news media.
(b) SUPERVISORS, EMPLOYERS, AND PERSONS ASSISTING A COVERED PERSON.--The protection from compelled disclosure described in subsection (a) shall apply to a supervisor, employer, or any person assisting a person covered by subsection (a).
(c) RESULT.--Any news or information obtained in violation of the provisions of this section shall be inadmissible in any action, proceeding, or hearing before any entity of the judicial, legislative, or executive branch of the Federal Government.
SEC. 4. COMPELLED DISCLOSURE PERMITTED.
(a) NEWS OR INFORMATION.--A court may compel disclosure of news or information described in section 3(a)(2) and protected from disclosure under section 3 if the court finds, after providing notice and an opportunity to be heard to the person or entity from whom the news or information is sought, that the party seeking the news or information established by clear and convincing evidence that--
(1) the news or information is critical and necessary to the resolution of a significant legal issue before an entity of the judicial, legislative, or executive branch of the Federal Government that has the power to issue a subpoena;
(2) the news or information could not be obtained by any alternative means; and
(3) there is an overriding public interest in the disclosure.
(b) SOURCE.--A court may not compel disclosure of the source of any news or information described in section 3(a)(1) and protected from disclosure under section 3.
SEC. 5. ACTIVITIES NOT CONSTITUTING A WAIVER.
The publication by the news media, or the dissemination by a person while providing services for the news media, of a source of news or information, or a portion of the news or information, procured in the course of pursuing professional activities shall not constitute a waiver of the protection from compelled disclosure that is described in section 3.
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Mr. DODD. Mr. President, I am going to send a copy of this bill to the desk to be printed in the RECORD. It is not going to be referred to any committees in the waning minutes of this 108th Congress, but I will submit it for the RECORD. My plans are to reintroduce this legislation in January when we reconvene for the 109th Congress.
I thought it might be helpful to have this legislation in the RECORD for my colleagues to review. It is called the Free Speech Protection Act of 2004.
[Page: S11647] GPO's PDF
This bill is designed to ensure that the free speech guarantees enshrined in the First to the Constitution will be strong and effective for many generations to come. After all, it is the free flow of news and information to the public on a wide variety of concerns which makes our democracy vibrant and alive.
Indeed, the very design of our democratic institutions is premised in large part upon an informed citizenry that could exercise informed judgments.
As James Madison once observed:
Knowledge will forever govern ignorance: And apeople who mean to be their own Governor, must arm themselves with the power that knowledge gives.
Madison and the other Founders of our great Republic understood full well that the best guarantee of a knowledgeable citizenry is a free press and a public free to speak to the press. The press must be free to report on the human condition, the conduct of public officials, matters of business and corporate governance, as well as the strengths and weaknesses of our society and its institutions.
A free press must also be able to access a broad spectrum of views from a wide variety of sources. Once individuals deliberate over such information, they are able to make more educated decisions. In addition, they can also more effectively and intelligently participate in matters of public concern. To quote Madison once again:
Popular government without popular information or the means of acquiring it is but a prologue to a farce, or a tragedy, or perhaps both.
In fact, one of the hallmarks of a totalitarian government is that the state controls the press and similar sources of public information. Such regimes are characterized by extreme levels of secrecy and a total lack of transparency. The free flow of information to the public is greatly restricted. Criticism of the government could result in imprisonment or even death.
In recent memory, such regimes existed in Nazi Germany, the Soviet Union, and Saddam Hussein's Iraq, where the press was often used as a tool for propaganda. Unfortunately, there are still a number of governments around the globe today that greatly restrict the flow of news and information to their citizens.
The United States, in its formative years, never chose that path. The Founding Fathers of this great Nation of ours knew the value of a free press because they had often been denied it by their colonial rulers. Repressive measures had long been part of English history in this regard, such as the censorship of published materials and a licensing system whereby nothing could get published without the government's consent.
Our Founding Fathers recognized then that for a society to remain free, it must also allow for divergent views and opinions to be expressed, and for ideas to be openly exchanged. In many respects, the rights of free speech and a free press protect the government from trampling on the other political and personal liberties all Americans hold so dear.
Freedom of speech and freedom of the press are like the government watchdog that shines a spotlight when other rights are being threatened. Without
this, the press becomes an extension of the government and the people know only what the government wants them to know. As Jefferson once commented:
When the press is free and everyone is able to read, all is safe.
Congress cannot afford to stand idly by and allow our sacred First Amendment freedoms to be threatened. Let me be clear. The legislation I submitted to the desk, the Free Speech Protection Act of 2004, is not merely about protecting the press. Instead, this legislation is about consumer protection. It is about openness, debate, the free flow of information and deliberation--the very ideals that the Senate holds so dear.
It is also about ensuring that our constituents, the American citizenry, have access to the knowledge and information they need to make educated decisions and fully participate in our democracy.
Yet these freedoms which we hold so dear are not as safe as they have been in other times in the life of our Nation. They have come under attack by the heavy hand of Government in a manner not seen since the height of the Watergate scandal 30 years ago.
The press today is frequently being subpoenaed to appear in Federal court and threatened with fines and/or imprisonment if they refuse to reveal a confidential source to the prosecutor or attorneys involved in the lawsuit. In some instances, the prosecutor or attorneys might also request the reporter's notes, video outtakes, or other unpublished information.
In recent months, the press has come under intense pressure to reveal the identity of their confidential sources, threatening the public's right to know.
In Providence, RI, WJAR-TV reporter Jim Taricani aired an FBI surveillance tape in 2001 that showed an aide to Mayor Vincent ``Buddy'' Cianci accepting a bribe from a local businessman. Taricani broke no law in airing the tape, but a special prosecutor was subsequently brought in to investigate who leaked the information. He refused to identify the source and was convicted of criminal contempt yesterday in Federal court. Taricani now faces 6 months in prison when he is sentenced in December.
Perhaps the most alarming instance in recent months of the growing threat to the sacred right to freedom of speech in America is the case of Judith Miller of the New York Times. Last month, a Federal judge held Miller in contempt of court for refusing to name her sources to prosecutors investigating the disclosure to syndicated columnist Robert Novak and to other journalists of Valerie Plame's identity as a covert CIA agent. Plame's husband, former Ambassador Joseph Wilson, IV, had in a New York Times editorial criticized the Bush administration for claiming that Iraq had tried to buy uranium from Niger.
Unidentified senior administration officials revealed Plame's identity to Robert Novak and other Washington area journalists, allegedly as an act of revenge for Wilson speaking out against President Bush's rationale for invading Iraq.
Mr. Novak then published Plame's identity in a July 2003 column, which prompted an investigation by the Justice Department and the subpoenaing of several journalists before a Federal grand jury, including Judith Miller, Tim Russert of NBC's ``Meet the Press,'' Walter Pincus and Glen Kessler of the Washington Post, and Time magazine reporter Matthew Cooper.
Some of these reporters have talked to the prosecutors after the alleged Government sources signed waivers releasing the journalists from any pledge of confidentiality. New York Times reporter Judith Miller, however, has refused to testify, even under the limited terms of the waiver. As a result, she is being held in contempt of court and could face up to 18 months in jail unless she agrees to testify.
What is so surprising about this case is that Judith Miller never even published an article in the New York Times, or any other newspaper or magazine for that matter, about Valerie Plame. The mere fact that Miller contemplated writing such an article and had conducted interviews for it was enough for the judge to hold her in contempt of court for refusing to name sources.
Currently, 31 States and the District of Columbia have enacted protections for gatherers and disseminators of news and information. They include red States, blue States, Alabama, North Carolina, and Montana, for example.
Why then is there a need for a Federal statute in this area? A strong and uniformed Federal law on shielding would provide uniformity and consistency to the patchwork of inconsistent court decisions and State statutes currently in place.
In many instances, whether the disclosure will be compelled and how much information will be disclosed depends upon the particular State in which the journalist is pursuing a story when he or she is subpoenaed. The different potential outcomes affect reporters' practices, the flow of information, the articles written or not written, in various news media. It ultimately impacts the public's ability to learn about matters of interest and importance as well.
The protections that these laws and court rulings provide vary widely in detail and in scope. For example, some States grant nearly complete protection for sources and information, while
[Page: S11648] GPO's PDF
others provide little or none. In addition, the protections may differ in their applicability to criminal and/or civil proceedings.
In the Federal court system, for instance, most have interpreted Branzburg, a 1972 United States Supreme Court decision, to provide at least qualified news gathering protection--that is, a protection that can be overcome in certain circumstances. A few Federal courts, however, such as the Seventh Circuit, have rejected such protection, or have limited it only to when the subpoenas are being used to harass the press.
For those reasons, I think it is quite clear that a national standard would protect gatherers and disseminators of information from the varying State statutes and their interpretations by State courts. This goal is exactly what the Free Speech Protection Act of 2004 would achieve.
Under the legislation, the protection against compelled disclosure for sources would be absolute. The protection against compelled disclosure of news and information, however, is qualified. That is, an individual involved in gathering news would be required to reveal their unpublished material only under certain circumstances. The legislation requires three criteria to be met before such news or information can be disclosed.
First, the person seeking the news or information must prove by clear and convincing evidence that the news or information is critical or necessary to significant legal issues before a judicial, legislative, or administrative body that has the power to issue a subpoena.
Secondly, the news or information could not be obtained by alternative means. Finally, there is an overriding public interest in the disclosure that must exist.
The legislation I am introducing this evening is a work in progress. Obviously, in the coming weeks I intend to further refine it, and in the 109th Congress to seek out my colleagues' advice and counsel on how we might proceed. I am nevertheless introducing this bill in the closing hours of this Congress because I believe the Senate discussion of this matter is urgent. The public's right to know is under attack. When that happens, all Americans suffer since they are deprived of knowledge and information which affects their lives.
There are countless examples of information that we have received because there have been confidential sources who have come forward. Certainly, we can go back to Watergate, Whitewater, or Iran-Contra, Abu Ghirab--the prison scandal in Iraq--Enron, WorldCom, corporate governance issues, the list is almost endless. Had it not been for confidential sources coming forward and sharing information with a free press that would then share that with the public, if we had to rely exclusively on government press releases or press conferences, then we might never have learned anything about some of these issues which have been so vitally important to make our Government and our Nation stronger.
I urge my colleagues to take a look at this proposal and urge them to consider it when we return in January. I will reintroduce it again and urge them to support it.
I ask unanimous consent that the text of the bill be printed in the RECORD.
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PRESS RELEASE
November 19, 2004
Washington, DC - In response to recent reports in which the press has come under intense pressure to reveal the identity of their confidential sources, Senator Dodd today introduced federal legislation to protect individuals and organizations involved in gathering and disseminating news from being hauled into federal court and forced to disclose their sources or other unpublished information. The Free Speech Protection Act of 2004 would establish a strong and uniform federal reporters' shield law modeled after statutes currently in place in thirty-one states and the District of Columbia.
"This legislation is fundamentally about good government and the free and unfettered flow of information to the public," said Dodd. "The American people deserve access to a wide array of views so that they can make informed decisions and effectively participate in matters of public concern. When the public's right to know is threatened, and when the rights of free speech and free press are at risk, all of the other liberties we hold dear are endangered. The legislation that I am introducing today will protect these rights, and ensure that the government remains open and accountable to its citizens."
The proposed legislation creates an absolute protection against compelled disclosure for sources, regardless of whether or not the source was promised confidentiality. The protection against compelled disclosure of news and information, however, is qualified - that is, an individual involved in gathering news would be required to reveal their unpublished material only under certain circumstances.
There is currently a patchwork of inconsistent court decisions and state statutes that provide protections for individuals and organizations that gather and disseminate news and information. The protections that these laws and court rulings provide vary widely in detail and scope. The national standard enshrined in The Free Speech Protection Act of 2004 would alleviate many of these concerns.
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