**U.S. House of Representatives, Committee on the Judiciary**

**Markup of H.R. 2102, the Free Flow of Information Act of 2007**

**Opening Statement of Rep. Mike Pence**

**August 1, 2007**

Thank you, Mr. Chairman. Today's markup is an important step forward in
the drive to enact the Free Flow of Information Act into law. I am
grateful for your leadership on this issue and for your support of this
bill.

As always, I am profoundly grateful to my partner in this endeavor, the
gentleman from Virginia, Congressman Rick Boucher, the author of this
year's version of the bill. On the committee, I also would like to thank
Congressman Howard Coble for his original cosponsorship and support of
the bill.

This bill has received tremendous support in the Senate, with companion
legislation having been introduced by the senior senator from my home
state, Dick Lugar, and Senator Chris Dodd. On both sides of the Capitol
and on both sides of the aisle, there are countless dedicated and
hard-working champions for the First Amendment, and I know that they all
will be very pleased to see this bill move forward today.  

As Colonel Robert R. McCormick, grandson of the founder of the Chicago
Tribune, said, "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."

As a conservative who believes in limited government, I know the only
check on government power in real time is a free and independent press.
The Free Flow of Information Act is not about protecting reporters; it
is about protecting the public's right to know.

Our Founders enshrined in the First Amendment the following words:
"Congress shall make no law...abridging the freedom of speech, or of the
press."

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, we are heeding those words and taking an important step toward
repairing what has become a tear in the First Amendment.

Not long ago, a reporter's assurance of confidentiality was
unquestionable. That assurance led to sources who provided information
to reporters so that brought forward news of great consequence to the
nation, such as Watergate where government corruption and misdeeds were
brought to light by the dogged persistence of a free and independent
press.

However, the press cannot currently make the same assurance of
confidentiality to sources, and we face the real danger that there may
never be another Deep Throat. In recent years, reporters such as Judith
Miller have been jailed, James Taricani placed on house arrest, Mark
Fainaru-Wada and Lance Williams threatened with jail. The protections
provided by the Free Flow of Information Act are necessary so that
members of the media can bring forward information to the American
public without fear of retribution or prosecution, and so that sources
will continue to come forward.

Compelling reporters to testify, and in particular, compelling them to
reveal the identity of their confidential sources, is a detriment to the
public interest.  Without the promise of confidentiality, many important
conduits of information about our government will be shut down.  The
dissemination of information by the media to the public on matters
ranging from the operation of our government to events in our local
communities is invaluable to the operation of our democracy.  Without
the free flow of information from sources to reporters, the public is
ill-equipped to make informed decisions.

Which is not to say the press is without fault or always gets the story
right, but as James Madison wrote, "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."

As a conservative, I believe that concentrations of power *should* be
subject to great scrutiny. Integrity in government is not a Democratic
or Republican issue, and corruption cannot be laid at the feet of one
party. When scandal hits either party, any branch of government, or any
institution in our society, it wounds our nation.

The longer I serve in Congress, the more firmly I believe in the wisdom
of our Founders -- especially as it pertains to the First Amendment and
freedom of the press. It is imperative that we preserve the transparency
and integrity of American government, and the only way to do that is by
preserving a free and independent press.

It is important to note that this bill is not a radical step. Thirty-two
states and the District of Columbia have various statutes that protect
reporters from being compelled to testify or disclose sources and
information in court.  Seventeen states have protections for reporters
as a result of judicial decisions.  The Free Flow of Information Act
would set national standards similar to those that are in effect in the
states.

The Free Flow of Information Act has been carefully drafted, after
reviewing internal Department of Justice guidelines and state shield
laws. It puts forth a qualified privilege which strikes the appropriate
balance between the public's need for information and the fair
administration of justice.

In most instances, a reporter will be able to use the shield provided in
the bill to refrain from testifying, providing documents, or revealing a
confidential source. However, the privilege is not absolute or
unlimited.

Testimony or documents can be forced if all other reasonable alternative
sources have been exhausted, the testimony or document sought is
critical to a criminal prosecution or a civil case, and a judge
determines that the public interest in compelling disclosure outweighs
the public interest in gathering or disseminating news or information.

The addition of this balancing test ensures that full and fair
consideration will be given to both sides in the determination of
whether a reporter must testify or turn over documents.

In a situation where a reporter is being asked to reveal the identity of
a confidential source, the bill provides several exceptions whereby the
reporter can be compelled to reveal the source. Sources can be revealed
under exceptions for national security, bodily harm or death, trade
secrets, and personal health or financial information.

The manager's amendment that will be considered provides further
clarification to these exceptions. Under it, compelled disclosure of a
source will be permitted if necessary to prevent terrorism or
significant and specified harm to national security. The manager's
amendment prevents the shield privilege from being claimed by foreign
powers, agents of foreign powers and foreign terrorist organizations.

This exclusion will be added to the definition of who is a "covered
person" under the bill. Covered persons are those who are able to use
the shield, and there has been much discussion since the hearing about
who would be covered. In the manager's amendment, we will make it clear
that a covered person must be engaged in journalism for financial gain
or livelihood and that no terrorists will be able to qualify.

It is important to note what the bill does not do. It 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 leaves laws on classified
information unchanged. It simply gives journalists certain rights and
abilities to seek sources and report appropriate information without
fear of intimidation or imprisonment, much as, in the public interest,
we allow psychiatrists, clergy and social workers to maintain
confidences.

With such a qualified privilege, reporters will be ensured the ability
to get the American people the information they need to make choices as
an informed electorate. A free and independent press is the only agency
in America that has complete freedom to hold government accountable, and
I heartily support it.  

Let me conclude again by commending the gentleman from Virginia, Mr.
Boucher, for his extraordinary leadership and the great spirit of
partnership he's brought to this project during the course of this
Congress and the last.

And again to commend the chairman of this committee for moving this
legislation so expeditiously. I couldn't help but notice in my
devotions, Mr. Chairman, this morning to light on a Bible verse that I'd
close with today, one that was greatly cherished by our Founders.

From the book of Galatians, it simply writes: "It is for freedom that
Christ has set us free. Stand firm then and do not let yourselves be
burdened again by the yoke of slavery." It was for freedom, Mr.
Chairman, our Founders enshrined the freedom of the press in the First
Amendment.

I humbly submit that Congress should seize this legislative moment to
stand firm and not let ourselves be burdened by any yoke or any action
that infringes on our fundamental freedoms as Americans. I urge my
colleagues to support this bill and join me in what I hope will be a
strong bi-partisan vote to renew our commitment to America's free and
independent press.