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

**Legislative Hearing on H.R. 2102, the Free Flow of Information Act of
2007**

**Opening Statement of Rep. Mike Pence**

**June 14, 2007**

Thank you, Mr. Chairman. Today's hearing is going to provide us with an
exceptional opportunity to explore the need for the Free Flow of
Information Act, and I am grateful that you have called this hearing.

Let me also express my gratitude to my partner in this endeavor, the
gentleman from Virginia, Congressman Rick Boucher, who introduced the
bill and is such a tireless advocate for the First Amendment. We were
very pleased this year to gain the support of Chairman Conyers and
Congressman Coble as original cosponsors of the bill. The bipartisanship
does not end in the House. In the Senate, the senior senator from my
home state, Dick Lugar, and Senator Chris Dodd have introduced companion
legislation. This Congress is truly populated with many dedicated and
hard-working champions for a free press, and I am humbled to be
associated with these legislators. 

 

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 did not
safeguard the freedom of the press in the Constitution because they got
good press.  And, I am certainly not advocating a free and independent
press because I always get good press.

Enshrined in the First Amendment are these words: "Congress shall make
no law...abridging the freedom of speech, or of the press."

We all remember when not long ago a confidential source brought to light
abuses at the highest levels of government in the long national
nightmare of Watergate.  History records that W. Mark Felt never would
have come forward without the assurance made to him of confidentiality.

But, thirty years later the press cannot make that assurance to sources,
and we face the real danger that there may never be another Deep Throat.
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.

In recent years, reporters such as Judith Miller have been jailed and
Mark Fainaru-Wada and Lance Williams have been threatened with jail
sentences. They are a few names among many who have been subpoenaed for
taking a stand for the First Amendment and refusing to reveal
confidential sources.

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.

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.

Most of the provisions in the bill come from internal Department of
Justice guidelines instituted more than thirty years ago during Richard
M. Nixon's presidency. Strengthened in the 1980s, the guidelines have
been maintained by Republican and Democratic administrations ever since.
In doing so, this legislation strikes a balance between the public's
need for information and the fair administration of justice.

In response to issues raised last year by the Department of Justice, the
bill was revised to narrow the scope of the privilege and create an
exception to allow for compelled disclosure of a source if necessary to
prevent imminent and actual harm to national security. This year, the
bill again has been revised and updated in order to address legitimate
concerns that were raised with regard to the scope of the privilege. The
national security exception has been maintained, and additional
exceptions have been added to allow for compelled disclosure of a source
in situations involving imminent bodily harm or death, or in cases where
a trade secret or personal medical or financial information are revealed
in violation of the law.

In such cases, a judge will perform a balancing test to determine
whether compelling disclosure of the source would be contrary to the
public interest, taking into account the public's interest in compelling
disclosure and the countervailing interest in maintaining the free flow
of information.

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.  

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.

As a conservative, I believe that concentrations of power should be
subject to great scrutiny. 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.

Thomas Jefferson warned that, "Our liberty cannot be guarded but by the
freedom of the press, nor that limited without danger of losing it."

This Congress would be wise to take those words to heart.  Now is the
time to heed the advice of Mr. Jefferson.  It is time to repair this
tear in the First Amendment.  It is time to pass a federal media shield
law, and I am pleased that Congress is taking a first step toward that
goal with this hearing today.