79–006 

111TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 111–61 

FREE FLOW OF INFORMATION ACT OF 2009 

MARCH 30, 2009.—Committed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

Mr. CONYERS, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 985] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 985) to maintain the free flow of information to the public by 

providing conditions for the federally compelled disclosure of information by certain persons connected with the news media, having 

considered the same, reports favorably thereon without amendment 

and recommends that the bill do pass. 

CONTENTS 

Page 

Purpose and Summary ............................................................................................ 2 

Background and Need for the Legislation ............................................................. 2 

Hearings ................................................................................................................... 6 

Committee Consideration ........................................................................................ 7 

Committee Votes ...................................................................................................... 7 

Committee Oversight Findings ............................................................................... 7 

New Budget Authority and Tax Expenditures ...................................................... 7 

Congressional Budget Office Cost Estimate .......................................................... 7 

Performance Goals and Objectives ......................................................................... 9 

Constitutional Authority Statement ...................................................................... 9 

Advisory on Earmarks ............................................................................................. 9 

Section-by-Section Analysis .................................................................................... 9 

Dissenting Views ..................................................................................................... 11 


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1 U.S. Const. amend. I. 

2See Bradley S. Miller, The Big Chill: Third-Party Documents and the Reporter’s Privilege, 

29 U. Mich. J.L. Ref. 613, 623 (1995–96) (discussing the importance of the press in getting useful information about government to the people); see also Citizen Pub. Co. v. United States, 394 

U.S. 131, 139–40 (1969) (explaining that a free press is key to a free society as it ensures widespread and diverse dispersal of information). 3See New York Times v. Sullivan, 376 U.S. 254, 270 (1964) (stating that ‘‘debate on public 

issues should be uninhibited, robust, and wide-open’’); see also Mills v. Alabama, 384 U.S. 214, 

218 (1966) (asserting that ‘‘a major purpose of that Amendment was to protect the free discussion of government affairs’’); Garrison v. Louisiana, 379 U.S. 64, 77 (1964) (suggesting that there 

is ‘‘paramount public interest in a free flow of information to the people concerning public officials’’). See generally David A. Anderson, The Origins of the Press Clause, 30 UCLA L. Rev. 

455 (1983) (detailing history of Press Clause). 4See Bradley S. Miller, The Big Chill: Third-Party Documents and the Reporter’s Privilege, 

29 U. Mich. J.L. Ref. 613, 623 (1995–96) (arguing that the press must be free of governmental 

restrictions so it can remain the ‘‘investigative arm of the people,’’ uncovering government corruption and other crimes detrimental to American people); see also New York Times v. United 

States, 403 U.S. 713, 728 (1971) (Stewart, J., concurring) (arguing that in certain areas of government, the only checks and balances against government power may be ‘‘enlightened citizenry,’’ and an alert and free press is essential to bestow knowledge on the public). 5See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980) (overruling limitations on press access to judicial proceedings); Sullivan, 376 U.S. at 281 (establishing ‘‘actual 

malice’’ standard for defamation claims by public officials). 

PURPOSE AND SUMMARY

H.R. 985, the ‘‘Free Flow of Information Act of 2009,’’ ensures 

that members of the press may engage in effective journalism and 

utilize confidential sources without harming themselves or their 

sources, by providing a qualified privilege that prevents a reporter’s source material from being revealed except under certain circumstances, such as where it is necessary to prevent an act of terrorism or other significant and specified harm to national security, 

or imminent death or significant bodily harm. The bill thus strikes 

a careful balance with respect to promoting the free dissemination 

of information and ensuring effective law enforcement and the fair 

administration of justice, while containing substantial protections 

for law enforcement and ensuring that information needed to protect the national security or other critical interests will be accessible when needed. 

H.R. 985 is identical to H.R. 2102 from the 110th Congress, in 

the amended form in which it passed the House of Representatives 

on October 16, 2007, by a recorded vote of 398–21. 

BACKGROUND AND NEED FOR THE LEGISLATION

BACKGROUND

The First Amendment and Freedom of the Press 

The First Amendment of the Constitution states that ‘‘Congress 

shall make no law . . . abridging the freedom of speech, or of the 

press.’’1 Historically, the press has played an essential role in disseminating information to the public.2 In addition to providing general news about crimes against the state, the press has been 

thought to further the values of the First Amendment by providing 

information on issues of public concern, including the conduct and 

actions of public officials and instances of government corruption.3

Thus, it has been recognized that the press should be protected 

from undue government interference when gathering and disseminating information if it is to provide newsworthy information to the 

general public.4 The Supreme Court has recognized this and has 

struck down laws that have restricted the press’s ability to broadcast information of public concern.5 Since confidential sources are 


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6Mark Gomsak, Note, The Free Flow of Information Act of 2006: Settling the Journalist’s 

Privilege Debate, 45 Brandeis L.J. 597, 601 (2007). 7 Id. at 601. 

8 Id. at 608 (arguing that subpoenas devour time and resources better used for other purposes 

and entangle people in the criminal process). 9See id. at 609 (citing Judge Richard Posner’s statement that subpoenas can lawfully require 

testimony about activities both ‘‘intensely private and entirely marginal to the purpose of the 

inquiry’’). 10 Bradley S. Miller, The Big Chill: Third-Party Documents and the Reporter’s Privilege, 29 

U. Mich. J.L. Ref. 613, 623 (1995–96) (suggesting that the subpoena threat may puncture the 

cooperative atmosphere between reporter and source by redirecting attention to the question of 

the reporter’s loyalties); see, e.g., Cohen v. Cowles Media Co., 501 U.S. 663, 665 (1991) (concluding that the First Amendment does not prohibit a plaintiff from recovering damages for a 

reporter’s breach of a promise of confidentiality). 11 408 U.S. 665 (1972). 12The first claim by a reporter that the First Amendment justified a refusal to provide information came in a case in which a columnist reported several allegedly defamatory statements 

from an anonymous CBS source about actress Judy Garland. Garland v. Torre, 259 F.2d 545, 

547 (2d Cir. 1958). Garland sued CBS; in her deposition, the reporter refused to answer questions about the source of the statements. Id. The Second Circuit held that the First Amendment 

did not confer a right to refuse to answer questions, at least when the questions ‘‘went to the 

heart of the . . . claim.’’ Id. at 548–50. 13 408 U.S. 665, at 707. 

thought to be particularly important to bringing unrestricted information of public interest to light, it has been argued that the First 

Amendment offers protection against the compulsory disclosure of 

these confidential sources by the Federal Government.6

There are typically two bases in the First Amendment supporting 

the privilege: (1) the need to protect the free flow of information 

and ideas, and (2) the need to keep the government from interfering with the press or commandeering it as an investigative 

arm.7 With respect to the first point, the right to publish is worthless without the right to gather information; shield law protection 

is necessary because some reporting is dependent on informants, 

and some informants are unwilling to be named because of fear of 

retribution, embarrassment, or harm. Those informants could be 

deterred by the risk of being compulsorily named; as a result, reporters would neither have access to nor be able to publish important information. 

With respect to the second point, it is often argued by the press 

that the extent of interference with the journalistic process is significant, as ‘‘subpoenas are inherently, invariably, inescapably burdensome.’’ 8 Responding to subpoenas requires much time and expense, and the subpoenas often seek information that is only marginally relevant.9 The press further asserts that complying with a 

subpoena may also have an adverse impact on a journalist’s credibility, as testifying for one side may make the journalist appear biased.10

The Issue of Journalistic Privilege 

In Branzburg v. Hayes,11 the Supreme Court ruled on a claim of 

journalists’ privilege for the first time.12 In an opinion by Justice 

White, the Court held that a journalist could not rely on an absolute First Amendment-based privilege to refuse to testify when 

questioned by a grand jury, unless the grand jury investigation was 

‘‘instituted or conducted other than in good faith.’’ 13 The Court reasoned that the public’s interest in prosecuting crime outweighed its 

interest in journalists’ being permitted to preserve their confidential relationships. The Court, however, noted that there was ‘‘merit 


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14 Id. at 706 15 Id. at 726 (Powell, J., concurring). 16 Id. 17 Id. at 743 (Stewart, J., dissenting). 18 Id. 19Paul Marcus, The Reporter’s Privilege: An Analysis of the Common Law, Branzburg v. 

Hayes, and Recent Statutory Developments, 25 Ariz. L. Rev. 815, 866–67 (1984) (calling for a 

uniform national standard for the national news-gathering media). 20 Id. at 867. 21 23 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure 5426, 

at 738–39 (1980) (concluding that the press eventually lost interest in seeking a Federal legislative solution to the subpoena problem). 22See 28 C.F.R. 50.10 (1970). 23 Id. 24See Riley v. City of Chester, 612 F.2d 708, 714 n.6 (3d Cir. 1979) (quoting a comment by 

the principal drafter of the Federal Rules of Evidence that ‘‘the language of Rule 501 permits 

the courts to develop a privilege for newspaperpeople on a case-by-case basis’’). 25Paul Marcus, The Reporter’s Privilege: An Analysis of the Common Law, Branzburg v. 

Hayes, and Recent Statutory Developments, 25 Ariz. L. Rev. 815, 864 (1984). 

in leaving state legislatures free, within First Amendment limits, 

to fashion their own standards’’ regarding journalists’ privilege.14

Justice Powell’s concurrence in Branzburg stressed the need for 

a test to strike the ‘‘proper balance between freedom of the press 

and the obligation of all citizens to give relevant testimony with respect to criminal conduct.’’ 15 He explained that a court could quash 

a subpoena where ‘‘legitimate First Amendment interests require 

protection.’’ 16 In his dissent, Justice Stewart went a step further 

and proposed a specific balancing test. 17 Under his test, in order 

to make a journalist comply with a subpoena to appear before a 

grand jury and reveal confidential sources and information, the 

government must: (1) show that there is probable cause to believe 

that the reporter has information that is clearly relevant to a specific probable violation of law; (2) demonstrate that the information 

sought cannot be obtained by alternative means less destructive of 

First Amendment rights; and (3) establish a compelling and overwhelming interest in the information.18

In the aftermath of Branzburg, there have been recurring calls 

for a Federal shield law or for a reconsideration of that decision.19

Although nearly one hundred bills was introduced in the 6 years 

after the Branzburg decision,20 none of these measures was passed, 

a failure that is partially attributed to an inability to reach consensus on the definition of ‘‘journalist,’’ and to the insistence of the 

press on an absolute privilege, not a qualified one.21 In 1970 the 

Attorney General promulgated guidelines to govern the issue for 

the Department of Justice.22 These guidelines require the Department to: balance First Amendment values with the need for the information sought by the subpoena; make a reasonable attempt to 

get the information from alternative sources; negotiate with the 

news media before issuing a subpoena; obtain Attorney General approval before issuing a subpoena; and specify reasonable grounds 

for the Department’s belief that the information sought by the subpoena is essential.23

Also since the Branzburg decision, Federal courts have continued 

to develop a common law privilege on a case-by-case basis.24 Some 

Federal courts have recognized a qualified journalist’s privilege in 

non-grand jury settings, some have extended it to both civil and 

criminal proceedings, and some have even extended the privilege to 

non-confidential sources.25 This lack of uniformity among the FedVerDate Nov 24 2008 20:42 Mar 30, 2009 Jkt 079006 PO 00000 Frm 00004 Fmt 6659 Sfmt 6601 E:\HR\OC\HR061.XXX HR061

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26 Carey Lening & Henry Cohen, Journalists’ Privilege to Withhold Information in Judicial 

and Other Proceedings: State Shield Statutes, Congressional Research Service Report for Congress, Mar. 8, 2005. 27 Id. 28 Id. 

eral courts has prompted calls from journalists and scholars for 

Federal legislation. 

The Federal Rules of Evidence 

Federal Rule of Evidence 501 states that except as provided by 

an Act of Congress or in rules prescribed by the Supreme Court, 

Federal privileges should be governed by the principles of common 

law. When courts recognize a privilege, it has been for the purpose 

of protecting information shared in the context of a special relationship, such as that between attorney and client, or between husband 

and wife. Privileges are created to promote sharing information 

without the fear that either party will be forced to disclose to a 

third party. 

In 1996, the Supreme Court issued a three-part test for when a 

new privilege may be created: 1) whether the proposed privilege 

serves significant public and private interests; 2) whether the recognition of those interests outweighs any burden on truth-seeking 

that might be imposed by the States; and 3) whether such a privilege is widely recognized by the States. 

State Shield Laws 

Since Branzburg, 49 States and the District of Columbia now recognize some version of a shield law protecting the press, to varying 

degrees, from unfettered disclosure of sources, work product, and 

information generally. While 16 of these States recognize a reporter’s privilege as a result of judicial decisions, only 13 States and 

the District of Columbia accord an absolute privilege for a journalist to withhold information, regardless of the State’s demonstration of need for the information. 

The various State statutes range in scope, from broad protections 

that provide an absolute journalistic privilege, to shield laws that 

offer a qualified privilege.26 The majority of State shield laws currently in place offer some form of a qualified privilege to reporters 

that protects source information in judicial settings, unless the 

compelling party can establish (1) that the information is relevant 

or material; (2) that it is unavailable by other means, or through 

other sources; and (3) that a compelling need exists for the information.27 The States tend to vary on the last element, with some 

requiring the compelling party to establish whether the need exists 

as to the party’s case, and others whether the need serves a broader public policy.28 In Federal courts, however, there is no uniform 

set of standards governing when testimony can be sought from reporters. 

NEED FOR THE LEGISLATION

This legislation is essential for journalists to be able to protect 

confidential sources. Without this protection, many sources of information may be unwilling to come forward with critical information. 

The privilege is necessary to preserve the free flow of information. 


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29 Brief for the State of Oklahoma, et al. as Amici Curiae Supporting Petitioners, Miller v. 

United States, No. 04–1507 (May 27, 2005). 30 Id. 

Many people view the press as the fourth branch of government, 

serving in the checks and balances system that underlies our democracy. Over the years, the press has uncovered scandals and corruption in the government, and criminal behavior, often attributable to an undisclosed source. In fact, many stories would not 

have been published without a promise of confidentiality of 

sources—Watergate and Iran-Contra come to mind, among many 

others. More recent news stories brought to light based on confidential sources include the conditions at the Walter Reed Army 

Medical Center, the Abu Ghraib prison scandal, and the abuse of 

steroids by baseball players. 

A Federal shield law is also needed because of the lack of uniform standards—at both the Federal level and State level—to govern when testimony can be sought from reporters. This argument 

was made by 34 State attorneys general, including the District of 

Columbia, in an amicus brief filed May 27, 2005.29 In the brief, the 

attorneys general recognized that 49 States and the District of Columbia had some form of a shield law, and state that ‘‘[l]ack of a 

corresponding Federal reporter’s privilege undercuts the States’ 

privileges recognized in forty-nine States and causes needless confusion.’’ The attorneys general also suggested that three decades 

after Branzburg, the change in the State law landscape and the 

confusion in the Federal circuits made the consideration of a Federal reporter’s privilege ripe for review.30

Because the privilege is not absolute, this law will prevent law 

enforcement officials from using journalists and the results of their 

fact-gathering as a shortcut to a proper investigation, but will not 

prevent law enforcement or civil litigants from obtaining information that is truly needed to protect the national security or other 

significant interests and that is not reasonably available from any 

other source. H.R. 985 contains significant provisions carefully 

crafted during the last Congress to ensure a fair and practical balance between the public’s right to know and the need to protect national security and other critical interests—provisions that resulted 

in a consensus measure that passed the House by an overwhelming 

margin of 398–21. 

HEARINGS

The full Committee on the Judiciary held 1 day of hearings on 

a predecessor bill, H.R. 2102, during the 110th Congress, on June 

14, 2007. Testimony was received from Rachel Brand, Assistant Attorney General for Legal Policy, U.S. Department of Justice; William Safire, columnist, N.Y. Times; Lee Levine, partner, Levine, 

Sullivan Koch and Schultz, LLP; Randall Eliason, Professional Lecturer in Law, George Washington University Law School and 

Washington College of Law, American University; and Jim 

Taricani, reporter, WJAR TV, Providence, Rhode Island. 


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COMMITTEE CONSIDERATION

On March 25, 2009, the Committee met in open session and ordered the bill, H.R. 985, favorably reported without amendment by 

voice vote, a quorum being present. 

COMMITTEE VOTES

In compliance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that there were 

no recorded votes during the Committee’s consideration of H.R. 

985. 

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new 

budgetary authority or increased tax expenditures. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

the bill, H.R. 985, the following estimate and comparison prepared 

by the Director of the Congressional Budget Office under section 

402 of the Congressional Budget Act of 1974: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, March 27, 2009. 

Hon. JOHN CONYERS, Jr., Chairman, 

Committee on the Judiciary, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 985, the ‘‘Free Flow of Information Act of 2009.’’ 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Leigh Angres, who can 

be reached at 226–2860. 

Sincerely, 

DOUGLAS W. ELMENDORF, DIRECTOR. 

Enclosure 

cc: Honorable Lamar S. Smith. 

Ranking Member 


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H.R. 985—Free Flow of Information Act of 2009. 

CBO estimates that implementing H.R. 985 would have no significant effect on the federal budget. H.R. 985 would exempt journalists from being compelled to produce documents or provide testimony unless a court finds that one of the following exceptions 

apply: 

• The party seeking information has exhausted all reasonable 

alternative sources; 

• In criminal investigations or prosecutions, there are reasonable grounds to believe a crime has occurred, and the testimony or document sought is critical to the investigation, 

prosecution, or defense; 

• In all other matters, the information sought is critical to the 

completion of the matter; 

• In cases where a source’s identity could be revealed, the document or testimony sought is necessary to prevent certain 

actions, including an act of terrorism, among others; and 

• The public interest in compelling disclosure of the document 

or information involved outweighs the public interest in 

gathering or disseminating news information. 

The bill also would limit the content of subpoenaed testimony or 

documents. Finally, under the bill, communication service providers (i.e., telecommunications carriers and Internet service providers) could not be compelled to provide testimony or documents 

relating to a reporter’s phone, email, and computer use, unless one 

of the above exceptions applies. 

Under current law, requests to subpoena journalists on matters 

related to federal cases typically originate within the Department 

of Justice (DOJ). Federal prosecutors can request a subpoena of a 

journalist from a court after an internal review by DOJ. Information from DOJ indicates that very few subpoena requests seeking 

confidential source information are approved each year (there were 

a total of 19 over the 1991–2007 period) and that it is unlikely that 

the bill would substantially increase such requests. Thus, CBO assumes that there would be very few instances each year when such 

a subpoena could be challenged in court. 

Journalists already challenge some subpoenas under current law, 

and H.R. 985 would clarify the instances when a journalist would 

be compelled to produce information or testify. The bill might increase federal attorneys’ litigation duties if more subpoenas would 

be challenged than under current law, but given the small number 

of potential cases, CBO estimates that any increase in federal 

spending would be insignificant. In addition, based on information 

from the Administrative Office of the United States Courts, CBO 

expects that the bill would not appreciably increase the courts’ 

workloads. Therefore, CBO estimates that implementing H.R. 985 

would have no significant budgetary impact. 

H.R. 985 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

not affect the budgets of state, local, or tribal governments. 

The CBO staff contact for this estimate is Leigh Angres. This estimate was approved by Theresa Gullo, Deputy Assistant Director 

for Budget Analysis. 


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PERFORMANCE GOALS AND OBJECTIVES

The Committee states that pursuant to clause 3(c)(4) of rule XIII 

of the Rules of the House of Representatives, H.R. 985 is intended 

to ensure the free flow of information to the public by setting conditions on federally compelled disclosure of information from certain 

persons connected with the news media. 

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee finds the authority for this legislation in article I, section 8, clause 18 of the Constitution and the 

First Amendment. 

ADVISORY ON EARMARKS

In accordance with clause 9 of rule XXI of the Rules of the House 

of Representatives, H.R. 2102 does not contain any congressional 

earmarks, limited tax benefits, or limited tariff benefits as defined 

in clause 9(d), 9(e), or 9(f) of Rule XXI. 

SECTION-BY-SECTION ANALYSIS

The following discussion describes the bill as reported by the 

Committee: 

Section 1. Short Title—Section 1 sets forth the bill’s short title 

as the ‘‘Free Flow of Information Act of 2009.’’ 

Section 2. Compelled Disclosure from Covered Persons—Section 2 

establishes a procedure by which disclosure of confidential information from a journalist may be compelled. Subsection (a) states that 

a Federal entity may not compel a journalist to testify or provide 

documents related to information obtained or created by the journalist, unless the following conditions are met by a preponderance 

of the evidence and after notice and an opportunity to be heard: 

1) The party seeking production must have exhausted all reasonable alternative sources of the information. 

2) If it is a criminal investigation, the party seeking production must have reasonable grounds to believe a crime has 

occurred and the information sought is critical to the case. 

If it is a civil investigation, the information must be critical 

to the successful completion of the case. 

3) If the information could reveal the identity of a confidential 

source, disclosure is only allowed when necessary to: 

(A) prevent an act of terrorism against the United States 

or its allies, other significant harm to national security, 

or to identify the perpetrator of such an act; 

(B) prevent imminent death or significant bodily harm; 

(C) identify a person who has disclosed a trade secret actionable under 18 U.S.C. §1831 or §1832; individually 

identifiable health information as defined in section 

1171(6) of the Social Security Act; or nonpublic personal information as defined in section 509(4) of the 

Gramm-Leach-Bliley Act; or 

(D) identify for purposes of criminal prosecution a person 

who made unauthorized disclosure of properly classified 


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information, where the disclosure caused or will cause 

significant harm to national security. 

4) If the three requirements above are met, the party seeking 

production must also establish by a preponderance of the 

evidence that the public interest in compelling disclosure 

outweighs the public interest in gathering or disseminating 

news or information. Subsection (b) of this section expressly 

permits the court to consider the extent of any harm to national security in conducting this balancing. 

Subsection (c) states that, where disclosure is ordered, the content of any information ordered to be produced should not be 

overbroad, unreasonable, or oppressive, and should, where appropriate, be limited to the purpose of verifying published information 

or describing surrounding circumstances relevant to the accuracy of 

the published information. Subsection (c) also states that the content should be narrowly tailored in subject matter and period of 

time so as to avoid the production of peripheral, nonessential, or 

speculative information. 

Subsection (d) states that nothing in the bill should be construed 

to apply to state-law defamation, slander, or libel claims or defenses. 

Section 3. Compelled Disclosure From Communications Service 

Providers—Section 3(a) provides that the protections of section 2 

apply equally to an attempt by a Federal entity to get information 

from a communication service provider (‘‘CSP’’) that relates to a 

business transaction between the CSP and a covered person as to 

an attempt to get the information directly from the covered person—for example, if the government attempts to obtain a reporter’s 

e-mails from the reporter’s Internet service provider instead of directly from the reporter. 

Subsection (b) requires that a court give the covered person notice and opportunity for hearing before ordering a CSP to disclose 

information described in subsection (a). Notice must be given no 

later than the time the subpoena or request is issued. Subsection 

(c) provides that notice may be delayed only if the court determines 

by clear and convincing evidence that not delaying it would pose 

a substantial threat to the integrity of a criminal investigation. 

Section 4. Definitions—Section 4 defines the following terms: 

1) ‘‘Communications service provider’’ is a person that transmits information of a customer’s choosing by electronic 

means and includes a telecommunications carrier, an information service provider, and an information content provider (as those terms are defined in the Communications 

Act). 

2) ‘‘Covered person’’ is a person who, for a substantial portion 

of the person’s livelihood, or for substantial financial gain, 

is regularly engaged in journalism (including supervisors, 

employers, parents, subsidiaries, or affiliates of a covered 

person). A covered person does not include any person who 

is a foreign power or agent of a foreign power under Section 

101 of the Foreign Intelligence Surveillance Act; any foreign 

terrorist organization as designated by the Secretary of 

State in accordance with section 219 of the Immigration 

and Nationality Act; any person identified as a financial 


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supporter of a terrorist organization in the Annex to Executive Order 13224, or whose assets are blocked under that 

order; any person designated as a terrorist under 31 C.F.R. 

595.311; or any terrorist organization as defined in Section 

212(a)(3)(B)(vi)(II) of the Immigration and Nationality Act. 

3) ‘‘Document’’ means writings, recordings, and photographs 

(as defined in the Federal Rules of Evidence). 

4) ‘‘Federal entity’’ is an entity or employee of the judicial or 

executive branch or an administrative agency with subpoena power. 

5) ‘‘Journalism’’ is gathering, preparing, collecting, 

photographing, recording, writing, editing, reporting, or 

publishing of news of information that concerns local, national, or international events or other matters of public interest for dissemination to the public. 

DISSENTING VIEWS

The United States has enjoyed a free press for over 200 years because it is guaranteed by the First Amendment 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 consequence. 

Nor is there any evidence that potential sources have withheld 

critical information from reporters because of a fear of being revealed. Just look at the examples that are regularly revealed—from 

Watergate to the mistreatment of soldiers at Walter Reed Medical 

Center. 

H.R. 985 creates a press ‘‘privilege’’ under which courts cannot 

compel reporters, tabloids, or even some professional bloggers to 

provide information needed to fight crime. 

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. 

While confidentiality is vital to the work of a reporter, national 

security is essential to the preservation of a free nation. 

Protecting anonymous sources should never be more important 

than protecting the American people or solving crimes that can 

help save lives. 

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. 

For example, the prospective nature of some of the most important exceptions in this bill—to prevent a terrorist attack or imminent bodily harm—will not help in investigations after the attack 

has occurred. 


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Under the bill, law enforcement officials could have acquired relevant information identifying a reporter’s source on September 10, 

2001—to prevent the terrorist attacks—but could not have acquired 

that same information on September 12 to track down 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. 

And in cases involving the identity of a reporter’s source, look at 

the range of misconduct that falls outside the ‘‘death or imminent 

bodily harm’’ exception: corporate and financial crimes, 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 when such harm is a predictable result of the crime. 

This new privilege has no precedent in American legal history. 

All H.R. 985 does is create 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 we are all held to in the context 

of an investigation. 

And the media should be more forthcoming about their methods 

in promoting H.R. 985. We hear a lot from the media about the 

evils of lobbying and how Congress is captive to special interests. 

But media outlets, in a very self-serving way, are lobbying House 

Members to support H.R. 985 or face the consequences—irate 

hometown newspaper editors and local TV and radio reporters. 

These media proponents are a lot like the lobbyists the media 

regularly criticize—those who advocate for their special interests 

without disclosing campaign contributions. But there is no way to 

quantify or report the value of a journalist’s ‘‘in-kind’’ contribution—a positive editorial if the Member supports the bill—or a negative editorial if the Member opposes the bill. 

There is an absence of transparency and accountability here. It 

is unseemly, and possibly unethical, to make phone calls and write 

editorials in support of this bill when the motive is so clearly one 

of self-interest. 

This bill is not about protecting the public’s right to know about 

corruption or malfeasance. It is about giving a reporter a special 

privilege at the expense of our national crime-fighting efforts. 

Also, we have a new President who has said he generally supports the legislation. But conceptual support is not an unqualified 

endorsement of the bill’s language. We may very well benefit from 

listening to the President and his Attorney General about the specific text of H.R. 985. 

As we have seen in recent days, the President sometimes modifies his support of legislation he has previously encouraged. 

To illustrate, it is very possible that the Justice Department may 

advocate that we change a number of provisions. This may include 

minimizing the restrictions on disclosure of source identification, 

eliminating the public interest ‘‘balancing test’’ when national security is involved, and deleting the ‘‘necessity’’ standard when the 

government is trying to acquire information to prevent a terrorist 

attack. 


jlentini on PROD1PC65 with HROC
13 

These and other changes would improve the bill. We hope the 

Administration and the bill supporters are open to working with us 

on further refinements to H.R. 985. 

We sympathize with journalists not wanting to reveal their 

sources. But as Members of Congress, we have a responsibility to 

see that the law enforcement and intelligence officials who keep us 

safe can do their jobs. H.R. 985 creates serious law enforcement 

and national security problems without sufficient justification. 

LAMAR SMITH. 

F. JAMES SENSENBRENNER, JR. 

DARRELL E. ISSA. 

STEVE KING. 

GREGG HARPER. 

Æ 


jlentini on PROD1PC65 with HROC