U.S. GOVERNMENT PUBLISHING OFFICE

31–424 PDF WASHINGTON : 2018

SHIELDING SOURCES: SAFEGUARDING THE 

PUBLIC’S RIGHT TO KNOW 

JOINT HEARING 

BEFORE THE

SUBCOMMITTEE ON HEALTHCARE, 

BENEFITS, AND ADMINISTRATIVE RULES 

AND THE

SUBCOMMITTEE ON 

INTERGOVERNMENTAL AFFAIRS 

OF THE

COMMITTEE ON OVERSIGHT 

AND GOVERNMENT REFORM 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FIFTEENTH CONGRESS 

SECOND SESSION 

JULY 24, 2018 

Serial No. 115–98 

Printed for the use of the Committee on Oversight and Government Reform 

( 

Available via the World Wide Web: http://www.govinfo.gov 

http://oversight.house.gov 


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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

Trey Gowdy, South Carolina, Chairman 

John J. Duncan, Jr., Tennessee 

Darrell E. Issa, California 

Jim Jordan, Ohio 

Mark Sanford, South Carolina 

Justin Amash, Michigan 

Paul A. Gosar, Arizona 

Scott DesJarlais, Tennessee 

Virginia Foxx, North Carolina 

Thomas Massie, Kentucky 

Mark Meadows, North Carolina 

Ron DeSantis, Florida 

Dennis A. Ross, Florida 

Mark Walker, North Carolina 

Rod Blum, Iowa 

Jody B. Hice, Georgia 

Steve Russell, Oklahoma 

Glenn Grothman, Wisconsin 

Will Hurd, Texas 

Gary J. Palmer, Alabama 

James Comer, Kentucky 

Paul Mitchell, Michigan 

Greg Gianforte, Montana 

Michael Cloud, Texas 

Elijah E. Cummings, Maryland, Ranking 

Minority Member 

Carolyn B. Maloney, New York 

Eleanor Holmes Norton, District of Columbia 

Wm. Lacy Clay, Missouri 

Stephen F. Lynch, Massachusetts 

Jim Cooper, Tennessee 

Gerald E. Connolly, Virginia 

Robin L. Kelly, Illinois 

Brenda L. Lawrence, Michigan 

Bonnie Watson Coleman, New Jersey 

Raja Krishnamoorthi, Illinois 

Jamie Raskin, Maryland 

Jimmy Gomez, Maryland 

Peter Welch, Vermont 

Matt Cartwright, Pennsylvania 

Mark DeSaulnier, California 

Stacey E. Plaskett, Virgin Islands 

John P. Sarbanes, Maryland 

SHERIA CLARKE, Staff Director 

WILLIAM MCKENNA, General Counsel 

SARAH VANCE, Healthcare, Benefits, and Administrative Rules Subcommittee Staff Director 

SHARON CASEY, Deputy Chief Clerk 

DAVID RAPALLO, Minority Staff Director 


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SUBCOMMITTEE ON HEALTHCARE, BENEFITS, AND ADMINISTRATIVE RULES

Jim Jordan, Ohio, Chairman 

Mark Walker, North Carolina, Vice Chair 

Darrell E. Issa, California 

Mark Sanford, South Carolina 

Scott DesJarlais, Tennessee 

Mark Meadows, North Carolina 

Glenn Grothman, Wisconsin 

Paul Mitchell, Michigan 

Raja Krishnamoorthi, Illinois, Ranking 

Minority Member 

Jim Cooper, Tennessee 

Eleanor Holmes Norton, District of Columbia 

Robin L. Kelly, Illinois 

Bonnie Watson Coleman, New Jersey 

Stacey E. Plaskett, Virgin Islands 

SUBCOMMITTEE ON INTERGOVERNMENTAL AFFAIRS

Gary Palmer, Alabama, Chairman 

Glenn Grothman, Wisconsin, Vice Chair 

John J. Duncan, Jr., Tennessee 

Virginia Foxx, North Carolina 

Thomas Massie, Kentucky 

Mark Walker, North Carolina 

Mark Sanford, South Carolina 

Jamie Raskin, Maryland, Ranking Minority 

Member 

Mark DeSaulnier, California 

Matt Cartwright, Pennsylvania 

Wm. Lacy Clay, Missouri 

Vacancy 


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C O N T E N T S 

Page 

Hearing held on July 24, 2018 ............................................................................... 1 

WITNESSES 

Mr. Lee Levine, Senior Counsel, Ballad Spahr, LLP 

Oral Statement ................................................................................................. 7 

Written Statement ............................................................................................ 10 

Ms. Sharyl Attkisson, Investigative Correspondent, Full Measure 

Oral Statement ................................................................................................. 28 

Written Statement ............................................................................................ 30 

Mr. Rick Blum, Policy Director, Reporters’ Committee for Freedom of the 

Press 

Oral Statement ................................................................................................. 33 

Written Statement ............................................................................................ 35 


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SHIELDING SOURCES: SAFEGUARDING THE 

PUBLIC’S RIGHT TO KNOW 

Tuesday, July 24, 2018 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON HEALTH CARE, BENEFITS AND

ADMINISTRATIVE RULES, JOINT WITH THE SUBCOMMITTEE

ON INTERGOVERNMENTAL AFFAIRS, COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, Washington, D.C. 

The subcommittee met, pursuant to call, at 2:45 p.m., in Room 

2154, Rayburn House Office Building, Hon. Jim Jordan [chairman 

of the subcommittee] presiding. 

Present: Representatives Jordan, Palmer, Walker, Grothman, 

Meadows, Krishnamoorthi, Raskin, DeSaulnier, and Norton. 

Mr. JORDAN. The subcommittees will come to order. We welcome 

our guests today, we will introduce you here in a few minutes. You 

know how this works. You typically got to listen to politicians talk 

first. It is crazy the way we do things here. 

But we’ll have some opening statements from the chairman of 

the respective subcommittees and the ranking members and we 

will get right to your testimony. We’ll swear you in and then of 

course get to the questions on this important important subject 

matter that’s been in the news of late. 

And this is an ongoing series of hearing we’re doing on First 

Amendment liberties and protecting those first amendments, 

whether on college campuses, whether it’s from the pulpit in some 

of our churches or whether it’s now today about the freedom of the 

press. So again, we thank you for being here and we’ll start with 

our opening statements 

When the—Jefferson once said when the people fear the government there is tyranny, when governments fear the people there is 

liberty. And I would like to kind of offer that as a context for evaluating this issue today as we move through it, this important hearing. 

Critical freedom of the press is pursuit of truth without government entanglements or intimidation, yet we have seen previous administrations wiretapping journalist phones and issuing subpoenas 

for the identity of their sources. For this reason we signed on to, 

my good friend professor Raskin’s Free Flow of Information Act 

which limits the government in compelling a journalist to reveal 

his or her sources. 

Professor Raskin and I may not agree often, but we are both 

committed to reaffirming our First Amendment freedoms, especially the guarantee, government cannot intimidate or sensor the 


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town crier, be it the chief contributor to The New York Times or 

a freelancer in the Fourth District of Ohio. But it should come as 

no surprise that advocate for government having the least consequential impact on American’s lives, especially at the Federal 

level where politicized prosecutors are unaccountable to the electorate. 

The creation of the Federal shield law like H.R. 4382, is the reassurance for journalists and Americans alike that their government 

cannot stifle the flow of information. This legislation acts as a powerful antidote to government encroachment for placing a more 

stringent check on their investigative powers. 

And those that improperly release classified information that 

jeopardizes national security and public safety should of course be 

prosecuted, but we cannot look the other way while our government intimidates journalists and tries to get their confidential 

sources. We need to keep the focus on that issue. 

Yesterday committee staff were briefed by the Justice Department related to their internal policies for obtaining information 

from reporters, this was in response to a briefing request from 

Chairman Gowdy and fellow cosponsor of the Free Flow of Information Act, Congressman Meadows. 

I, along with members of the committee, on both sides of the 

aisle, aim to continue our Justice Department to live up to the 

ideals set forth in the First Amendment. And I want to thank Professor Raskin again for his leadership on such an important legislative effort. And I’m glad to be working together in a bipartisan 

manner on this piece of legislation. 

I will just further add, you think about what we witnessed in the 

last few years where you had the agency with the power and influence that it has over American’s lives, the Internal Revenue Service systemically and for a sustained period of time target people for 

their political beliefs. And then you see what’s taken place recently, 

what we’ve recently learned, at the Department of Justice and the 

FBI relative to the previous campaign and what was taken to the 

FISA court. This is serious. 

And then when you add to it what we saw just a couple months 

ago with the reporter from The New York Times who had everything grabbed by the government. This is a serious issue, that’s 

why we have the discussion in the hearing today and it’s why we 

have our witnesses and that’s why I am pleased to be working with 

my colleagues in a bipartisan fashion. And with that I would yield 

to the gentleman from Maryland for his comments. 

Mr. RASKIN. Mr. Chairman, thank you very much for your leadership on this crucial legislation and for calling this hearing today. 

My dad wrote shortly before his death in 2017 these words, democracy in its operating principle the rule of law require a ground 

to stand on and that ground is the truth. The Founders of American democracy were obsessed with giving the American people the 

means to acquire the truth. Madison said the people who need to 

be their own governors must arm themselves with the power that 

knowledge brings. 

Jefferson identified the central role of the press in preserving democracy. He said, the only security of all is in a free press so the 

First Amendment established a preferred place for freedom of the 


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press since it established a preferred place for freedom of speech 

and freedom of religion. 

The Supreme Court has held that government can reasonably accommodate religious free exercise and worship, which is why Federal law can exempt Native American Indians using peyote for sacramental purposes when it bans it generally. It is why public 

schools can create exemptions for students and employees who observe religious holidays on official school days while not releasing 

other students and employees. 

These laws are not constitutionally necessary, but the courts 

have found them to be constitutionally permissible as a reasonable 

accommodation of religious liberty which occupies a high place in 

our pantheon of constitutional values. 

While the right of free press occupies a similarly exalted perch 

in our constitutional hierarchy. In theory, the specific command in 

the First Amendment that Congress will make no law of bridging 

the freedom of press was unnecessary, because press freedom already covered under freedom of speech. But the Framers insisted 

upon protecting the distinctive and indispensable role that the 

press plays as a free institution in our Democratic society. 

Not everyone can go to congressional hearings, not everyone can 

go to State and legislative sessions where city or county council 

meetings go late into the night, not everyone can travel into war 

zones in Iraq, or Afghanistan, or Vietnam to determine the realty 

and the meaning of our foreign policies. 

Not everyone can personally uncover torture at Abu Ghraib, or 

Guantanamo Bay, or obtain the Pentagon papers, or break the Watergate scandal, or determine how much oil leaked from the BP oil 

spill in the Gulf of Mexico. Or figure out what the President and 

President Putin talked about in their secret meeting in Helsinki. 

But as citizens we are all equally implicated by these events and 

we are all equally invested in ascertaining the truth of what is 

happening in our name as citizens. This is why we need professional journalists and newspapers to get the information for us. 

The First Amendment protects the free press, but that abstract 

guarantee means nothing if reporters cannot protect confidential 

sources and whistleblowers or if they have to live in fear of criminal prosecution and jail time. When reporters cannot do their jobs 

our ability to function as a reflective democracy suffers, the free 

press is not the enemy of the people, it is the people’s best friend. 

And it is the enemy of tyrants everywhere. 

Jefferson said were it left to me to decide whether we should 

have a government without newspapers or newspapers without a 

government, he said I would not hesitate a moment to choose the 

latter. 

As in other times of sharp political division, like the period of the 

Alien and Sedition Acts of 1798 the press in America is under ferocious attack today. Reporters are berated and castigated daily. 

Journalists have been arrested, punched, attacked and even murdered, including in my home State of Maryland simply for doing 

their jobs. 

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tively the free press and the American public’s right to know what 

exactly the government is doing you in our name. It is time to pass 

a Federal shield law to protect the press whose work is essential 

to democracy. 

America favors shield laws to protect the media watchdogs. Only 

49 States and the District of Columbia have passed shield laws or 

adopted some sort of reporter’s privilege. What more evidence do 

we need that the American people want to see a free and aggressive press to expose corruption and safeguard the workings of democracy. 

Mr. Chairman you and I introduced the Free Flow of Information 

Act of 2017 last November after Attorney General Sessions, in testimony before the House Judiciary Committee, refused to commit 

not to jail journalists for doing their jobs. I approached you on the 

spot and asked you whether you would introduce this measure with 

me, and I will never forget your immediate and enthusiastic response. It has given me hope that we can indeed come together as 

citizens, and lovers of the Constitution across party lines to defend 

the basic institutions of our democracy. 

Throughout our history dozens of journalists have served or have 

been threatened with jail time for protecting their sources, one of 

these journalists I know quite well, Brian Karem who is one of my 

constituents and the current Montgomery County Sentinel executive editor. In 1990, and 1991, Brian went to jail four different 

times to protect confidential sources while working as a TV reporter. The last time he went to jail for nearly 2 weeks while the 

Supreme Court considered his case and was only spared a long sentence when his confidential source, once she had moved from Texas 

to California and no longer feared for her life, came forward and 

revealed her own identity. 

Confidential sources like this are essential not only in investigative journalism, whether these sources shed light on government 

abuse and corruption, as was the case with Watergate, the Pentagon Papers or the abuse of detainees at Abu Ghraib in Iraq, but 

also in routine news gathered and the daily reporting of local news 

stories that immediately and directly influenced the lives of our 

people. 

The Free Flow of Information Act is long overdue, but there 

could be no better time to pass it than now, a time of peril to the 

republic, a time of corruption when foreign governments our trying 

to subvert our elections and when the basic values of society are 

in danger. 

Mr. Chairman this exact same Federal shield legislation passed 

the House with overwhelming bipartisan support in 2007 and the 

bill was championed by none other then Congressman, now Vice 

President Mike Pence. It provides covered reporters with the qualified privilege and contains exceptions for compelled disclosure resource. Whenever national security is threatened or when there is 

a threat of eminent bodily harm or death and in other discrete and 

limited situations. It would not cover reporters who are suspected 

of committing a crime themselves nor would it give reporters the 

right to interfere with law enforcement working to solve a crime. 

This is an area I think where we can all come together across 

party lines to defend the basic pillars of American democracy. I 


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agree very strongly with Vice President Pence who said it’s not a 

Democratic or Republican issue, it’s an issue for all Americans. 

And I urge my colleagues to support it. 

Mr. Chairman, I yield back and I thank you again for your leadership. 

Mr. JORDAN. You bet. It looks like we have got some students 

who are leaving. We want to thank you all for being here. Thank 

you so much. 

Mr. RASKIN. It takes a professor to drive them out of the room. 

Mr. JORDAN. It wasn’t the professor, it was the nine pages in 

your speech. No, it was all good. It was all good 

The gentleman from Alabama, of the subcommittee chair is recognized. 

Mr. PALMER. Thank you, Mr. Chairman. An inform citizenry is 

the hallmark American representative democracy. And without the 

free flow of information, we fail to hold those in power accountable. 

At the core of American exceptionalism is the liberty granted to 

its people to scrutinize its own government as first witnessed by 

Thomas Paine in Common Sense. I want to thank Chairman Jordan for joining with the Intergovernmental Affairs subcommittee 

on holding this hearing today. Our subcommittees have held a series of First Amendment hearings examining how certain rights 

like the right to speak freely at college campuses must be protected 

and reaffirmed. 

The American press has the freedom report on matters of importance to the public without fear of recourse from the government. 

Yet over several administrations the Justice Department has wielded tactics like threatening subpoenas and even imprisonment in an 

attempt to compel journalists to reveal their confidential sources, 

while these tactics may be used in good faith, investigation of 

criminal matters, it does demonstrate why a Federal shield law is 

critical. 

The Supreme Court addressed the freedom of the press in a seminal 1970 case Branzburg v. Hayes, in this case the justice rights 

said Congress has freedom to determine whether a statutory newsman’s privilege is necessary and desirable and the fashion standards and rules as narrow or broad as they deemed necessary. 

Meanwhile, in the absence of Federal shield law, States have 

rolled out their own. As chairman of the Intergovernmental Affairs 

subcommittee, I see the necessity of States detail laws and practices to fit the unique needs of their citizenry, but the emerging 

patchwork of State laws and Federal circuit Court have left journalists unsure of their protections from the Federal Government 

and sends a chilling effect throughout the press. 

A Federal shield law like H.R. 4382 will further empower journalists to pursue the truth and hold the government accountable. 

As Ranking Member Raskin pointed out, this is not the first time 

that a law like this has been introduced. It was introduced by then 

Representative Mike Pence, but also by Ted Poe, and now jointly 

by Chairman Jordan and Ranking Member Raskin. 

I want to thank my friend Chairman Jordan and my friend ranking member professor Raskin for their leadership in this effort. And 

I yield back. 


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Mr. JORDAN. I thank the gentleman. The gentleman from Illinois 

is recognized. I got to spend some time with you in Ohio over the 

4th of July. Did a great job at the event with Doctors from an Indian American heritage. 

Mr. Krishnamoorthi is recognized. 

Mr. KRISHNAMOORTHI. Thank you. Thank you, Mr. Chairman. 

Thank you, Chairman Palmer, thank you Ranking Member Raskin 

for your leadership on this issue and thank you to our witnesses 

for coming in today. 

A free and flourishing press is a cornerstone of our democracy. 

Our Founding Fathers understood the importance of an independent press and that’s why they embedded this particular right 

within the First Amendment to the Constitution. A free press informs the public and holds leaders to account. I know because I get 

a lot of letters based on what was written in the newspaper about 

me and so I know firsthand that the free press holds us to account. 

In order for the press to truly be free however, reporters must 

be able to protect their sources, whether they are government whistleblowers or corporate insiders. This crucial ability to protect confidential sources has been eroding over the past several years. As 

our government has sought to crack down on leaks, more and more 

reporters have been pressured to reveal their sources. The current 

administration is no exception to that trend. In fact, last August 

Attorney General Sessions announced that the Department of Justice had tripled, had tripled the number of active leak investigations saying, and I quote, ‘‘This culture of leaking must stop.’’ 

There is no question that classified or other legally protected information must be properly handled. But our government should not 

prosecute the journalists who expose corporate and government 

wrongdoing with the information that whistleblowers bring them. 

Although almost all States have shield laws, they vary in scope and 

do not apply in Federal cases where courts have issued conflicting 

rulings. That is why a Federal shield bill is so important. 

Vice President Pence, as mentioned before, sponsored such a bill 

in 2007 which passed the House with broad bipartisan support. I’m 

glad that Representatives Raskin and Jordan have introduced a 

shield bill this Congress and I hope it will be given full consideration. But we have a lot of work do. 

In the world press freedom index the United States ranked itself 

at 45th in the world. According to Reporters Without Borders 

which compiles this particular index our President Trump has fostered further decline in journalists right to report. He has called 

the press, quote unquote, ‘‘the enemy of the American people,’’ and 

labeled unfavorable coverage, quote unquote ‘‘fake news.’’ He has 

also called for revoking broadcasting licenses of certain mainstream 

news outlets. President Trump has expressed hostility to a free 

press, but undermining legitimate journalism is dangerous. It 

makes us less informed and erodes our trust in government. It 

wears away the fabric of our society. That is why I’m glad we are 

holding this hearing. We must work together on a bipartisan basis 

to strengthen our commitment to a robust free press. 

Thank you, Mr. Chairman. 

Mr. JORDAN. I thank the gentleman. I am now pleased to introduce our witnesses. We have first Mr. Lee Levine, senior counsel 


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at Ballard Spahr, and secondly we have Ms. Sharyl Attkisson, investigative correspondent and host of Full Measure, someone who’s 

story I’m familiar with, what Ms. Attkisson went through. And I’m 

sure you’re going to tell us about that, it’s simply unbelievable. And 

then of course we have Mr. Rick Blum, policy director of the Reporters’ Committee for Freedom of the Press. 

Welcome to all of you. What we normally do in this committee 

is we swear you in. So if you will please stand up and raise your 

right-hand. 

Do you solemnly swear or affirm the testimony you are about to 

give is the truth, the whole truth and nothing but the truth so help 

you God? 

Let the record show each witness answered in the affirmative. 

And we’re going to move right down the aisle. Mr. Levine you go 

first and then Sharyl and then Mr. Blum. 

WITNESS STATEMENTS 

STATEMENT OF LEE LEVINE 

Mr. LEVINE. Thank you, Mr. Chairman and members of the subcommittees. 

I last appeared before a committee of this House 11 years ago. 

The topic was the Free Flow of Information Act of 2007, which has 

been mentioned was cosponsored by now Vice President Mike 

Pence. It passed this chamber with overwhelming bipartisan support, but never received a vote in the Senate. My message to you 

today is a simple one, the time has come to enact just such legislation codifying a reporter’s privilege in the Federal courts. 

You should do so based on the unassailable historical fact that 

confidential sources are often essential to the press’s ability to inform the American people about matters of vital public concern. 

While there is, as there should be, healthy ongoing debate within 

with the journalism profession about the appropriate use of confidential sources. All sides of that debate agree that they are at 

times essential to effective news reporting. 

As then Congressman Pence testified before the House Judiciary 

Committee in 2007 and I quote, ‘‘compelling reporters to testify and 

in particular compelling them to reveal the identity of their confidential sources is a detriment to the public interest.’’ 

Indeed for almost 3 decades following the Supreme Court’s 1972 

decision in Branzburg v. Hayes, subpoenas issued by Federal court 

seeing disclosure of journalist’s confidential sources were rare. 

Since that time however, the situation has changed dramatically. 

In the last 15 years, a period that spans three separate Presidential administrations, a substantial number of subpoenas seeking the identities of confidential sources have been issued by Federal courts to a variety of media organizations, the journalists they 

employ and the third parties that provide them with telephone and 

email services. 

In my 2007 testimony, I described in some detail the significant 

increase in the number of such subpoenas in the immediately preceding years. Unfortunately, since that testimony the drum beat 

has continued unabated. In 2008 for example the Department of 

Justice issued the first of what became multiple grand jury and 


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trial subpoenas to Pulitzer Prize winning journalist James Risen, 

seeking to compel his testimony in the criminal prosecution of 

former CIA employee Jeffrey Sterling. 

Two separate Presidential administrations pursued Mr. Risen’s 

testimony over a period of 5 years. Ultimately, the United States 

Court of Appeals held that there is no reporters privilege in criminal cases in the Federal courts of fourth circuit and that Mr. Risen 

was therefore obliged to testify. 

Significantly following the fourth circuit’s ruling and Mr. Risen’s 

ongoing refusal to betray his promises to his sources, the Justice 

Department decided not to call him to testify at Mr. Sterling’s trial. 

Nevertheless, even without Mr. Risen’s testimony, Mr. Sterling was 

convicted. Which makes you question how necessary Mr. Risen’s 

testimony was in the first place. 

In 2013 the Justice Department seized 2 months worth of phone 

records connected to more than 20 telephone lines in the Associated 

Press’ offices and journalists, including their home phones and 

their cell phones. It did so not by seeking such information directly 

from the AP or the journalists involved, but rather by issuing without their knowledge subpoenas to their telephone service providers. 

That same year in the course of a criminal investigation of alleged 

leaks involving North Korea the Department secured warrants authorizing prosecutors to monitor the phone calls and emails of Fox 

News correspondent James Rosen, again without his knowledge. 

The public outcry that resulted from the AP subpoena and the 

Rosen search warrant prompted the Department to revise substantially its internal guidelines governing the use of such compulsory 

process. Nevertheless, the practices apparently continued, despite 

the change in the administrations in the interim. 

Earlier this year the Justice Department revealed that it had secretly procured years worth of phone and evil mail records of New 

York times reporter. It remains unclear whether the Department 

complied with its own guidelines when it did so, although that is 

largely an academic question since most courts have held that the 

guidelines are not judicially enforceable in any event. 

Things were not always this way. In the almost 3 decades immediately following the Supreme Court’s decision in Branzburg, both 

the Federal courts and DOJ largely construed that precedent to 

provide to journalists a privilege grounded either in First Amendment or in Federal common law that protected them in most Federal court proceedings, civil and criminal. In recent years however, 

that judicial consensus has broken down. 

As I’ve noted, Mr. Risen was authoritatively informed by the 

fourth circuit that he had no lawful ability to protect the identities 

of his confidential sources in response to a subpoena issued by a 

Federal court sitting in Virginia. But if that same subpoena had 

been issue by a Federal court in Delaware, less than 120 miles to 

the north, he would have enjoyed a privilege grounded in Federal 

common law as construed by the third circuit. And if the subpoena 

had been issued by a Federal court in Georgia, some 300 miles to 

the south, he would have been protected by a First Amendment 

base privilege recognized in the 11th circuit. 

Make no mistake, the drum beat of subpoenas, coupled with the 

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porter’s privilege in the Federal courts has impaired the ability of 

the American people to receive information about the operations of 

their government and the state of world in which we live. 

I respectfully submit that the time has long since time for congressional action. Thank you. 

[Prepared statement of Mr. Levine follows:] 


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Mr. JORDAN. Thank you, Mr. Levine, that was good, good history. 

We appreciate that. 

Ms. Attkisson, you’re recognized for your 5 minutes. 

STATEMENT OF SHARYL ATTKISSON 

Ms. ATTKISSON. Thank you. Thank you for inviting me. I remember a few years ago reporting on a story at CBS news and I always 

asked our lawyers there to vet my stories for fairness and legality. 

And on this particular day, I was going over some documents with 

them, provided by an inside source exposed corporate wrongdoing. 

I had vetted the documents and gotten other sources to appear on 

camera for a story. 

The attorneys wanted to know if we’re challenged in court on 

this story, can we disclose the insider’s name? I said, no. He would 

lose his job. It would ruin him. Why? They explained that the law 

had been changing and it was not to the benefit of journalists or 

our sources. They told me that we can no longer guarantee protection of the identity of our sensitive sources if challenged in court 

by say the company we were doing the story about. You’d have to 

give up the name my lawyers told me. Or else what? I said. You’d 

probably go to prison. That made getting truthful information that 

is in the public’s interest that much harder. I could no longer promise people who were willing to expose corporate or government 

wrongdoing that I could protect their identities at all costs. 

Obviously, I’m just one reporter, but you can multiply my experience by so many others. Here are just a couple of examples of stories I covered over the years that might not get told today because 

sources feel threatened. 

My investigation into fraud inside the Red Cross after all the 9/ 

11 donations, which was recognized with an Investigative Emmy 

award, was possible only with assistance from inside sources who 

provided me with audits and information. Stories exposing wrongdoing with Ford and Firestone and covering up long known deadly 

tire dangers, another Emmy nominated investigation might have 

gone untold. Same with my investigations into Enron, Halliburton, 

prescription drugs and countless others, stories that arguably let to 

lives saved and taxpayer money saved. 

It was with help from inside intelligence sources that I broke the 

story at CBS of the Chinese stealing our most sensitive nuclear secrets. I was also able to break the news that the FBI lied about 

evidence in that case against their suspect Wen Ho Lee. They 

claimed he had failed a lie detector test when I was able to get the 

polygraph and show that he had actually passed with flying colors. 

Without the ability to protect confidential sources, I probably 

wouldn’t have been able to report that the CDC was alarming our 

Nation with a swine flu epidemic, but the vast majority of cases 

blamed on swine flu were not swine flu or any sort of flu at all. 

And I wouldn’t have been able to break the stories about how BP 

and the government provided false information about how much oil 

was really leaking into the ocean after the BP oil spill. 

In the past decade we’ve see the government attack sources with 

a zeal that should be applied to those committing the wrongdoing 


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exposed. Instead, the wrongdoers are often protected. In some 

cases, they are the ones prosecuting the whistleblowers. 

The greatest offense a government insider can commit today is 

not for example improperly unmasking names of U.S. citizens for 

political purposes. It is providing information of wrongdoing to a 

journalist. Someone could go to jail over the so-called leak, but not 

the actual wrongdoing exposed. And sadly, we now have ample evidence that bad actors in government will go to shocking extremes, 

violating constitutional rights and possibly laws to hunt down our 

sources. 

In my case, I’m still litigating against the FBI and others connected to the intel community for their intrusions into my computers when I was at CBS news. The honest intel connected 

sources who helped me discover this include former FBI unit chief. 

The actions of the computer intruders, which we can trace 

forensically, imply that they were desperate to learn who my 

sources are and what I might be about to report. Talk about 

chilling. After that information became public, everyone one from 

intelligence community sources to corporate whistleblowers have 

told me that they hesitate to communicate with me because they 

believe I’m being monitored. 

And nothing has happened to the computer intruders to this day. 

Instead, the Justice Department simply uses unlimited taxpayer 

money to fight my case in court. And the big picture I can’t help 

but see this is part of a growing and organized effort to control a 

free press. I’m concerned about new movements to force schools to 

teach media literacy and to invite third parties to curate our information and determine what’s fakes news and what’s true. 

My research shows that these efforts are often the opposite of 

what they seem. The forces behind them may be trying to actually 

shape public opinion by preventing us from seeing certain facts and 

views. If these trends weren’t effected in the past, we might not 

know that cigarettes are bad for you. The whistleblower wouldn’t 

talk, the studies would be varied by algorithms at Google and 

Facebook because curators and media literacy experts would declare the research to be conspiratorial. They’d point to settled 

science to prove cigarettes are perfectly safe, maybe even good for 

you. News outlets and reporters daring the pierce the narrative 

would be controversialized, bullied on social media and forced out 

of their jobs. 

Make no mistake the ongoing government and corporate crackdown on whistleblowers and journalists who report their stories is 

a war. Our truthful information threatens the persistent bureaucracy and powers that be like nothing else and they are increasingly 

desperate to control information and narratives. We can only guess 

what important stories in the public interest will never be told because of a less free press. 

[Prepared statement of Ms. Attkisson follows:] 


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Mr. JORDAN. Thank you. Very good as well. 

STATEMENT OF RICK BLUM 

Mr. BLUM. Thank you, Mr. Chairman. Thank you, Chairman Jordan, Chairman Palmer, Ranking Member Krishnamoorthi and 

Ranking Member Raskin, thank you for holding the hearing and 

for the opportunity to testify today. And thank you as well to you 

for your leadership on the issue, especially the constituents of Mr. 

Raskin, I appreciate you working on this. 

Today I am testifying in my capacity as policy director for the 

Reporters’ Committee for Freedom of the Press which has existed 

for almost 5 decades and subpoenas is something that we’ve been 

working on for a very long time. And on behalf of News Media for 

Open Government, a coalition of news media associations. 

I want to highlight three points. First, confidential sources are 

vital to keeping citizens informed about our communities as well as 

about national stories that impact us and our lives and I will mention a few examples. 

Second conflicts continue as Mr. Levine mentioned over subpoenas and other demands for information obtained during the 

news gathering process, including the identities of sources. 

And third, the Free Flow of Information Act is a commonsense 

approach that sets that clear legal standards recognizing that the 

need to protect sources can coexist with the government’s responsibility to protect human life and enforce the law. And as you’ve 

heard confidential sources are essential to an informed public and 

accountable government. 

Journalists prefer to attach identities to their sources and a 

story. There are times however when to bring a story to the public, 

sources must be protected, even though in many cases the source’s 

identity is known to the reporter. When checked with multiple 

sources, authenticated and vetted for accuracy. Information for 

unnamed sources has been critical for journalists to keep the public 

informed about problems facing veterans, who are trying to obtain 

medical care, police misconduct, investigations into suspected fraud 

and the policy choices facing Presidents in the face of global challenges. Coverage of the current administration is no different in 

that respect. 

Many subpoenas and other demands for journalists’ notes and 

sources relate to news gathering on topics that have nothing do 

with national security. An unnamed source is critical to get getting 

to the truth about the 2014 shooting of Laquan McDonald in Chicago. One reporter, Jamie Kalvan, used a confidential source, a witness, to corroborate that the official police accounting of the shooting did not match what the autopsy showed. His reporting led to 

an investigation into the police officer’s conduct, the release of a 

video of the shooting, a murder charge against one of the police officers in an effort to compel Mr. Kalvan’s testimony to identify his 

source. Kalvan benefitted from legal and institutional support, including from my attorney colleagues at the reporter’s committee 

which enabled him to successfully fight to quash the subpoena. He 

was fortunate. 


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In another now infamous example, the startup company 

Theranos gained widespread attention for its claims of a breakthrough in testing blood using only a few drops of blood at a fraction of the cost of traditional methods. When reporters dug into the 

story, they discovered sources who knew the company could not 

back up its claims with scientific evidence. That reporting unraveled the story and led to fraud changes against the company’s 

founder. 

No topic of news coverage is immune to demands for journalist 

sources and material. From my witness observation of an execution 

in Alabama, to interviews with individuals who occupied a Federal 

wildlife refuge in Oregon a few years ago, and I’ll add an investigation into steroid use in baseball. 

A Federal shield law wide would protect a wide range of news 

coverage. The Free Flow of Information Act provides a qualified, as 

you’ve heard, but not absolute privilege that sets strong standards 

for courts to follow when deciding whether to compel a journalist 

to reveal his source. 

In media—so I want to make one other point, media lawyers I 

have spoken with tell me that, in the 49 States that recognize a 

journalist’s source privilege, something interesting happens. Even 

the existence of the shield law goes a long way to avoid have unnecessary litigation. 

So to conclude, Chairman Jordan and Chairman Palmer, enacting the Free Flow of Information Act would strengthen the independence for the press and the sources upon which the public relies 

to be fully informed on a daily basis. 

Thank you for the chance to testify and I look forward to your 

questions. 

[Prepared statement of Mr. Blum follows:] 


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Mr. JORDAN. You bet. 

The gentleman from Alabama is recognized for 5 minutes of 

questioning. 

Mr. PALMER. Thank you, Mr. Chairman. 

Mr. Levine, what does it mean for journalists to have qualified 

privileges? 

Mr. LEVINE. Well, there are two important words there, one is 

qualified and one is privilege. Privilege means that at least presumptively they will not have to disclose the identity of their confidential sources or published information that they chose for journalistic reasons not to publish in response to compulsory process 

like a subpoena. 

The qualified part means that that is not absolute. So that this 

bill and I think most reasonable people recognize that there have 

to be narrowly drawn exceptions to that, like—are set forth in this 

bill with respect to terrorism or eminent threats to national security. I think one of the geniuses of this bill is that it really does 

articulate very well those limited exceptions and articulates how 

limited they are and need to be. 

Mr. PALMER. Well, I thank you for that answer, because it lead 

into what I was going to come to next, because a lot of people are 

going to be concerned about whether or not we go to such great 

lengths to protect the confidentiality between a journalist and their 

source, even to the extent that we might not get information to defend us against an attack or that might compromise our national 

security. But even with a law that we have here or the bill that 

we have here, that’s not an issue. Would you agree with that? 

Mr. LEVINE. I do agree with that. And in fact, the exceptions to 

the application of the privilege, that is the issue—the instances in 

which the qualified privilege would yield are taken almost verbatim from the Department of Justice’s own guidelines, as the Department has itself purported to govern itself by over the last 40, 

50 years. The only difference here is that the decisions the Department’s made will now be reviewable a court instead of being undertaken in their unbridled discretion. 

Mr. PALMER. Ms. Attkisson, you have broken—you’ve been involved in some major stories Fast and Furious, Benghazi. Obviously, your ability to report on those, to conduct your own investigations have been greatly enhanced by being able to protect confidential sources. But in your testimony, you said that your activities were being monitored. Am I correct? Is that how you said that? 

Ms. ATTKISSON. Yes. 

Mr. PALMER. Okay. Can you elaborate on that, you know, how 

you were being monitored, you believe you were being wiretapped 

or that there were other intrusive methods that were being utilized? 

Ms. ATTKISSON. According to our forensics reports. 

Mr. PALMER. Would you hit your mic, please. 

Ms. ATTKISSON. According to our forensics reports and we have 

four separate independent reports that give similar pieces of the 

puzzle. There was a long-term effort to monitor my computers and 

phone devices, both my personal computers and my CBS computers. 


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Mr. PALMER. So how would they monitor them without a warrant? 

Ms. ATTKISSON. Well, we don’t know that they didn’t have a warrant, although I have two sources tell me that there was no FISA 

warrant. So the way I’m told that sometimes works they identify 

someone in the orbit of the person they want to watch and then 

they capture you on incidental surveillance, meaning they pretend 

it was sort of an accident, and then they kind of reverse engineer 

it so they can actually get the information from the person who 

was really target that they didn’t think they can get a warrant 

from. 

So as we’ve conducted our investigations forensically, there have 

been a lot of questions about who I might have contacted in foreign 

countries which would create a pretext or a pretense to make it 

look as though someone needed to be watched on that end, which 

would then sweep up my communications as well. 

Mr. PALMER. All right. I just wondered if you had filed a Freedom of Information Act request on that to try to determine the extent of the intrusive—— 

Ms. ATTKISSON. Yes, sir. The FBI has repeatedly denied my Freedom of Information Act request or not fulfilled them properly 

claiming they do not have information they provably do have. And 

there’s, as you may know from your previous FOIA work, very little 

that can be done about that. 

Mr. PALMER. Mr. Blum, I don’t want you to feel left out in the 

questions from the gentleman from Alabama, one of things I’m 

looking at are all of States that have basically a patchwork of laws 

that cover this. And one of things that I was wondering about is 

you can be in one State and be covered, and be in another State 

and not be covered, you might be an out-of-state journalists and 

not be covered by any State law. Can you elaborate on that, please? 

Mr. BLUM. Well I think as Mr. Levine mentioned, depending on 

which court you’re fighting the subpoena you may get a different 

result. We also have the First Amendment, but at the current state 

of affairs you may be in Alabama and you may be able to successfully fight a request for a murder suspect to want to interview you 

about the kind of interviews you’ve done. The problem with that is 

you are also going to be cross examined, so a reporter doesn’t want 

to be put in a position of providing all their notes, but it is true 

that it is very much a patchwork. 

Mr. PALMER. I generally am not for extending Federal power. But 

I think this when it comes to constitutional issues and I really 

think this is an area where the Federal Government does have a 

legitimate need to intervene. And again, I want to thank Ranking 

Member Raskin and Chairman Jordan for their work on this. I 

think this is important work. 

And with that, Mr. Chairman, I yield back. 

Mr. JORDAN. I thank the gentleman. The gentleman from Maryland is recognized. 

Mr. RASKIN. Thank you, Mr. Chairman and thanks to Chairman 

Palmer for his excellent questions there. So I just want to ask some 

questions to help illuminate exactly what our bill is going to do. 

Mr. Levine, let me start with you. If we adopt a press shield bill 

like this, and the reporter were walking down the street and saw 


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a crime, would they owe the sovereign their testimony or would 

they be able to get out of it because of the reporter shield bill? 

Ms. LEVINE. There is a provision in the bill that deals with eyewitness observations of criminal conduct differently than the normal source reporter relationship. 

Mr. RASKIN. Okay. 

Ms. LEVINE. There are still some hoops to jump through but as 

a rule a request for testimony of eyewitness observation of a crime 

other than a crime that would be committed by giving information 

to a journalist. 

Mr. RASKIN. Exactly. But the point is that as long as they are 

not operating in their professional capacity as a journalist, they 

would be able to testify about criminal activity they witnessed like 

everybody else and would be required to. 

Ms. LEVINE. That’s true too, because the definition of a covered 

person only applies to people who are engaged in the process of 

doing their jobs as—— 

Mr. RASKIN. Okay. Ms. Attkisson, let me get to you. A lot of people seem to think that investigative journalism only rarely depends 

on anonymous sources and it’s only investigative journalism, it’s 

not other types. And I wonder if you could shed some light on this 

for us. How important are confidential sources to the work of journalists? 

Ms. ATTKISSON. Yes, sir. In my case and I’ve done both kinds of 

reporting extensively, even when we are not using in a finished 

story anonymous sources are confidential sources, they are often 

the genesis of the story. We may find other people on the record 

to confirm, and be the voices, and the face of a story after somebody who is confidential flagged us to the story or maybe flagged 

us to some original information. 

So in my experience in both kinds of reportings it is absolutely 

critical to be able to speak to people and have them believe that 

they are not going to be—their identity is not going to be revealed. 

Mr. RASKIN. Great. Mr. Blum, let me come to you. Is there anything illegitimate about people speaking on and off the record or 

a deep background basis for reporters. I confess, I think I’ve done 

that myself certainly as a State Senator, I don’t know if I’ve ever 

done it in Congress. Is anonymous speech protected under our constitution? 

Mr. BLUM. Anonymous speech is protected and often times there 

is great utility in having a conversation with a source about, because they can give you some background—they can give you— 

here’s what’s really happening, you know, you may not—I don’t 

want my name attached to it because if it gets out, then I’m going 

to get in trouble with my supervisor, but you learn a lot of detail 

that you wouldn’t otherwise know about what’s really happening. 

It is also very useful for journalists, if they have a story they are 

going to go to an agency. This happened with national security stories, to say here is he a story, here’s what we have. Let us know, 

we’d like to see if you have any national security concerns about 

reporting and they might change a word, they might delay the 

story for a day, but there are those conversations and it is important that they be done. 


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Mr. RASKIN. Great. All of us grow up with the wisdom of the 

Founding Fathers about the importance of the press as a watchdog 

and the importance of the sunlight that the media brings as a disinfectant to potential corruption in government. But beyond those 

things that we learn in school, I wonder if any of you or all of you 

would care to share a contemporary example of a place where you 

think the press has played a really important role and confidential 

sources have been critical to the ability of the press to inform the 

public of something that it needs to know about. 

Ms. ATTKISSON. I gave quite a few examples, including the BP 

oil spill, I don’t know if that’s contemporary anymore. 

Mr. RASKIN. Yeah. But, well what exactly happened in that one? 

Ms. ATTKISSON. Well, when I was asked to cover that story for 

CBS news, it was several weeks into it the story and there had not 

been a lot of news under us, so they felt that I needed to dig into 

that. And one of first things I asked was where was the video, because I realized intuitively there was probably a video, an undersea 

camera. 

And with the help actually of Senator Markey and actually then 

Representative Markey and Senator Nelson and another Senator 

whose name I can’t remember, we worked together with FOIA and 

pressure to get the government who had these tapes but didn’t 

want to release them to release them. But it was only from the 

help from some inside sources connected to the government that I 

was able to with some precision report that the flow as reported 

by the government and its experts and by BP was false by a factor 

that was incredibly wildly wrong. 

Mr. RASKIN. They underestimated? Or understated? 

Ms. ATTKISSON. By far, by far. And I couldn’t have had the confidence to report that. I did have on-camera sources that do that 

sort of thing that did confirm it, but I couldn’t have reported that 

story. And that was a major story. Ultimately I believe that was 

part of the criminal fraud conviction against BP was then misleading the public on the size of the spill and the flow. 

Mr. RASKIN. Thank you. I yield back, Mr. Chairman. 

Mr. JORDAN. I thank the gentleman. The gentleman from North 

Carolina, Mr. Meadows is recognized. 

Mr. MEADOWS. Thank you, Mr. Chairman. And I want to thank 

both of you for working in a bipartisan way on this particular piece 

of legislation. And my recommendation is is that we get together 

in a bipartisan way and use a little leverage to make sure that it 

gets a vote on the floor of the House. And so I’m sure there are 

a few critical pieces of legislation. If you Mr. Jordan and you Mr. 

Raskin are willing to join forces, I think we can probably—— 

Mr. JORDAN. I’m always willing to join forces with the gentleman 

from North Carolina. 

Mr. MEADOWS. I thank the gentleman. 

Ms. Attkisson, let me come to you because I’m troubled. What 

you’re saying is the FBI or DOJ or some entity actually surveilled 

your computer records and phone records, but specifically your 

computer records, and you had that forensically looked into and 

they with a high degree of confidence suggested there had been intrusion. Is that correct? 


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Ms. ATTKISSON. Yes, sir. There is no doubt about that from what 

the forensics people say who know a lot more about this than I do 

and have worked in the intelligence agencies in some in some 

cases. There is an actual fingerprint on the software that is used 

for this that they recognize themselves or that can be recognized. 

It is very unique, it is a government proprietary software. 

And not only that, they didn’t just look at my computer records, 

according to forensics, they planted three classified documents in 

my computer, they had a keystroke monitoring program in there. 

They used Skype which was on my computer to secretly activate 

it to exfiltrate files and listen in on audio. People probably don’t 

know that Skype—actually, I didn’t know Skype could be used for 

that. So there are a lt of techniques they use and that they can use 

and access remotely to do this sort of thing. 

And I don’t believe I was unique in terms of the only journalist 

this happened to. I was just one who found out about it because 

I had Intel sources. 

Mr. MEADOWS. So how has that affected your reporting since that 

time. Since you found that out do you take different precautions? 

Do you not report on certain things? How has that affected you? 

Ms. ATTKISSON. It’s definitely affected some of the stories I get. 

I can tell you I’ve had a Senator who wouldn’t answer is direct 

question to me on the phone after that and I was asking him why 

and he said, Sharyl, your phone is bugged. You know, people once 

they’ve heard that, they are less likely to talk to me about sensitive 

topics, as well as sources inside government corporations. 

A lot of people still will talk surprisingly because they assume 

that they are being monitored anyway, if they are sort of a government insider. It has made a difference. And I do tell people cause 

I ask the question can I protect their identity or would it ever be 

necessary to be revealed. And when I tell them I would protect it 

as best that I could, but that I may have to if sued by an entity 

or charged with something. And it has definitely chased away at 

least several stories and sources that I know of. 

Mr. MEADOWS. So you mentioned a lawsuit earlier and you said 

with the unlimited budget of the Federal Government, they continue to I guess obstruct any settlement on this particular issue. 

Can you share with this committee—here’s my concern, a free 

press that has been articulated so eloquently by some on the minority side of this aisle is shared by both the majority and minority 

and it should be. 

And yet, if you’re trying to fight back and there is no accountability with regards to what was done to you, we’ve got an issue. 

And we should have an issue in a bipartisan way to say at that 

particular point you were working for CBS, so they are not normally associated with perhaps the broad brush that’s painted for 

MSNBC or Fox or any—they are seen as a down-the-road mainstream media network. So why—tell me about your lawsuit and 

where you are with that, if you can. 

Ms. ATTKISSON. The lawsuit’s been going on over 3 years. And I 

have a wonderful attorney who’s been helping me tirelessly. If I 

were him I would be tired by now, because the Department of Justice under Trump has been no different than the Department of 

Justice under Obama for this purpose. And instead of trying to find 


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out after looking at our forensics which are undeniable who might 

have been responsible for this, they simply litigate and try to get 

the case dismissed and protect us—protect themselves from having 

discovery. 

And suddenly maybe 5, 6 weeks ago after 3 years of us surviving 

things like sovereign immunity, the judge dismissed the case, 

which we have now appealed to the fourth circuit and my attorney 

hopes to take it to the Supreme Court. Not that we will necessarily 

win because as he said, the facts are on our side but the law is not. 

Government officials are well protected for duties that they commit 

as government workers. 

I would argue that when it comes to constitutional violations of 

the press and the public that that falls outside of what should be 

protected, but it’s up to the courts to decide. And I might mention, 

a case that was not—had anything to do with me in 2017, but impacted my case, the finding as legal analyst examined it said that 

Congress needed to pass a law to make government officials beholden or responsible for actions like what they did to me, that it 

was a law that was needed. I don’t know how something like that 

becomes generated and I’m doubtful that that can get going just 

from knowing how things work. 

Mr. MEADOWS. I thank you. I yield back, Mr. Chairman. 

Mr. JORDAN. I Thank the gentleman. The gentleman from Illinois 

is recognized for 5 minutes. 

Mr. KRISHNAMOORTHI. Thank you, Mr. Chairman. 

You know we can’t hold a hearing about the importance of the 

freedom of the press without acknowledging what the Trump administration is doing with regard to the fourth estate. They have 

been highly critical of journalists. Just as an example, President 

Trump has singled out, mocked, and vilified reporters covering his 

campaign and his administration. He threatened to cancel the 

broadcast licenses of news organizations. He has labeled any unfavorable coverage, of which there is no shortage, fake news. 

He has called journalists, quote, and this is a direct quote, the 

enemy of the people. He even Tweeted a video clip of himself tackling and individual with a super imposed CNN on to the ground. 

Now some people might dismiss these as jokes or empty gestures, 

but I want to hear your opinion on what this has done, if anything, 

to journalists and their ability to cover the news or to report from 

confidential sources and so forth. 

Mr. Blum, your organization represents the legal interest of journalists. How has President Trump’s attitude towards the press effected journalists able to cover his administration? 

Mr. BLUM. You know, I would say, you know, journalists have 

thick skin. I don’t know what they are doing in journalism schools, 

but journalists are ready to be criticized for their stories. And much 

of what this President does is no different from what other Presidents have done in terms of wanting to shape a story, wanting to 

get better coverage in the future. But a lot of what this President 

does goes well beyond that. And it’s a lot harder for a journalist 

in a local community to go write a story if their audience or the 

people they want to talk to about the story don’t believe that they 

are going to get a fair shake in the story. 


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And I think the biggest concern that we have is that the public 

is going to have a much harder time knowing what’s accurate and 

what’s not and what’s true and happening with current events in 

their communities and what’s not. And I think that rises above 

partisanship and I think that this bill is a way to strengthen the 

ability of journalists to tell important stories and it is critical that 

we do more to protect journalists and protect the flow of information to the public. 

Mr. KRISHNAMOORTHI. What did you mean when you say he’s 

gone beyond, what other Presidents have done? Can you elaborate 

on that? 

Mr. BLUM. Sure. I think it is a very strong contrast between 

Presidents who will traditionally remind the public and remind 

ourselves about the vital role that our press plays, about the constitutional securities, that or the places that the Constitution has 

for free press. This President does not do that and tries at every 

turn to remind the public or to tell the public not to believe things 

like that. And I don’t think that that’s just a game and I don’t 

think it just has short-term benefits. I think it could be over the 

long-term of great concern. 

Mr. KRISHNAMOORTHI. It has been reported to us that some folks 

feel that they have been physically assaulted in part because of a 

culture that’s developed against the press. Can you talk a little bit 

about that? 

Mr. BLUM. Sure. Our organization works with a couple of other 

organizations including the committee to protect journalists and a 

few others to track press freedom. And one of the things they look 

at is physical assaults. And the most dangerous place that they 

found for a reporter is at a protest. That’s the place where physical 

assaults happen. And so obviously, there’s things that we advise 

our reporters to do to take care, to work together, to know where 

you are to protect oneself. 

But it’s a very big concern when journalists are out there doing 

their jobs reporting in the field and they may be subject to some 

kind of physical attack. We don’t know whether the rhetoric has 

anything to do with any particular event, but it sure doesn’t help. 

Mr. KRISHNAMOORTHI. And how does this have an impact, if at 

all, on how governments in other countries treat journalists? 

Mr. BLUM. I think it is very clear that other countries who are 

looking to the United States for leadership in our principles and 

pur visions that we have traditionally espoused and that we hold 

dear. Other countries that may be—dictators in other places may 

be more emboldened to crack down on their own press and to crack 

down on their own citizenry. And I think that that is very real danger that we have. 

We hosted a number of journalists throughout the Americas to 

come to the United States because they were concerned with press 

freedoms in the United States, it was the first time that the Inter 

American Press Association came to the United States. They have 

visited other countries where press freedom is endangered. And I 

think in their—for them to witness and talk with some of the folks 

on Capitol Hill and elsewhere, journalists, they are concerned, they 

are concerned about the impact back home. 

Mr. KRISHNAMOORTHI. Thank you. 


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Mr. JORDAN. Mr. Blum, do journalists ever get it wrong? 

Mr. BLUM. Sure. And they like to correct the record. 

Mr. JORDAN. Do journalists have a bias? 

Mr. BLUM. In the general sense I would say the bias is for the 

truth. 

Mr. JORDAN. Well, that’s accurate too. But there’s been all kinds 

of examinations, all kinds of studies, all kinds of surveys, all kinds 

of polling which indicate that they have a bias. And so what I’m 

asking is if journalists get it wrong and they have a bias, is it— 

should journalists be immune when they get wrong from any type 

of criticism? 

Mr. BLUM. Absolutely not, certainly not. 

Mr. JORDAN. I just wanted to be clear because this shield law is 

about protecting journalist sources. It is not about protecting journalists who get it wrong and maybe display a bias, from criticism 

that may in fact be appropriate. Is that accurate? 

Mr. BLUM. I would 100 percent agree with that, journalists are 

open to being criticized for getting things wrong, for getting things 

wrong in stories. If it’s inaccurate, they should correct it and the 

industry is very committed to that kind of accountability, and this 

goes beyond that. 

Mr. JORDAN. That’s important. 

All right. The gentleman from Wisconsin is recognized. 

Mr. GROTHMAN. Thank you. That wasn’t exactly on point, but I’ll 

just make a point for you. 

I love journalists. Always feel I have a good relationship with 

journalists in Wisconsin. I think I still do. 

Our country right now is, of course, divided, as it usually is. You 

know, about one-half of the people voting for the Republican candidate, about one-half the Democrat candidate every 2 years. 

And one would think given that, if you cover the average newsroom or the faculty of the average journalism school, you got about 

the same in the last election, about one-half voting for Donald 

Trump and one-half voting for Hillary Clinton. 

Insofar as the total number of journalism professors, say, 

wavered from that 50/50 rule, I think you’re going to get distrust 

in the media. And that’s unfortunate. I don’t know why it shouldn’t 

be 50/50. But, you know, it’s something for you to think about. It’s 

obviously not the purpose of the topic here today. But I think 

there’s a general public perception that something less than 50 percent of the journalism professors in our schools voted for Donald 

Trump last year. 

And I’ll give you some question. If it is,you know, you can say 

it’s a problem or not, but I’d argue, you know, it shouldn’t wonder 

from that 50/50 divide that much. 

A couple questions for you. I’m going to focus here a little bit 

about university newspapers, because sometimes they break a surprising number of important stories. 

Do State shield laws afford student journalists the same protections as traditional journalists? For anyone of the three of you. 

Mr. LEVINE. It varies depending on the State and the definition 

of who’s covered under the particular statute. Some States define 

who a journalist is by reference to whether they get a paycheck and 


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whether it’s a full-time job, or something like that, and others are 

more general. So it would vary from State to State. 

Mr. GROTHMAN. Do you think it should matter? 

Mr. LEVINE. My own view is that, especially college journalists 

are entitled to the full protections of what I understand the First 

Amendment to mean, which includes a protection for confidential 

sources. 

Mr. GROTHMAN. Okay. Next question. Let me give you three different students, and you can tell me whether they should be treated differently under the law. 

You have one student who is writing for his local student newspaper. You have another student who is maybe interning or somehow writing for a national news organization. And another student 

forms his own newspaper, kind of a, you know, opinion blog or a 

print page. 

Do you think those three students should be treated differently 

at all? 

Mr. LEVINE. I do not think they should be treated differently. 

Mr. GROTHMAN. Ms. Attkisson. 

Ms. ATTKISSON. I’m sorry, sir. I don’t have an opinion. I haven’t 

looked into that or—I can’t give a thoughtful opinion about that. 

Mr. GROTHMAN. Mr. Blum. 

Mr. BLUM. I agree with Mr. Levine. They should not be treated 

differently. 

Mr. GROTHMAN. Okay. Well, we’ll give you a—following up on 

that. Let’s say I’m writing for a student newspaper, and I write a 

story on Greek life. And in that story I talk—give an anonymous 

source saying that such-and-such incident of hazing happened or 

such-and-such drinking under age 21 happened, and that I’ve been 

told this by members of a fraternity or sorority. 

Should that student be protected if they try to reveal his source 

for these things? 

Mr. LEVINE. I hate to ask you for more details, but—— 

Mr. GROTHMAN. Okay. 

Mr. LEVINE. For what kind of lawsuit are they being subpoenaed? 

Mr. GROTHMAN. One of the newspapers say—I went to the University of Wisconsin in Madison. The Badger Herald was the newspaper. If they write an article saying pro or con on Greek life, and 

say I was talking to a prominent member of the Greek community 

last weekend who told me about drinking at a football game, or 

told me about hazing, both of which could be illegal, should that 

journalist be forced to reveal his sources for these stories. 

Mr. LEVINE. It’s hard for me to envision a lawsuit in which a 

subpoena would be issued for that testimony. But if there was, it’s 

also hard for me to conceive of a situation in which there wouldn’t 

be ample alternative sources for the kind of information that the 

person—— 

Mr. GROTHMAN. Right. Well, let’s say the university itself brings 

in the reporter and says, Hey, we thought there was no hazing 

going on at these frats. You said there is. Tell us, what do you 

know. 

Do you think they should be able to compel them to give that information or not? 


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Mr. LEVINE. Under those circumstances, no, largely because 

there would be ample alternative sources for the university to go 

to and investigate on its own whether or not there’s hazing at fraternities. 

Mr. GROTHMAN. And once we get done making these journalism 

schools have, say, at least 30/70 ratios, people voted for Trump and 

Hillary, should the journalism students be educated on their protections under the shield laws? 

Mr. LEVINE. Absolutely. I think most journalism schools in this 

country do have media law courses where journalists do learn 

about their legal rights and responsibilities. 

Mr. GROTHMAN. Thank you very much. 

Mr. JORDAN. I thank the gentleman. 

Mr. Levine, earlier you were asked about the qualified privilege. 

Do you think we’ve got it right in this bill, hit the right balance 

on protecting this fundamental liberty and yet have the exceptions 

that may be needed in case of national security or terrorist threat 

or that sort of thing? 

Mr. LEVINE. I do. And I commend the committee. I mean, this 

obviously was the same bill that was introduced back in 2007, but 

I thought it had it right then, and I think it has it right now. 

Mr. JORDAN. And would our other two witnesses? Ms. Attkisson 

and Mr. Blum, would you agree we’ve hit it pretty good. 

Ms. ATTKISSON. I would defer to the opinions of the experts who 

can read bills and make more legal sense of them and so on—— 

Mr. JORDAN. Would you agree, Mr. Blum? 

Mr. BLUM. I would. It’s a very strong bill. 

Mr. JORDAN. Let me ask you where the previous gentleman was 

from Wisconsin talking about college campuses. We’ve had a hearing here on some of the shenanigans going on on college campuses. 

And I pose the question to one of the professors there. This is more 

in a broader, just First Amendment Free speech rights. I asked the 

question: Are you familiar with the safe spaces and free speech 

zones, some of these things going on on college campuses? 

Mr. Levine, are you familiar with all of this? 

Mr. LEVINE. Yes. 

Mr. JORDAN. So I just asked the question, can a safe and a free 

speech zone be in the same location? 

Mr. LEVINE. I think that’s an enigma wrapped in conundrum, or 

something like that. 

Mr. JORDAN. But isn’t that sort of the point? 

Mr. LEVINE. Yes. Absolutely. 

Mr. JORDAN. Yeah. And you—I think you would agree that, yes, 

they should be, could be, and are supposed to be under the First 

Amendment; is that right? 

Mr. LEVINE. Absolutely. 

Mr. JORDAN. Yeah. 

And, Ms. Attkisson, you would agree with that as well? 

Ms. ATTKISSON. Yes, sir. 

Mr. JORDAN. And Mr. Blum? 

Mr. BLUM. That’s an easy one. Yes. 

Mr. JORDAN. Yeah. Because, I mean, I remember asking. 

And should you be able to say things on—I asked—literally 

asked one professor this. Professor Raskin, I think you might reVerDate Nov 24 2008 16:10 Nov 02, 2018 Jkt 000000 PO 00000 Frm 00055 Fmt 6633 Sfmt 6633 H:\31424.TXT APRIL

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member this. Asked a professor: In a safe space on a college campus, could you make this statement, Donald Trump is President. 

And do you know what the guy said? He started his answer by saying, It depends. 

Think about that. That is scary. So this is why we are so focused 

on this First Amendment, not just the shield law for the press. But, 

I mean, this is—when the government comes after you—I’m going 

to ask Ms. Attkisson to tell more of the details of her story, because 

I want to know, frankly, how you found out, what made you first 

suspect that the government was spying on you. I think that’s a 

pretty important question as well. But I’ve got a host of things, and 

I’m going to let Mr. Raskin kind of finish up here. 

But, Ms. Attkisson, let’s go to that question, because this scares 

me. Literally, this is why we’ve done so many hearings. When pastors in the pulpit are saying you got to be careful what you say, 

it’ll jeopardize your tax exempt status. When students are saying 

on campus, You can’t say certain things that are fact, like who the 

President of the United States is, you can’t say that in certain safe 

spaces on campus. And now when we find out maybe—or not 

maybe, but we find out a journalist was being spied on, this is 

scary stuff. 

So, Ms. Attkisson, tell me how you first figured out the government was watching you. 

Ms. ATTKISSON. Well, sir, I never suspected that because it 

sounds so wildly crazy. 

Mr. JORDAN. No. It sounds crazy for me to even say it here, 

but—— 

Ms. ATTKISSON. And this was before Edward Snowden, and Associated Press, and James Risen, and Jim Rosen. So it sounded even 

stranger. But I was actually approached by two different people 

who I don’t think know each other in the intelligence community 

who flagged me that they thought I might be surveilled because of 

practices that they saw or became aware of in the intelligence 

agency they used to be, they said, strictly forbidden or controlled 

that were now being done more liberally. 

Mr. JORDAN. So you had a confidential inside source come to you 

and say—— 

Ms. ATTKISSON. Yes, sir. 

Mr. JORDAN. —we think this is going on. And not just going on 

in general but going on with you personally. 

Ms. ATTKISSON. Yes, sir. 

Mr. JORDAN. Okay. 

Ms. ATTKISSON. And then through—with help of another confidential source and a former FBI unit chief who helped connect 

me, we were able to get the first forensics exam. And they were literally blown away, according to them, when they saw this evidence, 

that they were so shocked, because there was a time when this 

would never have been done, they said. 

Mr. JORDAN. I want to be clear. The people who did the forensic 

exam were people—background in government who know what 

they’re looking for; is that right? 

Ms. ATTKISSON. We’ve had many forensic exams, but that first 

one, I can’t say who it is, and you can’t make me. 

Mr. JORDAN. I understand. We wouldn’t want to make you. 


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Ms. ATTKISSON. But it’s a government-connected person who 

knows exactly what government surveillance software does and 

looks like. The proprietary software and flagged it and identified it 

with very—— 

Mr. JORDAN. So not to sound too Black Helicopter here, but was 

this software installed on your computer remotely, or do you think 

someone actually broke into your home or your office or both? 

Ms. ATTKISSON. This went on for a long time, but we were able 

to forensically look at instances of remote intrusions. We have 

dates, times, and seconds, and methods. For example, they used 

something called a BGAN satellite terminal, one time at least. 

They also used a hotmail email account, a friendly email, attached 

something to it that downloaded in the background when I clicked 

on something that day. 

Mr. JORDAN. You’ve presented all this material to a court, and 

they’ve dismissed the case? 

Ms. ATTKISSON. We never got so far as to present all of it. We 

presented some overviews. And it was considered, at the time, 

plausible. And we survived many motions to dismiss along the way. 

But after we added a telephone company to the lawsuit a few— 

couple months back, there was new considerations and the case 

was dismissed. 

Mr. JORDAN. Okay. I’ve got a few more things but okay. 

Ms. ATTKISSON. Yes sir. But I would say anybody who wants to 

look at some of these forensics, especially at the Department of 

Justice, for the sake of trying to find who did it or identify for their 

own purposes, because I think they should be concerned, and I 

don’t think I was the only one, I think they really ought to be on 

that, personally. 

Mr. JORDAN. Yeah. Well, we’re trying to get all kind of information from the Department of Justice, and we find it extremely difficult. 

Let me ask you about the—one of the catalysts for this hearing. 

And I think for Mr. Raskin and I, he and I have been working on 

this legislation. This is Ali Watkins, the reporter for the New York 

Times and what happened to her. 

So, Mr. Levine, can you tell me—give me your thoughts on that 

situation, just in a general sense. 

Mr. LEVINE. Well, as I said in my testimony, Mr. Chairman, I do 

not know whether the Justice Department followed its own guidelines when it procured her records. It doesn’t seem to me, from 

what I’ve read in the press, that it’s likely that they did. I could 

be wrong about that. But if they didn’t, that’s a serious concern, 

because they have guidelines that they’re supposed to be following. 

If they did follow them, I have a hard time understanding, given 

what I know has been reported in the popular press about the nature of the investigation that led to the indictment that is now a 

criminal prosecution, that the guidelines were complied with substantively. That is that there was enough of a substantive case that 

could have been made to authorize the seizure of her records. 

But I’m hesitant to really opine on that, because I don’t know the 

facts. 

Mr. JORDAN. No. I understand. 

Mr. Blum. 


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Mr. BLUM. I think for us the reporters organization also, you 

know, looking at what they did. We are concerned, you know, the 

media organizations were concerned about the breadth of information that was taken, the delayed notice to her. And those are the 

kinds of things that, overtime, we’re going to want to understand. 

How did the guidelines apply and were they applied fairly. 

And we have worked on other cases, on other issues, to unseal 

court records of how leak investigations work so that we have a 

better public record—the public has a better understanding of how 

this works. And that’s what we’ll be doing in this case as well. And 

that’s what we’re—we’re involved in the news media dialogue 

working with the Justice Department on that. And through that 

we’re hoping that, overtime, we’ll have a better understanding of 

whether the guidelines were really followed or not. 

Mr. JORDAN. Yeah. Thank you. 

Let me just finish with one last question. In her opening statement, Ms. Attkisson used the word chilling. The chilling impact 

that not having a shield law and some of the other things that we 

have witnessed in the last few years in this country relative to the 

First Amendment, what that has for a free society for our—I would 

argue for our country. 

So talk to me a little bit about what you’re seeing in the broader 

context, because I think the term Ms. Attkisson uses is right on 

target. I do feel there’s a chilling impact. I think Ms. Attkisson 

even referenced in one of her answers, she was talking to—I believe you said a Member of Congress who said I don’t want to answer that question, Sharyl, because your phone’s bugged. 

If that’s actually going on, that is as chilling as it gets. So fill 

me in on that, and then I’ll yield the balance of the committee’s 

time to the gentleman from Maryland. 

Mr. LEVINE. Let’s just go down the line. 

Mr. LEVINE. A lot of it is documented in my written testimony, 

but there have been multiple examples of journalists who have 

gone on the record and said not only that I couldn’t have reported 

on this story if I couldn’t rely on confidential sources but also that 

I didn’t report on this story because people were afraid to come forward. 

There’s a particular example that I cite in my written testimony 

about a story in the Cleveland Plain Dealer—or that would have 

been in the Cleveland Plain Dealer. But the editor spiked the story 

because he was afraid that he wouldn’t be able to protect the identities of the confidential sources. 

Mr. JORDAN. All right. Ms. Attkisson. 

Ms. ATTKISSON. I would say that I find myself more concerned 

not about whether the Justice Department followed the letter of its 

own guidelines. But the stuff that they’re doing, to say cynically, 

that fall outside all guidelines and scrutiny at all. The secret stuff 

that they may be doing or politicizing in tell tools. And I don’t 

blame an administration for this. I blame what I’ve come to call 

myself the persistent bureaucracy, because I think this happens 

under the administrations that I have covered in 24 years, and it 

seems to tighten up a little more with each one. 

I also would put part of the blame in the lap of the media. We 

haven’t done a good job at making—clawing back our own rights 


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when they’re taken from and us. And I have some experience with 

that. I don’t need to go into detail in my job where we have been 

challenged but maybe not been as aggressive as we could have or 

should have at fighting that, partly because we’re just too busy covering the news to devote a lot of bandwidth and resources to making sure we retain our rights. 

Mr. JORDAN. Well said. I mean, what—Lois Lerner wasn’t the 

person running the IRS. She wasn’t confirmed by the Senate. Doug 

Shulman was the guy running it. He’s not the one who orchestrated the targeting that took place of innocent conservative groups 

across this country. 

So you’re exactly right. Persistent bureaucracy I think is a good 

way to phrase it. She was at that near high level, but she was in 

the bureaucracy. Not the one who faces—not the one who comes in 

front of the committee until we found out what she was doing. So 

I’m very concerned about that. And as you well say, the things that 

have happened that we’re in the midst of, and I know Mr. Raskin 

and I would have some disagreement on, but things that happened 

at the FISA court. This is the scary stuff, and we got to get to the 

bottom of all this as we’re looking at First Amendment liberties. 

Mr. Blum, you get the last word—— 

Mr. BLUM. Say briefly. 

You know, journalists and media outlets around the country are 

facing enormous and economic pressures. And so if you can challenge and try to threaten and undermine that economic stability of 

the local news outlet with—just by dragging someone into court 

trying to get a subpoena for their information or suing them for 

libel when you know you don’t have a case, that’s troubling. And 

that provides it. 

So the lack of those kind of legal protections like we’re talking 

about today, really undermining the ability of the press to report 

freely and without concern. 

Mr. JORDAN. I’ve taken a lot of time here, so I’ll let Mr. Raskin 

ask a few more questions, if the gentleman has some 

Mr. RASKIN. Thank you, Mr. Chairman. Thank you. You posed 

an interesting question of whether or not a free speech zone can 

be a safe space at the same time. And I got to thinking about it, 

and I suppose my answer is, yes, because, under the First Amendment, the whole country’s a free speech zone. 

Mr. JORDAN. Exactly. Exactly. 

Mr. RASKIN. And it is a safe space in the sense that it’s safe for 

Democratic discussion and dialogue. 

You know, the First Amendment doesn’t guarantee that nobody’s 

feelings are ever going to be hurt or that people aren’t going to be 

offended or disagree by other people’s thoughts. I remember reading about the great comedian Lenny Bruce who kept getting arrested for his comedy, which was very risque at the time. And he 

used words some people didn’t like and so on. 

But somebody said to him—he said he had a right of free speech. 

Someone said, Well, not if your speech is offensive. And he said, 

My parents came to America in order to be offensive and not get 

thrown into jail for it. 

And, of course, everybody gets offended by something different. 

I tell my students that free speech is like an apple, and everybody 


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wants to take just one bite out of it. You know, somebody doesn’t 

like left wing speech, and somebody doesn’t like right wing speech, 

and somebody doesn’t like pro-monarchical speech and somebody 

doesn’t like anti-monarchical speech and racist speech and sexist 

speech and obscene speech and pornographic speech, and so on. 

And You take all these bites and pretty soon there’s nothing left 

of it because everybody’s been able to get rid of the thing that they 

like the least. 

And so the true test of the First Amendment, of course, is if 

we’re willing to stand up for even the speech that we abhor, even 

the speech that we hate. 

Well, 49 States—all the States except for Wyoming, and I don’t 

know that the issue’s come up in Wyoming. But 49 States have 

passed press shield laws, exactly the kind that Chairman Jordan 

and I are introducing now, or they’ve simply adopted the privilege 

as a matter of judicial interpretation. 

Would you guys agree that that’s a pretty fair statement of the 

sentiments of the American people about this? Would you agree 

that the people recognize the critical role that the press plays, not 

for the press themselves. People might love or hate particular 

media outlets. But the critical role that the press plays for Democracy. Would you agree that that is a pretty fair statement of where 

the public would be on our legislation? 

Mr. Blum. 

Mr. BLUM. Yes. 

Ms. ATTKISSON. It would seem so, sir. 

Mr. RASKIN. Yeah. 

Mr. Levine. 

Mr. LEVINE. Absolutely. I think that—when I was back here in 

2007, the vice president said that this isn’t a pro press bill. It’s a 

good government bill. And that’s really what we’re talking about. 

Mr. RASKIN. Yeah. 

I want to close just by invoking the terrible incident that just 

took place in Annapolis, Maryland, where five staffers of a famed 

local newspaper were killed by an assailant. And the community 

rallied passionately to the support of the newspaper and the families of the slain. And I think that the whole State has stood up very 

strongly for the rights of journalists and for people who do the 

often unsung work that local journalists do. 

But they really create and continue a sense of community in so 

many of our small towns and small cities across the country. They 

don’t make a lot of money. People get mad at them. People send 

them hate mail and so on. But, really, they are the lifeblood of 

American political culture. 

And so I hope that the three of you speak for journalists and 

media employees across the country in being very vigorous, in 

standing up for your rights. You know, people love to kick around 

the press at different points. But when you really stand back and 

think about it, we would not have much of a democracy without the 

work that you reporters do, so I want to thank you all of you. 

And I yield back, Mr. Chairman. 

Mr. JORDAN. Thank you. 


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We’re set to close, but I’ll be happy to give a minute or two to 

the gentleman from Alabama if he has some closing thoughts or a 

question. 

Mr. PALMER. Mr. Chairman, I’ve never gotten a complaint about 

a short hearing, so I yield back. 

Mr. JORDAN. We want to again thank you all very much. You 

were all tremendous. And great opening testimony and good responses to the questions from the members. And we’re going to 

keep working see if we can actually get this passed. 

Thank you all. 

We’re adjourned. 

[Whereupon, at 4:05 p.m., the subcommittees were adjourned.] 

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