House Judiciary Committee Chairman Conyers Supports Federal Shield Law

June 14, 2007 -- House Judiciary Committee Chairman John Conyers, Jr. gave the following statement at the House Judiciary Committee Legislative Hearing on H.R. 2102, the Free Flow of Information Act of 2007:

Today’s hearing considers the import of one of our nation’s core liberties – freedom of the press, and the right of reporters to maintain confidential sources.

I am strongly supportive of the Boucher-Pence legislation and have given my input in its drafting. It has been said that the freedom of the press is the cornerstone of our democracy. Without it, we cannot have a well informed electorate and a government that truly represents the will of the people.

I believe this cornerstone freedom is under siege today. There are many causes of this attack on the press: an increasingly consolidated and corporate media, intimidation of the press by those in power, and the treatment of journalists as an investigative tool of the government.

I hope today’s hearing will help us address three critical issues concerning a possible shield law. First, why a shield law is necessary to help preserve a viable free press in our constitutional democracy. Second, why a shield law will not impede legitimate law enforcement efforts. And third, what the appropriate safeguards are to place in any shield legislation.

Our nation’s history is closely intertwined with freedom of the press. In my view, it is no understatement to say that this freedom is a foundational freedom for all of our nation’s other freedoms.

During the civil rights era of the 1950's and 1960's, it was the press that reported on blatant racism, the use of water guns and attack dogs to quell demonstrations, and the murders and lynchings that were prevalent in the Deep South and elsewhere. Thankfully, The New York Times had the courage and the resources to tell these stories, even in the face of the nuisance suits brought by Southern localities. It was only after the landmark ruling in New York Times v. Sullivan that other media outlets were willing to step forward to tell the truth without fear of financial ruin.

Critical to these and other stories has been the use of confidential sources. The Watergate story that saved our nation from the imperial presidency of Richard Nixon is attributable to a single confidential source – Deep Throat. The Pentagon Papers that exposed the hypocrisy of the Vietnam War were also released thanks to a confidential source. In the present era, such wide-ranging stories as Abu Ghraib and warrantless wiretapping were again only disclosed because of unnamed sources. Many believe none of these stories could have been broken if Woodward, Bernstein, and the other reporters were concerned they would be hauled into court to disclose their sources.

As important as freedom of the press is, I recognize that like other freedoms it is not absolute, and must be weighed against other societal interests.

We know that for many years, the courts respected a limited form of immunity for reporters, with Justice White writing in the Branzburg case, “[We] do not hold… that state and federal authorities are free to annex the news media as an investigative arm of the government.” We know that every State has some form or another of a shield law. The issue before us today is whether these circumstances served to prevent the enforcement of our laws against dangerous felons in any meaningful way. According to 34 State Attorneys General, there has been no problem with State shield laws.

Given that a shield law is necessary to help preserve our constitutional freedoms and will not prevent prosecutors from doing their jobs, the final question is what shape should the shield legislation take?

The legislation introduced by Mr. Boucher and Mr. Pence takes a careful approach. It provides a qualified privilege rather than an absolute immunity. It contains two important exceptions, where national security or death or bodily harm is at risk. It also requires that in other circumstances prosecutors exhaust their remedies before they go after reporters.

I for one believe the press has not adequately performed its job in recent years. I believe there is far too much consolidation in the media, and that the outlets which exist have been far too timid in exposing wrongdoing. But that doesn’t relieve the Congress of the need to do everything we can to make sure the media has the tools and resources they need to do their jobs and inform the public. Today we will learn more about how the Free Flow of Information Act might serve a constructive role in protecting these fundamental freedoms.

Source: House Judiciary Committee