Mike Pence: "Freedom's Unfinished Work"

WASHINGTON DC -  U.S. Congressman Mike Pence gave the following speech on the floor of the U.S. House today in support of the Free Flow of Information Act, a bill he originally authored three years ago:

“Three years ago this month I read a newspaper editorial decrying a growing trend of cases where reporters were being subpoenaed and threatened with jail time to reveal confidential sources.

“The article also lamented how Republicans in Congress would never support such a statute, to shield reporters in those cases.  The next day I asked my congressional staff two questions.  First I asked, ‘What’s a federal media shield statute?’  And next I asked, ‘Tell me what I’ll never do.’  And it was in that moment of challenge and inquiry that the Free Flow of Information Act was born.

“Shortly thereafter I partnered with the gentleman from Virginia, Congressman Rick Boucher, the lead sponsor of this legislation today.  And the legislation that we will bring to the floor to the House of Representatives this afternoon is a direct result of a bipartisan partnership that has been a singular personal and professional pleasure for me.  It is indeed humbling for me to work with Mr. Boucher, Chairman Conyers and colleagues on both sides of the aisle, to truly put a stitch in what I believe is a tear in the fabric of the Bill of Rights.

“When the Free Flow of Information Act passed out of the Judiciary Committee on August 1, 2007, I was informed that in the past thirty-odd years approximately 100 federal media shield statutes had been introduced in Congress.  But the Free Flow of Information Act is the first of those to be passed out of the committee and it will be the first Federal Media Shield bill to ever be considered by the House.

“It is arguable in fact that the Free Flow of Information Act is the first legislation regarding the freedom of the press since the words, ‘Congress shall make no law…abridging the freedom of speech, or of the press’ were added to the Constitution.  As such and I say humbly, passage of this legislation today would be both momentous and historic.

“So what’s a conservative like me doing passing a bill that helps reporters?  I’ve been asked that question many times.  It would be Colonel Robert McCormick, the grandson of the founder of The Chicago Tribune who once said, ‘The newspaper is an institution developed by modern civilization to present the news of the day to furnish that check upon government which no constitution has ever been able to provide.’

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

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

“Today, the Congress has the opportunity to heed President Jefferson’s words and take this important step towards strengthening our First Amendment and a free and independent press.    

“Not long ago, a reporter’s assurance of confidentiality was unquestionable.  That assurance led to sources who provided information to journalists who brought forward news of great consequence to the nation, like Watergate, where government corruption and misdeeds were brought to light by the dogged persistence of Woodward and Bernstein.

“However, the press cannot currently make the same assurance of confidentiality to sources today, and we face a real danger that there may never be another Deep Throat.  In recent years, reporters like Judith Miller have been jailed, James Taricani placed on house arrest, Mark Fainaru-Wada and Lance Williams threatened with jail.

“Protections provided by the Free Flow of Information Act I submit are necessary so that members of the media can bring forward information to the public without fear of retribution or prosecution, and more importantly, so that sources will continue to come forward.

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

“Which is not to say the press is always without fault, as the Chairman of the Rules Committee said just moments ago, or always gets the story right.  In fact President James Madison wrote, ‘To the press alone, checkered as it is with abuses, the world is indebted for all the triumphs that have been gained by reason and humanity over error and oppression.’

“As a conservative, I believe that concentrations of power should be subject to great scrutiny.  Integrity in government is not a Democrat or Republican issue.  Corruption cannot be laid at the feet of one party.  But when scandal hits either party, any branch of government, or any institution our society is wounded.  

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

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

“The Free Flow of Information Act has been carefully drafted after reviewing internal Department of Justice guidelines, state shield laws and other input from many Members and other stakeholders and interested parties.  It puts forth a qualified privilege for journalists to protect sources that strikes the appropriate balance between the public’s need for information and the fair administration of justice.

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

“Testimony or documents can be forced if all other reasonable alternative sources have been exhausted, the testimony or document sought is critical to a criminal prosecution or a civil case, and a judge determines that the public interest in compelling disclosure outweighs the public interest in gathering or disseminating news or information.  The balancing test ensures that full and fair consideration will be given to both sides in the determination of whether a reporter must testify or turn over documents.

“In a situation where a reporter is being asked to reveal the identity of a confidential source, the bill provides several exceptions whereby the reporter can be compelled to reveal the source.  Sources can be revealed under exceptions for the prevention of terrorism and other harm to the nation’s security, to prevent death or bodily harm, and in cases where trade secrets, or personal health or financial information are improperly revealed.

“In addition, the Boucher-Pence Manager’s Amendment would compel that disclosure of a source be permitted in cases of unauthorized leaks of national security secrets.  Also, if a journalist is an eyewitness to a crime or tortious conduct, then the journalist cannot claim the privilege of the shield and can be required to turn over information, documents and records relating thereto.

“Finally, the manager’s amendment makes two changes to the definition of covered person.  Covered persons are those who are able to use the shield, and there has been much discussion throughout the life of this bill on who should be covered.  In the manager’s amendment, we restrict coverage to those people who regularly engage in journalism ‘for substantial financial gain’ or a substantial

part of their livelihood.  In this way, the definition will exclude those such as casual bloggers, criminal offenders or media wings of terrorist groups who are not practicing journalism.  The manager’s amendment adds further exclusions to the list of terrorist organizations which are excluded in order to supplement the language already there to make it one hundred percent clear that terrorists cannot claim the privilege of this bill.

“It is important to note what the bill does not do.  It does not give reporters a license to break the law in the name of gathering news.  It does not give them the right to interfere with police and prosecutors who are trying to prevent crimes.  It leaves laws on classified information unchanged.  It simply gives journalists certain rights and abilities to seek sources and report appropriate information without fear of intimidation or imprisonment, much as, in the public interest, we allow psychiatrists, clergy and social workers to maintain confidences.

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

“Lastly, let me say how humbling it is for me to have played a small role in moving this legislation forward.  From my youth, I’ve enjoyed a fascination with freedom and with the American Constitution.

“I learned early on that freedom’s work is never finished.  It falls on each generation of Americans to preserve, protect and defend our freedoms as those who have bequeathed it to us did in their time.

“The banner of The Indianapolis Star, the newspaper of record in my home state, quotes a verse from the Bible that reads, ‘Where the spirit of the Lord is, there is freedom.’

“As I opened my Bible this morning for devotions it was that verse that just happened to be in my daily readings.  It reminded me that when we do freedom’s work, like putting this stitch in a tear in the fabric of the Bill of Rights, His work has truly become our own.  I ask all of my colleagues in both parties to join us today in freedoms unfinished work, say ‘yes’ to a free and independent press, vote ‘yes’ on the Free Flow of Information Act.”

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