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June 14, 2007

House Judiciary Committee Considers Federal Reporter's Privilege

The House Committee on the Judiciary held a hearing today H.R. 2102, the "Free Flow of Information Act of 2007."  The act generally would codify a reporter's privilege for federal proceedings similar to that currently enjoyed by journalists in 49 states and the District of Columbia.  The transcript of the hearing is not available though statements from four of the five witnesses are on the Committee's web site.  The government opposes the legislation. 

The Justice Department statement notes that the current procedures for compelling a reporter to disclose a confidential source require the personal approval of the Attorney General.  It also notes that aside from the codification of those principles at 28 C.F.R. §50.10, the Department seeks every alternative method to get the same evidence before it issues a subpoena.  In any event, the Department has invoked a subpoena power so infrequently that the legislation is unnecessary.  Beyond that, the legislation would also force the Department to seek judicial approval for a subpoena, shifting the review to judges, which it believes would be a mistake in national security cases.

The other major problem Justice has with the proposed Act is the broad definition of covered individuals.

§4(5) states:

JOURNALISM- The term `journalism' means the gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.

The Department states in reaction to this language:

Such a broad definition would accord the status of “covered person” to a terrorist operative who videotaped a message from a terrorist leader threatening attacks on Americans, because he would be engaged in recording news or information that concerns international events for dissemination to the public.

The bill's definition would include bloggers, giving them a formal journalistic status.

Contrast this with the statement by Lee Levine, a founding partner of Levine Sullivan Kock & Schulz, L.L.P.  Mr. Levine is a past chair of the ABA's Forum on Communications Law and has litigated several cases where litigants sought to compel disclosure of a reporter's confidential sources.  He sites multiple recent examples where the DOJ has sought confidential sources from reporters.  The most notable of these was Judith Miller, formerly of the New York Times, in the I. Lewis Libby case.  Multiple reporters were caught up in the Wen Ho Lee case according to Mr. Levine.

The story on the hearing in CNET suggests that proponents of the bill were unmoved by the DOJ.  The ultimate definitions will likely be revised before the legislation goes forward, but coverage suggest there would be tweaks, not wholesale revision.  Politics certainly comes into play here.  The Department insists the Executive has all the power here.  That position is consistent with the general position of the Bush administration on the role of the Executive.  At the same time, the diminished credibility of Attorney General Alberto Gonzales with Congress lessens the ability of the DOJ to get their way when commenting on legislation.  Though no one has said it at this point, the bill would likely be vetoed by the President barring it being attached a a piece of must sign legislation.

The Committee site for the hearing is here, where there are links to a video of the hearing (requires RealPlayer), and the statements of the witnesses. 

June 14, 2007 | Permalink


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