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FOR IMMEDIATE RELEASE: September 17, 2009


Bill, Endorsed By 72 Media Organizations, Would Create a Legal Protection For Journalists Guarding Their Sources' Anonymity

WASHINGTON, DC – U.S. Senator Charles E. Schumer (D-NY) urged the Senate Judiciary Committee on Thursday to approve a revised version of the reporter shield bill authored by him and Senator Arlen Specter (D-PA), calling it a “balanced bill” that will guard journalists’ ability to protect their sources in many cases, while still compelling the disclosure of certain information that seriously impacts national security.
Schumer and Specter’s bill—which, in its previous form, earned committee approval by a 15-4 margin in 2007 but never advanced to the floor—is being considered by the panel this morning. The bipartisan proposal is co-sponsored by Judiciary Committee Chairman Patrick Leahy, as well as Senators Lindsey Graham (R-SC), Richard Lugar (R-IN) and Senator Amy Klobuchar (D-MN). It has also been endorsed by 42 state attorneys general and 72 media organizations, including The New York Times, the Washington Post, the Washington Times, the Associated Press, and Gannett Newspapers. 
A number of revisions to the bill were accepted unanimously by the committee last week, paving the way for the bill to be considered today.
A copy of Schumer’s statement, as prepared for delivery, appears below.
U.S. Senator Charles E. Schumer
Senate Judiciary Committee
September 17, 2009
Thank you Mr. Chairman, and Ranking Member Sessions. 
The Free Flow of Information Act is the result of many, many hours of extraordinarily hard work to make sure that, above all else, this is a balanced bill. 
This bill accommodates both the need for Americans to be safe, and the right of Americans to be free in a country with an unencumbered press.
Let me be clear:  This bill does not create an absolute privilege for members of the press to withhold information when they are faced with subpoenas.  Instead, it provides clarity so that reporters, sources, the government, and private litigants all understand the rules, and can play by the rules.
I think that Americans want us to protect their ability to learn about things like Abu Ghraib and the “Terrorist Surveillance Program” and the Pentagon Papers.  At the same time, I think that Americans want lawbreakers to be punished, leakers of classified information to be discovered and brought to justice, and our national security to be guarded jealously.
This bill takes all of these factors into account and lets judges ensure that neither newsgathering nor law enforcement is compromised in the balance. 
As in the previous bill that passed out of committee 15-4, a journalist must disclose information –no ifs, ands, buts, or balancing tests – in the following circumstances:
·         When a court determines that the information came from criminal conduct, or from observing criminal conduct
·         When the information is material to preventing, mitigating, or identifying an act of terrorism;
·         When the information is reasonably necessary to stop, prevent, or mitigate a specific case of death, kidnapping, or substantial bodily harm. 
But in all other instances, there’s a balancing test in which a judge weighs the government’s interest, or the private litigant’s interest, against the journalist’s right to report the news and the public’s right to hear it.  There are no absolutes on either side of the scale.
I want to assure my colleagues on both sides of the aisle that we are continuing to work hard with the Administration to make sure that the bill does, in fact, adequately protect law enforcement and national security needs.  
As last time around, the Free Flow of Information Act is a bipartisan bill that enjoys widespread support. It is cosponsored by Senator Specter, Senator Graham, and Senator Klobuchar of this committee, as well as Senator Lugar, who has worked hard on this issue for quite some time.  Chairman Leahy has also joined our substitute amendment.
Last week, I outlined the changes that have made this bill even better calibrated.  I will be very brief in reiterating them.
First, we have included all of the amendments that passed out of committee in 2007.
Second, we deleted the “person with authorized access” language so that, in a case involving a leak of classified information, the government doesn’t have to try to prove whether the leak was from an authorized person at the same time that the government is trying to figure out who that person is.
Third, we have expanded the exception to the reporters’ privilege when there is an act of terrorism or a threat to the national security. 
Fourth, we have tightened the definition of “covered person” in response to concerns that were expressed by Senator Durbin, Senator Feinstein, and others. 
We have tightened this definition again through an amendment that I will introduce with Senator Specter, in a moment. 
Fifth – and this is important because it provides procedures that are critical to law enforcement needs -- we have added two new sections.  We have added a section that allows the court to conduct review of protected material in camera, under seal, and on an expedited basis. We have also added a “Rules of Construction” section to clarify that FISA laws, grand jury laws, and defamation and libel laws are not affected by this bill.
Mr. Chairman, Texas recently became the 37th state to pass a shield law.  In total, 49 states plus the District of Columbia have laws that protect journalists and their sources.  We need to join the ranks of the states that have enacted balanced, workable laws that accommodate both law enforcement and freedom of the press. 
Seventy-two media organizations support this bill, including The New York Times, the Washington Post, the Washington Times, the Associated Press, and Gannett Newspapers.  In addition, the American Bar Association – which consists of thousands of prosecutors and defense counsel -- supports the bill.
I am very proud of the Free Flow of Information Act – again – and I ask the Committee to support it. 


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