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Defending free speech; A vital interest for all Americans
By Senator Charles Schumer
The Washington Times - 7/2/08

A free press is the lifeblood of our democracy. Without smart journalists willing to investigate tough stories, articles about abuse of power in government and corruption in business might go unreported and unaddressed.

But journalists are only as good as her sources. Recent high-profile cases of journalists being imprisoned or heavily fined for refusing to identify their confidential sources threaten our press.Worse, potential whistleblowers are thinking twice before telling journalists their stories.

Americans have a vital interest in protecting whistleblowers and the press. There is nearly universal recognition that journalists deserve protection for doing their jobs. Currently, 49 states and the District of Columbia recognize some form of protection for journalists. Nine out of the twelve federal circuits also recognize a qualified privilege for journalists, although not all agree what standard should be used.

The result is journalists hauled into a federal court may have fewer protections than if they were brought into a state court for the same reason. And the patchwork of state-level protections means that journalists reporting out of Chicago could wind up in federal prison when reporting on the same story in Los Angeles would have no legal repercussions.
The bipartisan Free Flow of Information Act currently before the Senate addresses these problems, creating a uniform, qualified protection for journalists in federal courts. That is why the act passed with overwhelming bipartisan support in the Senate Judiciary Committee, and a version of it passed the House by a landslide vote of 398-21. That is also why both presumptive presidential nominees - Barack Obama and John McCain - support this legislation, and why conservative Bush officials like former Solicitor General Theodore Olson have applauded the act's carefully calibrated approach. Just last week, 42 sitting state attorneys general added their support as well.

Several vocal critics of the act, however, have made doomsday statements about it. They fear that it will result in protections for criminals and threaten our national security. Nothing could be further from the truth. First, the act does not protect terrorists in fact, it has explicit exceptions for terrorists and spies. It also does not protect journalists when they are being investigated for having committed a crime.

[Editor's note: In our June 29 editions, we published two other high-profile voices on the Free Flow of Information Act.]

Despite statements to the contrary, the Free Flow of Information Act does not put federal prosecutors at a disadvantage. The act is based on internal Justice Department standards already in use. The only change for federal prosecutors is that instead of presenting their case to the attorney general, they now have to present it to a federal judge. This requirement is a necessary accountability measure to make sure discretion is not abused.

Additionally, the act does not protect information given freely to journalists without a promise of confidentiality. It does not apply when the information is necessary to stop an imminent terrorist attack, homicide, sexual abuse of a child or other similar harms. And it does not put journalists above the law - they still have to comply if a federal judge decides that their information outweighs the public need to protect the press.

To be clear, this is not a broad, sweeping, or absolute privilege. But the act does do something vital: It creates a uniform standard for federal courts to use when deciding whether a journalist has to testify about a confidential source. Simply, a court has to weigh the public's interest in the confidential information with the public interest in gathering news and protecting whistleblowers.
Even so, I have been working with the law's other authors to address some of the concerns raised, and so a streamlined version of the bill will make it easier, where appropriate, to investigate leaks of classified information and to ensure that no sensitive material is divulged in open court.

Prosecutors will no longer be able to have journalists thrown in jail for refusing to name their sources without having a court weigh the cost that it will have for a free press. Plaintiffs will not be able to have journalists jailed for contempt in a civil dispute without having a very compelling reason. Litigants will not be able to "forum shop" - that is, pick which court they file a case in based on its differing treatment of journalists.

Frivolous lawsuits and bad-faith "witch hunts" will be out. Legitimate crime investigations and lawsuits that cannot go forward without the information will be in.

Most importantly, whistleblowers will know that they have stronger protections and not have to worry about unrestrained plaintiffs and prosecutors coming after them.

And the sky will not fall. After all, the 49 states and the District of Columbia still exist, despite having similar (and in some cases, even broader) protections for journalists.

No one should be forced to go to jail in order to do what their job demands, especially not the journalists we rely on for reporting the news. The Free Flow of Information Act has been carefully crafted to ensure that we provide protection where protection is due, and that we do not overreach. It is an important issue with bipartisan support, and it should be passed this term.

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