Providing for consideration of the bill (H.R. 2102) to maintain the free flow of information to the public by providing conditions for the federally compelled disclosure of information by certain persons connected with the news media.

Mr. Speaker, I yield myself such time as I may consume.

First of all, I would like to say to my colleagues that beginning last night in the early evening and continuing and extending to this morning, a number of us have been in touch with each other about the provisions of this bill with the hope and expectation that we might be able to resolve our differences. I have been in touch with the White House. I have been in touch with the principal sponsors of the legislation; and I think we had engaged in some good-faith efforts to try to, as I say, resolve our differences.

Specifically, I had been hopeful that the other side would accept some of the provisions that had been in an amendment that I had hoped to offer today. Unfortunately, that amendment was not allowed by the Rules Committee. So Members of the House are not going to be able to vote on that amendment, which, in my judgment, would have improved the bill. There were a couple of provisions in that amendment, though, that I thought would be of interest to the sponsors of the bill and to the other side, and I regret that we were not able to come to a meeting of the minds, because I think that would have improved the bill and also yielded a better result when the bill perhaps becomes law.

Mr. Speaker, I also want to say to my colleagues that, if anything, I have a sympathy for the media, for the press. Long ago and far away, I was a newspaper reporter and spent 2 years writing articles, and so I have stood in the shoes of those who are reporters today. After being a reporter for a couple of years, I went to law school; and while in law school I actually wrote an article for the Texas Bar Journal called ``Politicians Versus the Press: Libel in Texas,'' and I actually came down on the side of the press. So that is where my sympathies lie.

However, in the case of this bill, I am afraid I cannot support it. And because we were not able to reach a compromise on the bill, I remain opposed to the bill, the White House remains opposed to the bill, the Director of National Intelligence remains opposed to the bill, and the Department of Justice remains opposed to the bill. Unfortunately, it is still so flawed that we cannot support it.

Mr. Speaker, a free press strengthens democracy. In our Nation the first amendment of the Constitution guarantees the press their freedom to report. And for 200 years in this Nation, the press, in fact, has flourished. Information has flowed freely. And that is why I believe this bill is simply a solution in search of a real problem.

Members of the private sector and law enforcement officials believe H.R. 2102 diminishes legal rights, public safety, and our national security. We must ensure that whistleblowers can expose crimes, waste, and wrongdoing. But we should not create a protection so broad that those who would destroy people's reputations, businesses, and privacy can hide behind it.

The Federal Government defends our national security; so we must weigh the benefits of a reporter's privilege with the problems it may cause for those who protect our country.

I thank the primary authors of H.R. 2102, Mr. Boucher and Mr. Pence, for working with the Department of Justice, interested groups, and Members to develop alternative language to address legitimate concerns of industry and law enforcement authorities. Despite efforts to accommodate their concerns, the Justice Department and the acting Director of National Intelligence, as I mentioned a while ago, still oppose this bill for very good reasons. The White House also opposes the bill and a veto is likely. The President's senior advisers, in fact, have recommended a veto of this bill. They believe the stakes are too high in a post-9/11 world to support the Free Flow of Information Act.

For example, they have pointed out that the exceptions language fails to address misconduct that the Justice Department confronts on a daily basis. To illustrate, neither the bill nor the manager's amendment that will be offered contains exceptions language allowing DOJ to obtain the identity of a new source with the knowledge of a child prostitution ring, an online purveyor of pornography, gang violence, or alien smuggling, all examples.

And the text governing source disclosure exceptions only addresses prospective events, not past events. For example, the Department may be able to acquire information about a source's identity to prevent a terrorist attack like September 11; but if al Qaeda decides to tell a media outlet on September 12 how it planned and carried out the attack, DOJ could not compel that media outlet to reveal its terrorist sources while conducting an investigation.

If a child molester spoke to a journalist and revealed that he molested a child yesterday, under this bill Justice officials could not compel that journalist to reveal his sources and cooperate in the investigation. The Department of Justice will be hamstrung as it goes about the business of conducting investigations and prosecuting criminals.

Yes, numerous States have shield laws, but they run the gamut; and many are not near as broad as the Federal shield law proposed today. But the key difference is that the States are not entrusted with the responsibility of defending our country; the Federal Government is. Under the bill, DOJ carries the burden of trying to establish a national security imperative which can still be negated by a judge's subjective notion of what constitutes the public interest in news gathering. The bill's terms will be subject to the different opinions of hundreds of Federal judges across the country.

The bill is simply a solution in search of a problem. It has been 35 years since the Supreme Court ruled that the first amendment does not shield journalists in grand jury proceedings. The Justice Department has issued only 19 subpoenas to reporters seeking confidential source information since 1991. Only 19 subpoenas since 1991. The system is not broken. So why are we trying to fix it?

I simply believe we must err on the side of caution and not support legislation that could make it harder to apprehend criminals and terrorists or to deter their activities.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, before I yield to a colleague, I want to yield myself 1 minute.

Mr. Speaker, what I want to do is read an excerpt from the Statement of Administration Policy that might respond to some of the points that have been made.

The administration said that if H.R. 2102 were presented to the President in its current form, his senior advisers would recommend that he veto the bill, and here's one of the reasons why:

``The bill would impose an unreasonable and unjustified evidentiary burden on prosecutors seeking to issue a subpoena to a member of the news media, placing authorities in an untenable position.

``In order to satisfy the bill's requirements, prosecutors essentially must prove the existence of specific criminal activity in a hearing before a judge, with notice to the subjects of the investigation, before they will be able to undertake the necessary investigative steps to determine whether a crime has occurred. Thus, in many cases, prosecutors will have to conduct a minitrial before their investigation has concluded, and in some cases, even before their investigation has gotten off the ground.''

Mr. Speaker, I am now happy to yield to the gentleman from Missouri, the minority whip (Mr. Blunt).

Mr. Speaker, I yield 3 minutes to the gentleman from Indiana, a distinguished member of the Judiciary Committee and one of the original sponsors of the legislation we are debating today.

(Mr. PENCE asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield 1 minute to my friend from North Carolina (Mr. Coble), a distinguished member of the Judiciary Committee and the ranking member of the Intellectual Property Subcommittee of the Judiciary Committee.

Mr. Speaker, I yield 1 minute to the gentleman from Florida (Mr. Keller), a diligent member of the Judiciary Committee.

Mr. Speaker, I yield myself 1 minute.

Mr. Speaker, I would like to read an excerpt from the Department of Justice's letter in opposition to the bill we are discussing: ``Given the extensive safeguards already in place, the Department strongly opposes H.R. 2102 and similar legislative efforts to provide a `journalist's privilege' that would prevent the disclosure of relevant testimony and evidence critical to the fair disposition of investigations and trials.

``H.R. 2102 would make it virtually impossible to enforce certain Federal criminal laws, particularly those pertaining to the unauthorized disclosure of classified information, and would seriously impede other national security investigations and prosecutions, including terrorism prosecutions.

``H.R. 2102 would undermine national security and other law enforcement investigations by permitting compelled disclosure of a media source only when necessary to prevent a terrorist attack against the United States and only when the bill's other burdensome prerequisites are satisfied.''

But the problem here is that it would not allow us to get to the information after the fact. You could not force a journalist to disclose information, for instance, after a terrorist attack when you want to find out who was involved

in that attack. For that reason, we should oppose the bill.

Mr. Speaker, I yield 1 minute to my friend and colleague from Texas (Mr. Poe).

Mr. Speaker, I yield 1 minute to my distinguished colleague from Oregon (Mr. Walden).

Mr. Speaker, may I ask how much time remains on each side.

Mr. Speaker, I yield myself 2 minutes.

Mr. Speaker, I would like to read for my colleagues an excerpt of a letter we received from the Office of the Director of National Intelligence:

``We are joining the Department of Justice in opposing H.R. 2102, the Free Flow of Information Act of 2007. We share the Department's strong opposition to H.R. 2102 articulated in its letter of July 31, 2007.

``The government must retain the ability to obtain information from the press that would both prevent harm to the United States and its citizens and to identify and bring to justice those who cause such harm. Unfortunately, press reports on U.S. intelligence activities have been a valuable source of intelligence to our adversaries. Former Russian military intelligence Colonel Stanislav Lunev wrote: `I was amazed, and Moscow was very appreciative, at how many times I found very sensitive information in American newspapers. In my view, Americans tend to care more about scooping their competition than about national security, which made my job easier.''

What an indictment.

Finally, and I am quoting from the letter: ``The bill, as drafted, would require that identification of the source be necessary to prevent an act of terrorism or other significant and specified harm to the national security. It would not, however, allow the government to compel the identification of a source if it was necessary to identify the perpetrators of a completed act of terrorism or an act that harmed the national security. Similarly, the bill could authorize the government to compel the identification of a source in order to prevent imminent death or bodily harm, but would not allow the government to compel disclosure of a source in order to identify a murderer.

``For these reasons and for the reasons set out in the letter from the Department of Justice, we urge the Congress to reject this bill.''

Mr. Speaker, that is a letter from the Office of the Director of National Intelligence.

Mr. Speaker, I yield 5 minutes to the gentleman from Iowa (Mr. King), who is the ranking member of the Immigration Subcommittee of the Judiciary Committee.

Mr. Speaker, I yield myself 2 minutes for the purpose of engaging in a colloquy with my friend from Indiana (Mr. Pence). I have a question I would like to ask him.

The bill states that the determination as to whether the testimony or document is critical to the underlying matter is to be made ``based on information obtained from a person other than the covered person,'' the covered person being the journalist. There has been some confusion as to what is meant by ``information from the covered person.''

In the Washington Post on October 4, Patrick Fitzgerald, who was the U.S. Attorney in the Scooter Libby case, wrote, ``The bill puzzlingly requires that agents prove that the leak occurred without relying on the newspaper article.''

Is Mr. Fitzgerald right? Does this provision mean that the party seeking the subpoena cannot use the very newspaper article at issue in the lawsuit to show why the reporter's testimony is needed?

I yield to the gentleman from Indiana.

I thank the gentleman from Indiana for his answer to my question. That is much appreciated.

Mr. Speaker, I am the last speaker on this side, and I know the chairman of the Judiciary Committee has the right to close. I wonder if he has any additional speakers.

Mr. Speaker, I yield myself the balance of my time.

Mr. Speaker, let me summarize the objections to this legislation. The White House, the Justice Department, the Acting Director of National Intelligence and many law enforcement officials oppose H.R. 2102 because they believe it diminishes legal rights, public safety and endangers national security. The Department of Justice is concerned that this legislation will impede its efforts to conduct investigations and prosecute criminals.

For 200 years, information has flowed freely to the press. Congress need not enact H.R. 2102, when the status quo is working and the legislation's potential harm to our national security is so significant.

Our Founders created a legal system where no one is above the law. But if the media shield bill passes, we will be carving out a special exception to that rule for reporters, tabloids and bloggers.

This is not what our Founders intended when they created a free press. No one should be above the law, not even the press. We must err on the side of caution and not support legislation that could make it harder to apprehend criminals and terrorists or deter their activities. I urge my colleagues to oppose this legislation.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, although I am not opposed to the amendment, I ask unanimous consent to control the time in opposition to the amendment.

Mr. Speaker, I yield 3 minutes to the gentleman from Indiana (Mr. Pence).

(Mr. PENCE asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield myself the balance of my time.

I support the manager's amendment offered by the gentleman from Virginia (Mr. Boucher). The provisions of the amendment do improve the bill by addressing some of the Justice Department's concerns. Despite this, it still does not cure the bill's fundamental flaws.

The legislation will still make it impossible to enforce certain criminal laws and will impede national security investigation. While I commend the sponsors of the amendment for trying to address the Justice Department's concern, even if the amendment is adopted, the bill should still be opposed. So I urge Members to support the amendment and oppose the underlying bill.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, I offer a motion to recommit.

I am opposed in its current form.

Mr. Speaker, H.R. 2102 presumes that a journalist is entitled to a reporter's privilege unless the government can show a court otherwise. The government can only do this by meeting certain threshold requirements set forth in the bill.

After all those requirements are met, the judge must then apply a balancing test. The judge must find that ``the public interest in compelling disclosure of the information or document involved outweighs the public interest in gathering or disseminating news or information.''

My motion to recommit provides further guidance to the judge as to what criteria should be considered in weighing that decision.

The motion to recommit simply states that the judge may consider the extent of any harm to national security. It does not dictate any result.

The manager's amendment partly addresses this issue by creating an additional exception to the privilege that excludes from the privilege leaks of classified information that harm national security in criminal cases. I agree with that idea as far as it goes.

This motion to recommit, though, goes further. It allows the judge to consider this factor in any case, not just a criminal case. It allows a judge to consider any leak that harms national security, not just a leak in violation of the laws on classified information.

There are many kinds of information that can harm national security. One example is grand jury information. Suppose that the government is conducting a grand jury investigation of a suspected terrorist ring. If a grand juror were to reveal that to a reporter, it might allow the terrorist to escape to strike another day.

Another example is information covered by various common law privileges like the attorney/client privilege. Suppose that an attorney knew his client, a former terrorist, was cooperating with authorities to avoid prosecution. If he revealed this to the press, it could reveal to the terrorist's former compatriots that they needed to change their plans.

Another example is confidential business information that is protected by contractual relationships. Employees of a computer company might know and reveal without authorization that a certain new chip is coming to the market in a matter of months. This might allow a foreign enemy to stop their research on that type of chip and devote their resources to some other project.

The problem is that any of these kinds of information could harm national security. If they do, a judge ought to be able to consider that in deciding what the public interest requires.

In short, I think we are going in the same direction, but the manager's amendment does not go far enough. The motion to recommit protects national security against harmful leaks in all cases, not just criminal cases. When national security is threatened by leaks, we must protect ourselves in all cases, not just criminal cases.

I urge my colleagues to adopt this motion and protect our national security.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, on that I demand the yeas and nays.

Mr. Speaker, pursuant to House Resolution 742, I call up the bill (H.R. 2102) to maintain the free flow of information to the public by providing conditions for the federally compelled disclosure of information by certain persons connected with the news media, and ask for its immediate consideration.

Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days in which to revise and extend their remarks on H.R. 2102.

Mr. Speaker, I yield myself such time as I may consume.

Ladies and gentlemen of the House, in recent years, the press has been under assault as reporters are increasingly being imprisoned, imprisoned for obstruction of justice and other charges. There are many causes of these attacks, including an increasingly consolidated media, abuse of position of power to intimidate members of the press, and a co-opting of the media as an investigative arm of the government.

Today, we are here in an attempt to reclaim one of the most fundamental principles enshrined by the Founding Fathers in the first amendment to the Constitution. 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.

This measure before us, H.R. 2102, the Free Flow of Information Act, helps restore the independence of the press so that it can perform its essential duty of getting information to the public. The bill will ensure that members of the press are free to utilize confidential sources without causing harm to themselves or their sources by providing a qualified privilege that prevents a reporter's source material from being revealed except under certain narrow circumstances. This measure balances the public's right to know against the legitimate and important interests that society has in maintaining public safety.

After the hearing and markup of this legislation, the sponsors of the bill worked hard to accommodate the concerns of all that were raised. While several good changes were made, I want to focus my comments today on the issue of national security and why I believe concerns about national security have been very effectively addressed in the bill and in the proposed manager's amendment.

The bill provides that disclosure of a source can be compelled where necessary to prevent an act of terrorism or significant specified harm to national security. The manager's amendment that will be offered by our colleagues, Mr. Boucher and Mr. Pence, specifically addresses the Department of Justice and DNI's primary concern, which is that the bill's exception for national security concerns would hinder efforts to investigate and prosecute leakers of classified information.

In response to this concern, the manager's amendment provides that disclosure of a source can be compelled in a criminal investigation or prosecution of an unauthorized disclosure of properly classified information when such disclosure will cause significant harm to national security.

The bill defines a covered person to exclude foreign powers or agents of foreign powers, so that, for example, a government-controlled newspaper of a foreign nation does not receive the protections of the act. This provision insures that our national security and law enforcement efforts will not be flouted by foreign governments that try to hold themselves out as covered journalists and claim entitlement to the act's protections.

The bill makes it clear that any foreign terrorist organization designated by the Secretary of State is excluded from the protections of the act.

In addition, the manager's amendment adds three more exceptions to the definition of ``covered person,'' so the privilege does not apply to any person designated as a specially designated global terrorist by the Treasury Department, any person who is specially designated a terrorist under FISA, and any terrorist organization as defined in the Immigration and Nationality Act.

Each of these exceptions were proposed by the Department of Justice and accepted by us. So, as you can see, the bill provides broad protection for national security.

If the exceptions were any broader, it would swallow up the rule itself. And for those who claim that the national security exception should not also be subject to the balancing test, I have no doubt that if a court finds that the disclosure of the source is necessary to prevent an act of terrorism or other harm to national security, it will also find that disclosure outweighs the public interest in gathering and disseminating the information.

So it is our responsibility, Congress's responsibility, to ensure the press is able to perform its job adequately. The Free Flow of Information Act is an important part of fostering the continued growth of a free and independent press in the United States. It will encourage increased dialogue on the issues that face this country; and, in doing so, it will strengthen the foundation of our democracy.

This legislation receives wide support. Over 100 editorial boards, a diverse group of over 50 media companies and organizations, including the Newspaper Association of America, the National Association of Broadcasters, the Associated Press, News Corp, the Newspaper Guild, ABC, NBC, and journalist organizations like the Reporters Committee for Freedom of the Press and the American Society of Newspaper Editors.

Please join with us on both sides of the aisle so that we can support and pass this important piece of legislation.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield myself 1 minute before turning to the gentleman from Virginia (Mr. Boucher).

I want to just take this time to say to the distinguished ranking member of Judiciary, Lamar Smith, how much we appreciate his constructive work with the working group that has been trying to come together to reach an agreement on this bill. At all times he has been straightforward, candid; and we think that the work that we are doing should go on, even though we are bringing the bill up today and it is moving forward. And I invite his continued working with us so that we can reach as much conclusion as we can on the several points that are outstanding.

Mr. Speaker, I now yield 4 minutes to the gentleman who has put so much work into this matter, the distinguished gentleman from Virginia, Rick Boucher, the author of this bill.

(Mr. BOUCHER asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I am pleased now to yield 1 minute to Ms. Shelley Berkley of Nevada.

Mr. Speaker, I am pleased to have the gentleman from Kentucky working with us (Mr. Yarmuth) and I yield to him 2 minutes in support of this measure.

Mr. Speaker, I yield myself 5 minutes.

Mr. Speaker, I would like to begin by complimenting Mike Pence of Indiana, a distinguished member of the Judiciary Committee who has been working on this bill before the 110th Congress. He was a leader in supporting this legislation in the 109th Congress and may have been working on it even before then. So when I listened to my other colleagues on the other side who have been working on and continue to support this legislation, I think it is very easy to perceive that with the working group, with the leaders on both sides of the aisle working with Rick Boucher on this for so long, we have now come to a point where most of the concerns have been addressed; and I deeply thank my colleagues on the Judiciary Committee for the constructive role they played not only in their independent capacity, but in the working group that has been working behind the scenes on this, as well.

Now, Members of the House, there has been something said about the importance of national security information. Sometimes it is just as important that the press report on information that the government has tried to hide in the name of national security. Because the problem frequently is that if we keep going after journalists trying to shut them up, trying to put them in jail, or threatening to prosecute them, they will be afraid to report some of the important stories that I am going to relate to you that up until now journalists have had to take it on their own risk to decide what to do. I don't think that is appropriate, nor is it necessary, nor is it contrary to any of our concerns about national security.

The history of the American press provides ample evidence of certain stories that would have never been known to the general public without the news media's use of confidential sources. Oftentimes these stories shed light on government misconduct, on corporate waste, fraud and abuse, and other matters of concern. The free flow of information to the public is vitally important to the operation of our democracy and to oversight our most powerful public and private institutions.

Now, here are a few examples of issues that were made known to the public through news reports based on confidential source information. Reporters decided that they would honor the confidence of their resources no matter what happened to them. These are courageous people of the media that had to take this on themselves. So this shield law is to take people out of this bind, out of this fear of having to be coerced because we don't know what is going to happen. This draws a very bright line for everybody to understand how we should proceed in the future.

Here is a matter that is important: the unsafe and deteriorating conditions at the Walter Reed Army Medical Center. Here is another public interest matter: the exposure of fertility fraud in Southern California based upon clinical records provided by anonymous sources, reporting more than 250 accounts of fertility fraud and revealed coverups, intimidation of clinical employees and bribery. Because of this reporting, the American Medical Association issued new guidelines for fertility clinics.

Here is another story that was of some consequence: a hospital scandal of patient dumping by a Los Angeles County emergency aid program. Reporting that article prompted a government investigation that brought it to an end. Rampant steroid use in Major League Baseball by world-class athletes which, in part, led Major League Baseball and its players union to open up its labor contract and adopt a steroid testing policy.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, during our negotiations led by the Boucher-Pence team, I would like to bring to the attention of the ranking member and manager of this bill before us an important change that was made in the manager's amendment which may or may not have come to his attention because it was made so late in the day. We now have a manager's amendment that would allow the government to pierce the journalistic shield to prevent a terrorist attack, but also to identify any perpetrators of a terrorist attack. I wanted to make sure that my friend and colleague was aware of this very important change because it was made at the very last minute.

Mr. Speaker, I will submit a number of articles from newspapers, mostly editorials, that deal with the support of the shield law that is before the Congress at this time.

We have a contribution from the Post-Standard in Syracuse, New York, entitled, ``The Shield Law Moves Closer to Reality,'' dated 14 October of this year.

In the Baltimore Sun, we had an opinion written yesterday in that newspaper, ``In Search of Shield,'' in support of the legislation.

We have heard from the Detroit Free Press from today's paper, ``Vote to Pass Law to Shield Reporters,'' in support of this legislation.

The Los Angeles Times earlier in May wrote an article: ``Shielding Journalists: Reporters, and the Country, Would Benefit from a Proposed Federal Law to Protect Confidential Sources.''

The Detroit News in May of this year wrote, ``Why a Federal Shield Law is Necessary,'' authored by Christine Tatum.

The New York Times in two different instances in September and October of this year, ``A Shield for the Public,'' was the editorial page comment, and in October, ``The Public's Right to Know,'' another important article in support of this legislation.

Here's one that the ranking member would be interested in. The San Antonio Express-News: ``Smith's Decision on Shield Law Critical.'' We hope that had come to his attention before today.

The Washington Post, in September: ``Protecting Sources.''

Another important contribution: ``A Much-Needed Shield for Reporters,'' written by Theodore B. Olson in The Washington Post in June of this year.

Finally, from USA Today: ``Our Views on Prosecutors and the Press: Jailing of Reporters Chills Free Flow of Information.''

These are only a few of a notebook full of materials that we wouldn't dare introduce this many pieces of material into the Congressional Record. I will include for the Record the items that I cited.

Submissions to Record on H.R. 2102

``Shield Law Moves Closer to Reality.'' The Post-Standard.

Syracuse, NY: Opinion Section. 14 October 2007.

``In Search of Shield.'' The Baltimore Sun, Baltimore, MD:

Opinion Section. 15 October 2007.

``Vote to Pass Law to Shield Reporters.'' Detroit Free

Press. Detroit, MI: Opinion Section. 16 October 2007.

Shielding Journalists: Reporters, and the Country, Would

Benefit from a Proposed Federal Law to Protect Confidential

Sources.'' The Los Angeles Times. Los Angeles, CA: Editorial

Page. 27 May 2007.

Tatum, Christine. ``Why a Federal Shield Law Is

Necessary.'' The Detroit News. Detroit, MI. 23 May 2007.

``A Shield for the Public.'' The New York Times. New York,

NY: Editorial Page. 20 September 2007.

``The Public's Right to Know.'' The New York Times. New

York, NY: Editorial Page. 9 October 2007.

``Smith's Decision on Shield Law Critical.'' San Antonio

Express-News. San Antonio, TX: Editorial Page. 28 July 2007.

``Protecting Sources.'' The Washington Post. Washington,

DC: A-18. 21 September 2007.

``Olson, Theodore B. ``A Much-Needed Shield for

Reporters.'' The Washington Post. Washington, DC: A-27. 29

June 2007.

``Our Views on Prosecutors and the Press: Jailing of

Reporters Chills Free Flow of Information.'' USA Today.

McLean, VA: Editorial page. 14 May 2007.

Mr. Speaker, it is now my privilege to recognize the Speaker of the House, Ms. Nancy Pelosi, for 1 minute.

I have none.

Mr. Speaker, I yield myself the balance of my time and just want to say that we have not given up on the possibility of winning some modest support from the ranking member of the Judiciary Committee. He has negotiated with us in good faith. We continue to work on any improvements. I am very proud of the work that the gentleman from Virginia (Mr. Boucher) and the gentleman from Indiana (Mr. Pence) have put forward, and I want to thank Members of the House on both sides. There is apparently a large number of bipartisan supporters for this measure. I want to assure the House that we are moving forward with deliberate speed, and it is in that sense that I continue to urge support for the measure.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, I am delighted and I congratulate the ranking member for joining us in supporting the Boucher-Pence manager's amendment. We think that we can move even further. Here is an amendment that alters the standard for piercing the shield where national security is involved. Also, it enables law enforcement to obtain an order compelling disclosure of the identity of a source in the course of a leak investigation.

So I am very happy about this. I think that it portends that there may be other areas of agreement that we will be able to reach. I thank the gentleman for yielding me the time.

Mr. Speaker, I rise in support of the motion to recommit.

Mr. Speaker, I thank the Speaker and note his surprise, and I want everyone to know that this motion is one that we on this side can concur with. We think it's thoughtful and appropriate and indicates the kind of rapprochement that we are trying to reach on any other matters of difference that might be outstanding.

Allowing a court to take into account national security when considering the balancing test and allowing the court to retain full discretion on whether to consider this information, and it may consider this along with any other information it deems relevant, means that the ranking member's continued commitment to work on this issue is going on even now, and I thank him for his constructive efforts.

Mr. Speaker, I yield to the author of the manager's amendment, Mr. Boucher of Virginia.

Mr. Speaker, pursuant to the instructions of the House in the motion to recommit, I report the bill, H.R. 2102, back to the House with an amendment.

Mr. Speaker, I demand a recorded vote.

Madam Speaker, by direction of the Committee on Rules, I call up House Resolution 742 and ask for its immediate consideration.

Madam Speaker, for the purpose of debate only, I yield the customary 30 minutes to the gentleman from Florida (Mr. Diaz- Balart). All time yielded during consideration of the rule is for debate only.

General Leave

Madam Speaker, I ask unanimous consent that all Members have 5 legislative days within which to revise and extend their remarks and insert extraneous materials into the Record.

Madam Speaker, I yield myself such time as I may consume.

Madam Speaker, H. Res. 742 provides for consideration of H.R. 2102, the Free Flow of Information Act, under a structured rule. The rule provides 1 hour of debate equally divided and controlled by the chairman and ranking minority member of the Committee on the Judiciary.

I rise to speak today on one of the most critical issues that faces our democracy, the freedom of the press and the sacred historic protection afforded to journalists allowing them not to reveal their sources.

Understanding this, in 1799, one of our Founding Fathers, Thomas Jefferson, said, ``Our citizens may be deceived for a while, and have been deceived; but as long as the presses can be protected, we may trust to them for light.''

Madam Speaker, with the birth of this new Nation came a government that was designed to be open and transparent to its people and held accountable for its actions. America's Founding Fathers established and implemented a system of checks and balances to ensure that one branch of government could not unilaterally impose its will on the others, aggressively overstep its authority, or greedily infringe upon the rights of its citizens.

Beyond the checks and balances of government is an often overlooked, but equally important, element of our system: the freedom of the press. Embodied in the first amendment, this right grants active citizens and vocal journalists the power to expose corruption and misbehavior committed by those elected and appointed to office. They serve as protectors of our democracy and work to make up for our system's failings where they exist.

Ensuring the free flow of information and providing protection for whistleblowers is vital to a free society. The Watergate scandal epitomized the value of the free press and, with it, the need to protect the relationship between journalists and their confidential sources.

For a moment, I would like my colleagues to consider a reality in which journalists could routinely be forced to reveal the names of their informants, and where sources could undoubtedly become reluctant to share important information that is unknown to the public.

Think of the scandals that journalists have revealed just in the last few years: The Central Intelligence Agency's clandestine prisons across Eastern Europe; Jack Abramoff's trading expensive troops for political favor from lawmakers; our veterans returning home from Iraq and Afghanistan to dilapidated, unsafe, unsanitary facilities at Walter Reed Medical Center. Make no mistake, confidential sources made these reports possible.

And I would be remiss if I did not ask my colleagues, would we rather be unaware of these incidents because shield laws don't exist and our reporters are too afraid of prosecution when doing their jobs?

The past 6 years have produced one disturbing reminder after another that the legitimacy of our government and the integrity of our democracy are dependent on the ability of journalists to protect their sources. From uncovering the horrifying incidents of detainee abuse at Abu Ghraib to revealing the administration's covert domestic spying program, the press managed to expose illegal actions by the executive branch when Congress refused to do so.

The public has long valued this relationship as critical to the functioning of an open and free media. Unfortunately, the court record has been more mixed.

In December of 1972, the Supreme Court ruled that the journalist- source relationship is not protected under the Constitution. That ruling has allowed journalists to be forced to testify before grand juries about their sources. In response, individual States across the country enacted their own journalist shield laws to guarantee that a member of the press can continue to maintain their anonymous sources without fear of prosecution.

In fact, 49 States and the District of Columbia all provide some form of shield law. But there is still no Federal statute providing uniformity. Now, recent Federal court cases are, again,

challenging the critically important relationship between journalists and their sources, arguing that State interests supersede those of a free press.

And according to The Washington Post, in recent years, more than 40 reporters have been questioned about their sources, notes and stories in civil and criminal cases.

The Free Flow of Information Act before us today would, for the first time on the Federal level, explicitly protect journalists and their sources from the kind of vengeful legal actions that threaten to keep all those necessary whistles unblown.

Unless Congress passes a comprehensive shield law that will guarantee the rights of journalists to speak with anonymous sources and ensure their confidentiality, the freedom of the press will be undermined along with the public good it has the power to defend. Any such bill must, of course, take into account the legitimate needs of our government, and this bill does that.

Madam Speaker, should we in any way compromise the freedom of the press, we will deny our citizens their right to be informed about their government and retreat from the true nature of the political system that made our government unique. Our forefathers saw fit to enshrine this belief in the very first sentences of our Bill of Rights, and this Congress must continue to guarantee those rights.

And today, Madam Speaker, as we debate extending these protections to the press, we must pause to remind the press of their obligation to the public.

I regret to say that, for much of the recent past, some of the press, which was intended to be the watchdog of our government, quickly transformed into nothing more than a mouthpiece, exemplified in its coverage and lack of questions on the Iraq war.

Madam Speaker, we saw time and time again the tough questions expected by the American people before and after the invasion in Iraq replaced with nothing more than patriotic propaganda and White House talking points.

Embedded journalists were fed information and painted rosy scenarios of our invasion and occupation. Those who were skeptical and challenged this spoon-fed information were discredited and sometimes even fired for so much as questioning the actions of the war and this government.

Thomas Jefferson said, again, and I quote, ``The press is impotent when it abandons itself to falsehood.''

With all the wonderful protections of the first amendment of the Constitution of the United States, the press must not only be vigilant, but it must be courageous.

And we all remember that it is the prime directive of the press to inform the people. It is their duty to ask the tough questions when the American people are unable to do so. It is their responsibility to shine light on government actions, secret or mundane, and to hold it accountable.

And let me finish by asking this simple question. Will the press pay as much attention to Blackwater as they did to Whitewater? I certainly hope so.

Madam Speaker, I reserve the balance of my time.

Madam Speaker, I yield 2 minutes to the gentleman from Vermont (Mr. Welch).

Mr. Speaker, I think this is a momentous day for the House. We have before us today a resolution that has been approved by both sides of the aisle, worked on with great consideration as concerns the Constitution. We are very happy to present it today. We think its importance is certainly easily explained and necessary.

I urge a ``yes'' vote on the previous question and on the rule.

The material previously referred to by Mr. Lincoln Diaz-Balart of Florida is as follows:

Amendment to H. Res. 742 Offered by Mr. Lincoln Diaz-Balart of Florida

At the end of the resolution, add the following:

Sec. 3. That immediately upon the adoption of this

resolution the House shall, without intervention of any point

of order, consider the resolution (H. Res. 479) to amend the

Rules of the House of Representatives to provide for

enforcement of clause 9 of rule XXI of the Rules of the House

of Representatives. The resolution shall be considered as

read. The previous question shall be considered as ordered on

the resolution to final adoption without intervening motion

or demand for division of the question except: (1) one hour

of debate equally divided and controlled by the chairman and

ranking minority member of the Committee on Rules; and (2)

one motion to recommit.

(The information contained herein was provided by

Democratic Minority on multiple occasions throughout the

109th Congress.)

The Vote on the Previous Question: What It Really Means

This vote, the vote on whether to order the previous

question on a special rule, is not merely a procedural vote.

A vote against ordering the previous question is a vote

against the Democratic majority agenda and a vote to allow

the opposition, at least for the moment, to offer an

alternative plan. It is a vote about what the House should be

debating.

Mr. Clarence Cannon's Precedents of the House of

Representatives, (VI, 308-311) describes the vote on the

previous question on the rule as ``a motion to direct or

control the consideration of the subject before the House

being made by the Member in charge.'' To defeat the previous

question is to give the opposition a chance to decide the

subject before the House. Cannon cites the Speaker's ruling

of January 13, 1920, to the effect that ``the refusal of the

House to sustain the demand for the previous question passes

the control of the resolution to the opposition'' in order to

offer an amendment. On March 15, 1909, a member of the

majority party offered a rule resolution. The House defeated

the previous question and a member of the opposition rose to

a parliamentary inquiry, asking who was entitled to

recognition. Speaker Joseph G. Cannon (R-Illinois) said:

``The previous question having been refused, the gentleman

from New York, Mr. Fitzgerald who had asked the gentleman to

yield to him for an amendment, is entitled to the first

recognition.''

Because the vote today may look bad for the Democratic

majority they will say ``the vote on the previous question is

simply a vote on whether to proceed to an immediate vote on

adopting the resolution ..... [and] has no substantive

legislative or policy implications whatsoever.'' But that is

not what they have always said. Listen to the definition of

the previous question used in the Floor Procedures Manual

published by the Rules Committee in the 109th Congress (page

56). Here's how the Rules Committee described the rule using

information from Congressional Quarterly's ``American

Congressional Dictionary'': ``If the previous question is

defeated, control of debate shifts to the leading opposition

member (usually the minority Floor Manager) who then manages

an hour of debate and may offer a germane amendment to the

pending business.''

Deschler's Procedure in the U.S. House of Representatives,

the subchapter titled ``Amending Special Rules'' states: ``a

refusal to order the previous question on such a rule [a

special rule reported from the Committee on Rules] opens the

resolution to amendment and further debate.'' (Chapter 21,

section 21.2) Section 21.3 continues: Upon rejection of the

motion for the previous question on a resolution reported

from the Committee on Rules, control shifts to the Member

leading the opposition to the previous question, who may

offer a proper amendment or motion and who controls the time

for debate thereon.''

Clearly, the vote on the previous question on a rule does

have substantive policy implications. It is one of the only

available tools for those who oppose the Democratic

majority's agenda and allows those with alternative views the

opportunity to offer an alternative plan.

Mr. Speaker, I yield back the balance of my time, and I move the previous question on the resolution.

Madam Speaker, I would like to thank the distinguished Chair of the Rules Committee (Ms. Slaughter) for the time, and I yield myself such time as I may consume.

One of the Founding Fathers of the Nation, whose likeness is above your chair, Madam Speaker, George Mason, said that ``the freedom of the press is a great bulwark of liberty.''

It does act as a bulwark of liberty by often checking governmental power. In order to gather and publish news stories, journalists often find it necessary to protect their sources. So if a journalist is forced to reveal his or her sources through legal proceedings, that has a chilling effect on other sources. And such a chilling effect ultimately may harm the public interest.

Under current law, Madam Speaker, courts have the power to force testimony from individuals unless they can cite a specific ground, such as the lawyer-client or the physician-patient privilege. It is in the public interest to have such privileges, and I think it should be possible to provide journalists, that's what this legislation is trying to do, and their sources with some reasonable protections, because currently there is no privilege for journalists to refuse to appear and testify in legal proceedings.

As the distinguished Chair of the Rules Committee stated, 49 States and the District of Columbia have various statutes or follow judicial decisions that have the effect of protecting reporters from being compelled to testify or disclose their sources. The underlying legislation would set a national standard similar to those that are in effect in the various States.

In determining whether to require testimony by a member of the news media, it is appropriate to strike a balance between the public's interest in the free dissemination of information and the public's interest in effective law enforcement and the fair administration of justice.

So the underlying legislation attempts to strike this balance by providing a privilege to journalists that prevents them from being forced to testify or disclose sources in legal proceedings. But, however, the privilege is not absolute. It contains exceptions where it is necessary to reveal a source to prevent an act of terrorism or other significant and specified harm to national security or imminent death or significant bodily harm.

I think it's appropriate, and I want to emphasize my gratitude to Representative Pence for his hard work and dedication on this important issue. He has been not only studying it, but working on this critical issue, really, a critical issue related to our freedom for years, and so as I thank him, I urge Members to support the legislation that he's been working on so diligently for so long.

The rule we are debating now, Madam Speaker, only allows for a manager's amendment, which, as you know, is an amendment for the majority to make final changes in a bill. So the rule is essentially a closed rule. Only one other amendment was submitted to the Rules Committee, but the majority decided, on a party-line vote, to exclude the amendment and not make possible the debate of that amendment on the floor.

I understand that the authors of the bill feel that that amendment, which was submitted by the distinguished ranking member of the Judiciary Committee (Mr. Smith), the authors of the bill believe that that amendment would go counter, would be counter to much of the essence of the bill. But, in my view, that doesn't mean that we should preclude or prevent consideration of the amendment.

Even Mr. Pence, the author and champion of the underlying legislation, who opposes the Smith amendment, testified at the Rules Committee that the amendment should definitely have an opportunity to be considered by the House.

The amendment includes many of the concerns that the Justice Department has had throughout the long period of time with parts of the underlying legislation. It is a serious amendment, and it certainly deserves to be debated on the floor.

So I think it is unfortunate, and as we bring this important legislation once again, it is an example of bringing important legislation to the floor excluding, making impossible, serious debate of ideas that differ by Members of this House. So that's unfortunate, and that is why I oppose the rule that is bringing forth this important legislation. I certainly support the underlying legislation, but I think that it is unfortunate that we once again have an overly restrictive process for bringing forth this legislation.

Madam Speaker, I reserve the balance of my time.

Madam Speaker, it is my privilege at this time to yield 3 minutes to a great leader in this House, our colleague from Florida (Mr. Keller).

Madam Speaker, it is my privilege to yield 8 minutes to someone who has been working long and hard on this important issue and deserves much commendation, my dear friend Mr. Pence of Indiana.

(Mr. PENCE asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I will be asking for a ``no'' vote on the previous question so that we can amend this rule and allow the House to consider a change to the rules of the House to restore accountability and enforceability to the earmark rule.

Under the current rule, so long as the chairman of the Committee of Jurisdiction includes either a list of earmarks contained in the bill or report or a statement that there are no earmarks, no point of order lies against the bill. This is the same as the rule in the last Congress. However, under the rule as it functioned under the Republican majority in the 109th Congress, even if the point of order was not available on the bill, it was always available on the rule as a question of consideration. But because the new Rules Committee majority specifically exempts earmarks from the waiver of all points of order, they deprive Members of the ability to raise the question of earmarks on the rule or on the bill.

I would like to direct all Members to a letter that House Parliamentarian John Sullivan recently sent to the distinguished Chair of the Rules Committee, Ms. Slaughter, which confirms what we have been saying since January, that the Democratic earmark rule contains loopholes.

In his letter to the distinguished chairman, the Parliamentarian states that the Democratic earmark rule ``does not comprehensively apply to all legislative propositions at all stages of the legislative process.''

I will insert this letter from the House Parliamentarian, John Sullivan, into the Record.

House of Representatives,

Office of the Parliamentarian,

Washington, DC, October 2, 2007.

Hon. Louise McIntosh Slaughter,

Committee on Rules, House of Representatives,Washington, DC.

Dear Chairwoman Slaughter: Thank you for your letter of

October 2, 2007, asking for an elucidation of our advice on

how best to word a special rule. As you also know, we have

advised the committee that language waiving all points of

order ``except those arising under clause 9 of rule XXI''

should not be adopted as boilerplate for all special rules,

notwithstanding that the committee may be resolved not to

recommend that the House waive the earmark-disclosure

requirements of clause 9.

In rule XXI, clause 9(a) establishes a point of order

against undisclosed earmarks in certain measures and clause

9(b) establishes a point of order against a special rule that

waives the application of clause 9(a). As illuminated in the

rulings of September 25 and 27, 2007, clause 9(a) of rule XXI

does not comprehensively apply to all legislative

propositions at all stages of the legislative process.

Clause 9(a) addresses the disclosure of earmarks in a bill

or joint resolution, in a conference report on a bill or

joint resolution, or in a so-called ``manager's amendment''

to a bill or joint resolution. Other forms of amendment--

whether they be floor amendments during initial House

consideration or later amendments between the Houses--are not

covered. (One might surmise that those who developed the rule

felt that proposals to amend are naturally subject to

immediate peer review, though they harbored reservations

about the so-called ``manager's amendment,'' i.e., one

offered at the outset of consideration for amendment by a

member of a committee of initial referral under the terms of

a special rule.)

The. question of order on September 25 involved a special

rule providing for a motion to dispose of an amendment

between the Houses. As such, clause 9(a) was inapposite. It

had no application to the motion in the first instance.

Accordingly, Speaker pro tempore Holden held that the special

rule had no tendency to waive any application of clause 9(a).

The question of order on September 27 involved a special rule

providing (in pertinent part) that an amendment be considered

as adopted. Speaker pro tempore Blumenauer employed the same

rationale to hold that, because clause 9(a) had no

application to the amendment in the first instance, the

special rule had no tendency to waive any application of

clause 9(a).

The same would be true in the more common case of a

committee amendment in the nature of a substitute made in

order as original text for the purpose of further amendment.

Clause 9(a) of rule XXI is inapposite to such an amendment.

In none of these scenarios would a ruling by a presiding

officer hold that earmarks are or are not included in a

particular measure or proposition Under clause 9(b) of rule

XXI, the threshold question for the Chair--the cognizability

of a point of order--turns on whether the earmark-disclosure

requirements of clause 9(a) of rule XXI apply to the object

of the special rule in the first place. Embedded in the

question whether a special rule waives the application of

clause 9(a) is the question whether clause 9(a) has any

application.

In these cases to which clause 9 of rule XXI has no

application in the first instance, stating a waiver of all

points of order except those arising under that rule--when

none can so arise--would be, at best, gratuitous. Its

negative implication would be that such a point of order

might lie. That would be as

confusing as a waiver of all points of order against

provisions of an authorization bill except those that can

only arise in the case of a general appropriation bill (e.g.,

clause 2 of rule XXI). Both in this area and as a general

principle, we try hard not to use language that yields a

misleading implication.

I appreciate your consideration and trust that this

response is to be shared among all members of the committee.

Our office will share it with all inquiring parties.

Sincerely,

John V. Sullivan,

Parliamentarian.

This amendment, Mr. Speaker, will restore the accountability and the enforceability of the earmark rule to where it was at the end of the 109th Congress, to provide Members with an opportunity to bring the question of earmarks before the House for a vote.

I urge my colleagues to close this loophole by opposing the previous question.

Mr. Speaker, I ask unanimous consent to insert the text of the amendment and extraneous materials immediately prior to the vote on the previous question.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, on that I demand the yeas and nays.

Mr. Speaker, I rise to speak in strong support of H.R. 2102, the Free Flow of Information Act of 2007, which I am proud to co-sponsor. This legislation provides a qualified immunity from prosecution or contempt to journalists for refusing to disclose confidential sources or information.

Let me say, Mr. Speaker, that I am confident that this legislation adequately addresses and resolves the conflict between society's competing interests in a free and vigorous press, on the one hand, and not unduly hampering the ability of law enforcement to investigate and prosecute crimes.

Mr. Speaker, when it comes to the freedom of the press, the Department of Justice's Statement of Policy is clear. It states ``Because freedom of the press can be no broader than the freedom of reporters to investigate and report the news, the prosecutorial power of the government should not be used in such a way that it impairs a reporter's responsibility to cover as broadly as possible controversial public issues.'' 28 C.F.R. 50.10.

I have long been a strong proponent of a qualified privilege for journalists. Indeed, in 2001 I spoke out in favor of the need for such a privilege when I went to the Federal Detention Center in Houston today to support the efforts of Professor Vanessa Leggett, a 33-year- old freelance non-fiction writer who had been jailed without bond since July 20, 2001 for asserting her journalistic privilege and First Amendment right not to reveal confidential source information.

After visiting Professor Vanessa Leggett I became convinced of the justice of her cause and the importance of her case. Professor Leggett had spent four years researching the 1997 murder of Doris Angleton. When she refused to give in to threats and intimidation by an overzealous prosecution, and asserted her First Amendment rights in a grand jury investigation, she was found in contempt and jailed.

Mr. Speaker, like you I believe the First Amendment is the most important amendment in the Bill of Rights. And it is not a coincidence that the freedoms of speech and press are the first freedoms listed in the First Amendment.

I believe allowing journalists the right to maintain the confidentiality of their sources when doing research must be protected because it is indispensable to a free press which is the sine qua non of a free society. We must heed the counsel of Justice

Douglas's dissent in Branzburg v. Hayes, 408 U.S. 665 (1972): ``The people, the ultimate governors [of our democracy], must have absolute freedom of and therefore privacy of their individual opinions and beliefs.'' Justice Douglas reminds us that ``effective self-government cannot succeed unless the people are immersed in a steady, robust, unimpeded, and uncensored flow of opinion and reporting which are continuously subjected to critique, rebuttal, and re-examination.''

Again, this principle, codified at Title 28 CFR 50.10 of the Department of Justice Statement of Policy, clearly recognizes and protects one of our most sacred democratic institutions: the media. It requires, for example, that the Department of Justice ``strike the proper balance between the public's interest in effective law enforcement and the fair administration of justice,'' while other subsections clearly require that sanctions, such as those administered by the Department of Justice in this case, shall be reviewed by the Attorney General. As such, this Section presents a tension with the Court precedents set in Branzburg and in Jascalevich.

The Supreme Court's decisions in Branzburg v. Hayes, 408 U.S. 665 (1972), and New York Times v. Jascalevich, 439 U.S. 1331 (1978) establish the precedent that a

journalist cannot rely upon an absolute First Amendment-based privilege to justify refusal to testify when called by a grand jury, unless the grand jury investigation is instigated in bad faith. However, since the Court handed down its decision in Branzburg, 49 states and the District of Columbia now recognize some version of a shield law protecting the press, to varying degrees, from unfettered disclosure of sources, work product, and information generally.

These various state protections range in type and scope, from broad protections that provide an absolute journalistic privilege to shield laws that offer only qualified protection. The majority of state shield laws currently in place offer some form of a qualified privilege to reporters, protecting source information in judicial settings, unless the compelling party can establish that the information is: (1) relevant or material; (2) unavailable by other means, or through other sources; and (3) a compelling need exists for that information. There is considerable variation among the states on the last prong, with some requiring the party seeking disclosure to establish a compelling need for the information. Other states require a compelling showing that disclosure is needed to achieve a broader and greater public policy purpose.

In Federal courts, however, there is no current uniform set of standards to govern when testimony can be sought from reporters. Rather, the Federal jurisprudence has developed on an ad hoc, case-by- case basis. That is why we need, and I support, H.R. 2102.

H.R. 2102 establishes a procedure by which disclosure of confidential information from a journalist may not be compelled to testify or provide documents related to information obtained or created by the journalist unless the following conditions are met by a preponderance of the evidence and after notice to be heard: (1) The party seeking production must have exhausted all reasonable alternative sources of the information; (2) in the case of a criminal investigation, the party seeking production must have reasonable grounds to believe a crime has occurred and the information sought is critical to the case; (3) disclosure is necessary to: prevent an act of terrorism against the United States or other significant specified harm to national security or to prevent imminent death or significant bodily harm or to identify a person who has disclosed a trade secret actionable under 18 U.S.C. Sec. 1831 or Sec. 1832; or (4) the party seeking production must prove that the public interest in compelling disclosure outweighs the public interest in gathering or disseminating news or information.

Mr. Speaker, section 4 of the bill defines the key terms used in this bill. A ``Covered Person'' is a person who, for financial gain or livelihood, is engaged in journalism, including supervisors, employers, parents, subsidiaries, or affiliates of a covered person. ``Journalism'' is defined as 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.''

Mr. Speaker, I applaud and commend Mr. Boucher's efforts to address the many concerns of his colleagues relating to the scope of a ``covered person'' and the definition of ``journalism.'' Initially, I was troubled that one day in the future some runaway court or wayward judge may construe these definitions so narrowly that situations like the one involving Vanessa Leggett that I have previously discussed would be excluded. However, based on my consultations with the lead sponsors, as well as my detailed discussions and consultations with groups like the Reporters Committee for Freedom of the Press, I am satisfied that the proposed language is broad enough to cover journalists who are in Vanessa Leggett's situation.

Under this legislation, a freelance journalist facing a similar subpoena will be able to represent to a judge that at the time she was talking to sources, she represented to them that she was working on a story or non-fiction book that she planned to sell to a newspaper or magazine or publisher. A reasonable judge would have little choice but to find her to be covered by the statute.

Mr. Speaker, it is interesting to note that the District Court and the 5th Circuit never questioned Vanessa Leggett's status as a journalist. Rather, the court assumed she was a journalist using the test of In re von Bulow, 828 F2d 94 (2d Cir. 1987). If the issue of a freelancer being covered was found to be vague in the statute, I believe a court would revert to the von Bulow standard, which holds someone is a journalist if she represented to her sources at the time of the interview that she was a journalist and was gathering information intending to write a story to disseminate to an audience.

In short, Mr. Speaker, because I believe the language of the bill now leaves no doubt that the Congress specifically intends the Free Flow of Information Act to cover situations similar to the Vanessa Leggett case, I strongly support this legislation and urge my colleagues to join me in voting for H.R. 2102.