第111届国会报告众议院第一届会议111-61================================================================================================================================================================================================================================================================================================================================================================================================================================================================================================================================================================================================，司法委员会向司法委员会提交了以下报告和异议【随附H.R.985】【包括国会预算办公室的成本估算】，并将法案（H.R.985）提交给了司法委员会通过为联邦政府强制某些与新闻媒体有关的人披露信息提供条件，保持信息向公众的自由流动，在考虑了这些条件后，不经修改地对其进行有利的报道，并建议通过该法案。目录页目的和摘要。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。ReportsReports。。。。。。。。。。2立法的背景和需要。。。。。。。。。。。。。。。。。。。。。。。。。。2听证会。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。6委员会审议。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。7委员会投票。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。7委员会监督结果。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。7新的预算授权和税务支出。。。。。。。。。。。。。。。。。。。。。。。。7国会预算办公室成本估算。。。。。。。。。。。。。。。。。。。。。。。。7绩效目标和目的。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。9宪法权力声明。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。9关于专项拨款的咨询意见。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。9逐节分析。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。9不同意见。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。。11目的和摘要《2009年信息自由流动法》第985号H.R.法规确保新闻界成员可以从事有效的新闻工作，并利用机密信息来源，而不会损害自己或其来源，提供限制性特权，防止记者的原始材料被披露，除非在某些情况下，如有必要防止恐怖主义行为或其他对国家安全的重大和特定伤害，或即将死亡或重大人身伤害。因此，该法案在促进信息自由传播和确保有效执法和公平司法方面取得了谨慎的平衡，同时包含对执法的实质性保护，并确保保护国家安全或其他关键利益所需的信息在需要时可以访问。第985号H.R.与第110届国会第2102号H.R.相同，其修订形式为2007年10月16日众议院以398票对21票的记录表决通过的。背景和立法需要背景第一修正案和新闻自由宪法第一修正案规定“国会不得制定法律……”。剥夺言论自由或新闻自由。历史上，新闻界在向公众传播信息方面发挥着至关重要的作用。\2\除了提供有关危害国家罪行的一般新闻外，人们还认为新闻界通过提供有关公众关注的问题的信息来促进《第一修正案》的价值观，包括公职人员的行为和行动以及政府腐败事件。\3\n因此，人们已经认识到，如果要向公众提供有新闻价值的信息，在收集和传播信息时，应保护新闻界不受政府的不当干预。\4\n最高法院已经认识到这一点，并废除了限制新闻界传播公共信息能力的法律关注点。\5\由于机密来源被认为对披露公众利益的不受限制的信息特别重要，有人认为，第一修正案提供了保护，防止联邦政府强制披露这些机密来源。修正I.\2\见布拉德利·S·米勒，《大寒战：第三方文件和记者的特权》，29 U.Mich.J.L.参考文献613623（1995-96）（讨论媒体在向人民获取政府有用信息方面的重要性）；另见公民酒吧。公司。美国，394 U.S.131139-40（1969）（解释新闻自由是自由社会的关键，因为它确保了信息的广泛和多样化传播）\3\见《纽约时报》第五卷。Sullivan，376 U.S.254270（1964年）（指出“关于公共问题的辩论应该是不受限制的、有力的和开放的”）；另见Mills v。阿拉巴马州，《美国判例汇编》384卷第214218页（1966年）（声称“该修正案的主要目的是保护对政府事务的自由讨论”）；加里森诉。路易斯安金博宝正规网址a, 379 U.S. 64, 77 (1964) (suggesting that there is ``paramount public interest in a free flow of information to the people concerning public officials''). See generally David A. Anderson, The Origins of the Press Clause, 30 UCLA L. Rev. 455 (1983) (detailing history of Press Clause). \4\See Bradley S. Miller, The Big Chill: Third-Party Documents and the Reporter's Privilege, 29 U. Mich. J.L. Ref. 613, 623 (1995-96) (arguing that the press must be free of governmental restrictions so it can remain the ``investigative arm of the people,'' uncovering government corruption and other crimes detrimental to American people); see also New York Times v. United States, 403 U.S. 713, 728 (1971) (Stewart, J., concurring) (arguing that in certain areas of government, the only checks and balances against government power may be ``enlightened citizenry,'' and an alert and free press is essential to bestow knowledge on the public). \5\See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980) (overruling limitations on press access to judicial proceedings); Sullivan, 376 U.S. at 281 (establishing ``actual malice'' standard for defamation claims by public officials). \6\Mark Gomsak, Note, The Free Flow of Information Act of 2006: Settling the Journalist's Privilege Debate, 45 Brandeis L.J. 597, 601 (2007). --------------------------------------------------------------------------- There are typically two bases in the First Amendment supporting the privilege: (1) the need to protect the free flow of information and ideas, and (2) the need to keep the government from interfering with the press or commandeering it as an investigative arm.\7\ With respect to the first point, the right to publish is worthless without the right to gather information; shield law protection is necessary because some reporting is dependent on informants, and some informants are unwilling to be named because of fear of retribution, embarrassment, or harm. Those informants could be deterred by the risk of being compulsorily named; as a result, reporters would neither have access to nor be able to publish important information. --------------------------------------------------------------------------- \7\Id. at 601. --------------------------------------------------------------------------- With respect to the second point, it is often argued by the press that the extent of interference with the journalistic process is significant, as ``subpoenas are inherently, invariably, inescapably burdensome.''\8\ Responding to subpoenas requires much time and expense, and the subpoenas often seek information that is only marginally relevant.\9\ The press further asserts that complying with a subpoena may also have an adverse impact on a journalist's credibility, as testifying for one side may make the journalist appear biased.\10\ --------------------------------------------------------------------------- \8\Id. at 608 (arguing that subpoenas devour time and resources better used for other purposes and entangle people in the criminal process). \9\See id. at 609 (citing Judge Richard Posner's statement that subpoenas can lawfully require testimony about activities both ``intensely private and entirely marginal to the purpose of the inquiry''). \10\Bradley S. Miller, The Big Chill: Third-Party Documents and the Reporter's Privilege, 29 U. Mich. J.L. Ref. 613, 623 (1995-96) (suggesting that the subpoena threat may puncture the cooperative atmosphere between reporter and source by redirecting attention to the question of the reporter's loyalties); see, e.g., Cohen v. Cowles Media Co., 501 U.S. 663, 665 (1991) (concluding that the First Amendment does not prohibit a plaintiff from recovering damages for a reporter's breach of a promise of confidentiality). --------------------------------------------------------------------------- The Issue of Journalistic Privilege In Branzburg v. Hayes,\11\ the Supreme Court ruled on a claim of journalists' privilege for the first time.\12\ In an opinion by Justice White, the Court held that a journalist could not rely on an absolute First Amendment-based privilege to refuse to testify when questioned by a grand jury, unless the grand jury investigation was ``instituted or conducted other than in good faith.''\13\ The Court reasoned that the public's interest in prosecuting crime outweighed its interest in journalists' being permitted to preserve their confidential relationships. The Court, however, noted that there was ``merit in leaving state legislatures free, within First Amendment limits, to fashion their own standards'' regarding journalists' privilege.\14\ --------------------------------------------------------------------------- \11\408 U.S. 665 (1972). \12\The first claim by a reporter that the First Amendment justified a refusal to provide information came in a case in which a columnist reported several allegedly defamatory statements from an anonymous CBS source about actress Judy Garland. Garland v. Torre, 259 F.2d 545, 547 (2d Cir. 1958). Garland sued CBS; in her deposition, the reporter refused to answer questions about the source of the statements. Id. The Second Circuit held that the First Amendment did not confer a right to refuse to answer questions, at least when the questions ``went to the heart of the . . . claim.'' Id. at 548-50. \13\408 U.S. 665, at 707. \14\Id. at 706 --------------------------------------------------------------------------- Justice Powell's concurrence in Branzburg stressed the need for a test to strike the ``proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.''\15\ He explained that a court could quash a subpoena where ``legitimate First Amendment interests require protection.''\16\ In his dissent, Justice Stewart went a step further and proposed a specific balancing test.\17\ Under his test, in order to make a journalist comply with a subpoena to appear before a grand jury and reveal confidential sources and information, the government must: (1) show that there is probable cause to believe that the reporter has information that is clearly relevant to a specific probable violation of law; (2) demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights; and (3) establish a compelling and overwhelming interest in the information.\18\ --------------------------------------------------------------------------- \15\Id. at 726 (Powell, J., concurring). \16\Id. \17\Id. at 743 (Stewart, J., dissenting). \18\Id. --------------------------------------------------------------------------- In the aftermath of Branzburg, there have been recurring calls for a Federal shield law or for a reconsideration of that decision.\19\ Although nearly one hundred bills was introduced in the 6 years after the Branzburg decision,\20\ none of these measures was passed, a failure that is partially attributed to an inability to reach consensus on the definition of ``journalist,'' and to the insistence of the press on an absolute privilege, not a qualified one.\21\ In 1970 the Attorney General promulgated guidelines to govern the issue for the Department of Justice.\22\ These guidelines require the Department to: balance First Amendment values with the need for the information sought by the subpoena; make a reasonable attempt to get the information from alternative sources; negotiate with the news media before issuing a subpoena; obtain Attorney General approval before issuing a subpoena; and specify reasonable grounds for the Department's belief that the information sought by the subpoena is essential.\23\ --------------------------------------------------------------------------- \19\Paul Marcus, The Reporter's Privilege: An Analysis of the Common Law, Branzburg v. Hayes, and Recent Statutory Developments, 25 Ariz. L. Rev. 815, 866-67 (1984) (calling for a uniform national standard for the national news-gathering media). \20\Id. at 867. \21\23 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure 5426, at 738-39 (1980) (concluding that the press eventually lost interest in seeking a Federal legislative solution to the subpoena problem). \22\See 28 C.F.R. 50.10 (1970). \23\Id. --------------------------------------------------------------------------- Also since the Branzburg decision, Federal courts have continued to develop a common law privilege on a case-by-case basis.\24\ Some Federal courts have recognized a qualified journalist's privilege in non-grand jury settings, some have extended it to both civil and criminal proceedings, and some have even extended the privilege to non-confidential sources.\25\ This lack of uniformity among the Federal courts has prompted calls from journalists and scholars for Federal legislation. --------------------------------------------------------------------------- \24\See Riley v. City of Chester, 612 F.2d 708, 714 n.6 (3d Cir. 1979) (quoting a comment by the principal drafter of the Federal Rules of Evidence that ``the language of Rule 501 permits the courts to develop a privilege for newspaperpeople on a case-by-case basis''). \25\Paul Marcus, The Reporter's Privilege: An Analysis of the Common Law, Branzburg v. Hayes, and Recent Statutory Developments, 25 Ariz. L. Rev. 815, 864 (1984). --------------------------------------------------------------------------- The Federal Rules of Evidence Federal Rule of Evidence 501 states that except as provided by an Act of Congress or in rules prescribed by the Supreme Court, Federal privileges should be governed by the principles of common law. When courts recognize a privilege, it has been for the purpose of protecting information shared in the context of a special relationship, such as that between attorney and client, or between husband and wife. Privileges are created to promote sharing information without the fear that either party will be forced to disclose to a third party. In 1996, the Supreme Court issued a three-part test for when a new privilege may be created: 1) whether the proposed privilege serves significant public and private interests; 2) whether the recognition of those interests outweighs any burden on truth-seeking that might be imposed by the States; and 3) whether such a privilege is widely recognized by the States. State Shield Laws Since 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. While 16 of these States recognize a reporter's privilege as a result of judicial decisions, only 13 States and the District of Columbia accord an absolute privilege for a journalist to withhold information, regardless of the State's demonstration of need for the information. The various State statutes range in scope, from broad protections that provide an absolute journalistic privilege, to shield laws that offer a qualified privilege.\26\ The majority of State shield laws currently in place offer some form of a qualified privilege to reporters that protects source information in judicial settings, unless the compelling party can establish (1) that the information is relevant or material; (2) that it is unavailable by other means, or through other sources; and (3) that a compelling need exists for the information.\27\ The States tend to vary on the last element, with some requiring the compelling party to establish whether the need exists as to the party's case, and others whether the need serves a broader public policy.\28\ In Federal courts, however, there is no uniform set of standards governing when testimony can be sought from reporters. --------------------------------------------------------------------------- \26\Carey Lening & Henry Cohen, Journalists' Privilege to Withhold Information in Judicial and Other Proceedings: State Shield Statutes, Congressional Research Service Report for Congress, Mar. 8, 2005. \27\Id. \28\Id. --------------------------------------------------------------------------- NEED FOR THE LEGISLATION This legislation is essential for journalists to be able to protect confidential sources. Without this protection, many sources of information may be unwilling to come forward with critical information. The privilege is necessary to preserve the free flow of information. Many people view the press as the fourth branch of government, serving in the checks and balances system that underlies our democracy. Over the years, the press has uncovered scandals and corruption in the government, and criminal behavior, often attributable to an undisclosed source. In fact, many stories would not have been published without a promise of confidentiality of sources--Watergate and Iran- Contra come to mind, among many others. More recent news stories brought to light based on confidential sources include the conditions at the Walter Reed Army Medical Center, the Abu Ghraib prison scandal, and the abuse of steroids by baseball players. A Federal shield law is also needed because of the lack of uniform standards--at both the Federal level and State level-- to govern when testimony can be sought from reporters. This argument was made by 34 State attorneys general, including the District of Columbia, in an amicus brief filed May 27, 2005.\29\ In the brief, the attorneys general recognized that 49 States and the District of Columbia had some form of a shield law, and state that ``[l]ack of a corresponding Federal reporter's privilege undercuts the States' privileges recognized in forty-nine States and causes needless confusion.'' The attorneys general also suggested that three decades after Branzburg, the change in the State law landscape and the confusion in the Federal circuits made the consideration of a Federal reporter's privilege ripe for review.\30\ --------------------------------------------------------------------------- \29\Brief for the State of Oklahoma, et al. as Amici Curiae Supporting Petitioners, Miller v. United States, No. 04-1507 (May 27, 2005). \30\Id. --------------------------------------------------------------------------- Because the privilege is not absolute, this law will prevent law enforcement officials from using journalists and the results of their fact-gathering as a shortcut to a proper investigation, but will not prevent law enforcement or civil litigants from obtaining information that is truly needed to protect the national security or other significant interests and that is not reasonably available from any other source. H.R. 985 contains significant provisions carefully crafted during the last Congress to ensure a fair and practical balance between the public's right to know and the need to protect national security and other critical interests--provisions that resulted in a consensus measure that passed the House by an overwhelming margin of 398-21. Hearings The full Committee on the Judiciary held 1 day of hearings on a predecessor bill, H.R. 2102, during the 110th Congress, on June 14, 2007. Testimony was received from Rachel Brand, Assistant Attorney General for Legal Policy, U.S. Department of Justice; William Safire, columnist, N.Y. Times; Lee Levine, partner, Levine, Sullivan Koch and Schultz, LLP; Randall Eliason, Professional Lecturer in Law, George Washington University Law School and Washington College of Law, American University; and Jim Taricani, reporter, WJAR TV, Providence, Rhode Island. Committee Consideration On March 25, 2009, the Committee met in open session and ordered the bill, H.R. 985, favorably reported without amendment by voice vote, a quorum being present. Committee Votes In compliance with clause 3(b) of rule XIII of the Rules of the House of Representatives, the Committee advises that there were no recorded votes during the Committee's consideration of H.R. 985. Committee Oversight Findings In compliance with clause 3(c)(1) of rule XIII of the Rules of the House of Representatives, the Committee advises that the findings and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. New Budget Authority and Tax Expenditures Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new budgetary authority or increased tax expenditures. Congressional Budget Office Cost Estimate In compliance with clause 3(c)(3) of rule XIII of the Rules of the House of Representatives, the Committee sets forth, with respect to the bill, H.R. 985, the following estimate and comparison prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974: U.S. Congress, Congressional Budget Office, Washington, DC, March 27, 2009. Hon. John Conyers, Jr., Chairman, Committee on the Judiciary, House of Representatives, Washington, DC. Dear Mr. Chairman: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 985, the ``Free Flow of Information Act of 2009.'' If you wish further details on this estimate, we will be pleased to provide them. The CBO staff contact is Leigh Angres, who can be reached at 226-2860. Sincerely, Douglas W. Elmendorf, Director. Enclosure cc: Honorable Lamar S. Smith. Ranking Member H.R. 985--Free Flow of Information Act of 2009. CBO estimates that implementing H.R. 985 would have no significant effect on the federal budget. H.R. 985 would exempt journalists from being compelled to produce documents or provide testimony unless a court finds that one of the following exceptions apply:
     l寻求信息的一方已用尽所有合理的替代来源；
      在刑事调查或起诉中，有合理理由相信犯罪已经发生，而所寻求的证词或文件对调查、起诉或辩护至关重要;
       在所有其他事项中，所寻求的信息对完成该事项至关重要；
        在可能披露来源身份的情况下，所寻求的文件或证词对于防止某些行动，包括恐怖主义行为等是必要的；和
         l强制披露相关文件或信息的公众利益大于收集或传播新闻信息的公众利益。该法案还将限制传唤证词或文件的内容。最后，根据该法案，不得强迫通信服务提供商（即电信运营商和互联网服务提供商）提供与记者的电话、电子邮件和计算机使用有关的证词或文件，除非上述例外情况之一适用。根据现行法律，就联邦案件相关事宜传唤记者的请求通常来自司法部（DOJ）。在司法部进行内部审查后，联邦检察官可以要求法院传唤记者。司法部提供的信息表明，每年批准的寻求机密来源信息的传唤请求很少（1991-2007年期间总共有19次），而且该法案不太可能大幅增加此类请求。因此，国会预算办公室假设每年很少有这样的传唤可以在法庭上受到质疑。根据现行法律，记者已经对一些传票提出质疑，H.R.985将澄清记者被迫提供信息或作证的情况。该法案可能会增加联邦律师的诉讼责任，如果传唤受到质疑的人数超过现行法律，但鉴于潜在案件数量较少，国会预算办公室估计，联邦支出的任何增加都将微不足道。此外，根据美国法院行政办公室提供的信息，国会预算办公室预计该法案不会显著增加法院的工作量。因此，国会预算办公室估计，实施H.R.985不会对预算产生重大影响。H.R.985不包含《无基金授权改革法案》中定义的政府间或私营部门授权，也不会影响州、地方或部落政府的预算。国会预算办公室的工作人员联系方式是Leigh Angres。预算分析副助理主任特里萨·古洛批准了这一估计数。绩效目标委员会声明，根据《众议院规则》第十三条第3（c）（4）款，H.R.985旨在通过对联邦强制披露某些与新闻媒体有关的人员的信息设定条件，确保信息向公众自由流动。宪法权威声明根据《众议院议事规则》第十三条第3（d）（1）款，委员会认为该立法在《宪法》第一条第8节第18条和第一修正案中具有权威性。根据《众议院议事规则》第二十一条第9款，H.R.2102不包含第二十一条第9（d）、9（e）或9（f）款中定义的任何国会专项拨款、有限税收优惠或有限关税优惠。以下讨论描述了委员会报告的法案：第1节。简称——第1节将该法案简称为“2009年信息自由流动法”。第2节。被报道人的强制披露——第2节规定了一个程序，通过该程序可以强制记者披露机密信息。第（a）小节规定，联邦实体不得强迫记者作证或提供与记者获得或创造的信息有关的文件，除非证据占优势且在通知和陈述机会后满足以下条件：1）要求出示的一方必须用尽所有合理的替代信息来源。2） 如果是刑事调查，寻求生产的一方必须有合理理由相信犯罪已经发生，并且所寻求的信息对案件至关重要。如果是民事调查，信息对于案件的成功完成至关重要。3） LIf如果该信息能够披露机密来源的身份，则仅在必要时才允许披露：（a）防止针对美国或其盟国的恐怖主义行为，防止对国家安全造成其他重大损害，或查明此类行为的肇事者；（B） l防止即将死亡或重大身体伤害；（C） l确认披露了《美国法典》第18卷第2节规定可提起诉讼的商业秘密的人。1831或1831秒。1832; 《社会保障法》第1171（6）节定义的个人可识别健康信息；或《格拉姆-里奇-布莱利法案》第509（4）节中定义的非公开个人信息；或（D）为刑事起诉的目的，对未经授权披露适当保密信息的人员进行鉴定，该信息的披露对国家安全造成或将造成重大损害。4） 三个requirements above are met, the party seeking production must also establish by a preponderance of the evidence that the public interest in compelling disclosure outweighs the public interest in gathering or disseminating news or information. Subsection (b) of this section expressly permits the court to consider the extent of any harm to national security in conducting this balancing. Subsection (c) states that, where disclosure is ordered, the content of any information ordered to be produced should not be overbroad, unreasonable, or oppressive, and should, where appropriate, be limited to the purpose of verifying published information or describing surrounding circumstances relevant to the accuracy of the published information. Subsection (c) also states that the content should be narrowly tailored in subject matter and period of time so as to avoid the production of peripheral, nonessential, or speculative information. Subsection (d) states that nothing in the bill should be construed to apply to state-law defamation, slander, or libel claims or defenses. Section 3. Compelled Disclosure From Communications Service Providers--Section 3(a) provides that the protections of section 2 apply equally to an attempt by a Federal entity to get information from a communication service provider (``CSP'') that relates to a business transaction between the CSP and a covered person as to an attempt to get the information directly from the covered person--for example, if the government attempts to obtain a reporter's e-mails from the reporter's Internet service provider instead of directly from the reporter. Subsection (b) requires that a court give the covered person notice and opportunity for hearing before ordering a CSP to disclose information described in subsection (a). Notice must be given no later than the time the subpoena or request is issued. Subsection (c) provides that notice may be delayed only if the court determines by clear and convincing evidence that not delaying it would pose a substantial threat to the integrity of a criminal investigation. Section 4. Definitions--Section 4 defines the following terms: 1) L``Communications service provider'' is a person that transmits information of a customer's choosing by electronic means and includes a telecommunications carrier, an information service provider, and an information content provider (as those terms are defined in the Communications Act). 2) L``Covered person'' is a person who, for a substantial portion of the person's livelihood, or for substantial financial gain, is regularly engaged in journalism (including supervisors, employers, parents, subsidiaries, or affiliates of a covered person). A covered person does not include any person who is a foreign power or agent of a foreign power under Section 101 of the Foreign Intelligence Surveillance Act; any foreign terrorist organization as designated by the Secretary of State in accordance with section 219 of the Immigration and Nationality Act; any person identified as a financial supporter of a terrorist organization in the Annex to Executive Order 13224, or whose assets are blocked under that order; any person designated as a terrorist under 31 C.F.R. 595.311; or any terrorist organization as defined in Section 212(a)(3)(B)(vi)(II) of the Immigration and Nationality Act. 3) L``Document'' means writings, recordings, and photographs (as defined in the Federal Rules of Evidence). 4) L``Federal entity'' is an entity or employee of the judicial or executive branch or an administrative agency with subpoena power. 5) L``Journalism'' is gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news of information that concerns local, national, or international events or other matters of public interest for dissemination to the public. Dissenting Views The United States has enjoyed a free press for over 200 years because it is guaranteed by the First Amendment in the Constitution. Our Founders understood that a free press protects and perpetuates our democracy. There has been no federal media shield law to protect journalists' sources because there has been no evidence of a need. No more than 17 journalists during the past 25 years have been jailed for refusing to testify before a grand jury. They were not singled out for punishment. Every American called to testify before a grand jury must cooperate or face this consequence. Nor is there any evidence that potential sources have withheld critical information from reporters because of a fear of being revealed. Just look at the examples that are regularly revealed--from Watergate to the mistreatment of soldiers at Walter Reed Medical Center. H.R. 985 creates a press ``privilege'' under which courts cannot compel reporters, tabloids, or even some professional bloggers to provide information needed to fight crime. In the 37 years since the Supreme Court ruled that the First Amendment does not shield a reporter from testifying in a grand jury proceeding, the media have had no problem exposing corruption and injustice. While confidentiality is vital to the work of a reporter, national security is essential to the preservation of a free nation. Protecting anonymous sources should never be more important than protecting the American people or solving crimes that can help save lives. Unfortunately, this bill raises serious law enforcement and national security concerns. However well-intentioned, H.R. 985 will compromise the work of the Justice Department and other federal agencies charged with crime-fighting, intelligence-gathering, and national security matters. For example, the prospective nature of some of the most important exceptions in this bill--to prevent a terrorist attack or imminent bodily harm--will not help in investigations after the attack has occurred. Under the bill, law enforcement officials could have acquired relevant information identifying a reporter's source on September 10, 2001--to prevent the terrorist attacks--but could not have acquired that same information on September 12 to track down terrorists. Similarly, officials could acquire information regarding a reporter's source to prevent the molestation of a child, but they could not get that same information to bring a sexual predator to justice after the assault. And in cases involving the identity of a reporter's source, look at the range of misconduct that falls outside the ``death or imminent bodily harm'' exception: corporate and financial crimes, human trafficking, gun and drug trafficking, gang activity, and other criminal activity that might not result in a direct risk of ``imminent death or significant bodily harm,'' even when such harm is a predictable result of the crime. This new privilege has no precedent in American legal history. All H.R. 985 does is create a privilege that allows reporters to avoid a civic duty. The bill goes beyond promoting a free press; it confers on the press a privileged position. It exempts journalists from the same responsibilities that we are all held to in the context of an investigation. And the media should be more forthcoming about their methods in promoting H.R. 985. We hear a lot from the media about the evils of lobbying and how Congress is captive to special interests. But media outlets, in a very self-serving way, are lobbying House Members to support H.R. 985 or face the consequences-- irate hometown newspaper editors and local TV and radio reporters. These media proponents are a lot like the lobbyists the media regularly criticize--those who advocate for their special interests without disclosing campaign contributions. But there is no way to quantify or report the value of a journalist's ``in-kind'' contribution--a positive editorial if the Member supports the bill--or a negative editorial if the Member opposes the bill. There is an absence of transparency and accountability here. It is unseemly, and possibly unethical, to make phone calls and write editorials in support of this bill when the motive is so clearly one of self-interest. This bill is not about protecting the public's right to know about corruption or malfeasance. It is about giving a reporter a special privilege at the expense of our national crime-fighting efforts. Also, we have a new President who has said he generally supports the legislation. But conceptual support is not an unqualified endorsement of the bill's language. We may very well benefit from listening to the President and his Attorney General about the specific text of H.R. 985. As we have seen in recent days, the President sometimes modifies his support of legislation he has previously encouraged. To illustrate, it is very possible that the Justice Department may advocate that we change a number of provisions. This may include minimizing the restrictions on disclosure of source identification, eliminating the public interest ``balancing test'' when national security is involved, and deleting the ``necessity'' standard when the government is trying to acquire information to prevent a terrorist attack. These and other changes would improve the bill. We hope the Administration and the bill supporters are open to working with us on further refinements to H.R. 985. We sympathize with journalists not wanting to reveal their sources. But as Members of Congress, we have a responsibility to see that the law enforcement and intelligence officials who keep us safe can do their jobs. H.R. 985 creates serious law enforcement and national security problems without sufficient justification. Lamar Smith. F. James Sensenbrenner, Jr. Darrell E. Issa. Steve King. Gregg Harper.