The jailing of New York Times reporter Judith Miller for her refusal to testify about her confidential government sources has sparked new life in a bill drafted by conservative Rep. Mike Pence (R.-Ind.) that shields journalists from having to disclose their sources except in cases of national security.
Pence’s Free Flow of Information Act (HR 3323) would institute a federal standard–similar to laws already on the books in 31 states–that protects journalists from federal prosecutors angling to seize journalists’ notes and discover their confidential sources, as is the case with Miller. She has declined to speak to a federal grand jury about her sources relating to the outing of CIA operative Valerie Plame.
The bipartisan legislation–sponsored by Senators Richard Lugar (R.-Ind.) and Christopher Dodd (D.-Conn.) and Rep. Rick Boucher (D.-Va.) and Pence–received a hearing before the Senate Judiciary Committee on July 20. However, it faces a hurdle with the Bush Administration, which opposed the first draft of the bill. The Justice Department has yet to say where it stands on the revised version.
Pence spoke to HUMAN EVENTS Tuesday about the bill and its chances for success.
Could you explain what the Free Flow of Information Act does?
Rep. Mike Pence (R.-Ind.): Essentially, this legislation would create a qualified privilege that would permit reporters to keep their sources confidential. And only when there is an eminent threat to national security would a reporter be compelled to reveal the name of a confidential source.
It is born of my conviction that freedom of the press was enshrined in the First Amendment. Our Founders believed that the only check on government power in real time is a free and independent press, and central to the idea of a free and independent press is to have a press that would be free from the coercive power of government to compel the revealing of confidential sources, except under the most extreme circumstances.
Why are you, as a leading conservative, sponsoring a bill like this?
Pence: I’ve never been a journalist, but I’ve worked around journalists in my years in radio and television. I came to see journalists–left, right and center–as people who get up every day and try and do their jobs in a forthright manner. It doesn’t mean they always get it right, and the public marketplace, as CBS learned, has the ability in this information age to extract a cost when they get it woefully wrong.
For my part, as a conservative who believes in limited government, I believe our Founders added freedom of the press to the First Amendment because they saw a free and independent press as a check on government power. Because we have a Republican presidency and Republican majorities in Congress, this legislation may seem unique coming from a Republican, but I believe that protecting the freedom and independence of the press today may someday ensure that great publications like HUMAN EVENTS will be able to do their work without fear of the coercive power of government to force them to reveal confidential sources, and in so doing, dissuade people from talking to the newspaper. That to me is the larger issue here.
It’s not so much the federal government coercing the release of information that reporters have gleaned in the news gathering process, but also the chilling effect that that kind of government action has on people’s willingness to come forward with information that the public has a right to know.
What kind of reaction have you received from your conservative colleagues such as those in the Republican Study Committee?
Pence: There are some issues where you only have to think once about. This is an issue, I recognize, where you have to think twice. There’s simply no question that based on some recent profound mistakes made by the Fourth Estate that some conservatives have a pretty bitter taste in their mouth. Their first inclination might not to do something that is seen to be as supportive of the media.
But virtually, without exception, every one of my colleagues that I’ve spoken to, and who has had a chance to think twice about it, recognizes that the only check on government power in real time is a free and independent press. Preserving that and standing for that principle enshrined in the First Amendment is precisely what conservatives come to Congress to do. We’re here to support, uphold and defend the Constitution of the United States whether we’re getting good press or not.
How has the jailing of Judith Miller of the New York Times, for her refusal to reveal confidential sources, changed the dynamic of the bill?
Pence: I think it’s greatly accelerated consideration of the bill. One of my Democrat colleagues, [Rep.] Carolyn McCarthy, in the last 12 hours just recruited 20 Democrat co-sponsors, and I know that is a direct result of the Judith Miller jailing. The tragedy of seeing an American journalist, whose done nothing wrong, behind bars has resulted in a great deal more attention for this issue.
But this legislation is not really about protecting reporters. It’s about protecting the public’s right to know. If people who have information that belongs in the public domain cannot share that information with reporters, knowing their names might end up in newspapers, those same people will be much less likely to share information that the public has a right to now. They’ll be less willing to talk to HUMAN EVENTS or less willing to talk to Time magazine. This bill, as the title suggests, is about protecting the free flow of information and the public’s right to know rather than advancing the interests of journalists.
In the case of Judith Miller and Time magazine reporter Matt Cooper, would they have avoided the pressure they were under to reveal their sources had this bill been law? And if the Congress passes it and President Bush signs it, would it have any impact on that investigation as it currently stands?
Pence: I don’t know the answer to that. But I do know that Judith Miller would not be in jail and Karl Rove would not be in headlines if reporters could legally keep their sources confidential. And that’s a bit of a mouthful. It shows that no matter what side of the argument you’re on, everybody loses when reporters cannot protect confidential sources. And so how it would bear on this case, and whether or not the facts would fall within the coverage or the exceptions, I cannot say. I don’t really yet know the status of the CIA operative and the nexus between that and national security–whether that would represent an eminent threat to national security.
Why is the Justice Department opposing the bill?
Pence: The Justice Department issued a very strong statement opposing our first draft. We’re actually looking very much forward to their thorough analysis of our revised Free Flow of Information Act.
In fairness to the Department of Justice, they raised an issue that our first bill created an absolute privilege, which I think was consistent with the spirit and letter of the First Amendment that reporters ought to have an absolute privilege against revealing a name, although they may be compelled to reveal information or notes. But the Department of Justice–we have been working with them over the last six months–made a very strong case for an exception dealing with national security leaks that represent a threat to national security.
We also narrowed the scope of the bill. The department had a concern that a corporation such as General Electric could claim a journalist’s privilege simply because they own NBC. We narrowed it specifically to news gathering organizations.
Clearly, they opposed the first draft of the bill. We haven’t yet gotten a definitive read from the Department of Justice on the revised Free Flow of Information Act. We’re looking forward to continuing a dialogue.
With the August recess about to begin, what’s the next time we will see action on the bill?
Pence: We’re pushing for hearings in the House Judiciary Committee, and now that the Senate has already had a hearing, I think it’s very likely the House Judiciary Committee will go forward with a hearing. I don’t have a commitment for that, but I’m optimistic about it. Sen. Arlen Specter said he was interested in having another hearing, and I think he closed the hearing by saying he intended for the committee to pursue this concept. That’s obviously very encouraging to me as an author of the bill.
I believe that most Americans really do believe that, except in extraordinary circumstances, reporters should be able to protect the identity of confidential sources. People understand that’s part of the reporting process. Their ability to have the information to be an informed electorate is dependent on preserving and protecting the ability of reporters to have off-the-record conversations. For me, it’s been a wonderful experience to demonstrate that conservatives are every bit as committed to the Bill of Rights as liberals.