[Congressional Record Volume 160, Number 88 (Monday, June 9, 2014)]
[Extensions of Remarks]
[Pages E931-E932]
COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES APPROPRIATIONS ACT,
2015
______
speech of
HON. ALAN GRAYSON
of florida
in the house of representatives
Wednesday, May 28, 2014
The House in Committee of the Whole House on the state of
the Union had under consideration the bill (H.R. 4660) making
appropriations for the Departments of Commerce and Justice,
Science, and Related Agencies for the fiscal year ending
September 30, 2015, and for other purposes:
Mr. GRAYSON. Madam Chair, the Commerce, Justice, Science, and Related
Agencies Appropriations Act, 2015 (H.R. 4660) is an appropriations bill
that funds various Federal Government programs and entities, including
the Department of Justice and the Federal Bureau of Investigation.
My amendment reads as follows, ``None of the funds made available by
this Act may be used to compel a journalist or reporter to testify
about information or sources that the journalist or reporter states in
a motion to quash the subpoena that he has obtained as a journalist or
reporter and that he regards as confidential.''
For purposes of this amendment, the definition of a ``reporter''
includes: any person, natural person, or entity who releases, reports
on, or provides information of a classified or unclassified nature to a
public audience or on the internet, does so on a regular basis, and
receives compensation for doing so. The term ``reporter'' is a
description of a profession.
For purposes of this amendment, the definition of a ``journalist''
includes: any person, natural person, or entity who releases, reports
on, or provides information of a classified or unclassified nature to a
public audience or on the internet, and does so on a regular or an
irregular basis. The term ``journalism'' describes an act, not a
profession. A person, entity, or natural person is a journalist so long
as he or she is engaged in the act of journalism. An act of journalism
involves the collection, analysis, description, dissemination, and/or
publication of information.
James Risen, Julian Assange, Wikileaks, and Glenn Greenwald meet the
definitions of reporters and journalists under these definitions.
This amendment also prohibits the use of any funds made available by
this Act to compel testimony from any individual who is engaged in
journalism in any supporting role, such as assisting a journalist with
analysis, collection, description, dissemination, and/or publication of
information to a public audience.
Funds appropriated under this Act may not be used to compel testimony
by journalists or reporters to reveal confidential sources.
This amendment mirrors the language supplied in other federal
statutes defining journalism. For instance, the Freedom of Information
Act defines a ``representative of the news media'' as ``any person or
entity that gathers information of potential interest to a segment of
the public, uses its editorial skills to turn the raw materials into a
distinct work, and distributes that work to an audience.'' 5 U.S.C.
Sec. 552(4)(A)(ii)(IIII).
This amendment also follows the spirit of the United States Supreme
Court and Circuit Court precedents, which have widely and historically
protected the vital newsgathering function performed by journalists.
The patriot pamphleteers had no corporate affiliations, no professional
societies, and no journalism degrees. The key test is whether
individuals are engaged in news-related activities. Former Chief
Justice Warren Burger observed that adopting a narrower definition
would be ``reminiscent of the abhorred licensing system of Tudor and
Stuart England--a system the First Amendment was intended to ban from
this country.'' First National Bank of Boston v. Bellotti, 435 U.S.
765, 801 (1978) (Burger, C.J., concurring).
Early Supreme Court jurisprudence recognized a broad definition of
journalism, noting
[[Page E932]]
that the function of the press is ``performed by lecturers, political
pollsters, novelists, academic researchers, and dramatists.'' Branzburg
v. Hayes, 408 U.S. 665, 705 (1972) (Powell, J., concurring); see also
Lovell v. Griffin, 303 U.S. 444, 452 (1932) (``The liberty of the press
is not confined to newspapers and periodicals. It necessarily embraces
pamphlets and leaflets. These indeed have been historic weapons in the
defense of liberty, as the pamphlets of Thomas Paine and others in our
own history abundantly attest. The press in its connotation comprehends
every sort of publication which affords a vehicle of information and
opinion.'')
This amendment is consistent with the holdings of several federal
appellate circuits which take a functional view of journalism, defining
a reporter as an individual who engages in news-related activities to
disseminate information to an audience. For example, the First Circuit
Court of Appeals has held that reporters should be protected based on
function, rather than credentials or status. Glik v. Cunnille, 655 F.3d
78, 84 (1st Cir. 2011) (``Changes in technology and society have made
the lines between private citizen and journalist exceedingly difficult
to draw [and] news stories are now just as likely to be broken by a
blogger at her computer as a reporter at a major newspaper. Such
developments make clear why the news-gathering protections of the First
Amendment cannot turn on professional credentials or status.''); see
also Von Bulow v. Von Bulow, 811 F.2d 136, 144 (2d Cir. 1987) (``The
individual claiming the privilege must demonstrate, through competent
evidence, the intent to use material--sought, gathered or received--to
disseminate information to the public and [] such intent existed at the
inception of the newsgathering process.'').
The Second Circuit's standard, based on newsgathering function
articulated in Von Bulow, was reiterated by the Ninth and D.C. Circuit
Courts. See Shoen v. Shoen, 5 F.3d 1289, 1293 (9th Cir. 1993);
Alexander v. FBI, 186 F.R.D. 21, 50 (D.D.C. 1998). A similar bar is set
in the Tenth Circuit. Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 436-
37 (10th Cir. 1977) (concluding that a documentary filmmaker was not
precluded from the privilege because his mission was investigative
reporting for use in preparing a documentary film, regardless of the
fact that he was ``not a salaried newspaper reporter'').
Finally, this amendment is consistent with the views of First
Amendment scholars, who agree that a functional definition is most
appropriate. See generally Sonja R. West, Awakening the Press Clause,
58 UCLA L. Rev. 1025, 1065-66 (2011) (``[The functional] approach
avoids some of the pitfalls of the definition-by-affiliation
approach.''); see also Linda L. Berger, Shielding the Unmedia: Using
the Process of Journalism to Protect the Journalist's Privilege in an
Infinite Universe of Publication, 39 Houston L. Rev. 1371, 1407 (2003)
(``[N]o patriot printer or colonial pamphleteer had a journalism
degree. Certification by a government agency or by a professional group
carries the possibility of de-certification based on value judgments or
viewpoints.'').
This amendment was passed in an environment in which the Department
of Justice has increased pressure upon journalists and their sources.
Many of the nation's most respected reporters have characterized this
as an assault on press freedom that chills investigative reporting and
the public's right to know.
Recent revelations that the Department of Justice secretly subpoenaed
twenty phones lines at the Associated Press, and a legal brief filed by
the Justice Department calling a Fox News journalist a ``co-
conspirator'' for simply protecting a source, have provoked widespread,
bipartisan criticism. Many are concerned that the Department of Justice
is actively impeding newsgathering activities protected by the First
Amendment. The House of Representatives intends, by passing this
amendment, to reject this harassment of journalists by the Department
of Justice.
Moreover, recently-disclosed digital surveillance activities by the
United States government have had an inherent chilling effect on the
act of journalism and the exercise of the First Amendment. This
amendment is intended to ensure that the rights and newsgathering
activities of reporters and journalists are not chilled when uncovering
information involving or implicating the United States government or
associated institutions. Furthermore, both Congress and the President
have recognized the problem of `over-classification' of documents by
agencies across the Federal Government. If journalists are prevented
from publishing classified information, and the government classifies
enormous quantities of information that should rightfully be in the
public domain, the public is prohibited from knowing the workings of
its government. Using Federal Government resources to undermine
legitimate news-related activities or chill journalism, particularly
when those activities aim to disclose the workings of government
because that information is classified, constitutes a threat to the
self-government of the American public. Federal government attempts to
undermine legitimate news-related activities and/or chill journalism,
are prohibited by this amendment.
Finally, the act of journalism has been transformed by the internet.
New methods for uncovering and publishing newsworthy information, and
for financing such newsgathering and dissemination, are now available.
This amendment protects the ability for those who may not have
traditionally been considered journalists to engage in journalism. It
is further intended to allow for experimentation in publication and
dissemination of news without the threat of the Department of Justice
using its resources to compel the revelation of journalistic sources
through legal coercion.
This amendment is to be construed liberally and broadly, to
effectuate its purpose of protecting journalists and their sources from
any coercive action taken by the government and the legal system. Its
spirit applies to other government agencies, and to litigation between
private parties. The terms ``information or sources'' and
``confidential'' are to be given the widest possible construction. The
limitation applies not only to the quashing of subpoenas, but also to
every form of discovery, civil and criminal contempt, arrest and
imprisonment, and any form of coercion within the legal system.
____________________
[Congressional Record Volume 160, Number 82 (Thursday, May 29, 2014)]
[House]
[Pages H4968-H5016]
COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES APPROPRIATIONS ACT,
[...]
Amendment Offered by Mr. Grayson
Mr. GRAYSON. Mr. Chairman, I have an amendment at the desk.
The Acting CHAIR. The Clerk will report the amendment.
The Clerk read as follows:
At the end of the bill (before the short title), add the
following new section:
Sec._. None of the funds made available by this Act may be
used to compel a journalist or reporter to testify about
information or sources that the journalist or reporter states
in a motion to quash the subpeona that he has obtained as a
journalist or reporter and that he regards as confidential.
The Acting CHAIR. Pursuant to the order of the House of today, the
gentleman from Florida (Mr. Grayson) and a Member opposed each will
control 5 minutes.
The Chair recognizes the gentleman from Florida.
Mr. GRAYSON. Mr. Chair, I regret bringing this up at 10:30 at night.
I apologize for that because this is a weighty matter, and I think it
deserves fair consideration. I hope we are not all too tired to deny
this question the attention that it deserves.
The purpose of this amendment is to raise the possibility of a
Federal shield law that corresponds to shield law already in place in
49 States, but not at the level of the Federal Government.
A shield law is legislation designed to protect a reporter's
privilege or the right of news reporters to refuse to testify as to
information and sources of information obtained during a news gather
and dissemination process. In short, a reporter should not be forced to
reveal his or her source, and that is in fact the law in 49 States, the
only exception being Wyoming.
This has come up in court cases at the Federal level and at the
Supreme Court level, beginning with the 1972 case Branzburg v. Hayes,
which I think poses this question in the microcosm.
In that case, a reporter wanted to inform his readers about the
nature of the drug hashish, and he realized the only way to go about
that was to find and interview people who had actually used the drug
hashish, and so he did that.
After he published his article, relying upon these two confidential
sources, at that point, he was subpoenaed to provide those sources,
compromising their identity and compromising the principle of
protecting your sources.
This is an issue that comes up from time to time, often at the State
level, occasionally at the Federal level.
Some of us may remember the case of the Plame affair, the CIA leak
scandal. A reporter was asked to release the name of the person to whom
he had been perceived to leak regarding Valerie Plame. Reporters were
asked, in general: Who are your sources with regards to this leak?
One reporter, Judith Miller of The New York Times, was jailed for 85
days in 2005 for refusing to disclose her source in the government
probe.
At this point, under current law, journalists are in a quandary. They
realize the need to protect their sources. That right is recognized in
49 States, but it is not codified at the Federal level, so what I seek
to do at this late hour today is to do just that.
I think this is a very important principle, as Branzburg pointed out,
that springs from the foundation of our law. The Constitution and the
First Amendment provide for freedom of speech and of the press. It is
completely incongruous to say we have freedom of the press, but the
Federal Government can subpoena your sources and put them and you in
prison--you, if you don't comply.
This is something that should have been handled perhaps years, if not
decades ago. It falls upon us tonight, at this late hour, to try to
handle it ourselves. I respectfully submit this amendment as being a
much-needed and long-delayed clarification that the Federal Government
treats this matter no differently than 49 States now do, and therefore,
I ask for support on this amendment.
I reserve the balance of my time.
Mr. WOLF. Mr. Chairman, I move to strike the requisite number of
words.
The Acting CHAIR. The gentleman from Virginia is recognized for 5
minutes.
Mr. WOLF. I rise in opposition to the amendment. It is significant
change. The authorizers should be looking at this. This is not
something to put on an appropriation bill at 10:35 at night.
I listened to the gentleman, and a lot of what he said, I seem to
agree with, but you have to really look at this and have hearings, and
for those reasons, I urge a ``no'' vote.
Mr. GOODLATTE. Will the gentleman yield?
Mr. WOLF. I yield to the gentleman from Virginia.
Mr. GOODLATTE. I thank the gentleman for yielding. I share the
gentleman from Florida's interest and support for shield laws as well,
but I don't believe this has been carefully vetted. There are
implications here about exactly who has the right to make the
determination about whether or not funds could or could not be used.
The way the language reads suggests that maybe the reporter would have
that right, rather than a court.
To me, this is not the best way to go about doing this. We will
continue to work on shield law legislation in the House Judiciary
Committee, which has passed out forms of shield law in the past, and we
will continue to work on it.
I must oppose this amendment in these circumstances. I don't think
this is the right place to legislate something as complicated as this
issue.
Mr. WOLF. Reclaiming my time, I thank the gentleman for his comments
and think he is exactly right.
Mr. FATTAH. Will the gentleman yield?
[[Page H4997]]
Mr. WOLF. I yield to the gentleman from Pennsylvania.
Mr. FATTAH. Without claiming my own time, I just want to support the
thrust of this proposed amendment, which is that we should provide a
shield law. The idea that, in 2005, a reporter was jailed for over 85
days is wrong, and we do want to have the freedom.
We have a constitutional responsibility to protect the freedom of
press, but I agree with the chairman, we don't want to do it on an
appropriations bill at 10:30 at night. We want to make sure it is clear
what we are doing, so I oppose the amendment under those circumstances.
I thank the gentleman for yielding me this time.
Mr. WOLF. Mr. Chairman, I yield back the balance of my time.
Mr. GRAYSON. Mr. Chairman, I want to point out that the Supreme Court
decision that we are talking about here was decided in 1972. There have
already been hearings. There has been plenty of draft legislation. It
is hard enough to get anything voted on around here. It is time to vote
on this.
After 42 years since the Supreme Court first addressed this, we don't
have this body on record saying whether or not there should be a
Federal shield law. I understand the reservations that have been
expressed, but the time is now.
The reporters in this country have waited long enough. It is time to
be fair and show fealty to the First Amendment and to pass this
amendment tonight.
I yield back the balance of my time.
The Acting CHAIR. The question is on the amendment offered by the
gentleman from Florida (Mr. Grayson).
The question was taken; and the Acting Chair announced that the noes
appeared to have it.
Mr. GRAYSON. Mr. Chairman, I demand a recorded vote.
The Acting CHAIR. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by the gentleman from Florida will
be postponed.
[...]
Amendment Offered by Mr. Grayson
The Acting CHAIR. The unfinished business is the demand for a
recorded vote on the amendment offered by the gentleman from Florida
(Mr. Grayson) on which further proceedings were postponed and on which
the noes prevailed by voice vote.
The Clerk will redesignate the amendment.
The Clerk redesignated the amendment.
Recorded Vote
The Acting CHAIR. A recorded vote has been demanded.
A recorded vote was ordered.
The Acting CHAIR. This will be a 2-minute vote.
The vote was taken by electronic device, and there were--ayes 225,
noes 183, not voting 23, as follows:
[Roll No. 263]
AYES--225
Amash
Barber
Bass
Beatty
Becerra
Bentivolio
Bera (CA)
Bilirakis
Bishop (GA)
Bishop (NY)
Blumenauer
Bonamici
Brady (PA)
Braley (IA)
Broun (GA)
Brown (FL)
Brownley (CA)
Burgess
Bustos
Butterfield
Capps
Capuano
Cardenas
Carney
Carson (IN)
Cartwright
Cassidy
Castor (FL)
Castro (TX)
Chu
Cicilline
Clark (MA)
Clarke (NY)
Clyburn
Cohen
Collins (NY)
Conaway
Conyers
Cooper
Courtney
Crowley
Cuellar
Cummings
Daines
Davis (CA)
Davis, Danny
DeFazio
DeGette
Delaney
DeLauro
DelBene
Dent
Deutch
Doggett
Doyle
Duckworth
Duncan (SC)
Duncan (TN)
Edwards
Ellison
Ellmers
Engel
Enyart
Eshoo
Esty
Farenthold
Farr
Fattah
Fitzpatrick
Flores
Foster
Frankel (FL)
Franks (AZ)
Fudge
Gabbard
Gallego
Garamendi
Garcia
Gardner
Garrett
Gibbs
Gibson
Gosar
Grayson
Green, Gene
Grijalva
Gutierrez
Hahn
Hanabusa
Hanna
Harris
Heck (WA)
Higgins
Himes
Holt
Honda
Horsford
Huffman
Israel
Jackson Lee
Jeffries
Johnson, E. B.
Jones
Jordan
Kaptur
Keating
Kelly (IL)
Kennedy
Kildee
Kilmer
Kind
Kirkpatrick
Kuster
Labrador
LaMalfa
Lamborn
Langevin
Larsen (WA)
Larson (CT)
Lee (CA)
Levin
Loebsack
Lofgren
Lowenthal
Lowey
Lujan Grisham (NM)
Lujan, Ben Ray (NM)
Lummis
Lynch
Maffei
Maloney, Carolyn
Maloney, Sean
Massie
Matheson
Matsui
McClintock
McCollum
McDermott
McGovern
McNerney
Meadows
Meeks
Meng
Miller, George
Moore
Moran
Murphy (FL)
Murphy (PA)
Nadler
Napolitano
Neal
Negrete McLeod
Nolan
O'Rourke
Owens
Pallone
Pascrell
Pastor (AZ)
Payne
Pelosi
Perlmutter
Peters (CA)
Peters (MI)
Peterson
Pingree (ME)
Pocan
Poe (TX)
Polis
Posey
Price (NC)
Quigley
Reed
Richmond
Rogers (AL)
Rohrabacher
Rooney
Ross
Roybal-Allard
Runyan
Ruppersberger
Rush
Ryan (OH)
Salmon
Sanchez, Linda T.
Sanchez, Loretta
Sanford
Sarbanes
Schakowsky
Schiff
Schneider
Schrader
Schwartz
Schweikert
Scott, David
Serrano
Shea-Porter
Sherman
Sinema
Smith (NJ)
Smith (WA)
Speier
Stockman
Swalwell (CA)
Takano
Thompson (CA)
Thompson (MS)
Tiberi
Tierney
Tipton
Titus
Tsongas
Upton
Van Hollen
Vargas
Veasey
Velazquez
Visclosky
Walden
Walz
Wasserman Schultz
Welch
Westmoreland
Wilson (FL)
Yarmuth
Young (AK)
NOES--183
Aderholt
Amodei
Bachmann
Bachus
Barletta
Barr
Barrow (GA)
Barton
Bishop (UT)
Black
Blackburn
Boustany
Brady (TX)
Bridenstine
Brooks (AL)
Brooks (IN)
Buchanan
Bucshon
Byrne
Calvert
Camp
Cantor
Carter
Chabot
Coble
Coffman
Cole
Collins (GA)
Connolly
Cook
Costa
Cotton
Crawford
Crenshaw
Culberson
Davis, Rodney
Denham
DeSantis
DesJarlais
Diaz-Balart
Duffy
Fincher
Fleischmann
Fleming
Forbes
Fortenberry
Foxx
Frelinghuysen
Gerlach
Gingrey (GA)
Gohmert
Goodlatte
Gowdy
Granger
Graves (GA)
Graves (MO)
Griffin (AR)
Griffith (VA)
Grimm
Guthrie
Hall
Harper
Hastings (WA)
Heck (NV)
Hensarling
Herrera Beutler
Hinojosa
Holding
Hoyer
Hudson
Huelskamp
Huizenga (MI)
Hultgren
Hunter
Hurt
Issa
Jenkins
Johnson (GA)
Johnson (OH)
Johnson, Sam
Jolly
Joyce
Kelly (PA)
King (IA)
King (NY)
Kingston
Kinzinger (IL)
Kline
Lance
Latham
Latta
Lipinski
LoBiondo
Long
Lucas
Luetkemeyer
Marchant
Marino
McAllister
McCarthy (CA)
McCaul
McHenry
McIntyre
McKeon
McKinley
McMorris Rodgers
Meehan
Messer
Mica
Michaud
Miller (FL)
Miller (MI)
Mullin
Mulvaney
Neugebauer
Noem
Nugent
Nunes
Nunnelee
Olson
Paulsen
Pearce
Perry
Petri
Pittenger
Pitts
Pompeo
Price (GA)
Rahall
Reichert
Renacci
Ribble
Rice (SC)
Rigell
Roby
Roe (TN)
Rogers (KY)
Rogers (MI)
Rokita
Roskam
Rothfus
Royce
Ruiz
Ryan (WI)
Scalise
Schock
Scott (VA)
Scott, Austin
Sensenbrenner
Sessions
Sewell (AL)
Shimkus
Simpson
Sires
Smith (MO)
Smith (NE)
Smith (TX)
Southerland
Stewart
Stivers
Stutzman
Terry
Thompson (PA)
Thornberry
Tonko
Turner
Valadao
Wagner
Walberg
Walorski
Weber (TX)
Webster (FL)
Wenstrup
Whitfield
Williams
Wilson (SC)
Wittman
Wolf
Womack
Woodall
Yoder
Yoho
Young (IN)
NOT VOTING--23
Benishek
Campbell
Capito
Chaffetz
Clay
Cleaver
Cramer
Dingell
Green, Al
Hartzler
Hastings (FL)
Lankford
Lewis
McCarthy (NY)
Miller, Gary
Palazzo
Rangel
Ros-Lehtinen
Shuster
Slaughter
Vela
Waters
Waxman
{time} 0039
So the amendment was agreed to.
[[Page H5012]]
The result of the vote was announced as above recorded.
[...]
