By Rep. Ted Poe and Rep. John Conyers
"If you want a friend in Washington, get a dog.” Those were the words attributed to America’s 33rd president, Harry Truman.
Unfortunately, Truman’s words have never rung more true. Washington is more polarized than ever. That is the reality of divided government. Some issues, however, still bring Republicans and Democrats together, especially when our constitutional rights are at stake. As a conservative Texan and liberal from Michigan, we often find ourselves on opposite sides of issues, but we stand together on one important issue: enacting a federal shield law to protect reporters from being forced to disclose their confidential sources.
Current events have brought renewed urgency to the need for federal press shield legislation. On May 13, we learned that the Department of Justice had secretly subpoenaed phone records, stemming from a leak investigation, for more than 20 telephone lines of Associated Press offices and journalists over a two-month period. A week later, we learned that in connection with a leak investigation concerning a possible North Korean missile launch, the DOJ had been tracking Fox News reporter James Rosen’s dealings with the State Department and went so far as to label him a “co-conspirator” in order to access his personal emails. Such actions sent a chilling signal to both reporters and their sources.
The bipartisan Free Flow of Information Act would respond to these excesses by providing federal legislative safeguards for reporters. For the first time, instead of self-imposed DOJ regulations, there would be statutory protection, ensuring that the federal judiciary is brought in to oversee any DOJ efforts to compel journalists to reveal confidential information. The statute would protect against mandating media disclosure unless the DOJ could prove that its interest in compelling disclosure exceeded the public interest in disseminating the information.
The legislation offers strong protections to journalists. It would provide for narrow exceptions, where necessary, to prevent acts of terrorism or immediate death or bodily harm. But even in those cases, obtaining information from journalists would be a means of last resort. Our bill would also require the DOJ to notify media organizations before any subpoenas are issued unless the department can prove that delay would unnecessarily threaten its investigation.
In Congress, timing can be everything. Our bill has had bipartisan support for nearly a decade since it was first introduced by our former Judiciary Committee colleagues Mike Pence (R-Ind.) and Rick Boucher (D-Va.). The legislation passed the House by an overwhelming vote of 398 to 21 in 2007 and by a voice vote in 2009. In the wake of the furor over the WikiLeaks case, legislative momentum stalled and the bill died in the Senate. But we believe the time is now ripe for a federal shield law to be signed into law, allowing the federal government to finally join 49 out of 50 states in protecting citizen rights to a free press. This is a timely issue that will not cost the taxpayers a dime and has the support of the administration and congressional leadership.