The Constitution of the United States provides: “Congress shall make no law … abridging the freedom of speech, or of the press.” These two rights form the bedrock of our democracy by ensuring the free flow of information to the public.
Sadly, today the free and independent press in America is under fire. In recent years, more than 40 journalists have been subpoenaed, questioned or held in contempt for failure to reveal their confidential sources. For a journalist, maintaining an assurance of confidentiality to a source is sometimes the only way to bring forward news of great consequence to our nation. Being forced to reveal a source chills reporting of the news and restricts the free flow of information to the public.
Not long ago, a reporter’s assurance of confidentiality was unquestionable. That assurance led to sources that willingly provided information to journalists who brought forward news of great consequence to our nation. Recent stories such as the conditions at Walter Reed Army Medical Center and the abuse of steroids in baseball never would have been published were it not for confidential sources and the dogged persistence of a free and independent press.
As a conservative who believes in limited government, I believe the only check on government power in real time is a free and independent press. A free press ensures the flow of information to the public, and in this time of scandal and corruption in high places, such information is needed now more than ever to hold the government accountable.
In order to maintain our free and independent press, I authored the Free Flow of Information Act with Congressman Rick Boucher of Virginia. The bill, also known as a federal media shield bill, provides a qualified privilege of confidentiality to journalists, which enables them to shield sources from disclosure except in certain situations. The bill is not about protecting journalists, it’s about protecting the public’s right to know.
We introduced the bill on May 2, 2007, and by Oct. 16, 2007, it had passed the House of Representatives by an overwhelming bipartisan margin of 398-21. We were pleased to earn the support of Republican and Democrat leadership, the chairmen and ranking members of the Intelligence and Armed Services committees, and many other leaders in the House.
The bill received such wide bipartisan support because of the measures we added to address very real and legitimate concerns about how a privilege for journalists could impact national security. The federal government, tasked with the tremendous responsibility of protecting this great nation, must always keep national security concerns at the forefront. The Free Flow of Information Act does just that.
Critics of the bill will point to concerns about national security. However, the bill only provides a qualified privilege, meaning disclosure of a source’s identity may be required in certain situations. The foremost of those situations is when national security is involved. The bill permits compelled disclosure to prevent or identify the perpetrator of an act of terrorism against the United States or its allies, to prevent significant and specified harm to national security, or in cases that involve the unauthorized disclosure of classified information that caused or will cause significant and articulable harm to national security.
In all such cases, a judge will determine whether the public interest in compelling disclosure of the source outweighs the public interest in gathering or disseminating news or information. Overall, the bill strikes a reasonable balance between the public’s right to know and the fair administration of justice. And, in striking that balance, it puts national security concerns first.
Many Americans who assume that the fining and imprisonment of journalists is something confined to tyrannical regimes will be surprised to learn that the United States does not have a federal law on the books to prevent that from occurring. While opposed by the attorney general of the United States, more than three-fourths of state attorneys general have written Congress in support of a federal media shield bill. In fact, 49 states and the District of Columbia have already recognized a journalist’s privilege to protect confidential sources from disclosure. And, both presumptive nominees for the presidency have announced their support for a federal media shield law.
Despite this broad support, the bill has not yet been brought up for a vote in the Senate. I believe at this moment sufficient bipartisan majorities exist in the Congress to enact this bill this year. All that now remains is for the Senate to take up the bill, and I earnestly hope they will do so this summer.
Long ago, Thomas Jefferson warned that, “Our liberty cannot be guarded but by the freedom of the press, nor that limited without danger of losing it.” Jefferson’s words hold true today, and passage of the Free Flow of Information Act is necessary not only to explicitly and fully provide for the freedom of the press in our nation, but also to protect our liberty and that of future generations of Americans. With the bipartisan support of my colleagues in Congress and our presidential candidates, I believe we can and we must seize this opportunity to put a stitch in this tear in the First Amendment freedom of the press. Our forefathers and our posterity demand no less.
Mike Pence is a Republican congressman from Indiana.