H.R. 985

H.R. 985 is being considered on the floor under suspension of the rules, requiring a two-thirds majority vote for passage. This legislation was introduced by Representative Boucher (D-VA) on February 11, 2009, and referred to the House Committee on the Judiciary, which reported the bill on March 25, 2009, by voice vote.  H.R. 985 is identical to the measure (H.R. 2102) which passed the House in the 110th Congress by a vote of 398-21. 

The bill establishes new federal protections for journalists and specific criteria that federal entities must meet in order to compel a journalist to testify or to produce any documents related to information obtained or created by that journalist as part of engaging in journalism. 

The criteria that a federal entity must meet in order to compel a journalist's testimony include, for example: proving that the testimony or document sought is critical to the prosecution's investigation or proving that the testimony is necessary to prevent an act of terrorism against the United States.  Under H.R. 985, if a federal entity is not able to prove that a case involving a journalist meets all of the applicable criteria, then the federal entity may not compel the journalist to provide testimony.

H.R. 985 establishes new federal protections for journalists and states that the protections apply to a "covered person" meaning "a person who, for financial gain or livelihood, is engaged in journalism and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person."  Below, "journalist" is used in place of "covered person."

The bill establishes that in order for any federal entity to compel a journalist to testify or to produce any documents related to information obtained or created by that journalist as part of engaging in journalism, that the federal entity must meet the applicable following criteria:

*Note: The bill defines a federal entity as "an entity or employee of the judicial or executive branch or an administrative agency of the Federal Government with the power to issue a subpoena or issue other compulsory process." 

*Note: The bill defines journalism as "the gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public." 

• The federal entity seeking to compel production of the testimony or document has exhausted all reasonable alternative sources of the testimony or document;

• In a criminal investigation or prosecution, based on information obtained from a person other than that journalist, that there are reasonable grounds to believe that a crime has occurred, and the testimony or document sought is critical to the investigation or prosecution, or to the defense against the prosecution;

• The testimony or document sought is critical to the completion of a matter other than a criminal investigation or prosecution;

• In the case of testimony or a document sought that could reveal the identity of a source of information, or include any information that could reasonably be expected to lead to the discovery of the identity of a source, that disclosure of the identity of such a source is necessary to:

1. prevent an act of terrorism against the United States;
2. prevent imminent death or significant bodily harm; or
3. identify a person who has disclosed a trade secret, individually identifiable health information, or private, personal information.

• The disclosure of the identity of the source is essential to identify in a criminal investigation who a person who without authorization disclosed classified information and who at the time of such disclosure had authorized access to such information;

• Such authorized disclosure has caused or will cause significant harm to national security;

• The public interest in compelling disclosure of the information or document involved outweighs the public interest in gathering or disseminating news or information.  

Under H.R. 985, if a federal entity is not able to prove that a case involving a journalist meets all of the applicable criteria above, then the federal entity may not compel the journalist to provide testimony or any documents obtained or created by that journalist as part of engaging in journalism. 

The bill further requires that any testimony or document that is compelled by a federal entity shall not be "overbroad, unreasonable, or oppressive and, as appropriate, be limited to the purpose of verifying published information or describing any surrounding circumstances relevant to the accuracy" of published information and be "narrowly tailored in subject matter and period of time covered."

H.R. 985 establishes that in order for any federal entity to compel an information service or content provider, or telecommunications carrier to testify or to disclose a document that relates to a business transaction between that provider and a covered journalist the federal entity must first determine that they have met the conditions enumerated above and must issue notice* to the provider of the subpoena when it is issued and ensure that the provider has an opportunity to be heard before the court prior to the time at which the testimony or disclosure is compelled. 

*Note: H.R. 985 establishes an exemption to the notice requirement in the event that the court determines by clear and convincing evidence that such notice would pose a substantial threat to the integrity of a criminal investigation. 

The privileges established in H.R. 985 specifically do not apply to any person who is an agent of a foreign power or to any organization designated by the Secretary of State as a foreign terrorist organization.

Similar legislation, H.R. 2102 was introduced by Representative Rick Boucher (D-VA) on May 2, 2007.  On October 16, 2007, the House passed H.R. 2102 by a vote of 398-21.  The Republican Motion to Recommit, offered by Rep. Smith (R-TX) passed by a vote of 388-33 and is included in the text of H.R. 985 (Section 2(b)). 

49 States and the District of Columbia have adopted a judicial privilege for journalists in some form, allowing journalists to refuse to testify in some instances.  33 of those states have adopted the privilege by statute, and 16 have done so by court decision.  Furthermore, journalists have no privilege in Federal Court.   

In 1972, in the only opinion the Supreme Court has written on the subject of journalists' privilege, in the case of Branzburg v. Hayes in which a reporter was served a subpoena to reveal source information before a grand jury in a criminal investigation, the Court held that the 1^st Amendment to the Constitution does not provide even a qualified privilege for journalists to refuse "to appear and testify before state or federal grand juries." 

The Federal court of appeals cited Branzburg v. Hayes when it refused to overturn the charges of civil contempt against journalists Judith Miller and Matthew Cooper for refusing to give evidence in response to subpoenas served by Special Counsel Patrick Fitzgerald in his investigation of the disclosure of the identity of CIA agent Valerie Plame.  After the Supreme Court refused to review the decision, Matthew Cooper agreed to testify, but Judith Miller refused and served 85 days in jail until her informant, Lewis Libby, gave her permission to reveal his identity.  (CRS: RL34193)

While no CBO score exists for H.R. 985, CBO estimates that implementing similar legislation, H.R. 2102, would have no significant effect on the Federal budget.

Though Ranking Member Rep. Smith (R-TX) opposes the bill based on law enforcement and national security concerns, many Members support the bill, noting that during the past few years, more than thirty reporters have been subpoenaed or questioned in federal court proceedings about confidential sources, with several being handed or threatened with jail sentences. Such actions can have a negative effect on the willingness of reporters to rely on confidential sources and on the willingness of sources to speak to reporters. As a consequence, some Members believe that the flow of vital information to the public and the ability of policy makers to take corrective action are hindered.

Members who support the bill note that there are provisions included to provide exceptions in instances where a strong public interest compels the disclosure of source information, including to protect against crime or protect national security interests.