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Cornyn key player on proposed media shield law
The Senate Judiciary Committee is expected to vote on a bill tomorrow that for the first time would give journalists limited protection from revealing their sources in federal courts.
Open government advocates say the chances are strong that the bill will pass and head to the floor for a vote.
“I think that most of the Judiciary Committee members recognize that freedom of the press is a hollow concept without the strong protection of newsgathering that requires shielding reporters from being forced to identify confidential sources except in very rare circumstances,” said Kevin M. Goldberg, legal counsel to the American Society of Newspaper Editors.
But objections from Sen. Jon Kyl, R-Ariz., and the Justice Department could stall the bill. Kyl believes the bill would jeopardize national security.
Texas Republican Sen. John Cornyn is at the center of the debate over the bill.
Cornyn is widely viewed as a strong supporter of the media’s role informing the public about governmental malfeasance as the co-author of a bill that would make the Freedom of Information Act more responsive. Yet, Cornyn has not signaled how he will vote on the media shield bill.
Below is a Q & A with Cornyn.
Question: Former New York Times reporter Judith Miller spent 85 days in jail to protect a source for a story that was never published. More and more journalists are being ordered to expose their sources in federal court. Open government advocates say this may have a “chilling effect” on reporters’ ability to tell stories that dig deep and reveal malfeasance in government. Will you support the bill? What do you think about it?
Cornyn: The debate on S. 2035, the “Free Flow of Information Act of 2007,” is still ongoing. There was a lengthy discussion during last week’s Judiciary Committee executive business meeting, and I expect that discussion to continue this week. Many amendments have been proposed, Senators Specter and Schumer have agreed to make some changes, and there will be amendments attempting to make additional changes before we vote on final passage of the bill. Until I know how the final text reads, I do not know how I will vote.
Question: In the past, you have appeared reticent to embrace a media shield bill. Can you explain why?
Cornyn: I believe that when information can be made public, it should be made public. I oppose the government subpoenaing reporters to provide information that criminal investigators could obtain using traditional investigative means. However, I also recognize the critical importance of balancing openness with national security, which is why I do not believe reporters are entitled to an absolute privilege. It is critical that any media shield law provide exceptions for certain situations, such as a potential terrorist threat or when someone’s safety is in jeopardy. It would be imprudent to shield confidential sources at the expense of our ability to defend ourselves or investigate and prosecute serious crimes and national security risks.
In my opinion, the media shield bills that have been proposed in the Senate in the past have failed to reach an appropriate balance between maintaining the free flow of information and protecting national security. As a leading advocate of open government, I support the premise behind such legislation, which is providing a limited privilege to journalists in order to protect the public interest in news gathering and the free flow of information. I can only support a media shield bill that achieves the necessary balance between safeguarding the freedom of the press and protecting national security.
Question: You are known on the Hill for being an advocate of open government. You are the co-author with Sen. Patrick Leahy, D-Vt., of a bill that would overhaul the much beleaguered Freedom of Information Act. Why have you been so supportive of one open government initiative and yet reluctant to support another? Don’t they aim to achieve the same thing: show the public how government works?
Cornyn: I am an advocate of open government because open government provides the American people with information they need to understand how the government operates on their behalf. A robust and fair media fulfills the public’s right to know by disseminating what the government does to the people. A media shield bill achieves this goal by showing the public how government works. However, it is important to carefully consider the text of any such bill as there are numerous factors that must be considered before enacting the proposed bill, and the public interest in maintaining the free flow of information is certainly one of them. However, this legislation also affects national security interests, the prosecution and investigation of serious crimes, the ability of civil litigants to retrieve unlawfully disclosed information such as trade secrets, unlawful leaks of classified information, and the government’s ability to respond to terrorist threats. We must ensure that the media shield bill we send to the Senate floor is carefully drafted to address each of these issues.
I am a supporter of a vibrant and free press and believe that a properly written reporter privilege will facilitate the reporting of important news events. This bill is a significant improvement over previous versions, but it still has flaws that must be worked out if the Senate is going to properly balance the need to give journalists protection with both the personal and business privacy concerns implicated by this privilege and national security interests.
I am concerned that the definitions of a “covered person” and “journalism” in this bill extend the privilege to an extremely broad class of individuals and entities. Factors such as occupation, profession, nationality, or affiliation are given no consideration, and anyone, including a blogger or a social networking website, who publicly disseminates any news or information that he has regularly written or gathered on any matter of public interest constitutes a “covered person.” This expansive definition could result in significant obstacles to law enforcement and the investigation of serious crimes, and for that reason I believe it should be more narrowly tailored.
I am dedicated to promoting open government and maintaining our country’s time-honored tradition of the free flow of information. I am equally dedicated to making sure the legislation we pass does not have unintended and far reaching consequences that could harm our national security.
Question: Where does the Open Government bill stand? Do you think it will be signed into law this year?
Cornyn: As you know, the Open Government Act passed the Senate just before the August recess. I have talked to Congressman Smith, one of the lead co-sponsors in the House, and have encouraged him to work to persuade the democratic leadership to take it up and pass it. I understand there are additional changes some in the House would like to make, however, given the Senate rules that allow any member to stall or kill legislation, making those changes and sending them back to the Senate expecting Senate floor time jeopardizes passage in this Congress. My hope is that the House will pass the Senate bill and then we can work for additional FOIA changes going forward.
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