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Reporters' Privilege Legislation S. HRG. 109–1030 REPORTERS’ PRIVILEGE LEGISLATION: ISSUES AND IMPLICATIONS HEARING BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED NINTH CONGRESS FIRST SESSION JULY 20, 2005 Serial No. J–109–31 Printed for the use of the Committee on the Judiciary ( U.S. GOVERNMENT PRINTING OFFICE 46–018 PDF WASHINGTON : 2009 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001 VerDate Aug 31 2005 10:03 Jan 15, 2009 Jkt 046018 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 S:\GPO\HEARINGS\46018.TXT SJUD1 PsN: CMORC COMMITTEE ON THE JUDICIARY ARLEN SPECTER, Pennsylvania, Chairman ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts JON KYL, Arizona JOSEPH R. BIDEN, JR., Delaware MIKE DEWINE, Ohio HERBERT KOHL, Wisconsin JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin JOHN CORNYN, Texas CHARLES E. SCHUMER, New York SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois TOM COBURN, Oklahoma DAVID BROG, Staff Director MICHAEL O’NEILL, Chief Counsel BRUCE A. COHEN, Democratic Chief Counsel and Staff Director (II) VerDate Aug 31 2005 10:03 Jan 15, 2009 Jkt 046018 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\46018.TXT SJUD1 PsN: CMORC C O N T E N T S STATEMENTS OF COMMITTEE MEMBERS Page Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, pre- pared statement ................................................................................................... 97 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 2 prepared statement .......................................................................................... 98 Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1 WITNESSES Abrams, Floyd, Partner, Chaill, Gordon & Reindel, LLP, New York, New York ....................................................................................................................... 17 Cooper, Matthew, White House Correspondent, Time Magazine Inc., Wash- ington, D.C. ........................................................................................................... 10 Dodd, Hon. Christopher J., a U.S. Senator from the State of Connecticut ......... 5 Levine, Lee, Founding Partner, Levine, Sullivan, Koch & Schulz, LLP, Wash- ington, D.C. ........................................................................................................... 19 Lugar, Hon. Richard G., a U.S. Senator from the State of Indiana .................... 3 Pearlstine, Norman, Editor-in-Chief, Time Inc., New New, New York ............... 13 Pence, Hon. Mike, a Representative in Congress from the State of Indiana ..... 8 Safire, William, Political Columnist, New York Times, New York, New York .. 15 Stone, Geoffrey R., Harry Kalven, Jr., Distinguished Service Professor of Law, University of Chicago Law School, Chicago, Illinois ................................ 21 QUESTIONS AND ANSWERS Responses of Floyd Abrams to questions submitted by Senators Leahy and Durbin ................................................................................................................... 43 Responses of Matthew Cooper to questions submitted by Senator Durbin ........ 51 Responses of Lee Levine to questions submitted by Senators Durbin and Leahy ..................................................................................................................... 52 Responses of William Safire to questions submitted by Senator Durbin ............ 72 Responses of Groffrey R. Stone to questions submitted by Senator Leahy ........ 75 Questions submitted to Mr. Comey by Senators Leahy and Durbin (Note: Responses to written questions were not available at time of printing.) ........ 77 SUBMISSIONS FOR THE RECORD Abrams, Floyd, Partner, Chaill, Gordon & Reindel, LLP, New York, New York, prepared statement .................................................................................... 79 Comey, James B., Deputy Attorney General, Department of Justice, Wash- ington, D.C., prepared statement ....................................................................... 85 Cooper, Matthew, White House Correspondent, Time Magazine Inc., Wash- ington, D.C., prepared statement ....................................................................... 92 Levine, Lee, Founding Partner, Levine, Sullivan, Koch & Schulz, LLP, Wash- ington, D.C., prepared statement ....................................................................... 99 Lugar, Hon. Richard G., a U.S. Senator from the State of Indiana, prepared statement .............................................................................................................. 115 Pearlstine, Norman, Editor-in-Chief, Time Inc., New New, New York, pre- pared statement ................................................................................................... 121 Pence, Hon. Mike, a Representative in Congress from the State of Indiana, prepared statement .............................................................................................. 138 Safire, William, Political Columnist, New York Times, New York, New York, prepared statement .............................................................................................. 143 (III) VerDate Aug 31 2005 10:03 Jan 15, 2009 Jkt 046018 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\46018.TXT SJUD1 PsN: CMORC IV Page Stone, Geoffrey R., Harry Kalven, Jr., Distinguished Service Professor of Law, University of Chicago Law School, Chicago, Illinois, prepared state- ment ...................................................................................................................... 148 Walden, Hon. Greg, a Representative in Congress from the State of Oregon, prepared statement .............................................................................................. 166 VerDate Aug 31 2005 10:03 Jan 15, 2009 Jkt 046018 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\46018.TXT SJUD1 PsN: CMORC REPORTERS’ PRIVILEGE LEGISLATION: ISSUES AND IMPLICATIONS WEDNESDAY, JULY 20, 2005 UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C. The Committee met, pursuant to notice, at 9:37 a.m., in room SD–226, Dirksen Senate Office Building, Hon. Arlen Specter, Chairman of the Committee, presiding. Present: Senators Specter, DeWine, Graham, Cornyn, Leahy, Kennedy, Biden, Feinstein, Feingold, Schumer, and Durbin. OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA Chairman SPECTER. Good morning, ladies and gentlemen. The Judiciary Committee will now proceed with our hearing on the journalist shield law in the context of legislation which has been introduced by Senator Lugar on the Senate side and Representa- tive Pence on the House side, and Senator Dodd has another bill. We regret the slight delay in starting these proceedings. Senator Leahy and I have been meticulous in beginning at 9:30 on the but- ton, and we are 6 minutes late this morning because of the extraor- dinary circumstances where we had to work through some prob- lems on the pending nomination of Judge Roberts. And this is a complicated day, as most days are in the Senate, but we are look- ing at a hearing which is, in my opinion, a very important hearing on what is the appropriate rule for limiting or protecting sources of journalists on grand jury investigations. Our focus here will be on whether reporters should be granted a privilege to withhold information from the Federal courts, and it arises in the celebrated case on an alleged leak where two report- ers have been held in contempt and one reporter has been jailed, as we all know. The scope of this hearing does not include the issue of the leak but the legislation which we are going to be considering. The Supreme Court of the United States in a 1972 decision, Branzburg v. Hayes, made a determination that the press’ First Amendment right to publish information does not include the right to keep information secret from a grand jury investigating a crimi- nal matter and the common law did not exempt reporters from such a duty. That, of course, leaves it within the purview of the Congress to have a reporters’ privilege if the Congress should de- cide to do so as a matter of public policy. It is worth noting that some 31 States and the District of Colum- bia have enacted statutes granting reporters some kind of privilege. (1) VerDate Aug 31 2005 10:03 Jan 15, 2009 Jkt 046018 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\46018.TXT SJUD1 PsN: CMORC 2 We are all well aware of the tremendous contribution of a free press in our society and so many lives in ferreting out wrongdoing, in exposing Government corruption, in exposing corruption in the private sector, and we are mindful of Jefferson’s famous dictum that if he had to make a choice between a Government without newspapers or newspapers without Government, he would choose newspapers without Government. So we have some very, very lofty values which are at stake here on the value of a free press and what the free press has contributed to this country contrasted with the rights of a defendant in a crimi- nal case. And one circuit, the Sixth Circuit, has suggested that it would be a denial of constitutional rights to a criminal defendant if that defendant did not have access to
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