Transcript: Sen. John Cornyn’s remarks on the Free Flow of Information Act – Sept. 12, 2013

Partial transcript of remarks by Sen. John Cornyn (R-Texas) on the Free Flow of Information Act. The Senate Judiciary Committee hearing was held on Sept. 12, 2013:

…The bill we consider today was introduced on May 16th, three days after the Associated Press wrote to Attorney General Eric Holder to object to what it called a massive and unprecedented intrusion by the Department of Justice.

Facing mounting criticism from the abusive posture of the Department of Justice toward journalists, the White House called for this bill to be introduced.

Days after that, we learned that the Attorney General had approved a warrant application that labeled Fox News James Rosen a criminal just for doing his job.

It’s pretty clear from the timing of this that this bill was introduced as a diversion or proposed by the White House as a diversion intended to protect the President and his Attorney General, whose tactics have shocked the public and chilled the press.

The timing alone should give us pause. But the bill itself is deeply flawed.

It runs afoul of the First Amendment. It fails to protect journalists and it threatens national security.

Any carve out of a particular media for protection is in effect government licensing of legitimate media.

Let me repeat that: Any carve of a particular media for protection and special treatment is in effect government licensing of legitimate media.

The First Amendment was adopted against the English monarchy’s licensing of the press and we should be no less suspicious of this administration’s attempt to do the same thing.

Whatever definition we write can later be used to regulate different types of media differently – a dangerous proposition in a democracy founded upon freedom of the press.

And let’s be clear, this bill does not protect against either over-broad subpoenas against the Associated Press or the DOJ accusing Mr. Rosen of a felony. It will do nothing to shield the press from Department of Justice abuses that prompted its introduction.

But what it might do is endanger national security.

To address some of these problems, I’ve circulated several amendments.

I would expand the definition of covered person so that it extends to all journalists that the First Amendment would protect. After careful consideration, I’ve reached the conclusion that anything short of that would run afoul of the Constitution.

I would not protect Government employees who leak information about someone who’s not a government employee or public official. For example, this bill should not protect the IRS employee who decides to break the law and act as agents of a political party for political gain.

I would also change the bill so as to not weaken national security unnecessarily.

My amendments would improve this bill, but a new law is not what we need. We find ourselves here because of the abuses of the Department of Justice and the Attorney General.

As the New York Times reported a few weeks ago, the Attorney General himself is the architect of the administration’s abusive approach toward the press.

I hope we can all agree that under his leadership the Department of Justice has gone too far in pursuing the press, that its actions have chilled the freedom that our founders sought to protect. That’s why many consider this administration the abusive of any toward the press in modern times.

But that isn’t because the law needs to be changed. The law is not the problem.

We don’t need a new law to keep the Attorney General from prosecuting without regard to our constitutional liberties.

Thank you, Mr. Chairman.

…I think the difficulty that Sen. [Chuck] Schumer and Sen. [Dick] Durbin observe is because they seek to provide a privilege to American citizens from participating in the usual law enforcement process – investigation of crimes – whether they involve national security or otherwise.

And once you’ve made the assumption that some people should be exempt from participating in our criminal justice system as a witness and being subject to a subpoena and producing information they have in their possession or knowledge, then I think you necessarily get into this conundrum that they’ve identified…I mean this has been the issue that we’ve talked about…is who should be covered by this?

And for myself as my earlier statement indicated, I think it’s an impossible thing to do and to be consistent with the First Amendment to the United States Constitution because you have to then differentiate between the types of people that Sen. [Ted] Cruz talked about and corporate media. And so you have to say some people are privileged and not cooperate with law enforcement investigation and others are not by virtue of the fact that they’re 17-years-old and dropped out of high school and they run a blog.

And I think the idea that we’re talking about real reporters and legitimate journalists ought to be chilling to all of us. I mean, Congress is essentially going to say who’s legitimate as a journalist and who’s a real reporter and who’s not? That is licensing journalists. And that is repugnant to me under the First Amendment to the United States Constitution.

So I understand the conundrum that once you get past this idea that certain people don’t have to participate with law enforcement investigations by virtue of their status as journalists. I think that’s the fundamental problem, and I don’t think we can solve through this legislation the types of people who have to cooperate and people who don’t.

And let me just say I understand the usual out is to say, “We’ll just leave it to the courts to decide.” But I have to tell you as somebody who served as a judge for 13 years, you would look at this and say, “Well, what is the Congress doing in the first place licensing or qualifying who’s a real journalist, who’s legitimate journalist and who’s not?” I just think that’s repugnant on the First Amendment…

…I would think that Sen. [Chuck] Schumer would agree with me that the press is provided with protections under our Constitution as is with freedom of speech. This is not like a lawyer privilege or a spousal privilege. This is a constitutional protection in recognition that our democracy depends on the free flow of information and a free press.

And secondly, I would say to do nothing – the reasons why this bill was re-introduced and why the White House called for it was because of the abuses of the Justice Department with regard to the AP reporters and the Fox News correspondent, Mr. Rosen. This was offered as a way to throw a bone to those who were concerned about that but it doesn’t really address those abuses.

And so I would say that the current state of the law is that if you’re someone with knowledge or relevant information and the law enforcement official issues a subpoena to get information in your possession or knowledge that you have, you have to cooperate with them. That’s the current state of the law, and I don’t see how that is a morass.

I think Sen. [Dianne] Feinstein states the problem exactly right that by giving a privilege to certain individuals not to have to cooperate with a national security investigation or a criminal justice investigation is a real problem.

But the solution is a flawed one for the reasons I mentioned because it differentiates between the type of people who are entitled to the privilege and it leaves up to Congress – gives us – presumes that we have the authority under the Constitution to differentiate between different types of journalists and different types of speech.

And so I would say the reason I voted for the bill in a much earlier iteration years ago…not because we resolved this issue. [Overlapping audio] …I mean, we tried to resolve this covered person issue and I was never able to resolve it to my satisfaction. So it was in the spirit of moving the legislation along and continuing the conversation.

But this is not a new issue. This is one we revisited time and time again and I just don’t know how we solve it with this legislation consistent with the First Amendment.

…The status quo is that reporters have no privilege to refuse to cooperate with legitimate law enforcement investigation, and that’s been the drama we’ve seen periodically when Peter Fitzgerald, for example, issues a subpoena and the court orders the respondent to comply with the subpoena and they refuse to do so. They get held in contempt of court and the court will use the powers it has to compel the production of that testimony if it’s deemed essential to a law enforcement action.

I think the guidelines have been helpful that the Attorney General has in the sense you have to exhaust all other sources before you get there, because there is certainly a very delicate balance there between a need for a court to compel the production of relevant information in a criminal justice or national security investigation and the protection of a free press.

But this bill – again, what I think Sen. [Dianne] Feinstein stated the problem but this amendment does not solve the problem. Indeed, I believe it creates additional problems in terms of differentiating between different types of reporters and legitimate press and illegitimate press.


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One Comment on “Transcript: Sen. John Cornyn’s remarks on the Free Flow of Information Act – Sept. 12, 2013

  1. Pingback: Justice Department revises guidelines for obtaining information from journalists | What The Folly?!

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