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Letter to Congress February 2006 The Chicago
Council of Lawyers supports federal legislation that would adopt a journalist/
source privilege that applies to the federal government. We do so because
such a privilege would promote the free flow of information to the public
about the workings of the government. It would assist the press and other
media to be a watchdog on the operations of the federal government. We have
reviewed both Senate Bill 1419 and House Bill 3323 (parallel bills that
would adopt such a privilege.) We understand they would create a presumption
that information a journalist learns but does not publish, as well as
a journalist’s confidential source, should not be the subject of mandatory
disclosure, except in rare instances. We read both to give broad protection
to a journalist’s confidential source, and support that protection. The Council
also makes two suggestions on the language of these bills: In order for a source to be disclosed, there must be a showing that disclosure of a source only when it would prevent imminent and actual harm to "national security." Because the term "national security" is vague and can be read broadly, we recommend that the statutory language be "imminent and actual substantial harm to national security." Criminal
cases 1) there
are "reasonable grounds to believe that a crime has occurred," and 2) the information
sought is "essential to the investigation, prosecution or defense" of
the criminal charge. This language
would require that a criminal defendant, who seeks reporters’ documents
or information, prove that there are "reasonable grounds to believe that
a crime has occurred." Instead, the bill should provide that when a criminal
defendant seeks such information, he need only prove the second element
listed above. Gordon Waldron Chair, Chicago Council of Lawyers Civil Liberties Committee
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