Current legislation & the First Amendment
By Gordon T. Belt
First Amendment Center Library manager
In the 111th Congress, several bills are being considered that affect the First Amendment. The following summary provides a brief explanation of these measures and their current status. Click on each bill’s number for more information about its content and status. This article will be updated quarterly.
- H.R. 1304 — Free Speech Protection Act of 2009.
Title: “To create a Federal cause of action to determine whether defamation exists under United States law in cases in which defamation actions have been brought in foreign courts against United States persons on the basis of publications or speech in the United States.”
Sponsored by Rep. Peter King (R-N.Y.), this bill would protect American journalists and other writers from a practice known as “libel tourism,” in which plaintiffs pursue libel claims in foreign courts that offer few, if any, of the protections for speech available in U.S. courts. The Free Speech Protection Act of 2009 seeks to end this practice. A companion measure (S. 449) was introduced by the former Republican, now Democrat, Sen. Arlen Specter of Pennsylvania in February 2009.
Status: This bill was read twice and referred to the House Judiciary Committee.
- H.R. 985 — Free Flow of Information Act of 2009.
Title: “To maintain the free flow of information to the public by providing conditions for the federally compelled disclosure of information by certain persons connected with the news media.”
Rep. Frederick Boucher (D-Va.) introduced the Free Flow of Information Act, also referred to as the “media shield” law, in an effort to protect the public’s right to know by setting reasonable standards for when journalists can be compelled to disclose the identities of their confidential sources in federal court. Similar legislation passed the House overwhelmingly in 2007, but the Senate took no action on the bill. Under this bill a court could compel a journalist to reveal confidential sources to prevent an act of terrorism or significant harm to national security or to identify a terrorist; to stop imminent death or significant bodily harm; to identify someone who disclosed a trade secret, health information on individuals, or confidential financial information; or, in a criminal investigation, to identify someone who disclosed classified information. An identical bill (S. 448) is currently under consideration in the Senate.
Status: On March 31, 2009, H.R. 985 passed in the House of Representatives by voice vote. The Senate version of this bill has been referred to the Senate Judiciary Committee.
- S. 673
Title: “A bill to allow certain newspapers to be treated as described in section 501(c)(3) of the Internal Revenue Code of 1986 and exempt from tax under section 501(a) of such Code.”
This bill was introduced by Sen. Benjamin Cardin (D-Md.) in March 2009 in response to widespread layoffs and closings of newspapers across the country. The bill would allow newspapers to operate under the same Internal Revenue Service status as churches, hospitals, educational institutions, public broadcasters and other nonprofit institutions.
Newspapers turning to nonprofit status would no longer be able to make political endorsements but could report on all issues, including political campaigns. Advertising and subscription revenue would be tax-exempt, and contributions to support coverage could be tax deductible.
The bill would allow a newspaper to be tax-exempt under three conditions: (1) if it is published on a regular basis for general circulation; (2) if it contains local, national and international news stories of interest to the general public and its distribution is necessary or valuable in achieving an educational purpose; and (3) if the preparation of the material it contains follows a methodology generally accepted as educational.
Status: This bill was referred to the Senate Committee on Finance.
- H.R. 269 — Fallen Hero Commemoration Act.
Title: “A bill to require the Department of Defense to grant access to accredited members of the media when the remains of members of the Armed Forces arrive at military installations in the United States.”
Introduced by Rep. Walter Jones (R-N.C.), the Fallen Hero Commemoration Act directs the Secretary of Defense to grant access to accredited members of the news media at military commemoration ceremonies and military memorial services for members of the Armed Forces who have died on active duty and when the remains of such members arrive at U.S. military installations.
Status: In January 2009 this bill was referred to the House Committee on Armed Services.
- H.R. 429
Title: “To permit the televising of Supreme Court proceedings.”
Introduced in January 2009 by Rep. Ted Poe (R-Texas), H.R. 429 requires the Supreme Court to permit television coverage of all open sessions of the Court unless it decides by majority vote that allowing such coverage in a particular case would violate the due-process rights of any of the parties involved.
Status: This bill was referred to the House Committee on the Judiciary on Jan. 9, 2009.
- H.R. 35 — Presidential Records Act Amendments of 2009.
Title: “To amend chapter 22 of title 44, United States Code, popularly known as the Presidential Records Act, to establish procedures for the consideration of claims of constitutionally based privilege against disclosure of Presidential records.”
This bill by Rep. Edolphus Towns (D-N.Y.) would govern the right of a president to withhold certain information from the other branches of government and the public. Past presidents have issued conflicting executive orders on the issue. The bill mirrors language of President Barack Obama’s executive order and outlines a process for considering executive-privilege claims.
Status: This bill passed the House on Jan. 7, 2009, by a 359-58 vote. On April 1, 2009, the Senate Homeland Security and Governmental Affairs Committee approved the bill and reported favorably to the full Senate (as amended) by voice vote.
- H.R. 1323 — Reducing Information Control Designations Act.
Title: “To require the Archivist of the United States to promulgate regulations regarding the use of information control designations, and for other purposes.”
Sponsored by freshman Rep. Steve Driehaus (D-Ohio), H.R. 1323 was drafted in response to a recommendation from the independent Sept. 11 commission for improved government information-sharing. The House passed an identical bill (H.R. 6576) in the 110th Congress, but the Senate never considered the measure. In a press release, Driehaus said, “This is an important step in our work to make government more open, efficient, and accountable. Unclassified government information should be easy to access, but the current jumble of pseudo-classifications results in a roadblock for the public and poor information sharing among government agencies. My legislation would streamline the way we control information, helping to break down the bureaucracy between the people and their government.”
Status: On March 17, 2009, H.R. 1323 passed the House of Representatives by voice vote. The bill now awaits action in the Senate.
- H.R. 854 — Over-Classification Reduction Act.
Title: “To require the Archivist of the United States to promulgate regulations to prevent the over-classification of information, and for other purposes.”
The Over-Classification Reduction Act seeks to ensure that government documents are properly handled when they are declared classified. The bill, sponsored by Rep. William Clay (D-Mo.), would help determine criteria for what information should be considered classified and would mandate the recording of who was responsible for classifying the document. The bill also seeks to move away from a department-by-department approach to classifying information. A similar bill (H.R. 6575) passed the House of Representatives in the 110th Congress, but never became law.
As amended, the bill would require the archivist to consult with the heads of affected federal agencies and other federal entities with classification authority, as well as with state and local governments, law enforcement entities, the private sector and organizations with expertise in civil rights, employee and labor rights, civil liberties and government oversight. In addition, the bill would require agency inspectors general to randomly audit classified information, and require training programs on classification practices, among other requirements.
Status: The bill was referred to the House Oversight and Government Reform Committee, and on Feb. 11, 2009, H.R. 854 was recommended to be considered by the whole House of Representatives.
- H.R. 553 — Reducing Over-Classification Act of 2009.
Title: “To require the Secretary of Homeland Security to develop a strategy to prevent the over-classification of homeland security and other information and to promote the sharing of unclassified homeland security and other information, and for other purposes.”
Sponsored by Rep. Jane Harman (D-Calif.), the Reducing Over-Classification Act of 2009 requires the Department of Homeland Security, in consultation with the National Archives and Records Administration, to create standard classified and unclassified formats for finished intelligence products created by DHS. All finished intelligence products would be simultaneously prepared in the standard unclassified format.
The bill also directs the secretary of DHS to establish an ongoing auditing mechanism to randomly select classified information from each DHS component to assess whether applicable classification regulations have been followed, describe any problems with their administration, and recommend improvements in awareness and training to address the problems identified.
Status: On Feb. 3, 2009, H.R. 553 passed in the House of Representatives by voice vote. The bill was received in the Senate and read twice and referred to the Committee on Homeland Security and Governmental Affairs.
- S. 417 — State Secrets Protection Act.
Title: “A bill to enact a safe, fair, and responsible state secrets privilege Act.”
Introduced in February 2009 by Sen. Patrick Leahy (D-Vt.), the State Secrets Protection Act would allow judges to privately review information that the government claims is too sensitive for public dissemination. Specifically, the bill amends the federal judicial code to: (1) require a federal court to determine which filings, motions and affidavits (or portions) submitted under this act shall be submitted ex parte; (2) allow a federal court to order a party to provide a redacted, unclassified or summary substitute of a filing, motion or affidavit to other parties; and (3) require a federal court to make decisions under this act, taking into consideration the interests of justice and national security.
This bill also requires any hearing under this act to be conducted in camera. However, it prohibits an in camera hearing based on the assertion of the state-secrets privilege, if the court determines that the hearing relates only to a question of law and does not present a risk of revealing state secrets.
Status: This bill was read twice and referred to the Committee on the Judiciary.
- H.R. 1387 — Electronic Message Preservation Act.
Title: “To amend title 44, United States Code, to require preservation of certain electronic records by Federal agencies, to require a certification and reports relating to Presidential records, and for other purposes.”
The Electronic Message Preservation Act would establish regulations for the White House and other federal agencies regarding the preservation and maintenance of e-mail records. Sponsored by Rep. Paul Hodes (D-N.H.), this bill is similar to legislation that passed the House last year but was not taken up by the Senate. Under current practice, the National Archives and Records Administration works with an administration to coordinate the transfer of official records on the president’s final day in office. The transfer is mandatory under the Presidential Records Act, but NARA has no authority over how presidents maintain records during their tenure. H.R. 1387 would give NARA more authority to issue guidelines on how agencies and the White House should preserve their electronic records.
Status: In March 2009, a House panel by voice vote recommended that the bill be considered by the whole House.
A few bills were introduced in the 111th Congress that addressed the so-called Fairness Doctrine, discarded in 1987 by the Federal Communications Commission as a tool to regulate broadcasters. These bills include:
- S. 160 — District of Columbia House Voting Rights Act of 2009.
Title: “A bill to provide the District of Columbia a voting seat and the State of Utah an additional seat in the House of Representatives.”
Sponsored by Sen. Joseph Lieberman (I-Conn.), S. 160 would provide the District of Columbia a voting seat and the State of Utah an additional seat in the House of Representatives. This bill also includes an amendment barring federal regulators from re-imposing the Fairness Doctrine.
Status: This bill passed in the Senate by a roll call vote of 61-37 on Feb. 26, 2009, and now awaits consideration by the House.
- H.R. 226 — Broadcaster Freedom Act of 2009.
Title: “To prevent the Federal Communications Commission from repromulgating the fairness doctrine.”
Introduced on Jan. 7, 2009, by Rep. Mike Pence (R-Ind.), the Broadcaster Freedom Act of 2009 would prohibit the FCC from enforcing any rule that requires broadcasters who license stations from the FCC to air a variety of opinions on debates of public importance. The bill is unlikely to advance as House Speaker Nancy Pelosi (D-Calif.) and the other Democrats in the House of Representatives have stated their support of reinstating the Fairness Doctrine. Additionally, the White House has confirmed that the Obama administration is not currently pursuing a reinstatement of the Fairness Doctrine.
Status: The bill was referred to the House Committee on Energy and Commerce. Related bills include S. 62, sponsored by Sen. James Inhofe (R-Okla.), and S. 34, sponsored by Sen. Jim DeMint (R-S.C.).
FOIA and transparency in government
- S. 612 — OPEN FOIA Act of 2009.
Title: “A bill to amend section 552(b)(3) of title 5, United States Code (commonly referred to as the Freedom of Information Act) to provide that statutory exemptions to the disclosure requirements of that Act shall specifically cite to the provision of that Act authorizing such exemptions, to ensure an open and deliberative process in Congress by providing for related legislative proposals to explicitly state such required citations, and for other purposes.”
Sen. Patrick Leahy (D-Vt.) and Sen. John Cornyn (R-Texas) introduced the OPEN FOIA Act of 2009 during Sunshine Week on March 17, 2009. The bill would require Congress to openly and clearly state its intention to provide for statutory exemptions to FOIA in proposed legislation. The Senate first passed similar legislation unanimously in 2006, and Leahy and Cornyn introduced the bill in the last Congress.
Status: Read twice and referred to the Senate Judiciary Committee.
Internet and obscenity
- S. 436 — Internet Stopping Adults Facilitating the Exploitation of Today's Youth Act of 2009.
Title: “A bill to amend title 18, United States Code, to protect youth from exploitation by adults using the Internet, and for other purposes.”
Sen. John Cornyn (R-Texas) introduced the SAFETY Act in February 2009. The bill amends the federal criminal code to: (1) prohibit financial transactions in interstate or foreign commerce that facilitate access to, or the possession of, child pornography; (2) prohibit conduct by an Internet content hosting provider or email service provider that facilitates access to, or the possession of, child pornography; (3) require providers of electronic communication or remote computing services to retain certain user records for at least two years; (4) establish certain child sexual exploitation crimes as a predicate for money laundering prosecutions; (5) increase criminal penalties for sexual exploitation of children and for child pornography; and (6) establish embezzlement or theft of public property and bribery as predicates for racketeering prosecutions. An identical bill (H.R. 1076) is currently being considered in the House.
Status: In February 2009, this bill was read twice and referred to the Committee on the Judiciary.
- H.R. 780 — Student Internet Safety Act of 2009.
Title: “To amend the Elementary and Secondary Education Act of 1965 to promote the safe use of the Internet by students, and for other purposes.”
Rep. Adam Putnam (R-Fla.) introduced the Student Internet Safety Act in January 2009. This bill amends the Elementary and Secondary Education Act of 1965 to allow local educational agencies to use state subgrants under the Enhancing Education through Technology program and the Safe and Drug-Free Schools and Communities program to develop and implement programs promoting safe Internet use by students.
Status: On June 16, 2009, this bill passed in the House by roll call vote: 416 Ayes, 0 Nays, 17 Present/Not Voting. The bill now awaits action in the Senate, where it was referred to the Committee on Health, Education, Labor and Pensions.
- H.R. 231
Title: “To require certain warning labels to be placed on video games that are given certain ratings due to violent content.”
Sponsored by Rep. Joe Baca (D-Calif.), H.R. 231 requires the Consumer Product Safety Commission to issue regulations requiring that a specified warning label be placed on the packaging of any video game that is rated T (Teen) or higher by the Electronics Software Ratings Board.
Status: This bill was referred to the House Committee on Energy and Commerce in January 2009.
- H.R. 2175 — Families for ED Advertising Decency Act.
Title: “To prohibit as indecent the broadcasting of any advertisement for a medication for the treatment of erectile dysfunction, and for other purposes.”
Introduced in the last week of April by Rep. Jim Moran (D-Va.), the Families for ED Advertising Decency Act effectively bans broadcasters from airing any ads for erectile dysfunction, or "male enhancement," between 6 a.m. and 10 p.m. The bill mandates that such ads would fall under the Federal Communications Commission’s enforcement of indecency.
Status: This bill was referred to the House Committee on Energy and Commerce.
Freedom of petition
- S. 133 — Troubled Asset Relief Program Transparency Reporting Act.
Title: “A bill to prohibit any recipient of emergency Federal economic assistance from using such funds for lobbying expenditures or political contributions, to improve transparency, enhance accountability, encourage responsible corporate governance, and for other purposes.”
This bill, introduced by Sen. Dianne Feinstein (D-Calif.), bars any company or its subsidiary that received Troubled Asset Relief Program funds under the Emergency Economic Stabilization Act of 2008 from using the funds for lobbying expenditures or political donations.
Status: In January 2009 this bill was read twice and referred to the Committee on Banking, Housing and Urban Affairs.
- H.J.Res. 13
Title: “Proposing an amendment to the Constitution of the United States relating to limitations on the amounts of contributions and expenditures that may be made in connection with campaigns for election to public office.”
Sponsored by Rep. Marcy Kaptur (D-Ohio) this resolution declares that Congress shall have power to set limits on the amount of contributions that may be accepted by, and the amount of expenditures that may be made by, in support of, or in opposition to, a candidate for nomination or election to federal office. The resolution also declares that a state shall have the power to set limits on the amount of contributions that may be accepted by, and the amount of expenditures that may be made by, in support of, or in opposition to, a candidate for nomination or election to state or local office. The resolution proposes an amendment to the Constitution of the United States relating to limitations on the amounts of contributions and expenditures that may be made in connection with campaigns for election to public office.
- S. 372 — Whistleblower Protection Enhancement Act of 2009.
Title: “A bill to amend chapter 23 of title 5, United States Code, to clarify the disclosures of information protected from prohibited personnel practices, require a statement in nondisclosure policies, forms, and agreements that such policies, forms, and agreements conform with certain disclosure protections, provide certain authority for the Special Counsel, and for other purposes.”
Introduced by Sens. Daniel Akaka (D-Hawaii) and Susan Collins (R-Maine) in February 2009, the Whistleblower Protection Enhancement Act of 2009 builds upon legislation previously introduced by Akaka and Collins, the Federal Employee Protection of Disclosures Act. An identical bill was introduced in the House of Representatives by Rep. Christopher Van Hollen (D-Md.) in March 2009.
Specifically, the legislation clarifies congressional intent that federal employees are protected for any disclosure of waste, fraud or abuse — including those made as part of an employee’s job duties; suspends the U.S. Court of Appeals’ sole jurisdiction over federal employee whistleblower cases for five years, which would ensure a fuller review of a whistleblower’s claim; provides whistleblower protection for employees at the Transportation Security Administration; clarifies that whistleblowers may disclose evidence of censorship of scientific or technical information under the same standards that apply to disclosures of other kinds of waste, fraud and abuse; and bars agencies from revoking an employee's security clearance, enforcing a nondisclosure policy or investigating an employee in retaliation for a protected disclosure.
In a related measure, earlier in the year the House of Representatives introduced legislation as part of the economic stimulus bill to better protect federal workers exposing waste and abuse, but a compromise eliminated that portion of the bill from the final stimulus package signed into law by President Barack Obama in February.
Status: On March 20, 2009, the Committee on Homeland Security and Governmental Affairs referred this bill to the Subcommittee on Oversight of Government Management, the Federal Workforce and the District of Columbia. On July 29, that committee unanimously approved the bill and recommended it be considered by the whole Senate.
Telemarketing & political advertising
- H.R. 116 — Robo Calls Off Phones (Robo COP) Act.
Title: “A bill to direct the Federal Trade Commission to revise the regulations regarding the Do-not-call registry to prohibit politically-oriented recorded message telephone calls to telephone numbers listed on that registry.”
Introduced by Rep. Virginia Foxx (R-N.C.) in January 2009, the Robo COP Act directs the Federal Trade Commission to revise the National Do-Not-Call Registry provisions of the Telemarketing Sales Rule, which is currently aimed at telemarketers, to also prohibit politically oriented recorded-message calls to telephone numbers listed on the registry. This bill also defines a politically oriented recorded-message call as any “whose purpose is to promote, advertise, campaign, or solicit donations, for or against any political candidate or regarding any political issue, or uses in the recorded message any political candidate’s name.”
Status: This bill was referred to the House Committee on Energy and Commerce.
- H.J. Res. 6
Title: “Proposing an amendment to the Constitution of the United States relating to voluntary school prayer.”
Sponsored by Rep. Jo Ann Emerson (R-Mo.), this joint resolution declares that the Constitution shall not be construed to prohibit individual or group prayer in public schools or other public institutions. It also prohibits the United States or any state from requiring any person to participate in prayer or from prescribing the content of any prayer.
Status: In January 2009, this bill was referred to the House Committee on the Judiciary, and in February it was referred to the Subcommittee on the Constitution, Civil Rights and Civil Liberties.
While not having the same force of law as a bill, a resolution still has a profound effect on public policy. In the area of religious freedom, two resolutions are currently being considered by the 111th Congress:
- H. Res. 284
Title: “Expressing the sense of the House of Representatives that all Americans should participate in a moment of silence to reflect upon the service and sacrifice of members of the United States Armed Forces both at home and abroad.”
Introduced by Rep. Gary Peters (D-Mich.), this resolution expresses the sense of the House of Representatives that all Americans should participate in a moment of silence to reflect upon the service and sacrifice of members of the United States Armed Forces both at home and abroad. Another measure with identical wording was also introduced in the 111th Congress. H. Res. 256, introduced by Rep. Zack Wamp (R-Tenn.), also expresses “the sense of the House of Representatives that all Americans should participate in a moment of silence to reflect upon the service and sacrifice of members of the United States armed forces both at home and abroad.”
Status: The House Armed Services Committee referred both bills to the Subcommittee on Military Personnel.
- S.Res. 5
Title: “A resolution expressing the support for prayer at school board meetings.”
Sponsored by Sen. David Vitter (R-La.) this resolution expresses the support for prayer at school board meetings and recognizes that prayer before school board meetings is a protected act.
Status: This bill was referred to the Committee on Health, Education, Labor and Pensions.
- H.J. Res. 8
Title: “Proposing an amendment to the Constitution of the United States authorizing the Congress and the States to prohibit the act of desecration of the flag of the United States and to set criminal penalties for that act.”
Introduced in January 2009 by Rep. Jo Ann Emerson (R-Mo.), this joint resolution proposes an amendment to the U.S. Constitution declaring that Congress and the states shall have power to prohibit desecration of the U.S. flag and to set criminal penalties for such act.
Status: The resolution was referred to the House Committee on the Judiciary. An identical joint resolution (S.J. Res. 2) sponsored by Sen. David Vitter (R-La.), was read twice and referred to the Senate Judiciary Committee.
Research sources consulted in the compilation of this summary include:
Senate panel OKs expanded whistleblower protections
White House calls vote by Homeland Security and Governmental Affairs Committee 'a bipartisan breakthrough for whistleblower rights.' 07.30.09
Analysis/Commentary summary page
View the latest analysis and commentary throughout the First Amendment Center Online.
Last system update:
Monday, August 3, 2009 | 15:30:55