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SUNDY

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Number 76

Page Four

Sunday, February 18,1973



Freedom

of

the

Press:

Two

opinions

'There are disturbing signs which suggest that
our national commitment to a free press may
be little more than rhetorical."
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By VINCENT BLASI
S THE FREEDOM of the press real-
ly in jeopardy? Or is the jour-
nalism profession crying "wolf"?
If traditional First Amendment
freedoms are indeed on the wane,
how does one explain the continuing
high level of political dissidence? Or
the burgeoning of a robust, defiant
"counter - culture"? Has not con-
temporary literature reached heights
of sexual candor undreamed of a few
years ago? In how many eras of Am-
erican history has the underground
press flourished so well? With the ad-
vent of professional investigative re-
porting and with the depictive capa-
bilities of television news, is it not
really the case that the ordinary
.citizen is today better informed than
he has ever been about his world and
his government?
There is, I think, much reason to
believe that our press s as "free"
right now as it has ever been. But
that may not be enough. For in a
curious yet profoundly important
sense, the noble ideal represented by
the First Amendment has never real-
ly been tested in operation. And as
that fateful testing of principles
looms, there are disturbing signs
which suggest that our national
commitment to a free press, may be
little more than rhetorical.
These general observations may be'
assessed by looking specifically at the
dispute over whether reporters can
be forced to testify about information
they learn in confidence from news
sources. Until fairly recently, this
wasn't a very important problem.
Few reporters engaged in the kind of
investigative coverage of dissident
activities that would have put them
in a position to know anything of in-
terest to fact-finding tribunals. And
when the reporters did know some-
thing, . they ordinarily cooperated
with law enforcement authorities
without pausing to question the uses
to which the information would be
put. Conversely, government offic-
ials were for the most part solicitous
of Athe needs of their friends in the
working press.
In this setting, few people worried
much about what the freedom of the
press really means with regard to the
confidentiality of news sources.
NOW THE SITUATION is quite dif-
ferent. Investigative reporting is-
on the rise everywhere. So are spe-
cialized beats. Newsmen engaged in
these endeavors develop reservoirs of
background information which en-
able them to exercise much more
critical judgment on what they are
reporting. This makes for a press that
is at once more powerful, more valu-
able potentially to investigative tri-
bunals and more of a threat to the
established order.
To guarantee such a press a sub-
stantial measure of freedom and au-
tonomy is quite a different matter
than to grant these protections to the
essentially localized, unprofessional,
uncritical press of the past. Only a
society which has an abiding faith in
the principles' underlying the First
Amendment is likely to do so.
With respect to the specific legal
issue raised by press subpenas, the
Supreme Court last June handed
down a highly ambiguous decision,
phrased in tentative terms, which
seems to mean that newsmen will be
able to resist subpenas and protect
their sources only in exceptional cir-
cumstances. The court did not hold.

as has been widely assumed, that the
First Amendment offers no pro.tec-
tion whatsoever against press sub-
penas. The court's refusal at this
time to extend a wider protection to
confidential news sources is in itself

tices who subscribed to Justice
White's majority opinion gave every
indication that they have serious
misgivings about the journalism pro-
fession as it is currently constituted
and quite a limited conception of the
proper role of an independent press
in our system of government.
FOR EXAMPLE, Justice White char-
acterized the issue in the case as
whether the First Amendment should
be interpreted "to grant newsmen a
testimonial privilege that other citi-
zens do not enjoy." At several places
in the opinion he equated the func-
tions and needs of the press with
those of the general citizenry. In this

The press-subpena itself is likely
in the long run to be resolved favor-
ably to the press. It bears repeating
that the court's precise holding was
couched in tentative and ambiguous
terms. I feel confident that a news-
man's privilege will ultimately be re-
cognized once judges, legislators and
even prosecutors realize how costly to
respect for law is the spectacle of re-
spected newsmen going to jail and
how marginal are the testimonial
gains to be had by subpenaing unwill-
ing newsmen.
However, given the attitudes toward
the press that are reflected in the
majority opinion in the press subpena
case-attitudes which are no doubt
shared widely in the society-the out-
look is not so sanguine for other,
probably more important, free press
issues. What, for example, will hap-
pen when newsmen claim the right to
interview prisoners, civil servants,
armed service personnel, or other im-
portant news sources who are sub-
ject to government control? What will
happen when reporters for unpopu-

By ROGER C. CRAMTON
THE VITAL IMPORTANCE to our
society of drawing a proper bal-
ance between the encouragement of a
free and vigorous press and the fair
administration of justice is readily
apparent. There are at least six bills
pending before the subcommittee
which deal in varying, manner with
this subject. Each would create a tes-
timonial privilege on behalf of a cate-
gory of newsmen, an absolute privi-
lege under some bills and a qualified
privilege under others. The privilege
would be applicable only to federal
proceedings left to the states.
It is not surprising that the Depart-
ment of Justice, as the chief law en-
forcement agency of the federal gov-
ernment, believes that legislation that
would create an absolute privilege for
newsmen in federal proceedings
would unduly subordinate to the in-
terests of the press the vital national
interest in vigorous law enforcement.
While the Department of Justice does
not oppose in principle the creation of
a qualified privilege, we believe that
the successful experience under the
attorney general's guidelines for sub-

"Justice in a civil or criminal proceeding . .
can be assured only if relevant information is
available to the tribunal."
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"The courts crabbed view of the First Aniend-
ment reflects a disturbing insensitivity to the
critical role of an independent press ii our so-
ciety."--Justice Potter Stewart
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tablishing the guilt or inpocence of a
person suspected of a serious crime.
Usually the press and the government
are able to reach an ad hoc solution
in balancing the competing interests
involved that is reasonably satisfac-
tory to both. Only in the unusual, but
often controversial, case where the
matter cannot be resolved informally
has it been necessary to resort to
compulsory process.
Several years ago the clashes be-
tween the press and federal and state
prosecutors became somewhat more
frequent and acrimonious. It is not
surprising that the courts were called
upon to pass on the claim of the press
that the First Amendment required
either an absolute or qualified testi-
monial privilege for newsmen called
to testify before grand juries investi-
gating criminal activity. This claim
was considered and rejected by the
Supreme Court n the landmark case
of Branzburg v. Hayes. '
IN BRANZBURG, the court upheld,
5-4, that requiring newsmen to ap-
pear and testify before state and fed-
eral grand juries does not abridge the
freedom of speech and press guaran-
teed by the First Amendment if a
grand jury is conducting a good faith
inquiry into suspected criminal activ-
ity, the First Amendment does not re-
lieve a newspaper reporter of the ob-
ligation that all citizens have to res-
pond to a grand jury subpena and to
answer questions relevant to the cri-
minal investigation.

respect, Justice White seems to have
quite intentionally failed to acknowl-
edge the special role that is ordinar-
ily accorded the professional press in
democratic theory and practice. This
omission is all the more telling be-
cause the court contrasted the con-
fidentiality claim of the press inform-
er. In the latter situation, said Jus-
tice White, "the decision whether to
unmask an informer or to continue to
profit by his anonymity is in public,
not private, hands."
In fact, this public-private theme
reverberates throughout the opinion
and is the most significant indication
of the majority's thinking. Decisions
concerning the public welfare made
by professional media organizations
and their reporters are viewed as
"private - interest" in nature, where-
as decisions made by those who hold
political office are to be characteriz-
ed as "public-interest."
In a very disturbing way, this
sounds like a legalistic version of Vice
President Agnew's rhetoric. The press
is to be treated as a monolithic, ma-
nipultive, unchecked, private faction
which has acquired a dangerous
amount of power. The government is
to be considered a pluralistic, trust-
worthy representative, public-spirited
group of persons who pose no danger
because they are subject to the check
of the electorate.
Skepticism concerning the journa-
lism profession is manifested by the
court majority in several other ways
as well. While most students of the
press have lauded the trend for the
in-depth investigative reporting that
most often leads to subpena disputes,
the court described the First Amend-
ment interest as bad in news about
crime or involving undisclosed, unver-
ified sources.
In examining the available empiri-
cal data concerning the adverse im-
pact of press subpenas, the court re-
versed the traditional presumption in
favor of First Amendment valuesand
in effect placed the burden of proof
on the press. When a far-from-negli-
gible adverse effect was shown in a
survey of 975 reporters, the court dis-
missed the finding with the casual
observation that "surveys of reporters
on this topic are chiefly opinions of
predicted informant behavior and
must be viewed in the light of the
professional interest of the interview-
ees." Had the government been re-
quired to provide an empirical demon-
stration of its need to subpena news-
men it almost certainly could not
have done so.

- _ __

It has been the policy of the De-
partment of Justice to request sub-
penas in order to obtain information
held by members of the press only
when essential to a criminal or civil
investigation. As stated by Attorney
General Mitchell in 1970: "The de-
partment has always recognized the
particular sensitivity of the press in
this area, especially with regard to
confidential informants, and the spe-
cial place occupied by the press under
the Constitution." Because of those
considerations, the department has
traditionally followed the practice of
negotiating with the press prior to
the issuance of a subpena.
Consistent with this policy of nego-
tiation, and in an attempt to provide
additional. safeguards in balancing
the interests of the press and of the
government, Attorney General Mitch-
ell in August 1970 issued guidelines
-f.or subpenas to the news media.
Those guidelines provide significant
TeRegisafeguards against any use of the
subpena power which would endanger
First Amendment rights or interefer
"The department has a 1 w a y s recognized the
particular sensitivity of the press in this area,
especially with regard to confidential inform-
ants, and the special p 1 a c e occupied by the
press under the Constitution. "-Attorney Gen-
eral John Mitchell

effectively and efficiently in this
country for almost 200 years without
a reporter's privilege. Since the early
days of the republic, the newsgather-
ing process has depended in large
part on information given to report-
ers in confidence. Anonymous inform-
ants have always been faced with the
possibility that the pressure of events
will lead to revelation of their iden-
tity or the much more remote possi-
bility that a grand jury investigating
criminal activity might require the
reporter to divulge the identity of his
source. Nevertheless, despite the ex-
istence of these risks, informants have
not been deterred from providing in-
formation, tips and documents to the
press. Indeed, the flow of confiden-
tial information to the media has
continued unabated if not increased.
The power to compel information is
at its most vital and ancient import-
ance in the realm of the judicial. pro-
cess, where a person's liberty or live-
lihood may be at stake. Because new
'testimonial privileges obstruct the
search for the truth, and thereby be-
nome obstacles to the administration
of justice, courts, legislatures, and
commentators have traditionally been
opposed to their creation. Not only
may the creation of a privilege impair
the ability of the grand jury to gath-
er information to insure a fair and
correct indictment, it also may impair
the constitutional right of the defen-
dant to compel testimony in his be-
half.
THE DEPARTMENT of Justice does
not oppose in principal the crea-
tion of a qualified newsmen's privi-
lege. Indeed, similar safeguards are
contained in the attorney general's
guidelines. We sympathize with the
intent and purpose of the bills which
seek to create a qualified privilege.
The departments, however, feels
that there are four reasons why legis-
lation is unnecessary, and perhaps
unwise, at this time. First, the attor-
ney general's guidelines are a signi-
ficant indication of the federal gov-
ernment's good faith and firm policy
in this area, and they continue to
operate successfully. Second, the def-
inition and scope of a qualified privi-
lege have not been satisfactorily re-
solved. Third, the creation of a quali-
fied privilege inevitably will create
administrative difficulties for the fed-
eral courts and will further delay an
already encumbered criminal process.
Fourth, the effect of a qualified privi-
lege in insuring the free flow of in-
formation is highly questionable.
PERHAPS THE PRIMARY justifica-
tion for the enactment of a quali-
fied privilege is to assure the good
faith of the government in dealing
with the press in investigating crimi-
nal activities. There has been much
speculation about the specter of1the
government "annexing" the media as
a quasi-governmental investigatory
agency. Legitimate as this concern is,
and disastrous as its reality would be,
there are few if any indications that
we have reached such an ominous sit-
uation. Various countervailing forces
assist in preventing such an occur-
rence.
Moreover, as the Branzburg case
makes clear, the person to whom a
subpena is issued is not without judi-

cial protection under existing law.
Federal grand juries are subject to
judicial control and supenas to mo-
tions to quash. If a newsman believes
that a grand jury investigation is not
being conducted in good faith or that
it improperly interferes with First
Amendment rights, a U.S. district
court will issue an appropriate pro-
tective order on a motion to quash.
FINALLY, the Congress itself is a
countervailing force. If abuses
should develop, the Congress would

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lar news organizations seek press
passes to seek access to particular
scenes of crime, riots or disasters?
Will the free press be found to place
any limits on the Federal Communi-
cation Commission's efforts to re-
shape the broadcast media, particu-
larly by means of indirect economic
incentives and deterrents? Speaking
of the economics of communication,
might there not be a First Amend-
ment dimension to the postal rate in-
crease which looks like it may spell
the demise of several periodicals?
AS WITH THE question of press sub-
penas, for a court to find that the
free press clause of the First Amend-
ment limits the authority of govern-
ment in any of these spheres would
require a measure of interpretative
innovation. Such innovation is un-
likely to be forthcoming from a court
that at bottom seems not to share the
basic faith in a free press that was
so central to the thinking of Thomas
Jefferson, James Madison and he oth-
erm.ftfimon a ofm Rll o Ra

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penas to the news media demonstrates
that legislation is unnecessary.
There are, of course, two important
and sometimes conflicting interests in
the free press fair trial controversy
One is the right of the press to gath-
er and publish news and opinion as it
chooses. The other is the necessity for

with a vigorous and effective press.
IVHE DEPARTMENT of Justice op-
poses the creation of a news-
men's privilege that would be abso-
lute in character. There is no justifi-
cation for the creation of a new testi-
monial privilege that would permit a
newsmn hut not Athpirwit nPogR n

stand ready to enact a law granting a