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Executive director, <i>The New York Times </i>
Let me tell you a little true story about how a reporter I knew operated. Every day he would go out and cover his beat the best way he knew and the only way he knew, by talking to people in the town about what concerned them, about the cost of living, about the feel of life, about what they thought about their leaders, about politics.
Every night that reporter went home, wrote a story and then carefully burned his notes or flushed them down the toilet. It was a pity because he knew he might forget what he couldn't write that day if he burned his notes. But he also knew the police had permission to search his files anytime.
A lot of people did not want to talk to the reporter because they felt he might reveal their names on purpose or through a slip of the typewriter. They were defenseless people and they were afraid.
The reporter never urged them to talk because he understood their fear. Others, however, did talk to the reporter precisely because they felt powerless and wanted somebody to tell the truths they knew. They accepted his word that he would suffer imprisonment before telling their names.
The government became very annoyed at this reporter. They questioned him directly about his sources and, of course, he did not respond.
A dozen or so reporters and editors have been sent to jail for no other crime than trying to protect their sources -- exactly what I did in Poland every day and for which Americans praised me.
They bugged his home and followed him wherever he went, and they searched his office and tracked his phone calls. Finally, the government got really angry and said, you can't write about us any more, you can't have access, go away. But some of the people about whom he had written and whose names he had never revealed, kissed him when he went away and gave him roses, and everybody said he was a hero, and later he was loaded with honors.
I was the reporter, and the beat I covered was Communist Poland. That was the first time I had to operate worrying about the police and courts and the first time I had to burn notes and think about going to jail. I thought it would be the last, because I resolved never again to work in a totalitarian society.
Now it is twenty years later, and I am the editor of the same newspaper for which I was a reporter in Poland. I spend my time dealing with news and with staff matters, but there is one subject that now takes up a considerable amount of my time and thoughts and that has to do with whether reporters should burn their notes, whether they are going to go to jail, what are the possibilities of a sudden police search, whether people who once talked to us will talk any more, whether other papers can be fined out of existence, whether the police will secretly commandeer our phone records to find our sources of information, whether we will be allowed to cover the administration of justice, how to get the police to reveal necessary information. New York, not Warsaw.
I do not tell you all this to imply that we have gone totalitarian or that the Republic will fall. But I do tell you that the process essential to a free press, one of the institutions that will help guarantee that we do not go totalitarian, that the Republic will not fall, is under serious attack, and not from our enemies or the enemies of freedom. That we could handle. No, it is under attack from some of the very people whose professions have helped create and strengthen a free press, some of the lawyers and judges of our country, honorable men and women who traditionally have been the philosophic allies of the free press. And it is under attack from Federal legislators and politicians who certainly do not see themselves as enemies of a free press. They just think the American press is a little too free for their tastes.
They want to prevent the press from printing certain kinds of information. They say that obviously this does not affect such respected newspapers as the Times or the Washington Post or the Boston Globe. All they're aiming at, they say, is certain nasty fringe publications. Now I happen to agree that some of their targets are indeed nasty and fringe, but it is precisely the fringes -- not just the center -- that the First Amendment was designed to protect.
Simply see what has happened in the past few years. A dozen or so reporters and editors have been sent to jail for no other crime than trying to protect their sources -- exactly what I did in Poland every day and for which Americans praised me. Others are now under orders to reveal sources or face jail. The courts have permitted newsrooms to be searched. Thousands of memoranda and files have been subpoenaed in different actions around the country. One large newspaper--our own--has been fined hundreds of thousands of dollars. Now every small newspaper lives under the threat of being fined into bankruptcy at the decision of a judge. Laws erected by state governments to protect the reporter's right to work freely have been destroyed by some courts.
Many judges have decided that reporters can be barred from essential parts of the court process, pretrial hearings, which constitute so important a part of the administration of justice. Other courts have placed severe restraints on participants in the judicial process, preventing press and public from finding out what is going on. A wall of judicial protection has been built around information held by the police behind which they can operate in relative secrecy.
In more and more cases, courts have upheld the principle of prior restraint, that is preventing the press from publishing what it feels should be published. Until a few years ago this was unthinkable.
And in case after case, by demanding notes and files and sending reporters to jail for not revealing sources, courts in effect have ruled that they have the power to enforce publication of what reporters and editors feel should not be published, because the information is either confidential or simply inaccurate, untrustworthy, or damaging to innocent people, just raw material.
In totality courts now have ruled themselves overseers of essential decision-making processes of the free press that the First Amendment was designed to safeguard from government encroachment--what to publish, when to publish, how to operate, what to think.
To understand why all this is so important to the press and the public, it is necessary to understand not only the law, but the nature of news and how it is gathered. And newspaper people have not succeeded in giving the public a real understanding of the news process.
Virtually all the news that is printed in newspapers or broadcast on TV is official news. That is, it is information disseminated by one governmental or business or professional source or another.
A President makes a speech, a legislator introduces a bill, a company issues an earnings statement, an investigative body issues a report, a consumer group demands action, a union strikes, a government department asks for money, a civil rights group protests discrimination. It is news that the prime mover or central subject usually wants printed. Now, this kind of news is extremely important and essential to an informed citizenry.
In totalitarian societies, most of what we would consider official news is secret. In our country our leading institutions and figures disseminate news because it is in their interest to do so, and their interest often includes the pressures and need to inform the public and engage in a public dialogue. That is part of the contract of freedom.
But it is still official news. There is another kind of news--news that institutions or leaders or professions or organizations do not want made public.
"Confidentiality is a last resort for a good reporter."
It can be as big as the Pentagon Papers or Watergate or CIA violations or as small as minor chicanery within a city council, or questionable business ethics in a manufacturing company or even conflict of interest in a newspaper.
Most often this information is held by dissidents, people who feel they cannot afford to be identified with its publication. Sometimes they volunteer the information, sometimes the reporter comes across it in the course of inquiry or because of a trusted relationship with the source.
A dissident need not be a radical or a shadowy operator with a hot story to tell. A dissident can be an ambassador who thinks administration policy is wrong and wants it known but not at the price of his own immediate retirement.
A four-star general can dissent with the chief of staff and a clerk who sees waste can dissent with his government department chief.
What binds all dissidents together is the fact that they hold information that is of public interest but which either out of self interest or fear they will not make public if they are to become known as the source-that is, unless they are guaranteed confidentiality. Confidentiality is a last resort for a good reporter. She or he makes every effort to name his sources, because the source is an important part of information and lends strength to the story. He resorts to the so-called anonymous source only as a matter of last resort.
The press is usually portrayed as some huge all-powerful machine strip-mining the defenseless government of its secrets.
The fact is that only a small part of any newspaper or television program daily or over the year contains information uncomfortable to government or institutions--too small a part. But without press confidentiality, the dissident information would vanish and the press would become a handout press.
I do not think there is a plot against the press on the part of the courts. I do think that there is a resentment against the press that comes from many things. I do feel that most of that resentment comes from the virtues rather than the failures of the press--the unpleasant virtues of telling the people the truth about Vietnam, Watergate, corruption in government, or in business, the aggressiveness and cantankerousness which are part of our makeup and function.
We annoy the hell out of people. And we have our faults, by God, we have our faults. There are scores of publications I wouldn't read, let alone work for. And there are a few for which I have loathing and contempt.
But there is a difference between resenting the press and even loathing it, and trying to control it.
The First Amendment was written not to protect the press from the admiration of government but from the loathing of government--all branches of government.
Courts and the press are involved, it seems to me, in two philosophic differences. One is that some judges feel that it is incumbent upon them to protect what the government says is the national security of the United States. National security usually turns out to be a matter of political or diplomatic interest or plain embarrassment. The price of prior restraint,, a fancy way of saying judicial censorship, strikes me as a very expensive price indeed to pay to save government face.
Remember what the government said would happen if we published the Pentagon Papers? National calamity, revelation of state secrets, disaster upon disaster. The government position was a fraud and the government, I believe, knew it.
Here is a quote that might interest you: "One shudders to think of what our future would be like if The New York Times had not exposed a policy of mistakes and misdeed and published the Pentagon Papers." That quotation comes from the then Vice President of the United States, Walter Mondale, about a year ago in Kansas City, about ten years after we published the Pentagon Papers.
More important to most judges and lawyers is the issue of access and confidentiality in relation to a fair trial. An ambiguous decision by the Supreme Court on court closing, called Gannett versus De Pasquale, created a great deal of confusion, and for awhile judges were closing trials right and left. Later, the Richmond Newspapers versus Virginia decision clarified that somewhat, but still allowed judges to close pre-trial hearings.
That may not sound like much except when you realize that about eighty-nine percent of all indictments are settled before the case ever comes to a full trial. Without access to pre-trial hearings, the press and the public lose access to the heart of the whole judicial process.
I do not believe that the issue is one of a fair trial versus a free press, and I do not believe that the First and Sixth Amendments need ever be in true conflict. Let me read to you what Hans Linde, a Justice of the Oregon State Supreme Court had to say: "The supposed conflict between the constitutional right to a fair trial and a free press rests on a simple fallacy. There are often genuine conflicts among competing objectives and individual interests, and I do not minimize their importance. We can even speak of competing rights, but not of conflicting constitutional rights. For what is a constitutional right? It is a claim that runs against the government--usually not a claim that the government do something for you or me, but that it refrain from doing something to us. The Constitution prescribes how government is to behave and how not. The Constitution does not make rules for private persons, unless they act on behalf or in lieu of a government. Only a government can violate a constitutional command."
If a judge believes that the actions of the press may violate a defendant's rights, the remedy is not to wipe out the First Amendment by barring the press or eliminating its requirements for confidentiality and access, but simply by using his powers to strengthen the Sixth Amendment--by control of the courthouse, by continuation or change of venues, by sequestration of jurors and witnesses, by instructions to jurors--and even by freeing defendants.
Surely better that a guilty man go free than the First Amendment be repealed.
The most controversial of the incidents involving conflict between a reporter and the courts was the Farber case. Millions of words have been written about it by now, but I will only go into it briefly.
On May 17, 1978, a subpoena was issued to The New York Times and its reporter Myron Farber for all notes, all records, all memoranda, all correspondence, all recordings of all interviews with all witnesses for the prosecution and all witnesses for the defense in a murder trial taking place in New Jersey.
The subpoena called for the production of more than 5,000 documents--that is an estimate. No justification was presented other than a single affidavit by the defense lawyer saying that it was his belief that something in the files would be helpful to the defense.
No attempt was made to show that even a single document in those thousands was relevant. There was no attempt to show that anything was critical to the defense. There was no attempt to show that the information could not have been obtained through other sources. It seemed, pure and simply, a fishing expedition--a diversion on the part of the attorney.
The Times, Mr. Farber, and their attorneys tried repeatedly and unsuccessfully just to obtain a hearing on the relevancy or materiality of the documents. We never got that hearing nor was the shield law which specifically protected reporters in such cases respected in any way by the courts.
What we had here was a plain attempt to divert attention from the heart of the case by making a reporter and his newspaper the defendants, a growing trend among lawyers. We never said that we would not under any circumstances turn over any of the notes. What we did insist upon was what we saw as our constitutional right to a hearing to demonstrate whether there was any relevancy or materiality in the documents. We never received such a hearing, and for insisting upon our constitutional rights, The Times was fined $287,000, and Mr. Farber spent 40 days in jail. Later courts upheld our basic position that we were entitled to a hearing but it did not apply to us.
As Judge Harold Medina once put it, any judge who knows his business and who has a stiff backbone can afford a fair trial without any invasion of the freedom of the press.
"Papers like The New York Times do not generally print the names of intelligence agents. "
In that speech of his, Judge Medina laid it pretty heavily on judges who he thought violated the First Amendment. He also laid it pretty heavily on reporters and editors and publishers who were too quick to compromise. He gave them a piece of advice: "Fight like hell every inch of the way."
Well, we are fighting, and it seems that almost every time we turn around, there is a new battle to be fought.
One had to do with the seizure of the telephone records of our Atlanta bureau by the Department of Justice. They were not investigating us, they were investigating the Ku Klux Klan, which we also had been investigating. Without informing us, or giving us a chance to fight, Southern Bell bowed to a subpoena of the Department of Justice and turned over all the records from our Atlanta bureau and from the home of our bureau chief. The purpose of the subpoena was to find out who our reporters were talking to.
This clandestine investigation of a reporter's work is a clear violation of the spirit of the First Amendment. I'm happy to say that that particular threat has been considerably eased. Because of complaints from the press and the bar, the Justice Department issued new guidelines that made unnotified seizure much less likely. Right now a new quite important threat confronts the press and will be fought out in the courts. Congress has adopted legislation that would make it a crime for newspapers to print the names of United States intelligence agents, past or present, if the newspapers had reason to believe that such printing would affect United States intelligence operations.
Now that bill is not aimed against The New York Times or The Washington Post or The Boston Globe. It is supposed to be aimed against the nasty fringes. There are a couple of publications, which indeed I consider reprehensible, which makes the practice of identifying the names of United States intelligence agents. Usually those names are no secret at all to foreign intelligence groups, but they could indeed cause trouble.
Papers like The New York Times do not generally print the names of intelligence agents. In fact, we avoid it unless we think that there's a strong public interest in doing so.
This bill strikes virtually every First Amendment lawyer as clearly unconstitutional because it would amount to legislation forbidding certain types of information, even if public, from being printed in the press.
It is not simply a theoretical matter, however important that is. The fact is if that legislation had existed, it might, for instance, have been impossible to print a large part of the Watergate story because some of the people who participated in it were indeed former CIA agents and even had connections with the CIA at the time.
It would have been totally impossible for The New York Times, for one, to conduct its current investigation of the transfer of secret communications material and weapons to the Libyans, because the people at the heart of this odious operation so damaging to the interests and honor of the United States are former CIA agents and there is every reason to suspect that people now in the CIA had knowledge of the whole sickening betrayal of American interests. Two Times reporters devoted their full time for months, travelling all around the world, tracking down this network of agents and former agents engaged in selling American interests to the Libyans. If this legislation had been in existence, that investigation would probably not have been possible. The sad but important truth that the intelligence old school tie seems to have been the connecting link in this operation to strengthen the dictator called a mad-man by our own leaders and to strengthen him at the expense of the United States would have been kept from the public.
The press is not asking for privilege. That word implies that all it amounts to is some special gift that is to be bestowed upon the press or withheld from the press at somebody's discretion--a judge or a legislature, or a policeman. No, we are not talking about the privilege of the press, but the right and ability and duty of the press to function in any meaningful sense.
Yes, this all concerns editors, reporters and publishers, but I beseech you to consider that this concerns each of you as citizens of a country based on freedom of thought and expression.
Every individual American has to ask herself or himself some questions:
Do you want a society in which newspapers have to operate under the fear of being fined to death? Do you want a society in which newspaper offices can be searched without advance hearings? Do you want a society in which the public does not know what is taking place in vital parts of the court processes?
Do you want a society in which the police process is made virtually secret?
Do you want a society that is the totality of all these things?
Please think about it. If your answer is no, I don't want that kind of society, then fight like hell every inch of the way.