Director, Reporters Committee for Freedom of the Press
Convocation Address: The State of the First Amendment
I should like to give you a report on The State of the First Amendment with particular emphasis on the whole question of editorial privacy and the protection of confidential news sources; and in order to do that let me take you back more than 200 years to the middle of the 18th century, when both the Founders of our nation and citizens in Britain were chafing at the autocracy of the British Crown, specifically the Crown’s suppression of freedom of expression.During that period, the main victims of editorial oppression were printers on both sides of the Atlantic. In order to suppress public criticism of itself, the Crown had instituted an elaborate censorship system banning anonymous handbills, licensing all printers and passing criminal sedition and criminal libel laws.
To obtain the information it needed to prosecute both the Colonial and British press, the Crown made broad use of its warrant powers whereby officers would break into printers’ shops in Boston and London, in New York and Liverpool, in order to discover who was supplying the Colonial printers with their editorial content.
Two publishers in Britain were raided, John Entick, a London printer, and John Wilkes, the editor of North Britain. Officers of the Crown rummaged through all of their files in order to find the sources of their information.
They both filed law suits challenging these surprise raids and in 1765 Lord Chief Justice Camden handed down the opinion in Entick v. Carrington and Three Other King’s Messengers, which is the great English common law landmark to our concept of personal privacy and editorial independence.
The Lord Chief Justice said: “Papers are the owner’s goods and chattels; they are his dearest property, and they are so far from enduring a seizure, that they will hardly bear an inspection; and though the eye cannot by the laws of England be guilty of a trespass, yet where private papers are removed and carried away the secret nature of those goods will be an aggravation of the trespass, and demand more considerable damages in that respect. Where is the written law that gives any magistrate such a power? I can safely answer, there is none; and therefore it is too much for us, without such authority, to pronounce a practice legal which would be subversive of all the comforts of society.”
The warrant against Mr. Wilkes, signed by Lord Halifax, similarly authorized a search of the office of “authors, printers and publishers” permitting the Crown “to seize … their papers.”
The Court of Common Pleas, in awarding Mr. Wilkes damages, said that this was “a ridiculous warrant against the whole English nation,” and Lord Coke added that it was a practice “more pernicious to the innocent than useful to the public.”
There is no doubt that every American statesman during our revolutionary and constitutional period was familiar with this monument to freedom.
The history of the Colonial printers, as Russell Wiggins has pointed out in his article, was similar to their British brethren. Licensing, criminal sedition, seditious libel and prior restraints on publication—backed up by the hated General Warrant power—were the key tools used by the Colonial governors against the printers and other critics of the government.
The Lists of Infringements and Violations of Rights drawn up by the Boston town meeting in late 1772 complained that “our houses and even our bedchambers are exposed to be ransacked, our boxes, chests and trunks broken open, ravaged and plundered” by officers of the Crown armed with warrants.
And Patrick Henry, in urging protections for individual privacy, told a meeting in Richmond that under the current law, officers (may) “go into your cellars and rooms and search and ransack and measure.”
When the Constitutional Convention convened in Philadelphia to draft the Bill of Rights, the evils of the previous four decades and the doctrine of Entick v. Carrington were reviewed. There were a number of patterns to be dealt with. Several of these patterns involved disparate individuals who were oppressed by the Crown. For example, there was the lawyer in Boston or the merchant in New York or the planter in Virginia who was prosecuted or fined for signing petitions or speaking out against the Colonial governors. For these individuals, the Framers of the Constitution established freedom of speech and the right to petition the government.
And there was the Boston merchant or the Philadelphia tradesman or the Virginia farmer forced to incriminate himself and denied counsel. To correct this problem, the framers of the Constitution established the Sixth Amendment.
In addition to individuals oppressed by government, there were two identifiable institutional groups which had been subjected to continuous persecution in the preceding 40 years—the religious dissenters and the Colonial printers. Because the Framers of the Constitution were so concerned about these two institutions—the church which did not agree with the Government’s religion and the press which did not agree with the Government’s politics—the Framers inserted specific and preferential protections in the First Amendment. They forbid the state from establishing religion; and they prohibited laws abridging freedom of the press.
In addition, they passed the Fourth Amendment to limit wholesale searches of all citizens’ papers; but it is uncontested that the Amendment obtained its historical impetus from the searches against the press. In fact, as both Mr. Justice Stewart and Mr. Justice White have noted: “The struggle from which the Fourth Amendment emerged is largely a history of conflict between the Crown and the press.”
In short, two of the Bill of Rights were intended to protect the press: the First Amendment by its specific terms and the Fourth Amendment by its historical evolution. Both amendments were aimed at insulating the institutional critics of government—the writers of handbills, the reporters, editors and publishers of newspapers, the authors of books—the press as it was constituted in those days.
1971—Å Pivotal Year: The Pentagon Papers
Now, bearing in mind the relative censorship goals of the Colonial governors and the response envisioned by the Constitution, let us go forward to the year 1971, which is in many ways a pivotal year for the situation today.
In June of that year, if you remember, for the first time in United States’ peacetime history, a newspaper of general circulation was prohibited by the courts from publishing news. The newspaper was The New York Times. The news was “The Pentagon Papers.” It is true that the Supreme Court voided the injunction. But the decision had three ominous portents.
First: the Supreme Court allowed the injunction to continue for two weeks. And it was not only against The Times, if you remember, but it also had the effect of restraining publication by The Washington Post, The St. Louis Post-Dispatch, and The Boston Globe.
Second: The 6-3 majority decision was two hundred words long and, far from offering a ringing denunciation of the injunction, was, at best, a grudging reversal.
Third: Three Supreme Court Justices, including two now on the Court, would have continued the injunction. Two additional justices, both now on the Court, voted with the majority but suggested that—instead—the government could criminally prosecute the Times and the Post for violation of the Espionage Act.
And Mr. Justice Rehnquist, who is now on the Court, was at that time an Assistant Attorney General and had advised the government that it had the power to restrain publication of the Vietnam study.
Therefore, I think the Pentagon Papers contained implicit messages—that the press was not as free an institution as we thought it was, independent of the courts; that the press was not immune from court controls on the content of news; and, despite the wording of the First Amendment that the government shall not abridge freedom of the press, the Pentagon Papers incident sent word to judges throughout the land that under some circumstances the courts may decide what the public is going to read.
In 1971, there were certain other significant legal developments affecting the press whose future importance was overlooked at the time. In April of that year, police raided a college newspaper, The Stanford University Daily, in Palo Alto, California, rummaging through all of its files; and in January of that year the Nixon administration had secretly begun to seize the telephone records of news organizations in an effort to discover their confidential news sources. We will return to these two incidents—the Stanford Daily raid and the telephone seizures—later.
Branzburg to Farber
Also, in May of 1971, the Supreme Court agreed to review the decisions of three different appellate courts—from Kentucky, Massachusetts and California—which had ruled that the First Amendment did not protect confidential news sources when reporters were called to testify before grand juries.
A year later, in June1972, the Supreme Court decided these three cases by a 5-4 vote and said that reporters could be forced to testify before grand juries because “the public interest in law enforcement” must “override” any journalist claim under the First Amendment. This ruling, said Mr. Justice White, “involves no restraint … on the type or quality of information reporters may seek to acquire.”
Now let me remind you what those three cases were about:
In the federal case, the Justice Department wanted Earl Caldwell of The New York Times to disclose the specific identity of a single person in the Black Panther party who allegedly had made a threat against the life of the President.
Kentucky prosecutors wanted Paul Branzburg of The Louisville Courier to disclose the specific identity of two or three persons he had seen making drugs.
Massachusetts prosecutors wanted Paul Pappas to disclose the specific identity of several armed militants in a storefront office.
In each case, the scope of the information sought was very narrow: specific persons. The information was apparently important to the grand jury investigation, and the information was apparently not available from other sources.
This pattern, of only piercing the First Amendment shield for specific and critical information not available from others, was generally followed by virtually every state and federal court which has dealt with the more than 50 subpoena cases that have been litigated in courts of appeal since 1972.
Peter Bridge of The Newark News, who went to jail, was asked specifically about some very limited information in a housing scandal. Will Lewis of KPFA, who went to jail twice, was asked the specific source of a Symbionese Liberation Army tape. William Farr, then of The Los Angeles Herald-Examiner, who went to jail, was asked for the specific person who supplied him with information on the Charles Manson murder case. Four reporters and editors from the Fresno, California Bee, all of whom went to jail, were asked for the specific source of grand jury information, and so forth.
Now, bearing in mind the specificity of these battles to protect the First Amendment, let me take you to May 17, 1978. A subpoena is issued to The New York Times and Mr. 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. It is a witness list that ran to over 100 persons in an investigation which took more than four months.
This subpoena did not call for the production of a specific document or even a dozen documents. It called for the production of more than 5,000 documents—virtually the entire file in this case.
And what was the justification? A single affidavit by the defense lawyer that, based on his “information and belief,” something in those files—and he was not sure what—would be helpful to the defense. And so the whole file must be turned over to the judge.
As Justice Marshall noted in his opinion in this case, there really was no showing that even a single document was relevant, no less thousands of documents. So The New York Times subpoena was extremely broad in its scope. There was no showing that the information could not have been obtained from other sources. Well, you know the result—criminal contempt and a $100,000 fine and civil contempt and $5,000 a day and 40 days in jail.
And by the way, I think it’s important to note here that Mr. Farber said that if the defense could have shown some strong relevance, if they could have shown that a document was absolutely critical, he might have been prepared to deal with them. And of course, the irony of the whole case was that after a seven-month trial it took the jury only three hours to acquit the New Jersey physician, which certainly shows that the information held by The New York Times was of no importance to the case.
At this point, persons sometimes ask: “Well, isn’t there a conflict between the First Amendment right of a free press and the Sixth Amendment right of a defendant to obtain evidence in his behalf?”
There are several answers to this query.
First: We in the press argue that we must have confidentiality in order to do our jobs; that we must be able to assure individual citizens who come to us with complaints that their identities will not be revealed. If we are converted into investigative arms of the courts—and made an appendage of government—citizens will no longer trust us and will no longer given us information, so that the First Amendment, if it has any meaning for an independent press, must mean that we cannot be converted into a government investigative agency.
There is no doubt that the Framers of the First Amendment intended that anonymous sources of information should remain secret from the government because the Crown’s efforts to identify anonymous sources of information were one of the prime Colonial censorship tools. The Framers were well aware that John Lilburne was whipped, pilloried and fined for refusing to disclose the identity of anonymous sources of books and that two Puritan ministers, John Penry and John Udal, had been sentenced to death when their identities had become known.
Confidential or anonymous sources of information played a key role in the Colonial period because the patriots knew that identifying these sources would subject them to persecution by the government. The anonymous source of The Letters of Junius is unknown to this day. Even The Federalist Papers, written in favor of the adoption of our Constitution, were signed by fictitious authors.
Considering the great importance which the Framers of the Constitution placed on the protection of confidential or anonymous sources, it seems inconceivable that the free press guarantee—as interpreted by the Supreme Court today—should exclude that privilege.
Second: Our argument for the importance of confidentiality is very similar to the argument of attorneys who state that what is told to them in confidence by their clients must remain privileged. And yet, unlike the press guarantee, there is no statement in the Constitution that the government shall not abridge the freedom of the legal profession.
So this allegedly sacred attorney-client privilege has been constructed out of whole cloth by the legal profession to protect itself. It is enforced by judges for their brethren. And yet precisely the same privilege for the press—even those passed by state law—are trampled by the courts.
If, in fact, a defendant is deprived of evidence because of a legal privilege, the courts are free to declare a mistrial. Mistrials are declared every day because the defense attorney or the prosecutors or the judge has permitted evidence to be introduced in violation of a constitutional or evidentiary rule—such as an invalidly obtained confession.
But is there an outcry from the legal establishment when one of their own brothers creates a mistrial? Is the offending judge or lawyer or prosecutor held in criminal contempt or jailed?
Of course not. But when the evidence to be excluded results from the assertion of a privilege by the press, for some reason this evidentiary question becomes a cosmic disaster for the administration of justice.
Third: Let us compare the relative merits and value to society of the two privileges. The attorney states he needs a confidentiality privilege in order to adequately represent a single individual client, for example, a particular criminal defendant in a mugging case or a civil plaintiff in an auto accident case.
But the reporter does not assert the privilege for himself or for any particular individual. He asserts it in order to bring news to the public. His use of the privilege will benefit thousands, perhaps millions, of readers and other citizens—as in Watergate—because he brings to them information about government mismanagement or crime.
Now, I believe there is something morally and constitutionally askew in the courts when they grant a privilege to protect a plaintiff in a $200 automobile negligence case but will deny—despite the First Amendment and even a state shield law—the same type of privilege to protect the public’s right to know how it is being governed.
Fourteen days after the Farber subpoena was issued, the Supreme Court decided, in the Stanford Daily case, by a 5-3 vote, that the First Amendment does not bar police from making surprise searches on news rooms and rummaging through the whole office in an effort to discover a particular document.
Once again, the court said that the First Amendment protection for confidential news sources was really no protection at all (and, by the way, this was the argument put forth by the Carter administration, too). Or, as Mr. Justice White said: We are not “convinced [today] any more than we were [in 1972] that confidential sources will disappear and that the press will suppress news because of fears of warranted searches.”
Many people in the press would certainly take issue with Mr. Justice White’s statement that the impact of a possible search warrant raid has no chilling effect on the press. Robert Healy, Executive Editor of the Boston Globe, quite recently gave a dramatic example of that chilling effect in Congressional testimony. Mr. Healy said:
“In the course of our conversation, it became clear that this person had information about a significant aspect of my first story and, while trying to answer his questions in a general way, I pressed him about meeting with me. … The caller said he needed to protect his anonymity and I assured him I would do my best to preserve it if we met. … This morning the same person called, again from a pay phone. … the caller said his superiors had told him that I could not protect his anonymity because of ‘the new law,’ which (it became clear) referred to the recent Supreme Court ruling that permits issuance of search warrants on newspaper offices. Again I told him we would do our best to preserve his anonymity and after some more conversation about the subject of my first story and his involvement, the caller said he might call again some time.”
That is the end of the memo. It says more than perhaps anything I can say about the chilling effect of the Supreme Court’s new decision.”
Of course, as many of you realize, the great evil of the search warrant power is its complete lack of notice. The police just appear at the door and may use any reasonable force in rummaging through the news office. At least with a subpoena you have the opportunity to oppose it in court because you have notice; but, as most of you know, with a search warrant you’re helpless.
Furthermore, the search that the police conduct in looking for this document is not limited to specific information. They can go—and have gone—through every file in the office. They do not have to show on their affidavit that the information sought is critical. All they are required to show is that there is probable cause to believe the information would be helpful. And they do not have to show on their affidavit that the information is not available from other persons.
The Reporters Committee v. AT&T
Ten weeks later, on August 11, 1978, the United States Court of Appeals in Washington ruled that, in the hope of discovering some information which might be helpful, the government may secretly seize up to six months of telephone records of a news organization—and the home records of journalists, as well—records which show an hour-by-hour profile of every toll call contact made with every news source.
The justification for seizing six months of these telephone records—and these cases involve the Washington news offices ofThe St. Louis Post-Dispatch, The Knight-Ridder Newspapers, The New York Times, and the home telephones of their reporters—was really that the informants were giving the press information which was embarrassing at that time to the Nixon Administration.
* * * * * *
So we started out in 1971 trying to protect a specific source or a specific document of importance. Seven years later we find ourselves in clear danger of losing every shred of editorial privacy and independence.
If the courts can authorize a search warrant and go through every file in your newsroom; if the courts can subpoena your entire file on a case of thousands of documents, and if the courts can secretly seize your telephone records, what is left of the concept that the government shall make no law abridging the freedom of the press?
State Shield Laws Destroyed
But there is more to this story. In that 1972 decision in the Branzburg case, as many of you may remember, Mr. Justice White said to the press—if you’d like this ruling, go out and get state shield laws.
“There is also merit in leaving state legislatures free … to fashion their own standards … with respect to the relations between law enforcement officials and the press.”
Eventually 26 states did have shield laws which in one form or another protected confidential or unpublished information. And what has happened? The courts have now started to destroy the state shield laws by inventing loopholes or simply voiding them.
In California, in the Farr case, the courts ruled that the shield law illegally interfered with the inherent power of the court to enforce a gag order. Again in California, in the Fresno Bee case, the courts ruled that the shield law unconstitutionally interfered with their inherent power to protect grand jury secrecy.
In New York, in the Attica prison case, the courts ruled that the state shield law did not apply if the reporter had witnessed a crime. In New Jersey, in the Peter Bridge case, the courts ruled that the law was not intended to cover confidential information, but only sources; in Maryland, in the Baltimore Sun case, the courts came to the opposite conclusion and said the shield law was intended to cover confidential information but not sources; and similar judicial destruction of state shield laws has occurred in Tennessee, New Mexico, and Michigan.
And then we have the New Jersey case, involved Myron Farber and The New York Times, where the court ruled that the state shield law can be voided any time a criminal defendant can allege that there may be something useful in a reporter’s file.
Secrecy in the Courts
There is another pattern developing in the courts which poses ironic contradictions. For while judges, on the one hand, are moving to restrict the news media’s protection of its information, they are also moving, on the other hand, to insulate themselves from press investigation and public comment.
As many of you now, in 1976, the Supreme Court ruled in the Nebraska Press Association case that the courts could not stop you from publishing news obtained in open court. Well, some courts had already said to themselves, in effect: “You fellows in the press can’t publish what you can’t get.” And they started issuing orders sealing proceedings, sealing documents and prohibiting participants from talking to the press.
I can go down a long line of cases of judicially imposed secrecy on what we in the press thought were public court proceedings, such as sealing all records of all cases filed in a court of public record, hearing secret witnesses, sealing off an entire criminal trial and even, here in Maine, requiring reporters to sign an agreement not to report parts of a public court proceeding as a condition for admittance into a courtroom.
But the two cases that should interest you most are now pending before the U.S. Supreme Court from the New York Court of Appeals, which is the highest court in New York, and the Pennsylvania Supreme Court.
These two decisions would permit judges to seal pre-trail proceedings any time the judge, virtually in his own discretion, thinks that information from the proceedings might prejudice the defendant’s right to a fair trial.
This type of censorship of court proceedings contains two interrelated dangers.
First: I should like you to remember that 89 percent of all indictments in this country are settled in pre-trail proceedings. So that if judges can seal pre-trial proceedings virtually at will, they can seal off from controversy and comment their own actions in 89 percent of the cases in the criminal justice system.
Second: Local judges and prosecutors are an integral part of the partisan political process. They are appointed or elected, generally with support from the local political party, and they may even run on the same ticket. To permit wholesale sealings of criminal justice proceedings will insulate prosecutors and judges from any meaningful accountability to the electorate.
In 1973, I and a number of reporters, editors and publishers issued warnings to press organizations that a confrontation was developing between the courts and the press and urging reason and moderation. I think the press has tried to be reasonable and moderate.
There have been a series of in-depth studies and discussions by all sides, including reports by a committee of the American Bar Association (the Reardon report), a special committee of the Association of the Bar of the City of New York (the Medina report), the American Newspaper Publishers Association, and a committee of the Judicial Conference of the United States. In addition, there have been a plethora of law review articles, 23 state voluntary bench-bar-press agreements and thousands of dollars and man-hours spent by news media representatives, judges, and lawyers attending dozens of state-bench-bar press conferences and scores of privately sponsored seminars every year.
And what has been the result of all this reason and moderation? The courts have authorized private memoranda and files to be subpoenaed en masse and our telephone records to be secretly seized. They have destroyed our journalist privilege laws. They have attempted to make our voluntary guidelines mandatory. They have sent our reporters to jail. They have held our editors in contempt. They have fined our publishers. And at the same time they are trying to prohibit news about themselves from being given to the public.
The conclusion seems clear: We are developing a state of mind in the judiciary of this nation which believes it is above the laws and the Constitution. And I think the time has come for the press to stop being moderate and reasonable—to look back to the response of our Colonial ancestors in the press—and to fight back with every tool at our disposal.
First and foremost I suppose this means that—as Katharine Graham of The Washington Post has said recently—we cannot become discouraged to the point where we begin “to pull back” and to “abandon some stories” and to engage in self-censorship in order to avoid subpoenas or other types of litigation. This determination means that publishers must be prepared to spend money for adequate legal representation; and that, in fact—given the volume of these threats—legal representation on First Amendment questions must be considered just as much a part of a news organization’s budget as printing costs and employee salaries.
It must be made perfectly clear to the courts that we will oppose these threats by appealing and by writing news stories about the situation in an attempt to inform the public as to how their rights are being restricted.
But there is perhaps another solution, too. Until now we have played this game and fought this battle on the turf of judges, in their courtrooms where they have the last word. Perhaps we should start thinking more about fighting on our own turf—the area of public opinion and the legislative process.
There are already, as you may know, 13 bills in Congress to reverse the Stanford Daily decision. The American Newspaper Publishers Association, The American Society of Newspaper Editors, The Reporters Committee and several other organizations have testified in favor of such legislation.
Now I know that there are some members of the press who feel it is inappropriate or dangerous to seek legislative relief. They argue that what Congress can give in terms of First Amendment-type protections, Congress could take away.
I don’t have time to answer this argument in detail except to point out that, if this argument was in fact valid, women and civil rights organizations certainly would never have asked for additional protections under the Fourteenth Amendment for rights to vote or rights to equal job opportunities. I think the short answer is, how could Congress take away a protection the courts say we don’t have anyway? Therefore, Congressional action could only be an improvement over the current situation.
In fact, something must be done and quickly to bring the courts back under control and the legislative solution is a traditional route to redress grievances. We find ourselves really in the position of others who in the past have lost battles in the courts—the people who opposed abortion, the people who opposed busing and even the publishers who supported failing newspapers.
Each one of those lost in the Supreme Court and turned to the Legislative Branch for some type of relief, because that’s the kind of checks and balances our system allows. When citizens lose in one branch, they can go to the other branch.
I started off this presentation by discussing the censorship efforts of the British Crown and the Constitutional response, moved forward 182 years to the year 1971 because it appears to be a watershed year in our views of press freedom, and then moved ahead to survey in some detail the last seven years.
It is certainly true that the press and the government have changed since the mid-18th century. Neither Madison nor Hamilton, who clashed repeatedly on the free press guarantee, could have envisioned the press we have today—with computer and satellite technology, with the great international press associations and the startling development of television news.
Nor could the Framers of the Constitution have foreseen the great changes in federal and state government, from small offices dealing primarily with a rural constituency and a sparsely populated agrarian society to the enormous technocracies of today guiding the lives of great metropolitan populations.
But despite these vast changes in the procedures of the press and the government—in the mechanics of the press bringing the news to the public and the mechanics of the government providing services to society—the principles of the First Amendment remain the same; and those principles are that the government shall not use its powers to intimidate, harass or regulate the press; and that such regulation which is permitted is well-defined and narrow, such as the laws of libel or a clear and present danger to the national security of our nation.
What I should like to argue to you now is that in fact we are facing the most serious censorship threat to the press within recent memory. Unlike the 18th century, we have no criminal libel, nor do we have a John Lilburne whipped and pilloried for refusing to disclose the source of printed material. What we have instead is the wholesale seizure of private notes and memoranda by court subpoena. Today there is no Crown licensing of the press. What we have instead is secret government inspection of news office telephone files. Today we have no criminal sedition prosecutions or high sheriffs with general warrants. What we have instead are surprise search warrant raids and rummaging almost as broad as the Colonial warrants.
In fact, as the mechanisms of government have changed, as the mechanisms of the press have changes, so the mechanisms of censorship have changed. But the effect and goals of the judicial censors today are precisely the same as the goals of the Colonial governors—to harass, to intimidate and to regulate the press in the free exercise of the printed and broadcast word.
Well, what is the state of the First Amendment regarding the independence of the press, particularly its ability to protect its unpublished information? I don’t think there is any doubt that it is under a most sustained attack and that we have, in fact, lost substantial ground since 1971. I think that recent developments are undermining its vitality and that we in the press have no choice, as uncomfortable as this may be, but to fight back.