The Constitution, the Press, and the Rest of Us

...If the press can’t get privileges from the courts, there’s always the Congress...

...As for an intern at the New Jersey hospital who simply grew suspicious of the deaths and decided to check into them-forget it...

...The Post called it “a more substantial contribution to the public understanding of the governmentpress conflict than almost anything else that has been said by a government official in the recent past...

...That issue is worth a closer look, since the current Supreme Court term will see a continuation, and possibly a resolution, of the conflict over the press’ claims of special privileges...

...In the Stanford decision the Court authorized police to obtain warrants to search the homes and offices of persons not suspected of criminal activity...

...Such “reforms” will be difficult to resist if the press officially acknowledges and subsidizes its dominant position by obtaining grants of exceptional rights...

...But the Farber case, I was told, was only the climax of a very bad year for the ideal of a free press, particularly in the Supreme Court...

...Stewart’s Famous Speech The, corporate view received its biggest boost in late 1974, when Supreme Court Justice Potter Stewart delivered a now-famous speech at Yale Law School...

...Sounds good so far...

...I felt these pangs of jealousy most recently while watching Myron Farber-the New York Times reporter who refused to show his notes to the judge in a murder trial-stoically puffing a pipe behind the bars of a New Jersey jail...

...It doesn’t take much time to realize that this solution simply appeases the press without accommodating the broader public interest...

...Neither Powell nor Justice Stevens have committed themselves on the issue...

...We could work instead to fashion a definition of the “press” that includes both wage-earning reporters and anyone else who chooses, in his own way, to tell the public his discoveries or views...

...It is their constitutional function, I am told, to risk official wrath, snoop out information and disclose it to the public...

...But this tactical alliance with the man-on-the-street already shows signs of weakness...

...The prospect that they will adopt Stewart’s view is real enough to attract a good supply of test cases from embattled reporters...

...Chief Justice Burger fired the first salvo in a concurring opinion tacked onto a decision on corporate political expenditures...

...If the framers of the Constitution had meant to grant the “organized press” no more rights than those individuals, Stewart continued, they would not have written separate phrases into the Bill of Rights protecting freedom “of the press” as well as “freedom of speech...

...A Small Professional Caste It is too bad that so much civil libertarian effort will continue to be spent trying to establish press rights as the rights of a small professional caste...

...So a fledgling freelance writer who looked into the New Jersey deaths would probably not get the same protection Farber would get...

...As a member of that public, all I presumably must do is stay tuned...

...This ability is concentrated in a few institutions, called the press, who alone can keep people informed...

...Lawyers nodded knowingly when Justice Powell, a darling of many established constitutional pundits, endorsed special rights of press access to prisons...

...The decision broke new ground in allowing such searches for all evidence relating to a crime, rather than just for weapons or contraband...

...A universal approach to press rights won’t give the institutional press all the privileges it might want...

...Yet these seem like fair precautions to take before any citizen-journalist or not-is hauled in front of a judge under threat of contempt...

...The corporate theory is more than the self-serving image of the professional reporter...

...In the past, this pressure has appeared in the form of proposals like “right to reply” statutes in which a newspaper would be forced to print rebuttals to editorial criticism...

...The Constitution, the Press, and the Rest of Us by Robert M. Kaus Maybe it’s best tostartfrompersonal experience...

...But, the Times might argue, our hypothetical intern could save himself this hassle simply by phoningup Farber instead of investigating his suspicions himself...

...seem to grow into a social gulf between them and me...

...He recent1.v joined the staff of The Washington Monthly...

...And in all the areas of current First Amendment conflict, it is this universal approach, and not the corporate approach, which consistently focuses our attention on the real issues...

...Farber claimed t h a t the First Amendment and New Jersey’s shield law protected all the notes and information he accumulated while investigating 13 suspicious deaths at a New Jersey hospital...

...In these battles the corporate view has a lot going for it...

...As social visions go, this corporate ideal is nothing new...

...Is their speech so much more deserving of protection than that of an angry homeowner who attacks corruption at a city council meeting, a radical group that distributes leaflets door-to-door...

...By supporting constitutional preference for reporters, these efforts will inflate the influence of the established press while inevitably discriminating against the inquiring citizen, the sparetime scholar, and the community activist-the individuals whose speech rights Stewart belittles...

...What all these press arguments have in common is the claim that a distinct class of people called “the press” have rights not enjoyed by the general populace...

...After all, these are constitutional rights they’re talking about...

...First Amendment cases, Stewart argued, had concentrated excessively on the “rights of isolated individuals”-“the soapbox orator, the nonconformist pamphleteer, the religious evangelist...

...The Constitution traditionally has evoked a vision of citizens undifferentiated in their political roles and possessing equal measures of constitutional protection...

...or a businessman who criticizes the illegal practices of a competitor...

...Newsmen havealso argued for special rights of access to sources of government information, special protection from libel suits, and special freedom from police searches and wiretapping...

...It is hard to disagree with some ofthe press’ charges...

...Nixon’s Revenge” (Tom Wicker), of the “Hohenzollern” mentality of the Burger court which surfaced in a “reflex hostility to every attempt to hold the government to account or question its motives” (Jack Anderson...

...Students of feudalism may find it depressingly familiar...

...There is something offensive about prying secrets out of anyone’s brain...

...The issue that most of the press ignored, or at least repressed, was the elitist nature of many of its own arguments...

...Several bills have been introduced that would exempt press offices from the type of search approved in Stanford Daily...

...It is not the only way to read the First Amendment...

...Academics (who at times seek their own special rights) would be the brains in this social corpus and reporters the “eyes and ears,”leaving the rest of us to fight for the positions below the neck...

...Ofcourse, as we are constantly reminded,journalists are professionals and they usually do a pretty good job of getting out the facts...

...Newsmen, in that view, are merely citizens who use their rights every working day...

...I begin to wonder, why can’t I be a glamorous and privileged investigator...

...But the privileges journalists like Farber have claimed are so sweeping that they could not be extended to nonjournalists without opening the door to the destruction of our systemofjudicial fact-finding, depending as it does on the general obligation to testify...

...Libel suits can “chill” anyone’s urge to speak freely-and the crucial line can be drawn without granting reporters greater freedom to defame than others...

...Inalibel suit against CBS producer Barry Lando, which the Supreme Court will decide this term, an appellate court ruled that “reporters and broadcasters’’ may refuse to answer questions concerning the thought processes that guide their investigations...

...If he were required to give up his notes, he argues, future journalists would find it harder to locate sources and hence to investigate important stories...

...To prevent this sort of abuse, we should define more carefully thecircumstances under which judges can compel testimony, or authorize those methods only in investigations of the gravest offenses...

...The Court’s view,” wrote Charles Seib in ?he Washington Post, “seems to be t h a t the First Amendment’s guarantee of a free press is little more than a nod by the Framers of the Constitution in the direction of theidea that a free flow of information is vital to self-government...

...However, the tendency to explain it away as the idiosyncratic raving of a press-hater did not disappear until the Court dropped the real bombshell of the season a month later in the form of Stanford Daily v. Zurcher...

...Yet, probably for that very reason, I am also a bit resentful-because , in explaining their role as news-gatherers, these reporters invariably emphasize how different they a r e f r o m me...

...Who chooses these people...

...information that need not be secret is available for universal view...

...For example, antiwar campaigns in the 1960s probably were hurt by prosecutorial attempts to force those who attended clandestine meetings to testify about what they saw and heard...

...Editorial doomsaying to the contrary, a count of the ballots of the justices shows that they fell one vote short of conclusively rejecting the corporate theory...

...On the one hand, it is impressive to see anybody standing up for principle at some personal cost...

...The Corporate Vision During the past decade, it seems that every t i m e r e p o r t e r s have felt threatened by the courts, their response has been to say, in effect, “you can’t do this to us, we’re reporters...

...But wouldn’t we prefer a rule encouraging the curious probings of millions of private citizens who might sense something fishy at their jobs, or in their governments...

...As of now, the major press organizations are officially backing the approach of Senator Birch Bayh, which would protect everybody, not just newspapers...

...In his 1972 “journalist’s privilege” case, New York Times reporter Earl Caldwell argued for an immunity that would evaporate if the information sought by a court was both relevant to a legitimate inquiry and unobtainable by less intrusive means...

...Stewart concluded that the First Amendment confers special status on the press as an institution: “The publishing business is, in short, the only organized private business t h a t is given explicit constitutional protection...

...It may be easier for Congress to help out only the group yelling the loudest-the pressrather than risk the ire of law enforcement officials by enacting broader protection...

...Let’s face it, the corporate theory says, the average Joe has little opportunity either to gather information or to express his views...

...For those journalists who insist they must make absolute promises of confidentiality in order to do their jobs, reporting will inevitably be a risky occupation...

...Youcanargueabout which filesto throw open, but does anybody doubt that is the right question to ask...

...Moreover, the Court declined an open invitation to single out newsrooms as having any categorical right to less intrusive procedures...

...My feelings in this situation are inevitably mixed...

...The privileges given this broad class of “press” would be more limited than those reporters now demand, but like the traditional rights of free speech, they would be available to each and every citizen...

...One federal prosecutor, Guy Goodwin, made a career of hauling suspected radicals before grand juries and then jailing them when they refused to testify about their lives and their friends...

...While licking their wounds, newsmen knew who to blame: they were victims of “Mr...

...But its application to the First Amendment is an innovation...

...Every now and then over the past few years I have turned on my television to see an earnest reporter, standing on the steps of a courthouse, explaining his determination to go to jail rather than to reveal a confidential source...

...He also pointed out that even the most ardent defenders of special press rights, such as Nimmer, concede the historical evidence indicates “the framers”added the Press Clause merely to make sure written speech was covered along with oral speech...

...Waiting in the wings are even more ambitious schemes of state-enforced public “access” to the pages of private journals...

...The Freedom of Information Act provides a simple model for resolving this problem-legitimate secrets are to be kept secret from both press and public...

...There are a host of First Amendment cases on the Supreme Court’s docket-cases as important, as significant, as those decided last spring...

...The more the press paints itself as a small occupational group straddling the only meaningful channels of communication, the greater the pressure will be to make sure that its power is used wisely...

...yet its influence spread among the legal and journalistic establishments...

...Having a fondness for journalistic types, I would rather identify with them than the judges and prosecutors trying to coerce their testimony...

...Had Burger’s blast been written by another justice, it might have set off more shock waves than it did...

...The arguments share a particular vision of both the First Amendment and American society...

...The last ofthe “series of blows against the press” (Seib) fell when the Court ruled that the general public has no right of access to any particular information about prison conditionsand that the press has no greater right than the public...

...But the hope that the corporate view would sweep the Supreme Court without a fight was dashed in the waning months of last spring’s term...

...The professional news media would be granted a constitutional franchise to conduct investigations...

...The legal distinctions the reporters draw Robert M. Kaus wrote this article while a lawyer at the Federal Trade Commission...

...In practice, Stewart’s theory is to the established press what the “capital crisis”is toWall Street-a fancy-sounding rationale for the pursuit of special interests...

...In particular, no egalitarian version of the “newsman’s privilege” will remove the possibility that reporters will on occasion have togo tojail ifthey want to protect confidential sources...

...It was an indication of the press’ attitude toward this theme when The Washington Post-a member of the “organized press” if there ever was one-took the unusual step of reprinting Stewart’s speech on its editorial page...

...He is not a‘tjournalist’’ under any workable standard, and he would have to either reveal his contacts and notes or go directly to jail...

...The “journalist’s privilege”-the right to refuse to testify before grand juries and courts-is only the most prominent of the special rights reporters have claimed...

...The corporate approach, emphasizing the rights of the press to documents and information, would tend to create anew category of confidential data-“For Journalists’ Eyes Only”-and then impose on newsmen a blind professional obligation to pass along whatever other secrets they could lay their hands on...

...Those five included one that was “beyond understanding” (Ben Bradlee)-“the most dangerous ruling the Court has made in memory” (Howard K. Smith...

...Last spring’s decisions contained several potentially disastrous interpretations of the Bill of Rights...

...The reason is simple: with special privileges comes the justification for imposing special responsibilities...

...The Court has not yet squarely resolved,” Burger accurately asserted, “whether the Press Clause confers upon the ‘institutional press’ any freedom from government restraint not enjoyed by all others...

...In this perverse fashion, a broad journalist’s privilege could force citizens to leak to reporters rather than make inquiries on their own...

...But if those decisions had a unifying theme, it was in a series of attacks-as yet inconclusive-on the idea that the press, and the people who work in the press, enjoy constitutional protections unavailable to ordinary citizens...

...Even these setbacks, however, will probably not be enough to deter journalists who have latched onto the idea of special privileges...

...The rule of “one man, one vote” provides the classic example of the traditional “universal” approach...

...In particular, it responds to a currently popular perception of media power...

...The press must choose the ground on which it will stand-and the danger of state regulation of the print media, whether through public “access”or broad FCCstyle oversight, is too great to risk...

...Rather than clinging to a 19th-century ideal of a participative society, in which every citizen is part journalist and part scholar, we should face up to modern reality and give the press the legal tools it needs to get its job done...

...The “journalist’s privilege”question, and The New York Times’ Farber case, provide a good illustration of the impact of these different approaches...

...The Farber case is one indication that journalists haven’t abandoned broad privilege claims...

...So, while requiring the testimony of reporters raises problems, they are not problems only reporters have...

...Let their badge of professionalism be a willingness to take those risks, rather than a willingness to seek special legal privileges...

...In the three years following Stewart’s speech, the corporate theory faded from public view...

...In the long run, the corporate theory probably serves the group it seeks to protect-the established press-worst of all...

...In another field of First Amendment conflict-that of access to government information-a fixation on press rights once more obscures the basic issue: how much of what information should be kept secret...

...Indeed, the more immunity from testimony journalists demand, the more they must search for a narrow definition of “the press” in order to limit the potential impact of the privilege...

...Studentrun law reviews published articles endorsing Stewart’s analysis...

...It seemed, as respected F i r s t Amendment scholar Melville Nimmer proclaimed, that the corporate theory was “an idea whose time is past due...

...As Lyle Denniston of ?he Washington Star reported in a funereal postmortem, “Six major decisions came out, and the press clearly lost, or seemed to, in five...

...But why restrict the rule to “reporters and broadcasters...

...In another area, libel-where the Burger Court has already raised the possibility of special protection for the media-we may expect to find lawyers for the Post and Times in court bending every nuance in the direction of special privileges...

...The clash between the corporate and universalist theories may be heard in the background of most of the dramatic judicial confrontations over press rights...

...And, looking ahead, journalists saw nothing but trouble...

...Don’t I have the same right to be a reporter as they do...

...In other words, the Court treated the privacyrightsofthepublicand the press shabbily, but at least it mistreated both groups equally...

...It is a corporate vision, in the sense that it views society as a single organism in which different citizens play different roles and have different legal needs...

...It is the theory that, in broadcasting, brought us the FCC and the fairness doctrine...

...Libel cases are a third important area in which special protection forthe press is unjustified and unnecessary...

...As an ordinary citizen, I appreciated that sentiment, and it seemed to me that much of the outcry was only journalists’ anger at being stripped of their pretensions to special treatment...