Good evening, ladies and gentlemen, and
welcome to the advocates, the PBS Fight of the Week. Tonight's broadcast is
coming to you from the Assembly Chamber of the California State House here
in Sacramento, California. And tonight's debate concerns the relationship of
government and the press, and specifically our question is this: Should
newsmen be allowed to keep secret their information or their sources of
information without fear of jail? Arguing in support of that newsman's
privilege is advocate Howard Miller.
There is an attack on the freedom of the press.
Incredibly, it is putting people in jail, and it is cutting you off from
information you need to know. With me tonight, to urge a confidentiality for
the sources of newsmen, in order to protect the press and you, are United
States Congressman from the 14th District of California, Jerome Waldie, and
former reporter for the Louisville Courier-Journal now with the Detroit Free
Press, Paul Brandzburg.
Thank you, Mr. Miller. And arguing against our
proposal this evening is California Republican State Senator, John
The press is already one of the most powerful
establishments in the country. Reporters do not need any special privileges
that the rest of the citizenry do not enjoy. With me tonight to oppose this
proposal is the former District Attorney of Lane County, Oregon, Mr. William
Frye. And with him also is a witness, Mr. David Wilson, a columnist for the
Thank you, Senator Harmer, nice to have you back
with us as a guest advocate on The Advocates. Before we begin tonight's
debate, let me explain to our viewers who are watching us at home why they
are not seeing our previously scheduled program on the lettuce boycott.
After considerable deliberation, representatives of the United Farm Workers
have decided that they cannot participate in such a program until the
Supreme Court of the United States hands down a decision in a major case
involving a dispute between the farm workers and the Teamsters Union.
Because of the obvious critical importance of the presence of the farm
workers and their leadership in a discussion of the lettuce boycott problem,
we have had to delay that program. Now, when the Supreme Court of the United
States does hand down a decision in that case, however, we expect to bring
you both sides of that complex and hotly contested question.
However, it's especially appropriate this evening that we
are here in California debating the question of newsmen's privilege instead.
While the issue is of great concern to people all over the nation and in
every state, at this very moment, California newsman William Farr is
residing in the Los Angeles County Jail where he has been incarcerated for
refusing a court order to disclose his sources for a story he did on the
Charles Manson murder trial. Farr is the second newsman in the past several
months who has chosen jail rather than chosen to disclose confidential
sources of information. And on the horizon are several cases in which other
reporters may confront precisely the same choice.
Recently, the United States Supreme Court has ruled that
newsmen do not have a Constitutional privilege to refuse to disclose
information, at least in the case of a grand jury which is investigating
crime. But the Supreme Court decision does not prohibit or preclude the
Congress or state legislatures from providing such protection for newsmen by
statute; and, in fact, a number of states have, for some time, had such
protective statutes. The problem is that they vary in the degree of immunity
they give a newsman; and, of course, some states have no such protective
legislation. And, for that reason, several bills are now before Congress
which would deal with this problem of the privilege of newsmen to refuse to
disclose information or their sources.
We consider tonight one of those proposals, one of those
bills before Congress, a proposal that would prevent any court, grand jury,
legislature, or administrative body, from requiring a person employed by the
news media or the press to disclose any information or the source of any
information gathered for publication or for broadcast. That's the question
before us this evening, and, Mr. Miller, the floor is yours.
Within the past two months, two newsmen, William
Farr and Peter Bridge, have been put in jail, not because they committed any
crime but because they committed a contempt. They refused to disclose the
sources of their important news stories, even though those stories would
never have been written if they couldn't have given assurance to their
sources they would remain confidential. Three other newsmen, Earl Caldwell
of New York, Paul Pappas of Massachusetts, and Paul Brandzburg of Kentucky
and Michigan who is with us tonight, face similar jail sentences. Within the
past 18 months, the House of Representatives threatened and, by the
narrowest margin of four votes, refused to find in contempt and perhaps
imprison Dr. Frank Stanton of CBS because he wouldn't disclose information
and film that CBS had. Within the past two years, Neil Sheehan of the New
York Times has been investigated by a grand jury. Mike Wallace and Daniel
Schorr, television reporter, have been subjected to executive examination.
And within the past two years, the Justice Department has argued before the
Supreme Court that the President has the right to abridge the flow of
information whenever he deems it's in the national interest. Is that just an
attack on the press? The aim is at the press, but the victim is you and your
right to get the information you need.
The central part of the attack is on the newsman's right to
conceal his source, a right he has always assumed he had and that many
states explicitly give him. And the answer -to protect the press and to
protect you and your right to receive the news is a statute granting newsmen
immunity from having to testify about their sources before Congressional
committees, before the Executive Branch, before the Grand Jury. The author
of a bill in the United States Congress that would do just that is with us
here tonight, United States Representative, Jerome Waldie.
Welcome to The Advocates, Congressman Waldie. Nice
to have you with us.
Jerome Waldie is a former majority leader of this
California State Assembly, and he is, today, United States Congressman from
California's 14th Congressional District. Congressman Waldie, is this a new
idea, the idea of granting this privilege to newsmen.
No, it is not. At least 18 states have a privilege
statute of one kind or another. Many of those have an absolute privilege
statute such as I have proposed and Senator Cranston has proposed in United
States Congress, and the rest of the states, for the most part, believed
such a privilege did exist up until recent Supreme Court decisions. It is
not a now principle.
Are we now in the midst of an attack on the free
I believe we are. I believe we are in the midst of
an attack on the press that is motivated by a desire of government not to
have its weaknesses and its failures disclosed by a free and independent
press to the people, and I think that attack began with the attack on the
electronic media orchestrated by the Vice-President. It moved to the attempt
to obtain prior restraint on publication of the Pentagon Papers. It is
exemplified in the effort of the administration to weaken the access to
information, the Freedom of Information Disclosure Act in the Federal
Government; and it has, I think, culminated in these recent attempts to jail
newsmen in order to intimidate the press further.
Well, is the right of newsmen to conceal their
sources important for a free press?
It is essential for a free press. It is essential
because without that right the source of information, which normally deals
with wrong doing on the part of government, will dry up because confidential
sources, if they are afraid that they might be disclosed, will for a variety
of motives fail to come forth, and that injures not the newsman and not the
press but the people.
Well, explain that to me. Is this a right of the
press we're arguing for tonight or a right of the people?
It is a right of the people. It is a determination,
actually, of a free society that the best safeguard against accumulation of
authority in government is an independent press. You cannot have in a free
society a controlled press or an intimidated press. You cannot have in an
authoritarian society a free press. It's that simple. It's the people who
Tell me about the relevance of this Caldwell
decision? The Supreme Court held the First Amendment doesn't necessarily
require this before a grand jury. How does your bill fit into that?
The Supreme Court also said in that opinion, and
said most clearly, though the Constitution of the United States and the
First Amendment does not compel an absolute privilege to newsmen, the
Supreme Court said it is within the prerogative of Congress to enact a
privilege bill as narrow or as wide as Congress deems necessary to protect
And, of course, the Caldwell case only went to
grand juries. Are there special dangers before Congressional committees
which the Supreme Court hasn't even ruled on?
There may even be greater dangers before
Congressional committees because irresponsibility is clearly not centered
only upon the judiciary and its instruments but is found also in legislative
bodies and, I think, maybe to a greater degree.
All right, Congressman, let's turn to Senator
Harmer who now has some searching questions for you. Senator.
Congressman Waldie, did the Congress, in fact, find
Mr. Stanton guilty of contempt?
The Congress did not.
How do you explain the fact, Congressman Waldie,
that since August of 1970, of the 13 subpoenas requested by the Justice
Department for all members of the media, in 11 of them there was complete
cooperation, and only in two was there not a voluntary appearance. Two
Senator, let me just explain for the benefit of
our audience that a subpoena is that piece of paper that forces you to come
into court and tell people what you know or produce documents. Go ahead, I'm
Two subpoenas in over 22 months which were not
concurred in voluntarily. Where is this witch hunt? Where is this
suppression of the press you're talking about?
The witch hunt is evidenced in the very records
that you cited. The reason that those instances of newsmen cooperated with
the Justice Department is because of their fear of the enormous power of the
federal government and particularly the enormous that has been wielded
arrogantly and insensitively by the Justice Department of the United
With 13 subpoenas in two years in which only two of
them were not voluntarily cooperated in. Now, really, Congressman, but let's
get on to another point. Congressman, what about the fact that you are
leaving to the discretion of the newsman to determine who will and who will
not receive the benefit of his discretion? Why doesn't your bill make it
mandatory that they may not reveal any source of information?
Because, in my view, the privilege is properly
exercised on behalf of the newsman in the cases that he feels the privilege
should be exercised. The distinction that I draw on, the distinction that I
insist upon, is that government shall not be the determining factor as to
whether the privilege shall be withdrawn in the particular instance.
Well, I fail to understand why this amazing faith
in a newsman's discretion to determine that one person who may be innocent...
…accused of crime shall not receive his testimony
against him, but another person, because the newsman doesn't happen to like
him, may well be the victim of his testimony.
It probably is less a demonstration of amazing
faith in newsmen than amazing lack of confidence in government that I hold
Well, all right. You're a public official,
Congressman Waldie. Would you issue a subpoena...
And that's precisely why I expressed the
All right, would you issue a subpoena against a
newsman in view of the amazing power of the press to ridicule, in view of
the amazing power of the press, as has been demonstrated by Mr. Miller, to
publicize its own cause clear out of proportion to the danger
The amazing power of the press is
Would you issue such a subpoena, Congressman?
Admittedly, you would not because you are afraid of
I am afraid of an authoritarian government. The
amazing power of the press is infinitesimal compared to the amazing power of
But you have no fear of giving a newsman the
absolute discretion to determine when an innocent man can be accused and
under your bill have no ability to confront his accuser?
I have a greater fear of the alternative, which is
what you propose, to give that power to John Mitchell, the Attorney General
of the United States, or the prosecuting attorneys of the country.
Congressman Waldie, let's get down to a specific
example. Perhaps you can see the danger of what you're proposing here with
this. Let's suppose that a Congressman, or if you like, a State Senator, is
accused by a newspaperman of accepting a $100,000 bribe for casting a vote
on a particular piece of legislation important to a special interest. Let's
further suppose that the story breaks 10 days before the election,
Congressman. And under you bill, the legislator involved has no ability to
confront his accuser. Now, what do you do?
I would precisely do that which my privilege
permits. I would not permit anybody to compel disclosure. I would say that
the Senator involved is less important than the principle involved of
permitting a free flow of information to the people. And the exception that
you seek diminishes that principle.
And what about the right of the people,
Congressman, to have an elective process uninterrupted by the fraud and the
distortion that could be perpetrated on the people by just such a
A brief answer, please, Congressman.
That very right of the people would be endangered
and jeopardized far more were the privilege of concealing confidential
sources withdrawn from newsmen.
All right, Senator, you'll have a chance to ask a
few more questions of Congressman Waldie. Mr. Miller, do you have another
question for him?
Well, Congressman Waldie, we have states that have
the bill you're proposing - California, Ohio, Pennsylvania - has anything
like that ever happened? Has that evil materialized?
No case of which I am personally aware.
We're back to you, Senator Harmer, for another
question or two.
Well, Congressman, are you familiar with the Knops
case in Wisconsin in which a reporter with personal knowledge of a
university building in which a life was taken refused to testify under just
such a claim as you are making here that his right not to reveal those who
had murdered, who had destroyed public property, superseded the right of the
people to protect themselves against such people?
I am familiar with that case.
And in your opinion, then, is that a justified
In my opinion, that exception cannot cause the
elimination of the privilege, the exception that you are talking about is a
disturbing exception that I would have preferred the newsman would
voluntarily have given up his privilege. But I would not have compelled him
to do so because there is an overriding principle that seems to me to be
more important, and that is the ability of a free flow of information to the
And where is the...
Senator, I can't let you ask another question.
Congressman, it's been a pleasure to have you on The Advocates. Thank you
for being with us. All right, Mr. Miller, another witness, please.
Senator Harmer is a lawyer; and if that person who
committed the bombing were his client, he wouldn't have to disclose anything
about it either. There is nothing extraordinary about giving privileges to
conceal information for people who are doing things in the public interest,
like lawyers defending clients or journalists writing stories. Perhaps it's
even more important for journalists writing stories as we'll hear from Paul
Welcome to The Advocates, Mr. Brandzburg.
Paul Brandzburg is a prize-winning reporter, first
with the Louisville Courier-Journal and now for the Detroit Free Press. Mr.
Brandzburg, you have written outstanding stories. Is your ability to give a
promise of confidentiality to your sources in the stories you've written
essential to that reporting?
It is of the absolute essence. You cannot
convince a heroin dealer to talk to you unless you promise him
confidentiality. He's not about to put himself in prison through the medium
of a newspaper. If you want to expose corruption in government, often the
source is somebody in government himself, and he doesn't want subject
himself to harassment. You have to promise confidentiality.
Tell me for example, about that case of
governmental expose and how your ability to promise confidentiality resulted
in a story.
Well, for example, I spent two months
investigating a mayor south of Detroit. It's a town of 80,000 people. And I
eventually proved that he was involved in a conflict of interest. He had
formed a silent partnership with a group of businessmen. The businessmen had
acquired a piece of land; but in order for the land to be really valuable,
they had to get it rezoned. The mayor was on the zoning commission. He voted
to have his own land rezoned. Nobody knew it was his own land, and they all
made a killing. The crucial bit of evidence that I needed was a silent
partnership. They're very hard to come by. Some man had to slip me that
silent partnership to show the mayor's involvement. I had to promise him
confidentiality. Otherwise, he never would have turned it over.
Unfortunately, that may not be a unique case of
local government. Would you even have had a chance, would anyone have known
about that story?
I don't think it ever would have come to light
unless I had promised that confidentiality.
Tell me, though, has the publicity over the Supreme
Court decision, have these recent subpoenas for newsmen, have they affected
your ability to get the information from the public?
They certainly have. It's amazing how many
people have heard about this issue, people in a criminal subculture. I have
had junkies tell me about the case, not aware that the case was mine in the
Supreme Court. Several months ago, I was talking to a middle-level heroin
dealer in Detroit, and I was proposing a certain story to him. And he told
me that even my promise of confidentiality was not enough' because if I
ended up in prison, there was a chance that I could be raped, there was a
chance that I could be beaten. And under those circumstances, who knows how
much I could take, I might break down. I might give in. He told me that he
would know what was happening to me in prison and that if he thought that I
was about to break down he would have me killed before I even got out of
prison. He didn't even want to run the risk of my being in prison.
That's the effect on the sources. Are there effects
inside newsrooms with editors?
There certainly are. A lot of editors are
worried also. Editors are busy people. They have a limited amount of money,
and they don't want to invest it in litigation, and they don't want to spend
all their time talking to lawyers. I recently proposed the story to my
newspaper. It would have been an extremely unique story. I don't think it's
ever been done before. But it would have involved a subpoena, probably. And
the editors told me, "We think we better not get involved in it because
perhaps the story isn't important enough to justify all the time and
expense." But in fairness to the editors, they had another consideration.
Kentucky is seeking my extradition right now, and they have to consider
that. And perhaps a subpoena in Michigan wouldn't - well, it just wouldn't
be the opportune moment.
Mr. Brandzburg, by extradition, I take it you mean
forcing you to leave Michigan, go to Kentucky, and face the Kentucky
Right. I have been convicted for contempt of
court, and they are trying to get me back to Kentucky to- serve that
A brief last question, Mr. Miller.
You're right on the firing line, Mr. Brandzburg. Is
it your interest you're protecting here, or has the public been hurt now by
the reluctance of people to talk to you and editors to write their
It's the free flow of information that's
important here. It's what the public can find out. If I can't get that
story, I only suffer because I can’t do the story and that’s not very
important. But if I don't get that story in the paper, the public doesn't
find out about it at all.
All right, Mr. Brandzburg, let's turn to Senator
Harmer for some cross-examination. Senator Harmer.
Mr. Brandzburg, how do you explain the fact that in
the last 10 years most of the Pulitzer Prizes given for investigative
journalism and reporting were given in states without a shield law, the very
thing you say is necessary to achieve that very goal?
I didn't say that a shield law is necessary for
investigative reporting, per se. It's necessary for some kinds of reporting
It is unnecessary to write a food column, for example.
Well, then, as I see, you don't believe it's
necessary to have an unqualified protection but a qualified immunity?
I think it's necessary to have an absolute
privilege statute, not a qualified...
Gentlemen, let me break in again. I'm sorry, but I
think we have to explain to our viewers, once again, that a shield law is
really another phrase or description for the kind of protective statute
we're talking about tonight. All right, Senator Harmer.
Mr. Brandzburg, you're asking for the ability to
accuse someone of a crime, and you're asking for the privilege of denying
that person the ability to confront you, his accuser. You are denying him a
You haven't been reading good newspapers. A
good newspaper reporter does not do that...
Gentlemen, we can't understand you if you both
talk at the same time.
Well, let's finish the question, then you may
answer, Mr. Brandzburg.
Mr. Brandzburg, the essence of this proposal is to
allow you to publish anything you want about anyone on the basis that you
got it from a confidential source, including accusing them of taking a
crime, and they are to be denied the right to come to you and demand that
you disclose the source of the information and the information under
Congressman Waldie's statute. Now, why should you have that right?
I don't have that right. That is total
nonsense. First of all, if I accuse somebody of a crime, I don't accuse them
of it, I prove it in the press. I have to present the evidence. I don't
listen to gossips and then just repeat their gossip...
Well, now, the press has become not only the
determiner of who shall suffer and who will not but they are also to be the
court of last resort? Is that right?
Who will watch the representatives if the
representatives are only serving special interests and not the people.
That's not answering the question. Perhaps you can
answer the question which you have not yet, even though you want to go
around policing the representatives. What about the average citizen who,
under your laws, is exposed to this danger which neither you nor Congressman
Waldie apparently are willing to answer.
I serve the average citizen in the street when
I publish stories about what's going on in the world of crime. I'm not
worried about serving policemen or serving legislative subcommittees...
Well, Mr. Brandzburg, perhaps you can tell us this.
Mr. Farr, to whom eloquent reference was made by Mr. Miller, admitted
publically that his refusal to answer the subpoena, his contempt of the
court, has probably done more 'to enhance his journalistic career and open
up the way for anonymous tips for him than almost any other single thing he
has done. Are you so convinced of the virtue and the goodness of the working
press that this type of temptation to abuse the very power you're giving
them is something the society should not be concerned about?
I'll stack up the virtue of the working press
against the virtue of our government any time. There have been many
governments in this world that have seized power and muzzled the press, but
never once has the press seized power and muzzled government.
Mr. Brandzburg, I think I'd like an answer to the
question, however, that Senator Harmer put to you a few minutes ago which is
suppose a member of the working press accuses somebody of a crime, shouldn't
he be required to face the person he's accused and tell him where he got
Well, first of all, he does face them. He
faces them in a libel suit. And number two, we have to get into the world of
reality, not fantasy. Reporters do not get mere idle accusations into the
paper. You have to get evidence. At least, a responsible newspaper operates
Mr. Brandzburg, let me cite for you a hypothetical
of an actual situation here in California.
Several years ago, an extremist group in San Mateo
California decided to blow up the City Hall. Now, if you had somehow been
privy to that information, would you have felt it necessary to reveal it to
the police, to the local sources, if you had been subpoenaed to
It depends how I was privy to it. I might be
privy to it but not on a confidential basis.
Privy to it on a confidential basis. You're
hedging the point, Mr. Brandzburg, just answer.
Well, in that case, I would write a story
about it, and I would alert the public to it. When I write a story about a
hash laboratory, I tell the police something they didn't know in the
beginning. The police cannot have it both ways. If I am muzzled, and I can't
get those stories in the paper, then the public knows nothing at all, the
police know nothing at all.
All right, you write a story, now...
At least, when I get the story in the paper,
people know what is going on.
Senator Harmer, you're going to have another
crack at Mr. Brandzburg, but let's ask Mr. Miller if he has one additional
question for Mr. Brandzburg.
Mr. Brandzburg, even in those states where this
privilege has not been given by law, haven't investigative reporters assumed
they had it and still had to give promise of confidentiality to their
sources to write the story?
That's true. We have been operating on that
All right, Mr. Brandzburg, you're back in Senator
Harmer's tender hands. Senator Harmer.
Well, let's get to that last point, Mr.
Brandzburg. A recent study was done by a professor of law at Michigan who
surveyed some 500 to 700 reporters across the country, and he found that
less than a third of them were aware of even the existence of a privilege
statute in those states that had it.
There are a lot of food columnists,
entertainment columnists, and there are a lot of fifth rate reporters who
don't make use of confidential sources as they should.
I see. But when it's important, let's get back
then to the San Mateo situation, and you said you would do the story
alerting everybody that the City Hall was to be blown up. Let's suppose the
City Hall was still blown up and someone was killed, and now you're
subpoenaed in to give both the source and the information you had. Now, what
do you do, Mr. Brandzburg?
I think you're confusing me with the police
department. They're suppose to be the ones who investigate crimes. I alerted
them ahead of time that it was going to be blown up; if they couldn't
prevent it, they sound like a bunch of keystone cops.
So, if view if the fact they couldn't prevent it,
you're going to refuse to disclose this information.
I gave them everything that a citizen possibly
You've answered my question, Mr. Brandzburg...
Gentlemen, I have to break in. Mr. Brandzburg,
thanks very much for being with us. Mr. Miller.
Of course, you see, we have had these laws, some
absolute in some of the states, and they haven't resulted in this terrible
problem. And, of course, take the clear case.
If a newsman accuses someone of a crime, and it's a libel,
he will be sued for libel and defamation, and so will his paper. And if he
doesn't come forth to provide the source, there will be a judgment against
the paper. There's still complete protection. What we're talking about here
is not the problem of the accusation of the crime that's not accurate but
finding out the information that is accurate that no one else would be able
to find out. That's the highest function of the press, and that's what it
needs this privilege for.
Thank you, Mr. Miller. For those of you at home
who may have joined us late, Mr. Miller and his witnesses have argued in
support of legislation that would permit newsmen to keep secret their
information or the source of their information without fear of going to
jail. Senator Harmer is now going to take the other side of that
proposition. Senator Harmer, it's time for you to present your case.
The highest awards in journalism have been given
more often in the last 10 years in those states without such a shield law as
is being advocated tonight than in those states which have it. We, tonight,
are being asked to give as a policy decision an elite status to a certain
group of people, the working press, a status that neither you nor I, as the
average citizen, has. We're being asked to make a policy decision that the
right of the people to learn the truth and to protect the innocent has to be
subservient to the right of the press not to have to disclose the alleged
secret sources of their information.
Now, over the past few years, there has been a growing
alienation between the working press and law enforcement. There's been a
growing identification between the working press and certain revolutionary
groups within our society, the Black Panthers, the drug culture, and others.
As this growing affection between these two groups has taken place, the
refusal of the press to effectively participate in cooperating with law
enforcement has grown stronger and stronger. Nov/ it's within the rights of
the press to champion any cause that they want. That's neither for you nor
me to deny them. But at the same time, it is not their prerogative, with all
of the massive power the press already has to protect itself, to insist upon
rights that you and I as an average citizen do not have.
Furthermore, there is no evidence that the failure to
enact such a shield law v/ill dry up the sources of information. Rather, the
evidence is just to the contrary, that the sources of the information arc
still there, and, in fact, they rely more upon the honor and integrity of
the newsman than they do upon some obscure statute to protect them.
Finally, I would like to point out to you that to give
this right to newsmen would not only weaken our courts, the grand jury, and
our legislative and Congressional bodies, but it would deprive the innocent
person of a very vital way in which to protect himself against false
With me tonight as my first witness on this matter is Mr.
William Frye, the former District Attorney of Lane County, Oregon. Mr.
Welcome to The Advocates, Mr. Frye.
Mr. Frye was trained in both journalism and the
law. He is an active member of Sigma Delta Chi, the journalistic fraternity.
He was the prosecutor on one of the landmark cases in this field. He numbers
among his legal clients two newspapers and a radio station. Mr. Frye, how do
you view this issue?
The public's right to have the facts about the
events that affect the public interest overrides any alleged imposition on
the news gathering processes to have confidential sources. And the fair and
effective administration of justice, the ability to have a law protecting
person and property, is more important to the public than the alleged
imposition of a right to refrain from revealing sources as far as the press
Mr. Frye, how could the passage of a law such as
this hamper the effective administration of justice?
Well, in the first place, a fact-finding body, such
as a grand jury, a trial jury, a legislative committee, is going to be
without the ability to produce the facts and information that are vital not
only to determining the facts but to presenting the laws or making the laws.
An individual will be deprived, certainly, of the right to meet the
accusations with evidence, to come up with the evidence that's going to be
available in the face of the accusations, the Sixth Amendment right to a
fair trial, the constitutional right to confront your accusers face to face,
to subpoena witnesses. I think that there will be a deprivation of those
constitutional rights so long as we can say that the press has got a right
to withhold this vital information.
Mr. Frye, could you give us a practical example of
where this conflict between the individual's constitutional right to
confront his accuser and the need and desire of the press for immunity might
We've already heard mention made of the Knops case
from Wisconsin. I think the people of the state of Wisconsin were entitled
to know what the facts were from the member of the press who interviewed the
party to the conspiracy who did the bombing. A person who is accused of a
crime, who is on trial for that crime, it is within the power and the
possession of a member of the press to come forward with information and
evidence that he has to exonerate that person. And if that member of the
press is entitled to and does claim a privilege, where is that man who is
accused of a crime going to be?
Mr. Frye, it's been suggested this evening that,
absent a shield law such as this, the working press is going to be denied
access to information. What about the public's right to this
In my judgment, a shield law, or a privilege for
reporters, is really inconsistent with the public's right to know because
the public is not really going to know about what has happened simply
because there was a story in the paper that someone on the Housing Authority
was offered a bribe, for example. The public's right to know is met and
taken care of when some public body, when a court, when a grand jury, when a
legislative committee, is able to say, "These are the facts, and this is
what happened or didn't happen." And I think that the public's right to know
is really being undermined by this privilege.
Very quickly, Mr. Frye, what are some of the
practical problems that we might face if we should be so foolish as to enact
For one thing, these shield laws, in all their
various forms that have been introduced in the various states and in
Congress, have to do with definitions. We've got to wonder what constitutes
the press, what constitutes a newsman? Who's going to define who these
people are and what is the medium? I think that when we have a privilege law
or a shield law we're going to put into the hands of government, that is the
court, perhaps, or the legislature, the ability to define who has got the
right the First Amendment, who has got the right to public and print. And
privilege, then, is going to require somebody to decide who is entitled to
Don't you find it a little anomalous that people
who are so destructing of government are so anxious to have government begin
to license them and decide who's a newsman and who isn't?
A brief answer, please, Mr. Frye.
Yes, very definitely.
Thank you, Mr. Frye.
All right, let's go to Mr. Miller, and he's got
some questions for you now.
Mr. Frye, you're a lawyer.
You're a member of an elite that claims a
privilege not to testify, aren't you?
You certainly are. There is a lawyer-client
privilege. If, in that Wisconsin case, your client had told you the identity
of the people who bombed the university building, you would not have been
free, you would have violated the canons of ethics to testify.
Well, if my client happened to he charged with that
crime, that's true.
No, no. If in the course of the communication he
told you and it related to something you were representing him about, you
couldn't disclose it.
Well, if that was given to me in confidence, that
would be true.
That's absolutely right. Why? Why are you entitled
to be a member of that elite?
That particular hypothetical in the context of
nothing is pretty meaningless because the historic and common law privilege
that a lawyer has to refuse to disclose confidential communications from his
client arises because that confidentiality is absolutely necessary to the
Of course, the lawyers make the law, and they
think it's absolutely necessary for them to have the privilege, and so they
have a privilege.
They didn't make that law.
Yes. Well, let me ask you, now, Mr. Brandzburg
happens also to be a graduate of the Harvard Law School. Suppose he'd been
licensed to practice law in Kentucky, same source had given him information
about a crime, asked for confidentiality. As a newsman, he's subject to
contempt and threatened with jail. As a lawyer, he's a hero if he doesn't
disclose. Same man, same information. Why?
Again, that depends on the context in which the
information is given. If a person is in a confidential relationship with a
lawyer, if he's the defendant in a criminal action, obviously the lawyer has
Because lawyers and clients have got to feel
between themselves that there's a free flow of information unimpeded by the
risk that the lawyer might disclose something.
That's right because the free flow of information
between the client and lawyer is essential to the maintenance of the
lawyer-client relationship, and the client who thinks that his lawyer may
divulge the private communications, of course, may end up not getting good
That's absolutely right.
Just like the patient who is afraid to reveal to his
doctor his symptoms may not get adequate medical treatment.
Or it may not give him full information. Or the
penitent who goes to a priest, there's a similar privilege, may not have a
true confession. Or the patient who goes to a psychotherapist may not give
him full information. What is this talk about elite? We have half a dozen
professions in this country whose interest in free flow of communication
outweighs the need of the court for the evidence. Isn't the journalist's
need at least as great?
Well, actually, there are only three professions
that the common law has recognized this privilege in - the legal profession,
the medical profession, and the priest and the penitent. And the basic
underlying reason for the confidence in each one of those situations is the
maintenance of the relationship between the two parties, the fact that
without the ability to feel that the doctor is going to keep the information
the patient won't be completely honest with the
…and the patient won't get treated. He might
Absolutely. Now, let's talk about other people.
Members of Congress have an immunity from testifying too, don't they?
Well, they passed a statute some years ago.
Of course, they passed a statute, and they want
that immunity. Members of the Executive Branch claim an immunity. Mr. Peter
Flanagan was told by the White House not to testify in the ITT case because
there was executive privilege.
The fact that our privileges that have gone way
beyond the common law, which I am opposed to, does not mean we need another
one added to it.
Well, let's see about this problem, though. Let's
see what we’re talking about. Now, you talk about a subpoena from a grand
jury. Who in Oregon, your home state, has the power to issue subpoenas to
bring anyone, including a reporter, before him and answer any
The District Attorney ... in a criminal
The chairman of any committee in the Oregon State
Perhaps? Yes, not just perhaps, certainly
I'm really not familiar with legislative
Well, but let's go on. Regulatory agencies, the
Alcohol Beverage Control Board in the state of Oregon.
There are certain administrative agencies that have
the power of subpoena in Oregon.
That's right. And tell me about this grand jury
that subpoenas newsmen. It's secret. No one knows what happens there, do
they, inside the grand jury?
Unless the newsman wants to go outside the grand
jury room and put a story in the paper about what happened.
No, he's prohibited from doing that and follows
that rule. And this contempt power - there's no jury trial for that
contempt, is there?
No, there's no jury trial...
That's absolutely right. We have a marvelous star
chamber proceeding here. Call anyone in. The chairman of the Assembly of ah
Oregon State committee. Is that the kind of power you want spread around to
gather news sources?
I don't know of any reporter who has been abused.
And you can cite any case that's been mentioned here tonight, and I would
say to you that in every single one of those instances, in my judgment, that
reporter should have been put in jail.
Well, I'm glad you talk about the real world. You
think Mr. Caldwell should be put in jail. Mr. Caldwell is the famous case.
He went to San Francisco, He got the confidence of the Black Panthers. He
used tape recorders and notes. He wrote leading stories on that. The state
of California could have not have forced him to disclose that information
because California has a law that makes it a privilege. Do you think the
federal government should put Mr. Caldwell in jail?
No, I think that Mr. Caldwell should not be entitled
to refuse to answer questions that were put of him...
No, and if he doesn't answer those questions,
should he be sent to jail?
Yes, if that's the result.
And why should he be sent to jail? Would he have
If he weren't sent to jail, the next time he was
subpoenaed to appear before a grand jury or any other body with evidence
which every citizen is obligated to give and did not do so, and chose not to
do so, it would be because there were no sanctions imposed against
Mr. Miller, you're going to have another shot or
two at Mr. Frye before he's off the stand.
Senator Harmer, another question, please.
Mr. Frye, since Mr. Miller has conceded that a
grand jury's proceedings are indeed secret, what does a reporter have to
fear from revealing his sources and information to a grand jury who will
indeed keep that information secret?
Well, I think, in fact, no fear at all. The
reporters want the public to think that the mere fact they've been
subpoenaed is such that their confidential sources are going to clam
And absent this power by the grand jury, how do
they protect the innocent against the irresponsible wire-tapping
There is no way to protect under a shield law. There
is no way to protect the innocent against any reporter who wants to tap
wires or steal documents from publishing in the paper inflammatory facts
about that person.
All right, those are fighting words. Let's go
back to Mr. Miller for another question or two.
Come on, Mr. Frye, California's had a law like
this since 1935. Has any reporter gone out, wire tapped, and then refused to
- has this ever happened, all these fears you're talking about in
California, Ohio, and Pennsylvania.
Well, I'll tell you, you've got a California case,
and I think it was mentioned in your case, Mr. Miller, that is disturbing to
me. I think that Mr. Farr has lost sight of every single one of the Bill of
Rights except the so-called First Amendment as interpreted by the press.
He's certainly lost sight of the Sixth Amendment. No matter who that man was
down there in Los Angeles County, he was entitled to a free trial.
Oh, come on, entitled to a free trial and accuser...
A fair trial. That's just a red herring. If the
man is put up for trial and he's accused of something, the accuser will have
to come forward or he won't be convicted. And if the reporter libels him and
he's sued for defamation, the source will have to come forward or there will
be a judgment. That argument is just a red herring. Nothing can happen in
the absence of the source coming forward.
I see. I suppose he jurors reading in the newspaper
every day about the statements of witnesses in the case continues to make
those jurors impartial as required by the Sixth Amendment of the United
You're off on a totally different thing.
Gentlemen, I'm afraid I have to interrupt. Mr.
Frye, it's been a pleasure to have you on The Advocates. Thanks very much.
All right, Senator Harmer, another witness, please.
I call for my next witness, Mr. David Wilson of
the Boston Globe.
Welcome to The Advocates, Mr. Wilson.
Mr. Wilson is a columnist for the Boston Globe,
however, his opinions here tonight are his own only and do not represent
those of his employer. Mr. Wilson, Mr. Miller seems extremely concerned
about the attorney-client privilege and tries to analogize between this and
the reporter and his clients. Could you comment on this for us?
Well, I've given quite a little thought to that,
Senator, and I'm of the opinion that that's a very mistaken analogy. If the
newspaperman becomes a' servant of his source, as the lawyer serves his
client, as the priest serves the penitent, as the spouse has a loyalty to
the spouse - I think spouses are not required to testify, am-I correct, Mr.
Miller - then he's really becoming something of a public relations man. His
concern is for the source. And it's my general understanding that for a long
time a newspaperman in law serves his employers, his master, his paper. And
in the idealistic comprehension of the profession, he serves the general
Who, then, under the analogy, is the client of the
newspaperman, Mr. Wilson?
I would suggest that the readers of that newspaper
and, in a broader sense, the public of the constituency in which it
So, it is really the public, not the informant,
for whom we should have such concern.
It seems to me that that's a fairly sound…
And on this basis the newspaper reporter who has a
greater loyalty to the informant, who may or may not have been paid for what
he said, who may or may not have paid the newspaperman to put the material,
has a misplaced loyalty.
Well, we don't mean to suggest …I think it has
been known to occur.
All right. Do you see any other dangers in a
shield law such as is being advocated here tonight?
I see great dangers. I see a sort of isolation of
the press from the generality of human kind. I see an oncoming elitism of
individuals who have rights which are not equal, as the Fourteenth Amendment
suggests, I'm not an attorney, but the equal protection of the laws is
violated by giving some citizens of the United States more equal protection
than others, i.e., newsmen. I don't want to be a member of an elite
Does the absence of a shield law prevent you from
having the confidential sources to important information?
I've been in this business since the night Harry
Truman was elected. I have managed to make my living at it during those 24
years. And I, of course, have many confidential sources, and I use them with
some regularity. I must say very frankly that I have not been the kind of
investigative reporter that Mr. Brandzburg has so effectively been.
Well, would it dry up your sources, as asserted by
Mr. Brandzburg, if you did not have such a law?
Well, we don't have such a law in Massachusetts.
We do on the Globe have a spotlight team that won a Pulitzer Prize last year
without the benefit of such a law. The spotlight team is still in existence.
It's still doing investigations. It did an awful job on the New England
Regional Commission recently, and some very distinguished patronage
employees of Republican and Democratic political figures were severely
embarrassed by it.
I cannot resist commenting on the fact that a
substantial part of our audience are working members of the press around the
capital here. Why are they in favor of the other side? Why are so many
newspapermen and their employers pushing this Law?
Well, I think Congressman Waldie and Mr.
Brandzburg have been obviously very fortunate in their associations with
newspapermen and so have I to a great extent. But I have run into a lot of
men in my trade who weren't quite so wholesome as the Congressman posits,
men who have friends, have hatreds, have hopes for promotion, have hopes for
public jobs, have hopes for moonlighting opportunities. .
All of which can...
All of which conceivably might lead them to
advance their public interests under the protection of the First
Are you suggesting, then, that the press already
Their private interests, excuse me.
Are you suggesting, then, that the press already
has sufficient power to protect itself against this heavy-handed big
government about which Mr. Brandzburg worries so much?
Oh, it wasn't so long ago that a great deal of
concern was being stressed about the irresponsible power of the great press
lords, the Hearsts, the Knights, the Newhouses, the Booths - I suppose I've
offended a fairly substantial segment of the press by that - but we used to
worry about these guys, and now, all of a sudden, they're suppose to be our
salvation from the grand jury.
Gentlemen, let's see what Mr. Miller has to say
about this. Mr. Wilson, Mr. Miller is going to ask you some questions.
Mr. Wilson, not only do you not speak for your
newspaper, you speak contrary to your newspaper, don't you? The Boston
Globe, on July 30, 1972, in an editorial came out for a shield law, did it
I would suggest, Mr. Miller, that that is an
example of the freedom of the press and the freedom of a very fine and
admirable segment of it.
Absolutely right. In fact, let me read you what
your own newspaper said about the spotlight team that you said did not need
the confidentiality. Your newspaper said, "Many of them (that is sources)
gave valuable information to the spotlight team which the public needed to
know on condition that their identities would not be revealed." Do you
disagree with your newspaper's judgment on what it's own spotlight team
You do? And you disagree...
I might point out that for two and a half years I
was an editorial writer for that page…
So you know the value of it.
…and during that period that I was on that page,
and often I would disagree with my colleagues over substantive issues.
Yes. And you dis...
Which is permitted in this free country.
Mr. Wilson, I don't deny your right to disagree,
and I think it's marvelous that you and the Globe disagree. My only point is
that in your disagreement, the Globe is correct. Let me read to you, for
example, the Globe's judgment that compelling newspapers to name their
sources goes to the heart of the free press and the public's right to know.
Now, you talked about the lawyer protecting his client. The purpose of the
lawyer-client relationship is not to protect the client, it's to protect the
administration of justice so there can be a fair trial for anyone concerned.
The lawyer has two clients, his client and the court. . .
Doesn't it facilitate the relationship between the
lawyer and the client and allow the client proper representation? I
don't accept your definition.
I will not ask you if you're a lawyer, Mr. Wilson.
But let me represent to you that it serves a double purpose.
A night school dropout.
From law school, I assume, Mr. Wilson.
The Globe goes on to come out in favor of what
we're talking about tonight. Would you put Mr. Brandzburg in jail, Mr.
I would never be in a position to put Mr.
Brandzburg in jail. I think Mr. Brandzburg, in addition to not being in
jail, fundamentally ought not to be protected by the law…
No, no, would you put him in jail? He said...
…a law which, to some degree once it is
established, can be amended...
No, no. He's subject to...
In other words, once you've passed the
Cranston-Waldie Bill, at some point there will be a great national disaster
of some kind, a riot, something that generates a great deal of political
feeling. At that point, conceivably, you will cite, well, in cases of
felonies tending to disturb the public peace...
Let me ask the question again, because it's
Anything that becomes statutory is subject to
amendment. Mr. Brandzburg is free not to reply.
Mr. Miller, Mr. Wilson wouldn't make a bad lawyer
if he was one. Go ahead with another question.
No, no. I would say that he's learned the lawyer's
art of filibuster. Would you put Mr. Brandzburg in jail? You're the trial
judge in Kentucky. He's under an extradition order. He hasn't disclosed the
sources. He's sitting here. You're a fellow reporter. Would you put him in
I would not. But I suspect that if I were a trial
judge in Kentucky, having been sworn and seated on the bench, I would be
required under the Caldwell decision and under the laws of the state of
Kentucky to put him in jail because he is indeed, I believe, contemptuous of
the statutes of Kentucky.
If you were deciding the case, you're deciding the
law, you're the judge who's deciding the law, so you're deciding whether he
goes to jail, would you put him in?
I fail to see where my subjective altitudes about
this are particularly pertinent...
I think that, as a judge, it would be my duty to
Let me ask you something else about your
subjective attitude. You say that the confidentiality of sources may not be
important to you, we have the Globe evidence, Mr. Erwin Canham…
Oh, I didn't say that, Counselor. The
confidentiality of sources is one of the ways I earn my leaving.
And your ability to protect them.
And my ability to protect them, which is plenary.
I'm a free man.
And now, Erwin Canham, of the Christian Science
Monitor, writes the Northwestern Law Review that "between one-third and
one-half of all the stories published in the Christian Science Monitor rely
on their ability to keep stories confidential. Do you think that's not
I think that the Monitor's ability to keep stories
confidential and the requirement that there be a federal law exempting
newspapermen from compulsory process are two - you're talking about apples
No, no, you're not talking about apples and
oranges. If there's a compulsory law, you're won't be able to keep the
sources confidential. He says one-third...
Well, I always have the option of simply saying,
as Samuel Popkin did, and he isn't even a newspaperman, that he simply will
not reveal his sources, and as Mr. Brandzburg very idealistically and
Mr. Wilson, Mr. Popkin is the Harvard professor
who has been in jail briefly and was subsequently released...
That's right, and he suggested that this privilege
extend beyond newspapermen to faculty - scholars.
Los Angeles Times listed seven major stories
within a period of six months it could not have obtained without being able
to provide the confidentiality. Are you speaking against not only Mr.
Brandzburg’s testimony, but Erwin Canham’s, the Los Angeles Times, and
saying that this ability not to have to testify if subpoenaed is essential
to the press?
You do occasionally see the Los Angeles Times,
I see it every day.
Do you regard the Los Angeles Times as a helpless
victim of the state?
Mr. Miller, you have one quick answer to that
If investigative reporters are put in jail as
several men are now being threatened to be put in jail, you will see a very
serious change in the status not only of the Los Angeles Times but of other
people you've put your faith in.
All right, gentlemen, let's go back to Senator
Harmer for a quick question. Senator.
Mr. Wilson, you said that you earn your living on
the basis of your ability to keep confidentialities, and you do so without
benefit of the law.
Only in part. That is a tool and an important
How then do you keep confidentialities without the
all-encompassing protection of this law?
Well, I would suggest that, of a million
confidential relations of source to newsmen in this country, and there must
be millions every year, perhaps three or four are ever likely to come to the
attention of a prosecuting authority or a legislative body.
Then, is it necessary for the freedom of the press
to have such a law as this?
I think it probably would be better for the
freedom of the press to avoid getting ourselves entangled in legislation
which, as I said before, can be amended so as to become repressive once it's
on the books.
Gentlemen, let's go back to Mr. Miller. A couple
of questions, Mr. Miller.
I want to understand your position. You think the
reporter should not disclose the sources and perhaps should even go to
I would like to be very emphatic about that. I
think that every man has a right to protect his conscience and his honor,
and I just don't think that happens to be what Thomas Jefferson meant in
1787 - and you correct me, if you will - when he wrote the First
But the point is this, reporters are not just any
people. The option you would give yourself, if a subpoena were put on you,
would be to go to jail. It's the only option you're willing to give yourself
if you wish not to disclose your source?
I think that every man has a right to his own
honor, and that it shouldn't be publicly protected.
Gentlemen, thank you very, very much, and thanks
for being with us, Mr. Wilson.
Thank you, gentlemen. And now, Senator Harmer,
would you summarize your case, please.
These are the facts that we've learned tonight.
We've learned that the Supreme Court has said emphatically that it is not
the right, the Constitutional right, for a newsman to keep his sources
confidential or his information confidential. We know that contempt of court
is a crime, that any other citizen who commits a crime is going to have to
face up to that. If contempt of court is a crime for a citizen, it ought to
be a crime for the newspaper reporter. It is the duty of the grand jury to
keep its proceedings secret. It keeps them secret in order that it might be
able to protect the innocent as well as the guilty. And that's the important
point to keep in mind tonight, that with the passage of this law, the
ability to protect the innocent would be destroyed as the newsman seeks this
special privilege. I hope that you will join with me in voting against the
proposition that newsmen should be immune from the responsibility to reveal
to an appropriate governmental body in pursuit of its responsibilities that
information which is necessary to protect the innocent and our
Constitutional rights. Thank you.
Thank you, Senator Harmer. Mr. Miller, your
Of course, as Mr. Wilson said, every man may
protect his honor by choosing to go to jail. But reporters are not simply
protecting their own honor, they are protecting the right of the public to
receive information. They are protecting the honor of the sources who give
them that information, and that is the harm in permitting them to be
What is the real world here? The real world is not
imaginary problems which have not come about in California, Ohio,
Pennsylvania, or other states with this kind of law. The real world is the
threat to Mr. Brandzburg that he's going to jail. The real world is Mr.
Bridge in jail in New Jersey. The real world is the threats to other newsmen
incredibly being sent to jail. That's what's happening. And we cannot rely
upon people's continued willingness to go to jail to protect the
There's no threat to the public, no threat to the
innocent. The innocent will have their libel suits, and the source will have
to come forward, the defendant will still have to be faced with his accusers
to be convicted. What we're talking about is the right of the public to face
those who may be harming it. And it's a slender reed to rely on the
reporter's willingness to go to jail. We need that reporter. This system has
worked in the United States. It will continue to work. And faced today with
a grave attack against the freedom of the press, we ought write that system
into law, not just to protect the press but that you shall know the truth
Thank you, Mr. Miller. We've now reached that
point in our program where we ask you here in our audience in the Assembly
Chamber of the California State House and those of you at home who are
watching us on television to tell us how you feel about tonight's question.
What do you think? Should newsmen be allowed to keep secret their
information or the sources of their information without fear of going to
jail? That's the question before us, and we hope you will write us your yes
or no vote on a letter or post card and sent it to The Advocates, Box 1972,
Boston 02134. The Congress and many state legislatures are now considering
whether to grant newsmen this protection. Is it essential to the operation
of a free press, as Mr. Miller has argued? Or is it an unnecessary
impediment to essential information gathering by government and the courts,
as Mr. Harmer and his witnesses have also argued. Send us your yes or no
vote, and again that address: The Advocates, Box 1972, Boston 02134. We'll
tabulate your views, and we'll make them known to the members of Congress,
and state legislatures around the country. The question is urgent. Decisions
are going to be made. And your views are very, very important.
And now, with thanks to our advocates and to their
distinguished witnesses and with special thanks to the members of the
California legislature who have so graciously consented to permit us to use
this Assembly Chamber here in Sacramento at the State Capitol, we conclude
Next week, The Advocates will be back again in
the California State Assembly Chamber, The question, "Should women be
permitted abortion on demand?" Arguing for the proposal will be Brenda
Fasteau, a lawyer and activist in the women's rights movement. Opposing her
will be Michael Uhlmann, a teacher and legislative aide to Senator James
The Advocates, as a program, takes no position on the
issues debated tonight. Our job is to help you understand both sides more
This program was recorded.