Announcer:
In January 1979, reporter Myron Farber, of the
New York Times published new information in the mysterious deaths ten years
earlier of nine people in a New Jersey hospital. A grand jury investigated,
and names a Dr. X, suspected in the deaths - surgeon Mario Jascalevich. The
doctor was indicted on five counts of murder. When he came to trial, the
court ordered reporter Farber to provide the defense with all notes and
sources of information. Farber refused. The reporter was convicted of
contempt of court for his refusal and spent thirty nine days in jail. The
doctor, even without access to Farber's sources was found not guilty on all
counts.
Dukakis:
Good evening, I'm Michael Dukakis, and welcome to
The Advocates which is coming to you this season from the Arco Forum of the
John F. Kennedy School of Government here at Harvard University. I think
it's fair to say that most of us assume the freedom of the American press.
That is we assume that the press in this country is protected from
censorship and from other kinds of government interference. Under the First
Amendment, newspapers in this country have historically claimed the right to
publish without prior restraint: that is they could publish any information
they could get and the government couldn't stop then from doing so. That was
really the issue in the celebrated Pentagon Papers case of just a few years
ago. But another issue has become prominent in the past decade as well. The
rights of reporters, the people who gather the information that goes into
our newspapers and magazines and radio and television, to keep their sources
secret. That right often called the journalist's privilege, is the subject
of our debate this evening. The privilege is claimed by those reporters who
felt that they must rely on confidential information for their information.
Bureaucrats unnamed, underworld figures, who insist that they remain
anonymous, so that they don't lose their jobs, or in some cases, their
lives. But in the past few years, grand juries, and judges and prosecutors
have been asking and in some cases ordering reporters to reveal their
sources of information. Some reporters have refused, some have been found
guilty of contempt of court and a few have gone to jail. Should journalists
have the right to protect their sources even though that right may conflict
with other rights, including, the right of a defendant to a fair trial?
Advocate Charles Nesson is a Professor of Law at the Harvard University Law
School. Mr. Nesson -
Nesson:
Should a reporter have to go to jail in order to do his
job? It sounds absurd, but that's exactly what happens if a reporter doesn't
have the right to protect his source. Journalists will continue to be locked
up unless the courts, the Congress, and you recognize that protecting the
confidentiality of sources is crucial to the flow of information in a free
society. With me tonight to argue for your rights are veteran reporter
Daniel Schorr and leading advocate of the First Amendment and the free
press, right of free press, attorney Floyd Abrams. We call the press our
fourth branch of government, the fourth estate, because of its crucial
function of checking governmental excesses, its abuses of power, its
corruption, its incompetence. Central to this function is the ability of a
reporter to obtain information off the record from confidential sources and
with this comes a duty recognized as basic, by all reporters the
confidentiality of their sources. Many of the judges of this country have
now gone to war with the press on this issue. It is as if the press having
performed it's function so well in Watergate is now to be punished for it.
Nixon and Agnew are gone but their antagonism to the press is now the height
of fashion. The threats they made have become present realities-news offices
searched, reporters jailed. We do ourselves no service by forcing
journalists to become outlaws. If they crumble it is our freedom which
suffers.
Dukakis:
Thank you Mr. Nesson. Advocate Avi Nelson has for
several years been a columnist and commentator on radio and television. Mr.
Nelson -
Nelson:
Thank you. No, I don't think there should be an absolute
right on the part of journalists to conceal their sources. To help me with
my case I bring first a distinguished journalist in his own right, David
Wilson of the Boston Globe, Professor Larry Simms, who was chief counsel
with Reporters Committee for Freedom of the Press, is currently with the
Justice Department and a Professor at Georgetown University. Now let's make
no mistake about it. The free press is alive and well in the United States
and so is investigative reporting and we would have it no other way. But
understand the extent of the privilege that is being asked for here.
Supposing you were wrongly accused of murder and you were brought to trial
and you needed the sources of a journalist in order to prove your innocence.
The other side is saying that you couldn't get them. The reporters want to
be able to claim above and beyond the discretion of the courts their rights
to be able to conceal their sources even if it means that you may end up
being convicted. So the question is whether or not they shall be the final
arbiters of whether you have to go to jail. I think there are individual
rights that must be taken into account here and should not be sacrificed on
the altar of extreme journalists' privilege.
Dukakis:
Thank you very much Mr. Nelson, we'll be back to
our advocate for the cases in just a brief minute. But, first a word or two
about our program this evening. The issue of journalists' privilege is a
recent one. For much of our history the relationship among reporters and the
police and the courts has been one of friendly rivalry, and oftimes of
cooperation. The reporters took their right to protect their sources almost
for granted. But over the past few years important court rulings have
restricted the constitutional basis for that journalists' privilege. Notably
in 1972 in the case of Branzburg versus Hazes where the United States
Supreme Court held that a reporter would have to testify in a grand jury
investigation in private. And last year in the so-called Stanford Daily case
the court ruled that the police with search warrants could search newsrooms.
Also, last year, as you've just seen, Myron Farber of the New York Times
went to jail and his paper was heavily fined for his refusal to turn over
his notes to the defense in a murder trial in the state of New Jersey. The
New Jersey Supreme Court upheld that conviction and the United States
Supreme Court refused to review the New Jersey decision. Now to protect
reporters many states have passed what are called "shield laws". New Jersey
happens to have one of the strongest shield laws in the country, but New
Jersey is the state where Myron Farber went to jail. Tonight we are not
debating the merits of shield laws nor whether the constitution of this
country needs to be changed. We are discussing a matter, an important public
policy, whether journalists should have the right to keep their sources
secret in every circumstance that we are likely to encounter. Now let's get
on with our cases, Mr. Nesson, the floor is yours.
Nesson:
I call Mr. Daniel Schorr. Mr. Schorr would you give us a
brief thumbnail of your background as a journalist?
Schorr:
Well in a career of some forty years, I was a
newspaper correspondent in Europe reporting for the New York Times, the
Christian Science Monitor. For a quarter of a century I was a correspondent
to CBS News abroad and at home most recently in Washington. Since then a
syndicated columnist and an independent television commentator.
Nesson:
Tell us, what is a confidential source?
Schorr:
A confidential source is a source that will tell
you something you need to know on your promise to protect the
confidentiality or the identity of the person because he might otherwise get
into trouble, he or she I should add.
Nesson:
And have you had occasion to use confidential sources in
the course of your work as a journalist?
Schorr:
On certain occasions, yes. In sensitive information
obviously involved with Watergate and investigations of the intelligence
community there was a constant use but even in more routine ways Congressmen
and others frequently want to be kept confidential but those in government
who feel they are maybe in trouble frequently can only let you know what's
going on if you respect their confidentiality.
Nesson:
Could you give us an example, Mr. Schorr?
Schorr:
Well there are, some of the the examples are quite
famous. I mean all of Watergate is in a sense an example that Watergate was
a case where there was a gigantic cover up that was being perpetrated by the
Nixon administration that could only be penetrated by sources such as
perhaps the one best known is one called "Deep Throat." But there've been
others, there have been examples of of, CIA conducting domestic surveillance
against its charter which would not have been known had it not been revealed
through confidential sources to Seymour Hersh of the New York Times,
resulting in a large investigation. There was a war that was being conducted
illegally in the sense that Congress hadn't authorized it is Cambodia,
again, revealed because of confidential sources who knew it was happening
and could only tell about it if they were kept secret."
Nesson:
Mr. Schorr, you yourself were responsible for reporting
some of the activities of Gordon Liddy in the course of the Watergate
experience?
Schorr:
That's right that was, to give a case of my own
here was a case in which in the course of the early Watergate investigation
and before it was known that there were more than five persons involved. I
happened to learn that Howard Hunt, in the course of a proceeding which was
then under seal and supposedly confidential had taken the Fifth Amendment
when asked about his whereabouts of the night of the Watergate break in.
That was one of the clues that led, along with other information to my being
able to discover and report for the first time that Gordon Liddy and Howard
Hunt had been present at the Watergate that night. The fact of the matter
was that I was even warned by my superiors at CBS News that in view of
Supreme Court decisions it was possible that I might be called by a judge
investigating the leak and might be asked for the source and it might not be
possible to protect me and I might have to go to jail. I accepted the
warning, and reported it nonetheless and was happy to make that small
contribution to Watergate history.
Nesson:
Mr. Schorr, if the public has a right to know why doesn't
it have a right to your source?
Schorr:
Its a good question, I think it would frequently be
of great interest for the press to have to disclose sources because
frequently its a legitimate item of news in itself, as in who has an
interest in telling something. Unfortunately, however, it is the one kind of
information that would make it impossible to gather the rest of the
information. Or if I can put it to you anecdotally, I was involved as you
may know in being threatened with a contempt citation, because of a House
intelligence report that, against the wishes of House Representatives, I
caused to have published, and ended up in confrontation with the House
Ethics Committee which my two small children tried to explain to playmates
of theirs. My young daughter, who was then about five years old explained to
her playmates, "Daddy had a secret and he told everybody the secret, so they
wanted to send him to jail." And her older brother said: "You dumb dumb,
that wasn't the way it was, he had a secret and he wouldn't tell anybody and
that's why they wanted to send him to jail." And I said, "Children you both
have half the truth. There was a secret which was something the public had
to know, there was a secret I couldn't tell because its a secret of how you
get secrets, without which you don't get them, and that I couldn't
tell."
Nesson:
Thank you very much Mr. Schorr.
Dukakis:
We're not going to let you out of that chair quite
so fast. Mr. Nelson has some questions for you. Avi:
Nelson:
Mr. Schorr, who is "Deep Throat?"
Nelson:
So in other words the source in that instance did remain
confidential?
Nelson:
And it is not true that the press has been functioning
quite well, in fact the entire story that you told about Watergate and some
of the other examples you used happened even though there is no absolute
shield law or no absolute right to conceal sources?
Schorr:
That's only because those who were involved in this
were on the defensive enough not to be able to use the power of the law in
their hands to command reporters to reveal sources.
Nelson:
Did anybody go to jail because of Watergate reporting in
terms of Woodward, Bernstein, Daniel Schorr?
Schorr:
In fact yes, although it was a minor and early
case. The Los Angeles Bureau chief in Washington was sent to jail for
contempt by Judge Sirica in the early stages for refusing to turn over a
tape of an interview.
Nelson:
As you say though, there, none of the major protagonists
of the drama went to jail because of it. My point is, on the reporting side
anyway. My point is that the press has been able to function quite
satisfactorily without the shield laws to date, is this not so?
Schorr:
Well we're not discussing shield laws, they've not
gone to jail because they've refused to reveal their sources and happily,
thank God, they've not been obliged to.
Nelson:
I'll change "shield law" to "absolute concealment of
sources". It is not true that the press has been able to function without
this to date?
Schorr:
Thank heaven yes.
Nelson:
So there's a question, as to whether the press really will
be seriously hampered if we don't increase their shield privilege? Let me
move on...
Schorr:
It's not a question of increasing, it's just a
question of maintaining it.
Nelson:
I disagree, I think you are asking for something now that
the press does not have at this point in time, you are asking for an
extension of the privilege. Let me move on.
Schorr:
I guess we disagree.
Nelson:
Let me move on to the question of other rights. Can you
imagine a situation where a defendant would be on trial and he would need
the sources of a journalist in order to prove his innocence?
Schorr:
I have a vivid imagination, it just has never
happened to my knowledge,
Nelson:
I'm disappointed in your imagination, as vivid as you may
have it. The fact is that there are certain judges in this country who have
said that they disagree with you. Namely that under certain circumstances
the sources of the reporter should be revealed is this not so?
Schorr:
It is so, up to the Supreme Court.
Nelson:
Why so you think then that the reporter should be the
final arbiter and be able to overrule the judge? Shouldn't the judge? Don't
we work that way in this country, that the judge should have the final
say?
Schorr:
Well dismissing the contentious way in which you
put it, I don't think the judge is overruled by the reporter, the judge does
his thing and the reporter does his thing'.
Nelson:
What I'm trying to drive at Mr. Schorr, is that when you
do your thing and do it in contradiction to the Judiciary system in the
United States, are you not putting yourself above the judiciary? And is this
not a privilege that you ought not to claim merely because you are a
reporter?
Schorr:
I claim the privilege when the judge doesn't
recognize the privilege since I'm forced to do what my professional duty
tells me to do, I'm willing to risk going to jail.
Nelson:
And are you willing to risk that the defendant will go to
jail because of this?
Schorr:
I don't think that defendants necessarily have to
go to jail, that the defendant can be dismissed if the information appears
to be so essential to defense.
Nelson:
You mean a mistrial declared?
Schorr:
A mistrial declared or an acquittal even, because I
think public information at some times is more important than every
trial.
Nelson:
Well what would probably happen is the charges would be
dismissed and then we'd have the risk of a stigma that the defendant would
have. Let me get to another area. You talk about the responsibility of the
press. Would you suggest that the press would always come forward in a
situation for example, if there was a bombing and a student was killed and a
reporter knew of who did it and what the next bombing was going to be, would
you say that he should come forward?
Nelson:
If he does not come forward and he is commanded to do so
by a grand jury or by an authorized agency of the United States, should he
be forced to come forward?
Schorr:
Ah, most reporters in those cases wouldn't have to
be forced to come forward.
Nelson:
Oh, but if, but we know of a case don't we, because what
I've described is not hypothetical, where such a situation existed and the
reported did not come forward.
Schorr:
What case do you have in mind?
Nelson:
The Knopps case in Wisconsin in 1971. And granting that
case don't you think the reporter should have compelled perhaps to save
another life, to tell his information before the next bombing?
Schorr:
I can speak only for this reporter. If somebody
comes to me with information where lives are at stake, I don't accept the
confidentiality of the source, and I simply tell the police. I only can give
confidentiality where I've promised it and in cases where crimes of that
sort have been committed, I would not promise confidentiality.
Nelson:
Well I wish every reporter were as honorable as you.
Schorr:
Most are, most are.
Nelson:
But the fact is that some are not that's why we need it.
Let me take one more example, supposing we have a situation where an
innocent person has been maligned by a vicious, inaccurate story published
in a major paper. What should be his course of action?
Nelson:
You say libel. If he now takes his action through the
libel area, should he be able then to be able to command the journalist to
reveal his sources?
Nelson:
I don't understand your point then. Here is somebody who
has been maligned by an innocent, a small person maligned by large
corporation you tell me his redress of grievance is through the action of
libel and yet when he wants to get this information you tell me he can't get
it. How is he supposed to defend himself against the multimillion dollar
corporation?
Schorr:
I would say he's not defending himself, he's suing,
right?
Nelson:
Yes, because he has been defamed and because the story was
indeed inaccurate, I've stipulated that.
Schorr:
You've stipulated.
Schorr:
The story is inaccurate, in that case the judge
would simply have to take into consideration that the source isn't being
revealed and draw whatever conclusion the judge was going to draw from
it.
Dukakis:
Gentlemen, I'll have to break in at this point,
Mr. Schorr we have a few more questions from Mr. Nesson, before you end your
testimony.
Nesson:
Mr. Schorr, in the case that Mr. Nelson was just pursuing
with you, the clear result would be that the newspaper would wind up paying,
would they not?
Schorr:
That's right, that's the risk of doing business,
both for the reporter and for the newspaper. When you withhold a source,
it's part of the, the reporter may go to jail, the newspaper may have to pay
money and if we are forced to take that risk to provide public information,
it's part of the risk.
Nesson:
Mr. Schorr, do you believe that reporters need an absolute
privilege?
Schorr:
Mr. Nesson, the word absolute is not my lexicon- I
only know that in forty years of reporting I have never known a case when I
thought it was necessary to have that privilege violated.
Nesson:
Thank you very much, Mr. Schorr.
Dukakis:
Mr. Schorr, thank you very much for being with us
on The Advocates. Let's turn now to Mr. Nelson's case, and he will be
presenting his first witness. Mr. Nelson -
Nelson:
Thank you. I call David Wilson.
Dukakis:
Welcome to The Advocates, Mr. Wilson, nice to have
you with us.
Nelson:
Mr. Wilson, perhaps you could give us, briefly some of
your background.
Wilson:
Well, I'm a regular OP-ED columnist in the Boston
Globe. -I've been in the newspaper business for thirty years as a former
state house bureau chief for The Globe, and I speak for myself.
Nelson:
And not for The Globe?
Nelson:
That's unfortunate. As a working member of the working
press.
Dukakis:
I gather there's some difference of opinion
between the witness and his employer on this issue. Is that
correct?
Nelson:
As a working member of the working press, do you think
that there should be absolute privilege to conceal sources on the part of
journalists?
Nelson:
Why not? Won't this indeed, as has been alleged, cause
sources of information to dry up?
Wilson:
I have a feeling that the threat is considerably
exaggerated. Sources of information are, when anonymous, are repeatedly
criticized within the journalistic profession. The notion that one may
publish a piece of information without attribution is one that makes a lot
of reporters and editors quite nervous. In so far as the person who
publishes such information, then insists on a right to conceal that source,
it seems to me he frequently runs into the problem of making accusations
against individuals and then will not have the right to confront their
accusers.
Nelson:
Can you imagine anytime when you would say that there
should be absolute protection to conceal a source on the part of the
press?
Wilson:
I think I'd like to say right now that I have great
respect for the professional code of conduct which Mr. Schorr mentioned, in
which individuals undertake honorable agreement with sources not to reveal
their identities. But those occasions upon which a reporter or an editor, or
for that matter, perhaps a publisher finds himself under subpoena and under
oath and obliged to conform to the ordinary citizens' obligation to testify
truthfully, in a public cause, are relatively few.
Nelson:
We've heard alleged that this is a, that there's a
persecution going on that indeed, that this is the legacy of the Nixon
years. Nixon and Agnew attacked the press and therefore the press is under
attack by government and indeed the implication is that it's powerless to
prevent that kind of accusation and defend itself. Isn't it true of course,
that there are institutions in this country that are members of the press
that are indeed quite powerful in their own right?
Wilson:
Well, it does occur to me that while the use of
confidential sources is an important element of the reporting trade, that
the press, and by inference, the networks, are not institutions without
power. I suppose the most important source of that power is probably the
recognition on the part of persons who are covered and reported upon, that
newspapers and television networks have long memories.
Nelson:
Indeed, also we could talk about the financial power of
some of these large corporations.
Wilson:
Oh, they're extraordinarily profitable,
yes.
Nelson:
The Washington Post had-
Wilson:
Just split its stock.
Nelson:
Not only that, had revenues last year of four hundred
million dollars, CBS had two point seven billion dollars.
Dukakis:
Gentlemen, I'm not quite sure I understand the
relevance of this to the question of privilege, however…
Wilson:
The question of whether or not, Mr. Moderator, the
press is being attacked, intimidated and chilled, in the pursuit of its duty
to the public.
Nelson:
Does that answer your question? Yes, the point is that
what is happening here is the press is trying to portray itself as an object
of sympathy, that is being maligned. My contention is that indeed many
powerful representatives of the press have a great deal of power in this
society.
Wilson:
In a recent political campaign, if I may interject,
there were candidates in Massachusetts’s primaries who felt that
insufficient attention was being paid to their activities. This caused a
good deal of ill feelings, my recollection.
Nelson:
Mr. Schorr has made the point that we can in effect, rely
upon the honor of the press to come forward at appropriate times to give
information to prevent a crime, whatever. Would you go along with the
allegation that all members of the press can be counted on to act in such an
honorable manner?
Wilson:
All judges, all physicians, all members of the
clergy, all members of the press, no I certainly wouldn't go along with
that. I think it would be a mistake to make as a matter of public policy a
judgment that journalists are in any way morally superior to any other
professional or vocational calling.
Nelson:
And in a question where there is a disagreement between
what the journalist perceives to be good for society, and what the judge
perceives to be good for society, who should be the final arbiter?
Wilson:
Oh, I think Socrates would agree with me, or I
would agree with him, that as a member of the community, and a lawful
community, one is bound to obey the appropriate authorities.
Nelson:
I appreciate the Socratic insight.
Dukakis:
On that classical note, let's turn to Mr. Nesson
for some cross examination. Mr. Nesson -
Nesson:
Mr. Wilson, instead of dealing with the press at large, let's
see if we can bring it down to the interests of the reporter and if I may,
let me try and put you in that seat. You write, you write opinions for a
living. Now, is that basically right? You're off the front line-
Wilson:
I'm an OP-ED writer, that's right, the lowest form
of life.
Nesson:
You're off the front line, so to speak.
Nesson:
You were a reporter at some time in your past
career?
Nesson:
Did you ever rely on a confidential source?
Wilson:
Did a confidential source ever rely on
me?
Wilson:
I think so. I'm afraid I would have difficulty
citing a specific instance.
Nesson:
Well, let me ask you to use your vivid imagination. You
work for a newspaper which has a heralded Spotlight Team.
Wilson:
A distinguished and prize-winning Spotlight
Team.
Nesson:
And they do rely on confidential sources quite a
bit?
Wilson:
They certainly do.
Nesson:
Now let's just imagine that you were one of those
Spotlight reporters and you, through a confidential source had gotten the
lead which led to a story about corruption in a local government and the
Spotlight Team had run it and Pulitzer Prizes had been showered upon it.
Now, let's imagine that a judge asks for your source. Will you disclose it
to him?
Nesson:
Why won't you, Mr. Wilson?
Wilson:
Presumably, because as a human being I've made an
honorable undertaking to another human being that I wouldn't do
it.
Nesson:
You think it's morally right for you not to disclose that
source?
Nesson:
Do you think it's professionally right for you not to
disclose that source?
Nesson:
Mr. Moderator, could you read the question to us that we
are debating here?
Dukakis:
I think the issue is if the judge ordered Mr.
Wilson to reveal it and Mr. Wilson chose not to and was sent to jail whether
or not that would be a better thing to ask him.
Wilson:
I beg your pardon, Mr. Moderator, Professor Nesson
hasn't mentioned jail yet.
Dukakis:
Well, I mentioned it for you.
Nesson:
Well let's, let's just pursue it a little further, Mr.
Wilson. Are you telling us that if the judge then threatens you with going
to jail, that you would cave in at that point?
Nesson:
You would pay some fines?
Wilson:
I'm afraid I would find myself in contempt. I
believe Mr. Farber did thirty-nine days and found his picture in the Press
Section of Time Magazine, which probably didn't damage his credibility or
his professional future.
Nesson:
Well he might, he might not have chosen to do it.
Nonetheless, it's quite possible, but here's-
Wilson:
Well we all have problems in our lives.
Nesson:
Here’s what I'm interested in. Here's what I'm interested
in Mr. Wilson. The picture that you paint is one of confrontation. It's one
in which we have the press holding out against the court, the court using
its instruments of coercion, the power of contempt, the power of jail, the
power of fine and it comes up against you, staunch Mr. Wilson will hold out
forty-nine days. Maybe I'll do sixty-nine days.
Wilson:
Well I'm no hero, obviously.
Nesson:
Well, tell me Mr. Wilson, what does it get us?
Wilson:
It gets us a society in which the government does
not have the right to determine who is or who is not a journalist, which of
course it must have to understand the privilege.
Nesson:
Oh, no no no no no, we've got two choices, either you're
going to cave in or you're not. Let's take it you're not going to cave in.
What you've proven is that the judges in this country are powerless. You've
flaunted the law, you've diminished the rule of law in this country. That's
what we get if you win. Is that a good thing?
Wilson:
I don't agree with you. I don't-
Nesson:
You don't think that the poor judge who winds up helpless
and finally has to let you out because he's exhausted himself?
Wilson:
Well at the risk of seeming like a skunk at a
garden party, I don't believe in interested parties, for instance,
publications and networks ought to have an unimpeded right to define the
nature of the First Amendment. The language is really quite
simple.
Nesson:
That's not the question, Mr. Wilson. Mr. Wilson, let's
now take it the other way. Suppose that you cave in, I mean after all,
you're not Superman. Suppose the judge lays fines on your paper of two
million dollars a day and your publisher finally says: "No we can't make it-
Wilson, cave in." What have we gained then?
Wilson:
Who are we in this case?
Nesson:
We, is you and me, and all the people sitting in this
room and all the people looking at us here on the television. What have we
gained from that?
Wilson:
Well I suppose what I have done is lost my job,
because my publisher, when I say no, I've taken this position as a matter of
principle, he'll say, " well you're going to have to practice your
principles elsewhere."
Nesson:
Mr. Wilson, it sounds to me like your prescription for
this situation is one of continuing confrontation, where the only choices on
each side are to escalate and I would have thought that we'd learned
something in the last fifteen years about situations that bog us down in
that kind of quagmire.
Wilson:
Well I don't know that we've learned.
Nesson:
Mr. Wilson, you talk about the great power of the press,
the great institutions of the press. Alright, you are familiar with a number
of smaller papers I take it?
Nesson:
Not everyone earns four hundred million?
Nesson:
Indeed there have been cases where after five thousand
dollars of legal fees, a newspaper has said, "that's it, we can't spend
anymore." Are you familiar with those?
Dukakis:
This will have to be the last answer, Mr.
Wilson.
Dukakis:
I'm afraid gentlemen, I'll have to break in at
this point. Mr. Wilson, thank you very much for being with us. For those of
you who may have joined us late this evening, our debate is about what is
called journalists' privilege, the right of a journalist or reporter to
protect, to keep secret if you will, the sources of his information.
Advocate Charles Nesson has presented one witness, Daniel Schorr in support
of the right to protect sources. Mr. Schorr has indicated in his long career
as a journalist its importance. He has used those sources and he believes
they are important to a free society. Advocate Avi Nelson has presented a
witness, David Wilson, also a distinguished veteran journalist who has
challenged the notion of a journalists privilege as a right which should
always take precedence over other rights in and our of court.
Now we're going to go back to Mr. Nelson who will be
presenting his second witness. Mr. Nelson -
Nelson:
Thank you. I call Professor Larry Simms.
Dukakis:
Welcome to The Advocates, Mr. Simms, nice to have
you with us.
Nelson:
Professor Simms would you give us a few words by
way of background?
Simms:
Ah, yes. I'm formerly law clerk to Justice Byron
White, ah, counsel to Reporters Committee for Freedom of the press in
Washington. I'm presently an adjunct Professor of Law at Georgetown
University, where I teach a seminar entitled Free Press Seminar and I'm an
attorney in the Office of Legal Counsel in the Department of Justice.
Nelson:
I have here a copy of the Constitution of the
United States. Is there any place where it is written that there is a
guarantee for the privilege of journalists to keep their sources
concealed?
Simms:
Not in that document.
Nelson:
Is there however in this document, something which
guarantees the right of a defendant to a fair trial and vigorous
defense?
Simms:
Ah, there certainly is. The Sixth Amendment to the
Constitution specifically guarantees the defendant a right to a fair trial
and the courts have held that to include for example, the right to attack
the credibility or believability of a witness against the defendant and also
the right of compulsory process, the right to summon witnesses in your
behalf.
Nelson:
Can you, unlike Mr. Schorr, imagine a situation
where indeed a defendant would need the sources of a journalist in order to
prove his innocence?
Simms:
Yes, I think it's very easy to imagine such a
situation. For example, ah, there may be a sole witness to a murder. This
sole witness may be interviewed by a reporter and gives the reporter one
story ah, he may then be interviewed by the police, ah the next day and give
the police a very different story not for ill reasons at all. Ah, it comes
to trial time, the witness is called by the prosecution, testifies
consistently with what he told the police ah, the only defense the defendant
may have at that point is to attack the credibility, the believability of
the chief prosecution witness. The only person capable of doing that is the
reporter who is given this prior inconsistent story ah by the witness. With
an absolute privilege, the defendant is simply denied that
information.
Nelson:
And without it, he has the right to ask the judge
and the judge may rule that the sources should be revealed?
Nelson:
The question is whether the judge shall be the
final arbiter or the reporter shall be the final arbiter.
Nelson:
What other costs do you see, let's go the other
way. Supposing this privilege is granted. What are the costs to society that
you see would follow?
Simms:
Well, costs to defendants themselves and indeed
there are also costs to society or the potential for sending innocent people
to jail, which is indeed, the notion of sending an innocent person to jail
is absolutely antithetical to our entire system of justice in this country.
Ah, costs to society generally on the other side are the very real prospects
that prosecutions will be aborted. Ah, for example, if the prosecution of a
former Attorney General Mitchell, and the rest of the Watergate gang had
been aborted midstream by a claim of their need for confidential information
and the invocation of an absolute privilege, indeed the judge even being
unable to determine the relevance of the information sought because he
wouldn't even know what information was in the possession of the reporters.
I think that would have been a serious blow to the faith of the American
people of criminal justice.
Nelson:
And of course there is perhaps on a less grand
scale the possibility that murderers and rapists will also be let to go free
of this absolute privilege is granted?
Nelson:
If we continue along this line, if the privilege
is granted, will this indeed protect sources?
Simms:
I doubt that the incremental increase in protect
will be very great. The theory of course is that is the source can believe
that the reporter will not be compelled to reveal the information or the
identity of the source, he will come forward. However, as everyone is
generally aware, a lot of good top notch investigative reporting results in
a libel action,
Nelson:
And of course the source is dependent that the
journalist won't reveal the information as to who gave him what ever it was
that he printed?
Nelson:
So it's a one sided privilege at best, even if,
granted at the extreme level that is being asked for?
Dukakis:
Gentlemen, you'll be able to continue this a
little bit later, but now it's time to go to Mr. Nesson, for Mr. Simms'
cross examination.
Nesson:
Mr. Simms, you worked for the Reporters Committee for
Freedom of the Press?
Nesson:
You were its general counsel?
Nesson:
Do I understand correctly that it is a key objective of
the Reporters Committee for Freedom of the Press to establish the
proposition that reporters should have the right to protect their
sources?
Simms:
Ah, the Reporters Committee as I understand it was
never able to take a position squarely on whether an absolute privilege
should be granted and indeed whether a statutory privilege as opposed to a
constitutional privilege.
Nesson:
Oh come Mr. Simms, that's not the question I've asked
you. Isn't it clear that the Reporters Committee, its whole reason for being
was to protect reporters against the onslaught of judges who were after them
for confidential sources?
Simms:
Historically, I, I would guess that's correct
because the committee
Nesson:
And you were its counsel. Did you believe in the
proposition while you represented them?
Simms:
I believed in the propositions that the Reporters
Committee was involved in asserting while I was their counsel.
Nesson:
Ah, but now you've changed your mind?
Simms:
The, the issue came up only on one occasion when I
was their counsel and did not involve the assertion of an absolute
privilege.
Nesson:
Now you work for the Department of Justice?
Nesson:
And now you believe in what the Department of Justice
believes in?
Simms:
I believe, Mr. Nesson, for example, that the
guidelines that have been enforced in the Department of Justice since 1972
ah which regulate very tightly the issuance of subpoenas to newsmen, ah, had
been extremely successful. Indeed there has not been one situation ah since
then, in which a reporter has been tossed into jail, having been held in
contempt for refusal to ah comply with the subpoena issued by the Federal
government.
Dukakis:
Mr. Simms, what are those guidelines, could you
tell us briefly?
Simms:
Ah yes they require…
Dukakis:
Under what circumstances?
Simms:
They require the Attorney General's personal
approval before any subpoena is issued.
Dukakis:
And that's an official order to produce
information, I take it?
Nesson:
So the Attorney General is your final arbiter under that
scheme?
Simms:
Under that scheme he is, except to the extent of
course, that the reporter is always free to challenge the validity of the
subpoena in court.
Nesson:
Terrific. Let's get to the heart of it Mr. Simms. Um,
you've said that there is a conflict between the rights of free press and
the rights of fair trial. The fact is that you are one of the most
articulate spokesmen of the proposition that there's no conflict at all. If
I'm correct, at a meeting of the National Press Conference, you articulated
the position that there was no conflict, that a judge once it appears clear
that a confidential source must be penetrated in order to provide a fair
trial, has the option of dismissing the prosecution against the defendant
thereby eliminating any problem with fair trial. That was your own
statement, was it not?
Simms:
I think that, that was my statement.
Nesson:
Indeed you criticized the Farber case and these are your
words as "phenomenal" "outrageous" "an indefensible act." That was you
talking, was it not Mr. Simms?
Simms:
Ah, yes, and I’ll explain those remarks. The Farber
case involved the legislative decision on the part of the New Jersey
Legislature that reporters in that state should have a virtually absolute
privilege. Ah, it's my philosophy that when a legislature makes that
decision that they are an appropriate body to make that decision and that a
court should always respect that decision.
Nesson:
So that in your mind, Farber should not have gone to
jail?
Simms:
Ah, yes, precisely, because I believe that the New
Jersey Legislature determined that he should not go to jail.
Nesson:
The New Jersey Legislature made a policy judgment, the
very judgment that is at issue here, that reporters should be able to
protect their sources.
Nesson:
And Farber should not have gone to jail?
Simms:
According to the New Jersey Legislature,
yes.
Nesson:
Now, Mr. Simms, you even went on the articulate in this
transcript that if some cases have to be dismissed it will in fact be a very
few cases compared to the many that are dismissed in order to protect our
Fourth Amendment rights to privacy. It was you who said on a daily basis,
cases are dismissed because of illegal searches and seizures. We do that to
protect our Fourth Amendment, rights to privacy.
Nesson:
Ah, you said that we would not also protect the First
Amendment?
Simms:
Well there is of course a difference. I stated at
the outset that there is no recognized First Amendment right on the part of
reporters to protect their sources.
Nesson:
There is a recognized right in any place where people
agree with the proposition which I am advocating, that is that reporters
should have a right to protect their sources.
Nesson:
Thank you Mr. Simms.
Dukakis:
Well let's let him, why don't you take a very
quick quarter of a minute to answer him.
Simms:
Well I would simply add that in the case of the
exclusionary rule mentioned by Professor Nesson, the values you are
protecting by aborting prosecutions are values which we all hopefully will
continue to recognize as constitutional values. However, there's some doubt
about that with the present Supreme Court. Whereas the values that we're
talking about in the proposition advanced by Mr. Nesson are not as I assume
he admits, Constitutional values.
Dukakis:
Okay, let's turn back to Mr. Nelson for a
question or two.
Nelson:
Ah, perhaps we should establish again that you are
speaking for yourself and not for or on behalf of the Justice
Department.
Nelson:
We also ought to, I think emphasize that there's a
difference between policy and law. Your point about the Farber case was that
there was a law in New Jersey and you thought granted the law, behavior
should have followed a certain course of action. But as a policy, would you
have agreed with the formation of such a law?
Simms:
You mean had I been a New Jersey Legislature,
Legislator, would I've voted for the law?
Nelson:
So as a policy, you are suggesting that there
should not be absolute privilege granted to journalists?
Simms:
Not an absolute privilege.
Nelson:
Are there any absolute privileges that are granted
to anybody in this society, that is the kind that is being asked for
here?
Simms:
I believe that there are not.
Nelson:
For example, lawyer-client privilege we hear a lot
about, or doctor-patient, or priest-penitent, are any of these as absolute a
privilege as, as being asked for here?
Simms:
In, with respect to virtually all of those
privileges as well as Constitutionally based privileges such as the right
not to incriminate yourself, the judge in virtually all cases has the
recognized power to determine first whether the privilege is properly
asserted and secondly whether if it is properly asserted it should
nevertheless be recognized or not recognized depending on the
situation.
Nelson:
So the judge is the final arbiter in all those
cases?
Nelson:
But here it is asked that the reporter shall be
the final arbiter?
Nelson:
He shall be able to-
Dukakis:
Gentlemen, I have to break in at this point. Mr.
Simms, thank you very much for being with us. We're getting very lawyerly
and we have another lawyer about to take the stand, Mr. Nesson another
witness, please.
Nesson:
Mr. Floyd Abrams.
Dukakis:
Welcome to The Advocates, Mr. Abrams, nice to
have you with us here.
Nesson:
Mr. Abrams, you represented the New York Times in the
Supreme Court of the United Stated in the Pentagon Papers case?
Abrams:
Yes, I was one of the counsel there,
yes.
Nesson:
You've represented all of the major networks?
Nesson:
And you represented Myron Farber?
Nesson:
Tell us Mr. Abrams, is it your impression that reporters
are under increasing pressure with respect to subpoenas for confidential
sources?
Abrams:
I don't think there's any question Mr. Nesson. The
amount of subpoenas has increased the amount of pressure has increased, more
reporters go to jail, more reporters are put to the test of deciding whether
they're willing to go to jail, more sources have to consider whether they're
willing to trust reporters or not. The numbers themselves reflect a vast
increase in the amount of subpoenas served on reporters over the last ten
years.
Nesson:
Indeed, am I right that the very organization that Mr.
Simms was counsel for used to keep track of these things, but stopped
because the numbers go too large?
Abrams:
Yes, when they got past 600 they couldn't count
anymore and so they decided that 600 was enough and they stopped counting.
But the very organization that he was counsel for would tell us again and
again, would tell me again and again that someone had called them for
advice. How the problem was exasperated by the amount of judges that were
issuing or approving more and more subpoenas.
Nesson:
Is it also your impression that subpoenas to reporters is
an increasing tactic of defense counsel?
Abrams:
I don't have any real doubt of that it is just
beginning. I would have to say, but it is certainly an increasing tactic of
defense counsel which one sees in a variety of cases.
Nesson:
And what does defense counsel want? Why are they using
that tactic?
Abrams:
Well, let me say that, that for 180 years it
wasn't used because for 180 years it was clear that reporters didn't have to
give this kind of information. They weren't part of the judicial system in
that sense of being called as witnesses. In the last 15 or 20 years and
particularly in the last 5 or 10 years it's happened more and more and I
think more often than not at least it's because the defense lawyer would
like to focus on a very different issue than the guilt or innocence of his
client, but instead, the marvelous other issue of whether the reporter will
go to jail or not, whether the reporter will produce the information or not,
in short to put the trial in a situation where the person on trial is not
the defendant but the reporter.
Nesson:
Now let's look for a moment at the question that Mr.
Nelson has been pressing upon us. You're familiar with judges in your
practice, I take it?
Abrams:
Some of my best friends are judges.
Nesson:
I take it you would agree that the vast proportion of
judges are sincere men who in good conscience, believe that they are
advancing the rights of the Constitution and to the defendants?
Dukakis:
And some women too, I assume.
Abrams:
And women too, absolutely.
Nesson:
I take it you would also agree that there are many judges
who come to power through political connections?
Abrams:
The judge I clerked for once told me, "You must
always remember, Floyd, that a judge is a lawyer who is a politician who has
a friend."
Dukakis:
Former, former governors might claim a personal
privilege to what you just said, Mr. Nesson.
Nesson:
Can you explain to us then Mr. Abrams, why reporters are
reluctant to turn over their sources to judges?
Abrams:
Well I think for two reasons, Mr. Nesson. First,
the source doesn't give information with the thought in mind that it's going
to go to a judge. If he'd wanted to go to a judge, he would have gone to a
judge. Instead he goes to Dan Schorr, because he trusts Dan Schorr not to
reveal the information. For some of the very reasons that judges are
trustworthy and attractive and responsible, respected members of society
they aren't often the people who are afraid of people on power want to go
to. Beyond that and for the reasons that your earlier question suggested,
there are sources who would be particularly afraid about going to a judge
who is perhaps friendly with the political party which is involved in a
particular law suit or the political power structure which is involved in a
particular journalistic article.
Nesson:
Mr. Abrams, tell us what do you see happening in the
future if things keep going in the direction that we're on?
Abrams:
Well I see more confrontation and then again still
more confrontation and I think the courts have learned unfortunately, that
if they push hard enough, they can win. If they fine enough, if they jail
enough, I think that much of what we have in this country will be lost. I
hope the courts who have the power after all to put reporters in jail have
the power to put newspapers out of business if they fine enough will not do
that. It's up to them. All we can do is to hope that they will choose in the
exercise of their power and not to exercise that awesome power.
Dukakis:
Mr. Abrams, let me break in at this point. Mr.
Nelson has some questions you.
Nelson:
Mr. Abrams, you've passed some dispersions on the
members of the judiciary in the country.
Abrams:
I don't think so.
Nelson:
I think they would think so. Would you also say
that some members of the journalistic profession are not honorable?
Nelson:
In our society, it is not only customary, but by
law, required that when there is a question between competing interests in a
court room the judge is the final arbiter.
Abrams:
Yes, journalists have gone to jail because the
judges are the final arbiter, yes.
Nelson:
But you would ask for a privilege so the
journalist would not go to jail, in other words, that the judge should not
be the final arbiter?
Abrams:
What we've said is not that the First Amendment
should be held to mean, as as matter of law and policy is that journalists
should not have to go to jail. I've never sought a journalist going to jail.
I've been saying they shouldn't have to go to jail because society needs
journalists free enough to gather the news.
Nelson:
You would ask for them a privilege beyond what is
granted now to lawyer-client, doctor-patient, priest penitent is that
so?
Abrams:
In fact it is not beyond. I mean if Mr. Farber had
told me, inferred the same kind of information which was sought from Mr.
Farber, no judge in the country would have tried to get it from me, because
they would know a lawyer wouldn't have to give it.
Nelson:
Mr. Abrams, that's not answering the question, the
question is that the lawyer-client privilege can be pierced by the judge.
You're asking for a privilege between journalist and source that cannot be
pierced by the judge.
Abrams:
The lawyer-client privilege cannot be pierced by
the judge after it is clear that information was given to the lawyer
confidentially in the course of his representation. It may not be
pierced.
Nelson:
But it is not, but isn't it not so that the judge
has a right to ask, to decide whether that information was indeed falling
under the lawyer-client privilege?
Abrams:
He is not entitled to ask what the confidential
information was.
Nelson:
But he is allowed to find out whether or not it
falls under that privilege.
Abrams:
By finding out if there was a confidential
relationship.
Nelson:
But here we don't even, we're not even allowed to
ask that.
Abrams:
Sure you are. No one is saying that you can't find
out if a reporter had a confidential relationship. All we're saying is that
if he had it, he shouldn't have to reveal what it was he was told.
Nelson:
And if the judge decides in a lawyer-client
relationship that the information was not under the privilege, he can so
rule. You are not offering him that opportunity, if you have this absolute
privilege.
Abrams:
He can so rule in a case, Mr. Nelson. I'm not
saying the judge can't rule, what I'm saying is what I think he should
rule.
Nelson:
But that's not at issue. The question is whether
we should have as part of the legal structure in the United Stated the sole
arbiter being the reporter or whether the judge shall be the final
arbiter.
Abrams:
I don't think that's the question, the question
seems to be -
Nelson:
Well then we disagree. Let me go on to then
another area. Can you use your imagination to come to a situation where the
defendant would need the sources of a journalist in order to prove his
innocence?
Abrams:
No, I have never heard of such a case in two
hundred years of this country's history.
Nelson:
This side, the other side seems to have a dearth
of imagination in this area.
Abrams:
I would be very interested if you could cite me a
case.
Nelson:
Well the fact is however, that because judges have
clearly disagreed with you they have indeed asked for sources and when the
journalists refused, they sent them to jail, so obviously they disagreed
with your interpretation.
Abrams:
They disagreed with my legal interpretation.
Abrams:
Of the First Amendment?
Nelson:
They are the cases that I will cite for you. But
let me get into another area. In terms of the journalist profession-
Nelson:
Who shall be defined as a journalist?
Abrams:
I think the best definition was one which the
Carter Administration has used in proposing legislation to reverse the
Zurcher opinion about searches and seizures in journalists offices which
essentially says, that anyone gathering information, including scholars, for
example, for ultimate dissemination to the public should be defined as the
press for purposes of that kind of privilege.
Nelson:
Well but let's take it a little bit further.
Supposing we have somebody who is a criminal who finds out now that there is
an absolute privilege to be granted to members of the press who sets himself
up as a member of the press, so we have the Godfather Daily Journal being
printed where the clear indication is that here is somebody trying to use
the law to subvert the law. Who shall be the final arbiter of the
definition?
Abrams:
As to the definition, the courts, we do that in
freedom of religion, Mr. Nelson, we define what a religion is not
withstanding the impossible task of doing that.
Nelson:
But what a curious position you have placed
yourself in now you are allowing the courts to decide who is a member of the
press or perhaps a legislature to decide who is a member of the press which
will undoubtedly abridge the press, the freedom of the press to a much
greater extent. But you won't let a judge under legitimate circumstances
decide whether certain information should be revealed to the courts.
Abrams:
We have a different sense of curiosity. I don't
find it curious at all-
Nelson:
Yes, I find it disappointing, I take back
curiosity.
Dukakis:
Mr. Nelson, let's let Mr. Abrams respond. This
will have to be the last answer.
Abrams:
I don't find it surprising even at all that, that
judges are the ones who will say who is a journalist or not. Now there may
be another way to do that but that doesn't seem to me at all as awesome a
threat as saying I don't care who’s a journalist he has to divulge all of
his sources.
Nelson:
We are indeed on opposite sides because I would
think-
Dukakis:
Gentlemen, I'm afraid I have to break in at this
point. Mr. Abrams, thank you very much. Mr. Nelson, we've run out of time.
We've reached that point in our debate this evening when it's time for our
advocates to sum up. Mr. Nesson you have one minute for a closing.
Nesson:
Thank you. You don't find real cases in which revealing a
reporter’s confidential source would provide evidence crucial to a
defendant. Mr. Nelson has to make them up. What you do find increasingly are
cases in which a defense lawyer in search of a diversion, confusion, an
issue for appeal, goes after a reporter on the theory, "Maybe he's got
something. How can we tell unless we look?" That's a fishing expedition, and
the resulting fight between judge and reporter is just what the lawyer
wants. It's a fight we can only lose. If the press holds out, goes to jail,
pays its fine, then the authority of our judges is flaunted and the rule of
law is weakened. If the press caves in, an instrument of news gathering
essential to reporting on government corruption, and incompetence is
damaged. Far better to recognize that reporters should have a right to
protect their sources.
Dukakis:
Thank you Mr. Nesson. Mr. Nelson, one minute for
closing.
Nelson:
These are not figments of imagination, these are cases
where the judges have decided that sources should be revealed. We come back
again to the unanswerable argument that if there is absolute privilege
granted, then there may be defendants who cannot prove their innocence,
there may be guilty people who may go free to go back into society. The
question here is whether we should grant to the journalist a privilege so
absolute and so broad that it is not offered to lawyers and clients, to
doctors and patients, even to priests and penitents. I contend that there
are individual rights that we must maintain. That there are individual
rights that are important if we are defendants and they cannot be sacrificed
on the altar of journalistic privilege. It is important to keep in mind that
even for the press itself, this may be a dangerous policy to follow. Because
we may indeed get into the situation where the judge and the legislature
shall define who is a member of the press and that would subvert the freedom
of the press to a much greater extent than the occasional mandatory
revelation of sources. We live in a constitutional democracy and we should
recognize that the final arbiter ought not to be the reporter upon his
discretion, but the court of law. That is the best way to protect the rights
of all of us, journalists and individual citizens alike. Thank you.
Dukakis:
Thank you Mr. Nelson. Thank you both very much
for excellent cases and now we turn to you, our audience because we want to
hear from you. What do you think? Should journalists have the right to
protect their sources? We hope you'll send us your yes or no vote with your
comments on a post card to The Advocates, Box 1979, Boston, Massachusetts
02134. Let me repeat that, The Advocates, Box 1979, Boston, 02134. I'd also
like to remind our viewing audience that this season The Advocates is
sending study guides each month to some 90,000 social studies teachers
across this country and if you would like a copy of our study guide for any
of the next Advocates shows you can get one by writing to the Center for
Radio and Television for Learning, WGBH TV, Boston, 02134. We hope you will
join us next week. I want to thank Mr. Nesson and Mr. Nelson and their very
distinguished witnesses for a very lively and provocative debate this
evening and a special word of thanks to our hosts here at the Kennedy School
at Harvard University. Good night and thank you for joining us on The
Advocates.