The Press and First Amendment Rights

Alan M. Dershowitz

professor of Law, Harvard University

MY NAME IS ALAN Dershowitz and my sole distinguishing characteristic on this panel is that I have never had anything whatsowever to do with The Harvard Crimson...Let me introduce the panel to begin. Then I'll make a brief introductory statement and we'll be on ou way. At the extreme left is Mr. J. Anthony Lukas, graduate Harvard 1955, who is currently a free-lance writer and contributing editor of MORE, a new national journalistic review. He served with The New York Times for ten years successively in Washington, the United Nations, the Congo, India and on the Sunday Magazine. He has won a Pulitzer Prize, the George Polk Memorial Award and the Mike Berger Award and several others in 1968. He's written two books, The Barnyard Epitaph and Other Obscenities, which is a book about the Chicago conspiracy trial, and an absolutely brilliant and sensitive book called Don't Shoot, We are Your Children, a collection of essays about young people. He's currently working on another book and teaching at Yale. To his right is Professor Stephen R. Barnett who graduated Harvard in 1957 and Harvard Law School in 1962. While he was here, he was on The Crimson and served as its President. After Law School he was the law clerk for Mr. Justice Brennan, probably the Justice on the Supreme Court who has taken the most interest in the rights of the press and has written the most important opinions on the rights of free press. He's now a Professor of Law at the University of California at Berkeley specializing in the law of mass media, on which he has an article in the current issue of The Nation. To his right is Professor Hiller B. Zobel, who graduated Harvard 1953 and the Harvard Law School in 1959. He was the associate sports editor of The Crimson, practiced law in Boston and now teaches at the Boston College Law School. He is co-editor of the legal papers of John Adams and author of an intriguing book on the Boston Massacre. To my right is Sanford Ungar, who is now staff writer for The Washington Post, where he has been serving since 1969. He is currently a member of the national news staff covering the Justice Department and the FBI; he was previously assigned to the Federal courts and now is covering the Ellsberg trial in Los Angeles. He is the author of a book called The Papers and The Papers, an account of the legal and political battle over the Pentagon Papers, the Senator Gravel case and the almost revolution. He was an associate managing editor of The Crimson while he was here. And to his right is Mr. Irvin M. Horowitz who is the, or, starting with important things first, was the sports editor of The Crimson and briefly the managing editor back in the years 1943 through 1947, with some Army experience in the meantime. He's now assistant national news editor of the The New York Times, which he joined in 1957 as a copy editor on the national news desk. Between 1964 and 1966, he served as an assistant news editor of the international edition of The Times Tribune in Paris--the Times part of it is now defunct. In 1972, he coordinated national political coverage from the New Hampshire primary through election day.

BEFORE WE TURN to the panelists, I just want to say a brief personal word to introduce the subject of today's discussion and I want to do it by trying for just a moment to put freedom of the press in the United States in 1973 into a proper perspective. We are surely not, at least in my view, as some radicals would have us believe, a repressive society. We are not as Charles Reich of Yale would have us believe, on the brink of totalitarianism in this country. We are by any objective standard among the freest countries in the history of the world and perhaps the freest press that the world has ever known. But there are attempts abroad in the land, from the highest places, to cut back on this freedom, to make the press more responsive to the wishes of the government in power and less critical of its actions. The recent flap over confidentiality of news sources was only the tip of a very ugly and dangerous iceberg. As Henry Steele Commager recently put the broader issue, "Not since the presidency of John Adams has any administration so instinctly distrusted the exercise of the freedom of the press." Nor should the fact that we are, and are likely to remain in my view, the freest nation with the freest press, make us less vigilant in preserving our liberties. As Justice George Sutherland put it many years ago, "Do we the people of this land desire to preserve the First Amendment. If so, let us withstand all beginnings of encroachment, for the saddest epitaph which can be carved in the memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was time." I think that provides an appropriate theme for today's discussion and what I would like to do now is simply call on each of the panelists, in order of where they are sitting, to speak for five minutes or so. Then we'll have an exchange among the panelists and then we'll welcome questions and discussions from the floor. Let me begin then by calling on J. Anthony Lukas.

J. Anthony Lukas

contributing editor, MORE Journalism Review

BEFORE I MAKE MY remarks--I assume this does not cut into my five minutes--I've been asked to read a telegram which is addressed to Dan Ellsberg in Los Angeles. I note that appropriately enough Mr. Ellsberg is now living in something called Bunker Hill Towers in Los Angeles. The telegram reads, "On the occasion of the celebration of the 100 Anniversary of The Harvard Crimson we are immensely pround of the brave and important contribution you, one of our former editors, has made to the freedom of the press, to the ideal of open government in which the people have the information they need to participate meaningfully in the public decisions that have a crucial effect on their lives. We greatly regret that the government's lack of sympathy for these fundamental American principles prevents you from being with us at this celebration. Nevertheless our thoughts and our hopes are with you and we celebrate your efforts as an expression of the best traditions of The Harvard Crimson. Executives and staff of the Crimson" That's signed by a number of people who were here when Dan Ellsberg was here, and I have been asked to say that although we are not soliciting hundreds of signatures--it really would not be meaningful to him--if there are people who knew him when you and he were here together I assume that he would appreciate your coming forward and signing it if you wanted to.

AS FAR AS THE subject at hand, I would like to say that I share Alan Dershowitz's view. I think my perspective is much the same as his. I think we do have a free press in this country. I do think there are dangers. But I'd like to say that I think that those dangers are as great from within as from without. I think that what we're facing now is, ironically, as much internal restraint as outside repression. Perhaps that outside repression or outside attempt to control or inhibit the press is reinforced and really given its greatest impact through internal restraint by newspapers and, at times, by outright cowardice. I think that the worst thing about the Agnew attacks was not that they directly destroyed the journalist's will to resist, but that they gave editors a very curious argument--an argument which I think has been terribly effective. I can speak with some personal experience in this regard, because I have been confronted directly or indirectly in this argument a number of times at my former employer, The New York Times.

The argument which I confronted is "you really have no right to be doing what you're doing now--to be subjecting us to the kind of criticism you are subjecting us to. Don't you see that you've caught us in a vice. We are resisting the pressures from the administration and yet we're being undercut and sabbotaged by our own people. For crying out loud, lay off! Let us defend! Let us, the editors of The New York Times, or the editors of The Washington Post, or the editors of Newsweek, or the executives of CBS, let us take care of the First Amendment. Don't you worry your head about it. Don't you worry your head about the performance of the press."

Now I have a great deal of respect for many of the men who say this, but I think they're wrong. I think the worst thing about Agnew's attack is that it has given some apparent credence to that kind of argument against internal criticism. "Since we are publishing the Pentagon Papers, lay off us!" What's really wrong with the press's performance in this country today was wrong long before, Spiro Agnew decided to attack the press. The inhibitions, the failure to date, the failure to do really good investigative reporting, the failure to do sympathetic and empathetic reporting about social affairs--these were wrong long before Spiro opened his mouth. They are still wrong, and I do not believe that the fact that the press is under attack from outside is any reason for us--I still regard myself as a working journalist, though I don't work for an organization anymore--for us as working journalists to lay off.

I would like to give you just one example if I may, one example of what I mean by this. What to do I mean when I say that it's inner inhibition as much as outward repression which is the problem? My feeling is that the most inhibiting possible thing in the Washington Bureau of the New York Times--and I am being specific here because I no longer have to worry about not being specific--is the fear of the bureau chief of that paper, and here I don't mean any particular bureau chief, that he is going to get a call at 6 p.m. some night from the National Desk, or worse yet from the managing editor, and the call is going to go something like this: "Listen, we just got word that AP is carrying a story, or that The Washington Post is carrying a story, that Kissinger has been meeting with Le Duc Tho somewhere and has just agreed to trade the franchise of the Washington Redskins to Hanoi for the prisoners and they're going to be released in Bangkok starting tomorrow morning at 7 p.m. G-130's will be flying them, and we need that story for the first edition." That's an hour and half away, at the most two hours. The bureau chief runs out and he grabs the White House correspondent, or the diplomatic correspondent. He says, "Look, Jesus you know, we've got to get this story, The Post is carrying it and it's one of the biggest stories ever--the Redskins, hometown team, you know--we got to get this story." So they both sit there and the guy says, "Who are we going to call?" They pick up the phone and they call Kissinger. "Hi, Henry, how are you this is Tony Lukas at The Times, yeah how are you? Listen, The Washington Post is carrying the story...ah, you know anything about it? Ah, you don't know anything about it at all, Henry? No, nothing." I mean of course this is hyperbole; he's not getting through to Kissinger. He's getting through to one of his assistants. The fact of the matter is that this is really a big story, a big, big story on deadline, and you can't match it. Right. And you've got to call the managing editor back and say, "Nobody over there will talk to me." "Oh, why won't they talk to you?" Because he rubbed their nose in it a little bit yesterday, he did something so they won't answer the phone, or if they answer the phone, they won't know what he is talking about.

Earl Caldwell used to report on the Black Panthers - then the grand jury got to him.

Caldwell took his case up to the Supreme Court also but five of the justices said he had to reveal his sources.

By that time however the grand jury had disbanded and was no longer interested in talking to Caldwell. Of course neither were the Black Panthers.

THE DEPENDENCE ON SOURCES is great in any administration but in my view in this administration--I hasten to add that I have not covered the Nixon Administration in Washington and I don't want somebody out there to say it, I'll admit it...but I have talked to many people who have--my impression is that the dependence on sources now is so great that that fear must operate with any reporter. But I feel that one of the greatest single things a managing editor of a great American newspaper could do would be to say to his White House correspondent, or to his diplomatic correspondent, "Look, you are not doing your job well unless five times a year you get beaten on a big story, because if you don't get beaten on a big story every once in awhile, I'll know that you're much too cozy with your sources." And why should they be available to a reporter every time he picks up the phone? There have got to be a couple of times where you pick up the phone and you have outraged them that week. And the simple fact of the matter is that on most Vietnam stories, the State Department is not a good source anymore. I mean, Rogers doesn't know what's going on. There are about four guys who know, probably, in Washington. If you've been doing your job, probably five times a year you've outraged those guys. But the fact of the matter is...that newspapers don't run that way. Newspapers want to match the opposite paper every day of the year--and thus the pressure to play the source game. Thank you.

Stephen R. Barnett

professor of Law, University of California, Berkeley

I THOUGHT I WAS going to be taking a rather off-beat tact, and I feel somewhat upstaged by what Tony just said because what I mean to say is quite similar...I'm also concerned about...internal restraints on the press and about the information that gets through to the public, rather than about the governmental restraints that we are usually concerned with. I would suggest that while we hear about the press as an entity--and Tony did too--it seems to me that it's really important to make a distinction, a distinction that the Nixon Administration for one makes very carefully and distinctly and calculatedly but that others don't make so much. This is a distinction between the journalists in the press and the owners of newspapers and the broadcast media as well. Now it may be that among the media that Tony talked about--The New York Times, The Washington Post, Newsweek, CBS--are unusual cases where there is not the kind of conflict and difference of interest that I see in many outlets of the press between the journalists and the meida. I would suggest that if the attacks on the press that we see today are to be repelled, it is going to take an effort by journalists not only against the government--not only to win the battles against the government in terms of subpoenas, in terms of the Pentagon papers, and so forth--but also an effort by the journalists against the owners of the media.

Now why is this so? I think one can look and see that the Nixon administration's attack on the press has not been a blunderbuss attack--it's been in part a very careful effort to separate out the owners from the journalists and to cater to the different interests that the owners have, largely economic interests, and in that way to get at the flow of information. At the same time, in sort of a pincer movement, they do have Agnew or Whitehead or whoever, attacking the journalists as such. Over the past four years, this hasn't been too well reported and it's significant that it hasn't been too well reported. The reason becomes pretty obvious--there have been a whole series of moves by the administration, while attacking the press on one front, to massage its economic interests on the other. For example, a couple of years ago, when all the chain papers in the country wanted Congress to pass this thing called the Newspaper Preservation Act, Congress did so to the accompaniment of very little coverage in the press. The Nixon Administration, overruling its own Justice Devartment, supported that bill and Nixon then signed it. You can see it too in FCC appointments. Nixon's appointments to the FCC have been completely friendly to the industry, in fact, it seems to me, they've probably been cleared by the industry ahead of time. Dean Birch is the one exception. He's only about 85 per cent pure from the industry point of view; he happens to have a conscience and a pretty good mind, and therefore he can't go along with quite everything, so they are trying to throw him out apparently.

You see it also in various private meetings that the Administration has had with the owners of the media. There was one last June with broadcast executives in Washington at the White House. A couple of years ago, Nixon went around the country to brief the press and the people he briefed of course were the publishers, the owners--not the newsmen, in many cases not even the editors. That is a part of the effort; of course, I'll get in a minute to the leading example of that, which is Whitehead's current campaign. But this has succeeded in many ways...in dampening the flow of information for the public. It has succeeded as well as the frontal attacks...It was reported recently that management of CBS stepped in during the campaign to cut down a documentary they were doing on the Watergate affair at the behest of or in response to pressure by, the White House. CBS is generally good about these things; CBS claims that its management never interferes in its news judgment--if this story is correct it's one exception to that--but there are many outlets of the media which don't make any such claim.

OF COURSE, THE LEADING example and the clearest case of manipulation of management is the recent license renewal bill proposed by Clay Whitehead which is...trying to give the owners a present if they in return will cut down on the news. "We'll give the owners of the stations a five year license term, and protect them from challenges if they eliminateideological plagoola and elitist gossip from the network news." Of course we all know what that means. The theory of it is, as Whitehead says, to get the local station owners who supposedly are the pillars of the community, the people to whom we give the licenses, to be the ones who control the news, the national news yet, rather than the journalists. And of course if this works, one can see what the effect will be. It's been suggested in the current Newsweek cover story on the media that it's already working--someone is quoted there as saying, "What do you think your chances would be these days of getting local network affiliates to clear a documentary on the bombing of Hanoi?" One can see they might not be too good. Well, if one analyzes exactly what's in the Whitehead Doctrine it becomes clear that it's been attacked largely on the wrong ground. It's been attacked on the ground, the technical ground, of "How the hell can the local station have time to step in and cut off Walter Cronkite even if it wanted to?" Beyond that, and of more substance, it's suggested, "Why is a local station owner in a position to know what to do about national news anyway?" I think that is the wrong issue, too.

When one looks at the fact, one finds that these local station owners Whitehead is talking about don't exist. In general, the big television stations are owned by national companies, by the networks among others, so that you have national owners in the first place, so that the conflict isn't there. If Whitehead really means the local managers rather than the national owners, one would have to ask, "Are they willing to guarantee the independence of the local managers from their national bosses?" During the campaign the Newhouse organizaiton, which owns four television stations around the country, sent out a wire to all of them to endorse Nixon for re-election. Is the White House through Whitehead willing to protect the local managers against that kind of national control so they don't have to take orders if they don't want to? It's obviously an impractical way to run a national organization.

Further, we don't infact choose the station owners the way Whitehead suggests we do; he says we license these people because they are pillars of the community, therefore let them control the news. In fact, of course, you can buy a station if you have the money for it--it takes lots of money--and then the FCC will approve your getting the license. What Whitehead may come down to then is simply saying that the station owners are responsible and therefore they should control the news. They are responsible in the literal sense that they are the guys the FCC can take the license away from.

That becomes a circular argument because Whitehead goes on to say that therefore, we don't have to have the FCC looking over their shoulder, we don't have to require them to balance the news and so forth, because they are good guys. But if the basis of their being good guys is that the FCC does have power over them, then it's a circular argument. So what the real White House position comes down to, it seems to me, is they want the news controlled not by newsmen but by businessmen, by the owners, the managers of the stations. It's suggested that the businessmen are more conservative than the newsmen, and that may be true. I find that an invalid argument because I can't subscribe to the notion that it is a good thing that the newsmen are liberal and we want a liberal slant on the news rather than a conservative slant.

IT SEEMS TO ME THAT while there is something to that, the stronger argument is they (the Administration) want the businessmen to control the news because the businessmen, unlike the journalists, are vulnerable to White House pressure, vulnerable to economic pressure--they'll do anything not to lose their broadcasting licenses. The publishers a couple of years ago would do anything to get this Newspaper Preservation Act passed. They are the people who are vulnerable to White House pressure and that is why the White House wants them in control of the news. So it seems to me from all these points of view that there is a threat, and one can already see an impact on the news from the private constraint that comes from the owners of the media as distinguished from the journalists. I think that the journalists themselves should assert their rights not only against the government, but they should seek ways to assert their rights, demand new rights against the management. Now there are various ways in which this might be done. This leads to the whole movement of so-called democracy in the newsroom, which strikes me as something of a misnomer because you do want editors and you have to have a hierarchy. But the notion is that the news should be controlled by the professional journalists and that the management should have no right to interfere, and this is supposedly the creed that is followed by The New York Times, The Wall Street Journal, a more conservative kind of paper, CBS, and etc. And it seems to me that movement is quite related to the danger to the information flow. There are various ways this can be brought about--collective bargaining is one of them. This is already started, there is a lot of talk about this in the journalism reviews.

Also, through the FCC; the FCC has cases saying you can't have a newsman with a conflict of interests. When Chet Huntley was broadcasting a commentary about the media industry at a time when he owned a corporation in the media industry, the FCC said that's bad. It seems to me that you can apply the same thing to the managers, since they have these conflicting interests: the owners--they should not have the right to control the news, the right that Whitehead says they should have. And I would suggest also that the newsmen ought to do more whistleblowing of this kind, even at the peril of their own jobs. If CBS is shortening a documentary, if a newspaper is not putting the Watergate affair on the front page, I'd like to see more whistle-blowing...

Hiller B. Zobel

professor of Law, Boston College

I COME TO SPEAK NOT IN LARGE terms, because my own predilection is to do things microscopically. The aspect of the press-government or First Amendment tensions that attracts my attention these days is the growing, amorphous debate over whether or not newspapermen and women journalists should be exempt from testifyign before a grand jury or elsewhere...concerning the sources of their stories. Now there is in the journalism profession, obviously, a high dependence on sources. I think the story that Tony Lukas began with today will clearly illustrate that. The question is whether that dependence on sources is of such Constitutional importance that a newspaperman being asked to testify should be permitted to say that he will not testify as to information which any other citizen so situated would have to disclose at the risk, for non-disclosure, of spending some time behind bars. The question is whether a newspaper person who has been told something in confidence by an individual on the outside should have the privilege to refuse, at the newspaperman's discretion, not to reveal even the name of the source.

THUS, A REPORTER WHO has interviewed a member of a motorcycle hell squad, just to take one lurid example from millions, when asked in the course of a grand jury investigation into a murder supposed to have been committed by that hell squad, can if there is to be a journalistic priviledge refuse to disclose any information pertaining to the crime so long as that information has been disclosed to him in confidence. Further, he need not disclose the name of his informant. Now the thing that bothers me about the dispute over the journalistic priviledge is that it tends to create automatically white-hat, black-hat. There is an assumption that a journalist being asked to disclose the identity of his source is being asked to do so in order that justice may triumph, in order that repressive government may flourish, and in order that a lazy district attorney may somehow save the police some time. Furthermore, there is generally...an assumption that if there is not to be a journalistic privilege is that it tends to create its ability to exhume dishonesty and impropriety in government. Because nobody will talk to a reporter, so the argument goes, unless the reporter can guarantee that the sources of identity will never be revealed.

Mr. Hume of the Anderson entourage wrote a very appealing piece in The Times Magazine section about a month ago, in which he said, in words or substance, that if a government source couldn't be guaranteed anonymity, the government source wouldn't testify. Well I throw open to the assembled group whether that is an a priori assertion or whether it is really true--demonstrably true. It seems to me that people in government with information very frequently don't care whether their names are used or not when they go to a reporter. Another point that I think is worth talking about is the ownership of the privilege That is to say, who can claim it? In analogous privileges in the law, for example, the attorney-client privilege, or the doctor-patient privilege, the privilege belongs to the person who has imparted the information. The lawyer can not testify to what the client told him, unless the client so authorizes it. Furthermore, the client himself can't be compelled to testify as to matters imparted in confidence to his attorney.

Now the journalist's privilege as it is postulated in various shield laws and draft shield laws and arguments concerning them, is that the journalist himself is going to decide when the information will be made public. He's going to decide for himself when the source will be revealed and as I understand it, the argument is that there is a sanction on the journalist--and that is if he ever peaches a source, he'll never get another source again. I wonder if that's a priori or for real.

The last thing that I want to say at this point--reserving the right for rebuttal--is that once we establish a workable, that is to say an identificable journalist privilege, once we have a standard, it seems to me that constitutionally the standard is going to have to be sufficiently general so that it will cover situations such as one that arose in Boston a couple of days ago, where a defendant had information that two journalists knew of a conspiracy. Now this is of course allegation but that doesn't destroy the import of the example. He had information that these journalists had talked to members of a conspiracy to prejudice in effect a pending criminal trial. In the course of the hearing to transfer venue he, the defendent, summoned the two journalists and wanted to get them to disclose their sources. Now there are large issues of relevancy which dilute this example, but the point is still there, and that is there are going to be times when a good guy or woman is going to want to cause a journalist to talk and it bothers me when we try to establish a privilege covering journalists that we're going to cover too much.

Sanford J. Ungar

staff reporter, The Washington Post

I'D LIKE TO START OUT by taking issue with something that Tony Lukas said that I think goes to the heart of some of the problems that the press is having in the United States today. Tony suggested that the dependence on sources is greater now during the Nixon Administration than in the past, and I really don't think that is true. I think that the difference is that journalists, for the most part--especially those who work for the so-called Eastern establishment newspapers--were very in and very chic during the Kennedy and Johnson administrations. Their friends were White House advisers, State Department and Defense Department officials; people they'd gone to school with, people they knew and lived near; and they depended on sources enormously during the Kennedy and Johnson administrations. But it was easy at that point. Now there is an administration in Washington which is populated by people from, of all places, Arizona and other places out in the heartland that the journalists in Washington and New York and Boston don't know, and don't know how to reach as easily.

EVEN WITH HENRY KISSINGER there I think it's a different situation only in the perception of the reporters and the ease with which reporters can perform their jobs. And so the difference is in one respect, I think, that the press was used very successfully by the Kennedy and Johnson Administrations; I think there was no better example of that than the way in which The New York Times and the way in which The Washington Post were forced to defend themselves during the civil litigation over the Pentagon Papers. When they came into the court with affidavits opposing the Justice Department's request for preliminary injunctions, the affivadits were full of stories about how editor X or reporter Y had met in the White House with President Kennedy or President Johnson. And President Kennedy had shown him some material that was top secret and was, under the current Justice's Department definition, injurious to the national interests. And there was one story after another in those affidavits on how chummy these editors and reporters had been with the Kennedy and Johnson administration people.

Well, that worked; it avoided the injunctions, it contributed greatly, I think, to the decisions of the courts that they could not grant a prior restraint in this case because, really, The New York Times and The Washington Post in one sense were doing just what people had done before. But I think it showed something very important about the way the press has operated in the United States, especially in the 1960's, which is the period of time that was relevant then. And that is that the press has been very, very willing to cooperate with the government system, with the bureaucrats who want to provide information without having their names attached to it, and the press in the United States has in many ways performed a Pravda-like function in getting the views of President Kennedy and President Johnson across to the people without any opposing point of view included in the stories. And I think that it was especially clear during the Pentagon Papers incident that suddenly the press was really confronted with an administration that was less cooperative with the press.

There was no pretense, at the time that reporters were doing their stories under the Kennedy and Johnson Administrations, that those documents were being given to them by President Kennedy or President Johnson or some other high officials because it was in the interest of the high officials to do so and the press was cooperative. The press was being a fully cooperative and dues-paying member of the establishment that helped control the access to information of the American people. I think that one of the differences now is that this administration doesn't feel exactly the same way, that newspaper people have to try and reach a different kind of person, people that they are not friendly with, that they didn't go to college with. In many ways I believe that Vice President Agnew has been expressing a point of view that many people in the Kennedy and Johnson administrations felt very strongly--and held themselves--and I think we have evidence that President Johnson felt that way.

When news of an appointment leaked to the press in the Johnson Administration it killed the appointment and he damned the press for it, I think that I fully agree that the danger to the press is very great because government officials are expressing this, but I am not sure that it's all that much different in character if they're expressing it or if they're just feeling it and manipulating the press in the way they've been able to do for a long time. And what seems to pass without notice is that only recently--I think last week, or the week before--Senator McGovern was in Boston and he too blamed the press for his defeat. We didn't carry that story in The Washington Post and The New York Times on page 1 the way we carried our stories when Clay Whitehead says something like that or when Agnew says something like that, because this is George McGovern talking and maybe it's because he's just smarting from defeat or he's become a little bit irrational in the aftermath of the election. But what he's saying is really not all that different in character from what the Nixon administration officials are saying: "The press did me in, it's the press's fault that this has happened to me." I wonder how Senator McGovern will in good faith stand up on the floor of the Senate when Mr. Whitehead's bill, or any number of Nixon's administration legislative measures, come up in the next four years and defend freedom of the press, and defend the right of the press as a true zealot of the press at that time. I don't think he could in conscience and convincingly, do that.

I'd like to turn to just one other point right now referring to something that Professor Zobel said. I think that the dependence on news sources, as I said, is great now, but has been great before and will always be great if there is to be any true reporting and true provision of information to the press. And I think that Professor Zobel's example was telling for one particular reason. He said that when a government official goes to a reporter, he probably wants to be known, he probably wants to be identified. It's a pretty sorry thing that the public and law professors and the press itself has to assume at this point that it's the officials going to the press rather the press going to the officials.

I CAN SPEAK FROM personal experience. I expect that other journalists here and in the room can speak from experience. It is demonstrably true that when a reporter is trying to find out information from a news source, a governmental source especially in Washington, that the officials will not talk without a protection of their identity and quite often the next day will deny the very same story that they have given to a reporter with documentary evidence the day before. Now it might be nice for a reporter to be able to go into court and embarrass that official once or twice and show that he was really lying when he denied the story or somehow covered his own activity. But I think that the principle is a far greater one than to be spent on the embarassment of a few government officials and I think it's also a far greater principle than to worry about good-guys versus bad-guys. And I have no hesitation whatsoever about saying that if it be a good guy who wants to name of my source, somebody who is defending a point of view or stands for something in a case that I believe in, that I am no more entitled to provide that information when it be a good guy than when it be a bad guy. I think that the only way that reporting can maintain any sort of high standard or respect among the people that reporters have to deal with is for the principle to be absolute.

For the decision to protect sources to be absolute, and without exception under any circumstances--that when the crush comes and somebody in the Watergate case wants to subpoena tapes from The Los Angeles Times, tapes that still exist--it seems to me that it ought to be the publisher of The Los Angeles Times who refuses to turn them over and the publisher who pays the penalty rather than the bureau chief or the reporter involved. I think that the only way that the principle can be preserved is to increase the cost of violating it both for the press and for the government.

Irvin M. Horowitz

assistant national news editor, The New York Times

I'M SORRY THAT EVEN though we are five and a moderator, that we are still disproportionately represented here, because there are two lawyers, and three newspapermen and nobody here whatever who speaks for the organizations that are in my view the most threatened of all--the television and radio networks. The First Amendment does protect the press-the press doesn't need an FCC license--and I think Professor Dershowitz is right when he says ours is the freest press in the world. I'm sure that is so. It's not the same case with the television networks and while I don't feel competent to speak for them, I hope somebody in the audience does. But I wanted to make the point that as harrassed and as much in difficulty I think the press is, it does triple in spades for the television networks. And let us not, we here who deal in the printed press, forget that for everything we write and edit and for everybody who reads what we write and edit, there are probably at least 25 to 30 people in the country who never see what we write and edit but who do watch network television; that by far, the majority of the people in this country get their news not from what we write, not from what we edit, but from what Cronkite says and what Brinkley says and what Chancellor says and what Reasoner says and what Smith says. So I hope that when the discussion from the floor comes that we get into this area more because to my mind that's a far greater threat than what we in the news business and the print-news business face.

I'D LIKE TO MAKE A few points about some of the things the other panelists have said. In terms of internal restraint, I can answer the point that Tony Lukas made; being on the other end of what he is talking about, I understand what he says and I agree that he is direct to the point, but speaking personally, I would much prefer to be beaten not by The Washington Post, not by CBS, but by The Washington Star-News or the Indianapolis News or the Phoenix Star or the Chicago Tribune. The reason I say that is that I think that Mr. Agnew, in his speeches in '69 and '70, succeeded beyond any of our imaginations. He so succeeded in my opinion in making the general public suspicious of the Eastern elitist establishment press--The Post, The Times, The Wall Street Journal, to a lesser degree, and the networks--that when The Post came out this fall with all that material on Watergate there was a great inclination on the part of a great many people to yawn, to agree with Ron Ziegler, who said, "Well, look where it comes from."

If you will recall when Ziegler commented on all the things that were disclosed in The Washington Post, he almost never addressed himself to the author, to the originator of the material, namely an outfit that is obviously anti-White House, anti-administration and, "Who can believe them?" One of the reasons, I think, that the public did greet that with a yawn was Agnew's very successful implementation of this thesis--that he placed in the minds of an awfully lot of people in this country--that you can't believe those leftist, liberal, pinko people. So therefore I would say, speaking for myself, I would love to get beat by one of those other papers. I don't like to get beat by anybody; Tony is exactly right on that point. Nobody likes to get beat in the business. It's probably juvenile but then we wouldn't be newspapermen if we weren't eternal adolescents, I think. The fact is we hate to get beat, but I would much, much rather be beaten by some organization that isn't lumped with my organization as one which is not to be believed anyway because it has pre-conceived prejudices.

In connection with what Professor Zobel said, I would like to make one point that I don't think he made with sufficient clarity. As a result of the Supreme Court decision in the case of Earl Caldwell and two others, there is no privilege. He talked about shield laws and draft shield laws; that case, at least as I read it, means there is no privilege for a reporter to claim immunity from testifying before a grand jury or anyone else except in those few states that since the decision--and the only one that I know of is my home state of New Jersey--have enacted a shield. All this discussion is about proposed legislation: there are any number of bills that have been drafted in Congress, but as things stand now, there is no such privilege. People have gone to jail, people are in jail for failure to disclose, and given the situation, hereafter people presumably will continue to go to jail. I would agree wholeheartedly with Sandy Ungar that the only way really to crystallize this issue and to get it debated in the way it should be, is that people like Otis Chandler or Punch Sulzberger or Katherine Graham go to jail.

That, I think, would dramatize the issue sufficiently and I think there are people--at least there are at my place and I'm quite sure there are at The Washington Post--who would go to jail to test this principle. That would really dramatize the issue, but not the bureau chief, not the reporter out in the field, but the publisher or the managing editor or somebody at that level whose name is reasonably well know, and whom the administration might just be a little embarrassed to put manacles on and lead off to prison.

Another point in connection with what both Tony Lucas said and what Sandy Ungar said about sources is--and being by far the oldest greaybeard on this table I can talk before Johnson, before Nixon and before Kennedy--that there was an administration in Washington between 1952 and 1960. It was headed by a Republican; his name was Dwight Eisenhower. The reliance on sources in the Eisenhower administration, a Republican administration, was as great then as it was in the Kennedy administration, as it was in the Johnson administration, or as it is in the Nixon administration. Neither more nor less. What's different between the Nixon administration and the Eisenhower administration is the degree to which sources are buttoned up. Everytime a Nixon appointee shows any degree of friendliness with the press, he is either silenced or let go. It is the general belief among the Eastern elitist establishment press that the outgoing Secretary of Commerce, Pete Petersen, was a very able guy. What killed him was that he talked to newspapermen, he liked them and they liked him. He is no longer the Secretary of Commerce.

But the point that I am trying to make is that in an Eisenhower administration, which I would say was more or less neutral, the same reliance on sources, the same sourcing, the same unidentified source kind of leakage went on as went on in the Kennedy and Johnson administrations. I want to reinforce what Sandy said that it is the press that must pay the penalty for being, as he said, as cozy as it was with the White House in those two administrations. There are a lot of us who went to Harvard, who were on The Crimson, who were in Signet or lots of other places with a lot of other people who were in the Kennedy administration--we had made it very chummy. It was like being on Mt. Auburn Street all over again and the result of that of course was that a lot of material came in this way. I will agree too that with the Nixon administration, there are very few reporters I know who went to the University of Southern California. If they did they are in great shape, but unfortunately, there aren't too many of those.

To pursue this point one step further, the degree to which the printed press was relatively ignored in the 1972 campaign by the White House and by the Administration is without parallel in my journalistic career. In the whole 1972 campaign, I didn't get one telephone call from one Republican complaining about biased coverage. That is extraordinary, and the only conclusion I can draw is that they didn't care. They felt they had discredited us to such an extent that nothing we wrote made any difference; on the other hand, we got not too many but enough phone calls from the McGovern people who felt perhaps rightly that they'd been maligned. They cared.

It turned out that it didn't matter whether they cared or not, just as it didn't matter whether Nixon people cared or not. But the Nixon people in my view felt they had neutralized the press to such an extent that it didn't matter if we wrote nothing; and I think at sometime, they might have preferred if we had written nothing because, as it turned out, it didn't matter whether we wrote anything or didn't write anything. But as a journalist, it was extraordinarily difficult for me to deal with the situation in which one of the two candidates really didn't give a damn whether the press existed or didn't exist. This is something that we in the business will have to address ourselves to; I can't conceive of it happening in 1976 because there won't be a sitting President, but that one-sidedness was without parallel, at least in my memory.

Alan M. Dershowitz

I WANT TO COMMENT very briefly on the presentations. I found among the presentations, in some respects, a failure to distinguish sufficiently between manipulation by the government and manipulation by others. For example, Professor Zobel uses the camparison between the prosecutor seeking information in the face of a privilige and the defendant seeking information in the face of a privilege. Sandy Ungar blames McGovern, the losing candidate as much as the people in power. Tony Lukas compares business pressures from within the government pressures from without.

Without making a comparison it reminded me a little bit of Vice President Agnew's statement a few months ago when he characterized some encyclopedia writers who had been critical of the President in an article they had done as gerbils of the wet. Well it seems to me that the lesson of history is clear that one can only be gerbils if one is in government, if one has the power.

Although there is much to fear from people out of government repressing and oppressing, the fear of government doing it is so much greater and so much more legitimate and so much more substantial that the comparisons are simply not apt ones.

The other point I wanted to comment on briefly was particularly Professor Zobel's pooh-poohing privilege and making what I thought were a lot of lawyer's points about the privilege and particularly whose privilege is it. Well that's a detail, that's a technicality: I would agree with Professor Zobel that it should be the privilege of the source, and if the source is willing to be revealed, the newspapermen should not have the privilege--the newspapermen should be obligated, in effect, to say I know that my source does not want me to reveal this either because I've asked him or because that was his understanding in the beginning. If the source wants the information revealed--first of all it is no problem, we can simply reveal this now--but it shouldn't be any privilege. Second of all, about defendants, there really is a distinction it seams to me between the government seeking information and the defendant seeking information--that's a distinction which the law recognizes in many contexts--that the defendant's right to establish a reasonable doubt about his guilt is more to be preferred than government's right to establish its case.

IT'S STILL NOT A black-hat, white-hat principle; the government's prosecution may indeed be the good guys and the defendants may be the bad guys. After all, journalists are not the only people who claim privileges. Lawyers have privileges, doctors have privileges, psychotherapists have privileges, priests have privileges in many jurisdictions. The question therefore is not, as Professor Zobel would put it, why should the journalists, distinguished from any other citizen have the right to disclose, but really who shouldn't the journalists right be regarded as importantly as the rights of the others? Lawyers, in addition to having a privilege, have articulated responsibility that is, we have guidelines as to when we can and when we cannot reach. Journalists unfortunately don't.

I think the courts look unsympathetically at the claim of privilege, in part because there is no canon of ethics by journalists. There is no enforcement mechanism--there are a few kind of unofficial canon of ethics which were filed in the court, but they didn't have the imprimatur of formality that the canon of ethics of the bar association had. So I think that journalists could probably move a long way towerd getting a more sympathetic hearing of their privilege if they would be willing to be critical of misallegations of the privilege. For example, as I think one prominent journalist recently wrote, although he supports the privilege completely, in at least two of the recent cases where people went to jail it was shoddy journalism. A journalist should not say that he has information that somebody has taken a bribe without being willing to come forth and indicate with more substantiality that that bribe has been given. A canon of ethics committee which can enforce affirmative obligations as well as protect sources would probably be a welcomed thing.

Finally it seems that the fear we have today from the government is a two-folder, a pincer fear. As Professor Barnett mentioned proviously, not only is the government seeking more information from people through the grand jury than ever before, from journalists, but it's also willing to give less information. At the same time, the Supreme Court seems to be turning away from a notion of privilege of any kind. We get bills now pending in Congress which seem very likely to be supported and passed which would give the government the power--in effect give the government the privilege, give people like Henry Kissinger and even lower-ranking executives a much greater privilege to refuse to respond to congressional inquiries at the same time it takes it away from the journalists and others.