What's So Special About the Press?

SOMETIME LAST SPRING I turned on my T.V. and found myself watching a Harvard professor, standing on the steps of the Federal courthouse, explaining to the people of Boston his special place in our society. As a scholar, Professor Samuel L. Popkin argued it was his function to search out the truth and pass it on to the rest of us--and to facilitate his performance in this role we should grant him immunity from testifying before the grand jury about the sources of his information.

As Popkin spoke, the legal distinction he was drawing seemed to grow into a social gulf between himself and his television audience. If the young professor was making it clear that he was a scholar, he was making it equally clear that most of the people watching him were not. As Popkin described it, his case was only an exception. After all, it was not everybody's job to search out the truth, only the job of scholars. Popkin would do this job for the rest of the country, and the rest of the country, in return, would make Popkin's clothes, take out his laundry, and grant him immunity from testifying. Popkin's interview was followed by the hockey news. While the rest of Boston became absorbed in the action, Popkin presumably slunk off to divine the truth.

But it remained unclear just how Popkin had come to be a scholar instead of others. Maybe Popkin's position with Harvard entitled him to this special status. Was immunity from testimony before grand juries a fringe benefit of a Harvard assistant professorship? (Had Popkin considered that the privilege might only come with tenure?) I had always thought that every citizen should be encouraged to search out the truth. "Let me do the thinking for us both," Popkin seemed to be saying. I couldn't figure out how I had come to play Bacall to his Bogart.

POPKIN'S DEFENSE presupposed that a clear distinction can be drawn between those who are scholars and those who are mere citizens. His argument is based on a corporatist vision of society, where different people play different roles, and have a correspondingly different legal status. The claims of reporters to a journalists' privilege are analogous in their assumption of a social division of labor which concentrates the investigative function in a distinct class. Popkin and other academics could be the brains of society, and reporters would be the eyes--leaving the rest of us to fight for the positions below society's neck.

The scary thing about the arguments of Popkin and the press is the way their assumption of the continued existence of a definable investigative elite undermines our ideals of an open, democratic society. In an ideal democratic situation, the continuation of a free and open exchange of ideas would be insured by the activities of each citizen as a "searcher" for the truth. To some extent, every citizen would be part scholar and part journalist. When Popkin and the press claim that as investigators they are an "exceptional" occupational group, they threaten to make our failure to achieve these valid democratic goals the foundation of legal policy regarding testimony.

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Justice Byron White, in the majority opinion of the now famous Caldwell case, outlines the legal terms this problem of potential elitism:

Sooner or later it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that the liberty of the press is the right of the lonely pamphleteer who uses carbon paper and a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocompositional methods. Freedom of the press is a fundamental personal right which is not confined to papers and periodicals. It necessarily embraces pamphlets and leaflets... The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.

White then goes on to imagine circumstances under which such a discriminatory distinction would be demanded if the limited nature of the journalist's privilege was to be preserved.

Such a privilege might be claimed by groups that set up newspapers in order to engage in criminal activity and to therefore be insulated from grand jury inquiry, regardless of Fifth Amendment grants of immunity [from prosecution]. It might appear that such "sham" newspapers would be easily distinguishable, yet the First Amendment ordinarily prohibits courts from inquiring into the content of expression, except in cases of obscenity or libel, and protects speech and publication regardless of their motivation, orthodoxy, truthfulness, timeliness, or taste.... By affording a privilege to some organs of communication but not to others, courts would inevitably be discriminating on the basis of content.

The situation White fears seems totally bizarre. Mafia leaders hardly seem the type to enroll their legions of hit-men and bookies as reporters for local Italo-American weeklies. Nevertheless there is a serious core to White's argument. Certainly, a distinction between 'legitimate' and 'illegitimate' newspapers is one to be avoided at all costs. But without such a distinction, there seems to be no way of preventing the unlimited extension of the journalist's privilege. If everyone who occasionally writes a pamphlet qualifies as a journalist, the day might come when it would be nearly impossible to get anyone with important private information to testify against his will. Our current system of criminal justice would be radically reduced in efficiency, possibly to the point of breakdown.

WHEN THE PRESS ARGUES that such a situation is unlikely, it merely expresses an inability to see beyond the status quo. In fact, the arguments of the press requrie the courts to search continually for a definition of "journalist" which would keep the class enjoying the journalist's privilege small--if, as the press claims, its privilege is not to threaten the grand jury system. But the distinction between journalist and non-journalist seems easy to make only by discriminating against the amateur reporter, the spare-time scholar and the inquiring citizen. Do we want to protect the journalists on "established" papers if that means saying that only writers for established papers are journalists?

White's basic arguments apply with double force to Popkin's notion of a scholar's privilege. Even today it is difficult to distinguish a scholar from a non-scholar--after all, most of us have written term papers in our time. And who is to say that any man on the street will not write a book before Popkin, at the customary leisurely scholarly pace, gets around to publishing his findings. In a country of well-educated and supposedly inquiring citizens, Popkin's claim to be an "exception" by virtue of his occupation borders on the offensive.

MOST JOURNALISTS, when defending their claim to immunity from false testimony, seem willing to accept the need for a somewhat discriminatory definition of journalist. But a policy which would deny 'amateur' journalists and leafletters equal access to confidential news sources poses real dangers. There was a time not so long ago when lonely pamphleteers provided information to the student community that was not available from the 'professional' papers and broadcast media. For example, a hastily-constructed civilian and military underground spying network kept tabs on the U.S. air build-up in Southeast Asia, releasing facts and figures which had not been discovered by wage-earning reporters. If the courts sought to prevent the limited journalists' privilege from becoming universal, it is not unthinkable that such semi-professional journalistic efforts, as well as The Black Panther, Hard Times and The Harvard Crimson, would be considered "illegitimate" and denied the privilege of protecting sources.

FURTHERMORE, A LIMITED journalist's privilege could, in effect, limit the practice of muckraking journalism to precisely those media organizations which are most susceptible to economic pressure from Washington. The emerging tactic of the Nixon Administration against the free flow of information is not one of the attacking journalists in the courts, but a policy of wooing the businessmen who head media corporations with promises of economic security. This strategy is most evident in the Whitehead bill for Federally-licensed television stations, where local channels are offered longer five-year licenses in exchange for an end to "ideological plugola." The press is not immune from such Federal pressure. Many hard-pressed dialies would like to see the passage of the so-called Newspaper Preservation Act. Given such pressures, a competitive fringe of "amateur" investigators may be necessary to keep the big media honest.

Above all, it is important to preserve the principle that all forms of printed communication; from The New York Times to the garbled leaflet of a local lunatic, are equal in their First Amendment rights. Marxists sometimes talk of the significance of "substantive," case-by-case, justice as opposed to the unimportance of a purely formal justice based on principles of equality. But the violation of formal principles, even in seemingly trivial cases, can lead to substantive wrongs in the long run. The principle of discrimination used to brand Mafiarun papers as "sham" one year can be used the next year to disqualify a Crimson reporter who is a member of a left-wing group.

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If the only way to limit the journalist's privilege is to discriminate against pamphleteers, maybe the way to save the privilege is not to limit it at all. We might simply be prepared to forego the testimony of those criminals who bothered to establish "sham" newspapers. This seems to be the position taken by Justice William O. Douglas in his dissent in the Caldwell case.

Not only does Douglas uphold the journalist's absolute right to exemption from testimony (he chastises The New York Times for its "amazing" position in the case, where the Times asked only for a qualified privilege to be granted in the absence of "compelling state interest"), but he argues for radically extending the privilege to cover acts of investigation undertaken by all citizens:

...the people, the ultimate governors, must have absolute freedom of, and therefore privacy of their politcal opinions and beliefs regardless of how suspect or strange they may appear to others. Ancillary to that point is the conclusion that an individual must have absolute privacy over whatever information he may generate in the course of testing his opinions and beliefs. In this respect, Caldwell's status as a reporter is less relevant than his status as a student who affirmatively pursued empirical research to enlarge his own intellectual viewpoint.

In Douglas's hands, the limited journalist's privilege becomes a privilege of all citizens in certain situations, not linked with any occupational status. And, under one possible definition of a process of "testing," the privilege might apply in a near-universal fashion. Since most of us presumably guide our lives by some beliefs and opinions, almost every action we take is an action which might test those beliefs, and every piece of information we receive might call those beliefs into question. As long as citizens maintain a reflective attitude towards their own beliefs, all of their knowledge is "generated" in a process of "testing" beliefs. If Douglas's doctrine were strictly applied, most citizens in most situations would be excused from testimony before grand juries.

THIS DRASTIC CUT IN information-gathering power might be tolerable if restricted to grand juries, which have often been used to track down political dissidents (as well as to investigate organized crime and the Ku Klux Klan). But the consequences would be more alarming if the privilege were logically extended to its application in the courts. And would we really want Donald Segretti, when summoned before either a jury or a court investigating the Watergate affair, to be able to avoid testifying by claiming that all the facts he knows were generated "in the course of testing his opinions and beliefs?" A system which depended on voluntary testimony would be of little use in investigating a government with a penchant for secrecy.

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Neither a discriminatory, nor a universal privilege seem to be acceptable policies: the first has dangerous elitist implications, the second costs too much in terms of the efficacy of the courts. Justice White, who poses this dilemna, decided that no type of journalist's privilege was justified. But the loss of information which his Caldwell decision imposed on the public compels us to look for a solution to the dilemna, a solution which avoids both discriminatory and blanket grants of immunity from testimony.

If there is such a solution, it would seem to require either diminishing the scope of the journalists' privilege, or else tying that privilege to inherently limited situations rather than occupations. A more conservative interpretation of Douglas's notion of "testing" might hold that a citizen's investigative activities qualify him for a journalist's privilege only when he is acting as a completely neutral observer. Any hint of personal involvement in the case would justify denial of the privilege. Such "neutrality" is perhaps what Justice Douglas has in mind when he talks of Caldwell's "affirmatively pursued empirical research."

Since suspected criminals would not be "neutral observers," this doctrine would take care of the hypothetical "sham" newspapers. However, it would also involve a considerable amount of de facto discrimination against part-time, politically active journalists. Journalists who marched in peace marches would not be allowed to withhold information in cases arising out of those marches. And it is even questionable whether most full-time journalists would put up with this sort of restriction on their private lives.

STILL, IN PRINCIPLE, this criteria could be extended to any citizen who decided to take up an observer's position in order to "enlarge his intellectual viewpoint." (Since it is actions, and not sentiments that are here required to be neutral, a journalist needn't express a neutral point of view. "Ideological plugola" would be allowed.) And because most citizens would be unwilling to always adopt such a disinterested stance, the instances where such a privilege would be granted would be inherently limited. Perhaps fulfillment of the traditional ideal of neutrality, at least with respect to actions, is the price journalists must pay for the privilege of not having to open their minds in court.

Other potential solutions might try to prune the journalist's privilege into a less costly shape. For instance, journalists could be allowed to protect the sources of published information, but could still be compelled to reveal all other information in their possession (providing none of this information would reveal the source's identity). Thus reporters could withhold the names of sources, but not necessarily all notes and tapes. The burden would then be on the source to tell the reporter no more than he is willing to see brought to light--either in print or in court. It is doubtful whether Caldwell would have been admitted to a Black Panther headquarters during a shootout if he could only have promised not to reveal identities, but would have had to reveal under oath everything else he saw. Still, some forms of confidential leaks where the information flow could be carefully regulated by the source might not be discouraged by such a qualified policy of journalists' privilege. At the same time this privilege, even if available to all citizens, would not pose as great a threat to the efficacy of the courts as a broader privilege to protect all information gained in confidence.

Neither of these solutions is perfect as expressed, but at least they represent an alternative to a privilege based on a discriminatory definition of journalist and an elitist notion of the professional reporter's role. White's arguments should be taken seriously, but to date they have been passed off in the press as just more reactionary claptrap from the Nixon Court. Newspapers have been content to avoid the issue of elitism, preferring to print long and sincere articles pleading "Save the First Amendment" and mobilizing their libbies in the legislatures behind the passage of "shield" laws.

WE SHOULD NOT EXPECT the press to doubt its own cause on its own pages. Most reporters are probably convinced of their ability to get the truth out to the public, if only they are allowed to shield their sources. Filled with awareness of their own competence, they are confident that their readers have no need for lonely pamphleteers.

But self-righteousness is probably mixed with self-interest in this case. The reporters who are most immediately hurt by the Caldwell decision are the elite. The New York Times can hardly be expected to care what happens to its amateurish competitors on the fringes of American journalism. But if the press's lobby is successful, we may soon find ourselves with shield laws which establish a privileged investigative elite, and sacrifice an important principle of the equality between all types of journalism and scholarship. Even in this dark time, when a strong press seems to be the best hope of maintaining the possibility of change, we should be careful that the price of survival is not set too high.