Farber's Case: Freedom And The Press

WHATEVER ITS OTHER EFFECTS on The New York Times's fortunes, the New York newspaper strike appears to have spared the paper the embarassment of reporting recent events in the M.A. Farber case. Farber, the Times reporter who, along with his paper, was cited for contempt of court last month for refusing to permit Judge Isidore Trautwein to examine his notes in camera, admitted in court early this month that he had accepted a $75,000 advance on a book he was preparing on the Mario Jascalevitch murder case. He also admitted to having shown his notes to one of his publisher's editors. Even worse, Farber apparently had concluded his book contract without the knowledge of his superiors at the Times or of the attorneys retained by the paper to defend him.

The Farber affair began last spring, when Farber refused to permit defense counsel in the murder trial of Dr. Jascalevitch to examine his notes for a series of investigative articles that had spurred the prosecution of Jascalevitch. Farber and the Times had argued that the defense had failed to show that any information gleaned from such an examination would be relevant to Jascalevitch's defense, and, more importantly, that such a subpoena violated First Amendment guarantees of press freedom. Jascalevitch's counsel responded that he could not demonstrate the relevance of material he had not been permitted to see, and that a refusal to make the material available to the defense would effectively deny Dr. Jascalevitch his Sixth Amendment right to a fair trial.

Judge Trautwein suggested a compromise to finesse, if not resolve, the constitutional conflict: he ordered Farber to submit his notes for a closed, in camera inspection by the Court, which would determine which, if any, of Farber's notes must be turned over to the defense. Attorneys for Farber and the Times rejected this approach, however, arguing that it too violated the First Amendment, and that Judge Trautwein had failed to show why such material might be relevant to Jascalevitch's defense. Trautwein responded by citing Farber and the Times for contempt of court.

Farber's latest admissions severly undermined the Times's and Farber's case--if not in a court of law, then at least in the court of public opinion. The fact of the book contract suggested that Farber's refusal to release his notes might stem not from journalistic necessity, as he claimed, but from more commercial considerations. Moreover, Farber's willingness to permit the examination of his notes in the informal setting of a publishing house rendered somewhat unconvincing his contention that an in camera examination would compromise the confidentiality of his sources.

Yet, if Farber's revelations have tended to obscure the issues originally raised in the case, it is more important than ever to consider those issues seriously. The Farber case dramatically highlights the double-edged significance of the growth of investigative journalism in the last several years. The same press that can inform the public and thereby protect citizens from attempts to curtail their personal and political rights may also inadvertently set in motion proceedings that may deprive individuals of their life and liberty.

IN REJECTING Judge Trautwein's attempt to fashion a workable, if imperfect, compromise between the demands of the First and Sixth amendments, the Times has refused in effect to acknowledge the seriousness of the problem. At the same time, the Times has arrogated to the press judicial immunity it would rightly deny any other institution. One can only hope that the Times will realize the danger of maintaining its present position, particularly in light of the altered facts of the case. The Times should accept Judge Trautwein's compromise or propose a better one. A failure to do so will eventually result in an imperfect judicial decision that does violence to one or both of the equally precious principles of press freedom and the individual's right to a fair trial.