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THE SUPREME COURT'S refusal last week to exempt newsmen from divulging their sources before Federal grand juries strikes directly at the right of the American people to be informed by an unfettered press. In a decision based on the promise that a newsman, like any other citizen, must cooperate with a grand jury even though the jury may ask him to violate the confidence of persons who supply him information, the Court ignores the imperatives of investigative reporting. And it is largely through investigative reporting that the press serves the cause of justice and fulfills its role as the conscience of government.
By declining to expand First Amendment rights to safeguard a reporter's confidentiality, the Court has endangered the ability of newsmen to gather information about illicit activities. The Court's majority opinion holds that newsmen enjoy no special privilege before a grand jury; it maintains that newsmen have recourse through the courts to challenge a jury's interrogation if they feel it is peripheral to the case under investigation. Further, the Court says that by requiring newsmen to divulge sources, given this legal recourse, it is imposing no prior restraint nor any other shackle forbidden by the Constitution. Yet the practical effect of the Court's decision is that no mobster, no political dissident, no corrupt Congressman, nor any other person involved in illegal activities, will (provided he has any sense) discuss those activities with the press. The knowledge that anything said to a reporter is subject to grand jury scrutiny effectively restricts the ability of the press to expose, investigate and analyze. Indeed, the Supreme Court's decision must come as welcome relief to shysters who know the chances are 50-50 they can buy off the police, but who become queasy under the curious eye of a self-righteous, snooping reporter.
Think only of the last year. Neil Sheehan of The New York Times would be required to say who passed him the Pentagon Papers. The same for columnist Jack Anderson and his ITT scoop. Or more recently, The Times would be compelled to name before a grand jury every source--many of whom would be incriminated--for its series detailing graft in the New York City construction business totalling over $25 million annually. The City of New York either could not, or did not bother to, uncover the scandal. The Times did. But had those men who supplied The Times its information known they would have no protection before a grand jury should The Times's reporter be called to testify, they never would have spoken up. The story never would have been written.
CERTAINLY members of the press do not constitute any elite class which should be granted special privileges before the Constitution. But the function of a free press, as outlined in the Constitution, demands that the privilege of confidentiality be bestowed upon the press and its functionaries, reporters. It is a right of profession: just as, in most states, a priest does not have to breach the contract of confession, and a lawyer is protected in discussions with a client accused of a felony, so should a reporter be able to use the guarantee of confidentiality to flush out information which hastens the pursuit of justice.
It is ironic that the Court's decision also precludes the possibility of investigative reporting which names names and pinpoints crimes. Such reports have often led to prosecution. The notion expressed by Mr. Justic Stewart in a dissenting opinion that the Court's decision "invites state and Federal authorities to undermine the historic independence of the press by attempting to annex the journalistic profession as an investigative arm of government" is well taken. Unfortunately, the Court's decision creates an atmosphere in which the likelihood of a reporter being able to obtain information which could weigh on an investigation is slim indeed.
In another dissenting opinion, Mr. Justice Douglas said:
"The inclusion of government into this domain is symptomatic of the disease of this society. As the years pass the power of government becomes more and more pervasive. It is a power to suffocate both people and causes.
"Those in power, whatever their politics, want only to perpetuate it. Now that the fences of the law and the tradition that has protected the press are broken down, the people are the victims. The First Amendment, as I read it, was designed to prevent that tragedy."
Indeed, the decision speaks for itself: it and another limiting Congressional immunity in the case of Sen. Mike Gravel (D-Ala.) and his release of the Pentagon Papers, intone a tragic shift of the Supreme Court to a Nixonesque majority. The days of the Warren Court, of sweeping judicial reform, of the highest regard for civil liberty and human dignity, are passing us by as President Nixon assures a conservative majority. Even the Court's decision outlawing the death penalty--based largely on its inconsistent application--fuels a longing for an Abe Fortas or a Homer Thornberry. As time goes on, reflection on the former's abdication from the Court and the latter's forgotten nomination will become all the more painful. For now, one can only hope that a turnover in November will bring new perspective to Court nominations, should a vacancy occur. And further that those reporters who now face the choice of imprisonment or incrimination of their sources will, in the true spirit of the Constitution, choose the former.
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