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Victory for the Press?

An Introduction

By Robert Decherd

ON JULY 12, 1971, twelve days after the United States Supreme Court had ruled by a 6-3 majority that government agencies could not prevent publication of the "top-secret" Pentagon Papers, Newsweek magazine ran a banner headline on its cover, "Victory for the Press." The Court's decision was based on First Amendment guarantees against prior restraint of newspapers by the government, and on the public's right to know. Newsweek, surveying the respective positions of the litigants in the case, pronounced: "Few clearer gauges of the sanctity of the First Amendment freedoms, few plainer demonstrations of the openness of American society, could be imagined than the High Court's ruling in favor of the press."

Newsweek was not alone in its ebullience; the press generally regarded the Supreme Court's decision as a vital affirmation of its right to gather and dispense information independently of government pressure. Moreover, journalists felt that the Court's decision would have broad, longterm effects on its relationship with the Federal branch. But a quick glance at any newspaper today, on almost any day, will show that the press's nirvana has dissipated as rapidly as it mounted; like a false spring spoiled by an April blizzard, the Court's 1971 decision has dissolved in the face of a high-handed reassertion of government power in opposition to the press.

The battle shaping over the First Amendment derives from two specific cases--the espionage trial of Daniel Ellsberg '52 and Anthony Russo in connection with the release of the Pentagon Papers, and the rejection of an appeals case based on confidentiality of news sources filed by New York Times reporter Earl Caldwell. The Ellsberg-Russo ease is an extenuation of the 1971 press "victory" before the Supreme Court. The more recent tumult over confidentiality of sources, growing steadily since last July when the Court rejected Caldwell's final appeal by a 5-4 margin, is at the root of the current discussion regarding press freedom. So much has been said and written recently about both cases that it hardly seems necessary to review their basic premises. But the public can only benefit from elaboration of these premises, since it is directly affected by the resolution of the Ellsberg and Caldwell cases. Thus, the reason for this supplement.

THE PLETHORA OF reporting and analysis concerning the Nixon Administration's attack on First Amendment rights seems almost incestuous because of the vested interests of the media. The press should be so diligent on other issues of equal import. Yet, the media's persistence in challenging the Nixonian ill-regard for the First Amendment grows out of an endemic responsibility to safeguard the public. Self-righteous as it sometimes appears, this feeling is deep-seated throughout the print and broadcast industry. Examples have been abundant of late. Half a dozen newsmen have chosen to go to jail rather than violate confidential relationships with sources; commentators and columnists of all political persuasions have lambasted grand jury pressure to force reporters to divulge sources. The Reporters Committee for Freedom of the Press already has listed 19 cases it considers unlawful attempts by courts to force disclosure of sources [the Caldwell decision drew a hazy distinction as to how far the courts or government agencies could go to require disclosure of information not pertinent to court proceedings]. And arguments in favor of so-called shield laws have ranged from a full-fledged plea to "Save the First Amendment" by New York Times managing editor A.M. Rosenthal to a detailed justification that most reporters cannot reconstruct their own [illegible] notes after more than 36 or 48 hours. (That is, after all, why most good reporters type their notes immediately following interviews.)

THE PRESS FREEDOM issue reaches far into almost every community of American society. College communities are no exception; indeed, attempts to suppress college newspapers by regents and administrators over the past five years provide a frighteningly vivid picture of what a government-controlled or government-pressured press would become. At several major universities--Berkeley, the University of Texas, the University of Florida--and at countless smaller institutions, regents have imposed strict censorship over college newspapers, using financial control of the papers' operations to exact editorial compromises. At Berkeley, the California regents cracked down when The Daily Californian endorsed a political rally which evolved into a small-scale riot; at Texas, the regents--who had never been fond of The Daily Texan's antiwar editorials--tightened the purse-strings when the paper exposed a misappropriation of $600,000 by the regents; at Florida, The Daily Alligator found a regent appointee in the position of editor-in-chief after it ran the telephone number of an abortion referral service in violation of a 102-year-old state statute which has since been declared unconstitutional.

These examples, close to our attention because of The Crimson's independent status, could easily be transposed to the daily press five years hence if the present trend of government interference and manipulation of the press goes unchallenged. This is precisely why the press, on all levels except management, is so alarmed over the confidentiality question; a defeat for the press at this juncture could foretell rougher days ahead. So you have A.M. Rosenthal writing, "Freedom of the press depends on a reasonable degree of access to information and on confidentiality of news sources, and they go together. Without them you have only freedom to print speeches and handouts and that's not a freedom worth talking about."

Likewise, this paragraph from a Crimson editorial responding to the Caldwell decision last summer still holds true: "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 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 to pursuit of justice."

RECOGNITION OF THE NEED for some sort of shield for the press since the Supreme Court stripped reporters of confidentiality last July has affected legislatures throughout the country. Eighteen states already have shield laws on the books, and at least a dozen others, Massachusetts included, are moving in that direction. The laws vary in scope, and the current debate in this state over absolute versus partial shields is typical. Several bills are coming before Congress this session, with comparable variance of language and terms. The foremost is a two-tiered approach set forth in a bill proposed by Senator Lowell P. Weicker (R.-Conn.) which would create an "absolute" immunity from forced disclosure by newsmen before grand juries, legislative committees and government agencies, and a severely limited immunity before open courts trying major criminal cases.

The transcript printed here does not add any dramatic new perspective to the controversy over First Amendment guarantees. It does, however, crystallize several important points in the debate--the need for more self-criticism by the press, the role of newspaper publishers and owners, the underlying compact between a reporter and his sources, the attitudinal differences between recent administrations toward the press. When The Crimson began planning its Centennial celebration last November, nobody was talking much about threats to the American press. Perhaps the ecstasy of 1971 lingered in the minds of journalists and legislators as they watched reporters and others [notably Harvard government professor Samuel Popkin] incarcerated by the government for refusing to cooperate in Justice Department investigations.

So it seemed that a panel discussion of Freedom of the Press would fill a necessary void and perhaps stimulate more discussion about what we perceived then--possibly because of the experience of other college newspapers at odds with administrators--as a serious problem confronting the press. Since November, the flood of opposition to the Nixon Administration's assaults on the press has washed deep into an American scenario. But until these First Amendment questions are resolved, additional discussion can serve to help the public and the press to delineate between the intent of the Constitution and the intent of the current Administration in Washington.

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