The First Amendment; Barbara Gray

The First Amendment and a free people weekly examination of civil liberties in the media in the 1970s produced by WGBH radio Boston, in cooperation with the Institute for democratic communication at Boston University. The host of the program is the institute's director, Dr. Bernard Rubin. [music] Should the police be allowed to raid a newspaper office looking for materials when the party's residence in the newspaper office newspaper people are innocent parties under the law where the legal authorities have no reason or suspicion to believe that they are going to implicate anybody in the office that they search or indeed even if they believe that there is nothing specific that they may find there but on kind of a general hunt for information. To help me answer that question. Is Barbara Gray who represents the Framingham area in Massachusetts. She's in a fourth term in the state house of Massachusetts. A graduate of

Connecticut College and attended Oxford University. She's a former newspaper reporter for The Hartford times, and has been a planning board member for the Framingham area and a metropolitan area Planning Council member. Representative gray you've introduced some bills into the Massachusetts legislature providing for ways and means to stop these searches. I gather before we get into the bills, that you're particularly driven to this, or inspired to this, however you want to put it, by the case in California Zurcher versus Standford Daily involving a college newspaper. Is this true? Yeah, I think any any action of the police which would jeopardize freedom of the press, which wouldn't tend to intimidate reporters, which would open up our reporters files and confidential sources is something which concerns me very

much. And so it's precisely in response to the Stanford University case that I did file the two bills. Well let me just ask you to read your bill or the salient parts of your bills, as presented to the Massachusetts legislature. [Gray] Yeah, I think the most important bill that I have here would in general, and I'll try to summarize it a little bit, say a court or justice authorized to issue warrants in criminal cases may upon complaint on oath that the complainant believes that any of the property or articles here and after named are concealed in a house, place, vessel, etc. Issuing a warrant identifying the property and naming or describing the person or place to be searched and commanding the person seeking such warrant to search for the following property or articles. Provided however, that nothing enumerated in this chapter shall apply to either news media personnel or premises of any type or nature where the person or premises is the innocent object of the search, or were not the actual perpetrators of the

alleged offense. It's in the provided however clause that we're really talking about exempting the news media personnel from this kind of search when in fact the news media personnel are innocent. [Rubin] Well let me just ask you, to have you comment more on the question of the news media. Now you could have put barbershops in there. You could have put any other institution in society. You obviously feel that the news media and news organizations are instrumental or vital to our society for you to exempt them from general rules. [Gray] Absolutely I think without the free press, the country, I don't know where the country would go, I think it's such an important principle as far as I'm concerned that anything as I said in my opening remarks anything that would jeopardize that is such a serious matter. I rely upon the press myself as a legislator and as an individual as a source of information, as a source of expressing our points of view, to help me understand issues with which I have to deal every day

to expose corruption if necessary and to bring to the attention the nonfeasance or malfeasance of governmental officials And even a business person. So that I feel that the press. And I'm quoting all press now the written press, the the spoken press, and the visual press, have a vital role to play in the protection of a democratic society. [Rubin] Now here in Massachusetts would you say there is a danger? Is this a danger that lurks in the background, the far background, or is this something that might be imminent any time? Do you see police bursting in on newsrooms here in Massachusetts? [Gray] No I don't. But the fact that it happened in California and the fact the Supreme Court has upheld the right of the police to do that under certain circumstances, threatens us all. Just because it hasn't happened in Massachusetts does not mean it couldn't happen, and might not happen. I hope it doesn't happen and I'm going to try to prevent it from happening but it certainly is possible. [Rubin] Now, coincidental with your bills that were introduced into the Massachusetts

legislature, President Carter's people, acting through his attorney general Mr. Philip Heymann the assistant attorney general of the United States in charge of the Criminal Division of the Justice Department, are arguing, and may introduce legislation through a congressman that they want to reverse their previous position on such searches. They feel now that they want to have the Congress of the United States pass legislation which would in effect overturn or overrule the Supreme Court decision last year in the Zurcher case involving the Stanford Daily, which is a college newspaper and when asked about why they wanted to do that, one of their answers was that "to be frank we can live without it and still enforce the law. But they feel that it is a vital issue as is privacy of records, If our constitutional privileges are to be upheld." So here we have a federal

administration reversing itself from his previous position. Which was a rather recent previous position. Why do you think they did that there? Are they, Is this something that's rippling across the United States? Seen by state legislatures, federal legislators, executives. [Gray] As far as Massachusetts is concerned I don't think it's rippling I think I was the only representative that introduced legislation such as this. [Rubin] You think it will bubble out? [Gray] I don't know, I know I haven't had any interest in the bills at all. As a matter of fact, I'm delighted to be here today because I do feel that this is an important issue. But the newspeople we've talked to either feel they are totally protected by the Constitution. And therefore these bills aren't necessary. If that's that's true, I'm I'm delighted but.. [Rubin] We had some odd bills that appear in the Massachusetts legislature held recently. Would you describe the ones I'm referring to-- [Gray] Which ones are those? [Rubin] Remember the legislator who wanted to license a newsman? [Gray] Oh yes. Oh yes Senator one-- a senator here in, from the Cambridge-Somerville

area. I think that's in reaction to what a lot of politicians feel, is an adversary press. I think the listening audience realizes that anyone in public life conceives of him or herself as a target for the press. And that basically a lot of us don't like press people. A lot of us would like to get back at the press people. And when they tar and feather us in print, as one local paper has done here recently by naming the 10 dumbest legislators, which I think was rather inappropriate but I must say effective because it's been a wide reaction. We naturally want to get back at the press. And filing of those bills to make the print newspeople -- private detectives I think is what it was. [Rubin] Well that's right. [Gray] It was a ridiculous reaction in my view. To an emotional concern that the senator had. [Rubin] I presume they would have badges and all the paraphernalia that -- [Gray] I don't know what they would have.

The bill, is, I say on its face, frivolous. [Rubin] Now I don't think your bill is frivolous, but the central question is that do we need either one? As you know there is a feeling in the ranks of those who are active in the civil rights area that the First Amendment is enough. And that you can gild the lily. How do you feel about that? [Gray] Well I I respect that point of view, I'm not a constitutional lawyer but I respect it. [Rubin] By the way I'm going to say that the reason that I'm so refreshed by your comments is that we have too many constitutional lawyers arguing these questions, not enough citizens. [Gray] Well that may be true. I don't apologize for that I just want to state that at the beginning and I would not want to do anything which would weaken the constitutional right of freedom of the press. And if in the judgment of people these bills are not appropriate or the congressional action as proposed by the president is not deemed necessary then we should withdraw them. And perhaps wait for further case. I happen to think the Stanford case was serious enough to at least begin to respond and to put

the bills in the hopper, as we call them, to await the reaction of my colleagues and of the press and of the lawyers and the leadership to see whether or not they felt such bills were necessary. If Congress does something of course that would take precedence over what the state does. [Rubin] Let me sort of twist this upside down. The First Amendment says that the Congress shall make no law to abridge the following freedoms, one of which is freedom of the press. It doesn't guarantee it it says that you may not dilute it. [Gray] I see. [Rubin] Again to get back to my first thought, isn't an abridgment to describe something in detail? I remember some years ago when I taught at Rutgers University there was the opening wedge of state legislation against discrimination and one bill was passed which forbade the following kinds of discrimination and it listed them. And of course everybody who was discriminatory by nature or by practice quickly found out which were exempted.

Now if you say that "you may not do this, you may not raid news media agencies or news media organizations unless you can show that there is some presumption of a guilty party or some evidence connected with a crime." Aren't you somehow, by protecting the press that way, separating them from the broad freedoms that we should all enjoy? [Gray] Yeah you raise a very interesting point whether or not these bills or any bills of this nature would run counter to what I want to do. And I don't have the answer to that. I really don't. I think that to allow searches of newsrooms and reporters' files may be so out of the question that even if there were something criminal in there perhaps it shouldn't be done because the - I mean, shouldn't be searched. The reporter him or herself after all is not is not the criminal having information about a crime. Are we obligated

to report that as citizens or as news people? [Rubin] Well even lawyers are beginning to argue the ethics of that, they are only beginning to try to handle the problem if the lawyer knows that his client is guilty, should he act in accordance or should he defend the client against the full impact of the law knowing that he's guilty? Very difficult question. Let me ask you would you amend this bill? And by the way I like your bill, I'm not trying to do anything but enhance it. But to get to the heart of the matter would you amend it to say that "the press should mean, or media should mean a professorial office that the police may not raid a professorial office under the same condition or that the police may not raid a lawyer's office or the police may not raid x y z." [Gray] Well we had the case with a psychiatrist's office didn't we, when President Nixon was involved. [Rubin] I'm glad you brought that up. [Gray] And I think those issues are very broad ones and very important that certain persons

have private information about other individuals which can be very damaging. In a matter of fact can ruin careers and in the case of the Ellsberg instance, was very very damaging, so that I think if we're going to put news people in the category perhaps we should add the other people but then again we go back to the basic question. Is this kind of thing even necessary? I mean do we have to pass a law to say that someone can't search a psychiatrist's office? [Rubin] That's right. Now let's take it from the other point of view, play devil's advocate from the other side. If we don't pass it the press as you phrased it is something of a public sanctuary. The press is the public educational system, it is our public protector. You don't have to attack many organizations to effect great change in our society, you can attack just the press. And so there's that lovely word they all love to use, chilling, you know having that chilling effect that would freeze us all to death. [Gray] That's right. [Rubin] So we're sort of caught on the horns

here. We're caught between Scylla and Charybdis on this one. [Gray] That's right that's right. [Rubin] What did you find as a news person in your experience as to the freedom of the press when you were working for The Hartford Times? [Gray] Well they made me society editor so I must say-- [Rubin] There and there again, this discrimination against women as it existed a few years ago. [Gray] But I was happy to be society editor because it got me into the composing room and got me right into the guts of the newspaper and I wrote all the headlines and wrote columns so that as such I was having a wonderful time at that point. I would have preferred maybe a police beat or a city hall beat. But I was very happy to get what I was doing. I feel that as a reporter, and I did some reporting later on in my League of Women Voters work and I would report meetings, and I still feel as my role of legislator that it's my duty to report things to my press, not enhancing my own point of view necessarily, although I do mention my name of course, being a politician I want to get re-elected that's part of the thing. [Rubin] Nothing wrong with that. [Gray] That's right. But

when I'm giving a story to the press and the press is at all receptive I try to give all sides, I try to give some background myself to act as a reporter as a legislative reporter, not as a legislator and I think any any attempt or anybody that came into my private files, I would resist. You know I would go to jail for that. And that's what many of the reporters in the statehouse have told me. Secretly I think many of them said they would like to go to jail to get away from the State House. And I told them that as a legislator I might join them also to get away from the State House. It's not really quite that bad. But I think there is something in all of us, a very private part. And I think that we would resist that invasion. [Rubin] I see. Perhaps you might let us in - the listeners to this program are in all parts of the country. Perhaps you might tell us what is it like to face the press in Massachusetts? You mention that you were a

woman reporter in the days when there were few. How does the press handle minorities in Massachusetts? [Gray] I think I think the press generally is very favorable to minority people as well as minority points of view, providing it's newsworthy. In other words they will not go out of their way, nor I don't believe they should, to give you a story because you're a minority person. If you have something newsworthy, they are only too happy to print it. Now I've been involved in doing legislative work in the abuse and in the abuse prevention area. And I must say the Massachusetts press was very slow to pick that up, that issue, battered women, abused children, domestic violence. But the national press on the other hand really helped set the stage for what we're trying to do in Massachusetts. So that in some cases even if your state press is not particularly helpful on an issue, the national press

itself can be extremely helpful. And so you know I'll take it any way I can get it, I don't care if its national press or local press. If I had one thing to say I would encourage the people who are doing the reporting to do more of the investigative reporting. Now we've had some television stations in the New England area who tried to do that recently. And there's been a lot of criticism of that because they haven't felt that the television stations have gotten as much in-depth as they should, perhaps have shot from the hip. And naturally the people criticized, including some of my friends, react very negatively. But I think those kinds of things are really what the public is looking for. The public really wants to know what's going on and they need more than just a flash in the pan from a television station. Or five minutes of news or three minutes of news at 6 o'clock in the evening, at 8:00 o'clock in the morning. They need to have the written press and they need to have in-depth reporting from radio and television.

[Rubin] I've often wondered whether there's something that could be invented in addition to the news programs, let us take television or radio, whether there could be between 6:00 and 6:30 at least on one station, perhaps alternating with one another in each major city, five minute pieces without any introduction. A five minute piece as seen by public spirited citizens after all we're in the era of the mini-cam now and all sorts of automatic equipment. Five minutes on what is now going on or revealed about child abuse problems or about battered women, or what is going on or revealed about alcoholics and the help for alcoholics or about halfway houses or what have you. It seems to me that the news actually is so structured that everything must be made to fit the structure. [Gray] And what is structure but the people, and the people in leadership make the news, the governors, the president, the

congressman, the senators, and the state reps; we are the ones who make the news because we are where we are. But unless we're particularly sensitive to an issue, now you mention a lot of human service issues which interest me very much and I've been, matter of fact I was recently at a meeting, a very volatile meeting on a halfway house that we're trying to establish in a neighboring community. And these things I think are sorely needed to be talked about in the press. And there is no way to do it, there really are no programs, there's no vehicle for you to get up and talk about what you're interested in for example or for me, unless I can do it through my role as a legislator which I try to do. My role as a legislator, I try to help set the public climate for ideas that I feel are terribly important for ways to provide human services. Which better serve the people, are closer related to the community, and come from within the community rather than always at the state level. So I have to have the press to help me do that. The press is vital to me in my role and if the press were to shut me

out I could not be effective or as effective as I try to be, which is not always very effective. [Rubin] Well I'm sure that's very modest but if the if the press were to shut you out or if the press were to be shut out itself, now on the original discussion about raiding news organizations offices capriciously, that shuts out the press in effect and the press might decide to undergo self-censorship in order to avoid this, which is the most pernicious kind of censorship. [Gray] Precisely, because when the press stops to be - stops being eager and vigilant and aggressive and curious and all those things that we look for in the press, then we've all lost. [Rubin] How much of the press or in terms of proportions is vigorous and curious and investigative and all those lovely adjectives that used to describe an outgoing press? [Gray] I think the majority are. I think there are some who aren't, who are what I call lazy. But the majority are, and there's a great sense of competition now, to a

certain extent I will see reporters in the State House for example saying "what are we going to write about today" and they're supposedly competing. But on the other hand you always have that, you know, breaking news story and the idea that you can get the scoop and that still is very very prominent. To a certain extent governmental news is managed. There are many many press releases every day so that the reporters around government don't have to get their news from being aggressive, although many of them are and and do do it that way. But if you go out into cities and towns... the news, you really have to look for the news. It could be at this meeting or at that meeting. [Rubin] To get back to your bill on the ways to avoid these raids, which have not taken place in Massachusetts, happily. You said there was almost a dearth of estimable interest. [Gray] Yes. [Rubin] amongst your colleagues. Is there something about state legislators

that produces this lackadaisical attitude on what I consider to be a very important subject, which if passed or not should be intensely debated from all points of view? [Gray] Well I don't really know. I know that we had a public hearing on the bill and not too many people testified. How interested our judiciary committee is, I just can't tell. I've had some visits from the press and some visits from other people. But keep in mind in Massachusetts anyway, we have the right of free petition. For those people throughout the country this means that any citizen of, any resident of Massachusetts, may submit a bill to the great and General Court so that we have up to 10,000 bills every session to consider and so that it's small wonder that even a bill which you consider to be of high importance may not come to the attention of every legislator. [Rubin] We've heard many charges raised against the press itself for invading privacy.

One was raised by the former United States senator who had a great many marital difficulties and so on and so forth. And he claimed the press hounded him out of office in some part and he still feels this way. Senator Brooke. [Gray] Right. [Rubin] Do you feel that the press was properly investigated in that particular case? [Gray] I think so. I was kidding around recently with someone in the in the radio press and I said something I really believe, "I think the press is very nice to politicians." I think if the press really printed the complete truth about a lot of us we'd all be in much deeper trouble. I think the press hesitates to print matters of personal concern. For example, family difficulties. [Rubin] Drunkenness. [Gray] Yes, being picked up under the influence, the press does not print that and they will hold back, I've seen it happen, not with myself fortunately, but other people, until almost they had to do it. Now the case of Senator Ed Brooke. By filing for the

divorce, by the way he used the no-fault grounds originally, a bill which I helped to get through the legislature that people of Massachusetts could use no fault grounds to get divorced as almost every other place in the country, but we were a little slow in that, in that respect. He chose to file for divorce. What-- I think the mistake he made was on the reaction of his spouse, who then chose to counter file using the grounds of cruel and abusive punishment or treatment. And from then on his troubles began. [Rubin] In part he raised some publicity on himself; did he not go to one or two of our major newspapers and sit down in the editorial offices privately, and explain what he meant by his slight error or whatever it was that he used, his phraseology, seems to me you stir up a storm that way as well as by sitting back. [Gray] And then you're fair game. You see now if he chose, in my opinion, to start his divorce proceedings after he had- after the re-election last fall I think he'd still be senator

today. So the timing is crucial. [Rubin] One of the things that we seem to be finding here, as we circle around your bills again, very interesting bills, is that we cannot separate your bills to protect press media organizations from raids by the police capriciously, without any really good reason or specific reason, from the general area of privacy. So this bill is an act to protect the privacy of the press in order to maintain the necessary publicity level for the people. [Gray] Yes. [Rubin] And to maintain the privacy of the people in order to maintain the publicity value of the press. [Gray] That's right. [Rubin] It's a very circular kind of a road. Are you aware that you may have to follow this into the area of privacy in order to defend it? [Gray] Yes of course. And I think that's extremely-- that's the other side of the issue. And I'd be curious to know the reaction of the listeners throughout the country,

if in fact any raids are taking place, if news people are worried about it or if citizens are worried and that will help me shepherd my bills or some variation thereof through the Massachusetts House. [Rubin] Well the last raids I think were the raids on the psychiatrist's office in the Nixon administration and the raid on the Stanford Daily in the Zurcher case last year. So maybe that is a, Maybe that is less of a problem in terms of repetitive actions than it is one for us who were born under the sign of this republic and believe in it so much, we get so concerned about it. One case is an issue. And that's the way it should be. You know that would you say that you are often driven by one case? [Gray] I'm almost always driven by one instance to either file legislation or investigate further. That's where we get our ideas from. One instance, if it's not totally irrelevant and out of context and out of the mainstream can provide insight

into the future. [Rubin] Well you know that I think explains the very best kind of qualification for a politician. And I know that you're a good one and I have the highest respect, as a political scientist, for politicians. I don't think there's anything more important you can say than to be alerted by one single thing that crosses your desk or crosses your mind or crosses your vision. [Gray] That's right. [Rubin] And I'm so delighted that you are here Barbara Gray and I hope you come back soon. [Gray] I'd be delighted, thank you very much. [Rubin] For this edition, Bernard Rubin. [music] [Host] The First Amendment and a Free People, a weekly examination of civil liberties in the media in the 1970s. The program was produced in cooperation with the Institute for Democratic Communication at Boston University by WGBH radio Boston which is solely responsible for its content. [music] This is the station program exchange.