The First Amendment; Charles Nessen

The First Amendment into three 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. boated Ruben. On Wednesday April 18th 1979 the United States Supreme Court decided in the case of her produces land that reporters would have to provide information about what their opinions were when preparing material and also their reasons for making specific news judgment. The case involved Lieutenant Colonel Herbert who wrote the book Soldier. He was the I guess the investigative subject of a 60 Minutes program. Mr. Land was the producer Michael Wallace was the television reporter on that particular segment. Colonel Herbert claims that he was libeled that his career was ruined

and has sued in a series of cases the United States Supreme Court has over the last 15 years argued the question as to whether or not malice must be shown in order to. Protect a public official against the news media to discuss these questions I have a very distinguished guest today who's done a lot of work in this field. Professor Charles Nelson of the Harvard Law School Professor Nesson was counsel for Daniel Ellsberg in the criminal prosecution against Mr. Ellsberg. Counsel for Morten Helprin in the suit against Henry Kissinger for wiretapping. Mr. Halperin and the counsel in the appeal for Dr. Kenneth Udall and he's a frequent moderate on these seminars on First Amendment conflicts. Professor Nesson Were you surprised when the Supreme Court decided to turn against the case of New York Times versus Sullivan and opened a whole new area providing

more constraints on the news people than ever before. Well I don't see it exactly that way. I don't regard the decision as having come as a great surprise. In fact I think the contrary result would have been more surprising given the nature of this court is that what you're saying partially given the nature of this court and partially given the nature of the case. I recognize that the media has reacted to this case as if it is a new blow against media freedoms but the fact is that the case is not particularly surprising to anyone that's familiar with the New York Times vs. Sullivan case itself. Basically what that case said was that a newspaper would have substantial protection from suits for libel. They would only be liable in situations where they lied or were so consciously disregarding the question of truth that it was tantamount to a lie and

that that standard which is itself seen as a great protection for the press when you think about it involves a question about what the state of mind was of the press man who put out whatever the story happened to be. It's a question that comes down to was the state of mind such that the fellow was lying or acting effectively maliciously. And what this case says is that somebody in Colonel Herbert's position suing for libel has got a right to ask the newsman questions that go to the issue. Was he lying. Well now this was a 63 case with the dissent provided by Justices Brennan Justice Stewart and Justice Marshall. Justice White did the majority opinion for the majority 6 with a concurring opinion by Justice Powell. I don't read it that way. I see that whenever you ask the opinions what was on your mind when you did this that you may be going too far that the editorial conference itself is

one of the things that produces great newspapers and great radio and television programs. If you get too deeply into that conference. And force people to reveal what they say to one another. There can be no way of producing great newspapers without. I hate that word chill without a deep freeze setting in on creative people. Well I think there's no question but that there are very important interests at stake on both sides. And I certainly agree with you that to the extent that the newsroom is opened up to Inquisition there is bound to be some feeling of assault on the part of the press. But I think that what you are suggesting would only be brought into effect by a rule that basically insulated the press from libel altogether. And if there's to be some compromise on the libel question that is the press is going to be subject to libel suit in some instances then I think the burden really in a sense shifts to you to say well how can a plaintiff prove he's been

libeled. Well I think you ought to prove it by the product. In the main and by memos Secondarily and by any scripts and things of that sort but not necessarily by inquiring into what did he say what did she say. Because a lot of people say things that they don't necessarily mean and there's no malice intended. Like perhaps they might say something. This is a really hot one what do we do with it if that. That casual conversation it was described it might seem awfully malicious and it would just be table talk or trade talk. But again let me turn it around the other direction on you. If if you're saying let's just go on the objective record let's not get into state of mind then what you're saying is that a plaintiff should be able to sue for libel when anything false has been printed about him in the newspaper. That would be objective. The only issue would be Is it true or is it not true. But in fact New York Times and Solomon was regarded as a great

protection for the press because effectively it said you can print some false things as long as you're not doing it with a malicious state of mind you know carelessness is OK. We have to live with that and in a big society but conscious lying that's where we'll draw the line. Now if you want to push the line so that it's easier for libel plaintiffs to recover simply by proving falsity than fun we're out of the state of mind issue altogether. But let's recognize that we've very much expanded the vulnerability of newspapers for libel. I. I take your point. I'm not so sure I wouldn't prefer that then to open the Pandora's Box of state of mind. In any case how does that strike you. Well in fact it strikes me in a quite interesting way. My own view of the Lando case is that there is a compromise that seems to have gone unrecognized. Justice Powell in his concurrence says let's

be sure that the district courts that are handling these cases pay attention in the way these things proceed to the First Amendment interests. Well there is in fact one way that the district court could pay very close attention to the First Amendment interest and that's to say. If the newspaper wants to prove that their statements were true let them prove it without first going into the questions of state of mind. And only if it's the case that there is a real issue of falsity. Only in that situation proceed on to these dangerous delicate areas that require intrusion into the state of mind of the of the journalist. That seems to me to be an excellent potential compromise. Yet one that CBS didn't advance when it was presenting the case at either the lower level or at the Supreme Court level. Well it is interesting but in the majority opinion they do. They do hint at that they say that the district court should examine the First Amendment capacities in this

case to to weigh and balance what it wants to do it doesn't necessarily have to seek after the state of mind. What I'm concerned about though is and I know it's probably the most hackneyed reference that you can make in a First Amendment type of discussions but the single case which predates our own national history. There again it was proof. And there was a good deal of talk by the judge and by the royal governor of the time in the state of New York about these seditious people these rebel used people these people in the pay of foreigners and all the rest of it. And then there was no journalist but merely a printer. It was defended by Philadelphia lawyer Andrew Hamilton as you no well know on the grounds that this was true. And I think that that if we if we pursue this point now I'm wondering whether this case not only represents a hardened court on the First Amendment but a hardened attitude in the country on the First Amendment. Distrust of the

press a feeling that CBS is probably doing a lot of malicious things and therefore has to be checked and public figures or people in the public limelight need greater protection than the president. I think that there is little question that the press has got a tough position at this point. They are perceived by many and I think many in the judiciary as a pretty arrogant bunch. They are seen as having advanced special interests having sought privileges for confidential sources for notes for outtakes of television broadcasts. And now for editorial judgments they seem to be asking for a privileged status. And it's quite clear that this Supreme Court at least thinks that the pressure be treated pretty much like everyone else and as we all have First Amendment rights. The press says First Amendment rights but theirs are no different than ours. Well you bring up cases like the Farber case really by reference and

versus just salutes the New Jersey doctor case the doctor X where the New York Times reporter was held by the court to have no greater protections against providing evidence where it was a murder trial than anybody else. But let me put put that somewhat inversely if I follow your reasoning I want to make sure that I do perhaps I don't if I follow your reasoning then I as a reporter or Mr. Landau as a producer could say I want to separate myself from my role as producer. I have the same rights as every other person in the society. And therefore when you ask me about my state of mind that is going too far refused to answer on the grounds not of any Fifth Amendment of First Amendment but on the grounds of my protections as a private individual. But there is no such protection. In fact intent is quite typical category in the law. Intent Yes. Explain this to me because I'm not sufficiently apprised of it.

All right I would take that. But suppose they say What were you thinking why do I have to tell them what I was thinking. You've printed a lie here. Did you do it carelessly or did you intend to print a lie. Now I'm asking a question about your state of mind. And it's on that precise line that Sullivan drew the boundary line between when you could recover from a newspaper and when you could not. I go back to my earlier proposition you really have a dispute with the Sullivan case this case that was heralded as a fantastic victory for the press. Now appears to have a sort of soft underbelly right in order to in order to achieve that protection. The newspapers have to open themselves up to inquiry as to what did they intend when they printed that falshood. Well. How far do you open up with all of this openness not affecting our

society. After all the press perhaps doesn't deserve any more rights than any other institution but it is a peculiar institution. It is a dominant institution that forms National have as a national thing. I know that you're going to say Well that proves my point. I think both point well I think there's a real question and it's a question on which we can't really go to any research data or studies just as white running for the majority in this case and in other cases I think quite clearly believes that the press is pretty robust and is not about to be children in a sense they're crying wolf with all this talk about chill. I think he's looked at the scene and sees these various as the press puts them attacks assaults on press freedom and yet doesn't see a press that is any the less vigorous any less willing to attack. He doesn't see CBS and 60 Minutes crumpling up in the corner and becoming pap. So in a sense Justice White is saying where's the case.

Well the case could be made during the Nixon administration and prior to that in the Johnson administration where to take television documentaries dropped off to almost nothing in number from a substantial number every year because the people were afraid to produce certain kinds of documentaries. Now 60 Minutes and I think there's another one on ABC called 20 20 is a new kind of journalism maybe isn't a survey kind of journalism in a rough kind of journalism. But I think it's the easiest kind of journalism to pick off if you want to intimidate journalists because that's where they're really out on a limb. Well let me offer you something to support your point. This particular case the Herbert case grew out of a case CBS 60 Minutes piece called The selling of Colonel Herbert. That name was chosen from the falling of the Pentagon 60 Minutes had been through something very much like what you're talking about they had put out a documentary called The Selling of the Pentagon extremely critical of the administration of the Pentagon and had been called on the carpet for it.

Richard slant the president of CBS said appeared before a congressional committee had come very close to going to jail for contempt as a result takes it all there absolutely and at least it's one of the suggestions made by Colonel Herbert that this show the selling of Colonel Herbert was in a sense a way of sort of buying the government off by coming out and attacking someone Colonel Herbert who'd been a tremendous thorn in the side of the Pentagon. This was in effect at least in Colonel Herbert's view something of a payoff for all the trouble they'd given him with selling in the Pentagon. So I say it in a sense supporting your point that these things have a delicate balance and who knows who's trying to please whom in a situation like this. Well where do we go from here now. What what do you think this. I noticed for example that Floyd Abrams who is the lawyer for CBS is not as disturbed as some of the other commentators for the press organizations like Jack Lando Reporters Committee for Freedom of the

press and so it seems to say this decision is not what we wanted but not as bad in some ways. I mean furthering that he is not is angry again I'm not being malicious toward him I don't get that impression. Well Jack Landau to be distinguished from Barry Lando Jack land runs an organization that is in the business of. Telling the country how bad things are for the press so it doesn't surprise me that he's excited by it. Floyd Abrams is a lawyer. He deals with judges he's got to persuade them now. Once this opinion has come down that judges should take account of the First Amendment interests. So it does Floyd no good to say this is a disaster. All that tells a judge is that he's got to act in ways that are disastrous. So Floyd's interest quite naturally is in saying no no this opinion really isn't so bad. District Judges can still do things that will be helpful to my client CBS and other journalistic enterprises. So I think that the reactions are not unpredictable or

all that difficult to explain I was stereotypical in your in your view. I don't want to put anybody in a box but. OK. Now let's let's take another tact here and and look at the the Supreme Court itself it has said that reporters may not depend upon shield laws like the New Jersey shield law absolutely has put that that approach in question as a protection for the press. Well now I'm going to hold you up a little bit. The Supreme Court has not said that. The Supreme Court of New Jersey seems to have said that. And I think that in my own view they very badly analyze the problem that they had in front of them. The Supreme Court of the United States stayed away from it as they often do with particularly high refer to the shield law as it was quoting the New Jersey Supreme Court that's well when the case of Mr. Farber the New York Times completed adjudication at the New Jersey level. The

application was made to the Supreme Court United States to take the case and they denied jurisdiction of the case effectively so we have no view from the Supreme Court the last thing in fact that refers to shield laws that is laws passed by the states that say reporters should have a privilege is actually an invitation to the states to pass just those laws. And I will wait with some interest the first case where you on shield laws you think that they are a protection for the press or are they redundant to the First Amendment. I certainly don't think that they're redundant to the First Amendment. There is a real debate. And I don't feel all that qualified to choose up sides in a real debate among journalists as to whether they are better off with the shield law than without the feeling being that the press is a powerful institution and in a sense the shield law starts to co-opt the press into a legal structure so that lawyers wind up making arguments about what statutes mean and so forth.

And as soon as you're in that structure you're in the hands of the opposition in a sense. There is a substantial argument to the effect of let's just go on the basis of the power we've got and fight it without worrying about all these shield laws. And on the other hand obviously it's quite a substantial protection if you happen to have a shield law. Do you feel that the court has been. Rather rough on the press in the last few years this Burger court that it is an anti-press court as some critics claim. It's certainly not a pro press court. I don't think that the court has been as terrible as some have painted with respect to press issues. But for the last few years certainly hasn't been a litany of great victories for the press in the United States Supreme Court. We're taking their point now. The Bill of Rights says that Congress may make no law shall make no law abridging the freedom of the press and other freedoms. If this is considered an

abridgement do you think this is an area in which the Congress should now repair. I know you're sympathetic toward this particular decision but least I sense that. But if you weren't or whether you are or not should the Congress repair in these areas where they disagree with the court's decisions is the court itself abridging. Well let's again go back to basics a little bit it says Congress shall make no law which abridges the freedom of the press. And that's all it says. Don't say anything about state governments or local governments or any other variety of possible abridgements it's really through the courts through the judges that we've come to understand the First Amendment as the tremendously important principle that it is so that it is certainly in the law in the larger picture. Unfair to paint a picture of the courts being against the First Amendment.

They've built it they've made it what I didn't say that I'm just saying that if if the Congress disagrees on a case as important as this should it take action under the under the theory that sometimes the courts can enter the legislative field or my judgment is that at least at this point it should not. If the horrible examples turn out to be true. Then perhaps the problem will come into focus in a way that Congress could do something sensible with it. And by that I mean if there is now a tremendous spate of libel actions brought against journalistic institutions and if those institutions find it impossible to defend those actions and are forced to default and pay huge money and go bankrupt if that kind of thing actually looks real rather than simply something spelled out as a horrible example by somebody not protesting then perhaps Congress or states could get into the act and produce some protections for the situation. But I don't expect that the court

system is going to let anything like that happen. On the question of litigation you you made a comment a few moments ago about litigation. Many people charge that one of the mistakes of the press organizations is going to court too much looking for legal protections when they ought not to know that they ought to take it on the chin as it were a little bit more without seeking these classic cases seeing that this case is one of our great treasured cases and this one is a great setback. There's either or approach it would you would you find that somewhat agree will in your own thinking. I think it's a nice idea but it's not always the choice of the newspaper or the broadcast institution to go to court. In this case it was Colonel Herbert who brought the action and Colonel Herbert who has prosecuted it with a very great tenacity. It was not CBS that appealed this case to the United States Supreme Court and it was Colonel Herbert. Likewise in the Farber case Farber found

himself in jail. And it's all very well for you or for anyone else to say the press shouldn't press that proceeding. But there's Farber sitting in jail and wondering what he was backed up by the New York Times organization. One can be backed up but that still doesn't make the jail cell a cell that much more comfortable. But it makes it a lovely roost for a crusading reporter again. But let's hear that from Mr. Farber. Well but but I don't think that he suffered. I don't think that his reputation was destroyed if Daniel Schorr had been thrown into jail he would not really have suffered a terrible thing and I would not have liked to see that don't misunderstand me in either case. But we can hardly blame him for going to court to try and get himself out. Exactly. But you know my original question though is you do not think that a good many of these things are becoming more subject to litigation. It seems to me that the mass media law has been growing at a tremendously rapid rate.

As a matter of fact an astoundingly rapid rate in both the states and the federal government I agree with you in your observation but I don't think that the media business has a great deal of control over that. Let's take a few examples. This business of search warrants on newspapers. That's something that was never litigated before Nineteen seventy seven seventy eight. How can that be. Well the fact is that a prosecutor simply didn't think of executing search warrants on newspapers. Now someone has done it and it's been litigated and it's now something that every prosecutor will think of stand for daily stand for daily or write any any intelligent prosecutor now knows that that's a weapon he's got. And if that's the case it's going to be used more and going to be litigated more and that sort of thing cause a snowballing effect as far as litigation. The same thing is true with source protection. Source protection is now a very hot field for litigation. And yet

10 15 years ago it wasn't. You could find a case here or there. Well what's happened is prominent defendants Spiro Agnew started the ball rolling in a big way. I saw some opening in criminal defense situations for creating I think diversion frankly by going after journalists for their sources creates a whole side issue it's very interesting they get a big fight everybody pays attention to that and who knows what's happening over in the main arena. That's become a very well understood tactic at this point and the result is much more litigation with respect to sources we now see it in libel. The fact is that. In addition to state of mind issues which the Herbert case is about the other main vulnerability for newspapers is source protection with a libel case. If there is any source anywhere in the background that libel plaintiff is going to be asking the reporter what was the source of that story that you printed and the reporters then in the same bind that Farber has found himself in and that others before him

found himself in. Only this time in a libel situation where a private plaintiff can start the whole ball rolling. And if they don't answer they default the libel action it's going to cost the press a lot of money and they have addresses Lando case CBS earlier on decided that they would provide an awful lot of material I guess by their own agreement and provided several thousand pages of materials Mr Landau provided all sorts of materials. That in no way makes this decision moot I know but why do you think they did all of that and then find themselves in this position made so much available and now are asked for more. I think in fact the style in libel cases has been different than the style in criminal cases when when reporters have been subpoenaed by governmental bodies in criminal contexts a grand jury context the instinct has been don't comply. Hold out don't give me notes don't give me your outtakes don't give him anything. Don't cooperate. That has not been the

style in libel cases. In the libel situation I think it's really the business instinct of the media that's been more at work and the style has been to comply with discovering what happened in the Herbert cases they got pushed to the point where finally principle came to the surface and they said no enough is enough. And I think that's what explains the thousands of pages but the final turn back. Well I'm glad that we've had this discussion because if the CBS does you or I on 60 Minutes and makes our life absolutely unbearable that perhaps we could have more protections on this decision. I'm still unsettled by it but I'm much more educated on it and for that I thank you. Professor Charles Nesson of the Harvard Law School for this edition Bernie driven. The First Amendment and a free people a weekly examination of civil liberties and the media in 1970. The program is produced in cooperation with the Institute for democratic

communication at Boston University. I w GBH radio Boston which is solely responsible for its content. This is the station program exchange.