The First Amendment; 1980 Anniversary Program

The First Amendment and a free people weekly examination of civil liberties and the media in the United States and around the world. The program has produced cooperatively by WGBH Boston and the Institute for democratic communication at Boston University the host of the program is the institute's director Dr. Bernard Rubin. This is our anniversary program celebrating the start of our fifth year of weekly half hour discussions of current events connected with freedom in the United States and abroad. And I'm especially delighted to welcome back to one of the standbys and one of the strong pillars of these anniversary programs. Anthony Lewis the columnist for The New York Times Tony I'm delighted that you're here also with me today to discuss the issues at home and abroad. Is George Guscott the chairman of the Communications Committee of the NWT Sepi here in Boston. And Martin Linski consultant on media programs to the Ford Foundation and

the Institute for Politics at Harvard University. On the domestic front. See to me it's been a tough year for the bill of rights at home. One of the cases is the Frank snap case. His book decent interval Franke step was believe CIA station chief in Saigon at the end wrote a brilliant book the first hundred pages are hard to wade through but after that becomes a literary charmer but valid history of some of the nuances in the psychological misfits that were in charge of some operations and some of the people who are left behind waiting on street corners are never going to bosses who worked loyally for us and in Vietnam and we're left to their fates. The Central Intelligence Agency has taken steps successfully in the courts against that book. Tony Lewis do you want to bring us up to date on the case and on your strong position on it. Well I'm not a great admirer of the Supreme Court decision in the cases you indicate for a number of

reasons which are hard to compress into. What we can say here but first of all I think that the Supreme Court did something of a very sweeping character retrospectively took away all everything that Frank's not earned on the book as a punishment and did so without any statute without anything having been enacted by Congress directing such a policy. And ordinarily in this country the courts do not supply. The government with remedies against citizens when Congress has failed to enact them as recently as the Pentagon Papers case the Supreme Court said or various members of it said that they would not prevent the New York Times from publishing those papers because Congress had so directed them. I think the policy should be good for Frank snapped. Right now the action against him was because he took an oath as a CIA a man and that he violated his oath.

Did Henry Kissinger not violate his oath and it's also important to note just before you get to Kissinger that that so-called oath also is an oath that employees must take in the Energy Department and in the Treasury Department and then the State Department. And it has nothing to do with government secrets and has nothing to do with classified material. And it is a as Tony said a non what amounts to a non legislative prior restraint upon freedom of expression something that even the more conservative Supreme Court justices in the past 30 years have been very comfortable with. That is no prior restraint. Now clearly in the case of Kissinger. The court the court although the court did not find that he violated the statute in the rule of papers it assumed he did for the purposes of the case. But what it said was even if he did violate a law or regulation the removal of his papers the court was not going to order the

government to get those papers back and the court was going to permit him although it didn't permit Franks nuff to write a book based on those records and make all the money he could offer. Well I think the premise that should be gotten over to the audience is that Frank snap in his book had no secrets there's no plot there's no classified material. You know he took care not to disclose any secrets he's not the Philip Agee kind of former person who's turned on the former agent who's turned on the agency and is deliberately trying to destroy it to the contrary Frank snapped. I was trying to make it better and trying to criticize what he thought were it's unpatriotic and dishonest abandonment of the Vietnamese friends as as you pointed out is one thing that ought to be said beyond this and that is that the Supreme Court decision rendered Incidentally without oral argument or briefs some merrily without notice to the parties really bad in my view as a matter of fairness. Does not only cover Frank snap does not only cover CIA employees it potentially covers everybody who works for the government

because the court said that even apart from signing that. Promise that Marty mentioned a lot of people sign those who have access to classified information have a trust. A fight do she every duty not to disclose the information without the approval of this superiors. Well this is an absolutely radical novel notion in American history because of course people disclose things all the time that's the way our system works. I don't know whether the Supreme Court has been living in some other country or in some other state of mind it certainly did surprise me. Let me push it one more point one more degree. If you take the Kissinger case in the snap case and a case that was decided in the same day as Kissinger about a federal federally funded researcher who would give up his data to outside people. And two cases decided in January having to do with the right of dissent in the military. You see it seems to me a series of cases which are coming within a three month

period all come down very hard on the side of secrecy in government close control of information and sound very much like the kind of Official Secrets Act which Britain has in which we have resisted the Congress's rist is resisted in this country every time it's been proposed. GA does this sound to you a little bit as though Nixon had won some of his own scientists. It almost sounds like the clock stopped and brought forward with Watergate and everyone in our nation was hopeful that we would have an open society in the government. Now it looks like it's going back the other way around. I don't understand how. The court can arrive at one rule in your case and then arrive at a ruling completely opposite case when the circumstances for all practical purposes are almost identical.

I don't understand that sort of reasoning it's dangerous I think now in the in one of the cases are cases involving his telephone conversations when he had telephone conversations. National Security Council's secretary of state and so on. He had them transcribed dutifully by secretaries Well Jack land of the Reporters Committee for Freedom of the press and others tried to get that information. The court went through all sorts of legerdemain to not give it to them saying that actually he took some of the papers. They were not the physical position of the State Department and the NSC papers were really not the issue. Much of the State Department materials State Department which it was the crucial material but George one of the things that's interesting is that there really is a consistency between those two cases and I don't think I think that's the upsetting thing is that. The way those two cases connect is that the Supreme Court did what the government wanted it to do. In both those cases the government didn't want to get those kids and your papers back. The government could get those kids and your papers back they didn't want to and in the snap case of course the government wanted to punish NEP So the

court did what the point government wanted in both cases what the government wanted was not to disclose information to keep it in the narrowest possible control. Now this gets back to the Pentagon Papers where there was a lot of embarrassment but not much crucial that was destructive to the national security as a matter of fact with some deletions we all read the Pentagon Papers. Some of us enjoyed them some you on some just bought them. But at any rate this seems to be the philosophy that government should not be embarrassed each successive administration for another reason takes up this cause. There are not reason well for its own selfish reason yes no officials ever like to be embarrassed and it's hardly surprising that successive governments try to prevent disclosures that would be embarrassing. It is surprising to me that the Supreme Court could withstand the quite hysterical level of prediction of disaster that the government the Nixon administration.

Put forward in the Pentagon Papers case could withstand those cries of doom if you let them publish this these papers the country will be destroyed. Well I like them published and as you suggest Bernhardi anybody can remember even what was in them. The court could withstand that and yet could could as Marty has very accurately and I think perceptively summarized just sort of go along saying that will be what will be disclosed as what the government wants disclosed. It's such a different spirit something right and and that dissidents that is people who are opposed to the prevailing view don't have the same kind of standing to seek and have the information as do people who can support the prevailing view. Let me let me raise one what I think is only a slightly off the wall consideration here and that is that there is a precursor event to these five cases which I would hate to try to make the case has a there's a causal connection. But there was an event that occurred in

December right before the string of cases which was the publication of the Brotherhood. And the bretheren was by Woodward written by Woodward and Armstrong and the Supreme Court right in the in the Brethren was a very embarrassing if nothing else. And I think as Tony Lewis more brilliantly than anybody else said one shaky ground in some respects. But if nothing else it was an embarrassment and it and it had embarrassing revelations of the innermost workings of the court even the ones that were dismissing the ones that were inaccurate. Now it seems to me that if you have a Supreme Court that is not all that sympathetic to the strong First Amendment free speech free expression position and they've just been embarrassed and angered and hurt by the publication of unauthorized leaks of information about their own business they're going to be more sensitive to those interests that is the interest of

closeness and control of information than they were in the past especially if they don't have a black or a Douglas. Amongst their ranks does this comport with you accused of being brilliant in your remarks on this. Anthony Lewis is this true. Well that muddy Linski has gotten your theme correct. I would say that I'm a little hoist on my own petard here because I objected in part to the brother and because of its conspiratorial notion of the way the Supreme Court works one based often on pure surmise or gross inaccuracy. So I hate to be in the position now of saying rather conspiratorial thinking they were moved by the veteran to do this in these other cases I prefer to think that they decided these cases on their view of the merits a wrong view. In my judgment. But I cannot exclude the possibility that Marty has raised that at least psychologically it put the judge's condition them put them in a in and shall we say frame of mind not

excessively receptive to the dissident the man who talks out of turn. I'm going to throw the next question over to George and I want to change subjects just a little bit to a novel called Touching by Miss Mitchell and it allegedly deals with and doesn't allege it deals with an encounter group a novelistic form a. Man who ran an encounter group named Dr. Benjamin saw himself in the pages of the novel brought suit and won on the grounds that it was in Deja. His privacy was identified and so on and so forth. George if you are to restrict as the court seems the courts seem to be restricting things. If you restrict novelists to taking off for example you might have a novel written by Reuben called. Nine interesting men in the Supreme Court judges would find

themselves. Is this not a great danger that you cannot even write in a literary way about current events without the courts jumping down your throat. I would say it has been prior restraint. Eventually because if any individual can and you know laterally decide that an event portrayed in the novel was attributed to their activities and actually sue and collect on it then most novelists in the future would be very reluctant to write about anything at all that could possibly be connected with any one of the early life. He won the case was in a California court that we should we should know that. But it was a muddy case. It was a very muddy cat she wasn't a terrific defendant because she was pretty sloppy about her

covering up of the character and there were the court apparently was convinced by some transcripts that Bindra himself had taken of his sessions which were very very compatible almost verbatim. Things that were said in the book on the other hand I think the point that George makes is quite accurate and that is that there the issue is not going to be what people write because novelists are going to write but the issue is going to be what gets published because it was not just going Davis Mitchell It was sued in this case but it was Doubleday and Doubleday is now going back under the you know indemnity cause which all authors signed except very famous and distinguished ones we don't have to sign it. And and Doubleday will surely stick her with the entire judgment know what is happening now I heard of a fabulous story week ago about a very fit well-known author who is about to complete a novel and she has had the lawyers at the publishing house require her to change the name of the chief

character three times because they have been going looking around the country for people with the same name and are so concerned that somebody can bring a suit that they've required to change them and she has to go back into creative mode and think of a new name. I will throw in an irreverent thought here and it has nothing to do with the legal rights or wrongs or wrongs mostly of these. Such a case when that is that both. Journalists and fiction writers have been pressing at the dividing line between their craft in recent years we have Truman Capote's In Cold Blood and then we have Norman Mailer with his factoids as he called them. And so that it's become harder and harder to tell fiction from nonfiction and maybe this is a kind of retribution. But then again could you not bring an action against the CBS Evening News or the ABC evening news on the basis that it's very hard to tell fiction from that from nonfiction to tell us which of the of the evening news is fiction you know we just you know also another footnote is that we should not forget the human rights involved here we

just spent a half an hour talking about human rights and the Bindra MM's of this world. Even the new therapists of this world have a right to be not to be defended. You know if you read even if they live in California even if they live in California. For George would you back up that last line never before we let that comment go on. George agrees with you. I don't know I don't know if I agree that the individual has certain rights not to be defamed but at the same time I begin to wonder about the individual that sees in particular novels or stories themselves. If indeed the novelists had used them as a role model I can understand it and I think that this is a judgement that will have to be made on an individual basis case by case. But I see the overall trend if if the overall

trend is towards putting the liable on the novelists or the public that it is a situation that can develop into being a restrictive thing in terms of thought and also in terms of. Well the action really faction naturally too but mostly in thought because I'm not going to do something that I know that I can be sued for if I know I will be sued for it or the potential is there you know that gets to the heart of the matter because a number of publishers have gotten together recently New York and other places and have tied the snap case together with the Bindra case and with other things that have been happening and have been meeting to consult very unusual phenomenon that publishers and writers getting together to say where are we. Are we in jeopardy

can we use the pen to like Dickens cut across our society and reveal characters or not they don't know that's what's the most troublesome part. Well I think that's really what's scary but the been replaying cases which George said is that the jury is going to be able to decide whether you defame somebody in a novel when that person can. I mean the bigger the case the character look nothing like the character who the plaintiff who said he was defamed and he had a different name in a different educational background and the jury was still able to say yes that's the person and he doesn't talk dirty like he does in the book and therefore his reputation as it was murky because she took she she agreed when she intended the encounter group not to write about his encounter like Frank snapped like Frank snap exactly but the issue is the one that you raise and that is the publishers who are really although they like to think of themselves as creative people they're business people. And they're now in a position where they want to pass this responsibility on to the authors and insulate themselves from legal

liability and disassociate themselves from anything questionable and that's I think where the rub is going to by the way. May I say that no publisher should be identified as a creative person. Editors are creative writers are creative artists are creative but I'm not so sure publisher is well let's eliminate them as well. Let me move on to another case. A young woman named Debra Davis wrote a book called Catherine the Great about Katharine Graham the Washington Post in about Philip Graham and so on and so forth. Now The Washington Post a respected newspaper one of the great newspapers and I believe personally that Katharine Graham is one of the more reputable and I would think interesting people on the on the scene today. In the book all sorts of things are said about the Graham family background and what not. The book was listed as an alternative I believe for the book of the Month Club. It was in bookstores all around then suddenly dried up in the publishers not sending out any more there's been no case brought. It's just a drying up of the

distribution system for the book. Then I find something new and scary again that we don't know what's wrong. Was there ever in fact is there libel libelous statement in fact. What is in that book. You can still buy it in book stores if they got their original order but the book of the month as I understand it from a news article says that we are not going to distribute it because the publisher has not been sending it to us so if you chose that you something else is that something lurking behind that publishers will not want to go to court on these things they'll want to use other methods themselves. Well on one hand they talk about their rights to publish. On the other hand they may be presenting problems. Well I think any one of us might find your zeal for freedom flagging. If we were the subject of a grossly libelous and unfair. Book article. But why not I mean get out into the open. Oh well because. You know that very often bring libels out into the open in order to disagree with

the merely accentuates the damage. I'm not defending it I'm only saying any of us might be thin skinned. That's a that's a fact of human life there. There is also in Catherine Graham case you get a couple of other factors which are important one is that she is a public figure and under the Supreme Court decision is a right. It's awful hard to libel her unless you prove that you have been malicious in your treatment of her and I believe if I'm correct that Catherine Graham didn't decline to cooperate in the publication of this book although Miss Davis tried very hard to get a cooperating which would tend to show some good faith on the part of Miss Davis. The other point which I think is really important to make and probably not true in this case but the threat of a lawsuit at the kind of hourly fees that good lawyers below it is almost as frightening to anybody but a very very rich potential defendant has an

actual lawsuit. And when you get the Post Newsweek company prepared to sue you you can look forward to hundreds of thousands of dollars that's not an exaggeration you're talking in the case about a $200000 fee for Doubleday something like that. The whole thing I guess it was just under 200 and then Herbert v. Lando I have said in dollars and now you've you've got to be a pretty flushed defendant in order to be willing to enter in that particular what you're entering into it is just another book and you're really a business person and what you're entering into it for is some abstract principle you know. Well I'm I'm thinking now again putting the best face on it in terms of what I really believe. I think that Katharine Graham is a fascinating person being a public figure she should be above. Any kind of pressure tactics. I also think that that she should bring out the charges into the open if there are charges. I'm not really worried about Katharine Graham though.

I think it's the publisher's duty. If a publisher excepts a book and a publisher has its lawyers go through that book line by line as they do no word by word by word that at a certain point having made a commitment to the author there is a moral bond to either keep with the author or to tell the public that they are withdrawing the book because they are not so certain anymore there's nothing wrong with that having found out that there are problems with the book they should say so. Well I guess I believe in that much candor. I agree with you there. It's hard to talk about this in the abstract because I don't know what's in the book and I don't know how unfair it is to Katharine Graham. And if in fact it is a just I'm making this up I don't mean to be taken is as literally critical of the book but if we can imagine a McCarthy type of book grossly unfair and making things up by the yard I might have some sympathy for her. An effort that would not merely bring those libels further to the attention of the public eye.

You know I don't think it's so easy because I guess I've spoken so highly of Miss Graham. I'm also taken by the picture on the back of this book that shows the young author in a turtleneck sweater looking off into the distance with only truth personified in her view of Bernie Bernie. If this radio program can't force the publisher to stand and disclose the reasons for it then certainly Tony Lewis wrote a column. We could get that guy out of the bushes and tell the truth. What was that. The Highwaymen used to yell on the road Stand and Deliver. That's correct. What generally in the few moms that we have left what is your feeling gentlemen are we in a kind of. Dangerous period as regards the right to publish and the right to present the use. Is this what the sum ation is here. That is a particularly bad period. I think we have an unsympathetic court and that presents one kind of problem.

I see on the positive side a continuing explosion in the amount of information and communication that the avenues of communication. Ten years from now I don't think we're going to be going to. If we looked ahead 10 years ago we wouldn't recognize it. I do not think the electorate the impact of electronic communication on the information we get and I'm feel better than I did a few years ago that there's going to be plenty of room for lots of ideas and a lot of things going on. On the other hand one the government can decide how it's going to regulate all this stuff into. From my experience as the editor of a little paper in Cambridge I worry about the little guess nature of our society and how much lawyers fees impact the decision as to whether to publish it. I'm going to go right around the table with George. Well I think that our society today and the economic

condition conditions sort of set the pattern as to how much restriction there will be on news events on media or just general information. I think as the economy tends to slow down I think the voices start to rise on restricting the flow of information. Well I'm less pessimistic possibly than the others. I am regretful of some of these recent decisions and particularly of the snap case which as very serious overtones I believe but in general it is a fact that the United States has the greatest freedom of expression certainly for journalists and I think for people generally in the world. And very likely the greatest freedom there's ever been. So I can't take an altogether gloomy view. I'm going to quote inaccurate because I can't remember what the second phrase is but like than most literate people would know the most splendid night of France who ended his career

what was it. SAMPLER sonograms brush. Write some Persaud uprush. I want to thank you very sincerely Anthony Lewis of The New York Times George Guscott of the NWC P. Martin Linski of the Ford Foundation and the Institute of Politics at Harvard University for a good discussion for this edition. Bernard wrote the. First Amendment under free people weekly examination of civil liberties and the media in the United States and around the world. The engineer for this broadcast was Stephen Colbert and the program is produced by Greg Fitzgerald. This broadcast is produced cooperatively at WGBH Boston and the Institute for Democratic communications at Boston University which are solely responsible for its content but. This is the public radio cooperative.