Sunday Forum; The Rights Of The Press And The First Amendment

Good evening and welcome to the Sunday forum. Tonight we're presenting a symposium on the rights of the press and the First Amendment. This discussion was recorded on January 20th 1973 at Harvard University as a part of the Harvard Crimson centennial celebration. The moderator for the proceedings was Alan Dershowitz professor of law at the Harvard Law School and Professor Dershowitz will introduce the other members of the panel. Looking around and seeing the distinguished current issue of panel well introduce in a moment I notice a large number of people who have something to do with the law. Three lawyers and at least a number of the journalists who report on legal matters and I'm wondering about the. Number of lawyers and it's representation here and I'm reminded of a story that takes place some years from now when organ transplants have managed to get to the point where it's commercialized and there's a super market for organs which have been transplanted in one eager young eager

father of a newly admitted Harvard Law student decides to go to the supermarket and see if he could supplement his young man's equipment by purchasing some additional brain. And he goes over and asks for the brain department is directed to and asked how much an ounce of brains it is in the. The director says Well of course that depends on what kind of a brain you want if you if you want a doctor's brain that will cost you five thousand dollars an ounce if you want a journalist brain that will cost you ten thousand dollars an ounce and said Well. Well I want to lawyers brain he said oh that's twenty five thousand dollars an ounce and he said well how come lawyers brains are so much more expensive to which I replied if you've any idea how many lawyers it takes to get an ounce of brains. I hope we have enough of them today on the panel to supply that. Let me introduce the panel to begin with and then I'll make a brief introductory statement and we'll be on our way. At the extreme left is Mr.

Danton he look is. A graduate of Harvard 1955 who's currently a freelance writer and contributing editor of the more a new national journalistic review. He served with the New York Times for 10 years successively in Washington the United Nations the Congo India and on the Sunday Magazine. He's won a Pulitzer Prize in the George Polk Memorial Award and the Mike Berger award and several others and one thousand sixty eight. He's written two books the epitaph and other up sanity's which I reviewed and notes which is a book about the Chicago conspiracy trial and an absolutely brilliant sensitive book called Don't Shoot. We are your children a collection of essays about young people. He's currently working on another book and teaching at Yale. To his right is Professor Stephen Barnett who graduated Harvard in 1957 in the Harvard Law School in one thousand sixty two. While he was here he was on the crimson and served as its president after law

school he was the law clerk for Mr. Justice Brennan probably the justice on the Supreme Court who has taken the most interest in the rights of the press and has written the most important opinions on the rights of a free press. He's now a professor of law at the University of California at Berkeley specializing in the law of mass media on which he has a recent article in the I think in the current issue of the nation. To his right is Professor healers OBL who graduated Harvard Nineteen fifty three in the Harvard Law School when 1059 he was the supposed sociate sports editor of the crimes in practice law in Boston and teaches at the Boston College Law School and he's coeditor of the legal papers of John Adams and author of an intriguing book on the Boston Massacre. To my right is Sanford Ungar who is a staff writer for The Washington Post where he's been serving since 1969. Currently a member of the national news staff covering the

Justice Department the FBI. Previously was assigned to the federal courts and now is covering the Ellsberg trial in Los Angeles He's the author of a book called the papers and the papers an account of the legal and political battle over the Pentagon Papers and Senator Bell case and the almost revolution and was an associate managing editor of The Crimson while he was here and to his right is Mr. Urban Hurwitz who's the was the sports start with important things first was the sports editor of The Crimson and now briefly the managing editor back in the years 1943 through 1947 with some army experience in the meantime. He's now assistant national news editor for The New York Times which he joined in one thousand fifty seven as a copy editor on the national news desk between 64 and 66 he served as an assistant news editor of the international edition of The Times

Tribune in Paris now the now defunct times part of 1972 coordinated all national political coverage from the New Hampshire primary through Election Day. Before we turn to the panelists I just want to say a brief a personal word to try to introduce the subject of today's discussion. And I want to do it by trying for just a moment to put freedom of the press in the United States in 1073 into a proper perspective. We are surely not at least in my view as some radicals would have us believe a repressive society. We are not as Charles Rice of Yale would have us believe. On the brink of totalitarianism in this country we are by any objective standard among the freest countries in the history of the world and perhaps the freest press that the world has ever known. But there are attempts abroad in the land from the highest places to cut back on this freedom to make the press more responsive to the wishes of the government in power and less

critical of its actions. The recent flap over confidentiality of news sources was only the tip of a very ugly and dangerous iceberg. As Henry Steele commenter recently put the broader issue not since the presidency of John Adams has any administration so instinctively distrusted the exercise of freedom of the press. Nor should the fact that we are and are likely to remain in my view the freest nation with the freest press make us less vigilant in preserving our liberties as Justice George Sutherland put it many years ago. Do we the people of this land desire to preserve the First Amendment. If so let us withstand the beginnings of encroachment for the saddest epitaph which can be carved in the memory of a vanished liberty is that it was lost because its possessors failed to stretch for a saving hand. Why Yet there was time. I think that provides an appropriate theme for

today's discussion. And what I would like to do now is simply call on each of the panelists in order of where they are sitting to speak for five minutes or so. Then we'll have an exchange among panelists and then we'll welcome questions and discussions from the floor. Let me begin then by calling on Jay Anthony Lucas. For I make my remarks I assume this telegram doesn't even to my five minutes. I am I've been asked to read a telegram which is addressed to Dan Ellsberg in Los Angeles I note that appropriately enough Charles Berg is now living in something known as Bunker Hill towers in Los Angeles. The telegram reads on the occasion of the celebration the 100th anniversary of the Harvard Crimson. We are immensely proud of the brave an important contribution you one of our former editors has made to the freedom of the press is now an

Arab. The pause was not because of any doubt about the substance because it but it said Haven't I assume that the crimson in will will and has and will always remain grammatical to me has made the fate of the press and to the ideal of open government in which the people have the information they need to participate meaningfully in the public decisions that have a crucial effect on their lives. We greatly regret that the government's lack of sympathy for these fundamental American principles prevents you from being with us at the celebration. Nevertheless our thoughts and hopes are with you and we celebrate your efforts as an expression of the best traditions the Harvard Crimson. As far as the subject at hand I I would like to say that I. I share Alan Dershowitz view that I think I my my perspective is much the same as his I don't think. I think we do have a free press in this country I do think there are dangers but I like to say that I

think that those dangers are as great from within as from without I think that what we're facing now is is ironically as much internal restraint as outside repression and curious not perhaps not curiously that that outside repression or outside. Attempt to control or inhibit the press. Is it seems to me reinforced and really given its greatest impact through internal restraint and at times outright cowardice. I think that the the worst thing about the Agnew attacks were not that they directly destroyed the journalists will to resist but that they gave editors of a very curious argument and argument which I think has been terribly effective. Editors and I can

speak with some personal experience in this regard because I've been confronted directly or indirectly with this argument a number of times both both at my former employer the New York Times but never a buyer of Horowitz I should say by some of his colleagues and elsewhere that that my efforts of press criticism particularly in inmore with which I'm now associated and which by the way I have of which I have brought several copies which are available for you got it. You've got to push it or nobody else well you have that. They argue the argument which which which I confront is you really have no right to be doing what you're doing now to to be to be subjecting us to the kind of criticism you're subjecting us to. Don't you see that that you've caught us in a vise. We are we are resisting the pressures from the administration and yet we're being undercut

and sabotaged by our own people. For crying out loud lay off. Let us let us defend let us you know the editors of The New York Times or the editors of The Washington Post or the editors of Newsweek or the executives of CBS let us take care of the First Amendment don't you worry your head about it. Don't you worry your head about the performance of the press. Now I have a great deal of respect for many of the men who say this but I think they're wrong. I think the worst thing about Agnew's attack it is is that it's given some apparent credence to that kind of argument since we're publishing the Pentagon Papers. Lay off us. What's really wrong with the press in this country was wrong long before wrong with the Press performance was long wrong long before Spiro Agnew decided to attack the press. The inhibitions the failure to to to dig the failure to do really good investigative reporting the failure to do sympathetic and empathetic reporting about social affairs These were wrong long before Sparrow

opened his mouth and are still wrong. And I do not believe that the fact that the press is under attack from outside is any reason for us. The report I still regard myself as a working journalist. I don't work for an organization they more for us as working journalists to to lay off and I would like to give you just one example if I may I don't think I've ever stepped my tongue one more example of what I mean by this. What do I mean when I say that. It's in it's its inner inhibition as much as outward repression which is that which is the problem. My feeling is that the most inhibiting possible thing in the Washington bureau of The New York Times I'm being specific here because I I no longer have to worry about not being specific. Is is is the fear of the bureau chief of that paper and I here I don't mean any particular bureau chief but everyone for the last dozen. Well you know far back as there's been an active washing bureau that he's going to get a call

at 6:00 PM some night from the national desk or worse yet from the managing editor and he's gone and the call is going to go something like this. Listen we just got word AP is carrying a story our Washing Post during a story. That Kissinger has been meeting with somewhere and has just agreed to trade the franchise of the Washington Redskins to Hanoi for the prisoners and they're going to be released in Bangkok starting tomorrow morning at 7:00 p.m. C-130s will be flying them. And we need that strike for the first edition at an hour and a half right at the most two hours and the bureau chief there runs out he grabs of the White House correspond other diplomatic correspondence is look he says you know get a story on a post is carrying. And it's just one of the biggest stories every you know the Redskins of your.

Own. Hometown team you know we got to get the story and so. So they both sit down you know the guys you know who are going to call me pick up the phone and call Kissinger Henry Henry Howell III this is Tony Lucas at the at the time. Yeah oh yeah. Listen what you post kind of story. And any amount of. Time learning about it all now I think I mean of course this is hyperbole is not getting through because you're you know he's going through it. One of his assistants I love the fact the matter is that the really desperate situation is a big story on a big big story on deadline and you can't match it right. And you've got to call the manager back and say nobody will talk to me. Oh why won't they talk to you. Because you rub their nose in it a little bit yesterday. I mean you did something so they won't answer the phone or they answer the phone they don't know what you're talking about. The dependence on sources is so great

in any administration but in my view in this administer I hesitate. I mean I must I hasten to add that I have not covered the Nixon administration in Washington and I don't want somebody out there to say it. I'll admit it but I have talked to many people who have and my impression is the dependence on sources this time is so great that that fear must operate with any reporter and and I feel that the greatest one of the greatest single things that a a managing editor. Have a great American newspaper could do would be to say to his White House correspondent or to his diplomatic correspondent look you are not doing your job well unless five times a year you get beaten on a big story because if you don't get beaten on a big story every once in a while. I'll know that you are much too cozy with your sources. Why should they be available to you every time you pick up your phone up the phone there got to be a couple of times with a pickle phone and you have outraged in that way. And the simple fact of matter is that on most you know Vietnam stories the State Department is not a good source anymore I mean

you know Rogers doesn't know what's going on there but for guys you know probably in Washington and if you've been doing your job probably five times a year you outrage those guys. But but the fact of matter is that you know newspapers don't run that way newspapers want to match the opposit paper every day of the year. And thus the pressure to to play the source game. Thank you. If you are. You know I thought I was going to be taking a rather big tack here and I feel somewhat upstaged by what Tony just said because what I mean to say is quite similar in a way although not not straight down the same alley but I'm also concerned about kinds of internal. Restraints on the press and the information that gets through to the public rather than the governmental restraints that we're that we're usually concerned with. I would suggest that while we we hear a lot and we generally will talk today I suppose

about the press as an entity. And Tony did too it seems to me that it's really important to make a distinction a distinction that the Nixon administration for one makes very carefully and distinctly and calculatedly but that others don't make so much. And this is a distinction between the journalists in the press and the owners of the press of the newspapers and the broadcast media as well. Now it may be that among the. The media that Tony talked about the New York Times The Washington Post Newsweek CBS those it seems to me are unusual cases where there is not the kind of conflict and difference of interest that I see in many other outlets of the press between the journalists and the media. And I would suggest that if the attacks on the press that we see today are to be repelled it is going to take an effort by the

journalists not only against the government not only to win the battles against the government in terms of subpoenas in terms of the Pentagon Papers and so forth but also an effort by other journalists against the owners of the media. Now why is this so. I think one can look and say that the Nixon administration over the past four years its attack on the press has not been a blunderbuss attack. It's been in part a very careful effort to separate out the owners from the journalists and to cater to the different interests that the owners have a largely economic interest. And in that way to get at the. At the flow of information at the same time in a sort of pincer movement they say they do have Agnew attacking the poor white head or whatever attacking the the journalist search for example over the past four years this has a mental well reported and it's significant that it has meant to a reported the reason becomes pretty obvious. But there's been a whole series of

moves by the administration while attacking the press on one front to charge its economic interests on the other. For example a couple years ago when all the chain papers in the country wanted Congress to pass this thing called the newspaper Preservation Act. Which Congress did to the accompaniment of very little coverage in the press. The Nixon administration overruling its own Justice Department supported that bill and Nixon then signed it. You can see it in FCC appointments Nixon's appointments to the FCC have been completely friendly to the industry in fact it seems to me they've probably been cleared by the industry ahead of time then Birger is the one exception he's only about 85 percent pure from the industry point of view he happens to have a conscience and. And a pretty good mind and therefore he can't go on with quite everything so they're trying to throw him out apparently. You see it also in various private meetings that the administration has had with the owners of the media there was one last June with broadcast

executives in Washington at the White House a couple years ago when Nixon went around the camp. The country to brief the press and the people he briefed of course were the publishers the owners not the not the newsman and many cases not even the editors. That is part of the effort of course are getting a minute or the leading example of that which is Whitehead's current campaign. But this has succeeded in many ways it seems to me in dampening a flow of information to the public. Succeeded as well as the frontal attacks. You can see the success for example in the the many ways in which the news these days is what the government says it is. Then bad Dicky and recently did an article on the Columbia Journalism Review where he studied the press coverage of the Watergate affair. And found an awful lot of complete blacking out or Browning out of the damaging stories the papers would run the response from the White House the next day without having run on the front page the damaging story the day before. By digging a link that links this with the.

Publisher support of the Nixon White House. If that's true it's another way in which the government is getting to the information through the publishers rather than directly by inhibiting the directly by inhibiting the newsman. It was reported recently that CBS that the management of CBS stepped in during the campaign to cut down a documentary they were doing on the Watergate affair. At the behest or in response to pressure by the White House CBS is generally good about these things CBS claims that its management never interferes in its news judgment. If the story is correct it's one exception to that. But there are many other outlets of the media who don't make any such claim. And where the management can have their finger on the news at any time. Of course the leading example in the clearest case is the recent license renewal bill proposed by Clay Whitehead which is a clear example of trying to give the order as a present if they in return will cut down on the news. I will give the owners of the stations a five year license

term will protect them from challenges if they step in and eliminate ideological pro-Gore and all leaders gossip from the network news. And of course we all know what that means. The theory of it is as Whitehead says that we want the local station owners who are the pillars of the community supposedly the people to whom we give the licenses they should be the ones who control the news the national news yet rather than the journalists and of course if this works one can see what the effect will be it's been suggested in the current Newsweek cover story on the media that it's already working. Someone is quoted there is saying what do you think your chances would be these days of getting local network affiliates to clear a documentary on the bombing of Hanoi. One can see that they might not be too good. Well if if one analyzes exactly what's in the white head doctrine it's been attacked it seems to me largely on the wrong ground it's been attacked. On the ground. Well first of all the technical ground

how the hell can the as a as a practical matter. Could a local station have time to step in and cut off all the Cockeye even if it wanted to. Beyond that and of more substance it's suggested. Who is our local. Why is a local station owner in a position to know what to do about national news anyway. I think that's the wrong issue too. When one looks at the facts one finds that these local station owners Whitehead is talking about don't exist. In general the big television stations are owned by national companies by the networks among others. So you have national owners in the first place. If so that you know that conflict isn't there. If Whitehead really means the local managers rather than the. Rather than the national owners one what happed asked Are they willing to guarantee the independence of the local managers from their national bosses during the campaign the new house organisation which zones for television stations around the country sent out a wire all of them to endorse Nixon for re-election.

Is the White House the white head willing to protect the local managers against their kind of national control so they don't have to take orders if they want to. It's obviously an impractical way to run a national organization. Further we don't in fact choose the station owners the way Whitehead suggests we do. He says We license these people because they're pillars of the community therefore let them control the news. In fact of course you can buy a station if you have the money for it it takes lots of money and then the FCC will approve your getting a license you are not chosen ahead of time. If Whitehead never comes down to saying what it what it may come down to that is simply saying the station owners are responsible therefore they should control the news they're responsible in the literal sense that they're the guys the FCC can take the license away from. But that becomes a circular argument because Whitehead goes on to say therefore we don't have to have the FCC looking over their shoulder we don't have to require them to balance the news and so forth because they're good

guys and if the basis of their being good guys is that the FCC does have power over them then it's a circular argument. So what the real White House position comes down to it seems to me is they want a news controlled not by a newsman but by businessman but by the owners the managers of the stations and one can see what would happen from that now why do they want that it suggested the businessmen are more conservative than those men. That may be true I find that in a sense an invalid argument because I can subscribe to the notion that. It's a good thing the newsman are a liberal and we want a liberal slant on the news rather than a conservative slant. It seems to me the well there's something to that the stronger argument is they want the businessman to control the news because the businessman unlike the journalists are vulnerable to the White House pressure vulnerable to the economic pressure they'll do anything not to lose their broadcast licenses. The publishers a couple years ago would do anything to get this newspaper Preservation Act passed. They are the

people who are vulnerable to the White House pressure and that is why the White House wants them in control of the news. So it seems to me from all these points of view there is a threat and one can also already see an impact on the news from the private constraint that comes from the owners of the media as distinguished from the journalists. And I think that the. The journalists themselves should should assert their rights not only against the government but should seek ways to assert their rights demand their rights against the management. Now there are various ways in which this might be done this leads in of course to the whole movement of so-called democracy in the NEWSROOM which strikes me as something of a misnomer because you do want editors you have to have a hierarchy. But the notion that the new should be controlled by the professional journalists and that the management should have no right to interfere this is supposedly the credo that is followed by The New York Times The Wall Street Journal and a more conservative kind of paper. CBS and so

forth. And it seems to me that that kind of you know that movement. It is quite related to the the danger to the information flow now there are various ways this can be brought about collective bargaining is one of them. This is already started there's a lot of talk about this in the Journalism Review also through the FCC the FCC has cases saying you can't have a newsman with a conflict of interest. And when Chet Huntley was broadcasting a commentary about the meat industry at a time when he owned a corporation in the meat industry the FCC said that's bad. It seems to me you can apply the same thing to the managers since they have these conflicting interests the owners. They should not have the right to control the news the right the white head Precisely says they shouldn't. And I would suggest also the newsmen ought to do more whistle blowing of this kind even at the peril of their own jobs if CBS is shortening a documentary. If the newspaper is not putting the war a

good affair on the front page I'd like to see more more or less a blowing so I think at stake in this whole movement for journalists autonomy is not only a better feeling by the journalists about their job but also the whole issue of freedom of the press that there is a danger of private restraints from the owners which is somewhat comparable to what Tony mentioned the danger of inhibition by the editors just as well as there's a danger of attacking the government. This is OBL. Well I want to say to you for a start that I thought Tony was too harsh on John Adams. I think that Thomas Jefferson was also pretty rough on the press. And also I would say that it's I guess it's demonstrably all that the attempts by the White House to control the press and the attempts by the press to you like stories

out of the White House that goes back. A long way in our history there's a famous and doubtless apocryphal story about another Adams John Quincy Adams who among other things had the habit of not talking to newspaper men any more than he possibly could. And he had the other habit of taking a dip in the Potomac in the early morning which was fine except that a lady and and this story has APF Tokyo so don't accuse me of of sexism because I said that it was a lady reporter who wrote under the name of Paul Pry who was trying to get a story out of Adams. Which he was refusing to get. So she went down one morning while he was taking his bath. And he was doing it without the aid of a bathing suit or Secret Service agents. And she sat on his clothes and said that she would not leave until he had answered her questions on the tariff or whatever the

burning issue of the time was agitating the press. So standing up to his neck in the water treading water as the current change he gave her the story. And it's up to his successor in the White House of course was a notorious manipulator of the press the whole kitchen cabinet was. I would say in targeting a large portion of the kitchen cabinet was comprised of newspaper men that the president was seeking in his inimitable way. So buying to him one way or another. Well enough of these rambles down memory lane. I come to speak as it were not in large terms because my own predilection is to view things fairly microscopically the aspect of press government or First Amendment

tensions that attracts my attention these days is the growing amorphous debate over whether or not newspaper men and women journalists should be exempt from testifying whether in the grand jury or elsewhere other than concerning the sources of various of their stories. Now what. There there is in the journalism profession obviously a high dependence on sources and the story that Tony Lucas began today with clearly illustrates that if nothing else what the question is whether that dependence on

sources is of such constitutional importance that a newspaper man being asked to testify should be permitted to say that he will not testify as to information which any other citizen so situated would have to disclose. At the risk for non-disclosure of spending some time behind bars. The question is whether a newspaper of a person who has been told something in confidence by an individual on the outside should have the privilege. To refuse at his discretion that is to say the

journalist discretion not to reveal even the name of the source. Thus a reporter who has interviewed a member of a motorcycle. Hell squad just to take one lurid example for millions. When asked in the course of a grand jury investigation into a murder supposed to have been committed by that hell squad can if there is to be a journalistic privilege refuse to disclose any information pertaining to the crime so long as that information has been disclosed to him in confidence. Further he need not if

the privilege is to obtain. Disclose the name of his informant. Now the thing that bothers me about the dispute over the journalistic privilege is that it tends to be automatically white hat black. There is an assumption that a journalist being asked to disclose the identity of his source is being asked to do so. You know what it is that injustice may triumph in order that repressive government may flourish and in order that a lazy district attorney may somehow save the police some time. Furthermore there is generally in discussions of the journalist's privilege an assumption that if there is not to be a journalist privilege the press will be restrained

in its ability to exude dishonesty and impropriety in government. Because nobody will talk to a reporter so the argument goes unless the reporter can guarantee that the source's identity will never be revealed. Mr Hume of the Andersen entourage roads a very appealing piece in The Times magazine section about a month ago which he said in words or substance that if a government source couldn't be guaranteed anonymity the government source wouldn't testify. Well I throw open to the assembled group whether that isn't high priority assertion or whether it's really true.

Demonstrably true. Seems to me that people in government with information very frequently don't care whether their names are used or not. When they go to war reporter Another point I think is worth talking about is the ownership of the privilege that is to say who can claim it. In analogous privileges in the lot for example the attorney client privilege or the doctor patient privilege the privilege belongs to the person who has imparted the information. The lawyer cannot testify to what the client told him unless the client so authorizes it. Furthermore the client himself can't be compelled to

testify as to matters in point and in confidence to his attorney. Now the journalist privilege as it's been postulated in various shield laws and draft shield laws and arguments concerning them is that the journalist himself is going to decide when the information will be made public. He's going to decide for himself when the source will be revealed. And as I understand it the argument is well there is a sanction on the journalist and that is if he ever peach is our source. He'll never get another source again. I wonder if that's a priority or for real. The. The last thing that I want to say at this point reserving the right for rebuttal is that once we establish a

workable that is to say an identifiable attorney journalist privilege. Once we have a standard it seems to me that constitutionally the standard is going to have to be sufficiently general so that it will cover. Situations such as one that arose in Boston a couple of days ago where a defendant had information that two journalists know. Of a conspiracy. Now this is of course allegation but that doesn't destroy the import of the example. He had information that these journalists had talked to members of a conspiracy to kill in effect prejudice a pending criminal trial. In the course of the

hearing to transfer a venue he the defendant summons the two journalists and wanted to get them to disclose their sources. Now there are large issues of relevancy which dilute this example. But the point is still there and that is that there are going to be times when a good guy or woman is going to want to cause a journalist to talk. And it bothers me when we disclose when we try to establish a privilege covering journalists that were going to cover too much. And I would very much like to hear at some point the views of the journalists on and off the panel. So whether the scope problem

can be appropriately dealt with let's turn to a journalist and hear from Mr Sanford under those views won't be delayed. I want to I'd like to start out by taking issue with something that Tony Lucas said a few minutes ago that I think goes to the heart of some of the problems that the press is having in the United States today Tony suggested that the dependence on sources is greater now during the Nixon administration and has been in the past. And I really don't think that's true. I think that would be the difference is that journalists for the most part especially those who work for the so-called eastern establishment newspapers were very that the difference is that they were very in and were very chic during the Kennedy and Johnson administrations. Their friends were White House advisors State Department and Defense Department officials people they'd gone to school

with people they knew and lived near. And they depended journalists depended on sources. I think enormously during the Kennedy and Johnson administrations. But it was easy at that point. Well now there's a and administration Washington which is populated by people from of all places Arizona and and other places out in the heartland that the journalists in Washington in New York and Boston don't know and and don't know how to reach is easily and even even with Henry Kissinger there. I think it's a it's a different situation only in the perception of the reporters and the ease with which reporters can perform their job. And and so the difference is and in one respect I think that the press was very successfully used by the Kennedy and Johnson administrations. I think there was no better example of that than the way in which the New York Times and The Washington

Post were forced to defend themselves during the civil litigation over the Pentagon Papers when they came to court with affidavits opposing. The Justice Department's request for Preliminary injunctions the affidavits were full of stories about how editor X a reporter Y had met in the White House with President Kennedy or President Johnson and President Kennedy had shown him some material that was top secret and it was injurious that that would under the current Justice Department's definition. Being curious to the national interest and there was there was one story after another in those affidavits of how chummy these editors and reporters had been with the Kennedy and Johnson administration people. Well that worked. It avoided the injunctions. It contributed greatly I think to the decisions of the courts that they could not grant a prior restraint in this case because really that the New York Times in The Washington

Post and in one sense were doing just what people had done before. But I think it showed something very important about the way the press has operated in the United States especially in the 1960s which is that the period of time it was relevant there. And that is that the press has really been very very willing to cooperate with the the government system with the the bureaucrats who want to provide information without. Having their names attached to it and the press has in the United States has in many ways formed a problem like function in getting the views of President Kennedy and President Johnson across to the people without any opposing point of view included in the stories. And I think that it was it was especially clear during the Pentagon Papers incident that suddenly the press was really confronted with and a ministration that was less cooperative with the press that had less opportunity in there. There was no

pretense at the time that the reporters were doing their stories under the Kennedy and Johnson ministrations that those documents were being given to them by President Kennedy or President Johnson or some other high officials because it was in the interest of the high officials to do so. And the press was cooperating. The press was being a fully cooperative and and dues paying member of the establishment that helped control the access to information for the American people. Well I think that one of the differences now is that this administration doesn't feel exactly the same way that people have to try and reach a different kind of person people they're not friendly with. They didn't they didn't go to college with. And I think in many ways I believe that Vice President Agnew has been expressing a point of view that many people in the Kennedy and Johnson ministrations felt very strongly and held themselves and I think we have evidence that President Johnson felt that way when it went to news of an appointment was leaked to the press in the

Johnson administration it killed the appointment and he damned the press for it. And I think that I fully agree that the danger to the press is very great because government officials are expressing this but I'm not sure that it's all that much different in character if they're expressing it or if they're just feeling it and manipulating the press in the way they've been able to do for a long time. And what seems to pass without notice is that only recently I think last week or the week before Senator McGovern was in Boston and he too blamed the press for his defeat. We didn't carry that story in The Washington Post and The New York Times on page one. The way we carry those stories when a white head says something like that or when you said something like that because this is George McGovern talking. And maybe it's because he's he's just smarting from defeat or he's become a little bit irrational in the aftermath of the election. But what he's saying

is really not all that different character from what the Nixon administration officials are saying. The press did mean it's the press's fault that this is happened to me. And I wonder how Senator McGovern will and in good faith stand up on the floor of the Senate when when Mr. Whitehead's bill or any number of Nixon administration legislative measures come up in the next four years and defend freedom of the press and defend defend the right of the press as a as a true zealot of the press at that time I don't think he could in conscience and convincingly do that. I'd like to turn to just one other point right now referring to something that Professor Bell said. I think that the dependence on a new source as I said is is great now but has been great before and will always be great if there's to be any true reporting and true provision of information to the press. And I think that Professor Isabel's example was

telling it for one particular reason he said that when a government official goes to a reporter he probably wants to be known he probably wants to be identified. And I think it's a pretty sorry thing that the public and law professors and the press itself has to assume at this point that it's the officials going to the press rather than the press going to the officials. I can speak from personal experience I expect that other journalists here in the room can speak from experience that it is demonstrably true that when a reporter is trying to find out information from a news source or a governmental source especially in Washington that the officials will not talk without the protection of their identity and very often the next day will deny the very same story they have given to a reporter with documentary evidence the day before. And it might be nice for a reporter to be able to go into court and embarrass that official once or twice and

and show that that he was really lying when he denied story or or somehow covering up his own activity. But I think that the principle is that a far greater one than to be spent on the embarrassment of a few government officials. And I think it's also a far greater principle than to worry about good guys versus bad guys and I have no hesitation whatsoever about saying that if it be a good guy who wants the name of my source somebody who is defending a point of view or Sands for something in a case that I believe in but I am no more entitled to provide that information when it be a good guy than when it be a bad guy. And I think that the only way that reporting can maintain any sort of high standard or respect among the people that that reporters have to deal with is for the principle to be absolute and for the decision to protect sources to be absolute and without exception under any

circumstances. And that when the crunch comes that. Why somebody in the Watergate case wants to subpoena tapes from the Los Angeles Times if those tapes still exist it seems to me that ought to be the publisher of The Los Angeles Times who refused to turn them over and the publisher who pays the penalty rather than the bureau chief or the reporter involved. I think that the only way the principle can be preserved is to increase the cost of violating it both for the press and for the government. Thank you let's turn now to our last speaker then Mr. Hurwitz. I'm glad I'm speaking last because I had nothing prepared to say but now that my four colleagues about something to say I think I have perhaps five minutes worth I'm sorry but even though we are five and a moderator that we are still disproportionately represented here because there are two lawyers and three newspaperman.

I'm nobody here whatever who speaks for the organizations that are in my view the most threatened of all which are the television and radio networks. The First Amendment does protect the press. The president didn't need an FCC license and I think Professor Dershowitz is right. Also when he says Ours is the freest press in the world I'm sure that solves it's not the same case with the television networks and I don't feel competent to speak for them. But I hope someone in the audience does I know at least one person in the audience who has some knowledge in this area. But I wanted to make the point that as how honest and as much in difficulty I think the process it goes triple in spades for the television networks and let us not we here who deal in the printed press forget. That for everything we write and edit and everybody who reads what we write and edit there are probably at least 25 to 30 people in the country who never see what we write and edit but who do watch network television.

And that the by far the majority the people in this country get their news not from what we write and not from what we have it. But when Cronkite says and what Brinkley says and what Chancellor says and what Reasoner says and what Smith says. So I hope that when that discussion from the floor comes that we get in this area more because to my mind that's a far greater threat than whatever it is we in the news business in the print news business face. Also I'd like to make another point about some of the things some of the other people have said in terms of internal restraint. The point that Tony locust made being on the other end of what he's talking about. I understand what he says and I agree that he is correct to a point. But speaking personally I would much prefer much prefer to be beaten not by the Washington Post not by CBS but by the Washington Star News or the Indianapolis News or the Phoenix star or the Chicago Tribune than I would by The Washington Post or CBS.

The reason I say that is that I think Mr. Agno in his speeches and 69 and 70 succeeded beyond any of our imaginations. He so succeeded in my opinion. In making the general public suspicious of the Eastern lead establishment press the Post the Times the Wall Street Journal the lesser degree and the networks that when the post came out this fall with all out material on the Watergate. There was a great inclination on the part of a great many people to say to your son to agree with Ron Ziegler was said well look where it comes from if you will recall when Ziegler commented on all the things that were disclosed in the Washington Post he almost never addressed himself to the substance of what was said in the post. He addressed himself to the author to the to the originator of the material namely an outfit that is obviously anti White House any administration and who can believe them. And one of the reasons I think that the public did great that with a yawn was I knew was very successful

implementation of this thesis study that he placed in the minds of an awful lot of people in this country that you can't believe those leftist liberal pinko people. So laugh or I would say speaking for myself I would love to get beat by one of those other papers. I don't like to get beat by anybody Tony is exactly right on that point. Nobody likes to get beat in the business. It's a it's probably juvenile but then we wouldn't be newspaperman if we weren't eternal adolescence I think. But the fact is we hate to get beat but I would much rather be beaten by some organization that is not lumped with my organization as somebody who's not to be believed anyway because he has a preconceived prejudiced and connection with what professors o Bell said I would like to make one point that I don't think he made with sufficient clarity at least in my opinion. As a result of the Supreme Court decision in the case of Caldwell and the two others

there is no privilege he talked about shield laws and draft shield laws. That case at least as it applies as I read it and I'm not a lawyer. To federal cases means there is no privilege for a reporter to claim immunity from testifying before a grand jury or anyone else except in those few states that sense the decision. And the only one that I know of is my home state of New Jersey have an active Ashia law and that only applies within the state of New Jersey. All this discussion is about proposed legislation. There are any number of bills that have been drafted in Congress but as things stand now there is no such privilege. People have gone to jail. People are in jail for failure to disclose and in a given situation here after people presumably will continue to go to jail. And I would agree with wholeheartedly with Sandy Unger that the only way to really crystallized this issue and to get it debated in the way it should be is if somebody like Otis Chandler or punch Salzburg or or Katharine Graham goes to jail. That I

think would dramatize the issue sufficiently. And I think you might think it's silly to propose but I think I don't level just slightly below that level. I think there are people at least there are at my place and I'm quite sure there are the Washington Post who would go to jail to test this principle. But that would really dramatize the issue not the bureau chief not the reporter out in the field but the publisher or the managing editor or somebody at that level who's name is reasonably well known and whom the administration might just be a little embarrassed after put manacles on and leave off to prison. Another point that I'd like to make in connection with what both Tony look is and Sandy Unger said about sources as being we are by far the oldest gray beard on this table I can talk before Johnson before Nixon and before Kennedy and make another point. There was an administration in Washington between one thousand fifty two thousand nine hundred sixty. It was headed by a Republican. His name was Dr Eisenhower. The reliance

on sources in the Eisenhower administration which was a Republican administration was as great then as it was in the Kennedy administration as it was in the Johnson administration or as it is in the Nixon administration neither more nor less. What's different from between the Nixon administration and the Eisenhower administration is the degree to which sources are buttoned up. Every time a Nixon appointee showed any degree of friendliness with the press he was either silenced or let go. It is a general belief among the Eastern elitist establishment press that the outgoing secretary of commerce Pete Peterson was a very able guy that killed him. He talked a newspaperman he liked them and they liked him. He is no longer the secretary of commerce. But the point that I was trying to make was that in an Eisenhower administration which I would say was neutral more or less visibly the press the same reliance of

sources the same sourcing the same identified source kind of leakage went on as went on in the Kennedy and Johnson administrations I want to reinforce what Sandy said that it is the price that must pay the penalty in my opinion for being as he said as cozy as it was with a private with the White House in those two administrations. And. There are a lot of us who went to Harvard and were on the crimson who were in Cygnet a lot other places a lot of people who were in the Kennedy administration that made it very chummy. It was like being on the Mount Auburn Street all over again and the out. And there was all about of course was a lot of a lot of material that came in this in this way. And I went to great to know that the next administration there were very few reporters I know went to University of Southern California if they do they're in great shape. But unfortunately there aren't aren't too many of us. But to pursue this point one step further. The the grade to which the printed press was relatively ignored in the

1972 campaign by the White House and administration is without power. In my journalistic career in the home I think 72 campaign. I didn't get one telephone call from one Republican complaining about biased coverage. That is extraordinary. And the only conclusion I can draw is they didn't care. They felt they had discredited us to such an extent that nothing we wrote made any difference. And on the other hand we got not too many but enough phone calls from the McGovern people who felt perhaps rightly that they've been maligned. They care. It turned out it didn't matter whether they cared or not just as it didn't matter whether the Nixon people cared or not but the Nixon people in my view felt they had neutralized the press to such an extent that it mattered if we got nothing. And I think at some time they might have preferred if we had written nothing because as it turned out it didn't matter whether we wrote anything or didn't write anything. But as a journalist it was extraordinarily difficult for me to try and deal with a situation in which

one of the two candidates really didn't give a damn whether the press existed or didn't exist. This is something that we in the business will have to address ourselves to I can't conceive of its happening in 1976 because there won't be a sitting president. But the the the. That one sidedness was without power at least in my memory. Oh. I thank God. I have nothing further to say I would welcome very much anything and I'm sure the moderator would as well questions on the subject because I think we pretty well something leave the pattern for questions of the Mirage. First I have a short exchange among the panelists and then open it up for questions. I want to comment very briefly on the presentations I found among the presentations in some respects.

I thought a failure sufficiently to distinguish between manipulation by the government and manipulation by others. For example professors Odell use the comparison between the prosecutor seeking information in the face of a privilege and a defended seeking information in the face of a privilege. Sandy Unger blames McGovern the losing candidate as much as the people in power. I would agree with professes OBL that it should be the privilege of the source that is that if the source is willing to be revealed the newspaper men should not have the privilege of the newspaper men should be obligated in effect to say oh I know that my source does not want me to reveal this either because I've asked them. Well because that was his understanding in the beginning. If the source wants the information revealed first of all it's no problem we can simply reveal it. Second of all there shouldn't be any privilege. Second of all about defendants there really is a distinction it seems to me between the government seeking information and a defendant seeking information that's a distinction which the law recognizes in many contexts that the defendant's right to establish a reasonable doubt about his guilt

is more to be preferred than the government's right to establish its case. It's still not a black and white hat principle the government's prosecution may indeed be the good guys and the defendants may be the bad guys but it's interesting to ask after all journalists are not the only people who claim privileges lawyers have privileges doctors have privileges psychotherapists separable just priests privileges in many jurisdictions. The question therefore is not as Professor Bell would put it. Why should the journalist and distinguish from any other citizen have the right disclose but really why shouldn't the journalists right be regarded as importantly as the rights of others well one reason why lawyers separate which if you look at the Hierarchy Every court agrees the lawyer has the privilege and then they raise questions well maybe Doc. Well we're we're the ones who are deciding of course where the judge is. We lawyers and we think our privilege is terribly important. But. There's another important reason to and I think that goes to something we've been discussing today lawyers after all in addition to having a privilege have articulated responsibilities. That is we have guidelines as

to when we can and when we cannot breach. Journalist unfortunately dump I think the courts looked on sympathetically at the claim of privilege in part because there is no canon of ethics by journalists there is no enforcement mechanism Oh there are a few kind of unofficial canon of ethics which were filed in the court. But they didn't have the imprint tour of formality that the book and ethics of the Bar Association have. So I think that journalists probably could move a long way toward getting a more sympathetic hearing of their privilege if they're willing be willing to critic to be critical of a misallocation of the prover for example as I think one of one prominent journalist recently wrote a lower supports the pro-Bush completely at least two of the recent cases where people went to jail that was shoddy journalism a journalist should not say that he has information from somebody that somebody has taken a bribe without being willing to come forth and indicate with more substantiality than that. But the bride has been given a cannon of a. Fix a committee which could enforce affirmative obligations as well as protect sources probably would be a welcome

thing. And finally it seems that the fear we have today from the government is a two fold or a pincer fear as Professor Barnett mentioned previously not only is the government seeking more information from people through the grand jury than ever before and from journalists but it's also willing to give less information at the same time when the Supreme Court seems to be turning away from the notion of privilege of any kind. We get bills pending now in Congress which seem to be very likely to be supported and passed which would give the government the power and which would in effect give the government the privilege which would effect give people like Henry Kissinger an even lower ranking executives a much greater privilege to refuse to respond to congressional inquiries. At the same time it takes away from journalists and others. Are there any people on the panel the web specific one minute rebuttals that they would like to make before we open them. I would just like briefly to say to Santiago I I know I think there's a danger in our trying to be too fair minded up here I mean

it. That is that is yes we all know there is always but there have always been sources. Granted the idea of journalism without sources is almost on the face of it ludicrous. And yes he is absolutely quite right and I think he expressed it very well about the relationship of of all of us to Mount Auburn Streeters and and the and the Kennedy administration I submit however that when Mr. Ziglar said yesterday that he promised he truly did promise this time fellows that President Nixon was indeed going to start holding press conferences again and then UPI noted that the last general news conference was on October 5th the last presidential address on November 27. My memory be short I'm sure. Sandy and and Irv will correct me if it is but I cannot recall myself a period in which the country has been going through the kind of permit. Excuse me if I'm not fair minded the kind of moral

crisis which I think it's been going through in the last two months and which a president despite the attacks by the editorial pages of the times in the post has consistently refused to go before the public and talk about the moral issue. You know either either submit himself to questioning a drip or if you know in the Klein mode address the nation without counter you know without rebuttal. And I think this is we've seen this time and again in this administration I concede to sources yes you're probably right I probably misspoke myself the dependence on sources is more or less the same but the withdrawal of this administration from the nation and the vindictiveness which are talked about the punishment of sources who dare open their mouth are two things which I think are perhaps only marginally but decidedly marginally greater than any administration that I've watched. But but Tony I don't you know I think without the press conferences we're just as well off. I mean who

cares if the if the president gives a press conference and every one of those press conferences produces six front page stories about the president's view about this year's oyster crop and everything else on front pages of newspapers all over this country and it and every time he has a press conference the New York Times in The Washington Post and many other newspapers take the press conference transcript and divide it up into five or six different pieces and just milk it dry for every word they can get from the president's mouth. And and as we all know at the president's press conference he very carefully chooses the reporters he's going to answer people who persist with difficult questions don't get answers from the president. And so he looks bad for a for a few minutes on television but then he scores the points he wants to make anyway. I don't think the press conferences are the heart of the problem at all. We have a minute I'd like to respond to something about Cindy Unger and Professor Dershowitz seem to say Sandy Unger

really attacked McGovern early suggested here is McGovern who just like the administration has attacked the press for the way they covered him and therefore how can he now stand up and defend freedom of the press. Professor Dershowitz made this distinction between government and private attacks saying private attack you shouldn't worry about apparently McGovern being while in office only in the Senate not in the white house falls on the private side of your distinction. I think that distinction is overdrawn. It seems to me were the monopoly media as we have in so many respects in this country you can have. De facto repression of information by private sources i.e. the sources that run the media. But I also agree disagree with the attack on McGovern It seems to me more important to draw a distinction between the kind of attack and where it comes from. I think of McGovern wanted to criticize the press for the way they covered him. He's perfectly justified in doing it like anyone else is

justified in criticizing the press. I think Agnew was justified in criticizing the press. I think the distinction that has to be drawn although it's difficult is between pure criticism in other kinds of more coercive approaches. And if you were going to as I would rely on the professionalism of the journalists build up journalism as a profession with standards canons of ethics if you like or whatever. I think you're going to have to rely very heavily on all kinds of criticism and soft criticism to protect these standards. And I do think we go way too far when we criticize people in or out of government for merely criticizing the press. I don't mean to criticize McGovern for criticizing the press but I think I think one of the important points was how the press handled McGovern's criticism that he's not the sort of guy who's whose criticism of the press gets on the page one just doesn't. Well I do think it's pretty important when he when he says it's the press's fault that I lost the election. You think you may not be as much what is private and public as one between the powerful and the powerless.

Let me show you what it is all right. Always criticisms get on page one at this comparable state of the record quote they dead point. They don't now any more. I mean I'm 64 65. Yes I believe that I'm you know my memory may be falling I think I might say in terms of McGovern's criticism of things like that she was Sandy this is not the first time you're going to say I was impressed if I tell you something Boston was undoubtedly knows more from having her. Going. There. The first sergeant. Having made the decision not to give a great deal of space McGovern's criticism in Boston I obviously have to be on the fence and I thought that the point had been made on Maiden maiden name by Michael Woods and by Gary Hart and by McGovern solved many weeks ago possibly with one of them but the point was McGovern's criticism to my view was not and was not on the premises. You made an interview in the Virgin Islands a week after the launch. Let's open the floor now. The question is and if you would like to identify yourself you may if

you want to keep your confidentiality. Thank you for reading and yes that looks like a great day. You know a lot Mike. I was practicing for men without a day yet. Maybe they want to find out what is going on without having the sort of thing. But there's something called the Freedom of Information Act which a few people have tried to use but it's it's essentially a dead letter I don't know if the law professors will agree with me or not but I would be very very little use has been made of it. I suppose there's always blackmail but I don't think that would be an entertaining prospect and there always press conferences we've shot

at which for the most part government officials are very well prepared with some with some notable exceptions some people make bad mistakes at press conferences but I think that really. You know sources art are in the end a hell of a lot better than press releases until somebody comes up with something else. I would turn down a very the only danger I see that he was the source is you've got to be the source I mean if you were to believe what's happened so you want a piece of paper you're not serving any function or some other for you're not a reporter what you're doing on is making some small process of selection from among the players and they chose to hand you. You've got to go to somebody else and get his interpretation and get some background some interpretation of the thing that bothers me is getting too cozy with sources getting so cozy with sources that you take their word as gospel and not have in your eye generally in your repertoire. Another source who may have an opposing point of view and then go to both those sources and not quote as gospel. Your own private

personal source as the final whistle. I see nothing wrong with sources as long as they are I think one are absolutely vital I don't see how it can exist without them. And secondly I think what I would oppose is getting so close to your source that you chimed in I think the tendency is there to cover up their mistakes because you know you're on a such a friendly personal basis that you don't want to make them up but they ask us a band a question when you gentlemen use the word sources is that just a generic term that covers everything from an anonymous telephone call to a press conference. Or does it mean something something special. I don't say it's an honest that's not the stores time I'm going to talk moms talk about I would not classify. Don't leave me when you say source. Well how shall I do it without revealing my sources. When government for example I don't want to tell The Washington Post anything more than I have to but let me know. That she well knows I will know when Tony look as well almost past in its ranks.

Civil Service who are neither Republicans nor Democrats but people who work for the government to give us an example of the blandest thing I can think of there are three or four people in the Social Security Administration that know everything there is to know about Social Security. If this chip the secretary of AGW comes out with a statement on almost anything regarding Social Security it would be a pretty stupid reporter who didn't call his source in the civil service and say and in asking for example are these facts accurate. Are these figures correct. Are his projections right. You can compound I can the State Department in the Pentagon and other places and that's what. I would call sources I would say experts. Hopefully with no axe to grind but almost always they do have a mixture but the perfect source if you can find them is somebody with a great deal of knowledge and a mode of objectivity with something you find Milo loves. That's great you know isn't an expert in the in the area that the stories covered as opposed to somebody who is an initiator of information who comes to the

newspaper and there's a book in her book but I think you have to distinguish between them for for purposes of deciding to what extent a newspaper is quote dependent on its sources. To me the difference between going to an official in whose judgment you have confidence and asking him to explain something to you on the one hand and on the other hand having somebody come to you and say here's something you don't know about the way the department's working almost in every case but where you see him a phrase according to reliable sources or highly placed sources government sources. I'm not a prophet of science so I'd like to answer the question and then I would to more specifics I think there are. Obviously everybody up here is admitting that. A newspaper man must have sources of one sort or another and I think that the issue that Hillary raises is a good one I mean there are there are different kinds of sources and and but but I think that there are a couple of ways at least two that I can think of and I there are undoubtedly more that I can think of at the moment by which one can lessen the reliance of a reporter on on

sources. One is the kind of journalism which some of my colleagues in the press I know have less respect for than I do but I have great respect for the sort of journalism that I have stone practiced in Washington for years. And it was a largely sourceless kind of journalism that is to say if I understand the way you practiced and I want to explain it he really was a very close reader of the newspapers and he would he would. And everything. He was a voracious reader and he would sit down and he would read something and he would ask it and he would say ask himself because he had the freedom of not being on a specific beat. He would ask himself why is that true. It doesn't make sense to me. And he would go out and research it. And one of things he found was there was an enormous amount of stuff available in government publications which you could check the veracity of the government itself. And then he would. It's true we have sources he would then go. But they weren't regular sources that he would go when asked somebody would never run into I of stone. What about this statement. You know and that isn't what we mean. Generally I think when we

say a source what we talk about is a source with whom you have an ongoing relationship and that's where the coziness starts if I a phone pops up in your office one day this strange little man with a braces curiosity and says hey tell me is that true. It can be fun and disconcerting. You make you know you'll never see him again you got no hold on him. He works for some crazy thing called the I have stone newsletter he runs it. And that I don't think is sourcing as we normally talk about the other thing I don't know I'm putting I'm sure I am putting her on the spot here and I apologize if order but but I'm intrigued by the way the The Times has been covering the Pentagon in recent years. It's another approach if I understand it correctly it's another approach to sourcing. We in effect have three military corresponds to the New York Times at the moment. We've got Bill Beecher. Who is Bill here today. Bill. Bill Bill was the only Crimson Editor

who I knew came in to get into the office wearing his ROTC uniform. Than. I. And I know. And I fully expect him to see him walk into the washing bureau the times wearing admirals epal That's one day. But he it seems to me covers the Pentagon about as straight as you can cover it. He's a good reporter but he's he's the official reporter down there. He covers the the straight admirals poop deck. And then. And then you've got. Then you've got cyber Bush. Well and then you got Drew Middleton who sources seems to be largely with the retired admirals who are who are who are sitting somewhere in the Navy Club furious at. Recent reforms and looking for some distinguished man in a three piece suit to talk to. And Drew talks to him and he's welcome to him as far as I'm concerned and the undersigned hers for the rest of us. And. This this

is a remarkably effective form of journalism and we got all three star you know all sides down there. But only the New York Times can afford the good guy the bad guy and the little guy you know to cover the Pentagon. Man it seems to me to be a strange but do you know made a piece of journalism as as a man a manipulator the strange you want to go. I don't manipulate the Washington bureau as a separate entity so I can block out on the grounds of private business but I would say to me that the ideas they have three suffered so it sets of sources what you write I read. Yes it was just that oh my oh my. I'm wondering well who's responsible when the water that you're carrying water for. Well I can without revealing confidential sources I know the Professor Barnett played some role

in working for the justice the year when one of the most important liable decisions was decided by the Supreme Court so maybe we can begin with him. Well I'm not going to rely on that source at all. But as a matter of brawn the answer under traditional law is that they're all responsible. If there is a libelous statement in a paper the person liable can sue the publisher the reporter the editor the printer and everybody and could collect from any of them. But the more important answer today is that you cannot collect from any of them because of the current law on libel is so much slanted if you'll forgive the word in turn in favor of the defendant. That is well nigh impossible to win a libel suit against a newspaper these days without support. Not only that they were false but that they knew they were false or were reckless and the courts have said that it takes a minimal amount of checking or even no checking at all to avoid being to avoid being held. Reckless or or knowingly false so that's why nobody really wins a

libel suit said Barry Goldwater head so sorry goer that's a special case it's a special case which tell some of the weaknesses of this rule. The reason Barry Goldwater want to case is the man who published statements which were probably both true and not reckless and still lost the libel suit was a very unpopular man he was not the New York Times he was not even a stone he was a man who went to jail for circulating obscene pictures of black and white people together and the Supreme Court simply had it up to here with Mr. Ginsburg and would not review that case and that's part of the law of libel too and the law of libel as I read it says The New York Times in The Washington Post can criticize all public officials but if you're not well accepted into a well recognized journalist maybe a different standard applies. I don't think that's quite true I think the Uganda bird case falls under a special rule which is not that you lose if you're not the one the New York Times they're always here was if you're out doing great in this report it was wrong. Yes you're right I was always

tells me that any thesis or your report American people for question fall from a question mark at the end of it but no more not done today on the site. You are we're almost split when you get more with big television station holders to be great. You know actually what the wife was trying to say wasn't very bright red her life goal because they were mostly on my network which I was not there for that are my first. Again way I guess one of the questions I really thought about was in Boston for example treat VHA child who are owed by local groups really myself on the East Coast. I think Margaret very hanging fruit probably pretty good and you know right.

No no no no and I mean for the rest of you do I think I was finally seeing the bolder boy they are hoping their life run three years will look very hard for a wife. All right if we don't like what you what she said and this is America you can do this kind of thing when for example. Yes precisely a challenge to make sure that they can reach home I will not leave by any of my wife I was responding to the challenge you're supposed to present are having in mind that that the government can't take it away from the TV station hookup with less than one of those very very. Well I must expect I will I don't mean to say that at all. I agree that whether you are a national organization like The Washington Post who has had its Channel's attack recently in both Jacksonville and Miami or a local

owner and some local owners are quite powerful they are all in jeopardy and that was my point that therefore you cannot trust the owners to stand up for the integrity of the journalistic functions at their station. They're not journalists in the first place. Many of them aren't even torn between the journalistic instinct and the business since they basically have no journalistic instincts and that's what my point was that you ought to encourage the journalists at the station to stand up for the journalist function give them ways to do so by allowing them to control the nose to keep the management out of it as the local news as well as nationally it was I think it ought to be improper for the station owner it would play Whitehead's head says he should do it and step in and read the view of the 6 o'clock news coming over and decide whether he likes it or not that's my whole point that in order to protect the flow of those you have to you want to be lawyer you have to rely on the journalist as distinguished from the only good

ministrations tactic is to give the orders that control and therefore the journalist have to fight the owners as well as the administration which will play the same role to the newspaper you are in for when you have them do it. That's the question all right. Mine were other birders ways there were some attempts already made to negotiate labor contracts which would give the journalist some songs in the selection of the editors I would think you could also have a new contract that it is improper that the management will not step in to make day by day story by story news decisions although they got to control the budget and so forth. There are precedents for this in Europe and so forth and I would like to say more you know more or momentum to this movement of allowing the journalist to control the numbers now the problem is of course that you run right into the objection are the journalists all these eastern slobs are slobs. Why. Are big box. Them in will big and I think the answer is to look to the journalistic standards the self-criticism to

editors standards and so forth to make sure they get McGovern on the first page when he criticizes the press just as they get Agnew on the first page. But the hope has to be in a professional standards of journalism and I think the business managers or businessmen not journalists should be excluded from the journalistic process if possible. Yes or back there. Oh hell any of you get. A life. You know the more you read and maybe they're thinking I don't

like her. Do you know I love her. Oh well you know what. Going to be a very very very. Very good movie and a lot more. Or if you do you may already have an iPhone with me then you would really want to hear it didn't you. Sounds like a challenge to be taken up. There are two things I I'd like to say in response that one is that the standards of the more may be higher and it's probably read by 1 percent of the people of France. I think it's an important thing to know and what's what's read by most of the people in

France at the newspapers read by most of the French have significantly lower standards. The other point that I think needs to be made about moment is sure you can get a great deal of information Lamond about Afghanistan and about the United States perhaps in about Great Britain. Not necessarily so much about France. And when I think in fairness it does have to be stated that when Limone goes too far the French government has the means and the will to punish them very severely in the long as I believe one of the newspapers now threatened by a court injunction because it violated the law by giving details about the execution of two men by guillotine recently. I would like I am I for I don't wish to as you put HIS put his finger on an important issue and I'd like to answer it this way. I have personally been very disturbed by our Starkiller on many of the Lamont men who I have met

and I have I don't know all that many but I've run into a few on assignments now and again are my men. As you're quite right of a considerable experience they may be men in their 40s and 50s they may have had a lot of experience they've been a lot of places they have a great depth of experience and sophistication to draw on. This is generally my feeling not true of American daily journalists. The emphasis here is put on youth and vigor and energy and aggressive. Pursuit of a story all of which I think are important but I've been struck because it's happened to me recently and it's not only happened to me that I want to personalize this I mean it's happened at most of the crimson editors who've gone into daily journalism. That they left daily journalism in this country somewhere in their mid 30s. Maybe maybe Santiago will be the exception and walla. The only

the only one of the few exceptions I can think of on the paper that I read just left a man who. Who in his mid 60s was still pursuing journalism in a fashion that I regard as exemplary as Homer beggared. But he's he's always mentioned in conversations like this because he's so extraordinary. And I I I have begun to ponder my my all my why this is solved. Why would the time when the New York Times not be better off when there was a Vietnam crisis if if if a David Halberstam could be publishing some of what was in the best and brightest in even in an essay form on the problems with David of course was that he was always. Too opinionated and too. Temperamental to a channel the vast talents that he has into into the look the precise form which the New York Times prescribed were the times not be better off and in this winter

if instead of having Random House publish that very good book despite what Mary McCarthy said that the New York Times should vary its the width of its columns a little better and and its conception of journalism so that a little of that could of have gone into the New York Times. And I cite David only because he's a notable example but I think it's I think there is a problem in daily journalism in this country for going to talk about substance rather than procedure as we've been talking about here that that the best journalism broadly construed is appearing in books and magazines these days. And that the best journalists ultimately leave daily journalism because they are no longer sufficiently challenge. That may be their weakness and their lack of imagination but I think it's indisputably true. If I could add my two cents to the argument I agree. First of all Mr. Swayze that in my opinion Lamont is far away the best newspaper in the world. I take I have no compunction about saying so but I think the reason that they are

so good is because they are Sandy and Tony have implied unique in the sense that they represent a tradition of journalism that is very foreign to the United States and only not only geographically to come up with a US version of them own a daily newspaper would mean a rethinking of what a daily newspaper should be. There hasn't in my knowledge never been a daily newspaper in the United States. But take the same attitude toward news as loaned us. I think I'm owed a supporter. I also like as Tony does that they probably have a better newspaper man covering individual beats than the whole panoply of American newspaperman for whatever media they just extraordinarily good. The reason I don't think is so much. Well I don't know what it is but I think it represents a whole train of thought on journalism that does not presently exist in daily journalism the United States the way it does in that group of extraordinary people who won the mug. But maybe a lack of genius on

our part and it may well be the case when Tony makes another point which is right exactly on the same point that as daily journalism is presently practiced in the United States the sort of thing he mentions I would like to see cannot exist in the Daily News but I'm not saying it shouldn't. I'm not sure sure. But the fact is the practicalities of them are they cannot as daily journalism is not practice. That's why it's done in books and weekly reviews and Journalism Review was. It just doesn't done in newspapers. You sir. Are like getting the nightly right here. We have enough. He'll be here long after you leave your

part of the story. Get their history and you know that the. Lawyers are our. Words. How. Are you on your worry the sun. Will present so little that. The little girl right here today. You're all the same on. Her. Story. And you meet one very very well written. Well. China Adams played it well on

the Wii. The idea that a journalist was somehow was protective of those who had confided in him at least protective of their identity goes back quite a long way back into the 19th century the the enactment of statues statutes to protect that claim started in the in the early 20th century. Contrary to what was said by the way there I think 15 states with shield laws and it's a very active issue in Massachusetts for example there are to my knowledge at least three or four separate proposals three of which have reached the legislature already to erect some kind of a shield law to protect them and use man's right to cover his sources. And that's why it is a very major issue I don't think. I must say my God I don't think that there is much risk that anybody in the world can claim to be a

journalist. I think it will be easy enough to for the courts to decide who is a journalist. My problem comes because and here I disagree with Alan Dershowitz very strongly. I think that the shield laws as they are built now and the proposed shield laws in various places leave to the journalists entirely the right to withhold the name of his source. And if a journalist in a given case decides that the interests of justice or whatever require the revealing of the source he can do it and the source can't do anything about it. Furthermore a prime I think his name is the newsman in New York who's having so much trouble bridge the bridge read. Yes but Paul Bridges Peter Peter bridge Well I almost got I got the Michelin Peter Briggs said. At least he was quoted on a yet to be attributed

basis in a humorous article he said that not only was the the the identity of his sources something that he felt he should not disclose but other material which he gathered in the course of his journalistic duties. Now I'm really bothered by that when somebody can say to the judicial process whatever that may be. Look I'm going to tell you what I think I ought to tell you and anything else that I don't think I ought to tell you I'm a the journalist I'm not going to disclose you can't do anything. I think that's a bed a bed and a scary. Stance on the other just a scary take a man who's covering the Black Panthers and would not be allowed into their headquarters to observe what they're doing. But for a proper promise of confidentiality and that case he's asked not only to disclose a source perhaps but do to disclose things that he saw which he implicitly promised he would not see otherwise he would not have been given access to the headquarters. Surely this is the only choice to be made there. If it is in fact true when you put the question originally we really haven't had an answer from the journalist.

If it's in fact true that sources would draw up without confidentiality if it's in fact true the Panthers would not let Caldwell in anymore. Now the Caldwell has to testify. Then we're surely losing something by not permitting Caldwell to cover up some sources is not clear. Oh sure we lose something when we allow a privilege and we lose something when we when we deny a privilege which would in itself a cut the flow of information you might as well say that if we had no doctor patient privilege people would stop going to doctors. But in fact that's not so and in Massachusetts there isn't a doctor patient privilege. I think in response to a professor's zoë Bell says I would submit that Peter bridges only mistake was saying anything at all. I think Girl Caldwell solution was absolutely the right more not to enter the room and then there's NO NO problem of the journalist saying deciding what he can say what he can't say the simple answer is you say nothing you're not you're not part of the investigative processes of the government. You mean just that just the refuse they want to dissipate. That's right. Just to refuse then to the grand jury room establish your credentials as a journalist

and not enter the grand jury. Well usually you do that you establish your credentials and it responds to about the third question. Well maybe we can change that and do that I take it you are the same thing when you hear if you were called in and told you were going to be asked questions about things that your client told you in confidence. I surely would not go into that Granger and I would not go into the grand jury room and begin answering questions and then make a case for question by question determination. I would say nothing that I have been told by my client or observed RVN in connection with the confidential privilege is going to be disclosed. And I'm telling you only that I am a lawyer and I am his lawyer. And unless you can persuade me outside the grand jury room that there are there are kinds of questions you might ask me which would not violate the privilege I would refuse then to that well I'm not. Say that I would dance I would enter the grand jury room I would identify myself and when I was asked any questions concerning my client at that point I would say he's my he's my client and the communications were given to me in the course of the attorney client relationship and I refused and one of the client then said to

you I see you are the grand jury room. Would you tell him you say nothing and he says Well show me the grand jury minutes and you say well I have to explain to the screen three minutes. They're very special. You can't see them ever under any circumstances. You just have to take my word. And next time you come to see me about a confidential matter you just don't have to believe it I didn't say anything I mean I show up the next time and he shouldn't. Well not no way but I got to get in on that point. I'm not if you're a member of the crimson that's a cynical remark. It's nights like this mindset. We last I heard said it is THE PRESIDENT Well it's a law but I'm also allowed to characterize it. Are does the gentleman here. He's just not going to show up in my words. We're not talking at law we're talking about journalism. Sources just aren't going to show up consequence a decrease in the flow of information. I I can be specific. I know of a case where an important where a journalist had to decide not to do a

story because a source came to that journalist and was going to talk about a subject which would have been I assure you of interest to the nation I think of value to the nation. Not a crucial value but very little that appears in newspapers is of absolutely crucial and decisive value this would have added importantly to our store of knowledge the source would only talk with a guarantee of a confidentiality and the journalist told him that as he read Caldwell he could not offer that guarantee and the source said no thanks. I I disagree with Hilary because I think that it just it just seems to me that what we need in this in this day in which the White House and the sources we're talking about control the news is the freest.

It's always been true John but it's it's it's true as true now as it ever been what we need is a free for all. We need the freest possible flow of information. And if as the gentleman says they're just not going to show up. They're just not going to be available to you journalists and that is like I mean if he's implying that that that's that's equivalent to a lawyer simply having to do without a client or two. It's not we're talking about we're talking we're talking about a matter of sort of social policy and if sources just aren't going to show up that is a matter of great importance I'd like you to look P.C. I think this is this is only really have to talk about what percentage of these other sources by whatever definition you choose are going to refuse to disclose their information the point that your question is Is there any advantage. What what other means of information are there that are the ironstone type of information that could reasonably be expected to be substituted for those sources who refuse to.

Why do we why do we have the answer that I think fairness compels that the person to whose remarks he responded be given a chance to answer here. You say first I am from someone they fall under that category of practicing lawyers. Rather lawyers are right. Without. It my remark was the ghost of it. It was addressed to the crimes that they were in the days of giving. Mike refused to follow the process of the law before us. The privilege might for I better be asserted at some point earlier land but was presently provides that it should be as I

am not discouraged by the fact. That a client may not respect me or may not take my word if I say I am. I said nothing before the grand jury and he their work refuses to come back because in fact if the if the privileges broccoli asserted. And asserted when the last it shall be asserted he has not been marked that I am I have not been harmed because he did not reach their right of return. I think the same thing is true from the standpoint of the journalist. Sources it seems to me half a crown down the hall mark of a good journalist who used to go out on hand for every source that dries up for half an hour can be located. I'd say that you're exactly right. Oh but the religious You're presuming that the lawyer on the client or an

equal playing of equal intelligence with equal respect each for the other and that may be true but that is not the case with an example Michael Caldwell of The Black Panthers. He was addressing it was up to a group that is infinitely suspicious of all procedures and with with some justification. Therefore they cannot plan for or call our comment blindly assuming he shouldn't blame Lisa When did not but we assume that when he comes back and says I want my grandchildren but believe me I told them not the relationship I contend between a lawyer and a client. I think a lot of what you're thinking of is not the relationship between the newsman and the source. All sources are not bona fide. Stop with responsible people with a great faith in the legal process. I started with the story. Let me end with a story a story designed to illustrate I think some of us may come to believe that the press is really the vanguard of all freedom in this country one has to realize that the press has a parochial and particular interest in preserving one

form of freedom freedom of the press that was perhaps best highlighted recently when the Times went on its vendetta against porno theatres and massage parlors on Times Square. Forgetting how recently it's been the beneficiary of the First Amendment and trying so hard to turn off the First Amendment on people who are occupying its Time Square area but not satisfying its own definition of free speech and civil liberties newspapers or is often villains and culprits in the area of civil liberties as they are defenders and one should not get the impression from a panel discussion of this kind where the interests of civil liberties and the interests of the press of coincided. But that's always the case in the story to illustrate that takes place in China. Some time ago when a young man was called in by his father and the rest of the family and the father said. Children. Have something to ask you. Somebody push our family outhouse into the Yangtze River. Who did it and unwilling to bear the burden of telling every child said No no I didn't do it.

Finally the father said Well one of you has to tell because one of you did it I'm sure and you know the story of George Washington his father asked him if he cut down the cherry tree and one son the son came forward and said yes and that son was rewarded becoming president of a great country now. Is there anybody would like to tell me to knock the house into the Yangtze River. And one young man came forth and said Daddy I cannot tell a lie it was I aware upon the father hit him and kicked him and bloodied him and the son looked up at him and said Daddy daddy but you told me about George Washington he said Yeah but there's one difference. George Washington's father was not sitting in the cherry tree. When it was knocked down. Well it's the press that's sitting in the cherry tree today and I hope you've enjoyed our discussion. Thank you. Tonight the Sunday forum has presented the rights of the press and the First Amendment. A panel discussion recorded January 20th one thousand seventy three as a part of the centennial celebration for the Harvard Crimson. The participants included

her prize winning journalist J Anthony Lucas formerly of The New York Times now the contributing editor for the more Journalism Review Irvin Horowitz assistant national news editor for The New York Times. Sanford Ungar of The Washington Post. Steven Barnett professor of law at the University of California Hilary's obal professor of law at Boston College and the moderator was Alan Dershowitz professor of law at Harvard University Technical supervision for this broadcast was by Steve Izzy.